When Dicey Smiles

The Supreme Court upholds immigration detainees’ right to habeas corpus

Earlier this month, the Supreme Court delivered its decision in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29, which dealt with the availability of habeas corpus to control the constitutionality of a person’s continued detention by Canadian immigration authorities. More precisely the issue was whether the detention review scheme set up by the Immigration and Refugee Protection Act (IRPA) and regulations made under it was ” is as broad and advantageous ” [5] to the detainee than a habeas corpus application. By a 6-1 majority, the Court held that although the IRPA (concededly) provide an adequate review scheme for challenges based on immigration law issues, it did not do so for those aimed at the unconstitutionality of the “length, conditions and uncertain duration” of immigration detention.


Justice Karakatsanis writes for the majority (the Chief Justice and Justices Moldaver, Gascon, Côté, and Brown). She begins by pointing out that habeas corpus, an ancient common law recourse, has long been the law’s principal remedy for controlling the legality of a person’s detention. Despite its antiquity, “[h]abeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape”. [20] Access to it is a constitutional right, and cannot be denied unless legislation has put in place a full alternative meeting the “as broad advantageous” test. The system of appeal in criminal cases is one example of such an alternative; the system of judicial review of the merits of immigration decisions leading to detention is another. Indeed, the Court had, in the past, made an obiter suggestion that review procedures under the IRPA replaced habeas corpus, but Justice Karakatsanis finds that they were “never intended to preclude habeas corpus review of every detention arising in the immigration context”. [31]

The question is whether the IRPA procedures are sufficient with respect to the particular type of claim raised by an applicant. In this case, the applicant “challenged the length, uncertain duration and conditions of his detention”. [57] The regulations made under the IRPA instruct the Immigration Division of the Immigration and Refugee Board, which is required to regularly review all immigration detentions, to take the length and expected duration of detention into account but, Justice Karakatsanis finds, they still fall short of providing a substitute habeas corpus review. For one thing, they place the onus on the detainee to justify release, rather than on the government to justify detention. Moreover, “[i]n practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances”. [62] Because judicial review in the Federal Court must focus on an individual decision on a periodic review, it may fail to address the previous decisions that form the basis of the one under review. Besides, it appears that judicial review never results in an order of release but, at most, in the matter being remitted to the Immigration Division for a re-determination. Finally, habeas corpus proceedings are likely to be much more prompt than a judicial review. Meanwhile, detention conditions are simply not among the grounds the Immigration Division is required to consider when deciding whether to continue detaining a person. This too is in contrast to habeas corpus review, where the court can look into all aspects of an ongoing detention.

Justice Abella dissents. In her view, the liberty interests of immigration detainees can and must be protected by a proper interpretation and application of the IRPA and its regulations. She is concerned that the majority’s decision will, in practice nullify the detention review scheme set up by the IRPA, as detainees turn to habeas corpus instead. “It is far more consistent with the purposes of the scheme”, Justice Abella insists, “to breathe the fullest possible remedial life into the” IRPA. [74] Jutice Abella emphasizes the obligation of administrative decision-makers under the IRPA “to exercise their discretion in accordance with the Charter“, [91] as well as the need to interpret the IRPA in way that maximizes constitutional protections. As a result, she rejects what she sees as the applicant’s “attempt[] to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon”. [142]

Specifically, Justice Abella disagrees with the majority, as well as with a number of lower-court decisions on issues such as where the onus lies in proceedings before the Immigration Division, whether these proceedings can rely on prior decisions as the basis of the case for ongoing detention, and the possibility of review of detention conditions. She argues for “[i]mporting Charter principles into the exercise of administrative discretion under IRPA“, [129] which translates into “an obligation to weigh the purposes served by immigration detention against the detained individual’s … Charter rights”. [130] Conditions of detention, as well as its length, can be part of this analysis, by means of reading them into a consideration of “alternatives to detention”, which is required by the regulations. Provided that the administrative decision-makers act consistently with the relevant Charter values, the IRPA scheme will be as effective in securing liberty as habeas corpus review.


The majority is right. Adopting Justice Abella’s approach would have requires the courts to ignore the way in which the IRPA scheme has been applied by the administrative decision-makers, to expect these decision-makers to suddenly discover a commitment to the Charter of which they have so far shown little evidence, and to also to re-write the applicable regulations. Her approach rests, moreover, on the fiction that administrative decision-makers ― in this case, members of the Immigration Division, which she describes as “an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters” ― are no different from superior court judges when it comes to upholding the constitution. Yet they are nothing more than civil servants, neither independent in any real way nor required to be legally qualified, and the conceit that they understand and can uphold the constitution as well as judges is nothing more than another instance of post-truth jurisprudence in Canadian administrative law. Of course, this is not true of the judges of the Federal Court, who may review the Immigration Division’s detention decisions, but since this review is supposed to be deferential, it is not clear how much protection it can really offer.

Despite Justice Abella’s protestations to the contrary, it is difficult to avoid the impression that, for her, the supposed integrity of an administrative scheme is more important than “assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty”. [72] She seems more preoccupied by likelihood of detainees bypassing the Immigration Division than by the established practice of the Immigration Division failing to give effect to their constitutional rights. Justice Abella’s lack of attention to the evidence of actual practice discussed by the majority and cheerful insistence that everything can be made right by high-minded exhortation are of a piece with her majority opinion in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909, which I discussed here, and they are no more justified now than they were then. As for Justice Abella’s suggestion that the applicable regulations can be effectively re-written in the name of upholding Charter values, it is certainly consistent with her professed rejection of the Rule of Law. But the “rule of justice”, which Justice Abella would like to see prevail, is unlikely to come about from the empowering of administrative decision-makers at the expense of independent courts.

Chhina nicely illustrates a point that this blog has taken up quite a few times. As I put it here,

there is much more to the administrative state economic than labour boards or arbitrators … People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law.

Or, as co-blogger Mark Mancini wrote more recently, “in the 21st century, administrative agencies are armed with the most repressive powers of the state”. The administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them. Justice Abella, in her naïve faith in the administrative state, is oblivious to its frequently oppressive reality.

Here is a question, by the way: what about Justice Karakatsanis? Nobody would have suspected her, I believe, of being a secret anti-administrativist. She joined Justice Abella’s Kanthasamy opinion, for instance and, more strikingly, was the author of the majority opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, for whose insistence that administrative decision-makers are experts, no matter their real qualifications, I had originally come up with the “post-truth jurisprudence” label . But there is another tendency in Justice Karakatsanis’ opinions, notably her dissents in R v Fearon, 2014 SCC 77, [2014] 3 SCR 621 and R v Saeed, 2016 SCC 24, [2016] 1 SCR 518: a distrust of Supreme Court reminders to law enforcement about the importance of constitutional rights as means to secure these rights effectively. In Chhina, this distrust seems to have proved sufficiently strong to overcome Justice Karakatsanis’ normal faith in the administrative state.


Be that as it may, Justice Karakatsanis and a strong majority of the Supreme Court uphold the traditional remedy of habeas corpus, and of the independent courts as the dispensers of this remedy, as opposed to the second-rate ersatz purveyed by the administrative state. Justice Karakatsanis probably does not think of it in this way, but her decision also vindicates the thinking of that great bogeyman of progressive pro-administrativsts, A.V. Dicey. Contrasting the position of “countries possessing a constitution formed by a deliberate act of legislation” with that of the United Kingdom, Dicey wrote that in the former

you may say with truth that the rights of individuals to personal liberty flow from or are secured by the constitution. In England the right to individual liberty is part of the constitution, because it is secured by the decisions of the Courts, extended or confirmed as they are by the Habeas Corpus Acts. (117)

He emphasized the importance of “that inseparable connection between the means of enforcing a right and the right to be enforced” (118) ― well established, he argued, in the United Kingdom, but often neglected by “foreign constitutionalists”. For this reasons, although “[t]he Habeas Corpus Acts dedared no principle and define no rights … they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”. (118) Such articles are only valuable if they are joined with “skill in providing means for giving legal security to the rights declared”. (118) Dicey would, I would like to think, be satisfied with the skill shown by the Supreme Court here.

NOTE: My friend Pierre Gemson (along with our fellow McGillian Ewa Krajewska) represented the Canadian Civil Liberties Association, which intervened in the case. Well done!

Sentencing Judgment Found Inside a Chinese Fortune Cookie

The sentencing judgment in the Québec City mosque shooter’s case is badly flawed

This post is co-written with Maxime St-Hilaire

The sentence imposed on the accused in R v Bissonnette, 2019 QCCS 354 for murdering six worshippers at a Quebec City mosque, and injuring, in many cases grievously, multiple others is striking: life imprisonment, as for all murderers, and no possibility of parole for 40 years. This is one of the longest periods of parole ineligibility in Canadian history, and thus one of the heaviest sentences imposed since the abolition of the death penalty. Yet equally striking, and in our view insufficiently discussed (in English anyway), is the reasoning of the Québec Superior Court judge who imposed this sentence―and re-wrote the Criminal Code in order to do so.

At the heart of the decision is section 745.51 of the Criminal Code, which since 2011 has authorized―but not required―judges to stack parole ineligibility periods for persons convicted of multiple murders. The Crown invoked it and asked for Mr. Bissonnette to be subject to six consecutive 25-year periods, thus theoretically making him eligible for parole after 150 years. The defence argued that such stacking would be unconstitutional, and that Mr. Bissonnette’s periods parole ineligibility should run concurrently, as they would have before 2011, potentially making him eligible for release in 25 years.

Having reviewed the harrowing facts, Justice Huot takes the view that neither of these positions is just. On the one hand, courts ought not to “sink into excess by imposing punishment that impresses the media but is, all told, of little real significance”. [758; translation ours here and throughout] On the other, “the needs for denunciation, deterrence, and incapacitation are so pressing in this case that the imposition of six concurrent ineligibility periods would bring the administration of justice into disrepute”. [766] According to Justice Huot, justice requires that Mr. Bissonnette be ineligible for parole for more than 25 years―but less than 50. Yet section 745.51 dictates that if ineligibility periods for those guilty of multiple first-degree murders are going to be stacked, they must be stacked in full; that is to say, by increments of 25 years (the mandatory period for one such murder), on the premise that the lives of all victims are of equal value.

However, Justice Huot finds that section 745.51 is unconstitutional. In his view, it is a violation of the constitutional protections against cruel and unusual punishment (section 12 of the Canadian Charter of Rights and Freedoms) and against deprivations of liberty and security of the person not in accordance with principles of fundamental justice (section 7 of the Charter). And having so found, Justice Huot takes it upon himself “to modify … existing law” [1173] to grant himself the power to sentence Mr. Bissonnette in the exact way he thinks just.

We think that Justice Huot’s conclusions on section 12, section 7, and the remedy are all fatally flawed. His opinion is, moreover, petty (to the point, as we suggest below, of possible illegality), and lacking in rigour (even misspelling Chief Justice McLachlin’s name on a couple of a occasions). For all its prodigious length and academic, even literary, pretension, the judgment is a failure of scholarship as well as of judicial craft. We cannot comprehensively summarize Justice Huot’s reasons here, but will try to highlight their most significant defects.


Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. Justice Huot argues that

it would be disproportionate, cruel, and contrary to Canadian society’s values of justice and compassion to deny an individual who has, since his teenage years, suffered from mental health problems all hope of gaining his freedom back, if only for a few years, regardless of how abominable his crimes were. Canada is not a land where the most undesirable elements of the community are shut in a gaol and their very existence forgotten, the key of their liberty having been thrown into the river of a vast collective indifference. [845]

Of course, section 745.51 didn’t require Justice Huot to impose what he regards as a cruel sentence. It says that parole ineligibility periods can be stacked―not that they must be. Like many if not most provisions of the Criminal Code, it made possible the imposition of a maximum sentence that the judge considers excessive in the circumstances of a particular case. That, by itself, should be no reason to hold it to be contrary to the Charter.

The idea that it is cruel to, in effect, sentence a person to die in prison is also perplexing. For Justice Huot, it is nothing short of “sophistry to assert that [multiple murders] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars, any endeavours at rehabilitation notwithstanding”. [975] Indeed, he asserts that “Canadians would consider as ‘odious and intolerable’ any sentence denying the accused a reasonable chance at conditional release in the last years of his life”. [982] Yet depending on the offender’s age, a fit and just sentence, even for a lesser crime than a hate-driven massacre, may have such a consequence. Does it, for that reason, become unconstitutionally cruel? As for Canadians, a clear majority of them apparently thought the actual death penalty “morally right” just a few years ago. To be clear, this isn’t to say that this majority is itself right. But Justice Huot has no way of knowing that popular opinion has changed. He is, we are afraid, simply making things up.

Indeed, it is difficult to avoid the impression that Justice Huot’s reason for invalidating section 745.51 have to do not so much with the risk of cruelty to the man before him, but with what he regards as “the credibility of the justice system”. [846] Justice Huot is adamant that “a simple period of 25 years of parole ineligibility of 25 years would be utterly unreasonable and disproportionate in the circumstances”. [880] That may be the case (though Parliaments from the 1970s to 2011 had not thought so), but a disproportionately lenient sentence, unlike an excessively harsh one, is not a constitutional violation. The constitution protects individuals from excessive punishment by the state, not society against insufficiently punished offenders. Justice Huot argues that it is imperative “that Parliament leave sufficient discretionary powers to the courts for them to impose on offenders sentences that” [846] will be just in all the circumstances. But, while this this argument may be sound policy, it has nothing to do with preventing cruel and unusual punishments.


Things do not get better as Justice Huot moves on to discussing section 7 of the Charter, which provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. There is little question that, by allowing the imposition of addition parole ineligibility, section 745.51 implicates the right to liberty. But is it also not in accordance with the principles of fundamental justice?

Justice Huot thinks so. Indeed, he identifies three such principles that he thinks are being infringed. The first one is the prohibition on overbreadth. Section 745.51 is overbroad, says Justice Huot, because it makes it possible for a judge to impose a 50- or 75-year parole ineligibility period on a multiple murderer who would, all things considered, only deserve 30 or 40. Again, Justice Huot insists that not imposing an excessive ineligibility period in such cases is no solution, because “it is simply unrealistic to believe that sentences of 25, 50, or 75 years of ineligibility will always be proportional”. [1051]

Second, Justice Huot says that section 745.51 infringes the prohibition on gross disproportionality, as do all punishments found to be cruel and unusual.

And, not content with these findings, Justice Huot goes on to hold that section 745.51 infringes a third principle of fundamental justice: human dignity. Now human dignity has never been recognized (or, to be fair, rejected) as a principle of fundamental justice for the purposes of section 7 of the Charter. This is no problem for Justice Huot, who breezes through the test for recognizing a new such principle. Dignity, he says, is a legal principle, because it has been recognized as a value underlying the Charter and received “express mentions in the Canadian Bill of Rights and in international agreements”. [1098] Similarly, it is the subject of a broad consensus. And as for whether respect for human dignity is a sufficiently specific criterion to assess infringements of the rights protected by section 7, Justice Huot dismisses the question in a couple of sentences: “Human dignity is a well-known legal principle. It characterizes human beings ‘in their universality’. This concept is sufficiently precise to be considered a ‘manageable standard’.” [721; references omitted].

Justice Huot’s reasoning on overbreadth is dubious, to say the least. Overbreadth more naturally describes the prohibition of conduct that should not be prohibited (because it is unrelated to the prohibition’s purpose) than to excessive punishment, which should be treated under the rubric of gross disproportionality. Moreover, his findings on both of these principles disregard the fact that the issue, under section 7 of the Charter, is whether section 745.51 may force a sentencing judge to deprive an offender of liberty contrary to fundamental justice―not whether it may prevent the judge from imposing a sentence that is exactly proportional to the crime.

But it is the casual recognition of human dignity as a principle of fundamental justice that’s most astonishing. Put to one side the question of whether an underlying or preambular value is properly characterized as a legal principle. Recall, simply, that the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up―recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] Justice Huot, of course, ignores this. To him, the cryptic reference to human universality is guidance enough.    

Needless to say, Justice Huot’s entire section 7 discussion is an obiter, since he has already found section 745.51 a violation of section 12 of the Charter; the discussion of human dignity, doubly so, since he already finds a section 7 infringement on account of overbreadth. A prudent judge would not venture into uncharted and choppy jurisprudential waters without the need to do so. Justice Huot, however, is not such a judge.


Having (unsurprisingly) found that there is no justification under section 1 of the Charter for what he considers cruel and unusual punishment and a violation of principles of fundamental justice (and made along the way some remarkable comments, to which we shall return), Justice Huot turns to the question of the remedy. This is probably the most astonishing part of his judgment. Without having been asked to do so by either party, and without having given them the opportunity to at least make submissions on the matter, Justice Huot decides not to just invalidate section 745.51 but to re-write it so as to grant judges―starting, of course, with himself―the discretionary power to craft what they see as appropriate sentences with parole ineligibility periods of more than 25 but less than 50 years.

In the section 1 part of his reasons, Justice Huot notes that this very possibility was debated and rejected by Parliament. But he does not think that there is anything wrong with him writing a law that Parliament did not want. Democracy, he says, is not just majority rule: “It implies a legal framework that, like the Charter, protects the rights and liberties of citizens. Hence judicial review must be seen as democracy’s faithful ally. … When they intervene in the name of the Charter, judges do not act against democracy, but in conformity with it.” [1169] Moreover, having rejected Blackstone’s declaratory theory, “our common law tradition favours progressive amendment that support the adaptation of existing legal rules to new views and practices”. [1176] The re-writing of section 745.51 is, all in all, an obvious thing to do, and there is no need to go back to Parliament for its views on the matter.

This is a power grab. Justice Huot claims, in effect, that democracy and a “modern” conception of the common law allow judges to re-write statutes, so long as they do so “in the name of the Charter”. But while judicial review may be consistent with democracy (though certainly not “implied” by it―unless Justice Huot thinks that, for example, Australia and New Zealand, both of which lack strong-form rights-based judicial review, are not democratic countries, and that Canada was not one until 1982), it simply does not follow that democracy justifies whatever a court engaged in judicial review might do. As for the common law, whatever its exact nature (and there is much more to be said for the declaratory theory than Justice Huot is aware of), it provides no authority for judges to re-write legislation, as opposed to developing judicially-articulated legal rules. Besides, Justice Huot’s re-writing of section 745.51 has nothing to do with accommodating “new views and practices”; it simply imposes a view that Parliament considered and rejected.

Now, there is a debate to be had about the appropriate judicial role in the face of unconstitutionally underinclusive legislation. It is at least arguable that courts can (sometimes) remedy underinclusion by making an obvious addition to the statute. But, to repeat, Justice Huot is not here dealing with an underinclusive provision. There is nothing unconstitutional, though there is arguably something unjust, about not imposing longer parole ineligibility terms on those guilty of multiple murders than single ones. Justice Huot’s job was to remedy what he, rightly or wrongly, saw as unconstitutionality―not to rectify injustice. He did what he wanted to do, not what he was appointed to do.


Beyond these specific mistakes, the overall tone of Justice Huot’s reasons deserves some comment. Justice Huot starts off with a reverse bench-slap directed at the Supreme Court and its decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 (is that a reverse bench-slap per saltum?), snidely commenting that “in these times when the abrogation of judicial delays seems to have been exalted to the rank of a cardinal virtue, it is not superfluous to recall that the very idea of ‘justice’ fits poorly with the clamour and the zeitgeist”. [7] He dishes it out to the American legal system for its reliance on life imprisonment without parole and insists that “Canada remains a country proud of its origins and attached to the preservation of its moral, social, and legal values, which differ in many ways from those of other jurisdictions”. [978] But whatever his pride in the Canadian legal system, Justice Huot doesn’t seem to think very highly of his colleagues who, unlike him, have seen it fit to impose consecutive parole ineligibility on multiple first-degree murderers. The accusation of sophistry, referred to above, is levelled at one of them. More generally, Justice Huot’s insistence that the discretionary power not to stack ineligibility periods, which section 745.51 maintains, is not enough to make it constitutional seems to result from his desire to prevent other judges from imposing sentences that he considers unjust, even though they do not.

Most remarkable, however, is Justice Huot’s attitude towards Parliament. It is not just that, as explained above, he deliberately re-writes the law he has found unconstitutional in a manner that was specifically put before, and rejected by, the legislature. More than that, he comments on what various members of Parliament said in the course of this debate, in a manner that sits uneasily, to put it mildly, with article 9 of the Bill of Rights, 1688, which provides “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This is usually known as the foundation of the rule that what is said in Parliament cannot be made subject to criminal or civil liability, but Article 9 has broader separation of powers implications too. As the New Zealand court of Appeal put it in Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24, “courts scrupulously avoid” “consider[ing] questions of adequacy, accuracy or propriety in the proceedings of Parliament”. [124] Canadian courts, it is fair to say, have long been less scrupulous than they might be about this. Still, Justice Huot’s play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings are quite beyond the pale.

And in addition to denigrating others, Justice Huot devotes a rather unseemly amount of energy to puffing himself up. He discusses and critiques Kant and Bentham, Beccaria and Blackstone―the latter based entirely on secondary sources―and misses no opportunity to wax eloquent. When the Crown points him to cases where his colleagues imposed consecutive ineligibility periods, he retorts that “such a mathematical reasoning can only lead us to the bounds of immoderation, or even a litany of jurisprudential precedents each as aberrant as the next in their repudiation of the most elementary rules of logic”. [640] The prospect of an offender never being able to seek parole is tantamount to “exile … in a prison environment, outside any civilized society”. [1073] But perhaps the best (if that’s the word) such passage comes, predictably, when Justice Huot discusses human dignity, and informs us that

In a foreseeable future, courts will have to confront especially sensitive questions, such as euthanasia, medical assistance in dying, genetic manipulations, and other bioethical questions. Science progresses at meteoric speed and ceaselessly presents new challenges to philosophers, legislators, and lawyers. Any analysis requiring reflection on the essence of human beings and their rights to life, liberty and security inevitably requires taking into account their dignity, lest it dehumanize them. [1100]

This is reminiscent of the notorious musings of Justice Kennedy, another human dignity devotee, on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. But Justice Huot’s reasons, which begin with a supposed Confucius quotation as an epigraph, bring to mind notorious line from a US Supreme Court’s decision―Justice Scalia’s quip about “the mystical aphorisms of the fortune cookie”.

McCaw: Declarations of Invalidity in the ONSC

Can one ONSC judge bind another?

In R v McCaw, 2018 ONSC 3464, the Ontario Superior Court decided that constitutional declarations of invalidity are binding on other judges of the Ontario Superior Court. The case concerned s.33.1 of the Criminal Code, under which Parliament narrowed the common law defence of extreme intoxication set out in  Daviault, denying it in general intent casesIn McCaw, the Court was faced with conflicting authority: previous Ontario Superior Court decisions declared that s.33.1 of the Criminal Code infringed ss.7 and 11(d) of the Charter, and that the infringement could not be saved by s.1. But these previous cases had all considered the issue anew, rather than considering it finally decided. McCaw centred on the effect of these previous cases: was s.33.1 unconstitutional for the purposes of this case? The court said yes, considering itself bound.

I do not propose to get into the facts of the case or any criminal law substance, except for the specific remedies question of one superior court judge binding another through a constitutional declaration of invalidity (inspired by discussions on Twitter!) Putting aside whether the Supreme Court’s remedies doctrine is sound, McCaw represents a faithful application of it, particularly the Court’s strong-form interpretation of s.52 of the Constitution Act, 1982. Section 52 has been  interpreted to provide the courts power to issue declarations of invalidity, but textually provides that laws are of no force or effect to the extent of their inconsistency with the Constitution.

First, the McCaw court’s holding that it was bound by the previous ONSC authority on point is consistent with the operation of constitutional remedies—particularly declarations of invalidity. In Hislop, the Supreme Court confirmed that in most cases, courts granting constitutional declarations are operating in a “Blackstonian paradigm” (on this, see Dan Guttmann’s illuminating article). In the ordinary course, courts seek to resolve past wrongs. A typical case involves Party A claiming against Party B for Event C, which occurred in the past. A court discovers the law that applied to that past event. In the constitutional context, the Blackstonian paradigm essentially tells us that a law declared unconstitutional by a court was always unconstitutional, from the time of its enactment (Hislop, at para 83). And the Supreme Court confirmed this idea: a judicial declaration does not cause a legislative provision to be unconstitutional—rather, s.52(1) as a remedial authority dictates what is and isn’t constitutional (see Martin, at para 28). The judicial declaration is simply a recognition that s.52 always regarded the impugned provision as unconstitutional. This has particular effect in benefits cases, where claimants previously denied can claim retroactively.

At the same time, a declaration of invalidity also operates prospectively (Hislop, at para 82). For obvious reasons, the government cannot pursue causes of action under an unconstitutional statute after the judicial recognition that the statute is unconstitutional; nor can a court (itself subject to law) deny a defence to a claimant if it is unconstitutional to do so. So, if what the Supreme Court says is true, once a statute is recognized as unconstitutional, it is systemically unlawful reaching backwards and forwards. After the declaration, subsequent courts dealing with causes of action arising before or after the declaration are bound by s.52, which now views the provision as unconstitutional.

The timing question is central. If s.33.1 was always unconstitutional, and continues to be, a later judge dealing with a case is bound temporally. If a cause of action arose before the declaration (but the case is heard after), a claimant should have access to the common law defence (to the extent s.33.1 abridges it). If a cause of action arose after the declaration, the claimant should also have access to the defence because the declaration applies s.52 prospectively. Section 52 therefore has independent meaning.

I’m alive to the criticism: isn’t it wrong for one s.96 judge to bind another (or the hundreds of other) s.96 judges? In some specific remedial situations, this is true. But in those situations, we are talking only about the typical Party A vs Party B case, where the validity of a law is not impugned. Accordingly, the only remedy sought is personal. But if we are talking about the specific context of s.52, things are more complicated because of a second feature of s.52—its systemic application with virtually no exceptions, as opposed to personal remedies under s.24(1) of the Charter. This is a strong distinction drawn by the Supreme Court. As it confirmed in Martin, the unconstitutionality of a law is dealt with by s.52(1) independently. Section 52(1) confers no discretion on judges, and once a judge declares a law unconstitutional, s.52 operates to effectively remove it from the statute books completely (Ferguson, at para 65). If we accept this authority, we should view the McCaw problem not as one judge binding another judge in a typical horizontal stare decisis sense (or even a weaker judicial comity sense), but s.52 itself binding other judges. This is perfectly consistent with the hierarchy of laws, under which the Constitution binds all state actors. If this is true, one judge cannot later get out of the declaration of invalidity by simply reasoning around it. Similarly, the remedy for the Crown is to appeal the declaration, not collaterally attack it in a later proceeding.

Take the counterfactual and think about it in the context of the Supreme Court’s doctrine. If a subsequent Ontario Superior Court judge could conclude that s.33.1 is constitutional, even if a previous judge found it unconstitutional, the principle that no one should be subject to unconstitutional laws could be abridged. A subsequent judge could, in effect, conclude that a law is constitutional on certain facts—even though it has been previously found unconstitutional. But this is directly contrary to the Supreme Court’s own authority, which holds that a law rendered unconstitutional by s.52 is just that: unconstitutional. It cannot be patched up later on a case-by-case basis, and it is sufficient for the law to have an unconstitutional effect on one person to be unconstitutional in law (particularly under s.7). Put differently, if a law is unconstitutional in one regard, it is unconstitutional in all regards, past and present (subject to specific doctrines such as qualified immunity). The fortune or misfortune of drawing a later case and a later judge is, unfortunately, not sufficient to oust s.52.

There is room to criticize this strong-form interpretation of s.52. I don’t know if it necessary follows from the text of s.52 that a law unconstitutional in one regard is unconstitutional in all regards–for example, that we cannot have meaningful
“as-applied” remedies, as the Americans do. Section 52 simply says that unconstitutional laws are invalid to the extent of their inconsistency with the Constitution. Here, in the interstices of “extent of inconsistency,” is where the debate occurs. This phraseology justifies our understandings of remedies like severance and reading-in, but these are statutory remedies that apply to all persons equally. It seems to be a different order of business altogether for Judge B to disregard Judge A’s (operating in the same court) finding of unconstitutionality, unless we want to change what we mean by an “unconstitutional” law. Could it be that a law is unconstitutional to one person and not another?

There are many open questions here, some of which I hope are addressed by the Court of Appeal for Ontario. But all this to say, I do not see McCaw as flatly wrong on the current understanding of constitutional remedies.

Dreaming of Dialogue

Can New Zealand courts declare statutes to be inconsistent with the Bill of Rights Act? Does this matter?

Canadians have long been used to the idea that, as the Supreme Court put it in Re Manitoba Language Rights, [1985] 1 SCR 721, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution.” (745) In New Zealand, things are very different of course, because the constitution is not entrenched. Parliamentary sovereignty prevails, and the courts’ role is limited accordingly. Although there is a statutory bill of rights, the New Zealand Bill of Rights Act 1990, it specifically provides that courts cannot invalidate or otherwise refuse to apply legislation that is inconsistent with it, and contains no remedial provision analogous to section 24 of the Canadian Charter of Rights and Freedoms.

So it is, or at perhaps was, an open question what, if anything, a court might be able to do when it concludes that a statute is inconsistent with the Bill of Rights Act. Might it go so far as to issue a declaration to that effect, or is it limited to only stating this opinion in the course of its reasons? In Attorney-General v Taylor [2017] NZCA 215, the New Zealand Court of Appeal says that, sometimes at least, a formal declaration can be made, and upholds the very first such declaration issued by a New Zealand court, confirming that the disenfranchisement of all convicted prisoners (and not only of those serving sentences longer than the three-year Parliamentary term) is inconsistent with the Bill of Rights Act’s guarantee of the right to vote. (The Attorney-General was not contesting the substantive point, it is worth noting, but only disputing that the declaration could and should have been made.)

* * *

The first question for the Court was whether authority to make a “declaration of inconsistency” existed at all and, if so, what its source was. The answer, the Court holds, is that superior courts have such an authority as part of their jurisdiction to answer questions of law, and that the Bill of Rights Act supported it. The Court rejects the Attorney-General’s submission that express statutory authorization is required to permit the making of declarations of inconsistency. Just as Parliament’s legislative authority does not derive from positive law but from political fact, so does the judicial authority of the courts. Neither branch owes its authority to the other; rather, “a distribution of the state’s sovereign powers among the branches of government emerged from the political settlement concluded in the decades following the Glorious Revolution of 1688”. [50] Ultimately, “[i]nconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts.” [62]

The Court notes that the Bill of Rights Act itself contemplates the possibility of a judicial assessment of the consistency of other legislation with its provisions, whether its results are stated in the court’s reasons (which the Attorney-General accepted was permissible) or in a formal declaration. Moreover, New Zealand has undertaken to provide domestic remedies for breaches of its obligations under the International Covenant on Civil and Political Rights, the implementation of which is one of the Bill of Rights Act’s stated purposes, so that it should be interpreted in accordance with this undertaking. Besides, in the Human Rights Act 1993, Parliament has already authorized the making of declarations of inconsistency when legislation breaches equality rights. Although the Bill of Rights Act contains no equivalent provision, this “evidences parliamentary acceptance that a court may make declarations about the inconsistency of legislation with rights protected by the Bill of Rights”. [107]

Second, the Court had to address an intervention by the Speaker of the House of Representatives, who argued that the whole case, or at least the way in which it had proceeded, was an infringement of Parliamentary privilege. In particular, the Speaker was concerned by the reliance, at first instance, on a report prepared by the Attorney-General to alert the House of Representatives of the incompatibility (in the Attorney-General’s opinion) between the blanket disenfranchisement of prisoners and the protection of the right to vote in the Bill of Rights Act. Indeed he sought sought to prevent the use of any “speeches in the House, select committee reports or submissions made to select committees” [122] to ascertain the consistency of legislation with the Bill of Rights Act, arguing that this would be tantamount to calling Parliamentary proceedings into question contrary to article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The Court rejected these arguments, holding that “a court does not impeach parliamentary proceedings merely by describing parliamentary processes or making a finding about the same subject matter,” [129] so long as it does “not endorse or criticise Parliament’s treatment of the issues”. [130] It is permissible, too, to refer to the Attorney-General’s report, although it is important for the courts to come to their own, independent conclusions.

Third, the Court considered the conditions in which declarations of inconsistency should or should not be granted. Such declarations, thought they do not affect anyone’s rights, are part of a “dialogue” (it might have been more accurate to say “conversation”) involving the the different branches of government, which

is not unique to constitutional disputes. It describes the routine work of government, in which Parliament legislates and the executive administers and courts interpret, leading in due course to legislative reform to better meet the community’s evolving needs. [150]

The only difference is that a declaration of inconsistency is a “more pointed” [150] than usual expression of a court’s opinion, which carries with it

the reasonable expectation that other branches of government, respecting the judicial function, will respond by reappraising the legislation and making any changes that are thought appropriate. [151]

Such “pointed” expressions of judicial opinion should not be made lightly; a statement in the court’s reasons for judgment is sometimes, and even “ordinarily” [162] preferable. But it is sometimes necessary to go further. However, the courts are to apply fairly strict criteria for standing (at least when compared with the Canadian “open bar” approach), and to ensure that there exists a real adversarial dispute and that they have the relevant evidence available to them before pronouncing on the rights-consistency of legislation.

Fourth and last, the Court asks itself whether a declaration should have been granted in this case. It concludes that because “[t]he undiscriminating limitation … on so central a right demanded justification [and] [n]one was forthcoming” a declaration of inconsistency “was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right”. [185]

* * *

To Canadian readers this all might seem like pretty tame stuff. And indeed there is no mistaking the notes of caution in the Court’s discussion, above all in its statement that “indications” rather than formal declarations of inconsistency should “ordinarily” suffice. What “ordinarily” will mean in practice remains, of course, to be seen, but at least for now the Court seems to think the step of granting a formal remedy ― even one that could produce no more than a purely symbolic effect ― is a serious, even an exceptional one.

Yet I think it would be a mistake to make light of the Court’s decision and, perhaps more importantly, of its reasoning. Although its conclusions are cautious, it still reflects a confident view of the judiciary’s constitutional position as a branch of government that is, in its own sphere, not Parliament’s subordinate, but its equal. It is worth noting that the primary ground on which the Court rests the authority to make declarations of inconsistency is not an implication from the text or nature of the Bill of Rights Act (as it had done in Simpson v Attorney-General [1994] 3 NZLR 667 (CA), a.k.a. Baigent’s Case, where it held that damages were available for breaches of the Act by the executive). Rather, the authority to make declarations of inconsistency is said to come from the judiciary’s own inherent powers, which the Court goes out of its way to say are not the product of any legislation but of the constitutional order of things (my phrase, not the Court’s). Similarly, the Court resists the Speaker’s attempt to restrict judicial discussion of Bill of Rights Act issues, even as it cautions that judges must be seen to interfere with the deliberations of Parliament.

Indeed, this case can be seen as a clash between two competing constitutional visions. One, advanced both by the Attorney-General and the Speaker, sets Parliament, protected by its sovereignty and privilege, above the other branches of government, whose first concern must be to avoid disrespecting or challenging it. The other, which the Court adopts, treats the branches as (almost) co-equal: “each is sovereign within its sphere of authority in the sense that it may act without the permission or authority of the others”.[51] To be sure, Parliament is first among equals because it can make law, and thereby oust judicial power (though New Zealand judges, as their British counterparts, have on occasion mused about the limits of that authority) or, in other cases, royal prerogative. But at least until it does so equality, not subordination, is the rule. It is a respectful equality, but respect goes both ways: not only must the courts exercise restraint and show comity on appropriate occasions, but Parliament too ought to engage in constitutional dialogue, and go so far as to reconsider its enactments, when called upon to do so by the courts.

Yet I am quite skeptical about the potential for constitutional dialogue between the judiciary and Parliament, on which the Taylor Court rests such hopes. We know that in Canada the “dialogue” has turned out to be quite one-sided, with the Supreme Court telling Parliament what it had, and what it could not, do. As the majority put in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, another prisoner disenfranchisement case,

the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a “dialogue”. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of “if at first you don’t succeed, try, try again.” [17]

The power dynamics in New Zealand are, of course, the opposite of those in Canada. It is Parliament, not the judiciary, that gets to have the last word in a constitutional conversation. But I do not expect it to be any more open to persuasion than the Supreme Court of Canada. I would love to be proven wrong on this, but I’d be quite surprised if ― assuming there is no change of government at the forthcoming election ― New Zealand’s Parliament chose to “reconsider and vindicate the right” to vote as the Bill of Rights Act, which it was happy to ignore on this issue, requires it to do.

* * *

Subject to an intervention by the Supreme Court, the courts of New Zealand do, then, have the ability to formally declare legislation to be inconsistent with the New Zealand Bill of Rights Act, despite the Act not authorizing them to do so. This authority rests on a conception of the constitution in which the branches of government are almost, if not quite, equal, rather than Parliament lording it over the courts (and the executive). Yet there is reason for skepticism about the vision of respectful dialogue between Parliament and the courts that this relative equality is supposed to foster. Someone gets to have the last word, and it seems likely enough that, in New Zealand as in Canada, it will be the only that will count.

NOTE: See also the comments by Andrew Geddis, on Pundit, and Edward Willis, on his Great Government blog.

Extra Time

Assisted suicide and the trouble with giving politicians time to respond to judicial decisions 

This morning, the Supreme Court heard oral argument in the federal government’s application to extend the suspension of the declaration of invalidity of the Criminal Code‘s provisions that have the effect of prohibiting assisted suicide in any circumstances, which the Court granted in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. The suspension of the declaration of invalidity was meant to last a year ― and that period will expire on February 6. The federal government, supported by Ontario, says it needs more time to consider and enact is response. The Carter appellants, represented by Joseph Arvay, argue that additional legislation is not necessary, and any extension of the suspension would cause the beneficiaries of the constitutional right not to be prevented from receiving a willing physician’s assistance in dying to suffer needlessly.

I watched the webcast (except for Québec’s submissions), more because I was interested in what the Court might say about suspended declarations of invalidity in general than out of a preoccupation with Carter itself. (Others have written about the specific issues in Carter, for example Emmett Macfarlane in a post for Policy Options.) Suspended declarations of invalidity are something of a habit for the Supreme Court, and some thoughtful academics believe that it is a bad one. For example, in a blog post for the UK Constitutional Law Association, Robert Leckey argued that suspended declarations of invalidity infringe the Rule of Law and weaken the courts’ power of reviewing legislation. As I wrote in response, I think these are important concerns, although prof. Leckey might not have given enough weight to some countervailing considerations. In any case, as I wrote at the time,  “[w]e need to think more about this issue ― and so does the Supreme Court,” which has been unwilling to give meaningful, or even any, explanations for its decisions as to whether to suspend its declarations of invalidity or not. Unfortunately, if perhaps inevitably, this morning the big questions about suspended declarations of invalidity seemed to me to stay just below the surface of the argument, as the parties and the Court mostly which stayed narrowly focused on the case at bar. (I take it that prof. Macfarlane disagrees.)

There was some discussion of the Rule of Law, to be sure, after the federal government invoked it as justifying the need for comprehensive legislation and as a reason for rejecting the possibility of judges granting individual exemptions if the suspension of the declaration of invalidity is extended. Ontario also insisted on the need for clarity regarding the legal situation of the various persons who may become involved in physician-assisted suicide. Mr. Arvay, for his part, rejected the governments’ claims that allowing the declaration of invalidity to expire without other legisltion in place would generate uncertainty. But there was, understandably enough, no discussion of how the need for legal certainty might play out in other cases where, as Prof. Leckey has argued convincingly, a suspended declaration of invalidity may generate more rather than less uncertainty over the state of the law than an outright invalidation.

But there was no explicit discussion of whether it matters, when we consider the appropriateness of suspending a declaration of invalidity, whether the law at issue is a repressive one or one that attempts to balance the competing claims of various social groups ― as I suggested it might. Clearly, however, something like this concern underlies the difference of emphasis between Mr. Arvay, who insisted on the ongoing violation of the constitutional rights of the people on whose behalf he litigated the case, and the government, which repeatedly spoke of the importance of “buy-in” from physicians and other stakeholders, which in its view only legislation can generate.

Nor was there any discussion of the need for the Court to explain its reasons for granting or denying a suspension of a declaration of invalidity, though one might hope that the Court will be made to reflect on it by an exchange between Justice Wagner and Mr. Arvay. Justice Wagner asked whether the Court had been wrong to suspend the declaration of invalidity it issued in Carter. Mr. Arvay wouldn’t say so, but he did inform the Court that others have. If the Court does indeed think it possible that suspending the declaration of invalidity was a mistake, it should, in my humble opinion, consider the fact that one reason for judges to explain their decisions is that they ― as the rest of us ― are less likely to err when submitting to the self-discipline of giving reasons. Decisions regarding suspended declarations of invalidity are no different from those that concern the other aspects of the cases that courts decide. Had the Supreme Court forced itself to work out an explanation for this aspect of its ruling in Carter, instead of lazily contenting itself with stating that it “would suspend the declaration of invalidity for 12 months,” [128] it might have avoided a decision that it may now have reason to regret.

This morning’s hearing was perhaps most instructive when it came to another issue: that of the respective roles of Parliament, the provincial legislatures, and courts in upholding constitutional rights and making policy, and the implications of a suspended declaration of unconstitutionality for their relationship. The federal government and Ontario emphasized the unusual nature of this case because it makes it necessary, in their view, for both Parliament and legislatures to act. Mr. Avray disagreed that it was necessary for Parliament to legislate (and prof. Macfarlane, for one, shares his view), but even if inapposite in this case, this argument is worth keeping in mind for future ones ― at least if the parties that made it were wrong to say that another such case might never come up again. The Court will also have to ask itself whether the messy realities of politics, including both the time it takes to legislate in general ― to which the parties did refer ―, and the significance of elections and changes of government ― which mostly went unmentioned ― should be allowed to intrude on its somewhat abstract views of dialogue between branches of government.

And beyond these specifics, there is a broader issue of whether Parliament and the legislatures or the Supreme Court should be the main author of the legal framework for assisted suicide in Canada. The government lawyers insisted on the importance of having a legislated framework, for generating both stakeholders’ “buy-in” and for a broader social acceptability. Mr. Arvay, however, was having none of it. He described Québec “death with dignity” law as mostly “bells and whistles,” and was adamant that legislators, both federal and provincial, were effectively superfluous in elaborating a regulatory framework. The efforts, such as they were, of the federal government ― not only of Stephen Harper’s administration, but also of the current one ― towards developing a response to Carter have been “dilatory,” in Mr. Arvay’s view. There is no need to collect more information ― it’s all there, in the trial record. There is no pressing need to legislate ― physicians and their professional regulatory bodies can deal with pretty much any issue that assisted suicide raises on their own.

This contempt for politicians is not surprising coming from a man who would like to insulate the judiciary from any sort of political influence. Yet while it is true that politicians generally have failed to get their act together on the issue of assisted suicide, and that Mr. Harper’s government at least can be fairly described as having procrastinated on responding to the Supreme Court’s ruling in Carter, I think that Mr. Arvay is wrong here, as he is wrong in his quest to “depoliticize” the judiciary. It is not only the politicians that he insults when he says that we need no more discussion than what has happened in the courts ― it is also the citizenry. True, the courts have laid down the constitutional foundation on which an eventual legal framework will have to be built. But it would still be better if elected officials ― and through them, the citizens of Canada ― take responsibility for the building. Mr. Arvay’s position that a process that makes this possible is irrelevant is condescending and disheartening.

I suspect that at least some of the judges ― especially Justice Moldaver, but possibly a number of others ― also think along these lines. But even if they do, it does not follow that they will grant the extension the federal government has requested. They may agree with Mr. Arvay, prof. Macfarlane and others that the extension is not necessary for the legislative process to proceed. (Justice Moldaver himself inquired about that possibility in questioning the federal government’s lawyer.) I do not know how the Court will rule. But I hope that its ruling, whatever its conclusion, is mindful of the issues that it will inevitably raise and that go well beyond just this case.

NOTE: I misspelled Mr. Arvay’s name earlier. My apologies! And thanks for Laura Track for pointing it out to me.

Happy 800th, Magna Carta!

Today is the 800th anniversary of the signing of the Magna Carta Libertatum ― or just the Magna Carta, among friends. The Great Charter has been much celebrated, and also derided, of late. In the New York Times, Sarah Lyall does an excellent job of summarizing the competing perspectives. The celebrations tend to emphasize Magna Carta’s role as a symbol of liberty and the Rule of Law. Consider, for instance, that Sir Tim Berners-Lee, the inventor of the World Wide Web, has called for a “Magna Carta” to protect the openness of his invention. (The Economist has a somewhat cheeky take on this today.) The critics point out that this symbolism is largely made up, a 17th-century fabrication. In its own day, the Magna Carta was a miserable failure: King John, who signed the Magna Carta, swiftly proceeded to get the Pope to dispense him from the duty to abide by it. There is not much for me to add, but I would like to venture some thoughts not on the contemporary significance or historical insignificance of the Magna Carta, but on what I take to be two if its timeless lessons.

The first is that the relationship between universalism and particularism in the realm of human rights is very complicated. The Magna Carta includes some clauses that are still cited today because they appeal to us as much as they did to the people of 1215. This is especially true of the injunction (in clause 39) that

[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

In a recent judgment, the Chief Justice of the United States, John Roberts, also alluded to the next clause, whereby King John promised that “[t]o no one will we sell, to no one will we refuse or delay, right or justice.” And while I don’t think the Magna Carta is much cited in this context, the idea of proportionality in punishment that is so important in contemporary Canadian jurisprudence was already there, in clause 20:

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court.

Of course, it is true that, as Carissima Mathen noted in a recent op-ed, “[b]arbaric practices, like public execution and torture, continued apace.” But then, medieval England was not the only place where proclaimed ideals were not exactly matched by actual events.

Still, it is sometimes said that the past is a foreign country. And so it is tempting to think that if the ideals of due process of law were had such an attraction for the people of that foreign place, they are no mere concerns of a particular time and place. They speak to something universal in human nature. So when the governments of places such as Russia or China try to dismiss calls that they abide by these rights as some sort of cultural imperialism, an attempt to impose the neuroses of Western modernity on their nations’ vastly different cultures, we could call their bs.

At the same time, it is undeniable that many of the Magna Carta’s provisions were very much artifacts of their particular place and time ― and the same is true of (just about?) any other rights-protecting document that has followed it. It is difficult for us to believe that the removal of “[a]ll fish-weirs … from the Thames, the Medway, and throughout the whole of England, except on the sea coast” had the same importance as due process of law, but there it is in the Magna Carta, in clause 33. It’s a reminder, I suspect, not all of the or the Canadian Charter of Rights and Freedoms, will appear equally important 80 years after their enactment ― never mind 800.

The other lesson of the Magna Carta concerns the importance of enforcement mechanisms for the limitation of governmental power and the protection of individual rights. It is, I think, seldom mentioned, but the Magna Carta actually included an enforcement clause, clause 61. The mechanism it put in place was, however, very much medieval. The barons were to elect 25 of their number, to whom people who considered their rights to be infringed could complain. Four barons would then go to the king, and if the king

make no redress within forty days, … the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon.

In other words, the only possible remedy for a rights violation was civil war. Which, frankly, seems a bit of overkill for a failure to remove a fish-weir from the Thames ― or even, for that matter, for a corrupt trial. Even if King John had been inclined to abide by the promises he made on the field of Runnymede, it is doubtful that the Magna Carta would have been much of a success. Any good faith disagreement between him and the barons would have led to wars, which would probably have caused people to hate the Magna Carta more than anything ― unless the parties also thought that a fish-weir wasn’t really worth a civil war, in which case the Charter would have become a dead letter anyway.

Perhaps it is then better that things turned out the way they did. It is King John who has gone down in history as the villain of the play, and not the Magna Carta. (Indeed, I cannot help but wonder whether he would have done things differently had he known that signing that document would be his greatest claim to fame!) The Great Charter, free any legacy of being applied ― and perverted ― by fallible human beings, can remain a shining symbol of our beliefs in liberty and the Rule of Law. I, for one, hope that its 1000th anniversary is greeted with at least as much fanfare as the 800th.

Please Advise

The Prime Minister is apparently refusing to have any new Senators appointed, until, well, who knows (though one may suspect that it is until the next election. The leader of the official opposition has already declared that he would never appoint any Senators ever. And, as I noted in my first post on this subject, a Vancouver lawyer, Aniz Alani, has asked the Federal Court of Canada to put an end to the Prime Minister’s subversion of section 32 of the Constitution Act, 1867, which provides that “[w]hen a Vacancy happens in the Senate … the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.” Mr. Alani’s suit raises a number of interesting questions. In this post, I address some of them.

Although his notice of application names both the Prime Minister and the Governor General as respondents, Mr. Alani’s challenge is framed as an application for judicial review of the Prime Minister’s “decision … not to advise the Governor General to summon fit and qualified persons to … the Senate.” He seeks declarations to the effect that the Prime Minister must so advise the Governor General, and that his failure to do so is an unconstitutional violation both of the relevant provisions of the Constitution Act, 1867 and of underlying constitutional principles.

Before getting to the substantive issues this raises, a few words about preliminary matters. An issue that I will only flag, but not address, is that it can be difficult to show that a course of not doing something amounts to a decision not to do it that is amenable to judicial review. Assuming that Mr. Alani can clear that hurdle, he may also need to convince the court to grant him public interest standing, to pursue his challenge, since the non-appointment of Senators does not injure or affect him personally any more than any other citizen. The factors a court will consider in deciding whether to grant public interest standing are the existence of a serious justiciable issue, on which more below, though if the federal courts follow the Québec Court of Appeal’s recent decision in Canada (Procureur général) c. Barreau du Québec, 2014 QCCA 2234, they will not impose a high threshold here at the standing stage; the seriousness of the applicant’s interest; and the existence of alternative ways of getting the matter before the courts, which should not be an issue here.

Once these matters are out of the way, the biggest substantive issue with Mr. Alani’s application is the way in which it involves constitutional conventions. This arguably goes at once to the jurisdiction of the Federal Court under section 18.1 and to the justiciability of his claims under the general principles courts apply in cases where their power to decide a question is uncertain. To repeat, Mr. Alani’s application aims squarely at the behaviour of the Prime Minister, and not that of the Governor General. Yet the text of the Constitution Act, 1867 gives the power and the duty ― the word “shall” in section 32 is dispositive in this regard ― to appoint Senators to the Governor General. Pursuant to a constitutional convention, this power is exercised on the Prime Minister’s advice. But, on the orthodox view, that convention itself is not a legal rule, and there is no legal link between the Prime Minister and the appointment of Senators.

Thus, Mr. Alani may have some difficulty showing that his application raises at least one of the “grounds of review” which give the Federal Court jurisdiction under subsection 18.1(4) of the Federal Courts Act. At least on the orthodox view of a rigid separation between law and convention, the Prime Minister has not “refused to exercise [his] jurisdiction,” “failed to observe a … procedure that it was required by law to observe,” or “acted in any other way that was contrary to law.” The law, on this view has nothing to say about the Prime Minister’s behaviour with respect to the appointment of Senators. For the same reason, the government could argue that the a Prime Minister’s decision to advise or not to advise the Governor General is a purely political one, and therefore lacks a “sufficient legal component” to be justiciable.

The Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, complicates things, however. The Court introduced a notion of “constitutional architecture,” which seems to encompass the relationships between the various institutions of government, such as that between the Senate and the House of Commons. The Court took the position that making the Senate, in effect, elected would alter the constitutional architecture by making it the equal of, rather than the complement to, the House of Commons. Until then, we thought that the reason the Senate (normally) yielded to the House of Commons was a constitutional convention, rather than a legal constitutional norm.

Mr. Alani could invoke this notion of constitutional architecture, which is part of the legal and not only the conventional constitution, to argue that the Prime Minister’s actions ― or rather his inaction ― infringes on the “constitutional architecture” which makes him responsible for ensuring, by giving timely advice as to the identity of “fit and qualified persons,” that the Governor General can discharge his duty under s. 32 of summoning them to the Senate “when a vacancy arises.” Whether the courts would accept this argument remains to be seen. It seems at least plausible to me, but the notion of architecture is too new and too uncertain to make any predictions about the ways in which it might be applied in the future.

But even if Mr. Alani can overcome the difficulty of showing that the Prime Minister’s behaviour actually contravenes a legal rule, he will further need to convince the courts that the remedies he is seeking are appropriate. (Although I cannot develop the argument for this proposition here, I think that the courts’ decisions on justiciability are often dependent on their views of their remedial powers, and not only on the nature of the rules at issue in a case.) Mr. Alani is asking the court to declare that “the Prime Minister … must advise the Governor General to summon a qualified Person to the Senate within a reasonable time after a Vacancy” arises, and that he is acting unconstitutionally by failing to do so. But such a declaration would not be very helpful, because it would not specify what a reasonable time is. Unfortunately, it is probably impossible for a court to be any more specific, given the politically sensitive nature of any Senate appointment, not to mention the absence of any clear time limit in the constitutional text.

Now the Supreme Court has occasionally issued fairly vague declarations or statements of the law, often in the context of references (such as the Reference re Secession of Quebec, [1998] 2 S.C.R. 217). The one “normal” case where the Court did that, which immediately comes to mind, however, is Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, where the Court declared that the Canadian government had acted unconstitutionally, and said, in effect, that it ought to do something about that. But the government’s ― this Prime Minister’s government’s ― response to that decision was arguably perfunctory, and the same might happen in this case. A declaration that the Prime Minister is acting unconstitutionally may well be met with further inaction, and might thus only serve to undermine the courts’ authority. I am not sure that the courts will, or indeed that they should, risk such an outcome.

The constitutional rule set out in section 32 of the Constitution Act, 1867, seems clear enough. But the role of constitutional conventions and concerns about the remedial powers of the courts, not to mention administrative law and standing issues, might still prevent it from being judicially enforceable. This seems problematic from the perspective of the Rule of Law ― but then again, a rule of this sort never intended to be judicially enforced. A Prime Minister’s self-interest in making patronage appointments can normally be counted on to ensure that appointments to the Senate will be relatively expeditious. Unfortunately, when the incentives on which a constitutional scheme implicitly relies break down, the constitution itself becomes dysfunctional ― indeed, we may well speak of a constitutional crisis, albeit not yet an acute one ― and it’s not obvious what can be done about that, or by whom.