constitutional interpretation – Page 6

How to do Originalism

In my last post, I summarized the Supreme Court’s recent decision in Caron v. Alberta, 2015 SCC 56, which held that Alberta is not under a constitutional obligation to enact legislation in French as well as English. There was, you will recall, a majority opinion by Justices Cromwell and Karakatsanis, who were joined by four of their colleagues, and a dissent by Justices Wagner and Côté, joined by Justice Abella. In this post, I would like to venture some comments on the disagreement between them. This disagreement was quite sharp. The dissenters insist that the majority’s reasoning both results from and perpetuates an injustice, although they never explicitly accuse the majority of being unjust. I suppose that dissenting judges often think that ― but it seems to me that the thought is rarely expressed. And yet, in a sense, the disagreement between the two opinions is very narrow, almost abstruse.

Both the majority opinion are originalist, in the sense that they accept that the meaning of the relevant constitutional provision is to be determined by reference to the ideas of the time of the provision’s enactment. The provision at issue in Caron is a passage from an Address by the Canadian Parliament to the Queen, adopted in 1867 pursuant to section 146 of the Constitution Act, 1867 to ask for the incorporation of what was then Rupert’s Land and the North-Western Territory (to which I will collectively refer as “the North-West”) into Canada, and incorporate into the constitution as a schedule to the Imperial government’s Order that annexed most of these lands (except the portion that became the province of Manitoba) to Canada. The Address and the Order resulted from a complex series of events and interactions between the Canadian government and Parliament, the Hudson’s Bay Company (which owned and administered the North-West), the British government, and the inhabitants of the North-West and their government and delegates who negotiated their entry into Canada. The two opinions make extensive reference to these events and interactions, and to the thoughts of the people involved. Repeated out-of-hand rejections of originalism notwithstanding, it is alive and kicking in Canadian constitutional law, as Benjamin Oliphant and yours truly have been pointing out for a while now.

The majority and the dissent disagree, however, about the sort of originalism that ought to govern their interpretation of the 1867 Address. The majority’s approach is something like “original public meaning originalism,” which, as Lawrence Solum explains, “emphasizes the meaning that [constitutional provisions] would have had to the relevant audience at the time of its adoption[].” Much of the majority opinion is devoted to showing that the phrase “legal rights” used in the Address would not have been understood, in 1867 or 1870, as referring to linguistic rights. The majority’s summary of the reasons for its conclusion as to the interpretation of the phrase legal rights notes that

(i) Never in Canada’s constitutional history have the words “legal rights” been taken to confer linguistic rights;

…

(iii) The contemporary discussions show that neither Canada nor the representatives of the territories ever considered that the promise to respect “legal rights” in the 1867 Address referred to linguistic rights;

(iv) The contemporary evidence also shows that the territorial representatives themselves considered that their linguistic rights had been assured through the Manitoba Act, 1870, not the 1867 Address or the 1870 Order;

(v) Federal legislation and debates surrounding it in relation to the new North-West Territories in 1875 and 1877 show that no one involved thought that there had been any guarantee of legislative bilingualism in 1870. [4; emphases removed and added]

In other words, the majority’s focus is on the public meaning of the term “legal rights,” and more specifically its meaning to Canadians or Canadian lawyers generally (i, v), the Canadian government (iii, v), and the representatives of the North-West (iii, iv, v).

The dissent, by contrast, favours “original intent originalism,” which focuses on the intentions of the authors of the relevant constitutional provisions. Its review of the historical evidence focuses not so much on how the words “legal rights” would have been understood ― indeed, the analysis of these words takes up a very short portion of the dissenting opinion ― but on what the parties, and especially the inhabitants of the North-West, sought to accomplish. Their wishes, the importance they attached to legislative bilingualism are the dominant considerations for the dissenters. The dissent insists that “our reading of constitutional documents must be informed by the intentions and perspectives of all the parties, as revealed by the historical evidence.” [235; emphasis added] These documents are “a statement of the will of the people” [235] ― and one gets the impression that, for the dissent, the will to which is seeks to give effect is rather more important than the statement itself.

For my part, I prefer the majority’s approach. Prof. Solum’s brief introduction to originalism, to which I link above, points to some problems with the “original intent” version of that theory, which the dissent in Caron illustrates. One issue is the difficulty of ascertaining a collective “intent,” especially among a large and diverse group of constitutional framers or, as in Caron, in a situation where there were different parties with divergent interests involved. Indeed, although the dissent asserts, generally, that “[t]he Constitution of Canada emerged from negotiations and compromises … achieved when parties to the negotiations make concessions in pursuit of a mutual agreement and reach a meeting of the minds,” [235] the 1867 Address, which is, after all, the operative constitutional provision, was not the result of a negotiation at all. It was a unilateral statement by the Parliament of Canada, and it is therefore not obvious that the intentions or aspirations of the people of the North-West are actually relevant to its interpretation.

Another problem with “original intent” originalism, in Prof. Solum’s words, is that “[t]he intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations” as to how the provision will be applied. Assuming the relevant actors in 1867-70 had a unified intent, was it that legislative bilingualism in the North-West would in fact be continued and respected ― as indeed it was for decades ― or that it would also be constitutionally entrenched? Actually, this questions points to a broader difficulty, which affects the majority opinion as much as the dissent, and of which more shortly.

Both of these issues to point to a third one, which is simply that the intent of the framers of a constitutional provision is difficult to ascertain, and that the legitimacy of an intention not codified in the constitutional text itself as a source of constitutional law is very questionable. As I wrote here in connection with Québec’s arguments in l’Affaire Mainville, there is a danger of litigants ― or, I would now add, judges ―

simply taking advantage of the fact that the intent of the framers cannot be known … and using it as a banner under which to carry its own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself.

Be that as it may, I want to reiterate a point that I might have made here before. Denying the significance of originalism to Canadian constitutional law, as both judges and scholars are wont to do, does not actually make it go away. Canadian courts still make originalist decisions, such as Caron, and litigants still make originalist arguments. But, importantly, this all happens in an intellectual vacuum. Because we are only interested in the question whether to do originalism, and have a ready-made negative answer for it, the debates over how to do it, such as those prof. Solum describes in the post linked to above and here, have not happened this side of the border, and the American debates have been ignored. As a result, questionable approaches to constitutional interpretation can endure unchallenged ― even if, as in Caron and in l’Affaire Mainville, they do not prevail when the votes are counted.

I come back to the broader issue I have with both the majority and the dissent to which I referred above. Both opinions assume that, if the “legal rights” which Canada undertook to uphold in the the 1867 Address include linguistic rights, then they are constitutionally entrenched. But it is not clear to me that this must be so. After all, nobody thinks that the (other) “legal rights” that all agree were part of this undertaking, those of property and contract, were similarly entrenched beyond modification by ordinary legislation, whether federal or, eventually, territorial and provincial. Canada had to respect the rights that existed at the time the North-West was annexed, but that did not mean that Parliament or the legislatures created in the territories could not subsequently legislate to modify or even derogate from these rights. Why exactly are linguistic rights different? Neither opinion explains this.

The comparison with ordinary “legal rights” also casts doubt on the dissent’s assertion that legislative bilingualism or language rights more broadly are “not a political issue that can be left up to the government.” [243] Leaving rights to “government” ― or, more accurately, to legislatures ― need not mean that these rights will not be protected at all. To be sure, it may well be a good idea to entrench (some) rights beyond the reach of ordinary legislation. I have myself argued that the framers of the Canadian Charter of Rights and Freedoms erred in not doing so with property rights. But there is no need, it seems to me, to seek to infer the decision to entrench a right from tenuous evidence of intent, or from the desires of those whom this right would benefit. Contrary to what the dissent in Caron suggests, it is not at all clear that injustice results from a failure to do so.

The Caron majority thus arrived at what I believe is the right result, but even its reasoning might be questionable. Moreover, while its approach to originalist constitutional interpretation is better than the dissent’s, it is just as little explained and defended. Still, I hope that this case might give us the impetus to abandon the pretense that originalism has no place in our jurisprudence, and to start thinking more seriously about when, and how, as well as whether, it ought to be employed.

What Did They Mean?

Must the laws of Alberta ― like those of Manitoba (as well as Québec, New Brunswick, and of course Parliament itself) be enacted and published in both French and English? The answer to this question, which the Supreme Court addressed in Caron v. Alberta, 2015 SCC 56, decided on Friday, turns on the meaning of a short phrase in a document soon to be 150 years old.

The Court’s majority, in an opinion by Justices Cromwell and Karakatsanis, found that Parliament’s promise to protect the “legal rights” of the inhabitants of the then-Rupert Land and North-Western Territory did not encompass a guarantee of legislative bilingualism. The dissenters, justices Wagner and Côté (whose opinion Justice Abella joined), begged to differ, repeatedly accusing the majority of committing an injustice. I will summarize the two opinions in this post, and venture some thoughts in a separate one.

* * *

To understand this case, a rather lengthy historical explanation is in order. In 1867, the territories that have since become Manitoba, Saskatchewan, and Alberta, as well the Yukon, the Northwest Territories, the Nunavut, and parts of Québec and Ontario, belonged to and were administered by the Hudson’s Bay Company (HBC). Section 146 of the Constitution Act, 1867, provided for the “admission” into Canada by the Imperial government, on address of the Canadian Parliament, “on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act.” Parliament approved the first such address in 1867, and another one in 1869. The 1867 address stated that Canada would uphold “the legal rights of any corporation, company, or individual” in the North-West ― the phrase on which the issue before the Supreme Court turned.

However, the Canadian annexation plans provoked a rebellion in the Red River Settlement, the main population centre in the North-West, in what would eventually become Manitoba. The rebels formulated a number of conditions on which they would accept Canadian sovereignty. Among them were demands for legislative as well as judicial bilingualism. They also demanded the creation, out of the territories, of a single province of Assiniboia, and made financial demands.

The Canadian authorities responded, first, by issuing a Royal Proclamation promising among other things that “all your civil and religious rights and privileges will be respected” upon entry into Canada. Under pressure from the Imperial government, they negotiated with delegates from the North-West and eventually accepted that part of the new territories would enter Canada as a new province, Manitoba. The rest would become a federally administered Territory, whose creation was provided for by an Order of the Imperial government, to which the 1867 and 1869 addresses of the Canadian Parliament were annexed. That Order is part of the Constitution of Canada described in and entrenched by section 52 of the Constitution Act, 1982.

In the first years after 1870, the new North-Western Territory was governed as though it were part of Manitoba. The laws enacted (in both French and English) by that province’s legislature applied. Then, in 1875, Parliament enacted a statute setting up a separate territorial government. A requirement of legislative bilingualism was included in that law in 1877, as a result of an amendment moved by a Senator from Manitoba. Legislation enacted in 1891 made clear that the Territory’s legislature could decide which language to use. In 1905, the province of Alberta (as well as Saskatchewan) was created out of a part of the Territory, and eventually it legislated to enact future laws in English only.

If Canada’s undertaking to protect the “legal rights” of the North-West’s inhabitants included language rights, such as legislative bilingualism, then this chain of enactments was invalid. Canada could not allow the North-Western Territory, or its successors the provinces of Alberta and Saskatchewan, to renounce legislative bilingualism, and the provinces had no authority to do so. This was the appellants’ main argument.

* * *

For the Supreme Court’s majority, the phrase “legal rights” does not encompass legislative bilingualism. While the constitution generally “should be interpreted in a large and liberal manner,” [35] and linguistic guarantees are particularly important, “[t]hese important principles … do not undermine the primacy of the written text of the Constitution.” [36] Moreover, it is not enough to

simply resort to the historical evidence of the desires and demands of those negotiating the entry of the territories, and presume that those demands were fully granted. It is obvious that they were not. The Court must generously interpret constitutional linguistic rights, not create them. [38]

Having set out these interpretive principles, the majority explains why in its view they lead to the conclusion that “legal rights” do not include legislative bilingualism. First, “[l]anguage rights were dealt with explicitly in s. 133 of the Constitution Act, 1867 and in the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1870 Order counts heavily against the appellants’ contention.” [40] Second, “political leaders in the territories themselves expressly provided for language rights when they were meant to be protected and those rights were differentiated from other, more general, rights.” [52] Third, “[t]he parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumed under the term ‘legal rights’ or ‘droits acquis‘ / ‘droits légaux‘ [which were used in various French versions of the Address].” [53] Rather, “legal rights” referred to property and economic rights. Fourth,

[t]he end result of the negotiations regarding legislative bilingualism was the enactment of the Manitoba Act, 1870. Conversely, it was never the objective of the 1870 Order to dictate that French and English must be used by the legislative body governing the newly established North-Western Territory. [58]

While the delegates from the North-West “sought to entrench bilingual rights, just as … they sought for the territories to enter Canada as a province,” [60] they only succeeded with respect to what became Manitoba ― which, however, is where most of the North-West’s people lived. Fifth, the 1867 Address cannot be taken to reflect an agreement between Canada and the people of the North-West that would not be reached until 1870.

The majority further argues that the events after 1870 confirm that the relevant actors did not understand legislative bilingualism in the North-Western Territory to be a matter of constitutional obligation. Although the amendment establishing bilingualism in the Territory’s government was not contentious, nothing shows that it was perceived as fulfilling a constitutional duty. If anything, the government at the time thought that the matter was best left to the Territory’s legislature ― as was eventually done.

Before concluding, the majority notes that if the appellants were to succeed, legislative bilingualism would be “constitutionally entrenched not only for Alberta, but also for all of the former HBC lands, which now form part of Saskatchewan, Ontario, Quebec, Yukon, Nunavut and present-day Northwest Territories.” [102] Moreover, “[t]he logical extension of this reasoning would also lead inevitably to the conclusion that a variety of other demands made by the settlers have been constitutionalized by the words ‘legal rights,'” [102] including the to entrench the then-prevailing practice of appointing bilingual judges.

* * *

The dissent took a different approach to the issue before the Court. In its view, “[t]he answer to the question whether Alberta is constitutionally required to enact … all its laws in French as well as in English is written across the history of Rupert’s Land and the North-Western Territory” ― and not merely in the phrase “legal rights” in the 1867 Address. Ascertaining the meaning of that step is only the last step of its analysis.

Much of the dissenting opinion consists of an extensive review of the historical evidence. Its authors insist that “the content of the promises conveyed in the 1867 Address cannot be interpreted without reference to the context in which they were made.” [139] This review serves to stress, time and again, the importance of legislative bilingualism to the people of the North-West.

This population, the dissent notes, was composed of both French- and English-speakers; their legislature and their courts used both languages, as did the administrators appointed by the HBC; departures from these practices were met with discontent and resistance. Bilingualism extended throughout the North-West ― it was not limited to what became the province of Manitoba, and as the delegates who negotiated the annexation with the Canadian government represented the people of all the North-West, not only of the Red River Settlement, it would have been been inconceivable for them to limit their demands for legislative bilingualism to that province. Indeed, the Canadian government did not oppose these demands, nor was it in a position to do so, being pressed to conclude an agreement by the Imperial authorities.

For the dissent, the events after 1870 support the existence of a constitutional promise of legislative bilingualism to the people of the North-West. Little changed there in the aftermath of the annexation to Canada, since the bilingual administration of Manitoba exercised power. And once the territorial government was established, it was bilingual in practice, even before bilingualism was required by federal law.

This historical review takes up more than 100 paragraphs in the dissenting opinion. The “Application of the Principles of Constitutional Interpretation to the 1867 Address,” which follows it, fewer than 30. The principles in question “are that the Constitution must be interpreted contextually, that its provisions must be given a broad and purposive reading, and that its nature — as an expression of the will of the people governed by it — is relevant.” [216]

Applying these principles, the dissent concludes that the “historic” “compromise between the Canadian government and the territories’ inhabitants” [222] included a promise of legislative bilingualism. Referring to the French version of the 1867 Address, which spoke of the “droits acquis” ― the vested rights ― of the people of the North-West, the dissent states that “legislative bilingualism was one of these vested rights.” [226] It was also implicitly referred to by the Royal Proclamation, with its promise to uphold “civil and religious rights” ― which thus “recognized the cultural needs of the Métis” [229] of the North-West. That the protection of linguistic rights was not explicit as in other constitutional provisions is not determinative. To hold otherwise would be unjust and incompatible “with the broad and generous approach to constitutional interpretation that this Court has repeatedly taken,” [231] and with the “large and expansive meaning” which the authors of the 1867 Address “attributed … to the[] rights” it contained. [234] Finally, the dissent asserts that, like Confederation itself,

[t]he annexation of the territories … resulted from negotiations between a dominant English-speaking party and a party with a strong interest in protecting the French language. Like the French-speaking minority in the negotiations that resulted in Confederation, the inhabitants sought to have the protection of their linguistic rights entrenched in the Constitution, and this was granted to them. [239]

To give effect to “the will of the people” who enacted it, the interpretation of the Constitution must take their demands into account.

* * *

So much for the opinions. I will try to have some thoughts on them shortly.

Untenable

The Supreme Court will hear the oral arguments in l’Affaire Mainville this Friday. The issue in this case concerns the eligibility of Federal Court judges appointed from Québec, and thus former members of the Québec bar, for seats on Québec’s s. 96 Courts, pursuant to s. 98 of the Constitution Act, 1867, which provides that that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province.” More broadly, the eligibility of other former Québec lawyers is also in question. In past posts, I set out my argument for the constitutionality of such appointments; offered some thoughts on Québec’s factum at the Québec Court of Appeal, to which it had referred the question; reported on the interpretive and other issues that were canvassed during the oral argument at the Court of Appeal; and summarized and commented on the Court of Appeal’s opinion stating that the appointments in question were indeed constitutional.

In this post, I want to comment on two aspects of the factum Québec filed in the Supreme Court which I have not covered previously. The first is a somewhat new argument Québec makes: the claim that s. 98 must be interpreted consistently with s. 6 of the Supreme Court Act, which the Supreme Court interpreted in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433. The second is what I consider to be a deeply flawed version of originalism that is Québec’s favoured mode of constitutional interpretation.

* * *

The coherence argument, which Québec develops in 4.2.2 of its factum, holds that because s. 98 and s. 6 of the Supreme Court Act

are both consitutional provisions that help protect the civil law system in the context of judicial appointments by the Governor General […] it is important to reconcile their interpretation so as to ensure the coherence of Canada’s constitutional structure. [113; translation mine, here and throughout.]

Québec seeks to use this argument to bolster its claim that a judge appointed to a Superior Court in the province (including the Court of Appeal) must have “contemporaneous” links with one of Québec’s “legal institutions” ― of which the Federal Courts are not one. The Supreme Court accepted the idea of contemporaneous links in l’Affaire Nadon ― but that was based, to a considerable extent, on contrasting the wording of s. 6 with that of s. 5 of the Supreme Court Act, which quite clearly allowed the appointment of former, and not only current, judges and lawyers. This contrast does not exist in the case of s. 98, making the textual argument for the contemporaneity requirement unavailable, or at least much more difficult. Hence the attempt to important this requirement through the “coherence” argument. Of course, in l’Affaire Nadon, Québec was on the side of those who insisted on the importance of the textual difference between ss. 5 and 6 of the Supreme Court Act. But now, it would seem that this argument has served its purpose and has been jettisoned ― coherence, ironically, be damned.

Yet apart from being ironic and inconsistent ― which may not trouble Québec’s lawyers but should, it seems to me, trouble the Supreme Court’s judges ― Québec’s position is also paradoxical. It makes sense to argue that provision A ought to be interpreted consistently with provision B when A was enacted after or at the same time as B. In both these cases, the interpretive presumption that the legislature (or the constituant) had B in mind when drafting A is perfectly sensible. However, what Québec is asking the Court to do is to interpret an earlier provision in light of a later one, about which the people who drafted and enacted the earlier provision could not have known. The logic of this position escapes me.

Before moving on, I briefly address another aspect of Québec’s coherence argument. Québec claims that, if its position is not accepted, it would be possible,

insofar as he had once been a member of the Québec bar, for a judge of a federal court or a common law provincial court to be appointed to one of the seats reserved to Québec on the Supreme Court, following a brief stint at the Québec Court of Appeal. [125]

This, according to Québec would amount to doing indirectly that which the Supreme Court in l’Affaire Nadon said could not be done directly, and should not be allowed. The trouble with this claim is twofold. First, it rather blatantly misrepresents the majority’s opinion in l’Affaire Nadon, which was careful to specify that it “[did] not decide”

whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to [the Supreme] Court under s. 6. [71]

And second, Québec’s own interpretation of s. 98 allows the exact same run-around ― only for a different set of judges, namely those of Québec’s provincial court. They, no less than the judges of the federal courts, are excluded from appointment under s. 6, yet Québec argues that, as they possess the requisite contemporaneous link to the province’s “legal institutions,” they can be appointed under s. 98 ― and could thus be further appointed under s. 6. (NOTE: I hadn’t read it before posting this, but the factum of the Canadian Association of Provincial Court Judges makes this very point at par. 54.)

* * *

I turn now to the issue of constitutional interpretation. Québec’s argument is heavily originalist. It is replete with claims about the “framers’ intent” (l’intention du Constituant), the compromise to which s. 98 purportedly gives effect, and the conditions prevailing at or in the decades prior to Confederation in 1867. Whether originalism is an acceptable mode of constitutional interpretation in Canada is, in my view, an open question. Canadian constitutional rhetoric tends to reject it out of hand, but the Supreme Court’s practice suggests that, outside the realm of Charter interpretation, the rejection may not as complete as it is often proclaimed to be. (I have some thoughts on this subject here.) Indeed, the federal government’s factum also draws heavily on historical, and arguably originalist, arguments, so that they are likely to feature prominently in the argument before the Court, and perhaps in its opinion too. So rather than a knee-jerk rejection of originalism, I want to offer a reason for being skeptical of the specific brand of originalist argument the Québec invokes.

As Lawrence Solum’s Legal Theory Lexicon entry for “Originalism” helpfully explains, there are a number of distinct varieties of originalism in American constitutional thought, the two most significant of which are “original intent originalism” and “original (public) meaning originalism.” The former held that constitutional texts had to be interpreted in accordance with the intentions of their framers. It mostly had currency in the 1970s and early 1980s, but came under criticism, partly because it was not clear just what the intentions of the framers were and at what level of generality they had to be considered, and partly because the intentions unexpressed in the actually enacted text were deemed irrelevant to legitimate constitutional interpretation. In response to the criticism, a different form of originalism developed and came to dominate, one that focused not on the framers of the constitutional text might have intended, but on the way in which the text that was actually enacted would have been understood at the time. Those who tend to reject originalism out of hand ― and this category includes many Canadian jurists ― tend not to be aware of this distinction. But it matters, and the Québec factum in l’Affaire Mainville shows why.

Québec’s claims focus on what it considers to have been the “intentions” of the framers of s. 98. Thus it argues that

the framers (Constituant), by providing that the judges of Québec’s superior courts would be chosen “from the Bar of that Province,” wanted to guarantee that the persons appointed to these courts would have not only a training endorsed by the Barreau du Québec but also that they would have a contemporaneous link with Québec’s legal institutions. [76; emphasis mine]

How do we know that the framers wanted this, though? Actually, we don’t know this. Because ― as the Federal government repeatedly points out ― that’s not what they wrote. What the framers wrote was a text that ― unlike s. 6 of the Supreme Court Act (on the Supreme Court’s reading, anyway) ― says nothing about the “contemporaneous link,” and still less about the nature of the institutions membership in which can, or cannot, satisfy this purported requirement. Québec is simply taking advantage of the fact that the intent of the framers cannot be known (indeed, it acknowledges that s. 98 was the subject of “little debate” [73] among the framers), and using it as a banner under which to carryits own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself. This is exactly the problem that the critics of original intent originalism identified with that interpretive approach.

Instead of reverse-engineering the intent of the framers of which we have very little evidence, it would make more sense to look, as the proponents of original meaning originalism would have us, at what the constitutional text meant to the people of 1867. And here, the federal government has made, both at the Court of Appeal and now at the Supreme Court (at par. 51-52 of its factum), a crucial point, which is that in 1867, and for a considerable time thereafter, judges could remain members of the Québec Bar. The phrase “from the bar of [Québec]” would therefore not have been understood to exclude individuals who stopped practising law in order to become judges ― such as the judges of the federal courts or, for that matter, those of the provincial court.

All this is not to say that originalist arguments are dispositive, or even that they are valid. For my part, I believe that Sébastien Grammond was right when he suggested, at oral argument at the Court of Appeal, that we should be especially weary of originalist arguments in cases where there is no continuous tradition of judicial interpretations that could bridge the gap between the worlds of 1867 and 2015. However, to the extent that the parties and, possibly, the Court are going to rely on originalist arguments, they should not allow themselves to be led astray by arguments of the type that the vast majority of originalist jurists would reject.

* * *

As I have argued from the moment the question arose, the appointment of Justice Mainville to the Québec Court of Appeal and, hypothetically, of other judges of the federal courts to Québec’s s. 96 bench, is constitutional. Québec’s claims to the contrary are not justified and was rightly rejected by the Québec Court of Appeal. Québec’s Supreme Court factum supplies no argument that would justify overturning this decision. On the contrary, its arguments are so weak as to demonstrate that its position is untenable.

Not Beyond Interpretation

This afternoon, the Québec Court of Appeal delivered its opinion in the Reference re Section 98 of the Constitution Act, 1867 ― which asked it to pronounce on the constitutionality of the appointment, to the Court, of Justice Robert Mainville who was, at the time of that appointment, a judge of the Federal Court of Appeal. The unanimous “Opinion of the Court” states that Justice Mainville’s appointment is, indeed constitutional.

The first substantive question the Court of Appeal addressed was the import of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433. Québec and the interveners who argued that Justice Mainville’s appointment was unconstitutional said that it controlled the outcome, since it concerned the interpretation of a provision (section 6 of the Supreme Court Act) whose wording was very similar to that of section 98 of the Constitution Act, 1867 at issue here, the two speaking of appointments “from among the advocates” and “from the Bar” of Québec respectively.

The Court of Appeal finds, however, that to say that the two provisions were in effect identical would “camouflage the complexity of the issue [in l’Affaire Nadon].” [29] In l’Affaire Nadon, the interaction of ss. 5 and 6 of the Supreme Court Act created a difficult problem of interpretation, whose resolution depended on “textual elements” of the Supreme Court Act (the presence of s. 5 itself, as well as the enumeration of courts whose judges could be promoted in s. 6, and the provision relative to ad hoc judges) that do not have equivalents in the Constitution Act, 1867. The Supreme Court’s opinion, therefore, is not dispositive.

The second issue the Court had to address was the interpretation of section 98 of the Constitution Act, 1867 ― a provision, the Court says, that “although consistently applied since [Confederation,] has gone largely unnoticed.” [38] The Court adds that

[t]he historic context therefore takes on particular importance, since in the almost total absence of case law and learned commentary, we can only shed light on the purpose of s. 98 of the Constitution Act, 1867 from that context. In this connection, [Québec] is right to emphasize that in matters of constitutional interpretation, a provision that embodies an historic compromise must be interpreted in a manner to preserve that compromise. [39]

The Court’s opinion, accordingly, draws heavily on the historical record ― but concludes that the compromise embodied by s. 98 is very different from the one that gave birth to s. 6 of the Supreme Court Act. The latter was motivated by worries about

the [Supreme] Court as a federal and bi-juridical institution within which the three judges from Québec would be relied upon to represent the civil law tradition. … It is in this context that confidence in the institution and its legitimacy, a determining factor for the majority [in l’Affaire Nadon] is rooted. [47]

Unlike the Supreme Court, which was created, against some resistance, in 1875, the Superior Courts with which s. 98 is concerned (as is s. 97, which according to the Court of Appeal ― and contrary to Québec’s claims ― is its exact counterpart) existed before Confederation. The challenge, in 1867, was to integrate the pre-existent judicial system into the new federal structure, not really to make that system acceptable ― that problem had largely been solved by then. Section 98 was a pragmatic means of ensuring that Québec’s judges were well versed in the civil law, but not a grand bargain like s. 6 of the Supreme Court Act.

Accordingly, the Court of Appeal rejects “the notion of contemporaneity” [58] that the Supreme Court read into the latter provision. Indeed, given the numerous appointments of trial judges to courts of appeal, and of provincial court judges to superior courts, to read s. 98 literally, as requiring the appointment of current members of the bar, “would quite simply violate common sense.” [59] Echoing the federal government’s submissions, the Court concludes that past the initial admission, “the status a [provincial] Bar confers on someone should not become the criteria [sic] of s. 98.” [61] Former members of the bar ― including the judges of the federal courts ― can be appointed to superior courts and courts of appeal.

This conclusion is consistent with what I have argued since my first post on this issue. But it is interesting nonetheless. For one thing, its historicist or, if you prefer, originalist approach to interpretation is a somewhat surprising choice, having been championed by the parties on the losing more than those on the winning side of the argument (though this might have been one reason that motivated the Court to choose it). For my part, I am inclined to agree with Sébastien Grammond, who argued, on behalf of the Canadian Association of Provincial Court Judges, that the absence of judicial decisions relative to a constitutional provision, which can serve as a bridge before the time of its enactment and the present, should give us pause before adopting such an approach to interpreting it. (Incidentally, I want to point out that the Court is not quite right in saying that there was no “learned commentary” relevant to the issue before it: bloggers ― Paul Daly, Maxime Saint-Hilaire, and, well, yours truly if I can count as “learned,” have provided some!)

And then, there is the dry tone of the Court’s opinion, and the things that it said nothing about. When I wrote about about the oral argument, I divided my report into two parts: the first dealt with the interpretation of s. 98 and of the Supreme Court’s opinion in l’Affaire Nadon, the second with the “soft” issues that went beyond interpretation, namely the meaning of being a Québec jurist and public confidence in the courts. The latter issues, I wrote, were “[d]ifficult to assess” and “should not be decisive in any legal case. They certainly need not be decisive in the Mainville reference.” The Court of Appeal’s opinion suggests that it was of the same view. Still I find their almost complete absence from its opinion striking. Of course this absence does not mean that the Court did not think about these issues ― and then chose not to say anything about them. Whether its reluctance to go beyond interpretation, motivated no doubt by a desire to appear judicial and apolitical, even at the expense of seeming a bit oblivious to the reality of the case before it is a good thing, I’ll let others judge.

For a few years, the Supreme Court had been in the habit of releasing very important decisions in the week just before Christmas. This year, it broke with the tradition of making what Sonia Lawrence described on Twitter as cadeaux pour nerds. Its last pre-Christmas decision, R. v. Fearon, 2014 SCC 77, was in my view the judicial equivalent of a lump of coal. Today’s decision by the Court of Appeal though, is the perfect gift for a constitutional law nerd ― it gets the result right, but leaves one with plenty to think about.

The Mainville Hearing: Interpretive Issues

On Wednesday, I was at the Québec Court of Appeal as it heard the oral arguments in the reference on the constitutionality of Justice Mainville’s appointment. The Québec government, supported by Rocco Galati (a Toronto lawyer who had originally challenged Justice Mainville’s appointment before the federal court) and the Constitutional Rights Centre Inc. (a public interest litigation outfit), argued that s. 98 of the Constitution Act, 1867, which provides that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province” prohibited the appointment. Although Justice Mainville had been a Québec lawyer for 33 years, he was then appointed to the Federal Court of Canada, and subsequently to the Federal Court of Appeal. This, they said, means that he is no longer “from the bar of” Québec and thus ineligible. The federal government, supported by the Canadian Association of the Provincial Court Judges and the Grand Counsil of the Crees, contended that, having been a member of the Québec bar in the past, Justice Mainville satisfied the s. 98 criterion.

This blog has already hosted something of a mini-debate on the constitutionality of Justice Mainville’s appointment, with my friend Maxime St-Hilaire arguing against it, and me arguing that the appointment is indeed constitutional. Many of the arguments heard on Wednesday echo those prof. St-Hilaire and I made in these posts. It was a long day, too, and it would not be all that useful to produce a detailed report of everything that was said. Instead, I will structure my report by talking of a few themes that were raised, more or less directly, in the argument, and also one that wasn’t, but perhaps should have been ― or at least, should feature in the Court’s thinking.

Also, in the interests of readability, I will split the report in two. In this post, I will address the issues having to do with the authorities which the Court of Appeal will need to interpret to answer the question before it. In the next post, I will take on the issues that go beyond interpretation.

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The first theme I want to talk about is constitutional interpretation. That’s a dangerous subject that fascinates constitutional law nerds (such as yours truly) too much, and which, in the United States, causes a lot of energy to be wasted on debates on which little may turn. (For a withering ― and entertaining ― criticism of the state of this debate, have a look at Richard Posner’s recent book Reflections on Judging.) In Canada, we have been largely free of this debate, at least in the courts. Charter cases, which is where most of the action in constitutional law has been for the last 30 years, barely even refer to the constitutional text. The occasional federalism cases courts decide mostly concern the development of judicial doctrines. But in the last couple of years, constitutional interpretation has come back ― in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 (statutory when it started, but constitutional by the time the Supreme Court was done with it!), Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, and now in the Mainville reference. Unfortunately, the lack of both practice and theory means that we don’t really know what to do about it.

Although all the parties declared themselves, to various extents, proponents of purposive interpretation, those arguing against the constitutionality of Justice Mainville’s appointment favoured a rather originalist approach, as Québec had already done in the argument for the Senate Reform reference. (Indeed, Québec started its reply with the suggestion that we “go back to 1867.”) They argued that the bargain struck at confederation was absolutely and unconditionally binding, and the preoccupations that of the people who struck that bargain were the key to interpreting the text in which they enshrined it, and devoting much attention to the 92 Resolutions and to Sir Hector-Louis Langevin’s debates with Antoine-Aimé Dorion. (We might chuckle at Americans obsessing about the writings of James Madison and Alexander Hamilton, but we no longer have any right to do so, if we ever did. And at least, Madison and Hamilton are rather more inspirational figures than Langevin and Dorion.) And each of the parties denying the constitutionality of Justice Mainville’s appointment warned the Court about the danger of “living tree” constitutionalism, with Mr. Galati going so far as to say that it was inappropriate in non-Charter cases.

Their opponents, by contrast, embraced the “living constitutionalist’ approach, pointing out the changes in the organization of the bar and judicial institutions since Confederation, and saying that s. 98 must be read in such a way as to achieve its purposes within today’s context. Yet the federal government, at least, supplement its argument with heavy doses of originalism.

The Court, for its part, seemed unwilling fully to follow Québec down the originalist path ― and adopt what one of the judges described as “interpretation fixing the law in 1867.” The court systems of 2014 and 1867, the Court suggested, were “two worlds,” making an “evolutive” interpretation necessary. It also seemed reluctant to make too much of s. 94 of the Constitution Act, 1867, which in theory allows common-law provinces ― but not Québec ― to “make uniform” their private law, and which in the view of those opposed to the constitutionality of Justice Mainville’s appointment is evidence that Québec’s legal specificity must receive greater protection than that of the other provinces.

One thing that could not be done, everyone agreed, was to read s. 98 literally, so that “from the bar” really means “from the bar.” Under that reading, judges could not even be promoted from the Superior Court to the Court of Appeal (as four of the five members of Wednesday’s panel were), and this was too much even for Mr. Galati, despite his obvious enjoyment at posing as the man who would do justice though the sky fall.

Beyond that, the best suggestion on interpretation came, in my view, from Sébastien Grammond, who represented the Provincial Judges (and whose arguments in both l’Affaire Nadon and the Senate Reference I had also found very thoughtful and compelling). Prof. Grammond pointed out that, in the absence of a tradition of judicial interpretation of s. 98, and with the legislative texts implementing it themselves not paragons of clarity, we cannot very well understand the nuances of the meaning of the constitutional language. In such circumstances, originalist interpretation risks leading us astray. And as for the claim that the “living tree” approach is only suited for Charter cases, those who would defend it should recall that the the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, from which that metaphor originates, was not a Charter case at all.

***

In addition to interpreting s. 98 of the Constitution Act, 1867, the Court also has to interpret a much more recent text ― the Supreme Court majority’s opinion in l’Affaire Nadon. The questions about it concern both its specific ratio ― the true grounds for the opinion ― and thus the extent to which it governs the Mainville reference, and also its broader implications.

The parties arguing that Justice Mainville’s appointment is unconstitutional argued that the Nadon reference stood for the proposition that the phrase “from among the advocates of [Québec]” in s. 6 of the Supreme Court Act included only current, but not former, members of the bar because the currency of bar membership was necessary to provide Québeckers with the assurance that judges appointed to Québec seats would share their “social values,” in addition to being qualified in Québec’s civil law. In their view, the phrase “from the Bar of that [Québec]” in s. 98 was effectively identical to that used in s. 6 of the Supreme Court Act, and had also to be interpreted as including a requirement of current membership ― albeit not in the Québec bar, but rather in Québec’s bar or courts. The contrary interpretation, they said, would fail to provide Québeckers with the assurance that their judges would be in sync with their legal tradition and values.

Those defending the constitutionality of Justice Mainville’s appointment, by contrast, said that the Nadon majority’s comments about assurances and values were not dispositive, and that the textual and contextual differences between the two cases meant that l’Affaire Nadon is not binding. In particular, they pointed to the fact that s. 6 specifically named two courts the judges of which could be appointed to the Supreme Court ― by implication preventing the appointment of the judges of other courts ― and emphasized the absence of analogous wording from s. 98.

The Court seemed to share these views, suggesting that the Nadon majority’s opinion rested on a “en effort of very careful exegesis” of ss. 5 and 6 of the Supreme Court Act. It was one of the judges who suggested that the Nadon majority’s comments regards Québec’s “social values” were in obiter, on which those who defended the constitutionality of Justice Mainville’s appointment eagerly seized. And during Québec’s reply, the Court quite clear took the view that the Nadon majority’s opinion was based on the rule inclusio unius est exclusio alterius.

Beyond the problem of figuring out the specific ratio the majority opinion in l’Affaire Nadon, there was also that of its broader import. Québec argued that it was a positive decision, enshrining a “generous” interpretation of a fundamental constitutional compromise. The federal government, by contrast argued that, although dictated by statutory text, the outcome of l’Affaire Nadon was nothing to celebrate, and certainly not “generous,” and that if the Court of Appeal could avoid extending it, it should by all means do so.

When l’Affaire Nadon was decided, I thought that the majority’s comments about the importance of Québec judges on the Supreme Court being seen as representing Québec’s “social values” was crucial to its opinion. I still don’t think that they can really be characterized as obiter dicta. At the same time, they weren’t all there was to that opinion, which also put considerable weight on what it took to be the “plain meaning” of s. 6 as excluding former lawyers. As the federal government and others pointed out, nobody is arguing that the same “plain meaning” considerations apply here. Ultimately, I think that the best characterization of the majority opinion in l’Affaire Nadon is one also suggested by the federal government ― it stands for the proposition that the specific wording of s. 6 reasonably advances its values-representation purpose (and must therefore be given full effect), although it is not the only way to achieve it. Since s. 98 is drafted differently from s. 6, it is possible to see it as implementing a similar purpose in a different way, and even the Supreme Court’s values talk is not a mere obiter, it does not dictate the outcome of the Mainville reference.

As for the broader significance of l’Affaire Nadon, I remain of the view it is not a good thing for Québec. Limiting the paths open to Québec’s jurists is not, it seems to me, a “generous” thing to do ― especially when the same limitations are not imposed on their counterparts from other provinces. But this point leads me to a theme I want to discuss, in my next post ― identity.

Courts, Government, and Originalism

Despite its popularity south of the border, originalism hasn’t had much of a purchase in Canadian constitutional thinking. One reason, no doubt, is the power of what we think is the example of the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, generally taken to be a decisive rejection of originalist constitutional interpretation. It wasn’t exactly that, as I have argued here, but Canadian constitutional theory lives in the shade of its “living tree” all the same. But there might be other factors contributing to our rejection of originalism. A passage from Judge Jeffrey Sutton’s majority opinion for the U.S. Court of Appeals for the 6th Circuit* upholding bans on same-sex marriage, which Josh Blackman describes as “a pithy but deep understanding of originalism,” brings one of these other factors to mind.

Judge Sutton writes that the original meaning of a constitutional provision, the way “it was understood by the people who ratified it,” (17) is the first consideration in constitutional interpretation. He explains that

[i]f we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm … —that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. … Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it. (17-18)

Now we may be inclined to dismiss the analogy between a constitution, meant to apply to people not even born at the time of its ratification, over decades and even centuries, and a contract of sale executed months after its conclusion and subject to a statute of limitations. But whether or not there is, nonetheless, some truth to it, or a constitution is more properly analogized to a “higher law” that binds the “governors” is not important for my purposes now. What I want to do instead is consider an premise that underlies Judge Sutton’s argument, but which is unstated because it would, I think, be universally accepted in the United States ― and which we in Canada tend not to share.

This premise is that judges are among the “governors” with whom the people “contract” or whom they bind by ratifying a constitution. If they are, then obviously letting them re-interpret the constitution, under whatever pretext, means letting one party to the agreement modify its terms unilaterally, or allowing the “governors” to be a law unto themselves. That we be unfair and, considering the power of the “governors” over the governed, outright dangerous. It is important to hold the “governors” to the original bargain struck with them, or bound by the law imposed on them. Originalism is intended to do that.

Yet Canadian constitutional thinking, I believe, does not see courts that way. Of course, we know that courts are a part of government ― indeed, that judges were, at first, servants of the Crown rather than a separate “branch” of government. But generally speaking, that’s not how we think of them today. We tend to regard them outside arbiters that stand between the government (i.e. the legislatures and the executives) and the citizens. Indeed, we might even tend think of them as our agents vis-à-vis what the Americans call the “political branches” ― that’s why many Canadians (and indeed at least some of our “governors”!) ― think of the Canadian Charter of Rights and Freedoms as having transferred power to the people, and not just the courts. But, of course, if the judges are not among the “governors” whom we fear and with whom we make a deal or whom we try to constrain, there is little reason for us to wish to limit their power to reinterpret the constitution. If, a fortiori, they are our agents vis-à-vis the “governors”, we probably want them to reinterpret the constitution, and it is the “governors” who ought to be originalists.

As for the question of who has it right, I’m not sure that it can really be answered. Indeed I’m not even sure it must be the same in different constitutional systems. But even if it is, it’s worth noting that both views of courts have something going for them. Courts are a part of government in the sense that they wield ― at least so long as the executive is inclined to enforce their decisions ― a coercive power over citizens, whether considered individually or, if judicial review of legislation is possible, collectively. At the same time, I think it’s fair to say that, so long as they remain independent from the popular will, courts are not a part of government like the others. So long as it is easier for individual citizens to make their voice heard through the courts than through the legislatures, the view that courts are our agents vis-à-vis the (other) “governors” rather than our opponents and that we want to empower them more than constrain them is at least plausible. So, pick your own view. Just know that it’s not the only possible, or even plausible one.

*As usual, I express no views on the correctness of an American decision as a matter of American law. All I can say is that if this decision is indeed correct ― something that Ilya Somin and Michael Dorf, not to mention Judge Richard Posner and many others, would dispute ― then I’m happy that Canadian law is different.

What to Make of the Constitution

I have written a post on the Senate Reference hearings for I-CONnect, the blog of the International Journal of Constitutional Law. In large part, it follows up on and develops some of the ideas I had in my first impressions post last week, with a bit more context. I am cross-posting it below.

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Over the course of three days last week, the Supreme Court of Canada heard submissions from the federal government, the ten provinces, two territories, two ami curiae, and several interveners on the constitutionality of the federal government’s proposals for reforming the unelected upper house of the Parliament of Canada, the Senate. Beyond the obvious importance of possible Senate reform, which has been discussed almost as long as Canada has existed, this case is potentially of great significance because it is the first time the Court considers the meaning of Part V of the Constitution Act, 1982, which includes Canada’s plethora of procedures for constitutional amendment.

The questions the Court is called upon to answer concern four possible reforms. First, the limitation of the terms of a senator’s office, currently held until a retirement age of 75, to a fixed number of years (possibly 9 or 10) or to the life of two Parliaments (about 8 years under normal circumstances, but shorter in the case of minority governments). Second, the creation of a system of consultative elections to be held in the provinces that desire it, the winners of which the Prime Minister would be required to “consider” recommending to the Governor General for appointment to the Senate. Third, the removal of the “property qualification” of $4000 to hold senatorial office, a considerable sum in 1867, meant to ensure the Senate’s position as the House of privilege, but by now a somewhat comical relic of an age long gone and little lamented. And fourth, the outright abolition of the Senate.

The first three of these reforms, the federal government argued, could be implemented by Parliament acting unilaterally, either under s. 44 of the Constitution Act, 1982 (for term limits and the property qualification) or under the residual “peace, order and good government” power of s. 91 of the Constitution Act, 1867 (for consultative elections). As for abolition of the Senate, the federal government took the position that it could be done under the “general” amending formula of the Constitution Act, 1982, requiring the consent of 7 provinces representing at least 50% of Canada’s population (the “7/50 formula”). Most provinces, as well as the interveners, however, are of the view that the instauration both of term limits and of consultative elections can only be done under the 7/50 formula, and that abolishing the Senate requires the provinces’ unanimous consent.

Legally, the reasons for these disagreements come down to differences over the proper way of interpreting Part V of the Constitution Act, 1982. Part V applies to changes to “the Constitution of Canada,” and provides several different amending formulae, ranging from unilateral action to agreement between the federal Parliament and all the provinces, depending on the subject of the proposed amendment. The trouble is that the subjects singled out for special amending formulae are described in confusing terms, making it unclear under which provision of Part V a proposed amendment falls. But the confusion goes even deeper, because the very definition of “the Constitution of Canada,” to the amendments to which Part V applies, is unclear and incomplete.

Over the course of arguments before the Supreme Court, there emerged three interpretive approaches that the Court might adopt. The federal government’s preferred approach is―its denials notwithstanding―literalist. On this reading, the “powers of the Senate” entrenched by s. 44 do not include any senatorial independence that might be compromised by shortened term limits. The expression “method of selecting senators,” in the same provision, refers only to the formal appointment by the Governor General, and not to the fact that Senators are understood to be appointees lacking electoral legitimacy. And, since the list of constitutional changes requiring unanimous agreement of the provinces in s. 41 of the Constitution Act, 1982, does not specifically mention the abolition of the Senate, it does not cover it.

A second approach, championed by Québec, might be called originalist, in that it focuses on preserving the bargain struck at confederation in 1867. The Senate was, all agree, a central element of that bargain, so it is not to be touched without the consent of the parties to that bargain―that is to say, the provinces as well as the federal government. And even if some of the expectations of these parties, such as those regarding senatorial independence, have not been fulfilled, they must be upheld “regardless of reality.”

Most provinces, however, as well as the interveners and the amici curiae, urged the Court to take what was often described as the “living tree” approach, focusing not so much on the words of the constitutional text or the historical compromises that gave birth to it as on what matters most for its present and future operation. So the “method of selecting senators” is not only the part of the selection process described in the constitutional text (i.e. the appointment by the Governor General); “the powers of the Senate” include its independence, whatever exactly that might be (since it is clear that the Senate is, in fact, a political, partisan body); and the requirement of unanimous consent applies not only to the changes listed in s. 41, but also to other fundamental changes to the constitution.

In reality, however, interpretive approaches are not so neatly distinct. In what an intervener described as a dangerous application of the living tree approach, the federal government urged the Court to allow Parliament to bring the Senate into the 21^st century, and not to require unrealistic levels of political agreement, condemning the country to another “135 years of talks.” Conversely, those opposed to the federal government’s proposal made much of the fact that the abolition of the Senate was simply not contemplated when the amending formula was being drafted in 1981, arguing that this, rather than the relative unimportance of such a change, explained its conspicuous absence from s. 41. As a bemused Justice Rothstein put it to Manitoba’s lawyer, “whatever works?” “Welcome to the law,” she replied.

What works, and what doesn’t, are questions that will weigh heavily on the Court’s collective mind. What works with an amending formula which, although drafted merely a generation ago, seems to reflect a very different country than the one in which we now live? A country where constitutional negotiations were not being described as the opening of a “can of worms,” and where agreement on substantive constitutional change seemed within reach; a country much preoccupied by the then-Prime Minister’s suspected republicanism, but not all by the prospect of the abolition of the Senate; a country that thought nothing of ruling its northern territories like colonies, and its First Nations like subject peoples, whose views on constitutional change could safely be ignored. What sort of authority can a constitutional text drafted under such circumstances have? Yet saying that this text is insufficient to meet the needs of today―never mind those of the years and decades to come―only forces one to confront the question of what sort of authority the Supreme Court has effectively to re-write it.

Yet the Supreme Court of Canada has not been shy about intervening in constitutional reform in the past. It stopped possible Senate reform in its tracks with the in 1979, prevented unilateral Patriation of the constitution in 1981, and ruled that a unilateral secession of Québec would be illegal in 1998. In none of these cases was it relying on explicit constitutional provisions. In all of them, it ruled that constitutional change required a broad agreement between the federal government and the provinces, and could not result from unilateral action. Although it is, of course, dangerous to make such predictions on the basis of questions asked at oral argument, insofar as it concludes that Part V of the Constitution Act, 1982 does not clearly reflect this preference for consensus, the Court did not seem very likely to heed the federal government’s call for it not to treat the constitutional text as a mere “suggestion box.”

Living Next to You

Despite living so close, and despite our constitution (not only the main documents, but also the Supreme Court’s constitutional jurisprudence) being substantially influenced (including a negative influence ― attempts not to repeat perceived mistakes) by the American experience, Canadians tend not to know, or not to understand, American constitutional law and theory as well as we sometimes think. Two of the most puzzling, misunderstood, and caricatured elements of that law and theory are originalism and the constitutionally protected right to bear arms. In Canadian legal discourse, both tend to be peremptorily dismissed not only as utterly alien to our constitutional tradition, but also as dangerous, and ― sotto voce anyway ― rather stupid.

Yet peremptory dismissals of ideas, especially ideas in which many intelligent people actually believe, are usually unwise. We don’t need to agree with them, but if we disagree, we should at least try to ensure that our disagreement is somewhat informed. So, if you have a few of hours to spend on learning more about these strange American ideas, here are a couple of links:

About the right to bear arms, an Intelligence Squared debate involving professors Sandy Levinson and Alan Dershowitz (arguing that it has outlived its usefulness), and David Kopel and Eugene Volokh (arguing that it has not).

And about originalism, a discussion between professors Randy Barnett, Mitchell Berman, John McGinnis, and Richard Primus.

Enjoy!

First Impressions

I will have more structured and fuller thoughts in the next days, but here are some initial impressions, in no particular order, of the Supreme Court’s hearings on the Senate Reference, almost all of which I watched.

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This case is, of course, largely about constitutional interpretation. (Much more so, in fact, than most constitutional cases in Canada, certainly much more than the many Charter cases where the constitutional text is barely alluded to.) Now, in Canada, we often think of constitutional interpretation as involving a choice between two options: the “living tree” approach on the one hand, and something like originalism on the other. But the arguments in the Senate reference suggest that there are, in fact, at least three different approaches: the living tree, which most provinces invoked; originalism, in the sense of giving an overriding importance to the bargains that made confederation possible, which was Québec’s preferred approach; and literalism or textualism, which is the federal government’s. In reality, things are even more complicated, because the provinces also rely on constitutional structure, and the amici curiae focus primarily on it. And provinces, despite their invocations of the living tree, don’t hesitate also to appeal to the original bargain. In the funniest exchange of the three days, Justice Rothstein summed it all up as “whatever works,” to which Heather Leonoff, Manitoba’s lawyer, replied: “Welcome to the law!”

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Speaking of the lawyers, it’s a tough job they had. None more so than Nancy Brown, for British Columbia, the first to argue yesterday. She was, perhaps, a bit slow to get into the substance of her argument ― as all of her colleagues who preceded her, none of whom could resist the temptation of reminding the court of the historic significance of the case, had been. As Ms Brown was speaking of the importance of confederation, the Chief Justice snapped that the Court had already heard about it many times, and demanded to be told something “new.” The Chief Justice achieved what I suppose was her aim ― the lawyers who went after Ms Brown focused and shortened their arguments, trying not to repeat too much of what others had said before. But I had the impression that Ms. Brown was somewhat thrown off course by the Chief Justice’s comments, and that it was not very fair to take the court’s (admittedly understandable) frustration out on her in this way.

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Not everybody had such a hard time, though. The academics involved ― Sébastien Grammond, the Dean of the Civil Law Section at the Faculty of Law of the University of Ottawa, was impressive in his argument for the Fédération des communautés francophones et acadienne du Canada, and McGill Law’s Dean Daniel Jutras, even more so. (I’m biased, of course, as an alumnus!) Dean Jutras’ fellow amicus, John Hunter was very good as well, though the Court gave him a hard time. But perhaps the most impressive performance was that of Senator Serge Joyal, who intervened and represented himself. It is often said that a lawyer who represents himself has a fool for a client, but Mr. Joyal is no fool. He spoke with both emotion and intelligence, and brought insights to the Court which the judges had been looking for (about the pre-Patriation constitutional negotiations, in which he was very much involved). Indeed, Mr. Joyal, I think, is precisely the sort of person of whom the Senate was meant to consist. Too bad there are not more of them there.

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As for the best moment involving a judge, it came this morning when Justice Cromwell asked Mr. Hunter, who was arguing that the federal government’s plan to institute purportedly non-binding elections to choose persons whose appointment to the Senate the Prime Minister would have to “consider” did not entail a modification of the constitution, whether the government could, instead of elections, auction off Senate seats ― provided the auction was non-binding. (Mr. Hunter initially resisted, but eventually conceded this would be possible, subject of course to an eventual judgment of the voters. Not a great moment, I think, for the position he was supporting.)

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This brings me to way this will go. The federal government is in trouble. It is, of course, dangerous to make predictions based on hearings, but I have a strong impression that the Court ― all eight judges ― was skeptical of its position. The questioning both of its lawyers and of those who supported its position (as Alberta and Saskatchewan largely did, and Mr. Hunter did in part) was tougher than that of its opponents. Especially issue of the abolition of the Senate, I would be very surprised indeed if the Court were to endorse the federal government’s view that it could be effected without the unanimous consent of the provinces.

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If that is right, however, the Court may well ― though perhaps it will not ― more or less re-write the Constitution Act, 1982. The constitutional text does not, after all, mention the abolition of the Senate, which would at first glance suggest that the federal government’s position that the general amending formula, requiring the consent of 7 provinces with 50% of Canada’s population, should apply to it. What became quite clear in the course of the argument, however, is that the constitutional text does not contemplate a great many things which were not thought of in 1981, including some very fundamental changes, and that the Court seems reticent to hold that such changes (including, for example, turning Canada into a dictatorship), might happen with less than unanimous support. Judging by the tenor of the arguments, the Court may well follow the suggestion of some provinces and of the amici curiae, and hold that such fundamental changes require unanimity, regardless of what the constitutional text says ― or, rather, doesn’t say. The federal government’s lawyers’ concluding exhortation not treat the Constitution Act, 1982, as a “suggestion box” may have come too late. Yet there would have been no need for it if the government itself had not done exactly that with its plan for getting to an elected Senate through the back door.

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Whichever way the Court’s decision goes ― whether it ends up endorsing the federal government’s plan for getting around constitutional text or re-writing that text ― it would be pretty revolutionary. The Chief Justice might have been tired of hearing it, but this is, indeed, a historic case.

What We Said

Apologies for the recent silence. There was no particularly good reason for it, either. Anyway, I’m back.

And there is a very good reason for that: the Québec Court of Appeal has released its opinion in response to a reference by the Québec government on the constitutionality of the Federal Government’s Senate reform plans, which involve the limitation of Senators’ terms to 9 years and, more importantly, the setting up of provincial elections the appointment of the winners of which a Prime Minister would be obliged to “consider” recommending to the Governor General. In Reference re Bill C-7 Concerning the Reform of the Senate, 2013 QCCA 1807 (the French opinion is here; English translation here), the Québec Court of Appeal holds that this project is unconstitutional if undertaken unilaterally by Parliament; it can only be implemented as a constitutional appointment pursuant to par. 42(1)(b) of the Constitution Act, 1982.

The Court starts off by explaining the importance of the Senate to the Fathers of Confederation. The constitution of Canada was meant to be, as the Preamble put it, “similar in principle to that of the United Kingdom,” and that meant, among other things, having an unelected Upper House of the legislature. The province of Canada had, in fact, experimented with an elected Upper House ― and Sir John A. Macdonald had not liked the experience. The appointed, undemocratic Senate was an essential part of the bargain struck in 1867. To this day, “it seems that the Senate and its members play a significant role in federal political life, and that the institution is not simply a mirror of the House of Commons” (par. 12). The Supreme Court has confirmed the Senate’s position as an entrenched, central part of the compromise that made Confederation possible, in Re: Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54.

So much for the context. The relevant constitutional text consists of, on the one hand, par. 42(1)(b) and, on the other, s. 44 of the Constitution Act, 1982. The former provides that an amendment according to what is usually referred to as the 7/50 procedure, requiring the consent of 7 provinces representing between them at least half of the Canada’s population, is necessary to effect “[a]n amendment to the Constitution of Canada in relation to” any of a number of “matters,” among which are “the powers of the Senate and the method of selecting Senators.” As for s. 44, it provides that “[s]ubject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” Also relevant are s. 24 of the Constitution Act, 1867, which provides that Senators are “summon[ed]” by the Governor General, and par. 41(a) of the Constitution Act, 1982, which requires the unanimous consent of the provinces to amendments “in relation to … the office of the … Governor General.” Québec argued that the proposed Senate reform came within the terms of par. 42(1)(b) as affecting “the method of selecting Senators” and/or par. 41(a) as affecting the office of the Governor General. The Court accepted the former claim, and rejected the latter.

S. 42, it said, should not be interpreted restrictively, as an exception to a more general principle contained in s. 44. These provisions are of equal importance. Amendments relating with the “internal management” of the Senate fall under s. 44; those that have to do with the Senate’s “role[s] within the federal legislative structure, in particular those of ensuring provincial and regional representation and examining bills with sober second thought,” under s. 42 (par. 34).

Crucially, Parliament cannot get around the entrenchment of s. 42 by legislating so as to leave in place the formal provisions of the Constitution while changing the way it operates in practice. For one thing, this would contradict “the principle of supremacy of the Constitution” (par. 43). For another, it would subvert the compromise that made possible the Patriation of the 1981/82, which, so far as the Senate was concerned, had consisted in kicking the can down the road, and postponing any amendments ― to be effected at some later date pursuant to the new amending formula. Finally, s. 42 must be interpreted in light not only of the legal formalities, but also of the political realities of the constitution:

section 42 cannot be read as reflecting a consensus between the federal and provincial governments in 1982 to preserve the formalism but not the reality with respect to the matters set out therein, including the method of selecting senators. … [W]hat interest would the provinces have had when the Constitution Act, 1982 was adopted to protect a juridical reality that, even then, was inconsistent with political reality?

The political reality is that “the method of selecting Senators,” as it existed in 1982, included no electoral process. “The method of selecting Senators” refers not only to their final appointment by the Governor General, but to the entire process leading to that appointment. That process would be modified by the federal government’s reform project. Therefore that project requires a constitutional amendment.

That amendment need not be unanimously supported by the provinces, however, because it does not affect “the office of the Governor General”. While the Governor General is responsible for the final appointment of the Senators as a matter of law, “[i]n reality, the appointment of senators became the exclusive prerogative of the Prime Minister who was then in office whenever a vacancy occurred” (par. 55). The federal government’s reform project would have affected not the Governor General’s (purely formal) role in the process, but the Prime Minister’s. And “to assimilate an amendment of the powers of the Prime Minister with those of the Governor General for the purposes of paragraph 41(a) of the Constitution Act, 1982 would limit Parliament’s powers because of a constitutional convention. Such a limitation does not exist, or at a minimum, does not concern the courts” (par. 58). Conventions exist in a separate, non-justiciable realm. They can be modified by the behaviour of political actors; therefore, a fortiori, they can be modified by statute, without the need for a constitutional amendment.

If this all sounds familiar, it might be because you’ve read Fabien Gélinas’s and my paper on “Constitutional Conventions and Senate Reform,” in which we argued that the amending formula of the Constitution Act, 1982, must be understood in light of the constitutional conventions which determine the practical operation of the constitution. This means, on the one hand, that the “method of selecting Senators” means discretionary decision-making by the Prime Minister and no electoral process, and on the other, that “the office of the Governor General” does not in fact include the power to choose Senators. As a result, the federal government’s reform project comes within the scope of par. 42(1)(b), but not 41(a).

I am very happy with this opinion. I hope that the Supreme Court, which is set to hear the arguments on the federal government’s own Senate reform reference in a few weeks, comes to similar conclusions (and perhaps even spares a few words for us)!