The Five-Judge Myth

How many Supreme Court judges does it take to decide a civil law appeal?

By Peter McCormick

A defining aspect of the Canadian legal system is its bijuralism: Quebec’s civil law system is distinctly different from the English-derived common law of the other provinces. The federal-provincial division of powers which assigns to the provincial legislatures jurisdiction over “property and civil rights within the province” is its formal entrenchment. There are also structural accommodations, one of the most important of which is the composition of the Supreme Court.  Alone among the provinces, Quebec is guaranteed a minimum share of the Court’s membership. One third of the judges (two of six in 1867, three of nine since 1949) must be appointed from the bar or the judiciary of Quebec, which is to say that they must be experienced in the civil law.

On the face of it, this is not enough; it does not preclude the possibility of a common law majority that persistently out-votes its civil law minority and steadily erodes this bijuralism. Its impact has therefore been reinforced by a long-established practice. Peter Hogg describes it as follows: “since 1949 … it has been possible to assemble a quorum of five judges with a majority of civilians” with the result that “(t)his is now the usual composition of the bench when the Court hears a civil law appeal from Quebec.” (Hogg, Constitutional Law of Canada (various editions), Chapter 8.5(a).) Assuming a unified trio of civilian judges – a single defection can be decisive – it is both an acknowledgement and an effective protection of Quebec’s civil law uniqueness.  The recent controversy over the Nadon appointment served once again to highlight the importance of demonstrable and recent civil law experience for those Quebec judges.  As a student, years ago, I was impressed by the elegance of this “five-judge” solution; as a professor, I tried to ensure that my students appreciated it as well.

However, there is another story that we have been telling about the Supreme Court, and that is the story of a steady move toward larger panels.  The Supreme Court Act permits panels of various sizes, but five judge panels continued to dominate even after the enlargement of the Court to nine members in 1949.  In this context, a slight tweak of the rules for striking the panels for civilian appeals was procedurally simple, almost invisible, and reliably consequential.  Ever since the great watershed of the Laskin Court, however, panels have been getting steadily larger.  On the Lamer Court, the default was already seven judges, with the more important issues (such as the growing number of constitutional cases) assigned to larger panels and only the more routine cases (such as appeals by right) going to smaller ones.  Under McLachlin, this trend has continued, such that nine-judge panels are now the most common and five-judge panels have become unusual, used for only one reserved judgement in every thirty.


It is not easy to reconcile this long-term trend toward large panels with a five-judge rule for civil appeals.  This post reports on my own investigation of these two on-the-face-of-it contradictory generalizations, focusing initially on the McLachlin Court.  On my findings, it is the “larger panels” generalization that very much prevails.  The “five-judge” practice of Quebec exceptionalism has all but disappeared.

The first question is how to objectively identify the set of civil law appeals, and the Supreme Court itself has provided the most obvious solution: the judge-written headnotes that lead off every decision.  If those included specific mention of either or both of the Civil Code of Quebec and the Code of Civil Procedure, then I treated it as a civilian appeal.  (A further forty cases listed these statutes among their citations without any headnote notation, but I did not treat citation alone as justifying their inclusion.)  Limiting the inquiry to reserved judgments only, this gave me fifty-five civil law cases, for an average of about three per year.

How many of these were decided by five judge panels?  Only five – one in every eleven, which is to say one every three or four years.  Thirty-two went to seven judge panels, and nineteen to full-court nine judge panels. The average panel size was 7.5, only slightly below the McLachlin Court average of 7.9 for all reserved judgments.  The fact that it is lower at all may suggest a residual tug of the older “five-judge” rule, but if so it is a small tug indeed.

Even more surprising, only a single one of those five judge panels included all three Quebec judges, guaranteeing that a united set of Quebec civilians would prevail over their common law colleagues.  More remarkably yet, this was balanced by a single example at the opposite extreme — a panel with no Quebec judges at all.  A panel small enough that the Quebec judges can make up a majority is of course also small enough that the Quebec judges can be left out altogether.  The five-judge rule would have led us to expect that these five panels would have included a total of fifteen Quebec judges and ten of their common law colleagues; in practice, they included only eight, well below the common law total of seventeen.  Further to punctuate the point, four of the five examples were from the first four years of the McLachlin Court, and the single more recent example was the “no Quebec judges” panel.


Comparing eighteen years of McLachlin with eighteen months of Wagner calls for caution, but there has been no sign of a reversal of the above patterns.  To date, the Wagner Court has dealt with seven civilian appeals, some of which were consequential; five were decided by panels of nine and two by panels of seven.  There was no sign of the five-judge practice, no indication that these appeals are treated differently in this respect from the broad run of reserved decisions.  The five-judge rule is dead; it seems to have breathed its last in 2004.

But all is not lost.  Quebec judges may have been under-represented on the vanishing smaller panels and risk being outvoted on the larger ones, but they do deliver most of the judgments – fifty-one of the McLachlin Court’s fifty-five and five of the Wagner Court’s seven for an overall total of fifty-six out of sixty-two, about ninety per cent. There has long been a significant “homer” tendency on the Supreme Court in assigning the judgment – an appeal coming from your own province roughly doubles your chances – but the tendency is even stronger for Quebec civil appeals.  Compared with the five-judge rule, this may well be a less robust and less compelling institutional recognition of Quebec exceptionalism, but it is where the empirical evidence takes us.  We should remember, however, that when the Supreme Court was first established it was the spectre of common law judges deciding civil code issues that worried Quebec. “It only happens one time in every ten” may not be a completely reassuring response now that civilian judges are now outnumbered on every panel.

The Cruel Ritual of the Ontario Bar Exam

Every June, lawyers-to-be in the province of Ontario make the pilgrimage to one of a few cities to undergo the ritualistic exercise of writing the bar exam. For many, the bar exam—otherwise known as the lawyer licensing exam—represents a large part of the process to become a lawyer in the province of Ontario. Students migrate into convention halls with their little Ziploc baggies of highlighters and granola bars, and carry in large bags their heavily indexed binders of material. But the Law Society of Ontario’s (LSO) bar exam is not an exercise in actually demonstrating competence. Instead, the regulator has imposed a search-and-destroy style exam on students, in which the charges must find the right answer buried in their indexed binders. If the goal of the bar exam process is to ensure that students have a minimal level of competence in the profession, it is hard to see how the bar exam achieves that goal.

More to the point, it appears that the only good justification for a bar exam of this sort is to teach students how to take a timed examination under strict conditions. But what purpose does this justification have in terms of competency for a lawyer? Indeed, other that imposing needless anxiety and pressure on already debt-burdened students, how does this ritual do anything for competency? Maybe it could be justified as a tradition that all lawyers should have to bear—but this seems like a thin reed on which to charge students for the pleasure of it.

Instead of taking the bar exam as a given, perhaps Ontario should start from first principles. What is the goal of the licensing process? Starting from the highest level of abstraction, the Law Society Act states that a goal of the LSO is to ensure that “all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide.” In its “Options for Lawyer Licensing: A Consultation Paper,” the LSO noted the following:

Lawyer candidates are required to demonstrate proficiency in respect of competencies that reflect the minimum requirements of both barristers and solicitors entering the profession in the seven areas of law that are most frequently practised. The current barrister and solicitor examinations provide a means of testing candidates’ abilities in core knowledge, application and critical thinking competencies, irrespective of their educational background.

With this connection to the competency requirement in mind, the LSO also defended its licensing process, citing only one article from American scholars:

The LSO’s licensing examinations are internationally-recognized as high-quality, psychometrically-defensible professional qualification assessments.

That relatively unsupported assertion aside, the LSO to its credit recognized in its consultation paper that the licensing process needed some amendment. In fact, the LSO outlined four options for the licensing process. Two of those options would add a “skills-based” examination to the existing bar exams. Indeed, the option ultimately chosen by the LSO would involve ”[c]onsideration of some form of skills testing in the licensing process.” But there did not appear to be a serious appraisal of whether the bar exam—from a common-sense, regulatory perspective—really advances the goals of competency. In other words, while some form of skills-testing is probably tied closer to a regulatory goal of ensuring competency, I fail to see how the mode of the existing licensing examinations does anything to even basically ensure that competency.

The Ontario mode is not the only one that could be followed. In Manitoba, for example, the focus of the process is almost entirely skills-based rather than examination-based. Instead, through the CPLED program, students are exposed to different tests in oral advocacy, writing, and other areas that are more directly related to lawyer competency. One can at least make the regulatory business case for this mode of testing as connected to testing lawyer competency.

I cannot say the same for Ontario’s whack-a-mole-style licensing examinations. While the LSO tries to suggest that its licensing exam is acclaimed internationally (simply on the basis of one US article), I truly would like to know, at the level of regulatory policy, the justification for a bar exam of Ontario’s sort. From where I am standing, it appears as nothing more than a cruel joke to already-burdened students.

Environmental Sustainability is Not An Unwritten Constitutional Principle

On the IACL-AIDC Blog, Professor Lynda Collins (Ottawa) suggests that “ecological sustainability [should be recognized] as an Unwritten Constitutional Principle (UCP)—a foundational, binding norm to provide guidance to courts and legislators as we navigate the difficult waters of our current environmental crisis.” This argument also appeared in a joint article by Prof. Collins and (now Justice) Lorne Sossin, where the authors link this nascent principle of environmental sustainability to the Constitution’s apparent status as a living tree. In short, without the UCP of ecological sustainability, or whatever the principle is defined as, “the Constitution would become ‘self-defeating’; to extend the metaphor, it would be a dying tree rather than a living tree” [318].

I strongly disagree with the thrust of both the blog post and the article. While environmental sustainability is a noble objective, and I commend the authors for saying so, interpretation of legislation or assessment of the legality of discretionary decisions cannot be driven by our own personal policy preferences (Hillier, at para 33) . Simply because environmental sustainability is a good idea does not make it a constitutional mandate. Accepting it as such would continue a dangerous trend in constitutional law—a desire to transform the Constitution into a vessel for popular modern policy objectives, thereby making it a document of majoritarian rule rather than a counter-majoritarian restriction on governmental action.

I first wish to show why environmental sustainability cannot be a UCP. Then I assess the dangerous implications of recognizing such a principle.

***

For a UCP to be recognized by a court, it must meet general certain criteria. In the Quebec Secession Reference, at para 49, the Court generally described these criteria as follows:

Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principle. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based….These defining principles function in symbiosis.

But these principles are not free-standing licences for judges to read-in modern “values” into the Constitution that is designed to be resistant to change. In fact, the principles are institutional or structural in nature. They “inform and sustain the constitutional text…” (my emphasis). Consider some of the commentary from the Quebec Secession Reference:

These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning [32].

[…]

The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scopes of rights and obligations, and the role of our political institutions [52].

Consider also the Court’s comment in the Patriation Reference, at 874:

[The Constitution of Canada includes] the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.

These comments are clearly related to the role of unwritten principles in interpreting textual ambiguities in the constitutional text, which itself is designed to set out the institutional capacities of the state. The goal is to provide a “legal framework for our system of government.” This restriction means that unwritten constitutional principles, to be recognized, must bear some “vital” relationship to the constitutional structure and the history. These are not freestanding policy preferences: indeed, the Court said as much in the Quebec Secession Reference, when it opined that “the recognition of these constitutional principles…[cannot] be taken as an invitation to dispense with the written text of the Constitution” [53].

Some of the principles recognized thus far reflect this theory of unwritten principles as central to structural or textual concerns. Take, for example, federalism. A federal structure is established by ss.91-92 of the Constitution Act, 1867. Federalism, then, is “inherent in the structure of our constitutional arrangements” (Quebec Secession Reference, at para 56, my emphasis). Federalism responds to “underlying social and political realities” that are implicitly reflected in the “diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction” (Quebec Secession Reference, at paras 57-58). The limiting principle to all of this is the use of an unwritten principle to provide meaning to unstated assumptions or ambiguities inherent in the text or structure of the Constitution. Unwritten principles are not at-large.

So, in all of this, where does ecological sustainability stand? For Collins, either of “ecological sustainability,” “respect for the environment” or “environmental protection” “…meets all of the criteria the Supreme Court has set out for “Unwritten Constitutional Principles.” This is because—picking up on language in the Quebec Secession Reference—sustainability is the “lifeblood” of the Constitution, and a
“vital unstated assumption underlying the Canadian state.” Historically, Collins relies on various documents that show that sustainability is an unwritten constitutional principle. The Charter of the Forest (1217) apparently “guaranteed to British subjects rights of access to vital natural resources” and under Roman Law, the Justinian Code enshrined a version of the public trust doctrine. The Supreme Court itself has recognized that the environment is an important fundamental value (see British Columbia v Canadian Forest Products).

But there is a problem with all of this. It is one thing for environmental sustainability—whatever that means—to be a fundamental societal value. But what is the fundamental structural link back to the Constitution? One does not appear in either Collins & Sossin’s article or Collins’ blog post. As a legal matter, environmental sustainability appears separate and apart from fundamental institutional features that are either a part of British Westminster parliamentary democracy, or are otherwise central to Canada’s particular legal arrangements. Environmental sustainability may be a bedrock societal principle, but whether it is fundamental to the Constitution—which is not necessarily co-extensive with “society,” whatever that is—is a completely different question altogether.

Of course, one might say that ecological sustainability is the basic starting point for any society with a Constitution. That is, it is so fundamental that without it, there would be no world to begin with, hence no Constitution. This argument appears absurd to me, and though Collins seems to make it at some points, it never appears as a full-fledged contention—probably for good reason. For one, the argument as taken would make “ecological sustainability,” a goal without any limiting principle, the dominant organizational principle of the entire society. This would be on the assumption that without ecological sustainability, we’d all die. While protecting the environment is an admirable and necessary goal, no one would suggest that it is a goal to be achieved at all costs. Certainly regulators would not accept this proposition because regulation often involves an eclectic mix of performance standards, design standards, and other incentives that might delay the accomplishment of pure and complete “ecological sustainability.” And yet no one would deny that these measures are somehow unconstitutional because they are not sufficiently strong command-and-control regulation. The unlimited scope of the authors’ nascent principle is a significant problem for its own sustainability.

But more importantly, the Constitution could still exist in a world ravaged by climate change. And that is the key distinction between the principle of ecological sustainability and the other so-far-recognized unwritten principles of constitutional law. The other principles are essential to the workings of the Constitution as such—and I mean this in the most strictly construed manner possible. The Constitution could not exist in any meaningful way without these principles, such that they are “vital” to its operation. Federalism gives life to the textual division of powers. Respect for minorities supports federalism. The Rule of Law is fundamental to any constitutional system. Ecological sustainability is an admirable goal to be achieved by legislatures, but it is not related to the fundamental architecture of the Constitution, such that the Constitution (not society more generally) could continue to work without it. In fact, situations of climate emergency might be the most apt circumstances for the Constitution to work its magic.

***

I want to close by outlining some of the pernicious legal and practical effects of the sort of argument advanced by Collins and Sossin. On the legal front, the correlation that the authors draw between “ecological sustainability” and the “living tree” doctrine continues to prop up this dying metaphor as a doctrine of constitutional law. Take the authors’ footnote 70, which outlines this tenuous connection in the context of the Quebec Secession Reference;

Note the recurrence of biological language in this passage (“symbiosis,” “lifeblood,” “living tree”). This language arguably reflects an implicit understanding that all our human structures depend on our biological survival. In this sense there is no principle more fundamental than that of a healthy environment.

This footnote, more than any other argument I’ve seen, illustrates at least one problem with the living tree mode of thinking. Not only is that mode completely inconsistent with the overall perspective in the Persons Case, in this context, it allows enterprising scholars to draw connections and make arguments that are based primarily on the status of sustainability as an ideal policy goal. But that is not the concern of the Constitution, properly interpreted. The living tree is a constitutional aberration, not a constitutional doctrine.

And courts have been increasingly concerned with preventing judges—let alone scholars—from pouring their preferred policy outcomes into the Constitution. I cited Justice Stratas’ comments in Hillier, above. But consider also his opinions in Williams and Cheema, where the same principle was used to the same effect in the context of statutory interpretation. We always have to be on guard for the imposition of one’s personal policy preferences into the law, when those policy preferences do not represent the duly-enacted law of the responsible legislature. How would the people who believe in environmental sustainability like it if those on the opposite side of the spectrum sought to impose a principle of “resource development” in the Constitution, tying it to tenuous constitutional signals like the fact that the federal government has the power under s.91(2) to regulate trade and commerce? The question needs no answer.

Practically, it continues to be my view that there are certain things that are best addressed and constitutionally assigned to legislatures—not courts. Courts are not designed to vindicate the policy goals of the moment. And, for those sympathetic to the idea that environmental sustainability is a fundamental value of Canadian society, it would seem odd to suggest that courts in the adversarial system should be the ones to vindicate that value. Instead, wide study and a nuanced regulatory response seem to be the best options from a practical perspective. And yet the blunt force of an unwritten constitutional principle—that remains undefined, unclear, and unhelpful—emerges as the regulatory response in Collins and Sossin’s article.

Clearly, the environmental crisis needs a better answer.

“Clear Enough”

Some thoughts on statutory interpretation.

As I finish my graduate studies at  Chicago, it struck me that a major theme of legal design is the degree of perfection (if any) we should expect from legal rules. Drafted legal rules—whether by the legislature or judiciary—will always be over and underbroad, because rules of general application cannot foresee every idiosyncratic individual application. In such a case, the extent to which a perfect rule can be created is dependent on the extent to which we balance the error rate of application with the ease of administrability of a straightforward rule. Here, we will never come to a perfect balance, but we can try to come to something that is defensible and workable.

The same sort of consideration applies in the field of statutory interpretation. The most important issue in statutory interpretation is the clarity exercise—how clear is clear enough? Finding that a statutory text is clear on its face leads to a number of important consequences. For one, the Supreme Court has said that where text is “precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process” as opposed to purpose (Canada Trustco, at para 10). Additionally, the use of Charter values in statutory interpretation to gap-fill only arises where there is ambiguity in the ordinary textual meaning (BellExpressVu, at para 28). And, as Gib Van Ert points out, the Federal Court of Appeal seems to be adopting a similar rule in the context of international law.

Some may object at the outset to a consideration of “clarity” as a means of discerning legislative intent on a particular subject. This line of opposition is deeply rooted in the idea of legal realism, with its skepticism of judicial modes of reasoning and the rejection of abstract legal thought as a means to come to clear answers on the law. Representative works in this regard include John Willis’ “Statutory Interpretation in a Nutshell,” where he argues that, in modern legislation which uses wide language (often to delegate authority to others), literal interpretation does no good, essentially because the language is broad and unclear. And he notes that even if interpretation could be  clear or plain on its face, there are differences between judges as to what “plain” constitutes (see 10 and 11). Additionally, Karl Llewellyn’s classic article on the “dueling canons of interpretation” sheds doubt on the use of the canons of statutory interpretation to come to any clear meaning that is not inspired by motivated reasoning. Underlying each of these important critiques is a belief in the relativism and contingency of language. Clarity, on this account, is probably a fool’s errand, in part because ascribing an intent to the legislature is difficult with open-textured language, and in part because language itself is inherently unclear. If this is true, it will be the rare case indeed where a court should be convinced that a text is clear.

While this might sound good to a lawyer’s ear—especially a lawyer that is paid money to exploit ambiguities—it does not comport with the way we use language in the majority of cases. And this is where the example of crafting legal rules comes into handy. One might wish to craft a legal rule to cover all of the interstitial, idiosyncratic applications—ones that are weird or abnormal. But then we create a rule that might work well in the individual case, and not in the general run of cases. Instead, we should craft legal rules based on the 98% of cases, not the 2%: see Richard Epstein’s Simple Rules for a Complex World on this score. In the realm of statutory interpretation, this means that we should start with the going-in, commonsense presumption that language is generally clear in the majority of circumstances, after a bit of listening and synthesis. People transact in the English language everyday with no major kerfluffles, and even conduct complex business and legal dealings without requiring a court to opine on the language they are using. This underlying mass of cases never makes it to court precisely because English works. The problem with statutory interpretation cases, then, is the major selection effect they present. The cases that make it to court, where the rules are developed, are the cases that are most bizarre or that raise the most technical questions. Those are not the cases on which we should base rules of general application. Instead, the rule should simply be that English works in most circumstances, as evidenced by the fact that each of us can generally communicate—with only small hiccups—in the day-to-day world.

If that is the rule adopted, and if legal language is really no different in kind (only in degree of specificity and technicality), then a court should not be exacting in its determination of the clarity of a statutory provision. That is, if language generally works on first impression, then there is no need for a court to adopt a presumption that it doesn’t work, and hence that something greater than “clear enough” is required to definitively elucidate the meaning of a text. We should merely assume that language probably works, that legislatures know language, and that courts have the tools to discern that language. While we should not assume that language is perfect, we should at least assume that it is workable in an ordinary meaning sense.

This approach also has the benefit of commonsense. Perfection is not of this world.  The legal realists put way too high a standard on the clarity of language, to something approaching perfect linguistic clarity rather than semantic workability. We should not craft legal rules around the fact that, in some far-off circumstances, we can imagine language not working.

What does this mean in operation? The American debate over Chevron deference supplies a good example. Chevron holds that where Congress has spoken to the precise question at issue, courts should not afford deference to an agency’s interpretation of law. This is Chevron Step One. If Congress has not spoken clearly, the court moves to Chevron Step Two, where it will defer to the interpretation and uphold it if it constitutes a reasonable interpretation of law. In a recent case, Justice Gorsuch concliuded at Chevron Step One that the text was “clear enough,” so that deference should not be afforded. The clear enough formulation is reminiscent of Justice Kavanaugh’s article, where he explains the various divisions among judges about clarity:

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Kavanaugh’s approach is probably closer to the right one, if we accept the general proposition that language will be workable in the majority of cases. If there is no reason to doubt language, then clarity will be easier to come by. It is only if we go in assuming the case of unworkability that clarity becomes a fool’s errand. But from a perspective of legal design, this is not desirable.

Law has a reputation for being a highly technical field, with a laser focus on commas, semicolons, and correcting the passive voice. But at the level of designing legal rules, including rules governing language, the best we can hope for is workability, not technical precision. This is because designing rules involves tradeoffs between incentives, administrability, and fit. And because humans are not perfect, we cannot design rules at this level of abstraction that are perfect. As a result, in the language context, the best we can and should do is workability in the general run of cases.

Two-Headed Judges

By Peter McCormick

If several judges on the Supreme Court of Canada suddenly sprouted two heads in their annual official photo, we would certainly take notice and would be looking for an explanation. But something similar has actually taken place in Supreme Court decisions without attracting either focused attention or a search for the reason why. More specifically – a significant number of Supreme Court decisions now routinely attribute judgments or minority reasons not to a single judge but to a pair (more rarely a trio) of judges. I leave aside for the moment the perhaps-not-unrelated phenomenon of the hydra-headed “By the Court” judgments,[1] which have been around for longer but are rather less frequent; my focus here is on the more numerous examples of this narrower form of co-authorship.

The practice is frequent enough and important enough to deserve attention.  Co-authored judgments are a recent development – the earliest significant example was R v Sparrow, [1990] 1 SCR 1075.[2] It rose beyond the sporadic only in the closing years of the Lamer Court, becoming more frequent and more routine (multiple examples every year) for the McLachlin Court.  To the Lamer Court’s 26 examples we can now add the 127 of the McLachlin Court and the 6 of the Wagner Court to date. Co-authorship involves minority reasons as well, with 46 examples for the Lamer Court, 72 for the McLachlin Court, and 11 for the Wagner Court. The total count is therefore 159 judgments and 129 sets of minority reasons in 30 years, for a Court that delivers about 60 reserved decisions a year. The practice only started in the late 1990s, but co-authorship has now become an ongoing feature of how the Supreme Court handles its business.

It might be suggested that perhaps the Court does this only for its more routine and less important decisions (although the count above already excludes the “from the bench” decisions that continue to make up about one-sixth of the caseload even after 1999 amendments limited appeals by right).  As I have elsewhere demonstrated at some length,[3] this “minor cases” reservation cannot be sustained.  Co-authorships are used proportionately most often for constitutional cases (Charter, federalism and aboriginal cases alike) and public law cases, most often for cases that have drawn larger numbers of interveners, and most often for cases with higher subsequent citation frequencies.  None of this says “routine” or “unimportant”.

Let me expand on this criterion of citation frequency.  Several different factors bear on how often a case is cited by the Court in later decisions, but citation counts remain a useful indicator of the ongoing impact of a decision.  More to the point, they provide a measure of how a specific judge’s influence endures beyond their own service on the Court, also showing the specific areas of law within which that persisting influence is the most important.  These are useful indicators indeed for assessing a judicial career.  It is therefore striking that the four most frequently cited decisions of the McLachlin Court (measured in “times cited per year since delivery” to level the playing field for the more recent decisions) are co-authored decisions; the four cases are Dunsmuir v New Brunswick, 2008 SCC 9, Housen v Nikolaisen, 2002 SCC 33, Bell ExpressVu v Rex, 2002 SCC 42, and R v Grant 2009 SCC 32.  Three further cases (R v Jordan, 2016 SCC 27, Canadian Western Bank v Alberta, 2007 SCC 22, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12) join them in the McLachlin Court “top ten.”

The blog of the Osgoode Hall law school TheCourt recently reinforced this point from another angle.  In a “where are they now?” post about the ten most recently retired Supreme Court justices, they reminded us of each judge’s most frequently cited decision.  For full half of them, including McLachlin herself, that involved a co-authored judgment.  The practice of co-authorship is not at the margins; it is right at the center.

These two-headed decisions clearly matter; how are we to account for their emergence? There are several possible reasons, none of which provides a completely satisfactory answer.

One explanation might be an unusually close partnership between judges who agree extensively on a range of issues, such that close collaboration flows naturally from this recurring congruence of views. This description clearly captures Cory and Iacobucci, who effectively invented the practice in the late 1990s. During their shared service on the Court, they posted the highest level of two-judge agreement of any pairing of judges; it is reasonable to see co-authorship as growing from this fertile soil of extensive agreement. But this explanation does not work for the complex network that has emerged more recently – on the McLachlin Court, every single justice was involved in some degree of co-authorship, most with several different partners.

A slightly more systemic answer might couch it in terms of alliances on a court that tends to fragment along predictable lines, with co-authorship reinforcing the solidarity of both “in-group” and “out-group” in the face of its chronic adversaries. But this explanation does not work either, simply because the network has been so extensive – there were no fewer than 45 different combinations of two or three judges who produced co-authored judgments on the McLachlin Court (slightly more if we extend the count to minority reasons). This is “bloc-eroding” behavior rather than “bloc-reinforcing” behavior.

A third explanation might be that it salvages a strong majority decision from multiple possible defections to an emerging separate concurrence.  In a private conversation some years ago, a former justice of the Supreme Court explained his own participation in at least some co-authorships in precisely these terms. This would make co-authorship part of the reason for McLachlin’s success in sharply reducing the frequency of separate concurrence compared with the preceding Lamer Court. This is perhaps mildly problematic given that such compromise can involve less a genuine meeting of minds than a degree of calculated ambiguity on central points of disagreement and a careful avoidance of problematic subsidiary issues; at least co-authorship does the service of highlighting this possibility.

A fourth explanation might be that it has a socializing function, with co-authorship linking established members of the Court with more recently appointed colleagues. Even for experienced judges elevated from provincial courts of appeal, the transition to the Supreme Court can be daunting.  However, such a disparity of experience between a pair of co-authors is much too infrequent to make this a pervasive explanation, although it may sometimes be a factor.

A fifth explanation might be that it sometimes represents an ambitious attempt to solve very large and deep-rooted problems in the Court’s jurisprudence.  The obvious example is Dunsmuir, with its ambitious recasting of the standards of review for administrative tribunals.  Double Aspect, in cooperation with the Administrative Law Matters blog, published an extended multi-part discussion of the case on its tenth anniversary last year.  Not only the most frequently cited decision of the McLachlin Court, it is also the most widely criticized; this and other blogs continually share expectations (which are just as continually frustrated) that some current case before the Court will provide the opportunity to revisit and adjust the Dunsmuir precedent, but this makes the point about how ambitious the undertaking was.

The search for a “why” is complicated by the fact that we do not even know the “when” of the formation of the writing partnership. Does it occur spontaneously during the post-hearing judicial conference, with the initial assignment of the writing of majority reasons? Nothing in the descriptions of this process either specifically mentions or specifically excludes the possibility of a joint assignment, and in a recent interview McLachlin suggested that at least some co-authorships emerge this way. Or does it occur after such an assignment, during the “circulate and revise” process and possibly under some prodding from the Chief Justice, like the salvage efforts described above? Clearly, this sometimes happens as well, but nothing in the physical appearance of the decision in the Supreme Court Reports gives any real hint as to which happens how often.

The benefit of the co-authorship practice is clear: it results in a more genuinely and visibly collegial court that presents an institutional face rather than an individualist one, that emphasizes pervasive agreement rather than division, that shows us a Court of persuasion and cooperation rather than polarization. As practised by the McLachlin Court, it eliminated the predictable blocks of the Lamer Court. Recall the “gang of five” who dominated the Court’s most important decisions for much of the 1990s, with the other judges (most notably L’Heureux-Dube and McLachlin) obliged to do much of their own writing in minority reasons.  No such persisting fragmentation has been seen for the past twenty years. There was more to the McLachlin Court’s unity and collegiality than co-authorship, but co-authorship was definitely part of it.

However, such benefits are always purchased at a price. For one thing, it is harder for lower courts or academics to unravel the nuances. We can sometimes clear up some ambiguities in the wording of a judgment by comparing the immediate decision with earlier reasons written by the same judge, or we can track the evolution of a judge’s thinking (with hints of where it might go next) by seeing how it is cited and applied in the same judge’s later reasons. This becomes more difficult if we cannot be sure which of a pair of judges might have written the particular passage or might be making the later citation. By the same token, the device depersonalizes the decision and diffuses the assignment of criticism or blame.

For another, it undercuts the venerable common law tradition of accountability, of the clear responsibility of the specific individual judge to which those reasons are attributed.  This is already attenuated by the “circulate and revise” procedures of the Supreme Court, such that a collegial dimension already pervades the final version – but even if we are looking at “lead authorship” rather than genuine “solo authorship”, the accountability dimension is real, and traditionally it has been important.[4]  It is clearly eroded by a pervasive co-authorship practice focused on the Court’s more important (in terms of subject matter), more controversial (in terms of interveners), and more influential (in terms of citation counts) decisions. 

Where is co-authorship taking us, and should we welcome the journey? The next time a two-headed judge raises its head in the Supreme Court Reports, these are the questions to ponder. We can debate whether it is taking us to a better place, but it is certainly taking us to a different place, all the more intriguing because no comparable court seems to be embarking on anything similar.


[1] Shameless plug: to know more about “By the Court’ judgments, keep an eye out for a fall 2019 UBC new release entitled By the Court: Anonymous Judgments at the Supreme Court of Canada.

[2] Or, one might suggest, Irwin Toy in 1989, although I have been assured that this was actually a “By the Court” judgment that “went sideways” at the last moment rather than an intentional three-judge-shared set of reasons.

[3] Peter McCormick, “Duets, Not Solos: The McLachlin Court’s Co-Authorship Legacy” Dalhousie Law Journal, Vol. 41 (2018), 479.

[4] Mitchel Lasser makes this point very forcefully in his excellent Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy (OUP, 2004)

Judges are Subject to Law, Too

Last summer, I wrote a blog post about a concerning case out of the Federal Court, Girouard v CJC. The gist of the case was the claim by the Canadian Judicial Council (CJC) that their reports, recommendations, and decisions in the course of the investigation of a judge were not subject to judicial review under the Federal Courts Act.

For the reasons I outlined in my blog post, this argument was both surprising and unfortunate:

I see this case as an extreme example of the modern trend of administrative law: towards more regulation and more administrative decision-makers that have court-imposed “unlimited” powers (see West Fraser, at para 11). Once we accept even one instance of such a decision-maker, vested by statute, we have to conclude that no court can speak ill of that “unlimited” decision-maker. Obviously this has profound effect on the Rule of Law, individual liberties, and due process. Take this case–dissenting members of the CJC were concerned that certain anglophone members of the CJC could not evaluate the entire record, which was in French. This implicates the fairness of the process for Justice Girouard. A purpose of judicial review is to ensure this basic fairness, but if we make administrative decision-makers beyond reproach, we sit them alongside the basic law of the land–the Constitution. And of course, legislative bodies acting alone cannot establish new constitutional provisions.

And, because of finer legal points, I thought that the CJC’s case was weak. For example, though the membership of the CJC is made up of s.96 judges, which would counsel a restrained approach to judicial review, the premise of the CJC is as a “statutory investigatory institution, vested with powers only so far as the statute allows.” The CJC is, like all administrative decision-makers, rooted in statute. And as a result, the membership of the CJC does not bear on the question of whether it is subject to review.

Luckily, the Federal Court of Appeal recently affirmed the Federal Court’s holding that the CJC is subject to judicial review. This is the right result, and one that prioritizes the rule of law—the supervision of all state actors, regardless of their status, under higher law—over administrative fiat, even fiat issued by judges.

It is worthwhile to explore the Federal Court of Appeal’s reasoning to see why the court got the case right. Under the Federal Courts Act, the definition of a federal board was recently confirmed by the Supreme Court in Mikisew Cree—a judgment to which Chief Justice Wagner, who is the head of the CJC, signed his name. Section 2 of the statute defines a reviewable “federal, board, commission or other tribunal” as one that exercises statutory powers or powers under an order made pursuant to Crown prerogative (Mikisew Cree, at para 18). Here, we see the idea that the root of agencies subject to judicial review in the Federal Courts is fundamentally statutory in character. On this front, the Court reviewed its test in Anisman, which provides that a court, to determine whether a body falls within the Federal Courts Act, must consider the source of the powers exercised and the nature of those powers (see para 37).

Consider first the source of power. Here, the Court—as I did in my blog post last summer—drew a sensible distinction between the CJC as a statutory institution and its membership. The Court noted that without statutory nourishment, the CJC would not exist—it exercises no inherent powers simply because it is made up of s.96 judges (see paras 41). Moreover, the nature of the powers exercised by the CJC are not judicial, adjudicative powers per se. Rather, the CJC exercises powers that are fundamentally administrative in nature; those powers are inquisitorial, investigative, and not powers exercised by s.96 judges as s.96 judges (see paras 77-78). Since both the source and nature of the powers exercised by the CJC are rooted and defined by statute, and are typical administrative powers, it follows that they can easily fit the definition of a federal board under the Federal Courts Act. On this front, it is important to note that the CJC could have been expressly excluded from this definition by Parliament, but it was not.

There was another argument raised by counsel for the CJC based on 63(4) of the Judges Act, which deems the Board or an inquiry panel a “superior court” (see para 81). It followed, according to counsel, that this deeming clause must be read in its ordinary meaning, such that it was at least colourable that the Board should have “all the attributes” of superior court jurisdiction; and therefore, should be excluded from the definition of a statutory body under the Federal Courts Act.

Notwithstanding that this argument runs up against the stubborn fact that the CJC exists only because of a statute saying so, the Court rejected this argument on other grounds. The text of the so-called deeming provision, notably, did not denote that the CJC’s jurisdiction should expand to the full powers of a superior court, beyond the procedural powers required to manage inquiries. Notably, if Parliament wanted the CJC to be a court of superior jurisdiction, it could create it as such under s.101 of the Constitution Act, 1867, under which the Federal Court was created. But it did not do so. Absent a clearer statement, the CJC should not be presumed to possess full superior court powers, just as the Canada Transport Agency, with a similar deeming provision, is not presumed to carry those powers.

The final part of the judgment, which should be particularly commended, is the Court’s focus on the implications of the CJC’s arguments for the rule of law. Shielding the CJC from review would amount to a situation where an administrative decision-maker—simply because of some of its membership, and even though it exercises public functions—can evade the strictures of public law. In a government of laws, the possibility for this should be foreclosed. This is true no matter who makes up the overall administrative body.

Overall, there are two important points to this case to which I should draw attention. First, and as I have said time and time again, the administrative state exists not because of any constitutional mandate or legal principle other than statutory enactment. Judges attempting to insulate themselves from review could be successful if the administrative state existed as a matter of constitutional law. Indeed, there are some that argue that there are constitutional foundations to the administrative state. This sort of argument, in my view and with all due respect, is clearly wrong. And the Federal Court of Appeal seems to agree. Even when we are talking about judges, the fact that the CJC’s existence is because of statute is the definitive answer to any claim that it cannot be subject to the rule of law. Put differently, imagine the incentive effects of an opposite conclusion. Parliament could staff administrative agencies with judges, making them evasive of judicial review, and simply state that the Constitution protects the body of which they are members as part of the “constitutional administrative state.” No one should accept this line of reasoning.

Second, the fact that the court rooted its consideration in the rule of law is important. The Court could have simply analyzed the applicable law, which clearly ran up against the CJC’s claims. But it went further at para 103 by rooting the conclusion in the idea that all public officials—no matter their own august judicial status—should be subject to the dictates of law. In today’s day and age, this is a reminder that we all need.

 

I Said Don’t Do It

The federal government is wrong to involve Québec in the process of appointing the next Supreme Court judge

In 2014, after the Supreme Court invalidated the appointment of Justice Nadon to one of its seats reserved for Québec judges or lawyers, the federal government got the Québec government to propose a shortlist of candidates for the vacant-again position. This process resulted in the appointment of Justice Gascon to the Supreme Court. The federal government meant the outsourcing of the shortlist to be a one-off; the Québec government was hoping that it would create a precedent. Québec’s wishes were ignored when the next appointment to one its seats (that of Justice Côté) was made.

But now Justice Gascon is now retiring ― sadly, much before his time ― and a version of the process that produced his appointment is being brought back. As the Canadian Press reports,

[t]he federal and Quebec governments have reached what the province is calling a historic deal that ensures it will play an active role in the process of selecting the next Supreme Court of Canada justice from Quebec.

An advisory committee similar to those used for previous appointments made by the current federal government submit will then

submit a shortlist of candidates to the federal and provincial justice ministers. … [T]he premier of Quebec will also provide an opinion and forward a recommendation to the prime minister, who will make the final decision weighing the recommendation of the federal justice minister and Quebec’s input.

The provincial government’s role is, if I understand correctly, not as important as in the 2014 process, since it doesn’t extend to unilaterally determining the Prime Minister’s range of choices. But it is still significant. The province seems delighted. The Canadian Press writes that the provincial justice minister “called the deal precedent-setting” ― yes, again ― “saying it would allow the province to take a ‘direct and significant part’ in the judicial appointment”.

The rest of us should not be happy. In fact, we should be rather angry. I criticized the 2014 process at some length here, and I believe that that criticism is still applicable, albeit in a slightly watered-down form, to the new process. It is common enough for members of the Canadian chattering classes to claim that the federal government’s power of appointing Supreme Court judges without taking provincial preferences into account is a defect in our federal system. But this view is mistaken. Here’s part what I said in 2014 (with references updates):

[H]ow much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 and that in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election? 

The latest developments sure give us some food for thought on this last question. The Parti Québécois, it is true, not only remains out of government, but is currently the fourth-largest party in Québec’s legislature. Yet its idea of purging the province’s public service of overtly religious persons ― especially if they are overtly religious in a non-Catholic way ― is alive, kicking, and in the process of being enacted into law, as Bill 21, by the Coalition Avenir Québec’s government. This is the same government, of course, that its federal counterpart wants to involve in the appointment of the judges who may yet be called upon to pronounce on Bill 21’s consistency with the constitution.

Back in the sunny days of 2015, when illusions about the current federal government being formed by the “Charter party” were still possible, the Prime Minister wrote the following to his Attorney-General:

[Y]our overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

The “Mandate Letter” in which these wonderful commitments are set out is still on the Prime Minister’s website, although its original addressee was eventualy fired for acting like an actual Law Officer of the Crown and not a political weather-wane. But the same Prime Minister’s government is now going out of its way to hand over part of its constitutional responsibility for appointing the judges of Canada’s highest court to a provincial government bent not only on trampling on fundamental freedoms, but also on insulating its actions from review for compliance with the Charter. I should have thought that this is an odd way of respecting the Constitution of Canada, of ensuring that the rights of Canadians are protected, and of demonstrating the greatest possible commitment to respecting the Charter of Rights and Freedoms. But what do I know?

Well, I know this. Five years ago wrote that

[t]he power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. … [T]he constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Don’t do it. Just don’t.