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.

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.

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!


Much Ado About a Living Tree

In preparation for a guest-lecture on constitutional interpretation that I am going to give in a few weeks at McGill, I just re-read the famous “Persons Case”―Edwards v. Canada (Attorney General), [1930] A.C. 124. It is remembered for its invocation of the “living tree” metaphor and for consecrating a “large and liberal” and evolving approach to constitutional interpretation as the law of the land in Canada. But the remarkable thing about it―on re-reading with this little summary in mind―is that the Privy Council’s reasoning is not really an application of these principles. It is, mostly, just an exercise in plain, old, but meticulous statutory interpretation.

The issue in dispute was whether the word “persons” in s. 24 of the Constitution Act, 1867, which enables the Governor-General to “summon qualified Persons to the Senate,” includes women as well as men―and thus, whether women are persons (for the purposes of the Canadian constitution).

Lord Sankey’s judgment begins by responding to that of the majority of the Supreme Court of Canada, which held that the word “persons” did not include women, mostly on the basis of the common law rule that women could not hold public office. Lord Sankey retorts that this rule “is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary.” After a lengthy review of the ways the common law and statutes excluded women from public office, he concludes that this hasn’t much to do with the meaning of the word “person”―the word is ambiguous, and reading it as referring to men only is the product of a “custom” and “tradition” “the reason for [which] has disappeared.”

Lord Sankey then turns to the task of interpreting this ambiguous word. It is by way of introduction to this part of his reasons that he sets out the sentences for which the case is remembered today:

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. …

Their Lordships do not conceive it to be the duty of this Board – it is certainly not their desire – to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs.

But what comes next is not an exercise in living constitutionalism, which would have consisted simply in saying that now that we’ve left barbarism behind, of course women are persons and can serve in the Senate. Indeed, remarkably enough, Lord Sankey denies that

their Lordships [are] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one, either male or female, has a right to be summoned to the Senate. The real point at issue is whether the Governor General has a right to summon women to the Senate.

His Lordship, one is rather tempted to think, protests too much.

Be that as it may, it is true that the remainder of his reasons is an exercise in dry statutory interpretation. It is something like Ravel’s Bolero, an almost-endless repetition of the same simple theme with different instruments. Just about every technique of statutory interpretation is put to work to show that the word “person” can include women as well as men. Lord Stakey invokes the plain meaning of the words “member” (of the Senate) in s. 21 of the Constitution Act and “person,” both of which can in the ordinary language refer to women. He points to the structure of the Constitution Act, noting that the qualifications which the “qualified persons” described in s. 24 must possess are described in s. 23. He refers to other statutes (having to do with naturalization and property) to show that the coherence of the law is not undermined by the interpretation which he proposes for the provision at issue. He also refers to other sections of the same Act (ss. 41 and 84), which use the term “male subject” rather than “person,” suggesting that the drafters were aware of the difference and chose their wording carefully. He appeals (implicitly) to the maxim inclusio unius est exclusio alterius in saying that the list of qualifications for being a Senator in s. 23―which does not include being male―”must be presumed” to be exhaustive. Finally, he observes that the Canadian Parliament itself has interpreted the word “person” to be gender-neutral, when it felt necessary first expressly to prohibit women from voting and then to repeal this prohibition.

It is this lengthy demonstration that does the real work in the case, not the flowery, forgive the pun, metaphor for which it is now known. This is not to reject that metaphor. I don’t think we have much of an alternative to a “living constitutionalism” approach in some cases at least. Still, I thought it ironic and worth pointing out that in the Persons Case itself is not really about living trees at all, but simply a careful reading of constitutional text and its legal context.