Lessening Us: The Supreme Court and SNC-Lavalin

The SNC-Lavalin episode gets worse, if that is possible.

In an apparent effort to distract from the SNC-Lavalin affair, a leak on Monday claimed that the rift between Prime Minister Justin Trudeau and former Attorney General Jody Wilson-Raybould began far before the term “deferred prosecution agreement” entered the public lexicon. Apparently, it all started when Wilson-Raybould recommended Manitoba Queen’s Bench Chief Justice Glenn Joyal to the Supreme Court of Canada. For those unaware, Chief Justice Joyal has, over the years, advanced a welcome antidote for the Charterphile Canadian legal community. His views are not extreme or inappropriate; rather, they are intelligent appreciations of the cultural and institutional changes that the Charter introduced. The fact that he was rejected out of hand for a Supreme Court appointment—and the fact the circumstances of his appointment have been leaked—are indictments of both Canada’s legal and political system.

The most important part of all of this is the morally repugnant way in which Chief Justice Joyal’s application for the bench was released by some unknown party. Originally, it was reported that Trudeau scuttled Wilson-Raybould’s recommendation because of his disagreement with Chief Justice Joyal’s views. Then, it was reported that Chief Justice Joyal actually withdrew his application, because his wife was suffering from metastatic breast cancer. The fact that this was leaked, and that Chief Justice Joyal’s personal life was implicated in the process, is a low for Canadian politics. No one should have to endure public scrutiny on a matter as personal–and tragic–as a cancer diagnosis.

What makes it even more tragic is that, as Chief Justice Joyal noted, his personal situation seems to be used as an agenda for the broader SNC-Lavalin controversy. The implication of all of this is that someone in the Prime Minister’s Office leaked the information to the press in order to show just how misguided Wilson-Raybould was as Attorney General. If there was any doubt, the episode shows just how far some politicos will go to undermine not only norms surrounding judicial appointments but also the personal lives of those in the way.

And, all of this for views that are not at all controversial and are important counterpoints to the ongoing debates about the Charter and its institutional features. A good example of Chief Justice Joyal’s welcome assessment of the major counter-majoritarian difficulty introduced by the Charter is his 2017 speech to the Law and Freedom Conference. The main theme of the speech outlined the consequences of the “judicial potency” that the Charter introduced, a feature that “was not anticipated back in 1982.” These consequences are ones that are not often discussed, are certainly true. For example, consider a few of the consequences Chief Justice Joyal noted:

  • The constitutional requirements imposed by the Charter do not “mesh” well with the legislative process, making it more difficult to make laws.
  • The Charter has moved important debates outside of the realm of the legislature and into the realm of courts.
  • This movement outside of the legislative realm creates “a public discourse dominated by the concept of ‘rights’,” one that is defined by “judicial formulations and tests.”
  • The political culture introduced by the Charter conflates constitutionality with policy wisdom, when there is no need to necessarily merge the two concepts.

Agree or disagree, these are all important consequences of the system of judicial review introduced by the Charter, and the way in which Canadian lawyers have reacted to that power of review. There is no doubt that the Canadian legal community largely suffers from “Charteritis,” (not my term–check out David Mossop’s 1985 article entited “Charteritis and Other Legal Diseases”). And for that reason, Chief Justice Joyal’s remarks in 2017 were a welcome appreciation of the symptoms of that disease.

But in the leak published on Monday, the nuance and force of Chief Justice Joyal’s conclusions were completely lost. Apparently, when Wilson-Raybould recommended Chief Justice Joyal to the bench, Prime Minister Justin Trudeau was concerned about the 2017 speech. Trudeau was apparently concerned that Joyal would be less willing to protect rights that have come from judicial interpretation of the Charter, including rights to abortion access and LGBTQ2 rights.

If this is true, this base understanding of Chief Justice Joyal’s legal views is completely wrong. There is nothing in his 2017 speech that would indicate a preference—one way or another—for any particular issue that would come before the Supreme Court, should he have been a judge. All of Chief Justice Joyal’s broader views are perfectly consistent with a respect for stare decisis and the cases that have entrenched rights, whether those cases were rightly or wrongly decided.

Chief Justice Joyal’s views have nothing to do with these issues, simply put. They merely stand for the idea that, in the age of the Charter, the legislatures have assumed a different role. This is simply an empirical fact. There are consequences to this. One is that, rather than dealing with issues through the cut-and-thrust of political debate, we have moved those debates into the courts, which are often ill-suited to deal with these sorts of problems. The issue of Aboriginal rights and title is a perfect example. Because of the recalcitrance of governments over generations, Aboriginal groups have, strategically, moved to the courts to vindicate their rights. But that does not mean that the judicial forum is a better place to do so. The Tsilqho’tin case is a good example of this—a case which took decades of time and untold resources to reach the Supreme Court. Even people who believe in the Charter, and in the judicial role that it introduced, should recognize that legislatures should still be important areas of public debate that should be equal constitutional actors in their own right, owed respect by the Supreme Court’s judges.

While it is perfectly appropriate for the Prime Minister to want to appoint people to the bench who reflect his view of the Constitution, those views should at least be informed and educated. Based on the media reporting so far, it appears that the Prime Minister was unwilling or unable to understand that one can have different approaches to Charter interpretation—or a less positive view of the broader implications of the Charter—and still have a respect for the document as a matter of constitutional law. Even if one thinks those views are wrong, this is no reason to misunderstand what Chief Justice Joyal’s views actually represent.

Taken together, this whole SNC-Lavalin episode continues to lessen us–our law and our politics.

The Empty Canard of the Living Tree “Doctrine”

In 1989, Justice Scalia gave a speech entitled “Assorted Canards of Contemporary Legal Analysis.” These “canards,” are “certain oft-repeated statements…” that, while having “little actual impact upon the decision of the case” are “part of its atmospherics, or of its overarching philosophy…” Justice Scalia gave the example of the old adage that “remedial statutes should be liberally construed,” a canard because it is difficult to determine what a “remedial statute” is, and then because it is not a judge’s role to pick and choose statutes to be interpreted liberally and strictly.

In the last few days, both the Stereo Decisis podcast and my co-blogger Leonid have focused on a case out of Quebec in which our own Canadian canard was put to work: the idea that the Charter of Rights and Freedoms should be interpreted as a “living tree.” In the context of the case at issue, Leonid received flack from the Stereo Decisis podcast hosts for suggesting a textualist approach to the interpretation of s.12 of the Charter, while the hosts were focused on determining the normative commitments that should influence constitutional interpretation, having concluded that the language of the Charter is written in open-ended and ambiguous language. Lurking in the background of this debate between textualism (properly understood) and the openness of language is the idea that the Constitution should evolve to encompass certain normative commitments, whether or not they are discernible in the text. This is the core of the living tree approach.

But no one has ever described—with real precision—how a living-tree “doctrine” would work in practice, and so it is simply unconvincing to state, without more, that the Charter should or could encompass evolving normative commitments not fairly implicated by the text. Until the proponents of the living tree suggest some way—any way—that the doctrine should actually operate, it should be resigned to the dustbin of history. My point here is not to point out the flaws of the living tree methodology; others have done that. Instead, I want to suggest that for the living tree doctrine to become an actual doctrine, it should answer a number of fundamental questions. None of these questions are new, but they come into stark relief, requiring urgent answers, if the living tree is going to remain even a part of the Canadian constitutional atmosphere.

Why, for example, has the Supreme Court rarely applied the doctrine in any substantial way, despite it being a favourite among legal academics? One would be hard pressed to think of a case where the living tree was a decisive factor in favour of one party or another, or where it was applied to some distinct substantive end. In fact, in Comeau, the interprovincial beer case, while the Court mentioned the living tree doctrine, it was quick to point out that the metaphor is not an open invitation to constitutionalize modern policy outcomes [83]. So much for a leading interpretive theory of constitutional interpretation, especially when it appears that, on least some occasions, the Court has endorsed the opposite of a living tree approach.

Even if the living tree stood tall in the pantheon of constitutional interpretation, no one can answer how the doctrine should actually operate. In the United States, some attempts have been made by leading scholars to cloak living constitutionalism in the credentials of an actual interpretive theory. David Strauss, for example, links living constitutionalism to a sort of common law constitutionalism. To my knowledge, few if any in Canada have attempted to “steel-man” the living tree doctrine to turn it into something resembling an interpretive doctrine. The lack of effort is telling in the unanswered questions: should the living tree apply to expand the actual scope of rights, or should it just apply to new applications unknown to the framers? If the latter, how is this distinguishable from originalism, properly applied? After all, the dominant school of originalism is public meaning originalism, not original expected applications originalism. If this is all the living tree approach denotes, then it is a duplicative piece of atmospherics that is better left to the pages of poets rather than the law books.

Most strikingly—and this was laid bare in the Stereo Decisis podcast episode—how should a living tree “doctrine” mediate between different normative considerations? If the text gives us no answers, how we are to determine which values should be granted the imprimatur of constitutional protection? How do we determine whether society has evolved, such that a certain value is now constitutionally cognizable? How do we define “society?” These questions have never been answered in Canada.

Even if they could be answered, as Leonid points out in his post on the matter, there is nothing to suggest that courts are institutionally or normatively capable of getting to even defensible answers on these questions. These are not questions that are based on evidence, facts, or even legal norms. They are philosophical, involving inquiries into the mind of the cultural zeitgeist. Are we certain—or even confident—that judges can answer these questions?

If the proponents of the living tree want it to be a serious doctrine of constitutional law, these are all questions that should be answered. Until then, the status quo position should be that the living tree is a turn of phrase, taken out of context, that has no real substantive quality.

N.B. A reader has commented that Wil Waluchow has written about a sort of common law constitutionalism in Canada. I cannot speak with confidence as to whether Waluchow’s work is similar to the Straussian view, but at first blush it appears relevant. Whether it answers the legal questions posed in this post is another question.

Romancing the Law

An ode to formalism and reflections on Runnymede’s Law and Freedom Conference

I had the pleasure of attending last weekend’s Runnymede Society conference in Toronto. As always, the conference was a welcome opportunity to meet with old friends and new, and to reflect on a number of pertinent issues in Canadian law.

Perhaps because of my own research interests in the last year, I was particularly interested in a theme that seemed to run throughout the conference: the degree of confidence that each of us has in law, particularly the statutory law. Justice Stratas’ talk with Asher Honickman highlighted that there are many in the legal community that, if not giving up on law, are questioning its relevance in a society that is now defined by greater calls for context, nuance, individualized application, and discretion.  The virtues of rules—the creation of economies of scale, the structuring of norms and expectations according to positive orders, the costs saved at the ex post application stage—are apparently counterweighed by the potential for overbroad application, rank injustice, and otherwise discriminatory treatment.

The degree to which we are worried about these vices, or encouraged by these virtues, is probably a function of our belief in legislatures and their work product. Even if legislatures do not get things “right,” there are good reasons to believe that what the legislature does is owed a wide degree of respect–because of the value of legislative compromises, the “finely-wrought” legislative procedure, and the representative nature of the legislature . Nowadays, though, a commitment to the law passed by the legislature is labelled pejoratively as “formalist.” In administrative law, offshoots of this belief are characterized, dismissively and without analysis, as “Diceyan” or an unwelcome throwback to the days of “ultra vires” (take a look at the oral argument in the Bell/NFL & Vavilov cases for many examples of this).  In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

The consequences of this argument-by-label should not be understated. Take the case of statutory interpretation. The Supreme Court of Canada tells us that we should interpret statutes purposively, but at the same time, that the text will play a dominant role in the process when it is clear (Canada Trustco, at para 10). This implies that purposes, while helpful to the interpretive process, should not dominate where the text is clearly pointing in another direction.

But a focus on statutory text—especially the contention that text can ever be clear—is often derided as inconsistent with the contingent and “ambiguous” nature of language. So the argument goes, text can never truly be “clear,” and so textualism falls away. But whether the text of a statute will contain answers to an interpretive difficulty is, in part, a function of the judge’s belief in the coherence and determinacy of law—in other words, her appreciation of the point at which “law runs out”. A judge inclined to believe that the tools of statutory interpretation can be used to come to a defensible answer on a matter will commit herself to that task, and will probably not consider legislative language “ambiguous” in its purposive context. For her, law will maybe never run out, or if it does, it will only do so in the extreme case of true ambiguity, where no discernible meaning cognizable to human understanding could be appreciated. A judge less committed to the determinacy of law will be more willing to introduce extraneous materials—legislative history, Charter values—in order to come to a meaning that makes sense to her. For her, the law may “run out” quite early. The risk here, of course, is the enlargement of the scope for judicial discretion. For those who believe in the general soundness of statutory law, this creates the potential for conflict with the generally-elected representative body.

This is not a hypothetical problem. In the United States, Chevron administrative law deference rests on the judge’s appreciation of statutory language. At step 1, courts are asked to apply the ordinary tools of statutory interpretation to determine if Congress spoke clearly on a particular matter. If so, that meaning binds the agency. If not, at step 2, if there is ambiguity in a statute, courts defer to a reasonable agency interpretation. As Justice Scalia said, a judge committed to the text at step 1 will rarely need to move to step 2. In this way, there would be less scope for agencies to exercise virtually unreviewable discretion. Those who believe that law runs out earlier will, ceterus paribus, be more willing to allow multiple decision-makers to come to very different decisions on a matter so long as those decisions are roughly justified by a statute.

The various points on the spectrum of “giving up on law” will be the product of many factors, including factors particular to cases before courts. But at some level, a belief that text can, or should, contain answers seems to undergird the entire process of determining the meaning of a statute. I think there are good reasons to hold the belief that what the legislature produces is generally sound for reasons that are particular to the legislative process and the law in question. To my mind, judges should be wary of letting text “run out,” in part because of what replaces it; more abstract, generally less clear “second-tier” sources of legislative meaning (Note: sometimes text will be truly unclear, and a statutory purpose can be clearly gleaned from the text. Our law sees no problem with this, and neither do I).

This is not to presuppose that legislatures always make sense in their enactments. The process of making law is not designed to be a perfect application of human rationality or even of expertise. Legislatures sometimes don’t make sense. But there are good reasons to respect the legislative process. Importantly, seemingly non-sensical legislative compromises, run through readings in Parliament and the committee process, are sometimes the product of concessions to minority groups, represented through their Members of Parliament. These legislative compromises are sometimes essential, and should be respected even if they do not make sense. Judge Easterbrook puts it well: “If this [an outcome of statutory interpretation] is unprincipled, it is the way of compromise. Law is a vector rather than an arrow. Especially when you see the hand of interest groups.”

If the legislative process is imperfect, so is the process of statutory interpretation. Statutory interpretation will not always yield easy answers, or even the ex ante “correct” answer. The tools of statutory interpretation are often contradictory, some say outmoded, and sometimes unwieldly. But as Judge Posner said in his book Reflections on Judging, the tools of statutory interpretation are designed to impose meaning. Used authentically and faithfully, with a concomitant belief in the legitimacy of the law passed by the legislature, they help courts come to a defensible conclusion on the meaning of a provision; one that is consonant with the universe of laws in the statute book, with the particular statute’s larger purposes, and the immediate context of a statute.

It worries me that some no longer belief in this process—in the formal quality of law as law, in the idea that when the legislature speaks, it does so for a reason. Similarly, I worry that the invitation for judges to rely on values and principles extraneous to a statute—for example, Charter values, legislative history, etc—to impose a meaning on a statute is based on wrongheaded idea that judicial discretion is somehow absolutely better than legislative power. I, for one, think that we should expect judges in a constitutional democracy to believe in the law passed by the legislature. This is not judicial acquiescence, but there is perhaps a value to formalism. Parliament, to be sure, does not always get everything right. But there is a benefit to formalism: the way in which Parliament passes laws is subject to a formal process, interposed with legislative study. The way we elect our leaders and the way Parliament operates is, in a way, formal. The law it creates should be owed respect by those sworn to uphold it.

The debate over rules versus standards or discretion is one that is rife throughout history. But presupposing the debate, I always thought, was a belief in law itself. For those of us at Runnymede this weekend, we were invited to question whether that belief exists any longer.

The Canadian Legal Mandarinate

Why we ran the 12 Days of Christmas symposium

On behalf of Leonid and I, I’d like to thank all of our readers for their interest in our recent 12 Days of Christmas symposium, which featured contributions from scholars on their five least favourite Supreme Court cases of the last fifty years. What started as a festive and fun holiday feature has made, I think, a much broader point: rather than glowing coverage of what the Supreme Court does, there is an audience and a need for more biting, critical commentary in Canadian law.

I say this because a not-infrequent response to our symposium asked why we needed to be so pessimistic. Why not ask people for their favourite Supreme Court cases? Doesn’t the world need more positivity?

Maybe it does, but I’m not sure there is a lack of it towards the Supreme Court in Canadian law. Of course, I don’t have empirical evidence to show that Canadian scholars are too deferential towards the Supreme Court and its judges. But it is interesting why our symposium struck a chord in the first place.   Over on profsblawg, Paul Horwitz explains why this might be. Horwitz received his law degree in Canada (University of Toronto), and notes that he practiced and published there as well. It’s worth reproducing a large part of what he said about his impressions of Canadian legal academic culture. It isn’t good:

 

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers.

[…]

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal–faculty-run and peer-reviewed, as most of them are–and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

[…]

If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country’s “national values.”

This a powerful anecdotal account of how Canadians tend to react to those in judicial authority, and in response to those who do engage in critical analysis. Speaking for myself, I am unsurprised by Horwitz’s comments after writing this post on the reaction to Justice Abella’s comments about the role of the Supreme Court as the definitive font of authority on “Canadian values.” Many argued that Leonid and I went too far by drawing particular attention to Justice Abella’s specific comments. Others suggested that we should always tread carefully when criticizing judges, that we should always presume good-faith, and that we should speak about decisions and institutions rather than personalities.

As I’ve said before, if judges are going to assume the mantle of constitutional guardians, we all have the right (and the duty) to monitor their decisions. Given the heightened role that court has arrogated to itself, I see no quarrel with concerning ourselves with what the judges think and say, as well. But this isn’t strictly the point. Instead, it is enough to say that we already do a lot of celebrating of judges and judicial decisions in Canada. There was, of course, the rather drawn-out farewell tour for Chief Justice McLachlin, with growing tributes and nary a peep about her judicial missteps. Academic articles were written celebrating her as the “expositor of our constitutional values.” Justice Abella has also received her fair share of celebration, among academics and the bar alike. I think there is probably an interesting correlation between this judicial idolatry and the rather depressing statistics on ideological uniformity in law schools, but I need not explore that connection here.

I view the 12 Days Symposium as a product of supply and demand principles. If we take Horwitz seriously, and my own experience is consistent with his, then we have an abundant supply of “positive,” more deferential legal commentary in Canada. What is missing, and what our 12 Days contributors arguably provided, was a breaking point from the consensus. And judging from our readership and the spirit of the contributions, I think there is a real demand for this sort of work in Canadian legal academic circles.  Of course, I think this is broadly consistent with the entire premise of Double Aspect to begin with.

To be fair, a lot legal scholarship can’t and shouldn’t be put into the “positive” or “negative” column. Some work is empirical, and that work is in low supply in Canada, at least when it comes to public law. Robert Danay has done us a great service, in this respect, with his empirical work on Dunsmuir. But there is a decidedly normative bent to Canadian legal scholarship, and to that extent, there is such a thing as critical work.  Though I cannot purport to speak from great experience (and so I qualify my statements to a large degree), I view legal scholarship is something like calling balls and strikes. Sometimes, the Court gets it right, and we try to highlight that on Double Aspect when we can. Others do so too. But there is a distinct lack of critical commentary, and our contributors supplied the demand.

This answers the question of why we chose not to run a symposium focusing on the Supreme Court’s best cases—this is already out there if you look hard enough. And it’s also the reason why, speaking for myself, there is no need for an endless veneer of deference towards the judiciary. I can’t speak from experience to definitively conclude that there is a Canadian legal mandarinate. But I can say that there appears to be reticence about criticizing decisions and judges.

R v Boudreault: Parliament’s Cross to Bear

The rule of law does not countenance the frequent use of suspended declarations.

In R v Boudreault, 2018 SCC 58 the Supreme Court of Canada (per Martin J) struck down s.737 of the Criminal Code, which requires an offender who is found guilty, is discharged, or pleads guilty to an offence under the Criminal Code or the Controlled Drugs and Substances Act to pay a “mandatory victim surcharge.” The Court found that the surcharge constituted “cruel and unusual punishment” under s.12 of the Charter, because the victim surcharge was levied on offenders regardless of “the inability to pay, the likelihood that they will face a repeated deprivation of liberty for committal hearings, or the indefinite nature of the punishment” [45]. The Court struck down the law with immediate effect.

The substantive merits of the case are not my concern, and others have summarized them. But I can’t resist dipping my toe in the water. The test developed under s.12 of the Charter of “gross disproportionality” applied to “reasonable hypothetical scenarios” has always troubled me. Gross disproportionality is not necessarily co-equal with “cruel and unusual” punishment, the latter being a legal term of art that also appears in older constitutions, like the United States’ (8th Amendment). Issues of application arise, too: it is one thing for a criminal sentence to be grossly disproportionate, but it strikes me as odd to say that a victim surcharge, parasitic on the conviction assessed against the individual, is “grossly disproportionate” or even “punishment.” The offender is simply being asked to bear some of the costs of her criminal conduct.

But, though I disagree with the substantive outcome, I take the s.12 violation as a given—instead, I think the more interesting part of the case is the decision on remedies. I see Boudreault as a small step towards peeling back the force of the suspended declaration of invalidity, which has, in recent years, been the constitutional remedy adopted by the court on the say-so of the government. This state of affairs corrodes the important organizing principle of Canada’s constitutional remedies law: the rule of law itself.

How does the rule of law situate itself in the doctrine? The remedial authority for striking down laws is s.52 of the Constitution Act, 1982. That provision simply declares that the Constitution is supreme—and so it follows that laws contrary to the Constitution are invalid. A law that is unconstitutional is no law at all, and no court or government official should apply or enforce laws that are unconstitutional.

Section 52 does not say anything about “suspended declarations,” yet they have become the go-to remedy for the Court in constitutional cases. Because the Constitution should be interpreted consistently, any justification for suspended declarations should similarly be found in the rule of law itself. But this has not been the way for the Court, which often suspends declarations without much of a thought. For example, suspended declarations were endorsed in both Bedford (prostitution laws rendered unconstitutional) and Carter (criminal prohibitions on assisted dying rendered unconstitutional). In the former case, there was barely any comment on the matter from the Court. It noted that, “[w]hether immediate invalidity would pose a danger to the public or imperil the rule of law… may be subject to debate” [167]. A mere two paragraphs later, the Court concluded that, “considering all the interests at stake” the declaration should be suspended [169]. In the latter case, the Court’s analysis was similarly brief: “We would suspend the declaration of invalidity for 12 months” [128]. What’s more, the government couldn’t meet the deadline imposed by the Court, and actually received an extension of the suspension. In these cases, the suspended declarations seemed the declaration of rote when the Court was faced with a certain type of high-profile case.

This era of the suspended declarations stands uneasily with a generation previous. The first case in which the suspended declaration was used was the Manitoba Language Reference. There, the Court found Manitoba’s failure to publish laws in both official languages to be unconstitutional; accordingly, all of Manitoba’s laws were constitutionally invalid. But the Court recognized that an immediate declaration of invalidity, reaching forwards and backwards, would invalidate all laws and acts taken under those laws in the province of Manitoba, creating a “legal vacuum” [753]. The Court framed this concern in terms of the rule of law. By declaring the statutes invalid, an element of the rule of law would be sacrificed, the part that “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order” [749]. And because the rule of law required the maintenance of this order of laws, an immediate declaration according to s.52 would undermine it.

Slowly but surely, the Court extended (or, arguably, replaced) this rule of law justification for suspended declarations. In Schachter, the Court listed three situations in which a suspended declaration would “be warranted”: the rule of law justification in Manitoba Language Reference, where striking down the legislation would “pose a danger to the public”; and where striking down legislation could deprive “deserving persons” of benefits.

So, the situation can be mapped in three general phases–simplified, of course: (1) Manitoba Language Reference, where the rule of law provided the exception to an immediate declaration (2) Schachter guidelines and (3) the Bedford/Carter era, where neither the rule of law or the Schachter guidelines figure prominently in the Court’s analysis. Bedford/Carter are in this respect a far cry from the Manitoba Language Reference. But in Boudreault, the Court seemed willing to at least lurch backwards toward Schachter. It ultimately concluded that “[t]he respondents have not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law” [98]. To the extent that the Court actually ties back its conclusion on suspension to the Schachter guidelines, it seems willing to move away from the idea that a declaration should be suspending merely on the government’s submission. The Court characterized the Schachter guidelines as a a “high bar” [98]. And the Court, promisingly, framed its reason for hesitance in the language of the rule of law: “…in my opinion, a suspended declaration in this case would simply cause more offenders to be subject to cruel and unusual punishment” [98].

So, Boudreault can be seen in two ways. It can be seen as a throwback to a more disciplined application of the Schachter guidelines, which would be a welcome and easy doctrinal change. At the very least, the Schachter guidelines are predictable and are related (if only tangentially) to the rule of law. Or, for those of us who are more positive, Boudreault can be seen as justifying a more robust doctrine of constitutional remedies based on the rule of law, where suspensions are confined to narrow circumstance; the government is forced to deal with constitutional violations and plan for the eventuality that certain laws may be more susceptible to a successful challenge.

Any such courageous doctrinal change should start from the perspective of the rule of law. For example, it strikes me that the third Schachter category—deprivation of benefits—does not create a situation impacting the rule of law at all, and so should not justify a suspended declaration. Situations involving public safety could impact the rule of law, but the bar would have to be exceptionally high. In democratic societies of order, only the most massively disruptive situations of public safety would imperil the rule of law and justify the further imposition of unconstitutional laws. This would be a rarely used category.

Similarly, an allowance for suspensions on rule of law grounds would similarly be narrow. I can envision marginal situations like the Manitoba Language Reference, where a significant portion of the laws on the books are declared invalid, depriving a jurisdiction of a positive order of laws; or where a particularly important law governing some central set of legal relations is declared invalid (an example escapes me). Even this latter suggestion is perhaps a bridge too far, because any law could be “important.” Nonetheless, this rule of law justification would be narrowly confined, significantly more so than the Court’s existing doctrine

Those who favour suspensions might retort that, both institutionally and constitutionally, legislatures are owed deference in remedying constitutional violations. But to my mind, deference does not attach to this point of the constitutional analysis. It is one thing to defer to a government’s laws when determining whether they violate particular constitutional rights. To strike down a government law is not something that should be taken lightly, given the classic countermajoritarian difficulty—this is why stable and principled doctrine is so important. But once the law has been struck down by a court, it is wholly the legislature’s job to solve the constitutional problem. Absent some overriding rule of law concern, it is usually not (and shouldn’t be) the job of courts to patch up laws or give governments an assist through suspensions. After all, Parliament legislates. When it errs, Parliament must fix its mistake. This is its cross to bear.

In this sense, Boudreault is a refreshing change in tenor for a Court that has generally afforded deference through suspensions. One hopes it’s a renewed look to the rule of law.

Criticizing the Supreme Court

Why we should vigorously dissent when the occasion presents itself.

What is the generally accepted scope of criticism for the Canadian judiciary?

This question was brought into stark relief last week, with a post from co-blogger Leonid Sirota and a similar post from me criticizing, in no uncertain terms, Justice Abella’s recent comments about the role of the Supreme Court in Canadian society. Leonid received criticism for his post, with others positing that there should be a presumption of good-faith when criticizing the judiciary.

It strikes me that the general reaction, while itself in good faith, ignores the nature of judicial decision-making in modern day Canada. The so-called “countermajoritarian difficulty” is, to some, a non-starter for discussion in Canada, because Parliament and the provinces (read: Canadians) themselves gave the strong-form power of judicial review to the courts in the 1982 constitutional negotiations. Within this argument is an admission that the court’s role—itself a product of democratic consensus—cannot usefully be criticized on democratic grounds. It is reflective, according to Justice Abella, of a broad consensus among Canadians that the court should be advancing values and principles that at one point were the responsibility of the legislature.

So be it. But with great power comes great responsibility. And if we are to accept a role for courts in legislating, then courts should be subject to the very same criticism that is leveled at politicians of all stripes. If courts are ruling on matters central to who we are as Canadians, and if they are doing so because we gave them that power through democratic channels, we should be responsible for monitoring our choice. In that sense, the judiciary’s great power should be checked by watchful criticism just as Parliament’s judgment is criticized.

The response to this is predictable, and it is raised by Justice Abella: the difference between the judiciary and the legislatures in our system is so important that it is given constitutional protection. Judicial independence is a cherished principle because it allows the courts full scope to check majoritarian passions, which is sometimes necessary in a society based on constitutionalism and the Rule of Law. In this sense, we should not undermine judicial independence through robust criticism of the judiciary, lest it invite enterprising Trumpian politicians to rail against the courts and reduce the public’s trust in these hallowed institutions.

The conflation between judicial independence and criticism is quite unfortunate. Judicial independence is indeed an important constitutional requirement, one that should be preserved. But judicial independence should not stop us from criticizing the judiciary when it goes too far, in light of other constitutional principles—including the separation of powers. Parliament is supreme within constitutional boundaries, but this does not stop any one of us from vigorously criticizing parliamentarians, even with invective language. Even lawyers, defenders of the institutional integrity of law, do this on Twitter from time to time when talking about Justin Trudeau, Doug Ford, Jim Watson, etc etc.

If one views the court as carrying immense power, it is natural to err on the side of promoting vigorous, powerful dissent rather than muddy agreement or assumptions of good-faith. We can always assume good-faith, but that gets us nowhere near the substantive justifications for a court decision, nor does it allow us to criticize a particular judge’s thought process and reasoning. Something may be in good-faith but totally and completely contrary to fundamental law; or it may be the result of several logical fallacies, or an oversized view of the judicial role unsupported by our history or traditions. It may be inevitable that we have to mention a judge’s name in criticizing her thought process, and if judges are public figures, they should expect nothing less. In this sense, short of the marginal cases where one lobs horrible insults, the judge and her worldview are inseparable from the things she says and the public pronouncements she makes.

In other words, if a judge of a particular court views her job as deciding value judgments, that same judge cannot then hide behind judicial independence as a protection against vigorous criticism. The Charter did not entrench courts. It entrenched a Constitution, the basis of which derives from popular support represented by legislatures. We, including those in the legal profession, have the right and the responsibility to vigorously criticize judges. If a line is to be drawn, it should be drawn inclusive of this important principle. In the same vein, in a society where judges carry great power, histrionics and celebration of those same judges should be avoided, much in the same way that we view politicians with a hint of distrust. This is not a malevolent consequence of our system, but it should be the natural reaction of human beings who have delegated broad powers to others to govern them.

Reading from a Palimpsest

The Supreme Court of New Zealand holds that declarations of inconsistency are available when Parliament disregards the New Zealand Bill of Rights Act

I have previously written about the litigation concerning the power of New Zealand courts to make formal declarations to the effect that an Act of Parliament is inconsistent with the New Zealand Bill of Rights Act 1990. This litigation has now reached its conclusion with the New Zealand Supreme Court’s decision in Attorney-General v Taylor, [2018] NZSC 104. The Court holds, by a bare 3-2 majority, that this power does indeed exist. The decision is interesting for what the judges say, what they suggest, and what they do not say; at least from a theoretical perspective, it might be of some interest to Canadians, as well as New Zealanders.

The case concerns a 2010 statute that disenfranchised prisoners serving sentences of less than three years. (Longer-term prisoners were already disenfranchised by then, and the consistency of denying them the ability to vote with the Bill of Rights was not in issue.) The Attorney-General, having told Parliament that this statute was inconsistent with the Bill of Rights Act before its enactment, conceded the inconsistency, but denied the ability of the courts to issue a formal declaration to the effect that such an inconsistency existed. He had lost at both the High Court and the Court of Appeal.

There are three sets of reasons: what might be described as a quasi-majority opinion by Justice Ellen France, joined by Justice Glazebrook; a concurring opinion by Chief Justice Elias, who largely shares Justice Ellen France’s approach (hence my labelling the latter a quasi-majority); and a dissent by Justice O’Regan, joined by Justice William Young. (For the purposes of writing about New Zealand, I shall follow the local convention of mentioning the first name of a judge to distinguish her or him from a colleague—not necessarily from the same court—who shares that judge’s surname.)

Justice Ellen France starts from the well-established proposition that, even though the Bill of Rights Act contains no provision authorizing remedies for its breach (equivalent, say, to section 24 of the Canadian Charter of Rights and Freedoms), “in order for the Bill of Rights to be effective, the courts had to provide remedies for breaches”. [29] For Justice Ellen France, declarations of inconsistency are just an additional remedy that can serve this purpose. There would need to be “statutory language” to prevent the courts from granting this particular remedy; [41] in its absence, they can do so. Justice Ellen France points out that, by its own terms, the Bill of Rights Act applies to Parliament, and that while it explicitly prevents the courts from refusing to apply inconsistent legislation, the specificity of the provision doing so suggests that other remedies against inconsistent statutes are not categorically excluded.

Moreover, Justice Ellen France rejects the Crown’s submission that legislation inconsistent with the Bill of Rights Act effectively changes the contents of the rights the latter “affirms”, and thus cannot be regarded as inconsistent with it. Rather, “the Bill of Rights remains as the standard or palimpsest albeit Parliament has exercised its power to legislate inconsistently with that standard”. [46] Justice Ellen France also rejects the argument that a declaration should not be made since it is inconsistent with the judicial function and it will have no further consequences. A declaration “provides formal confirmation” of the “rights and status” of the person to whom it is granted, [53] of his or her legal position, even in the absence of any further relief. (On this point, Justice Ellen France refers to the Supreme Court of Canada’s recent decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.) In any case, a declaration provides vindication for the infringed right, and might be useful should the matter be revisited by an international instance or by Parliament itself.

That said, Justice Ellen France pointedly explains that, while “the Court of Appeal canvassed the relationship between the political and judicial branches of government and the role of the higher courts under the New Zealand constitution”, she does not “undertake a similar exercise”. [66] The purpose of the declaration is to provide such vindication as can be provided consistently with the Bill of Rights Act to the person whose rights have been infringed—not to goad or guide Parliament. While the Court of Appeal had embraced the view that declarations were part of a constitutional dialogue between the legislative and the judicial branches of government, no judge of the Supreme Court so much as mentions the word “dialogue” in his or her reasons.

As noted above, Chief Justice Elias largely agrees with Justice Ellen France. In addition, she emphasises the courts’ inherent jurisdiction (recognized by statute) to “administer the law”, and their statutory power to declare what the law is even if they cannot grant any additional relief. The Chief Justice also stresses “the fundamental nature of the enacted rights (declared as such in the legislation)”, [102] and says that while Parliament is free to legislate in disregard of these rights, their scope can only be modified by an amendment to the Bill of Rights Act, not merely “by inconsistent action”. [103] Indeed, the declaration of inconsistency is address “to those whose rights are affected”, instead of “serving “to assist Parliament in its function, as the Court of Appeal suggested”, [107] a position with which Justice Ellen France expresses her agreement (n87).

The majority judges leave a number of significant issues unresolved—notably that of just when a declaration, which is a discretionary remedy, ought to be granted in response to an infringement of a right protected by the Bill of Rights Act. But they do not endorse the Court of Appeal’s suggestion that formal declarations should be a last resort. While they provide little guidance beyond that, this suggests that declarations may now become a relatively unexotic feature of New Zealand’s constitutional landscape.

Justice O’Regan is none too pleased. He accepts “that effective remedies should be available for breaches of the Bill of Rights Act”. [124] The question, though, is whether a standalone declaration of inconsistency can be such a remedy. It is one thing for a court to point out, in the course of deciding other issues, that a statute is inconsistent with the Bill of Rights Act — this has been done before; it is another to address the question of inconsistency if it is the only issue between the parties, and when nothing else follows an affirmative answer.

In such circumstances, Justice O’Regan says, there simply isn’t anything for the courts to do. Although the Bill of Rights Act provides that it applies to Parliament, it also prevents the courts from refusing to apply inconsistent legislation, and thus is not truly a

limitation on Parliament’s power to legislate. It is at least arguable that to the extent that there is a breach of the Bill of Rights resulting from the passing of inconsistent legislation, it is not of a character for which the courts are required to fashion a civil remedy. After all [the Bill of Rights Act] removes the only truly effective remedy from consideration. [133]

In any case, the bare declaration of inconsistency might not even count as a “remedy” at all, let alone an “effective” one. Justice O’Regan worries that such a declaration “may be simply ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary”. [134] He is also concerned about “the considerable expenditure in money and resources” [143] that might result from what he sees as pointless litigation about abstract questions of consistency with the Bill of Rights Act. And, after all,

We have had the Bill of Rights Act now for 28 years and a declaration has never been made. … It can hardly be said that this has undermined the objective of the Bill of Rights Act to affirm, protect and promote human rights and fundamental freedoms in New Zealand. [144]

I don’t think that Justice O’Regan is right about this. He sees the matter in absolute terms: in the absence of declarations of inconsistency, the Bill of Rights Act has already provided some level of protection for rights and freedoms; at the same time, even if declarations are available, the level of protection will remain low, since “the only truly effective remedy”, which is to say invalidation of inconsistent legislation, is still off the table. The majority, by contrast, approach the matter in relative terms. For Justice Ellen France and the Chief Justice, what matters is that the availability of declarations will improve the protections provided by the Bill of Rights Act. Considering that essentially symbolic remedies exist elsewhere—for example, very low damages awards that are supposed to “vindicate” rights violated by the executive—the view that another such remedy constitutes a real reinforcement of rights-protection is, I think, more coherent with the big picture of public law.

The majority are also right to reject the Attorney-General’s arguments based on implied repeal of the Bill of Rights Act by inconsistent legislation. Although neither Justice Ellen France nor the Chief Justice raise this point, in my view the interpretive role of the Bill of Rights Act—section 6 of which provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”—strongly suggests that it must have a meaning independent both of prior and of subsequent legislation. (Of course, legislation that explicitly amends the Bill of Rights is possible, and only requires a simple majority in the House of Representatives to pass; but the parliamentary majority must, nevertheless, at least be willing to go to the trouble of enacting it).

Justice Ellen France’s palimpsest metaphor is apt. Legislation inconsistent with the Bill of Rights Act adds another layer to the pages of the statute book, but they do not fully erase the rights and freedoms inscribed underneath them. Depending on the purpose for which one reads the statute book, one must sometimes focus on the inconsistent statute (applying it notwithstanding the inconsistency) and sometimes on the Bill of Rights Act (when ascertaining and declaring the inconsistency), but both layers continue to exist.

Speaking of metaphors, I think that the majority do well not to follow the Court of Appeal’s embrace of the “constitutional dialogue” theory. In an article published in the New Zealand Universities Law Review, I argued that, despite its superficial attractiveness as a means to address a “majoritarian malaise”—the worry about a  sovereign Parliament’s ability to define or deny the rights of minorities—, this theory is not well-suited to the constitutional context of New Zealand (or any polity that adheres to Parliamentary sovereignty. It makes little sense to speak of dialogue when one of the supposed interlocutors is free to simply ignore what the other has to say, as a sovereign Parliament is free to ignore the courts’ pronouncements about rights.

I concluded that article by writing that

New Zealand’s constitution is one that makes Parliament supreme, and the courts cannot mitigate this fact. They can only point out the abuses of this supremacy that sometimes occur, and they will do so more clearly and with more force if they do not pretend that what they are faced with is a provisional, revisable opinion stated as part of a conversation among equals rather than an abuse of power.  (917)

This is what the Supreme Court has done. So much the better.