“Equitable Compensation” for a Breach of the Crown’s Fiduciary Duty Towards First Nations
The Crown has a fiduciary relationship with Indigenous Peoples. What remedy do Indigenous Peoples have when the Crown breaches its fiduciary duty? The Supreme Court of Canada recently addressed this question in Southwind v Canada, which involved a breach that occurred nearly 100 years ago.
In February 1928, the Governments of Canada, Ontario, and Manitoba entered into an agreement to dam Lac Seul in order to generate electricity for the growing city of Winnipeg.[1] The governments planned to raise the water level of Lac Seul by ten feet, which they knew would cause “very considerable” damage to the Lac Seul First Nation (LSFN), whose Reserve was — and still is — located on the southeastern shore of the lake.[2] When the dam was built, “[a]lmost one-fifth of [LSFN’s] best land was flooded and … [LSFN’s] members were deprived of their livelihood, robbed of their natural resources, and driven out of their homes.”[3] LSFN was not consulted on either the project itself,[4] or on the adequacy of the $50,000 compensation package that Canada and Ontario paid into the LSFN’s trust account in 1943.[5]
As a general rule, the Crown owes a fiduciary duty towards an Indigenous group when it “assumes discretionary control over a specific Aboriginal interest.”[6] The Crown breached its duty in the Lac Seul dam project.[7] In this case, the remedy for the breach was “equitable compensation,” which the trial judge calculated according to what the Crown would have owed the LSFN under the laws of expropriation in 1929, when the breach occurred.[8] Mr Southwind, who was acting on behalf of the members of the LSFN, disagreed with this calculation and argued that the trial judge failed to consider the doctrine of equitable compensation in light of the constitutional principles of the honour of the Crown and reconciliation.[9]
On July 16th, 2021, the Supreme Court ruled on Mr Southwind’s appeal. This article will examine the Supreme Court’s decision on the appropriate legal remedy for a breach of the Crown’s fiduciary duty towards Indigenous Peoples.
The Nature of the Crown’s Fiduciary Duty Towards Indigenous Peoples
There was no question in this case that the Crown had breached its fiduciary duty to the LSFN; the Crown conceded this.[10] However, “the specific nature of the Crown’s fiduciary duty … especially over reserve land, informs how equitable compensation must be assessed,”[11] and so the Court began with an overview of the duty itself.
The fiduciary relationship between the Crown and Indigenous Peoples is sui generis in nature,[12] which means that it is unique and distinct from other legal relationships normally found in the common law tradition. As the Court stated in Southwind, this sui generis relationship is rooted in two principles of Aboriginal Law: (1) the honour of the Crown; and (2) the goal of reconciliation.[13]
The honour of the Crown is a constitutional principle that underpins Aboriginal Law,[14] the branch of Canadian constitutional law that deals with the rights of the Indigenous Peoples of Canada[15] and their relationship with the Crown.[16] It imposes a duty upon the Crown to act honourably towards Indigenous Peoples and to take their interests into account when it makes decisions that may impact them.[17]
For the Court, the principle or goal of reconciliation has two aspects. On the one hand, it seeks to reconcile “Aboriginal and non-Aboriginal Canadians in a mutually respectful long- term relationship.”[18] On the other hand, it seeks to make consistent two seemingly inconsistent realities: prior occupation of the land we now call Canada by Indigenous Peoples and the Crown’s assertion of sovereignty over that land.[19]
The second aspect of this principle is especially pertinent to the Crown’s control over reserve lands because “the Indigenous interest in land did not flow from the Crown; it pre-existed the Crown’s assertion of sovereignty.”[20] Further, Indigenous Peoples’ unique relationships with their land, and especially reserve land, heightens the importance of their interest in reserve land and by extension, the fiduciary duty.[21] In Southwind, the Court concluded that the Crown’s fiduciary duty “imposes the following obligations on the Crown:”[22]
“Loyalty, good faith, full disclosure, and, where reserve land is involved, the protection and preservation of the First Nation’s quasi-proprietary interest from exploitation.”[23] “[I]n the context of a surrender of reserve land … [the obligation to] protect against improvident bargains, manage the process to advance the best interests of the First Nation, and ensure that it consents to the surrender.”[24] “In an expropriation, the obligation to ensure consent is replaced by an obligation to minimally impair the protected interest.”[25]
The Principles of Equitable Compensation for Breach of the Crown’s Fiduciary Duty
To quote the Court in Southwind:
When the Crown breaches its fiduciary duty, the remedy will seek to restore the plaintiff to the position the plaintiff would have been in had the Crown not breached its duty … [and w]hen it is possible to restore the plaintiff’s assets in specie, accounting for the profits and constructive trust are often appropriate.[26]
“In specie” means that the actual assets would be returned — for example, in this case, the assets in specie would be the flooded land.
In cases where returning the actual assets is not possible, such as this one, equitable compensation is the appropriate remedy.[27] While both parties agreed on “[t]he basic principles of equitable compensation … [they] disagree[d] about their application to the Crown’s fiduciary duty in relation to land held for the benefit of Indigenous Peoples.” [28]
The doctrine of equitable compensation has two objectives: (1) to remedy the loss suffered by “restor[ing] the actual value of the thing lost through the fiduciary’s breach” (the “lost opportunity”),[29] and (2) to enforce the trust which forms the heart of the fiduciary relationship by deterring future wrongdoing.[30]
To be eligible for equitable compensation, the plaintiff must show that the fiduciary’s breach —in this case the Crown’s breach — caused their lost opportunity.[31] Here, the Court clarified that the test for causation is the low-threshold “but for” test: but for the fiduciary’s breach, would the plaintiff have suffered the loss?[32]
The Court further explained that a fiduciary cannot limit their liability by arguing that the loss suffered by the plaintiff was unforeseeable.[33] The doctrine of equitable compensation aims to “compensate … the plaintiff for the lost opportunity caused by the breach, regardless of whether that opportunity could have been foreseen at the time of the breach.”[34] Equitable compensation, the Court continued, will “[look] at what actually happened to values in later years,” even if it causes an “unexpected windfall” to the plaintiff.[35] This is because equitable compensation “look[s] to the policy behind compensation for breach of fiduciary duty and determine[s] what remedies will best further that policy.”[36] The dual purpose of remedying the loss suffered and deterring future wrongdoing therefore drive the calculation of equitable compensation, and foreseeability is not relevant. In the context of a fiduciary breach, equitable compensation “should not be limited by foreseeability, unless it is necessary to reach a just and fair result.”[37]
To inform its assessment in Southwind, the Court set out several presumptions and requirements that apply to equitable compensation:
The presumption that “the plaintiff would have made the most favourable use of the trust property,”[38] although “[t]he most favourable use must be realistic.”[39] “The focus is always on whether the plaintiff’s lost opportunity was caused in fact by the fiduciary’s breach.”[40] The presumption of legality — that parties would have complied with the law — which “prevents breaching fiduciaries from reducing compensation by arguing that they would not have complied with the law.”[41] In a case of failure to disclose material facts, the breaching fiduciary cannot argue “that the outcome would be the same regardless of whether the facts were disclosed.”[42]
How to Calculate Equitable Compensation for the Crown’s Breach of its Fiduciary Duty Towards Indigenous Peoples
The Court disagreed with the trial judge’s decision to calculate equitable compensation based on the amount required under the expropriation laws that existed at the time of the breach.[43] It was incorrect, the Court said, to presume that Canada would have failed to reach an agreement with the LSFN and would have proceeded directly to expropriation. In this regard, the trial judge erred by “focus[ing] on what Canada would likely have done instead of what Canada ought to have done as a fiduciary.”[44]
Following the first step in assessing equitable compensation the Court “determine[d] what the fiduciary would have been expected to do had it not breached its obligations.”[45] In this case, although Canada had the legal discretion to expropriate lands[46] or take up lands for public works,[47] this did not preclude it or excuse it from carrying out its fiduciary duties.[48] Rather, Canada was expected to represent the interests of the Indigenous Peoples to whom it was a fiduciary while at the same time considering the broader public interest.[49] Before resorting to expropriation laws, “Canada ought to have first attempted to negotiate a surrender” of the land in accordance with its fiduciary obligations.[50]
The Court then provided guidance on how to calculate the value of LSFN’s lost opportunity caused by this breach. In the Court’s view, this calculation must be based on what Canada ought to have done: namely, “to negotiate in order to obtain the best compensation based upon the value of the land to the Project.”[51] In Southwind, this meant considering the value of the land in light of its anticipated use for hydroelectricity generation.[52]
Finally, the Court confirmed that the calculation must consider whether the “award is sufficient to fulfill the deterrent function of equity.”[53] Deterring the Crown from breaching its fiduciary duty to Indigenous Peoples is “especially important,” the Court said, because it encourages the Crown to act honourably and with a view towards reconciliation.[54] The award should therefore be such that it acts as a meaningful deterrent and thereby reflects “the honour of the Crown and the goal of reconciliation.”[55] Conclusion
The outcome of the Supreme Court’s judgment in Southwind is that the case goes back to the trial court, which must now reassess the equitable compensation award to the LSFN based on the Supreme Court’s guidance.[56] Above all, the Supreme Court’s decision reaffirms that the Crown’s fiduciary duty towards Indigenous Peoples is alive and well, especially as it relates to reserve lands. It confirms the Crown’s obligations that arise from its fiduciary duties in relation to reserve lands, and frames equitable compensation in a way that upholds the honour of the Crown and the objective of reconciliation. As the Court recently held in Desautel, “the honour of the Crown looks back” to the Crown’s assertion of sovereignty over Indigenous Peoples and “also looks forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[57]
[1] See Southwind v Canada, 2021 SCC 28 at para 1 [“Southwind”]. See also paras 17-20.
[2] Ibid at paras 2-3. See also paras 14-16.
[3] Ibid at para 2 (internal quotations removed). See also paras 27-28.
[4] Ibid at para 4. See also paras 20-26.
[5] Ibid at paras 29-30.
[6] Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 (CanLII) at para 73(1).
[7] See Southwind, supra note 1 at paras 37-42, 87-89 and 94.
[8] Ibid.
[9] Ibid at para 49.
[10] Ibid at para 54. [11] Ibid.
[12] Ibid at para 60.
[13] Ibid at para 55.
[14] Ibid.
[15] See Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35.
[16] See Thomas McMorrow, “Upholding the Honour of the Crown” (2018) 35 Windsor YB Access to Justice 311 at 313.
[17] See Southwind, supra note 1 at para 55.
[18] Ibid.
[19] Ibid.
[20] Ibid at para 56 (emphasis in original).
[21] Ibid at para 62.
[22] Ibid at para 64.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid at para 68.
[27] Ibid.
[28] Ibid at para 65.
[29] Ibid at para 69. See also paras 67 (“Equitable compensation … is a loss-based remedy; the purpose is to make up the plaintiff’s loss”) and 68 (when it is not possible to restore the plaintiff’s assetsin specie, “equitable compensation is the preferred remedy”). [30] Ibid at paras 66, 71-72.
[31] Ibid at para 70.
[32] Ibid at para 75.
[33] Ibid at paras 66, 74 and 77.
[34] Ibid at 74.
[35] Ibid at 76.
[36] Ibid at para 73.
[37] Ibid at para 76 (citing Hodgkinson v Simms, 1994 2 SCR 377 at 443).
[38] Ibid at para 79.
[39] Ibid at para 80.
[40] Ibid.
[41] Ibid at para 81.
[42] Ibid at para 82.
[43] Ibid at para 89.
[44] Ibid. See also para 111.
[45] Ibid at para 93.
[46] Ibid at para 94.
[47] Ibid at para 96.
[48] Ibid at paras 94 and 96-97.
[49] Ibid at paras 101-03.
[50] Ibid at paras 112-14.
[51] Ibid at para 118. See also paras 121-22, 127 and 129. [52] Ibid at para 127. While Justice Côté agreed with the majority that Canada ought to have negotiated a surrender, she did not agree that the lost opportunity includes an “opportunity to negotiate a surrender of those landsfor hydroelectricity generation” (para 172, emphasis in original) because there was insufficient evidence to make that finding of fact. Justice Côté disagreed with the majority’s decision to reconsider evidence to reach its own conclusions because doing so overreaches the appellate standard of review for mixed fact and law, which is reasonableness, not correctness (see paras 170, 174-75, 181, 184 and 188).
[53] Ibid at para 144.
[54] Ibid.
[55] Ibid.
[56] Ibid at para 147.
[57] R v Desautel, 2021 SCC 17 at para 30.
Combating Online Hate: Yes, Your Tweet Could Be Considered Hate Speech
How can the law balance the need to tackle hate speech with the need to protect free expression? Bill C-36 raises this question. Tabled by the federal government on June 23, 2021, Bill C-36 proposes amendments to the Criminal Code, the Youth Criminal Justice Act, and the Canadian Human Rights Act to protect Canadians from hate speech in an online environment.[1] With social media integrated into many aspects of our daily lives, this proposed legislation is important to create and protect safe online spaces.[2] While hate speech is likely not considered a valuable form of expression by most of us, it is protected by section 2(b) of the Charter of Rights and Freedoms, which guarantees individuals’ freedom of expression. This means that the proposed amendments in Bill C-36 will likely infringe section 2(b). But this does not, by itself, mean that the law cannot stand. On the contrary, under section 1 of the Charter, if the violation can be demonstrably justified as a reasonable limit on free expression, it will be constitutional.
While Bill C-36 is not law yet, it does raise important questions about hate speech as a protected form of expression, and about how this form of expression can justifiably be infringed upon. To address these questions, this article first examines the federal government’s proposed amendments in Bill C-36. Second, it discusses whether hate speech is a protected form of expression under section 2(b) of theCharter . And finally, it assesses whether Bill C-36’s proposed amendments may potentially be justified under section 1 of the Charter.
Second Time’s the Charm? Bill C-36 Proposes to Revive Previously Repealed Human Rights Legislation
Bill C-36 is not yet law, but is currently in the early stages of the legislative process. This means that Bill C-36 can still be amended during its second reading or can die on the order paper if Parliament is dissolved. Among other things, the Bill seeks to define “hatred” in section 319 of the Criminal Code, which sets out the offence for public incitement of hatred.[3] This definition relies on and echoes the Supreme Court of Canada’s decision in Saskatchewan (Human Rights Commission) v Whatcott.[4] The Bill also defines the dissemination of online hate speech as a discriminatory practice in the Canadian Human Rights Act and gives victims of hate speech access to new remedies.[5] This amendment also uses the language of the Supreme Court in Whatcott.
In addition to this Bill, the Government of Canada plans to create a regulatory framework that will work towards combating harmful online content.[6] This framework would establish rules for social media platforms to guide them in addressing harmful content such as hate speech.[7]
The Criminal Code Amendment Clears Up the Meaning of “Hatred”
As previously mentioned, Bill C-36 proposes to add a definition for “hatred” in section 319 of the Criminal Code. “Hatred” would be defined as “the emotion that involves detestation or vilification and that is stronger than dislike or disdain.”[8] This language echoes the Supreme Court’s interpretation of “hatred” in Whatcott, where the Court noted that “‘hatred’… is to be interpreted as being restricted to those extreme manifestations of emotion described by the words ‘detestation’ and ‘vilification’.”[9] This wording is important as it limits the application of section 319 of the Criminal Code to a very small category of expression. In other words, it prevents section 319 from applying to expression that is “repugnant and offensive” but does not rise to the “level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.”[10] By limiting the application of this law to only the most extreme and harmful speech, Bill C-36 attempts to ensure that section 319 of the Criminal Code infringes individuals’ freedom of expression as little as possible.[11]
The Canadian Human Rights Act Amendment Revives a Previously Repealed Law
Bill C-36 also revives section 13 of the Canadian Human Rights Act, which was repealed by Parliament in 2013 in response to claims that it was overly restrictive of free speech.[12] The “old” section 13 established that it was a “discriminatory practice … to communicate telephonically … any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person … [is] identifiable on the basis of a prohibited ground of discrimination.”[13] There was fear at the time that this provision would place a “chill on speech that is controversial but not necessarily hateful.”[14] While these claims were not adjudicated by the courts before the law’s repeal, it is likely that section 13 infringed section 2(b) of the Charter. However, whether the “old” section 13 would have been saved by section 1 of the Charter — which allows governments to place reasonable limits on Charter rights — is uncertain.
Bill C-36 proposes to add a new and revised version of section 13 to the Canadian Human Rights Act. This new provision makes it a discriminatory practice to communicate “hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.”[15] Like the Criminal Code amendments, this provision echoes the wording of the Supreme Court in Whatcott. As such, section 13 would likely be limited to a very narrow segment of expression that goes beyond being merely offensive or repugnant, as it distinguishes expression that directs “dislike or disdain, or that discredits, humiliates, hurts or offends” from “the extreme nature of hate speech captured by the proposed amendments.”[16]
The amendments to the Canadian Human Rights Act would apply to public communications on the Internet by individuals in places such as social media platforms, personal websites, and in mass emails.[17] If an individual is targeted by a post that elicits hate speech, they would be able to file a hate speech complaint with the Canadian Human Rights Commission.[18] While the Department of Justice asserts that the provision is “carefully defined to target only an extreme and marginal type of expression,”[19] if it becomes law, it will likely be scrutinized by free-speech advocates as a potentially unjustified and hence unconstitutional violation of the freedom of expression.
Hate Speech: Is It Protected Under the Charter?
In its attempts to limit hate speech, does Bill C-36 engage the Charter’s guarantee of free expression? To answer this question, a useful starting point is the Supreme Court of Canada’s judgment in R v Keegstra. In that case, the Court was tasked with determining whether “the coverage of s. 2(b) extend[s] to the public and wilful promotion of hatred against an identifiable group.”[20] To determine if a form of expression is protected, the Court found it necessary to consider the values that underlie the freedom of expression as they “define the ambit of s. 2(b)” and provide context on how “competing interests might co-exist with the freedom under s. 1 of the Charter.”[21] In particular, the Court identified three values that fuel free expression: (1) truth seeking, (2) participating in “social and political decision-making,” and (3) “individual self-fulfillment.”[22] It is not enough to consider these values in isolation, the Court said. Rather, these values must be considered “within the textual framework of the Charter.”[23]
Although hate speech does not promote the values that underlie the freedom of expression, the Supreme Court of Canada in Keegstra decided that hate speech is “expression” within the framework of the Charter. In arriving at this decision, the Court noted that the word “expression” includes any activity that “conveys or attempts to convey a meaning,”[24] provided it is not “communicated in a physically violent form.”[25] Since “[c]ommunications which wilfully promote hatred against an identifiable group without doubt convey a meaning,”[26] the Court held that hate speech is protected expression under section 2(b) of the Charter. This means that it is highly likely that government action that seeks to restrict hate speech will result in a section 2(b) infringement. How does the precedent set in Keegstra apply to the amendments proposed by Bill C-36? While it is not certain until a court rules on the matter, it is likely that section 2(b) will be infringed if the new section 13(1) is added into the Canadian Human Rights Act. This provision aims to prevent the dissemination of hate speech, which is protected expression under section 2(b) of the Charter. However, the analysis does not end here. This potential infringement may yet be justified under section 1 of the Charter.
Preventing Hate Is Likely a Justified Infringement on Free Expression
Some commentators were concerned that the “old” section 13 of the Canadian Human Rights Act would allow “too many frivolous cases to proceed against citizens, when theCriminal Code already covers hate speech that could generate harm against an individual or group.”[27] This ultimately led to its repeal through a private member’s bill tabled in the House of Commons in June 2013. As Bill C-36 is still in early stages of the legislative process, it is hard to know if it will eventually become law or, if it does, whether it will eventually be reviewed by the courts. If it does end up before the courts, several potential arguments for and against the justification of section 13 may be addressed.
Arguments Supporting Justification
Arguments in favour of section 13 would likely turn on its ability to pass the minimal impairment and final balancing stages of the Oakes test, which is the test that is used by the courts to determine if a violation of a Charter right is justified. At this stage of the analysis, courts will consider the links between the infringed expression and section 2(b) values. Justification is more likely if the impugned expression deviates from the values underlying free expression. In this regard, three arguments in support of justifying a potential infringement of section 2 (b) are especially relevant.
First, Bill C-36’s proposed “new” section 13 has some important differences compared to the “old” version. The new version uses the language of the Supreme Court inWhatcott (detestation and vilification), which has been interpreted to only capture a small segment of expression.[28] As such, section 13 may well be found to be minimally impairing as it does not capture more expression than necessary.
Second, since the repeal of the “old” section 13, internet usage and the dissemination of online hate has increased significantly.[29] For example, a 2020 study showed that over 6,600 online platforms were used to spread “white supremacist, misogynistic or other extremist views.”[30] In this sense, the problem of online hate has clearly increased dramatically, which may make it more likely for the new section 13 to pass the final balancing stage of theOakes test, when the importance of the government’s objective is weighed against the extent of the rights violation.
Finally, establishing the promotion of hate speech as a form of discrimination in the Canadian Human Rights Act gives victims a way to hold others accountable for their online hate speech.[31] The importance of providing a remedy to victims may also be a factor that is considered in the final balancing stage of the Oakes test.
Arguments Against Justification
In response to the federal government’s introduction of Bill C-36, the Canadian Constitution Foundation (“CCF”) issued a statement that provides some arguments against section 13 being a justifiable infringement on free expression.[32] First, the CCF suggests that the proposed definition for hate speech is “a vague and subjective standard.”[33] A vague law can implicate the section 1 analysis at two stages.[34] In brief: a law may be so vague as to not “constitute a ‘limit prescribed by law’ under s. 1”[35] or may result in an argument of overbreadth at the minimal impairment stage of the Oakes test.[36] Second, the CCF is concerned that the proposed section 13 will deter and prevent Canadians’ from debating unsettled subjects.[37] This argument may also arise at the minimal impairment stage, as it suggests that too much expression may be captured by the law. Finally, the CCF takes issue with the idea that a tribunal, which is formed by members that are not democratically elected, would have control over free expression.[38]
Conclusion: Wait and See
Since the repeal of the “old” section 13 in June 2013, the use of the internet in many aspects of our daily lives has increased. At the same time, the spread of online hate has also increased. Bill C-36 seeks to address these issues by providing a new legal definition of “hatred” and establishing the spread of online hate as a form of discrimination. If Bill C-36 is passed into law, the constitutionality of its amendments is uncertain and will remain uncertain until the courts have an opportunity to weigh in on the matter. It is likely that an infringement on section 2(b) of theCharter will be found, because hate speech receives Charter protection as a form of expression that conveys meaning. However, while section 2(b) grants constitutional protection to a broad range of expression, restrictions on expression may nonetheless be justified under section 1 of the Charter. Given how closely Bill C-36’s proposed amendments follow section 2(b) jurisprudence, the “new” section 13 would likely be justified under section 1 of the Charter. This, however, will remain uncertain unless the courts weigh in on the matter.
For the time being, we will have to wait and see if Bill C-36 is passed into law.
[1] Criminal Code, RSC 1985, c C-46; Youth Criminal Justice Act, SC 2002, c1; Canadian Human Rights Act, RSC 1985, c H-6 [CHRA].
[2] “Government of Canada takes action to protect Canadians against hate speech and hate crimes” (23 June 2021), online: Government of Canada
[3] Ibid.
[4] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 [Whatcott].
[5] Department of Justice Canada News Release, supra note 2.
[6] Ibid.
[7] Ibid.
[8] Bill C-36, An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech, 2nd Sess, 43 Parl, 2021 (first reading 23 June 2021), online:
[9] Whatcott, supra note 4 at para 57.
[10] Ibid.
[11] See eg Whatcott, supra note 4; See also R v Keegstra, [1990] 3 SCR 697, 1990 CanLII 24 [Keegstra].
[12] Joel Webe, “Hate speech no longer part of Canada’s Human Rights Act” (27 June 2013), online:National Post
[13] CHRA, supra note 1 at s 13(1), as repealed by An Act to amend the Canadian Human Rights Act (protecting freedom), SC 2013, c 37.
[14] Webe, supra note 12.
[15] Bill C-36, supra note 8 [emphasis added].
[16] “Combatting hate speech and hate crimes: Proposed legislative changes to the Canadian Human Rights Act and the Criminal Code” (last modified 23 June 2021), online: Government of Canada
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Keegstra, supra note 11 at 725.
[21] Ibid at 726.
[22] Ibid at 728.
[23] Ibid.
[24] Ibid at 729.
[25] Ibid.
[26] Ibid at 730.
[27] Yosie Saint-Cyr, “Section 13 of the Canadian Human Rights Act Repealed!?” (14 June 2012), online:Slaw
[28] Whatcott, supra note 4 at para 57.
[29] Department of Justice Canada News Release, supra note 2. [30] Ibid.
[31] Ibid.
[32] The CCF, “Canadian Constitution Foundation statement on ‘Online Harms’ bill” (23 June 2021), online:Canadian Constitution Foundation
[33] Ibid.
[34] See R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, 1992 CanLII 72 [Nova Scotia Pharmaceutical].
[35] Ibid at 630.
[36] Ibid at 627.
[37] The CCF, supra note 32.
[38] Ibid.
Ontario’s Restrictions on Third Party Election Advertising are Law, “Notwithstanding” the Finding of Unconstitutionality
Creating a balance between protecting both democracy and free expression is a difficult task. In 2017, the Ontario legislature amended the Election Finances Act[1] to insert a provision that places spending limits on third party political advertising six months prior to an election. In 2018, this spending limit was extended such that the limit applied over a 12-month period prior to an election instead of a 6-month period. Arguably, these spending limits were imposed to promote a fair and democratic election process by limiting the extent to which more affluent individuals and groups can influence the electoral process.[2] However, a constitutional challenge was launched against the Government of Ontario on the ground that the law infringed section 2(b) of the Charter of Rights and Freedoms, which guarantees the freedom of expression. The Ontario Superior Court of Justice found in Working Families Ontario v Ontario[3] (“Working Families”) that the impugned provisions of the Election Finances Act did in fact unjustifiably infringe section 2(b) of the Charter. As a result, the Court declared these provisions of no force or effect.
The Government of Ontario then had a choice: appeal the Court’s decision, amend the law to align with Charter values, or disregard the finding of unconstitutionality and invoke the notwithstanding clause to reenact the invalidated law. Of these options, the last was chosen. On July 14, 2021, the lifeless law was revived, despite its Charter infringements, using the notwithstanding clause.
This article first reviews the amendments to theElection Finances Act. It then explains the Court’s decision in Working Families. Finally, it explores the Government of Ontario’s decision to invoke the notwithstanding clause in response to the Court’s ruling.
Legislative History: Third Party Spending is Limited by the Election Finances Act
Bill 254 amended the laws governing Ontario’s provincial elections to “protect Ontarians’ essential voice in elections” and “promote fairness in the electoral process for everyone.”[4] One of these amendments, section 37.10.1(2) of the Election Finances Act, found itself at the centre of a constitutional challenge for infringing free expression. Section 37.10.1(2) provides that no third party can spend “more than $600,000 in total for the purposes of third-party political advertising during the 12-month period immediately before the issue of a writ of election.”[5] This limit was criticized as “severely and aggressively target[ing] third parties,”[6] such as trade unions. Political advertising is broadly defined in section 1.1(1) of the Election Finances Act as “advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate.”[7] As such, the law limits many forms of political expression.
Before Bill 254’s amendments, Ontario had a spending limit that was capped at 6 months prior to the writ of election. Like the 12-month limit, the 6-month limit was also scrutinized. Charter challenges were launched against the Government of Ontario, which responded that “pre-election spending limit[s] on third-party political advertising … [are] necessary and reasonable to ensure a fair and proper election process.”[8] Before the courts could adjudicate the claims regarding the 6-month limit, the Government of Ontario amended the Election Finances Act in 2021 with Bill 254.
Charter Challenge Launched: Bill 254 Unjustifiably Limits Free Expression
To determine whether the 12-month spending limit violates the freedom of expression, a Charter analysis must be conducted. First, the Court must determine whether political advertising is protected speech under section 2(b) of the Charter. If it is not protected speech, it will not receiveCharter protection and the analysis ends. However, if it is protected speech and an infringement is found, the Court will proceed to the next step of the analysis, when it will ask whether the law constitutes a reasonable limit on the infringed right under section 1 of the Charter.
Is Third Party Political Advertising Protected Speech Under the Charter?
Not all expression receives the same degree of protection under section 2(b) of the Charter.[9] Instead, courts assess each form of expression in context to determine the extent to which it must be protected.[10] In R v Keegstra, Justice McLachlin (as she then was) explained the importance of the freedom of expression for political speech: “[Free expression] is instrumental in promoting the free flow of ideas essential to political democracy and the functioning of democratic institutions. This is sometimes referred to as the political process rationale.”[11] For these reasons, among others, political expression has been granted a high level of protection under section 2(b).[12] However, as the analysis is contextual, this is not always the case. Sometimes political expression merits a lower level of protection “depending on the nature of the controversy at hand.”[13]
In Working Families, free expression was not the only constitutional value at stake. Other constitutional values, like equal speaking opportunities, must also be protected during elections.[14] The concern with not limiting third- party advertising is that heavily-funded third party political advertisers can disproportionately dominate the airwaves and drown out voices that have less funding.[15] The Court concluded that the “financing of political expression” is “certainly an aspect of expression deserving protection under section 2(b) … but its level of protection is a matter of context, to be weighed with and against other values underlying democracy itself.”[16] The right of third-party political advertisers to engage in free expression is therefore “counterbalanced by a need to ensure that all citizens have an equal opportunity to participate in the electoral process.”[17]
The question, then, was whether Bill 254 violates freedom of expression by infringing on political speech. The Court quickly concluded that limiting third party political advertising does restrict freedom of expression.[18] In the Court’s words, free expression is a broad right that is infringed whenever a government “limits an activity that conveys or attempts to convey meaning,” and political advertising is one of those activities.[19] The Attorney General of Ontario also conceded this point.[20]
Charter Rights Are Not Absolute: Can the Section 2(b) Infringement Be Justified?
Charter rights are not absolute. Governments can justifiably limit a protected right under section 1 of the Charter if that limit “can be demonstrably justified in a free and democratic society.”[21] To determine whether the law is justified, courts apply the Oakes test, which assesses the importance of the law’s objective and whether there is proportionality “between the objective and the means used to achieve it.”[22] If the Oakes test is satisfied, the violation of the Charter right is regarded as legally justified and the law is constitutional.
The Working Families decision hinged on the question of proportionality. Among other things, an infringement is proportional only if it minimally impairs the violated Charter right. The Court found that at theOakes test’s minimal impairment stage “the rubber of Bill 254 hits the slippery road of justification, causing the … [Election Finances Act] vehicle to skid off course.”[23] The Court found that Bill 254 was not minimally impairing because the Government failed to consider other measures that would achieve its objective but have less of an impact on Charter rights. The Court cited two key facts in support of this conclusion. Firstly, the Chief Electoral Officer recommended against imposing restrictions on “issue-based advertising” prior to the election, concluding that such restrictions do “not augment the fairness and equality that such regulations are meant to address.”[24] Secondly, and more significantly, the Government of Ontario’s own expert witness testified that a 6-month spending limit was an “appropriate and effective” length of time for restricting political advertisements.[25] As such, it was difficult for the Government of Ontario to argue that a 12-month period minimally impairs free expression when a 6-month period would, according to its own expert witness, ensure a fair and democratic election period. On this point, the Attorney General failed to provide evidence that justified or explained why the restricted spending period was doubled.[26] The 12- month spending restrictions in section 37.10.1(2) were accordingly not found to be minimally impairing, and the law was not saved under section 1 of the Charter.
Having ruled the 12-month spending restrictions unconstitutional, the remedy declared by the Court was the invalidation of the impugned sections of the Election Finances Act, rendering them of no force or effect. Often, when this type of declaration is made, courts will suspend the declaration of invalidity for a period of time, so that governments may amend the law and bring it into compliance with the Charter. In this case, no suspension was granted as an Ontario provincial election was scheduled to occur within 12 months of the Court ruling. This meant that third party advertisers, under the impugned law, were already within the 12-month restricted spending period. As such, the law was invalidated immediately, so that these parties would not be subject to unconstitutional laws during this pre-election period.
The Notwithstanding Clause Stifles Judicial Dialogue
Section 37.10.1(2) was lifeless for just a few days before it was revived by the Government of Ontario on June 14, 2021. What made this revised legislation different than the original law was the inclusion of the notwithstanding clause. The notwithstanding clause is a constitutional provision set out in section 33 of the Charter that gives the provinces and Parliament power to declare that a law may operate “notwithstanding” the fact that it infringes upon certain Charter rights. It functions to “prevent a person from bringing an action in court claiming that a law violates fundamental freedoms, legal rights, or equality rights and is therefore invalid.”[27] Therefore, as Ontario enters the next election cycle, no party will be able bring a claim to court arguing that the spending restrictions in theElection Finances Act violate their freedom of expression.
Since its inception in 1982, the notwithstanding clause has had limited use. Of the 14 governments that can use the clause, only Saskatchewan, the Yukon, Ontario, Alberta, and Quebec have made declarations under section 33.[28] However, this is the first time that a court has declared a law unconstitutional and the government has immediately responded by invoking the notwithstanding clause and reenacting exactly the same law. Normally, where the courts find a law unconstitutional, the offending government will attempt to bring it into compliance with the Constitution through amendment — a process that is often referred to as a dialogue between courts and legislatures. Ontario’s use of the notwithstanding clause effectively ends this dialogue; the Government of Ontario has simply re-enacted the same law, ignoring the Court’s judgment that it is unconstitutional.
For some observers, though, the notwithstanding clause offers a way for elected officials to challenge unelected judges’ interpretations of constitutional rights and principles. Hansard from the debates on June 14, 2021, when the new notwithstanding legislation was passed, states that reviving the spending limit law “will restore … critical guardrails to protect the essential role of individuals at the heart of Ontario’s democracy.”[29] This suggests that the Government of Ontario is re-enacting this law to ensure a fair and democratic election process by limiting the role of private money in the electoral process. Conversely, critics of the Government of Ontario argue that this law “limits comment on essentially any public policy issue when these comments matter the most.”[30] Whatever position one takes, critics of the Election Finances Act are no longer able to challenge it under section 2 of the Charter (or under other sections of the Charter to which the notwithstanding clause applies).
Conclusion: Back Where We Started
Despite the unjustifiable infringement on free expression, the 12-month restriction on spending for third-party political advertisements is law in Ontario. Those who fall under the impugned restrictions set out by the Election Finances Act are left with few to no remedies. Because the notwithstanding clause was used to revive the law, Charter challenges cannot be brought on the basis that the law violates fundamental freedoms, legal rights, or equality rights. However, this issue is not free of constitutional challenges just yet. A new challenge was launched against the law under section 3 of the Charter.[31] Section 3 guarantees democratic rights and is exempt from the purview of the notwithstanding clause. Whether or not this claim will succeed is uncertain, but in the meantime third-party political advertising must abide by the spending limits under the revived Election Finances Act.
[1] Election Finances Act, RSO 1900, c E7.
[2] Working Families Ontario v Ontario, 2021 ONSC 4076 at para 6 [Working Families].
[3] Ibid.
[4] Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly, 1st reading, Legislative Assembly of Ontario, 42-1, No 227 (25 February 2021) at 11578 (Hon Doug Downey). [5] Election Finances Act, supra note 1, s 37.10.1(2).
[6] “Conservatives double-down with amendments to Bill 254, the ‘Squashing Ontario Democracy Act’” (13 April 2021), online: Cision
[7] Election Finances Act, supra note 1, s 1.1(1).
[8] Working Families, supra note 2 at para 6.
[9] Ibid at para 24.
[10] Ibid.
[11] Ibid at para 24, citing R v Keegstra, [1990] 3 SCR 697 at 802, 1990 CanLII 24.
[12] Working Families, supra note 2 at para 25.
[13] Ibid at para 26. See Ford v Quebec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19.
[14] Working Families, supra note 2 at para 27.
[15] Ibid at para 32.
[16] Ibid at para 28.
[17] Ibid at para 31.
[18] Ibid at para 34.
[19] Ibid.
[20] Ibid.
[21] Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [22] “Section 1 — Reasonable Limits” (last modified 2 July 2021), online: Government of Canada Department of Justice
[23] Working Families, supra note 2 at para 63.
[24] Ibid at para 64.
[25] Ibid at para 65.
[26] Ibid at para 73.
[27] “Notwithstanding Clause” (last visited 21 July 2021), online: Centre for Constitutional Studies
[28] “Section 33 – Notwithstanding clause” (last modified 2 July 2021), online: Government of Canada Department of Justice
[29] Bill 307, An Act to amend the Election Finances Act, 3rd reading, Legislative Assembly of Ontario, 42-1, No 275 (14 June 2021) at 14208 (Hon Doug Downey).
[30] Christine Van Geyn, “Doug Ford’s gag law will limit comment on essentially any public policy issue” (17 June 2021), online:Canadian Constitution Foundation
[31] Robert Benzie, “Unions again challenging Premier Doug Ford’s campaign finance law as unconstitutional” (12 July 2021), online:Toronto Star
Corporations in Canada have legal personhood.[1] A corporation is a distinct legal entity that exists perpetually, irrespective of the humans who create it.[2] This shields the human actors behind the corporation from personal liability and allows the corporation to independently enter into agreements and own property.[3]
This raises the question: does the Charter of Rights and Freedoms extend protections to entities like corporations — entities which are regarded as “legal” persons but not “natural” or “human” persons? In November 2020, the Supreme Court of Canada (SCC) addressed a specific version of this question in Quebec (Attorney General) v 9147-0732 Québec Inc (“Quebec Inc”),[4] a case concerning whether section 12 of the Charter, which guarantees individuals’ protection from cruel and unusual punishment, applies to corporations. This article examines the background to theQuebec Inc judgment and explains why the SCC ultimately concluded that section 12 of the Charter does not apply to corporations.
Section 12 of the Charter of Rights and Freedoms
Section 12 of the Charter states:
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.[5] Background: A Corporation is Prosecuted, Convicted, and Fined
In 2016, the construction company 9147-0732 Québec Inc (“Quebec Corporation”) was prosecuted and convicted in the Court of Quebec for “performing residential renovations without the appropriate licenses,”[6] in contravention of section 46 of the Building Act.[7] Since section 197.1 of the Building Act establishes a mandatory minimum fine of $30,842 for offenders,[8] Quebec Corporation was assigned that fine as the penalty for its offence.
However, Quebec Corporation had mistakenly sent the invoices for their work from their own corporation, as opposed to “a co-owned entity that had the appropriate licenses to perform … [the] construction services.”[9] The Court of Quebec acknowledged that the commission of the offence was an accident in “administrative error”[10] but nevertheless applied the mandatory minimum fine. Quebec Corporation argued the steep fine in response to a mere error was a violation of the company’s section 12 Charter rights.[11] In support of its claim, Quebec Corporation cited the SCC case,R v Boudreault,[12] in which the Court held that the mandatory “imposition and enforcement of [a victim fine] surcharge on the poorest individuals”[13] constitutes cruel and unusual punishment[14] under section 12 of the Charter. However, the Quebec Corporation’s arguments failed both at the Court of Quebec and the Quebec Superior Court. The Court of Quebec concluded that “expanding the protection of rights intrinsically linked to individuals to include corporate rights would trivialize the protection granted by s[ection] 12,”[15] while the Quebec Superior Court remarked that the purpose of section 12 was “the protection of human dignity, a notion clearly meant exclusively for … ‘natural persons’.”[16]
Quebec Corporation then successfully appealed the Superior Court’s decision to the Quebec Court of Appeal (QCCA). The QCCA ruled that harsh fines can indeed constitute cruel and unusual punishment for a corporation, although the QCCA did not address whether the particular fine in question constituted cruel and unusual punishment or treatment (this question was sent back to the Court of Quebec).[17] The QCCA found that corporations “could face cruel treatment or punishment through harsh or severe fines” which cause harm to the human beings behind them.[18] This harm could include employees losing jobs, retired employees losing benefits, and governments losing tax revenue.[19]
Following this, the QCCA’s ruling was appealed to the SCC. Accordingly, the SCC had to determine once and for all whether section 12 applied only to natural persons (humans) or if it could encompass purely legal persons (eg corporations) as well. If it encompasses purely legal persons, the mandatory minimum fines might constitute cruel and unusual punishment and might be unconstitutional. If not, then section 12 simply would not apply and the penalty imposed on Quebec Corporation would stand.
The Supreme Court’s Analysis
Justices Brown and Rowe, writing for the majority of the Supreme Court, engaged in a purposive interpretation of section 12 of the Charter as well as considering the jurisprudence on section 12 and other Charter sections, and, finally, offering some commentary on the concept of separate legal personality in Canadian corporate law.
Purposive Interpretation
The Court began with a purposive interpretation of section 12.[20] In summary, purposive interpretation requires the words of a provision to be interpreted in light of the law’s broader context and purposes. However, when taking this approach, the majority emphasized that “the analysismust begin by considering the text of the provision.”[21]
The Court accordingly proceeded to examine the text of section 12, focusing in particular on the words “cruel and unusual punishment.” Citing Black’s Law Dictionary,[22] the Oxford English Dictionary,[23] and Justice Chamberland’s dissent in the Quebec Court of Appeal’s decision,[24] the Court concluded that “cruel and unusual” punishment refers to physical and mental pain and suffering by humans.[25] The Court found that section 12’s purpose is therefore to “protect human dignity” by “prevent[ing] the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment”[26] and, in so doing, “respect[ing] the inherent worth of individuals.”[27] The Court noted that the “intended beneficiaries” of section 12 are accordingly humans and not purely legal entities such as corporations.[28]
The Court also examined the meaning of the word “everyone”[29] in section 12. The Court stated that the literal meaning of “everyone” cannot be expanded to include corporations without factoring in the “purpose of the right as protecting human dignity.”[30] The Court then cited the case of Irwin Toy Ltd, where “everyone” was meant to include “only human beings”[31] — not corporations and other non-human entities that are “incapable of enjoying life, liberty or security of the person.”[32] In sum, the Court regarded the text of section 12 as inseparable from human elements and feelings, of which corporations are devoid.[33]
Section 12 Jurisprudence
After considering section 12’s text, the Court turned to the section’s “historical origins”[34] and jurisprudence, finding that they also turn on “the concept of human dignity.”[35] The Court noted that most section 12 jurisprudence involves “minimum and indeterminate sentences and the harmful effects of incarceration.”[36] Combined, these cases establish a “threshold test” where punishment is cruel and unusual if it is “grossly disproportionate[,] … outrages the standards of decency … and [is] abhorrent or intolerable.”[37] The Court held that this threshold is “inextricably anchored in human dignity [and, as such,] … is a constitutional standard that cannot apply to treatment or punishments imposed on corporations.”[38] Reinforcing this conclusion, it also noted that the types of punishments section 12 has dealt with in the past involve mental or physical suffering and pain, which corporations cannot experience.[39]
Section 12 Compared to Other Charter Sections
The Court also looked at when the “legal rights” sections of the Charter — which run from section 7 to section 14 — have been applied to corporations and when they have not. Most of the Charter protections in sections 7 to 14 protect a “detained individual” and guarantee integrity and fairness in the administration of justice.[40] For the Court, each of these protections is rooted in the notion of human dignity.[41] Only section 8, the right against unreasonable search and seizure, and 11(b), the right to a timely trial, have been applied to corporations.[42] In Hunter v Southam, for example, the Supreme Court reasoned that an unlawful search and seizure (section 8) “could have a significant [and direct] impact on the privacy rights of individuals within a corporation”[43] and on that basis accepted that section 8 applied to corporations.[44] However, the Court distinguished Hunter from the case at hand; a direct impact on individuals, it said, “is not logically available under section 12,”[45] given that the individuals behind a corporation are not personally subject to penalties assigned to corporations.
The Corporate Veil
As the Court put it, a corporation is a “separate legal personality,”[46] with the human actors behind a corporation benefitting from a “corporate veil”[47] that shields them from personal liability; for example, if the corporation is sued, the personal assets of the shareholders will not be affected.[48] Citing R v Wholesale Travel Group, the Court reasoned that the corporate veil confers benefits such as limited liability, and that the veil cannot be selectively lifted where it becomes detrimental to actors who would otherwise benefit from it.[49] Thus, in this case, the human actors behind Quebec Corporation could not selectively use “separate legal personality” to benefit them via limited liability but disregard it when it prevents them from relying on section 12 of the Charter.
The Court therefore held that the “existence of human beings behind the corporate veil is insufficient to ground a s[ection] 12 claim of right on behalf of a corporate entity, in light of the corporation’s separate legal personality.”[50] For this reason, the Court rejected the notion that the suffering of human actors behind the corporation “should be considered when determining the scope of [s]ection 12.”[51]
Conclusion: Corporations Are Not Protected by Section 12
The Supreme Court’s ruling has confirmed that section 12 of the Charter applies only to human beings, and not purely “legal” persons such as corporations. Section 12 is rooted in human dignity and is a reminder that not all Charter rights are equally applicable to humans and corporations. While some other sections of the Charter may protect purely legal persons like corporations, section 12 cannot.
[1] Shannon O’Byrne, Anna Lund & Tamar Meshel, Corporations Law: Law 451 Cases and Materials 2020-2021 Edition (Edmonton, AB: University of Alberta Faculty of Law, 2021) at 3 [O’Byrne].
[2] Ibid.
[3] Ibid.
[4] Quebec (Attorney General) v 9147-0732 Québec Inc, 2020 SCC 32 [QC Numbered Co].
[5] Canadian Charter of Rights and Freedoms, s 12, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 [Charter].
[6] Ranjan Agarwal et al, “Corporations are not Entitled to the Constitutional Right Against Cruel and Unusual Punishment” (10 November 2020), online (blog): Bennett Jones
[7] Building Act, CQLR c B-1.1, s 46.
[8] Ibid.
[9] Agarwal, supra note 6.
[10] Ibid.
[11] QC Numbered Co, supra note 4 at para 55.
[12] Ibid at para 66.
[13] R v Boudreault, 2018 SCC 58 at para 36 [Boudreault].
[14] Ibid at para 94.
[15] QC Numbered Co, supra note 4 at para 56.
[16] Ibid at para 57; Elizabeth Raymer, “Corporations Cannot be Subjected to Cruel and Unusual Punishment” (5 November 2020), online: CanadianLawyerMag
[17] QC Numbered Co, supra note 4 at para 58.
[18] Centre for Constitutional Studies: “Online Charter Series — Corporations and Section 12 Protection From Cruel and Unusual Punishment” (24 June 2021) at 00h: 16m: 23s — 00h: 16m: 30s, online (video):YouTube
[19] Ibid at 00h: 16m: 30s — 00h: 16m: 40s.
[20] QC Numbered Co, supra note 4 at para 8.
[21] Ibid at para 8 (emphasis in original).
[22] Ibid at para 82.
[23] Ibid at paras 83-84
[24] Ibid at paras 85-86
[25] Ibid at para 123.
[26] Ibid at para 51.
[27] Ibid.
[28] Ibid.
[29] Ibid at paras 15, 87.
[30] Ibid at para 87.
[31] Ibid at para 15.
[32] Ibid at paras 87, 15.
[33] Ibid at para 131.
[34] Sebastien Cusson, “Supreme Court of Canada Holds that the Constitutional Protection Against Cruel and Unusual Treatment or Punishment does not Extend to Corporations” (16 November 2020), online:McCarthy Tetrault
[35] QC Numbered Co, supra note 4 at para 2. [36] Ibid at para 63.
[37] Ibid.
[38] Ibid at para 17.
[39] Ibid at para 131.
[40] Ibid at para 127.
[41] Ibid at para 126.
[42] Ibid at para 128.
[43] Ibid at para 128.
[44] Ibid.
[45] Ibid at para 129.
[46] Ibid at paras 2, 129.
[47] Ibid at para 2.
[48] O’Byrne, supra note 1 at 8.
[49] QC Numbered Co, supra note 4 at para 129.
[50] Ibid at para 2.
[51] Jennifer Quaid, “Supreme Court Dismisses Company’s Cruel and Unusual Punishment Claim” (24 November 2020), online: The Conversation
Recently – both within and outside Canada – candidates and their supporters have been making grievously false statements about their opponents during elections. In 2019, for example, Conservative communications director Brock Harrison claimed on Twitter that Justin Trudeau was under RCMP investigation, despite this being completely untrue.[1] There is little doubt, of course, that such falsehoods have the potential to unjustly influence electoral outcomes. But in a society that values free speech, should spreading false information during an election be illegal?
That was the central theme in Canadian Constitution Foundation v Canada (“CCF”), a case heard by the Ontario Superior Court in September 2020.[2] The case dealt with section 91(1) of the Canada Elections Act (CEA), which restricts the dissemination of certain types of false information during elections.[3] The Canadian Constitution Foundation — a registered charity and advocacy group — challenged the constitutionality of section 91(1), arguing it unjustifiably breached individuals’ freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.[4] This article will examine the Ontario Court’s response to this claim.
Section 91(1) of the Canada Elections Act
Section 91(1) of the CEA prohibits the dissemination of “certain false statements”[5] about particular public figures “associated with a political party during federal elections with the intention of affecting the outcome of an election.”[6] This includes, for example, falsehoods about a candidate or public figure’s commission of a criminal offence.[7] When combined with other CEA sections, section 91(1) creates a criminal offence.[8] The offence carries a maximum punishment of $50,000 in fines or a 5-year prison sentence.[9]
Section 91(1) has existed in some form since 1908, having been amended in 1970, 2000, and 2018.[10] However, 2018’s amendments significantly overhauled the law, crucially deleting the word “knowingly” from the provision. Before 2018, section 91(1) stated:
No person shall, with the intention of affecting the results of an election, knowingly make or publish any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate.[11]
To be convicted of the pre-2018 offence, then, the offender had to know that they were disseminating falsities.[12] The removal of the word “knowingly” in 2018 made it unclear whether the offence now required false election “information to be knowingly disseminated or just merely disseminated.”[13] This was the key issue in CCF.
Section 91(1) Infringes Section 2(b) of the Charter
When a court addresses a Charter challenge, the first step is to determine if there is a Charter infringement. In this case, all parties agreed that section 91(1) of the CEA “restricts expressive activity that is protected by s[ection] 2(b) of the Charter,”[14] so the Court did not need to determine if the provision was an infringement. However, the Court took the opportunity to comment on the importance of political speech under section 2(b). The Court reaffirmed that political speech is “the most valuable and protected type of expression”[15] since it enables “the free exchange of political ideas … [to ensure] a properly functioning democracy.”[16] At the same time though, the Court acknowledged that the spread of false information during elections can “threaten our democracy … and undermine public confidence in our democratic institutions and the security of our elections.”[17] Thus, the Court asserted that deliberate propagation of false information during elections “does not enjoy the same level of protection under s[ection] 2(b) of the Charter as [other forms of] political speech.”[18]
Is This Infringement Justified Under Section 1 of the Charter?
Finding that a law infringes the Charter is not the end of the case, because Charter protections are not absolute; they are subject to reasonable limits under the Charter’s section 1. To determine if a limit on a Charter right is reasonable, courts apply a special test known as the “Oakes test.” Under this test, any law that violates the Charter may be “saved under [s]ection 1”[19] (and will remain in force) if it meets two criteria:
Objective: The law’s objective must be to respond to a pressing and substantial problem; Proportionality: The law must limit rights in a way that (a) is rationally connected to its pressing and substantial objective, (b) impairs the right or rights as minimally as possible, and (c) is “proportionate” in the sense that the law is sufficiently important to justify such a violation (the more severe the violation, the more important the law must be).[20]
The parties in CCF agreed that the “objective of s[ection] 91(1) — to protect the integrity of the electoral process against the threat of false information — [was] pressing and substantial.”[21] However, the parties disagreed as to whether section 91(1) minimally impaired[22] freedom of expression (and passed the Oakes test) in light of the removal of the word “knowingly.” The CCF argued that section 91(1) could capture accidental misstatements and was therefore too broad to be minimally impairing.[23] By contrast, the Attorney General argued that the law, when interpreted properly, only captured deliberate false statements.[24] In this regard, the Attorney General suggested that the removal of “knowingly” was simply to eliminate legislative redundancy in drafting, and that the provision still implied that the offender would have to know that their statement was false.[25]
Why is the Word “Knowingly” So Important?
For conviction of most criminal acts, the Crown must prove two separate elements of the offence, the actus reus (AR) and the mens rea (MR).[26] The AR is the illegal act itself while the MR is the individual’s intent to commit said act.[27] The MR requirement means that an accused must possess a certain degree of knowledge in order to be found guilty of an offence.[28]
The Court confirmed that the AR of the section 91(1) offence was the actual spread of falsehoods during an election.[29] However, it was not clear how removing the word “knowingly” affected the MR.[30]
How Does the Rest of the Canada Elections Act Address the “Knowledge” Element?
The Court began by examining the text of section 91(1) in the context of the CEA. It noted that because the word “knowledge” was removed from section 91(1), “the offence as currently drafted does not contain any knowledge component.”[31] The Court noted that the portion of the law requiring an intention to affect election results is not relevant because it does not address knowledge of whether the statements made were false.[32]
After reviewing other CEA election offences, the Court noted that “Parliament ha[d] clearly articulated”[33] an MR requirement in all of the other offences, and that “[w]hen proof of knowledge is required, that is explicit in the prohibition or offence provision.”[34] For example, the Court referred to section 408(1) of the CEA, which states that “no leader of a political party shall provide the Chief Electoral Officer with information under section 385 that the leader knows is false or misleading”[35] when registering political parties.[36]
The Court further observed that the offence created by section 91(1) was starkly different from the rest of the offences under the CEA, and that it would therefore “be inconsistent with the structure of the CEA as a whole to interpret [section] 91(1) … as requiring knowledge when … [it was] not explicit in either the prohibition or offence.”[37]
The text of the CEA, then, suggested that removing “knowingly” from section 91(1) removed the requirement for an offender to know that their statement was false. But was this Parliament’s intent?
Did Parliament Intend to Change the MR Requirement?
To determine Parliament’s intention, the Court examined parliamentary debates and standing committee sessions on the law, acknowledging that such evidence is by itself “of limited weight.”[38] However, this evidence can provide context about the matters that Parliament considered when discussing the legislation. For this reason, such evidence is admissible to assist courts in determining Parliament’s intention, although it should not be determinative.[39]
First, the Court noted that there was little mention of deleting “knowingly” in the parliamentary debates.[40] Then, it examined the standing committee sessions, which briefly considered whether “knowledge” of a statement’s accuracy remained a component of the MR for the section 91(1) offence.[41] The Conservative Party proposed an amendment to keep the word “knowingly” in the law at a committee session, but the General Counsel to the Commissioner of Elections Canada stated that the inclusion of the phrase “with the intention of affecting the results of an election”[42] in the law implied that the “person making the publication would need to know that the information that is published was false.”[43] The amendment was ultimately rejected on this basis.[44]
For the most part, discussions during the standing committee hearings focused on how keeping the word “knowingly” in the provision could be misinterpreted and create confusion.[45] For example, Jean-Francois Morin, a senior policy advisor from the Privy Council Office, speculated that a judge could misinterpret the word “knowingly” to mean that the Crown must prove that the offender knew that they violated that specific portion of the Elections Act.[46] The Court, though, rejected Morin’s statements as “incorrect and potentially misleading.”[47]
The Court concluded that the legislative proceedings were “not helpful” and could not be interpreted “as [reflective] of Parliament’s true intention.”[48] There was therefore insufficient evidence to show whether Parliament intended to retain the MR knowledge requirement.
The Court also considered an affidavit from Mylene Gigou, the Director of Investigations with the Office of the Elections Commissioner, which argued that section 91(1) contained an implied knowledge component[49] because Parliament intended it “to be an intentional offence, not a strict liability offence.”[50] A strict liability offence does not have an MR requirement — committing the illegal act alone is sufficient to be found guilty, whereas an intent offence always requires some form of MR.[51] However, the Court rejected this statement as legally wrong, since “[c]ategorizing an offence as an intent offence does not [automatically] imply or require any particular form of mens rea.”[52]
Additionally, the Court found that Gigou contradicted herself; she stated that section 91(1) “only targets knowingly false statements,” but later that the provision could also capture statements made by a “person or entity [who is] willfully blind or reckless about the [statement’s] truthfulness.”[53] The Court accordingly found Gigou’s evidence of little use in outlining Parliament’s intentions and suggested instead that it “demonstrate[d] the confusion that arises when Parliament does not clearly articula[te] themens rea” for an offence.[54]
To sum up, the original version of section 91(1) included the word “knowledge,” which means that full knowledge of the statement’s falsity was required to secure a criminal conviction. By removing that word, Parliament potentially expanded the MR to include recklessness, which would be a significant change to the law.[55] An accused is reckless when they are aware of the relevant risks — in this case the risk that their statement may be false — but engage in the conduct regardless.[56] In contrast, full knowledge is a heightened standard, requiring awareness of falsity.[57] In the absence of indications to the contrary, the Court concluded that Parliament’s removal of the word “knowingly” was intended to expand the MR of the offence beyond full “knowledge.”
The New Law is Not Minimally Impairing
As noted above, for a law to justifiably infringe a Charter right it must minimally impair the right. This means that the law interferes with theCharter right “as little as possible.”[58] In this case, both parties agreed that the MR would need to be “knowledge” for the law to be minimally impairing. The Court found that removing the word “knowledge” from section 91(1) broadened the law unnecessarily to include people who unintentionally or recklessly distributed false information without knowing that it was false.[59] As a result, the law failed the minimal impairment test, was held unconstitutional, and was declared immediately to be of no force and effect.[60]
Law Struck Down: But This Doesn’t Mean You Can Spread All the Malarkey You Want The Court acknowledged that false election information is a threat to democracy, but concluded that this particular law unjustifiably infringed free expression. While the law was struck down, this does not give Canadians a free license to spread false information during an election. It is just that this particular law, as it was written at the time of litigation, was found to limitCharter freedoms in an unjustifiable manner. Subsequently, the government placed the word “knowingly” back into the law in May 2021 to render it constitutional.[61] Section 91(1) is therefore valid law once again.[62]
[1] Susan Delacourt, “Are There More People Telling Lies in this Federal Election?” Toronto Star (18 September 2019), online:
[2] Canadian Constitution Foundation v Canada (Attorney General), 2021 ONSC 1224 [CCF Canada].
[3] Canada Elections Act, SC 2000, c 9, s 91(1) as it appeared on 20 January 2021 [Elections Act].
[4] Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.
[5] CCF Canada, supra note 2 at para 3.
[6] Ibid at para 3.
[7] Elections Act, supra note 3, s 91(1)(a).
[8] Ibid, ss 463(3)(c) and 500.
[9] Brian Platt, “Liberals Aim to Use Budget Bill to Fix Charter Violation in their Own Election Misinformation Law” National Post (12 May 2021), online:
[10] CCF Canada, supra note 2 at para 12.
[11] Elections Act, supra note 3 as it appeared on 12 December 2018 (emphasis added).
[12] CCF Canada, supra note 2 at para 67.
[13] Gregory Tardi, “Including Emerging Litigation Comprenant les Litiges en Voie de Développement” (2021) 15 J Parliamentary & Pol L 441 at 442 (WL) [Tardi].
[14] CCF Canada, supra note 2 at para 5.
[15] Ibid at para 1.
[16] Ibid at para 1
[17] Ibid at para 2.
[18] Ibid at para 2
[19] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed (North York: University of Toronto Press, 2012) at 90 [Malcolmson].
[20] Ibid.
[21] CCF Canada, supra note 2 at para 6.
[22] “Minimal impairment” means that the “law in question [infringes] the right as little as possible … and [that] there [are no] other ways of achieving the same objective without limiting Charter rights” (Malcolmson, supra note 19 at 91).
[23] CCF Canada, supra note 2 at para 6.
[24] Ibid at para 5. [25] Ibid at para 8.
[26] Kent Roach, Criminal Law, 7th ed (Toronto: Irwin Law, 2018) at 10 [Roach].
[27] Manning, Mewett and Sankoff,Criminal Law, 4th ed (Markham: LexisNexis, 2009) at 103 [Manning et al].
[28] Roach, supra note 26 at 279-282.
[29] CCF Canada, supra note 2 at para 24.
[30] Ibid at paras 19-22.
[31] Ibid at para 33.
[32] Ibid at paras 24-26, 31.
[33] Ibid at para 42.
[34] Ibid.
[35] Elections Act, supra note 3 at s 408(1) [emphasis added].
[36] CCF Canada, supra note 2 at para 38.
[37] Ibid at para 43.
[38] Ibid at para 45.
[39] R v Morgentaler, [1993] 3 SCR 463 at 484 [Morgentaler].
[40] CCF Canada, supra note 2 at para 46.
[41] Ibid at para 58.
[42] Elections Act, supra note 3 at 91(1).
[43] CCF Canada, supra note 2 at para 48.
[44] Ibid at para 49.
[45] Ibid at para 48. [46] Ibid at para 48.
[47] Ibid at para 53.
[48] Ibid at para 58.
[49] Ibid at paras 59-60.
[50] Ibid at para 61.
[51] Manning et al, supra note 27 at 203.
[52] CCF Canada, supra note 2 at para 61 [emphasis added].
[53] Ibid at para 62.
[54] Ibid at paras 67-68.
[55] Ibid at para 67.
[56] Roach, supra note 26 at 216.
[57] CCF Canada, supra note 2 at paras 26, 66.
[58] R v Oakes, [1986] 1 SCR 103 at para 70, citing R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 352.
[59] CCF Canada, supra note 2 at para 71.
[60] Ibid at paras 74-75
[61] Platt, supra note 9.
[62] Elizabeth Thompson, “Trudeau Government Won’t Appeal Ruling that Struck Down Part of Elections Law” (23 March 2021), online:CBC News
Background
The word “referendum” is frequently mentioned by politicians, media, and academics as a potential way of settling contentious public issues. Whether it is to eliminate daylight savings time, create a provincial police force, or initiate negotiations to amend the Constitution of Canada, a referendum typically involves putting a binary “yes” or “no” question to members of the public so that they can directly express their opinion on it.[1] Due to widely held beliefs that referenda represent the unfiltered voice of the electorate, their results carry a special type of political weight, conferring “the people’s legitimacy … [on] decisions which may lead a country in a specific direction for years or decades.”[2]
On October 18th, 2021, Albertans will vote on two referendum questions as part of regularly scheduled municipal elections.[3] One of these questions asks whether the controversial equalization provision of the 1982 Constitution Act (section 36(2)) should be removed from Canada’s Constitution. The question is, what happens if a majority of Albertans vote “yes” in the referendum? Is the equalization provision automatically removed from the Constitution? And, if not, would a “yes” vote impose any legal obligations on Canada’s other governments, or set any further legal processes in motion?
This article provides some background on equalization and presents opposing perspectives on the constitutional implications of the referendum’s results. It explains why the referendum will not remove equalization from the Constitution, and why a “yes” vote likely doesn’t impose any constitutional obligation on the federal government or other provincial governments to negotiate with Alberta on removing section 36(2).
Equalization Payments: Two Opposing Streams of Thought
Before considering the legal impact of the referendum, we need a brief primer on its subject matter:equalization . Equalization payments were first made in 1957, and are now constitutionally guaranteed by section 36(2) of the Constitution Act, 1982, which states:
Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.[4]
Equalization payments are sums of federal tax revenues that are transferred to provincial governments to ensure that provinces have sufficient funds to ensure delivery of a consistent level of public services across the country.[5] Provinces that generate less revenue, colloquially referred to as “poorer” provinces,[6] receive a financial top up, whereas “richer” ones do not.[7]
While the Constitution guarantees that equalization payments will apply, it does not specify how equalization payments will be carried out. The formula to calculate equalization payments is a policy question that is left to the federal government of the day. A complex, mathematical formula calculates just how much money a province receives in any given year.[8] This formula was updated in 2009 by the Harper government and renewed in 2018 by Justin Trudeau.[9] For a more detailed explanation of how equalization works, see here.
In any given year, some provinces receive equalization payments, and others do not. This has resulted in two diverging perspectives. On the one hand, some stakeholders frame these transfers as unfair.[10] For example, the current Premier of Alberta, Jason Kenney, has said that “equalization is a powerful symbol of unfairness … in confederation”[11] whereby hardworking Albertans’ taxes subsize “have-not provinces.”[12] On the other hand, other stakeholders frame equalization payments as a vital “safety net” to ensure that public services are delivered to a baseline standard for all Canadians.[13] In a public debate, former politician and academic Michael Ignatieff stated that “equalization offers rough equality of opportunity,” guaranteeing assistance when provinces meet the criteria to receive transfer payments.[14]
The Kenney government’s staunch opposition to equalization led Kenney to promise during the 2019 election campaign to hold a referendum on its removal from the Constitution. Accordingly, the government has formulated the following question for the vote on October 18th, 2021:
“Should section 36(2) of the Constitution Act, 1982 — Parliament and the government of Canada’s commitment to the principle of making equalization payments — be removed from the constitution?”[15]
Guidance From the Supreme Court: The Duty to Negotiate from the Quebec Secession Reference
In 1998, the SCC ruled in the Reference re Secession of Quebec that a province could not unilaterally separate from Canada following a provincial referendum in which a majority voted in favour of secession.[24] In the course of this judgment, the Court offered guidance on how federal and provincial governments should respond to the results of provincial referenda on constitutional matters.[25] The Court stated that “the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession … would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.”[26] A few lines further on, the Court wrote that “[t]he corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table.”[27] The Court framed this as an obligatory “duty to negotiate” for the federal and other provincial governments.[28] But as the debate over Alberta’s equalization poll shows, different parties have very different interpretations of what the Court meant.
What Does the Kenney Government Claim the Secession Reference Means?
Kenney directly cited the Secession Reference when speaking publicly about the referendum. In a June th7, 2021 press conference, he said that “a positive vote on a proposed constitutional amendment, if it has a clear question and a clear majority of Albertans vote in favour of it, … [will] meet the threshold of the Quebec Secession Reference to compel the Government of Canada to engage in good faith negotiations with Alberta.”[29] Thus, his interpretation of the “duty to negotiate” suggests that when any province holds a referendum with a clear majority result on any constitutional topic, the federal government is legally obliged to commence negotiations.[30]
Kenney has also described the specific process through which this duty to negotiate would arise. Following a positive vote in favor of eliminating equalization, Kenney’s government would ratify the proposed amendment via a vote in the Legislative Assembly.[31] Kenney believes this act of legislative ratification would then legally oblige the federal government and the other provincial governments to commence formal negotiations on the removal of section 36(2) from the Constitution.[32]
Furthermore, Kenney has suggested that the referendum is also an important strategic move on the part of his government. In the June 7th press conference cited above, he said that the referendum is part of a “strategy to elevate Alberta’s fight for fairness in Confederation to the top of the national agenda … [and] to get Ottawa’s attention.”[33] While Kenney acknowledged that a province cannot unilaterally change the Constitution[34] and that a “yes” vote in the referendum is not “immediately going to fundamentally change equalization”[35] in Canada, he nevertheless calls the referendum a “legal tool to make a strong political point.”[36]
What Do Constitutional Scholars Claim the Secession Reference Means?
In light of Kenney’s reliance on the Secession Reference to justify holding the referendum on section 36(2), academics have chimed in with their opinions on the proper interpretation of the “duty to negotiate.”
Constitutional scholar Emmett McFarlane stated in 2019 on Twitter that “the [duty to negotiate] articulated in the Quebec Secession [R]eference only applies to secession.”[37] University of Alberta law professor Eric Adams similarly argues that Kenney is misrepresenting the Secession Reference, reasoning that the SCC “chose its words deliberately” so that the duty to negotiate applies only “to the most foundational constitutional crisis: the breakup of confederation itself.”[38] Further, Professor Adams points out that it would be a public policy nightmare if negotiations were automatically triggered following any provincial referendum on an any given constitutional topic. He reasons that this would create “an endless quagmire of constitutional dysfunction … [something that] the Supreme Court did not place us on [a path towards].”[39] Adams thus provides a relatively narrow interpretation of the Secession Reference, one which is diametrically opposed to Kenney’s.
While Adams acknowledges that Kenney has the right to initiate constitutional dialogue, he suggests that he can do this without holding a costly provincial referendum.[40] If Kenney asked for the issue to be addressed at a first ministers’ meeting, Adams argues that other provinces and the federal government “have an obligation to acknowledge and address”[41] the matter of equalization, but that they needn’t do more than “listen” to Alberta’s concerns.[42] Adams further suggests that Kenney’s interpretation may be more political than legal, and may be rooted in a politics of “anger, accusation, and blame” rather than a real desire to formally change the Constitution.[43] Whatever Kenney’s motives: for Adams, the referendum will have “nothing … tangible to say about whether or not the constitution [is actually] changed.”[44]
By contrast, University of Calgary professor Rainer Knopff characterizes Kenney’s interpretation as “partly right … [but] also partly wrong.”[45] Like Adams, he argues that the duty to negotiate is only triggered following a referendum on secession.[46] However, Knopff departs from Adams’ arguments and suggests that a different section of theSecession Reference provides a path forward where a referendum may be part of the process for triggering binding legal negotiations.[47]
Professor Knopff’s interpretation begins with paragraph 69 of the Secession Reference, which specifies that the Constitution Act, 1982 “confer[s] a right to initiate constitutional change on each participant in Confederation”[48] and imposes a “corresponding duty on … [Canada’s other governments] to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change”[49] in the initiating province. Knopff suggests that this process does not require a referendum but is rooted in section 46 of the Constitution Act, 1982.[50] Section 46 states that “procedures for [constitutional] amendment … may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.”[51]
Turning to the mechanics of how this would take place, Knopff speculates that the Alberta legislature could pass a simple resolution on the elimination of equalization and that this would impose a constitutional duty to negotiate on other governments.[52] However, he notes that Alberta’s Referendum Act requires a constitutional referendum before any such resolution can be enacted.[53] Thus, Knopff suggests that the referendum on equalization is an important step in the legal process of bringing about intergovernmental negotiations on the removal of section 36(2), although it is the legislative resolution that would ultimately “trigger the [constitutional] duty to negotiate,”[54] not the referendum.
The Results of a Single Referendum Probably Don’t Trigger a Legal Duty to Enter Constitutional Negotiations
So, even if a majority of Albertans vote to eliminate equalization, experts generally agree that this would not, by itself, impose a duty on other Canadian governments to enter into constitutional negotiations on equalization. Of course, a referendum is a useful tool for capturing public opinion, and it may be in the best political interests of the Kenney government to hold it, or in the federal government’s political interests to initiate negotiations in the event of a “yes” vote. However, if a vote in favour of eliminating equalization does result in constitutional negotiations, it is more likely that this would stem from political positioning and calculations, not constitutional law. Given the difficulty of getting seven provincial legislatures representing 50% of the population of the provinces to agree on a particular issue, as required by the Constitution’s general amending procedure, it is not likely that the Kenney government will succeed in repealing the equalization provision, even if intergovernmental negotiations did take place
[1] Yves Beigbeder, “Referendum” (June 2011), online: Oxford Public International Law
[2] Ibid.
[3] Drew Anderson, “Premier Jason Kenney Announces Equalization, Daylight Savings Referendums” (15 July 2021), online: CBC News
[4] Constitution Act, 1982, s 36(2), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982].
[5] Edison Roy-Cesar, “Canada’s Equalization Formula” (2013) at 1, online (pdf):Library of Parliament
[6] Ben Eisen & Mark Milke, “The Real Have-Nots In Confederation: British Columbia, Alberta, and Ontario” (1 May 2010), online:Policy Options < https://policyoptions.irpp.org/magazines/the-fault-lines-of-fe deralism/the-real-have-nots-in-confederation-british-columbia- alberta-and-ontario/> [Eisen].
[7] Ibid.
[8] LOP Equalization Formula, supra note 5 at 2-3.
[9] Paul Wells, “The Trudeau Liberals’ Fast One on Equalization: Not So Fast” (22 June 2018), online: Macleans
[10]Senator Paula Simons, “Equalization Town Hall” (28 July 2021) at 00h: 11m: 57s — 00h: 12m: 24s, online (video): YouTube < https://www.youtube.com/watch?v=jPg_QZ2hqz8&t=1s> [Simons Town Hall].
[11] Janet French, “Alberta Equalization Referendum Will Have No Bearing on the Constitution, Experts Say” (7 June 2021), online: CBC News
[12] Eisen, supra note 6.
[13] Marni Soupcoff, “Equalization is Doing Alberta No Favors — Michael Ignatieff’s Patronizing Arguments Notwithstanding” (19 October 2012), online:National Post
[14] Ibid.
[15] Alberta Legislative Assembly, Hansard Transcripts, 30-2, No 109 (3 June 2021) at 5220.
[16] Constitution Act, 1982, supra note 4, ss 38-49.
[17] French, supra note 11.
[18] Constitution Act, 1982, supra note 4 at ss 38-40, 42.
[19] Constitution Act, 1982, supra, note 4 at ss 38-42.
[20] Richard Albert, “The Conventions of Constitutional Amendment in Canada” (2016) 53 Osgoode Hall L J 399 at 409-410.
[21] CPAC, “Alberta Premier Jason Kenney Discusses Equalization Referendum, Apologizes for Cabinet Patio Dinner” (7 June 2021) at 00h: 15m: 44s — 00h: 16m: 04s, online (video): YouTube
[22] James Keller, “Albertans To Vote on Equalization in Fall Referendum: A Breakdown” (18 July 2021), online: The Globe and Mail
[23]Ibid.
[24] Reference re the Secession of Quebec, [1998] 2 SCR 17, 161 DLR 4th 385 [Secession Reference].
[25] Ibid at paras 88-92.
[26] Ibid at para 88.
[27] Ibid [emphasis added].
[28] Ibid at para 90.
[29] Kenney Press Conference, supra note 21 at 00h: 15m: 43s — 00h: 16m: 03s.
[30] Eric M Adams, “Jason Kenney’s Equalization Referendum is Built on a Crucial Misrepresentation” (28 June 2021), online: The Globe and Mail
[31] Kenney Press Conference, supra note 21 at 00h: 16m: 03s — 00h: 16m:16s.
[32] Ibid.
[33] Ibid at 00h: 16m: 33s — 00h: 16m: 44s.
[34] Ibid at 00h 16m: 29s — 00h: 16m: 33s. [35] Ibid at 00h 16m: 23s — 00h: 16m: 29s.
[36] Ibid at 00h: 17m: 01s — 00h 17m: 10s.
[37] Emmett MacFarlane, “Kenney still operating on presumption that a referendum would force the rest of Canada to negotiate” (22 October 2019 at 15:48), online:Twitter
[38] Adams, supra note 30.
[39] Ibid.
[40] Keller, supra note 22.
[41] Ibid.
[42] Ibid.
[43] Adams, supra note 30.
[44] Simons Town Hall, supra note 10 at 00h: 19m: 54s — 00h: 20m: 02s.
[45] Rainer Knopff, “Refining Alberta’s Equalization Gambit” (2020) at 3, online (pdf):Fraser Institute
[46] Ibid at 1.
[47] Ibid at 3.
[48] Secession Reference, supra note 24 at para 69.
[49] Ibid.
[50] Knopff, supra note 45 at 3.
[51] Constitution Act, 1982, supra note 4, s 46. [52] Knopff, supra note 45 at 4.
[53] Ibid at 6.
[54] Ibid at 1.
Provincial Constitutions: What Are They and How Do We Amend Them?
On May 13th, 2021, Quebec introduced Bill 96,An Act Respecting French, the Official and Common Language of Quebec.[1] Among other things, Bill 96 attempts to add two clauses to the Constitution Act, 1867. The first clause would declare that “Quebecers form a nation.”[2] The second states that French is Quebec’s official language, and “the common language of the Quebec nation.”[3] To make these changes, Quebec is relying on the amendment procedure set out in section 45 of the Constitution Act, 1982. Section 45 sets out the following unilateral amendment procedure: “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.”[4] Whether Quebec can validly make these changes using section 45 is uncertain and has experts across Canada divided. This is an unprecedented issue, as no province has ever attempted to make changes to a federal constitutional law — in this case, the Constitution Act, 1867 — using section 45.
This article analyzes whether Quebec can use section 45 to enact Bill 96’s proposed changes. First, it explains what a provincial constitution is. Second, it reviews the section 45 amendment procedure. Finally, it looks at some of the different scholarly perspectives on whether an amendment to a federal law (and a Constitution Act in particular) can constitute an amendment to a provincial constitution.
Provincial Constitutions Exist, But They Are Mostly Unwritten and Uncodified
There is one mention of the phrase “constitution of the province” in Canada’s Constitution, that being in section 45 of the Constitution Act, 1982. However, this term remains undefined. So, what is a provincial constitution?
Provincial constitutions are largely unwritten, but they do also have written components.[5] These written parts are uncodified, meaning that they are not collated in a single constitutional text. This makes it difficult to determine every single written source which is part of a provincial constitution.
The written elements of provincial constitutions include “statutory rules, common law rules, and constitutionally entrenched rules.”[6] They include provincial laws that set out the rules for provincial electoral systems, legislative processes, and governance by the executive branch.[7] They also include parts of the federal Constitution.[8] For example, sections 91 to 95 of the Constitution Act, 1867 set out provincial jurisdiction,[9] sections 96 to 100 create the framework for provincial courts,[10] and Part 5 sets out the Crown’s role in provincial governance.[11]
The unwritten nature of provincial constitutions is modelled after the British system, under which significant and important parts of the constitution are unwritten and instead defined by conventions.[12] Constitutional conventions are unwritten rules that govern matters that are not dealt with explicitly in the written constitution.[13] Conventions are not enforceable by courts as they are not laws, but exist in the “political realm.”[14] The “most fundamental convention of provincial constitutions” is the principle of responsible government.[15] Additional conventions that are part of provincial constitutions in Canada relate to the premier’s and provincial cabinet’s powers.[16]
Section 45: The Amending Procedure for Provincial Constitutions
Part V of the Constitution Act, 1982 sets out different procedures for amending Canada’s Constitution. Each procedure applies to “different subjects” and establishes different requirements for the amendment to be approved.[17] Section 45 sets out a unilateral amendment procedure that permits provincial legislatures to amend the “constitution of the province.”[18] The only requirement, or qualifier, is that this amendment procedure is subject to section 41 of the Constitution Act, 1982. Section 41 requires the unanimous consent of both houses of Parliament and all 10 provincial legislatures for amendments relating to specific subjects, including the “composition of the Supreme Court of Canada,” the amendment procedures in Part V of the Constitution Act, 1982, and “the use of the English or the French Language.”[19] Essentially, the reference to section 41 in section 45 functions as a filter, ensuring that provinces cannot unilaterally pass provincial constitutional amendments on certain subjects of special national importance.
While there is limited case law on section 45 itself, legal scholars suggest that the case law that applied to the now- repealed section 92(1) of the Constitution Act, 1867 also applies to section 45.[20] Section 45 of the newer, 1982 Constitution Act repealed and replaced the original amendment procedure for provincial constitutions (found in section 92(1) of the 1867 Act). Some scholars reason that case law on the old procedure, since it deals with the same subject matter, should be applied to the new one. In a 1987 decision, Ontario (Attorney General) v OPSEU, the Supreme Court of Canada provided commentary on the old section 92(1) procedure. First and foremost, an amendment of a provincial constitution is achieved, the Court said, through the enactment of “an ordinary law or statute of the provincial legislature.”[21] An enactment is considered an amendment to a provincial constitution: when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the office of Lieutenant‑Governor and, presumably and a fortiori, the office of the Queen who is represented by the Lieutenant‑Governor.[22]
Looking at section 45, there is no explicit requirement for any special level of majority support for the proposed amendment to pass. However, it does, at a minimum, require the passing of a law in a provincial legislature, thereby implying that a majority of legislators must necessarily consent to the amendment.[23]
Can Quebec Use Section 45 to Amend the Constitution Act, 1867?
Experts are divided on whether the proposed addition of two clauses to the Constitution Act, 1867 can validly be done using the section 45 amendment procedure. Unfortunately, previous uses of section 45 provide little guidance, as there have only been a few occasions when a provincial law has explicitly referenced it.[24] For example, Alberta expressly relied on section 45 when developing a land-based governance model for Métis settlements within the province in 1990.[25] However, the crucial difference between this use of section 45, and the use now proposed by Quebec, is that Alberta did not modify or add clauses to a piece of federal legislation. Moreover, Quebec’s proposed amendments are not just to any federal law, but to the Constitution Act, 1867, which is identified in the Constitution Act, 1982 as part of the Constitution of Canada.[26] As such, Quebec’s attempt to use section 45 is strikingly different from previous uses.
Where Does the Federal Government Stand?
When asked if Quebec could add clauses to theConstitution Act, 1867, Prime Minister Justin Trudeau responded that permission from the other provinces or the federal government is not needed.[27] In his comments, Trudeau said “Quebec, effectively, has the right to modify a part of the Constitution.”[28] Shortly after Trudeau’s comments on the matter, all major political party leaders at the federal level agreed that Quebec is able to make these proposed changes via section 45.
While federal leaders’ reasons for taking this position are unclear, one factor may be that there is nothingthat controversial about the substance of the proposed changes. In fact, in 2006, Parliament under the Harper government already passed a House of Commons motion recognizing Quebec’s status as a nation.[29] However, it is important to note that this House of Commons motion is symbolic and non-binding. As such, this motion is very different from a constitutional amendment, because constitutional law is not only binding, but is “supreme” as well, ie the highest form of law in the Canadian legal system.
On the other hand, the support from Trudeau and other political party leaders, despite the legal and constitutional questions surrounding Bill 96’s proposed changes, may be a product of political calculation rather than legal or otherwise substantive analysis.[30] On this point, Ian Peach suggests that federal party leaders are supporting these amendments “in the hope that agreeing with the Quebec government will allow them to win more House of Commons seats in Quebec in the upcoming federal election.”[31] Whatever the motivations of federal leaders, their comments and opinions do not bring us any closer to answering the real question surrounding the Bill 96 changes: the question of how these two proposed clauses can be legally added into the Constitution Act, 1867. On that matter, commentary from legal experts can help clarify whether the Quebec government is correct to assert that section 45 can be used.
What Do the Experts Say?
Among the first to comment on the matter, Emmett Macfarlane stated that Quebec cannot unilaterally insert the proposed clauses into Canada’s Constitution using section 45.[32] Macfarlane commented: “[The provisions] run afoul of the Constitution’s amending formula and are thusultra vires (beyond the authority of) the Quebec National Assembly.”[33] He reasoned that recognizing Quebec as a nation in the Constitution Act, 1867 extends beyond the boundaries of a provincial constitutional change for the purpose of the amending procedure in section 45.[34] Further, Macfarlane notes that the provisions “would confer new, unprecedented recognition of a social fact by the Canadian Constitution.”[35] This amendment does not go towards “the operation of an organ of the government of the province,”[36] in the words of the Supreme Court; instead it “imposes recognition of a contested fact on the rest of the federation.”[37]
Stéphanie Chouinard, on the other hand, partially agrees with the Quebec government, but adds a layer of nuance. Chouinard commented that “the first part of this proposal could most likely be adopted unilaterally by Quebec, but the second may require federal approval.”[38] The requirement of federal approval is laid out under section 43 of the 1982 Constitution Act, and is applicable to amendments that “relate … to the use of the English or the French language in a province.”
In contrast with both Macfarlane and Chouinard, Benoît Pelletier, a former minister for intergovernmental affairs in Quebec, fully supports the Quebec government’s claim that it can use section 45 for both proposed amendments.[39] In short, Pelletier believes that the proposed amendments only modify the constitution of Quebec and do not touch upon or alter federal-provincial relations, another province’s affairs, or the structure of Canadian federalism.[40] He accordingly reasons that both provisions are fully within the scope of section 45.
Where Do Canadians Stand?
Within Canada, the general public is also divided. The National Post reports that “a large majority of Quebecers support the right of provinces to unilaterally amend parts of the Constitution, whereas a similar majority of Canadians outside Quebec reject the proposal.”[41] The results of a recent poll showed that 62% of Quebecers supported the use of section 45 to amend parts of the Constitution that applied to the province specifically, while 64% of Canadians living outside of Quebec disagreed.[42] The last time Canada has seen a division such as this was arguably in the years leading up to and surrounding the 1995 referendum on Quebec sovereignty, which was partly motivated by Canada’s failure to constitutionalize Quebec’s distinct status — as Bill 96 now tries to do — via the Meech Lake and Charlottetown Accords.[43]
Conclusion: Where Are We Now?
On May 13th, 2021, Quebec tabled Bill 96, An Act Respecting French, the Official and Common Language of Quebec. Bill 96 proposes to unilaterally insert two clauses into the Constitution Act, 1867. The first declares that “Quebecers form a nation.” The second states that French is the official language in Quebec, and the “common language of the Quebec nation.” In response to these changes, the federal government and all major federal political party leaders have effectively given Quebec the green light to move forward with this amendment using the amending procedure found in section 45 of the Constitution Act, 1982. Section 45 permits provinces to unilaterally amend their provincial constitutions. Despite the supportive responses from Parliament, legal experts disagree sharply on whether Quebec can validly use section 45 to make these proposed amendments. As things stand, this uncertainty about the law will remain unless the Supreme Court of Canada has an opportunity to authoritatively rule on the matter through a reference question.
Further Reading:
Erin Crandall – “What is a provincial constitution and how do we amend it?” Emmett Macfarlane – “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly” Stéphanie Chouinard: Legault’s Language Bill – “A Third Way Between Sovereigntists and Federalists” Marco Bélair-Cirino – “Le Québec francophone dans la Constitution Canadienne, sans demander de permission”
[1] Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, Québec, 2021 (first reading 13 May 2021), online:
[2] Ibid, s 159.
[3] Ibid, s 159.
[4] Constitution Act, 1982, s 45, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act 1892].
[5] Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, 1987 CanLII 71 at para 85 [OPSEU].
[6] Emmanuelle Richez, “The Possibilities and Limits of Provincial Constitution-Making Power: The Case of Quebec” in Emmett Macfarlane, ed, Constitutional Amendment in Canada (Toronto: University of Toronto Press, 2016) 164 at 164 [Richez].
[7] Ibid at 165.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid at 164.
[13] Stephen Azzi, “Constitution of Canada” (last modified 24 April 2020), online:The Canadian Encyclopedia
[14] Ibid.
[15] Richez, supra note 6 at 164-65.
[16] Ibid.
[17] Ibid.
[18] Constitution Act, 1982, supra note 4, s 45.
[19] Ibid, s 41.
[20] Richez, supra note 6 at 166.
[21] OPSEU, supra note 5 at para 82.
[22] Ibid at para 90.
[23] Richez, supra note 6 at 170.
[24] Erin Crandall, “What is a Provincial Constitution and How Do We Amend It?” (May 28 2021), online:Policy Options
[25] Ibid. See also Constitution of Alberta Amendment Act, 1990, RSA 2000, c C-24, Preamble.
[26] Ian Peach, “Quebec Bill 96 – Time for a Primer on Amending the Constitution” (2021) 30:3 Const Forum 1 at 3 [Peach].
[27] Jonathan Montpetit, “Quebec’s proposed changes to Constitution seem small, but they could prompt historic makeover” (19 May 2021), online:CBC News
[28] Ibid.
[29] “House passes motion recognizing Quebecois as nation” (27 November 2006), online:CBC News
[30] Peach, supra note 26 at 6-7.
[31] Ibid at 7.
[32] Emmett Macfarlane, “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly” (14 May 2021), online: Policy Options
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] OPSEU, supra note 5 at para 90. [37] Macfarlane, supra note 32.
[38] Stéphanie Chouinard, “Legault’s Language Bill – A Third Way Between Sovereigntists and Federalists” (14 May 2021), online: Policy Magazine
[39] Marco Bélair-Cirino, “Le Québec francophone dans la Constitution canadienne, sans demander de permission” (13 May 2021), online:Le Devoir
[40] Ibid.
[41] Christopher Nardi, “Quebecers and the rest of Canada deeply divided on Quebec’s proposal to modify Constitution: poll” (29 May 2021), online:National Post
[42] Ibid.
[43] See “Looking back at the 1995 Quebec referendum” (30 October 2020), online:Global News
The Constitutional Amendments in Quebec’s Bill 96: Whose Consent is Needed?
On May 13th, 2021, the Quebec government introduced Bill 96, “An Act respecting French, the official and common language of Québec” in the Quebec National Assembly.[1] Bill 96 seeks to update the Charter of the French Language (also known as “Bill 101”)[2] and “affirm that the only official language of Québec is French [and] that French is the common language of the Québec nation.”[3] Bill 96 is receiving significant attention amongst constitutional scholars for article 159, which seeks to amend section 90 of the Constitution Act, 1867 — one of the key texts of the Canadian Constitution — by inserting the following provisions:[4]
FUNDAMENTAL CHARACTERISTICS OF QUEBEC
90Q.1. Quebecers form a nation.
90Q.2. French shall be the only official language of Quebec. It is also the common language of the Quebec nation.[5]
Constitutional scholars are divided on whether Quebec’s National Assembly may unilaterally amend the Constitution Act, 1867 in this way. Part V of the Constitution Act, 1982 sets out five rules that governments must follow to pass constitutional amendments, where the applicable rule depends on the subject matter of the proposed amendment.[6] This article refers to these rules collectively as the Constitution’s “amending formula” and to each separate rule as an “amendment procedure.”
This article highlights some of the leading thoughts on which amendment procedure should apply to the Bill 96 amendments and why. In particular, the article focuses on the following three amendment procedures:[7]
Section 45: “Amendments by provincial legislatures” to the constitution of the province;[8] Section 43: “[A]mendment[s] to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces,” including amendments concerning “the use of the English or the French language within a province,”[9] and; Section 38: Amendments under the “[g]eneral procedure for amending [the] Constitution of Canada.”[10]
Section 45: Amendments by Provincial Legislatures
Subject to section 41, the legislature of each province may exclusively make laws amending theconstitution of the province.[11]
Section 45 allows for the amendment of a provincial constitution by that province’s legislature, acting alone. This is the least onerous amendment procedure under the 1982 Constitution Act’s amending formula.[12] The Quebec government intends to enact the proposed constitutional amendments in Bill 96 unilaterally, using the section 45 amendment procedure. Its leading argument for invoking section 45 is that the proposed provisions amend Quebec’sprovincial constitution, not the Constitution of Canada. However, there has been disagreement on three issues that are essential to this claim: (1) how to define the constitution of a province; (2) whether the proposed amendments alter the Constitution of Canada or just the constitution of the province of Quebec; and (3) whether the proposed provisions are purely symbolic, or “engage … the interests of the [other] provinces by changing the fundamental nature”[13] of the Canadian federation and, hence, the Constitution of Canada.[14]
The following are some of the arguments that have been made in favour of the Quebec government’s claim that it can unilaterally amend the Constitution Act, 1867 using section 45:
Minister Simon Jolin-Barrette in Le Devoir: Quebec may amend section 90 because it falls under Part V of the Constitution Act, 1867 on “Provincial Constitutions” and therefore “belongs” to Quebec.[15] In other words, section 90 of the Constitution Act, 1867 is part of the constitution of the province of Quebec. Professor Patrick Taillon in Le Devoir: Quebec may alter the text of the Constitution that applies to Quebec, and so may define itself as “a member state of the federation” rather than one of the “provinces” of the “dominion.”[16] Benoît Pelletier in Le Devoir: Neither provision “touch[es]” either the federal aspect, federal- provincial relations, any other province, or the structure of Canadian federalism.[17] Allan Rock and Glenn O’Farrell in The Globe and Mail: Applying section 45 is beneficial from a policy perspective because it would show that the Constitution can adapt to the reality on the ground and that Canadian governments “can accommodate the aspirations of … [their] partners.”[18]
On the other hand, these are some of the arguments against Quebec’s claim that it can use section 45 to enact the proposed changes:
Ian Peach in the Constitutional Forum: According to the Constitution’s written text, any amendment to the Constitution Act, 1867 is an amendment to the “Constitution of Canada” because section 52(2) of the Constitution Act, 1982 provides that the “Constitution of Canada” includes the Constitution Act, 1867.[19] Professor Eric Adams in CBC News and on Twitter: Provincial constitutions are not distinct entities, but are rather “like nesting dolls” that form “part of the larger structure of the Constitution of Canada.”[20] The heading of Part V of theConstitution Act, 1867 (“Provincial Constitutions”) does not mean that what follows is the constitution of the provinces, but rather that it contains some elements of those constitutions.[21] Julius Grey in The Lawyer’s Daily: The provisions amount to Quebec seeking “sovereignty by the back door.”[22] If that “is the goal of the Quebec government, it should state it frankly and openly.”[23]
Section 43: Amendment of Provisions Relating to Some but not All Provinces
An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including
…
(b) any amendment to any provision that relates to the use of the English or the French language within a province,
may be made … only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.[24]
Constitutional scholars and lawyers disagree on how to interpret this provision. Some argue that section 43 is engaged when the Constitution of Canada itself is amended — not a provincial constitution — and that amendment applies to one or more, but not all, provinces.[25] Others suggest that section 43 is engaged when an amendment to either the Constitution of Canada or a provincial constitution affects or amends a “special arrangement” in the Constitution of Canada — including the use of the English or French language within a province — regardless of which vehicle is used to make that amendment.[26] In theory, section 43 makes it somewhat more efficient to amend the Constitution of Canada when the amendment only affects one or some but not all of the provinces because it does not require the consent of provinces for whom the amendment does not apply.[27] At the same time, section 43 ensures that all Canadians are represented — via the involvement of federal institutions — in the process of amending the Constitution of Canada, even if not all provinces take part in the process.[28] In this regard, section 43 allows members of parliament to examine the amendment on behalf of all Canadians to better understand its broader implications, including its effect on the rest of the Constitution.[29] Pan-Canadian representation is important because the Constitution belongs to all Canadian citizens, and it is a fundamental constitutional principle of democracy that all Canadians are represented in the process of amending it.[30]
The following source argues that both of Quebec’s proposed additions to the Constitution Act, 1867 — 90Q.1 (the nationhood provision) and 90Q.2 (the language provision) — amend the Constitution of Canada, but that the amendments only affect the province of Quebec, and therefore only require the consent of the federal Parliament and the Quebec National Assembly:
Ian Peach in the Constitutional Forum: Peach cautions that both the provisions themselves and the precedent of Quebec unilaterally amending the Constitution risks altering how the courts interpret the Constitution of Canada.[31] This may or may not affect which amendment procedure applies.
The following sources consider whether the language provision (90Q.2) affects the Constitution of Canada, and therefore requires, at a minimum, authorization by the federal Parliament as well as the Quebec National Assembly: Professor Eroll Mendez on CBC Power and Politics: The French language provision and the rest of Bill 96 could remove the rights of English-speakers and change the use of the English and French languages within Quebec, which engages section 43(b).[32] However, Patricia Hughes in Slaw suggests that, since the French language provision “does not directly amend … any of the … explicit language provisions in the [C]onstitution,” section 43 might not apply.[33]
Section 38 (1): General Procedure for Amending the Constitution of Canada
An amendment to the Constitution of Canada may be made … where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two- thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.[34]
Professor Richard Albert assessed this amendment procedure as the fourth-most difficult to use in the world.[35] For Albert, this is not necessarily a good thing. In his view, a constitution should be sufficiently entrenched to preserve the fundamental values upon which a society is based. However, it should not be so difficult to amend that it “privileges the status quo and reinforces the values and vision of those whose voice prevailed in creating the constitution.”[36]
The section 38 amendment procedure is also known as the “7/50 formula” or the “general amending procedure.” The Supreme Court of Canada referred to this procedure as “represent[ing] the balance deemed appropriate by the [constitutional] framers … for most constitutional amendments,” while the other amending procedures are “exceptions to the general rule.”[37] This suggests that section 38 is a big bucket that captures most constitutional amendments and should be interpreted broadly, while the remaining procedures cover the exceptions and should therefore be interpreted narrowly.
A number of scholars have argued that, insofar as no other amendment procedure is obviously applicable, one or both of the Bill 96 changes should be placed in the “big bucket” of the general amending procedure under section 38:
Professor Emmett Macfarlane in Policy Options: Quebec’s proposed amendments concern matters that have been subject to intense national debate throughout Canada’s constitutional history.[38] In particular, unilaterally amending the Constitution to recognize Quebec nationhood would “impose … recognition of a contested fact on the rest of the federation,”[39] and should therefore require the use of section 38. Patricia Hughes in Slaw and Professor Eroll Mendez on CBC Power and Politics: The nationhood provision could distort the equal partnership amongst provinces and the federal government.[40] It could be used to argue that Quebec has special rights over other provinces — “the devil is in the details.”[41] If the provision “effectively redesigns the basic jurisdictional structure of the confederation,” section 38 would be required.[42] Patricia Hughes in Slaw: The French language provision could be contrary to section 23 of the Charter, which protects minority language educational rights,[43] or section 133 of the Constitution Act, 1867, which provides that “[e]ither the English or French Language may be used by any Person in the Debates … of the Legislature of Quebec.”[44] Because the French language provision affects explicit constitutional protections, section 38 is the appropriate pathway for adding it to the Constitution.[45]
Conclusion It is not clear which amending procedure must be used for Quebec to insert the nationhood and French language provisions into the Constitution Act, 1867. Much of the debate is about defining key terms such as “constitution of the province,” understanding the purpose of the proposed provisions in the context of Bill 96 and other provincial legislation, and examining the effects of elevating these provisions to constitutional status. The Quebec government is preparing to conduct public hearings on Bill 96, to begin September 21st, 2021,[46] so some of the answers could be forthcoming. In the meantime, the recent commentary from constitutional experts provides insight into the key considerations that ought to inform how the proposed amendments are dealt with.
Further reading from the Centre for Constitutional Studies:
Amending Formula: Overview of the purpose and structure of the amending formula. Reference re Senate Reform (2014): The Supreme Court Clarifies the Senate Reform Process: The Supreme Court of Canada’s interpretation of the amending formula, which arose from the Harper government’s attempt to make changes to the Senate. Fulton-Favreau: Failed attempt to negotiate a new amending formula in the 1960s. Meech Lake Accord: Failed (i.e. unratified) constitutional agreement in 1987 following Quebec’s refusal to agree to the Canada Act, 1982 (and by extension the Constitution Act, 1982). Quebec’s status as a “distinct society” within Canada and language rights were central issues. Beaudoin-Edwards Committee: Committee established in 1991 to examine the amending formula and recommend alternatives. Beaudoin-Dobbie Committee: Committee established in 1991 to consult with Canadians on possible changes to the Constitution of Canada. Plan A and Plan B: Federal initiatives to address Quebec’s status as a “distinct society” and language rights following the 1995 Quebec sovereignty referendum.
[1] Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, 2021 (first reading 13 May 2021) [Bill 96].
[2] Charter of the French language, CQLR c C-11 (adopted in 1977, last updated 18 March 2021).
[3] Bill 96, supra note 1 at Explanatory Notes.
[4] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.
[5] Bill 96, supra note 1 art 159 [“Constitution Act, 1867”].
[6] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ss 38, 41, and 43-45 [“Constitution Act, 1982”]. See also Richard Albert, “The Expressive Function of Constitutional Amendment Rules” (2013) 59:2 McGill LJ 225 at 247-250 [Albert, “Amendment Rules”].
[7] Section 41 will not be addressed because there is general consensus that neither provision falls within the scope of the listed matters that require unanimous provincial and federal consent (see e.g. Emmett Macfarlane, “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly” (14 May 2021), online:Policy Options
[8] Constitution Act, 1982, supra note 6, s 45. [9] Ibid, s 43.
[10] Ibid, s 38.
[11] Ibid, s 45 (emphasis added). “Amendment by unanimous consent” provides an exhaustive list of matters that require the consent of Parliament and all legislatures to amend (Constitution Act, 1982, supra note 6 at s 41).
[12] See Albert, “Amendment Rules,” supra note 6 at 249.
[13] Reference re Senate Reform, 2014 SCC 32 (CanLII) at paras 77-78 [“Reference re Senate Reform”].
[14] See e.g. Patricia Hughes, “How Far Can We Go Before the Constitutional Bargain Is Undermined?” (1 June 2021), online (blog): Slaw
[15] Marco Bélair-Cirino, “Le Québec francophone dans la Constitution canadienne, sans demander de permission” (13 May 2021), online:Le Devoir
[16] Patrick Taillon, “La langue de la loi” (18 January 2021), online: Le Devoir
[17] Bélair-Cirino, supra note 15 (echoing the language in the Constitution Act, 1982, supra note 4, s 43 and the Supreme Court of Canada in Reference re Senate Reform, supra note 13 at paras 25-27).
[18] Allan Rock and Glenn O’Farrell, “Quebec’s Bill 96 has its merits, notwithstanding one big flaw” (9 June 2021), online: The Globe and Mail
[19] Ian Peach, “Quebec Bill 96 — Time For a Primer on Amending the Constitution” (2021) 30:3 Constitutional Forum / Forum constitutionnel 1 at 3 [“Peach”].
[20] Jonathan Montpetit, “Quebec’s proposed changes to Constitution seem small, but they could prompt historic makeover” (19 May 2021), online:CBC News
[21] Eric Adams, “I think the confusion stems from the heading of Part V of the Constitution Act, 1867: ‘Provincial Constitutions’. The provisions that follow contain some elements of provincial constitutions, but this section is not, itself, the Constitutions of the various provinces” (28 May 2021 at 11:29), Twitteronline:
[22] Julius Grey, “Bill 96: The perils of ‘pensée unique’” (Lexus Nexus: 26 May 2021), online:The Lawyer’s Daily
[23] Grey, supra note 22.
[24] Constitution Act, 1867, supra note 4 (emphasis added).
[25] See e.g. Peach, supra note 19 at 3-4.
[26] See e.g. CBC Power and Politics, “Could Quebec unilaterally change parts of the Constitution?” (19 May 2021), online: YouTube
[27] See Peach, supra note 19 at 5.
[28] Constitution Act, 1982, supra note 6 at s 43 (amendments that include “(a) any alteration to boundaries between provinces, and (b) any amendment to any provision that relates to the use of the English or the French language within a province” requires parliamentary consent and the consent of “each province to which the amendment applies”). See also Peach, supra note 19 at 5.
[29] See Peach, supra note 19 at 5.
[30] Ibid at 5-6.
[31] Ibid.
[32] CBC Power and Politics, supra note 26. See also Joel Goldenberg “Trudeau’s Bill C-32 declares French as Quebec’s official language” (16 June 2021), online:The Suburban
[33] Hughes, supra note 14. [34] Constitution Act, 1982, supra note 6, s 38 (emphasis added).
[35] See Albert, “The Difficulty of Constitutional Amendment in Canada” (2015) 53:1 Alta LRev 85 at 93 (citing Donald S Lutz, Principles of Constitutional Design (New York: Cambridge University Press, 2006 at 169).
[36] Ibid at 106.
[37] Reference re Senate Reform, supra note 13 at para 36.
[38] Macfarlane, supra note 7.
[39] Ibid (echoing the Supreme Court of Canada in Reference Re Senate Reform, supra note 13 at paras 77-78).
[40] Hughes, supra note 14.
[41] CBC Power and Politics, supra note 26. See also Deepak Awasti, “Trudeau wrong in interpretation of Bill 96 Constitutional amendment powers”, (26 May 2021), online: The Suburban
[42] Hughes, supra note 14 (Hughes notes that, alternatively, Quebec could view the nationhood provision as a “pact between two peoples” that does not affect the other provinces, and therefore only engages section 43).
[43] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[44] Constitution Act, 1867, supra note 4 at s 133 (Hughes, supra note 14 notes that a violation of section 133 could be interpreted narrowly to affect only Parliament and Quebec, but not the rest of Canada). [45] Hughes, supra note 14 (Hughes also uses this argument to suggest that unanimous consent could be required under section 41 of the Constitution Act, 1982, although this is unlikely. If the courts find that the French language provision violates the Constitution so broadly as to affect all provinces of Canada, unanimous consent may be required).
[46] “Public hearings for Quebec’s French language law bill to begin Sept. 21” (29 June 2021), online:Montreal Gazette
The Genetic Non- Discrimination Act Reference: Federal Criminal Law Powers Applied to Modern Science
The Supreme Court of Canada Weighs In: TheGNDA is Constitutional
On July 10th, 2020, the Supreme Court of Canada (SCC) released its much-anticipated Reference re Genetic Non-Discrimination Act (“GNDA Reference”) decision. In a remarkably close decision, a five to four majority of the Court found that the Genetic Non-Discrimination Act (GNDA) is constitutional.[1] This article will examine how the Court reached this conclusion by framing the GNDA as a valid exercise of the federal Parliament’s criminal law power.
Background: What Does the GNDA Do? In 2017, Parliament addressed concerns about the use of mandatory genetic tests and the potential for non-consensual use of genetic test results by passing the GNDA. Section 3 of the GNDA makes it illegal “to require an individual to undergo a genetic test as a condition of” the following: entering into or continuing contracts or agreements, the provision of goods or services, and offering or continuing to offer specific terms and conditions in a contact or agreement.[2] Section 5 requires an individual’s consent if any genetic information is to be used, collected, or disclosed.[3] And section 7 outlines the penalties for violations, which range from fines to imprisonment for up to five years.[4] The GNDA also updated the Canadian Human Rights Act and the Canada Labour Code by explicitly outlawing discrimination based on genetic conditions.[5]
The GNDA’s Path Through Parliament: Swirling Questions About its Constitutionality
The GNDA originated in the Senate as a private members bill.[6] It was proposed by Senator James Cowan, who wished to use the federal government’s jurisdiction over criminal matters[7] to ensure that Canadians can freely access “the extraordinary advances taking place in medical science”[8] by undergoing genetic tests. Throughout the parliamentary discussions, many lawmakers agreed with the Bill, typically on the grounds that it would prevent insurance companies denying coverage[9] or increasing premiums based on pre-disposed genetic conditions.[10] Lawmakers also asserted that the Bill was necessary to update Canada’s laws to address nuanced forms of discrimination.[11]
However, as the GNDA made its way through Parliament, concerns about its constitutionality arose. The main flashpoint centered around the division of powers, a hallmark of Canadian federalism.[12] Section 91 of theConstitution Act, 1867 grants the federal government jurisdiction over certain matters, while Section 92 outlines the powers of provincial governments.[13] Neither level of government can make laws that fall under the other’s exclusive jurisdiction. With the GNDA, Parliament purported to exercise its jurisdiction over criminal law under section 91(27) by outlawing genetic discrimination and establishing stringent punishments for violations.
In contrast, the Government of Quebec argued that the GNDA was a veiled attempt to regulate the insurance industry and private commercial contracts, and that it thereby intruded on the provinces’ jurisdiction over property and civil rights under section 92(13).[14] Insurance companies also raised concerns about the legislation, claiming that the federal government was unconstitutionally regulating their industry and making it more difficult for them to assess risk.[15] The Cabinet of Canada, on the advice of then-Attorney General Jody Wilson-Raybould, agreed with the Quebec government and opposed the GNDA in Parliament.[16] Nevertheless, a majority of parliamentarians voted to pass the GNDA and it was granted royal assent in May 2017.[17]
Immediately, Quebec’s provincial government asked its Court of Appeal to determine whether sections 1 to 7 of the GNDA were a valid exercise of the federal Parliament’s power to make criminal laws. The Quebec Court of Appeal ruled that sections 3, 5, and 7 of the GNDA were not criminal laws and were unconstitutional because they therefore exceeded federal jurisdiction.[18] Upon the Quebec Court’s ruling, the Canadian Coalition of Genetic Fairness, an intervener[19] which heavily advocated for the GNDA, filed an appeal to the Supreme Court of Canada.[20] The SCC was tasked with determining whether the GNDA is a valid criminal law or a colourable“ law” which presents itself as a criminal law but in fact attempts to covertly regulate matters within provincial jurisdiction (e.g. the insurance industry).
The Supreme Court’s Analysis: A Two Step Process Writing for the majority of the Supreme Court, Justice Karakatsanis outlined the division of powers test to determine whether the impugned provisions of theGNDA fell within federal jurisdiction. First, the Court “characterized” the GNDA by determining its “pith and substance” (or essential character). Then, based on that characterization, the Court asked whether the federal government has the power to enact the GNDA under section 91(27) of the Constitution Act, 1867 (the criminal law power).[21]
Step 1- Pith and Substance: Determining the Essential Character of the GNDA
The first step the SCC took in the GNDA Reference was a “pith and substance” analysis. This analysis determines the “essential character” of the law — “what it is really about”[22] — regardless of its stated intention.[23] This characterization process “requires considering both the law’s purpose and its effects.”[24] To do this, the Court first examined the intrinsic evidence of the law’s purpose, which included the text of theGNDA , its structure, and its title.[25] Then, the Court considered extrinsic evidence of the law’s purpose, which included parliamentary debates, committee testimony, and other government publications.[26] Finally, the legal and practical effects of the law were considered.[27]
In its survey of the intrinsic evidence of the law’s purpose, the SCC held that the text of the GNDA, its preamble, and its title were strong evidence that the purpose of the law was to “combat discrimination based on information disclosed by genetic tests by criminalizing compulsory genetic testing, compulsory disclosure of test results, and non-consensual use of test results in a broadly defined context.”[28] The Court noted that genetic tests “reveal highly personal information — details that individuals might not wish to know or share and that could be used against them.”[29] The Court found that the intrinsic evidence suggested that the GNDA’s dominant purpose was to protect this information from being used against individuals without their full and free consent.[30]
Next, the SCC examined extrinsic evidence of the law’s purpose, which included parliamentary debates and committee testimonies concerning the GNDA as it worked its way through the legislative process. Time and time again, members of parliament and senators spoke about the lack of legal protections that “left individuals vulnerable to genetic discrimination and grounded the fear of … [said] discrimination.”[31] Additionally, the Court referenced committee testimony by experts,[32] many of whom focused on the “devastating health consequences” stemming from the “foregoing of genetic testing” out of fear that personal health information revealed by that testing might be used against those being tested.[33]
After examining the evidence of the law’s purpose, the SCC determined that the main legal effects of the GNDA were that it “prohibit[ed] genetic testing requirements and non- consensual uses of genetic test results.”[34] Effectively, the Court found that the GNDA protected individuals from genetic discrimination in a wide variety of circumstances while imposing substantial penalties for violations.[35] In terms of practical effects, the Court determined that the GNDA enables individuals to choose freely, without fear, to undergo genetic testing.[36] Thus, the Court concluded that theGNDA ’s provisions give individuals greater control over their private health information, and “encourage individuals to undergo genetic testing …. [that] may in turn produce health benefits, including by enabling earlier detection of health problems.”[37]
In light of this analysis of the law’s purpose and effects, the SCC concluded that the pith and substance of the GNDA was to “protect individuals’ control over their detailed personal information disclosed by genetic tests in the areas of contracting and the provision of goods and services in order to address fears that … test results will be used against them and to prevent discrimination based on that information.”[38] This was somewhat different from the Quebec Court of Appeal’s ruling that the law’s essential character was not to prohibit genetic discrimination in a general sense, but to regulate “agreements … particularly insurance and employment contracts.”[39] For the SCC though, the law’s impact on the insurance industry, while significant, is relatively indirect. In this regard, although the Court acknowledged that Parliament was concerned about potential genetic discrimination in the specific context of the insurance industry, it ultimately concluded that the provisions of the GNDA were not limited to regulating any one specific industry or activity.[40]
However, within the majority of the five Justices, there were two differing opinions on the exact pith and substance of the GNDA, with some Justices reaching a slightly different conclusion than Justice Karakatsanis.[41] Two other Justices found that the pith and substance of the GNDA was not merely to prevent genetic discrimination, but more broadly “to protect [public] health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.”[42] Regardless of this difference, both majority interpretations of the pith and substance of the GNDA lead to the same result in step two of the Court’s analysis.[43]
Step 2- Classification: TheGNDA Fits Under Federal Parliament’s Section 91(27) Criminal Law Power
After determining that the essential character of the GNDA was to combat genetic discrimination and the fear of genetic discrimination, the SCC had to “classify” the law under a head of power.[44] More specifically, the Court asked whether the GNDA constitutes a valid exercise of the federal Parliament’s power to make criminal laws, per section 91(27) of the Constitution Act, 1867.[45] In addressing this question, the SCC cited the Margarine Reference, which established that for federal legislation to be characterized as a criminal law, it must fulfill three criteria:[46]
It is in the form of a prohibition; It is accompanied by penalties; and It is for a criminal law purpose.
The GNDA fulfilled the first two criteria easily, being prohibitive of genetic discrimination, and containing fines and/or jail time as the penalties for violation.[47] The success of the GNDA’s classification as a criminal law under section 91(27) then hinged on whether the prevention of genetic discrimination constitutes a valid criminal law purpose under the Margarine Reference test.[48] Broadly speaking, a valid criminal purpose has two features. Firstly, “it should be directed at some evil, injurious, or undesirable effect on the public.”[49] Secondly, it “should serve one or more of the ‘public purposes’ or ‘ends’”[50] mentioned in the Margarine Reference, which included “public peace, order, security, health, [and] morality.”[51]
In the GNDA Reference, the SCC held that the GNDA safeguards “autonomy, privacy and the fundamental social value of equality, as well as public health.”[52] The Court recognized the potential, before the GNDA was enacted, for sensitive personal information to be abused and disseminated without an individual’s permission. Furthermore, the Court referenced the broad nature of criminal law powers, citingRJR-MacDonald , which held that Parliament’s criminal law powers are broad, plenary, and must be able to respond to new and emerging matters.[53] The Court noted that genetic mapping and the pace of modern science open up the potential for new threats to personal privacy,[54] and held that it is within Parliament’s power under section 91(27) to protect people from such “emerging threats to [their] privacy, autonomy and equality.”[55] The SCC also noted that genetic discrimination poses a threat to public health that Parliament is empowered to address via its criminal law powers.[56] It recognized that genetic discrimination and the fear of genetic discrimination can be barriers to an optimized healthcare system.[57] For example, the Court reasoned that if there were no protections in place, individuals may choose to avoid potentially lifesaving genetic testing out of fear that their information could be used against them in the future.[58] The Court concluded that the law directly targets this fear, and ensures necessary protections that can positively impact the public healthcare system as a whole.[59]
In summary, the SCC held that since theGNDA targeted potential harms to privacy, autonomy, equality, and public health,[60] it has a valid criminal purpose and therefore constitutes a valid exercise of the federal Parliament’s exclusive power to make criminal laws.[61]
Conclusion: A Split Decision, But the GNDA Remains in Effect
The GNDA Reference was a difficult case for the Court, with a single vote making the difference. Five of the nine Supreme Court Justices found the GNDA constitutional, while the remaining four Justices argued in dissent that theGNDA unconstitutionally intrudes into the provinces’ jurisdiction over property and civil rights.[62] It was the narrowest of decisions, but it ensures that the GNDA remains a valid law, and will remain in force unless a future parliament repeals it.
According to its proponents, the GNDA was purported to respond to advances in modern science and, in particular, to ensure that individuals can benefit from these advances without suffering discrimination. Given the rapid pace of scientific innovation today, this will not be the last time that governments and courts in Canada grapple with the constitutional implications of regulatory issues that could not have been known when theConstitution Act, 1867 was enacted.
[1] Reference re Genetic Non-Discrimination Act, 2020 SCC 17 at paras 1-4 [GNDA Reference].
[2] Genetic Non-Discrimination Act, SC 2017, c 3, s 3 [GNDA].
[3] Ibid at s 5.
[4] Ibid at s 7.
[5] Ibid at ss 8-10.
[6] Olivia Stefanovich “Supreme Court of Canada Upholds Genetic Non-Discrimination Law” (10 July 2020), online: CBC News
[7] Senate, Debates of the Senate, Orders of the Day, 42-1, No 150 (27 January 2016) at 14:50 (Hon James Cowan).
[8] Ibid at 14:30.
[9] House of Commons, Private Members Business,House of Commons Debates, 42-1, No 149 (7 March 2017) at 17:40 (Don Davies).
[10] House of Commons, Private Members Business,House of Commons Debates, 42-1, No 149 (7 March 2017) at 17:25 (Jennifer O’Connell).
[11] House of Commons, Private Members Business,House of Commons Debates, 42-1, No 149 (7 March 2017) at 18:00 (Garnett Genuis).
[12] Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) at chapter 5 at 2.
[13] Constitution Act, 1867 (UK), 30 & 31 Vict, c3, ss 91-92, reprinted in RSC 1985, Appendix II, No 5.
[14] Alanna Crouse, “Falling Between the Jurisdictions: Genetic Discrimination & the Law” (31 March 2020), online (blog): McGill Journal of Law and Health
[15] Elizabeth Adjin-Tettey, “Striking the Right Balance: Does the Genetic Non Discrimination Act Promote Access to Insurance?” (2021) 14:1 McGill JL & Health 145 at 158.
[16] John Paul Tasker, “Liberal backbenchers Defy Cabinet Wishes and Vote to Enact Genetic Discrimination Law” (8 March 2017), online:CBC News
[17] Ibid.
[18] Reference of the Government of Quebec concerning the constitutionality of the Genetic Non-Discrimination Act enacted by Sections 1 to 7 of the Act to prohibit and prevent genetic discrimination, 2018 QCCA 2193 at paras 23-26 [QC GNDA Reference].
[19] An intervener is a third party the court allows to make arguments about a law or case. See also, “Intervener,” online: Thomson Reuters < https://ca.practicallaw.thomsonreuters.com/8-507-2484?transiti onType=Default&contextData=(sc.Default)#:~:text=A%20party%20in %20a%20litigation%20that%3A&text=Has%20been%20granted%20standi ng%20by,or%20part%20of%20the%20litigation>
[20] Stefanovic, supra note 6.
[21] GNDA Reference, supra note 1 at para 103.
[22] Ibid at para 29. [23] Ibid at para 28.
[24] Ibid at para 30.
[25] Ibid at para 35.
[26] Ibid at para 40.
[27] Ibid at para 51.
[28] Ibid at para 39.
[29] Ibid at para 39.
[30] Ibid at paras 38-39.
[31] Ibid at para 45.
[32] Ibid at para 43.
[33] Ibid at para 126.
[34] Ibid at para 52.
[35] Ibid at paras 52-53.
[36] Ibid at para 54.
[37] Ibid at paras 54-56.
[38] Ibid at para 65.
[39] QC GNDA Reference, supra note 18 at paras 10-11.
[40] GNDA Reference, supra note 1 at paras 57-62.
[41] Ibid at paras 111-114.
[42] Ibid at para 136.
[43] Ibid at paras 150-151.
[44] Ibid at para 26. [45] Ibid at para 66.
[46] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 49-50, 1 DLR 433 [Margarine Reference].
[47] GNDA Reference, supra note 1 at para 68.
[48] Ibid at para 147.
[49] Margarine Reference, supra note 46 at 49.
[50] GNDA Reference, supra note 1 at para 72.
[51] Margarine Reference, supra note 46 at 50.
[52] GNDA Reference, supra note 1 at para 80.
[53] RJR MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199 at para 28, 111 DLR (4th) 385 [RJR-MacDonald].
[54] GNDA Reference, supra note 1 at para 89.
[55] Ibid at para 92.
[56] Ibid at para 73.
[57] Ibid at para 93.
[58] Ibid at paras 97-98.
[59] Ibid at paras 97,102.
[60] Ibid at paras 93,96.
[61] Ibid at para 4.
[62] Ibid at para 272. From Just a Title to Minister of Everything: The Deputy Prime Minister of Canada
Deputy Prime Minister (DPM) Chrystia Freeland is a familiar face at daily press conferences in her role as chair of the Cabinet Committee on COVID-19.[1] Since her appointment as DPM in 2019, Freeland has been perceived as wielding a tremendous amount of power, earning her the nickname “minister of everything.”[2] At present, Freeland is responsible for a range of files, including finance (in her concurrent role as minister of finance), Canada-US relations, and the country’s COVID-19 response. This has led some to suggest that the current DPM is actually “running things in Ottawa.”[3] But just how powerful is the Office of the DPM, and where does its power come from?
Source of the DPM’s Powers: Unwritten Conventions & the Prime Minister
The prime minister has broad powers that flow from unwritten constitutional conventions.[4] Constitutional conventions are an important component of Canada’s Constitution that can be characterized as accepted customs.[5] Although they are not legally enforceable, constitutional conventions are nonetheless supposed to bind political actors in order to promote the stable operation of democratic governance.[6] For example, the powers of the prime minister (PM) are enumerated nowhere in the legal texts that make up the Constitution of Canada.[7] However, by constitutional convention, the PM can create, merge, and abolish ministry roles and government departments (including the Office of the DPM),[8] and may unilaterally change the name, scope, and authority of departments at any time.[9] For example, in 1991, Prime Minister Brian Mulroney created the role of Minister responsible for Constitutional Affairs.[10] He appointed Joe Clark to the role to manage the negotiations that produced theCharlottetown Accord, and the role was dissolved shortly after the Accord was rejected in October 1992. Likewise, Justin Trudeau created the Ministry of Border Security and Organized Crime Reduction to address the illegal border crossings at Roxham Road in 2018.[11] The department and its powers were later combined with the Ministry of Public Safety in 2019.
Background History: The Creation of the Office of the Deputy Prime Minister
The Office of the Deputy Prime Minister of Canada is a relatively recent creation. It was established in 1977 by Prime Minister Pierre Trudeau, who wished to recognize the service of one of his longtime cabinet ministers, Allan MacEachen.[12] Trudeau borrowed the title from the United Kingdom, where it was first recognized in 1942.[13] During the WWII coalition government in the UK, Clement Attlee answered House of Commons questions on behalf of PM Winston Churchill during the latter’s absences. As the designated alternate to answer questions, Atlee was recognized as “Deputy Prime Minister,” though there were no other duties attached to the title.
The Fluctuating Role of the Deputy Prime Minister in Canada
Given their broad powers, the incumbent prime minister’s discretion determines the scope of the deputy prime minister’s powers.[14] Each PM will have different preferences on this, and the DPM’s role will accordingly fluctuate from one officeholder to the next.
1) When the Office is Unoccupied: No Deputy Prime Minister Since unwritten conventions allow the prime minister to create and abolish cabinet positions based on the needs of the government, the deputy prime minister’s role may not always be occupied. The PM is not required to appoint a DPM, and may instead choose to retain the powers that may otherwise have been delegated to a DPM. For example, from 2006-2015, Stephen Harper did not appoint a DPM.[15] During this period, power that could have been delegated to a DPM remained centralized in the Prime Minister’s Office. As an example of this, Harper himself chose to chair the cabinet committee formed to respond to the 2008 Financial Crisis. Alternatively, Harper could have appointed a dedicated DPM to play the type of crisis response role that Chrystia Freeland has played during the COVID-19 pandemic.
Throughout the Harper years, some commentators suggested that Finance Minister Jim Flaherty and Industry Minister Jim Prentice wielded so much influence and power that either or both of them could be considered the unofficial DPM.[16] However, this is a misnomer. While Flaherty and Prentice may have been the second most powerful figures in the Harper government, that alone would not automatically make them DPMs, even unofficially. In fact, as the following section will make clear, a high level of political power and influence has rarely been a feature of the DPM’s Office, historically.
2) When the Office is Occupied: Fluid Role of the Deputy Prime Minister
When prime ministers have filled the role of deputy prime minister, the powers of the DPM have varied considerably, within and between governments. In this sense, the office has ranged from a purely honorary role to one that conveys emphasis on a specific ministry and, more recently, a role that can be arguably be viewed as the second most powerful in Canada’s government. 1. Symbolism: Honorific Title
The assignment of the DPM title to a minister can be done for symbolic purposes with no powers attached to it. As noted above, when Pierre Trudeau created the office in 1977, he appointed longtime cabinet minister Allan MacEachen to the role. MacEachen was previously in charge of labour, external affairs, immigration, and finance. Trudeau wanted to recognize his contributions in these important roles over the years, giving him the title of DPM.[17] As DPM, MacEachen had no formal duties and responsibilities; instead, all his formal powers were exercised through his position as government house leader.[18]
Similarly, Jean Chretien served briefly as DPM in the John Turner government in 1984.[19] Turner appointed Chretien to the post after defeating him in the Liberal leadership race. Like MacEachen, Chretien had no formal powers, and wore the DPM label as a purely symbolic title. Thirteen years later, in 1997, Chretien (then prime minister) appointed the longest- serving Member of Parliament in the House of Commons, Herb Gray, to the role of DPM.[20] Gray, a senior cabinet minister with decades of experience, had no specific responsibilities as DPM.[21] Thus, these examples demonstrate that at its core, the office of DPM is an empty box: a symbolic title that doesn’t necessarily hold any real significance or specific powers.
Semi-Symbolism: A Title to Emphasize Concurrent Roles
While deputy prime minister has often been a purely symbolic title, it can also be assigned to a minister to emphasize the importance of their role in cabinet.[22] By adding the title of DPM, the PM attempts to convey that the government is prioritizing a particular issue. The title itself remains symbolic, but the political power of the officeholder increases insofar as they wield powers stemming from other key cabinet roles.
For example, from 2003-2006 Prime Minister Paul Martin assigned Anne McLellan the title of DPM, in addition to her existing role as public safety minister.[23] In doing so, Martin attempted to demonstrate that his Liberal government prioritized public safety. Martin became PM shortly after 9/11, when the world was grappling with tough questions about balancing national security and civil liberties.[24] Having the public safety minister concurrently serve as DPM implied that the government was focused on keeping Canadians safe and prioritizing national security.[25]
Anne McLellan’s tenure accordingly shows that the DPM role may be used to symbolically convey additional importance to other high-profile political roles.[26] While having a DPM serve concurrently as a minister does emphasize government priorities, those priorities would likely have been on the government’s agenda regardless of whether the deputy prime minister role was filled.[27] In McLellan’s case, the title of DPM remained a largely symbolic one, where powers are exercised via concurrent cabinet roles and not via her role as DPM.
A Departure from the Past: The Beginning of a Second in Command?
Although deputy prime minister has often been little more than a symbolic title, the prime minister’s breadth of discretion means that a DPM may exercise broad powers through that office alone. Is this now the case with Chrystia Freeland?
While Freeland is one of the most prominent cabinet ministers in the Trudeau government, her status as DPM can still be interpreted simply as a title that adds emphasis to her other ministerial roles. Indeed, much of Freeland’s power since 2019 has stemmed from her concurrent roles in other ministries.[28] When Freeland was moved from foreign affairs to her current role as DPM, she was also assigned the key cabinet post of Minister for Intergovernmental Affairs. Then, in August 2020, Freeland took over the Ministry of Finance portfolio,[29] laying the groundwork for the eventual 2021 budget and the COVID-19 economic recovery. While Freeland has wielded tremendous power in these roles, one may argue that this did not make her a powerful DPM, since she would have addressed the same critical issues if her DPM title were removed. In this sense, Freeland’s position is arguably similar to McLellan’s: maintaining her title as DPM with her appointment as Finance Minister may have been intended to show the government’s seriousness about supporting Canadians through the pandemic and the prioritization of a successful economic recovery.
However, it has also been suggested that Freeland’s role has expanded her powers beyond those of her other ministerial roles.[30] Alongside her concurrent role as minister of finance, Freeland supervises Canada-US relations and North American trade, negotiates with provincial leaders, and continues to lead the response to COVID-19. She also works collaboratively with all the other ministers in setting the agenda for their departments.[31] The breadth and diversity of these roles suggests that she is perhaps closer than any of her DPM predecessors to being Canada’s de facto second in command.[32]
However, while Freeland may function politically as Justin Trudeau’s second in command, her position is starkly different from that of a legal second in command, such as the Vice President of the United States. The US Vice Presidency is a constitutionally entrenched role and is first in the line of presidential succession.[33] Canada’s DPM role is neither. The DPM exists only at the PM’s discretion, and does not automatically assume the role of PM in the event of his/her death or incapacitation. In fact, there is no formal order of succession in Canada. If the PM is killed or incapacitated, the Governor General appoints whichever cabinet minister can maintain the confidence of the House of Commons, which may or may not be the DPM.[34]
In conclusion, Freeland’s current duties and powers suggest that the DPM position can expand beyond a mere honorary title. However, the role of the DPM is not, constitutionally, that of the PM’s official second in command, and does not come with fixed, clearly defined powers. Even in Freeland’s case, the DPM’s powers could be revoked by the Prime Minister at any moment, and much of her political power today derives from her concurrent role as minister of finance.
The Road Ahead: The Future of the Office of the Deputy Prime Minister
Overall, the deputy prime minister’s role is governed by the prime minister’s powers to create ministries and appoint ministers, which arise from unwritten constitutional conventions. Since these conventions give the PM broad discretion, the role of the DPM varies considerably at any given time, ranging from a symbolic title to the PM’s de facto second in command. It is, in other words, a role that fluctuates as governments and their priorities change. Unless there is a constitutional amendment on this issue at some point, the scope and powers of the DPM will most likely continue to fluctuate for the foreseeable future.
[1]Prime Minister of Canada, News Release, “Prime Minister Creates Committee on COVID-19” (4 March 2020), online:PMO News Releases
[2]Anne-Sylvaine Chassany, “The ‘Minister of Everything’ Pins Her Hopes on a Consumer Led Rebound from Covid-19 Setbacks” Financial Times (12 May 2021), online:
[3] Eugene Lang & Greg Schmidt, “The Role of Deputy Prime Minister is not as Powerful as Most Think” Policy Options (6 August 2020), online:
[4]Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) at Part 1, Section 9.4 (c) [Hogg].
[5] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed (North York: University of Toronto Press, 2012) at 16-18.
[6] Ibid at 40.
[7] Hogg, supra note 4.
[8] Peter Aucoin, “Organizational Change in the Machinery of Canadian Government: From Rational Management to Brokerage Politics” (1986) 19:1 Canadian Journal of Political Science 3 at 4 [Aucoin].
[9]Jodie Sinnema, “Cabinet Appointment For Edmonton’s Sohi huge win for cities” Edmonton Journal (4 November 2015), online:
[10] “Joe Clark, Constitutional Yes Man” (23 October 1992) at 00h:03:20a, online (radio podcast):CBC Archives
[11] Douglas Quan, “Appointment of New Border Security Minister Meant to Shore Up Liberal Vulnerability- Political Observers” The National Post (18 July 2018), online:
[12] Mark Gollom, “So What Does a Deputy PM Do? It All Depends on the Boss” CBC News (21 November 2019), online:
[13]Oonah Gay, “The Office of the Deputy Prime Minister” (2 July 2013), online: UK Parliament House of Commons Library, online: < https://commonslibrary.parliament.uk/research-briefings/sn0402 3/>.
[14] Aucoin, supra note 8 at 12.
[15] Geoff Nixon, “What Powers Do Deputy PM’s Hold? And Where is Harper’s?” CTV News (4 July 2010), online:
[16]Aaron Wherry, “Room at the Top: Is Harper’s Legacy a Conservative Leadership Vacuum?” CBC News (24 January 2020), online: < https://www.cbc.ca/news/politics/stephen-harper-conservative-l eadership-1.5437504>.
[17] Lang & Schmidt, supra note 3.
[18] Elizabeth McMillan, “Allan J. MacEachen, Canadian Politician Behind Landmark Social Programs, Dead at 96” CBC (13 September 2017), online:
[20] Herb Gray, “Proceedings of the Canada-United States Law Institute Conference on Understanding Each Other Across the Largest Undefended Border in History” (2005) 21 Can-US LJ 287 at 287.
[21] “The Right Honorable Herb Gray” (last modified 20 June 2004), online:OurCommons
[22] Mario D Bellissimo, “Who is That Minister in the Courtroom” (2004) 31 IMMLR-ART 260 at 260 [Bellissimo].
[23]Emerald Bensadoun, “There is No Job Description: What Exactly Does a Deputy Prime Minister Do?”Global News (21 November 2019), online:
[24] Alissa Malkin, “Government Reorganization and the Transfer of Powers” (2008) 39 Ottawa L Rev 537 at 545.
[25] Quan, supra note 11.
[26] “The Hon Anne McLellan” (last modified 5 February 2006), online: OurCommons
[27] Bellissimo, supra note 22 at 260.
[28] Office of the Prime Minister, “Deputy Prime Minister and Minister of Intergovernmental Affairs Mandate Letter Prime Minister of Canada” (18 August 2020), online: Prime Minister Justin Trudeau PMO
[29] David Cochrane, “Freeland Replaces Morneau as Trudeau’s Finance Minister” CBC News (18 August 2020), online:
[30] Nick Taylor-Vaisey, “The Minister of Everything, Chrystia Freeland Takes On the Coronavirus” (5 March 2020), online: MacLeans
[31] Mandate Letter, supra note 28.
[32] Andy Blatchford & Rachel Browne, “Minister of Everything is Tasked With Canada’s Comeback” (25 November 2020), online: Politico
[33] “Vice President of the United States” (20 January 2021), online: Senate.gov
[34] Adam M Dodek, “Rediscovering Constitutional Law: Succession Upon the Death of the Prime Minister” (2000) 49 UNB LJ 22 at 35.