Yesterday, the Federal Court delivered a decision declaring that the Canadian government has a constitutional duty to ensure timely judicial appointments and setting out specific targets to attain: Hameed v Canada (Prime Minister), 2024 FC 242. The outcome is a startling one, but it is Justice Brown’s reasons that are truly remarkable, and not in a good way. The outcome, indeed, might even be defensible, at least in part, though I doubt it. But Brown J’s reasons are pernicious.
Hameed is something of a constitutional law professor’s crazy exam hypothetical. The bottom line is simple enough. The federal government has long been slow to appoint judges to vacancies that arise, despite warnings from the legal community and indeed entreaties from various institutions and leaders, including, notably, a strongly-worded letter from the Chief Justice of Canada. Is this tardiness unconstitutional on the basis that the government has a duty to fill judicial vacancies promptly as they arise? But to answer this question, or more precisely for the federal court to answer this question, an impressive number of issues need to be addressed, from standing, to federal court jurisdiction, to evidentiary issues, to the nature of the alleged duty, to the remedy. And pretty much each of these issues falls somewhere on the spectrum from not-altogether-straightforward to really quite complex.
The substantive heart of the case, however, has to do with just two issues. First, is the government’s failure to ensure timely judicial appointments judicially reviewable in principle? And second, if it is, is there a judicially administrable standard by which the constitutionality of government inaction regarding judicial appointments might be assessed? This framing, to be clear, is mine, not Brown J’s, and heavily influenced, on the one hand, by the UK Supreme Court’s decision in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373, and on the other, by Mark Walters’s illuminating article on “Judicial Review of Ministerial Advice to the Crown“, neither of which is cited in Hameed despite their relevance.
In this post, I describe Brown J’s approach to these two issues and explain why it is wrongheaded. In a follow-up post, I will explain why, nonetheless, the outcome of the case on a proper approach to these issues is a close issue that deserves much more careful thought than Brown J has given it.
Whether the government’s role in ensuring timely judicial appointments is justiciable at all, let alone in the Federal Court, is a difficult issue because of the involvement of constitutional conventions. Brown J draws on the Federal Court’s discussion of these conventions in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which found that
By constitutional convention, when appointing judges to provincial superior courts, the Governor General acts on the advice of the Committee of the Privy Council of Canada. Similarly, the [Governor in Council], which appoints judges to the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada, is defined in the Interpretation Act … as the Governor General acting on the advice or consent of the Privy Council for Canada. The Privy Council is composed of all the ministers of the Crown, who meet in the body known as Cabinet … As such, all federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice … In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet. [9]
Unfortunately, this description contains two important mistakes. The most glaring but less consequential one lies in the description of the Privy Council as “composed of all the ministers of the Crown, who meet in the body known as Cabinet”. As Professor Walters explains,
The Privy Council for Canada is established by section 11 of the Constitution Act, 1867 and consists of all present and former ministers of the Crown as well as a variety of other members. … [I]t is only by virtue of convention that the legal powers conferred upon the “Governor in Council” are exercised by the Governor and present cabinet ministers. (34; emphasis in the original)
In other words, the Cabinet is the political, conventional entity through which the legal body that is the Privy Council acts; they are not the same. The second mistake is more subtle but more consequential: it consists in conflating judicial appointments by the Governor General and those by the Governor-in-Council. I will return to it in the follow-up post, though you will know what I’ll say there if you read Professor Walters’s article in the meantime.
Back to Brown J’s reasoning. On the orthodox view of Westminster-type constitutions, constitutional conventions are, in Dicey’s famous words, “not in reality laws at all since they are not enforced by the courts”. Is it the case, then, that in asking the court to require the Cabinet to provide its conventionally-mandated advice to the Governor General, the applicant is seeking to have a convention enforced, which cannot be done?
Brown J says no. He cites the Patriation Reference (though he at times misnames it as the Repatriation Reference), Re Resolution to Amend the Constitution, [1981] 1 SCR 753, for the proposition that while courts cannot enforce a convention, they can issue a declaration stating its import. Moreover, the conventions regulating judicial appointments
form part of Canada’s federal constitutional common law in the sense they are judge-made rules which the courts are entitled and may recognize in the appropriate case through the Court’s declaratory power, notwithstanding they are not laws that may been [sic] enforced by the courts. [122]
A breach of this “federal constitutional common law” by the Cabinet is reviewable by the Federal Court, in the same way as a breach of any federal law by a federal official is reviewable under the Federal Courts Act.
This is fundamentally wrong. As a matter of positive law as well as learned orthodoxy, it is absolutely not the case that conventions are a form of “constitutional common law”. Indeed, the majority opinion on the legal question in the Patriation Reference explicitly rejects this very view. In dismissing the idea of a “crystallisation” of conventions into legal rules, it says:
The leap from convention to law is explained almost as if there was a common law of constitutional law, but originating in political practice. That is simply not so. What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute. (784)
As I will explain in the follow-up post (and as longtime readers will know), I am no fan of the Patriation Reference legal question majority. But it is binding on Brown J, whether he is a fan of it or not! He does not refer to this passage, which strikes me as very poor judicial craft. Moreover, the one thing that the Patriation Reference unquestionably does get right is that conventions “originat[e] in political practice”; in no way, shape, or form are they “judge-made”. As the UK Supreme Court put it in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 “[j]udges … are neither the parents nor the guardians of political conventions”. [146] One can object to the “guardians” bit; but it undeniably true that judges are not the “parents” of constitutional conventions.
And the idea of common law rules that aren’t enforceable by courts makes no sense at all; statutory provisions can be made unenforceable (as parts of the Official Languages Act used to be), but the common law doesn’t exist apart from judicial enforcement. If conventions are just common law rules, then they are in principle enforceable, subject to justiciability concerns in specific cases, and not merely declarable.
Brown J’s treatment of the issue of the standard by which to assess the government’s inaction is, if anything, even more cavalier. He points out that “Parliament has determined what it considered an appropriate number of judges required by the Superior Courts, including the Federal Courts, …. in legislation authorizing that number of appointments” and that failure to appoint these judges not only undermines the judiciary but also amounts to “Canada’s executive government … ignor[ing] the express will of Parliament”. [126] I have no quarrel with that ― on the contrary, this is an important point for, at the very least, the government to consider, whether or not it can also give rise to judicial remedies. But what follows is not so sensible.
The key passage deserves to be set out at some length. Brown J writes that
[T]he acknowledged constitutional convention that it is the exclusive authority of the Respondents to advise in respect of vacancies necessarily implies the related constitutional convention that judicial vacancies must be filled as soon as possible after vacancies arise, except in exceptional circumstances.
In this connection, nothing suggests Democracy Watch, which affirmed the existence of the convention, is the last word on the subject. …
[T]he Court should now recognize that the relevant constitutional conventions include not only the responsibility to take steps to fill vacancies as soon as possible, but in this appalling and critical situation, to materially reduce the present backlog to what it was as recently as the Spring of 2016, that is to reduce the vacancies to the mid-40s across the federally appointed provincial Superior Courts and Federal Courts. [129-131]
This is just terrible. A court cannot simply will “conventions” into existence because they would be useful. The most charitable interpretation I can give to Brown J’s approach here is that he is getting high on his own supply, namely on the confusion between conventions and “judge-made” common law. But, pace Bentham, even those who would describe the common law as being “judge-made” (not an uncontroversial description), would not countenance such blithe creation of new common law rules for no other reason than their seeming desirability. At the very least, there are concerns about the limits of the judicial role in the development of the law that must be addressed.
If one accepts that it is appropriate for courts to address constitutional conventions, then one must adopt a rigorous approach to identifying them. Indeed, this is no different from what a court will do when dealing with common law or statutory rules ― it will carefully analyse precedents or interpret the legislature’s words, and not just say that a rule must exist to deal with this or that exigency. The methods for identifying the relevant rule vary depending the rule’s type, but not the need for a method.
There are two methods for identifying conventions. The easy one is by relying on authorities ― one can think, for example, of Andrew Heard’s magisterial book Canadian Constitutional Conventions. The harder one, given the imprimatur of the majority opinion on the conventional question in the Patriation Reference, is a test first developed by Sir W. Ivor Jennings, which asks whether there are precedents for the alleged conventional rule, whether the constitutional actors involved followed the rule out of a sense of obligation, and whether there is a constitutional reason for the rule.
Brown J doesn’t even pretend to follow either of these methods for identifying the purported convention requiring prompt judicial appointments. He points to no authority. Nor does he identify any precedents. This case, of course arises precisely because the government evidently does not follow the alleged rule and does not consider itself bound to do so. Now, that is not fatal: the Patriation Reference also arose out of the actions of a government that refused to recognize and be bound by a conventional rule. But there the Supreme Court pointed to a long course of past practice and acknowledgment of its binding character. That is entirely missing from Brown J’s reasons.
He thinks that he can simply conjure up a convention nobody’s thought of before, because past decisions don’t get “the last word on the subject”. But the question isn’t whether a case is “the last word”. It’s what conventions actually exist out there in the real world. It is bad enough when courts start “giv[ing] constitutional benediction” to new rights whose time they think has come, as the Supreme Court did in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245. But awful as that was, still the words of the constitutional text, however distorted from their original meaning, provide some modest measure of constraint even on wilful interpreters. If courts can give benediction to dreamt up conventions, there really isn’t anything they cannot add to the constitution just because they feel like it.
I cannot help but think that Brown J was so completely blinded by what he perceived as the practical necessities of the situation as to cut every corner imaginable on the way to a result of whose vital importance he was convinced. He begins his judgment by asserting that “[a]t its core, this matter concerns” the Chief Justice’s letter to the Prime Minister regarding the pressing need for judicial vacancies to be filled. [1] He is determined not to “allow the current untenable and crisis number of vacancies to remain unacceptably high with the negative consequences set out in the letter”. [126]
But that’s not how this judging business works. A court case is never about a letter sent by a non-party. I hesitate to speak to the letter’s admissibility, not only because this post is long but also, and more importantly, because the law of evidence is not my forte. But let me just note my puzzlement at Brown J’s repeated reference to that letter as “expert opinion” [12] and indeed “expert evidence” [124] when the Chief Justice wasn’t a witness. Be that as it may, a court case can only ever be about the law. Brown J lost sight of that altogether, and produced one of the more staggering judgments I can think of in a long, long time. (I should note, in fairness, that, assuming his account of the parties’ arguments is complete, he may have been very poorly served by them, especially the applicant.)
The irony is that there would have been serious legal issues to discuss, and a decision based on careful legal argument would have much better served the cause that Brown J tries to advance. And it is not a bad cause. The slowness of the federal government’s judicial appointments has been discussed, so far as I remember, from its early days in office. When the Chief Justice and Brown J denounce the current state of affairs, they are not wrong. I can only hope that the government takes the underlying message Brown J is trying to send seriously. But if the Canadian judiciary is broken, or nearly broken, the way to put it back together again is not by judges taking the need to do so for a warrant to do it. “Something must be done” is not a legal argument. As I said, I will try to consider actual legal arguments in my next post.
Double Aspect 
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