Day Five: Gerard Kennedy

Visiting Doctoral Researcher, NYU School of Law

When asked to write about what I considered the Supreme Court of Canada’s “worst” decisions of the past several decades, I was somewhat reluctant. One must always tread a fine line between criticizing flawed reasoning and the rule of law that the Court symbolizes. But hey… it’s Christmas and there’s already enough cheer to go around!

There are admittedly different metrics which one could use to fairly rank decisions for being “worst”. Uniting these five is a personal dislike, whether from teaching, scholarship, or practice. This personal relationship, as well as excluding overruled decisions, does lead to emphasizing recent decisions.

Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395

Doré famously held that the traditional Oakes test analyzing reasonable limits on Charter rights does not apply in the administrative law context. Rather, a “robust” reasonableness analysis applies instead.

Double Aspect readers need no introduction to the problems that reasonableness review can pose for the rule of law (e.g., here and here). I have written about this myself elsewhere. This is particularly problematic in the constitutional realm, as justifications that the legislature must provide for infringing a Charter right are greater than those that the executive must provide, despite: a) the legislature being democratically accountable unlike the executive; and b) the legislature giving the executive its power in the first place.

Perhaps more consequentially, Doré enshrined the concept of “Charter values” into Canadian law. These are part of the Canadian constitution only insofar as they are incorporated in the Charter rights. But Doré suggests they can be an independent source of “conflict” with the actual rights of the Charter.

As I and others have noted before, there are also frequent instances of judges ignoring Doré – including Supreme Court judges themselves. That’s sign of a problem.

Reference re Supreme Court Act, ss 5 and 6, [2014] 1 SCR 433, 2014 SCC 21

The “Nadon Reference” is most remembered for the spat that occurred between the Prime Minister and Chief Justice after the decision. While Stephen Harper behaved unprofessionally during this episode, the reasoning that voided Marc Nadon’s appointment to the Supreme Court is perhaps its most internally inconsistent.

Taken as a stand-alone sentence, one could read s. 6 of the Supreme Court Act (“At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province”) as excluding Federal Court of Appeal judges who had been members of the Quebec Bar. But a tiny bit of context reveals this interpretation is disingenuous, including (but not limited to):

  • 6’s purpose is to ensure expertise in Quebec civil law – which Quebec Federal Court of Appeal judges manifestly have (there is mandatory Quebec representation on the Federal Court of Appeal for this reason);
  • to read s. 6 as divorced from s. 5 (“Any person may be appointed a judge who is or has been a judge of a superior court […] or a[n] advocate of at least ten years standing”) suggests that a Quebec lawyer could be appointed to the Supreme Court after articling – it was hard to disagree with Justice Moldaver’s witty dissent that the majority’s incorporation of the ten-year requirement but not the past tense possibility from s. 5 into s. 6 being “an exercise in statutory interpretation heretofore unknown”;
  • the reasoning means that Justice Nadon would have been eligible to be appointed to the Supreme Court in 1993, but not 2013; and
  • he would have been eligible had he been appointed to the Quebec Court of Appeal (which the Supreme Court later acknowledged was legal), and then a day later appointed to the Supreme Court. The Supreme Court simply dodged this absurd implication.

CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227

Something was awry in 1970s administrative law with judges ignoring obvious statutory language requiring deference. As such, in 1979, the Supreme Court held in CUPE that administrative decisions could only be reviewed if “patently unreasonable”. Had I been a scholar of administrative law in 1979, I may have hailed CUPE as an excellent innovation.

Unfortunately, this cure for admittedly inappropriate judicial actions may be worse than the disease. As Audrey Macklin has recently observed, this “standard of review” language is not found in legislative text or common law tradition. What has spawned is forty years of frustration on the question of standard of review (where in the modern administrative state certain executive decisions should be deemed to fall, something courts have limited expertise in). We could instead have refined our statutory interpretation to determine whether particular statutes require deference to administrators (a straight-up exercise in statutory interpretation for which judges are eminently qualified).

Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557

While CUPE may have been a crude innovation encouraging respect for legislative intent, Pezim actually perverts legislative intent. In this 1994 decision, the Court, building on earlier case law, concluded that the rationale for deferring to administrators applies even when the legislature gives a right of appeal analogous to the right to appeal a judicial decision.

Administrators may well have expertise in particular areas of law, and their reasons are entitled to “careful consideration.” But this kind of “deference” is akin to the “deference” given to advocates making astute submissions, such as Marie Henein in criminal law, or a lower court judgment synthesizing the law particularly well, such as Justice Paul Perell in class actions. Conflating these two types of deference is wrong in principle and has been confusing in practice.

R v Hape, [2007] 2 SCR 292, 2007 SCC 26

Does the Charter apply to the actions of Canadian actors extraterritorially? Thanks to Hape, no one really knows. The Court managed to be tremendously broad and tremendously narrow at the same time, confusing academics ever since (notably John Currie: see, e.g., here and here). I was left so confused during my LL.M. that I changed specialties for my doctorate!

The majority of the Court held that the Charter did not generally apply to actions of Canadian officials abroad. This is odd given that s. 32 of the Charter says it applies to government action, without geographical limitation. Even stranger was the number of exceptions the Court suggested could apply, including if government officials act contrary to international human rights law: an enormous body of law with significant overlap to the Charter that has led to further litigation (e.g., the Khadr affair).

The Court also spent paragraphs analyzing precedent to come to the holding that customary international law (another enormous body of law) “may” be incorporated into Canadian law through the common law, with this also being an “aid” to the interpretation of legislation. Profound and almost meaningless at the same time.

While much more nuance would be required to adequately explain my views on these cases, they symbolize my least favourite Supreme Court decisions of the past forty years.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

4 thoughts on “Day Five: Gerard Kennedy”

  1. I believe there is a transposition error in the following paragraph:

    “Double Aspect readers need no introduction to the problems that reasonableness review can pose for the rule of law (e.g., here and here). I have written about this myself elsewhere. This is particularly problematic in the constitutional realm, as justifications that the legislature must provide for infringing a Charter right are less than those that the executive must provide, despite: a) the legislature being democratically accountable unlike the executive; and b) the legislature giving the executive its power in the first place.”

    I believe the intended phrasing is “justification that the executive must provide for infringing a Charter right are greater than those that the executive must provide”.

    I might be wrong though.

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