The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”. 

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.

Judges are Subject to Law, Too

Last summer, I wrote a blog post about a concerning case out of the Federal Court, Girouard v CJC. The gist of the case was the claim by the Canadian Judicial Council (CJC) that their reports, recommendations, and decisions in the course of the investigation of a judge were not subject to judicial review under the Federal Courts Act.

For the reasons I outlined in my blog post, this argument was both surprising and unfortunate:

I see this case as an extreme example of the modern trend of administrative law: towards more regulation and more administrative decision-makers that have court-imposed “unlimited” powers (see West Fraser, at para 11). Once we accept even one instance of such a decision-maker, vested by statute, we have to conclude that no court can speak ill of that “unlimited” decision-maker. Obviously this has profound effect on the Rule of Law, individual liberties, and due process. Take this case–dissenting members of the CJC were concerned that certain anglophone members of the CJC could not evaluate the entire record, which was in French. This implicates the fairness of the process for Justice Girouard. A purpose of judicial review is to ensure this basic fairness, but if we make administrative decision-makers beyond reproach, we sit them alongside the basic law of the land–the Constitution. And of course, legislative bodies acting alone cannot establish new constitutional provisions.

And, because of finer legal points, I thought that the CJC’s case was weak. For example, though the membership of the CJC is made up of s.96 judges, which would counsel a restrained approach to judicial review, the premise of the CJC is as a “statutory investigatory institution, vested with powers only so far as the statute allows.” The CJC is, like all administrative decision-makers, rooted in statute. And as a result, the membership of the CJC does not bear on the question of whether it is subject to review.

Luckily, the Federal Court of Appeal recently affirmed the Federal Court’s holding that the CJC is subject to judicial review. This is the right result, and one that prioritizes the rule of law—the supervision of all state actors, regardless of their status, under higher law—over administrative fiat, even fiat issued by judges.

It is worthwhile to explore the Federal Court of Appeal’s reasoning to see why the court got the case right. Under the Federal Courts Act, the definition of a federal board was recently confirmed by the Supreme Court in Mikisew Cree—a judgment to which Chief Justice Wagner, who is the head of the CJC, signed his name. Section 2 of the statute defines a reviewable “federal, board, commission or other tribunal” as one that exercises statutory powers or powers under an order made pursuant to Crown prerogative (Mikisew Cree, at para 18). Here, we see the idea that the root of agencies subject to judicial review in the Federal Courts is fundamentally statutory in character. On this front, the Court reviewed its test in Anisman, which provides that a court, to determine whether a body falls within the Federal Courts Act, must consider the source of the powers exercised and the nature of those powers (see para 37).

Consider first the source of power. Here, the Court—as I did in my blog post last summer—drew a sensible distinction between the CJC as a statutory institution and its membership. The Court noted that without statutory nourishment, the CJC would not exist—it exercises no inherent powers simply because it is made up of s.96 judges (see paras 41). Moreover, the nature of the powers exercised by the CJC are not judicial, adjudicative powers per se. Rather, the CJC exercises powers that are fundamentally administrative in nature; those powers are inquisitorial, investigative, and not powers exercised by s.96 judges as s.96 judges (see paras 77-78). Since both the source and nature of the powers exercised by the CJC are rooted and defined by statute, and are typical administrative powers, it follows that they can easily fit the definition of a federal board under the Federal Courts Act. On this front, it is important to note that the CJC could have been expressly excluded from this definition by Parliament, but it was not.

There was another argument raised by counsel for the CJC based on 63(4) of the Judges Act, which deems the Board or an inquiry panel a “superior court” (see para 81). It followed, according to counsel, that this deeming clause must be read in its ordinary meaning, such that it was at least colourable that the Board should have “all the attributes” of superior court jurisdiction; and therefore, should be excluded from the definition of a statutory body under the Federal Courts Act.

Notwithstanding that this argument runs up against the stubborn fact that the CJC exists only because of a statute saying so, the Court rejected this argument on other grounds. The text of the so-called deeming provision, notably, did not denote that the CJC’s jurisdiction should expand to the full powers of a superior court, beyond the procedural powers required to manage inquiries. Notably, if Parliament wanted the CJC to be a court of superior jurisdiction, it could create it as such under s.101 of the Constitution Act, 1867, under which the Federal Court was created. But it did not do so. Absent a clearer statement, the CJC should not be presumed to possess full superior court powers, just as the Canada Transport Agency, with a similar deeming provision, is not presumed to carry those powers.

The final part of the judgment, which should be particularly commended, is the Court’s focus on the implications of the CJC’s arguments for the rule of law. Shielding the CJC from review would amount to a situation where an administrative decision-maker—simply because of some of its membership, and even though it exercises public functions—can evade the strictures of public law. In a government of laws, the possibility for this should be foreclosed. This is true no matter who makes up the overall administrative body.

Overall, there are two important points to this case to which I should draw attention. First, and as I have said time and time again, the administrative state exists not because of any constitutional mandate or legal principle other than statutory enactment. Judges attempting to insulate themselves from review could be successful if the administrative state existed as a matter of constitutional law. Indeed, there are some that argue that there are constitutional foundations to the administrative state. This sort of argument, in my view and with all due respect, is clearly wrong. And the Federal Court of Appeal seems to agree. Even when we are talking about judges, the fact that the CJC’s existence is because of statute is the definitive answer to any claim that it cannot be subject to the rule of law. Put differently, imagine the incentive effects of an opposite conclusion. Parliament could staff administrative agencies with judges, making them evasive of judicial review, and simply state that the Constitution protects the body of which they are members as part of the “constitutional administrative state.” No one should accept this line of reasoning.

Second, the fact that the court rooted its consideration in the rule of law is important. The Court could have simply analyzed the applicable law, which clearly ran up against the CJC’s claims. But it went further at para 103 by rooting the conclusion in the idea that all public officials—no matter their own august judicial status—should be subject to the dictates of law. In today’s day and age, this is a reminder that we all need.

 

R v Boudreault: Parliament’s Cross to Bear

The rule of law does not countenance the frequent use of suspended declarations.

In R v Boudreault, 2018 SCC 58 the Supreme Court of Canada (per Martin J) struck down s.737 of the Criminal Code, which requires an offender who is found guilty, is discharged, or pleads guilty to an offence under the Criminal Code or the Controlled Drugs and Substances Act to pay a “mandatory victim surcharge.” The Court found that the surcharge constituted “cruel and unusual punishment” under s.12 of the Charter, because the victim surcharge was levied on offenders regardless of “the inability to pay, the likelihood that they will face a repeated deprivation of liberty for committal hearings, or the indefinite nature of the punishment” [45]. The Court struck down the law with immediate effect.

The substantive merits of the case are not my concern, and others have summarized them. But I can’t resist dipping my toe in the water. The test developed under s.12 of the Charter of “gross disproportionality” applied to “reasonable hypothetical scenarios” has always troubled me. Gross disproportionality is not necessarily co-equal with “cruel and unusual” punishment, the latter being a legal term of art that also appears in older constitutions, like the United States’ (8th Amendment). Issues of application arise, too: it is one thing for a criminal sentence to be grossly disproportionate, but it strikes me as odd to say that a victim surcharge, parasitic on the conviction assessed against the individual, is “grossly disproportionate” or even “punishment.” The offender is simply being asked to bear some of the costs of her criminal conduct.

But, though I disagree with the substantive outcome, I take the s.12 violation as a given—instead, I think the more interesting part of the case is the decision on remedies. I see Boudreault as a small step towards peeling back the force of the suspended declaration of invalidity, which has, in recent years, been the constitutional remedy adopted by the court on the say-so of the government. This state of affairs corrodes the important organizing principle of Canada’s constitutional remedies law: the rule of law itself.

How does the rule of law situate itself in the doctrine? The remedial authority for striking down laws is s.52 of the Constitution Act, 1982. That provision simply declares that the Constitution is supreme—and so it follows that laws contrary to the Constitution are invalid. A law that is unconstitutional is no law at all, and no court or government official should apply or enforce laws that are unconstitutional.

Section 52 does not say anything about “suspended declarations,” yet they have become the go-to remedy for the Court in constitutional cases. Because the Constitution should be interpreted consistently, any justification for suspended declarations should similarly be found in the rule of law itself. But this has not been the way for the Court, which often suspends declarations without much of a thought. For example, suspended declarations were endorsed in both Bedford (prostitution laws rendered unconstitutional) and Carter (criminal prohibitions on assisted dying rendered unconstitutional). In the former case, there was barely any comment on the matter from the Court. It noted that, “[w]hether immediate invalidity would pose a danger to the public or imperil the rule of law… may be subject to debate” [167]. A mere two paragraphs later, the Court concluded that, “considering all the interests at stake” the declaration should be suspended [169]. In the latter case, the Court’s analysis was similarly brief: “We would suspend the declaration of invalidity for 12 months” [128]. What’s more, the government couldn’t meet the deadline imposed by the Court, and actually received an extension of the suspension. In these cases, the suspended declarations seemed the declaration of rote when the Court was faced with a certain type of high-profile case.

This era of the suspended declarations stands uneasily with a generation previous. The first case in which the suspended declaration was used was the Manitoba Language Reference. There, the Court found Manitoba’s failure to publish laws in both official languages to be unconstitutional; accordingly, all of Manitoba’s laws were constitutionally invalid. But the Court recognized that an immediate declaration of invalidity, reaching forwards and backwards, would invalidate all laws and acts taken under those laws in the province of Manitoba, creating a “legal vacuum” [753]. The Court framed this concern in terms of the rule of law. By declaring the statutes invalid, an element of the rule of law would be sacrificed, the part that “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order” [749]. And because the rule of law required the maintenance of this order of laws, an immediate declaration according to s.52 would undermine it.

Slowly but surely, the Court extended (or, arguably, replaced) this rule of law justification for suspended declarations. In Schachter, the Court listed three situations in which a suspended declaration would “be warranted”: the rule of law justification in Manitoba Language Reference, where striking down the legislation would “pose a danger to the public”; and where striking down legislation could deprive “deserving persons” of benefits.

So, the situation can be mapped in three general phases–simplified, of course: (1) Manitoba Language Reference, where the rule of law provided the exception to an immediate declaration (2) Schachter guidelines and (3) the Bedford/Carter era, where neither the rule of law or the Schachter guidelines figure prominently in the Court’s analysis. Bedford/Carter are in this respect a far cry from the Manitoba Language Reference. But in Boudreault, the Court seemed willing to at least lurch backwards toward Schachter. It ultimately concluded that “[t]he respondents have not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law” [98]. To the extent that the Court actually ties back its conclusion on suspension to the Schachter guidelines, it seems willing to move away from the idea that a declaration should be suspending merely on the government’s submission. The Court characterized the Schachter guidelines as a a “high bar” [98]. And the Court, promisingly, framed its reason for hesitance in the language of the rule of law: “…in my opinion, a suspended declaration in this case would simply cause more offenders to be subject to cruel and unusual punishment” [98].

So, Boudreault can be seen in two ways. It can be seen as a throwback to a more disciplined application of the Schachter guidelines, which would be a welcome and easy doctrinal change. At the very least, the Schachter guidelines are predictable and are related (if only tangentially) to the rule of law. Or, for those of us who are more positive, Boudreault can be seen as justifying a more robust doctrine of constitutional remedies based on the rule of law, where suspensions are confined to narrow circumstance; the government is forced to deal with constitutional violations and plan for the eventuality that certain laws may be more susceptible to a successful challenge.

Any such courageous doctrinal change should start from the perspective of the rule of law. For example, it strikes me that the third Schachter category—deprivation of benefits—does not create a situation impacting the rule of law at all, and so should not justify a suspended declaration. Situations involving public safety could impact the rule of law, but the bar would have to be exceptionally high. In democratic societies of order, only the most massively disruptive situations of public safety would imperil the rule of law and justify the further imposition of unconstitutional laws. This would be a rarely used category.

Similarly, an allowance for suspensions on rule of law grounds would similarly be narrow. I can envision marginal situations like the Manitoba Language Reference, where a significant portion of the laws on the books are declared invalid, depriving a jurisdiction of a positive order of laws; or where a particularly important law governing some central set of legal relations is declared invalid (an example escapes me). Even this latter suggestion is perhaps a bridge too far, because any law could be “important.” Nonetheless, this rule of law justification would be narrowly confined, significantly more so than the Court’s existing doctrine

Those who favour suspensions might retort that, both institutionally and constitutionally, legislatures are owed deference in remedying constitutional violations. But to my mind, deference does not attach to this point of the constitutional analysis. It is one thing to defer to a government’s laws when determining whether they violate particular constitutional rights. To strike down a government law is not something that should be taken lightly, given the classic countermajoritarian difficulty—this is why stable and principled doctrine is so important. But once the law has been struck down by a court, it is wholly the legislature’s job to solve the constitutional problem. Absent some overriding rule of law concern, it is usually not (and shouldn’t be) the job of courts to patch up laws or give governments an assist through suspensions. After all, Parliament legislates. When it errs, Parliament must fix its mistake. This is its cross to bear.

In this sense, Boudreault is a refreshing change in tenor for a Court that has generally afforded deference through suspensions. One hopes it’s a renewed look to the rule of law.

Lost Virtue

Joseph Raz revisits the subject of the virtue of the Rule of Law

Joseph Raz recently posted on SSRN a short essay call “The Law’s Own Virtue“, based on remarks he delivered on the occasion of receiving the Tang Prize. The essay revisits themes explored in Professor Raz’s famous article on “The Rule of Law and Its Virtue”, defending the same view that the Rule of Law does not mean the rule of good law, and that its requirements on the exercise of public power are formal and procedural, but not substantive. It is a view that I share, for what that’s worth. But there is an aspect of Professor Raz’s argument which is new, at least in comparison with his classic article, and which strikes me as deeply disturbing.

Professor Raz now makes the intention of government actors central to his discussion of the Rule of Law. He starts from the proposition that “one, commonly agreed, aim of the [Rule of Law] is to avoid arbitrary government”. (5) This is where the focus on the reasons for government action enter the picture, as Professor Raz defines “[a]rbitrary government [as] the use of power that is indifferent to the proper reasons for which power should be used”. (5) Government power should be used “to follow and to apply the law”; (6) If it is used with this intention, the Rule of Law is being complied with. It follows that

not every failure of the government to be guided by the law is a breach of the [Rule of Law]. For the most part such failure is due to mistakes and incompetence. Even the most conscientious and qualified government is liable to fail in such ways. (6)

Intention is also relevant when assessing (from the Rule of Law standpoint) the exercise of interpretive and discretionary powers, and indeed the rule-making powers. When making or interpreting law under the Rule of Law, governments must “not … promote their own interest, but that of  … the governed … includ[ing] their moral interests”. (8) Beyond that, however,

[d]etermining what ends to pursue in the exercise of discretionary powers, or in the interpretation of the law, is the stuff of ordinary politics, and the [Rule of Law] does not review the success of politics. (6)

Professor Raz sums his argument as follows:

Based in the main on only two premises, that governments may act only in the interests of the governed, and that honest mistakes about what that is, and what it entails are the stuff of ordinary politics, and honest mistakes about this do not violate the rule of law, I concluded that the virtue of the rule of law lies in tending to secure that the government acts with the manifest intention of serving the interests of the governed. (15)

Professor Raz’s original view of the virtue of law was that it was indifferent to governmental purposes. Compliance with the Rule of Law, he famously wrote, is like the sharpness of a knife: a quality that can be used in the service of bad ends, as well as good ones. The test for such compliance had to do with the form of laws (notably their clarity, openness, and stability) and with respect for legal procedures (the independence of courts, the executive complying with the law that authorizes it to act, and so on). An ill-intentioned, self-serving or abusive government could comply with the Rule of Law; a well-intentioned but incompetent one, not necessarily.

This view is reversed in Professor Raz’s return to the subject and, as noted above, I do not think that his change of heart is for the better. I think it is dangerous and counter-productive to judge governments by intention, both as a general matter and specifically when it comes to assessing their compliance with the Rule of Law. Moreover, even if intention were a relevant consideration, the pursuit of the “interest of the governed” seems a particularly unhelpful standard by which to judge governments.

Generally speaking, I think we would do well to embrace Lord Acton’s distrust of “[t]hose who judge morality by the intention [and] have been less shocked at the crimes of power … than at those committed by men resisting oppression”. The time elapsed since Acton’s death should only have reinforced this attitude. And it is especially relevant to the issue of the Rule of Law. Governments themselves don’t allow people to get away with law-breaking by pleading “mistakes and incompetence”. If you are caught speeding, telling the cop that you’re just a mediocre driver and, while desirous of complying with the traffic code, sometimes forget to check how fast you are going isn’t going to get you too far, I suspect. So why should you have any patience with similar claims by a government? Lon Fuller, in particular, emphasized the reciprocity that the Rule of Law fosters in the relationship between government and citizen: as the quid pro quo for the citizen’s law-abidingness, the government ensures that the law allows the citizen to plan his or her life. Under Professor Raz’s approach, this reciprocity can break down. The citizen is still asked to obey, but the government only to intend to do so.

Of course, Fuller, as well Professor Raz in “The Rule of Law and Its Virtue”, recognized that compliance with the Rule of Law is (usually) a matter of degree. A certain level of compliance is necessary; beyond that, the question becomes one of excellence, and perhaps even excess. But I don’t think that this is Professor Raz’s point in “The Law’s Own Virtue”. If “manifest intention” to act in the appropriate way is the relevant standard, then even fairly egregious failures, so long as they are due to good faith incompetence, perhaps even honest carelessness, will be excused, and not only a government’s inability to reach excellence.

Consider an example that I have previously discussed here as a Rule of Law failure: the Canadian law on the standard of review in administrative law. The Supreme Court changes the rules all the time, sometimes announcing that it does so and sometimes not; it often fails to follow the rules it has itself announced; its deferential approach is not impartial between the citizen and the government and allows erroneous legal interpretations arrived at by decision-makers who are not independent of the government to become the law. For all that, I am happy to suppose that the Supreme Court judges intend to follow the law, except in those cases where they (not inappropriately) reconsider their precedents, and that to the extent they are engaged in (re-)making the law, they think they act in the best interest of Canadians. The vexing inability to come up with and follow a truly legal framework is, at least for the most part, the fruit of plentiful mistakes and abundant incompetence. But so what? That doesn’t change the fact that where citizens (not to mention other judges) ought to find law, they find muddle. The Supreme Court’s pronouncements provide no useful guidance, and thus appear arbitrary, even if they do not meet Professor Raz’s narrow definition of arbitrariness. 

This example also points to another troubling claim in Professor Raz’s discussion: that legal interpretation is equivalent to an exercise of discretionary powers and must be assessed as “the stuff of ordinary politics”, not a Rule of Law issue. As not only John Marshall but also the Professor Raz of “The Rule of Law and Its Virtue” recognized, the province and duty of the judiciary to say what the law is. This is significant, because the courts are not engaged in “ordinary”—which I think must mean partisan and self-interested—politics when interpreting or even developing the law. Their performance in doing so cannot be judged politically, either as a normative matter (because political criteria are the wrong ones to apply to judicial decisions) or as a descriptive one (because the courts, being unelected and independent, are not subject to political judgment anyway). Of course, a political judgment in the shape of legislation or constitutional amendment overturning a judicial decision is possible; perhaps this is what Professor Raz means. But such legislation is fairly rare, and constitutional amendment still more so. In the ordinary course of things, the only judgment that we can pass on the judiciary’s exercise of interpretive and creative powers is a moral one, and it must be based on Rule of Law-related criteria, not political ones.

Finally, in any case, I think that “the interest of the governed” is not a standard by which the actions of any institution of government can usefully be assessed. “The governed” are not a homogeneous undifferentiated mass. The are individuals, organizations, and groups. Their interests differ, and sometimes—indeed, quite often—clash. Government action that is in the interest of some will run counter to the interest of others. The more things some people get governments to do, the more toes these governments must step on to accomplish these things (whether these toes’ owners are aware of being trampled on or, as often is the case, not). Now, perhaps the idea is that any plausible-seeming conception of the public interest will do, so long as the government is not blatantly oppressive and self-serving. Yet not only is it doubtful that even this test can eliminate controversy but, more importantly, it is quite meaningless. Protectionist legislation that blatantly favours, say, producers over consumers, or indeed government over citizens, can be dressed up in some public-spirited guise, and intelligent people will fall for this trickery, be they the judges of the Supreme Court in R v Comeau, 2018 SCC 15, or Sir William Blackstone, who wrote that

the statute of king Charles II which prescribes … a dress for the dead, who are all ordered to be buried in woollen … is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation.

The Rule of Law, I submit, is not only not the rule of good law, but also not the rule of well-intentioned law. The purposes of public institutions that create, interpret, and apply the law, or exercise discretionary powers granted by law, are not relevant to assessing their compliance with the Rule of Law. Innocent incompetence can lead to Rule of Law failures, while a self-interested government, for example one preoccupied with lining the pockets of its supporters and winning the next election, however worthy of condemnation, may well abuse its power in a manner that is consistent with the Rule of Law. Professor Raz’s classic article on the virtue of the Rule of Law remains an essential reference point for those of us who are interested in the subject. His return to the topic, sadly, will not be one.

Vancouver Event Next Week

Announcing another talk

As I noted earlier, I have been and will be speaking at a few Canadian law schools ― I did an event in Calgary 10 days ago, and will be doing a couple of joint appearances with Geoff Sigalet, a debate on the “notwithstanding clause” at McGill this Wednesday at 1PM and a discussion (with Grégoire Webber) on constitutional dialogue and Commonwealth bills of rights at Queen’s next Monday, also at 1PM. 

As it turns out, I will be doing another event (I hadn’t previously realized that it would be public) ― this one at UBC, on Wednesday, November 28, at 12:30PM, in the Fasken Classroom (room 122). I’ll be speaking about the undermining of the Rule of Law in Canadian constitutional law, and its consequent politicization, by such ideas and techniques as judicial deference and “constitutional dialogue”, the re-legitimation of the use of the “notwithstanding clause”, and “living tree” constitutional interpretation.

I am grateful to my friend Régine Tremblay and to her colleagues at UBC who have organized this talk, which I am very much looking forward to. Come along if you are able to, and please say hello if you do.

Constitutionalism from the Cave

The constitution is a binding law, not just an incomplete statement of political ideals

The imbroglio with the Ontario legislature’s enactment of Bill 5 to restructure the Toronto City Council a couple of months before an upcoming election, the Superior Court’s declaration of that legislation unconstitutional, the threatened invocation of the “notwithstanding clause” to override that declaration, and the Court of Appeal’s restoration of what little sanity could still be restored by reversing the Superior Court’s decision has generated a great deal of commentary. Some of this commentary has been very imaginative indeed in coming up with constitutional arguments that would have advanced the commentators’ preferred policy agendas and forestalled the seemingly obvious legal conclusions.

Of course, such a creative argument had prevailed at the Superior Court, which (as for example co-blogger Mark Mancini, as well as yours truly, explained) ignored clear constitutional language on its way to finding that Bill 5 violated the guarantee of freedom of expression in the Canadian Charter of Right and Freedoms. Even more unorthodox reasoning was unleashed in attempts to argue that the Ontario legislature couldn’t actually invoke the “notwithstanding clause”, the constitutional text once again be damned. Mark has written about open letter in which professors who wouldn’t dream of treating originalism as a serious interpretive methodology suddenly turned original-intentist ― but that, at least, was an explicitly political text. Other arguments along similar, or even more outlandish, lines purported to be legal ones.

This outburst of creativity is, of course directly related to a certain way of seeing the constitution that is prevalent in the Canadian legal community (including, but not only, in the academy). On this view, the Canadian constitution ― especially, though not only, the Charter ― is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts;  it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution. And, of course, this ideal constitution, just so happens to enact the political preferences of the persons urging this view, and presumed (often not incorrectly) to be shared by the judiciary.

Perhaps the latest contribution to the post-Bill 5 constitutional free-for-all is illustrative. It is a post by Colin Feasby, over at ABlawg, arguing that section 3 of the Charter, though it ostensibly only guarantees the right of Canadian citizens “to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”, really also applies to municipal and other elections, and to referenda. Now, I have learned a lot from Dr. Feasby’s law of democracy scholarship (which has also been cited and relied on by the Supreme Court!). But this post is nothing more than a call for the judiciary to wilfully re-write the constitution we have so as to bring it closer to an idealized view of what a good constitution ought to be according to Dr. Feasby (and many others).

Dr. Feasby argues that “the lack of constitutional protection for important democratic processes” ― such as municipal elections ― “is an unnecessary defect in our constitutional arrangement”. “Unnecessary” a word that I wouldn’t use, and as will presently be apparent, Dr. Feasby uses it advisedly. However, I agree with him to this extent ― the lack of constitutional protections for municipal institutions is indeed a shortcoming of our constitution, as I have suggested here.

Dr. Feasby, though, is not suggesting a constitutional amendment to remedy the defect he identifies. Rather, he “proposes a way that the Supreme Court of Canada can remedy this defect”. He argues that “courts have a role in ensuring that the democratic process functions so that the sovereign will of the electorate may be expressed without distortion”, which is true, if somewhat beside the point in matters where the will of the electorate is not, legally speaking, sovereign, including in municipal elections. The question, though, is how far the courts’ role extends. Dr. Feasby thinks it allows the courts to embrace what he describes as a “purposive and … generous approach to interpreting Charter rights”, and “impose a rule” according to which

Where a government, Federal or Provincial, delegates a legislative role to a democratically chosen body or where a government, Federal or Provincial, effectively delegates a decision to the electorate in a referendum, section 3 of the Charter applies.

In other words, “a body elected in processes governed by section 3 cannot delegate its power to an elected body chosen by electors with lesser constitutional protections”.

Dr. Feasby anticipates two objections to his proposal. First, he expects people to argue that it would get in the way of worthy reforms of municipal and other institutions. His response is that “so long as those changes are consistent with the principles that animate section 3 of the Charter“, nothing would get in their way. Fair enough, I suppose. The other objection Dr. Feasby foresees is based on the concern about section 3 claims being brought by people who are not in the intended electorate for a given election (say, the residents of a municipality). Such claims should simply be rejected ― as would that of “Canadian citizens resident in Alberta” demanding “the right to vote in Provincial elections in Quebec”. That too seems fair enough.

There are other, more serious, problems with Dr. Feasby’s argument, however. A practical one is that, even in the form given to it by Dr. Feasby, it reaches very far indeed. Municipalities, band councils, and school boards are not the only entities that might be described as “democratically chosen” entities to which governments delegate legislative powers. Various professional bodies (such as law societies) and agricultural marketing boards come to mind; so do, perhaps, universities, whose powers ― which include the ability to regulate large swathes of student and staff conduct ― are ultimately exercised by (partly) elected boards and senates. (Whether the universities are subject to the Charter in at least some areas is an open question, but there are good arguments for that view.) It’s not at all obvious to me that, “the principles that animate section 3 of the Charter” can be usefully applied to such bodies, even assuming that they can be to municipalities and school boards. And it’s not at all obvious that the argument for rejecting the claims of persons excluded from the relevant electorate ― say, the consumers of professional services or of agricultural products ― can be dismissed as easily as  those of Albertans looking to vote in the Belle Province.

This problem becomes even more pressing if we take up Bruce Ryder’s suggestion “that a province that is bound by s.3 democratic norms shouldn’t be able to do an end run around them after creating subordinate governments” ― seemingly regardless of whether these “subordinate governments” are themselves meant to be democratically elected. If this principle were taken seriously, it would amount to a non-delegation doctrine on steroids, preventing the exercise of legislative power by undemocratic bodies ― which means pretty much all of the administrative state. Anti-administrativist though I am, even I don’t actually favour this approach. In truth, I don’t suppose that Professor Ryder favours it either. He simply makes an argument that furthers his preferences in a particular controversy, and doesn’t worry about its implications in future cases. I’m afraid this is symptomatic of the treatment of the constitution not as a law, but as a series of results-oriented propositions subject to permanent revision from one case to the next.

Equally symptomatic of this way of thinking is the fact that Dr. Feasby apparently does not see coming another objection, a principled rather than a practical one. This objection is, quite simply, that his proposal is a perversion of the constitutional text, a blatant attempt to expand it beyond what it was quite clearly designed to do, and what it not only originally meant but still means. Even if one believes that the constitutional text should be read according to the meaning of its terms today, “an election of members of the House of Commons or of a legislative assembly” does not mean “an election of members of a municipal council”, or “an election of the benchers of a law society”. Dr. Feasby invokes the “living tree” view of the constitution, but he advocates something different than just reading the text in light of evolving social mores or trying to use “progressive interpretation” to “accommodate[] and address[] the realities of modern life”, as the Supreme Court put it in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, at [22]. It’s not as if municipal election were a new phenomenon unknown to the framers of the Charter. It’s just that Dr. Feasby thinks that the Charter is only an imperfect statement of an “aspiration … to be a truly free and democratic society”, which can be given whatever contents a court, under the guidance of progressive advocates, can come up with in a given case.

Needless to say, I do not share this view. It is contrary to the terms of the constitution itself (specifically, section 52 of the Constitution Act, 1982, which provides both that “[t]he Constitution of Canada is the supreme law of Canada” (emphasis mine) and that “[a]mendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada” ― which says nothing about the Supreme Court amending the constitution in the absence of the political consensus required to do so. It is destructive of the Rule of Law. And it is especially galling because many of the same people who advocate this view of the constitution not as binding law but as merely suggestive of (their) political ideals demand that political actors ― such as the present Ontario legislature ― that do not fully share these ideals comply with judicial decisions based on them. I think it’s right to demand that political actors comply with the law, including the law of the constitution. But why on earth should elected officials comply, not with the law, but with the philosophical preferences people who are not elected to anything? There can be no real constitutionalism in Plato’s cave. It’s time to climb out.

Sed Lex?

Thoughts on Ilya Somin’s defence of non-enforcement of the law

In a recent Volokh Conspiracy post, Ilya Somin argues against the common view that laws ought to be enforced and obeyed regardless of their moral flaws. On this view, the existence of a law is warrant enough to inflict punishment on anyone who breaks it. Professor Somin cites the case of Tammie Hedges, a woman from North Carolina who looked after two dozen pets whose owners could not take them with them when fleeing the recent hurricane and, for her troubles, has been arrested and charged with 12 counts of practising veterinary medicine without a license.

Professor Somin argues

that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges … . But the same principles apply far more broadly.

Professor Somin refers to the historical example of the legislation that required fugitive slaves to be returned to their “owners”, pointing out that “[t]oday, we praise … antislavery activists who” broke them, “and condemn government officials who tried to prosecute” these activists. And, in our own time, Professor Somin cites immigration and anti-drug laws as examples of legislation whose enforcement deserves condemnation, not praise.

I have a great deal of sympathy for the position Professor Somin advances, but I think that things are a bit more complicated than he lets on. Professor Somin recognizes that “there is room for reasonable disagreement about which laws are justifiable to enforce”, but does not consider the implications of such disagreement beyond saying that “[i]n a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical ‘enforce the law’ approach to political morality”. Accepting that this is so does not really make the question of when it is possible to excuse or justify non-enforcement ― and of who is supposed to be making such judgments ― go away.

Consider the subject of my last post: the prospect of enforcement by Québec’s Chief Electoral Officer of legislation that effectively bans interventions in election campaigns by civil society actors, except if a “periodical” or a “radio or television station” agrees to carry it free of charge, as part of its news or editorial content, against an environmentalist NGO, Équiterre. Équiterre’s offence is that it has had the temerity of posting, on its own website, a questionnaire detailing the policies of the main provincial parties on various environmental issues, and expressing approval or disapproval of these positions. I argue, in my post, that Québec’s legislation outlawing such perfectly justifiable attempts to influence public opinion is draconian, and that it should be repealed and/or challenged in court and declared unconstitutional. Yet I also say that the Chief Electoral Officer is justified in enforcing the law until, in one way or another, it is law no longer. I made the same argument in a very similar situation four years ago, during the last provincial election campaign, and criticized the Chief Electoral Officer for backtracking on the basis of what I thought was a tortured interpretation of the applicable legislation.

On Professor Somin’s view, I am probably wrong. I think that the law at issue is morally unjustified. Why should I want the authorities to enforce it and put the people who quite rightly object to it to the trouble, expense, and uncertainty of litigating against it or lobbying for its repeal? If the Chief Electoral Officer declines enforcing an unjust law, shouldn’t I be happy? The reason I’m not has to do with the interaction between law and reasonable disagreement.

I have strong views about the injustice (and unconstitutionality) of Québec’s legislation, but others do not share them. The leader of Québec’s Green Party, for instance, has denounced what he sees as “meddling” by Équiterre and other environmentalist groups in elections, claiming “these groups have chosen to exclude the Green Party of Québec from their analysis”, and that this “exclusion … is a political act that undermines our credibility among the voters in the midst of an election campaign”. This nicely captures the policy of Québec’s legislation (and its federal analogue too, albeit that the latter is less draconian): achieving fair competition among political parties, at the expense of everyone else’s liberty. Plenty of people support this policy, at least in the abstract (though many get queasy when they discover that it can actually be applied to people and groups with whom they sympathize).

As I said in my recent talk on the Trinity Western cases at the Centre for Constitutional Studies, in a pluralistic society we constantly disagree about values and justice, and the law for the time being is the one thing we have in common. I take Professor Somin’s point that law is not like the rules of a club that we have knowingly joined and are free to leave; its claims to our assent are incomparably weaker. Still, we do benefit from the existence of this common reference point, which allows us to maintain a well functioning community despite our sometimes radical disagreements.

Consider, for example, one of Professor Somin’s example: immigration laws. I happen to agree with him that they are unjust in preventing persons “fleeing violence and oppression” ― includig economic oppression that typically doesn’t give rise to an entitlement to refugee protection ― from obtaining safety. Sadly, plenty of people think that the problem with existing immigration laws is the opposite: they still allow some people to come to Canada or the United States. If these people take it upon themselves to remedy what they see as injustice ― say by preventing prospective refugee claimants from reaching a border, or by hacking into a government computer system to destroy would-be immigrants’ applications ― how would we feel about that? We want, I think, to be able to say more than “your sense of justice is wrong”, and get into a shouting match about whether we or they are right. Pointing to the law is the best we can do ― but we can only do it if we too are law-abiding. The point, of course, is not that the existing immigration law is, substantively, a sort of half-way house between the wishes of open borders types and wall-builders; it’s that, to repeat, it is a common reference point that exists independently of our subjective views about justice.

Now, it is essential that opportunities to revise the law exist, and highly desirable that some of involve counter-majoritarian procedures, such as judicial review of legislation. The rules that provide these opportunities are valuable ― indeed, probably more so than any substantive laws by themselves ― and worth supporting. When people disobey the law instead of using these procedures, they undermine not only the law that they are actually disobeying, but the whole system of law as the means of provisional resolution of our disagreements with our fellow citizens, as well as the normal procedures for revising this settlement from time to time.

This is especially so when the people at issue are not ordinary citizens, but the very persons charged with implementing the law. Professor Somin does not really address this distinction, but I think it is important. Civil disobedience by a citizen (or a business) can be admirable, but I am very skeptical indeed of civil disobedience by officials. Unlike citizens, officials who decline to enforce the law, if they do it consistently, can effectively change the law ― even though in most cases they are not authorized to do so. This subversion of the normal procedures for changing the law, whether democratic or judicial, risks doing more harm in the long run than it does immediate good.

But of course it is just as, and perhaps more, likely, that the disregard of a law by official charged with enforcing it will not consistent and even-handed. Sympathetic law-breakers ― sympathetic, that is, either in the eyes of the officials themselves, or in those of the public, like Équiterre ― will get a pass, while others will not. How many of Équiterre’s defenders would take the same position of the Chief Electoral Officer went after a right-wing think-tank? Non-enforcement of the law is likely to be arbitrary, and that too is a long-term evil that has to be weighed against any short-term benefits it may have in particular cases.

Now, of course there are extreme cases. Slavery is one. In a very different way, of course, the story of Tammie Hedges is another ― extreme in its senselessness if not in its savagery. As I said at the outset, I am sympathetic to Professor Somin’s view that law does not have an automatic claim to obedience ― certainly not from citizens, and perhaps not even from officials, though I think that it is often the case that an official ought to resign from his or her position rather than subvert the law by selective non-enforcement. The trouble is that any line one draws between extreme cases is likely to be subjective and blurry. I don’t have a good way of dealing with this problem, which probably takes away from whatever force my objections to Professor Somin’s position might otherwise have had. Still, I wanted to explain my disquiet in the face of what strikes as a far-reaching argument against the authority of law. “The law is harsh, but it’s the law” can indeed be a callous and highly objectionable position. And yet, the law has a value of its own that appeals to justice are liable to disregard, and it’s a value that I would like to hold on to, even though I too think that many of our laws, considered individually, are seriously unjust.