Declarations of Unconstitutionality as Judgments In Rem: A Response to Professor Daly

This post is written by Marc-Antoine Gervais, and a larger paper on the subject will appear in the McGill Law Journal (vol. 66).

Canada’s model of judicial review of legislation is unusual. On the one hand, it is “diffuse” in that all courts of law (and many administrative tribunals) may decide constitutional questions. On the other hand, declaratory judgments of unconstitutionality issued by superior courts under s. 52 of the Constitution Act, 1982 “establish the general invalidity of a legislative provision for all future cases.”[1] As Professor Daly’s comment on R v. Sullivan reveals, there is still much uncertainty regarding the true nature and scope of s. 52 declarations rendered by provincial superior courts.

Professor Daly contends that “[t]he effect of a declaration of unconstitutionality, just as with a declaration of invalidity of a regulation, is that it no longer exists.” He further suggests that “res judicata has no application here […]: the matter has been decided but not because the requirements of res judicata are met, rather because a declaration with erga omnes force has been issued by a superior court.” With respect, it is submitted that the judiciary cannot literally invalidate or nullify laws, and that the general or erga omnes effect of s. 52 declarations may instead be explained by the doctrine of res judicata.

Courts cannot literally invalidate laws

Judges and commentators commonly assert that superior courts “strike down”, “nullify”, or “invalidate” unconstitutional laws.[2] These statements, however, should not be interpreted literally. Nothing in the Constitution of Canada empowers courts to exercise such a “negative act of legislation”, as Kelsen described it.[3] In fact, the power to annul laws has only been vested in the Queen in Council, although it has fallen into desuetude.[4]

Unconstitutional laws are “of no force or effect” by virtue of s. 52 of the Constitution Act, 1982. Courts merely declare, but cannot render laws invalid, as Justice Gonthier stressed in Martin: “the invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1).”[5] Authoring a powerful dissent espoused in subsequent Supreme Court jurisprudence,[6] Justice McLachlin, as she was then, left no doubt as to the judicial nature of declarations of unconstitutionality in Cooper:

It is common to speak of courts or tribunals “striking down” or invalidating laws […].  This view of the Charter is, with respect, inaccurate.  The Charter confers no power on judges or tribunals to strike down laws. The Constitution Act, 1982, however, provides that all laws are invalid to the extent that they are inconsistent with the Charter.  Laws are struck down not by judicial fiat, but by operation of the Charter and s. 52 of the Constitution Act, 1982.[7]

Justice La Forest’s opinion in Kourtessis further confirms that declaratory judgments are no different in constitutional matters: “the declaration [of unconstitutionality] by its nature merely states the law without changing anything” — that is, it does not literally extinguish the provision deemed unconstitutional.[8] Proponents of the judicial nullification theory will have a hard time justifying the application by the Supreme Court of Canada of provisions that had been declared unconstitutional in prior cases.[9]

Res judicata and the general effect of s. 52 declarations of unconstitutionality

How, then, can a declaration of unconstitutionality generate erga omnes effects? The Supreme Court of Canada gave a hint in Ravndahl by describing s. 52 declarations as “in rem remed[ies]”.[10] A judgment in rem determines the legal status of a person or a thing independently from the context; it has erga omnes effects because it is “binding not only upon the parties but as against the whole world.”[11] The in rem determination is protected by the doctrine of res judicata, which estops anyone from challenging that legal status in other procedures.

Usually, judgments have inter partes effects because they only bind the parties to the litigation. However, in public law, it has been accepted for a long time that some types of determinations — such as declarations of nullity of regulations — are binding in rem.[12] In fact, the first constitutional law judgment in rem dates back to the famous 1637 Ship Money case, in which the court held that the tax levied by King Charles I was legal despite Parliament’s opposition.[13] Shortly thereafter, another litigant was estopped from challenging the same tax on the basis that the determination on the legality of the tax was no longer up for debate, even by non-parties to the Ship Money case.[14]

In modern Canadian constitutional law, the doctrine of judgment in rem may explain the general effect of s. 52 declarations issued by superior courts, as the apex court suggested in Ravndahl. Nonetheless, some difficulties remain. What is the territorial scope of declarations of unconstitutionality concerning federal legislation? In principle, judgments in rem bind the whole world, but this position is inapposite in the constitutional law context. Mark Mancini convincingly argues that it cannot be reconciled with the principle of federalism:

It would be an affront to the principled federalism balance established by the Constitution Act, 1867 to argue that section 52 declarations should extend throughout the country when issued by one judge in a province. The fact that there may be different findings between one province and another is a feature, not a bug, of the federalist system.

Moreover, a nationwide declaration of unconstitutionality issued by a single provincial superior court would have the very unfortunate effect of circumventing constitutional notice requirements to the attorneys general of other provinces.[15] It is thus submitted that judgments in rem should not run across provincial lines in constitutional matters until the Supreme Court — the only national court in Canada[16] — decides the issue.

In practice, superior courts have refused to automatically give effect to s. 52 declarations pronounced in other provinces.[17] In most cases, constitutional decisions are consistent throughout the country, but not always.[18] For example, the mandatory minimum sentence under s. 153 of the Criminal Code was declared unconstitutional by the Nova Scotia Court of Appeal,[19] but subsequently upheld by the Court of Appeal of Alberta.[20] The Supreme Court of Canada dismissed the application for leave to appeal the Alberta decision.

Not the final word on the constitutional matter

The doctrine of res judicata is flexible in common law, and it should not bar the reopening of a constitutional debate under certain exceptional circumstances.[21] Indeed, when the preconditions to the operation of the estoppel are established, the court possesses a discretionary power to refuse to apply it.[22]

Inconsistent superior court pronouncements on the constitutionality of a law in different provinces engender untenable jurisprudential uncertainty. In such circumstances, the controversy should be allowed to make its way to the Supreme Court of Canada, thereby allowing the “percolation” of diverse lower-court perspectives.[23] It must be stressed that this discretion to refuse the application of the estoppelshould only be exercised in order to foster the integrity and coherence of constitutional law, one of the central goals of the doctrine.[24]

Res judicata is thus distinct from, but operates in tandem with, stare decisis. Within a province, a mere disagreement with the underlying reasoning is not a sufficient ground for a court of appeal to neuter the estoppel barring the parties to challenge a judgment of unconstitutionality in rem issued by a superior in a prior case. Nonetheless, if the court elects to allow relitigation of the constitutional question, stare decisis applies as usual — either in its horizontal or vertical form, depending on the context.

Since courts cannot annul or invalidate legislation, it follows that the law once declared unconstitutional remains capable of “reviving” in the future, unless it is repealed. For example, the minimum sentence under s. 153 of the Criminal Code would “revive” in Nova Scotia if the Supreme Court of Canada holds that the provision passes constitutional muster in a subsequent case. The apex court has repudiated multiple declarations of unconstitutionality issued in earlier decisions,[25] and it would be inappropriate to blindly follow such controverted s. 52 declarations. Canadian[26] and American[27] courts have rightly “revived” laws once declared unconstitutional. Res judicata should not prevent the judiciary from revisiting declarations of unconstitutionality that rest on precarious legal grounds.

In the final analysis, courts cannot literally “strike down” laws or “remove [them] from [their] proper place among statutes.”[28] Rather, declarations of unconstitutionality are in rem determinations that generally establish the judicial ineffectiveness of provisions within the court’s territorial jurisdiction, subject to rare exceptions. The main qualification to the general binding effect of s. 52 declarations is that res judicata should not be applied where the estoppel entrenches inconsistencies in the judicial interpretation and application of the Constitution. The rule of law depends on it.


[1]        Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54 at para 31 [Martin].

[2]        See Schachter v Canada, [1992] 2 SCR 679 at 715; Ontario (Attorney General) v G, 2020 SCC 38 at paras 114, 237; Vancouver (City) v Ward, 2010 SCC 27 at 1.

[3]        Hans Kelsen, “Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution” (1942) 4:2 J Politics 183 at 187.

[4]        The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, s 56.

[5]        Martin, supra note 1 at para 28. See also R v Ferguson, 2008 SCC 6 at 35.

[6]        See ibid at para 29; Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55 at para 36; R v Conway, 2010 SCC 22 at paras 20, 64–82.

[7]        Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854 at para 83.

[8]        Kourtessis v MNR, [1993] 2 SCR 53 at 86.

[9]        See R v Malmo‑Levine, 2003 SCC 74 and R v Loewen, 2011 SCC 21. The marijuana prohibition under s 4 of the Controlled Drugs and Substances Act had been declared unconstitutional by the Ontario Court of Appeal in R v Parker (2000), 49 OR (3d) 481), and the government adopted a new regulation to solve the constitutional lacuna. However, no legislative amendment was made. See also R v J-LJ, 2000 SCC 51 and R v Lamy, 2002 SCC 25. The Quebec Court of Appeal had declared s 159 of the Criminal Code unconstitutional in R c Roy, supra note 17, but its constitutionality was not challenged in both Supreme Court cases.

[10]      Ravndahl v Saskatchewan, 2009 SCC 7at para 27.

[11]      See Barry L Strayer, The Canadian Constitution and the Courts, 3rd ed (Toronto: Butterworths, 1988) at 193.

[12]      See Dilworth et al v Bala (Town) et al, [1955] SCR 284 at 289 [Dilworth]; Corporation du Village de Deschênes v Loveys, [1936] SCR 351; Emms v The Queen et al, [1979] 2 SCR 1148 at 1158–62 [Emms];

[13]      Rex v Hampden (1637), 3 How St Tr 826.

[14]      Lord Say’s Case (1638), Cro Car 524.

[15]      See Strayer, supra note 11 at 193–95.

[16]      See TA Cromwell, “Aspects of Constitutional Judicial Review in Canada” (1995) 46:5 SCL Rev 1027 at 1042.

[17]      See R v Pete (1998), 119 BCAC 161 (BC CA); Reference re Same-Sex Marriage, 2004 SCC 79 at 70; R v EJB, 2018 ABCA 239 at paras 72–75; Parent c Guimond, 2016 QCCA 159 at paras 11–18; R c Roy, [1998] RJQ 1043 (Qc CA); R v Scofield, 2019 BCCA 3 at paras 75–89; R v Boutilier, 2016 BCCA 24 at para 45 (Nielsen J); R v Graham and Parks, 2003 BCPC 369 at paras 12–16; R v Nicholls, 2003 BCPC 132 at 74–76.

[18]      See infra notes 19–20; s 151(a) of the Criminal Code was deemed constitutional in British Columbia twice in 2015 and 2017, but declared unconstitutional in multiple other provinces. In 2019, the Court of Appeal for British Columbia eliminated this inconsistency by overruling prior cases in the province and declaring the provision unconstitutional. See R v Scofield, 2019 BCCA 3 at paras 11–12, 75–88.

[19]      See R v Hood, 2018 NSCA 18.

[20]      See R v EJB, supra note 17 (leave to appeal dismissed).

[21]      See Emms, supra note 12; Dilworth, supra note 12 at 289–90.

[22]      See Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para 33.

[23]      See Han-Ru Zhou, “Erga Omnes or Inter Partes? The Legal Effects of Federal Courts’ Constitutional Judments” (2019) 97 R du B Can 276 at 296–98.

[24]      See R v Mahalingan, 2008 SCC 63 at 38.

[25]      See eg R v Turpin, [1989] 1 SCR 1296 at 1333–34; Libman v Quebec (Attorney General), [1997] 3 SCR 569 at paras 55, 79.

[26]      See Saltspring Island Water Preservation Society v Rockliffe, [1993] 4 WWR 601 (BCCA).

[27]      See Legal Tender Cases (1870), 79 US (12 Wall) 457, in which the US Supreme Court upheld a law that it had declared unconstitutional two years earlier in Hepburn v Griswold (1868), 75 US (8 Wall) 603. See also West Coast Hotel Co v Parrish (1937), 300 US 379, rejecting Adkins v Children’s Hosp (1923). The law’s validity was later confirmed in Jawish v Morlet (1952), 86 A2d 96 at p 97 (DC Mun Ct App). See also Pait v Ford Motor Co (1987), 500 So 2d 743 (Fla Dist Ct App); Pullum v Cincinnati, Inc (1985), 476 So 2d 657 (Fla Sup Ct) at pp 659–60; State ex rel Gillespie v County of Bay (1933), 112 Fla 687 at p 722 (Fla Sup Ct); Pierce v Pierce (1874), 46 Ind 86 at p 95.

[28]      Allison v Corker (1902), 67 NJL 596 at p 601.

Guest Post: Marc-Antoine Gervais

It is my pleasure to announce a guest post today by Marc-Antoine Gervais, on the subject of declarations of invalidity as in rem judgments. The post is a response to Paul Daly’s recent post on declarations of invalidity in the aftermath of the Sullivan decision.

Marc-Antoine has a larger paper coming out in the McGill Law Journal on this subject (vol 66).

Reading from a Palimpsest

The Supreme Court of New Zealand holds that declarations of inconsistency are available when Parliament disregards the New Zealand Bill of Rights Act

I have previously written about the litigation concerning the power of New Zealand courts to make formal declarations to the effect that an Act of Parliament is inconsistent with the New Zealand Bill of Rights Act 1990. This litigation has now reached its conclusion with the New Zealand Supreme Court’s decision in Attorney-General v Taylor, [2018] NZSC 104. The Court holds, by a bare 3-2 majority, that this power does indeed exist. The decision is interesting for what the judges say, what they suggest, and what they do not say; at least from a theoretical perspective, it might be of some interest to Canadians, as well as New Zealanders.

The case concerns a 2010 statute that disenfranchised prisoners serving sentences of less than three years. (Longer-term prisoners were already disenfranchised by then, and the consistency of denying them the ability to vote with the Bill of Rights was not in issue.) The Attorney-General, having told Parliament that this statute was inconsistent with the Bill of Rights Act before its enactment, conceded the inconsistency, but denied the ability of the courts to issue a formal declaration to the effect that such an inconsistency existed. He had lost at both the High Court and the Court of Appeal.

There are three sets of reasons: what might be described as a quasi-majority opinion by Justice Ellen France, joined by Justice Glazebrook; a concurring opinion by Chief Justice Elias, who largely shares Justice Ellen France’s approach (hence my labelling the latter a quasi-majority); and a dissent by Justice O’Regan, joined by Justice William Young. (For the purposes of writing about New Zealand, I shall follow the local convention of mentioning the first name of a judge to distinguish her or him from a colleague—not necessarily from the same court—who shares that judge’s surname.)

Justice Ellen France starts from the well-established proposition that, even though the Bill of Rights Act contains no provision authorizing remedies for its breach (equivalent, say, to section 24 of the Canadian Charter of Rights and Freedoms), “in order for the Bill of Rights to be effective, the courts had to provide remedies for breaches”. [29] For Justice Ellen France, declarations of inconsistency are just an additional remedy that can serve this purpose. There would need to be “statutory language” to prevent the courts from granting this particular remedy; [41] in its absence, they can do so. Justice Ellen France points out that, by its own terms, the Bill of Rights Act applies to Parliament, and that while it explicitly prevents the courts from refusing to apply inconsistent legislation, the specificity of the provision doing so suggests that other remedies against inconsistent statutes are not categorically excluded.

Moreover, Justice Ellen France rejects the Crown’s submission that legislation inconsistent with the Bill of Rights Act effectively changes the contents of the rights the latter “affirms”, and thus cannot be regarded as inconsistent with it. Rather, “the Bill of Rights remains as the standard or palimpsest albeit Parliament has exercised its power to legislate inconsistently with that standard”. [46] Justice Ellen France also rejects the argument that a declaration should not be made since it is inconsistent with the judicial function and it will have no further consequences. A declaration “provides formal confirmation” of the “rights and status” of the person to whom it is granted, [53] of his or her legal position, even in the absence of any further relief. (On this point, Justice Ellen France refers to the Supreme Court of Canada’s recent decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.) In any case, a declaration provides vindication for the infringed right, and might be useful should the matter be revisited by an international instance or by Parliament itself.

That said, Justice Ellen France pointedly explains that, while “the Court of Appeal canvassed the relationship between the political and judicial branches of government and the role of the higher courts under the New Zealand constitution”, she does not “undertake a similar exercise”. [66] The purpose of the declaration is to provide such vindication as can be provided consistently with the Bill of Rights Act to the person whose rights have been infringed—not to goad or guide Parliament. While the Court of Appeal had embraced the view that declarations were part of a constitutional dialogue between the legislative and the judicial branches of government, no judge of the Supreme Court so much as mentions the word “dialogue” in his or her reasons.

As noted above, Chief Justice Elias largely agrees with Justice Ellen France. In addition, she emphasises the courts’ inherent jurisdiction (recognized by statute) to “administer the law”, and their statutory power to declare what the law is even if they cannot grant any additional relief. The Chief Justice also stresses “the fundamental nature of the enacted rights (declared as such in the legislation)”, [102] and says that while Parliament is free to legislate in disregard of these rights, their scope can only be modified by an amendment to the Bill of Rights Act, not merely “by inconsistent action”. [103] Indeed, the declaration of inconsistency is address “to those whose rights are affected”, instead of “serving “to assist Parliament in its function, as the Court of Appeal suggested”, [107] a position with which Justice Ellen France expresses her agreement (n87).

The majority judges leave a number of significant issues unresolved—notably that of just when a declaration, which is a discretionary remedy, ought to be granted in response to an infringement of a right protected by the Bill of Rights Act. But they do not endorse the Court of Appeal’s suggestion that formal declarations should be a last resort. While they provide little guidance beyond that, this suggests that declarations may now become a relatively unexotic feature of New Zealand’s constitutional landscape.

Justice O’Regan is none too pleased. He accepts “that effective remedies should be available for breaches of the Bill of Rights Act”. [124] The question, though, is whether a standalone declaration of inconsistency can be such a remedy. It is one thing for a court to point out, in the course of deciding other issues, that a statute is inconsistent with the Bill of Rights Act — this has been done before; it is another to address the question of inconsistency if it is the only issue between the parties, and when nothing else follows an affirmative answer.

In such circumstances, Justice O’Regan says, there simply isn’t anything for the courts to do. Although the Bill of Rights Act provides that it applies to Parliament, it also prevents the courts from refusing to apply inconsistent legislation, and thus is not truly a

limitation on Parliament’s power to legislate. It is at least arguable that to the extent that there is a breach of the Bill of Rights resulting from the passing of inconsistent legislation, it is not of a character for which the courts are required to fashion a civil remedy. After all [the Bill of Rights Act] removes the only truly effective remedy from consideration. [133]

In any case, the bare declaration of inconsistency might not even count as a “remedy” at all, let alone an “effective” one. Justice O’Regan worries that such a declaration “may be simply ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary”. [134] He is also concerned about “the considerable expenditure in money and resources” [143] that might result from what he sees as pointless litigation about abstract questions of consistency with the Bill of Rights Act. And, after all,

We have had the Bill of Rights Act now for 28 years and a declaration has never been made. … It can hardly be said that this has undermined the objective of the Bill of Rights Act to affirm, protect and promote human rights and fundamental freedoms in New Zealand. [144]

I don’t think that Justice O’Regan is right about this. He sees the matter in absolute terms: in the absence of declarations of inconsistency, the Bill of Rights Act has already provided some level of protection for rights and freedoms; at the same time, even if declarations are available, the level of protection will remain low, since “the only truly effective remedy”, which is to say invalidation of inconsistent legislation, is still off the table. The majority, by contrast, approach the matter in relative terms. For Justice Ellen France and the Chief Justice, what matters is that the availability of declarations will improve the protections provided by the Bill of Rights Act. Considering that essentially symbolic remedies exist elsewhere—for example, very low damages awards that are supposed to “vindicate” rights violated by the executive—the view that another such remedy constitutes a real reinforcement of rights-protection is, I think, more coherent with the big picture of public law.

The majority are also right to reject the Attorney-General’s arguments based on implied repeal of the Bill of Rights Act by inconsistent legislation. Although neither Justice Ellen France nor the Chief Justice raise this point, in my view the interpretive role of the Bill of Rights Act—section 6 of which provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”—strongly suggests that it must have a meaning independent both of prior and of subsequent legislation. (Of course, legislation that explicitly amends the Bill of Rights is possible, and only requires a simple majority in the House of Representatives to pass; but the parliamentary majority must, nevertheless, at least be willing to go to the trouble of enacting it).

Justice Ellen France’s palimpsest metaphor is apt. Legislation inconsistent with the Bill of Rights Act adds another layer to the pages of the statute book, but they do not fully erase the rights and freedoms inscribed underneath them. Depending on the purpose for which one reads the statute book, one must sometimes focus on the inconsistent statute (applying it notwithstanding the inconsistency) and sometimes on the Bill of Rights Act (when ascertaining and declaring the inconsistency), but both layers continue to exist.

Speaking of metaphors, I think that the majority do well not to follow the Court of Appeal’s embrace of the “constitutional dialogue” theory. In an article published in the New Zealand Universities Law Review, I argued that, despite its superficial attractiveness as a means to address a “majoritarian malaise”—the worry about a  sovereign Parliament’s ability to define or deny the rights of minorities—, this theory is not well-suited to the constitutional context of New Zealand (or any polity that adheres to Parliamentary sovereignty. It makes little sense to speak of dialogue when one of the supposed interlocutors is free to simply ignore what the other has to say, as a sovereign Parliament is free to ignore the courts’ pronouncements about rights.

I concluded that article by writing that

New Zealand’s constitution is one that makes Parliament supreme, and the courts cannot mitigate this fact. They can only point out the abuses of this supremacy that sometimes occur, and they will do so more clearly and with more force if they do not pretend that what they are faced with is a provisional, revisable opinion stated as part of a conversation among equals rather than an abuse of power.  (917)

This is what the Supreme Court has done. So much the better.

Dreaming of Dialogue

Can New Zealand courts declare statutes to be inconsistent with the Bill of Rights Act? Does this matter?

Canadians have long been used to the idea that, as the Supreme Court put it in Re Manitoba Language Rights, [1985] 1 SCR 721, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution.” (745) In New Zealand, things are very different of course, because the constitution is not entrenched. Parliamentary sovereignty prevails, and the courts’ role is limited accordingly. Although there is a statutory bill of rights, the New Zealand Bill of Rights Act 1990, it specifically provides that courts cannot invalidate or otherwise refuse to apply legislation that is inconsistent with it, and contains no remedial provision analogous to section 24 of the Canadian Charter of Rights and Freedoms.

So it is, or at perhaps was, an open question what, if anything, a court might be able to do when it concludes that a statute is inconsistent with the Bill of Rights Act. Might it go so far as to issue a declaration to that effect, or is it limited to only stating this opinion in the course of its reasons? In Attorney-General v Taylor [2017] NZCA 215, the New Zealand Court of Appeal says that, sometimes at least, a formal declaration can be made, and upholds the very first such declaration issued by a New Zealand court, confirming that the disenfranchisement of all convicted prisoners (and not only of those serving sentences longer than the three-year Parliamentary term) is inconsistent with the Bill of Rights Act’s guarantee of the right to vote. (The Attorney-General was not contesting the substantive point, it is worth noting, but only disputing that the declaration could and should have been made.)

* * *

The first question for the Court was whether authority to make a “declaration of inconsistency” existed at all and, if so, what its source was. The answer, the Court holds, is that superior courts have such an authority as part of their jurisdiction to answer questions of law, and that the Bill of Rights Act supported it. The Court rejects the Attorney-General’s submission that express statutory authorization is required to permit the making of declarations of inconsistency. Just as Parliament’s legislative authority does not derive from positive law but from political fact, so does the judicial authority of the courts. Neither branch owes its authority to the other; rather, “a distribution of the state’s sovereign powers among the branches of government emerged from the political settlement concluded in the decades following the Glorious Revolution of 1688”. [50] Ultimately, “[i]nconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts.” [62]

The Court notes that the Bill of Rights Act itself contemplates the possibility of a judicial assessment of the consistency of other legislation with its provisions, whether its results are stated in the court’s reasons (which the Attorney-General accepted was permissible) or in a formal declaration. Moreover, New Zealand has undertaken to provide domestic remedies for breaches of its obligations under the International Covenant on Civil and Political Rights, the implementation of which is one of the Bill of Rights Act’s stated purposes, so that it should be interpreted in accordance with this undertaking. Besides, in the Human Rights Act 1993, Parliament has already authorized the making of declarations of inconsistency when legislation breaches equality rights. Although the Bill of Rights Act contains no equivalent provision, this “evidences parliamentary acceptance that a court may make declarations about the inconsistency of legislation with rights protected by the Bill of Rights”. [107]

Second, the Court had to address an intervention by the Speaker of the House of Representatives, who argued that the whole case, or at least the way in which it had proceeded, was an infringement of Parliamentary privilege. In particular, the Speaker was concerned by the reliance, at first instance, on a report prepared by the Attorney-General to alert the House of Representatives of the incompatibility (in the Attorney-General’s opinion) between the blanket disenfranchisement of prisoners and the protection of the right to vote in the Bill of Rights Act. Indeed he sought sought to prevent the use of any “speeches in the House, select committee reports or submissions made to select committees” [122] to ascertain the consistency of legislation with the Bill of Rights Act, arguing that this would be tantamount to calling Parliamentary proceedings into question contrary to article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The Court rejected these arguments, holding that “a court does not impeach parliamentary proceedings merely by describing parliamentary processes or making a finding about the same subject matter,” [129] so long as it does “not endorse or criticise Parliament’s treatment of the issues”. [130] It is permissible, too, to refer to the Attorney-General’s report, although it is important for the courts to come to their own, independent conclusions.

Third, the Court considered the conditions in which declarations of inconsistency should or should not be granted. Such declarations, thought they do not affect anyone’s rights, are part of a “dialogue” (it might have been more accurate to say “conversation”) involving the the different branches of government, which

is not unique to constitutional disputes. It describes the routine work of government, in which Parliament legislates and the executive administers and courts interpret, leading in due course to legislative reform to better meet the community’s evolving needs. [150]

The only difference is that a declaration of inconsistency is a “more pointed” [150] than usual expression of a court’s opinion, which carries with it

the reasonable expectation that other branches of government, respecting the judicial function, will respond by reappraising the legislation and making any changes that are thought appropriate. [151]

Such “pointed” expressions of judicial opinion should not be made lightly; a statement in the court’s reasons for judgment is sometimes, and even “ordinarily” [162] preferable. But it is sometimes necessary to go further. However, the courts are to apply fairly strict criteria for standing (at least when compared with the Canadian “open bar” approach), and to ensure that there exists a real adversarial dispute and that they have the relevant evidence available to them before pronouncing on the rights-consistency of legislation.

Fourth and last, the Court asks itself whether a declaration should have been granted in this case. It concludes that because “[t]he undiscriminating limitation … on so central a right demanded justification [and] [n]one was forthcoming” a declaration of inconsistency “was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right”. [185]

* * *

To Canadian readers this all might seem like pretty tame stuff. And indeed there is no mistaking the notes of caution in the Court’s discussion, above all in its statement that “indications” rather than formal declarations of inconsistency should “ordinarily” suffice. What “ordinarily” will mean in practice remains, of course, to be seen, but at least for now the Court seems to think the step of granting a formal remedy ― even one that could produce no more than a purely symbolic effect ― is a serious, even an exceptional one.

Yet I think it would be a mistake to make light of the Court’s decision and, perhaps more importantly, of its reasoning. Although its conclusions are cautious, it still reflects a confident view of the judiciary’s constitutional position as a branch of government that is, in its own sphere, not Parliament’s subordinate, but its equal. It is worth noting that the primary ground on which the Court rests the authority to make declarations of inconsistency is not an implication from the text or nature of the Bill of Rights Act (as it had done in Simpson v Attorney-General [1994] 3 NZLR 667 (CA), a.k.a. Baigent’s Case, where it held that damages were available for breaches of the Act by the executive). Rather, the authority to make declarations of inconsistency is said to come from the judiciary’s own inherent powers, which the Court goes out of its way to say are not the product of any legislation but of the constitutional order of things (my phrase, not the Court’s). Similarly, the Court resists the Speaker’s attempt to restrict judicial discussion of Bill of Rights Act issues, even as it cautions that judges must be seen to interfere with the deliberations of Parliament.

Indeed, this case can be seen as a clash between two competing constitutional visions. One, advanced both by the Attorney-General and the Speaker, sets Parliament, protected by its sovereignty and privilege, above the other branches of government, whose first concern must be to avoid disrespecting or challenging it. The other, which the Court adopts, treats the branches as (almost) co-equal: “each is sovereign within its sphere of authority in the sense that it may act without the permission or authority of the others”.[51] To be sure, Parliament is first among equals because it can make law, and thereby oust judicial power (though New Zealand judges, as their British counterparts, have on occasion mused about the limits of that authority) or, in other cases, royal prerogative. But at least until it does so equality, not subordination, is the rule. It is a respectful equality, but respect goes both ways: not only must the courts exercise restraint and show comity on appropriate occasions, but Parliament too ought to engage in constitutional dialogue, and go so far as to reconsider its enactments, when called upon to do so by the courts.

Yet I am quite skeptical about the potential for constitutional dialogue between the judiciary and Parliament, on which the Taylor Court rests such hopes. We know that in Canada the “dialogue” has turned out to be quite one-sided, with the Supreme Court telling Parliament what it had, and what it could not, do. As the majority put in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, another prisoner disenfranchisement case,

the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a “dialogue”. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of “if at first you don’t succeed, try, try again.” [17]

The power dynamics in New Zealand are, of course, the opposite of those in Canada. It is Parliament, not the judiciary, that gets to have the last word in a constitutional conversation. But I do not expect it to be any more open to persuasion than the Supreme Court of Canada. I would love to be proven wrong on this, but I’d be quite surprised if ― assuming there is no change of government at the forthcoming election ― New Zealand’s Parliament chose to “reconsider and vindicate the right” to vote as the Bill of Rights Act, which it was happy to ignore on this issue, requires it to do.

* * *

Subject to an intervention by the Supreme Court, the courts of New Zealand do, then, have the ability to formally declare legislation to be inconsistent with the New Zealand Bill of Rights Act, despite the Act not authorizing them to do so. This authority rests on a conception of the constitution in which the branches of government are almost, if not quite, equal, rather than Parliament lording it over the courts (and the executive). Yet there is reason for skepticism about the vision of respectful dialogue between Parliament and the courts that this relative equality is supposed to foster. Someone gets to have the last word, and it seems likely enough that, in New Zealand as in Canada, it will be the only that will count.

NOTE: See also the comments by Andrew Geddis, on Pundit, and Edward Willis, on his Great Government blog.