Double Aspect

This is, I hope, the lost post in the sort-of-series occasioned by the Supreme Court of Canada’s recent unprincipled and inconsistent decisions on constitutional interpretation. In my comment on Alford v Canada (Attorney General), 2026 SCC 14, I wrote that, despite my harsh criticism of the Supreme Court’s majority, “I have no time for the populist clowns demanding that Supreme Court judges be removed from office in case they dare make decisions that the clowns dislike”. I also, as this blog’s readers know well, have no time for the notwithstanding clause, s 33 of the Canadian Charter of Rights and Freedoms, even when it is used to oust bad decisions of the Supreme Court. I will briefly elaborate on this here, in response to Substack posts by Michael Plaxton and Emmett Macfarlane (to other aspects of whose post I replied here).

Professor Plaxton shares my discontent at the Supreme Court’s inconsistency. He also “tend[s] to agree … that it would be a bad idea to fire Supreme Court judges who reach decisions we don’t like”, though his language here is a bit hedged, and he professes “the greatest respect” to at least one of the people I regard as populist clowns (more on this below). But Professor Plaxton expresses sympathy for “critics” who “The critics are not wrong to “point out that there must be something that can be done if one believes in good faith that the Supreme Court is doing significant damage to the constitutional fabric”. If not firing obnoxious judges or using the notwithstanding clause to put their decisions to the shredder, then what? “Critics”, he insists, “need options. They can be told not to resort to nuclear options, but they must have something.”

Professor Macfarlane is not convinced:

Neither the champions of the notwithstanding clause, and certainly not the governments using it, give a fig about constitutional theory. They support or use the notwithstanding clause because they either don’t like the outcome courts reach or they know it’s the only way the shield their blatantly unconstitutional laws. When you think about the types of laws that have been preserved by s. 33 since 2017, most are irrelevant to any debate about a ‘proper approach’ to the Charter because they are protecting laws that would be found unconstitutional regardless of any reasonable approach applied. 

I don’t know that this holds true for all the examples Professor Macfarlane mentions, and I lack the time and the inclination to examine them closely, but I think he right at least in significant part. There is no defending Quebec’s ban on religious headscarves, for instance, or Ontario’s (now abandoned) doubling of the time during which political advertising is severely limited with no evidence whatsoever. The reason these laws would be or have been found unconstitutional has nothing to do with defective theories of constitutional interpretation, with living treeism, or with judicial inconsistency. And while some of the “champions of the notwithstanding clause” surely are interested in constitutional theory, I am comfortable enough saying that most of them fundamentally reject judicial enforcement of rights as a matter of principle, and not just as a contingency caused by the misdeeds, however real, of the Supreme Court of Canada. As for governments, Professor Macfarlane is right on.

But there is more to say in response to Professor Plaxton. Why is it that “critics” — including quite unreasonable ones — “must have options”? That’s just not true. If a child is throwing a tantrum because he can’t have a pony, you don’t start offering him a puppy or a bunny — you get him to calm down. If you think he should have a puppy, you give it to him later, and for reasons that are good and sufficient on their own, and not because otherwise he’ll be demanding a pony. The demand that judges be removed from office for alleged “misbehaviour” constituted by a wrongheaded decision — which is not what misbehaviour has meant, in Britain, in Canada, and elsewhere, these past 325 years — is about as reasonable as that of a toddler who will lie down in the middle of the road and scream his heart out if he does not get a pony. It should not be seriously entertained, and it should not be indulged by demanding that the people making this demand be given “options”.

Besides, when a demand of this sort is made, for the sake of notoriety and influence, attention, by a gentleman with a DPhil (Oxon) to his name, it cannot exactly be overlooked as merely endearing. The only grown-ups I know whose task is to act like idiots for public amusement are clowns. Hence, an inference about that gentleman’s calling. (Professor Plaxton finds my language “regrettable”, while expressing no such feelings about my interlocutor calling me a fool. Je ne regrette rien.)

Be that as it may, while there are no “options”, there is, in fact, an obvious solution to the problem I have been discussing. It’s just not a solution that the critics of whom Professor Plaxton is so solicitous, or perhaps Professor Plaxton himself, will like. Change the legal culture. Get better lawyers appointed to the bench. That’s all. After having, admittedly, toyed with other options, some (notably constitutional amendment) respectable, and others (notably “massive resistance”) not, this is what the legal conservative movement did in the United States. I briefly tell that story in this article written for a French audience, but of course it is well enough known.

Now, this is not the kind of solution that can be implemented quickly. When populists complain about people like me supposedly saying there is nothing to be done about a wayward and wilful Supreme Court, and when Professor Plaxton sympathizes with them, what they really mean is that they can’t get their pony now. (The same goes for left-wing populists in the United States, incidentally; this is not a specifically right-wing phenomenon, though it seems that way in Canada — for now.) It took the American legal conservative movement decades to reach a position of meaningful influence, and longer still to secure a majority on the US Supreme Court. Indeed, as I argue in this above-mentioned article, in the end, this was only achieved by embracing hardball politics and shortcuts which helped discredit the achievement at least to some meaningful extent.

The part of the essence of populism is impatience. Hence the path of determined institution-building is deprecated in favour of bulldozing, however unstable anything that might be rebuilt on the ruins is bound to be. (The suggestion that removal of judges based on disagreement with their decisions will not be met with reprisals at the following change of government is a delirious cope.) Hence I am taunted for having supposedly failed to attract attention to my writings on constitutional interpretation, as if one man’s work were supposed to produce immediate results. It isn’t, but results would be more likely if more people joined me in the entreprise of reasoned criticism instead of supposedly deciding that my failures, if failures they are, prove the need for demolition.

I stand by my recent criticisms of the Supreme Court of Canada, which is failing badly at the craft of lawyering and judgment. We can agree or disagree about how to approach difficult legal questions, but ought to be able to count on a base level of professional rigour on the part of the jurists who sit there. Perhaps less jet-setting and fewer news conferences would leave some of them with more time to hit the law books? Just a thought. But I equally stand by my disdain for those who are cavalier about doing away with an independent judiciary in an attempt, bound to be futile in the long run, to settle their grievances with the current members of the Supreme Court. They do not deserve a pony — indeed they must be prevented from getting this particular pony — and nor do they deserve options in lieu of the pony. And there is no contradiction between these positions, both of which are motivated by a concern for the Rule of Law — a law impartially applied by competent judges, on whom its binding in the same way as it is on governments and legislatures. Those who share my concern should join my work.