Constitutional Forum (Journal)
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The Toronto Municipal Election: Judicial Failure to Protect the Structure of the Canadian Constitution
No full textIn Toronto (City) v Ontario (AG),1 a recent decision on the legality of legislative interference in the Toronto 2018 municipal election, the Ontario Court of Appeal makes an alarming attempt to rewrite the Canadian Constitution. The subject of this revision is the legitimate role of unwritten principles in constitutional interpretation. Robin Elliot maintains, in a leading scholarly treatment of the subject, that unwritten principles can inform constitutional interpretation in two main ways: first, they can provide an independent basis on which to overrule impugned legislation; second, they can assist in interpreting constitutional text.2 Elliot qualifies the former usage by limiting it to those principles that “can fairly be said to arise by necessary implication from provisions of the text of the Constitution … since they have the same legal status as the text.”3 The Court of Appeal, however, states that unwritten principles cannot be used as a stand-alone basis on which to overrule legislation.4
In this article, I draw on numerous Supreme Court of Canada decisions to argue that the Ontario Court of Appeal’s view of the Constitution is, with respect, fundamentally flawed. Unwritten principles inform the structure of a democratic constitution and thereby provide legislation with its claim to legitimacy. Legislation that violates foundational unwritten principles is, of necessity, subject to judicial challenge. I also argue that the Court of Appeal’s doctrinally unsustainable approach to unwritten principles led to a flawed ruling on the legality of Ontario’s interference in the 2018 Toronto election. In Reference re Senate Reform, the Supreme Court of Canada unanimously states that “constitutional interpretation must be informed by the foundational principles of the Constitution.”5 The Court of Appeal failed to provide any detailed consideration of the democratic principle, and thereby failed to recognize the constitutional imperative that protects the integrity of the electoral process.
*PhD in Constitutional and Administrative Law, Queen’s University. Principal of Public Law Solutions, a research firm in Toronto.[1] 2019 ONCA 732 [Toronto v Ontario (CA 2019)].[2] “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can Bar Rev 67 at 83-86, 141-42, and generally 86-98.[3] Ibid at 95. See also 83-84.0[4] Toronto v Ontario (CA 2019), supra note 1 at para 89.[5] 2014 SCC 32 at para 25 [Senate Reference]
Charter Injunctions, Public Interest Presumption, and the Tyranny of the Majority
No full textQuebec’s Bill 21, which seeks to restrict employees in its public service from displaying religious symbols at work, has attracted a number of constitutional challenges. In one of those challenges, Hak v Quebec (Attorney General), the plaintiffs sought an injunction suspending the operation of parts of Bill 21 pending a decision on the merits.1 Both the Quebec Superior Court and the Quebec Court of Appeal declined to issue an injunction. The majority of the Quebec Court of Appeal found that in enacting Bill 21 the legislature must be presumed to have acted in the public interest and, as such, the third part of the injunction test — balance of convenience — could not be satisfied.
The idea that Parliament and provincial legislatures must be presumed to be acting in the public interest — what I will call the public interest presumption — is problematic in Charter cases concerning constraints of fundamental rights and the treatment of minorities. Parliament and provincial legislatures are majoritarian institutions; they are the product of elections where the candidates and parties with the most votes win. A core objective of the Charter is to protect minorities from being oppressed by the majority. Giving too much weight to a majoritarian conception of the public interest in interlocutory injunction applications concerning minority rights undermines the Charter and negates injunctions and stays as elective remedies, particularly where an applicant establishes real harm. To fulfill the Charter’s mandate to protect minority rights it must be recognized that the government does not have a monopoly on representing the public interest and that a majoritarian conception of the public interest cannot control the outcome of the balance of convenience test in the face of evidence that other aspects of the public interest are harmed by the impugned legislation. This short article argues for a much weaker public interest presumption: one that may be rebutted by an applicant adducing evidence of harm to an identifiable group.
1 Hak c Procureure Générale du Québec, 2019 QCCA 2145 [Hak]
Compelling Freedom on Campus: A Free Speech Paradox
No full textIn 1985, it was largely unknown how the Supreme Court of Canada would respond to the Charter.1 At first glance, a drugstore’s right to be open for business on Sunday, selling groceries, plastic cups, and a bicycle lock, seemed an unlikely source of inspiration for the Court’s first pronouncement on the essence of freedom. Perhaps unexpectedly, the justices enforced the entitlement, finding that a Sunday closing law compelling a corporation to comply with the Christian Sabbath infringed section 2(a)’s guarantee of religious freedom.2 In doing so, R v Big M Drug Mart defined freedom as “the absence of coercion or constraint,” stating without equivocation that no one who is compelled “to a course of action or inaction” is “truly free”.3 In Justice Dickson’s considered view, coercion includes “blatant forms of compulsion”, such as “direct commands to act or refrain from acting on pain of sanctions”, as well as forms of indirect control.4 In plain and unmistakeable terms, Big M promised that, under the Charter, “no one is to be forced to act in a way contrary to his beliefs or conscience”.5
* Professor Emeritus, Osgoode Hall Law School. I thank Kate Bezanson and Alison Braley-Rattai for includingme in this special issue of Constitutional Forum, and am grateful to Kate Bezanson for her comments onan earlier draft. I also thank Ryan Ng (JD 2021) for his valuable research assistance in the preparation ofthis paper. Finally, I note that I was a member of York University’s Free Speech Working Group in fall 2018.This paper does not in any way express the views of York University or the Working Group, which has longsince disbanded.
1Canadian Charter of Rights and Freedoms, s 2(a), Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11 [Charter].2R v Big M Drug Mart, [1985] 1 SCR 295, 18 DLR (4th) 321 [Big M].3Ibid at 336.4Ibid.5 Ibid at 337
Un-Chartered Waters: Ontario’s Campus Speech Directive and the Intersections of Academic Freedom, Expressive Freedom, and Institutional Autonomy
No full textIn August 2018, the Ford Government in Ontario introduced a ‘Directive’ entitled “Upholding Free Speech on Ontario’s University and College Campuses” (the Directive).1 The Directive required all publicly supported universities and colleges2 in Ontario to create a free speech policy by January 1st 2019 that applies to “faculty, students, staff, management and guests,” and includes a) a definition of free speech, and b) reference to various “principles” of free speech similar to those elucidated by the University of Chicago (Chicago Principles).3 According to the Directive, speech that is otherwise illegal is not permitted. Illegal speech includes hate speech and uttering threats that are proscribed by Canada’s Criminal Code,4 defamatory speech which can give rise to both criminal5 and civil6 actions, as well as workplace harassment.7
* Dr. Alison Braley-Rattai is Assistant Professor of Labour Studies at Brock University. Dr. Kate Bezanson is Associate Professor of Sociology and Associate Dean of the Faculty of Social Sciences at Brock University.
1 Ministry of Training, Colleges, and Universities, “Upholding Free Speech on Ontario’s University and College Campuses” (30 August 2018) online: Government of Ontario Newsroom <https://news.ontario.ca/ opo/en/2018/08/ontario-protects-free-speech-on-campuses.html> [perma.cc/7VXR-K4RB] [Directive].2 This piece is only concerned about the university sector. There are noteworthy differences between colleges and universities with regard to topics discussed in this piece that are unexplored here.3 The Committee on Freedom of Expression, “Report of the Committee on Freedom of Expression” (2014) online (pdf): University of Chicago <provost.uchicago.edu/sites/default/files/documents/reports/FOECommitteeReport.pdf> [perma.cc/LAA4-RW43].4 Criminal Code, RSC 1985, c C-46, s 319(1).5 Ibid, ss 297-304.6 Libel and Slander Act, RSO 1990, c L.12.7 Occupational Health and Safety Act, RSO 1990, c O.1; Human Rights Code, RSO 1990, c H.19
Nothing to Declare: A Response to Grégoire Webber, Eric Mendelsohn, Robert Leckey, and Léonid Sirota on the Effects of the Notwithstanding Clause
No full textIn the wake of the legal challenge to Quebec’s law on state secularism,1 Professor Grégoire Webber, lawyer Éric Mendelsohn, and Dean Robert Leckey jointly published a post. In that post, they argue that the invocation of the "notwithstanding clause" in section 33 of the Canadian Charter of Rights and Freedoms does not preclude a court from making a declaration of "consistency." By such a declaration, a Court would declare the mere "inconsistency," not the invalidity or inoperability, of legislative provisions for which section 33 had been invoked with the constitutional rights from which they validly derogate.2 Their arguments ought to be reviewed and assessed, as they constitute creative but ultimately erroneous development in legal thought on section 33 in Canadian law.
1 Act Respecting the Laicity of the State, CQLR c L-0.3.2 Grégoire Webber, Eric Mendelsohn & Robert Leckey, “The faulty received wisdom around the notwithstanding clause” Policy Options Politiques (10 May 2019) online: <irpp.org/magazines/ may-2019/faulty-wisdom-notwithstanding-clause/>
Universities, the Charter, Doug Ford, and Campus Free Speech
No full textOn a warm summer day at the end of August 2018, Ontario Premier Doug Ford’s office issued a press release announcing, “Ontario’s Government for the People is delivering on its promise to uphold free speech on every Ontario publicly-funded university and college campus.”1 An accompanying “Backgrounder” spelled out the details.2 Although this policy seems progressive on its face, it is actually anything but. That said, it may have the unintended but beneficial effect of bringing Ontario universities under the Canadian Charter of Rights and Freedoms.3 More about that later. First, the problems.
* Distinguished Visiting Scholar and Director, Centre for Free Expression. Faculty of Communications & Design, Ryerson University.1 Office of the Premier, News Release: “Ontario Protects Free Speech on Campuses: Mandates Universities and Colleges to Introduce Free Speech Policy by January 1, 2019” (30 August 2018), online: Government of Ontario <news.ontario.ca/opo/en/2018/08/ontario-protects-free-speech-on-campuses.html> [Office of the Premier, “Ontario Protects”].2 See Office of the Premier, Backgrounder “Upholding Free Speech on Ontario’s University and College Campuses” (30 August 2018), online: Government of Ontario <news.ontario.ca/opo/en/2018/08/upholdingfree-speech-on-ontarios-university-and-college-campuses.html> [Office of the Premier, “Upholding Free Speech”]
Academic Freedom, Canadian Labour Law and the Scope of Intra-Mural Expression
No full textThe Murray Library is the central library at the University of Saskatchewan. In January 2013, the Library Dean announced that ten support staff in the University’s library system, including several working at the Murray Library, were to be laid off. All were women. After each staff member had been individually informed by the Dean that she was being laid off, she was told to collect her possessions and was then immediately escorted off the campus property. The layoffs were part of a University-wide cost cutting measure, which would ultimately result in 40 layoffs among the support staff across the campus. The support staff were unionized, in a bargaining unit represented by the Canadian Union of Public Employees.
The University librarians were also unionized, in a separate bargaining unit represented by the University of Saskatchewan Faculty Association. In the librarians’ collective agreement was a broadly drafted provision protecting academic freedom. Among other things, the provision guaranteed the right of the unionized librarians “…to criticize the University and the Association without suffering censorship or discipline.” This provision did not contain any language which would restrict the scope of its protection to reasonable or responsible comments. This right of faculty and librarians to criticize the university leadership is known, among the various features that make up academic freedom, as the freedom of intra-mural expression.1
* Associate Professor, Faculty of Law, Western University, London, Ontario, where he teaches labour law, human rights law, and constitutional law.1 See generally Matthew Finkin & Robert Post, For the Common Good: Principles of American Academic Freedom (New Haven, Connecticut: Yale University Press, 2009), ch 5
The Politics of Campus Free Speech in Canada and the United States
No full textOntario Premier Doug Ford and US President Donald Trump have something in common: both recently issued directives to colleges and universities intended to promote free speech on campus. Premier Ford’s came first. In August 2018, shortly after winning the provincial election, Ford required all colleges and universities in the province to devise policies upholding free speech on their campuses in line with a minimum standard prescribed by his government. The policies were to be in place no later than January 1, 2019. Failure to comply would result in a reduction of operating grant funding from the province. President Trump’s executive order concerning “free inquiry” on American campuses was issued in March 2019. The order states that it is the policy of the federal government to encourage institutions of higher learning “to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.”1 Colleges and universities that fail to do so are threatened with the loss of federal research and education grants.
* Associate Professor, Department of Politics, Faculty of Liberal Arts and Professional Studies, York University where he teaches political theory.1 Andy Thomason, “Here’s What Trump’s Executive Order on Free Speech Says”, The Chronicle of Higher Education (21 March 2019), online: <chronicle.com/article/Heres-Wat-Trumps-Executive/245943?cid+bn&utm_medium=en&cid=bn>. An executive order is a directive issued by the President of the United States in his capacity as head of the executive branch and has the force of law. Trump’s executive order on campus free speech is reproduced in its entirety online
Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Emissions Legislation on Provincial Jurisdiction
No full textFederal regulation of greenhouse gas (GHG) emissions presents a difficult challenge for Canadian constitutional law. The federal government’s legislation to implement a national minimum standard of GHG emissions pricing, the Greenhouse Gas Pollution Pricing Act (GGPPA), and the trio of reference cases launched by Saskatchewan, Ontario, and Alberta questioning its constitutional validity, have brought the law and politics of GHG emissions pricing to the forefront of Canadian federalism. In the two appellate court decisions delivered to date, the legislation has been sustained as a valid exercise of Parliament’s power to legislate for the Peace, Order, and Good Government (POGG) of Canada. In each case, however, judges have expressed significant concern with respect to the impact of the legislation on provincial jurisdiction.
We draw on recent and historic jurisprudence to characterize conceptual errors that have bedevilled POGG, specifically in the tendency to overestimate its impact on provincial jurisdiction. We then examine the existing interpretive principles that limit POGG’s ability to upend the critical balance inherent in the division of powers. Finally, we discuss how a properly empowered, calibrated, and constrained POGG relates to the GGPPA. We argue that the reduction of national GHG emissions constitutes a valid federal subject under the national concern branch of POGG, and that the GGPPA is a valid exercise of federal jurisdiction. We see no reason under the double aspect doctrine and cooperative federalism why provinces would lose any existing provincial jurisdiction as a result of the implementation of the GGPPA. Rather, a restrained approach to paramountcy, and the mechanics of the GGPPA itself suggest that provincial and federal legislation will work concurrently on GHGs. That seems entirely appropriate given the nature of the climate change crisis before us. In the legislative challenge of our time, we believe Canada’s Constitution is up to the task.La réglementation fédérale sur les émissions de gaz à effet de serre (GES) soulève de problèmes très difficiles pour le droit constitutionnel canadien. La législation du gouvernement fédéral visant à mettre en œuvre une norme nationale minimale de tarification des émissions de GES, la Loi sur la tarification de la pollution causée par les gaz à effet de serre, et les trois cas de référence lancés par la Saskatchewan, l\u27Ontario et l\u27Alberta remettant en question sa validité constitutionnelle, ont mis la loi et la politique de tarification des émissions de GES au premier plan du fédéralisme canadien. Dans les deux décisions de la cour d\u27appel rendues à ce jour, la législation a été maintenue comme un exercice valide du pouvoir du Parlement de légiférer pour la paix, l\u27ordre et le bon gouvernement (POBG) du Canada. Il importe toutefois dans les deux cas que les juges aient exprimé des préoccupations importantes concernant l\u27impact de la législation sur la juridiction provinciale.
Nous nous appuyons sur la jurisprudence récente et ancienne pour définir les erreurs conceptuelles qui ont affecté le POBG, notamment la tendance à surestimer son impact sur les compétences provinciales. Ensuite, nous examinons les principes d\u27interprétation existants qui restreignent la capacité du POBG à bouleverser l\u27équilibre critique inhérent à la division des pouvoirs. Finalement, nous discutons de la manière dont un POBG correctement habilité, calibré et limité est associé à la Loi sur la tarification de la pollution causée par les gaz à effet de serre. Nous considérons que la réduction des émissions nationales de GES doit constituer l\u27un des sujets fédéraux valables dans le cadre des préoccupations nationales du POBG, et que la Loi sur la tarification de la pollution causée par les gaz à effet de serre est un exercice valable de la compétence fédérale. Nous ne voyons aucune raison, en vertu du principe du double aspect et du fédéralisme coopératif, pour laquelle les provinces risqueraient de perdre toute compétence provinciale existante à la suite de la mise en œuvre de la Loi sur la tarification de la pollution causée par les gaz à effet de serre. Au contraire, une approche modérée de la primauté, et les mécanismes de la Loi sur la tarification de la pollution causée par les gaz à effet de serre elle-même suggèrent que les législations provinciales et fédérales vont travailler en parallèle sur les GES. Cette démarche semble tout à fait appropriée face à la nature de la crise du changement climatique actuelle. Dans le contexte du défi législatif de notre époque, nous jugeons que la Constitution canadienne est à la hauteur de la tâche
Do Consumers Really Benefit from the Federal Paramountcy Doctrine? A Critique of Director of Criminal and Penal Prosecutions v Telus Communications Inc.
No full textOn June 11, 2020, the Quebec Superior Court released its judgment in DCPP v Telus, confirming the validity, applicability and — for the most part — operability of many provisions of the Quebec Consumer Protection Act applying to wireless service contracts. However, the Court concluded that sections 214.7 and 214.8 of the Consumer Protection Act, which set a limit on the early cancellation fees that may be charged to consumers by wireless service providers, were in conflict with the CRTC Wireless Code for certain types of contracts and therefore inoperative. The analysis in this comment suggests that the Court’s application of the doctrine of federal paramountcy is far from a victory for consumers. This comment begins with an overview of the federal and provincial regulations applying to wireless service providers, and of the framework of division of powers used to determine how these two different sets of rules interact with each other. It then provides a summary of the reasons given by the Court of Quebec and the Quebec Superior Court. Finally, it discusses the Court’s analysis and conclusions, focusing on its application of the federal paramountcy doctrine and its impact on the protection afforded to consumers in their contractualrelations with telecommunications carriers. It concludes by explaining how the Court’s solution to resolving conflicts between the federal Wireless Code and the provincial Consumer Protection Act actually deprives consumers of specific procedural benefits and more generous remedies