The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”. 

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.

The System Is Working

Environmentalist groups have a point when they say they are being muzzled by Elections Canada; trouble is, that’s exactly how the law is meant to work

As the media reported earlier this week, environmentalist groups are angry at Elections Canada, which has warned them that spending money to raise awareness of climate change in the run-up to the coming federal election would subject them to the rules on “third party” participation in election campaigns. Many are feeling that they will be required to keep quiet during the campaign, which rather defeats the purpose of being advocacy groups. Even the BBC has a story on this.

For its part, Elections Canada has issued a response claiming that the Canada Elections Act doesn’t prevent advocacy groups from advocating, so long as they register if they spend $500 or more and comply with the spending cap. Elections Canada adds that the registration requirement “leads to increased transparency” and has been in place “for nearly 20 years”. Helpfully, I suppose, the statement concludes with an acknowledgement that the rules “can be complex”, and Elections Canada is happy to answer questions about them.

The rules are indeed somewhat complicated, as I explain below. But the bottom line is simple enough. Despite the officials’ protestations, NGOs ― be they environmentalist or other ― have a point when they say that they are being muzzled. To some extent, that’s what the Canada Elections Act is designed to do; to an even greater extent this might be an unintended consequence of the Act’s pursuit of transparency, but an entirely predictable one. The issues are well known; I, for one, raised them in my statement to the House of Commons Select Committee that considered the latest round of amendments to the Canada Elections Act. The only surprising thing is the degree to which people still end up being surprised when problems of sort arise.


The Canada Elections Act‘s regulation of political spending is predicated on the idea that attention during election campaigns should be focused on politicians ― individual candidates and political parties, especially parties. Parties, if they run candidates in all ridings, are able to spend tens of millions of dollars on advertising ― which they are entitled to buy at favourable rates, in addition to an allowance of free airtime. Non-politicians ― that is, individuals, labour and student unions, corporations, and NGOs ― are known as “third parties” in the election law jargon and, as I explained here, their participation in electoral debates is viewed as anomalous, indeed suspicious, and is strictly limited.

One set of limits concerns the amounts of money third parties are allowed to spend, which are only a small fraction of the spending allowed political parties. The Supreme Court has upheld the limitation of third party spending during election campaigns, notably in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although there is good reason to be critical of that decision, which I have even rated as one of the worst in the last fifty years. (As I noted here, the High Court of Australia was also quite skeptical of Harper in a recent decision.) Last year, Parliament enacted further limits that apply even before the formal campaign begins, and their constitutionality has not yet been tested; Harper, in my view, does not dispose of the question.

In addition to spending limits, “third parties” are also subject to onerous registration and reporting requirements. Some of these are the cause of the latest dust-up. Specifically, Division 1 of Part 17 of the Canada Elections Act imposes such requirements on “third parties” that incur more than $500 of expenses on, notably “partisan activities” and “partisan advertising” during the “pre-election period”, which begins on June 30 of the year for which a fixed-date election is scheduled and ends with the start of the election campaign. During the election campaign itself, governed by Division 2 of Part 17, “election advertising”, as well as “partisan activities” count for the spending thresholds that can trigger registration and reporting requirements.

The definitions of “partisan” and “election advertising”, found in section 2(1) of the Canada Elections Act, are very broad. The former term “means the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes” a party or a candidate, further defined in section 2(7) as “naming”, “identifying” (“including by … logo” or picture, as the case may be, and “providing a link to an Internet page that” names or identifies the party or candidate. “Election advertising” includes the same things as “partisan advertising”, but also “taking a position on an issue with which a … party or candidate is associated”, even without naming that party or candidate. Since issues with which no candidate or party “is associated”, come election time, are about as common as colour pictures of a Maple Leafs Stanley Cup parade, the definition of “election advertising” encompasses pretty much any advertising that has anything to say on matters of government or policy.

Now, some means of communicating with the public are exempted from these definitions. In particular, the exemptions cover anything that the media will print or broadcast without charge to the speaker ― things like quotes in news items, interviews, and op-eds. Also exempt are organizations’ communications with their members, shareholders, or employees, as well as “the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views”. Note, though, that on its face the latter exemption doesn’t cover ― indeed, it rather pointedly excludes ― a group’s or an organization’s online communications, even if not paid for (for example, tweeting under the organization’s handle). And of course, any communication that the media are not interested in carrying free of charge will count as an advertising. In effect, for groups and organizations, the media are the gatekeepers of their ability to communicate with the public without having to register as “third parties”.

So what’s the big deal about registration? Well, although you won’t know it from the Elections Canada statement linked to above, registration doesn’t just mean filling out a form. There are a number of other requirements. To begin with, unions and corporations cannot register before their board has adopted a resolution authorizing them to incur expenses on “partisan” or “election advertising” (sections 349.6(5) and 353(5) of the Canada Elections Act). All “third parties” are also required to have a “financial agent” who will be responsible for collecting money to be spend on “partisan” or “election advertising” and for spending it (sections 349.7 and 354). These transactions must be done through a separate bank account (section 358.1) After the election is over, a detailed report on the money collected, advertising taken out, and costs incurred must be filed (section 359). And this is not all. Those “third parties” that spend more than 10,000$ are also required to file interim reports during the course of the election campaign and, most significantly, to appoint auditors (section 355) and file the auditor’s report on their spending (section 360).

Needless to say, this is all quite costly, at least in time, but also ― especially for those third parties that spend more 10,000$ ― in money. Big trade unions, whose budgets are extracted from workers who don’t get a say on whether to contribute or on how the money is spend, may not be especially troubled by these costs. But for NGOs, whose income comes from voluntary (albeit taxpayer-subsidized) donations, and which need to be much more careful about how they spend it, compliance with the Canada Elections Act may be too expensive. From their perspective, the sensible if unfortunate thing to do may well be to keep quiet for the duration of the election campaign, or even starting with the beginning of the pre-campaign period.

This means that for a period of almost four months preceding the election ― the period when the most people pay attention, even if it’s still sporadic and fragmentary attention, to political and policy issues ― civil society organizations may indeed be prevented from expressing their opinion about politicians, except to the extent that the media will let them. Again, the bigger and better-known you are, the less of a problem this may be for you. Smaller groups, whose views are (naturally and fairly) of less interest to the media, will find it more difficult to get across to the voters. The more unusual voices, in other words, are the ones who are the most at risk of being silenced ― in effect if not, perhaps, in intent ― by the Canada Elections Act.

And of course even for larger groups, having to pass through the media means sound-bite-sized interventions have a much better chance of getting across to the voters than anything more serious. Say that a politician or party is anti-environment, or pro-worker, or something equally inane, and the media may well pick it up. But they’re not going to run a detailed report card assessing the competing parties’ platforms on some issue ― but publishing it on an NGO’s website, let alone running it as an advertisement would mean having to comply with burdensome registration and reporting requirements under the Canada Elections Act.


No wonder, then, that environmentalists are feeling muzzled and frustrated. And of course groups pursuing other agendas may be feeling that way too ― or may come to feel that way when the occasion arises. They have more than a little justification. And they shouldn’t be the only ones feeling wronged. The voters should be too. You may not miss the presence of a particular set of activists in the election campaign, but the rules that silence them silence the activists on your side too. You may not be all that interested activists generally have to say, but you should be interested in politicians’ feet being held to the fire.

The ostensible rationale for registration and reporting requirements is that they serve to promote transparency, in addition to assisting in the enforcement of spending limits applicable to “third parties”. It is on that basis that the Supreme Court upheld those requirements that apply in the course of the election campaign ― although not those applicable in the pre-campaign period, which weren’t yet in the Canada Elections Act ― in Harper. Yet one needs to weigh the value of transparency against the costs that its pursuit imposes on those subject to the Canada Elections Act ― and, as I have just explained, on the voters who are being deprived of important contributions to the electoral debate.

The Harper majority’s analysis on this point was quite perfunctory. There is no real discussion of compliance costs and their deterrent effects. Instead, the majority is content to baldly assert that “[t]he appointment of a financial agent or auditor is not overly onerous. Rather, it arguably facilitates the reporting requirements.” [145] Even worse, the majority did not at all consider what I think is the crucial issue: the thresholds at which the registration and reporting requirements kick in. All it said was that the requirements “vary depending on the amount spent on election advertising”. [145] Yet one can accept the principle of imposing such requirements on heavy spenders while also acknowledging that the existing rules go much too far.

In New Zealand, “third parties” are not required to register until they spend NZ$13,200 (ca. C$11,000); more detailed reporting requirements only apply once a “third party” spends NZ$100,000. (Even then, third parties aren’t peremptorily required to provide an auditor’s report, although they may be asked to do so.) These strike me as rather more reasonable figures than those in the Canada Elections Act, though even they should probably be multiplied several-fold to account for the fact that New Zealand’s population is only a small fraction of Canada’s.

It is difficult to believe that a “third party” spending a few thousand, or even tens of thousand of dollars is going to have any substantial impact on an election by itself. At most, it may be successful enough in getting other people ― voters, media, or politicians ― to discuss the issues it is raising. It is this discussion, rather than anything published on an NGO’s website or even a Facebook ad, that might, conceivably albeit theoretically, matter. In the abstract, this discussion might be enriched by more disclosure. In practice, the very real costs of the disclosure requirements end up preventing the conversations from happening at all. I fail to see how the voters benefit from this.


As Elections Canada points out in its response to the environmentalist groups, the “advertising during the election period has been subject to the Canada Elections Act for nearly 20 years”. This is true. (As noted above, rules on advertising in the pre-election period are new.) For about half of this time, it has been known, at least to those who study these things, that the rules tend to hobble not business interests, but labour unions and civil society groups. Colin Feasby wrote about this in 2010; I did (in the context of Québec elections, which are subject to similar but even more draconian rules) in 2012; also in 2012 Tom Flanagan came out in support of rules like those in the Canada Elections Act, whose enactment he had opposed, with the declared intention to muzzle unions; I updated Dr. Feasby’s findings in an article published in 2015. And in my statement to the House of Commons Standing Committee on Procedure and House Affairs when it was studying amendments to the Canada Elections Act last year (which, among other things, introduced restrictions on “third parties” in the pre-campaign period) I specifically mentioned both the registration and reporting requirements’ tendency to muzzle civil society, and the needless low threshold at which these requirements apply. Needless to say, that had no effect on the resulting legislation.

Yet at every election the impact of restrictions on “third parties” seems to surprise. It happened in Québec in 2014, when the Chief Electoral Officer tried censoring a short documentary a group of citizens had produced to oppose the election of the Parti québécois and the enactment of its “values charter”. Eventually, the Chief Electoral Officer changed his mind; but he was wrong to do so. It happened again in Québec in 2018, now with environmentalist groups being targeted. And now it’s happening at the federal level. The system, one might say, is working. It was designed to shut down political debate not dominated by politicians or the media. That’s what it’s doing.

It will be obvious that I don’t think it’s a good system. Like the National Post’s Chris Selley, I think the rules need to be changed. Whether any restrictions on political spending are justified is debatable but, as noted above, one can accept the premises of Canada Elections Act and still support relaxing its requirements a great deal. Ideally, the next Parliament will take up the issue. But there is also room for litigation. Certainly rules on pre-campaign spending, whose constitutionality has not yet been tested all the way to the Supreme Court can be challenged. But perhaps even the registration and reporting rules upheld in Harper could be attacked, provided that the courts are forced to consider solid evidence of their pernicious effects.

Madison and Canadian Constitutional Law

Because we are in the slow days of summer, and I have a bit more time on my hands than I would usually have, I picked up a copy of Richard Matthews’ 1995 book, If Men Were Angels: James Madison & the Heartless Empire of Reason. Immediately, one’s Canadian eyes might begin to glaze over. Why should one care about an American Founding Father, specifically one that is somewhat more obscure in the common eye than Thomas Jefferson or Alexander Hamilton? To my mind, Madison raises a number of implications for contemporary debates in Canada about the nature of our government and the interpretation of our Constitution. In this post, I’d like to address two of those implications. First is the idea of deference to legislatures, and how Madison’s views serve as lighting rods for debate on the relative institutional capacities of courts and legislatures. Secondly, and more controversially, is the idea of to whom the Constitution “belongs” and whether it matters for the interpretive approach one adopts in relation to the Constitution.

First, a bit of background about the book and its subject. Matthews paints a picture of Madison as a “quintessential liberal,” who continues to, today, impact the way Americans view their government. Madison, who was a chief architect of the Constitution’s structural provisions and the Bill of Rights, is often placed on a lower rung than Thomas Jefferson in the hierarchy of American founders. And yet, for Matthews, it is Madison who has come to typify modern American government and life. This reality lies, for Matthews, in a quintessential difference in Madisonian and Jeffersonian politics. Matthews paints Madison, at heart, as a Hobbesian; or perhaps a Malthus. Either way, Madison does not view political life as a teleological good as the ancients did. Rather, political life is nasty, brutish, and short; and humanity leans inexorably towards degeneration. Madison is a political skeptic. To him, left to their own devices, humans will inevitably turn on one another, no matter how good or virtuous they might be. Hence, democracy had to be tempered because “had every Athenian Citizen been a Socrates, every Athenian assembly would still have been a mob (see The Federalist Papers, No. 55). For Matthews, “[f]rom Madison’s view of the individual, democracy was a fool’s illusion; in the long run, little could be done, beyond playing for time, to forestall the decline or to improve the human condition” [51] because “passion never fails to wrest the scepter from reason” (The Federalist Papers, No.50).

Madison’s prescription for this natural state of affairs was republican constitutionalism. If the human condition could not be improved, and if virtue could not be instilled, the least one could do is preserve a peaceful status quo. For Hobbes, the method to do this was the Leviathan. But for Madison, the separation of powers was the preferred prescription. By making “ambition counteract ambition” through the mutual jealousy of the branches of government, the worst vices of humanity could be tempered. And, by making a republic that extended over a large geographic area rather than a classic Athenian demos, the risk of factionalism decreased.

On the other hand, Jefferson’s political philosophy reveals a different sort of view of the human condition and political organization. For Jefferson, politics is a constitutive act of citizenship, in which the people constantly reinvent their laws to suit their circumstances. Hence Jefferson’s frequently-cited admonition that “[t]he tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” And Jefferson operationalized this reality: he believed that the Constitution and the laws should renew every generation, so that the dead do not bind the living in their constant fulfillment of democratic, civic republicanism. Jefferson obviously viewed humans as far less fallible than Madison did.

Matthews views the matter differently than Madison, adopting a Jeffersonian position on the matter. For Matthews, “Madison’s liberal dream has, as he knew it would, turned into a nightmare for an increasing number of marginalized Americans” [279]. And this rings somewhat true: even more so than in 1995, the ability of people to connect over the Internet and to peddle in fake news and “deep fakes” has made it much easier to bypass republic protections and create mob rule.

This political theorizing seems far off from the world of Canadian law, and so how does any of it apply? As I noted above, I think there are real reasons why Madison’s thinking, Jefferson’s philosophy, and Matthews’ book all have something to say about contemporary debates in our own institutions. Take first the question of judicial deference to legislatures. In Canada, courts will defer to legislatures on constitutional questions under the Oakes test. If one adopts the Madisonian position, why is there any reason to defer to legislators? The question rings powerfully in the context of Canadian law, where there is a more closely-tied legislature and executive, and where the executive is responsible to the legislature. In such a case, there are no separation of powers protections to prevent the worst human vices. Couldn’t the legislature or executive simply channel mob rule?

There is some evidence of this, as co-blogger Leonid Sirota and I wrote about here in reference to the SNC-Lavalin affair. The example shows that humans—of which politicians are a special class—will not act properly when the incentives aren’t right. The lure of winning an election and doing whatever it takes to do so might be too great a Madisonian evil. After all, it was Justin Trudeau’s justification in the SNC-Lavalin affair that “jobs” were the driving force behind his attempted interference in the prosecution of SNC-Lavalin. This leaves us wondering whether there is any reason for courts to defer to legislatures controlled by calculating executives.

But one must take the situation as it is. In this sense, Hart and Sacks and the legal process school had something right: institutional competency matters. And while legislatures are apt to turn into ineffectual mobs (look at the US Congress and the issue of gun control), or to focus on their own electoral futures, we are talking here about deference to legislatures on constitutional questions. Constitutional questions are more questions of policy-resolution than legal interpretation in the modern day. Of course, this is not normatively desirable or necessary. But it is the state of the world. And if that is the case, legislatures should have a legitimate say—if not a final one, because that responsibility is the judiciary’s—in how issues of policy are resolved. This says nothing of the fact that the people are the ultimate control on government, and for that reason, are always the best control on legislatures appealing to the worst of us.

Finally, I want to say a note about Jefferson’s living constitutionalism. Madison, I think, provides a response that is still apt today:

Would not a Government so often revised become too mutable to retain those prejudices in its favour which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age?

Madison advances a valid epistemological reason for refusing to throw away the past, one I find convincing instinctively. But there is an additional reason why the principle of constitutionalism means that we cannot escape the past. As Hayek notes, the distinctive American contribution to the Rule of Law was the addition of the principle of constitutionalism, explained by Madison as the idea that the Constitution is supreme over ordinary law; that it is “fundamental.” The choice to make supreme certain elements of law is an intentional one, taken by a people after the expense of extensive political capital and energy. It is a sacred act. When it comes to bills of rights, the choice to make certain rights and freedoms beyond the reach of ordinary legislation is a deliberate choice to remove from the sphere of political debate those rights and freedoms. That, too, is a sacred act. The reason why the Constitution cannot be automatically renewed every generation—short of the amending procedure—is that to do so would disrespect the original choice to remove certain, important rights from the sphere of debate. This is an important formal act that should be presumptively respected because it represents the democratic choice of the people at a select time. That choice, absent the amending procedure, should not be abridged by an extralegal “renewal” of the Constitution; especially by courts. This, of course, is slightly different than saying that the people made the choices they did for good reasons.

I could write more, but this post is long enough. It is enough to say that Madison’s politics do view humans as inherently flawed, and these flaws reverberate through all of our institutions. It is fundamentally a question, though, of asking with respect to a particular legal question who is worse. Sometimes courts are best suited to deal with issues, but other times they are decidedly not.

What Do You Want?

A proposal for an expanded (and entrenched) statutory bill of rights is confused and misguided

In an op-ed in the Globe and Mail, Patrick Visintini and Mark Dance make the case for a new legislative bill of rights, to supplement the guarantees of the Canadian Charter of Rights and Freedoms. They argue that “a dusted-off” and much-expanded version of the Canadian Bill of Rights would produce a variety of benefits, at once empowering legislators and securing the neglected rights of the citizens. Yet these ambitious objectives are contradictory, and the argument rests on a confused, if all too common, vision of the constitution.

Messrs. Visintini and Dance lament the popular conception of members of Parliament as “nobodies”. If I understand them correctly, they are also none too pleased with the fact that, unlike in the process that led to the enactment of the Charter, “[c]ritical debates about rights in Canada have been largely left to lawyers and judges, expanding rights through constitutional interpretation rather than amendment”. A legislative update to the Bill of Rights “could reverse both these trends”, ensuring that legislators once again contribute to the protection of rights, overcome the pressures of ” electoral interests and ironclad party control” and “hold[] themselves and the federal government to account for future law-making and administrative action”.

This Bill of Rights 2.0 (my cliché; don’t blame Messrs. Visintini and Dance) would have further benefits too. It “would enhance the public’s ability to understand, track and organize to defend their rights”. It could be the vehicle for enshrining in law “now-pertinent rights [that] never made it into the Charter: environmental rights, victims [sic] rights, housing rights and the rights of Indigenous peoples to self-determination and self-government”. And it could

serve as a shield against judicial reactionaries. While we enjoy a relatively state-of-the-art constitution and a Supreme Court that understands those laws as a “living tree,” we may not always be so lucky. We cannot assume that we will always be immune to the American affliction of constitutional originalism, petrifying our living Constitution where it stands or even shrinking it to fit in the “ordinary meaning” that it would have had in 1982.

Messrs. Visintini and Dance also propose “[r]equiring a two-thirds majority in both Houses of Parliament to add to or amend the new Bill of Rights”. In their view, this “would practically guarantee that cross-party consensus and collaboration would be needed” to effect such changes. They are not quite clear on whether they envision their proposed bill of rights being enacted by such a majority in the first place, although they refer appreciatively to the cross-party collaboration in the run-up to the enactment of the Charter.

More democracy! Less partisanship! More rights! Less Parliamentary abdication! More living constitutionalism! Less non-consensual tinkering with rights! If it all sounds too good to be true… that’s because it is. You can’t have all these things at once. What Messrs. Visintini and Dance are proposing is to empower Parliament, but just this once, for a grand act of abdication that will put a new plethora of rights beyond the reach of ordinary legislation, and empower the courts whose takeover by “reactionaries” they seem to fear. This makes no sense.

The point of a quasi-constitutional, or a fortiori constitutional, legislation protecting rights is to take them off the political agenda to some non-negligible extent and involve the courts in their enforcement. (Given their preference for immunizing their bill of rights from amendment by ordinary law, it is arguably a constitutional rather than a quasi-constitutional instrument that Messrs. Visintini and Dance are proposing.) Normally, one advocates enacting such laws because one thinks that the political process is not especially trustworthy, if not generally then at least with respect to the particular issues covered by one’s proposal. Of course, it may be that the political process will function well enough for the specific purpose of enacting rights-protecting legislation. Perhaps this was the case with the Charter, though looking beyond the Special Joint Committee on the Constitution one might argue that politicians did a lot of damage too, removing property rights protections and introducing the “notwithstanding clause”. Be that as it may, it is odd to expect any lasting empowerment of legislators to result from the enactment of a law whose raison d’être is to curtail their power.

Conversely, if one has sufficient confidence in the ability of legislators to deal with rights issues on an ongoing basis, or even if one simply has faith (a naïve faith, as I have argued here) that keeping legislators in control of constitutional issues will force them to take these issues seriously, the enactment of (quasi-)constitutional laws empowering the courts to set aside legislative decisions is counterproductive. One could still advocate for a legislated bill of rights in the New Zealand style, one that does not allow the courts to refuse to apply inconsistent statutes at serves, at most, to alert Parliament to the possible existence of a rights issue. One might, just, support the Canadian Bill of Rights, which allows a Parliamentary majority to override a judicial decision declaring a statute inoperative due to inconsistency with rights. But one would not demand that this law be protected from amendment by the ordinary legislative process.

Besides, if one professes confidence in the legislators’ ability to come up with a good bill of rights, as Messrs. Visintini and Dance do, one should not in the same breath demand that courts re-write those legislators’ work product. If the Special Joint Committee did good work, then what’s wrong with a constitution that has the meaning its members chose to give it? If they really want reverse the trend of judicial interpretations displacing the good work done by Members of Parliament in 1981-82, then Messrs. Visintini and Dance should be demanding originalist judges, not denouncing these (mostly hypothetical) creatures as suffering from an “American affliction”.

It’s not that I am opposed to expanding constitutional protections for rights, though my preferences would be quite different from those of Messrs. Visintini and Dance. Property rights, freedom of contract, and due process in the administration of civil and administrative justice would be my wish-list. I would also want any such expansion to follow proper procedures for constitutional amendment; it is far from clear that the entrenched bill of rights proposed by Messrs. Visintini and Dance can be enacted consistently with Part V of the Constitution Act, 1982. But one should be clear about what the point of such a change to our present constitutional arrangements would be. It would serve the cause not of legislative empowerment, or even accountability, but that of counter-majoritarian individual liberty.

And if one would rather serve those other causes, which have something to be said for them, there is plenty that one can campaign for. Improved legislative procedures are one area for reform: fewer omnibus bills, less delegation of broad law-making authority to the executive, more free votes perhaps. Many governments are elected promising to do some of these things at least. Few, if any, follow through. As an election is coming up, there is plenty of room for worthy, if perhaps quixotic, advocacy here. One could also demand more effective control over the administrative state. Again, less delegation of power to bureaucrats, but also more effective parliamentary scrutiny of the exercise of that power which has been delegated, as well as reform of the law of judicial review of administrative action. In particular, Parliament could, and should, repeal privative clauses, and clarify that administrative determinations of law are subject to full review on a correctness standard. One could also try to persuade the Supreme Court to finally abandon its deference to bureaucrats on constitutional issues. There is no point in creating new rights if administrators, rather than independent courts, are given the ability to determine their scope and effect.

In short, would-be promoters of democracy and accountability in Canada have plenty to do. A new bill of rights will not advance their purposes; other, less sexy but more realistic, measures might. Democracy, accountability, individual liberty, or glamour: they need to figure out what it is that they are after.

Guest Post: Andrew Bernstein

A response to Mark Mancini’s post on Supreme Court appointments

About every 15 months, a vacancy arises in the Supreme Court of Canada. There is then a search process that lasts somewhere between a few weeks and a few months, which recommends certain candidates to the Prime Minister. The Prime Minister then selects the candidate and the Governor-in-Council makes the formal appointment “under the Great Seal.”

Since the appointment of Justice Marshall Rothstein in 2006, the process has had an additional step: the “Parliamentary hearing.” At this point, the Prime Minister’s selection is named, but instead of simply being appointed to the Court, s/he is as the “nominee.” This “nominee” then to appears before a Parliamentary committee and answers questions (or as Mark Mancini noted in his recent post, not answer questions) about various things, including his or her record, bilingualism, and even judicial philosophy. After these proceedings, the “nominee” is formally appointed to the Court.

The concept of the “hearing,” which neither exists in Canada’s constitution nor the Supreme Court Act was put in place 24 years after the Charter was enacted, as the result of decades of demands by media, academic and some conservative political figures. The concept was that since the Supreme Court now has a greater influence on Canadians’ lives, we should demand greater transparency and accountability from its judges. As a result, the logic went, Parliament should have a greater role in selecting Supreme Court judges, akin to the “advise and consent” function of the United States Senate. We have even adopted the language of the American process, where the President selects a “nominee,” and the Senate can choose to confirm or not confirm that nominee to the position.

Mark’s post points out a number of flaws in the hearings as they currently stand. He suggests that these hearings could be made more useful if they were opened up to a broader array of questions and answers While I agree with his diagnosis, I differ on the prescription and prognosis. In my view, this patient is terminal and should be put out of its misery. For reasons that are institutional, constitutional and functional, my own view is that these “nomination hearings” will never serve any useful purpose, and this 13 year long experiment should be considered a failure.

Institutionally, the committee conducting the hearing is a toothless tiger. It has a power to ask questions, but no power to do anything with the answers. It does not get to vote at the end of the process. So instead, the most it can do is harass or try to embarrass the candidate (as some non-government members tried to do with one candidate’s lack of fluency in French – it was a one-day story which no doubt harmed Justice Moldaver). But a Prime Minister with two vertebrae to rub together will know that almost no one is paying attention. Unless the candidate gives an answer that will make persistent negative headlines, his or her “confirmation” (by the same Prime Minister that “nominated” them in the first place) is guaranteed. So the candidates know that they have one job: don’t embarrass the Prime Minister. Not exactly a tall order for someone with the brains and experience of a typical SCC nominee. And if that’s not enough, the whole thing is “moderated” by a trusted legal luminary, who presumably understands that her role is to ensure that things don’t get too interesting. So what results is a very bland hearing where the people conducting it don’t have any decision-making power. The only way that could ever change is to give the Parliamentary committee an effective veto by allowing it to vote on the nominee. But no PM will do this because it means giving up one of his or her most important prerogatives. In fact, both Prime Ministers Harper and Trudeau have occasionally skipped this “nomination” process altogether (for Justices Cote and Rowe, respectively) and simply inserted their pick on the Supreme Court (as the Supreme Court Act contemplates). So what exists is an optional hearing, before a powerless committee. As Mark says, this is not a process, it’s Kabuki theatre.

My second reason for eschewing the nomination hearing is that it is contrary to the structure of Canada’s (written and unwritten) Constitution, and, as a result, misapplies the notion of political accountability which it is intended to serve. In the United States, the strict separation of powers means that there can be sharp political divisions between the Executive and the two houses of Congress. A President neither requires the confidence of either house to form a government nor must maintain it. As a result, he (or maybe, some day, she?) has no structural accountability to the legislative branches, with one major exception: executive appointments must typically be approved by the Senate as part of its “advise and consent” function. This is in no way limited to the Supreme Court. It is true for lower Federal courts, cabinet departments, agencies, and any number of other roles selected by the Executive to perform various government functions. In other words, Senate approval was designed to be a check on executive power.

In Canada, of course, the separation of powers is blurrier and political accountability works very differently. Confidence of the legislature is a crucial prerequisite to forming a government, and a requirement for keeping that government in office. A Prime Minister that loses the confidence of the House of Commons for any reason must immediately resign. Conversely, a Prime Minister can be presumed to have the confidence of the House for all purposes, including making governor-in-council appointments. Some of these appointments have an enormous effect on the lives of Canadians; potentially much greater than any Supreme Court judge. The most notable of these are federal Cabinet Ministers and Deputy Ministers (the political and civil service heads of federal departments, respectively), as well as the Clerk of the Privy Council (the head of the federal civil service). In all cases, the Prime Minister must answer to the legislature for his choices, not by putting these people through a nomination process, but rather by answering questions in Parliament about who he selected and why. If enough MPs believe that the Prime Minister is being reckless in his or her choices, they can vote no confidence and trigger an election. That is what political accountability looks like in a Parliamentary democracy. There is no reason in principle to have a different process for Supreme Court.

My third and related point is functional: by having a fake hearing for the purposes of fake accountability, we are missing an opportunity to have a real hearing with real accountability for the person who should actually take responsibility for the appointment. I wholly endorse the portion of the process by which the Minister of Justice and the head of the independent search process appear before the committee to answer their questions. I would add that since the Prime Minister has the final word, he or she should also appear, and be prepared to answer real questions about the process, the strengths and weaknesses of the candidate, and any other question that Parliamentarians want to ask him. This could include tough questions like “this is your third Supreme Court selection, why haven’t you selected an indigenous judge?” It could explore the PM’s philosophy of judicial selection, including what his or her priorities are (demographics, experience, credentials, political involvement, geography, etc.) and how s/he intends to implement them. This is useful information: in an election, different parties might contrast their priorities with the current government’s and voters can make a more informed decision, if this matters enough to them.

Because it’s never a good idea to publish anything without letting someone you trust read it first, I should say that I ran a draft of this piece by my colleague Jeremy Opolsky. In addition to making some excellent edits, challenging some weaker points, and greatly improving the arguments, he made one point that I found persuasive (if not quite persuasive enough to change my mind). Jeremy pointed out that getting to know a Supreme Court candidate could have real value separate and apart from asking the government questions, and even if the committee cannot change the result. He points out that the hearings provide an informational function about the judge which is, at a minimum, interesting. So if the hearings can accomplish this and do no harm, he posits, why not hold them? However, I remain unpersuaded, for one essential reason: perhaps uniquely among important decision-makers, we actually do get to know our judges, through their written reasons for judgment. In fact, they reveal a lot more about themselves in their judicial writing than we could ever learn about them in a nomination hearing, and without the political theatre that goes with it.

In sum, I suggest we let the political actors deal with the politics of judicial appointments. It is, after all their job. Little that happens at a nomination hearing actually allows us to know how judges are going to do their job, or really anything useful about them at all. So let’s skip the part where the judges get grilled and move to asking questions of the person who could actually be held accountable for their nomination. The whole institution of the Canadian “nomination hearing” was invented to assuage the demands of legal academics and the media, who no doubt were suffering a little excitement envy from the U.S. even before the events of 2018, as well as conservative political figures who have criticized the perceived liberal bent of Canada’s judiciary. When it comes to the Supreme Court, the practicing bar is primarily concerned about the Court providing coherent and well-reasoned decisions that can actually be applied to future cases so we can properly advise our clients on their rights and obligations. So to many of us, the real question for any new appointment process is whether it will improve the overall quality of the Supreme Court’s adjudication. There is reason to believe that the current Prime Minister’s independent search process will actually do that; certainly the first two “outputs” from this process look extremely promising. However, in the 13 or so years since Justice Rothstein first appeared, the existence of these nomination hearings, appear to have made no difference one way or the other.

In the Beginning

Learning about, and from, Pierre Trudeau’s 1968 proposal for what would become the Canadian Charter

Canadian judges and lawyers, including of the academic variety, tend not to think very highly of our constitutional history. This is, in part, because we ― and I must include myself in this ― do not know it as well as we should. There is an unhealthy feedback loop at work: a predisposition to be dismissive of the past fosters ignorance about it, which in turn makes it easier to be dismissive. The good news is that, once one starts looking into this history about which we have so much to find out, it is easy to find fascinating stories to learn, and to learn from.

Case in point: the proposal for “A Canadian Charter of Human Rights“, put forward in early 1968 by then-Justice Minister Pierre Trudeau, made available by the wonderful resource that is the Primary Documents project. I have to admit: I didn’t really know anything about this text before coming across it recently. But it is, surely, of considerable interest, if we accept that ― like every other rights-protecting text from the Magna Carta onwards ― the Canadian Charter of Rights and Freedoms, the direct descendant of the 1968 proposal, isn’t just a shadow in Plato’s cave, but a document that was written and enacted by particular people, at a particular time, in a particular place. And in addition to both the interest that I think this text deserves and the way in which it illustrates the value of constitutional history more broadly, it also sheds some light on ongoing debates.


Trudeau began his introductory chapter by claiming that “Interest in human rights is as old as civilization itself.” (9) (This, I am afraid, is reminiscent of bad student work.) For a long time, he wrote,

these rights were known as ‘natural’ rights; rights to which all men were entitled because they are endowed with a moral and rational nature. … These natural rights were the origins of the western world’s more modern concepts of individual freedom and equality. (9)

Trudeau appealed to Cicero and Aquinas, as well as Locke and Rousseau, and quotes at some length from the Declaration of Independence. I’m not sure that his presentation of the concept of natural rights is fully accurate, but his reliance on these authorities as the starting point of an argument for constitutional protection of human rights is relevant to the recent debates about the nature and origin of the rights protected by the Charter.

Another point which has been the subject of recent discussion that Trudeau’s introduction addressed was that of Parliamentary supremacy. Trudeau was quite clear that his proposal involved “some restriction on the theory of legislative supremacy”, although this theory, he said, “is seldom pressed to its full extent”. (11) Equally clear, as will appear below, was his understanding that the courts would have the last word on the meaning and import of the rights guarantees that he proposed adding to the Constitution. The point of the exercise was to secure “the fundamental freedoms of the individual from interference, whether federal or provincial”, and also to “establish that all Canadians, in every part of Canada, have equal rights”. (11)


This theme of inviting judicial enforcement of rights’ guarantees is further developed in the next chapter. Trudeau discusses the Canadian Bill of Rights, and finds it wanting because it is “not a constitutional limitation on Parliament, only an influence”, (13) and has not been vigorously enforced by the courts. Even if it had been, it would, like provincial legislation protecting human rights, be subject to repeal through the ordinary legislative process. In short,

a constitutionally entrenched Bill of Rights is required which will declare invalid any existing or future statute in conflict with it. Language in this form would possess a degree of permanence and would over-ride even unambiguous legislation purporting to violate the protected rights. (14)


The next Chapter outlines the contents of the proposed “charter of human rights”. It explains how existing law deals with each right it proposes to protect ― what the existing protections, if any, are; how they are limited; and also how legislative powers affecting the right are distributed between Parliament and the provincial legislatures. In some cases at least, there is thought given to the wording of future constitutional clauses ― for example, “whether freedom of expression is best guaranteed in simple terms without qualification, or whether the limitations of this freedom ought to be specified” (16) ― which suggests that the Charter‘s text is not just a collection of “majestic generalities” that could just as easily have been cast in very different, if equally general, terms. And there is a great deal of speculation about the way in which the courts will treat various rights, if they are constitutionally entrenched. This speculation is informed by references to Canadian case law, where it exists, as well precedents from the United States. There are also occasional references to the European Convention on Human Rights.

Some future controversies are already foreshadowed in Trudeau’s discussion. For example, the section on the freedom of religion highlights “the imposition of Sunday closing of businesses on Christians and non-Christians alike” ― which would, indeed, produce one of the first Supreme Court decisions based on the Charter, R v Big M Drug Mart Ltd, [1985] 1 SCR 295. For its part, the section on “life, liberty and property” ― note that, as Dwight Newman and Lorelle Binnion have pointed out, Trudeau was quite keen on entrenching some form of constitutional protection for property rights ― anticipates the issue in another early Charter case, Re BC Motor Vehicle Act, [1985] 2 SCR 486 about whether substantive or only procedural constraints exist on deprivations of “life, liberty and the security of the person”. In 1968, Trudeau thought, based on the jurisprudence under the “due process clause” of the Fifth and Fourteenth Amendments to the U.S. Constitution

that the guarantee [of due process] as applied to protection of “life” and personal “liberty” has been generally satisfactory, whereas substantive due process as applied to “liberty” of contract and to “property” has created the most controversy. It might therefore be possible to apply the due process guarantee only to “life”, personal “liberty” and “security of the person”. The specific guarantees of procedural fairness set out elsewhere in the bill would continue to apply to any interference with contracts or property. In this fashion the possibility of any substantive “due process” problems would be avoided. (20)

Of course, the example of property rights shows that what was ultimately enacted in 1982 was not always what Trudeau had wanted in 1968. Still, given the widespread conviction that the Supreme Court’s holding in the Motor Vehicle Act Reference that the “principles of fundamental justice” which must be respected when depriving a person of “life, liberty or security of the person” were not only procedural but substantive too went against with the wishes and expectations of the Charter‘s framers, it is interesting to note that the Supreme Court’s interpretation is actually quite consistent with Trudeau’s original proposal.

There are instances, admittedly, where Trudeau’s powers of prediction failed. For example, he wrote that “a court would likely be extremely reluctant to substitute its opinion of a proper punishment for that of the legislature”. (21) Stephen Harper, not to mention Justice François Huot of the Québec Superior Court, might have a thing or two to say about that. Trudeau thought that constitutionalizing the presumption of innocence would not mean “that the various federal and provincial penal statutes which contain ‘reverse onus’ clauses … will be declared unconstitutional”. But of course it was just such statute that was in fact declared unconstitutional in R v Oakes, [1986] 1 SCR 103.

And property rights weren’t the only ones that he thought important but the Charter ended up not protecting: so was the right to a fair hearing in civil and administrative proceedings. On the other hand, some rights that Trudeau did not think advisable to incorporate in the constitution were read into it by judicial fiat. Thus, notably, Trudeau listed “the right to form and join trade unions” along with other rights “which seek to ensure some advantage to the individual and which require positive action by the state”, (27) and which should not be protected by his proposed “charter of human rights”. That is because “[i]t might take considerable time to reach agreement on the rights [in this category] to be guaranteed and on the feasibility of implementation”. (27) Someone should have told the Supreme Court before it decided in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, that a right to collective bargaining would have been “within the contemplation of the framers of the Charter“. [78]


The very brief final chapter in Trudeau’s text suggests that egalitarian and linguistic rights might have to be implemented gradually, after political and legal rights have been protected, and muses on the advisability of special provisions for wartime and other emergencies. Section 32(2) of the Charter, which provided that equality rights would only come into effect three years after the rest of the Charter, seems to reflect the former concern, as does, in part, section 59 of the Constitution Act, 1982 which requires Québec’s consent ― which has never been given ― for the application of section 23(1)(a) to the province. No special provision has been made specifically to accommodate the concern about emergencies, though Trudeau actually contemplated the possibility of leaving it to “the courts to determine what limitations are made necessary in times of crisis”. (30)


In case I have not made this sufficiently clear already: these are only one man’s ideas about what a future constitutional charter of rights for Canada should look like and accomplish. To be sure, the man was influential ― indeed his influence was decisive in Canada having a constitutional charter of rights 14 years later ― and the ideas were given the stamp of approval by the government of which he was part. But many years would pass, and many governments would change, before these ideas would become law, and then, as noted above, only in a much modified form.

It is the law that was enacted that binds Canadian governments, and Canadian courts. As I have unfortunately had occasion to note here, Pierre Trudeau’s political programme is not the appropriate object of constitutional interpretation, “and the courts’ duty is to apply the Charter as it has been enacted, and not to expand it forever until the day the just society arrives”. For the better and for the worse ― often much for the worse ― the ideas of other political actors and members of the civil society helped shape Charter as it developed from a political proposal to a constitutional law.

Nevertheless, the original proposal of which the Charter is the consequence deserves our attention. Although in no way binding or definitive, it sheds some light on important controversies surrounding the Charter, some of which are ongoing to this day ― in part, I would argue, because we have not paid sufficient attention to history. Studying this history is a way not only of indulging our curiosity ― though there’s nothing wrong with that ― but also of reminding ourselves that the Charter, and our constitution more broadly, was the product of specific circumstances and ideas. For all their flaws, these circumstances and ideas were more interesting and praiseworthy than those who denigrate them in order to make the constitution that they produced into a blank canvas onto which their own preferences can be transposed care to admit. The constitution is neither such a blank canvas nor a projection from a Platonic world of forms that must be interpreted by philosopher kings in judicial robes for our edification and government. It is a law, and must be interpreted as such.

An Empty Vessel

Thoughts on the Justice Kasirer appointment process

A few weeks back, Prime Minister Trudeau’s nominee to the Supreme Court, Nicolas Kasirer, subjected himself to questions from parliamentarians. By all accounts, Justice Kasirer is a qualified nominee for the Court, having spent a decade on the Quebec Court of Appeal. But one must separate the nominee from the process through which he was appointed. While the Government’s independent search process is probably, in theory, a step in the right direction, it is still plagued by one meaningful problem: parliamentarians have virtually no power to shed any meaningful light on the Prime Minister’s nominee.

Of course, unlike the United States, Parliament and its committees have no constitutional duty or mandate to give “advice and consent” on nominations made by the Prime Minister to the Supreme Court. Yet the fact that the Constitution does not require something does not mean that systems of government should not aspire to be better. This was the logic behind the Prime Minister’s independent appointments process, which is also not at all required by the Constitution.

But the process adopted by the government when it comes to public consultation, while not inconsistent with the Constitution, falls well short of other standards of public transparency. The judicial nomination “hearing,” if one could even call it that, was limited by a number of overriding principles. For example, Justice Kasirer could not talk about any past decisions he rendered as a judge of the Quebec Court of Appeal; politicians could not ask him about any judgments he would render as a judge of the Supreme Court;  politicians could not “cross-examine” the nominee; nor ask him to take a position on “controversial” issues; and finally, the nominee could not comment on existing Supreme Court decisions, and whether he supported those decisions or not.

Some of these restrictions are understandable. Asking a nominee to pre-judge an issue presents a real judicial independence problem. But some of the restrictions, I think, end up short-circuiting legitimate questions about the role of the judge in the modern era. Particularly, asking a judge to comment on her past rulings or to comment generally about her philosophy does not present the same judicial independence concern as pre-judging a case on the merits. Indeed, there are other countervailing values that make these questions apt for answering, in the name of public transparency, and in light of the judicial role in the modern era.

The idea is this: no one denies—not even proponents of strong-form judicial review—that the Supreme Court deals with issues of great national importance. This is in part represented in the Supreme Court’s leave requirements; but it is also manifested in the cases the Supreme Court decides, and how it decides them. In the last number of years, the Court has decided cases of broad public controversy, including reading a right to assisted dying into the Constitution, doing the same for the right to strike, and similarly interpreting an existing constitutional provision to encompass a right to Wagner-style collective bargaining. All of these issues—issues over which reasonable people can disagree in the political realm—have been removed from the public sphere of debate by the Supreme Court’s constitutional rulings. While the Court has often replied that it is the people through their representatives that thrust this role upon them when enacting the Charter (see BC Motor Vehicles, at para 16), this argument does not change the basic fact that courts have taken on this role, often liberated by emancipating doctrines like a “living tree approach” and a lax standard for the admission of all sorts of social science evidence. When it comes to Charter decision-making, the judicial role takes on the character of policy, under which decisions are made by courts that at one point might have been made by legislatures.

Putting aside whether this is normatively desirable, and if this is the case, why shouldn’t the public have a window past the veil of judicial decision-making in a substantive way that sheds light on the things a judge values in the decision-making process? In other words, while there is no formal process for “advice and consent” (and perhaps there shouldn’t be) shouldn’t the public’s representatives have a right to query the judge’s overarching judicial philosophy, including how it would apply to past Supreme Court cases? The role of the Supreme Court in the modern era, if it is going to be expansive, is deserving of some sunlight.

I am alive to the criticisms. One might argue that this imports an American style advice and consent function into Canada, potentially creating the conditions for the sort of circus we see in the United States. But the function I have in mind is suited to Canadian circumstances. In reality, my prescription would amount to allowing a few more substantive questions to be asked in a hearing. Anyone who watched the Kasirer hearing was probably left sorely disappointed; the nominee’s reliance on the restrictions of the entire process was somewhat frustrating given the stakes of a Supreme Court appointment. But if the process was somewhat more substantive, with the scope of questioning somewhat expanded, perhaps there might be more interest in the entire endeavour, with Parliament taking on a real public monitoring function. On my account, the questions that could be asked could account for general judicial philosophy considerations, an account of the judge’s past decisions, and perhaps general comments about existing Supreme Court cases, always on guard for the potential for questions to go into “gotcha” territory.

Another concern is judicial independence, as I alluded to above. We do not want prospective Supreme Court judges pre-judging cases. But setting out a general philosophy—including generally reflecting on Supreme Court cases or to reflect on one’s own judicial tenure—is hardly pre-judging particular cases on the merits. Indeed, one can criticize a past Supreme Court decision and still resolve to apply it because it is the law—this would be the ultimate in honest and transparency. The truth is that every judge has some system or guiding star for deciding cases that the public deserves to know. Judicial independence should not be a prophylactic reason to prevent all questioning of judges, especially in a system where the Court carries so much power.

The goal of the entire nomination process should be to balance the selection of qualified jurists with the protection of their independence and the public’s legitimate interest in knowing who is nominated. A Kabuki theatre nomination hearing, like the Kasirer one, fails to create the conditions for the public to actually know a judge. This is far from ideal in a situation where the Supreme Court, as Justice Abella once said, is the apparent arbiter of Canadian moral values. If the Court arrogates this role to itself, its members should at least be accountable through some mechanism.