Constitutional Whiplash

Alford v Canada and a recent exchange

Last week, the Supreme Court issued its decision in Alford v Canada (Attorney General). The case concerns whether, and to what extent, Parliament can strip the protections of parliamentary privilege away from MPs and former MPs. The Court was called upon to interpret section 18 of the Constitution Act, 1867. One might expect, then, some engagement with the Court’s recent decision in Taylor, which I discussed here. As I noted, the majority in Taylor strongly affirmed its commitment to living tree-ism, rebuking an approach to constitutional interpretation very like the approach we take to statutory interpretation. Shortly after, I reflected upon whether a decision like Taylor could really settle disputes about constitutional methodology. My sense was (and is) that it can’t - that disputes about constitutional methodology are ultimately rooted in disputes about political morality, history, and more.

Even so, the decision in Alford is whiplash-inducing. Consider these passages from the majority opinion in Alford:

[47] The interpretation of a constitutional provision must be anchored in the meaning of its words, considered in context, with a view to the purpose it was intended to serve (R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at para. 16; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 155-56). Constitutional documents must be read generously and purposively within their textual, contextual, and historical confines (Blais, at paras. 17 and 40).

[48] The meaning given to a constitutional provision must also be harmonious with the structure of government implemented by the Constitution, as expressed through both the 1867 and 1982 Constitution Acts (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 50; Reference re Senate Reform, at para. 26). The interpretation of a single provision must be consistent with other provisions of the Constitution: one part of the Constitution cannot be construed to deprive another of its effect (New Brunswick Broadcasting, at pp. 373 and 390).

[49] The interpretive exercise is therefore guided and “constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies” of the system of government these enactments are intended to establish (Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 394).

Obviously, these passages do not directly contest the authority of Hunter v Southam. It is, after all, cited. But one struggles to reconcile the sweeping, strident language of the majority decision in Taylor with the muted language above. In particular, the emphasis on ‘text, history, and tradition’ - which was explicitly rejected by the majority in Taylor - has returned with a vengeance. This is all the more striking because Alford was decided by an 8:1 majority, and was written by Justice Rowe. 4 of the 5 members of the majority in Taylor signed on to Justice Rowe’s opinion. But how to square those two positions? Indeed, what is one to make of the fact that Taylor is not even cited in Alford? It is as though Taylor had never happened.

Those who are put off by the idea of living tree-ism will welcome this new development. But good grief. Even accepting that different approaches to constitutional interpretation will wax and wane over time, we are not even three months removed from Taylor. If it is too much to expect the Court as a whole to settle on a single interpretive methodology - to a point, I’m fine with different Justices having different views on this - surely it is not too much to expect the individual Justices to have more-or-less stable, coherent views on the subject. At the moment, I have difficulty seeing anyone other than Justice Rowe holding a consistent position. (This is not to say I agree with him on anything and everything - only to say that I can detect reasonably consistent threads and themes holding his different opinions together.)

Leonid Sirota has an excellent discussion of the Supreme Court’s wild inconsistency on constitutional interpretive methodology here. It is well worth a read, because it carefully lays out the Court’s to-ing and fro-ing. Again, what is galling is that this is being done without any acknowledgment by the Court that it is to-ing and fro-ing - as if we were all suffering from the jurisprudential equivalent of anterograde amnesia. Sirota rightly calls out the Court for this inconsistency - indeed, for appearing not to care that it is being inconsistent.

I want to wrap up with some observations about the end of Sirota’s post on Alford, and an exchange that occurs in the comments. Sirota states:

I have no time for the populist clowns demanding that Supreme Court judges be removed from office in case they dare make decisions that the clowns dislike. But it is difficult to be any more positive about a court that obstinately refuses to act like one. That would entail paying attention to precedent; not even necessarily to follow it — in any event it’s impossible to follow all the contradictory decisions the Supreme Court has produced in recent years — but to acknowledge its existence and put in the effort of separating the wheat from the chaff. It would entail, more broadly, being dedicated to legal doctrine, with all the complexities that such dedication can bring. It would entail, most fundamentally, being more interested in law than in vibes. There are one or two judges on the Supreme Court who are better at this than the others, but as an institution, the Court is an abject failure. This failure will not be corrected by replacing one lot of results-oriented judges by another, as the populists would do. But nor can it simply go unremarked upon, as polite Canadian consensus would normally have it.

Some of the language is regrettable. I tend to agree with Sirota that it would be a bad idea to fire Supreme Court judges who reach decisions we don’t like. Undermining judicial independence in that sort of profound way - not just criticizing judges but firing them for their judicial decisions and philosophies - is a genie that we could not put back in the lamp. It would suit no one’s interests in the longer term. The suggestion strikes many of us as over-the-top. (I say this with the greatest respect to Yuan Yi Zhu, who I regard as an enormously talented writer.)

Yet one must put the suggestion in perspective. To critics of Sirota (and, yes, Andrew Coyne), it is untenable to say in one and the same breath that ‘the Supreme Court is an abject failure as a Court, unconcerned with constitutional methodology or precedent or even the illusion of coherence’; and ‘but we cannot use the Notwithstanding Clause or do anything about the structural doctrines that rear their heads in cases like Taylor or do anything to strengthen the judicial culture’. The critics are not wrong to point out that there must be something that can be done if one believes in good faith that the Supreme Court is doing significant damage to the constitutional fabric. (This is, I have argued, a problem with Aileen Kavanagh’s excellent book on The Collaborative Constitution: it seems to have little to say about how to fix a collaborative system that has gone wrong.) And, without defending Yuan’s argument, I would note that his point at bottom was that there are few palatable options left for those who reject the Supreme Court’s general approach to constitutional decision-making, if the Court in Hak overturns Ford and imposes large restrictions on the use of the Notwithstanding Clause.

Critics need options. They can be told not to resort to nuclear options, but they must have something. And if they cannot trust that legal arguments will exert a pull on the Court’s decision-making (as Sirota himself suggests), what then?

Comments and suggestions welcome.