Things I Dislike about the Constitution

10 problems with the Canadian constitution (according to its original meaning)

In an interesting Volokh Conspiracy post, Ilya Somin provides a “list of several areas where … the Constitution [of the United States] gets important issues badly wrong”. This is in response to concerns that (American) originalists, most of whom tend to be conservatives or libertarians, come to their position on how to interpret (their) constitution because they think that originalism yields results consonant with their political views. As Professor Somin notes, “[s]imilar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views”. But, even if one’s work is focused on those areas where one’s political and constitutional views are aligned, for any principled person there are likely to be areas where this alignment break down.

Here are some of mine (for the Canadian constitution of course, not the American one). It is a very tentative list. That’s partly due to my ignorance in some areas, especially that of Aboriginal law, and partly because there simply hasn’t been enough work done on the originalist interpretation of the Canadian constitution. There is still less written on the correct originalist approach to non-textual constitutional rules (notably constitutional conventions and principles) and also to provisions that are spent or obsolete and yet have never been excised from the constitutional text (notably sections 55-57 of the Constitution Act, 1867, which provide for the intervention of the UK government in the Canadian legislative process, and which I have simply ignore here).

Anyway, this is a start. The list, after the first two items, is more or less in the order in which things come up if you read the Constitution Acts 1867 and 1982.

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1. What is the constitution of Canada?

Let’s us start with the most conceptually fundamental problem. Section 52(2) of the Constitution Act, 1982 provides that “[t]he Constitution of Canada includes” a number of legislative instruments, notably the Constitution Acts, 18671982. The word “includes”, as the Supreme Court has correctly recognized, means that the list it introduces is not exhaustive. So what else is part of the “Constitution of Canada”? I doubt that the term “constitution” has an unambiguous original public meaning, given its fluidity in the Westminster tradition, which the existence of constitutional texts in Canada only compounds.

This is a big problem, because it is “the Constitution of Canada” that, by virtue of section 52(1) of the Constitution Act, 1982, “is the supreme law of Canada”, invalidating any other inconsistent law, and by the (self-referential) terms of section 52(3) can only be amended “in accordance with the authority contained in the Constitution of Canada”? Section 52(2) fails to provide useful guidance on an issue of fundamental importance in our constitutional law. Ideally, it should be amended to clarify what is, and what is not subject to sections 52(1) and 52(3), in particular among Imperial legislation such as the Bill of Rights 1688, as well as “unwritten” constitutional rules and principles.

2. Parliamentary sovereignty

My biggest philosophical problem with the Canadian constitution is that, subject to the federal division of powers and the specific restrictions on legislative power found mostly in the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982, it is underpinned by the traditional view of Parliamentary sovereignty.  As much as I would like the constitution to include something like a Barnettian “presumption of liberty“, and whether or not such a presumption exists under the Constitution of the United States, correctly interpreted, it is a thing alien to the Westminster tradition as it evolved in the 18th and 19th centuries. I don’t think there is or can be any serious dispute about that.

Under the Canadian constitution, subject to the aforementioned limitations, Parliament and the legislatures are free to enact laws that benefit some people at the expense of others or are otherwise  not rational means to advance the public interest. Now, these limitations are not insignificant. They would be more important still if the courts interpreted them correctly, instead of letting their pro-regulatory bias dictate their decisions, as the Supreme Court recently did in R v Comeau, 2018 SCC 15, and if they adhered to the original requirement of exclusivity in the federal division of powers. Nevertheless, the scope of legislative power under the Canadian constitution is much too broad.

Parliamentary sovereignty is also pernicious because it is, paradoxically, the constitutional foundation of the administrative state. While I would not yet concede the constitutionality of judicial deference to administrative decision-makers, Parliamentary sovereignty is the best argument for it. And there is no doubt that Parliamentary sovereignty is the justification for the delegation of considerable legislative and adjudicative powers to administrative decision-makers in the first place. Whatever limits on such delegation might exist as a matter of the constitution’s original public meaning ― a subject that I would love to see explored ― I strongly suspect (based notably on decisions made by the Judicial Committee of the Privy Council, whose outlook was more or less originalist), that any such limits are pretty broad. Thus, even if constitution, properly understood, is more constraining than the courts now recognize, Parliamentary sovereignty means that Canadian legislatures are entitled to create an extensive administrative state ― and that’s bad  for the liberty of the subject, the accountability of government, and the Rule of Law.

3. Lack of proportional representation of the provinces in the House of Commons

Proportional representation of the provinces was one of the key aims of Confederation, and it is seemingly enshrined in sections 52 of the Constitution Act, 1867, and 42(1)(a) of the Constitution Act, 1982. Yet this principle is qualified by sections 51 and 51A of the Constitution Act, 1867 and 41(b) of the Constitution Act, 1982, to ensure that the representation of small provinces is not reduced. The result is that small provinces are over-represented, and also that the size of the House of Commons keeps increasing, and will likely have to keep increasing in perpetuity, since this is the only way to dilute this over-representation. I do not particularly like either of these things, but there they are, doubtless a necessary if unprincipled political compromise.

4. Lack of recognition of municipal institutions

While the Constitution Act, 1867 has served us well ― for the most part, as noted below ― in maintaining a robust division of powers between the Dominion and the provinces, but this is probably not enough. The kerfuffle about the imposition by Ontario of a downsizing on Toronto’s municipal council, which I take it has the support of pretty much nobody in the city, is only the latest evidence for the proposition that municipal self-government ought to enjoy at least some constitutional protection from provincial interference. While I do not know just what this protections should take, and do not argue that municipalities ought to be recognized as a full-blown third order of government, the situation in which they can be interfered with at will, for good reasons, bad reasons, and no reasons, seems undesirable. Yet as things stand, municipalities are subject to the provinces’ plenary power under section 92(8) of the Constitution Act, 1867, and the right to vote in municipal elections is not protected by section 3 of the Charter, which by its clear terms only applies to “election[s] of members of the House of Commons or of a legislative assembly” of a province. The ongoing litigation between Toronto and Ontario may yet see the courts accept some of the city’s strained constitutional arguments, but I do not think that there is any serious claim that the constitution’s original public meaning prevents the province from doing what it did, however unwise its decision was.

5. Taxation provisions

My thoughts here are  tentative, because I am by no means an expert on tax law, or even on just its constitutional aspects. I take it, however, is that the distinction between “direct” and “indirect” taxes that forms the basis of section 92(2) of the Constitution Act, 1867 and is ― as decisions of both the Judicial Committee of the Privy Council and the Supreme Court recognize ― based on economic views prevailing at the time that legislation was enacted, is obsolete. The Supreme Court is right to try to stick with the original meaning of the constitution taxation provisions, but it would probably be a good thing if these provisions were amended to reflect more up-to-date economic concepts ― and, ideally, provide a clearer distinction between the respective sources of income of the federal and provincial governments.

6. Trade and commerce

Here too my thoughts are somewhat tentative, but there are ways in which the federal power over trade and commerce inmight be both too broad and too narrow. For one thing, like Professor Somin, I lament the indubitable constitutionality of tariffs. Professor Somin writes that “[a] well-designed Constitution would at the very least make it far more difficult to enact trade barriers than ours does” ― but the Canadian constitution, by this standard, is no better than the American one. Section 122 of the Constitution Act, 1867 clearly authorizes Parliament to enact “Customs and Excise law”. At the same time,  section 91(2) of the Constitution Act, 1867 is arguably too narrow in that, read together with section 92(13), it leaves securities law, to provincial jurisdiction (as the Supreme Court correctly found in Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837). Again I am no expert, but I take it that federal power in this area is widely regarded as desirable. It is worth noting that on the whole Canada has been well served by the decentralized division of powers embodied in sections 91 and 92 of the Constitution Act, 1867. But, while generally sound, this division is not perfect.

7. Lack of protections for judicial independence

The Canadian constitution has relatively little to say about judicial independence. The Judicature provisions of the Constitution Act, 1867 incorporate the rule of the Act of Settlement 1700 that the judges of the superior courts can only be removed by the Crown on address of the two houses of Parliament, and it is at least arguable that the convention that no such address would be moved except on grounds of misbehaviour or incapacity is part of the context in which this provision must be understood. The Constitution Act, 1867 also provides for the payment of these judges by Parliament, but seems to provide no protection against the reduction of judicial salaries, let alone any requirement for salaries to be set through some non-political process. Of course it does not apply to the judges of federal or provincial courts. Section 11(d) of the Charter provides a right to trial by an “independent and impartial tribunal” to persons “charged with an offence”, but does not specify what this means; nor does it guarantee the independence of judges who do not exercise criminal jurisdiction.

I would like to see more research into the original public meaning of the term “independent tribunal” as it is used by the Charter and into its good faith construction, but I am pretty skeptical that the Charter requires the sort of independent commissions for setting judicial salaries that the Supreme Court’s opinion in the Provincial Judges Reference, [1997] 3 SCR 3, demands. I am still more skeptical of the appropriateness of reading extensive protections for judicial independence, including for courts not covered by the Charter, into the constitution through the unwritten principle of judicial independence. Yet I also think that such protections are highly desirable. If I were re-writing the Canadian constitution, I would provide such protections for all courts ― superior, federal, and provincial alike. The weakness of existing constitutional provisions in this respect is somewhat embarrassing.

8. Lack of protections for economic liberty

The Charter does not protect property rights, freedom of contract, or the right to earn a living by lawful means of one’s choosing ― except the latter against discrimination “among persons primarily on the basis of province of present or previous residence”. As I’ve argued in the past (here and here), this is very unfortunate. As Professor Somin, among others, often points out, the absence or weakness of constitutional protections for property rights or economic freedom often causes the poorest and most politically disfavoured or excluded members of society to be disproportionately targeted by the state or by private interests who are able to use their political connections to put its coercive power at their own service. It is most unfortunate that the framers of the Charter failed to understand this. Indeed, if I had to rank my objections to the constitution in order of their practical signifiance, this one would probably be at the top of the list.

9. Protection for affirmative action

Section 15(2) of the Charter insulates affirmative action or positive discrimination programmes from scrutiny based on the Charter‘s equality guarantee. This is not the place for a full argument, but I don’t like this one bit. Discrimination is still discriminatory even if its present targets belong to groups that historically were perpetrators rather than victims. If exclusion based on innate characteristics is demeaning, then job postings that say that straight white men need not apply are demeaning. The framers of the Charter were wrong to tolerate such practices.

10. The “Notwithstanding Clause”

I’ve written a good deal about this one already: see here, here, here, and here. In a nutshell, I don’t think that allowing politicians to set aside constitutional protections for fundamental rights is a good idea. Of course, courts can err by expanding these protections beyond their original scope, or by failing to recognize the reasonableness of legislative limitations. But in my view the expected costs of legislative error are much higher than those of judicial error. Yet there is no question that section 33 of the Charter, which permits Parliament and legislatures to legislate “notwithstanding” some of the rights the Charter normally protects is part of the law of the constitution, and I don’t think that there is yet a convention against its use, even at the federal level, let alone in some of the provinces.

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This is a fairly lengthy list, and some of the items on it reach deep into the constitutional structure ― rather deeper, I think, than Professor Somin’s objections. Why, then, should I, or anyone, be an originalist, and insist that our flawed constitution is to be applied by the courts in accordance with its original public meaning, instead of urging the courts to make it just? Because, as Jeffrey Pojanowski argues, we should not be too demanding of constitutions. It is unrealistic to expect perfection, even if we believe that such a thing is conceptually possible. We should set our sights lower:

even if one has moral qualms about particular provisions of the constitution, any constitutional regime that passes a threshold of moral respectability has a moral claim to our support and respect. (586)

But for a morally respectable constitutional regime to serve as a law capable of guiding the expectations and conduct of citizen and government alike, its terms

must be known and reasonably durable. Were the constitution’s legal norms treated as merely good advice, a polity would not enjoy the moral benefits that positive law exists to provide in the first place … If one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms. (586-87)

The Canadian constitution is imperfect but, despite the shortcomings identified in this post, I think it easily passes the moral respectability threshold. So it deserves to be treated as law and not just as advice, good or bad according to the whims of the Supreme Court.

Une Injustice

J’ai déjà écrit, ici et ailleurs, que l’omission des droits de propriété de la Charte canadienne, qui était censée permettre aux gouvernements de poursuivre des politiques économiques et sociales égalitaires, a des effets pervers qui font en sorte qu’elle leur permet plutôt de transférer de l’argent des pauvres aux mieux nantis. Dans ce billet, je veux parler d’un autre exemple de cette tendance, qui vient du droit minier québécois ― un domaine dont j’étais parfaitement ignorant jusqu’à tout récemment, mais sur lequel j’ai beaucoup appris grâce à une conférence tenue à McGill ce mardi (où j’ai également présenté, avec Fabien Gélinas, un topo sur le partage des compétences en matière de ressources naturelles).

Cet exemple, c’est l’article 235 de la Loi sur les mines, qui dispose (entre autres) que « le titulaire de droit minier ou le propriétaire de substances minérales peut, pour l’exécution de ses travaux d’exploitation, acquérir [un bien immeuble] par expropriation ». En termes plus clairs, une compagnie minière qui a trouvé des minerais dans le sol sur lequel votre maison, votre commerce ou votre champ est situé peut vous forcer à lui céder le terrain en question, manu militari si nécessaire.

C’était encore pire avant ― des amendements adoptés l’an dernier ont retiré aux prospecteurs le pouvoir de contraindre un propriétaire de les admettre sur son terrain pour des travaux d’exploration, et non seulement d’extraction. (Ça me semble créer, d’ailleurs des incitatifs pervers ― il vaut mieux ne pas laisser les prospecteurs faire de l’exploration sur votre terrain, puisque s’ils y trouvent quelque chose, vous pouvez le perdre. On risque donc de ne pas apprendre l’existence de ressources minérales, et même les transactions volontaires qui permettraient leur exploitation n’auront pas lieu.)

Mais même sous le nouveau système, le pouvoir de l’État demeure à la disposition de compagnies généralement bien plus riches et, surtout, plus influentes, que les personnes dont il sert à prendre la propriété. Bien entendu, ces personnes reçoivent une compensation pour les biens expropriés. Sauf que cette compensation, ne couvrira pas la valeur qu’attachaient les personnes visées à leurs bien expropriés. S’il en était autrement, elles auraient consenti à vendre librement, et on n’aurait pas eu besoin de les exproprier. La compensation en cas d’expropriation s’établit en fonction du prix du marché, mais si une personne ne met pas son bien en vente, c’est normalement justement parce qu’elle y attache une valeur plus grande que ce qu’elle pourrait obtenir sur le libre marché.

Le législateur québécois fait pourtant semblant de reconnaître et de protéger le droit de propriété. L’article 6 de la Charte des droits et libertés de la personne dispose que « [t]oute personne a droit à la jouissance paisible et à la libre disposition de ses biens » ― mais elle qualifie tout de suite ce prétendu droit en disant qu’il n’existe que « sauf dans la mesure prévue par la loi ». Si la loi ― comme la Loi sur les mines ― le nie, eh bien, il n’existe plus. L’article 952 du Code civil du Québec, pour sa part, dispose que «[l]e propriétaire ne peut être contraint de céder sa propriété, si ce n’est par voie d’expropriation faite suivant la loi pour une cause d’utilité publique et moyennant une juste et préalable indemnité », mais bien sûr, il n’a pas pour effet d’invalider une disposition d’une autre loi qui, par implication nécessaire, y est contraire. On peut voir l’article 235 de la Loi sur les mines de deux façons: soit qu’il déroge au Code civil en autorisant l’expropriation dans l’intérêt privé, soit qu’il représente un jugement du législateur à l’effet que l’intérêt public est identique à celui d’une compagnie minière. Quoi qu’il en soit, l’apparente protection du Code civil n’en est pas une.

Bien sûr, il y a certains problèmes collectifs qu’on ne peut résoudre que par l’expropriation. Une personne peut demander, pour céder son terrain, un prix exorbitant, supérieur non seulement à celui du marché mais aussi à la valeur qu’elle attache subjectivement à son bien, en sachant qu’un projet ne sera pas réalisable sans celui-ci. Si le projet est véritablement public ― s’il s’agit, disons, de construire une route ou de créer un parc national ― l’expropriation (avec compensation, bien sûr!) est un outil approprié pour le réaliser. Mais s’il s’agit d’un projet privé, tel que la construction d’une mine, dont les avantages iront à ses propriétaires plutôt qu’au public en général, pourquoi la puissance publique doit-elle l’appuyer?

Le législateur québécois a pourtant jugé que les projets des compagnies minières sont plus importants que ceux des résidents, des commerçants ou des agriculteurs. Tout comme dans le cas de la « suramende compensatoire » (“victim surcharge“) imposée aux personnes trouvées coupables d’une infraction supposément en vue d’aider les victimes de la criminalité, tout comme bien d’autres programmes gouvernementaux, il s’agit d’une forme de redistribution de ceux ont (généralement) moins de moyens vers ceux qui en ont (généralement) bien davantage. C’est une injustice ― une injustice rendue possible par l’absence de protection constitutionnelle du droit de propriété.

Strange Property

Last week, a Conservative Member of Parliament proposed a constitutional amendment that would protect (some) property rights in Alberta. The amendment would add a section to the Canadian Charter of Rights and Freedoms, providing that

In Alberta, everyone has the right not to be deprived, by any Act of the Legislative Assembly, or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property, or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.

In the last Parliament, identically worded amendments were proposed for Ontario and British Columbia. Emmett Macfarlane has blogged about Mr. Hillyer’s proposal, explaining the uncertainty about the amending formula that would have to be used to add this provision to the Charter and suggesting that

 it would seem undesirable to have a patchwork of different rights in different provinces across the country. The Charter project itself was intended as a national unity project. If we started adding different, province-specific rights, what might that do to our conceptions of Canadian citizenship?

However, as prof. Macfarlane points out, s. 16.1 of the Charter is a province-specific provision, applicable only in New Brunswick; so is subs. 16(2), while pursuant to s. 59 of the Constitution Act, 1982, par. 23(1)(a) of the Charter does not (yet?) apply in Québec. The Constitution Act, 1867 also has some asymmetrical rights-protecting provisions (notably paragraphs 93(1)-93(4) and section 133). Differences between provinces, which we might call horizontal asymmetries, are already a feature of the rights landscape in Canada (quite apart from provincial rights-protecting legislation, such as Québec’s Charter of Human Rights and Freedoms) ― which is not to say that it is a good idea to add to them.

Mr. Hillyer’s proposed amendment would create an asymmetry of another (and, if anything, more unusual) sort too, a vertical one, between the rights protected against the federal Parliament and a provincial legislature. The Charter generally protects rights equally against Parliament and provincial legislatures. The only exception again concerns language rights, which are only protected against Parliament (and the province of New Brunswick). I’m not sure there is any strong normative principle that would go against vertically asymmetrical rights protection, but thought the matter worth highlighting.

Mostly though, I want to raise some questions about the substance of the proposed amendment. You might think that, having lamented the absence of constitutional protections for property rights and economic liberty in Canada (most recently last week, here and here), I would be happy about an attempt to include property rights in the Charter. But I’m not happy about the way Mr. Hillyer’s proposal (and its predecessors) would do it.

The proposed amendment is very narrow: it would only protect real property from expropriation without compensation. In other words, while landowners would be assured of an indemnity for any interference with their property, those whose fortune, great or small, consists in property of other kinds (whether it is money in the bank, shares, or intellectual property rights) could be expropriated without compensation of any sort. This sort of protection for property rights would tend to benefit the well-off, while doing nothing at all for those to poor to own land, such as the offenders made to pay an arbitrary “victim surcharge” on top of other punishment imposed on them. Indeed, the proposed amendment would not even protect all the owners of real property equally. It does not limit the reasons for which property can be taken by the government, provided that compensation is paid. It allows, for instance, expropriations intended to transfer land to private developers, which ― at least in the United States ― tend to fall much more heavily on the poor than the well-off.

Property rights, and economic rights more generally, became the poor relation of Canadian constitutional law (and to a lesser extent even of the American constitutional law) in large part because of the perception that they were being or would be used to protect the rich and to prevent the state from helping the poor. I have been arguing that this perception is mistaken, and that we could help the marginalized members of society resist the encroachments of a state that typically serves the interests of the middle and upper classes by protecting their economic rights. Mr. Hillyer’s proposed property rights amendment would not do that. On the contrary, it would confirm the fears of those who resist the protection of economic rights, and thus set back the cause of inclusion and economic liberty for all.

A further important point here is that constitutional change ― whether it is Senate reform or the addition of a new right to the Charter ― deserves to be broadly debated, so that its implications can be worked out and understood. The 7/50 amending formula, for all its flaws, more or less guarantees that amendment will not happen without debate. Attempts at constitutional change through the path of least resistance, whether unilateral Senate reform or a province-by-province modification of the Charter risks being poorly thought through (quite apart from its other defects from the standpoints of constitutional law and/or political morality) because it is insufficiently debated. It is not a good idea.

H/T: Benjamin Oliphant

Rights, Property… and Blogging

Because one blog is obviously not enough, I will now also be blogging for the CBA National Magazine. Initially at least, I will only be writing for them once a month. In any event, my main blogging focus will remain here, at Double Aspect. However, I am excited about this new venture and the possibility of reaching out to a somewhat different (and broader) audience that comes with it, not to mention what I hope will be additional publicity for this blog, so I’m grateful to the Magazine’s editor, Yves Faguy, for the kind invitation to contribute.

My first post there argues that Canadian constitutional law’s failure to protect property and economic rights, although motivated by a concern that these rights would be invoked in the interest of the well-off and to the detriment of the poor, ends up hurting the vulnerable and the marginalized members of society. I have already made this case here, when discussing the “victim surcharge” imposed on offenders in addition to their normal sentences, which is in effect a transfer of wealth from the poor to the better-off. I now take up this theme in discussing Bill C-36, the federal government’s response to the Supreme Court’s judgment in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101. The  Supreme Court’s persistent refusal to acknowledge that the liberty protected by section 7 of the Charter includes economic self-determination means that the discussion about the bill’s flaws and possible (although by no means certain) constitutionality essentially ignores the question of the sex workers’ right to earn their living as best they can. That is unfortunate:

A recognition of the sex workers’ right to earn a living in their own way would obviate the need for an uncertain balancing of the sex workers’ right to be safe and the government’s moral indignation at the idea of prostitution, to which the Bedford approach leaves the door open. It would, instead, put the spotlight on the real question that the government’s chosen path raises, which is whether this moral indignation is a good enough reason to prevent vulnerable individuals from making a living in what for some, and perhaps many, of them is the only way accessible to them.

It is not the rich, who seem to be doing just fine, thank you, who most need their property and economic rights protected. It is the poor.

One point I do not make in the National Magazine blog post but want to add here is that it would be a mistake to suppose that economic rights are generally secondary to civil and political rights as a matter of liberal political theory. The better view, I believe, is that defended by James Madison in an eloquent essay called “Property.” Madison argues that what we now call rights are a form of property, so that

a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. (Paragraph breaks removed)

The role of government, Madison says, is

 to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

A government is not just if suppresses speech or violates the rights of conscience. But nor is it just if

arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.

“[T]he rights of property and the property in rights” go together. They are both indispensable for human freedom and self-worth. The point that respect for the latter is connected to respect for the former might seem abstract or theoretical. But we can see that violations of one go hand in hand with violations of the other.