The Programme for the International Assessment of Adult Competences (PIAAC) is an intensive, longitudinal assessment of skills within the adult populations of the member states of the Organization for Economic Co-operation and Development.
The PIAAC assesses adult literacy skills on a scale from Level 1 to Level 5. Canada has conducted the PIAAC twice.
According to the OECD: “At Level 2, adults are able to access and understand information in longer texts with some distracting information. They can navigate within simple multi-page digital texts to access and identify target information from various parts of the text. They can understand by paraphrasing or making inferences, based on single or adjacent pieces of information. Adults at Level 2 can consider more than one criterion or constraint in selecting or generating a response. The texts at this level can include multiple paragraphs distributed over one long or a few short pages, including simple websites. Non-continuous texts may feature a two-dimension table or a simple flow diagram” (p. 47)
Here is an example of what adults at Level 2 – approximately half of the Canadian population – cannot do (p. 49):
The official Statistics Canada news release (December 10, 2024) emphasized Canada’s high average scores relative to other OECD nations. It did not explain what Level 2 means. It did not acknowledge that Canadian literacy rates have deteriorated slightly since 2012 (and much more since 2003). And, of course, it did not share that the federal government is now cutting funding for literacy education of immigrant parents.
The reality in Canada is that nearly half of the adult population struggles with literacy.
This reality is well-established and well-understood. It is not a surprise or a mystery. But it might be a factor in our failure to understand and resolve the endless crises that seem to define public life in this country: housing,productivity, healthcare, climate, pollution, public and post-secondary education, etc. Maybe someone should look into that.
What does literacy have to do with constitutional law?
In Ontario (AG) v. Restoule, 2024 SCC 27, the Court confirmed that the standard of review of correctness applies to the interpretation of treaty rights.
Citing Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, the Court explained that the interpretation of contracts had historically been treated as a question of law subject to appellate review on correctness because of “frequent civil jury trials and widespread illiteracy…only the judge could be assured to be literate and therefore capable of reading the contract” (Sattva ¶43). Apparently, English jurors could not be trusted to understand written agreements, but “Today, that reasoning no longer applies” (Restoule ¶101, Sattva ¶44).
Quoth Tim Robinson (and John Cena):
We surely have proportionately fewer civil jury trials today in Canada. And we have no reason to doubt that judges can read English or French, as required.
But we do still have widespread and profound challenges with adult literacy.
The Court did not rely on factual findings about literacy rates or take judicial notice of those challenges in 2014 (Sattva) or 2024 (Restoule). Instead, the supremely literate Justices focused on appellate case law (Sattva ¶¶46-49) and made the interpretation of contracts a question of mixed fact and law subject to review for palpable and overriding error (with exceptions for constitutional issues and certain other questions of law).
The Court could have taken notice of our pervasive adult literacy problem, although PIAAC test results are perhaps too complex to be “capable of immediate…demonstration” or maybe Statistics Canada fails the exacting standard of “indisputable accuracy” (R. v. Find, 2001 SCC 32, ¶48).
The stigma associated with adult illiteracy might be a more serious hurdle to judicial notice. Low adult literacy rates are rarely “the subject of debate of debate among reasonable people” not because they are “notorious or generally accepted” (R. v. Find ¶48), but rather because “reasonable people” are not comfortable discussing the issue for fear of embarrassing themselves or shaming others. As a result, too few Canadians are aware of this basic truth about our society.
There is perhaps an even more fundamental obstacle to the Court (and many others) acknowledging our low adult literacy levels: it would raise vexing questions of legitimacy, not only of particular doctrines but possibly of our entire legal and constitutional order.
Lawyers and judges may struggle to accept that half of the adult population struggles with literacy because that fact would present serious challenges to the orthodox account of how our legal system works.
To stay with contract law, what would it mean to tease “the parties’ reasonable expectations” from the text of the Coinbase User Agreement if at least 49% of adults cannot read or understand documents of that length and complexity? What “background facts…reasonably ought to have been within the knowledge of both parties” to a contract (Corner Brook (City) v. Bailey, 2021 SCC 29, ¶20) if one of every two parties struggles to retain information from documents that are more than “a few short pages” long (OECD, p. 47)? At what point does a supposedly contextual approach become prescriptive and potentially unfair?
How can hyper-literate judges incorporate the reality of unevenly distributed literacy skills into their models of an increasingly complex Canadian society without succumbing to a deep paternalism incompatible with our explicit commitments to individual dignity, self-determination, and democracy? As Dickson J. wrote in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295: “The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self‑government” (¶122).
The Court has demonstrated an enduring preoccupation with the legitimacy of the Constitution and its own institutional role within the constitutional order.
Examples of this preoccupation abound:
- the purpose of a written Constitution in the Charter era
- “A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties” (Hunter v. Southam, [1984] 2 S.C.R. 145, p. 155)
- structural elements of the Constitution
- “in Canadian constitutional law, the real and substantial connection test has given expression to the constitutionally imposed territorial limits that underlie the requirement of legitimacy in the exercise of the state’s power of adjudication” (Club Resorts Ltd. v. Van Breda, 2012 SCC 17, ¶32)
- deference to legislative decisions embodied by the default standard of review of reasonableness, which is driven by constitutional principles such as parliamentary sovereignty and democracy (Canada v. Vavilov, 2019 SCC 65, ¶¶24, 26, 30; Auer v. Auer, 2024 SCC 36 ¶¶24, 29, 33-40; TransAlta Generation Partnership v. Alberta, 2024 SCC 37, ¶¶17, 43)
- deference to legislative decisions embodied by the modern approach to statutory interpretation, which includes respecting both the purpose of the statute and the means chosen by the legislature to achieve its objectives (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, ¶¶24, 70-73)
- the open court principle, which “is a pillar of our free and democratic society” and which is directed to “maintaining the legitimacy of the justice system” because it “helps to maintain and enhance public confidence in, and serves “in a way as a guarantee of”, the integrity of the justice system, including all of its participants” (Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21, ¶30, citing C.B.C. v. Canada, at para. 28)
- somewhat more speculatively, compliance with constitutional imperatives
- limited government immunity promotes democracy and good governance (Canada (AG) v. Power, 2024 SCC 26, ¶¶89, 115) and keeps courts and legislatures within their respective fundamental roles (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, ¶177)
- the newly recognized “constitutional imperative in s. 8 itself, which, expressed negatively, protects against an unreasonable search and seizure or, expressed positively, safeguards only a reasonable expectation of privacy” (R. v. Campbell, 2024 SCC 42, ¶38, citing back to Hunter v. Southam, p. 159)
Concurring in Endean v. British Columbia, 2016 SCC 42, Wagner J (as he then was) wrote about how open courts “serve our society’s democratic ideals, one of which being the public’s ‘right to know the law and to understand its application’… “In fact, through courts and discussions about their processes, ‘private persons come together to form a public’” (¶¶83, 91).
With respect, that formula is not a fact.
The fact is that nearly half of adult Canadians cannot parse a review of an online training course (see above), let alone a judgment from the Supreme Court of Canada. The average Canadian adult PIAAC score (271) corresponds with being able to navigate to the FAQ page of a simple website and extract one piece of information:
(OECD, p. 49)
In comparison, the Court’s preoccupation with institutional legitimacy seems arcane, borderline occult. Of course, this website’s preoccupation with the Court’s preoccupation appears even more strange.
When the Court writes about legitimacy – when the Court writes about anything, really – it addresses lawyers and other judges: initiates who accept and perpetuate its legitimacy (and who almost certainly possess above-average literacy skills).
What about everyone else? Maybe that’s what the robes and all the ceremony are for.
Yet again, what are we even doing here? Building castles in the air? Daydreaming?
Low adult literacy rates present real problems for procedural and participatory accounts of constitutional legitimacy. Theories that require substantive consensus for legitimacy often beg the procedural question (how exactly are we supposed to reach consensus?) and risk open conflict in complex and divided societies like Canada.
The Court’s intricate, insular approach to legitimacy relies upon and reinforces a sharp distinction between expert lawyers (who elaborate it) and laypersons (who accept it). Of course, that equilibrium is alwayscontested and fluctuating, in part because it exists in tension with the Court’s expressed commitment to individual dignity, democracy, and self-determination (see Big M Drug Mart Ltd., above).
An increasingly polarized distribution of literacy skills could destabilize that system further by undermining the combination of trust and inattention upon which it depends. A less literate Canada will require different theories and practices of legitimacy from all our public institutions. Given the worrisome PIAAC data (and the OHRC Right to Read Inquiry Report and the poor results from other provinces), we should probably get started now.
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