Constitutional law – Double Aspect

A Strategy against Lethargy?

Can courts order the government to appoint judges promptly? It’s complicated, but probably not

In my last post, I summarized and criticized the Federal Court’s decision in Hameed v Canada (Prime Minister), 2024 FC 242, which declared that the government of Canada has a duty under the constitution to just get on with judicial appointments already. Emmett Macfarlane has made many similar points on his Substack as well. But, as I noted, while the actual reasons given by Brown J were very bad, that doesn’t mean there weren’t serious arguments to be made for the outcome he reached ― though I’m not sure whether any such arguments were actually put to him by counsel. In this post, I review these arguments.

By way of reminder, the way I see it, there are two key substantive issues, on which I focus. 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? As to the first, the government’s objection has to do with the involvement of constitutional conventions in judicial appointments. As to the second, the difficulty is that there is simply no standard apparent in the relevant constitutional or statutory provisions.

In reality, the first issue breaks down into several different ones. As Mark Walters points out in a very important article on “Judicial Review of Ministerial Advice to the Crown“, “it is important to distinguish between decisions made by the Governor General based on ministerial advice and decisions of the Governor in Council”. The former include the appointment of Superior Court judges pursuant to s 96 of the Constitution Act, 1867; the latter, the appointment of Federal Court judges pursuant to s 5.2 of the Federal Courts Act. Failure to draw this distinction is a mistake in the identification of the conventions of judicial appointments committed in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which is carried over in Hameed as I mentioned in my last post.

Conventions are, indeed, involved in both situations, but in different ways. In the case of Governor in Council appointments,

Although it 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, it is by virtue of law that these ministers, sitting as a committee of the Privy Council, participate with the Governor to make the decision. In these circumstances, ministers are not merely advising the Governor as to what he or she should decide; they are, as a matter of law, joining with the Governor to make the decision.

The law at issue is, so far as appointments under the Federal Courts Act (and other statutory provisions) are concerned, s 35(1) of the Interpretation Act. What this means, I think, is that there is no ministerial advice that can be reviewed ― or that could be unreviewable ― separately from the decision, or failure to make a decision, by the Governor in Council. Rather, so far as appointments to the Federal Court are concerned, if one can identify a legal duty to make such appointments in a timely manner and a judicially administrable standard against which the exercise of such a duty can be measured, the conventional aspect of the appointments powers is beside the point and there is no obstacle to reviewability.

Appointments on advice, i.e. those to the Superior Courts, are a different beast. Here, conventions do matter. But, as Professor Walters argues, this is not to say that they are not reviewable. Professor Walters’s article is a comment on the challenge brought by Aniz Alani against the then-Prime Minister’s policy, first implicit and then overt, of not making appointments to the Senate. (I blogged about it here.) As he notes, the government’s response was to argue

that the Crown has the legal authority to act and the minister’s role is only to advise, and it will be added, with emphasis, that the advice is given as a matter of constitutional convention only and so cannot be the subject of judicial review. In this way, executive power may be exercised in a legal black hole. (35)

Professor Walters suggests that there are two potential “way[s] to address this worrisome conclusion”. (35) Of these,

One … is to question the assumption that constitutional conventions are never justiciable. Perhaps the time has come to contemplate the possibility of at least declaratory judicial relief when ministerial advice flouts established conventional rules. In this way, the veil of law would be pierced to reveal where real power lies. (35)

This is the approach Brown J took in Hameed, but he did so in a very clumsy, and indeed quite untenable, manner. I will return to this possibility below, because more can be said about it. But first, let me recount the other option outlined, quite persuasively in my view, by Professor Walters.

Professor Walters argues that “[t]he idea that ministerial advice to the Crown is a matter unknown to and outside the law … is a misunderstanding that results from the confusion between law and convention”. (37) It is law ― specifically, s 11 of the Constitution Act, 1867 ― that sets up the Privy Council as a body of advisors to the Crown. Convention, of course, is both what dictates that its advisory function is exercised, from time to time, by the ministers for the time being, and that the Crown is required to follow its advice. But the giving of advice, as such, is no more and no less than the Privy Council’s legal duty. And if the advisors fail in the discharge of this duty by offering advice that is unlawful or unconstitutional in itself (e.g. because it was procured corruptly) or because it will result in the Crown breaking the law, they can be held accountable for that:

Ministerial advice to the Crown, though triggered by convention, is given in the performance of a legal duty by ministers who hold a legal office, and the common law has always regarded ministers as legally responsible for the advice they give. Ministerial advice does not operate within a legal black hole. Of course, the old authorities … contemplate either a criminal prosecution or an action in tort, with examples of fraud, corruption, malicious abuse of public office, or flagrant neglect of public duties being given. I am not suggesting that the law historically acknowledged a modern remedy of judicial review of ministerial advice based upon public law principles of rationality, legality and fairness. I do think, however, that once the domain of ministerial advice is understood to be one governed by law, the forms of law that discipline advice must be understood in the usual legal way as expanding with the incremental developments that have shaped modern public law generally. (39)

I find this compelling. And I think that the UK Supreme Court’s judgment in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 (Miller II) can be understood as giving effect to this approach to ministerial accountability. This was a case where the UK Supreme Court treated as reviewable the advice given by the Prime Minister to the Queen to prorogue Parliament. As the Court noted,

the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter. That situation does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament. [32]

The appointment of Superior Court judges is not, to be sure, a prerogative power, but one set out in constitutional legislation, but I don’t think that changes the situation. If Canadian courts follow the Miller II approach, then the decisions of the persons and entities with the constitutional responsibility to have regard to the relevant interests, in this instance those of the judiciary and of the litigants who come before it, should be amenable to review, because there can be no suggestion that the Governor General is “other than obliged by constitutional convention to accept [their] advice” ― or, more to the point, prevented from acting in the absence of advice.

Now let’s consider the argument for the justiciability of constitutional conventions. For my part, I have long found the orthodox account of conventions as radically different from legal rules quite unpersuasive. This is not because conventions are judge-made rules, as Brown J claims, but rather because the distinction between rules that have a judicial origin and those that originate in politics simply does not matter very much. Statutes originate in politics too, after all. And of course common law rules aren’t always “judge-made” in the crude Benthamite sense. Many originate in the practices of other actors, commercial ones for example, and/or in the principles embedded in the legal system. Courts can identify such rules ― though, unlike Brown J, they must do so rigorously and carefully ― and apply them.

The trouble with this argument is that most people don’t agree with it. More importantly, apex courts don’t agree with it. As I am about to suggest, they no longer adhere to the orthodox rigid distinction between law and convention either, but nor are they prepared to simply accept what the Patriation Reference, Re Resolution to Amend the Constitution, [1981] 1 SCR 753, described as the crystallization of convention into law. The majority in the Patriation Reference is clear about this, and has never been directly repudiated in Canada or elsewhere. Indeed it was endorsed by the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61, and it too hasn’t been directly repudiated. I can and will go on thinking that these cases are wrong, but a judge bound by one or the other cannot act if it didn’t exist.

But that’s not the end of the matter either. While things are not especially clear, Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 may suggest a workaround to the dichotomy between law and convention asserted in the Patriation Reference. In that opinion, the Supreme Court relied on the concept of a “constitutional architecture”, which has something to do with “[t]he assumptions that underlie the [constitutional] text and the manner in which the constitutional provisions are intended to interact with one another”. [26] A law that would interfere with this architecture is as unconstitutional as one that contravenes an explicit provision of the constitution. Because the Court’s definition of “architecture” is sparse if not cryptic, there are different views on what it encompasses. I have argued that “architecture” is, simply put, a codeword for conventions. Others who have written on the subject may take a somewhat different view of the matter, but at any rate I think there is a credible argument to be made that advice, or perhaps even more so lack of advice, to the Governor General is, in principle, judicially reviewable if it would result in the undermining of “assumptions that underlie the text” of the constitution, regardless of the involvement of conventions in the process.

So where does that leave us? Recall that, for now, we have only been considering the first issue in Hameed: whether the government’s failure to ensure that judicial vacancies are filled in a timely fashion is in principle amenable to judicial review. I have argued that the answer is yes so far as Governor in Council appointments to the Federal Court are concerned, in the same way as failure to perform a statutory duty by any official or entity. The case of Governor-acting-on-advice appointments to the Superior Courts is less clear, but there are strong arguments for their being reviewable too, either on the basis of legal accountability for unlawful advice expounded by Professor Walters and demonstrated in Miller II, or through the invocation of the constitutional architecture referred to in the Senate Reform Reference.

Assuming that the government’s slowness in appointing judges is reviewable in principle, the question nevertheless arises whether there is legal standard by which it can be judged. Or is the pace of judicial appointments the kind of policy or discretionary matter that can only be subject to political, but not legal, accountability? (It is worth emphasizing that political accountability is important and should be pursued regardless of whether legal accountability is (also) available!) As I wrote in my last post, Brown J’s invention of a convention of prompt appointments to serve this purpose is indefensible. Even if violations of conventions are justiciable, they have to be real conventions that exist out there in the political world, and not judicial concoctions. Is there something else?

This is not obvious, to say the least. It is entirely fair to note that both the Constitution Act, 1867 and the Federal Courts Act make the appointment of judges pursuant to their respective provisions mandatory, using the word “shall”, and that, as Brown J suggests, it would be disturbing if the executive could undermine legislative choices as to the number of judges by refusing to fill the judicial positions created by provincial legislatures and Parliament. At the same time, no one, including Brown J, actually believes that any vacancy existing for any length of time is ipso facto a constitutional or statutory violation. The mandatory language in the relevant provisions is, it would seem, subject to an implicit qualification accepting at least some degree of churn ― and executive discretion.

That said, this discretion cannot be unlimited either ― Roncarelli v Duplessis, [1959] SCR 121, tells us this much. A Roncarelli-like scenario, where the executive misused its discretion for an improper purpose ― for example to punish a recalcitrant court by refusing to make appointments ― should be easy for a court to deal with. This is not a far-fetched hypothetical: think, again, about the Alani litigation concerning the Senate, and also of the delays in making appointments to the Supreme Court after the debacle of l’Affaire Nadon. But I don’t think that there is any suggestion of improper motive in the current situation; that would be, to quote the one and only Sir Humphrey Appleby, to mistake lethargy for strategy.

Professor Walters suggests what might be a further constraint on advice-giving discretion:

at least in those cases where the reasons for advice are publicly given or can otherwise be established through evidence … the question of whether those reasons are consistent with constitutional values and structure may well be, in the appropriate circumstances, a question of law for the courts to determine. (40)

But that doesn’t help much. The whole problem in Hameed is that there is no advice, and seemingly no specific reasons for the lack of any. Again, lethargy, not strategy. Moreover, even apart from that, a government may be able to argue (though I take it that it has not in fact argued) that its slowness in appointing judges is due to the difficulties it encountering in balancing relevant values, such as diversity, with the operational needs of the judiciary. If the reviewing court is inclined to be deferential ― and, as the Supreme Court reminded us in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, courts are supposed to be deferential to executive value-balancing, whether that makes any sense or not ― then this may well be enough to let the executive off the hook.

Lastly, there is the Miller II move: there, the UK Supreme Court said that prerogative powers are implicitly limited by constitutional principles, such that any use of the prerogative that undermines relevant principles needs to be justified by the executive as being proportional to the interference with the principles in question. There is at least an argument for treating constitutionally codified powers in the same manner as prerogative ones ― though I’m not sure that’s right. If this argument is accepted; and if, further, the Miller II reasoning is to be taken at face value; then it might work in the specific circumstances of Hameed, the government having, rather like in Miller II, not bothered to justify itself. But, for my part, I am not at all convinced that Miller II should be taken at face value: I have argued that, instead, what it really did was to enforce a putative constitutional convention governing the permissible length of prorogations, identified pursuant to an implicit application of the same sort of test I described in my last post. If that is so, then we are back to square one, since there is no plausible constitutional convention to be enforced here.

So there you have it: I think that failure to ensure that judicial appointments take place to fill the vacancies on Canadian courts is, in principle, judicially reviewable, but there is probably no standard by which timeliness of appointments, as opposed to something like an outright refusal to make any, could be assessed, which makes the question ultimately non-justiciable. That said, I am more confident about the first part of this conclusion than the second ― that is, about reviewability-in-principle than about the lack of standards. This case is complicated, and closer than I thought at first.

What isn’t close is the underlying question of what needs to be done. The government should just get on with making those judicial appointments. They may well have sound arguments for avoiding being told to do so by a judge. But this should never have come to litigation in the first place. The Alani case ultimately became moot when the government accepted its constitutional responsibility for appointing Senators. Ideally, Hameed should be concluded in the same manner.

Putting the Courts Together Again

The Federal Court orders the government to get on with appointing judges. But its judgment is very badly flawed.

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.

#LOLNothingMatters

The Supreme Court’s decision to uphold deferential review of administrative decisions that implicate “Charter values” is deeply unserious

I’m a bit late to the debate, I’m afraid, but I did want to say something about the Supreme Court’s decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, delivered last week. The decision is very significant insofar as it purports to uphold the approach to judicial review of administrative decisions implicating constitutional rights and vibes first outlined in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which had been severely criticized by both judges and scholars of administrative law, and whose validity was specifically left in doubt in Vavilov v Canada (Citizenship and Immigration), 2019 SCC 65, [2019] 4 SCR 653.

Co-blogger Mark Mancini has already explained what was at stake and made many astute observations about the case, in particular about the practical difficulties that are likely to result from it. I will not say much about the substance of the decision, on which I have little to add to my own previous criticism of Doré and its progeny and to Mark’s post, or its consequences. My focus is on SCFTNO’s disregard of legal authority and of the artificial reason of the law on which judges depend for no small part of their authority. Specifically, I will argue that SCFTNO is inconsistent with several important cases or lines of cases, including Vavilov, as well as recent cases on constitutional interpretation and, arguably, even Doré itself. Moreover, Justice Côté’s reasons for the unanimous court do not respond to the academic and judicial criticisms of Doré. In short, they make no effort to integrate the decision into the fabric of Canadian law. They are the work product of a court that does not understand or does not care about law at all.

As most readers will know, SCFTNO was a judicial review of the respondent minister’s refusal to exercise her discretion to allow several children whom section 23 of the Canadian Charter of Rights and Freedoms did not entitle to attend the applicant’s schools to nevertheless do so. This could have been decided simply enough, by pointing to Vavilov’s admonition that decisions that have very significant consequences for the individual concerned must be thoroughly justified and holding that the Minister’s justification was not sufficient. I think there is a fairly strong case for saying that a decision as to whether children can attend school in the language of their parents’ choice is a important one, calling for substantial justification. The case for holding that the reasons were insufficiently responsive would have been a closer one, but not implausible either. But the Supreme Court did not choose the easy route.

Instead, it held that “the Minister was required not only to consider the values embodied in s. 23 in exercising her discretion … but also to conduct a proportionate balancing of these values and the government’s interests”. [8] This is even though all concerned agreed that section 23 as such did not actually apply. Decision-makers, such as the Minister in this case, must consider “Charter values” and balance them against the government’s aims whether or not the rights associated with these values actually apply. For this proposition, Justice Côté cites Doré itself, as well as Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293. The courts will then review the decision on a reasonableness standard.

For Justice Côté, this is an easy case. “There can be no doubt about” the duty to consider Charter values “because ‘[t]he Constitution — both written and unwritten — dictates the limits of all state action’”. [65, citing Vavilov [56]] There is, moreover, “no reason to depart from [the reasonableness] standard of review”. [60] But for anyone who’s thought seriously about the issues involved, there are very good reasons for departing from reasonableness review and plenty of doubt about the propriety of forcing decision-makers to give effect to “Charter values”. It’s just Justice Côté doesn’t give a flying flamingo.

Start with deference. The same passage from Vavilov on which Justice Côté purports to rely here insists on correctness review for constitutional issues, though it specifically leaves the consideration of the standard applicable to judicial review of discretionary decisions affecting Charter rights to another day. If indeed what is at stake here is constitutional constraint of administrative discretion, the reasons for correctness review are obvious: the meaning of the constitution is a question for the courts, as Vavilov recognizes for every other context and as the Supreme Court had acknowledged long before. For example, as I noted in the article linked to above,

in Re Manitoba Language Rights, [1985] 1 SCR 721, the Court pointed out that ‘[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the constitution’ and any arrangement whereby constitutional compliance is left to the executive’s discretion “would be entirely inconsistent” with this duty. (7, citing Manitoba Language Rights at (754))

There is more. As I pointed out in that article and as Mark has argued in his own work on this subject, Vavilov pulls the rug from under the justification for reasonableness review that was given in Doré. The argument there had been that administrative decision-makers were experts in applying their “home statutes”, and that expertise extended to the application of constitutional values to the legislation. This was consistent with the rationale for broader judicial deference to the administrative state that the Supreme Court had given in the then-leading case, Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. But Vavilov rejects expertise as a rationale for deference, and endorses an altogether different one, namely legislative intent. It is not crazy (although still wrong) to suggest that the delegation of decision-making power to officials necessarily implies a delegation of interpretive power over the enabling legislation, which it has enacted, to the exercise of which courts can defer; it is in effect a sort of implied Henry VIII clause (*shudders*).

Yet a legislature cannot require, implicitly or explicitly, courts to defer to the executive’s views about the import of the constitution, no more than to its own: nemo dat quod non habet. If deference in constitutional cases is warranted, this can only be for reasons implicit in the constitution itself. It is worth noting that Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504, on which Paul Daly relies for the proposition that administrative decision-makers can consider the Charter specifically explained that this would not endanger the constitutional order because their decisions would be subject to judicial review on a correctness standard.

Thus, deference to administrative decisions implicating the Charter does not sit easily, to put it mildly, with Vavilov and with broader constitutional principle. At a minimum, Justice Côté ought to have explained on what basis such deference is now justified. But she could not be bothered. Instead, she went for the cheap rhetorical trick of claiming that her position was self-evidently right. If she did not see that this was not so, she is a much worse lawyer than I thought. If she did, she wrote in bad faith. I’m not sure which of these alternatives is worse.

Before leaving the issue of the standard of review, it is important to note that, as Mark points out, Justice Côté’s approach to reasonableness review is also inconsistent with Vavilov in two important ways. As Mark explains, “remarkably, it may be a requirement for decision-makers to consider Charter values even where not argued” by the parties. And, to quote Justice Côté again (though Mark makes this point too), while “[a]s a general rule, a reviewing court must not, in assessing the reasonableness of a decision, reweigh the factors underlying the decision”, [71] “the Doré approach requires reviewing courts to inquire into the weight accorded by the decision maker to the relevant considerations in order to assess whether a proportionate balancing was conducted by the decision maker”. [72] This is antithetical to any sensible definition of reasonableness review.

In other words, Justice Côté seems to have endorsed ― nay, required ― disguised correctness review when “Charter values” are at stake, while proclaiming that she “cannot see” why anyone would question the applicability of the reasonableness standard. I don’t know whether to laugh or to cry. This is simply unserious “reasoning”, unless Justice Côté is playing some sort of four-dimensional chess in order to quietly eviscerate deference in the guise of upholding it. More on why she just might be doing that below, but it is worth recalling that, when they play deference chess, judges can only lose, even to themselves.

Consider now the supposedly indubitable administrative duty to consider “Charter values” as part of the executive’s duty of compliance with the “unwritten constitution”. The most obvious thing to note here is that, after Vavilov, the Supreme Court decided Toronto (City) v Ontario (Attorney General), 2021 SCC 34, where the majority purported to cut the unwritten constitution down to size. To be sure, what was at issue there was a constitutional principle, not “Charter values”, and the claim was that the principle could be invoked to invalidate legislation, not just an administrative decision. Perhaps these are important distinctions, though to my mind that is not obvious. And of course I have argued here that City of Toronto itself was not at all convincingly reasoned. Perhaps Justice Côté agrees! But if so, she needs to say this. Instead, once again, she simply breezes past the difficulties and does not even begin to explain how she deals with them.

The broader point is one that Mark makes in his post. The idea that “Charter values” can be used to, in effect, expand the Charter’s protections, or at least (and I’m not even sure about that) some toned-down versions of these protections, to people who, by everyone’s admission do not benefit from them according to the Charter’s text is flatly inconsistent with City of Toronto and with the Supreme Court’s other recent decisions. As I have argued (and as others have noted too), the majorities in these cases adopted textualist and sometimes even originalist approaches to constitutional interpretation, according to which courts ― and, one would have thought, administrative decision-makers too ― are to apply the Charter’s text and not an expanded edition incorporating the Supreme Court’s own idea of what our constitution ought to be. Here, at least, City of Toronto, with its explicit rejection of the use of unwritten norms to expand the deliberately chosen wording of Charter rights seems pretty much on point ― and on more solid ground than in its broader attack on written constitutional principles, since in this it follows British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473.

For this reason, I am not persuaded by Professor Daly’s invocation of a “constitutional settlement” that has embraced “the decentralization of the Canadian Constitution”, by which he means the Supreme Court has allowed administrative decision-makers to decide constitution questions. It’s one thing to say that these decision-makers are required to endeavour to comply with the constitution. It is another, as I note above, to take the further step, as significant as it is indefensible, to demand judicial deference to these decision-makers’ views. But it is a further step still, and no part of a “settlement” as I will further explain below, to say that it is not just the actual constitution that has been “decentralized”, but also the vibes that the courts, and perhaps decision-makers too, feel when they dream about the constitution they would like Canada to have.

Be that as it may, Justice Côté again doesn’t deign to say anything about any of this. One thing she does do throughout her judgment is invoke the specialness of section 23 of the Charter. This provision “imposes positive obligations on the state” and “is therefore meant to alter the status quo”. [2] It also grants collective and not merely individual rights. But section 23 is unique in another way too. It is quite obviously the product of a careful political compromise, granting robust protection to some people and withholding it from others (subject, of course, to legislatures adding similar entitlements by statute, or indeed to the executive doing so in exercising statutorily-enabled discretion). As Benjamin Oliphant and I have noted, both early cases on section 23 and some more recent ones (though admittedly not all) have made a point of noting this origin and held that it ought to have consequences for how this provision is to be interpreted. This is consistent with how the Supreme Court has approached other cases involving positive obligations of the state and collective entitlements, such as British Columbia (Attorney General) v Canada (Attorney General), [1994] 2 SCR 41 (the Vancouver Island Railway Case) and Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511.

Needless to say, expanding the entitlements created by section 23 to (at least some) people not covered by it upsets the compromise the constitution embodies and is inconsistent with those cases that have emphasized its significance. Once again, Justice Côté says nothing about this, though she does note that the Court is not “endorsing freedom of choice of the language of instruction, a model expressly rejected by the framers under s. 23”. [103] Well, if the choice of the framers of section 23 matters to that extent, why doesn’t it matter in full? On a practical note, when parents in Quebec start relying on “Charter values” to get their children into English public schools, it will be time to get out the popcorn. Justice Côté is trying to caveat her way out of this problem, but that won’t be enough. As the Charter’s framers understood, sometimes you need bright line rules. The Supreme Court’s endorsement of “Charter values” undermines this choice too, as well as that which defined the scope of section 23.

It is surely no accident that an opinion so replete with incoherence, self-contradiction, and disregard of authority fails to engage in any sort of dialogue with both academic and judicial opinion on the issues it decides. I have already noted that I have criticized the Supreme Court’s jurisprudence mandating, or purporting to mandate, judicial deference to administrative decisions affecting rights. So has Jonathan Marynuk, here, and Edward Cottrill. Mark has pointed out that this jurisprudence had no justificatory leg to stand on after Vavilov, and I have made this argument too. Of course, it is a bit greedy to expect the Supreme Court’s to respond to one’s criticism of its decisions, if only in substance (I am not so naïve as to hope for citations). But only a bit. After all, Doré itself purported to respond to academic criticism of the Court’s earlier approach to administrative decisions implicating the Charter.

And even if the Supreme Court’s ignoring unruly academics is to be expected, the Doré framework generally and its reliance on “Charter values” specifically have been called into question by judges too. The best-known examples of this are probably the joint opinion of Justices Lauwers and Miller in Gehl v Canada (Attorney General), 2017 ONCA 319 and that of Justice Lauwers, with Justice Miller concurring, in ET v Hamilton-Wentworth District School Board, 2017 ONCA 893. In the former, Justices Lauwers and Miller point out that

Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application. Their use injects a measure of indeterminacy into judicial reasoning because of the irremediably subjective — and value laden — nature of selecting some Charter values from among others, and of assigning relative priority among Charter values and competing constitutional and common law principles. The problem of subjectivity is particularly acute when Charter values are understood as competing with Charter rights. [79]

These are compelling, or at any rate very serious arguments. Justice Côté has no answer for them.

And there is another noteworthy judicial critic of the Doré line of cases, as persuasive as any and more important than the others by virtue of her office. It is, of course, Justice Côté herself. This is why I suggested above, if only in bitter jest, that Justice Côté might be trying to undermine Doré while purporting to uphold it. Her joint dissent with Justice Brown in Trinity Western cautioned that rights claims are to be disposed of by applying “legal principles that guide the relationship between citizen and state, between private and public. And those principles exist to protect rights-holders from values which a state actor deems to be ‘shared’, not to give licence to courts to defer to or impose those values.” [265; emphasis removed and added] Chief Justice McLachlin and Justice Rowe, whom Mark quotes in his post, also challenged the legitimacy of the use of “Charter values”.

Hence, I do not think that one can speak of a “constitutional settlement” requiring the use of “Charter values”. It’s not just that the Supreme Court cannot effect a settlement that subverts the one reached by political actors who were amending the constitution in accordance with the relevant rules, though it certainly can do no such thing. But it is also, in addition, simply not the case that there existed ― until, seemingly, now ― a consensus on the Supreme Court itself, let alone within the broader judiciary and the Canadian legal community ― to the effect that such a settlement would be desirable or even defensible.

The Supreme Court’s failure to address any of these issues in a decision on a point of fundamental constitutional importance (and one that, whatever Justice Côté may say, was very much not open and shut), is a serious matter. Supreme Courts, as Justice Jackson famously observed, are not final because they are infallible but only infallible because they are final. If they are to have greater authority than that of ipse dixit, they cannot rely on finality alone. They need to engage in a reasoned dialogue with other courts and even, at least on occasion, with academics. They don’t have to agree with us; that much their finality means. But to act as if no one else had views worth considering on the issues they decide is a conceit that risks being fatal to their credibility. #LOLnothingmatters is the maxim of a troll, not a jurist.

The CSFTNO decision is inconsistent with precedent, as well as with constitutional sense, and instead of explaining itself it affects to be self-evidently correct. It refuses to engage with well-reasoned critiques of the precedents it purports to apply, effectively telling the critics, whether academic or judicial, not to bother engaging with the Supreme Court’s pronouncements. After all, even a Supreme Court judge can flip-flop from being a vigorous critic of an idea to its enforcer and not bother giving an account of her change of heart.

Years ago, I wrote here about a symposium I attended about “the responsibility of doctrine”. I took the occasion to discuss the very different, but nonetheless related, ways in which common lawyers and civilians use that word. The key similarity that unites them despite the differences is this:

The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. … And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

Justice Côté’s opinion for the Supreme Court in CSFTNO disclaims its responsibility to be part of collective thinking about the law. It is an exercise of unreasoned power, a flex. No number of roadshows can restore the credibility of a court that behaves in this fashion.

Bonkerstown Bypass

The “math is racist” decision is overturned―on narrow grounds that give little guidance for the future

Last week, the Court of Appeal for Ontario issued its decision in Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788. The case was the appeal from the notorious “math is racist” decision of the Divisional Court, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, about which I blogged here. The Court of Appeal, contrary to the Divisional Court, holds that the math and pedagogy test (the Math Proficiency Test [MPT]) that aspiring teachers are required to take in Ontario does not discriminate against non-white candidates. But the decision’s scope is very limited. It is based on additional evidence that was not available to the Divisional Court, and while it provides useful guidance on assessing evidence in cases alleging violations of the Charter’s equality guarantee, it neither calls into question the legal framework applicable to such cases (which in fairness, is not the Court of Appeal’s role) nor points out the Divisional Court’s public law mistakes.

Justice Monahan, writing for the unanimous court, sets out the basis for the decision quite succinctly:

The Divisional Court made its findings based on the July 2021 Data, which recorded the results from the approximately 3600 candidates who had attempted the MPT by July 26, 2021. The July 2021 Data disclosed that … White candidates had passed the MPT at a materially higher rate than had racialized candidates.

The July 2021 Data before the Divisional Court provided a preliminary and incomplete basis for assessing the impact of the MPT on entry to the teaching profession. Candidates who had not passed the MPT could rewrite the test an unlimited number of times, and fewer than half of the candidates who would eventually attempt the MPT in 2021 had done so by July 26, 2021. This was an insufficient evidentiary record that failed to discharge the respondents’ onus under s. 15(1) of the Charter.

… December 2021 Data discloses that of the 8350 candidates who attempted the MPT one or more times during 2021, 95% were successful, including 93% of candidates from racialized groups. Moreover, had the MPT been available in 2022, candidates who had not succeeded in 2021 would have had the opportunity to retake the test. Thus, the ultimate disparities in relative success rates between different demographic groups might well be even smaller than the relatively modest differences observed in the December 2021 Data. [6-8]

What matters, according to Justice Monahan, is whether the white and non-white test-takers are able to enter the teaching profession at similar rates, not the outcome of any particular test attempt. There is no evidence that having to retake the test is a material disadvantage; there is no need to wait any significant amount of time before resitting; no harm ― no foul. This is sensible so far as this particular arrangement is concerned, but note how little the decision really matters for the future: in effect, the test is upheld because failure has no meaningful consequences. The test isn’t really much of a test.

Justice Monahan’s comments about statistical evidence in discrimination cases are worth noting, but they too might turn out not to be very consequential. He points out that “the number of candidates who had self-identified as members of racialized groups” in the data considered by the Divisional Court

was quite small, representing a fraction of the total number of MPT test takers in 2021. Moreover, because the absolute numbers were small, relatively small changes in the numbers would have an outsized impact on the success rate (expressed in percentage terms) for racialized candidates. [71; footnote omitted]

Justice Monahan adds that “the Divisional Court did not explain why it was appropriate to draw firm conclusions about the impact of the MPT on racialized teacher candidates in Ontario from such a small sample size”. [71] But that is not fair. The Divisional Court did address this concern. It wrote that demanding more extensive data

is akin to suggesting that more racialized candidates must attempt and fail the MPT to accumulate the data necessary to show a disproportionate impact. The fact that a greater adverse impact could be demonstrated over time does not mean that there is no adverse impact now. While evidence is necessary, it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory. [Div. Ct., 85]

Of course, the flaw in this reasoning is that it presumes that early trends will simply continue. We know now that they did not, and this might have been anticipated in the circumstances, as the resit attempts allowed groups that were not initially as successful as others to catch up. But then again, the catching-up would presumably not have happened if there had in fact been some deep problem with the test. As I wrote in my post about the Divisional Court’s decision, “[t]here is a logic to” saying that “it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, though “but “that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture”.

In other words, a difficult question arises here: how does a court faced with a disparate impact discrimination claim balance the need for sufficiently robust data to support it against the concern about making people wait and suffer discrimination? It is the Court of Appeal that doesn’t explain why it disposes of this question as it does, even as it chides the Divisional Court for its alleged failure to explain itself. The explanation, I suspect, is implicit: facts are stubborn things, as John Adams long ago pointed out, and once the more complete data are admitted into evidence, it would take a peculiarly bloody-minded court to ignore them. But of course this too doesn’t give future litigants and courts a great deal of guidance.

Perhaps this is because the Court of Appeal is simply stuck with a legal framework foisted on it by the Supreme Court, and could not resolve the paradoxes that this framework throws up even if it tried. The difficulties I have just outlined are inherent in allowing statistics to ground claims of unconstitutional discrimination even if no one can offer a plausible hypothesis about how these statistics have come to be. A general invocation of “systemic racism/sexism/discrimination” isn’t an explanation of course ― it simply begs the question. Getting rid of disparate impact claims entirely would of course solve these problems. Short of that, one might at least require a claimant to explain exactly how the system works to produce this specific set of disparate outcomes. Statistical evidence would then be no more than useful supporting evidence, rather than the foundation of the claim, and its weakness would be less of a concern. In any case, these are things for the Supreme Court to think about.

What the Court of Appeal could and should have done better with is the basic question of the issue in this case and, relatedly, the standard of review and the eventual remedy. Justice Monahan describes the issue as “[d]id the Divisional Court err in finding a prima facie breach of s. 15(1) of the Charter … and [d]id the Divisional Court err in holding that any infringement of s. 15(1) caused by the MPT is not justified under s. 1 of the Charter?” [64] But this is ambiguous as to the nature or cause of the alleged “prima facie breach” or, to use more textually grounded language, limitation of the s 15(1) right. Is the claim that s 15(1) is limited and eventually breached by the specific test that was administered to would-be teachers, or to the statutory provisions authorized it?

The distinction doesn’t just matter for the sake of intellectual rigour. Under existing Supreme Court precedent, it makes a difference to the standard of review. If only the actual test that was administered is at issue, it should arguably be reviewed as a discretionary decision, and thus subject to deference under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and its progeny. If the statutory provisions themselves were being challenged, then correctness review was in order. The Court of Appeal follows the Divisional Court in applying correctness review, but doesn’t explain whether and why the provisions authorizing a test were being challenged despite the evidence dealing almost exclusively with the test that was actually administered and its outcomes. And of course, if the Court of Appeal had upheld the Divisional Court’s findings, the proper remedy would also have turned on the nature of the claim. As I wrote in my post about the Divisional Court’s decision, I don’t think there was a basis for invalidating the legislative provisions enabling the test, and yet the Divisional Court did just that. It looks like the Court of Appeal could have done the same, and we are none the wiser as to why.

The Court of Appeal’s decision is, obviously, better than the alternative. That alternative, as I wrote in my post, was “desperately sad”:

The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. … This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

But the survival of this particular test, for no more compelling reason than that it doesn’t ultimately prevent any significant number of people ― of whatever race ― from becoming teachers, isn’t exactly a cause for joy. The contrary outcome would have been bonkers, but the Court of Appeal doesn’t, and in fairness can’t, prevent it from occurring in a future case. It merely bypasses, for now.

Montreal and Aboriginal Law

Is Montreal built on unceded Indigenous land? No, actually

Guest post by Maxime St-Hilaire

This post is translated and adapted (by L.S.) from the original version published at À qui de droit

I have recently had an email exchange with a colleague from McGill, and noticed that their signature included the following statement: “McGill University is located on unceded Indigenous land Tiohtià:ke – Montreal”. Tiohtià:ke is the Mohawk name of the Monreal area. As the colleague in question is not an expert in this area, I surmise that this assertion is in more or less common use at McGill.

And not only there. For instance, on October 26, 2021, Radio-Canada’s “Indigenous Spaces” page published an op-ed by a “lawyer specializing in aboriginal law for about 10 years” under the heading “Montreal, unceded territory: what does the law say”? Here is an excerpt:

Montreal is an unceded Indigenous territory. This is an unchallengeable fact. You can search the archives night and day, you will find no evidence to the contrary. Never did an Indigenous nation give these lands to the ancestors of the non-Indigenous Canadians.

Indeed, what really happened was quite different. When Jacques Cartier made his first visit, having erected his cross at Gaspé, and when de Maisonneuve et Jeanne Mance first began settling the island, they didn’t ask for anyone’s permission. They unilaterally decided to take possession of these lands as if they had been unoccupied.

Already the following year [i.e. after the foundation of Montreal], the Guardians of the Eastern Gate of the Haudenosaunee Confederation (i.e. the Mohawk) set out on a reconnaissance mission to meet the new French settlers. A series of Iroquois raids on Ville-Marie [as Montreal was then known] follows, in an attempt to dislodge the invaders. Thus, by then, the Mohawks already occupied the Upper-Saint-Lawrence region.

Claims to the effect that these lands were unoccupied are rooted in the discovery myth, also known as the terra nullius doctrine.

Of course, there is a debate as to which Indigenous people occupied the territory of the island of Montreal. Anichinabé, Mohawk, Abénaki and other Indigenous nations may have done so at one point or another in their history. The island may have served as a gateway or a shared space. But this debate (which the nations concerned should settle themselves) takes nothing away from the fact that Indigenous peoples were present on the island before any of those whose ancestors got off a boat.

This gets any number of things wrong. The op-ed purports to answer the question “what does the law say?”. But as a matter of positive Canadian state law, the 2005 companion cases of Marshall and Bernard suggest that, in order to claim Aboriginal title to a territory, an Indigenous group must have occupied it exclusively (and “sufficiently”) at the moment of the British assertion of sovereignty. So far as Montreal is concerned, the relevant time is that of the Treaty of Paris and the Royal Proclamation: 1763. Yet at that point, the island of Montreal was not occupied by any Indigenous people in the necessary way.

Moreover, it is pointless to look for a cession in an area where, as a matter of fact, European settlement only occurred outside the territories occupied by Indigenous peoples ― as seems to have generally been the case in New France (see Michel Morin and also Sylvio Normand’s writings). Thus, even if we were to ignore the importance of the British assertion of sovereignty in Canadian law, and set the relevant time earlier, back to French settlement of Montreal, still it would be fruitless to look for cession or to describe this territory as “unceded”.

And furthermore, while French public law and treaties were not given effect by British and then Canadian law following the conquest of New France (see the 1996 Côté case), it is important to understand that France never applied to the terra nullius doctrine to the Indigenous peoples. Rather, alliance treaties were concluded with them. And, so far as international law was concerned, this doctrine was rejected by the Pope as early as 1537. The weight of the scholarly opinion was also against it.

Lastly, we must come back to two key historical facts. First, it is far from a given that the present-day Mohawk are the descendants of the Saint-Lawrence Iroquois, who had dispersed by 1580 (John P. Hart, Jennifer Birch and Christian Gates St-Pierre). And second, however that may be, and whatever the history of the Iroquois and Mohawk presence in the “Upper-Saint-Lawrence region” ― a region vastly larger than the island of Montreal alone ― the island itself was seemingly not occupied by the time of French settlement in 1642, let alone British conquest.

One final thing: let me point the reader to a series of posts (here, here, here, here and here) over at À qui de droit on the myth of the “discovery doctrine”.

Can Do Better

An interesting, but seriously flawed, decision on the separation of powers

Today, the Court of Appeal decided Canada Christian College and School of Graduate Theological Studies v Post-Secondary Education Quality Assessment Board, 2023 ONCA 544, a public law case that raises a number of interesting questions ― not all of them intentionally. The facts are simple. In 2020, the Legislature enacted a law authorizing the appellant College to call itself a university and grant degrees. But, like many laws, this one would only come into force only if and when proclaimed by the Lieutenant Governor, on the government’s advice of course. This one never did. On the contrary, the relevant minister, following the respondent Board’s advice, recommended against bringing the legislation into force “at this time”. This recommendation was followed. The College applied for judicial review.

There are a few other issues the Court of Appeal deals with, but the one I am interested in has to do with the lawfulness of not bringing the legislation into force. Writing for the unanimous court, Justice Sossin notes that “[t]here is no suggestion in the record that proclamation was being taken off the table, or that the question would not be reconsidered” [43] in the future. He further observes that “[t]he discretion to determine when proclamation would occur is a power expressly provided through the commencement provision in the Act. Exercising this discretion … was precisely what the commencement provision contemplated.” [44]

He adds, though, that “[w]hile the Minister’s exercise of this lawful authority is entitled to deference, the power of a minister to defer proclamation is in no way unlimited”. [45] At the prompting of the Canadian Constitution Foundation, which intervened in the case, Justice Sossin explains that “it would not be open to a Minister to decide that an enacted statute will never be proclaimed”. [50] On the contrary, “[t]he discretion to exercise the authority conferred by this commencement provision is subject to the same constraints that apply to all exercises of ministerial discretion”. [53] In particular, as Justice Rand argued in Roncarelli v Duplessis, [1959] SCR 121, statutory discretion must be exercised consistently with the statute’s “perspective”. As a result, “[t]he legitimate grounds for delaying proclamation must be related to the conditions necessary for implementing the legislation”, [54] and “the executive” is subject to a “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision”. [55]

In this, Justice Sossin follows the House of Lords in R v Secretary of State for the Home Department, ex p the Fire Brigades Union, [1995] 2 AC 513, which he discusses at some length. As he explains, in that case, the House of Lords “held that the Secretary of State was under a duty to keep under consideration from time to time whether or not to bring [unproclaimed statutory] provisions into force”, [58] and further, that the the Secretary could not so exercise a prerogative power as to make it impossible that he or a successor would decide to bring the statutory provisions into force. (Justice Sossin’s phrasing here is a bit confusing ― he does not make clear that Fire Brigades involved the exercise of a separate prerogative power so as to frustrate the statutory power to bring provisions into force.) The upshot is “that it is for Parliament, not the executive, to repeal legislation”. [58] But this is not what is being alleged here: since it is, seemingly, possible that the legislation will eventually be brought into force, the matter stands differently than in Fire Brigades.

I am glad that the Fire Brigades Union‘s case is discussed in a Canadian judgment; all too often Canadian administrative law is parochial and ignores directly relevant lessons from elsewhere in the Commonwealth. But beyond that, Justice Sossin’s reasons raise some difficult questions.

To begin with, discussing relevant House of Lords authority is well and good, but what about Supreme Court authority that binds* the Court of Appeal? Specifically, the Criminal Law Amendment Act Reference, [1970] SCR 777, a.k.a. the Breathalyzer Reference, which also addresses a ministerial decision not to bring provisions into force. Granted, there was an extra twist there in that the government had brought most of the relevant statutory scheme into force, only leaving out the defences of which an accused might have availed him- or herself. But, much as in Fire Brigades, the question was whether the executive could in effect repeal legislation by failing to proclaim it into force. As I noted when I discussed the Breathalyzer Reference here,

Despite vigorous dissents pointing out that the government effectively re-wrote what Parliament had enacted without having any clear authority to do so, Justices Judson and Hall both insisted that “provisions” could be any parts of the bill. And if, as Justice Hall diplomatically put it, “proclaiming parts only of” the scheme enacted by Parliament “may indicate on the part of the executive a failure to live up to the spirit of what was intended by Parliament”, (784-85) that wasn’t the courts’ concern. Justice Laskin (as he then was) was even worse, arguing that “we should be very wary of judicializing the exercise of the very broad executive power conferred by Parliament”. (801)

Surely these remarks from the Supreme Court warranted a comment from the Court of Appeal. I personally find it very difficult to distinguish Canada Christian College from the Breathalyzer Reference. But if Justice Sossin and his colleagues thought that a distinction exists, they ought to have explained it. (To the extent that the government lawyers did not alert the Court to the Breathalyzer Reference, that is not a great look for them; indeed, some might think that even the appellants and the CCF should have alerted the court to this binding authority.)

I happen to think that the Breathalyzer Reference was a terrible decision. In the post already linked to, I pointed out that

its abdication of the judicial duty to interpret the law and to see to it that Parliament’s will is carried out, antithetical to the separation of powers and the Rule of Law, still infects the Supreme Court’s jurisprudence ― above all in administrative law.

If the damnatio memoriae performed by the Court of Appeal is part of the Canadian courts’ walking back that abdication, it has at least that silver lining. But if it is simply per incuriam, a failure to consider an opinion that, as I wrote, is “somewhat obscure” ― or perhaps very obscure indeed ― that is unfortunate. Doubly so, perhaps, because it is not only a failure of legal craft, but also a missed opportunity to alert the Supreme Court to the need to revisit this misbegotten precedent.

The second question I have about Christian College concerns my old bugaboo, judicial deference to the executive on questions of law. Here, the comparison with Fire Brigades is instructive. We ― and I assume other law schools in the UK ― teach Fire Brigades in constitutional law; for that matter, I also learned about the Breathalyzer Reference in constitutional law at McGill. As Justice Sossin’s summary of Fire Brigades makes clear, it’s a case about the separation of powers and the respective roles of Parliament and the executive ― and the courts’ role in policing the boundaries between the political branches, too.

But, evidently, that is not how Justice Sossin thinks of Christian College. He sees at as an administrative law case, subject to administrative law rules about judicial deference to the executive. He frames the issue as whether the Minister’s decision not to recommend that the legislation be proclaimed was unreasonable and, as already noted, says that the minister’s “exercise of this lawful authority is entitled to deference”. Justice Sossin is not simply saying that, once it is established that the minister’s recommendation was lawful, it is not to be disturbed, which would be trite. Deference is built into the determination of lawfulness.

But why is that? If indeed this is a constitutional case about the separation of powers, about whether a minister improperly repealed an Act of the Legislature, why does the minister get the benefit of judicial deference, of which there is, quite rightly, no hint in Fire Brigades? I think this is a mistake even under the standard of review analysis established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. There, the majority stressed that

[q]uestions regarding … the relationship between the legislature and the other branches of the state … require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions. [55]

It is bad enough that Vavilov continues to require courts to abdicate their duty to say what the law is and to take the side of the executive against the subject by deferring to its interpretation of legislation. But whatever specious justifications may be proffered for this misbegotten practice, they do not apply to separation of powers issues between the executive and the legislature. In Vavilov, the Supreme Court justifies deference by the fiction of legislative intent. How conceivable is it that the legislature intended courts to take the executive’s side against itself?

The third and last question I have about Christian College also arises from the Fire Brigades analogy. It is simply this: what follows from this fine assertion of the separation of powers? As I see it, the “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision” is a paper tiger. In Fire Brigades, the members of the majority were all quite clear that it gave rise to political questions that prevented any judicial enforcement. The Secretary of State had, perhaps naïvely, been forthright enough to say he would never bring the statute into force. His successors would be warned by their officials not to say that. The matter is under consideration, they would say. And the courts would do no more. (“The matter is under consideration”, said Sir Humphrey Appleby, “means we’ve lost the file. The matter is under active consideration means we’re looking for it.”)

I do not mean to insinuate that the Minister here was insincere and would not reconsider the decision not to proclaim the legislation into force if relevant circumstances changed. I don’t know much about the story, so I wouldn’t want to suggest anything about the specific facts and am happy to assume perfect good faith. But for future cases, the duty identified by the Court of Appeal will mean nothing ― absent some special circumstances. The Breathalyzer Reference, I think, did present special circumstances, because of the way that only some provisions of a statutory scheme were brought into force, changing the balance Parliament had struck. I think that in a case like that a person charged under the provisions that had been brought into force should be able to challenge the lawfulness of the prosecution. That’s a very different matter, though, from attempting to force the government to bring a whole statutory scheme into force.

To the extent Christian College undermines the intellectual authority of the Breathalyzer Reference, such as it was, it is still a valuable decision. But it does not address that case in the way it had to, and it does not comply with much more recent precedent about the standard of review of ministerial decisions either. I am glad for the CCF, which successfully pressed the separation of powers point, but this is not a great performance from the Court of Appeal.

*NOTE: As Emmett Macfarlane reminded me, this is somewhat loose language. Strictly speaking, reference opinions are not binding precedents. But they are unfailingly treated as such, and even if not strictly biding, they are very highly persuasive indeed, especially for lower courts.

And Again

Confidence, not head counts, is the key to responsible government

I thought I was done with dispelling government formation misconceptions, having responded in detail here and here to claims that the party winning a plurality of seats in the House of Commons was somehow entitled to form government even if it lacked an overall majority. But I return to this issue, briefly, to address the converse mistake: the claim, advanced by Patrice Dutil in a Macdonald-Laurier Institute Inside Policy essay, that “[r]esponsible government requires the support of the majority of the House of Commons”, so that “in order to form government in a parliament that is split among five parties, one of them must earn the support—at least the tacit support—from the others”. This is, at best, an oversimplification of the conventional position.

As explained in my previous posts, what responsible government requires is for the ministry to maintain the confidence of the House of Commons. Whether the ministry is doing this is assessed by its ability to win certain key votes: that on the Speech from the Throne, which outlines its legislative programme, at the beginning of a new session of Parliament, and then mainly “money votes” on taxes and spending, as well as anything that the ministry itself designates as a vote of confidence, or a motion of non-confidence brought by the opposition. This has a couple of important corollaries.

One is that at no point does the ministry actually need “the support of the majority”. It simply needs not to be outvoted. If it can win votes with less than a majority of MPs supporting it because even fewer are voting for the opposition, that’s fine. Maybe this is what Professor Dutil is alluding to this when he refers to “tacit support”, but I’m not sure that this is a fair description of all conceivable political arrangements. Tellingly, Professor Dutil’s review of political precedents runs from King’s minority governments in the 1920s to that of Joe Clark in 1979. It does not consider Stephen Harper’s governments from 2006 to 2011. These were kept in office, in part, by the opposition’s failure to vote against the Conservative government in sufficient numbers ― the opposition either abstained or made sure that too few of its members turned up to outvote the government. This did not involve any sort of lasting arrangement or even cooperation with the opposition, which was either in no position to fight an election campaign (being leaderless, penniless, or both) or afraid that an election would yield even worse results for it than the status quo. I don’t think this counts as support, even tacit, but it was enough to keep the government in office. In short, a government lacking majority support in the House of Commons can stay in office without making any sort of deal with the opposition, so long as the opposition does not bring its full numbers to bear to vote it down on a matter of confidence.

This brings me to the second corollary from the convention of responsible government outlined above. A government ― by whatever count or margin it wins the votes of confidence it must win to remain in office ― does not “require the support of the majority of the House of Commons” for anything else, constitutionally speaking. There is no impediment to a government remaining in office despite taking a loss on a legislative project or a symbolic motion, provided it has not been designated as a matter of confidence. And other than money votes and motions of no-confidence brought by the opposition, governments have the choice not to designate votes as implicating confidence. If they do so, that is a political choice for which voters ought to judge them. If a majority government whips its MPs and forces them to toe the party line on every vote, and not just on matters of confidence, that is also a political choice for which voters ought to judge it. If a government won’t allow a vote on a private member’s bill to be held, or won’t let it be treated as a free vote on which individual MPs are free to follow their conscience and/or their constituents’ wishes, that is a political choice for which voters ought to judge it.

Such judgments do not seem to be occurring in Canada, despite our governments controlling their MPs to a much greater extent than those in the UK or in New Zealand. I’m no political scientist and not in a position to speculate as to why that is the case. (One common hypothesis ― that with a smaller House of Commons than the UK, Canadian MPs are too blinded by the higher prospect of a ministerial position than their UK colleagues to show independence ― does not account for the greater prevalence of free votes in the much smaller House of Representatives in New Zealand.) But I think that misrepresenting the constitutional position, even by implication and even with the laudable intention of making it accessible to ordinary citizens, by suggesting that governments (always) need to be supported by majorities to remain in office does not help matters.

I may be wrong, of course, but I would like to think that the conventions of responsible government do not require oversimplification to be understood. A government needs to maintain confidence, which is assessed by its ability to win ― by whatever head count ― a limited set of votes in the House of Commons. All the other stuff that is being discussed these days ― pluralities, majorities, popular vote ― is largely or entirely irrelevant. It’s not that complicated.

Government Formation, Revisited

The orthodox understanding of the conventions of government formation is better than its populist rival

I am grateful to Charlie Buck for taking up my invitation to explain why the constitutional conventions of government formation in Canada have diverged from those recorded in the Cabinet Manuals of the United Kingdom and New Zealand, which I discussed here. However, I am not persuaded by his argument to the effect that, whatever may have been the case in Canada in the past, and still be the case in its fellow Commonwealth realms, our present conventions make the plurality party in the House of Commons uniquely entitled to govern.

There are several strands to Mr. Buck’s argument. First, conventions are political and flexible, and thus subject to revision from time to time as an “outgrowth of democratic impulses”. Second, the nature of Canadian politics today favours treating the plurality-winning party as endowed with a special governing mandate that any opposition coalition would lack. Third, recent (and perhaps not-so-recent) precedent favours this interpretation of the conventions of government formation. Finally, if the plurality party in the House of Commons is unable to govern in the face of a united opposition, the solution is a new election, rather than, potentially, an opposition takeover. At every step in this argument, Mr. Buck starts from truth, and quickly errs.

So far as the flexibility of conventions is concerned, there is no doubt that new conventions can add themselves to the constitution, as Mr. Buck’s example of the (arguable) convention requiring a referendum prior to any constitutional amendment illustrates. The present Prime Minister’s policy of only appointing bilingual judges to the Supreme Court is likely an attempt to create a convention, and there is nothing improper about it, though whether the attempt succeeds will depend on whether future Prime Ministers play ball.

Whether existing, established conventions can also decay or be replaced by something quite different strikes me as a more difficult question ― at least when the convention is as central to our constitutional order as those regulating government formation. At the very least, we should be wary of too quickly concluding that this has happened. This is because, if constitutional conventions are to serve as rules and as meaningful constraints on the behaviour of political actors, they cannot simply be whatever “partisans, acting on the wishes of their constituents” happen to believe. As I said in my original post, conventions must “have an existence independent of misrepresentation by either political partisans”. The issue here isn’t, contrary to what Mr. Buck suggests, whether we believe that conventions are different from law, let alone an academic’s self-serving wish to obtain “a monopoly on interpreting the nature of Canadian constitutional conventions”. It is that if the conventions are whatever a politician claims they are, then what we have is not a political constitution, but no constitution at all.

Besides, it is too easy to say that politicians “act on the wishes of their constituents”. Mr. Buck refers to no evidence of these wishes, other than the politicians’ own say-so ― and politicians just aren’t great at discerning their constituents wishes. At most, we have the unpopularity of the 2008 attempt by a coalition of opposition parties to oust the Conservative minority government. I will return to it below, but for now, suffice it to say that attributing it to an alleged belief that the plurality winner is entitled to govern is pure speculation.

What is not speculation, and needs to be taken into account, is that voters are generally ignorant of even basic constitutional rules, be they legal or conventional. This may very well result in their having wishes that are contrary to such rules. But that does not give the politicians license to break the rules. Even if a poll were to show unambiguously that Canadians would rather that a Governor General not assent to a bill passed by the House of Commons and the Senate, that would not justify the Governor General in withholding assent. Again, were it otherwise, we would not a political constitution, but no constitution at all.

I turn now to the claim that changes in the way politics are done and understood ― namely, the prominence of parties and party leaders at the expense of individual MPs ― favour abandoning the longstanding conventions of government formation in favour of a plurality-winner-take-all rule. The changes are real enough: I have discussed them here, in a post drawn from an article published in the McGill Law Journal (and based, for this part of the argument, on Bernard Manin’s historical and theoretical work and a close look at the 2011 election campaign in Canada). But they are not a compelling explanation, let alone justification, for an alleged change in the conventions of government formation in Canada.

For one thing, one has to wonder what took so long. These changes aren’t new. The emergence of political parties rather than individual parliamentarians as the dominant actors ― what Professor Manin describes as “party democracy” ― was well underway in the second half of the 19th century. The increased prominence of leaders due to their ability to speak directly to voters ― Professor Manin’s “audience democracy” takes off in the 1970s. Why would it be the case that government formation conventions only responded to these changes in the last 10, perhaps 15 years?

Perhaps even more strikingly, though: why would this only have occurred in Canada of all places? As Professor Manin explains, the tendencies to which Mr. Buck points are common to Western democracies. They certainly have not bypassed the UK and New Zealand. More than that: in the 1990s, New Zealand switched to a (mixed-member) proportional electoral system where the partisan composition of its House of Representatives depends almost entirely on the votes cast explicitly for a political party. To a much greater extent than Canada (and the UK), New Zealand has consecrated the dominance of parties over electoral politics in its law. Yet, as I have shown in my last post, New Zealand retains the traditional conventions of government formation, to whose operation the prominence of political parties and their leaders is evidently no obstacle. After the 2017 election, a Labour-led government under Jacinda Ardern took office, despite Labour winning 10 fewer seats than the National Party (in 120-member House!). There is nothing “nostalgic” about this; this is just the Westminster system operating as it always has.

Of course, Mr. Buck is right that “Westminster systems are also capable of diverging from each other”. But the whole point of the challenge I issued in my earlier post was to ask those who think like him to explain why they think the divergence has happened. What is different in Canada? Emmett Macfarlane usefully reminds us that the simple fact that plurality winners have always taken office after 1925 is not enough. Nor is Mr. Buck’s generic claim that “diversity in response to shifting environmental conditions is a strength not a weakness of the Westminster model”. What environmental conditions have changed in Canada in the way they have not in the UK and in New Zealand ― other, that is, than the self-serving claims of politicians?

This brings me to the question of precedents. Mr. Buck mentions three: the King-Byng Thing, the implosion of the 2008 opposition coalition, and the statements of major party leaders in 2015. None are conclusive.

King-Byng is inapposite, if not outright contrary to Mr. Buck’s point. If King was the good guy in that story, which I’m not particularly convinced of, it is worth recalling that he had formed a government despite Arthur Meighen’s conservatives having won more seats than his Liberals at the previous election. Not a problem then, I suppose. But more importantly, King-Byng is a very well known story throughout the Commonwealth ― I used to teach it in New Zealand, for instance ―, yet nowhere is it thought to stand for the proposition that the plurality party in the House of Commons (or its equivalent) is specially entitled to govern. It is, above all, a cautionary tale about the appearance of vice-regal partiality, and helps explain why the Cabinet Manuals of the UK and New Zealand are so insistent that the Sovereign or his representative are not to be drawn into government formation discussions, and that the politicians need to work out for themselves where the confidence of the House lies. As I pointed out in the previous post, none of that would be worth saying if the Sovereign simply needed to appoint the leader of the plurality party as Prime Minister.

As for the events of 2008, we know that the coalition was unpopular, and was unable to hold together long enough to actually oust the Prime Minister. But was that due to rejection of the principle of coalition governments without the participation of the largest party? Or to that particular coalition’s membership (notably its including the Quebec separatists)? To the personal unpopularity of its putative leader? To it being an attempt to change governments months after, rather than in the immediate aftermath of, an election? That, I don’t think we know.

The 2015 statements are a somewhat different matter, because they were seemingly explicit and on point. While I have struggled to find news stories to link to, I share Mr. Buck’s recollection of the events: “The leaders of all the major parties in 2015 [stated] that the largest party should form government”. What I do not share is his interpretation of these statements as concessions: hence the change I have made in quoting him. One needs to recall the peculiar dynamics of the 2015 election campaign, during much of which it was widely thought that all three major parties had a decent shot at ending up as plurality winners. The eventual result, an outright majority for one party, was unexpected until perhaps the final week if not the last few days of the campaign. In these circumstances, the leaders’ claims that the plurality winner ought to become Prime Minister were not concessions made against interest but demands for deference made in the hope that the would be in a position to claim this supposed mandate. As Professor Macfarlane notes, “we should be cautious about relying on statements by political leaders in the midst of election campaigns as if they reflect constitutional principle rather than political tactic”.

What the King-Byng and 2008 precedents can help with is the consideration of Mr. Buck’s final point: that, while it is legitimate for the opposition to deny a minority government the confidence of the House of Commons, the only legitimate consequence of such a denial is an election. The formation of an alternative government by the opposition is out. I want to credit Mr. Buck for making clear that a denial of confidence is legitimate. As I said in my earlier post and as I am about to explain again, I strongly suspect that the politicians who share his views on the conventions of government formation would inappropriately deny this. But I am not convinced that the only legitimate response to such a situation is a new election.

What 1926 and 2008 have in common is that they happened months after an election and after the government whose ouster was being contemplated had initially retained the confidence of the House of Commons. In such circumstances, a new election may well be the best response to a loss of confidence, though I would not yet say that this is a conventional requirement. Evidently the opposition leaders in both 1926 and 2008 did not believe that they were bound by any rule against mid-Parliament government changes, and what is politically unwise or even reckless is not necessarily unconstitutional, even in a conventional sense.

But the focus of the present debate about government formation, as I see it, is not so much on what might happen months after an election, but rather ― as in 2015 ― on an election’s immediate aftermath. If (like King’s liberals in 1925) the party of the incumbent government fails to win a plurality of seats, must it (unlike King) resign and give way to the new plurality winner? Or, if it does win a plurality (like New Zealand’s National in 2017), is it automatically entitled to continue in office despite the opposition joining forces to deny it confidence, (as National was not)?

I suspect that voters’ appetite or perhaps even tolerance for a new election in the immediate aftermath of the one that was just held would be nil, and understandably so. There would not be much reason to expect a second election to produce a different result from the first, and so provide a way out of the impasse. This is why I think that, although this is not Mr. Buck’s intention, adopting his interpretation of the conventions of government formation will inevitably lead to claims that it is illegitimate for the opposition to deny confidence to a government formed by the plurality party in the House of Commons. Note that, in 2008, the then-Prime Minister’s reaction to the coalition’s attempt to oust him was not to go to the Governor General and ask for a dissolution ― which, in light of King-Byng, may have been granted. It was to avoid facing a denial of confidence by the House of Commons and to cast aspersions on the legitimacy of such an eventuality.

By far the better view is the one captured by the UK and New Zealand cabinet manuals. When an election produces a hung Parliament ― i.e. one in which no one party has a majority in the House of Commons ― the politicians should work out where confidence lies. Ideally, this should be done by negotiation before the new House meets. Failing that, the incumbent administration, which of course remains in office throughout, is entitled to meet the new House and see if it can secure its confidence, which is tested by the vote on the Speech from the Throne. And if confidence is denied, which is perfectly legitimate, the opposition, whether or not it includes the plurality party, gets a chance to form a new government without an election needing to be held. Only if the alternative government cannot secure confidence either does an election become the only way out of the impasse and a constitutional necessity.

In short, there are no good reasons to think that the constitutional conventions of government formation in Canada have changed from what they have long been understood to be both in this country and elsewhere in the Commonwealth. There is no real evidence of the public understanding and demanding such a change; nor are the politics of an “audience democracy” any less suited to the orthodox understanding of conventions than those of earlier periods. Political precedents do not support the alleged change either. On the contrary, as explained both in my previous post and here, unsurprisingly, our political system will work better ― the legitimacy of opposition being preserved and wholly unnecessary and futile elections being averted ― with the orthodox understanding of conventions.

All that being so, both I in my previous post and Professor Macfarlane have been wondering why this whole debate is even happening. Part of the answer is excusable confusion. Part, I am afraid, is that, exactly as in 2015, some political actors see fanning this confusion as a shortcut to power. And part is that the populist spirit of the times is seeping even into good faith intellectual discussions, as Mr. Buck’s post illustrates. His appeal from the consensus opinion of “academics dictating” what the constitution ought to be to the authority of the voters “in this democratic age” is a familiar one. As with all such populist appeals, the irony is that allowing it would empower self-serving political elites at the expense of voters too poorly informed to see through it.

In the face of these populist tendencies, the role both of politicians and of academics is to remind the voters of the rules and the reasons these rules exist. Of course, academics have an easier time doing this because their self-interest is not nearly as implicated. But if politicians aren’t capable of doing what is right instead of what will win them some extra votes, what good are they? It is regrettable that Canada’s politicians failed in 2015, and may well fail again. But that only makes it more important for academics to hold the line.

Conventions from on High

A couple of weeks ago, I published a post arguing that the conventions of government formation in Canada did not give any special entitlement to the party winning a plurality of seats at a general election ― just like these same conventions in the UK and in New Zealand. That post invited responses from the proponents of the contrary view, and I am very pleased that one has taken up the challenge. His response is below. I will post a reply tomorrow.

Guest Post by Charlie Buck, PhD Student (Political Science), University of Toronto

In Canada, the party with the plurality of seats should form government. Professor Leonid Sirota mistakenly suggests Canada instead follow the rules of government formation outlined in the cabinet manuals of the United Kingdom and New Zealand.

He is hardly alone in holding a textbook understanding of government formation. Political scientists Peter Aucoin, Mark D. Jarvis, and Lori Turnbull argue the same in their award-winning monograph Democratizing the Constitution: Reforming Responsible Government. They blame the slide towards executive dominance of the legislature on the ambiguity that is at the heart of the constitutional conventions of responsible government. Prime ministers of all partisan stripes have routinely exploited the confusion that surrounds the governor general’s reserve powers over dissolution, prorogation, and summoning to run roughshod over parliamentary democracy. One need only cursorily point to Jean Chrétien’s knack for snap election calls or Stephen Harper’s use of prorogations to avoid opposition scrutiny, to see this prime ministerial abuse of conventional authority in action.

In the midst of their disillusionment with contemporary conventional practice, what most experts on law and politics appear to have forgotten is how those conventions materialize in the first place. Conventions are separate from legal rules (contra Professor Sirota’s doubtfulness that the two can be distinguished) precisely because they are politically rather than legally binding. A virtue that comes from this political nature is flexibility. As the written law is enforced through judges who are sensitive to precedent and may only modify what has already been settled through the ad hoc flow of real cases and controversies, the pace of legal change is slow, potentially glacial. Conventions’ responsiveness to the public mood tolerates a greater dynamism than rigid legal rules allow.

The enforcement of conventions takes place in the political arena; partisans, acting on the wishes of their constituents, are much more relevant to their operation than academics. That these academics are “out of touch” is beside the point. That they do not have a monopoly on interpreting the nature of Canadian constitutional conventions is not.

Other than their flexible nature, conventions hold the advantage over codified constitutional rules by being the outgrowth of democratic impulses. As has already been stated, it is not academics dictating the nature and scope of conventional rules (no matter how much they may wish otherwise), but the people acting through their own voices, the media, the ballot box, and their representatives. Academics and judges may observe what the conventions are in a given moment, but they do not get to ordain their meaning nor freeze that meaning for eternity. Professor Sirota is certainly correct that constitutional rules are rules and conventions are rules too. But he is wrong to collapse the differences between them.

The nostalgic understanding of government formation has evolved in this democratic age to mean that only the largest party can claim the legitimacy to form a government. It is not for Canada’s constitutional scholars to decide the rightness or wrongness of that transformation. Conventions are not just formulaic legal rules but normatively desirable governing principles. To quote A. V. Dicey, conventions are “a body not of laws, but of constitutional or political ethics.”

The ethics of transforming the standards of government formation makes some sense. Canadians no longer—if indeed they ever did—vote on the basis of the qualities of local candidates. Elections are now much more nationally driven, leader-centric, and partisan affairs. It is increasingly at odds with reality to think of the House of Commons as formed from 338 individuals representing their ridings rather than from leader-dominated parties.

In conjunction with the changing face of parliamentary representation, democratic accountability has risen to the forefront. From this so-called “decline of deference” has developed another convention surrounding an area of Canadian political life as vital as government formation: constitutional amendment. Many political scientists blame the closed-door process of negotiation for the ultimate failure of the Meech Lake Accord. Participants in the later Charlottetown round were cognizant of this fact and addressed it head-on by holding a national referendum, only the third held in Canadian history. Today, scholars such as Peter Russell and Richard Albert speculate this precedent has generated a new conventional rule that major constitutional overhauls require the direct consent of the Canadian people through national referendums. If the conventions governing constitutional amendment are open to modification as a result of democratic pressure, why not also the conventions that surround government formation?

With a demand for greater accountability and citizen participation in the workings of government, the confidence convention has evolved in the direction it has. The democratic sensibilities of Canadians now require, not just that governments command a confidence of the House cobbled together by backroom agreements and coalitions between party insiders, but that they do so while holding the most seats in the chamber. If the party with the most seats cannot muster the necessary majority to pass spending bills then an election must be called.

The exception proves the rule. The only time in Canadian history a governor general has not called an election at the insistence of a prime minister, in the famous King-Byng Affair, the Canadian people expressed their displeasure towards Governor General Byng by rewarding that prime minister with a plurality of seats in the subsequent election with which he was able to maintain the confidence of the House. This not only shows that the transformation of the confidence convention requiring a plurality of seats was a long time coming but also that political actors who violate the new conventional rule risk the wrath of the electorate.

It is telling on this front that politicians have followed the desires of the public, notwithstanding these many academic objections. The leaders of all the major parties in 2015 conceded that the largest party should form government, but this is a practice that goes back far longer. Every prime minister in Canadian history faced with a larger party in the legislature following an election resigned or asked for dissolution rather than try to continue on. Once again, the exception proves the rule. Canadians’ popular rejection of coalition government during the 2008-9 parliamentary crisis, the unravelling of the agreement between the Liberals, NDP, and Bloc, and the subsequent Conservative majority win in 2011, is a cautionary tale of what happens to parties finding themselves on the other side of the conventional line.

In the end, this dispute comes down to different understandings of what conventions are and should be. A discomfort with flexible, politically enforced rules appears to favour cabinet manuals like the ones in the United Kingdom and New Zealand. The antidote to ambiguity and political constitutionalism is the codification of clear-cut rules in cabinet manuals. An understanding of conventions on these terms is at cross-purposes with their virtues, namely, their dexterity and democratic enforceability.

In no way does this difference of opinion cloak a hidden partisan agenda. As Professor Sirota quite rightly says, the opposition, including one constituting a majority of the House, may properly oppose the government’s agenda. If this results in a loss of confidence then an election should be held and the resulting plurality (or majority) party given the opportunity to govern.

Far from something to be condemned, the debate over responsible government’s organic evolution into something other than originally understood by the framers of the British North American Act puts into sharper focus the remarkable ability of Westminster systems to adapt their governing arrangements to changing circumstances. Westminster systems are also capable of diverging from each other, as the historical experiences of Canada, the United Kingdom, New Zealand, and Australia make plain. This diversity in response to shifting environmental conditions is a strength not a weakness of the Westminster model. In the populist, turbulent moment we are living through, governing arrangements require an elasticity capable of adjusting to the people’s wants and desires.

Rules Matter

Why the rules of government formation are the way they are, and why they matter

For reasons quite beyond my comprehension, Canada is apparently having a “debate” about the rules applicable to government formation in the event an election does not produce a single-party majority in the House of Commons. Philippe Lagassé has covered the essential principles ― as they have long been accepted, certainly up until, roughly, the summer of 2015, and for the most part beyond that too. Contrary to the claims of some Conservative partisans ― and, if memory serves well, to those of the leaders of all three major federal parties during the 2015 election campaign ― winning a plurality of seats (i.e. being the single biggest party in the House of Commons) does not entitle a party to form government or its leader to become Prime Minister. Only an outright majority makes this automatic.

Of course, my saying that Professor Lagassé is right won’t persuade people who dismiss his views and hallucinate about him writing out of a partisan agenda. I don’t suppose they are open to persuasion at all, really. But here is something that Professor Lagassé does not discuss, which I think bears pointing out. Canada’s conventions of responsible government, including government formation, are not special or unique. On the contrary, they at the heart of what the framers of the Constitution Act, 1867 meant when they explained, in the preamble, that they were designing a “Constitution similar in Principle to that of the United Kingdom”. The UK follows similar conventions; so does New Zealand. Unlike Canada, though, both the UK and New Zealand have recorded the relevant conventions in authoritative (though not legally binding) Cabinet Manuals. One would think that, given the deliberate similarities between our constitutional systems, these statements ― made by people who have no conceivable interest in our partisan squabbles ― are worth considering.

The UK’s 2011 Cabinet Manual begins by explaining that “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.”(2.7) This is crucial point; I will return to its significance below. The Cabinet Manual adds that “[c]ommanding the confidence of the House of Commons is not the same as having a majority or
winning every vote”. (2.7) Note that there is no mention of a plurality here. The next paragraph notes that

Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government. (2.8)

This has a number of important consequences, which Professor Lagassé explains, but I’ll simply reiterate the point that likelihood of commanding the confidence of the House of Commons is decisive; again, there is no mention of a plurality of seats mattering. This is confirmed in the next paragraph, which notes that, in ascertaining “who appears most likely to be able to command the confidence of the House”,

the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine [this] and communicate clearly to the Sovereign. (2.9)

Of course there would be no need for warnings about drawing the Sovereign into party politics if all that mattered were who won the most seats.

All this is again reiterated in paragraphs 2.12 and 2.13, under the heading “Parliaments with no overall majority in the House of Commons”. Finally, the Cabinet Manual outlines the possible outcomes:

The nature of the government formed will be dependent on discussions between political parties and any resulting agreement. Where there is no overall majority, there are essentially three broad types of government that could be formed:

- single-party, minority government, where the party may (although not necessarily) be supported by a series of ad hoc agreements based on common interests;
- formal inter-party agreement …
- formal coalition government, which generally consists of ministers from more than one political party, and typically commands a majority in the House of Commons … (2.17)

This is a bit of an oversimplification, because these options aren’t mutually exclusive (one can imagine, say, a coalition of two parties working on an ad hoc basis with a third one), but the essential points are, first, that a single-party minority is not inherently more legitimate than a coalition, and, once again, that winning a plurality of seats doesn’t enter into the discussion at all.

New Zealand’s Cabinet Manual 2023 is to the same effect. It notes that

The Prime Minister is appointed by warrant by the Governor-General. In making this appointment, constitutional convention requires the Governor-General to:

1. act on the outcome of the electoral process and subsequent discussions between political parties. These discussions ascertain which party, or group of parties, appears able to command the confidence of the House of Representatives (expressed through public statements) and therefore has a mandate to govern the country; and
2. act on the outcome of the political process by which the person who will lead the government as Prime Minister is identified. (2.2)

Once again, there is no mention of the winner of a plurality of seats in the House of Representatives having any significance. On the contrary, what is highlighted is “discussions between political parties” that are “subsequent” (my emphasis to “the electoral process”. Again this is confirmed in a later chapter, which states

The process of forming a government is political, and the decision to form a government must be arrived at by politicians. Government formation may involve one or more parties.

In a case where government formation involves multiple parties, once the political parties have reached an adequate accommodation, and it is possible to form a government, it is expected that the parties will make appropriate public statements of their intentions. …

By convention, the role of the Governor-General in the government formation process is to ascertain where the confidence of the House lies, on the basis of the parties’ public statements, so that a government can be appointed. (6.42-6.44)

As with the similar UK provisions, there would no need for any of this is the Governor-General simply had to invite the leader of the single biggest party to form the government.

So here are my questions to those who claim that the rule in Canada is different: when did Canada’s constitution cease to be “similar in principle” to that of the mother country and our Commonwealth siblings? For what reasons did that divergence happen? And what useful purposes does it serve? If anyone wants to offer a response, I’ll be happy to publish it as a guest post.

Meanwhile, let me return to the key point from the UK Cabinet Manual: “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.” Being Prime Minister means nothing if you are unable to actually govern, which requires, at a minimum, securing money from Parliament (and more specifically from the House of Commons, whence “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost” are required to “originate” pursuant to s 53 of the Constitution Act, 1867) to keep the lights on. Ideally, securing the House’s support for key legislation is part of it too, though not, as the UK Cabinet Manual notes, winning every vote.

A party that has nothing more than a plurality ― especially, but not necessarily, a narrow plurality of seats in the House of Commons may fail to secure funds and support for legislation from the rest of the House. In that case, it will lack any “authority to govern”, or indeed any ability to do so. Having its leader as Prime Minister will have as much significance as being an Admiral in the Great Navy of the State of Nebraska. This is why the ability to command the confidence of the House of Commons ― that is (oversimplifying a bit), to secure its support in votes on budgetary matters and some other key issues ― is the fulcrum of the rules on government formation, as explained by Professor Lagassé and as recorded in the UK and New Zealand cabinet manuals.

Some of the people who are claiming that winning a plurality of seats in the House of Commons is all that matters are not thinking this through because they do not understand what governing in our constitutional system actually involves. But others ― and presumably those who manufactured this whole “debate” are among them ― surely do understand, and have a further agenda. They would not be content to have a Prime Minister take office without being able to do anything with it. Instead, they would argue that their man is entitled not to be opposed by a hostile majority of Parliament, and that opposition (if not Opposition) is antidemocratic and illegitimate.

This is the end game here. We will be told that the majority of the House of Commons needs to make itself scarce, figuratively at least. And, to add insult to injury, we will be told that this is in the name of democracy and the will of the people.

I don’t suppose any disclaimers of partisanship would be particularly useful at this point. My regular readers can surely tell where my antipathies lie (everywhere, really). Others wouldn’t believe me anyway. Like Professor Lagassé, I lament the difficulty, indeed the impossibility, of “good faith discussions with partisans” who “cast academic analyses as ideological disagreements, or to think there’s a scholarly plot afoot, if our views don’t align with partisan objectives”.

Maybe because I am lawyer and not a political scientist, though, unlike Professor Lagassé I am not quite content to “understand why an academic perspective might be dismissed as irrelevant or out of touch”. Constitutional rules are, well, rules, and the fact that the person reciting them is allegedly “out of touch” is beside the point. This is as true of conventions as it is of legal rules (assuming there is a difference between the two, which I doubt). Rules matter, and they have an existence independent of misrepresentation by either political partisans or Supreme Court judges. More often than not, this blog is devoted to pointing out the latter. But now there is seemingly a need to sound the alarm about the former. Consider yourselves warned.