The Empty Canard of the Living Tree “Doctrine”

In 1989, Justice Scalia gave a speech entitled “Assorted Canards of Contemporary Legal Analysis.” These “canards,” are “certain oft-repeated statements…” that, while having “little actual impact upon the decision of the case” are “part of its atmospherics, or of its overarching philosophy…” Justice Scalia gave the example of the old adage that “remedial statutes should be liberally construed,” a canard because it is difficult to determine what a “remedial statute” is, and then because it is not a judge’s role to pick and choose statutes to be interpreted liberally and strictly.

In the last few days, both the Stereo Decisis podcast and my co-blogger Leonid have focused on a case out of Quebec in which our own Canadian canard was put to work: the idea that the Charter of Rights and Freedoms should be interpreted as a “living tree.” In the context of the case at issue, Leonid received flack from the Stereo Decisis podcast hosts for suggesting a textualist approach to the interpretation of s.12 of the Charter, while the hosts were focused on determining the normative commitments that should influence constitutional interpretation, having concluded that the language of the Charter is written in open-ended and ambiguous language. Lurking in the background of this debate between textualism (properly understood) and the openness of language is the idea that the Constitution should evolve to encompass certain normative commitments, whether or not they are discernible in the text. This is the core of the living tree approach.

But no one has ever described—with real precision—how a living-tree “doctrine” would work in practice, and so it is simply unconvincing to state, without more, that the Charter should or could encompass evolving normative commitments not fairly implicated by the text. Until the proponents of the living tree suggest some way—any way—that the doctrine should actually operate, it should be resigned to the dustbin of history. My point here is not to point out the flaws of the living tree methodology; others have done that. Instead, I want to suggest that for the living tree doctrine to become an actual doctrine, it should answer a number of fundamental questions. None of these questions are new, but they come into stark relief, requiring urgent answers, if the living tree is going to remain even a part of the Canadian constitutional atmosphere.

Why, for example, has the Supreme Court rarely applied the doctrine in any substantial way, despite it being a favourite among legal academics? One would be hard pressed to think of a case where the living tree was a decisive factor in favour of one party or another, or where it was applied to some distinct substantive end. In fact, in Comeau, the interprovincial beer case, while the Court mentioned the living tree doctrine, it was quick to point out that the metaphor is not an open invitation to constitutionalize modern policy outcomes [83]. So much for a leading interpretive theory of constitutional interpretation, especially when it appears that, on least some occasions, the Court has endorsed the opposite of a living tree approach.

Even if the living tree stood tall in the pantheon of constitutional interpretation, no one can answer how the doctrine should actually operate. In the United States, some attempts have been made by leading scholars to cloak living constitutionalism in the credentials of an actual interpretive theory. David Strauss, for example, links living constitutionalism to a sort of common law constitutionalism. To my knowledge, few if any in Canada have attempted to “steel-man” the living tree doctrine to turn it into something resembling an interpretive doctrine. The lack of effort is telling in the unanswered questions: should the living tree apply to expand the actual scope of rights, or should it just apply to new applications unknown to the framers? If the latter, how is this distinguishable from originalism, properly applied? After all, the dominant school of originalism is public meaning originalism, not original expected applications originalism. If this is all the living tree approach denotes, then it is a duplicative piece of atmospherics that is better left to the pages of poets rather than the law books.

Most strikingly—and this was laid bare in the Stereo Decisis podcast episode—how should a living tree “doctrine” mediate between different normative considerations? If the text gives us no answers, how we are to determine which values should be granted the imprimatur of constitutional protection? How do we determine whether society has evolved, such that a certain value is now constitutionally cognizable? How do we define “society?” These questions have never been answered in Canada.

Even if they could be answered, as Leonid points out in his post on the matter, there is nothing to suggest that courts are institutionally or normatively capable of getting to even defensible answers on these questions. These are not questions that are based on evidence, facts, or even legal norms. They are philosophical, involving inquiries into the mind of the cultural zeitgeist. Are we certain—or even confident—that judges can answer these questions?

If the proponents of the living tree want it to be a serious doctrine of constitutional law, these are all questions that should be answered. Until then, the status quo position should be that the living tree is a turn of phrase, taken out of context, that has no real substantive quality.

N.B. A reader has commented that Wil Waluchow has written about a sort of common law constitutionalism in Canada. I cannot speak with confidence as to whether Waluchow’s work is similar to the Straussian view, but at first blush it appears relevant. Whether it answers the legal questions posed in this post is another question.

Does the Constitution Mean Anything?

In defence of textualism in constitutional interpretation

The Stereo Decisis podcast recently devoted an episode to a discussion of a case that I have covered here, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373, in which the Québec Court of Appeal held that corporations could avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “cruel and unusual treatment and punishment”. While the hosts Robert Danay, Oliver Pulleyblank, and Hillary Young disagreed on the merits of the issue before the court, they were, I take it, agreed on one thing: the approach to interpreting section 12 on which my post relied is not compelling. And indeed my post was pointedly textualist, and intended as a bit of a provocation to the adherents to Canadian consensus approach to the constitution, which is anything but. I am glad that it worked, and that we are, as a result, having a bit of a debate on constitutional interpretation; and all the more so since, in the course of this discussion, my critics nicely expose the weakness of their position.

Briefly, I had argued that section 12 does not apply to corporations because the word “cruel” refers to the wilful infliction of or indifference to pain or suffering, and pain or suffering is something that corporations are not capable of. I added a discussion of the evolution of the provisions intended to limit punishments from the Magna Carta, to the Bill of Rights, 1688 and the Eighth Amendment to the US Constitution, to section 12, during the course of which the prohibition on “excessive fines” (to use the language of the Bill of Rights) fell by the wayside and was left out of the Charter. Considerations about whether it would have been a good idea for the Charter’s framers to have made a different choice and included a protection against excessive fines, which in effect is what the Québec Court of Appeal decided, are in my opinion irrelevant.

The hosts of Stereo Decisis took issue with that. We just can’t interpret the Charter simply by looking at what it says. Mr. Pulleyblank insisted that “‘[c]ruel and unusual’ is a bad phrase. It doesn’t really mean cruel and it doesn’t really mean unusual.” And beyond this particular provision, Professor Young said that the Charter is written in “rather loose language”, so that answers to questions about its meaning “can’t be found in the words”. Rather, they can only be obtained by asking what the Charter ought to mean. “You have to look beyond the words”, to “normative” considerations, such “how you feel about the Charter versus legislative authority”. The Québec Court of Appeal, for instance, had to decide whether “this particular right should apply to corporations”. (Emphasis mine) And that decision can yield, as Mr. Pulleyblank put it, “a norm that is different than either of those words [cruel and unusual] or both of those words together”.

Normative considerations are what caused the hosts to disagree about the outcome of the case. Mr. Danay said that “[w]e ought not to try to limit Charter rights. … If the Charter seems like it could protect something, probably a better reading … would be to protect that thing.” Professor Young, by contrast, saw a greater role for deference “to legislation enacted by elected legislatures”, and added that “[i]f we were talking about human beings’ rights, I would be less inclined to interpret so narrowly but I’m not super sympathetic about arguments for corporations’ rights against cruel and unusual treatment”. It was, as Mr. Pulleyblank summed it up, “just a disagreement” about “the impact on the democratic process”.

In my view, the hosts’ criticism of my textualist interpretation are weak, and their own approach grounded in vague normative considerations, unattractive. Now, it’s important to understand what textualism is not, and what it is. No textualist, for example, would say that answers to all constitutional questions can be found in the words alone. Sometimes, it is indeed necessary to go beyond the words of a provision. Some words that the Charter‘s framers used are vague. Context can clarify what at first glance appears to vagueness; in other cases, it might tells us that the most straightforward reading of a word whose import at first seems clear is not the most accurate one. Thus, contrary to what Mr. Pulleyblank rather derisively implied, my “going beyond the text” to look at section 12’s historical antecedents does not make me a bad textualist. Textualism is, in short, the idea that constitutional text, read in its proper context, binds ― insofar as it has an ascertainable meaning; it is not the view that text alone will always answer all constitutional questions. (In any case though, my ultimate commitment is to public meaning originalism, which starts, but does not always end, with textualism.)

So textualism can acknowledge the vagueness of a constitutional provision, but it will insist on not merely stipulating that its language is “bad” or “loose”, or that, if it is somewhat vague, it is incapable of providing any real guidance to the interpreter. The word “cruel”, in section 12, is a nice illustration. Of course, it is vague to a considerable extent. No amount of looking at dictionaries will tell us whether, say, a parole ineligibility period longer than an offender’s life expectancy is cruel (the main question in R c Bissonnette, 2019 QCCS 354) and, as a public meaning originalist, I do not think that knowing how the Charter‘s framers would have answered that particular question tells us much about the meaning of section 12 either. But it doesn’t follow that the word cruel is poorly chosen or that it has no real import at all. In the case before the Québec Court of Appeal, looking at the word’s ordinary meaning was helpful, indeed sufficient to dispose of the dispute (which an examination of the context confirmed).

The Stereo Decisis hosts never actually disputed this ― they did not refer to definitions of the word “cruel” that contradicted the claims that Justice Chamberland (who dissented at the Court of Appeal) and I made about it. (At least that’s how I understood them; as I was writing this post, Benjamin Oliphant suggested that “the hosts raise a worthwhile challenge to [my] interpretation of section 12. What if the words ‘cruel and unusual’ are properly understood to mean “grossly disproportionate’ … ?” I don’t think the hosts said that section 12 actually means this ― only that it has been read in this way by the Supreme Court. And I don’t think that “cruel” actually means “grossly disproportionate”. Again, dictionary definitions tend to emphasize wilful infliction of pain. Moreover, section 12 applies not only to “punishment” but to other “treatment” of the individual by the state. While it makes sense to speak of cruel treatment, I don’t think that “grossly disproportional” works here; disproportional to what?)

As I understood the Stereo Decisis hosts, they took what I can only describe as a dogmatic position that a word like “cruel” must be so vague as to provide no guidance. I don’t think that going into an interpretive exercise with a pre-determined view of this sort is right. Vagueness is not an all-or-nothing thing; a word, or a provision, can be vague as to some questions but not others. The interpreter needs to make a reasonable effort to glean what guidance can be had from the text and context before concluding that they “run out” and that the question facing him or her must be answered by looking at other considerations.

And then, the interpreter needs to face the question of what considerations should be looked at when, and to the extent that, a constitutional provision does run out. (In originalist terms, this is the question of what theory of construction one must adopt for those cases that interpretation does not settle.) The Stereo Decisis hosts suggest that we must go straight to very general normative views about the Charter and legislative power. As their discussion shows, however, this approach is not especially fruitful, in that it promptly leads to stark normative disagreement between those who would maximize the scope of the Charter‘s limits on government power and those who would reduce it in the name of preserving legislative authority. The two sides of this dispute have little to say to one another; both argue that the case should simply be decided by following their normative priors; they can only count heads to see who wins on any particular panel. Adjudication along these lines is not readily distinguishable from a legislative power struggle.

I do not mean to deny that cases where a court can do no better may arise from time to time. Still, I think that we should be uneasy about this prospect. Telling judges that it’s normal, rather than exceptional and worrying, for them to decide constitutional cases by reference to their own normative commitments produces nefarious consequences, as judges come to think that their personal understanding of right and wrong is more important than the law. From constitutional cases, this belief bleeds into other areas of the law ― into cases of ordinary statutory interpretation and even common law ones. This destroys the Rule of Law and removes the most important constraint on judicial power, which is the requirement to (normally) follow the law, be it constitution, statute, and precedent, that someone else has first set out.

Moreover, if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. (This is, of course, especially true of cases that involve individual rights; federalism disputes arguably require a neutral arbiter, but even there, it is not quite clear why the arbiter should be judicial in character.) And, as a descriptive matter, those who hold to the view that constitutional texts are more or less meaningless don’t even have access to the positive law argument I have made here that, as a textual matter, our constitution actually requires judicial supremacy. They must attempt to answer the question of whether it does so with normative arguments alone, and are unlikely to convince anyone not predisposed to agree with them.

It is much better, as well as more consistent with our Rule of Law tradition and with the positive law of our constitution, to insist that judges ascertain the meaning of the law given them, and if the meaning does not resolve the dispute they have to settle, that they endeavour to implement this law, not on the basis of their predilections, but of the law’s purposes. A judge who happens to share my distaste for most economic regulation can and should nevertheless conclude that, while an additional obstacle to such regulation’s excesses in the shape of an extension of the scope of section 12 to corporations would be normatively desirable, the constitution that we actually have does not raise this obstacle in the grasping legislatures’ way. But for him or her to be able so to conclude, that judge must be committed to elucidating and applying the law, instead of believing that judicial office gives one carte blanche to implement one’s own preferences.

Constitutional interpretation isn’t discussed enough in Canada. A general lack of interest, caused by overconfidence in a living constitutionalist orthodoxy, has meant that when Canadian lawyers confront questions of constitutional interpretation they are liable to reason in ways that are not compelling. Sadly, the Stereo Decisis discussion of the question whether section 12 of the Charter extends to corporation was illustrative. It relied on a mistaken assumption that constitutional language is infinitely malleable, with the result that, as Mr. Pulleyblank put it, “[i]f you want to go one way you can probably get there. If you want to go the other way you can probably get there.” Descriptively, this mischaracterizes our constitutional documents, which are rather less vague than is sometimes said. Normatively, a state of affairs in which constitutional law dissolves in competing assertions about the appropriate relationship between courts and legislatures, has little to recommend itself.

These two defects feed into each other. The less faith one has in the capacity of constitutional texts to guide their interpreters, the more power one is inclined to grant judges (even if only to seek to claw it back through free-floating doctrines of deference). The less one accepts limits on judicial power, the more one is tempted to see vagueness in every text, without seriously examining it. Still, I hope that, by discussing constitutional interpretation and calling into question beliefs about it whose truth has too long simply been assumed we will make much needed progress.

Climb Out!

The Québec Court of Appeal errs in holding that corporations are protected against cruel and unusual punishment

In a case that has attracted some media attention, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373 the Québec Court of Appeal recently ruled that a corporation is entitled to the protection of section 12 of the Canadian Charter of Rights and Freedoms, which provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. In my view, however, the majority is mistaken. Its analysis illustrates the perils of what I have been referring to as “constitutionalism from the cave” ― the belief that our constitution is only an imperfect reflection of the true constitutional justice to which the courts ought to give effect.


Justice Bélanger’s opinion for the majority (herself and Justice Rancourt) starts with a discussion of the place of organizations, a term that includes but is not limited to corporations, in contemporary criminal law. In Justice Bélanger’s view, since the constitution is an evolving “living tree”, its interpretation ought to be fitted to the context of a criminal law that imposes liability similar to that of corporations on unincorporated associations of individuals. In this context, seeking to maintain a sharp distinction between the rules applicable to individuals and corporations “would create more problems than it would solve”. [102; translation mine, here and throughout]

Justice Bélanger then rejects the argument that corporations cannot avail themselves of the protection of section 12 because this provision aims at upholding human dignity. She points out that other Charter guarantees ― the presumption of innocence and the right to be secure against unreasonable search and seizure ― have also been linked to human dignity, yet they apply to legal persons. Moreover, deprivations of economic resources can affect people, and while corporations have distinct legal personalities, not all organisations, as the criminal law uses the term, do. In any case, “a legal person can suffer from a cruel fine that is evidenced by its rigour, harshness, and a kind of hostility”. [122]

Turning to constitutional text, Justice Bélanger notes that the section 12 rights are guaranteed to “everyone”. In the context of various other rights (for example, the protection against unreasonable searches and seizures), “everyone” has been read as encompassing legal persons.

Justice Bélanger also argues that allowing the imposition of disproportionate fines on corporations is against the public interest, as well the normal purposes of criminal punishment. Indeed, she

do[es] not believe that Canadian society would find acceptable or in the natural order of things, in whatever circumstances, that a grossly disproportionate fine cause the bankruptcy of a legal person or organization, thus imperilling the rights of its creditors or requiring layoffs. [130; footnote omitted]


Justice Chamberland dissents, making two main arguments. Perhaps the more important one is based on the purpose of section 12 of the Charter, notably as defined by the Supreme Court. This purpose is to preserve human dignity. The Supreme Court says so in multiple decisions. The Canadian Bill of Rights and the International Covenant on Civil and Political Rights, to which Charter‘s legal rights, including those protected by section 12, can be traced, are “instruments that provide for protection of rights in connection with human dignity”. [57] Indeed, “[t]he assertion that no one is to be subject to cruel treatment or punishment cannot be dissociated from human dignity”. [58] While the scope of “treatments or punishments” that may potentially be regarded as cruel can evolve so as to extend to fines, the requirement that the dignity of an individual, not a legal person, be affected is fixed.

Justice Chamberland’s other argument is textual. He considers that, as a matter of plain meaning, the word “cruel” refers to the infliction of “suffering, torture, inhumanity, and barbarity, all words that are tied to living beings and cannot be related to a legal person”. [51] He adds that “[o]ne can be cruel to living beings, of flesh and blood, whether humans or animals. And not to corporations with share capital.” [54-55; paragraph break removed] Justice Chamberland adds that “[t]he English Bill of Rights 1688 and the Eighth Amendment to the United States Constitution specifically provide protection against excessive fines, which the Canadian Charter and the Canadian Bill of Rights do not incorporate”. [66]


In my view, Justice Chamberland comes to the right conclusion, essentially for the textual reasons that he gives, though they are worth elaborating on a bit. Take the historical or comparative context first. It is useful to start with the Magna Carta (to which Justice Bélanger, but not Justice Chamberland, alludes). The original, 1215, version of the Magna Carta (in English translation) stipulated that

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

The Bill of Rights 1688 picks up on this idea of proportionality between offence and fine, but it joins it with two other guarantees: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The Eighth Amendment repeats these exact words, only replacing “ought not to be” with “shall not be”. The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained.

These drafting choices ought to matter. In particular, the Charter‘s text means that excessive fines are not, without more, unconstitutional. Now, in R v Boudreault, 2018 SCC 58, the Supreme Court held that a fine could be punishment for the purposes of section 12, which is fair enough. But of course that doesn’t remove the requirement that the fine, like any other punishment, must be “cruel and unusual” for it to be unconstitutional.

This brings me to the other part of Justice Chamberland’s textual argument: the meaning of the word “cruel”. It is remarkable, and telling, that Justice Bélanger does not directly engage with this question. Yet it is a crucial one. Both the French dictionaries to which Justice Chamberland refers and the OED define “cruel” in terms of the wilful infliction of pain and suffering or indifference to suffering. “Cruel” is not just a synonym for “excessive” or “grossly disproportionate”. Though disproportionality can be a useful indication of cruelty, it does not become cruelty unless it also causes or reflects indifference to suffering.

Now, perhaps this will always be the case with grossly disproportional punishment is inflicted on human beings. But in the case of personae fictae, the shortcut from disproportionality to cruelty is barred. As Justice Chamberland observes, legal persons cannot suffer or be pained. Justice Bélanger’s suggestion to the contrary, quoted above, strikes me as feeble. A corporation may certainly, in an objective sense, be the victim of harsh punishment and hostility. But it cannot subjectively suffer from these things.

Justice Bélanger’s main textual argument ― that section 12 protects “everyone”, and other provisions that do so apply to legal persons ― is also unpersuasive. Justice Bélanger is right that section 8 does apply to legal persons; she could also have pointed to section 2, at least some of whose guarantees (especially freedom of expression) clearly apply to corporations. But “everyone” also introduces section 7 of the Charter, whose protections, especially the right to life, can only apply to natural persons. The word “everyone”, it seems, is used ambiguously in the Charter, and we cannot rest very much on it.

Justice Bélanger’s point about human dignity being associated with rights that have been held to extend to corporations is better taken. But, by itself, it cannot clinch the argument for her position. Indeed, neither she nor Justice Chamberland should have gotten into a discussion of human dignity at all. The issue in this case can be resolved at the stage of interpretation ― of discerning the meaning the constitutional text ― without the need for construction in light of the purpose of the provision at issue. In some cases, construction is necessary to arrive at a workable way of applying a vague constitutional text. Here, by contrast, it only serves to muddy the waters.

Ultimately, Justice Bélanger decides the case the way she does because she thinks that it would be better if our constitution prevented Parliament and legislatures from imposing disproportionate fines that would cripple, and perhaps bankrupt, businesses. There is surely something to be said for this view as a normative matter. But what is “in the public interest” is not for the courts to decide. It is the politicians’ prerogative to, first, choose which limitations will be imposed on them and their successors, by framing constitutional provisions; and then by legislating within the boundaries of these provisions. It is arguable that the framers of the Charter made a mistake in failing to incorporate a protection against excessive ― and not only cruel ― fines. It is arguable that Québec’s legislature erred in imposing the minimum fine at issue in this case on a corporation guilty of a purely regulatory victimless offence (operating a construction business without a license). But it is not the Court of Appeal’s job to correct these errors.


As I have said before, it is a serious if all too common mistake to believe that the Charter’s text “is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen”. The Charter, and the rest of the constitution, is binding law ― binding on the courts as well as on legislatures. “There can be”, I said, “no real constitutionalism in Plato’s cave. It’s time to climb out.” That includes the Québec Court of Appeal.

Textual Judicial Supremacy

The Canadian constitution’s text makes it clear that judges must have the last word on its interpretation

In my comment on the Supreme Court’s recent decision in Frank v Canada (Attorney General), 2019 SCC 1, I criticized the dissenting judges’ demand that courts defer to Parliament’s choice to limit rights protected by the Canadian Charter of Rights and Freedoms. Section 1 of the Charter provides that it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This wording, I wrote, “requires a demonstration” that a given limitation of a protected right is justified, “not judicial acquiescence on the basis that Parliament knows best”.

My friend and sometime debating partner Geoff Sigalet put it to me in conversation that my interpretation is incorrect, and indeed pernicious. I am wrong, he believes, to think that judges must have the last word on what is and what is not “demonstrably justified”. Section 1, after all, doesn’t say “demonstrably justified to the satisfaction of a court”. Couldn’t a legislature pass its own judgment on these matters, a judgment that would be entitled to the respect of courts and of malcontents such as I? I am not persuaded. In my view, the constitutional text―not specifically section 1, but rather section 52 of the Constitution Act, 1982―does require that judges, not the legislature or the executive, have the last word on whether the Charter has been infringed, including the question of whether a limitation on a right is demonstrably justified.

Section 52(1) provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. Pursuant to section 52(2), the supreme constitution, inconsistency with which invalidates any other law, includes the Charter, the other parts of the Constitution Act, 1982―notably the amending formulae in Part V of that Act―and the Constitution Act 1867, which provides, among other things, for a distribution of legislative powers between the Dominion and the Provinces, as well as protections for judicial independence, free trade (nullified by the Supreme Court), etc. Note that section 52 makes no distinction between the Charter and other components of the Constitution of Canada. All are equally the supreme law of Canada. There is thus no textual warrant for treating the Charter differently from the rest of the constitution; if the courts have the last word on the meaning and application of the rest, they do so when it comes to the Charter too.

Now section 52(1) of the Constitution Act, 1982 is not, substantively, an innovation. As Brian Bird helpfully details, it is a replacement for section 2 of the imperial Colonial Laws Validity Act 1865, which provided for the supremacy of imperial legislation applicable to the colonies over that of the colonies to which such legislation applied. In particular, section 2 ensured the supremacy of what was originally an imperial statute, the British North America Act 1867, which we now call the Constitution Act, 1867, over any legislation enacted in Canada (except, of course, to the extent that the BNA Act itself authorized the Parliament of Canada or provincial legislatures to modify or depart from some of its provisions). Section 52(1) takes up the baton of constitutional supremacy, and ensures that it is now provided for by a Canadian law, subject to modification through the Canadian constitutional amendment process, rather than by an imperial statute whose very title is unsuitable to Canada’s circumstances as an independent nation.

As Mr. Bird further points out, the Supreme Court has recognized that section 52(1) preserved continuity in Canada’s constitutional arrangements. In the Reference re Manitoba Language Rights, [1985] 1 SCR 721, the Court emphasized that “[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years”, (746) under the Colonial Laws Validity Act regime. Meanwhile, in R v Big M Drug Mart, [1985] 1 SCR 295, the Court held, again with reference to both the Colonial Laws Validity Act and to section 52, that accused persons could always demand that a court rule on the constitutionality of the statutes they are said to be infringing, “whether that challenge is with respect to ss. 91 and 92 of the Constitution Act, 1867 or with respect to the limits imposed on the legislatures by the Constitution Act, 1982“. (313) In short, the regime of constitutional supremacy that existed with respect to the then-British North America Acts prior to 1982 remains in force, following the patriation of the constitution and the enactment of section 52(1), for these texts and, on the same terms, for the Constitution Act, 1982.

I think these decisions are quite clearly correct. Textually, section 52(1) is an updated, but substantially identical, reincarnation of section 2 of the Colonial Laws Validity Act. It uses the words “inconsistent with” in place of “repugnant to”, and “of no force and effect” in the place of “absolutely void and inoperative”, but the underlying principle is the same: one set of laws (formerly, all imperial legislation “extending to” Canada; now, more narrowly, “the Constitution of Canada”) has a higher status than ordinary laws enacted in Canada, whether by Parliament or by the provincial legislatures. As a result, such ordinary laws are invalid insofar, although only insofar, as they contradict the higher law. If anything was to change on April 17, 1982, when section 52(1) succeeded the Colonial Laws Validity Act, such a momentous would surely have been flagged by clear language, something very different from what we find in section 52(1).

The only innovation in section 52(1) is the use of the phrase “supreme law” to characterize the Constitution of Canada. The supremacy of Westminster legislation is a given in the post-Glorious Revolution and pre-Statute of Westminster, 1931 system, so it is implicit in section 2 of the Colonial Laws Validity Act. Section 52(1) makes the supremacy of what is left of imperial legislation explicit. But the phrase “supreme law” (emphasis added) also suggests that, like any law, the Constitution of Canada is subject to interpretation and enforcement by the courts―not by legislatures. Granted, by 1982, the Supreme Court had conceded deference on the interpretation of some legal provisions to administrative adjudicators. But that concession was premised―wisely or not is beside the point here―on these adjudicators’ expertise, including legal expertise in their particular area of jurisdiction. I do not think that Parliament would have been understood to have such expertise.

In any case, whether or not the original public meaning of the phrase “supreme law” without further context requires judicial supremacy, the context removes whatever ambiguity the words alone might carry. There was no doubt that, under the Colonial Laws Validity Act regime, it was the courts’ power and duty to determine whether an enactment was “repugnant to” an imperial statute, and therefore “absolutely void and inoperative”. Even the “presumption of constitutionality” to which the courts occasionally referred was is, in principle, nothing more than the idea that legislatures would not intend to exceed their constitutional powers, and their enactments would therefore not lightly be read as doing so―provided that they admitted of a different reading. It was always the courts’ responsibility to verify that this was indeed the case. And, to repeat, there is no reason at all to suppose that this approach was intended or understood to change in 1982, and the courts have never said that it did change. Indeed, I do not think that those who argue for judicial deference in Charter cases seriously contend that section 52 calls for a deferential approach to federalism, or to the independence of the judiciary protected by Part VII of the Constitution Act, 1867, or to the amending formulae of Part V of the Constitution Act, 1982.

But, as I have argued above, there is no textual basis for treating treating the Charter differently from the other parts of the Constitution of Canada when it comes to deciding which institution is given the last word on its interpretation and on whether it has been complied with. The constitutional text, read in its historical and legal context, tells us that judicial supremacy is sauce for federalism’s, judicial independence’s, and constitutional amendment’s geese; it is also sauce for the Charter‘s gander. Needless to say, the text cannot tell us whether this is a good thing. I am inclined to think so; others disagree. It’s certainly possible that our constitution is flawed in this, as it is flawed in many other ways. But the constitution is what it is, good or bad. Those who wish that it were different ought to persuade enough of us to amend it to have it changed.

Look, Look, over There!

What role should comparative law play in constitutional adjudication in Canada?

This is, I think, the last post I write on Frank v Canada (Attorney-General), 2019 SCC 1, where the Supreme Court held that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional. I summarized the decision here, commented on it here, and added further comments on the issue of expatriates’ supposed lack of connections to individual ridings here. In this post, I address a further issue that I left out so far, because it is only tangentially related to the question of the constitutionality of disenfranchising expatriates: that of the significance of foreign jurisdictions’ approaches to this issue.

In their dissenting opinion, Justices Côté and Brown invoke the “limits adopted by other Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts” [164] as support for the proposition that disenfranchising Canadians after five years abroad is reasonable. They mention, specifically, three other “Westminster democracies” ― the United Kingdom itself, as well as Australia and New Zealand. They note, by way of a rejoinder to the majority’s dismissal of this argument (on which more presently), that “[a]t different times in its history, Canada would well have taken some lessons from other countries” ― or at least from New Zealand, which enfranchised its aboriginal citizens (albeit in a way that radically under-represented them) and women well before Canada did. For Justices Côté and Brown, the fact that peer democracies “have adopted comparable time limits on voting for long-term non-residents … provide[s] compelling evidence” [167] for the proposition that the Canadian law they are examining is rational, and therefore constitutional.

Chief Justice Wagner, for the majority, is not impressed with this. For one thing, he insists that that the dissent’s comparisons do not really work in its favour. The United Kingdom only disenfranchises its expatriates after fifteen years, not five; meanwhile, “in Australia, the voter’s right can be extended indefinitely upon application, while New Zealand’s three-year limit is reset each time the non-resident returns to the country”. [74; hyperlinks added ― oddly, I think, the Chief Justice provides no citations.] Thus, disenfranchising expatriates after five years of non-residence (even if they visit Canada during this period) is a harsher approach than that taken by the countries on which the dissenters want to rely. (The dissenters, for their part, dismiss this as “minutiae of policy preferences of Canadian legislators (and, for that matter, legislators in Australia and New Zealand) on matters about which this Court as an institution has little comparative expertise”. [166])

More fundamentally though, the Chief Justice is skeptical about whether there is anything at all to be learned from the experience and choices of other jurisdictions: “I place little stock”, he writes, “in comparisons with other countries for the purpose of determining whether this legislation is constitutional.” [74] Whatever may be done elsewhere, it need not be a rational response to the particular problems that Parliament purports to be solving by limiting the right of Canadians abroad to vote, or that it is the least restrictive option available. Besides, “Canada is an international leader” [62] when it comes to enfranchising citizens to whom other countries deny the vote (such as prisoners), and part decisions of the Supreme Court paid little heed to what other countries do. For the dissent, these are “highly political, rhetorical arguments … that … stand in tension with the majority’s own invocation of internationalism and of a ‘globalized’ world of connectivity and communication”, [167] and which smack of “exceptionalism”. [166]

There are some important questions here. Should we, contrary to the Chief Justice, “place stock in comparisons with other countries” when assessing the constitutionality of legislation? Are there particular areas where we might want to make exceptions to whatever general principle we adopt ― for example, on account of Canada’s being “an international leader”? And if we ought to be looking at comparative materials, how should we go about it?

On the general issue of the relevance of comparative law, my answer is “it’s complicated”. Where the interpretation of constitutional text is concerned, being a public meaning originalist, I think that foreign or international materials can assist a Canadian only insofar as there is evidence that they would have been understood to bear on text’s meaning at the time of its enactment. That might sometimes be the case, especially with the Charter, but the evidence has to be provided whenever an argument about the relevance of such materials to the question at hand is made. Moreover, the simple existence, somewhere in the world, of a particular view about the meaning of a right that might have been “within the contemplation of the framers of the Charter“, as the Supreme Court put it in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, is not enough. What needs to be shown is that this particular interpretation was actually understood as the one the Charter itself would bear.

When it comes to the application of section 1 of the Charter, which allows legislatures to limit rights, provided that the limitation is a “reasonable” one and “demonstrably justified in a free and democratic society”, the issue is no longer one of interpretation (except insofar as the terms of section 1 itself have to interpreted). Here, I think that international and comparative materials may cast some light on what may be acceptable “in a free and democratic society”. However, the views of other free and democratic societies are not dispositive on the question of what is actually reasonable and demonstrably justified in the specific context in which rights are being limited in Canada. The Chief Justice is quite right to insist that the analysis has to proceed with reference to the Canadian circumstances, including (but not limited to) the objective for the sake of which a Canadian legislature is seeking to limit rights. Sometimes, the circumstances of other jurisdictions will be similar enough to make their experiences and choices interesting; sometimes they will not be.

Smug dismissals on the basis that Canada is a “world leader” are unwise, if for no other reason that one can only be such a leader if the direction in which the world is supposed to move is clear, and this will rarely be obvious in rights cases. But, at the same time, claims the effect that, since some respectable jurisdictions restrict rights in a particular way, it is rational and therefore permissible, for Canada to do likewise are similarly unhelpful. Such claims ignore local circumstances and, crucially, the textual requirement of section 1 that limitations on rights be demonstrably justified. “Other people do it” is not a demonstration; it is, at most, a relevant consideration for such a demonstration. To insist that, ultimately, a Canadian government defending a Canadian statute limiting the rights protected by the Canadian constitution demonstrably justify this limitation is not a rhetorical, let alone a political move. It is nothing less than what the constitution itself, in no uncertain terms, requires.

Still, foreign laws might be of some, albeit limited, interest to Canadian courts in Charter cases. This brings me to the question of how Canadian judges should consider them. Here, I’m afraid the Frank dissent offers a good lesson in how not to do it. First, one should not cherry-pick a few examples that seem to support one’s preferred position. Why focus on the UK, Australia, and New Zealand? They are, we are told, “Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts”, but why are “Westminster democracies” the only relevant ones here? The electoral systems of the United States and France, for example, are also “structured around geographically defined districts. Why should we ignore them?

Second, one should not cherry-pick aspects of those foreign laws to which one refers either. If one wants to invoke a foreign law as a model, one doesn’t get to dismiss aspects of that law that don’t support one’s conclusions as “minutiae of policy preferences”. The fact that Australian citizens can actually vote from abroad, so long as they keep making the relevant annual applications, and that New Zealand citizens and permanent residents can reset their respective disenfranchisement clocks by simply visiting the country considerably undermines the point that the Frank dissent attempts to make by appealing to them.

Third, one really shouldn’t misunderstand the foreign law on which one relies, or present it in a way that is misleading. I’m not sure which of these to things Justices Côté and Brown do in Frank, but in any case, New Zealand, unlike the UK and Australia (and the US and France) uses a proportional electoral system. It does have “geographically defined electoral districts” that ensure local representation, but it’s the party vote that determines the composition of the House of Representatives, so I think that it’s just wrong to equate this system to Australia’s or the United Kingdom’s ― or Canada’s. (Conversely, if New Zealand is an apt comparison, why not Germany, on whose system New Zealand’s is closely modelled?)

In short, when judges choose to embark on a consideration of comparative law, they must do their best to ensure that this endeavour is not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete. Of course, there are limits to what judges can do in looking at other jurisdictions. Some help is sometimes available to them ― for example, in the shape of reports of the Council of Europe’s Venice Commission ― but this will not always be enough. I think it is also fair to ask whether some countries’ experiences ought to carry more weight than those of others in the minds of Canadian judges. I’m not sure how to answer that question though, other than to point out the obvious fact that similarities, or lack thereof, between Canada’s constitutional texts and those of another jurisdiction’s constitution ought to matter in assessing the interest that jurisdiction’s law can have for Canadian judges. But choosing, or appearing to choose, only a few jurisdictions favourable to one’s inclinations, or giving a partial picutre of their law so as to bolster one’s conclusions, or both, is not good enough.

Comparative law has a place in constitutional adjudication in Canada. However, this place should be limited, and carefully circumscribed. The fact that some other countries limit the rights of their citizens in a particular way does not, by itself, mean that it is appropriate for a Canadian government to limit the rights of Canadians likewise. Moreover, we must be sure of understanding foreign law before invoking it in support of the limitation of our constitutional rights. The Frank dissent, ought to serve as a warning in this regard.

One last point. The strong disagreement about the role of comparative law between the majority and the dissent in Frank helps us think through important questions that are relevant in a variety of constitutional cases. It is a reminder, in the face of some recent grumblings, that allowing debates among judges to be publicly aired enriches our law and improves it.

Vancouver Event Next Week

Announcing another talk

As I noted earlier, I have been and will be speaking at a few Canadian law schools ― I did an event in Calgary 10 days ago, and will be doing a couple of joint appearances with Geoff Sigalet, a debate on the “notwithstanding clause” at McGill this Wednesday at 1PM and a discussion (with Grégoire Webber) on constitutional dialogue and Commonwealth bills of rights at Queen’s next Monday, also at 1PM. 

As it turns out, I will be doing another event (I hadn’t previously realized that it would be public) ― this one at UBC, on Wednesday, November 28, at 12:30PM, in the Fasken Classroom (room 122). I’ll be speaking about the undermining of the Rule of Law in Canadian constitutional law, and its consequent politicization, by such ideas and techniques as judicial deference and “constitutional dialogue”, the re-legitimation of the use of the “notwithstanding clause”, and “living tree” constitutional interpretation.

I am grateful to my friend Régine Tremblay and to her colleagues at UBC who have organized this talk, which I am very much looking forward to. Come along if you are able to, and please say hello if you do.

Judicial Supremacy Defrocked

Justice Abella’s recent speech should remind us that courts are fallible.

In a recent speech reprinted in the Globe and Mail, Justice Abella of the Supreme Court again offered a robust defense of the judicial role and the profoundly benevolent impact of the Supreme Court in Canadian constitutional history:

Integration based on difference, equality based on inclusion despite difference and compassion based on respect and fairness: These are the principles that now form the moral core of Canadian national values…the values that make our national justice context democratically vibrant and principled…[a]ll this came from the Supreme Court.

She goes further:

A Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph. In a polarized society, it is especially crucial to have an institution whose only mandate is to protect the rule of law.

On one hand, it is good to see that Justice Abella no longer finds the Rule of Law annoying. But on the other hand, her comments should give us pause. She presents a vision of a Supreme Court that decides what Canadian values are, and then imposes them on the society generally. We should first call this for what it is: judicial supremacy, in which rights are not recognized as much as they are created out of whole cloth at the discretion of the Supreme Court. Abella J seems to accept this in Saskatchewan Federation of Labour, where she “gives benediction” to a right to strike. “Benediction” is defined as “the utterance or bestowing of a blessing, especially at the end of a religious service.” True to form, the Supreme Court is the high priest, bestowing us with rights as only a supreme institution can.

Glibness aside,  I do not mean to use the term “judicial supremacy” in a bombastic way, but rather in a technical legal sense. I mean it in the sense that Justice Abella clearly views the role of the Supreme Court as having the last word on constitutional matters. But her view goes even further: she thinks that the Supreme Court is a freestanding arbiter that is institutionally capable of rending final judgments on contests between values for the society on the whole.

I’m not sure this is normatively justifiable or whether it’s even a structural or textual feature of the Canadian Constitution. The legislature still has an important role to play in vetting laws for their constitutionality and making important value judgments that may impact constitutional rights—in most cases, the legislatures are probably better at this than courts. But this is a bigger fish to fry. Assuming for my purposes that Justice Abella’s description of what courts do and should do is accurate, maybe this state of affairs could be justifiable on the basis that courts are comparatively better at making the sorts of value judgments that arise in constitutional matters. If Justice Abella’s framing is true, so the argument goes, the essence of constitutional adjudication is value judgment; courts adjudicate constitutions, and therefore courts, over time, will be expert in value judgments.

But no one has ever presented evidence that this is empirically true, and I am not sure anyone ever could. Justice Abella herself recognized this in Doré, when she developed a doctrine of deference premised on the concept that courts are worse at constitutional decision-making than administrative decision-makers. In fact, courts are not institutionally suited to balance the sort of polycentric considerations that go into difficult and resource-laden value judgments. And judges are trained in the law, which on many modern accounts, is not even the purpose of law school. There are good reasons to doubt the ability of the courts to even begin to understand the weight of the task at hand.

If we are to have judicial supremacy, and judicial supremacy is fundamentally about final value judgments, I am not sure why we solely appoint legal practitioners to the Supreme Court. I only half-joke when I say that we could populate the court with people trained in the different perspectives through which value judgments could and should be made. Economic reasoning, for example, could be extremely helpful here. As Lon Fuller said, there is a point at which we could trade-off certain values in favour of others. We should attempt to develop theories by which we can anticipate and calculate the costs of adopting one right over another; or the reliance interests associated with this precedent over that one. What’s more, philosophy could be helpful. Moral and normative reasoning about how people should live is clearly within the interest of Justice Abella when she judges cases.

I think that the Justice Abellas of the world who argue that law is simply about “balancing values” are caught between a rock and a hard place. On one hand, if they make that argument, they should accept that law has no claim to empire over adjudication. Adjudication is not what is taught in training for lawyers; and there are people who are better qualified to assess the different tradeoffs of values and the practical impact those changes have. But if they reject this proposition, then they must accept that there is a locus of “law” somewhere to be found in adjudication. It follows that we should train lawyers and judges to first, do no harm; determine the meaning of constitutional terms according to objective standards.  Values may be instantiated in the law, but one must first interpret that law to determine those values. It shouldn’t be the case that judges enter legal inquiries with an idea of the values they seek to advance.

The task of judging was supposed to be defined by “passive virtues,” with courts possessing neither force, nor will—only judgment (The Federalist, No. 81). Justice Abella evidently believes in a vision of courts that are not only supreme but confidently so. Judgment has turned into arrogant finality that decides not only the narrow constitutional issue before the court, but the larger value judgment which is settled for all time.  There is no democratic recourse to the ever-expanding domain of constitutional empire if courts make abstract, political, and resource-intensive value judgments for the society on the whole.  If courts are going to do this—if we have sold the legislature down the river—then they should at least be good at it.