The Fault Will Be Ours

Lord Sumption on politics, law, and the meaning and decline of democracy

A couple of months ago, Jonathan Sumption, former barrister extraordinaire, recently-retired UK Supreme Court judge, and well-regarded historian too, delivered the BBC’s Reith Lectures for this year, speaking on Law and the Decline of Politics. Despite my delay in getting to them, I think they are worth writing about. Lord Sumption’s arguments challenge most if not all of us in one way or another. I expect that those used to the North American way of thinking about constitutional law will find them more uncongenial than many lawyers in the United Kingdom or in New Zealand, but Lord Sumption’s views do not neatly fit into any pre-defined category, and will have something that will force just about anyone to reflect. (I particularly recommend the lectures to any students who are about to start studying law; they are quite accessible, but will give you an excellent preview of many of the debates you will confront in the coming years, and expose you to a way of thinking that is not exactly prevalent in North American law schools.)

In a nutshell, Lord Sumption’s argument is that, as he put it in the first lecture, “Law’s Expanding Empire“,

law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate. (2-3)

The question is, how does law relate to this larger system? What is the place of law vis-à-vis politics? Should it, in particular, be used to control political outcomes and bring them into alignment with some set of substantive values? Lord Sumption wants to caution us against the dangers he says lying in wait if we go down this path. But it is not because he takes an especially optimistic view of politics. In this post, I summarize the five lectures. (It will, I am afraid, be quite long.) I will comment separately.


Lord Sumption’s misgivings appear especially strongly in his first lecture. Law, he says, is an alternative to chaos. But just how much law (and how many lawyers) do we need? Lord Sumption observes that

Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated title to property, it enforced contracts, it protected people’s lives, their persons, their liberty and their property against arbitrary injury, but that was about all. Today, law penetrates every corner of human life. (3)

It need not be that way. The Rule of Law requires limitation of government power and the protection against interference with life, liberty, and property, as well access to the courts to enforce these limits and protections, but it does not necessarily follow that law needs to be pervasive. Rather, this is something that the voters have chosen, in an ongoing fit of general optimism about the prospects of collective action. Democracy “has inevitably led to rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity”. (4)

Moreover, after a retreat over the course of the 19th and 20th centuries, “a growing moral and social absolutism … looks to law to produce conformity”. Even when there is no real consensus in the community about what how a particular moral issue ought to be treated,

we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with. (6)

It is as if moral judgment, which would have been individual in the past, has increasingly been collectivized. In a growing number of cases, moreover, this judgment has been delegated to the judiciary.

At the same time, there has been a push to take judgments about safety and security away from individuals and hand them over to public authorities, under judicial supervision. As more misfortunes appear preventable, the demands are made for them to be prevented; “we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence”. (7) Yet this is achieved only by “restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves”. (7)

The result of it all, Lord Sumption says, is the comeback of the Hobbesian Leviathan: “[t]he 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place”. (8) And unlike when government was an external, antagonistic force, democratic government “is us”. (8) We both fear and repose our fondest hopes in it.


In his second lecture, “In Praise of Politics“, Lord Sumption asks, “how do we control the potentially oppressive power of democratic majorities without undermining democracy itself?” (2) He focuses on the notion of legitimacy, which he defines as “a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing”. (2) Any government, but especially a democratic one, must preserve its legitimacy. Democracy does this by accommodating differences between majorities and minorities, and securing compromises that mean that minorities do not become “permanently disaffected groups [with] no common bonds to transcend their differences with the majority”. (2) This can be done through representative government or through law.

Representative institutions, in contrast to winner-take-all direct democracy, exist in part to accommodate the interests and demands of minorities. They make compromise possible. Building on the thought of James Madison and Edmund Burke, Lord Sumption argues that “political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors”. (3) They are also better placed to further national “collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment”. (3)

Bypassing the processes of representative government, as was done with the Brexit referendum is dangerous. Compromise becomes impossible, as

52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all. … It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence.

Lord Sumption warns, however, that disengagement from politics calls into question the ability of the political process to generate compromise and legitimacy. Political parties play an important role in securing the accommodation of various interests in policy-making, but as their membership has declined greatly, they are no longer representative of the broader citizenry, and the candidates whom they put forward are increasingly out of touch with the voters. All this “is, in the long
run, likely to lead to a far more partisan and authoritarian style of political leadership”. (5)

Law, the other barrier to oppressive majorities, has become more important as politics has lost its lustre. The politicians’ authority is waning, but the judges’ is undiminished; indeed it is growing:

Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. (5)

The judiciary is now more active than it used to be in policing the actions of other public authorities. It does so, in particular, by enforcing the principle of legality, which Lord Sumption suggests should rather be called “the principle of legitimacy”. The principle is appropriately applied to ensure that Parliament faces the consequences of measures that would amount to, notably, “retrospective legislation, oppression of individuals, obstructing access to a [c]ourt, [or] acts contrary to international law”. However, it can be taken further, and made into a barrier to Parliament acting, even advisedly, in ways the courts simply disagree with.

However much we may agree with the outcomes in particular cases, we should be wary of this empowerment of politically unaccountable institutions. It is not the courts’ function to generate compromise, and therefore legitimacy. The law’s strengths are also its weaknesses:

Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace. (7)


Lord Sumption’s third lecture, “Human Rights and Wrongs” focuses on what he describes as “an unfriendly meeting” (1) between law and politics. The idea of fundamental rights is not new; in earlier times it was expressed through the concept of natural rights. The trouble with it, however, is that

[t]o say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion. (2)

Indeed, “[r]ights … are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice”. (2) How is the choice to be made, how are the differences of opinion to be settled? Appealing to democracy is a problem since the point of rights is to protect people from what democratic majorities might do to them. But what else is there? Neither religion nor ideology work in a democratic society.

Still, there is wide agreement that there are some truly fundamental rights: those having to do with due process of law (though Lord Sumption does not use this label), and democratic rights, such as “freedom of thought and expression, assembly and association, and the right to participate in fair and regular elections”. (3)

Legislators can create further rights, including by subscribing to rights-creating treaties. But what Lord Sumption describes as “dynamic treaties”, such as the European Convention Human Rights (ECHR), as it has been interpreted by the European Court of Human Rights (the Strasbourg Court), whose content keeps being developed by supranational institutions after their implementation in law “escape[] parliamentary control”. (3) As Lord Sumption describes the Strasbourg Court’s jurisprudence, it “develops [the ECHR] by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have”. (3) This goes beyond “applying an abstract statement of principle to concrete facts” that weren’t originally anticipated, or giving effect to “concepts … such as the notion of inhuman or degrading treatment [that] plainly do evolve over the time with changes in our collective values”. (4) Such developments are “a form of non-consensual legislation”. (4)

Good or bad, this judicial legislation is controversial; in any case, law should not be made judges, disempowering citizens. In particular, questions about the limitation of rights, the purposes for which it can be undertaken, and the degree to which it is necessary, “are all intensely political … . Yet, the [ECHR] reclassifies them as questions of law”, (6) to be settled by the courts rather than the political process.

We can think of democracy, Lord Sumption says, either as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” or as “a system of values”, (7) of substantive requirements that a political system must fulfill. A political system that is democratic in one sense is not necessarily democratic in the other. Lord Sumption worries that “[d]emocracy, in its traditional sense” (that is, the first one) “is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter”. (7) And he worries that many lawyers are tempted to attribute such urgency to liberal values. For his part, he rejects this view, which he finds

conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. (7)


Lord Sumption’s fourth lecture, “Rights and the Ideal Constitution” takes on a constitutional system that has implemented a number of substantive, values-based constraints on democratic decision-making: that of the United States. Lord Sumption is skeptical of what he calls the “legal model” of the state, since “in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones”. (2) To be sure, the “legal model” promises constraint “based on a body of principle applied by judges” (3) immune from the sort of pressures and incentives to which politicians are subject. This model is based on mistrust of “elective institutions” and their ability “to form opinions about [rights] with the necessary restraint, intelligence or moral sensibility”. (3)

Against that, Lord Sumption argues, we need to count the value of legitimacy: “‘We, the people,’ is the emotional foundation of democracy in
Britain as well as in the United States”. Democratic decision-making is also egalitarian. A constitution that enforces a set of substantive values, be they those of “liberalism, human rights, Islamic political theology or the
dictatorship of the proletariat” (4) is neither egalitarian nor legitimate in the eyes of those who do not share these values. It is, therefore, not the right kind of constitution: “the proper function of a constitution is to determine how we participate in the decision-making processes of the state and not to determine what the outcome should be”. (4) Instead of looking for “the right answers to … moral dilemmas”, a polity should content itself with “a political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions”. (4)

Echoing the arguments made in the previous lecture in the context of the ECHR, Lord Sumption reiterates that in deciding rights claims based on vague constitutional language judges are deciding not so much “whether the right exists but whether it ought to exist. Yet, that is surely a question for lawmakers and not judges.” (5) Anyway, “on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment”, and “are not necessarily wiser or morally superior to the judgments of the legislature”. (5) Lord Sumption also reiterates his earlier point that judicial resolution of essentially political disputes does not leave room for compromise and accommodation. By contrast, political compromise may succeed at resolving differences in the community, as it did over abortion in Britain (in contrast to the United States).

All that said, Lord Sumption cautions that it does not follow “that there are no rights which should be constitutionally protected in a democracy”. (6) Rather, “one must be very careful about which rights one regards as
so fundamental as to be beyond democratic choice”. (6) Again, life, liberty, property, due process, and democratic rights fit the bill. But they will not be enough to protect against the tyranny of the majority. Ultimately, “the Courts cannot parry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves”. (7) If any barrier can do that, it must be found in the political culture, not in the law.


Lord Sumption’s fifth and last lecture, “Shifting the Foundations“, addresses the proposals for introducing the “legal model” of the state to the United Kingdom. Lord Sumption suggests that, although presented as a solution to the ongoing crisis of political institutions, this idea, like all calls for institutional reform in response to crises real or supposed, has little to do with the problems it purports to address. There is something, Lord Sumption says, to the criticisms of the UK’s existing constitutional arrangements, said to be “obscure, old-fashioned, out of step with international practice and giv[ing] far too much power to
Parliament”. (3) But there is also something to be said in defense of these arrangements.

Lord Sumption points out that “[t]he godparents of written constitutions have been revolution, invasion, civil war and decolonisation”. (3) Nothing of the sort has happened in the UK in centuries. As a result, there is no blank slate on which to write a new constitution. If this were nevertheless done, the result, even if

an artefact of perfect rationality, a thing of great intellectual beauty … would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. (3)

Besides, the flexible political constitution has been able “to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. (3)

The problem, and not just in the UK but elsewhere, Lord Sumption argues, is not with institutions but a political culture struggling with

long term decline in the membership … of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. (4)

The reason for this malaise, Lord Sumption suggests, is that democracy cannot meet the unrealistic expectations for it that result “from the eternal optimism of mankind, … a misunderstanding of the role of politicians, and
… an exaggerated view of their power to effect major change”, as well as “the auction of promises at every general election”. (5) This produces “a sense of impotent frustration [that] undermines public confidence in the whole political process”. (5) Those who are disappointed with the representative institutions (Lord Sumption specifically mentions environmentalists frustrated by inaction on climate change) are prepared to look to a strongman who will “get things done”. A further problem is that “[p]eople expect their representatives, not just to act for them, but to be like them”, yet “all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote”. (5) This exacerbates “[r]esentment of political elites”, (6) which plays a large role in current politics.

For Lord Sumption, constitutional change is not the answer to these difficulties, although he is interested in electoral reform “if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population”. (7) An entrenched constitution subject to judicial interpretation, by contrast, “will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable”. (6)

Lord Sumption ends on a dark note:

we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours. (7)


As noted above, there is much to reflect on here. I am not suggesting that everything Lord Sumption says is right; indeed, it cannot be, because his arguments are not altogether consistent with one another. I will set out some reflections on Lord Sumption’s views in my next post. For now, suffice it to say that, if we are to avoid the dark future whose possibility Lord Sumption asks us to confront, we need to think seriously about the issues he cogently outlines.

Madison and Canadian Constitutional Law

Because we are in the slow days of summer, and I have a bit more time on my hands than I would usually have, I picked up a copy of Richard Matthews’ 1995 book, If Men Were Angels: James Madison & the Heartless Empire of Reason. Immediately, one’s Canadian eyes might begin to glaze over. Why should one care about an American Founding Father, specifically one that is somewhat more obscure in the common eye than Thomas Jefferson or Alexander Hamilton? To my mind, Madison raises a number of implications for contemporary debates in Canada about the nature of our government and the interpretation of our Constitution. In this post, I’d like to address two of those implications. First is the idea of deference to legislatures, and how Madison’s views serve as lighting rods for debate on the relative institutional capacities of courts and legislatures. Secondly, and more controversially, is the idea of to whom the Constitution “belongs” and whether it matters for the interpretive approach one adopts in relation to the Constitution.

First, a bit of background about the book and its subject. Matthews paints a picture of Madison as a “quintessential liberal,” who continues to, today, impact the way Americans view their government. Madison, who was a chief architect of the Constitution’s structural provisions and the Bill of Rights, is often placed on a lower rung than Thomas Jefferson in the hierarchy of American founders. And yet, for Matthews, it is Madison who has come to typify modern American government and life. This reality lies, for Matthews, in a quintessential difference in Madisonian and Jeffersonian politics. Matthews paints Madison, at heart, as a Hobbesian; or perhaps a Malthus. Either way, Madison does not view political life as a teleological good as the ancients did. Rather, political life is nasty, brutish, and short; and humanity leans inexorably towards degeneration. Madison is a political skeptic. To him, left to their own devices, humans will inevitably turn on one another, no matter how good or virtuous they might be. Hence, democracy had to be tempered because “had every Athenian Citizen been a Socrates, every Athenian assembly would still have been a mob (see The Federalist Papers, No. 55). For Matthews, “[f]rom Madison’s view of the individual, democracy was a fool’s illusion; in the long run, little could be done, beyond playing for time, to forestall the decline or to improve the human condition” [51] because “passion never fails to wrest the scepter from reason” (The Federalist Papers, No.50).

Madison’s prescription for this natural state of affairs was republican constitutionalism. If the human condition could not be improved, and if virtue could not be instilled, the least one could do is preserve a peaceful status quo. For Hobbes, the method to do this was the Leviathan. But for Madison, the separation of powers was the preferred prescription. By making “ambition counteract ambition” through the mutual jealousy of the branches of government, the worst vices of humanity could be tempered. And, by making a republic that extended over a large geographic area rather than a classic Athenian demos, the risk of factionalism decreased.

On the other hand, Jefferson’s political philosophy reveals a different sort of view of the human condition and political organization. For Jefferson, politics is a constitutive act of citizenship, in which the people constantly reinvent their laws to suit their circumstances. Hence Jefferson’s frequently-cited admonition that “[t]he tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” And Jefferson operationalized this reality: he believed that the Constitution and the laws should renew every generation, so that the dead do not bind the living in their constant fulfillment of democratic, civic republicanism. Jefferson obviously viewed humans as far less fallible than Madison did.

Matthews views the matter differently than Madison, adopting a Jeffersonian position on the matter. For Matthews, “Madison’s liberal dream has, as he knew it would, turned into a nightmare for an increasing number of marginalized Americans” [279]. And this rings somewhat true: even more so than in 1995, the ability of people to connect over the Internet and to peddle in fake news and “deep fakes” has made it much easier to bypass republic protections and create mob rule.

This political theorizing seems far off from the world of Canadian law, and so how does any of it apply? As I noted above, I think there are real reasons why Madison’s thinking, Jefferson’s philosophy, and Matthews’ book all have something to say about contemporary debates in our own institutions. Take first the question of judicial deference to legislatures. In Canada, courts will defer to legislatures on constitutional questions under the Oakes test. If one adopts the Madisonian position, why is there any reason to defer to legislators? The question rings powerfully in the context of Canadian law, where there is a more closely-tied legislature and executive, and where the executive is responsible to the legislature. In such a case, there are no separation of powers protections to prevent the worst human vices. Couldn’t the legislature or executive simply channel mob rule?

There is some evidence of this, as co-blogger Leonid Sirota and I wrote about here in reference to the SNC-Lavalin affair. The example shows that humans—of which politicians are a special class—will not act properly when the incentives aren’t right. The lure of winning an election and doing whatever it takes to do so might be too great a Madisonian evil. After all, it was Justin Trudeau’s justification in the SNC-Lavalin affair that “jobs” were the driving force behind his attempted interference in the prosecution of SNC-Lavalin. This leaves us wondering whether there is any reason for courts to defer to legislatures controlled by calculating executives.

But one must take the situation as it is. In this sense, Hart and Sacks and the legal process school had something right: institutional competency matters. And while legislatures are apt to turn into ineffectual mobs (look at the US Congress and the issue of gun control), or to focus on their own electoral futures, we are talking here about deference to legislatures on constitutional questions. Constitutional questions are more questions of policy-resolution than legal interpretation in the modern day. Of course, this is not normatively desirable or necessary. But it is the state of the world. And if that is the case, legislatures should have a legitimate say—if not a final one, because that responsibility is the judiciary’s—in how issues of policy are resolved. This says nothing of the fact that the people are the ultimate control on government, and for that reason, are always the best control on legislatures appealing to the worst of us.

Finally, I want to say a note about Jefferson’s living constitutionalism. Madison, I think, provides a response that is still apt today:

Would not a Government so often revised become too mutable to retain those prejudices in its favour which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age?

Madison advances a valid epistemological reason for refusing to throw away the past, one I find convincing instinctively. But there is an additional reason why the principle of constitutionalism means that we cannot escape the past. As Hayek notes, the distinctive American contribution to the Rule of Law was the addition of the principle of constitutionalism, explained by Madison as the idea that the Constitution is supreme over ordinary law; that it is “fundamental.” The choice to make supreme certain elements of law is an intentional one, taken by a people after the expense of extensive political capital and energy. It is a sacred act. When it comes to bills of rights, the choice to make certain rights and freedoms beyond the reach of ordinary legislation is a deliberate choice to remove from the sphere of political debate those rights and freedoms. That, too, is a sacred act. The reason why the Constitution cannot be automatically renewed every generation—short of the amending procedure—is that to do so would disrespect the original choice to remove certain, important rights from the sphere of debate. This is an important formal act that should be presumptively respected because it represents the democratic choice of the people at a select time. That choice, absent the amending procedure, should not be abridged by an extralegal “renewal” of the Constitution; especially by courts. This, of course, is slightly different than saying that the people made the choices they did for good reasons.

I could write more, but this post is long enough. It is enough to say that Madison’s politics do view humans as inherently flawed, and these flaws reverberate through all of our institutions. It is fundamentally a question, though, of asking with respect to a particular legal question who is worse. Sometimes courts are best suited to deal with issues, but other times they are decidedly not.

What Do You Want?

A proposal for an expanded (and entrenched) statutory bill of rights is confused and misguided

In an op-ed in the Globe and Mail, Patrick Visintini and Mark Dance make the case for a new legislative bill of rights, to supplement the guarantees of the Canadian Charter of Rights and Freedoms. They argue that “a dusted-off” and much-expanded version of the Canadian Bill of Rights would produce a variety of benefits, at once empowering legislators and securing the neglected rights of the citizens. Yet these ambitious objectives are contradictory, and the argument rests on a confused, if all too common, vision of the constitution.

Messrs. Visintini and Dance lament the popular conception of members of Parliament as “nobodies”. If I understand them correctly, they are also none too pleased with the fact that, unlike in the process that led to the enactment of the Charter, “[c]ritical debates about rights in Canada have been largely left to lawyers and judges, expanding rights through constitutional interpretation rather than amendment”. A legislative update to the Bill of Rights “could reverse both these trends”, ensuring that legislators once again contribute to the protection of rights, overcome the pressures of ” electoral interests and ironclad party control” and “hold[] themselves and the federal government to account for future law-making and administrative action”.

This Bill of Rights 2.0 (my cliché; don’t blame Messrs. Visintini and Dance) would have further benefits too. It “would enhance the public’s ability to understand, track and organize to defend their rights”. It could be the vehicle for enshrining in law “now-pertinent rights [that] never made it into the Charter: environmental rights, victims [sic] rights, housing rights and the rights of Indigenous peoples to self-determination and self-government”. And it could

serve as a shield against judicial reactionaries. While we enjoy a relatively state-of-the-art constitution and a Supreme Court that understands those laws as a “living tree,” we may not always be so lucky. We cannot assume that we will always be immune to the American affliction of constitutional originalism, petrifying our living Constitution where it stands or even shrinking it to fit in the “ordinary meaning” that it would have had in 1982.

Messrs. Visintini and Dance also propose “[r]equiring a two-thirds majority in both Houses of Parliament to add to or amend the new Bill of Rights”. In their view, this “would practically guarantee that cross-party consensus and collaboration would be needed” to effect such changes. They are not quite clear on whether they envision their proposed bill of rights being enacted by such a majority in the first place, although they refer appreciatively to the cross-party collaboration in the run-up to the enactment of the Charter.

More democracy! Less partisanship! More rights! Less Parliamentary abdication! More living constitutionalism! Less non-consensual tinkering with rights! If it all sounds too good to be true… that’s because it is. You can’t have all these things at once. What Messrs. Visintini and Dance are proposing is to empower Parliament, but just this once, for a grand act of abdication that will put a new plethora of rights beyond the reach of ordinary legislation, and empower the courts whose takeover by “reactionaries” they seem to fear. This makes no sense.

The point of a quasi-constitutional, or a fortiori constitutional, legislation protecting rights is to take them off the political agenda to some non-negligible extent and involve the courts in their enforcement. (Given their preference for immunizing their bill of rights from amendment by ordinary law, it is arguably a constitutional rather than a quasi-constitutional instrument that Messrs. Visintini and Dance are proposing.) Normally, one advocates enacting such laws because one thinks that the political process is not especially trustworthy, if not generally then at least with respect to the particular issues covered by one’s proposal. Of course, it may be that the political process will function well enough for the specific purpose of enacting rights-protecting legislation. Perhaps this was the case with the Charter, though looking beyond the Special Joint Committee on the Constitution one might argue that politicians did a lot of damage too, removing property rights protections and introducing the “notwithstanding clause”. Be that as it may, it is odd to expect any lasting empowerment of legislators to result from the enactment of a law whose raison d’être is to curtail their power.

Conversely, if one has sufficient confidence in the ability of legislators to deal with rights issues on an ongoing basis, or even if one simply has faith (a naïve faith, as I have argued here) that keeping legislators in control of constitutional issues will force them to take these issues seriously, the enactment of (quasi-)constitutional laws empowering the courts to set aside legislative decisions is counterproductive. One could still advocate for a legislated bill of rights in the New Zealand style, one that does not allow the courts to refuse to apply inconsistent statutes at serves, at most, to alert Parliament to the possible existence of a rights issue. One might, just, support the Canadian Bill of Rights, which allows a Parliamentary majority to override a judicial decision declaring a statute inoperative due to inconsistency with rights. But one would not demand that this law be protected from amendment by the ordinary legislative process.

Besides, if one professes confidence in the legislators’ ability to come up with a good bill of rights, as Messrs. Visintini and Dance do, one should not in the same breath demand that courts re-write those legislators’ work product. If the Special Joint Committee did good work, then what’s wrong with a constitution that has the meaning its members chose to give it? If they really want reverse the trend of judicial interpretations displacing the good work done by Members of Parliament in 1981-82, then Messrs. Visintini and Dance should be demanding originalist judges, not denouncing these (mostly hypothetical) creatures as suffering from an “American affliction”.

It’s not that I am opposed to expanding constitutional protections for rights, though my preferences would be quite different from those of Messrs. Visintini and Dance. Property rights, freedom of contract, and due process in the administration of civil and administrative justice would be my wish-list. I would also want any such expansion to follow proper procedures for constitutional amendment; it is far from clear that the entrenched bill of rights proposed by Messrs. Visintini and Dance can be enacted consistently with Part V of the Constitution Act, 1982. But one should be clear about what the point of such a change to our present constitutional arrangements would be. It would serve the cause not of legislative empowerment, or even accountability, but that of counter-majoritarian individual liberty.

And if one would rather serve those other causes, which have something to be said for them, there is plenty that one can campaign for. Improved legislative procedures are one area for reform: fewer omnibus bills, less delegation of broad law-making authority to the executive, more free votes perhaps. Many governments are elected promising to do some of these things at least. Few, if any, follow through. As an election is coming up, there is plenty of room for worthy, if perhaps quixotic, advocacy here. One could also demand more effective control over the administrative state. Again, less delegation of power to bureaucrats, but also more effective parliamentary scrutiny of the exercise of that power which has been delegated, as well as reform of the law of judicial review of administrative action. In particular, Parliament could, and should, repeal privative clauses, and clarify that administrative determinations of law are subject to full review on a correctness standard. One could also try to persuade the Supreme Court to finally abandon its deference to bureaucrats on constitutional issues. There is no point in creating new rights if administrators, rather than independent courts, are given the ability to determine their scope and effect.

In short, would-be promoters of democracy and accountability in Canada have plenty to do. A new bill of rights will not advance their purposes; other, less sexy but more realistic, measures might. Democracy, accountability, individual liberty, or glamour: they need to figure out what it is that they are after.

Guest Post: Andrew Bernstein

A response to Mark Mancini’s post on Supreme Court appointments

About every 15 months, a vacancy arises in the Supreme Court of Canada. There is then a search process that lasts somewhere between a few weeks and a few months, which recommends certain candidates to the Prime Minister. The Prime Minister then selects the candidate and the Governor-in-Council makes the formal appointment “under the Great Seal.”

Since the appointment of Justice Marshall Rothstein in 2006, the process has had an additional step: the “Parliamentary hearing.” At this point, the Prime Minister’s selection is named, but instead of simply being appointed to the Court, s/he is as the “nominee.” This “nominee” then to appears before a Parliamentary committee and answers questions (or as Mark Mancini noted in his recent post, not answer questions) about various things, including his or her record, bilingualism, and even judicial philosophy. After these proceedings, the “nominee” is formally appointed to the Court.

The concept of the “hearing,” which neither exists in Canada’s constitution nor the Supreme Court Act was put in place 24 years after the Charter was enacted, as the result of decades of demands by media, academic and some conservative political figures. The concept was that since the Supreme Court now has a greater influence on Canadians’ lives, we should demand greater transparency and accountability from its judges. As a result, the logic went, Parliament should have a greater role in selecting Supreme Court judges, akin to the “advise and consent” function of the United States Senate. We have even adopted the language of the American process, where the President selects a “nominee,” and the Senate can choose to confirm or not confirm that nominee to the position.

Mark’s post points out a number of flaws in the hearings as they currently stand. He suggests that these hearings could be made more useful if they were opened up to a broader array of questions and answers While I agree with his diagnosis, I differ on the prescription and prognosis. In my view, this patient is terminal and should be put out of its misery. For reasons that are institutional, constitutional and functional, my own view is that these “nomination hearings” will never serve any useful purpose, and this 13 year long experiment should be considered a failure.

Institutionally, the committee conducting the hearing is a toothless tiger. It has a power to ask questions, but no power to do anything with the answers. It does not get to vote at the end of the process. So instead, the most it can do is harass or try to embarrass the candidate (as some non-government members tried to do with one candidate’s lack of fluency in French – it was a one-day story which no doubt harmed Justice Moldaver). But a Prime Minister with two vertebrae to rub together will know that almost no one is paying attention. Unless the candidate gives an answer that will make persistent negative headlines, his or her “confirmation” (by the same Prime Minister that “nominated” them in the first place) is guaranteed. So the candidates know that they have one job: don’t embarrass the Prime Minister. Not exactly a tall order for someone with the brains and experience of a typical SCC nominee. And if that’s not enough, the whole thing is “moderated” by a trusted legal luminary, who presumably understands that her role is to ensure that things don’t get too interesting. So what results is a very bland hearing where the people conducting it don’t have any decision-making power. The only way that could ever change is to give the Parliamentary committee an effective veto by allowing it to vote on the nominee. But no PM will do this because it means giving up one of his or her most important prerogatives. In fact, both Prime Ministers Harper and Trudeau have occasionally skipped this “nomination” process altogether (for Justices Cote and Rowe, respectively) and simply inserted their pick on the Supreme Court (as the Supreme Court Act contemplates). So what exists is an optional hearing, before a powerless committee. As Mark says, this is not a process, it’s Kabuki theatre.

My second reason for eschewing the nomination hearing is that it is contrary to the structure of Canada’s (written and unwritten) Constitution, and, as a result, misapplies the notion of political accountability which it is intended to serve. In the United States, the strict separation of powers means that there can be sharp political divisions between the Executive and the two houses of Congress. A President neither requires the confidence of either house to form a government nor must maintain it. As a result, he (or maybe, some day, she?) has no structural accountability to the legislative branches, with one major exception: executive appointments must typically be approved by the Senate as part of its “advise and consent” function. This is in no way limited to the Supreme Court. It is true for lower Federal courts, cabinet departments, agencies, and any number of other roles selected by the Executive to perform various government functions. In other words, Senate approval was designed to be a check on executive power.

In Canada, of course, the separation of powers is blurrier and political accountability works very differently. Confidence of the legislature is a crucial prerequisite to forming a government, and a requirement for keeping that government in office. A Prime Minister that loses the confidence of the House of Commons for any reason must immediately resign. Conversely, a Prime Minister can be presumed to have the confidence of the House for all purposes, including making governor-in-council appointments. Some of these appointments have an enormous effect on the lives of Canadians; potentially much greater than any Supreme Court judge. The most notable of these are federal Cabinet Ministers and Deputy Ministers (the political and civil service heads of federal departments, respectively), as well as the Clerk of the Privy Council (the head of the federal civil service). In all cases, the Prime Minister must answer to the legislature for his choices, not by putting these people through a nomination process, but rather by answering questions in Parliament about who he selected and why. If enough MPs believe that the Prime Minister is being reckless in his or her choices, they can vote no confidence and trigger an election. That is what political accountability looks like in a Parliamentary democracy. There is no reason in principle to have a different process for Supreme Court.

My third and related point is functional: by having a fake hearing for the purposes of fake accountability, we are missing an opportunity to have a real hearing with real accountability for the person who should actually take responsibility for the appointment. I wholly endorse the portion of the process by which the Minister of Justice and the head of the independent search process appear before the committee to answer their questions. I would add that since the Prime Minister has the final word, he or she should also appear, and be prepared to answer real questions about the process, the strengths and weaknesses of the candidate, and any other question that Parliamentarians want to ask him. This could include tough questions like “this is your third Supreme Court selection, why haven’t you selected an indigenous judge?” It could explore the PM’s philosophy of judicial selection, including what his or her priorities are (demographics, experience, credentials, political involvement, geography, etc.) and how s/he intends to implement them. This is useful information: in an election, different parties might contrast their priorities with the current government’s and voters can make a more informed decision, if this matters enough to them.

Because it’s never a good idea to publish anything without letting someone you trust read it first, I should say that I ran a draft of this piece by my colleague Jeremy Opolsky. In addition to making some excellent edits, challenging some weaker points, and greatly improving the arguments, he made one point that I found persuasive (if not quite persuasive enough to change my mind). Jeremy pointed out that getting to know a Supreme Court candidate could have real value separate and apart from asking the government questions, and even if the committee cannot change the result. He points out that the hearings provide an informational function about the judge which is, at a minimum, interesting. So if the hearings can accomplish this and do no harm, he posits, why not hold them? However, I remain unpersuaded, for one essential reason: perhaps uniquely among important decision-makers, we actually do get to know our judges, through their written reasons for judgment. In fact, they reveal a lot more about themselves in their judicial writing than we could ever learn about them in a nomination hearing, and without the political theatre that goes with it.

In sum, I suggest we let the political actors deal with the politics of judicial appointments. It is, after all their job. Little that happens at a nomination hearing actually allows us to know how judges are going to do their job, or really anything useful about them at all. So let’s skip the part where the judges get grilled and move to asking questions of the person who could actually be held accountable for their nomination. The whole institution of the Canadian “nomination hearing” was invented to assuage the demands of legal academics and the media, who no doubt were suffering a little excitement envy from the U.S. even before the events of 2018, as well as conservative political figures who have criticized the perceived liberal bent of Canada’s judiciary. When it comes to the Supreme Court, the practicing bar is primarily concerned about the Court providing coherent and well-reasoned decisions that can actually be applied to future cases so we can properly advise our clients on their rights and obligations. So to many of us, the real question for any new appointment process is whether it will improve the overall quality of the Supreme Court’s adjudication. There is reason to believe that the current Prime Minister’s independent search process will actually do that; certainly the first two “outputs” from this process look extremely promising. However, in the 13 or so years since Justice Rothstein first appeared, the existence of these nomination hearings, appear to have made no difference one way or the other.

In the Beginning

Learning about, and from, Pierre Trudeau’s 1968 proposal for what would become the Canadian Charter

Canadian judges and lawyers, including of the academic variety, tend not to think very highly of our constitutional history. This is, in part, because we ― and I must include myself in this ― do not know it as well as we should. There is an unhealthy feedback loop at work: a predisposition to be dismissive of the past fosters ignorance about it, which in turn makes it easier to be dismissive. The good news is that, once one starts looking into this history about which we have so much to find out, it is easy to find fascinating stories to learn, and to learn from.

Case in point: the proposal for “A Canadian Charter of Human Rights“, put forward in early 1968 by then-Justice Minister Pierre Trudeau, made available by the wonderful resource that is the Primary Documents project. I have to admit: I didn’t really know anything about this text before coming across it recently. But it is, surely, of considerable interest, if we accept that ― like every other rights-protecting text from the Magna Carta onwards ― the Canadian Charter of Rights and Freedoms, the direct descendant of the 1968 proposal, isn’t just a shadow in Plato’s cave, but a document that was written and enacted by particular people, at a particular time, in a particular place. And in addition to both the interest that I think this text deserves and the way in which it illustrates the value of constitutional history more broadly, it also sheds some light on ongoing debates.


Trudeau began his introductory chapter by claiming that “Interest in human rights is as old as civilization itself.” (9) (This, I am afraid, is reminiscent of bad student work.) For a long time, he wrote,

these rights were known as ‘natural’ rights; rights to which all men were entitled because they are endowed with a moral and rational nature. … These natural rights were the origins of the western world’s more modern concepts of individual freedom and equality. (9)

Trudeau appealed to Cicero and Aquinas, as well as Locke and Rousseau, and quotes at some length from the Declaration of Independence. I’m not sure that his presentation of the concept of natural rights is fully accurate, but his reliance on these authorities as the starting point of an argument for constitutional protection of human rights is relevant to the recent debates about the nature and origin of the rights protected by the Charter.

Another point which has been the subject of recent discussion that Trudeau’s introduction addressed was that of Parliamentary supremacy. Trudeau was quite clear that his proposal involved “some restriction on the theory of legislative supremacy”, although this theory, he said, “is seldom pressed to its full extent”. (11) Equally clear, as will appear below, was his understanding that the courts would have the last word on the meaning and import of the rights guarantees that he proposed adding to the Constitution. The point of the exercise was to secure “the fundamental freedoms of the individual from interference, whether federal or provincial”, and also to “establish that all Canadians, in every part of Canada, have equal rights”. (11)


This theme of inviting judicial enforcement of rights’ guarantees is further developed in the next chapter. Trudeau discusses the Canadian Bill of Rights, and finds it wanting because it is “not a constitutional limitation on Parliament, only an influence”, (13) and has not been vigorously enforced by the courts. Even if it had been, it would, like provincial legislation protecting human rights, be subject to repeal through the ordinary legislative process. In short,

a constitutionally entrenched Bill of Rights is required which will declare invalid any existing or future statute in conflict with it. Language in this form would possess a degree of permanence and would over-ride even unambiguous legislation purporting to violate the protected rights. (14)


The next Chapter outlines the contents of the proposed “charter of human rights”. It explains how existing law deals with each right it proposes to protect ― what the existing protections, if any, are; how they are limited; and also how legislative powers affecting the right are distributed between Parliament and the provincial legislatures. In some cases at least, there is thought given to the wording of future constitutional clauses ― for example, “whether freedom of expression is best guaranteed in simple terms without qualification, or whether the limitations of this freedom ought to be specified” (16) ― which suggests that the Charter‘s text is not just a collection of “majestic generalities” that could just as easily have been cast in very different, if equally general, terms. And there is a great deal of speculation about the way in which the courts will treat various rights, if they are constitutionally entrenched. This speculation is informed by references to Canadian case law, where it exists, as well precedents from the United States. There are also occasional references to the European Convention on Human Rights.

Some future controversies are already foreshadowed in Trudeau’s discussion. For example, the section on the freedom of religion highlights “the imposition of Sunday closing of businesses on Christians and non-Christians alike” ― which would, indeed, produce one of the first Supreme Court decisions based on the Charter, R v Big M Drug Mart Ltd, [1985] 1 SCR 295. For its part, the section on “life, liberty and property” ― note that, as Dwight Newman and Lorelle Binnion have pointed out, Trudeau was quite keen on entrenching some form of constitutional protection for property rights ― anticipates the issue in another early Charter case, Re BC Motor Vehicle Act, [1985] 2 SCR 486 about whether substantive or only procedural constraints exist on deprivations of “life, liberty and the security of the person”. In 1968, Trudeau thought, based on the jurisprudence under the “due process clause” of the Fifth and Fourteenth Amendments to the U.S. Constitution

that the guarantee [of due process] as applied to protection of “life” and personal “liberty” has been generally satisfactory, whereas substantive due process as applied to “liberty” of contract and to “property” has created the most controversy. It might therefore be possible to apply the due process guarantee only to “life”, personal “liberty” and “security of the person”. The specific guarantees of procedural fairness set out elsewhere in the bill would continue to apply to any interference with contracts or property. In this fashion the possibility of any substantive “due process” problems would be avoided. (20)

Of course, the example of property rights shows that what was ultimately enacted in 1982 was not always what Trudeau had wanted in 1968. Still, given the widespread conviction that the Supreme Court’s holding in the Motor Vehicle Act Reference that the “principles of fundamental justice” which must be respected when depriving a person of “life, liberty or security of the person” were not only procedural but substantive too went against with the wishes and expectations of the Charter‘s framers, it is interesting to note that the Supreme Court’s interpretation is actually quite consistent with Trudeau’s original proposal.

There are instances, admittedly, where Trudeau’s powers of prediction failed. For example, he wrote that “a court would likely be extremely reluctant to substitute its opinion of a proper punishment for that of the legislature”. (21) Stephen Harper, not to mention Justice François Huot of the Québec Superior Court, might have a thing or two to say about that. Trudeau thought that constitutionalizing the presumption of innocence would not mean “that the various federal and provincial penal statutes which contain ‘reverse onus’ clauses … will be declared unconstitutional”. But of course it was just such statute that was in fact declared unconstitutional in R v Oakes, [1986] 1 SCR 103.

And property rights weren’t the only ones that he thought important but the Charter ended up not protecting: so was the right to a fair hearing in civil and administrative proceedings. On the other hand, some rights that Trudeau did not think advisable to incorporate in the constitution were read into it by judicial fiat. Thus, notably, Trudeau listed “the right to form and join trade unions” along with other rights “which seek to ensure some advantage to the individual and which require positive action by the state”, (27) and which should not be protected by his proposed “charter of human rights”. That is because “[i]t might take considerable time to reach agreement on the rights [in this category] to be guaranteed and on the feasibility of implementation”. (27) Someone should have told the Supreme Court before it decided in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, that a right to collective bargaining would have been “within the contemplation of the framers of the Charter“. [78]


The very brief final chapter in Trudeau’s text suggests that egalitarian and linguistic rights might have to be implemented gradually, after political and legal rights have been protected, and muses on the advisability of special provisions for wartime and other emergencies. Section 32(2) of the Charter, which provided that equality rights would only come into effect three years after the rest of the Charter, seems to reflect the former concern, as does, in part, section 59 of the Constitution Act, 1982 which requires Québec’s consent ― which has never been given ― for the application of section 23(1)(a) to the province. No special provision has been made specifically to accommodate the concern about emergencies, though Trudeau actually contemplated the possibility of leaving it to “the courts to determine what limitations are made necessary in times of crisis”. (30)


In case I have not made this sufficiently clear already: these are only one man’s ideas about what a future constitutional charter of rights for Canada should look like and accomplish. To be sure, the man was influential ― indeed his influence was decisive in Canada having a constitutional charter of rights 14 years later ― and the ideas were given the stamp of approval by the government of which he was part. But many years would pass, and many governments would change, before these ideas would become law, and then, as noted above, only in a much modified form.

It is the law that was enacted that binds Canadian governments, and Canadian courts. As I have unfortunately had occasion to note here, Pierre Trudeau’s political programme is not the appropriate object of constitutional interpretation, “and the courts’ duty is to apply the Charter as it has been enacted, and not to expand it forever until the day the just society arrives”. For the better and for the worse ― often much for the worse ― the ideas of other political actors and members of the civil society helped shape Charter as it developed from a political proposal to a constitutional law.

Nevertheless, the original proposal of which the Charter is the consequence deserves our attention. Although in no way binding or definitive, it sheds some light on important controversies surrounding the Charter, some of which are ongoing to this day ― in part, I would argue, because we have not paid sufficient attention to history. Studying this history is a way not only of indulging our curiosity ― though there’s nothing wrong with that ― but also of reminding ourselves that the Charter, and our constitution more broadly, was the product of specific circumstances and ideas. For all their flaws, these circumstances and ideas were more interesting and praiseworthy than those who denigrate them in order to make the constitution that they produced into a blank canvas onto which their own preferences can be transposed care to admit. The constitution is neither such a blank canvas nor a projection from a Platonic world of forms that must be interpreted by philosopher kings in judicial robes for our edification and government. It is a law, and must be interpreted as such.

An Empty Vessel

Thoughts on the Justice Kasirer appointment process

A few weeks back, Prime Minister Trudeau’s nominee to the Supreme Court, Nicolas Kasirer, subjected himself to questions from parliamentarians. By all accounts, Justice Kasirer is a qualified nominee for the Court, having spent a decade on the Quebec Court of Appeal. But one must separate the nominee from the process through which he was appointed. While the Government’s independent search process is probably, in theory, a step in the right direction, it is still plagued by one meaningful problem: parliamentarians have virtually no power to shed any meaningful light on the Prime Minister’s nominee.

Of course, unlike the United States, Parliament and its committees have no constitutional duty or mandate to give “advice and consent” on nominations made by the Prime Minister to the Supreme Court. Yet the fact that the Constitution does not require something does not mean that systems of government should not aspire to be better. This was the logic behind the Prime Minister’s independent appointments process, which is also not at all required by the Constitution.

But the process adopted by the government when it comes to public consultation, while not inconsistent with the Constitution, falls well short of other standards of public transparency. The judicial nomination “hearing,” if one could even call it that, was limited by a number of overriding principles. For example, Justice Kasirer could not talk about any past decisions he rendered as a judge of the Quebec Court of Appeal; politicians could not ask him about any judgments he would render as a judge of the Supreme Court;  politicians could not “cross-examine” the nominee; nor ask him to take a position on “controversial” issues; and finally, the nominee could not comment on existing Supreme Court decisions, and whether he supported those decisions or not.

Some of these restrictions are understandable. Asking a nominee to pre-judge an issue presents a real judicial independence problem. But some of the restrictions, I think, end up short-circuiting legitimate questions about the role of the judge in the modern era. Particularly, asking a judge to comment on her past rulings or to comment generally about her philosophy does not present the same judicial independence concern as pre-judging a case on the merits. Indeed, there are other countervailing values that make these questions apt for answering, in the name of public transparency, and in light of the judicial role in the modern era.

The idea is this: no one denies—not even proponents of strong-form judicial review—that the Supreme Court deals with issues of great national importance. This is in part represented in the Supreme Court’s leave requirements; but it is also manifested in the cases the Supreme Court decides, and how it decides them. In the last number of years, the Court has decided cases of broad public controversy, including reading a right to assisted dying into the Constitution, doing the same for the right to strike, and similarly interpreting an existing constitutional provision to encompass a right to Wagner-style collective bargaining. All of these issues—issues over which reasonable people can disagree in the political realm—have been removed from the public sphere of debate by the Supreme Court’s constitutional rulings. While the Court has often replied that it is the people through their representatives that thrust this role upon them when enacting the Charter (see BC Motor Vehicles, at para 16), this argument does not change the basic fact that courts have taken on this role, often liberated by emancipating doctrines like a “living tree approach” and a lax standard for the admission of all sorts of social science evidence. When it comes to Charter decision-making, the judicial role takes on the character of policy, under which decisions are made by courts that at one point might have been made by legislatures.

Putting aside whether this is normatively desirable, and if this is the case, why shouldn’t the public have a window past the veil of judicial decision-making in a substantive way that sheds light on the things a judge values in the decision-making process? In other words, while there is no formal process for “advice and consent” (and perhaps there shouldn’t be) shouldn’t the public’s representatives have a right to query the judge’s overarching judicial philosophy, including how it would apply to past Supreme Court cases? The role of the Supreme Court in the modern era, if it is going to be expansive, is deserving of some sunlight.

I am alive to the criticisms. One might argue that this imports an American style advice and consent function into Canada, potentially creating the conditions for the sort of circus we see in the United States. But the function I have in mind is suited to Canadian circumstances. In reality, my prescription would amount to allowing a few more substantive questions to be asked in a hearing. Anyone who watched the Kasirer hearing was probably left sorely disappointed; the nominee’s reliance on the restrictions of the entire process was somewhat frustrating given the stakes of a Supreme Court appointment. But if the process was somewhat more substantive, with the scope of questioning somewhat expanded, perhaps there might be more interest in the entire endeavour, with Parliament taking on a real public monitoring function. On my account, the questions that could be asked could account for general judicial philosophy considerations, an account of the judge’s past decisions, and perhaps general comments about existing Supreme Court cases, always on guard for the potential for questions to go into “gotcha” territory.

Another concern is judicial independence, as I alluded to above. We do not want prospective Supreme Court judges pre-judging cases. But setting out a general philosophy—including generally reflecting on Supreme Court cases or to reflect on one’s own judicial tenure—is hardly pre-judging particular cases on the merits. Indeed, one can criticize a past Supreme Court decision and still resolve to apply it because it is the law—this would be the ultimate in honest and transparency. The truth is that every judge has some system or guiding star for deciding cases that the public deserves to know. Judicial independence should not be a prophylactic reason to prevent all questioning of judges, especially in a system where the Court carries so much power.

The goal of the entire nomination process should be to balance the selection of qualified jurists with the protection of their independence and the public’s legitimate interest in knowing who is nominated. A Kabuki theatre nomination hearing, like the Kasirer one, fails to create the conditions for the public to actually know a judge. This is far from ideal in a situation where the Supreme Court, as Justice Abella once said, is the apparent arbiter of Canadian moral values. If the Court arrogates this role to itself, its members should at least be accountable through some mechanism.

Keeping It Complicated

The Supreme Court’s issues its most originalist decision in years, but pretends it applies a different methodology

Military justice is a somewhat exotic topic; I don’t think my professors mentioned it even once in my time in law school, for instance. The Supreme Court’s decision in R v Stillman, 2019 SCC 40, delivered last week, is concerned with the functioning and limits on the jurisdiction of this parallel justice system. However, it should not only be of interest to the aficionados of this area of the law. Stillman was a relatively rare case where constitutional interpretation is front and centre, and it provides good illustrations of a number of problems with the way we do things on this front.

The issue before the Court was the meaning of the exception to the right to trial by jury guaranteed by section 11(f) of the Canadian Charter of Rights and Freedoms “in the case of an offence under military law tried before a military tribunal”, and specifically of the phrase “military law”. There is no question that specifically military offences created by the Code of Service Discipline that is part of the National Defence Act are “military law”; but what about the ordinary civilian offences (notably those created by the Criminal Code), which are incorporated by references by section 130(1)(a) of the Act? The majority, in an opinion by Justices Moldaver and Brown (with the agreement of Chief Justice Wagner and Justices Abella and Côté) find that these too are “offence[s] under military law”. Justices Karakatsanis and Rowe disagree and dissent.

Both the majority and the dissenting opinion present themselves as applying a purposive approach to the interpretation of section 11(f) of the Charter. However, they do not just differ in the outcomes that they reach. The majority’s professed purposivism shades, into public meaning originalism. The dissent’s has more than a whiff of I have been calling “constitutionalism from the cave”, the substitution by judicial fiat of the constitution that we perhaps ought to have for the one we actually have.


The majority begins by saying, with reference to a well-known passage in R v Big M Drug Mart, [1985] 1 SCR 295, that the provisions of the Charter ― both rights and, it insists, exceptions ―

are to be read purposively, rather than in a technical or legalistic fashion. And, just as courts must take care not to “overshoot” the purpose of a Charter right by giving it an unduly generous interpretation, so too must they be careful not to “undershoot” the purpose of a Charter exception by giving it an unduly narrow interpretation. [22]

The purpose of the right to trial by jury is to protect the accused against the state and also to involve the public in the administration of justice. That of the exception is to preserve the longstanding, separate system of military justice, which serves to maintain discipline and morale in the armed forces. The majority reviews the history, remit, and functioning of this system at considerable length.

Justices Moldaver and Brown then come to the interpretation of the phrase “military law” itself. With reference to Parliamentary debates at the time of the enactment in 1950 of the version of the National Defence Act in force in 1982, they point out that “‘military law’ was understood as ‘the law which governs the members of the army and regulates the conduct of officers and soldiers as such, in peace and war, at home and abroad'” and included “a provision transforming ordinary civil offences into service offences”. [74] They note, further, that the Criminal Code “at the time of the Charter’s enactment defined (and still defines) “‘military law’ as including ‘all laws, regulations or orders relating to the Canadian Forces'”, [75] and point to the Court’s decision in MacKay v The Queen, [1980] 2 SCR 370, where the majority opinion spoke of civilian offences incorporated by reference by the National Defence Act as being part of “military law”. Justices Moldaver and Brown concluded that it is “far more likely that the purpose of the military exception was to recognize and preserve the status quo” than to “reverse[] this longstanding state of affairs”. [78]

Justices Moldaver and Brown go on to reject the argument of the accused persons that the phrase “military law” only refers to purely military offences rather than the civilian ones incorporated by reference in the National Defence Act. To accept this, they say, would be contrary to MacKay and to the text of section 11(f).

They also reject the dissenters’ suggestion that to fall within the purview of “military law” within the meaning of section 11(f) an offence must be sufficiently connected to military service. The majority opinion in MacKay accepted that no special connection was required to make the incorporation by reference of civilian offences a valid exercise of Parliament’s power in section 91(7) of the Constitution Act, 1867, over “Militia, Military and Naval Service, and Defence”. Meanwhile, in R v Moriarity, 2015 SCC 55, [2015] 3 SCR 485, the Court upheld this incorporation against a challenge based on section 7 of the Charter, holding that the subjection of general criminal offences to the military justice system was rationally connected to that system’s purposes. While these cases raised different issues, “there must be coherence among the division of powers analysis, the overbreadth analysis, and the meaning of ‘an offence under military law’ in s. 11(f) of the Charter”. [97] To be sure, tying the scope of the exception in section 11(f) to Parliament’s power in section 91(7) means that Parliament can to some extent determine when the exception applies, but this no different from Parliament enacting criminal law and thereby triggering the application of various rights granted the accused. Besides, the requirement of a sufficient connection to military service is vague, and would cause difficulties in application.


Justices Karakatsanis and Rowe see things very differently. Previous decisions are not dispositive, and the requirement of a connection between the offence and military service is essential to avoid unduly limiting the right to trial by jury and giving Parliament and military prosecutors the ability to shape the contours of this right. Constitutional authority (in terms of division of powers) to enact an offence is not, in itself, a guarantee that the enactment will also comply with the Charter; nor is compliance with one right synonymous with compliance with others. Nor can the exercise of discretion by prosecutors, to bring charges in military court only when appropriate, be a substitute for the judicial enforcement of constitutional rights.

The dissenters appeal to the same passage from Big M setting out the principle of purposive interpretation as the majority, although they warn that exceptions to Charter rights should be approached with caution. The purpose of section 11(f), in their view, is to uphold “the interests of the accused and of society in holding a jury trial when prosecuting serious criminal offences”. [141] These interests must not be undermined allowing trials not sufficiently connected with military service to be held in the military, rather than the civilian, justice system.

Turning to history, Justices Karakatsanis and Rowe point out that the jurisdiction of military courts long remained narrow and was seen as a supplement to that of the civilian courts, only to be resorted to when civilian courts were unavailable. They also refer to MacKay, but to Justice McIntyre’s concurring opinion rather than the majority’s; this concurrence stressed the need for a military connection to bring an offence within the jurisdiction of military courts. This requirement was “adopted by the Court Martial Appeal Court … one year after the Charter, and has been applied with some regularity over the past thirty years”. [164] Justices Karakatsanis and Rowe conclude that “[t]his historical overview … highlights when military courts should have jurisdiction” ― namely “where quick and efficient justice was necessary to uphold discipline”, [166] and not otherwise.

As a result, the possibility that offences committed by persons subject to military justice but which are not sufficiently connected to their military service is an infringement of section 11(f) of the Charter. Justices Karakatsanis and Rowe conclude that this infringement is not justified in a free and democratic society. They go on to find that reading the requirement of connection to the military into section section 130(1)(a) of the National Defence Act in the best remedy in the circumstances.


The majority is right, although its reasoning is unnecessarily complex. The purported purposivism of both opinions obscures what is really going on. As suggested above, the reasons of Justices Moldaver and Brown are, at heart, originalist. The key passage in their opinion is that which discusses the way in which the phrase “military law” had been used by officials, by the Criminal Code, and by the Supreme Court itself, in the decades prior to 1982. Although they do not say so in so many words, Justices Moldaver and Brown thus go a long way towards establishing the public meaning of that phrase at the time of the Charter‘s enactment. Ideally, they would have stopped right there.

The references to the purpose of section 11(f) as a whole or of the military justice exception are superfluous. Purposive analysis may well be a helpful way to undertake constitutional construction ― that is, the development of legal doctrine in areas where constitutional text does not offer sufficient guidance to resolve concrete disputes (for example because the text is vague, or employs terms that appeal to moral or practical reasoning) ― as Randy Barnett and Evan Bernick have suggested. (I summarized and commented on their article here.) But, as Stillman shows, purposivism does not meaningfully contribute to constitutional interpretation ― that is, the activity of ascertaining the meaning of the constitutional text itself. When, as in this case, it is possible to find out what the text means, and to resolve the dispute based on that meaning alone, the speculation that the text was presumably intended to say what it said rather than something else adds nothing to the analysis.

It may be, of course, that the pretense of purposivism is necessary to make originalism palatable to (some of) the current members of the Supreme Court. If so, it might be a reasonable price to pay; but then again, it might not. When Stillman is cited in the future for its unanimous embrace of purposivism, will it be in support of the majority’s empty ― and harmless ― version of the methodology, or of the dissent’s, which consists of emphasizing purposes at the expense of the original meaning of the text?

The dissent starts with a view of how the constitution ought to treat the relationship between civilian and military justice, and insists that this view must become law. It pays little heed to the meaning of the phrase “military law”, reading into it a limitation that is, in its view, desirable, but has no obvious foundation in the constitutional text. While Justices Karakatsanis and Rowe appeal to history, they cherry-pick the record and ignore the crucial period: that immediately preceding the enactment of the Charter. The practice of the previous centuries may be interesting, but it cannot be dispositive given that matters stood very differently by the time the Charter came into being. Still less can the jurisprudence of Canadian military courts in the decades that followed, and its embrace of Justice McIntyre’s concurrence in MacKay, have any bearing of the Charter‘s meaning. The dissent’s use of history appears to be more result-oriented more than a genuine attempt to ascertain “the historical origins of the concepts enshrined” in section 11(f), to borrow Big M‘s language. If this is what purposivism is, then we should run, not walk, away from it.


The reasoning of the Stillman majority is perhaps the most originalist, and specifically public-meaning originalist, in a constitutional case since that of the majority in Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511. In the meantime, of course, there has been the thoroughly unoriginalist decision in R v Comeau, 2018 SCC 15, [2018] 1 SCR 342. As Benjamin Oliphant and I have written, it would of course be wrong to pretend that the Supreme Court is consistently originalist; but it would also be wrong to deny originalism’s place in Canadian constitutional law. Even seemingly decisive setbacks, like Comeau, are only ever provisional.

It is not just the Court as a whole that is inconsistent; so are individual judges. Every member of the Stillman majority signed onto the Comeau judgment. Justice Wagner, as he then was, and Justices Côté and Abella were the dissenters in Caron, favouring an approach that privileged the supposed intentions of the framers of the provision at issue over its original public meaning. This time they join a majority opinion where original meaning does the heavy lifting. Justice Karakatsanis, by contrast, had co-authored the majority opinion in Caron, but now dissents.

One rather suspects that the judges simply do not give much thought to constitutional interpretation, at least beyond what they see as the needs of individual cases. If this is so, then there is little reason to expect that occasional ― but erratic and not especially well-reasoned ― resort to originalism by the Supreme Court will continue. As Mr. Oliphant and I argued, however, it would be highly desirable if more thought were given to constitutional interpretation, and if the Court went about this task in a more consistent and principled manner.

Lastly, I would be remiss not to add that I am inclined to think that, at the level of policy, the concerns raised by Justices Karakatsanis and Rowe deserve serious consideration. In my comment on Moriarity, I wrote that

there is … a broader question to be asked about the extent to which an institution to which a person belongs ought to be able to discipline that person for behaviour occurring outside the institutional context, for the sake of maintaining “morale,” or harmony, or respect, etc.

I still think so. To be sure, the armed forces are a rather unique sort of institution. Perhaps there is good reason to give them the sort of broad jurisdiction over the actions of their members that, as Stillman holds, the Charter allows. But perhaps not. Yet this is a matter for Parliament to consider. The constitution, on this point, does not constrain it.