Why Bother about the Charter?

The Supreme Court divides on whether one might claim Charter damages against an administrative tribunal

Last week, the Supreme Court issued its first decision of 2017, Ernst v. Alberta Energy Regulator, 2017 SCC 1. One can only hope that it is not a trendsetter. The decisions raises more questions than it answers. The Court is split 4-1-4, with the different opinions at odds about which questions it is necessary or even appropriate to answer, and there is no holding on the most important of these, which was whether damages for breach of the Canadian Charter of Rights and Freedoms could ever be awarded against an administrative tribunal. As Jennifer Koshan notes over at ABlawg, “[t]he Ernst decision is challenging to read”, and “[i]t is also challenging to identify the precedential value of the case.”

The case arose out of allegations that the Alberta Energy Regulator (an administrative tribunal) attempted to silence Ms. Ernst in retaliation for her criticism. She claimed that the Regulator demanded that she no longer take disagreements with it to the media, and refused to consider her submissions to it on the same terms as it did those of other members of the public in retaliation for her failure to comply, and thereby breached her freedom of expression, contrary to paragraph 2(b) of the Charter. As a remedy for this breach, Ms. Ernst sought an award of damages, arguing that it was an “appropriate and just” remedy under subsection 24(1) of the Charter.

The Regulator sought to have her claim in damages struck as devoid of any chance of success, invoking a statutory immunity clause that barred suits for “any act or thing done purportedly in pursuance of” the Regulator’s legislative mandate, “or a decision, order or direction”. Ms. Ernst, however, argued that the constitution prevented this provision from denying her the ability to bring Charter claims.

* * *

As just mentioned, there are three sets of reasons ― and no majority. As prof. Koshan helpfully explains, there are

three key issues, although not all of the justices agreed that these issues were worthy of consideration, nor did they agree on the order in which they should be considered:

  1. Whether it was plain and obvious that [the immunity clause] barred Ernst’s Charter claim;
  2. Whether it was plain and obvious that Charter damages were not an appropriate and just remedy in Ernst’s claim against the [Regulator]; and
  3. Whether Ernst’s failure to provide notice of a constitutional challenge to s 43 was fatal to her claim.

In what the Court designates as “reasons for judgment”, Justice Cromwell, with the agreement of Justices Karakatsanis, Wagner, and Gagnon, finds that Charter damages will not be an appropriate and just remedy, in this case or indeed, it seems, in just about any conceivable case against an administrative tribunal, meaning that the immunity clause is constitutional ― and, assuming, as Justice Cromwell does, that it bars Ms. Ernst’s claim ―the claim must be dismissed. (I would quibble here with prof. Koshan’s otherwise insightful post: she writes that Justice Cromwell “held that [the immunity clause] did, on its face, bar Ernst’s claim for damages”. It seems to me that this somewhat mischaracterizes Justice Cromwell’s reasons, which do not amount to a holding on this point. But as prof. Koshan says, it is difficult to understand what the Court actually decides.)

Justice Abella, who concurs in the result, would instead have dismissed Ms. Ernst claim for failure to provide notice of her constitutional challenge to the immunity clause. She she also suggests, however, without deciding, that Justice Cromwell is likely right about the appropriateness of Charter damages against administrative tribunals. Meanwhile, the Chief Justice and Justices Moldaver and Brown, with whose joint opinion Justice Côté agrees, dissent on the basis that it is not plain and obvious that the immunity clause bars Ms. Ernst’s claim or that Charter damages are an appropriate and just remedy.

The three opinions trade surly accusations of procedural impropriety, implicit or explicit. Justice Cromwell accuses the dissent of having decided that the immunity clause did not plainly bar Ms. Ernst’s claim even though the Court heard no argument on this point, because Ms. Ernst herself had conceded it. The dissent responds that the issue is too important for the court to simply proceed on the assumption that the concession is right. For her part, Justice Abella implies that Justice Cromwell should not have addressed the constitutional question at all ― and, remarkably, Justice Cromwell does not even attempt to respond to this accusation (though he repeatedly refers to the obiter part of Justice Abella’s reasons!).

* * *

Prof. Koshan has summarized the three sets of reasons in detail; there is no need for me to do so again. In the remainder of this post, I want to focus on the question, which goes ostensibly unanswered in a 4-4 tie vote (Justice Abella abstaining), of whether Charter damages can be an appropriate and just remedy against an administrative tribunal. Justice Cromwell emphasizes the “need for balance with respect to the choice of remedies” for Charter breaches. [25] It is hard to be against “balance”, of course, but the question is how that balance is to be struck.

For Justice Cromwell, damages should not be too widely available. He gives two reasons for denying them in this case. First, if Ms. Ernst was wronged, she had an adequate alternative remedy in the form of an application for judicial review. It is her own fault that she did not make one. Had she done so, a court could have set aside the Regulator’s unconstitutional decisions. Indeed, “judicial review would in all likelihood provide vindication in a much more timely manner than an action for damages” ― if it had been initiated “promptly”, anyway. [36] Second, allowing claims for Charter damages to be brought against administrative tribunals would interfere with “good governance” by “chilling” their exercise of “responsibilities of a policy-making and adjudicative nature.” [42] Defending against damages actions is time- and money-consuming and distracting, and tribunals will be tempted to act “defensively” to avoid having to do so. Justice Cromwell adds that “allowing Charter damages claims to be brought … has the potential to distort the appeal and review process”, [54] and undermine the finality of administrative decisions. Moreover, the rule barring such claims needs to be categorical, since case-by-case consideration of whether a given claim might amount to an “appropriate and just” remedy would defeat its purposes.

The dissent disagrees with this; indeed, it is aghast at the prospect of a blanket immunity from Charter claims for administrative tribunals. Whether an application for judicial review ― which cannot lead to an award of damages ― would be an adequate alternative remedy is too early to say. As for concerns about good governance, courts should recall that “Charter compliance is itself” such a concern, indeed “a foundational” one. [169] While damages awards will likely not be “appropriate and just” “where the state actor has breached a Charter right while performing an adjudicative function”, [171] there is no need to expand immunity from such awards for non-adjudicative actions, especially when, as is alleged to be the case here, the actions at issue are “punitive”. At most, “certain state actors are subject to qualified immunities”, [176] such that it is only possible to claim damages against them for abuse of power or actions outside of their functions. In other words, there is no need for a blanket rule precluding case-by-case consideration, as Justice Cromwell suggests.

For my part, I do not think that Justice Cromwell’s arguments in favour immunizing administrative tribunals are persuasive. I thus sympathize with the dissent, Indeed, I wonder whether even it may go too far in favour of immunity of adjudicative decision-makers. In New Zealand, the Supreme Court’s holding in Attorney-General v Chapman [2011] NZSC 110, that damages for the breach of the New Zealand Bill of Rights Act 1990 are not available when the breach results from actions of the judiciary has been criticized, including by the two dissenting judges, who pointed out that while a personal immunity for judges is necessary to prevent the sort of ill-effects that worry Justice Cromwell, it is not so clear that the state should also benefit from this immunity.

Be that as it may, I think that the dissent is right to be skeptical of the need for an immunity for decisions that are not of an adjudicative character. Of course defending Charter damages claims may be a distraction and a drain on an administrative tribunal’s resources. But that’s true for any government entity that could be subject to such damages. On Justice Cromwell’s logic, we might as well abolish this remedy (admittedly already underdeveloped and moribund as it is). And as for the worry that administrative decision-makers may suffer a “chilling effect” ― that is as much a feature as it is a bug. If we care about the constitution, shouldn’t we want government entities to worry about acting unconstitutionally, instead of being concerned that they will? Perhaps there is a level of concern that would be excessive. But are we anywhere near it? It is, as the dissent points out, for the government to prove that good governance considerations preclude Charter damages awards; Justice Cromwell’s reasons show no evidence of such proof having been produced (unsurprisingly at such a preliminary stage in the litigation).

Finally, a word on a precedent that Justice Cromwell dismisses, it seems to me, rather too quickly. In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585 and companion cases, the Court held that a litigant who want to bring a private law damages claim against the government did not have to first pursue a judicial review claim to have the decision from which the claim purportedly arose quashed. Justice Cromwell notes that “[t]he Court did not comment on the appropriateness of a Charter damages award against a quasi-judicial board.” [40] That’s true so far as it goes. But the principle underlying the TeleZone decision was that litigants are entitled to seek compensation for losses caused by the government, and so to pursue a damages action, without having the underlying decision set aside, because judicial review and damages claims are of a different nature. TeleZone does not dispose of Ernst, not least because it involved private law rather than Charter damages claims, and it is possible that the function of Charter damages is at least somewhat different, making judicial review a closer substitute. I am skeptical about that, but need to think more about this. In any case, it is too bad that Justice Cromwell seemingly does not trouble himself with this question (and also that the dissent does not raise it).

* * *

In the event, Ernst only flags the issue of potential liability of administrative decision-makers for Charter breaches. It does not dispose of it. This is as well, because the decision is not going to be a Supreme Court classic. But it is worrying all the same. If it turns out that administrative decision-makers cannot be held to account for Charter breaches except by way of judicial review (and holding them to account through that means is a tricky business in light of the Supreme Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395!), then one will have to wonder whether they will bother thinking about their Charter obligations at all.

Aborting Freedom of Expression

If a city can censor anti-abortion ads to prevent hurt feelings, is there anything that could not be censored?

The decision of the Alberta Court of Queen’s Bench in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734 was issued before the holidays, and was reported on in the media earlier this month, but it has only recently become available on CanLII, and it’s worth a comment. Justice Anderson upheld, as reasonable under the framework for reviewing administrative decisions challenged for contravening the Canadian Charter of Rights and Freedoms developed by the Supreme Court, the decision of the city of Grande Prairie to deny an anti-abortion organization the opportunity to run ads on the city’s buses. She was wrong to do so, and her decision, if it is upheld or followed, will have grave consequences for freedom of expression in Canada.

* * *

Justice Anderson’s description of the ad in question is worth reproducing in full (perhaps with a Posnerian lament about the absence of pictures in legal texts):

The ad contains three images: the first of a fetus at approximately 7 weeks development, the second of a fetus at approximately 16 weeks development, and the third a blank red circle with no image. Under the first image is the caption “7-weeks GROWING”, under the second image the caption states “16-weeks GROWING” and inside the third blank image is the word “GONE”. To the right of the images is the statement “ABORTION KILLS CHILDREN” followed by a web address “ENDTHEKILLING.ca” and the name of the organization behind the ad. [5; emphasis in Justice Anderson’s reasons ― it is not clear whether it was also in the ad itself]

Justice Anderson notes that, at the time, “the City’s Transit Manager, Jason Henry, explained that City buses are taxpayer funded vehicles and that ‘this ad would be disturbing to people within our community'”. [8] The City’s asserted reasons for banning the proposed ad would change later on, however, “to ensur[ing] that hateful expression” ― indeed “hate propaganda” ― “was curtailed to protect the public from the harmful effects of such expression”. [45] The City also required advertising on its buses to comply with the  Canadian Code of Advertising Standards which “states among other requirements that ads shall not demean, denigrate or disparage one or more identifiable persons, or group of persons”. [46]

The way to assess the validity of administrative decisions said to contravene the Charter ― the freedom of expression guarantee of section 2(b) in this case ― was set out by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. There, Justice Abella explained that “[i]f, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable” [58] and thus valid. However, as Paul Daly explains, the Supreme Court’s subsequent decision in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 (about which I have written here) suggests “that there is little difference between Doré reasonableness” and ordinary Charter analysis.

Justice Anderson concluded that

the statutory objective of controlling the content of advertising on City buses is to provide a safe and welcoming transit system, as part of the municipality’s responsibility … to provide services and develop and maintain a safe and viable community. [51]

This objective was agreed to be important enough (in keeping with the Supreme Court’s decision in Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295, which considered the constitutionality of a policy prohibiting all political advertising on city buses ― and eventually found it unconstitutional). “The question”, Justice Anderson observed, “is whether the City limited the [anti-abortionists’] right to expression no more than was necessary in pursuit of the statutory objective”. [53]

Justice Anderson found that this was indeed the case. It mattered, in her view, that “a bus exterior is a location where it is almost impossible to avoid the expression” [68] ― one cannot just move and look away. Moreover, “ads on city buses are viewed in very close proximity by those who have no other means of transportation [and] by other users of the road”. [69] In short, these ads target a captive audience. As a result, they can be more narrowly regulated than other forms of expression, so as to protect “vulnerable groups”, notably “children”, who can in other cases be prevented from witnessing “upsetting images and phrases”. [72] Justice Anderson also insists that the infringement of the freedom of expression “was limited to the rejection of this particular ad. The City did not state that abortion related ads would not be permitted, nor did it preclude the [anti-abortionists] from bringing forward a different ad”. [74] She explains that she has “gone beyond the ad in this case”, looking at the website which it references, and found there “strong statements that vilify women who have chosen, for their own reasons, to have an abortion; [these statements] are not merely informative and educational”. [80] The City, Justice Anderson concluded, is entitled “to protect the general public, including children, from the harm caused by what many members of the public would view as disturbing expression in an exceedingly public space”, [81] whether or not it amounted hate speech:

[T]he ad is likely to cause psychological harm to women who have had an abortion or who are considering an abortion. It is also likely to cause fear and confusion among children who may not fully understand what the ad is trying to express. They may not be familiar with the word abortion, but they can read and understand that “something” kills children. Expression of this kind may lead to emotional responses from the various people who make use of public transit and other users of the road, creating a hostile and uncomfortable environment. [82]

Justice Anderson also briefly considered, and rejected, a number of arguments based on purely administrative law principles, but I will not discuss that portion of her reasons here.

* * *

Justice Anderson’s reasoning is disturbing if not perverse. Her claim that bus advertising is somehow impossible not to look at is odd. It is certainly not consistent with Justice Deschamps’ reasoning for the Supreme Court’s majority in Greater Vancouver, which ― although it did raise the possibility that some forms of expression might be curtailed due to concerns about their audience, did not find that bus advertising was of that nature. Her claim that a different ad could have been allowed is close to mockery ― there is no reason to think that the City would have allowed another anti-abortion ad; it certainly suggested no such thing. The ad at issue was not gruesome, violent, or explicitly derogatory of anyone; this is why Justice Anderson felt the need to “go beyond” it to support her conclusions. Quite apart from the question whether rules of judicial notice authorized her to do so, as she claims they did, the rather obvious fact is that her captive audience argument, whatever its value, does not work once one has to go “beyond” the message that the purportedly captive audience sees. Justice Anderson might not think so, but no one has go on a website just because it is mentioned in an ad. As for claims of psychological harm, Justice Anderson does not even pretend to support them with a shred of evidence. She simply makes them up.

But consider what will happen to freedom of expression in Canada if different strands of this reasoning are adopted as part of our law. It is difficult to see how Justice Anderson’s bizarre views on what makes for a captive audience do not apply to forms of advertising other than ads on bus sides ― large billboards, for example ― which could then also be censored if found to contain “upsetting images and phrases”. Censorship could be imposed on the basis of vague concepts, such as whether something is “upsetting” or “psychologically harmful” ― according, not to some scientific definition, but to the whim of a bureaucrat or a judge. Indeed, a message could be censored not only because it contains “upsetting images and phrases”, but because it leads its audience ― or a bureaucrat or judge ― to some other upsetting message. In more concrete terms, an Oxfam ad depicting an emaciated child, or an Amnesty International ad stating that “Torture disappears only when you do something about it” could be banned from public view because they contain “upsetting images” or words, or because they would cause “psychological harm” to those who do nothing to help about starving children or abused prisoners.

* * *

But, you might say, of course these ads won’t be banned. They might be upsetting, but in a good way. But that’s a subjective viewpoint. And while abortion is legal in Canada while torture is not (though failing to do anything about torture in other countries is certainly legal too), a free society tolerates appeals for the law to be changed, and for previously legal behaviours to be outlawed. The debate about abortion is not going to go away censoring one side of it. If anything, seeing the state take the side of their opponents will only make anti-abortionists more radical and uncompromising.

And beyond this specific debate, there are other disagreements in society, which sometimes cause people to speak in bitter and upsetting terms about each other. A free society is not a safe space in which authorities protect people from having their precious feelings hurt. Justice Anderson does not understand this. I can only hope that other Canadian judges still do.

Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.

Don’t Know What You’re up to

Thoughts on Ilya Somin’s take on the consequences of political ignorance for judicial review

I have recently finished reading Ilya Somin’s Democracy and Political Ignorance: Why Smaller Government Is Smarter (2nd ed). Although I was familiar with the gist of Prof. Somin’s argument from his numerous blog posts on the subject of political ignorance as well talks, such as this one, one of which I had the good fortune of attending at NYU, I found it a rewarding read. Even if you know where the argument is going, it is still well worth your while. That said, since prof. Somin has so frequently summarized his case himself, there is no need for me to do so here. Rather, I will volunteer some observations on an issue which he addresses in the book, but not, for the most part, in his blog posts: the impact of his findings on political ignorance on the issue of judicial review of legislation.

In a nutshell, prof. Somin’s general argument is that, as extensive survey evidence shows, most people are profoundly ignorant about both the organization and the activities of government. They are also unaware of crucial facts relevant to assessing these activities. Meanwhile, most of those who are not as ignorant as the rest are still incapable of correctly assessing the government’s performance because they are “fans” who are more interested in the success of their political “team” than in the search for truth. The reason this problem persists is that the costs of acquiring information and processing it in good faith are too high  compared to the benefits one might get from doing so, given that it does not matter whether one’s vote is well-informed or not: it still counts for virtually nothing. In a word, ignorance is rational. By contrast, people are remarkably able and willing to acquire information when they are considering a decision that would assuredly have an impact on them, such as where to live or what to buy. The most effective solution to the misgovernment caused by the pervasive and persistent ignorance of voters is, therefore, to devolve decision-making powers from large, centralized governments to more local ones among which people are more easily able to choose by “voting with their feet” and from all governments to the market.

This argument, which, to be clear, I find very compelling (though I should perhaps note that ― like prof. Somin, I take it ― I would support the prescriptions of smaller and more decentralized government even quite apart from the existence of political ignorance) has a couple of important consequences for debates about judicial review of legislation. For one thing, it strengthens the case for judicial review.  Enforcing limits on the power of government, as judicial review does, and perhaps especially enforcing limits set up by federal constitutions, insofar as they circumscribe the powers of centralized governments, helps preserve foot-voting and market-choice opportunities. It can also help limit the number of issues to which the government attends and thus the amount of information that voters need to acquire and process in order to keep tabs on it. For another, persistent and pervasive political ignorance undermines the case against judicial review. This case rests on the courts’ lack of democratic legitimacy vis-à-vis the legislatures whose work they check. But if voters are largely ignorant about what it is that the legislatures are up to anyway ― and prof. Somin observers that “[f]or most legislation, the vast majority of voters will not have heard of its existence, much less have an informed opinion on its merits” (184) ― then legislation’s claim to democratic legitimacy is weak if not non-existent, except in unusual circumstances.

This too is largely compelling. Even the Waldronian argument about the legitimacy of legislatures arising out of the (roughly) equal say that elections (if run fairly) give to voters in public affairs loses much of its bite if we think, as prof. Somin shows we ought to, that the voters largely do not know enough to choose their representatives reasonably well. The equality argument remains, of course, but it is a hollow one. Still, I think that prof. Somin’s arguments raise a number of questions that his book does not answer ― which is not to say that they are unanswerable.

One such question is what can be done to ensure that judicial review actually works to counteract, rather than worsen, the problem of political ignorance. Judicial review can, after all, serve to expand rather than limit the powers that the government is called upon to exercise, or to obscure the exercise of existing powers instead of making it more transparent. It will do so if courts are merrily enforcing “social and economic rights”, requiring governments to create or expand social programmes instead of leaving issues to be dealt with in the markets. It will also do so if courts blur the lines between federal and state or provincial authority, making it more difficult for citizens to know what government is responsible for what law or social programme, or give private unaccountable actors, such as civil servants’ unions, power to influence public affairs.

The Supreme Court of Canada has already done some of these things, and its parasiti ― who are, in reality, just one species of the rent-seeking genus that afflicts all specialized expert agencies, as prof. Somin notes in his discussion of delegation of power to experts ― are urging it do more. Should these suggestions be taken up, the problems of ignorance resulting from the vast scope of and difficulty of monitoring government will likely become that much worse. (This does not conclusively prove, of course, that none of these things ought to be done; perhaps there are reasons why increased ignorance is a price worth paying. The point is simply that the ignorance-related costs must be taken into account.) The answer, presumably, is some combination of “write a constitutional text that does not lend itself to ignorance-promoting interpretations” and “appoint judges who will not engage in such interpretations when not required to do so by the text”, but I wonder whether prof. Somin might suggest something more specific.

More specific solutions would be particularly important because relying on judicial appointments is really not much of a solution at all. Prof. Somin notes, elsewhere in the book, that the American public pays little attention to presidents’ performance in choosing judges, even though this is one area where (unlike in many others, such as economic policy, on which presidents are often judged) a president wields decisive influence. The problem is, if anything, much worse in Canada. Appointments to the Supreme Court attract attention only insofar as they conform to or depart from conventions about representation, whether established (i.e. regional/provincial representation) or emerging (demographic representation) and expectations about bilingualism. Other judicial appointments pass entirely unnoticed. The voters are not going to put any sort of pressure on Canadian governments to appoint judges who could enforce constitutional limits on the power of government, or otherwise contribute to counteracting the ill effects of political ignorance.

This makes me wonder whether much of anything can be done about this problem. Prof. Somin addresses some of the proposals that have been made to increase the voters’ levels of political knowledge generally, and concludes that none are likely to succeed to any substantial degree. He does not, however, consider the feasability of improving voter knowledge about specific issues, rather than as a general matter. Can something be done to make the electorate more aware of the importance of the judiciary and of the elected officials’ role in shaping it? The Federalist Society might have been somewhat successful at this in the United States, though I am not sure if even its determined efforts over the last several decades have changed popular opinion, as opposed to that of a certain section of relatively well-informed (and intensely partisan!) elites.

Last but not least, as prof. Somin also notes in his discussion of experts, ignorance is not only a problem for hoi polloi. “Expert regulators face serious knowledge problems themselves”, (215) he points out. Prof. Somin has in mind the experts’ lack of knowledge of people’s preferences and local circumstances, but another type of knowledge problem from which many experts, and perhaps especially the courts, suffer is the narrow scope of their expertise. Judges are (one hopes) experts in legal analysis, but they are as ignorant as the next person when it comes to all manner of facts and scientific theories that are relevant to policy-making ― including that which occurs in the course of policy-making. When adjudicating a trade union’s claim that its alleged right to extract above-market wages for its members is an instance of the freedom of association, it would help judges to have a basic understanding of labour economics. But they do not. When adjudicating claims about the police’s power of search incident to arrest, it might help judges not to think that crime rates are going up when they are in fact going to do. But they do. In many ways, judges are every bit as ignorant as the rest of us. So are lawyers, who thus cannot enlighten the judges before whom they litigate. Here again, I wonder if prof. Somin has any suggestions about relieving ignorance.

Prof. Somin’s discussion of expert decision-makers concludes that, while delegating decision-making powers to them may help counter some of the effects of the voters’ ignorance, it is no panacea. Although this discussion only mentions courts in passing, the conclusion, I am afraid, is applicable to them. Prof. Somin has put his finger on a very significant problem and it might be, if anything, even more intractable than his (already rather gloomy) account suggests. Still, if we are to do anything about, we must start by understanding what the problem is, and for helping us do so, we owe prof. Somin greatly.

Says Who, Again?

Peter McCormick on why “by the Court” decisions matter – and who wrote them.

A few years ago, I blogged about an attempt to unmask the authors of “per curiam” opinions of the Supreme Court of the United States by having a computer identify individual judges’ word use patterns. Although I was skeptical about the value of the exercise, I noted that if, as its authors suggested, the attribution of opinions to the Court rather than to individual judges is indeed cause for concern, then

we in Canada have a problem ― and need somebody to replicate their study for our own Supreme Court a.s.a.p. [because] [f]or over 30 years, it has had the habit of issuing opinions ‘by the Court’ in the most important and controversial cases”.

In a couple of articles published last year, Peter McCormick takes up the double challenge of identifying the authors of the anonymous decisions of Supreme Court of Canada issued since Beverley McLachlin became Chief Justice, and of describing the overall history of such decisions (including those signed by all of the judges in a majority, such as the one in l’Affaire Nadon), going back to when they first became a significant factor in the Supreme Court’s jurisprudence.

Prof. McCormick details this history in  “‘By the Court’: The Untold Story of a
Canadian Judicial Innovation“. Although the device of unanimous and anonymous decisions has been in use for almost as long as the Court has existed, it is only in the 1960s that it was deployed in significant cases, rather than minor procedural ones. And it was, prof. McCormick suggests, something of an accident. The Court issued its first anonymous opinion, signed by the eight members of the majority, in Reference Re: Steven Murray Truscott, [1967] SCR 309, in which as prof. McCormick puts it, the government was asking the court, “Had you heard the appeal that you denied leave to eight years ago, would you
have allowed it?” (1057) In an “extraordinary” (1058) attempt to save face and resist the accusation implicit in the question, the majority issued a “joint opinion” signed by each of its members. Shortly thereafter, the precedent was applied when the Court delivered its opinion in Reference Re: Offshore Mineral Rights, [1967] SCR 792, signed this time as “the joint opinion of the Court”, and again a dozen years later, in Att. Gen. of Quebec v. Blaikie, [1979] 2 SCR 1016 ― a “revival” that prof. McCormick credits to Justices Martland and Ritchie.

Blaikie was followed by the trickle of “by the Court” opinions that has not stopped to this day: prof. McCormick counts “fifty of these in the forty-eight years since 1967, a number
that shrinks to forty-five if we treat companion cases … as single examples”. (1059) Not all of these opinions are very significant; there have been cases where the choice of unanimity was “clearly less a matter of strategic choice than of administrative convenience … where a judgment simply could not be attributed in the normal way” (1064) due to the death or health problems of their true authors. But most of the anonymous decisions were in important cases, largely in various areas of constitutional law. Many unanimous opinions were delivered in response to reference questions asked by the federal government, especially when the Supreme Court was unanimous. Others arose in “cases that deal with issues that relate directly to the judiciary as an institution”, (1075) or indeed specifically with the Supreme Court ― although, as prof. McCormick notes, there have also been many cases dealing with judicial independence that were not anonymous, including the notorious Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3. And, under the long leadership of Chief Justice McLachlin, the Supreme Court’s use of anonymous opinions is arguably more vigorous than ever.

Does this matter though? Prof. McCormick insists that it does. The “packaging” of court decisions, as well as their “content”, is significant;  “the mode of presentation” of the Supreme Court’s decisions is “the product of conscious and shared choices” (1052) by the judges, not an accident. Because the Court matters, these choices matter too. The choice to present a judgment as the opinion of the “the Court” itself, rather than any individual judge, represents the extreme case of the Court’s collective ethos prevailing over the individual ambitions of its members, and is inextricably linked to the Court’s positioning itself as an institution to be reckoned with, especially in references where the Court acts as “a unified institution providing the other half of a conversation about national governance with the federal government”. (1074) Moreover, such a choice “flatly repudiates [the] expectation”, nearly universal in common law jurisdictions, that a judge will take responsibility for his or her decisions and can be praised or criticized for them: “the whole point is that no single judge is identified and no individual accepts responsibility”. (1054)

But prof. McCormick’s other article, “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?”(2016) 39 Dal LJ 77 (not freely available, alas), seeks to make sure that the judges face the music, if only belatedly. Like the American paper on which my original post about “by the Court” opinions was based, it uses linguistic analysis to identify the likely authors of anonymous opinions ― in prof. McCormick’s case, those of the Supreme Court of Canada since Beverley McLachlin became Chief Justice. This should give us an insight into “how the Court is evolving in its decision-making and equally important decision-explaining process”. (84) Is the process of reaching decisions attributed to the Court as a whole the same as with other cases, or is it somehow different (for example, with an even more important role for the Chief Justice)?

The attempt isn’t entirely successful: prof. McCormick is only able to identify a “probable” author for a little more than a third of the decisions that he has analyzed. For most of the others, he points to two, and in a couple of cases to three “possible” authors. (It is of course possible that these decisions were jointly written, as some of the Court’s attributed decisions are, but it seems unlikely that all were.) And even when prof. McCormick points to a single “probable” author, this is not always a clear finding. Still, it’s an impressive achievement. For instance, prof. McCormick points to Chief Justice McLachlin as the “probable” author of both the majority opinion in l’Affaire Nadon and the Court’s opinion in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. The Chief Justice is likely to have written or co-written many of the other “by the Court” decisions too, with a few other judges also more regular likely authors than others. Prof. McCormick concludes that more research would be warranted into the issue and, given both his partial but real success and the remaining uncertainties, it is hard to disagree.

Overall, prof. McCormick has persuaded me that my previous rather casual dismissal of the importance of this issue was misguided. “By the Court” decisions matter, as he says, because it matters how power ― including judicial power ― is exercised. While I often accept the need for confidentiality, even secrecy, in the working of government (including the courts), any given instance where government seeks to withdraw information ― perhaps especially information that it normally makes available, such as the identity of the author(s) of judicial opinions ― deserves scrutiny. An institution engaged in information-withholding should be prepared to justify itself. The Supreme Court does not do that. So long as it does not, at the very least, it should not be surprised at receiving some extra scrutiny, welcome or otherwise.

Quisque?

Would term limits for Chief Justices be a good idea?

Yesterday was the 17th anniversary of Beverley McLachlin’s appointment as Chief Justice of Canada. The Supreme Court’s account issued a celebratory tweet. And for my part, to visualize this length of time, I headed over to the Internet Archive to find what the Court’s website looked like in early 2000. A worthy exemplar of fin de siècle web design it was.

scc-2000

But, on a (slightly) more serious note, I have also been asking myself this question: is it a good idea for a Chief Justice to remain in this position for so long? This isn’t, mind you, a dig at Chief Justice McLachlin, or at least it isn’t only that. I have my differences with her, but the issue here isn’t a personal one. It’s about whether the position itself is such that no person, whoever she or he may be,  should occupy it for such an extended period of time.

Admittedly, Chief Justice McLachlin’s tenure, although record-breaking in Canada’s history, isn’t exceptionally long in a comparative perspective. Indeed, our Chief Justice is not even the longest-serving one among her current peers. New Zealand’s Sian Elias was appointed on May 17, 1999 (although she was the Chief Justice of the Court of Appeal at the time, and New Zealand still retained appeals to the Privy Council, the Supreme Court of New Zealand only being created in 2003, at which point the senior Court of Appeal judges were promoted). And while Chief Justice McLachlin’s tenure will soon overtake that of Warren Burger as Chief Justice of the United States, she will not quite catch William Rehnquist before she retires ― never mind John Marshall, who was Chief Justice for more than 34 years.

Still, one can wonder whether this all might be too much of a good thing. Now, I think that the Canadian approach to judicial terms ― appointing judges until a fixed retirement age ― is generally the right one. (Other Commonwealth countries, including New Zealand, generally follow this approach too.) Appointing judges for a fixed term, even a long one, means that, unless they are appointed at a relatively old age, they will be looking for post-bench employment, which is not especially conducive to independence in office. If the term is renewable, the problem is that much worse. Conversely, life-time appointments with no age limit, like those of federal judges in the United States, allow judges to continue in office longer than is probably good for them and, more importantly, for everyone else, as the recent escapades of Justice Ginsburg and Judge Posner demonstrate. But it’s not clear that the office of Chief Justice should be treated in the same way as that of an ordinary judge.

It is, after all, perfectly conceivable that a judge will become Chief Justice of his or her court for a time, and then return to the position of an ordinary ― or, in the language of the Supreme Court Act, puisne ― judge. Indeed, this is precisely the approach taken to the lower federal courts in the United States, where the Chief Judges of the Circuit Courts serve in that position for seven years or until they turn 70. Put the details ― the length of the term, and whether there should be an age limit where judges are already subject to mandatory retirement ― to one side. The question of whether Chief Justices should be individually chosen, as they are now, or selected pursuant to an automatically applicable rule, as the Chief Judges of Circuit Courts are, is also secondary. What I’m interested in is whether, once chosen in whatever fashion, a Chief Justice should retain that position so long as he or she remains a judge or only for a fixed term.

Unlike fixed terms for the tenure of ordinary judicial office, I do not think that such a rule would raise any concerns about judicial independence. There would be no question about what the soon-to-be-former Chief Justice is going to do next, or any reason to worry about his or her currying favour with a successor. A more serious concern might be whether a fixed-term Chief Justice would be weaker than an indefinite-term one when staring down other branches of government, as Chief Justice McLachlin had to do when the federal government sought to cast aspersions on her and her court’s integrity in the aftermath of l’Affaire Nadon. But I doubt that a Chief Justice’s position in such an unfortunate circumstance is meaningfully strengthened by the absence of a term limit. Again, provided that at the end of his term he or she simply reverts to being an ordinary judge able to serve until retirement age, the Chief Justice would be no more vulnerable to the government’s pressure than Chief Justice McLachlin was. In short, I do not see much of a downside to fixed term appointments to the position of Chief Justice ― though perhaps I am missing something.

As for upsides, they are admittedly speculative, but they might nevertheless be worth pursuing. A Chief Justice’s powers are narrow, but they are powers all the same, notably that of assigning the writing of opinions. And all power ― not only absolute power ― tends to corrupt. It is probably best if a single person does not exercise power for decades on end ― for the institution over which that person presides, the persons whose fates that institution decides, and indeed that person her- or himself. Moreover, in addition to the corrupting effects of power, a Chief Justice is also liable to be influenced by her or his position as the representative of the court, and indeed of the judiciary more broadly. Chief Justices are liable to see their loyalties as being primarily to the institutions they head, rather than to the law; they dislike it when their colleagues dissent; they might vote with an eye to their court’s standing and be tempted to twist arms if not break legs to get their colleagues to go along. These tendencies may be understandable, and perhaps even useful to some extent, but they can also become toxic if they are too strong. And it seems reasonable to suppose that the longer a person remains in the position of Chief Justice, the more he or she gets used to seeing the world from the distinct, and not always healthy, perspective that this office gives. Limiting the time during which a judge is put in this special position may check these tendencies, again to the benefit of all concerned.

Take this for what it’s worth ― it’s only me thinking out loud. And of course, should anyone take up the suggestion, the question of whether implementing it could be done by amending the Supreme Court Act or requires an amendment pursuant to par 42(1)(d) of the Constitution Act, 1982 would have to be faced. (The short answer to that question is “Who knows?”.) As it is, Chief Justice McLachlin is bound to retire by September 2018. But if the Prime Minister chooses to appoint one of the Québec judges to succeed her, then the next Chief Justice’s term might be even longer than hers.

New Year, New Look

For 2017, Double Aspect has a new look and a new address

This is just a quick note to let my readers know that I’ve given the blog’s look an update. Nothing crazy, but I hope that it looks better than it did before ― or at any rate that it looks reasonably well. If you have any concerns please let me know.

In addition, the blog now has a new URL ― doubleaspect.blog. You don’t actually need to update your bookmarks, as you’ll be automatically redirected to the new address even if you go to the old one, but if you want to save yourself that fraction of a second, then go ahead.

I don’t suppose my posts were much missed during the holidays, which I hope were happy for all. But now that that’s over, I will resume normal blogging in short order. Happy 2017, everyone!