On debates about the Supreme Court, ‘consistent’ constitutional interpretation, and the notwithstanding clause by Emmett Macfarlane, May 05, 2026, Defending Canadian Democracy
Michael Plaxton has an excellent new post on the apparent whiplash-like oscillations in the Supreme Court of Canada when it comes to describing and applying an approach to constitutional interpretation. The Court will triple-down on the progressive “living tree” approach — still regarded by many as the dominant judicial approach to the constitution in the Charter era — but then release a judgment that takes a much narrower, textualist understanding, as it did (to unanimous agreement) in the recent Alford case.
In addressing this, Plaxton weighs in on a debate sparked by Leonid Sirota’s own post on the topic. Sirota as much as anyone laments the seemingly contradictory, incoherent pattern the Court has taken to its own interpretative prisms in recent years, but he also sharply rebukes those critics who call for judges’ proverbial heads over the matter. Plaxton similarly rejects the notion that we should be removing judges for alleged “incompetence” (in this context, inconsistency) or, for that matter, for simply for rendering decisions we don’t happen to like. Indeed, it’s a ludicrous, ignorant suggestion, tearing apart judicial independence and the rule of law, all ultimately to serve ugly ideological ends.
And it is on this point that I wanted to offer some thoughts as someone interested in these issues but who comes at them from a different disciplinary perspective. Because Plaxton connects the critiques, which in their harshest form suggest “that ‘the Supreme Court is an abject failure as a Court, unconcerned with constitutional methodology or precedent or even the illusion of coherence’,” to the debate over the notwithstanding clause. He asks how anyone could hold the former view (or even a softer version of it) but also reject a solution that might include use strong instruments like the notwithstanding clause (a mechanism which critics of the Court like Sirota and Andrew Coyne also oppose).
First, I wanted to suggest the apparent inconsistency of the Court is nowhere near as dramatic as everyone claims. I’m not sure there ever was a golden age of consistency in the principles of constitutional or statutory interpretation, but if there ever was, it certainly wasn’t anytime in the Charter era. Even within the bounds of a single decision, including the Court’s most famous (the Quebec Secession Reference) the Court can be read as deeply inconsistent, if not outright contradictory. In that unanimous opinion, I remind you, the Court simultaneously extols the virtues of the “primacy” of the written text (at para. 53) literally two paragraphs after describing unwritten principles – untethered, abstract concepts – as the “lifeblood” of the structures of the constitution, and then using them to invent a new constitutional rule despite that rule not even reasonably being implied by the text of the amending formula. That was nearly 30 years ago. I would submit that little has changed, other than the ‘interpretative’ debates are a little more prominent given that the Court has a few justices, like Malcolm Rowe, who, admirably in my view, are trying to be a little more conscious of this stuff than certain Courts of the past.
But we shouldn’t pretend the Court has ever been, or could ever be, pristinely consistent in its approach to interpretation in the sense certain legal theorists (who are perhaps doggedly strict about constitutional theory but who have never had to put theory into practice) might want them to be. For one thing, there is no approach that can’t be twisted or cherry-picked to eliminate the discretion at the heart of hard cases anyway. For another, more important reason, it’s simply not unreasonable that a focus on the text might predominate in some instances and be subject to broader contextual or values-based readings in another, if only because in some provisions the text is broad and ambiguous and it others it is clear and specific, a point on which I shall return.
Plaxton and Sirota are among the very last people that need me, a self-educated political scientist on this subject matter, to lecture them on this point. But in my respectful view, the fact is the Court has tended to take a progressivist living tree approach to some Charter rights, is frustratingly tied to ancient and dubious precedent in federalism cases (hi Comeau!), while engaging in a frozen rights, caricature-of-originalism approach in Aboriginal rights cases. This has been the case since 1982. More broadly, as Hoi Kong has pointed out, the Court is often, and has always (to varying extents) engaged in an ‘eclectic’ approach to constitutional interpretation. And I’d say out of necessity. An overriding pragmatism is necessary in the confines of a large and growing body of complicated, and sometimes confused, precedent.
Second, I want to suggest that these two debates — the question of the Court’s interpretative consistency as a matter of ‘approach’ or theory, and use of the notwithstanding clause — don’t actually relate to each other. Neither the champions of the notwithstanding clause, and certainly not the governments using it, give a fig about constitutional theory.
They support or use the notwithstanding clause because they either don’t like the outcome courts reach or they know it’s the only way the shield their blatantly unconstitutional laws.
When you think about the types of laws that have been preserved by s. 33 since 2017, most are irrelevant to any debate about a ‘proper approach’ to the Charter because they are protecting laws that would be found unconstitutional regardless of any reasonable approach applied. From Quebec’s Bill 21 or Bill 96, to Alberta’s vicious anti-trans legislation, these are laws that no country calling itself a liberal democracy would permit to stand, at least not under a judicially-enforceable bill of rights worth the paper it was written on. And indeed, in those few recent uses of s.33 that have genuinely reflected, on substantive grounds, ‘reasonable disagreements’ with the courts (like Saskatchewan using it to protect school choice), had the government simply waited for an appellate decision to correct a dubious trial court decision, s. 33 wasn’t needed in the first place.
Finally, I want to push back against the over-the-top rhetoric generally animating this debate. Contrary to what the National Post opinion pages or the recent surge in anti-judicial writings at the Macdonald-Laurier Institute will tell you, the courts are not out of control, they’re not twisting the law, and the Supreme Court is not about to rewrite the notwithstanding clause (just because a government factum makes some silly arguments doesn’t mean we’re in a genuine legitimacy crisis, guys).
There is a troubling ideological movement against the judiciary that is mostly – as Sirota only alludes to – a furtherance of contemporary right-wing populism. No longer rooted in a robust defense of representative democracy, and unable to make with a straight face the claim that our elected legislatures are ‘better’ defenders of Charter rights, we are instead witnessing an ugly attempt to whip up a panic about the courts in the pursuit of an ideological agenda against ‘wokism’ or moral panics about MAID or ‘gender ideology’ or take your pick.
While we need to avoid conflating this movement with the more principled-based critiques of the Court’s intellectual inconsistency as exemplified by smart people like Sirota and Plaxton, but even with the latter we should be wary of claims that such inconsistency is evidence of a Court that is ‘broken’ or that the judges on it are not up to snuff. That is indeed over-the-top, and simply not credible.
Indeed, some of these inconsistencies are likely less about individual judges contradicting themselves as they are about the consensual style of drafting on the Court. In my interviews with justices of the Court for my first book (Governing from the Bench), it was made clear to me that judges will take pains to write a separate concurrence (where they agree on an outcome but for substantially different reasons) only out of necessity, not to quibble or for the joy of writing. It’s entirely possible that the judges see some of these judgments not as incoherent but as still operating within the dominant paradigm of living tree constitutionalism even in cases where the text as starting point operates as a clear guide to evaluating constitutional purpose. Alford might be a perfect example. It should surprise no one that with section 18 as the main object of scrutiny, involving a rather clear and specific provision setting out Parliament’s authority to define privileges, might not prompt the Court to preamble explicitly about living tree constitutionalism to get to the point.
None of this is to reject critiques of the Court’s decision-making. I engage in such critiques myself all the time. But perhaps I’m more sanguine about all this because, as a political scientist, I see judging as inescapably political, and constitutional theory as being, well, nice in theory, but implausible-to-impossible in practice, or maybe even unworkable given the realities and asymmetries in what the text, what the incomplete and history, what the messy context, and what other animating principles and values undergirding the entire project of constitutionalism involve. This doesn’t mean a judicial free-for-all or unbounded discretion. The law and precedent continue to constrain, and so long as the judges on our courts avoid becoming ideologues, and remain people of good faith and good effort to speak to the body of law we have, then we’ll be okay. And I honestly believe few people, outside of bad faith ideologues, can look at the Court’s record — recent or otherwise — and convince me we aren’t better off for it, and the Charter, overall.