[Editor’s Note: In this installment of I•CONnect’s Book Review Series, John Otrompke reviews Arthur Peltomaa’s book on Understanding Unconstitutionality: How a Country Lost Its Way (Teja Press, 2018).
–John Otrompke, J.D.
In 1985, the Supreme Court of Canada declared that all of the laws of Manitoba enacted in the last 95 years had been unconstitutional, because they had not been translated into French. Even the seemingly-apparent remedy of simply translating all the laws and regulations might be sufficient, because even the laws governing the election of legislators were unconstitutional. In a case called Re Manitoba Language Rights, the Supreme Court suspended its declaration of unconstitutionality under s. 52(1) of the nation’s constitution (which had only recently been enacted in 1982), giving time for the Manitoba legislature to comply with its duty.[1]
This led to a trend in Canadian constitutional law that motivated author Arthur Peltomaa to pen an impassioned argument against the case and its progeny. “Understanding Unconstitutionality: How a Country Lost Its Way” is a thorough and mostly well-written analysis of suspended declarations of unconstitutionality.
An Impassioned Polemic Rich in Surprises
However, the book contains two startling surprises. At first, the author, a Toronto attorney, makes skillful and appealing arguments against the injustices that result when courts use judge-made rules, like res judicata, collateral estoppel, and severability, to refuse consider constitutional arguments. (In the US we might add abstention, as-applied relief, the rational basis doctrine, and standing, among too many other examples).
To this list Peltomaa adds the suspended declaration of invalidity. He gives as examples criminal prosecutions and tax cases which the courts admitted were unconstitutional, but which were allowed to proceed anyway. (Manitoba Language Rights has been cited more than 300 times).
Peltomaa crafts a textual protest: the supremacy clause of the Canadian constitution means what it says, he tells us: unconstitutional laws are of no force or effect, and the courts are without power to say otherwise. In fact, the author explains, such laws are unconstitutional ab initio; section 52(1) confers no remedial power on the Canadian Supreme Court to prop such laws up until an emergency is revolved (or, to paraphrase the pamphlet’s evocative language, to “breathe life” into a moribund, or zombie law).
The first unsettling surprise of the book came when one realizes that these arguments, libertarian though they seem, being based on textualism, smack heavily of what we in the U.S. would call “originialism.”[2]
Canadian Originalism and the Right to a Remedy
What we are seeing in this book is the other side of the textualism we’re used to witnessing from the US, the rights-protective side of textualism. Almost never does Peltomaa complain about freedoms that are enjoyed because of living constitutionalism; for example, he describes a subsequent case from the Canadian Supreme Court, Nova Scotia (Attorney General) v Phillips, 1986 CanLII 3941 (NSSC).
In that case, it seems, a law that provided welfare benefits to single mothers, but not to single fathers, ran afoul of the guarantee of equality in the Canadian constitution, and the Nova Scotia Supreme Court decided to declare the entire law unconstitutional. (In a subsequent case, the Supreme Court referred to the outcome as “equity with a vengeance”).
Peltomaa criticizes the Phillips case on the ground that nothing in the Charter forbids extending welfare benefits to an individual. He reveals what seems to him the proper remedy some pages later: section 24(1) of the Charter “provided the necessary foundation for applications by aggrieved persons for appropriate and just remedies[.]” That section grants vast power, Peltomaa says; the provincial Supreme Court should have permitted the law in that case to remain in effect, and allowed aggrieved single fathers to “pursue a damage award on a class action basis.”
Nowhere in the book does Peltomaa criticize notions of gay and lesbian freedom and equality, or the right to choose abortion, to give two examples of originalist opinion in the US; however, he does opine that the Manitoba Language Rights case “began a judicial odyssey with bountiful possibilities for the discovery and creation of new constitutional rights and obligations.”
Regarding the new rights that were discovered or created, what were they? Peltomaa doesn’t tell us. Are there important new rights that were created as a result of the case that we should know about?
How to Address the Constitutional Crisis in Manitoba
Peltomaa rejects the suspended declaration of unconstitutionality in toto, notwithstanding any putative danger to the very rule of law in Manitoba. What then is his proposed solution to the constitutional crisis recognized by the High Court in 1985?
While the doctrine of state necessity is well-recognized in common law jurisdictions, it is usually confined to action by the legislature or executive branches, not the judiciary, which is insulated from political accountability to the electorate.
And there lies the second shocker of the book: s. 33 of the Canadian constitution permits a legislative override of the Charter for up to five years, with extension possible. But if Canada has no rights protections that cannot legally be stripped with a mere majority vote, how rights-protective is that?
What is my solution to the crisis in Manitoba Language Rights? To me, it sounds like a remarkably unique opportunity for the people of Manitoba to fix the dead hand problem in constitutional law once and for all.[3]
Suggested Citation: John Otrompke, Review of Arthur Peltomaa’s “Understanding Unconstitutionality: How a Country Lost Its Way”, Int’l J. Const. L. Blog, Oct. 13, 2019, at: http://www.iconnectblog.com/2019/10/book-review:-john-otrompke-on-arthur-peltomaa’s-“understanding-unconstitutionality:-how-a-country-lost-its-way”
[1] [1985] 1 SCR 721. The court initially set a hearing date for 120 days after the suspended judgment, but was still extending the grace period as of 1992.https://www.canlii.org/en/ca/scc/doc/1985/1985canlii33/1985canlii33.html
[2] Nowhere in the book does Peltomaa use the word “originalism,” but a website the author is associated with contains several references to the concept. http://www.ruleoflaw.ca/unearthing-canadian-originalism-reflections-on-my-conversation-with-justice-stratas/#comment-11624 . An analysis of Canadian originalism would be insightful for two reasons: first, because the current Charter is less than 40 years old, it might lack some of the mystical allure of the United States version; but secondly, and at the same time, its recent historical vintage might make textual analysis easier and more reliable.
[3] See “The Significance of Lysander Spooner,” Randy Barnett (Jan. 2016). https://oll.libertyfund.org/pages/lm-spooner. See also https://nationalaffairs.com/publications/detail/originalism-and-the-rule-of-the-dead
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