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Conference Report–Second Beetz-Laskin Conference on Canadian Constitutional Law

Noura Karazivan (Université de Montréal), Jean Leclair (Université de Montréal), and Patrick Macklem (University of Toronto)

On May 19, 2017, the Université de Montréal hosted the Second Beetz-Laskin Conference on Canadian Constitutional Law, organized by the Faculties of Law of Université de Montréal and University of Toronto. Named in honor of Jean Beetz and Bora Laskin, two distinguished Justices of the Supreme Court of Canada during the 1970s and 1980s, the Conference was co-convened by Noura Karazivan (Université de Montréal), Jean Leclair (Université de Montréal), and Patrick Macklem (University of Toronto). The Conference featured four panels and a keynote opening address by Ian Binnie, former Justice of the Supreme Court of Canada. This Report provides a brief summary of the papers presented, which will be published in a special issue of the Revue Juridique Thémis.

Former Justice of the Supreme Court of Canada, Ian Binnie delivered the opening Keynote Address, detailing the backgrounds and legal philosophies of Jean Beetz and Bora Laskin, the two former Deans of the faculties of law of Université de Montréal and University of Toronto, and former Justices at the Supreme Court of Canada. Taking us through a journey from the 1976 Anti-Inflation Reference to the 1981 Patriation Reference and other landmark cases, Binnie recalled that Laskin remained unconvinced by the “two founding nations” thesis; the Constitution, in his mind, could not be asymmetrical. On the other hand, Beetz envisaged the Constitution as not just a statute, but as a “cultural document,” “a cultural statement of what held the country together.” He was not so much an advocate of “provincial autonomy” as a strong proponent of “équilibre” (“equilibrium”). In Beetz’s view, three elements threatened this equilibrium: the federal spending power; the paramountcy doctrine; and the federal Peace, Order and Good Government power. Justice Binnie underlined that Laskin’s and Beetz’s visions eventually clashed in the 1981 Patriation Reference. However, not only did Beetz’s understanding of the Canadian federation prevail in the 1998 Secession Reference; in the words of Justice Binnie, the Court’s reasoning in that decision “out-Beetzed Justice Beetz.” Binnie concluded that, in the end, when it comes to the central question of “Who speaks for Canada?,” Laskin was “on the wrong side of history,” while Beetz’s prescient view prevailed.

The first panel was titled Between History and Myth and featured papers by Frédéric Bastien (Dawson College) and Frédéric Bérard (Université de Montréal), and commentary by Martine Valois (Université de Montréal). Bastien’s paper, entitled “Laskin, Estey et le rapatriement constitutionnel,” investigates the role of Chief Justice Bora Laskin and Justice Willard Estey at the time of the repatriation of the Canadian Constitution. It revisits the revelations made at the time of the publication of Bastien’s book, The Battle of London, in April 2013, which triggered an investigation by the Supreme Court of Canada. Drawing on archival evidence, The Battle of London revealed that Laskin and Estey were in contact with British officials at a time when the Court was preparing to render judgment on the constitutionality of repatriation. The book challenges the idea that the Supreme Court of Canada was a neutral arbiter of repatriation; at least two Justices wanted to add a Charter of Rights in the Constitution and appeared to act according to their preferences. Bastien’s paper argues that the controversy that followed the publication of The Battle of London shows that there is a price to pay when criticizing the judicial establishment.

Bérard’s paper, entitled “Les écoles passerelles: un point entre la réalité et la fiction,” focuses on the impact of constitutionally entrenched language rights on Quebec’s institutional autonomy in the realm of education. The nationalist prism is the dominant lens through which Quebec legal scholars approach the issues surrounding the Canadian Charter. This has contributed to the creation of a number of myths, which occupy the entire discursive space in the field of language rights: any factual reality which cannot fit into the pre-approved scheme of Quebec methodological nationalism is evacuated from the surrounding discourse. Contrary to initial apprehensions or subsequent criticisms of the supposed atrophy of the Quebec government’s educational powers, reality differs – sometimes greatly – from the imposed imagination.  An analysis of the relevant jurisprudence demonstrates that the Canadian Charter did not have the anticipated and announced impacts on Quebec’s institutional autonomy in this area. Without denying the effects the Charter did have on linguistic rights, the quasi-psychosis towards it appears exaggerated.

The second panel was titled Federalism, Cooperation, Amendment and featured papers by Stephen F. Ross (Penn State University), Johanne Poirer (McGill University) and Richard Albert (Boston College Law School), and commentary by Jean-François Gaudreault-DesBiens (Université de Montréal). Ross’s paper, entitled “The Petrified Forest of Canadian Federalism,” argues that if the Supreme Court of Canada is serious about its commitment to purposive interpretation and the metaphor of the “living tree”, the Court should return to its “roots,” and reconsider two key doctrines related to federalism: federal authority to regulate general trade and commerce, and provincial authority to legislate in regard to areas of potential federal conflict.  Ross proposes a new paramountcy test when provincial and federal laws potentially conflict that would limit provincial legislative authority only in the case of an express conflict with primary or secondary federal legislation, and even then only where the pith and substance of a federal decision to invoke the Paramountcy doctrine relates to a matter of federal competence.

Poirier’s presentation, entitled “Dualist vs. Cooperative Federalism in Canada: a Dithering Dance of Competing Visions,”ocuments the evolution from a dualist – “watertight compartments” – conception of Canadian federalism, to one that acknowledges an increased number of intergovernmental cooperative ventures. Based on a paper co-written with Jean-François Gaudreault-DesBiens, entitled “From Dualism to Cooperative Federalism and Back?,” her presentation first examines Canada’s fundamentally dualist federal architecture before looking at the empirical reality of cooperative federalism which frequently challenges this structural dualism. It then considers how the rise of cooperative federalism influenced the evolution of the interpretive doctrines underpinning the law of Canadian federalism. Finally, it analyses the normative strength and scope of cooperative federalism, concluding that the impact of cooperative federalism in Canadian constitutional law remains tamed by the dualist conception of federalism that still underlies the Supreme Court of Canada’s federalism case law.

Albert’s paper, entitled, “Quasi-Constitutional Amendment,” analyzes subconstitutional changes to a constitutional order that do not possess the same legal status as a constitutional amendment, that are formally susceptible to statutory repeal or revision, but that may achieve constitutional status over time as a result of their subject-matter. The impetus for a quasi-constitutional amendment, in Canada and elsewhere, is an intent to circumvent onerous rules of formal amendment in order to alter the operation of a set of existing norms in the constitution. Where constitutional actors determine, correctly or not, that the current political landscape would frustrate their plans for a constitutional amendment to entrench new policy preferences, they resort instead to subconstitutional means whose successful execution requires less or perhaps even no cross-party or inter-institutional coordination. This strategy sometimes results in significant changes that have the functional effect though not the formal result of a constitutional amendment.

The third panel, entitled Indigenous Peoples, Indigenous Property, featured papers by Richard Stacey (University of Toronto) and Christian Morey (University of Toronto) and Sari Graben (Ryerson University), and commentary by Jean Leclair (Université de Montréal). Stacey’s paper, entitled “The Privatization of Honour: How democratic accountability shapes the duty to consult Indigenous Peoples,” advances four observations about the Crown’s constitutional duty to consult Indigenous people when initiating actions that might affect their interests. The first is that reconciliation has become the driving force of the relationship between Indigenous peoples and the Crown. In this light, the challenge for the Canadian constitutional order is to reconcile Indigenous sovereignty and Crown sovereignty within the existing structures of democratic government. The second is that, in line with this understanding of reconciliation, courts have begun to see the duty to consult to require “meaningful consultation” or “meaningful engagement” between Indigenous communities and the Crown. This emphasis on engagement and consultation has led to the “proceduralisation” of Indigenous rights, in which we can find a deep commitment to the principle of democratic accountability. As South African constitutional jurisprudence on social and economic rights demonstrates, a right to engage with government before it acts provides a mechanism of ensuring that government is informed of and takes account of the interests of those most affected by its decisions. The duty of consultation thus serves the goal of reconciliation by moving the modern Canadian polity towards a position where Indigenous peoples have a meaningful voice, as sovereign nations, in governing themselves. Finally, the Crown’s duty to consult Indigenous peoples by delegating it to or relying on the consultation processes of the industry proponents of development projects will be consistent with the honour of the Crown only as long as consultation continues to allow Indigenous peoples to participate meaningfully in decisions that affect them.

Morey and Graben’s paper, entitled “Measuring the Liberalization of Indigenous Property against Controlling Market Liberalization,” advances an approach to assessing the increased liberalization of Indigenous property against the concomitant ability to control market liberalization, as practiced by Canadian governments in relation to public property. Scholars debate whether the characterization of Aboriginal rights in liberal terms is in and of itself harmful to Aboriginal societies. Taking the position that legal reforms that recognize the duality of Aboriginal rights as both proprietary and governmental are possible, the authors address what features of property Aboriginal title must have to make it work within a liberal framework, and compare it to what has been developed in the recent Supreme Court of Canada judgment, Tsilhqot’in Nation v. British Columbia and Aboriginal rights jurisprudence more generally. This paper contributes to the literature on Aboriginal title as sui generis public property by identifying positive and negative approaches to sui generis reasoning, and by expanding on how a positive formulation based on Crown use of public property could be used to provide the kinds of controls that can be used to govern liberalization.

The final panel, entitled Freedom of Religion, Laïcité and Religious Neutrality, featured papers by Luc Tremblay (Université de Montréal), Patrick Macklem (University of Toronto) and Kaelan Unrau (Univesity of Toronto), Pierre Bosset (Université du Québec à Montréal), and Howard Kislowicz (University Of New Brunswick), and commentary by Noura Karazivan (Université de Montréal). Tremblay’s paper, entitled “Le constitutionnalisme pluraliste : une esquisse,” presents the idea of “pluralist constitutionalism,” as opposed to “liberal constitutionalism.” Pluralist constitutionalism builds on the idea that a legitimate Constitution must reflect the cultural diversity and pluralism which characterize the society to which it applies.  Such a constitution should recognize and affirm the plurality of values and the diverse ways of life, conceptions of the world and cultures to which citizens identify themselves.  Pluralist constitutionalism can be contrasted with liberal constitutionalism, which builds on the fundamental principle that a constitution should express a set of universal values, representing the views or the will of a homogeneous demos, a pre-political people which holds the original right to affirm these values, and enforce them, for purposes which include ensuring society’s unity. The paper seeks to reconstruct the Supreme Court of Canada’s jurisprudence on secularism, freedom of religion and multiculturalism in the frame of pluralist constitutionalism, with an eye to comprehending the Charter of Rights as a whole in this light. Although Tremblay’s analysis does not specifically rely on section 27 of the Canadian Charter, in his view, the multiculturalism provision of the Charter embodies the basic ideals of a pluralist constitution.

Macklem and Unrau’s paper, entitled “Stations of the Cross: Religious Freedom in Canadian Constitutional Jurisprudence,” analyses the two interests that underlie the guarantee of freedom of religion in Charter jurisprudence: the freedom to exercise religious freedom and state neutrality. Taken to their respective extremes, these two interests are two trains on a conceptual collision course. The stronger the protection that the guarantee provides to the free exercise interest, the more likely the guarantee will run afoul of the neutrality interest, and vice versa. The paper explores some of the ways in which the Supreme Court of Canada has managed to avoid this conflict by disembarking at various stations prior to the point of collision. The paper maps these stations in the form of a cross, with a horizontal beam representing the two interests underlying the guarantee as two tracks commencing at each extreme, with stations nearing their collision. The vertical post above the intersection represents an alternative track where additional stations – those that correspond to interests that underlie equality – exist to avoid collision. The vertical post below the intersection also represents an alternative set of stations – ones that correspond to rights, liberty and security of the person. The paper concludes by identifying some possible sources for future tension.

Bossett’s paper, entitled “La neutralité de L’Etat en matière religieuse: comment construire un discours juridique sans devis préable,” explores the implications that the idea of state neutrality in religious matters plays the role of “secularism” or “separation of church and state” in Canada. Once they acquire a normative force, such statements of principle are in need of practical elucidation. For example, should the attitude expected of a “neutral” state on the religious level be benevolence, indifference or simply ignorance of the religious fact? To what extent should the formulation of public laws and policies be influenced by religious considerations? Is the accommodation of individual religious constraints compatible with the religious neutrality of the state? What is the role of religious heritage in a state that is religiously neutral? The paper brings to the surface the difficulties faced by the Canadian judiciary, in the absence of a common thread identifying the very purpose of this neutrality, to give coherent meaning to the idea of the state neutrality in religious affairs.

Kislowicz’s paper, entitled “The Religious Freedom of Business Corporations in Canada,” takes, as a starting point, the suggestion, made on a few occasions by members of the Supreme Court of Canada, that a business corporation could not initiate a claim on the basis of the right to religious and conscientious freedom. The Victorian Court of Appeal in Australia has come to this conclusion more directly. On the other hand, the US Supreme Court has held that, in at least some circumstances, a business corporation can be an appropriate religious freedom claimant. The argument for categorically denying a corporation’s religious freedom claims usually rests on a conception of what the corporation is: as an artificial person, a corporation simply cannot hold the requisite religious or conscientious belief to ground such a claim. This paper provides two bases upon which the business corporations’ incapacity to assert religious freedom claims in Canada might be rethought. First, it argues that attributing a religious belief to a corporation is consistent with the way that Canadian law attributes other sorts of intentional states to corporations. Though Canadian law does, in general, hold to a theory that the corporation is a legal fiction, it is a fiction that includes the capacity to intend the consequences of its actions for legal purposes. Second, it argues that the judiciary might approach religious freedom in a manner analogous to how the Court has approached other constitutional rights, such as expressive freedom. When faced with claims by corporations, this approach focuses not on the nature of a corporation but on how to best serve the purposes underlying the right. Such an approach could support allowing business corporations to make religious freedom claims, while leaving open the possibility that any infringement proven could be justified under s 1 of the Charter.

As these papers are currently being finalized for publication, please contact the authors directly for drafts-in-progress.

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Published on June 6, 2017
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