Judicial Supremacy, Again

Another attack on judicial supremacy misses the mark

Last week, the Québec government put forward a bill that will, under cover of the Canadian Charter’s “notwithstanding clause” and its provincial analogue, declare irreligion the province’s official creed and bar a multitude of office-holders and public employees from wearing religious symbols. Just a couple of days before, over at Policy Options, Brian Bird published the latest contribution to the judicial-supremacy-bad-legislatures-good genre that has been undergoing something of a revival in Canada of late. It is, alas, no more compelling than all the others.

Mr Bird beings by asking two questions: “Is leaving this responsibility [for upholding the constitution] solely in judicial hands the best way of upholding the supreme law of a liberal democracy such as Canada? Does our Constitution even call for judicial supremacy in constitutional matters?” The first question is misdirection. No one, to my knowledge, has suggested that, since the courts are able to enforce the constitution, the other branches of government should ignore it. The answer to the second question, as I have argued here, is a resounding “yes”.

Let me start with that second question. (A fuller statement of my views on it is in the post linked to in the previous paragraph.) Mr. Bird claims that section 52(1) of the Constitution Act, 1982, which provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”, “does not identify courts as the sole or final arbiters of constitutionality. It identifies no particular branch of the state as uniquely responsible for these tasks.” That much is true: section 52(1) does not explicitly mention the courts. But that’s because it doesn’t have to.

As Mr. Bird himself helpfully explained elsewhere, section 52(1) was not an innovation in the Canadian constitutional system, but rather a replacement for the Colonial Laws Validity Act 1865, which required the courts to uphold the supremacy of imperial statutes, including what we now call the various Constitution Acts. If the framers of the Constitution Act, 1982 had wanted to deny the judiciary this authority, they would have given us some indication of the fact, instead of remaining cryptically silent. Far from doing so, the framers also sought to entrench the Supreme Court in the constitution ― or so the Supreme Court itself has told us. Why in the world would they have done that if they didn’t think that the court had a special responsibility for enforcing the constitution itself?

And there is more, as I pointed out in the post linked to above:

[T]he phrase “supreme law” (emphasis added) [in section 52(1) also suggests that, like any law, the Constitution of Canada is subject to interpretation and enforcement by the courts―not by legislatures. Granted, by 1982, the Supreme Court had conceded deference on the interpretation of some legal provisions to administrative adjudicators. But that concession was premised―wisely or not is beside the point here―on these adjudicators’ expertise, including legal expertise in their particular area of jurisdiction. I do not think that Parliament would have been understood to have such expertise.

Mr. Bird, for his part, suggests that “the Constitution’s status as the ‘supreme law’ … demands compliance with the Constitution, not a particular mechanism for enforcing compliance.” Yet the normal mechanism for enforcing compliance with law is adjudication, and even to the extent that enforcement can be delegated to non-judicial institutions (and, to repeat, these are supposedly expert institutions specialized in administering specific areas of the law) the courts retain a power of review over their work. If the 1982 framers contemplated some other mechanism for ensuring compliance with the law they were enacting, they would undoubtedly have said so. In short, in my view the original public meaning of section 52(1) ― in the context of its predecessor provision’s text and history ― clearly requires “judicial supremacy in constitutional matters”.

Coming back, then, to Mr. Bird’s first question, whether we would not be better off if all branches of government, and not just the courts, were engaged in upholding the constitution, one can only say, “of course we would”. Mr. Bird does not identify anyone who might disagree but, for the record, I support his view that “[l]egislatures should repeal unconstitutional laws”. I have misgivings about Mr. Bird’s suggestion that “the executive should not enforce” laws it deems unconstitutional, partly for positive law reasons co-blogger Mark Mancini raises in his latest post, and partly for philosophical reasons I refer to here. But the point is a difficult one, and Mr. Bird may well be right. And of course both legislatures and the executives, so far as the law allows, are free to, and should, do more to uphold the constitution than the courts will let them get away with.

The real question, however, is not whether it would be desirable for Canadian legislatures and executives to endeavour to enforce the constitution, but whether they are at all likely to do so. The answer, sadly, is that they are not. While it is true, Mr. Bird notes, that “[g]overnment lawyers frequently give opinions on the constitutionality of proposed legislation [and] [i]n some cases … have a statutory duty to do so”, the standard they apply for concluding that proposed legislation is constitutional is ridiculously low. (It is close, in effect, to a puke test, or to asking whether a colleague defending the statute would be laughed out of court.) And, as I have noted here, when politicians are required to make their own constitutional judgments (in areas that are not justiciable), they “take the constitution no more seriously than when they act under adult judicial supervision. Actually, they do not care about it at all.”

This is not a uniquely Canadian affliction, of course. In New Zealand, successive Attorneys-General have applied a higher standard than their Canadian colleagues to concluding that a proposed enactment would infringe the Bill of Rights Act 1990, but their not infrequent reports to this effect have largely been ignored by Parliament. And even when the courts have pointed out inconsistencies between ordinary legislation and the Bill of Rights Act, contrary to Mr. Bird optimistic prediction, these indications have not “influence[d] the deliberations of governments and … foster[ed] dialogue between branches of the state on constitutional issues”. Legislation flatly contrary to the Bill of Rights Act remains on the books unaltered.

The attack on judicial supremacy and attempts to discredit the judiciary as constitutional enforcer tend, ultimately, to be based on unwarranted optimism about the interest of the “political branches” for the constitution. In my view, there is little cause for such hopefulness. It is true that jurisdictions with judicially enforceable constitutions, such as New Zealand, may remain fairly free ― though it is also true that New Zealand is vulnerable to illiberal policy shifts against some of which a supreme constitution might offer a modicum of protection. But there is nothing to be gained, and likely something to be lost, by giving up on judicial enforcement of supreme constitutional law.

The revival of arguments in favour of this option, coinciding as it does with a shameless political trampling on constitutional constraints and rights illustrated by Québec’s anti-religious legislation, is puzzling and counter-productive. The courts, of course, are very far from perfect in their capacity as constitutional enforcers. But we should be insisting that they become better at this job, not suggesting that they might as give it up.

Textual Judicial Supremacy

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

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

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

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

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

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

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

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

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

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