A Voice of Moderation?

Thoughts on the Chief Justice’s Speech on “Democracy and the Judiciary”

Her court might not be very busy ― it had decided only 19 cases this year through May 31, the lowest number this century ― but Chief Justice McLachlin certainly is. Another Friday, another speech. After the one she gave at the Université de Montréal‘s symposium on Supreme Courts and the Common Law, there was one given on June 3 at the Empire Club of Canada. I criticized the Chief Justice’s remarks at the Université de Montréal over at the CBA National Magazine’s blog, because to me they suggested a misunderstanding of and a lack of belief in the common law, and indeed the Rule of Law itself. The Empire Club speech, in which the Chief Justice outlined her views of the history, current role, and future challenges of what she called “the third branch of Canadian governance [sic] – the judiciary” at times struck a different tone. Yet it too contained its share of historical mistakes, and ultimately was less of a statement of judicial moderation than it was perhaps supposed to be.

One interesting, and arguably telling, historical inaccuracy occurred in the Chief Justice’s description of the history of judicial independence. The Chief Justice traced this constitutional principle to the thought of

jurists like Lord Coke, who maintained that the task of judges was to apply the law as they saw it, not to do the King’s bidding. These jurists took the view that to do justice between the parties in the cases that came before them, judges must not only be impartial, but be seen to be impartial. And for impartiality, actual and perceived, they must have guarantees of independence, notably, fixed terms of appointment, fixed salary and security of tenure.

There is some truth here. Coke did value adjudicative impartiality ― indeed, as Fabien Gélinas has pointed out (at 12), it was Coke who popularized, and perhaps even coined, the maxim “nemo iudex in causa sua.” And, in Prohibitions del Roy, Coke took the position that judges had to decide cases according to law, and that the King, not being learned in the law, could not adjudicate. But it would have come as news ― though perhaps welcome news ― to Coke that judges must have guaranteed tenure. He was, after all, dismissed from judicial office after one run-in too many with James I, and that king’s son and grandchildren were also quite adept at dismissing recalcitrant judges. Judicial independence and security of tenure did not become part of the English constitution until the Act of Settlement, 1701. Importantly, as Peter Cane explained at the Supreme Courts and the Common Law symposium, it was part of a bargain of sorts whereby courts, as well as the Crown, submitted to Parliament and acknowledged its sovereignty. It may well be that the Chief Justice is just a little unclear about 17th-century constitutional history ― but it is still noteworthy that she is unclear in a way that elevates the role of jurists and judges, and obscures that of Parliament.

The Chief Justice’s take on Canadian legal history is also curious. She claims, for instance, that “[f]or eighty years after Confederation, Canada’s legal system functioned as a shadow replica of England’s legal system,” in that “England’s laws became Canada’s laws.” This is an exaggeration. The Canadian judicial system was never quite a replica of the English one (there being no distinct courts of equity, for instance) (UPDATE: See Jan Jakob’s comments below), and the Colonial Laws Validity Act, 1865 made clear that British legislation did not apply in Canada and in other colonies unless it was specifically intended to. The Chief Justice also seems to suggest that the Supreme Court was an afterthought for the fathers of confederation, saying that “befitting its secondary status, [it] wasn’t created until 1875.” Yet the majority opinion in l’Affaire Nadon, which the Chief Justce co-signed, points out that the issue was in fact considered, although “[a]t the time of Confederation, Quebec was reluctant to accede to the creation of a Supreme Court because of its concern that the Court would be incapable of adequately dealing with questions of the Quebec civil law,” [50] and that Sir John A. Macdonald “introduced bills for the establishment of the Supreme Court in 1869 and again in 1870 in the House of Commons.” [79] The Chief Justice seems to take a rather dismissive view of the early days of Canada’s early legal system in order to extol the modern Supreme Court. This rhetorical move is similar to the one she made in her Université de Montréal speech, in which she contrasted the supposed reasoning styles of pre-20th-century and modern common law judges. Yet in both cases, the contrasts are less stark, and the continuity between old and new is more important, than the Chief Justice lets on.

Another statement of the Chief Justice that is worth discussing is her assertion that the fact that “[i]n the lead-up to 1982, the government of the day took as its goal the creation of a ‘just society'” was a “major change[] to the Canadian legal system.” For one thing, the Chief Justice’s chronology might be a bit off again ― Pierre Trudeau first ran on the “just society” slogan in 1968. (In 1972, a heckler asked him where it was. Trudeau retorted that he should ask Jesus Christ, who’d promised it first.) More importantly though, I do not  understand how a political statement by the government of the day can amount to a “major change to the … legal system.” The Chief Justice seems to be saying that Trudeau’s articulation of the just society is some sort of benchmark by which to assess the progress of our polity, but even assuming that that is true ― and a great many people would disagree ― I still don’t see how benchmark is a legal one. Of course, to some extent Trudeau’s ideas are reflected in the Canadian Charter of Rights and Freedoms ― but the Charter was never meant to provide a complete code of social justice, 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.

It also seems to me quite inappropriate for a judge to take up what was, for better or for worse, a partisan slogan and try to make it into a constitutional ideal. By doing so, the Chief Justice only gives grist for the mill of those who already think that the Charter, and the courts that enforce it, are essentially Liberal self-entrenchment devices. As I wrote in a Policy Options Perspectives post a few months ago, it is dangerous to associate a part of our constitution with a political party ― and that party’s changing fortunes. When these fortunes sag, the constitution must retain its exalted position as the protection of our rights. I urged impartial observers to keep that in mind and avoid associating the Charter with the Liberal party. I had no idea that the Chief Justice of Canada, of all people, would need the same reminder.

While the Chief Justice’s take on Canadian legal history stresses the Supreme Court’s independence and importance, and perhaps stakes out for it a role as an engine of social progress, her other comments seem intended to show that the Court is actually a modest institution aware of its place in the constitutional structure. Along with other institutions, says the Chief Justice, the Court must strive “to maintain the proper constitutional balance between the judiciary and the legislative and executive branches of governance.” It is “Parliament and the provincial legislatures,” not the courts it seems, that “are pre-eminently suited to” “make law” ― quite a contrast to the Chief Justice’s enthusiasm, in the Université de Montréal speech, for judicial development of the law. Moreover, when reviewing the constitutionality of legislation,

courts … must approach the laws adopted by Parliament and the legislatures with due deference for their preeminent law-making role and their ability to arrive at optimal solutions through debate and research. Such deference is particularly important on complex social and economic issues.

Similarly, when reviewing administrative decisions, “the courts show appropriate deference for the expertise and mandate of administrative actors and agencies.”

What to make of this description of a modest judicial role, which seems to stand in tension with the Chief Justice’s claims regarding the exalted standing of the courts ― and her rather ambitious remarks made a week previously? Perhaps the modesty is a sham, or a sop to the particular sensitivities of last week’s audience (though I don’t know what these sensitivities are). But it seems to me that there is more to it than that. The Supreme Court really does believe in and practice deference to both legislatures and the executive when reviewing their decisions ― although it does so inconsistently.

Sometimes it is bold, as when it strikes down laws that try to limit the government’s expenditures on courts on the basis of little more than constitutional principles. Sometimes it is meek, as when it insists that it will not require administrative decision-makers to apply the law correctly, never mind the facts. And it is not always easy to anticipate which it is going to be in a given case ― or even to tell which it is in an already-issued opinion. (I’m thinking, for instance, of Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, of which I could never tell whether it was a capitulation disguised as a threat, or a threat disguised as a capitulation.)

Perhaps the Chief Justice believes in a sort of departmentalism-lite, whereby each branch of government is presumptively entitled to make its own legal and constitutional determinations but, unlike with real departmentalism, the courts keep the last word if they think that the other branches are really wrong. Such a doctrine might reconcile the exaltation of the Supreme Court, and a belief in the judges’ right to do as they please with judicially-articulated doctrines, with the insistence on deference to the other branches of government. (It would also fill the empty cell in the little table of attitudes to judicil review that I offered here, to sit alongside “conservative” or Diceyan, “progressive,” and “classical liberal” or “libertarian” approaches.) Never mind whether such a doctrine is good or justified. (I don’t think it is.) The Supreme Court is, again, too inconsistent to claim its mantle.

Maybe there is some other way to make sense of the Chief Justice’s speeches. In any case, it is worth saying that the seeming inconsistency of her positions is in itself a source of discretionary if not arbitrary power. Benjamin Oliphant and I have described the same phenomenon in the realm of constitutional interpretation in our work on originalism: the Supreme Court fails to adhere to any interpretive methodology with much consistency, and thereby maintains a roster of alternative approaches on which it can draw at its convenience, while avoiding scrutiny and criticism for deviating from previously-articulated principles. Whether or not they are intended to achieve this, the Chief Justice’s  speeches present a number of different conceptions of the Supreme Court and its role, which allows it to strike whatever pose it deems appropriate in any given case. This may be to the advantage ― the short-term advantage, anyway ― of the institution that Chief Justice McLachlin leads, but this advantage is gained at the expense of principle, transparency, and ultimately the Rule of Law itself.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota