The imbroglio with the Ontario legislature\u2019s enactment of Bill 5 to restructure the Toronto City Council\u00a0a couple of months before an upcoming election, the Superior Court\u2019s declaration of that legislation unconstitutional, the threatened invocation of the \u201cnotwithstanding clause\u201d to override that declaration, and the Court of Appeal\u2019s restoration of what little sanity could still be restored by reversing the Superior Court\u2019s 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\u2019 preferred policy agendas and forestalled the seemingly obvious legal conclusions.<\/p>\n
Of course, such a creative argument had prevailed at the Superior Court, which (as for example Double Aspect co-blogger\u00a0Mark Mancini<\/a>, as well as\u00a0yours truly<\/a>, explained) ignored clear constitutional language on its way to finding that Bill 5 violated the guarantee of freedom of expression in the\u00a0Canadian Charter of Right and Freedoms<\/em>. Even more unorthodox reasoning was unleashed in attempts to argue that the Ontario legislature couldn\u2019t actually invoke the \u201cnotwithstanding clause\u201d, the constitutional text once again be damned. Mark\u00a0has written<\/a>\u00a0about\u00a0open letter<\/a>\u00a0in which professors who wouldn\u2019t dream of treating originalism as a serious interpretive methodology suddenly turned original-intentist \u2015 but that, at least, was an explicitly political text. Other arguments along similar, or even more outlandish, lines purported to be legal ones.<\/p>\n 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 \u2015 especially, though not only, the\u00a0Charter<\/em>\u00a0\u2015 is not so much a law that courts must apply as a sort of shadow in Plato\u2019s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution\u2019s text is not in any meaningful way binding on the courts;\u00a0 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.<\/p>\n Perhaps the latest contribution to the post-Bill 5 constitutional free-for-all is illustrative. It is\u00a0a post by Colin Feasby<\/a>, over at ABlawg, arguing that\u00a0section 3<\/a>\u00a0of the\u00a0Charter<\/em>, though it ostensibly only guarantees the right of Canadian citizens \u201cto vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein\u201d, really also applies to municipal and other elections, and to referenda. Now, I have learned a lot from Dr. Feasby\u2019s 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).<\/p>\n Dr. Feasby argues that \u201cthe lack of constitutional protection for important democratic processes\u201d \u2015 such as municipal elections \u2015 \u201cis an unnecessary defect in our constitutional arrangement\u201d. \u201cUnnecessary\u201d a word that I wouldn\u2019t use, and as will presently be apparent, Dr. Feasby uses it advisedly. However, I agree with him to this extent \u2015 the lack of constitutional protections for municipal institutions is indeed a shortcoming of our constitution, as I have\u00a0suggested here<\/a>.<\/p>\n Dr. Feasby, though, is not suggesting a constitutional amendment to remedy the defect he identifies. Rather, he \u201cproposes a way that the Supreme Court of Canada can remedy this defect\u201d. He argues that \u201ccourts have a role in ensuring that the democratic process functions so that the sovereign will of the electorate may be expressed without distortion\u201d, 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\u2019 role extends. Dr. Feasby thinks it allows the courts to embrace what he describes as a \u201cpurposive and \u2026 generous approach to interpreting\u00a0Charter<\/em>\u00a0rights\u201d, and \u201cimpose a rule\u201d according to which<\/p>\n 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.<\/p><\/blockquote>\n In other words, \u201ca body elected in processes governed by section 3 cannot delegate its power to an elected body chosen by electors with lesser constitutional protections\u201d.<\/p>\n 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 \u201cso long as those changes are consistent with the principles that animate section 3 of the\u00a0Charter<\/em>\u201c, 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).\u00a0Such claims should simply be rejected \u2015 as would that of \u201cCanadian citizens resident in Alberta\u201d demanding \u201cthe right to vote in Provincial elections in Quebec\u201d. That too seems fair enough.<\/p>\n There are other, more serious, problems with Dr. Feasby\u2019s 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 \u201cdemocratically chosen\u201d 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 \u2015 which include the ability to regulate large swathes of student and staff conduct \u2015 are ultimately exercised by (partly) elected boards and senates. (Whether the universities are subject to the\u00a0Charter<\/em>\u00a0in at least some areas is an open question, but there are good arguments for that view.) It\u2019s not at all obvious to me that, \u201cthe principles that animate section 3 of the\u00a0Charter<\/em>\u201d can be usefully applied to such bodies, even assuming that they can be\u00a0to municipalities and school boards. And it\u2019s not at all obvious that the argument for rejecting the claims of persons excluded from the relevant electorate \u2015 say, the consumers of professional services or of agricultural products \u2015 can be dismissed as easily as\u00a0 those of Albertans looking to vote in the Belle Province.<\/p>\n This problem becomes even more pressing if we take up Bruce Ryder\u2019s\u00a0suggestion<\/a>\u00a0\u201cthat a province that is bound by s.3 democratic norms shouldn\u2019t be able to do an end run around them after creating subordinate governments\u201d \u2015 seemingly regardless of whether these \u201csubordinate governments\u201d 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 \u2015 which means pretty much all of the administrative state. Anti-administrativist though I am, even I don\u2019t actually favour this approach. In truth, I don\u2019t suppose that Professor Ryder favours it either. He simply makes an argument that furthers his preferences in a particular controversy, and doesn\u2019t worry about its implications in future cases. I\u2019m 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.<\/p>\n 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, \u201can election of members of the House of Commons or of a legislative assembly\u201d does not mean \u201can election of members of a municipal council\u201d, or \u201can election of the benchers of a law society\u201d. Dr. Feasby invokes the \u201cliving tree\u201d view of the constitution, but he advocates something different than just reading the text in light of evolving social mores or trying to use \u201cprogressive interpretation\u201d to \u201caccommodate[] and address[] the realities of modern life\u201d, as the Supreme Court put it in\u00a0Reference re Same-Sex Marriage<\/em>, 2004 SCC 79, [2004] 3 SCR 698<\/a>, at [22]. It\u2019s not as if municipal election were a new phenomenon unknown to the framers of the Charter. It\u2019s just that Dr. Feasby thinks that the\u00a0Charter<\/em>\u00a0is only an imperfect statement of an \u201caspiration \u2026 to be a truly free and democratic society\u201d, which can be given whatever contents a court, under the guidance of progressive advocates, can come up with in a given case.<\/p>\n