Why Couldn’t They?

Quebec probably can abolish the requirement that Members of the National Assembly swear allegiance to the King

The Quebec government has made news, even on this side of the pond, by introducing Bill 4, which purports to amend the Constitution Act, 1867 “by inserting the following section after section 128: ‘128Q.1. Section 128 does not apply to Quebec'”. Section 128 provides, in part, that

Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act.

No more oath of allegiance to King Charles, then, for members of the National Assembly? Not so fast, say a number of people whose judgment I regard highly. A province (or for that matter Parliament) cannot unilaterally change this provision’s application to itself, though, as Lyle Skinner notes, there seems to be some division of views on what the appropriate procedure would be.

But I’m not sure I see what it is that stops a province from proceeding unilaterally; or at any rate, I have not seen the relevant evidence yet, though I admit I haven’t followed this whole controversy closely. I should also note that I what I am about to say does not endorse Quebec’s predilection for purporting to inscribe amendments to its provincial constitution into the Constitution Act, 1867. I think this way of doing things is self-indulgent and silly, and I don’t know whether it is lawful either. Perhaps Bill 4 could be attacked on this ground, but I leave this question aside and focus on its substance.

The authority for Bill 4, if it exists, must come from section 45 of the Constitution Act, 1982, which provides that “[s]ubject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” Legislation must, satisfy two obvious criteria to be valid under this provision: it must be concerned with “the constitution of the province” and it must not trench on matters protected section 41 of the Constitution Act, 1982.

The first test is explained in Justice Beetz’s majority judgment in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2. It has two branches. First,

is the enactment constitutional in nature? In other words, is the enactment in question, by its object, relative to a branch of the government of [the province] or, to use the language of this Court in Attorney General of Quebec v Blaikie, [1979] 2 SCR 1016, at p. 1024, does “it [bear] on the operation of an organ of the government of the Province”? Does it for instance determine the composition, powers, authority, privileges and duties of the legislative or of the executive branches or their members? Does it regulate the interrelationship between two or more branches? Or does it set out some principle of government? (38-39)

 The existence, contents, and abolition of an oath to be sworn by members of the legislative assembly obvious meets this test, bearing as it does on the composition and duties of the members of the legislative branch. The fact that s 128 lies outside the part of the Constitution Act, 1867 entitled “Provincial Constitutions” is neither here nor there. It is the substance that matters here, as Justice Beetz pointed out.

The second branch of the OPSEU test is the one that those who believe Quebec lacks the authority to enact Bill 4 have in mind. It says that

provisions relating to the constitution of the federal state, considered as a whole, or essential to the implementation of the federal principle, are beyond the reach of the amending power bestowed upon the province … Furthermore, other provisions of the Constitution Act, 1867 could be similarly entrenched and held to be beyond the reach of s. 92(1), not because they were essential to the implementation of the federal principle, but because, for historical reasons, they constituted a fundamental term or condition of the union formed in 1867. (39-40)

Now, I think it’s obvious that the oath of allegiance has nothing to do with the federal principle and the distribution of powers among Parliament and the provincial legislatures, or with “the constitution of the federal state, considered as a whole”. On the contrary, part of the point of Canadian federalism is that Parliament and the provincial legislatures function autonomously. They are elected in separate elections, pursuant to different electoral legislation (and, potentially, with a different franchise, though subject to s 3 of the Canadian Charter of Rights and Freedoms); they have different privileges and different internal procedures.

If the second branch of the OPSEU test prevents provinces from abolishing the oath of allegiance for their legislators, it must be because this oath “constituted a fundamental term or condition of the union formed in 1867”. And… I just have a hard time thinking that that’s the case, whether for reasons of form or substance.

So far as form is concerned, it is true that s 128 mentions federal and provincial legislators in the same provision, indeed in the same sentence. But I don’t think it follows that they cannot be disaggregated. Consider s 96 of the Constitution Act, 1867, which provides in part that “the Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province”. Here too, federal and provincial institutions are mentioned ― and indeed, not merely mentioned in parallel as in s 128, but intertwined. Yet that did not stop the provinces from exercising their s 92(14) power over “the Constitution, Maintenance, and Organization of Provincial Courts” to abolish District and County courts. 

As for substance, the example to which Justice Beetz points in OPSEU is s 133 of the Constitution Act, 1867, which imposes the requirement of legislative and judicial bilingualism on both Parliament and the Quebec legislature. This is the provision considered in Blaikie. The Supreme Court referred to the judgment of the Quebec Superior Court “[o]n matters of detail and of history”. (1027) That judgment, for its part, quoted at some length from the Confederation Debates, where John A. Macdonald noted that it “was proposed by the Canadian Government … and it was assented to by the deputation from each province that the use of the French language should form one of the principles upon which the Confederation should be established”. Meanwhile, Georges-Étienne Cartier added that

The members of the [Quebec] Conference had wanted that this [French-Canadian] majority [in Quebec] be unable to enact the abolition of the use of the English language in the local legislature … just as the English majority in the Federal legislature would be able to do it to the French Language.

This is what a fundamental term of confederation looks like. A quick skim through PrimaryDocuments.ca doesn’t suggest any equivalent attention having been paid to the oath of allegiance. It was only a quick skim and it’s entirely possible that I have missed something, of course. But unless and until someone points to specific facts that suggest that the oath had any sort of comparable importance, I will not be persuaded that it was a “fundamental term or condition” without which Confederation would not have happened.

Thus, I don’t think that the OPSEU test prevents a province from changing or abolishing the oath of allegiance the members of its legislature must subscribe. There remains, though, the other restriction on section 45: section 41 and, specifically, the restriction that a province may not amend its constitution so far as it relates to “the office of the Queen, … and the Lieutenant Governor”.

Mr Skinner, in the tweet linked to above, says he “ha[s] not seen anyone suggest” that this restriction applied, but this overlooks obiter dicta in Blaikie. In responding to Quebec’s contention that s 133 was similar to certain other provisions of the Constitution Act, 1867 in being part of the provincial constitution despite not being included in the part entitled “Provincial Constitutions”, the Court had considered s 128. It said, however, that it “raises a different issue, referable to the office of the Gover­nor-General and of the Lieutenant-Governor and touching the position of the Crown in respect of members of the legislative chambers, so long as such chambers exist”. (1024) But the Court did not fully canvass this issue, stating that “[i]t does not seem necessary to come to a determi­nation whether s 128 is part of the Constitution of the Province and amendable as such”. (1025)

For my part, I find it difficult to accept the Court’s suggestion. I do not think that an abolition of the oath of allegiance affects “the office” of the monarch. The highest authority we have on the meaning of this phrase is Motard v Attorney General of Canada, 2019 QCCA 1826, where the Quebec Court of Appeal held that it referred to “the powers, status or constitutional role devolved upon the Queen”. [92] While I suspect that that judgment was wrong in its key holding ― that the rules of succession to the throne were not also part of the royal “office” ― I do not see the existence or otherwise of the oath as pertaining to “the powers, status or constitutional role” of the sovereign. It is a constraint on members of the legislature, not a privilege or power of the King.


In short, subject to better historical evidence on the importance of the oath of allegiance as a condition of Confederation coming to light, I think that a province has the power to dispense with it unilaterally. That does not make such a dispensation a good idea, though I have argued elsewhere that similar oaths are useless at best and pernicious at worst. It is arguable that legislators are in a different position than would-be citizens or would-be lawyers, but I don’t know how compelling these arguments are. And, of course, even the desirability of abolishing the oath requirement, let alone the constitutionality of doing so, has nothing to do with the desirability of preserving the monarchy. God save the King!

In Memoriam, Stephen A. Smith

Memories of one of my favourite professors

Stephen A. Smith, who taught me Contract Law and Advanced Common Law Obligations at McGill, and for whom I was a research assistant for two summers, has died. It is very sad news indeed. He was a good teacher and a good man.

Professor Smith was a leading private law theorist. He once joked that “every law professor only has one thing to say”, and there is truth in this, I’m afraid, as in any good joke, but he was very much the exception to this rule. Still, others will be better placed to speak to his accomplishments. As much as I liked him and enjoyed working for him, private law was and has remained beyond me, and indeed I don’t think I realized how important a scholar he was until much later; I’m afraid we took our professors for granted a lot. But I wanted to try to explain why I liked Professor Smith, despite not having been very interested in his subject.

As a teacher, he was always interested in why the law worked the way it did. One way in which this manifested itself, which I don’t think was especially popular but was probably my favourite part of the three semesters he taught me for, was having his second-year students read David Ibbetson’s A Historical Introduction to the Law of Obligations. Knowing that, centuries before Donoghue v Stevenson, there had been a case about a shipper who “by force of arms”, introduced salt water into the plaintiff’s wine barrels? I was there for that. Also, because he was interested in how things fit together and made sense, Professor Smith had no piety for courts that failed to live up to that standard. He wasn’t the only one of my professors from whom I learned this, but he was definitely one of them.

At the same time, he was mild-mannered, pleasant, unpretentious, and supportive. When a torts professor asked a class to describe the reasonable person, someone said that it was simply Stephen Smith. And he was.

Well, most of the time. Perhaps, to paraphrase Arthur Clarke, to discover the limits of the reasonable one needs to cross them a little into the unreasonable, and that’s what he did in the research he got me to help with. One of his jobs for me was to find out about remedies in French law. This sounds straightforward enough, until you realize that French law has no concept of remedies at all. It thinks in terms of obligations and the execution of obligations, rather than rights and remedies like the common law, and translating one into the other is by no means obvious. Professor Smith then went one better: what about remedies in Roman law? I’d never studied Roman law; good luck to me… And that wasn’t all. The best one, in fact, was this: try to find out if there actually exist private law examples of rights without remedies. That brought to mind Cristobal Junta, a character from the Strugatsky brothers’ Monday Starts on Saturday, a former inquisitor become researcher into wizardry and magic who regarded it as a point of principle to only investigate questions that had no answers, because if an answer exists, what’s the point of looking for it?

It wasn’t always easy to wrap my head around these things, but I think I learned a lot from them. Not so much about remedies, alas, but about law more generally, and about curiosity and thinking outside the box. I’m grateful to Professor Smith for having given me these opportunities ― despite my not having been an especially good student in his classes. These assignments may have made my head swim at the time, but they are some of my fondest law school memories now.

It is trite to say that one will miss a person who has died. But there it is, I will miss Professor Smith. He made me think harder and better, and he made the world a more interesting place, even if it was always in a low-key, reasonable, way. Thanks, and farewell.

Why Read Cases?

Some advice for law students

Legal education in the common law world revolves around reading cases. Perhaps a little less than in the past, but still. But why? And why should students spend time on reading cases in full, instead of finding short summaries? Especially now that (unlike, say, 100 or perhaps even 50 years ago) there are great textbooks that summarise whole areas of the law, and (unlike, say, 20 or perhaps even 10 years ago) online sources, some of them quite good, that summarise individual cases, and indeed short and sometimes plain-language summaries produced by the courts themselves?

Before I explain why, I mention a fundamental fact which students at the outset of their legal careers probably don’t think much about, understandably: your legal career, if that’s the one you choose, may well extend for 40 or even 50 years, and during this time the law will change a lot. Think about what the law was like in 1972, and what it is like now. How many statutes and even cases from back then are you encountering in your classes? Some, no doubt; perhaps quite a few if your lecturers are more historically-minded. But still. For lawyers who graduated in 1972 or 1982, almost all of the law they are applying now was made after they left law school.

In a superficial sense, law school cannot prepare you for this, because we don’t have time machines and cannot really guess what the law of the future will look like. So how do the lawyers who graduated in 1972 and 1982 manage? It’s because law school doesn’t only or even mainly teach you what the law happens to be at the moment in time when you go there. Instead, it teaches you the skills you need to understand the law as it develops over the course of your career. This is why law school is not just a trade school, but part of a university: it is doesn’t just teach you how to do something, but how to think.

Reading cases is one such skill, for (at least) three categories of reasons. The first has to do with learning what the law is; the second, with expressing oneself in the law’s language; the third, with solving problems like a lawyer. All of these, it is worth noting, apply across all areas of law ― nothing in what I will say here is specific to public law.

To begin with, you need to read cases to know what the law is because many of the most important legal rules and principles are not recorded in legislation, and are only given form, however imperfect, in judicial decisions. Moreover, even legislation seldom stands by itself. You need to know how it is interpreted and applied by the courts. Of course, you can pick up a lot about the cases decided in the past from the abovementioned sources ― textbooks, online summaries, etc. Maybe, from this perspective, you could get away with not reading cases in law school, though it’s not a good idea. These sources may be wrong, or, even more likely, they may be incomplete or slanted in one way or another. You want, as much as possible, to be able to judge for yourself.

And then, what happens when you graduate, and new cases keep getting decided? Suppose the Supreme Court decides a case that bears on an ongoing issue you are helping a client with. You cannot very well tell them to wait for a few months or even years until someone else does the work for you. You need to know how to read the case for yourself and update your advice to your client accordingly. Practicing to read and understand cases in law school is how you prepare for that.

Next, you need to read cases to write and speak like a lawyer. Like any profession, law has its own jargon. It can be peculiar. To be sure, law has become less attached to some of the more archaic English or even Latin words and phrases it used to be fond of ― though of course you may still need to be comfortable with them to understand older cases. But that doesn’t mean that lawyers now speak like any other educated persons. You need to know, for example, that you can have a claim at common law, or in equity, and not in common law or at equity. Why? I’m not sure there’s a reason. It certainly doesn’t make a whole lot of sense. But you need to know these things to establish a common language with your fellow lawyers and with the judges, without which you cannot be a full member of the legal community ― or an effective representative of your clients’ interests.

Reading cases is the most obvious way in which you will acquire this peculiar language. Textbooks and summaries often abstract it away in the process of distilling the cases’ holdings to single sentences or short paragraphs. They might help a little, but they won’t be enough. I suppose you might read statutes, but I’m not sure that’ll be as effective, and I’m certain it will be boring. (You should sometimes read statutes too, to know what they are like. But you don’t need to do it as much as with cases.)

Finally, and perhaps most importantly, you need to read cases to understand how lawyers and judges solve problems. In his famous report of Prohibitions del Roy, Coke CJ claims that he told James I that the King could not decide cases himself, instead of letting his courts do it, because

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it.

While a lot in that report was made up, this idea was true in 1607, and it remains true today. The law has its own way of thinking through difficult questions, and being a smart person, which you are if you have made it to law school, isn’t enough to grasp it. In sports, you probably won’t be picked for a high-level team without some natural gifts. But you still need to train to become a great athlete, and not just someone who could have been one. It’s the same in law.

The cases are where you absorb legal reasoning. Textbooks and summaries focus on giving you the outcome, and not the step-by-step reasoning of the judges. Nor do they usually tell you which arguments the court found unpersuasive, or spend much time unpacking judicial rhetoric, which can be very useful if you are going to persuade judges: giving them ready-made arguments they can re-use will make them more likely to side with you. Lectures may go into such details from time to time, but they are too short to do it much.

Ultimately, there is no substitute for taking your own time and working your own way through judgments. Even if someone could learn all the legal rules that exist when they graduate law school without acquiring ― through long study and experience ― the skills that reading cases gives you, they would be useless to their clients within 10 years. And they’d still have 80% of their career ahead of them. You don’t want to be that person. The good news is that cases are often fun to read. They are stories, often interesting and sometimes well-told. The more you get use to reading them, the more attuned you become to the smaller details that can make them fascinating. And the sooner you start, the better you will be at it.

Standing Isn’t Free

On the importance of thinking about costs, as well as benefits, of judicial review of administrative action

NB: This post has been prompted by my teaching and is first addressed to my students in Public Law 2 at Reading, but I hope that other readers, at least those interested in administrative law, will also find it of interest.

Who can challenge an administrative decision: only the persons directly affected by it or, well, just about anyone? This is the question of standing. US law resolutely sticks to the narrow view (as will be apparent, for example, from the discussion of the prospects of the challenges to President Biden’s debt-cancellation plan on this recent episode of Advisory Opinions). But Commonwealth jurisdictions have tended to take a broader view.

As Lord Hope put it in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868, (even as he disclaimed “risk[ing] a definition of what constitutes standing in the public law context”), “the interest of the person affected by or having a reasonable concern in the matter to which the application related” is enough. [63; emphasis added] This means that “[a] personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” [63] Or, in the more colourful words of Palmer J in Smith v Attorney-General [2017] NZHC 1647: “The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists.” [2] While there are differences between the UK and New Zealand approaches, this description is apt for UK law too.

But is this very considerable relaxation of the standing requirement ― when you need to say that something “still exists”, its existence, evidently, is a matter of some doubt ― a good thing? Or does the stricter, American-style, approach has something to recommend it? It is not, after all, without precedent in English law too. In R v Environment Secretary, ex p Rose Theatre Trust [1990] 1 QB 504, Schiemann J insisted that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated”. (522) Doesn’t it, though?

The other view is exemplified in a much quoted (and sometimes implicitly referenced) statement of Sedley J in R v Somerset CC Ex p Dixon, [1998] Env LR 111 (1997):

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs —that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. (121)

The idea is that the law must see to it that public wrongs are set right, and that it matters little who commences the litigation that may lead to this beneficial result. The way I put it to students in my public law tutorials is that the people who take this view emphasise the “review” part of judicial review ― in contrast to those who stress the “judicial” part and so are wary of transforming courts into general-purpose defenders of the public interest.


But to say that an area of the law “is about wrongs” is not enough to show that it must make it possible to identify and ensure consequences for every wrong of the relevant kind that occurs. Just as the socially optimal amount of crime is not zero, so to the socially optimal amount of misuse of public power is not zero either. Some wrongs should actually go unredressed. The idea might seem counter-intuitive, but it makes good sense. The costs of a wrong, be it crime, misuse of public power, or anything else, must be set off against the costs of preventing or rectifying it. If prevention or redress consume more resources (money, time, brainpower, etc) than are lost as a result of the wrong itself, or indeed if they generate further wrongs, then they are wasteful, from the standpoint of society.

In the context of crime, this means, for example, that we wouldn’t want a police officer on every street corner. While their presence would probably deter and possibly help solve some meaningful number of crimes, it would be very costly. The cost, to be clear, is not just money, though that’s part of the story. Salaries are indeed costly, but so are the unseen opportunities lost due to all these people not doing something more productive than standing on street corners. And so, too, is the possibility that they may, if only to occupy themselves, harass or arrest people who are quite innocent.

Recognising all this does not mean that we do not care about crime and about the Rule of Law. As Lord Reed put it in AXA, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”. [170] Acknowledging the costs involved simply means being realistic about the constraints that apply when our ideals come into contact with reality.

The same sort of thinking should apply in public law. While Sedley J and other advocates of expansive standing (such as Lady Hale) do not acknowledge this, some public wrongs are not worth redressing through judicial review because of the cost of doing so. Timothy Endicott’s Administrative Law textbook does make this point. Professor Endicott writes that “the test of standing is a proportionality test. … Proportionality in this case is a relation between the value of hearing a claim for judicial review and the process cost, and any process danger that may result.” (415) I think this is basically the right idea, but it worth unpacking further.

Professor Endicott’s review of the decided cases suggests that courts do, in fact, attach some importance to “the value of hearing a claim”, in that standing is the more easily granted the more serious the claim raised in a case is. And it is not exactly a surprise that courts would pay some attention to this despite sometimes embracing the justice-at-all-costs rhetoric exemplified by Sedley J’s dictum. I have argued here that something similar happens in the realm of procedural fairness. But this is only one side of the proportionality equation.

What about “process cost” and “process danger”? Professor Endicott’s survey suggests judicial interest in this may be limited, and he too has comparatively little to say about these things. I’m not even quite sure what the distinction between “costs” and “dangers” is. Carol Harlow’s article “Public Law and Popular Justice” focuses on a particular set of such concerns, perhaps dangers rather than costs: those that have to do with courts being transformed into political institutions and/or made to address polycentric problems for which they lack institutional competence.

I think these dangers are real, but there is more, too. I discussed the costs (and the benefits) of judicial review in an old post here. I won’t rehash everything I said then, but one point that bears repetition is that

all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested … But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined … by an administrative decision-maker.

Perhaps I should have used a different word: judicial review is not so much superfluous as it is redundant, in the sense of providing an additional layer of protection to a system that could operate without it ― but at some real, and perhaps unacceptable, risk.

Be that as it may, the costs of judicial review, even those that accrue in any legal proceeding, are thus particularly significant. And some are peculiar to judicial review. Among other things, judicial review risks both unwarranted interference with the legitimate activities of government (insofar as anything the government does is legitimate) and, conversely, undue legitimation of government decisions that, while lawful and hence deserving of being upheld, are daft, immoral, or both. Ignoring these (and other) costs of judicial review does not make them go away; nor does it somehow strengthen the Rule of Law.

The other concern I have with Professor Endicott’s approach has to do with the concept of proportionality. As in human rights law, it seems to invite a comparison of things that cannot be assessed on anything like a common scale. As noted above, the costs of judicial review are not all reducible to pecuniary expenses, and its benefits are of course not pecuniary at all. How can we know that one is proportionate to the other? Professor Endicott argues that courts have not struck the right balance, allowing cases where there was no sufficient public interest in having the claims litigated to be brought forward, but with a proportionality approach, such arguments are inherently subjective.

What is more, case-by-case analysis of proportionality exacerbates what Professor Endicott laments as “[t]he irony of process”. This arises when

parties … need to be given more process than is actually due to them [because a] claimant without a sufficient interest in a matter is not entitled to be heard, but it is often necessary to hear the whole story from the claimant and the defendant in order to decide whether the claimant has a sufficient interest. (417; emphasis removed)

This, of course, only adds to the costs of judicial review: debates about standing have to be considered, on top of those of the substantive disputes.

In light of this, it is tempting to look for alternatives to proportionality in the form of clear, rigid rules. They might, of course, not be exactly right: perhaps they will allow some claims to go forward that should not, as is already the case now, Professor Endicott suggests. Or perhaps they will result in some unlawful decisions not being reviewed even though they should be. But if these rules can be applied straightforwardly and predictably, they will still be preferable to the uncertain proportionality approach, provided that they are reasonable proxies for where a case-by-case analysis would end up.


The argument for a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge, would have to be that this rule helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful in a way that is more efficient than the proportionality approach preferred by Professor Endicott or the easy-going approach now preferred by the courts. I think this is possible: the redundant nature of judicial review is particularly salient in case where the applicant’s right and obligations are not involved, and it may be that it is also in those cases that the risks of undue interference with government, and perhaps also of undue legitimation of legally sound but morally questionable decisions arise. But this is just a tentative view for now.

What I am confident about is we must not neglect the costs of judicial review, even as we study and perhaps promote its importance and advantages. The ideals we seek to realise through the law are seldom unmitigated goods, and we do them no justice by forgetting about this. In judicial review as elsewhere, in the heavens as in on Earth, TANSTAAFL.

Learn Your Craft!

Justice Stratas shares his thoughts on succeeding in law school and beyond on the new episode of the Pod

Last month, co-blogger Mark Mancini launched an experiment in podcasting. We are back with a second episode, for which we have had the honour and the pleasure of speaking with Justice David Stratas, of the Federal Court of Appeal. With the new school year starting, we thought we would ask Justice Stratas for his thoughts on succeeding in law school and in the legal profession, with a particular emphasis on advice for first-year students. We are very grateful to him for accepting the invitation!

I am happy to report that the sound is rather better than last time, though no doubt we still have much to learn. Still, we think this should be an engaging and useful episode. You can listen to our conversation right here:

It is also available on Spotify and Google Podcasts. We also hope that you will share it with any law students ― especially first-year students ― you happen to know, or be teaching.

And, for further reading: Justice Stratas writing tips; and also, Mark’s post on “The First Year of Law School“.

Happy Constitution Day!

A love note to a document and a tradition

Today is Constitution Day in the United States. The reverence for and celebration of the Constitution ― not just on the anniversary of its signing at the conclusion of the Philadelphia Convention in 1787, but throughout the year ― might seem as quaint to outsiders ― and indeed as irritating to a certain type of insider ― as The Queue to the Queen’s lying in state is in the United Kingdom. Indeed, the British and Commonwealth monarchy and the US Constitution have something important in common, despite the latter being the result of a rebellion, ostensibly against the former.

Despite their less-than-angelic origins ― despite the connection of both with conquest and oppression ― what they mean to their respective supporters is, on the one hand, stability and tradition, and on the other freedom and, perhaps paradoxically but still importantly in the case of the monarchy, a check on the ambition of passing office-holders. To embody these two clusters of values, which in human history have more often than not been at odds with each other, is a remarkable success, and well worthy of admiration.

The Constitution makes these commitments more explicitly, of course, and in a way that is more teachable. It has been on my mind of late because I have been preparing some introductory lectures on the UK constitution, and the American one is an excellent example at the same time as it is an excellent foil. For anyone interested in constitutionalism and in government more generally, not only in the United States but far abroad too, the Constitution and the intellectual tradition to which it gave rise ought to remain of the greatest interest.

Yet my impression is that, among those interested in comparative constitutional law, the US Constitution has become unfashionable. It is said to be too old or too odd; too absolutist in its approach to any number of problems, from the freedom of speech to judicial review of legislation; too bound up with itself and its own history. I think this view is a mistake. We need not emulate the United States, but treating the US Constitution as if it now has nothing to teach us deprives us of an example far more successful than many people either realize or care to admit.

And as for American absolutism, it is a view that we ignore at our peril. In The Federalist No. 48, James Madison wrote “that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it”. He thought that this proposition would “not be denied”. Yet there are dangerous fools who do in fact deny it. And many more, alas, simply forget it. The American constitutional tradition is the best remedy we have against such forgetfulness.

Shapes and Sizes

Public lawyers (and public law students) should think about government size―and shape

I am currently in the process of making slides for the early lectures in the constitutional law course I am due to deliver in the next month or so. One of them, for a lecture on the basic concepts of the UK constitution, looks like this:

Slide explaining government size in the United Kingdom

With this slide, I want to make three points that I thought are worth sharing here too. One is obvious, but not sufficiently thought of in public law. One was actually something of a revelation to me. And one is connected to my recent post on the “good government trilemma” ― the unpleasant trade-offs between democracy, government size, and accountability.

The obvious point is that government is very, very big. In the UK, it spent just over 40% of GDP in pre-pandemic years. The figure is substantially higher now. Another way to understand its size and complexity is the number of ministers, though in fairness the UK is something of an outlier here: it has as many ministers as New Zealand has MPs, opposition ones included. But the Canadian cabinet has almost 40 members nowadays ― and of course it does not need people to deal with provincial issues.

Although well-known (though perhaps not to first-year law students), I think this reality is worth highlighting in the context of a public law course. For one thing, it shows just how important public law is ― it would matter less in a nightwatchman state. As I hinted at in the “trilemma” post, if you think public lawyers are taking up too much space, one solution is to shrink government. But most people who want to ― metaphorically ― fist kill all the lawyers are not itching to ― metaphorically ― kill all the ministers and civil servants.

It is well known, too, that government is much bigger now than it used to be 100, let alone 150 years ago. Taxation and government spending as percentage of GDP is one convenient way of measuring this. Before the Great War, the UK government was spending 8-10% of GDP (except during the Boer War, when it was somewhat more than that) ― and that was a time when the Royal Navy was as big as its two nearest competitors combined. One could also describe the various areas of human activity that government regulates, as illustrated by the gaggles and flocks of ministers (though perhaps the better collective noun would be a meddling). This expansion, as opposed to the sheer magnitude of the end product, is often mentioned in administrative law, because writers on the subject, at least in North America, tend to think that it justifies the existence of a more-or-less unsupervised administrative state. It could, of course, just as well be taken as evidence of the administrative state’s malignancy. My point in the lecture will not be to take sides ― that’s not a lecturer’s role ― but this blog’s readers will know which way my sympathies lie.

Less well known ― indeed, something of a surprise to, though perhaps I am simply an ignoramus ― is that fact that by some measures government is now much less active than it used to be. Specifically, I mean the much-reduced number of statutes being enacted annually. My numbers, for the UK, come from a study by Chris Watson for the UK’s House of Commons Library, and those on the slide may be understating matters: in the last few years, the number of statutes enacted each year has fallen further, from the low 30s to the low 20s. (I’ve not put this on the slide because it might still be a temporary blip; but how long can something temporary last before it isn’t temporary)? It averaged about 100 if not more before WWII. Granted, these numbers don’t tell us everything; it may be that the complexity and/or length of statutes being enacted has increased, compensating for the lower numbers. But they are nonetheless suggestive. The volume of delegated legislation, by contrast, grew enormously from 1950, and indeed 1980, to the mid-1990s and stayed at that level until, it would seem, Brexit. It then fell off a cliff, relatively speaking, though there are no data for the period before 1950 ― I suspect it would have been substantially less at least until the Great War, and perhaps later.

This means that not only the size, but also the shape, if you will, of government has changed a lot over the last century. It is a great deal more executive-dominated than before. Parliament grants the executive enormous resources and vast delegated legislative powers, but it does not act as much as before for itself ― or rather, given the executive’s control of Parliamentary agenda, isn’t allowed to act. This too isn’t exactly a shocking discovery ― it is not really a discovery of any kind ―, but I think it needs to be kept mind when we assess claims about, for example, the judiciary’s real or alleged interference with Parliament, the important of the political constitution, and so on.

And this brings me to my third point, which follows from the trilemma I have previously discussed. It is that when we discuss public law, and especially when we discuss the changes that public law has undergone since, roughly, the 1960s ― both in the UK and in Canada (and New Zealand too). The judicial role has expanded a great deal in these jurisdictions, albeit in somewhat different ways. UK courts might be more intrusive vis-à-vis the executive; Canadian courts have been granted greater powers vis-à-vis Parliament. There is no question that, by the standards of 1950, let alone 1900, courts are more influential. But this development did not take place in a vacuum. It occurs, not coincidentally I would argue, in parallel with a vast expansion of government, and therefore of the government’s capacity for messing with people’s lives. To insist that the law used to control a government of the size and shape it has in 2022 should be as minimalistic as it was in 1872 or even 1922, or that Parliament can remain the primary if not the sole forum in which government is kept accountable as the government looked as it did in Dicey’s time is either mad or disingenuous.

This argument, by the way, does not in any way depend on thinking that government expansion, without more, is bad. Admittedly, I think it is ― I can say so here, though that will be beside the point in my lecture. But you can very well disagree with that, but still believe that an appropriately expanded government requires the kind of accountability and supervision that the courts have increasingly come to provide (in part thanks to their own efforts and in part because they were asked to do so). That said, I do wonder whether colleagues for whom the expansion of government over the last century is a welcome phenomenon might be less inclined to reflect on its implications, simply because they see it as natural, and it is human nature to think less about what one thinks of in this way. Small-government heretics have their uses in public law academia ― but then, I would say that, wouldn’t I?

In Memoriam Reginae

What the Queen meant to me

“Yes, man is mortal, but that would be only half the trouble. The worst of it is that he’s sometimes suddenly mortal ― there’s the rub!”

Mikhail Bulgakov, The Master and Margarita

On Tuesday, she is still at work, as she had been for 70 years, swearing in a new Prime Minister. On Thursday, she is gone. It is, I guess, the good, and ― let’s be honest ― the lucky way to go. Not everyone has this good fortune. But it is fitting for Her Late Majesty. Yes, she had it good, for the most part. Yes, she was fortunate, as our republican friends have always reminded us. But she took advantage of her good luck to serve, and made sure that her good fortune was ours too.

Much has already been said, and more will be, and it is difficult to add to it without being banal, ridiculous, or both. All the more difficult because the Queen’s death has affected me more than I would have imagined. As we know, the feeling that the time is out of joint does not make for the clearest thinking.

I did want to bring up something that is mentioned less than the really obvious (and of course true and important) things like the late Queen’s dedication and dignity: her levity. Not every Serious Person would have gone along with the James Bond stunts for the London Olympic Games opening ceremony, or the video of her having tea with Paddington Bear for her Diamond Jubilee. But just as a person truly confident of his or her strength can afford to show weakness from time to time, the Queen was secure enough in her dignity not to stand on it at all times. I’m not sure how many others could, let alone would, have pulled it off.

Let me also mention two personal memories of the Queen, which I hope capture some of what she was to me and to many others.

First, her last visit to Canada, in 2010. I was lucky enough to be in Ottawa for Canada Day ― it was my clerkship year. It was a bright and sunny day, a cheerful occasion, and good times seemed to be had by everyone around.

Canada Day, 2010. The Queen is getting out of the limousine to take place in the carriage that will carry her to Parliament.

And second, her “We will meet again” address in the darkest days of the first covid lockdown, which I watched in New Zealand. Nothing bright and cheerful about it; good times were gone and unsure of returning.

April 2020. The Queen addresses the Commonwealth during the first pandemic lockdown.

This is how it was: whichever of her Realms I was in, she had a wave for us in a time of celebration and a word of comfort in a time of anxiety. She seems to have had a preternatural talent for getting both, and every other public word or gesture, exactly right. More luck, perhaps. But it was our luck more than hers. We have had it good, and we must somehow see to it that we make as much of our good fortune as she did of hers.

Farewell, Your Majesty. And long live the King!

Nothing Doing

Why I’m not moved by the responses to my criticism of O’Bonsawin J’s appointment to the Supreme Court

I recently wrote a post that was sharply critical of the appointment of Justice Michelle O’Bonsawin to the Supreme Court of Canada. The National Post then ran a slightly modified version of it as an op-ed. Rob Breakenridge also interviewed me on my views. Somewhat to my surprise, the responses that have reached me were, on the whole, more supportive than not. While the public reaction to Justice O’Bonsawin’s appointment is almost uniformly positive (except for my post and op-ed, the only other sustained criticism came in The Line‘s editorial, which is more proof that you should subscribe to them), in reality there is a good deal of disappointment, some of it very bitter indeed, within and beyond the Canadian legal community.

That said, of course, quite a few people were also unpersuaded, or worse, by what I have had to say. I don’t think I have seen anyone attempt to rebut my argument to the effect that, considering the limitations of her career so far and the shallowness of the responses on her government questionnaire Justice O’Bonsawin lacks either the accomplishments or the intellectual excellence to be a Supreme Court judge. Instead, what has been put forward is any number of reasons why either my arguments or I should simply be ignored. In this post, I quickly respond to them, in rough descending order of seriousness and good faith.


You’re not impressed now, but Justice O’Bonsawin could still turn out to be great!

This is true, of course. She could. I’m not optimistic as to the likelihood of this, but I’ll be happy to be proven wrong. That said, I don’t think this is a good response to my criticism of Justice O’Bonsawin’s appointment. It’s a bit like saying that buying a lottery ticket is a good idea because one might end up winning. One might, but the odds are bad enough that it’s still an irresponsible decision. And while I’m content to stipulate that Justice O’Bonsawin’s odds of turning out to be a reasonably good Supreme Court judge (not everyone needs to be great!) are better than those of getting a winning lottery ticket, the cost of a bad choice is also rather more than just a few dollars. Justice O’Bonsawin could hold office for more than a quarter of a century. If she turns out to be a dud, c’est long longtemps as Quebeckers say. Appointments to the Supreme Court are not trifles to gamble with.

And, by the way, it is always important to remember the opportunity costs of decisions: appointing Justice O’Bonsawin means, among other things, not appointing some other, better qualified judge now. Realistically, it may also mean not appointing a better qualified Indigenous judge to the Supreme Court in the near or medium-term future; at the very least, the pressure for such an appointment will now be much less than it would have been otherwise. True, we’ll never hear about these unmade appointments. But the unseen is no less important than the seen.

You’re making too much of a silly questionnaire; it’s no basis to assess a future judge!

There’s something to this too. Justice Rowe turned out not to be the “judge unbound” I had expected him to be based on his questionnaire. Clearly, the method of predicting future judicial performance based on this has serious limitations. But while that may be a good argument against relying on it with respect to most appointments, Justice O’Bonsawin’s case is exceptional in that the questionnaire is well-nigh all that we can judge her appointment on. What is more, it is well-nigh all that that the government that appointed her had at its disposal. Unsurprisingly given the shortness of her career on the bench, Justice O’Bonsawin has written few judgments of importance ― few enough that she listed her PhD as one the top five pieces of writing, and that thesis has been hidden from public view. (By the way: I think some people have made too much of this; I wouldn’t expect to find some sort of smoking gun there; it’s probably boring; but having mentioned it as being one of her most significant outputs, Justice O’Bonsawin should not have kept it secret.) She has no academic publications. Her career as an in-house lawyer was also not the sort that leaves a record that lends itself to serious assessment. If we also ignore the questionnaire, we must conclude she is a cypher. Well, I don’t think cyphers are fit for appointment to the Supreme Court of Canada.

Admittedly, some people might disagree.

We shouldn’t even try assessing a newly-appointed judge! Let’s see how their career turns out and pass judgment once they retire.

First, I think it’s worth noting that this argument, which would have applied to every judicial appointment ever, seems to be brand new. Perhaps I have missed it being made in the past ― I’d be grateful if someone pointed me to previous examples ― but anyway I daresay it was not a common one. On the contrary, people were quite happy to criticize, for example, the appointments of Justice Brown to the Supreme Court and of Justices Huscroft and Miller to the Ontario Court of Appeal. People were also happy to praise the appointments of, say, Justice Jamal and indeed that of Justice O’Bonsawin to the Supreme Court, and if it’s too soon to criticize a new judicial appointment, then surely it is also too soon to praise it. I add that the government itself is obviously keen to take credit for its judicial appointments: it evidently doesn’t think that they cannot be assessed until long after it is out of office.

That said, to be sure, an argument isn’t wrong just because it’s new and convenient. But the claim that judicial appointments can only be criticized (or praised) retrospectively is simply wrong on the merits. Courts, and especially the Supreme Court, exercise considerable power. (Richard Albert has suggested that the Supreme Court of Canada might be the most powerful court in the world. Whether or not he is quite right about this, it is surely a very powerful institution.) At the same time, courts are ― by design, and rightly ― not meaningfully accountable for the exercise of their authority. It is, then, very important that the decisions as to whom to appoint to the bench, especially the Supreme Court, be made with a degree of thoughtfulness proportionate to its importance, and that these decisions be subject to meaningful accountability. Criticism of bad appointments, just like praise of good ones, is not only permissible but essential to ensure the government of the day takes this responsibility with all the required seriousness.

Are you saying only appellate judges/judges who have served on both trial and appellate courts should be appointed to the Supreme Court?

I said no such thing (and indeed I specifically got the Post to drop a proposed edit that might have carried that implication), but quite a few people seem to have concluded that I did. So, in case this clarification is useful, no I don’t think there’s a specific amount or sort of judicial, or indeed any other, experience that is mandatory for a future Supreme Court judge. Some of the smartest and most interesting judges in recent decades were appointed directly from the bar ― namely, Justices Sopinka, Binnie, and Côté. An appointment from a trial court is unusual (Beverley McLachlin was the Chief Justice of British Columbia’s Supreme Court, a trial court, when appointed to the Supreme Court of Canada, but she had served on the BC Court of Appeal before). But if a Supreme Court judge can lack any judicial experience at all, then having only trial court experience should be no obstacle. What one would want to see in appointee is a track record of excellence ― whether in practice, in the academy, on the bench, or in some mix of these ― and indications of some degree of brilliance. Again, there’s no one right route to this. Justice O’Bonsawin’s record, however, falls far short of what one would expect on the Supreme Court.

Not that this matters, according to some people. Now we’re getting into really silly territory.

Legal skills/qualifications are irrelevant anyway!

This too, I think, is a novel argument. And also a bad one. Even on the view that the law often “runs out” and decisions in hard cases have to rely on judges’ moral sense ― not by any means an uncontroversial view, and one of which I am sceptical (at least in this far-reaching form) but a widespread one ― judicial decision-making has to start with the law, even if it turns out that it cannot end there. If we aspire to anything like a government of laws rather than unaccountable personal rule, we should expect and demand that judges be skilful lawyers, whatever else they might also need to be.

You’re undermining confidence in the Supreme Court!

Sure I am. A Supreme Court one of whose members is not qualified for membership and should not have been appointed deserves less confidence than a court of which this is not true. That was the whole point of the litigation around the appointment of Justice Nadon ― another one which plenty of people thought it was permissible to criticize, by the way, including due to the perceived insufficiency of his credentials (which, whatever one makes of them, were considerably stronger than Justice O’Bonsawin). There is no question that Justice O’Bonsawin’s appointment is legal and constitutional. But, as I said in my original post, it is bad for Canada’s legal system all the same, and nothing requires me or anyone else to be an ostrich about it.

You’re racist/sexist!

We all knew this one coming, didn’t we? Criticizing the appointment of an Indigenous woman to the Supreme Court is, by itself, conclusive evidence of racism and/or sexism in some quarters of what is sometimes mistaken for polite society. Suffice it to say that attacks on, say, a John McWhorter or a J.K. Rowling from the same quarters are not held to be evidence of racism or sexism. The “principle” on which this sort of response to my post is based is just partisan horseshit. Like Pierre Trudeau, I’ve been called worse things by better people.


I think this about covers it. I should say, though, that there was less real horseshit than I had expected. Perhaps people had already decided that I am too much of a heretic to bother about. Perhaps they are quietly taking notes and not telling me. Either way, I suppose I will not be welcome in the “polite society” whence such accusations originate. That’s as well. I have as little time for it as it has for me.

I remain unpersuaded by the responses to my take on Justice O’Bonsawin’s appointment. She is not Supreme Court material, and should not be sitting on that court. And by the way, my saying so is no slight on her personally. There’s nothing wrong with not being Supreme Court material. Most lawyers aren’t. Probably even most judges, let alone most judges who have only spent five years on the bench. One can be a fine person and even a fine judge without this. But appointing someone who is not Supreme Court material to a role for which she is not qualified is a grave fault. We’re hearing much about whether this or that politician will undermine Canadian institutions. Sadly, the Prime Minister’s and the Justice Minister’s choice of Justice O’Bonsawin does just that.

A Nod to the Pod

Introducing the experimental Double Aspect Pod

Co-blogger Mark Mancini and I have been toying with this idea for a while: should Double Aspect expand into the podcasting universe? Well, we have decided to give it a shot, and we are pleased to announce the arrival of the first and very much experimental episode of the Double Aspect Pod.

We’re very new to this medium and it shows. The audio on my end is especially sub-par, I’m afraid. Still we thought that the substance of our conversation, during which we covered the merits/procedure in administrative law, our recent post on statutory interpretation and election law, and medical assistance in dying, was pretty good. If you are willing to give us a shot and overlook the technical difficulties, you can listen to it here:

Please let us know what you think!