Comeau’s Lesson

It’s not that the courts have generally messed up Canadian federalism, still less that they should improve it

The Supreme Court’s decision in R v Comeau, 2018 SCC 15, which eviscerated section 121 of the Constitution Act, 1867 to uphold the power of the provinces to impose barriers to inter-provincial trade (so long as they are “rationally connected” to some real or made-up regulatory objective) has been sharply and almost universally criticized. Indeed, I can’t recall another decision of a court that, according to more than a few Canadian lawyers, can do virtually no wrong, that was met with such widespread disapproval. But, though I too have argued that Comeau was wrongly decided and very poorly reasoned, I would like to push back against a view expressed by some of my fellow critics, especially by Emmett Macfarlane in Maclean’s, that not only Comeau, but the broader Canadian federalism jurisprudence is fundamentally wrong.

Professor Macfarlane argues that this jurisprudence distorts “the obviously centralized constitutional design implemented in 1867”. He writes that

past courts … trampled over the written text and intent of the framers to dramatically broaden the powers of the provinces while artificially narrowing relevant federal provisions like the trade and commerce clause. … [L]ongstanding federalism jurisprudence … is … a product of judicial invention rather than a reflection of the constitutionally established powers.

Professor Macfarlane also faults the Supreme Court for “abandon[ing] its famous ‘living tree’ metaphor to treat ancient federalism precedent as inviolable.” Philippe Lagassé, paraphrasing Craig Forcese, similarly writes that “it’s hard not to notice that the [Supreme Court] is encasing Canadian institutions in amber”.

With respect, I think that these critiques are largely misguided. Canadian federalism jurisprudence is far from perfect, and I have criticized it from time to time, but it does not merit wholesale condemnation. It is important to distinguish among the multiple issues that arise under the general label of federalism. Failures to deal with some of them do not negate successes in other areas. And it is important not to lose sight of the courts’ task in enforcing a federal distribution of powers ― or, for that matter, any kind of entrenched constitutional provisions: not to make federalism great again, let alone the best it can be, but to give effect to the arrangements arrived at by political actors in the past (and susceptible of revision by political actors in the future).

One kind of issues that courts applying a federal constitution must address has to do with the interpretation of the heads of power it assigns to one or the other level of government. In Canada, these are mostly, though not exclusively, found in sections 91 and 92 of the Constitution Act, 1867, and much of the groundwork of interpreting them was done in the first decades after Confederation by the British judges sitting as the Judicial Committee of the Privy Council. It is a venerable Canadian tradition, going back to FR Scott and even earlier scholars, to attack these judges ― pausing only to fawn over them for their decision in the “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), from which the “living tree” metaphor is drawn.

For my part, however, I do not agree that they somehow distorted the Constitution Act, 1867. As Benjamin Oliphant and I explain in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, their interpretation of sections 91 and 92 was based on the public meaning of these provisions at the time of their enactment. It also took into account the most obvious, and distinctive, fact about the distribution of powers in Canada: that the powers of both orders of government are set out in the Constitution Act, 1867 (in contrast to the United States, and also Australia), and thus must be read together so that all can be given effect. The oft-heard complaint about the courts’ narrow reading of the federal “trade and commerce” power ignores  the existence of both the provincial power over “property and civil rights”, and of other federal powers, such as “banking” and “bankruptcy and insolvency”, which a broad reading of “trade and commerce” would render nugatory. Without going into more detail, I remain of the view that the interpretive part of the Canadian federalism jurisprudence is mostly, if not entirely, satisfactory. It is, moreover, a good thing, not a bad one, that the Supreme Court has resisted the temptation of re-writing these precedents in the name of the living tree; absent a showing, such as one that was made in Comeau, that they were at odds with the original public meaning of the Constitution Act, 1867, their endurance is cause for celebration.

The second type of federalism issues involves the drawing of the boundaries between the powers attributed to the two levels of government. These can overlap, even if they are interpreted in a way that accounts for the distribution and so reduces the overlay to some extent. Doctrines like federal paramountcy, inter-jurisdictional immunity, double aspect, and co-operative federalism determine, for example, whether the courts will conclude that a federal and a provincial law that are plausibly within the respective powers of the legislatures that enacted them are in conflict, and what happens if they are. The Constitution Act, 1867 bears on these questions, but only to some extent, so that the courts have mostly operated without textual guidance in this area.

Many of the rules the courts have developed are of more recent vintage than the interpretations of the heads of powers in sections 91 and 92 ― and of lesser quality. Since I started blogging (and it’s only been a little over six years), I have had occasion to denounce the Supreme Court’s paramountcy jurisprudence, as well as the uncertainty surrounding the doctrine of inter-jurisdictional immunity and the Court’s attempt to freeze it. Meanwhile, in an important recent article, Asher Honickman has criticized the Supreme Court for abandoning the textually-required exclusivity of the federal and provincial heads of power. Both Mr. Honickman’s criticisms and mine, as well as a noticeable part of the invective directed at the Supreme Court in the aftermath of Comeau, has to do with the Court’s embrace of the concept of “co-operative federalism”, which seems to be based on the idea that the more regulation there is, the better off we are. The court has sometimes tried to rein in this idea, notably in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, where it rejected Québec’s attempt to force the federal government to hand over the data from its defunct gun registry. But, as Comeau demonstrated, co-operative federalism keeps coming back to haunt its jurisprudence.

There is, I think, a third category of federalism issues ― those that have to do with the general implications of this principle, as implemented in the Constitution Act, 1867 and other constitutional provisions. It encompasses cases such as Hodge v The Queen, (1883) 9 App Cas 117Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] AC 437, to some extent the Labour Conventions Reference, [1937] AC 326, [1937] 1 DLR 673, and more recently cases concerning constitutional amendment, including the Reference re Secession of Quebec, [1998] 2 SCR 217. In various ways, these cases hold that provinces are autonomous political communities and not mere components of the Canadian whole. This conclusion is an inference from the history and text of the Constitution Act, 1867. Perhaps the inference is wrong. All I can say here in its defence is that it is not enough to point to John A. Macdonald’s hope that provinces would in due course become no more than glorified municipal governments, if not wither away. Macdonald had initially hoped for a legislative union instead of a federal one. He lost that all-important fight, and the federation created by the Constitution Act, 1867 did not reflected the vision of Macdonald alone. To be sure, a federation without economic union may have been of little use; but a federation without meaningfully autonomous provinces would have been impossible.

Balancing these two considerations is no doubt exceedingly difficult ― but, fortunately, it is usually not the courts’ job. For the most part, it is the framers of the Constitution Act, 1867 (and its amendments) who did it when they distributed powers between Parliament and the provinces. They were, on the whole, remarkably successful, though of course, that’s not to say that they got everything right, still less that what was right in 1867 is also right a century and a half later. But, right or wrong, the Constitution Act, 1867 is the law, the supreme law of Canada, and the courts must enforce it to the best of their ability ― not re-write it. As the one British judge for whom Canadian lawyers usually profess admiration, Lord Sankey LC, wrote in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58, that

[t]he process of interpretation [of the Constitution Act, 1867] as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR 65)

Thus, when they adjudicate, the courts’ task is usually to ascertain what the framers of the Constitution Act, 1867 did. They do not need to update the balance between centralization and decentralization, between union and autonomy, from case to case. Nor have they the authority to try.

The problem with Comeau is that the Supreme Court made the attempt. According to the classification I sketched out in this post, the main question in Comeau was of the first, interpretive type (albeit that it concerned a limitation on, not a grant of, legislative powers). Had the Court got the interpretation right, it would have had to deal with additional questions belonging to the second, line-drawing, category. Comeau was not a case of the third type, and the Supreme Court erred in treating it as such. One of the rare defenders of Comeau, the usually very astute Chantal Hébert, makes the same mistake in her column for The Star. In her view, the case was “a timely reminder that Constitution does not cast the provinces as junior partners of a unitary federation”. Perhaps that’s how the Supreme Court saw it, but it’s not what the legal issue was.

Yet regrettably, many of Comeau‘s critics too seem to be taking the wrong lesson from it. They want the Supreme Court to remake Canadian federalism in the name of the “living tree” or of the desire which, Andrew Potter tells us, Canadians feel for an ever closer union. To ask the Court to remake the law in this way is only to encourage further mistakes in the future. To be sure, some corrections are in order, mainly in the realm of doctrines operating at the boundary of federal and provincial jurisdictions. But they would involve, in Mr. Honickman’s words, “getting back to the constitutional division of powers” laid down in 1867 ― not updates in the service of economic policy or nation-building. If such updates are necessary, they must be carried out by politicians following the procedures provided for constitutional amendment, not judges. What Comeau teaches us is not that our federalism jurisprudence as a whole is hidebound or perverse, but that the Supreme Court should stop playing constitution-maker’s apprentice and stick to enforcing the law.

Unmaking History

In the “free the beer” case, the Supreme Court shows ― again ― that it is the spoiled child of the Constitution

When it accepted to pronounce on the constitutionality of non-tariff barriers to inter-provincial trade, the Supreme Court had a chance to make history. In R v Comeau, 2018 SCC 15, the Court chose to unmake it instead. Far from “freeing the beer” and invalidating legislation that prevents bringing booze from one province to another and other regulatory schemes built on provincial protectionism, Comeau countenances even restrictions on inter-provincial trade that would previously have been thought flatly unconstitutional. In the process, it tramples over constitutional text and history, as well as logic.

Section 121 of the Constitution Act, 1867 provides that “[a]ll Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces”. But free of what exactly? Of any and all regulation, or of just some particular kinds? In Gold Seal Ltd v Alberta (Attorney-General),  (1921) 62 SCR 424, the Supreme Court held that “free” meant “free from tariffs”. In Comeau, it was asked to revisit this holding. As the Court ― its members evaded responsibility for their (mis)judgment by attributing it to the institution, though I am looking forward to Peter McCormick or someone else exposing the true author(s) ― notes, this question is of the highest importance:

If to be “admitted free” is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast. Agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid. [3]

* * *

Before answering the interpretive question, however, the Supreme Court addresses a different one: whether the trial judge was entitled to depart from Gold Seal to hold that s. 121 applied to non-tariff barriers to inter-provincial trade. The judge had taken up the Supreme Court’s invitation, issued in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, to revisit precedent in light of newly available evidence. In Bedford and Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, which dealt with the constitutionality of the provisions of the Criminal Code relative to prostitution and assisted suicide respectively, the evidence that was held to allow lower courts to revisit Supreme Court precedent came mostly from the social sciences. In Comeau, the trial judge relied on new historical evidence about the context and original meaning of s. 121.

This, the Supreme Court insists, was not something that Bedford authorizes. Bedford “is not a general invitation to reconsider binding authority on the basis of any type of evidence”. [31; emphasis mine] What is required is a showing “the underlying social context that framed the original legal debate is profoundly altered”, [31] triggering the applicability of the Court’s “living tree” approach to the constitution. Historical evidence, which the court derides as “a description of historical information and one expert’s assessment of that information”, does not count: “a re-discovery or re-assessment of historical events is not evidence of social change”. [36]

In conversation with Maclean’s, Carissima Mathen said the Court “essentially chastised the trial judge for going beyond his authority, in terms of feeling free to disregard this older decision”. Were she less polite, prof. Mathen could have described the Supreme Court as delivering a benchslap to the trial judge, at once gratuitous and telling. Gratuitous, because this part of the Court’s reasons is, in my view, obiter dicta ― it is not part of the reasoning that’s necessary to the decision, which is based on the court’s own re-examination of the constitution and relevant precedent (including, as we’ll see, a departure from Gold Seal). Telling, because the disparagement of history is of a piece with the Court’s broader approach to the constitution, on which more below.

Embarking on its own analysis of s. 121, the Court repeats that a robust reading of this provision would call into question much existing regulation. But, it concludes, such a reading is not required. The constitutional text is “ambiguous, and falls to be interpreted on the basis of the historical, legislative and constitutional contexts”, [54] ― though it is mostly the latter that does the work in the Court’s reasons.

Historical context, in the Court’s view, is inconclusive, because different visions of what form of economic union Confederation would implement were presented by the political actors at the time (none of whom the Court actually quotes). Although it duly notes that “in drafting s. 121, [the framers of the constitution] chose the broad phrase ‘admitted free’ rather than a narrower phrase like ‘free from tariffs'”, [64] the Court insists that “[w]e do not know why they chose this broader, and arguably ambiguous, phrase”, [64] and concludes that “the historical evidence, at best, provides only limited support for the view that ‘admitted free’ in s. 121 was meant as an absolute guarantee of trade free of all barriers”. [67; emphasis in the original]

This is bizarre. Surely we can tell that, if the framers were consciously choosing between a narrower and a broader versions of a constitutional ban on barriers to trade, they chose the broader because the narrower did not capture all the barriers they meant to prohibit. As Benjamin Oliphant and I explain in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, the Supreme Court is no stranger to the “originalist inference” ― reasoning from a choice made during the framing of a constitutional text between competing proposed versions of a provision. The inference seems obvious here, but the Court avoids it. Even more remarkably, the Court also ignores the injunction in Bedford that appellate courts are not to re-assess “social and legislative evidence”, [49] including expert evidence, presented at trial. While the wisdom of this injunction is highly questionable, the Court is, admittedly not for the first time, simply ignoring relevant precedent, without bothering to either distinguish or overrule it.

The “legislative context” that the Court refers to is the placement of s. 121 in a Part of the Constitution Act, 1867 that largely deals with financial issues. The Court considers that  its other provisions “attach to commodities and function by increasing the price of goods”, suggestion that s. 121 does not “capture merely incidental impacts on demand for goods from other provinces”, rather that “direct burdens on the price of commodities”. This might be the Court’s best argument, though it may also be that, as the trial judge found, s. 121 was put where it was simply because this was as good a place as any other in the Constitution Act, 1867. Be that as it may, the Court itself does not seem to attach all that much importance to its conclusion on this point.

The heart of the Court’s reasoning is its discussion of the principle of federalism, which it finds to have two implications of particular relevance to the question of the constitutionality of barriers to inter-provincial trade. One is the exhaustiveness of distribution of powers between Parliament and the provinces. The other is the idea of a balance between the powers of the two levels of government ― and the Court’s role in maintaining that balance. As to the former, the Court insists that there must be no “constitutional hiatuses — circumstances in which no legislature could act”. [72] For any given policy ― including the imposition of barriers to inter-provincial trade ― there must be a level of government competent to enact it, alone or at least in “co-operation” with the other. As to the latter, the Court quotes F.R. Scott for the proposition that “[t]he Canadian constitution cannot be understood if it is approached with some preconceived theory of what federalism is or should be”, [82] and insists that, rather than “a particular vision of the economy that courts must apply”, federalism “posits a framework premised on jurisdictional balance that helps courts identify the range of economic mechanisms that are constitutionally acceptable”. [83]

Here, the Court contradicts both the constitution and itself. Constitutional hiatuses are not anathema to federalism. They exist: in section 96 of the Constitution Act, 1867 (which limits the powers of both Parliament and the legislatures to interfere with the independence and jurisdiction of superior courts); in sections 93(1) and (2) (which limit the provinces’ ability to interfere with minority rights in education, without allowing Parliament to do so); and, even on the Court’s restrictive reading, in s. 121 itself. And then, of course, there is the giant constitutional hiatus usually known as the Canadian Charter of Rights and Freedoms, as well as the smaller but still significant one called section 35 of the Constitution Act, 1982. As for the court’s disclaimer of authority and desire to impose a particular vision of federalism or the economy, it is simply laughable. The idea that federalism requires judicially-imposed “balance” rather than the respect of the letter of the constitution, and any conceivable form of economic regulation must be able to be implemented are precisely the sort of preconceptions that the Court pretends to banish from our constitutional law.

Oblivious to its own incoherence, the Court claims that federal balance would be undermined, and a “constitutional hiatus” created, by an overbroad interpretation of s. 121. Instead of “full economic integration” [85] or “absolute free trade”, the Court propounds what it presents as a compromise:

s. 121 … is best conceived as preventing provinces from passing laws aimed at impeding trade by setting up barriers at boundaries, while allowing them to legislate to achieve goals within their jurisdiction even where such laws may incidentally limit the passage of goods over provincial borders. [91]

The notion of impediment to trade is seemingly a broad one, extending to any provincial law that “imposes an additional cost on goods by virtue of them coming in from outside the province”, [108] or indeed bans inter-provincial importation outright. But, crucially, only laws “aimed at” creating such impediments are prohibited by s. 121, and this will be an extremely narrow category. In effect, it seems that only laws serving primarily “purposes traditionally served by tariffs, such as exploiting the passage of goods across a border solely as a way to collect funds, protecting local industry or punishing another province” will count ― and even that “depending on other factors”. [111] A law having a “rational connection” [113] to some other regulatory purpose, such as “protecting the health and welfare of the people in the province”, [112] or most any other conceivable regulatory objective, will survive. The law at issue survives because it is part of a regulatory scheme intended “to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick”. [124] Its effects on inter-provincial trade in liquor coming to New Brunswick are merely “incidental”, and constitutionally permissible.

This is wrong in many ways. As a starting point, the Court is answering the wrong question. The issue is not how s. 121 is “best conceived”, but what its purpose is, and how that purpose can be given effect. As Randy Barnett and Even Bernick write in a their essay on purposive constitutional construction (which I reviewed here),

[t]o formulate a rule with reference to the function that the relevant provision is designed to perform is not a matter of making the law “the best it can be” but giving effect to the law as best one can. A judge who decided a case on the basis of some other reason—however normatively appealing that might seem—would be departing from the law entirely. (27)

Second, the Court is wrong to claim that its approach to s. 121 is consistent with precedent. However narrowly it construed s. 121, Gold Seal at least maintained an outright prohibition on inter-provincial tariffs. Following Comeau, tariffs are fine ― provided that they are rationally connected to some regulatory scheme that can be spun to appear to be directed a public health and welfare objective. So much for stare decisis. Most importantly though, as Malcolm Lavoie points out in a CBC op-ed, the Court’s “approach practically nullifies Section 121”, because legislation primarily intended to deal or interfere with inter-provincial trade is already something that provinces cannot enact ― if anyone can, it is Parliament, under section 91(2) of the Constitution Act, 1867. (Professor Lavoie, it is worth noting, is the author of the most important article on the Comeau litigation, which the Court ignored, as it ignored all other scholarship touching on the case, as well as recent work on constitutional interpretation more broadly).

* * *

What causes the Court to re-write the Constitution Act, 1867 (while insisting that it is not making a policy decision), ignore precedent (while admonishing the trial judge for doing so), all in the name of a quest for a federal balance that it is quite different from the one the framers of the constitution struck (while denouncing the imposition of pre-conceived notions of federalism)? Emmett Macfarlane, writing for Maclean’s, denounces Comeau as “craven”, the result of “politicized timidity”. He is not wrong about this (though I think he is in his general denunciation of the federalism jurisprudence), but let me be more specific. In my view there are two (loosely related) problems with the way the Court decided Comeau: its pro-regulatory bias, and approach to constitutional interpretation.

The Court’s bias in favour of regulation appears in the introduction of both the decision as a whole (at [3], quoted above) and that of the substantive part (at [51], in similar terms). The Court is preoccupied by the fact that s. 121 might prevent the enactment of some forms of regulation. It is this, rather than the more general notion of “constitutional hiatuses” that leads it to narrow s. 121 into oblivion. As noted above, hiatuses exist, and the Court is actually quite fond of expanding them, s. 96 and the Charter especially. It is the prospect of constitutional limits on economic regulation that makes the Court suddenly desirous to ensure that Canadian legislatures can make or unmake any law whatever.

As for the Court’s interpretive method, it is implicitly, though not explicitly, living constitutionalist. In an appendix to the “Originalist Reasoning” article, Mr. Oliphant and I wrote that in Comeau the Court “be faced with a stark interpretive choice between a very strong originalist case”, which prevailed at trial, “and arguments based (perhaps paradoxically) both on stare decisis and what may be perceived as the needs, or at least the expectations, of current society”. These perceived needs are reflected in the Court’s pro-regulatory bias which causes it to impose its own vision of federalism. And doing so is all the easier if historical evidence can be treated as less significant and worthy of deference than equivalent social scientific evidence, twisted, or even ignored.

* * *

As I wrote in an essay published last year in Diritto Pubblico Comparato ed Europeo, the well-documented hefty costs of the regulatory schemes which the Supreme Court thought it so important to preserve from constitutional challenge, and the fact that this cost is, in many cases, disproportionately borne by the most economically disadvantage members of Canadian society, ought to remind us that “living constitutionalism can come at a price, not only to abstract ideals such as the Rule of Law, but also to individuals and families, including, and even especially, to the most vulnerable”. (644) To be sure, we can in theory demand that our politicians enact inter-provincial free trade even if our judges will not impose it. But this argument could be made in response to literally any constitutional claim. The raison d’être of an entrenched, judicially enforceable constitution is that the political process sometimes fails to translate just demands, and indeed even popular demands, into legislation, due to either the tyranny of self-centred majorities, or the well-organized resistance of self-interested minorities. Section 121 of the Constitution Act, 1867 was enacted in recognition of this reality. The Supreme Court presumes to update our constitution, but it lacks the wisdom of those who wrote it.

It has been said, perhaps unfairly, that Viscount Haldane was “the wicked stepfather of the Canadian Constitution“. The Supreme Court deserves to be called the Constitution’s spoiled child. This child demands that its parent conform to its demands, and throws tantrums whenever it does not. Unfortunately, too many people find this child’s petulance endearing. Perhaps Comeau will convince them that it must, at long last, be made to behave.

An Invitation

Can those who endorse “living tree” constitutional interpretation tell us why, and what it entails?

When Benjamin Oliphant and I wrote our twin articles on originalism in Canada, we did our best to avoid normative conclusions other than a call for further reflection on, and greater consistency in, constitutional interpretation. But, for me at least ― I cannot speak for my co-author, of course ―, the normative inquiry seems like a natural step to be taken soon. (We’ll see when and in what form.) And, right now, my preliminary view is that Canadian constitutional jurisprudence ought to be (more) originalist (than it is now), because the alternative, the “living tree” approach to constitutional interpretation, suffers from various problems.

But before really getting into an argument about why this is so, I probably need to understand what it is that I want to argue against better. I have no wish to attack a straw-man. And there is a greater than usual danger of doing so in debates about constitutional interpretation. As Mr. Oliphant and I have shown, originalism is often poorly understood in Canada, and only obsolete or caricatured versions of it are criticized. In part, this is as no doubt due to a lack of a good Canadian review of what originalism is, which is why we devoted a good deal of space and effort to producing one. Unfortunately, I am not sure that there is an equivalent statement of the views of the other side in this debate either.

So, I would like to ask for my readers’ help. Presumably, many of you think that the constitution ought to be understood as a “living tree”. That’s what the Supreme Court often tells us, after all, even as it not infrequently does something else altogether. It would be very helpful, in advancing the debate about constitutional interpretation, if both sides articulated their views clearly. Presumably, the “living tree” camp has had a while to form its beliefs, even if it has not had much need to explain them in recent decades. Can some of those in this camp take a stab at doing so now?

One way of going about it would be to bring into sharper focus the living constitutionalists’ objections to originalism. To do that, they might address some of the issues that Lawrence Solum describes, in a most helpful recent post on his Legal Theory Blog, as being the main ones “that divide originalists and living constitutionalists.” Here they are, reformulated as questions for living constitutionalists and adapted to the Canadian context:

1) Do you think that the linguistic meaning (communicative content) of the constitutional text changes over time after its entrenchment (say in 1867 or 1982)?

2) Do you think that the Supreme Court, Parliament, and the provincial legislatures should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?

3) Do you think that the original meaning of constitutional text is either radically indeterminate or so underdeterminate that originalism would not meaningfully constrain constitutional practice?

4) Do you think that the original meaning of our constitutional texts is epistemically inaccessible (i.e. we cannot know, or at least show that we know, what it is)?

5) Do you think that that judges are incompetent to investigate original meaning or so biased that they will be unable to act in compliance with original meaning (perhaps even if dispassionate scholars could do so)? In other words, do you think that originalist judges would simply be ideologues?

(Professor Solum asks an additional question, whether those who reject originalism want to “simply retire the Constitution as a framework of government”, but I’m pretty confident that few if any Canadian living constitutionalists do. Perhaps they have other objections to originalism though. If so, I would love to hear about those too.)

Beyond clarifying their objections to originalism, it would be great if some proponents of “living tree” constitutional interpretation clearly articulated their positive commitments or beliefs. To this end, I would like to suggest a few more questions, though I do not mean the list to be exhaustive:

6) Is updating constitutional meaning the exclusive prerogative of courts, or can other institutions (Parliament, the legislatures, the Crown) do it too? Why? If political actors can “actualize” constitutional meaning, should the courts defer to their attempts to do so?

7) When courts or other constitutional actors update constitutional meaning, what should they be taking into account? There are several possibilities: judicial precedents; popular opinion; the rules or principles expressed or implicit in non-constitutional law (perhaps especially legislation) as it stands from time to time; the judges’ own philosophical beliefs; perhaps others.

8) Are there any constraints on courts or other constitutional actors updating constitutional meaning? What are they? Are such constraints useful or indeed essential?

I am not being facetious here. When I say that these are questions to which I do not know and would like to learn the answers, I mean it. They are big questions, of course, and you might think that to answer them in an appropriately serious fashion you would need to write an article, or even a book, and have no time for that. Fair enough. Or you might make that your next project, in which case I will be looking forward to reading you whenever you are ready! But if you would like to attempt some short answers, that would be fantastic. I would be delighted to publish them, if you are ok with me doing so, or I will keep them for my own edification. It’s all up to you.

All That History

A historicist, if not quite an originalist, decision from the Supreme Court of Canada

Last week, the Supreme Court issued its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, holding that Métis and non-status Indians fall within the scope of Parliament’s legislative power over “Indians” provided for in section 91(24) of the Constitution Act, 1867. While this outcome may have significant consequences, what interests me most is the approach that Justice Abella’s opinion for a unanimous court took to constitutional interpretation. While I would hesitate to call this approach originalist, it is clearly historical, and is (almost) entirely free from the Court’s habitual paeans to “living tree” constitutionalism.

The only real question for the Court was whether the Métis were “Indians” within the meaning of section 91(24). The government conceded that non-status Indians were. “The prevailing view,” Justice Abella noted, “is that Métis are ‘Indians’ under s. 91(24).” [22] This view is consistent with the way that the term “Indians” has been used throughout Canadian history, beginning before Confederation:

Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Métis were considered “Indians” for pre-Confederation treaties such as the Robinson Treaties of 1850. Many post-Confederation statutes considered Métis to be “Indians.” [24]

Moreover, “the purpose of s. 91(24) in relation to the broader goals of Confederation” ― which was to ensure the federal government’s ability to maintain a good relationship with and control over the Aboriginal peoples, in particular those who might otherwise get in the way of its railway-building ― “also indicates that since 1867, ‘Indians’ meant all Aboriginal peoples, including Métis.” [25]

References to the use of the term “Indian” in pre-Confederation treaties and statutes enacted in the years immediately following Confederation, as well to the purposes that the head of power at issue served at Confederation, might be characteristic of originalist interpretation. However, Justice Abella then proceeds to examine the numerous instances in which governments both federal and provincial, as well as commissions of inquiry created by them, treated the Métis as included within the term “Indian,” over a period of time from 1894 to 1996 and beyond. This is no longer originalism, since the way in which the constitutional language was understood 30, or a fortiori 130 years after its enactment does not tell us much about either its original meaning or the intentions of its framers. If anything, this might justly be called living constitutionalism, were it not for the fact that this term is seldom used to describe the consistent attribution of the same meaning of a constitutional term. (I am not sure why that is the case, by the way.)

Justice Abella also noted that “while it does not define the scope of s. 91(24), it is worth noting that s. 35 of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution,” which suggests that reading section 91(24) as including the Métis makes for a more harmonious constitutional order overall. She pointed out, too, that other decisions of the Supreme Court suggest that groups other than “Indians” in a narrow sense ― notably the Inuit ― can be included in the scope of s. 91(24). It is worth observing that, as Justice Abella noted, one of these decisions ― Reference whether “Indians” includes “Eskimo”, [1939] S.C.R. 104  ― “[r]el[ied] on historical evidence to determine the meaning of ‘Indians’ in 1867.” [39]

There is one brief allusion to the “living tree” approach to constitutional interpretation which the Supreme Court usually claims to favour in Justice Abella’s reasons. Distinguishing Daniels from R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, Justice Abella quoted Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 at par. 30 for the proposition that “[t]hat case [Blais, that is] considered the interpretive question in relation to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities.” I do not think that the reference to “adaptation to new realities” does any work at all in Daniels. The balance of Justice Abella’s reasons shows that the understanding of section 91(24) has been consistent throughout its history.

Perhaps Daniels can be best understood as representing not any particular interpretive methodology, but the Supreme Court’s thoroughgoing if utterly unsystematic interpretive pluralism, of which Benjamin Oliphant and I speak in one of our recent papers. Historical, and even originalist arguments are an ineradicable part of this pluralism, but the court is not committed to them, and it can sometimes affect to dismiss them out of hand even as it uses them to great effect. Daniels is thus an important reminder that, to really understand the Court’s approach to constitutional interpretation, we must look carefully at what it does, and not just at what it says.

Originalism in Canada

A couple of papers about originalism, and a call for comments

As promised in my last post, I have something to show for my silence in the last few weeks. Benjamin Oliphant and I have been working very intensively on a study of originalism in Canadian constitutional law. In a nutshell, we argue that, contrary to popular belief, not only has the Supreme Court never really rejected originalism ― at least contemporary originalism, as opposed to the sort of originalism that existed 30 years ago or more ― as a mode of constitutional interpretation, but Canadian constitutional jurisprudence is, in reality, shot through with originalist reasoning. It is not, of course, thoroughly, much less systematically, originalist, but originalist arguments of various types appear in all manner of cases, and do so frequently enough that they cannot be dismissed as mere aberrations. We argue, therefore, that Canadian scholars and judges should stop ignoring both originalist theory and the originalist jurisprudence hiding in plain sight in the Supreme Court Reports, and start thinking about how to be more consistent and more principled in our use of originalist arguments.

The project grew as it advanced, and would have been much too long for a single article, so we ended up making two. The first paper is asks Has the Supreme Court of Canada Rejected ‘Originalism’?” Here is the abstract:

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind. Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

The second paper takes a more detailed look at “Originalist Reasoning in Canadian Constitutional Jurisprudence.” Here is the abstract:

Amongst the fundamental assumptions underlying the practice of Canadian constitutional interpretation is the belief that originalism – whether directed at the original intentions, expected applications, meaning or understanding – plays no meaningful role in discerning the meaning of constitutional provisions. This paper sets out to correct that mistaken narrative. Through a survey of historical and contemporary decisions, the authors show that various forms of originalism have played a significant role in Canadian constitutional interpretation. Its influence can be felt both with respect to the structural provisions of the constitution – those relating to the division of powers, constitutional “bargains”, and the core jurisdiction of superior courts – as well as in the context of rights protecting provisions, such as those found in the Charter and aboriginal rights in section 35. At the same time, it cannot be questioned that the Court has rejected or refused even to consult original intentions or meanings just as frequently as it has found them persuasive or even dispositive. The Court has provided little guidance as to those circumstances in which various forms of originalism, or any other forms of constitutional argument, can and should be relied upon, which has led to a troubling state of uncertainty. The authors suggest that whether or not originalist approaches to constitutional interpretation should be accepted in any given case, it is not possible (or desirable) to avoid them entirely, and conclude that Canadian constitutional practice would benefit from openly engaging with originalist ideas and how they can be most fruitfully employed.

We would love to have your comments, thoughts, suggestions, or even anathemas, as we work on getting these papers published. Let us know what you think!

 

The Mainville Hearing: Interpretive Issues

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

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

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

***

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

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

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

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

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

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

***

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

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

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

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

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

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

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

Courts, Government, and Originalism

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

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

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

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

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

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

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


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