The Alberta Sovereignty Act and Democratic Institutions: Interview with Feo Snagovsky

Prof Feo Snagovsky (Political Science, University of Alberta) talks to Richard Mailey about the constitutionality of the Alberta Sovereignty Act, how citizens can best express their concerns about it, and why we should still care about our democratic institutions.

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 the Election 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 receive Charter 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 the Oakes test’s minimal impairment stage “the rubber of Bill 254 hits the slippery road of justification, causing the … 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 the Election 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 .

[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 <>.

Can the Government Prohibit the Spread of Falsehoods in an Election?

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:

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] the mens 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 the Charter 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 limit Charter 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 .

[3] Canada Elections Act, SC 2000, c 9, s 91(1) as it appeared on 20 January 2021 .

[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 .

[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 <>.

Responsible Government

Responsible government means a government that is accountable to the people.

A key characteristic of Canada’s Constitution is the separation of powers into three different branches: the executive, legislative, and judicial branches.[1] However, this separation is not watertight, and one important practice that Canada inherited from the United Kingdom is the overlap of executive and legislative power.[2] This is known as responsible government, where the executive is drawn from and requires the support of the people’s representatives in the House of Commons — the elected chamber of Canada’s federal legislature.

The prime minister is “the leader of the party that commands a majority in the House of Commons.”[3] In order to retain office and govern, the prime minister and his/her cabinet must maintain the support, or the confidence, of least half of the elected members of the Commons (themselves included) plus one more.[4] Thus, the executive is accountable to the legislative branch and, by derivation, to the Canadian people.[5] Similarly, “[i]n each province, the equivalent of the [p]rime [m]inister is the [p]remier, who is the leader of the party that commands a majority of the elected Legislative Assembly.”[6]

A selection of unwritten rules — known as “constitutional conventions” — dictate the operation of responsible government. As Hogg notes:

Responsible government is probably the most important non-federal characteristic of the Canadian Constitution. Yet the rules which govern it are almost entirely “conventional”, that is to say, they are not to be found in the ordinary legal sources of statute or decided cases.[7]

In particular, four constitutional conventions are especially important to the operation of responsible government in Canada:[8]

[1] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed (North York: University of Toronto Press, 2012) at 38 [Malcomson].

[2] Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) (loose-leaf updated 2021, release 1), ch 9.1-9.2 [Hogg].

[3] Hogg, supra note 2, ch 9.1.

[4] Malcomson, supra note 1 at 40.

[5] Ibid.

[6] Hogg, supra note 2, ch 9.1.

[7] Ibid, ch 9.3.

[8] Malcomson, supra note 1.

[9] Hogg, supra note 2, ch 9.3.

[10] Ibid, ch 9.1.

[11] Malcomson, supra note 1 at 99.

[12] Hogg, supra note 2, ch 9.1.

[13] Malcomson, supra note 1 at 100-103.

[14] Hogg, supra note 2, ch 9.4.

[15] Malcomson, supra note 1 at 40.

[16] Hogg, supra note 2, ch 9.7.

[17] Ibid, ch 9.7.

[18] Malcomson, supra note 1 at 41.

[19] Hogg, supra note 2, ch 9.1.

[20] Ibid, ch 9.1.

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 the Charlottetown 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.

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: <> [Lang & Schmidt].

[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: <> [Quan].

[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: <>.

[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: <>.

[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: <>.

[19]“The Right Hon. Joseph Jacques Jean Chretien, PC, QC, CC, OM, MP” (last modified 12 November 2003), online: Library of Parliament  <>.

[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 <> [Mandate Letter].

[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 <; Andy Blatchford & Rachel Browne, “Minister of Everything is Tasked With Canada’s Comeback”, Politico (25 November 2020), online: <>.

[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: <>.

[34] Adam M Dodek, “Rediscovering Constitutional Law: Succession Upon the Death of the Prime Minister” (2000) 49 UNB LJ 22 at 35.

Majority, Concurring, and Dissenting Decisions

Courts of appeal and the Supreme Court of Canada have multiple judges deciding together on the same case. Sometimes there can be more than one decision included in the case. When all the judges on a court agree, only one decision is delivered. If there is disagreement by the judges on what the outcome of the case should be, there will be two or more decisions: a majority decision, and dissenting and/or concurring decisions. (more…)

They’ve Got No Strings: Separation of Powers, Judicial Independence, and the Rule of Law in the Meng Wanzhou Case

The official stance of the Chinese Embassy in Canada is that the “Meng Wanzhou case is by no means an ordinary judicial case, but a serious political incident.”[1] In 2018, Canadian authorities arrested Meng Wanzhou, a well-known Chinese citizen, in accordance with an extradition treaty with the United States.[2] The Chinese government demanded that Canada release Meng immediately, ignoring the binding nature of Canada’s extradition treaty, and the very nature of the rule of law in our democratic system.[3] Ten days after Meng Wanzhou’s arrest, China arrested and detained two Canadians in what appeared to be a retaliatory measure.[4] (more…)

Alberta’s Bill 10: The Return of the King(s)?

Shocking headlines such as, “Ministers as Kings – Alberta’s Bill 10 a dangerous overreach”[1], and “Alberta’s Bill 10 is an affront to the rule of law”[2], raise concerns about the contents of Bill 10: Public Health (Emergency Powers) Amendment Act, 2020 (Bill 10). News sources claim that Bill 10 gives individual ministers the power to mandate that Albertans install tracking devices on their cellphones or be vaccinated for COVID-19 without the approval of the Legislative Assembly.[3] Should you be worried? This article highlights the key concerns with the passage and the contents of Bill 10. (more…)

Living Tree Doctrine

The “living tree” doctrine refers to a method of constitutional interpretation that allows for Canada’s Constitution to change and evolve over time while still acknowledging its original intentions.[1] The doctrine achieves a balance between two seemingly contradictory goals: predictability and flexibility. To be effective, the Constitution must consist of a predictable set of rules. That way, Canadians know how their activities are governed, and Canada and the provinces can be governed in a consistent manner. On the other hand, flexible interpretation accommodates the realities of changing modern life. If the Constitution could not be interpreted this way, it would be frozen in time and become more obsolete than useful.[2]

Two Canadian cases illustrate the balance between the constitutional predictability and flexibility that embody the living tree principle. Edwards v Canada,[3] a cornerstone in constitutional interpretation, introduced the living tree metaphor and the courts’ need to interpret the Constitution more broadly. Otherwise known as the “Persons Case,” Edwards was a 1929 decision by Canada’s highest court at the time, the Judicial Committee of the Privy Council (JCPC) in Britain. After analyzing the Constitution’s use of the term “persons,” which had always referred to men, the JCPC decided that both men and women were now “persons” and therefore eligible to sit in the Canadian senate.[4] According to Justice Sankey, while constitutional stability and integrity is of the utmost importance, the Constitution “also planted in Canada a living tree capable of growth and expansion within its natural limits."[5] Women may not have been able to vote or hold office in 1867, but times had changed and so had constitutional interpretation. The decision helped women gain a measure of equality to men in the political arena.

More recently, cases like Reference Re Same-Sex Marriage updated the living tree concept. This 2004 case questioned the constitutional validity of same-sex marriage. Building on Justice Sankey’s “living tree” metaphor, Chief Justice McLachlin introduced another metaphor, stating that the “ ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation, that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”[6] By allowing the term “marriage” to adapt or grow with contemporary times, its meaning within legislation became modernized and subsequently included unions of same-sex couples.[7]

Allowing the Constitution to evolve is not a simple task. Doing so takes time and considerable thought, and the courts make changes only after much deliberation. Sections of the Constitution that are questioned or challenged must be examined within the context of contemporary society to ensure that they adapt to change but still maintain the “framers’ intent,” or what the Constitution’s authors were trying to achieve.[8] Therefore, contemporary interpreters must focus on what the originators intended it to accomplish rather than what the text actually states before allowing the Constitution to evolve or remain unchanged.[9]

[1]Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 36.8(a)

[2]Ibid; Reference Re Same Sex Marriage, 2004 SCC 79 (CanLII) .

[3]Edwards v Canada (Attorney General) [1930] AC 124 at 124, 1929 UKPC 86 .



[6]Same-Sexsupra note 2 at para 22.


[8]William Beal, Cardinal Rules of Constitutional Interpretation (Buffalo, US: William S Hein & Co, Inc, 2000) at 257.


Judicial Review

In Canada, as well as in many other constitutional democracies, there are two types of ‘judicial review’ – judicial review on administrative acts, and judicial review on the constitutionality of legislation. Both types of ‘judicial review’ are based on the idea of the rule of law. This idea means that not only citizens, but also governments’ officials, are subject to the law. If these officials do something that the law does not allow them to do, the courts are allowed to nullify their actions.

The first type of ‘judicial review’ involves the actions of the executive branch of government. In the modern state it is impossible for the legislature to address every administrative decision (such as the decision to issue or to refuse to issue a business license), therefore, many statutes endow various governmental authorities with administrative powers. If a person believes that a certain governmental authority has exercised its power in an arbitrary, discriminatory, or otherwise unreasonable way, she can file a suit in a court of law and ask for ‘judicial review’, that is, to ask that the court review the administrative decision. If the court finds in favour of the plaintiff, it can annul the administrative decision.

The other type of ‘judicial review’ does not involve the actions of the executive branch, but rather the actions of the legislative branch. S. 52 of the Constitution Act, 1982 provides that “the Constitution of Canada is the supreme law of Canada”. S. 24 of the same Act guarantees the right for individuals to challenge legislation which does not conform with the Constitution thereby giving Canadian courts the power to engage in ‘judicial review’ on the constitutionality of legislation. The purpose of this type of ‘judicial review’, also referred to as “constitutional review”, is to ensure that legislation conforms to the Constitution of Canada. The Constitution regulates two different areas – the division of powers between the federal and provincial government, and the rights guaranteed to every Canadian against both levels of government. Consequently, there are two ways in which an act of a legislature or of Parliament might be unconstitutional. First, when the act is enacted by a provincial government while the relevant subject matter of the act is under Federal jurisdiction (or vice versa) (see division of powers). Second, when this act violates the Charter of Rights and Freedoms.

When a court strikes down legislation on division of powers grounds, it does not mean that the content of law itself violates the constitution. Rather, it means that the institution which enacted the law (a provincial legislature or Parliament) violated the Constitution. Consequently, if there is a strong public interest in enacting this legislation, the appropriate institution can enact this act. Conversely, when a court strikes down legislation on Charter grounds, it means that the content of the law violates the Constitution, and no legislature could properly enact this law. For this reason, ‘judicial review’ on Charter issues is often criticized as illegitimate since it gives to the judiciary the power to block important legislative initiatives.

The obvious response to this criticism is that when the courts nullify legislation that violates the Constitution, it enforces this document, not the judicial will. An objection to this response is that the language of theCharter is very open-textured, and refers to abstract concepts such as “freedom of expression”. People could reasonably disagree about the meaning of such concepts, and therefore courts would not really enforce “the Charter”. Rather, they impose their own subjective reading of the ambiguous language of theCharter. Since judges are not democratically elected, and cannot be replaced in office by the public will, their own view of the Charter of Rights and Freedoms has no legitimacy.

The question pertaining to the legitimacy of constitutional review is poignant for every constitutional democracy and is not unique to Canada. It has been the subject of a vast body of literature in the past century. The two most common responses to this question are as follows. First, precisely because the Constitution’s language is ambiguous, it needs interpretation by an authoritative institution. For the reason that part of the purpose of the Charter, indeed of the entire Constitution, is to protect minority groups and individuals, it should not be enforced and interpreted by majoritarian institutions such as the legislature. Judges are not elected and are not accountable, and therefore they are best capable of interpreting the constitution in a way that will protect minorities.

Second, while courts have the power to strike down legislation based on their reading of the constitution, in reality judicial decisions are not final, and legislatures have their ways to respond to a judicial decision with which they do not agree. The constitutional mechanisms for such legislative action are judicial appointments, constitutional amendments, and in Canada, the use of thenotwithstanding clause.