Bourgoin v. La Compagnie du chemin de fer de Montreal

The constitutional issue in Bourgoin was whether a federally-regulated railway could sell itself to a provincial government without the authorization of a federal statute.

The answer was "no."

This result turns a lot on the way that 19th century corporate law differs from that of the present-day. Old-time corporations did not just get the civil rights of persons (which would include selling assets to other persons). They also had to act in accordance with their authorized purposes. Naturally, if the railway was federally-regulated, these purposes had to be provided for by federal statute.

Cushing v. Dupuy

The enduring issue in Cushing v. Dupuy concerned whether a provision in the federal Insolvency Act making certain court judgements "final" meant the Judicial Committee could not hear an appeal. The Committee held that the effect of the provision was to exclude an appeal to the JCPC as of right, but did not effect the ability of the Committee to give leave. The rationale was that giving leave was an aspect of the Crown Prerogative, which could only be extinguished by a statute if the statute was explicit. The editor of the Appeal Cases court reports added "quaere, what powers may be possess by the Parliament of Canada so to do", a note that anticipated battles in the twentieth century.

So far, we have been able to avoid talking about the tricky ontological issues about what the Judicial Committee of the Privy Council really was. We were able to get away with just treating it like the final court of appeal for the Empire, which nineteenth century Canada was very much a part of. In the twentieth century, that gets embarrassing, but no one was worried about that when Britannia still ruled the waves and Gilbert and Sullivan were at the height of their creative powers. Why not have your final court in London? As we will see, the part of Canada least enthusiastic about dying to keep China British -- Quebec -- was even less enthusiastic about having the relative powers of the federal and provincial governments decided by a tribunal located in Ottawa and picked entirely by federal Prime Ministers. But that's all in the future.

But whatever its merits as an impartial and imperial adjudicator, the Judicial Committee was built on a pile of legal fiction. In theory, litigants did not appeal to the Committee in accordance with some procedure set out in a statute. The legal fiction was rather that the Queen Insurance Company or Madame Belisle, as a subject of Queen (and now Empress) Victoria, was appealing to the batty old Hanoverian herself. And as the descendant and ultimate successor of a Norman bastard with above-average luck and leadership skills, she had the prerogative right to entertain an appeal from one of her subjects that her judges had erred.

Now nineteenth century Brits were sharp enough to see that leaving deciding the fine points of insolvency law to a grumpy matron from a line of notoriously plodding intellects was not fair either to her or to the contending parties. Shortly before she came to the throne, Parliament had enacted the Judicial Committee Act, which provided that members of the monarch's privy council who had "high judicial office" would constitute a judicial committee, and the monarch could refer matters to them, and they would advise him or her about them. This was already standard practice when colonial appeals were taken to the monarch, and it was already invariably the case that the monarch would just rubber stamp whatever the Committee advised.

However, some peculiar features arose from this fiction. For example, unlike the House of Lords, which was the final court of appeal for England and Wales, and whose judicial functions were exercised by largely the same people, the Judicial Committee always gave a single set of reasons, without dissent, since it would not be seemly for Her Majesty to receive conflicting advice about what to do. This was all good, since dissents and concurring judgements are really exercises in ego, and confuse lawyers.

The legal fiction had more controversial consequences in that it implied that any restriction on the jurisdiction of the Judicial Committee was, in legal theory, a restriction on the traditional prerogatives of the Queen. The constitutional battles of the seventeenth century had confirmed that Parliament could curtail Crown prerogatives, but went along with a presumption (remaining to this day) that it would not do so unless it said so expressly.

Sir Montague Smith reasoned that the Act must have intended to eliminate appeals as of right, but it did not explicitly eliminate the "Queen's" power to give leave. It therefore remained. The Committee gave leave, but it didn't help the appellant, since they ruled against him anyway. Or rather, humbly advised Her Majesty that her colonial court knew what it was talking about. Since the underlying issue was a secured transaction question under the Civil Code, which could only confuse common lawyers, that was a good move.

Valin v. Langlois: Thumbs Up

Messrs. Bush and Gore were not the first to see the benefits of high-priced legal counsel when fighting over elected office. But the Judicial Committee in the 1870s at least was smarter than the SCOTUS about staying out.

Valin and Langlois were competing candidates for the riding of Montmorency in a long ago federal election. The 1874 Dominion Controverted Elections Act told such disputing candidates to take their petitions to the provincial superior courts. After losing on the merits, M. Valin complained that the provincial superior court could not have any such jurisdiction, because the "Administration of Justice in the Province, including the Constitution, Maintenance and Organization of Provincial Courts..." was vested in the provinces by section 92 (14) of the BNA Act. Our learned friend, and treasonous secessionist, Mr. Benjamin represented M. Valin before the Committee. He tried to persuade them that the Feds would have to create their own special federal court to hear such petitions, as they could do under s. 101 of the BNA Act.

The Committee ruled that s. 92 (14) did not agree. If Parliament had legislative authority (as it clearly did over federal election disputes), then it could choose whether to vest adjudicative jurisdiction in the provincial courts or in specially created federal ones. It didn't have to refer federal questions to federal courts.

This preserved our (almost) unitary judicial system, in which provincially-organized but federally-appointed trial courts are subject to provincial appellate courts and then the Supreme Court of Canada. This is a jolly good thing because it reduces the amount of jurisdictional craziness we have to deal with, and means our Supreme Court has to deal with some real, provincial law issues from time-to-time.

So thumbs up.

Case Comment of Valin v. Langlois (1879), 5 A.C. 115 (J.C.P.C.)

A.G. Quebec v. Queen Insurance Company -- Thumbs up

Stamp taxes, legitimacy of enactment thereof. Some countries fight world-historic revolutions and found entire civic religions on the iniquity of imposing them without clear constitutional authority. Others relegate these issues to cases so obscure they don't have their own Wikipedia entry. But we got Mounties, Moose and Molson. So there.

It is sometimes thought that innovation and creativity do not mix with government work. Whatever the merits of this stereotype in the provision of public services, it has never been true at the treasury. Governments from the Tudors to today have been willing to give their right brain all the permission it needs to get freaky when coming up with new sources of revenue, especially revenue that can be characterized as something other than a tax.

The British North America Act restricted the provincial tax power to "direct taxation" (s. 92(2)). But they were also given power over "Shop, Saloon, Taven, Auctioneer, and other Licences in order to the raising of a Revenue..." (s. 92 (9)). In 1875, the legislature of Quebec got the bright idea of requiring a licence to sell insurance legally in Quebec, the only term of which was that the licensee remit a portion of premiums collected to the provincial fisc.

The Judicial Committee easily saw that this was in fact a tax, not a licence, and an indirect one. The real difficulty was in the line drawing, which the Committee did not do perfectly.

Tax, licence: what's the difference?

Quebec's scheme did not provide for any fixed cost for the "licence." All the payments were based on the revenues of the insurance company. Judah Benjamin was once again Quebec's lawyer, and he pointed to other licensing schemes in the Empire in which the amount paid for the licence depended on the amount of business done. The Committee agreed that this was a good approach (important!), but thought there was a big difference between a licence fee based on past experience of the profits or revenues associated with the licence, and a "fee" that just was a share of those profits/revenues.

As a way of disposing with the particular case, this worked. But the line is inherently subject to manipulation by the government. The Privy Council introduced an important methodological point by saying that when considering what kind of statute constituted a licencing scheme, the judges should look at how other licencing schemes worked at the time. But formalism does seem to rule here. This area cries out for an economic analysis that nineteenth century judges were good at intuitively, but did not have the theoretical arsenal to express.

We have since moved to the principle that licence fees should be proportionate to the costs imposed on government by the licensing industry. This does cut back on the phrase "in order to raising a Revenue..." since cost-recovery is not really raising a revenue. The solution would depend on looking for actual scarcities that lead to rents that the province should be allowed to use to fund public services. A modern example (although familiar in certain contexts at the time) would be selling a licence to use up some of the assimilative capacity of the environment. There is a finite limit to how much capacity there is, so the government should be able to charge the competitive price and use the resulting revenue.

Direct vs. indirect taxation

On the question of what constituted "direct taxation", the Committee was prepared to go to social science (which in this case meant Mill's political economy). I hate to bring this up for two reasons:

• My law professors told me that using social science was invented in the 1970s by the judges they approved of (Laskin and Dickson). 
• The direct vs. indirect taxation distinction does not really work as a matter of economics. That's because it is supposed to be about who bears the ultimate incidence of the tax. If it is the same person as the legal payer, then it is a direct tax; otherwise, it is an indirect tax. But the marginal revolution in economics ultimately revealed that this depends on the elasticities of supply and demand, which could change while the legal form of the tax remained the same. The constitutionality of the tax couldn't really depend on changes in preferences and technology that left the law the same. So we got a lot of confusion. The real point should have been to require the provincial governments to be as transparent to their voters as possible about the costs of taxation.  That is actually more-or-less what happens, but it would have been better not to bring social science into it.

Still, the JCPC struck down a law for the first time when that law was well worth striking down. Thumbs up.

Case Comment on A.G. Quebec v. Queen Insurance Company, (1878) 3. A.C. 1090 

Dow v. Black -- Spending Power -- Thumbs Down

Case Summary of Dow v. Black, [1875] UKPC 17. The origins of the spending power.

The Pithlord lives in a town that enjoys arguing about municipally-financed infrastructure projects (right now, a bridge and a sewage treatment plant generate most of the passion). Perhaps you do too. James Dow and William T. Black, who made their home in Confederation-era New Brunswick, certainly did. They were on opposite sides of a knock-down municipal battle about whether to subsidize a rail link to Maine.

The town of Boulton in Maine was willing to put up some of the capital to encourage a private company to build the link, but only if the corresponding New Brunswick parish of St. Stephen would match them. Dow and his supporters saw the benefits in jobs and cross-border shopping opportunities. Black and his cronies saw no reason for local taxpayer to foot the bill for a profit-making white elephant.

Weeks after New Brunswick became part of the new Dominion of Canada (to considerable controversy), its legislature passed a bill authorizing St. Stephen to borrow money for the project if 2/3 of the ratepayers voted "yes". Bill Black spoke for the motion. Jim Dow against. Bill and his friends got the necessary votes.

And so it would have ended, had not Jim Dow been a pioneer in trying to reverse political losses to court. He noted that s. 92 (10) of the British North America Act  gave authority over railways "extending beyond the Limits of the Province" to the feds.  He persuaded the New Brunswick Supreme Court (there is still no Supreme Court of Canada) that this was so.

Black's lawyer -- the former Secretary of State for the Confederacy, and now a British barrister named Judah P. Benjamin argued that railways "extending beyond the Limits of the Province" did not include railways going to other countries. This was a dumb argument, and did not persuade the Privy Council. But they ruled for his client, and provincial authority, anyway.

The Law Lords distinguished sharply between regulatory authority and spending resources. The Act, they said, "was merely one which enabled the majority of the inhabitants of the parish of St. Stephen to raise by local taxation a subsidy designed to promote a work which they considered for the benefit of their town..." It was the same as if a private association or individual spent private resources for the same purpose.

This move --approved by conventional opinion to this day -- ultimately dooms classical federalism. Ultimately, subsidizing or penalizing activity is a (perhaps imperfect) substitute for requiring or banning it. If a provincial entity can tax and spend in federal areas, or (more importantly ultimately) a federal entity can tax and spend in provincial areas, then there is really no line between the two, other than the line they negotiate.

This move rests, moreover, on a fallacy. State resources are not like private resources. They are obtained coercively. The coercion can only be justified because of the purposes the state needs to fulfil. When that state is a federation, the purposes for which each level of government should be able to tax (and therefore spend) should properly be seen to be limited by the constitution.

I would therefore have dissented. (Except the Privy Council did not allow dissents. And I wasn't born for another century.) Building international railways was not among the proper functions of local governments under the post-Confederation arrangement, and therefore not something the local government (or any other provincial entity) should have been allowed to spend money on.

Postscript on municipal taxation: Dow is the source of the proposition that municipalities can tax their citizens if provincial legislatures authorize them to do so. Bill Black made an interesting argument to the contrary that the Privy Council didn't give a fair shake to. Section 92 (2) gives the provinces power tl make laws in relation to "Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes." Contrast this with section 92 (9) referring to "Shop, Saloon, Tavern, Auctioneer and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes."

A good argument now and a good argument then was that the inclusion of "local or municipal purposes" in section 92 (9) renders their exclusion in 92 (2) meaningful. It would suggest that the BNA Act thought licence revenue should be sufficient for municipal and local government purposes, and therefore that taxation could only be used for provincial purposes. But the Judicial Committee didn't buy it, so if you are a homeowner, you still have to pay property taxes.

Wikipedia's take on the case  is here.
 

L'Union St-Jacques de Montréal v. Dame Julie Bélisle -- Provincial Insolvency Powers -- Thumbs Up

Canadian constitutional law starts with a widow's fight for her pension. Consistent with our jurisprudence's lack of a sense of potential movie adaptation rights, she lost.

As the Pithlord grows older, few phrases evoke more pity or fear into his heart than "actuarial insolvency". As the former firefighters and teachers of Detroit have discovered, a promise to pay a benefit is only as good as the funding available to pay it. Human nature being what it is, error or misfeasance may mean that the funding is not good enough. At that point, someone does not get what they were promised.

Actuarial insolvency brought down Detroit, it brought down Greece and it could bring down all the western countries, since in a demographic decline, no solution seems likely to pass without the support of physically frail, but politically potent oldsters. The Pithlord imagines a death spiral in which more and more financial demands are placed on the still-fertile, who react by having even fewer kids. Eventually, the forest returns, preferably with some suitable Wagnerian background music.

Nineteenth century Quebec did not have those kinds of demographic worries, since most people could number their siblings with double digits. It also did not have state-sponsored social security systems, solvent or otherwise. It did have numerous benevolent societies, which collected premiums and then promised pensions and other insurance. L'Union St.-Jacques du Montréal was one such institution. Unfortunately, its actuaries weren't up to snuff, and it ended up owing a number of widows more in pensions than it could afford to pay. Some of the widows agreed to voluntary reduction, but as with Argentina's creditors today, there were hold outs. Julie Bélisle was one. She insisted on being paid what she had been promised. And her stuborness started the whole tradition of Canadian constitutional jurisprudence.

The provincial legislature of Quebec (not yet calling itself the National Assembly) responded to the dilemma by restructuring all the pensions. Each of the widows would get $200 as capital, plus a possibility of more if the association got out of its financial difficulties. This was an ad hoc, political solution, but as General Motors and Chrysler taught us, we can't afford to be superior about it.

But ad hoc political solutions do not always have much legitimacy, and Madame Bélisle did not like the restructuring of her pension one bit. She pointed out that "Bankruptcy and Insolvency" is a matter to which "exclusive Legislative Authority" was given to the federal Parliament by item 21 of section 91 of the then-recent British North America Act, 1867. Only the feds could do what the province had done. She had a powerful argument, since in substance the province was restructuring obligations of an insolvent entity. The association argued that such a private Act (quite common in the 19th century) fit within the class of "Generally all Matters of a merely local or private Nature in the Province" given to the provinces by section 92 (16).

The Canadian court agreed with the widow, but the Privy Council did not. Certainly, the federal Parliament could have passed a general law dealing with the insolvency of beneficial societies. But it had not. It was therefore open to the province to deal with the sticky situation in a specific case. The Privy Council were conscious of how much of private law is really about priorities when there is not enough to go around, and saw that a rule like the one Madame Bélisle was seeking would have destoryed much of a provincial legislative power:

Their Lordships are by no means prepared to say that if any such law [as a general insolvency law for associations] had been passed by the Dominion Legislature, it would have been beyond their competency; nor that, if it had been so passed, it would have been within the competency of the provincial legislature afterwards to take a particular association out of the scope of a general law of that kind [...] But no such law every has been passed; and to suggest the possibility of such a law as a reason why the power of the provincial legislature over this local and private association should be in abeyance or altogether taken away, is to make a suggestion which, if followed up to its consequences, would go very far to destroy that power in all cases.

B´lisle is now a pretty obscure case, even though it was the first and even though the issues in it are still with us. But it is useful for the following points:

• While it has been suggested (most recently in the Tsilhqot’in case, that overlapping jurisdiction is a "modern" problem based on our "more complex" society, courts had to grapple with it from the beginning.
• Relatedly, the very earliest case suggested a reluctance to declare provincial laws invalid for entering the federal sphere when the federal Parliament had done nothing inconsistent with what the province was trying to do.
• * If the heavily centralist approach of the early domestic courts had prevailed instead of the approach of the Privy Council to respect provincial autonomy and diversity in private law, the country would have looked very different. As Trudeau suggested, Quebec secession would then have been an accomplished fact.

Wikipedia's account is here.

Don't Feel Bad, Colby

Colby Cosh thinks federalism jurisprudence ought to be clearer than it is.

You would think that Canadian jurisprudence had developed a clear objective rule for settling even the trickiest “double aspect” issues, wherein both federal and provincial governments can claim that some crumb falls within their respective spheres of constitutional power.

You would, apparently, be wrong.

Actually, though, no one has ever been able to predict how the Supreme Court of Canada would determine federalism cases. It's a mess, and it's been that way since Duplessis was unable to stop St. Laurent from abolishing appeals to the Judicial Committee. Since that time, the Court has been split between the terminally confused and those who never wanted to strike down any legislation, provincial or federal, on division-of-powers grounds -- a position more-or-less adopted by the SCOTUS after the 1930s and defended for Canada by Paul Weiler.

Thoughts on Binnie on Original Intent

Scalia and Binnie had a set-to on originalism at some forgotten conference half a decade ago. It can be found in (2004), 23 S.C.L.R. (2d).

Binnie acknowledges a heavy debt to his clerk, Patricia McMahon, an academic historian, and I don't think he was just being overly generous.

For the most part, it is reasonably sensible and just rejects a cartoon "original intent" school that no serious person supports anymore anyway. Binnie says he can see merit in Scalia's more sophisticated original semantic meaning views. He points out that nineteenth century courts did not look with favour on extrinsic evidence of what politicians thought they were doing when they enacted statutes, including the BNA Act, but of course Scalia hates that more than anybody.

Binnie notes that originalism has played a big role in the Canadian courts' interpretation of education rights and s. 96 (which constitutes the federally-appointed superior courts).

An originalism that is just about linguistic change won't have much effect on interpretations of a document written in 1982. The only significant change since then is that "sex" now just refers to the act and we would no doubt use "gender" in section 15 if it were written today.

Binnie's defence of the Motor Vehicle Act Reference is no good, though. (Perhaps in another post I'll say why._

Purposes of Federalism

Marnie takes issue with my claim that "it's hard to see why you would have a federation if you don't have free trade within it." and with the connection between intra-federation free trade and the "national treatment" and "most favoured nation status" principles of international trade law.

Free trade within British North America was definitely one of the objectives of Confederation, and it was motivated largely by the loss of the Reciprocity Treaty at the hands of the protectionist and anti-British Republicans. See both the federal "trade and commerce" power in section 91 of the BNA Act and the words of s. 121, "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces."

"National treatment" and "most favoured nation status" are non-discrimination principles. Goods produced and services supplied from other countries should neither get worse nor better treatment than those produced and supplied in your own. That's the basic norm of international trade law. It is also enforced between the American states by the courts under the "dormant commerce clause." Unfortunately, it has relatively little (but not zero) support in Canadian constitutional law.

Barry Weingast defines the requirements of growth-inducing federalism as fourfold:

F1. Hierarcy There exists a hierarcy of governments with a delineated scope of authority. (Ideally, Lord Atkin's watertight compartments.)

F2. Subnational autonomy. Do the subnational governments have primary authority over public goods and service provision for their territories? (The subsidiarity principle.

F3. Common market. Does the national government provide for and police a common market that allows factor and product mobility?

F4. Hard budge constraints. Do all governments, especially subnational ones, face hard budget constraints? (Not if Danny Millions or Ahhnold can help it, they don't).

F5. Institutionalized authority. Is the allocation of political authority institutionalized or within the sole control of one of the levels of government?

When you get all five of these, federalism promotes effective government and economic growth. When you don't, it doesn't.

Interestingly, Canada was really only able to maintain all 5 of these conditions when its federation was policed from outside, i.e., by the Privy Council. Since we let the final decisions be made by a branch of the federal government, all 5 of them have declined.

If Diversity and Feedback are good for decision making, then courts must be bad at it

Apparently, there's a vacancy on the US Supreme Court, and President Obama has nominated Judge Sotomayor of the Second Circuit to fill it.

Judge Sotomayor wants made some remarks to Berkeley law students that she hoped a "wise Latina woman" would do better than a white male at the judicial craft.

It has since been clarified that Judge Sotomayor misspoke. She was not claiming that Latina judges are in every respect better than crusty white guys, but only that diversity creates better decision making.

There's no doubt that Presidents deciding on Supreme Court justices have always considered diversity. In the nineteenth century, it was mostly just regional diversity. In the twentieth century, there developed a Catholic, a Jewish and then a black seat on the court. In Canada, we have of course always required three judges familiar with Quebec's civil code, and everyone would like to have an aboriginal nominee with passable credentials. These things are political reality, and there is no sense of "merit" such that it could always and everywhere trump it. Anyway, Judge Sotomayor seems to have the qualifications, along with a moderate and somewhat unpredictable judicial record.

So do the liberals win this argument? No, because the very point they rely on undermines the case for strong judicial review.

There is indeed some evidence that group decision-making is improved when those involved are relatively diverse, and therefore less inclined to groupthink. However, that fact isn't necessarily good for judicial liberalism, as we have come to understand it. No matter what their race and gender, appellate justices are necessarily an undiverse bunch. They have all been indoctrinated in the folk ways of a single profession. They are all in the top decile of intelligence, with extreme workaholic tendencies and bourgeois lifestyles. They live in Ottawa or Washington. They are bowed and scraped to all day by soft-spoken advocates and keener clerks. They almost never encounter the results of their decisions, with the principal feedback they get coming from other judges and law review articles written by people with less life experience than they have.

I'm not one to glamourize either politicians or voters, but they are a more diverse bunch. If diversity's so great, maybe we should leave the big decisions to them

Provincial Procurement Policy and the Federal Trade and Commerce Power

The Obama Administration and Harper Government are exploring a deal where the US would drop the "Buy American" provisions of the stimulus package in return for provincial governments dropping their own local preferences in government procurement.

Stockwell Day is consulting with the provinces, and says he won't do anything unless "most" of them agree.

Constitutionally, I think there is a decent argument that the Feds could pass a law requiring "national treatment" and "most favoured nation" status on provincial procurement rules. In the Inflation Reference, the Supreme Court upheld wage controls affecting the provincial public service. It is widely accepted that valid federal legislation can bind the Crown in right of a province.

The Inflation Reference upheld the federal law on the dubious grounds that 1970s-era inflation was an "emergency" akin to the world wars. But there's a better case that a principled-based law imposing on provincial governments the general requirements of international trade agreements (especially national treatment and most favoured "nation" status) would be wholly constitutional. Indeed, it's hard to see why you would have a federation if you don't have free trade within it.

What Should the Governor General Do?

That's easier.

She should give Harper any recess he wants ("proroguation" sp?).

She should not give him a new election ("dissolution". I know how to spell that one.)

Canadian Originalism

Via Larry Solum, I see Adam Dodek has written aneo-originalist defence of Bertha Wilson.

He's perfectly within his rights to do so. Originalism has always been a centralizing-liberal slogan in Canada. Frank Scott is our original originalist, as it were.

"The purpose of constitutionalism, which is to subject politics to higher norms of reason, is enhanced in its comparative form."

Professor Murkens defends comparative constitutionalism in an explicitly Platonic vein.

There are two contestable premises here:

1. Politics ought to be subject to norms of reason.

2. The international community of judges is a better source of reason than democratic politics.

What Should the Governor General Do?

It is now universally acknowledged that Prime Minister Harper will soon ask the Governor General for a dissolution of Parliament. Patrick Monahan argued in the Globe on Saturday that when he does, she has no choice but to give it to him. I think this is wrong. She should accept his resignation, but she should not dissolve Parliament until M. Dion has been offered a chance to form a Ministry and meet Parliament and has either (a) refused the Governor General's invitation or (b) accepted, and then lost the confidence of the House or been denied supply.


The dissolution of Parliament is a Crown prerogative, vested in the Governor General by Letters Patent of George VI in 1947 ((reproduced in R.S.C. 1985, App. II, No. 31). Legally, she can dissolve Parliament or not at her wish. This power was retained by Bill C-16, which created fixed election dates, and indeed it was confirmed that the dissolution of Parliament was 'at the Governor General's discretion."


Of course, responsible government implies the convention that -- in general -- she will only exercise her powers at the "advice" of the Prime Minister. The extensive legal powers of an appointed Governor General are only acceptable in a democracy because she almost never uses them.


However, as the King-Byng and Whitlam-Kerr crises show, and as the Supreme Court of Canada recognized in the Patriation Reference, the general rule that the Governor General must do what the Prime Minister says (whether or not she agrees) is subject to limits. Democratic legitimacy and responsible government are the basis for the rule, but they are also the basis for exceptions. It is only because the Prime Minister presumably enjoys the confidence of the House that the Governor General should listen to her, rather than to someone else.


If Mr. Harper tells Mme. Jean that Parliament is "unworkable", then that amounts to saying that he can't work it. He does not think he enjoys its confidence, at least if he wants to do what he feels he must. She has no business in going behind this statement. If the electorate think he is really motivated by a desire for a tactically-favourable election date, it is up to them to punish him.


However, by saying that he can't work with this Parliament, Harper also ceases to have the legitimacy of responsible government behind his "advice." If there is even a remote possibility that someone else can form a Ministry, then that person should be invited to do so. There are innumerable examples from before the modern party system calcified of Parliaments long outliving Ministries.


Before the fixed date amendments to the Elections Act, it could be argued that whether the failure of a Ministry implied the failure of Parliament was a matter of political judgment. Therefore, it was said, the Governor General should only disregard the Prime Minister's advice when it was clearly abusive (for instance, if it occurred very soon after the election). However, it seems to me that the fixed election date changes that. Parliaments are presumed not to fail until their time expires -- it is only if the Governor General has exhausted potential ministries that she should go to the people.


The Liberals have never had a chance to try to make this Parliament work. They could decide that it isn't in their interest to do so -- and if they did it would be harder for them to slam Harper politically for going sooner than Bill C-16 suggests is normal. Or they could bring forward a budget and legislation based on their green tax proposals and dare the (now) opposition to bring them down. But they should get the chance.

Supremes Reverse Onus, Claim Societal Consensus

The Pithlord is two weeks behind in reacting to R. v. D.B.. When seventeen, D.B. got in a fight with another adolescent male, and left him for dead. He was charged with manslaughter. Five of the Red Nine struck down the presumption that young offenders will face certain serious violent offences in adult court. The rule now is that the Crown carries the burden of persuading a judge that adult court is the appropriate place.

My excuse, if any, is that the argument seems predestined to follow a very familiar series of steps. Populist critics will point out that the electorate views the current structure as too lenient on young offenders. The Court Party will respond by saying that the rule of law and individual rights are too important to be left to the hoi polloi. We seem to have an unresolvable dispute between government by experts and government by public opinion. All too familiar for any country that has judicial review of legislation. The tendency is just to move along, like you would when you see some hip hop kid in a mall simulatenously answering his cellphone and yelling at his girlfriend.

Except if you read the majority judgment, you come upon a paradox. The Court itself claims to be acting on the basis of a "societal consensus" -- in other words, public opinion. We are told that it is the social belief that youth and inexperience is a mitigating factor in criminal culpability that justifies what the Court is doing. The Charter itself is silent on the matter.

It is probably true that the weakest form of the principle of youth-as-mitigating-factor would get a large amount of support. The difficulty with this move is that the recognition of youth as a sometimes-mitigating factor is compatible not only with the system of presumptive offences, but even with abolishing the separate youth system altogether. A person could coherently think that youth is mitigating for minor crimes, but not for major violent ones. And since manslaughter has no minimum sentence, even a judge in adult criminal court would be entitled to take into account D.B.'s tender years and raging hormones.

What we (including Supreme Court of Canada justices) disagree about is not the principle, but the weight that should be given to that principle. On that question, the empirical evidence is that the people think too much weight is given to that principle, relative to the competing considerations of retribution, deterrence and so on.

More generally, the fact that there is a consensus that X (pateint autonomy, youth-as-mitigation) is an important consideration is never evidence that there is a consensus that X is the only consideration. And the courts themselves never treat X as the only consideration: they always end up "balancing" it against something else. But if they are "balancing" and the politicians are "balancing", why are the unstable political coalitions of nine lawyers in Ottawa entitled to greater respect than the unstable political coalitions of ... elected politicians?

That's not just a rhetorical question. In some cases, there is an answer -- democratic political processes may be inferior to oligarchic forensic processes on certain important questions.

The trouble is that the judiciary tends to intervene precisely where it is their own work that is being reviewed. The public is unhappy with criminal sentencing, particularly of juveniles, because it is done badly and erratically.

Fixation Thesis in Anglo-Canadian Law

Larry Solum's "fixation thesis" was always considered obvious in Anglo-Canadian law. From Maxwell's Interpretation of Statutes:

It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendents with the cicumstances to which it had relation, as well as with the sense then attached to legislative expressions.

The fixation thesis was the source of the maxim contemporanea expositio est fortissima in lege. The contemporaneous exposition need not be legally binding. If Lord Coke thought a statute meant X, then that was evidence it meant X, even when legislative history could not be admitted for interpreting recent statutes.

The phrase "circumstances to which it had relation" might seem to indicate an "expected application" theory of meaning. However, the English courts only applied the contemporanea expositio principle to very old statutes (more than a century) for which it could reasonably be assumed that linguistic change in the semantics of words had taken place: Campbell College, Belfast v. Commissioner of Valuation for Northern Ireland, [1964] 1 W.L.R. 912 (H.L.) at p. 941. So the expected application of long ago was only relevant to the semantic/intensional meaning that could be inferred from it.

Interestingly, at a time when stare decisis was still considered absolute, it did not apply to mistaken statutory interpretations on constitutional grounds.

Is There a Future for Originalism in Canada?

Larry Solum has posted a lengthy paper defending "semantic originalism" as the way to interpret (but not construct!) a written constitution.

The upshot is that originalism is right, but doesn't matter nearly as much as everyone used to think.

As Solum tells it, semantic originalism involves four claims:

1. The fixation thesis. The semantic meaning of the constitution (what is says, not what it does) is fixed at the moment it is adopted. Linguistic change since 1867 does not change what the BNA Act means.

Importantly, this does not imply that change other than in the meanings of words since 1867 will make no difference in how constitutional cases will be decided.

2. The clause meaning thesis. What matters is not what the authors of the constitutional text intended, but what a competent reader at the time would understand. Competent readers might be the general public, politicians, lawyers or possibly different groups for different clauses.

3. The contribution thesis. The meaning of the Constitution has some effect on the law of the constitution. Not necessarily a big one, though.

4. The fidelity thesis. We ought to respect the law, including constitutional law, unless there is a good reason not to.

Let's take the facts of Edwards v. Canada, [1930] A.C. 124 (P.C.) to see how this plays out. The British North America Act, written in 1867, permitted the Governor General to name "qualified persons" to the Senate. In 1867, women, including peeresses in their own right, were under a legal disability from voting in Parliament.

The Privy Council decided that women could be Senators. It could have done so by referring to the meaning of "person" in 1930, by referring to a secret intention of John A. MacDonald to have women as senators, by deciding that the constitutional law had changed in the interim or by deciding that excluding women from the Senate was too unjust a law to obey. If you attended U. of T. law school, you would be forgiven to think that that is what they did, although of course, they didn't.

The Constitution makers in 1867 presumably thought this disability would continue. However, as the Privy Council decided, the term "person", if unqualified, included women. Even if it was taken more narrowly to include only individuals with legal capacity, by 1930, married women had such capacity and therefore had become "persons," although they would not have been sixty years earlier. The Privy Council was aware that if the BNA Act had used the phrase "qualified men", then it would clearly be saying that women could not be Senators, regardless of whether that was a just result.

Solum distinguishes between "constituional interpretation" (which derives the meaning of the text) and "constitutional construction" (which is what judges do when the meaning runs out. Most cases are decided at the construction stage.

Solum says that "constitutional construction" involves vagueness and pragmatics (meaning of utterance, rather than utterance-type). Here I would tend to disagree. Pragmatics about the constitutional utterance itself go to interpretation. We know that the "United States" means the United States of America because of whose constitution it is, just as we know that "I did it" refers to the Pithlord because of who said those words.

Where vagueness goes is more of a matter of choice, but vaguness definitely does not exhaust the post-interpretive issues of constitutional litigation. The issue in constitutional construction is not usually what side of a vague line a statute is on, but whether certain social/moral facts are true. Whether lethal injection is "cruel and unusual" turns on the social fact of whether there is a less painful method to kill people and the moral fact of whether killing people that way is cruel. Whether the Ocean Dumping Control Act interferes with property and civil rights within the province depends on whether ocean dumping is a trans-border externality that requires a regulatory scheme to address. Whether the pre-1988 abortion law is contrary to the principles of fundamental justice depends on whether the tribunals it set up were unbiased and reasonably speedy.

Solum's form of originalism may not matter very much north of the border. In the Candian case, since our most controversial constitutional provisions are just over 25 years old, there has not been any linguistic change for the fixation thesis to operate on. Almost none of the Charter decisions turn on the semantic meanings of the words.

The exception may be those provisions where the words arguably had a "term of art" meaning in 1982. The critical example was "principles of fundamental justice," which had acquired among lawyers a purely procedural meaning as a result of previous Supreme Court decisions. Unfortunately, in 1985 when this provision was considered, we did not have a sophisticated originalism up here, and the Canadian courts would have been naturally resistant to Reaganite terminology.

620 Connaught Ltd. -- Good Result, Bad Reasoning

It is often said that the Canadian Constitution has nothing in it to protect property rights. But it is not quite so. There are constitutional restrictions on the ability of both levels of government to impose taxes, and these prohibitions indirectly protect property rights.

The provinces can only impose taxes if they are "direct" and "in the province." The federal government can employ "any mode or method of taxation"; however, the constitution still requires that taxes be set out in a money bill that originates in the House of Commons. Imposing a tax can't be a delegated power to be administered by some government official -- it must be done by Parliament itself. The Victorians who set up this thing thought these restrictions a big deal, since they go back to the English Bill of Rights and the final routing of the papists. "No taxation without representation" resounded in every Anglo place. And even if the restrictions on taking property through taxes are essentially procedural, they still do create a certain requirement of transparency.

However, these restrictions only work if the courts police the boundary of the concept of "taxation". There are no similar procedural restrictions on governments imposing fines or fees or user charges or pricing government property and services or taking property. So if these other ways of getting assets from private hands to the public treasury are not restricted in some way, the requirements for taxation cease to have meaning.

In principle, the courts recognize that non-taxation revenue measures have to be constitutionally scrutinized. Unfortunately, in its latest foray, the SCC gives way too much leeway to the man.

The case involved liquor licensing fees in Jasper National Park. If you want to sell booze in the Park, you have to get a licence, and pay $75 per year plus 3% of the value of sales from spirits and wines and 2% of the value of sales from beer. (The Pithlord complains parenthetically about the populist favouritism to beer drinkers.) Rothstein J. says that this is all OK, and not a tax, so long as the costs of operating the park far exceed the revenues generated.

That seems like the wrong test to me. If this were really about regulatory fees, the issue shouldn't be the cost of the parks as a whole, but the incremental costs of serving alcohol in them. The Feds don't seem to have had any evidence of these, so we get a lot of handwaving about "leeway", which is a bad way of enforcing the constitution.

There might have been a better way to look at this case. All the talk about "regulatory schemes" is a bit off topic, since the Feds' role here is not as regulator but landlord. It owns the park, and is really charging commercial rent. In the absence of monopoly power, the government can't get more out of its contracts than a private owner would anyway. In a sense, any captive audience is subject to monopoly power to some extent (which is why beer costs so much in airports), but since the returns to that monopoly situation will inevitably be extracted by someone (either the licensee or the government), there isn't any reason for the courts to get involved.

If the issue is recast as one of the Feds use of its property, though, it would provide some protection to licensees from regulatory increases in fees if those fees are inconsistent with the original license agreement. The State-as-sovereign can, of course, extract money from people in excess of what it can bargain for, but when it does it starts to look like a tax. So a narrower basis for decision would have been better.

The more significant problem with the decision is that, as written, it applies even to those fees that government charges for actual regulation, which is inevitably monopolistic. The lack of any need for a real link between the fees and the costs created by the party they are imposed is disturbing.

One reason NAFTA isn't going to have real environmental or labour standards

CTV says the Obama campaign has contacted the Canadian embassy to tell them not to worry about their protectionist rhetoric for the Ohio primary. Obama and the Canadian government both deny it, although apparently there was some sort of chat.

The Pithlord is not in a position to shed light on such backroom dealings. However, I do know that serious environmental and labour standards in NAFTA are not going to fly. Among the reasons is that most environmental and labour law in Canada is within provincial jurisdiction and, unlike in the US, there is no way for the Feds to require provinces to meet international commitments. This is the result of a Privy Council decision that made all my profs at U of T gnash their teeth, but nonetheless remains the law.