Dealing with Delegation

Thoughts on a proposal for a judicial crackdown on the delegation of law-making powers to the executive

The explosive growth of legislation made by various government departments, boards, and other entities ― rather than enacted by Parliament, as legislation ought to be on the orthodox understanding of separation of powers ― is quite likely the most understudied aspect of contemporary constitutions, in Canada and elsewhere. In “Reassessing the Constitutional Foundation of Delegated Legislation in Canada“, an article that will be published in the Dalhousie Law Journal and is now available on SSRN, Lorne Neudorf sets out to shed light on and proposes means of reining in delegated legislation ― that is, rules made by the executive branch of government pursuant to a legislative authorization, often a very vague one. It is a worthwhile endeavour from which we have much to learn, even though Professor Neudorf’s arguments, and some of his recommendations, strike me as just as problematic, in their own way, as the phenomenon he criticizes.

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This phenomenon’s importance is out of all proportion to the attention it receives. Professor Neudorf notes that “[b]y volume, delegated legislation is made at a rate of nearly 5-to-1 as compared to primary legislation”. (3) Yet the text of the constitution seems to say nothing at all about the executive being able to make law. On the contrary, the Constitution Act, 1867, endows Parliament and provincial legislatures with “exclusive” law-making powers. Still, the courts have recognized that the legislative bodies are able to mandate the executive to make rules having the force of law, and indeed even rules that override the provisions of laws enacted by legislatures. This, Professor Neudorf argues, is a mistake that needs to be reversed.

Professor Neudorf traces the mistake to a misguided introduction into Canadian constitutional law of orthodox, Diceyan, notions of Parliamentary sovereignty. The notion that “Parliament can make or unmake any law whatever” has always been out of place in a federation, where the Dominion Parliament and provincial legislatures were always subject to limits on their powers. In any event, the enactment of “[t]he Charter” in 1982 “cemented the location of Canadian sovereignty in the Constitution as opposed
to a single lawmaking institution”. (9) Judicial decisions emphasizing the plenitude of legislative powers (subject to the constraints imposed by the Constitution Act, 1867)

should be understood as less about transplanting a robust vision of parliamentary sovereignty into Canada and more about the courts prodding along and encouraging the development of new country with a distinct identity. (9)

Yet the leading precedents on the scope of Canadian legislatures’ ability to delegate its legislative powers to the executive, notably In Re Gray, (1918) 57 SCR 150, recognize no obvious limits on delegation. In Gray, Chief Justice Fitzpatrick held that, since no limitation on delegation was expressed in the Constitution Act, 1867, “within reasonable limits at any rate [Parliament] can delegate its powers to the executive government” (157) ― provided that it be able to terminate and resume the powers it temporarily cedes. Professor Neudorf argues that sweeping delegation of the kind at issue in Gray “might not be viewed as reasonable outside the context of an exceptional national security threat”, (16) but the subsequent cases did not elaborate on the constraints that this reasonableness requirement might impose.

Professor Neudorf insists that Gray rests on a “narrow and technical interpretation of the
Constitution”, an “outmoded interpretive approach”, (18) long superseded by “living tree” constitutional interpretation. Applying this approach, the courts ought to

engage with how the Constitution sees Parliament: as a key part of the basic constitutional architecture: possessing democratic, representative and accountable qualities, and the key player in bringing together different constituencies to formulate national policy and resolve pressing questions facing the country as a whole. (23)

Delegation imperils Parliament’s position, envisioned by John A. Macdonald, as the constitutional cornerstone. It hands law-making over to persons and bodies that are not representative and often operate behind the thick veil of cabinet secrecy. Delegation also undermines the Rule of Law (which provides additional reasons to favour transparent lawmaking) and the separation of powers.

Therefore, Professor Neudorf proposes a number of ways of curtailing the use of delegation. To begin with,

courts should adopt a stricter interpretation of statutory provisions that delegate lawmaking power and strengthen the rigour of the vires review of regulations to overcome the current weaknesses that allow for the delegation of broad powers
through generic words and exceptionally wide latitude for the exercise of delegated power. (30)

If Parliament wants to delegate broad legislative powers, courts ought to make it say so very clearly ― especially if these powers are meant to be exercised retroactively, punitively, or in a manner that is at odds with the Charter. Courts should also drop their deference to the executive’s interpretation of its authority to enact delegated legislation. Nothing less than constitutional principle compels this change of approach, which “will better safeguard Parliament’s constitutional role and give effect to the principle of legality and the rule of law”. (32) But sometimes, the courts should go further still:

when generic words are used in enabling legislation, which are incapable of intelligent qualification by the text, context or purpose of the statute, the court should hold the grant of authority invalid on the basis that it is impermissibly vague. (33)

Indeed, the grant of authority ought to be “narrower than the general purposes of the legislation, with some specificity for the kinds of regulations contemplated”. (33)

Professor Neudorf’s other set of proposals concerns the process by which regulations are reviewed in Parliament. He calls on Parliament to take its inspiration from the review systems that exist in the United Kingdom (which Professor Neudorf describes in some detail), and look into both the delegation provisions of bills as they are enacted, and the already existing regulations that may be flawed or ineffective. But here too, Professor Neudorf envisions a role for the judiciary:

If needed, a court may issue a declaration of the constitutional obligation as the impetus for Parliament to take the necessary action. In an extreme case where the scrutiny system is totally ineffective, the court may seek to enforce this constitutional obligation by holding inadequately scrutinized regulations as legally ineffective. (40)

Professor Neudorf concludes that, while the delegation of some legislative powers is desirable and necessary, and particular bodies (such as the legislatures of territories) can be quite different from the ordinary executive delegates, reform ― and judicial intervention to implement it ― is constitutionally justified and necessary.

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I have mixed feelings about Professor Neudorf’s article. It addresses a real problem that deserves much more attention than it usually receives. I agree to a large extent both with the values underlying Professor Neudorf argument (notably, the empowerment of legislative institutions and the limitation of the power of the unaccountable executive) and with his specific proposals, as I shall explain. But, as noted at the outset, I think that the way in which Professor Neudorf makes his case, and indeed some aspects of his proposals, which follow from his approach to constitutional law, are deeply problematic.

Let me begin with the bad, to finish on a more positive note. Professor Neudorf’s general approach is an excellent illustration of what I recently described as “constitutionalism from the cave“:

On this view, the Canadian constitution … is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts; it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution.

Professor Neudorf refuses to attach any real consequence to the constitutional text’s apparent silence on the question of delegation; on the contrary, he chides the Gray court for having done so, declaring this an “outmoded” way of doing constitutional law. Professor Neudorf argues that, regardless of what the text says or doesn’t say, the courts should implement the ideal conception of Parliament and of its place in a democratically accountable system of government. As I explained, this amounts to a license for the courts to re-write the constitution, in defiance of its own provisions, which quite clearly do not contemplate its amendment by the judiciary.

The fact that I am sympathetic to the policy objectives that this re-writing would be designed to achieve is irrelevant; it’s illegitimate all the same. Professor Neudorf’s appeal to the so-called “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), to prove otherwise ― to show that good courts re-write constitutions to suit their policy preferences ― fails resoundingly. He faults the Supreme Court in that case for having been “disinterested [sic] in the question of the desirability of women Senators” (18) and believing that “giving meaning to the Constitution was a simple and neutral exercise in statutory interpretation”. (19) Yet Lord Sankey, whose opinion for the Judicial Committee of the Privy Council Professor Neudorf extols, similarly insisted the case did not involve “any question as to the rights of women”. (DLR 107) Lord Sankey’s opinion, as, for example, I have argued here, is a master class in statutory interpretation techniques ― not a policy judgment about the desirability of women Senators. And Professor Neudorf’s invocation of the wishes of John A. Macdonald ― odd in an article otherwise extolling living constitutionalism, but of a piece with the strategic (mis)use of original intent originalism by Canadian legal academics that co-blogger Mark Mancini described here ― is no more convincing. Macdonald was interested in the federal division of powers, not the question of delegation.

In short, I don’t think that Professor Neudorf succeeds in justifying the role he sees for the judiciary in implementing his more far-reaching proposals. A more robust judicial review of the vires of delegated legislation, including by the application of the principle of legality (which prevents the executive from trespassing on constitutional and common law rights with clear authorization by the legislature) only requires the courts to abandon their absurdly deferential, pro-regulatory posture. But it is much more difficult to make the case for the courts’ power to nullify vague delegations. (I don’t know whether this is impossible, but that’s a discussion for another time.) Professor Neudorf appeals to the doctrine developed under the Charter for determining whether a limitation of a constitutional right is “prescribed by law”. This is not satisfactory, because the courts have tended to treat even vague laws as sufficiently clear, and even more so because the Charter‘s requirements simply do not apply unless one of the rights it protects is at stake. And as for the idea that courts can order Parliament how to structure its review of regulations ― suffice it to say that it creates much greater separation of powers problems than it is likely to solve, and undermines the very autonomy and authority of Parliament as a democratic decision-making body that Professor Neudorf seeks to restore.

Behind the embrace of constitutionalism from the cave is a belief, which I think is not only misguided but also counterproductive, that supreme constitutional law must have an answer to any and all constitutional concerns. Professor Neudorf is quite right to characterize the rise of delegated legislation as a constitutional issue. But it simply does not follow that it is an issue that the courts must be able to fully address. As the experience of polities such as the United Kingdom (which Professor Neudorf cites as a model!) and New Zealand reminds us, it is possible to think intelligently about the constitution that is not supreme law at all. Indeed, these polities often pay much closer attention to the governance aspects of their constitutions than does Canada. Instead of calling on the courts to twist and stretch our supreme constitutional law, undermining their own commitment to the Rule of Law and indeed their credibility as impartial constitutional arbiters in the process, we should emulate these polities’ commitment to getting the constitution right as a matter of ordinary law and political process.

Professor Neudorf’s recommendations will, mostly, be very helpful in this regard. Greater judicial vigilance in reviewing the legality of the executive’s exercise of its delegated legislative powers is essential ― and it need not rest on dubious appeals to living tree interpretation. The principle of the Rule of Law, as developed by Canadian courts at least as far back as in Roncarelli v Duplessis, [1959] SCR 121, means that the executive’s authority, even if delegated by the legislature in ostensibly, indeed ostentatiously, broad terms, cannot be unlimited, and that the courts are not only authorized, but required to ensure that the executive doesn’t overstep the bounds of this delegation. Professor Neudorf is right to be concerned that Canadian courts are in serious danger of abdicating this responsibility. Recent decisions which he does not mention, notably West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, provide further demonstration of this point, as I argued here and here. The Supreme Court appears to see no issue what it described in West Fraser as “broad and unrestricted delegation of power”. This needs to change.

Professor Neudorf is also right to call for the development of Parliamentary procedures for the review of regulations. I wonder if the smaller number of parliamentarians in Canada in comparison with the UK might be an obstacle to copying the British system of three Select Committees devoted to the study of subordinate legislation (and the problem would, of course, be even more pressing in much smaller and unicameral provincial legislatures), but even if the UK system cannot be perfectly emulated in Canada, it seems to offer a source of inspiration if not a model for imitation.

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To repeat, it is a mistake to think that judicially enforceable supreme  law must have a solution to every constitutional problem. Yet the problem Professor Neudorf identifies is real. Precisely because supreme law may be unable to help us, it is important to get ordinary law and legislative process right. Judicial review and parliamentary procedure might be less glamorous than what Canadians usually think of as constitutional law. Yet Professor Neudorf’s article should be taken as a reminder that these are properly constitutional preoccupations, and that Canadian constitutional lawyers ought to devote more of their energies to them than to the development of exotic theories about what the ideal Canadian constitution would look like.

The Joke’s On Us

Canadians ought to care about who gets on the Supreme Court

Over the Thanksgiving weekend, the Beaverton ― Canada’s version of the Borowitz report ― ran a piece called Canadians thankful they can’t name single Canadian Supreme Court Justice. Remarkably enough, a number of lawyers in my social media feeds shared it ― with apparent approval. And of course a more reputable outlet published a rather similar story in all seriousness just a few months ago. I suppose one ought to be grateful that Canada has so far avoided the sordid spectacle of American “confirmation battles” generally, and that over the appointment of Brett Kavanaugh in particular. The ability of the Canadian governments to simply get their preferred candidates on the bench is, on the whole, a good thing. But it doesn’t follow that it is of no consequences who the judges of the Supreme Court are.

The Beaverton, parroting the national myth (aren’t they, like, suppose to make fun of things?), claims that “many Canadians were happy their court was quietly and deliberately applying the constitution”. This is, to use a technical term, bollocks. Just this year, the Supreme Court read the guarantee of free trade out of the constitution in R v Comeau, 2018 SCC 15; proclaimed, in defiance of fundamental principle, that administrative agencies can enjoy “plenary”, “unrestricted powers” in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (at [10] and [11]); and gutted religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32. This is not a court “quietly applying the constitution”; this is a court re-writing the constitution as its suits its fancy. Nor is this some sort of new development. Back in 2015, Grégoire Webber wrote that

Over the past year, the people of Canada have undertaken an important remaking of our constitution. We have given constitutional status to the Supreme Court, created a constitutional right to strike, and created a constitutional right to assisted death, among other changes. …

How have we done so? … We have … appealed to that straightforward constitutional amendment process called the Supreme Court of Canada.

Now, both in West Fraser and Trinity Western, and in some of the cases to which Professor Webber refers ― notably Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245, which “gave benediction” to the right to strike ― the Supreme Court was not unanimous in its rewriting or shredding of the constitution. There were fierce, and compelling, dissents. While no Supreme Court judge has taken a very consistent position in opposition to the Court’s majority view of its powers of constitutional amendment ― the Court was unanimous in Comeau, for instance ― some have been more forceful than others in resisting the trend. Justice Côté, in particular, has been a strong voice in favour of upholding the Rule of Law by opposing the empowerment of lawless administrative decision-makers.

And so it matters that there is only one Justice Côté on the Supreme Court; and that even with Justices Rowe and, especially, Brown, who sometimes join her in whole or in part, she is far from commanding a majority of the Court. It matters whether or not you agree with me that Justice Côté tends to be right (she isn’t always) and that most of her colleagues tend to be wrong. If you think that the majority of the Court is generally correct, and that Justice Côté and others who resist its assertions of judicial and administrative power are wrong, it also matters that there not be more Justices Côté, or even Justices Brown or Rowe. Indeed, the enthusiasts of judicial power in Canada understand this very well, which is why some were sufficiently upset when Justice Brown was appointed to the Supreme Court to demand that the Court prevent politicians from choosing judges in the future.

Smug self-satisfaction is, of course, Canada’ national disease, and self-congratulation at not being Americans is a widespread complication. Canadian lawyers are as susceptible to these things as their other compatriots. But we should know better. We should realize that Canadian judges are no more oracles than their American colleagues ― indeed, unlike some American judges, they don’t even pretend otherwise; witness Justice Abella’s repeated rejections of the Rule of Law as even an ideal to aspire to. We should understand that the Supreme Court’s relative anonymity, which it is only too happy to foster with “by the court opinions”, is part of what allows it to exercise powers with which, as even the Beaverton inadvertently suggests, many Canadians would not, in fact, be especially comfortable. If we cannot figure this out, the joke really is on us.

Quis Custodiet?

If judges are the guardians of our constitutional values, they need to be guarded too, as Chief Justice McLachlin’s example shows

There has been no shortage of panegyrics on the occasion of Beverley McLachlin’s retirement. Richard Albert‘s is particularly interesting to me, though, because it is largely based on the former Chief Justice’s extra-judicial output, mostly speeches, and I once toyed with the idea of writing a piece based on such materials myself. (Disclosure: Professor Albert and I are working on an edited collection project together.) Indeed, I have critiqued individual speeches that Chief Justice McLachlin has given on a couple of occasions (here and here).

These explanations of how the former Chief Justice saw her role are significant ― if not always informative, as I will also suggest below ― yet bound to attract less interest, and less critical attention, than her judgments. Professor Albert’s paper is thus a useful contribution to our understanding of the former Chief Justice ― even if we dissent from its tone and disagree with its assessment of its subject, as I do. This is all the more so since the papers on which Professor Albert draws are not as easily accessible as one might wish. The Supreme Court’s website offers only a selection of the former Chief Justice’s speeches (which includes neither of those I have commented on, for instance), and virtually nothing from any for her colleagues, or even her successor.

According to Professor Albert, the former Chief Justice has been a towering figure in early 21st-century Canada. Prime Ministers and Governors General came and went, but the Chief Justice remained, rising almost to the stature “of Conscience-in-Chief
that Americans have sometimes seen fulfilled by their presidents”. (7) You might think it’s a bit too much for a person who writes thrillers, not treatises, in her spare time, but Professor Albert is unrelenting in his praise:

Chief Justice McLachlin … has made Canada a better, fairer and more equal place, and our Constitution the envy of the world. She leaves an equally important legacy as an expositor and guardian of our constitutional values. (1)

As mentioned above, Professor Albert draws on the for Chief Justice’s extra-judicial pronouncements to make his case. In my view, however, the light he shines on her exposes a rather unflattering image.

The earliest speech Professor Albert describes concerned “The Role of Judges in Modern Society“. It is part of that role, the former Chief Justice said, to “be sensitive to a broad range of social concerns” and to “be in touch with the society in which [judges] work, understanding its values and its tensions” ― while at the same time “attain[ing] a level of detachment” from their personal views “which enables [them] to make decisions which are in the broader interests of society”. In another speech discussed by Professor Albert, this one on “Defining Moments: The Canadian Constitution“, Chief Justice McLachlin added that “as a nation’s values and expectations change over time, so its constitution is applied in a way that reflects those changes”.

The idea that judges must maintain a connection of some kind to “their” society is, of course, reminiscent of the discussion of the role of “social values” in l’Affaire Nadon, a.k.a.  Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 ― delivered just five weeks after the “Defining Moments” speech. In his article “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?”, Peter McCormick suggested that Chief Justice McLachlin likely wrote the majority opinion in that reference, and thanks to Professor Albert’s investigation of her extra-judicial pronouncements we arguably have additional evidence in support of this suggestion. What we lack, either in l’Affaire Nadon or in the “Defining Moments” speech, is an explanation of the mechanisms by which judges are to maintain sensitivity to social concerns or understand social values, let alone make decisions in the broader interests of society.

This is impotant. Never mind the normative question of whether deciding in the broader interests of society is in fact the judges’ job. (It’s not.) Ought implies can, and the suggestion that the judges can do these things is implausible and betrays an arrogance that is quite incompatible with maintaining “an attitude of ‘active humility'” for which Chief Justice McLachlin also called in the same speech. The matter of the “social values” that Québec judges on the Supreme Court of Canada purportedly channel is illustrative. The joint dissent by Justices Lebel, Wagner, and Gascon in the gun registry litigation, Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, referred to an alleged consensus in Québec in favour of the (now-defunct) long-gun registry ― yet as I noted here, polls showed that this consensus only existed among the media and political elite, but not among the general population.

Judicial inability to channel social values not only calls into question particular opinions, such as the majority in l’Affaire Nadon or the gun registry dissent, but undermines the foundations of the Supreme Court’s professed (though not always followed) approach to interpreting the constitution. Professor Albert, referring to the former Chief Justice’s insistence that the Canadian constitution is “applied in a way that reflects … changes” in social values, writes that

[t]his raises a telling contrast with the United States, whose revolutionary traditions have invited dramatic reorientations in law and society. Our evolutionary model would certainly not embrace Thomas Jefferson’s famous suggestion that each American generation should discard the existing constitution, break legal continuity with the prior regime, and author its own new constitution according to the values of the time. (12)

This may be true at a wholesale level ― though of course the Americans have been no more keen on Jefferson’s suggestion for constitutional replacement than Canadians, which suggests that we are not all that different from one another. But of course the idea that the constitution can be applied ― by judges ― to reflect social change even in the absence of actual amendment amounts to a discarding of constitutional provisions in detail. Legal continuity is not shattered all at once, but weakened hairline fracture by hairline fracture, one constitutional benediction at a time.

Professor Albert asks “by what means are judges to determine how and when the country’s values have changed or are in a period of evolution from old to new?” Yet having dismissed constitutional amendment as a guide due to its difficulty, he simply accepts that “[j]udges … must themselves drive the evolution of the Constitution”. (13) Professor Albert suggests that the former Chief Justice thought so too; for her “judges must be guided by society but not directed by it”. (13) Indeed, it is the judges who must help direct society towards greater justice ― and specifically towards the “just society” promised by Pierre Trudeau. Professor Albert notes that Chief Justice McLachlin referred to this slogan in a speech she gave in 2007. She returned to the subject in 2016 (both speeches, coincidentally or not, were given to the same audience, the Empire Club of Canada; I suppose they are big fans of Pierre Trudeau there). Commenting on the latter speech, I wrote that it is “quite inappropriate for a judge to take up what was, for better or for worse, a partisan slogan and try to make it into a constitutional ideal”. I worried that this gave “grist for the mill of those who already think that the Charter, and the courts that enforce it, are essentially Liberal self-entrenchment devices.” My views on this haven’t changed, and my worries are only strengthened now that I realize that theme was not a one-off.

Another theme that Professor Albert highlights is the former Chief Justice’s professed commitment to “diversity” ” in speech, thought, origin and orientation, to name a few” (18-19). In another speech Professor Albert quotes, Chief Justice McLachlin insisted that her Court “focused not on ‘seek[ing] to erase difference, nor [sought] to impose conformity’ but to make it possible for ‘each group … to maintain its distinctions'”. (21) I’m afraid that Chief Justice McLachlin’s belief in diversity of thought and in allowing groups to maintain their distinctions will be news, and not very credible news at that, to Trinity Western University, whose law school the former Chief Justice voted to allow law societies to can, lest accrediting it be seen as a stamp of approval for Trinity Western’s (discriminatory) beliefs. But then, extra-judicially saying one thing and judicially doing another one was something of a theme for the person who joined an opinion disparaging “the amorphous underlying principles of our Constitution” only months before jetting off to New Zealand to deliver a noted lecture encouraging judges to invalidate legislation for inconsistency with such principles, declared for the occasion to be tantamount to natural law. And in yet another lecture to which Professor Albert refers, Chief Justice McLachlin stressed that “the law … requires lawyers to take unpopular stands, judges to make unpopular decisions”. (20) Yet for all that she was willing to take on the Prime Minister when occasion called for it, how willing was the former Chief Justice to take a stand that would have been truly unpopular among the bien-pensant intelligentsia? Her change of heart on hate speech criminalisation ― which she opposed early in her career, but eventually accepted ―, and of course her opinion in Trinity Western, are not exactly evidence in her favour here.

Professor Albert has, it will be obvious, a very high opinion of Chief Justice McLachlin. He writes that “the key ingredient … to the success of Canada’s modern Constitution—and the reason why it is so admired abroad—has been how the Supreme Court has interpreted, elaborated and defended it”. (23) To my mind, though, his paper illustrates and explains not so much the successes as the failures of the Supreme Court and of its departing Chief: their rashness in choosing to deal in values rather than in law alone; their arrogance in disregarding legal constraints; their lack of principle and courage. If this is what other countries admire, let them. Canada deserves better.

If, like Professor Albert, I believed that judges can serve as the guardians of our constitutional values, I would not hold up Chief Justice McLachlin as the epitome of that role. But, for my part, I think we ought to heed Learned Hand’s famous warning:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.

The successes, and even the failures, of individual judges in the defence of our constitutional values are, ultimately, less significant than our own. It is our job to uphold these values, including against our public officials ― even the Chief Justice of Canada.

The NZBORA and the Noble Dream

Introducing my new paper on the whether the idea of dialogue about rights between courts and Parliament makes sense in New Zealand

Last year, I posted here about a decision of the New Zealand Court of Appeal, Attorney-General v Taylor, [2017] NZCA 215, which held that when a court found a statutory provision inconsistent with the New Zealand Bill of Rights Act 1990, it had the power to make a formal declaration to this effect, in some circumstances anyway. As I noted in that post, the Court of Appeal invoked the idea of constitutional dialogue between courts and Parliament to support its view that courts had an inherent power to make such formal declarations, despite the absence of an explicit authorization in the Bill of Rights Act. I noted, too, that I was skeptical about the usefulness of that idea in New Zealand.

I developed these initial thoughts into an article which the New Zealand Universities Law Review published over the holidays under the title “Constitutional Dialogue: The New Zealand Bill of Rights Act and the Noble Dream“. Here is the abstract:

In its recent decision affirming the courts’ power to issue “declarations of inconsistency” between legislation and the New Zealand Bill of Rights Act 1990, the Court of Appeal embraces the notion of a “constitutional dialogue” between the judiciary and Parliament regarding issues of rights. It suggests that, since both branches of government are engaged in a collaborative process of giving effect to the Bill of Rights Act’s provisions, Parliament can be expected to take the courts’ views on such matters into serious consideration.

This article questions the suitability of the notion of constitutional dialogue to New Zealand’s constitutional arrangements. The idea of dialogue, largely developed as a means to alleviate concerns about the “counter-majoritarian difficulty” that arises in jurisdictions with strong-form judicial review of legislation, cannot be usefully adopted to a system of very weak judicial review, such as the one put in place by the Bill of Rights Act. Dialogue may seem to be an attractive way of addressing what might be termed the “majoritarian malaise” caused by a sovereign Parliament’s sometimes cavalier approach to the rights of individuals and minorities. Yet meaningful dialogue cannot take place if one of the parties is entitled to ignore the other, which has no resources to impress its views upon an unwilling potential interlocutor.

As others have argued in the context of constitutional systems with strong-form judicial review, there is no need to attribute the positive connotations of the dialogue metaphor to a set of institutional interactions that is, in truth, very far from being a conversation, because the participants may neither understand nor be interested in understanding each other. Indeed, there is a danger that the embrace of the notion of dialogue will serve to obscure the reality that, the Bill of Rights Act notwithstanding, New Zealand’s constitutional framework remains one of essentially untrammelled parliamentary sovereignty, which can be, and sometimes is, abused.

Of course, a meditation on New Zealand’s peculiar form of weak judicial review may be of limited interest to most Canadian readers. If it is interest to you, however, I’d be happy to hear what you make of it. And at least my call for transparency about constitutional power dynamics is, I think, relevant beyond the shores on which I now find myself.

Still Not a Conservative

A couple of comments on Chief Justice Joyal’s Runnymede Radio podcast

Back in January, Chief Justice Glenn Joyal of the Court of Queen’s Bench of Manitoba gave a very interesting keynote address at the Canadian Constitution Foundation’s Law and Freedom conference. (A transcript is available at the website of Advocates for the Rule of Law.) Subsequently, I critiqued Chief Justice  Joyal’s argument to the effect that, in the wake of the enactment of the Canadian Charter of Rights and Freedoms, the Canadian constitutional culture changed, for the worse, because the judiciary acquired a disproportionate influence on the nation’s public life, at the expense of democratically elected institutions. I argued that although there is cause for concern about judicial self-aggrandizement, this concern should not be overstated, and need not translate into a celebration of the democratic process. In my view, Chief Justice Joyal articulated “a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada”, with the subscribers to which I might make common cause from time to time, but which I do not share.

Chief Justice Joyal elaborated on his address and very generously responded to my critique in a podcast interview with Joanna Baron, the director of the Runnymede Society (and my friend). It was an illuminating conversation, and is well worth listening to, as I have finally had a chance to do. Without re-arguing all of my differences with Chief Justice Joyal, I would like to make just a couple of points ― one about something in his position that I do not understand, and the other about what might be at the heart of much of our disagreement.

In both his Law and Freedom address and the podcast, Chief Justice Joyal repeatedly lamented the decline of “bold”, “purposive” government in Canada in the wake of the Charter’s coming into force. He is careful to note that “bold” government need not be big government. It is government acting for the community, implementing a certain political vision. But I’m afraid I have a hard time seeing what exactly this means, and in particular seeing what sorts of bold government initiatives the Charter, or even its attendant political culture in which the judiciary is both more powerful and treated with more deference than it used to be, might have thwarted. I understand that Chief Justice Joyal might be reluctant to be specific, because he might be called upon to adjudicate the constitutionality of government initiatives, bold or otherwise. But perhaps someone who agrees with him could help me out?

The one specific point that Chief Justice Joyal  does mention in the podcast is the inculcation of certain values, especially I take it in the education system. Now, the idea of inculcation of values by the government makes me quite uneasy, and it would make me uneasy even if I trusted the government to inculcate the right values and not collectivism and deference to authority. Blame it on my having been born in what was then still a totalitarian dictatorship ― or on my excessively American values, if you prefer. Whatever the cause, Chief Justice Joyal’s support for this sort of policy is one reason why, although he disclaims the “conservative” label, I do not resile from applying it to him. But regardless of whether his position on this is better than mine, I’m not sure how the Charter stands in the way of what Chief Justice Joyal has in mind. The closest encounter between it and what was arguably a governmental effort to inculcate values happened in the litigation that arose out of Québec’s “ethics and religious culture” curriculum. The Supreme Court upheld most of that curriculum, first in SL v Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 SCR 235, and then in Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, only invalidating the requirement that a Catholic school teach Catholicism from a neutral (instead of a Catholic) standpoint. Surely, that particular requirement was not the sort of bold policy the decline of which Chief Justice Joyal laments.

As for the crux of my disagreement with Chief Justice Joyal, I think it concerns our different takes on the incentives that apply to political actors on the one hand, and the courts on the other. Chief Justice Joyal charges me with inconsistency, because, while I distrust elected officials and the political process, I have more confidence in the courts. Incentives, I think, are the reason why there is, in fact, no inconsistency. Political actors have an incentive to exploit the ignorance of the voters, and their irrationality (including the voters’ fear of the unknown and distaste for non-conformity). All too often, that is how they come to and remain in power. If there are political points to be scored by attacking an unpopular minority, politicians will want to score these points ― even the comparatively decent ones. Judges are not entirely immune to the incentive towards self-aggrandizement, of course, and I have often noted as much. But they have less to gain from exploiting others’ ignorance and irrationality, and are embedded in an institutional structure that at least tries to steer their own decision-making towards rationality and, in particular, towards an equal consideration of the claims of the unpopular. As a result, I think it is possible to distrust courts less than legislatures without being inconsistent about first principles.

In any case, I am grateful to Chief Justice Joyal for his contribution to the discussion about the role of the Charter and the courts in Canada’s constitutional order ― and of course for the kindness with which he treats my own position. He has not persuaded me to adopt his position, or indeed to stop describing it as conservative (without, in case that needs to be clarified, meaning to disparage it by this description!). But I think it is entirely a good thing that this approach is being articulated in such a thoughtful, and thought-provoking, way. Whatever our individual views, we are all enriched when the discussion includes voices such as Chief Justice Joyal’s.

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 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 deliberations about 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.

Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

* * *

I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.