Dunsmuir and the Constitutional Status of the Administrative State

Have the courts built the administrative state into the constitution’s architecture?

Kate Glover, Western University

I presented some of the ideas summarized here at the ‘Re-writing the Canadian Constitution’ Conference at Boston College Law School, Boston, MA, 19-20 October 2017. This piece is part of a larger project that explores the constitutional character of the administrative state, as well as the implications of that character

The contemporary administrative state in the United States is, Gillian E Metzger writes, under siege on political and judicial fronts.[i] The attack is waged in the President’s tweets, in the administration’s policies, in budget cuts, in failures to fill administrative roles, and in Supreme Court decisions. While Metzger’s descriptive account of the state of administrative justice in America does not reflect the current Canadian experience, it still raises a question worth asking in the Canadian context, namely, would there be any legal recourse in the event of a similar “siege” north of the border?

Part of the answer to this question lies in the constitutional status of the administrative state. Does the network of public actors and institutions that make up the administrative state fall within the protective scope of the constitution? Or, more specifically, does this collection of actors and institutions fall under the protective arm of the constitutional amending formula?[ii] If the administrative state is entrenched within the architecture of the constitution, then the answer is yes. And if the answer is yes, action taken to dismantle or undermine the administrative state could be deemed unconstitutional, thwarted by an absence of the multilateral consensus required under the amending formula.

What, then, is the constitutional status of the administrative state?

The law has traditionally told a story about governance in Canada that imagines the administrative state not as constitutionally necessary, but as constitutionally permissible and, ultimately, constitutionally welcome. Administrative decision-makers are, as Justice Abella explains in Rasanen v Rosemount Instruments (1994) 17 OR (3d) 267 (CA), “designed to be less cumbersome, less expensive, less formal and less delayed”. These actors are, she reasoned, “to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly”. They are, in other words, established and operate in service of access to justice and the rule of law, but can be created – and reformed and dismantled – at the free hand of the legislature, with few constitutional constraints.

But a study of modern public law jurisprudence in Canada reveals an alternative story of governance and public justice that leads to a different conclusion about the constitutional status of the administrative state. In this alternative account, the administrative state – not in all its particulars, but in its essence and function – is a necessary or essential feature of Canada’s constitutional architecture. It follows, as noted above, that the administrative state is entrenched within the constitution and therefore tucked under the protective arm of the amending formula.

* * *

So what is this alternative account and what does Dunsmuir have to do with it?

In short, the alternative story is told by simply noticing three turns in the public law jurisprudence. Each of these turns reflects an expanded appreciation of administrative decision-makers as part of a common justice project, and together, they support the conclusion that the administrative state is now, as a doctrinal matter, constitutionally necessary. Dunsmuir and its progeny, as it turns out, are an important part of the story. They represent the first turn in the jurisprudence that is important for the story. It is in this turn that we see the emergence of the courts’ commitment to a deferential posture when engaged in review of administrative action. Relatively speaking, this posture is new. The early eras of the administrative state witnessed the courts’ active intervention in administrative decision-making. The courts relied on an expansive category of ‘questions of jurisdiction’ to justify intrusions into administrative decision-making.[iii] The message was that administrative actors were inferior decision-makers requiring strict supervision by the judiciary in the service of the rule of law.

Today, judicial resistance to administrative power has been replaced by an attitude of deference to administrative decisions, including deference on questions of law and statutory interpretation. This deferential approach emerged incrementally as the courts grappled with the challenges of relying on reasonableness as a meaningful standard of review.[iv] The commitment to deference was rooted in respect for, in the words of Professor Mullan and invoked by Justices Bastarache and LeBel in Dunsmuir, “the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”.[v] Ultimately, in the post-Dunsmuir world, defence is the norm. While correctness review remains available on some matters, reasonableness is the default standard whenever an administrative decision-maker is interpreting its home statute or statutes that are close to home,[vi] as well as the de facto default standard in a vast number of other contexts.

The second jurisprudential turn of note is witnessed in the expansion of administrative decision-makers’ jurisdiction over constitutional matters. The law has not always granted these actors direct access to, or responsibilities under, the constitution. However, since the later decades of the twentieth century, public law jurisprudence has been loosening the judicial grip on constitutional interpretation. Where do we see this loosening? Martin and Conway are two examples.[vii] Here, we see the Court invoking access to justice, administrative expertise, and constitutional logic to conclude that public officials who are empowered to decide questions of law are also necessarily empowered to answer related constitutional questions and to grant Charter remedies, unless such authority has been clearly revoked. Doré is another example.[viii] There, the Court counselled deference when reviewing decisions of administrative decision-makers that engage Charter values. Again, tracing the increasingly broad and central role of administrative decision-makers in carrying out constitutional analysis and duties seen in Baker, Conway, and Dunsmuir, the Court in Doré held that a deferential approach reflects the “distinct advantage that administrative bodies have in applying the Charter to a specific set of facts and in the context of their enabling legislature”. Clyde River and Chippewas of the Thames First Nation are two final examples.[ix] These cases confirm that the actions of administrative decision-makers can both trigger and fulfill the Crown’s duty to consult Indigenous peoples whose rights and interests are affected by public decisions. In effect, these cases confirm that administrative actors are drawn into treaty relationships, bear the weight of upholding the duties of the honour of the Crown, and share responsibility for pursuing the goal of reconciliation of Indigenous peoples and the Crown. Ultimately, this set of cases suggests that public decision-makers have a direct and close relationship to the constitution, bearing meaningful responsibility in upholding, fulfilling, and applying constitutional obligations and remedies. It is a relationship that would be difficult to reconcile with the notion that the administrative state is not itself central to the architecture of the constitution.

The third and final turn in the jurisprudence is seen in the shrinking limits on administrative powers and jurisdiction under section 96 of the Constitution Act, 1867. Section 96 protects the special status and core jurisdiction of the superior courts. In the early decades of the twentieth century, section 96 was interpreted broadly and strictly, precluding the transfer of any judicial power to administrative decision-makers or statutory courts.[x] This protectionist stance was hostile to the creation and expansion of the administrative state, severely limiting the dispute resolution and adjudicative powers that could be delegated to administrative decision-makers and the sectors in which they could be involved. On this model, the courts, and more specifically the superior courts, were at the centre of the legal system and were to be protected against the intrusion or usurping of power by the burgeoning administrative state.

In fairly short order, the interpretation and application of section 96 – and the limits it created for the creation of the administrative state – loosened.[xi] In the latter half of the twentieth century, the courts pivoted to a liberal and generous approach to section 96.[xii] This flexible approach authorized the administrative state to take up novel jurisdictions, with novelty measured against the conceptual categories of the nineteenth century, and to perform adjudicative roles that are either important to policy goals or integrated into a broader institutional setting.[xiii] With this shift, the courts have contributed to the conditions in which the administrative state can be nimble, sprawling, and directly responsive to the diverse social problems it is intended to address. Together with the other two jurisprudential turns chronicled here, this shift contributes to the conclusion that the administrative state can no longer fairly be conceived of as merely permitted. It is, rather, difficult to conceive of Canada’s constitutional architecture without it.

* * * * *

Dunsmuir is a case about the structural dimensions of the constitutional order; questions of standard of review always are.  And so its tenth anniversary is an opportunity to reflect not only on the particulars, but also on where Dunsmuir might fit within the grander constitutional vision. As I’ve argued here, Dunsmuir is part of a vision that sees the administrative state as a central part of the expansive set of institutions on which the country relies in the pursuit of a flourishing public life. Perhaps this shields us somewhat from a siege on the administrative state and perhaps by Dunsmuir’s next anniversary, we’ll know.

[i] Gillian E Metzger, “Foreword: 1930s Redux: The Administrative State Under Siege” (2017) 131:1 Harv L Rev 1.

[ii] On the protective function of the amending formula, see Sébastien Grammond, “The Protective Function of the Constitutional Amending Formula” (2017) 22:2 Rev Con Stud 171.

[iii] See e.g. Port Arthur Shipbuilding Co. v. Arthurs, [1969] SCR 85; Metropolitan Life Insurance Co v International Union of Operating Engineers, Local 796, [1970] SCR 425.

[iv] CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227. See e.g. UES, Local 298 v Bibeault, [1988] 2 SCR 1048; Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557; Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982; Dr. Q, supra; Dunsmuir v New Brunswick, 2008 SCC 9.  

 [v] DJ Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 CHALP 59 at 93, cited in Dunsmuir, ibid at para. 49.

[vi] Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61.

[vii] Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, [2003] 2 SCR 504; R v Conway, 2010 SCC 22, 1 SCR 765 [Conway].

 [viii] Doré v Barreau du Quebec, 2012 SCC 12.

[ix] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40; Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41.

[x] See e.g. Toronto Corporation v York Corporation, [1938] AC 415.

[xi] See e.g. Labour Relations Board of Saskatchewan v John East Iron Works Limited, [1949] AC 134.

[xii] Procureur Général de Québec v Barreau de la Province de Québec, [1965] SCR 772; Tomko v Labour Relations Board (Nova Scotia), [1977] SCR 112; The Corporation of the City of Mississauga v The Regional Municipality of Peel et al, [1979] 2 SCR 244; Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714.  Indeed, the case law shows that over the past several decades, on the occasions when administrative decision-makers are challenged on section 96 grounds, the vast majority are unsuccessful. See e.g. R v Morrow, 1999 ABCA 182; Campisi v Ontario, 2017 ONSC 2884; Northstar Lumber v USWA Local 1-424, BCCA; Council of Canadians v Canada (AG), [2006] OJ No 4751 (CA); Air Canada v Canada (Commissaire de la concurrence, [2003] 18 Admin LR (4th) 14 (QCCA); Spellman v Essex (Town), [2002] OMBD No 784; Cameron v Sparks; Teal Cedar Products Ltd v British Columbia (Minister of Forests), 2008 BCSC 239; Pye v Pye, 2006 BCSC 505; Saskatchewan (Workers’ Compensation Board) v Saskatchewan (Board of Inuqiry), [1998] SJ No 503 (Sask Ct QB). Contra: Halme’s Auto Service Ltd v British Columbia (Regional Waste Manager), Decision Nos. 1998-WAS-018(c) & 1998-WAS-031(a) (Environmental Appeal Board).

[xiii] Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714; Reference re Amendments to the Residential Tenancies Act (NS), [1996] 1 SCR 186.

 

Playing Favourites, Anniversary Edition

On the anniversary of the Constitution Act, 1982, a shout out to the provision restricting constitutional amendment

Today (Canadian time) is the anniversary of the signing by Queen Elizabeth II and entry into force of the Constitution Act, 1982. The government is celebrating, as are many constitutional aficionados, but ― with some honourable exceptions ― celebrations are focusing on one or two parts of the Act ― mostly the Canadian Charter of Rights and Freedoms, and to some extent s. 35, which protects aboriginal rights. The official statements of both the Prime Minister and the Minister of Justice only mention these provisions ― and not the other parts of the Constitution Act, 1982.

The tendency to play favourites with the constitution, which I have repeatedly criticized, notably in the context of the Court Challenges Programme (here and here) and with respect to the relative importance given to this year’s constitutional anniversaries, shows no sign of disappearing. Indeed I will contribute to it with this post, focusing on one provision of the Constitution Act, 1982. In my defence, it is a much-neglected one, both today and more generally.

This provision is subsection 52(3), which provides that “[a]mendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.” The authority in question is contained in Part V of the Constitution Act, 1982, which sets out the procedures for effecting various types of amendments.  Now, I have been sharply critical of Part V in the past ― I have argued that it was a “less-than-fully-legal mess” that in some circumstances failed to guide both the political actors to whom it was addressed and the courts to whom the political actors turned to clarify things. While I might have overstated certain points in that critique, I still think that it is fundamentally fair. The Constitution Act, 1982 is not perfect ― no law is, and least of all any law that emerged from a difficult compromise made necessary by the requirement to obtain super-majority consensus. But it is still, on that much we agree, part of “the supreme law of Canada”, as section 52(1) has it.

It is therefore incumbent on all constitutional actors ― Parliament, the executive, and courts alike ― to uphold this law. Even in those cases where the supreme law fails to fully guide their behaviour, they ought to act consistently with whatever guidance it does provide. And of course it does not always so fail. It is sometimes difficult to choose the right amending procedure among the six or more (depending on how you count the number of additional procedures created by section 47) outlined in Part V. But for many cases Part V is tolerably clear, and even when it is not, it does have the virtue of limiting the universe of possibilities from which the choice must be made. To repeat, if they are to comply with the principles of the Rule of Law and constitutionalism, all constitutional actors are bound to stay within these limits.

Unfortunately, Canadian constitutional actors ― and citizens, especially legal scholars ― are often inclined to disregard this obligation. Parliament enacted An Act respecting constitutional amendments ― the so-called regional veto law that in effect seeks to modify Part V of the Constitution Act, 1982 otherwise than with the clear terms of paragraph 41(e). Prior to the 2015 election, the federal executive was committed to a policy of abolishing the Senate by attrition, also in violation of what the Supreme Court had found were the requirements of Part V for abolition. (The then-official opposition was committed to a similar policy.) And of course the Supreme Court itself is fond of adding rights to the Charter by its own “constitutional benediction“, even though judicial invention is clearly not among the amending procedures listed in the Constitution Act, 1982.

Those who defend one or the other form of constitutional amendment in contravention to subsection 52(3) ― usually by the Supreme Court ― argue that the procedures listed in Part V are too difficult to comply with to effect necessary constitutional change. This amounts, of course, to an admission that there is no consensus about the necessity of the constitutional change in question ― and to a claim that a constitutional actor is authorized to change the constitution simply because it thinks the change is a good one, regardless of whether anyone else agrees. Yet this claim is incompatible with the Rule of Law. It allows a constitutional actor to put itself above the “supreme law of Canada”, and to become a law unto itself. Those who support such claims should be clear about their implications. In particular, they have no right to celebrate any part of the supreme law whose authority they ultimately deny.

Living under law is difficult. Constitutional celebrations usually serve as reminders of what constitutions make possible, and the reminder is a useful one. But we should acknowledge that, as all law, a constitution constrains in order to enable. If we seek to free ourselves from the constraints, we risk losing the possibilities. This is no less true of constraints on constitutional amendment as of those on the denial of our rights. Happy birthday, Constitution Act, 1982 ― and that includes you, subsection 52(3).

Yes They Can II

Does existing legislation allow a referendum on electoral reform?

The former Chief Electoral Officer, Jean-Pierre Kingsley, has caused some ongoing confusion on Twitter about whether a referendum on electoral reform would be legal. The source of this confusion is section 3 of the federal Referendum Act, which provides that

Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada … at a referendum called for that purpose.

Mr. Kingsley appears to believe that that the desirability of electoral reform is not a “question relating to the Constitution of Canada.” As Emmett Macfarlane has pointed out, he is wrong.

The electoral system is a constitutional matter. Substantively, it is one of the fundamental issues relating to the organization of one of the branches of government (or, more precisely, of a component of the legislative branch). Formally, electoral arrangements were originally provided for in the Constitution Act, 1867 ― federal ones, in Part IV, “Legislative Power,” under the heading “The House of Commons,” (notably at sections 40 and 41) and those of Ontario and Québec in Part V, “Provincial Constitutions,” under the heading “Legislative Power” (notably at sections 70, 80, 83, and 84). To be sure, these provisions partly referred to existing electoral legislation, and enable Parliament and the provincial legislatures to enact such legislation in the future, but they show that the Fathers of Confederation understood that the electoral system is a constitutional issue.

Now, as I have argued here, electoral reform does not require a constitutional amendment enacted with provincial support. It can be implemented by Parliament legislating alone. But that’s because section 44 of the Constitution Act, 1982 provides that “[s]ubject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to … the … House of Commons.” Electoral reform is an amendment to the constitution “in relation to the House of Commons.” So long as it does not affect “the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province [was] entitled to be represented [in 1982]” or “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” protected respectively by paragraphs 41(b) and 41(a) of the Constitution Act, 1982, such an amendment can and must be made by an Act of Parliament. Yet the fact that it does not require provincial consent or participation does not make it any less of a constitutional amendment, and its desirability any less of “an issue relating to the Constitution of Canada.”

The only way a referendum on electoral reform ― or any other constitutional issue ― might be illegal, and indeed unconstitutional, is if holding it is seen to be a modification to the amending formula set out in Part V of the Constitution Act, 1982 (which includes section 44). The Supreme Court’s rather vague opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, which held among other things that ostensibly consultative elections to the Senate would be unconstitutional modification of the constitution’s “architecture” leaves that possibility open ― depending on what “architecture” means. In the interests of time, I will assert ― and perhaps defend my assertion at some later date ― that the Senate Reform reference does not preclude a referendum of electoral reform, but I think that the matter is not free from doubt.

Be that as it may, it is quite clear that the Referendum Act itself is not an obstacle to such a referendum. Of course, as others have pointed out, Parliament could also legislate to permit such a referendum, whether enacting a statute for that specific purpose in derogation of the Referendum Act, or amending the Referendum Act itself. But such legislation is not necessary. Electoral reform is a constitutional issue and can be the subject of a referendum under existing legislation.

A Third View on Legislating Two Languages at the SCC

In the last number of days, Professor Grammond and incoming AUT Law School lecturer (and my very generous blogging host) Léonid Sirota have posted thoughtful analyses of whether Parliament can legislate a requirement that judges of the Supreme Court understand French and English without the assistance of translation. Grammond argues yes; Sirota says no. The two authors differ in their readings of the Supreme Court Act Reference and, specifically, in their interpretation of what is captured by “composition of the Supreme Court of Canada” in section 41(d) of the Constitution Act, 1982. Both, in my view, are right in some respects, but wrong in others.

In any amendment analysis, the first question is always: is the proposal an “amendment to the Constitution of Canada” within the meaning of Part V? In other words, does the proposal change an entrenched part of the Constitution of Canada? If yes, then we’re in Part V territory. If not, the proposal can be enacted through ordinary legislative channels. A legislated French-English bilingualism requirement would certainly be a change to the existing eligibility criteria for judges of the Supreme Court. The trickier issue is whether such a requirement is a change to an entrenched part of the constitution.

Grammond argues that it is not. In his view, section 41(d) does not shield all aspects of the Court’s composition from unilateral change, only a protected core of matters related to composition. Looking to the framers’ intent and the fundamental character of the Court, he contends that “composition” in section 41(d) only protects Quebec’s representation on the Court and the Court’s role as the guardian of the constitution against court-packing and abolition, not eligibility criteria at large. Grammond contends that a legislated bilingualism requirement would not affect anything within this protected core and therefore does not trigger section 41(d). He applies the same logic to section 42(1)(d), the provision that subjects amendments in relation to “the Supreme Court of Canada” to the 7/50 procedure. He contends that the core of section 42(1)(d) captures the Court’s role as the final court of appeal and its independence. Again, a bilingualism requirement would not affect either of these “fundamental characteristics”: “Requiring bilingualism does not detract from the Court’s role as a final court of appeal and does not jeopardize its independence”. As a result, the 7/50 rule does not apply and Parliament can pursue a bilingualism requirement through the ordinary legislative process.

Sirota disagrees. He challenges Grammond’s reliance on framers’ intent, asking us to focus instead on the text of Part V and what ‘composition’ “actually means”. Sirota admits that it is not obvious that ‘composition of the Supreme Court’ includes eligibility for membership on the Court as opposed to just the number of judges and their place of origin. But the Supreme Court has said that it does and so we’re stuck. Sirota is also uncomfortable with one implication of Grammond’s approach, namely that some but not all eligibility criteria would be captured by ‘composition’. Sirota doubts whether this approach is either “preferable or even tenable” as a matter of textual interpretation. It seems that on this reasoning, the Supreme Court Act Reference confirms that the current set of eligibility criteria for appointment to the Court is entrenched; a bilingualism requirement would alter the status quo; therefore, legislating bilingualism amounts to a constitutional amendment.

With much respect, I am not fully persuaded by either account. One reads ‘composition’ too broadly, the other too narrowly.

In hard cases (that is, in cases that don’t involve an explicit addition or deletion of words from the constitutional texts), determining whether Part V is triggered calls for a qualitative assessment. This is in line with Grammond’s approach. On my reading of the jurisprudence, when it comes to Court reform and determining whether sections 41(d) or 42(1)(d) apply, the key question is: does the proposal make a ‘qualitative difference’ or ‘substantive change’ to the constitutionally-protected character of the Court? The Supreme Court Act Reference and the Senate Reference provide some insight into the content of this constitutionally-protected character: it is concerned with the “essence of what enables the Supreme Court to perform its current role” (SCA Reference, para 101) and those matters that are “crucial to [the Court’s] ability to function effectively and with sufficient institutional legitimacy as the final court of appeal for Canada” (SCA Reference, para 93). In other words, this constitutionally-protected character captures the Court’s ‘fundamental nature and role’ and the features of the Court that bring this fundamental nature and role to life, but not the routine matters associated with the maintenance and operation of the Court. In addition, it protects the Court’s “competence, legitimacy, and integrity” and its “proper functioning” as the final appellate court for Canada, but not all aspects of the Court’s institutional design (SCA Reference, paras 93 and 101).

What does this mean for the interpretation of ‘composition’ in section 41(d)? It means that section 41(d) does not capture all matters dealing with the composition of the Court or the eligibility of potential appointees. The reasoning in the Supreme Court Act Reference does not dictate otherwise and this is where Sirota’s reasoning seems to go too far. Admittedly, the majority concluded that “the notion of ‘composition’ refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court as they existed in 1982” (para 91). But it does not follow that any change to the existing eligibility criteria triggers the amending formula. First, the majority notes that only a “substantive change” to the existing criteria will trigger the formula (para 105). Second, the majority ties its conclusion on entrenchment to the principle that the composition of the Supreme Court is essential to its ability to function effectively and legitimately, and the scope of ‘composition’ should be defined as giving effect to that principle.

In my view, it follows that section 41(d) covers matters relating to composition that are constitutionally significant and the eligibility criteria tied to them. That is, it covers only those aspects of composition and eligibility that are necessary to ensure the Court’s competence, legitimacy, integrity, and proper role and functioning. From the Supreme Court Act Reference, we know that this understanding of ‘composition’ captures the requirement that Quebec be meaningfully represented on the Court. Accordingly, legislation altering the existing eligibility criteria in ways that would make a qualitative difference to Quebec’s representation would trigger section 41(d). By way of another example, this understanding of ‘composition’ would likely also capture the requirement that the judges be drawn from the community of people with legal training and expertise. Such experience is important for the Court to fulfill its role as Canada’s final appellate court. Therefore, legislation altering the existing eligibility criteria to allow for the appointment of people without any legal training or expertise would trigger section 41(d). By contrast, a proposal to amend section 5 of Supreme Court Act to allow the appointment of advocates of at least 9 years standing at the bar of a province (instead of 10) likely would not; nor should it.

Where does this analysis leave us when it comes to a statutory bilingualism requirement for judges of the Supreme Court? On this point, Grammond does not go far enough and I agree with Sirota – implementing such a requirement demands a constitutional amendment. In part, requiring French-English bilingualism for judges of the Supreme Court would be directed at enhancing the Court’s legitimacy within a federal constitutional culture that is officially bilingual and in its constitutional role as the final court of appeal for all legal issues and for all Canadians. Further, while a bilingualism requirement might not impact the proportion of judges from Quebec on the Court’s bench, it would add an eligibility criterion that narrows the pool of potential appointees, thereby calling for an assessment of whether this aims to alter the meaning of the Court’s composition in any other ways tied to constitutional values of legitimacy and representation. At the same time, a bilingualism requirement would be a qualitative change to the current legislative standards for – and accompanying eligibility criteria directed towards – judicial competency and institutional integrity of the Court. It would suggest that appointing judges with a legal background is no longer sufficient to ensure the Court can fulfill its role and preserve its integrity; rather, proficiency in both languages is needed.

A discussion of representation and language on the Court leads to a final note. When talking about a bilingualism requirement, the amendment issue is interesting and important. It helps us see the gaps in the doctrine of Part V and the difficulties in determining both what is entrenched in the Constitution of Canada and what amounts to an amendment. In the context of Court reform, it is an opportunity to think through the significance and limits of the Court in Canada’s constitutional order, as well as what we should expect of our political actors charged with appointing its judges and pursuing reform. (Some of my thinking on the Court in the constitutional order and on constitutional amendment as an opportunity rather than a hindrance can be found here and here.)

That said, a discussion of the amendment question should not eclipse continued reflection on the appeal and desirability of pursuing a strict bilingualism requirement. Such reflection must include a more satisfying consideration of the ways in which Indigenous legal traditions and languages should be accounted for in our understanding of the Court’s composition and the eligibility of appointees in Canada’s constitutional order. Such reflection also calls for a more robust analysis of how a French-English bilingualism requirement can be reconciled with needs to diversify the Supreme Court bench more generally.

Yes, They Can

Constitutional amendment with provincial consent is not required for electoral reform.

The federal government’s pursuit of electoral reform has raised a number of questions: is reform necessary or desirable at all? If so, what new electoral system to adopt? Should the people be consulted before reform is implemented? And now, thanks to op-eds published by Michael Pal in The Globe and Mail, and Yaakov and Jonathan Roth in The Toronto Star, we also have to ask ourselves whether it would be constitutional. In my view, however, the answer to the latter question is much clearer than to the others. The constitution is no obstacle to Parliament acting alone to implement (most forms of) electoral reform. (By the way, in case you think that my opinion on this is relevant to assessing the argument that follows: I think that electoral reform is a bad idea, and I think that if the government insists on endorsing it, there should be a referendum before reform is implemented.)

Section 44 of the Constitution Act, 1982 ― which prof. Pal describes as an “obscure provision,” and Messrs. Roth do not mention at all ― provides that “exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons, subject to sections 41 and 42. As a starting point, it would seem logical to consider electoral reform an amendment to “the Constitution of Canada in relation to … the House of Commons,” and thus within the purview of Parliament, except insofar as sections 41 and 42, to which I will return, provide otherwise.

Those who think unilateral electoral reform would be unconstitutional point to the Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which introduced the notion of “constitutional architecture” that limits Parliament’s amending power under section 44. The “architecture,” which seems to consist of “assumptions that underlie the text [of the constitution] and the manner in which the constitutional provisions are intended to interact with one another,” is an entrenched part of the constitution, and cannot be amended by Parliament acting alone.

Prof. Pal suggests that the first-past-the-post electoral system is part of that architecture since, although it “is not mentioned directly in the Constitution, … [n]umerous parts of the Constitution presume that [it] is in place.” Moreover, in his view, electoral reform “would affect provincial interests,” although “[l]esser changes than a move to proportional representation could be interpreted as” doing so “only trivially … and not really changing the constitutional architecture.” For their part, Messrs. Roth insist that the Constitution Act, 1867 “expressly assigned to each province a fixed number of ‘electoral districts,’ each entitled to return ‘one member’ to the House. This ‘constitutional architecture’ plainly presupposes district-based elections.” They also point to the use of first-past-the-post in the United Kingdom, to whose constitution ours was intended, according to its preamble, to be “similar in principle.”

But it is not enough, it seems to me, to say that first-past-the-post is how we always elected representatives to show that it is a part of the “constitutional architecture” as the Supreme Court understood that notion in the Senate Reform Reference. In that opinion, the Court said that “the institutions provided for in the Constitution” ― such as the House of Commons ― “can be … changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact.” [48] That, in my view, is what electoral reform would do. It might change the House of Commons to some extent (though to what extent would depend on the shape the reform takes), but would not affect its “nature” as the representative part of our national legislature or its role of serving as the electoral college for the choice of a Prime Minister, making laws,  and pretending to hold government to account.

Prof. Pal never says, unfortunately, what parts of the constitution rely on first-past-the-post, and for my part, I am unable to figure out what they are. It is noteworthy, for instance, that section 3 of the Canadian Charter of Rights and Freedoms provides that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons” (emphasis mine), as opposed to, say, “the election of a member.” The latter formulation would presuppose election in single-member districts. The former does not, since an election under a system of proportional representation is still “an elections of members of the House of Commons.” As for the provisions assigning a specified number of districts to each province, which Messrs. Roth invoke, these were obviously intended to be, and have been, amended by Parliament acting alone since 1867, as the number of districts and members of Parliament was increased.

Note, by the way, that contrary to what Messrs. Roth say, one or two of the districts created by section 40 of the Constitution Act, 1867 were actually entitled to two representatives in the House of Commons. Indeed, multi-member districts were common in the United Kingdom in 1867 ― most English Members of Parliament represented counties or boroughs that returned two members each, and some counties had three representatives. There were even exceptions to the principle of geographical representation (as well as the one man, one vote principle), in the shape of university constituencies that allowed the holders of some degrees from some universities to elect additional representatives for their almae matres. Quite apart from the fact that the legal effect of the preamble to the Constitution Act, 1867 is matter of doubt on which the Supreme Court has wavered over the years, the claim that geographical constituencies electing single members of Parliament using a first-past-the-post system was a matter of long-standing fundamental constitutional principle in the United Kingdom in 1867 is historically inaccurate.

Thus I am not at all persuaded that the constitution’s entrenched text in any way depends on or implies the first-past-the-post voting system. If anything, I suspect ― though I have not done the historical research to prove it ― that section 3 of the Charter might have been written specifically to avoid entrenching this arrangement. Nor do I think that electoral reform would impermissibly affect the constitution’s architecture. While changes in the relationship between Parliament and the executive are conceivable in the wake of a move to some form of proportional representation, they are unlikely to be fundamental in nature. As for changes to the relationship between Parliament and the provinces, I do not understand how any could result ― except in the one case which is also ruled out by the constitutional text.

The exception to Parliament’s general ability to enact electoral reform under section 44 of the Constitution Act, 1982 concerns reform plans that would sever the relationship between members of Parliament and provinces from which they are elected ― in other words, those versions of proportional representation that would distribute seats on the basis of national, rather than provincial vote totals. The trouble for such systems lies in the entrenchment, in section 41(e) of the Constitution Act, 1982 of “the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province [was] entitled to be represented” in 1982, and in section 42(a), of “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” (emphasis mine in both cases). It is thus the provinces ― though not any territorial subdivisions within the provinces ― that form the basis of representation in the House of Commons, and that principle is indeed part not only of the constitution’s architecture, but of its very text.

Provided that it respects this principle, however, Parliament is constitutionally free to change voting arrangements by ordinary law enacted under section 44. Such changes would, no doubt, be of great political significance. But while that may be (I think it is) an important argument in favour of giving the people a say over electoral reform, it is not, in itself, a reason to consider that constitutional amendment with provincial consent is necessary to effect such changes. The Senate Reform Reference does not hold the contrary. The question of electoral reform’s constitutionality is, I believe, a distraction from those about its desirability and the process by which its desirability ought to be determined.

N’importe quoi

Les partis d’opposition à l’Assemblée nationale n’aiment pas le lieutenant-gouverneur du Québec. Peut-être pas personnellement, mais la fonction, qui, selon eux, ne devrait pas exister. Et la CAQ pense avoir trouvé une solution au problème que serait l’existence même de cette fonction dans notre ordre constitutionnel (j’expliquerai ci-dessous où exactement la CAQ a fait cette trouvaille) : puisqu’on ne veut pas de lieutenant-gouverneur, eh bien, il suffit de ne pas en nommer un lorsque le détenteur actuel du poste quittera ses fonctions. Or, tout comme l’approche du gouvernement de Stephen Harper (ainsi que du NDP de Thomas Mulcair) au « problème » du Sénat, qui consistait à ne pas nommer de sénateurs, cette « solution » est inconstitutionnelle, en plus d’être pernicieuse.

Il faut dire que non seulement le respect, mais même la connaissance de la constitution canadienne ne semblent pas être le fort de la CAQ. Sa proposition originale (disponible ici, à la p. 12) déclare qu’ «[u]n gouvernement de la Coalition Avenir Québec prônera l’abolition de la fonction de lieutenant-gouverneur. Il laissera en déshérence cette charge jusqu’à ce que […] cette fonction soit définitivement abolie » par un amendement constitutionnel. Or, il n’appartient pas à un gouvernement provincial de « laisser en déshérence » une charge dont le titulaire est nommé par le gouvernement fédéral, en vertu de l’art. 58 de la Loi constitutionnelle de 1867. Quelqu’un à la CAQ semble avoir fini par lire la Constitution, toutefois, puisque ― selon un article du Devoir paru aujourd’hui ― il s’agit désormais de « convaincre Ottawa de ne plus nommer de représentant de la Couronne à Québec ».

Mais il y a plus. Dans l’explication qui accompagne sa proposition, la CAQ prétend citer la Loi constitutionnelle de 1867, plus précisément l’ « article 67 amendé » de celle-ci. Or, si l’article 67 est bien, comme la CAQ l’affirme, la disposition qui permet au gouvernement fédéral de nommer « un administrateur » qui peut exercer les fonctions du lieutenant-gouverneur lorsque celui-ci ne peut le faire, cet article n’a jamais fait l’objet d’un amendement, et le texte cité par la CAQ n’est pas celui qui figure dans la Loi constitutionnelle. La CAQ y va ensuite de l’affirmation suivante:

La «suppléance» de l’administrateur de la province vise en principe à pallier une situation temporaire. Rien n’empêche cependant que cette suppléance se prolonge indéfiniment, en particulier, suivant l’alinéa de l’article 67 amendé de la constitution canadienne, «lorsque le suppléant est une personne expressément nommée à l’avance en cette qualité.» (Statuts révisés du Canada, janv. 1991).

Encore une fois, le texte cité n’est pas celui de l’article 67. En fait, tout ce paragraphe ― et l’idée même de la proposition de la CAQ, y compris le mot « déshérence » ― semblent tout droit tirés d’un texte intitulé « Une solution pragmatique à la fonction de lieutenant-gouverneur », publié à une date incertaine, mais apparemment avant 2012, par Gilles Laporte, un professeur d’histoire au CÉGEP du Vieux-Montréal. La CAQ ne le mentionne pas, ce qui fait drôlement ressembler sa position à du plagiat. (Quant à la source dont M. Laporte a tiré ses opinions constitutionnelles non-orthodoxes, il pourrait s’agir d’une page web du Ministère de la justice fédéral consacrée à la rédaction de textes législatifs en français, où le même langage apparaît. D’où vient-il? Mystère, pour moi… )

Bref, les affirmations de la CAQ ne tiennent pas la route. Supposons, cependant, qu’un hypothétique gouvernement caquiste propose à son homologue fédéral de collaborer à son projet. Que devrait répondre le gouvernement fédéral?

Tout d’abord, que ne pas nommer de lieutenant-gouverneur est tout simplement inconstitutionnel. L’article 58 de la Loi constitutionnelle de 1867 exige qu’il y ait un lieutenant-gouverneur (le texte anglais, seul officiel d’ailleurs, est encore plus clair à cet effet que la version française: « For each Province there shall be an Officer, styled the Lieutenant Governor […] ». Tout comme M. Harper agissait en flagrante violation de la constitution en refusant de nommer des sénateurs, malgré l’exigence claire du texte constitutionnel à cet effet, un gouvernement fédéral enfreindrait la constitution en se laissant convaincre par la proposition de la CAQ.

Par ailleurs, M. Laporte fait, dans son texte, un parallèle révélateur entre sa proposition et la nomination de sénateurs élus dans des élections provinciales. Or, dans le Renvoi relatif à la réforme du Sénat, 2014 CSC 21, [2014] 1 R.C.S. 704, la Cour suprême s’est dite d’avis que la transformation du Sénat en organe élu qui résulterait de la généralisation de cette pratique serait une modification de l’ « architecture » de la constitution, et ne pourrait se faire que par un amendement constitutionnel. De la même façon, l’abolition détournée de la charge du lieutenant-gouverneur, que vise ouvertement la proposition de la CAQ, est un amendement constitutionnel, qui ne pourrait être adopté qu’en suivant la procédure appropriée (en l’occurrence, celle prévue par le paragraphe 41(a) de la Loi constitutionnelle de 1982).

Par ailleurs, le gouvernement fédéral pourrait ajouter que, même sans égard à son inconstitutionnalité, la proposition de la CAQ est une bien mauvaise idée. L’ « administrateur » qui remplace le lieutenant-gouverneur du Québec pendant son absence est un juge de la Cour d’appel. Qu’un juge puisse exercer temporairement des fonctions vice-royales qui ne sont aucunement discrétionnaires ne pose pas de problème. Cependant, toutes les fonctions d’un lieutenant-gouverneur ne sont pas de cette nature. Le représentant de la Reine peut être appelé à exercer un jugement indépendant, notamment lorsqu’il s’agit de décider à qui confier la formation d’un gouvernement dans une situation où aucun parti n’a de majorité à l’Assemblée nationale. Un tel jugement est aussi, bien entendu, susceptible d’être controversé et critiqué sur le plan politique. Placer un juge dans l’obligation de porter un tel jugement, c’est compromettre son indépendance et l’exposer à des critiques n’ayant strictement rien à voir avec sa fonction première.

J’ai déjà écrit que la décision de M. Harper et l’intention de M. Mulcair témoignaient d’une désobéissance flagrante à la constitution et d’un mépris profond pour la primauté du droit. Si j’hésite à qualifier la position de la CAQ de la même manière, c’est uniquement parce que son ignorance de la constitution semble si profonde qu’on ne saurait l’accuser de chercher à y désobéir sciemment. Mais à défaut d’être une forme perverse de désobéissance civile prônée par un parti qui aspire à gouverner le Québec, et donc à y faire respecter la loi et l’ordre, c’est tout simplement du n’importe quoi.

Error-Correction

I have a new post at the CBA National Magazine’s blog, which follows up on my posts (here and here) arguing that the Suprme Court’s recent decisions constitutionalizing a right to collective bargaining and a right to strike were bad mistakes. In National Magazine post, I review the various ways in which these mistakes might be corrected or mitigated: invoking the notwithstanding clause, re-litigating the issue, and constitutional amendment. I argue that the notwithstanding clause, despite being quick and easy fix, should not be resorted to. The other solutions should be attempted, despite their difficulty and uncertainty.