Nothing Doing

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

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

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


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

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

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

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

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

Admittedly, some people might disagree.

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

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

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

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

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

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

Legal skills/qualifications are irrelevant anyway!

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

You’re undermining confidence in the Supreme Court!

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

You’re racist/sexist!

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


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

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

A Little Representation

Justice O’Bonsawin is not qualified to be a Supreme Court judge

Last week, the Canadian government announced the appointment of Justice Michelle O’Bonsawin of the Ontario Superior Court of Justice to the Supreme Court. As I had done after the appointment of Justice Rowe, I have read the questionnaire in which she explains her views on her career, diversity, and the role of the Supreme Court and its judges. It brings to mind the notorious argument Roman Hruska, a US Senator from Nebraska, made on behalf of the nomination of G. Harrold Carswell to the US Supreme Court: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.” Justice O’Bonsawin, I am afraid, is also no Cardozo, and no Frankfurter either, for better and for worse.

Nothing in particular qualifies Justice O’Bonsawin for the Supreme Court. She had a seemingly ordinary career as in-house counsel, first at Canada post and then as General Counsel at the Royal Ottawa Health Care Group. I presume she has done good work there ― especially in relation to mental health, with which she seems to have been much concerned, given the nature of her job ― but it is not the stuff of stardom. She has been a Superior Court judge for five years and claims that she has “developed significant knowledge and expertise in our three areas of work: criminal, family and civil litigation”. So, presumably, does any other Superior Court judge, to say nothing of those on the Court of Appeal. Remarkably, Justice O’Bonsawin lists her PhD, for which she did most of the work while on the bench ― and which she has made inaccessible to the public! ―, among the “most significant cases or matters that [she] dealt with while in legal practice or as a judge”. Perhaps I am blasé, but this strikes me as a bit pathetic as a qualification for the Supreme Court, though of course, as Justice O’Bonsawin notes, getting it done while also having a demanding day job is a testament to her work ethic and commitment.

Justice O’Bonsawin’s answer to the question about her “insight into the variety and diversity of Canadians and their unique perspectives” is perhaps the most interesting one of the whole questionnaire, albeit for what it says about the “diversity” discourse more than about her. Tellingly, Justice O’Bonsawin speaks more about her various identities ― “as a francophone First Nations woman, a parent, a lawyer, a scholar and a judge” ― than about “the variety and diversity of Canadians”. I’m not criticizing Justice O’Bonsawin here. Of course a single person’s experience of “the variety and diversity of” soon-to-be 40 million people is limited. But her answers hold up a mirror to the way that diversity talk is usually more about oneself than it is about the diversity of one’s fellow-citizens. Another characteristic point: back when she was first applying to the bench, Justice O’Bonsawin simply said that she had grown up off-reserve. Now, she speaks of “[t]he colonial separation of my family from my First Nation”. To me this feels rote rather than heartfelt. But again, that’s what the diversity discourse requires.

That said, to her credit, Justice O’Bonsawin isn’t entirely down with the programme. She writes that “[a]s Canadians, we must stop focusing on our differences and embrace diversity in order to move our country forward in a progressive manner”. While this ― like much else in Justice O’Bonsawin’s answers ― is more about the feeling than the meaning, the idea that embrace of diversity is compatible with, and even requires, a little less narcissism of small differences is a pretty good feeling to have.

Sadly, I have little positive to say about Justice O’Bonsawin’s answers about the role of judges and of the Supreme Court. While they are banal, and no more “unbound”, to use the word I’d applied Justice Rowe, than might be expected of a generic judge appointed by the Liberal government, they are remarkably shallow. A very average first-year law student might have written something quite similar, and received a very average grade for the effort. This applies, by the way, to Justice O’Bonsawin’s writing style (and indeed grammar), though as I said about Justice Rowe, one should not be judged too harshly on the prose with which one fills a government form.

The first sentence sets the tone. The soon-to-be Supreme Court judge informs us that “The role of a judge in a constitutional democracy requires them to always apply impartiality, act independently and with integrity, and remain cognizant of the pillars of the Constitution and the Canadian Charter of Rights and Freedoms”. I’m not sure how one “applies impartiality”, or what “the pillars of the constitution and the Canadian Charter” are. I’m also not sure whether Justice O’Bonsawin actually thinks the constitution and the Charter are two different things ― this is by no means the only place in her questionnaire where she uses this sort of phrasing.

Another puzzler, from a bit later on: Justice O’Bonsawin writes that “[t]here is a fine balance between constitutional and legislative powers”. Does she mean constitutional rights (she might, because that’s what she is talking about just before). Or some kind of powers that aren’t about legislation? And another one, from the discussion of the Supreme Court’s relationship with its various “audiences”: “Decisions from the Supreme Court of Canada guide litigants through the legal system. This guidance must assure litigants proceed with legal claims well founded in fact and the law.” How can guidance from on high provide this assurance? Does Justice O’Bonsawin mean that it must help litigants formulate sound claims? That would be a sensible thought, but one can only hope that Justice O’Bonsawin’s opinions will be clearer than this, if indeed they are to guide anyone.

Let me now discuss some substantive issues that arise from Justice O’Bonsawin’s answers. First, her thoughts on the constitution. She explains that “[a] judge must continuously interpret the Constitution as a living and breathing document that is reflective of the beliefs and aspirations of generations since its original implementation.” I don’t know what a “breathing document is” ― by my lights, a living one is ghoulish enough, but that’s a minority view. But even apart from that, I’m not sure, about this “generations since” business. What if the “beliefs and aspirations” of the generations that have succeeded one another since 1982, never mind 1867, are not in agreement? Justice O’Bonsawin adds that “[t]he Constitution should not be used as an impediment to individual rights”. Does that mean that when the constitution doesn’t protect a right it ought to be ignored and the right be given “benediction”, Justice Abella-style, by the courts? Conversely, when the “generations since” the constitution’s enactment aspire to impede individual rights ― as they do on a pretty regular basis, which is precisely why rights are protected by constitutions placed out of majoritarian reach ― should judges give way to their views?

The issue of the judge’s relationship with public opinion arises more broadly throughout Justice O’Bonsawin’s answers ― and she tries very hard to have it both ways. On the one hand, “a judge must remain independent from influence or pressure”. On the other ― in the very next paragraph ―, “[a] recurring and oft heard criticism of the judiciary is that judges are out of touch. In an ever-changing climate, a judge must adapt to respond to these changes.” We are not told what changes exactly judges must adapt to, but telling the judges to evolve with the zeitgeist is not so easy to reconcile with their remaining independent from external influence. On the one hand, Supreme Court judges “do not react strategically to external political pressures”. On the other ― in the very next sentence ―, the reason for not reacting strategically is that “[t]his maintains the legitimacy of the Supreme Court of Canada’s standing and its decisions”. Is this not a strategic consideration? The worst of it is that I am pretty sure Justice O’Bonswain isn’t being sneaky ― I really don’t think she realises what a maze of self-contradiction her answers are.

One more beat on the issue of external influences. Justice O’Bonsawin warns that “[a] constitutional democracy will face threats, not only from within its borders, but also from abroad which is further facilitated with social media.” This would have been music to the government’s ears, what with its worries about foreign interference, and bodes ill for the prospects of Justice O’Bonsawin standing up its ongoing attempts to censor online communications. Justice O’Bonsawin adds that “[b]eliefs in other areas of the world should not influence or affect how our Constitution is interpreted and applied to all Canadians, absent the pressure of external forces”. Again I don’t know what to make of the last bit ― should beliefs in other parts of the world influence how the constitution is interpreted if external forces are exerted? Let’s just pretend it’s not there. The idea that the courts should pay little or no attention to “beliefs in other areas of the world” is in line with recent Supreme Court decisions such as  Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32, though not with the open-minded self-image that is dear to many Canadian lawyers. But then, Justice O’Bonsawin explains that Canada “must strive to be a beacon for others as to how a constitutional democracy should be protected and fairly applied to all”. So Canadian judges ought not to be influenced by foreign thought, but those foreigners will be oh-so-lucky to learn from us. This too is not new. The majority in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3 took just this approach. I didn’t like it then, and I don’t like now.

Lastly, let me return to the issue of rights. What does Justice O’Bonsawin have in mind? She specifically mentions equality, which she explains “is not treating everyone the same but treating everyone with fairness and equity taking their differences into account”. As it happens, I recently urged students to drop the word “fairness” from their vocabulary, because it means nothing in particular and tends either to hide a lack of thought given to the subject or to paper over disagreement. Justice O’Bonsawin, who is a prolific user of the f-word, should do the same.  Alongside equality, she also mentions language rights, specifically s 16 of the Charter. And that’s it. Freedom of religion? Freedom of expression? Presumption of innocence? Not that one should necessarily expect a would-be Supreme Court judge to name-check every Charter right in their questionnaire, but the exclusive focus on equality is sadly characteristic of a certain kind of thinking about the law that strikes me as quite impoverished.

There would be still more to say, but none of it more positive than what I have already said. Let me quote just one more passage:

Charter values, such as substantive equality, dignity, fairness and human rights, are beacons for a Supreme Court of Canada Justice’s reasoning. Respecting these values support the public interest in ensuring all Canadians are treated fairly and equally for all rights protected and shared by all. They ensure national equality before the law, which is a core value of our judicial system.

Again, some of it plain silly ― Charter values include human rights! Some, incomprehensible ― national equality before the law? Is that equality before the law with Canadian characteristics? None of it is interesting or thoughtful.

I repeat my verdict: Justice O’Bonsawin is a very average lawyer who is out of her depth when it comes to the big-picture questions that a Supreme Court judge is forced ― by no means in every case, but with some regularity ― to turn his or her mind to. I’m sure she is a good and well-meaning person; she may, for all I know, have been a competent trial judge; but neither her career nor her thinking come close to qualifying her for the Supreme Court. Her appointment is transparently political, and it does a disservice to the Court that will have to welcome her, and to the Rule of Law in Canada.

Mischief and the Chief

The Chief Justice has thoughts on the Supreme Court and the political climate

Yesterday, Radio-Canada/CBC ran an article by Daniel Leblanc that discussed Chief Justice Richard Wagner’s concerns about the standing of the Supreme Court and the judiciary more broadly, and his ideas for fostering public acceptance of and confidence in their work. This made quite a bit of noise on Twitter, and I jumped in too. A reader has encouraged me to turn those thoughts into a post, and I thought that would indeed be a good idea, so here goes.

Mr. Leblanc’s article starts with a discussion of the leak of a draft opinion in Dobbs v Jackson Women’s Health Organization, the US Supreme Court’s pending abortion case. This prompts the Chief Justice to say that “[i]t takes years and years to get people to trust institutions, and it takes a single event to destroy that trust”. The Chief Justice is worried. According to Mr. Leblanc, he “said recent global political events — like the Jan. 6, 2021 insurrection attempt in Washington, D.C. — should serve as a warning to Canadians” that our institutions, notably judicial independence, are at risk. The Chief Justice is also concerned that people are misinformed, notably in that they import fragmentary knowledge of American law into their thinking about Canada’s legal system.

To gain public trust, the Chief Justice has embarked the Supreme Court on a campaign to become more accessible. This includes a social media presence, publishing “plain English” versions of opinions, and sittings outside Ottawa. Mr. Leblanc describes the Chief Justice as saying “he knows he’s taking a risk by communicating more openly and frequently with the public and by taking the court outside of Ottawa. He said he still believes doing nothing would be riskier.”

Mr. Leblanc also turns to other people, notably Vanessa MacDonnell, to second the Chief Justice’s concerns. According to him, Professor MacDonnell “said Conservatives in the United Kingdom have criticized judges’ power to interpret the Human Rights Act, adding it’s part of a pattern of ‘political attacks’ against the courts in that country”. Attacks on judicial independence in Hungary and Poland are mentioned too, presumably at Professor MacDonnell’s behest, though this isn’t quite clear. Moreover, “Canadian institutions aren’t immune from attack either, MacDonnell said. The controversy over Conservative Party leadership candidate Pierre Poilievre’s vow to fire the Bank of Canada governor has dominated that leadership race”. Meanwhile, Senator Claude Carignan argues that “the Supreme Court is right to want to establish, through a certain communication plan, that there are differences with” its American counter part, and that it is “not there to represent a movement of right or left, or of red or blue, but … to judge the merits of the judgment according to current laws”.

So, some thoughts. To begin with, the Chief Justice deserves praise for thinking about making his court’s role and jurisprudence more accessible. Courts wield public power, and people should be able to know what they do with it. Indeed, I don’t know that anyone else thinks differently. The Chief Justice really needn’t pose as doing something “stunning and brave” with his transparency efforts; it looks a bit pathetic. But that doesn’t mean that the efforts themselves are to be denigrated.

That said, one shouldn’t expect too much from them. To the extent that people don’t understand what the Supreme Court is getting up to, I really think it’s more because of a lack of interest or effort than any failures on the Court’s part. The major cases are reported on, tolerably well, by the media. There is CanLII Connects, which hosts summaries and comments on all sorts of cases, written by students, professors, and practitioners. There are blogs like this one. There are podcasts. There are lots of people out there, in other words, who work hard to explain what Canadian courts, and especially the Supreme Court, are doing. Don’t get me wrong: I’m not saying the Supreme Court shouldn’t bother. It might do some good in this regard. But, again, when people are uninformed or misinformed ― and many are ― I don’t think it’s because of a lack of accessible information. In 2022, ignorance is usually wilful.

And I will criticize the Chief Justice for one part of his outreach programme: the roadshows. I fail to see how hearings outside Ottawa are anything other than taxpayer-funded junkets. Most people haven’t the time, let alone interest, to sit through arguments, be it in Ottawa or elsewhere. I’ve sat in on a couple of Québec Court of Appeal cases, some years ago, but I was a grad student would have done anything if that meant not writing my thesis ― not the Chief Justice’s target audience, I suspect. For more productively employed people, having a hearing in their city once in a blue moon is just not going to do anything. And of course anyone already can conveniently watch the Supreme Court on CPAC. This, by the way, is really a point on which the Supreme Court of Canada is better than that of the United States.

Speaking of those Americans, though, if one is concerned about the excessive influence of American thinking and American culture on Canada’s legal system, as the Chief Justice apparently is, one probably shouldn’t invoke American news as justifications for doing anything in Canada, as the Chief Justice definitely does. Again, some of his initiatives at least are worthwhile, but they are so on their Canadian merits, not because of anything that has occurred south of the border. Of course, the Chief Justice isn’t the only one trying to have this both ways. The Prime Minister, for instance, seems pretty keen to capitalize on American news to push ever more gun restrictions ― which he successfully deployed as a wedge issue in the last election campaign. In other words, the importation of American concerns of questionable relevance is something Canadians of all sorts, and not just the dark forces supposedly gnawing away at our institutions’ foundations, do, and Mr. Leblanc would, I think, have done well to note this.

Now, let’s consider these dark forces a bit more. Specifically, I don’t think that the discussion of populist attacks on courts in Mr. Leblanc’s article is all that helpful. I’m no expert on Poland and Hungary, but I take it that some Very Bad Things really have happened there, as part of broader programmes to dismantle institutional checks and balances and constraints on government power. To say that anything of the sort is about to happen in Canada, or could succeed if attempted, strikes me as a stretch. The analogy between the courts and the Bank of Canada doesn’t quite work, since the latter lacks constitutional protections for its independence. But perhaps I am mistaken about this.

What I am pretty sure about, however, is that it is quite wrong to equate the “attacks” on the judiciary in the UK with those in Hungary and Poland. To be sure, there have been some dangerously vile attacks in parts of the media, some years ago. I have written about this here. And it may well be that the government did not defend the courts as strongly as it should have at the time. But so far as government policy, let alone legislation, is concerned, it simply isn’t fair to say that the courts have been “attacked”. There is debate about just what their powers with respect to judicial review should be for instance, and it may well be that some of the proposals in this regard are at odds with the best understanding of the Rule of Law. But nobody is suggesting anything so radical as, say, requiring UK courts to defer to civil servants on questions of law, so I’m not sure that Canadians, in particular, should be too critical about this.

The specific issue example to which Professor MacDonnell refers is even more clearly a nothingburger. It has to do with the interpretation not of the Human Rights Act 1998, but of other legislation, which the Act says “[s]o far as it is possible to do so … must be read and given effect in a way which is compatible with the” European Convention on Human Rights. As readers will know, I happen to favour very robust judicial review of legislation ― more so than what exists under the Canadian Charter of Rights and Freedoms, let alone the UK’s Human Rights Act. But I’m inclined to think that UK courts have gone rather beyond the limits of what is fairly “possible” in exercising their interpretive duty. They certainly have gone further than New Zealand courts applying a similar provision. Whether or not constraining them in this regard is the right thing to do on balance, there is nothing illegitimate or worrying about it.

It is important to remember that, precisely for the reason the Chief Justice is right to work on the Supreme Court’s transparency ― that is, because the court is an institution exercising public power on the citizens’ behalf ― the Court can also be subject to legitimate public criticism. Again, criticism can be overdone; it can be quite wrong. But on the whole it’s probably better for public institutions to be criticized too much than not enough. And the courts’ powers, just like those of other government institutions, can and sometimes should be curtailed. Each proposal should be debated on the merits. Many are wrong-headed, as for instance the calls to use the Charter “notwithstanding clause”. But they are not wrong just by virtue of being directed at the courts.

Meanwhile, Canadians who are concerned about public perceptions of the judiciary should probably worry a bit ― quite a bit ― more about the actions of our own judges, rather than foreign governments, let alone journalists. Sitting judges to some extent ― as when, for instance, they decide to give “constitutional benediction” to made up rights instead of “judg[ing] the merits of the judgment according to current laws”, as Senator Carignan puts it. But even more, as co-blogger Mark Mancini has pointed out, former judges who compromise the perception of their political neutrality and lend their stature and credibility to serve the wishes of governments at home and abroad:

In short, I think that the Supreme Court is trying some useful, if likely not very important things to become a more transparent institution, which is a good thing on the whole. But it is not saving democracy or the Rule of Law in the process. One should certainly be vigilant about threats to the constitution, but one should not dream them up just for the sake of thinking oneself especially courageous or important. One should also be wary of grand transnational narratives, and be mindful of the very real imperfections in one’s own backyard before worrying about everything that’s going on in the world.

Precedent and Respect

When ― if ever ― can lower courts criticise their hierarchical superiors?

When, if ever, should lower-court judges criticize decisions of the higher courts that bind them? Can they do it in their reasons, whether speaking for their court or only for themselves? Judicature has published a short but thoughtful exchange on these questions between Orin Kerr and Michael Dorf. In a nutshell, Professor Kerr argues that such criticism is (almost?) never appropriate in judicial opinions; it belongs in op-eds and scholarly articles. Professor Dorf, by contrast, sees a place for it, if only a limited one. My own instincts are on Professor Dorf’s side.

For Professor Kerr, judicial opinions “receive respect not because they’re wise or well-reasoned. Some opinions are, and some opinions aren’t. Rather, judicial opinions receive respect because they are legally operative documents issued by judges with the power to issue them”. (84) It follows that

When you write a judicial opinion, you should limit yourself to what you have formal authority to decide. You should explain why you voted as you did in the case before you, as every legal opinion does. But judges shouldn’t also use legal opinions to pontificate about other views they have outside of the case and outside their authority. (84)

Since it is not the job of lower court judges to criticize their higher-ups, and since such criticism is legally inoperative, it should be saved for other venues: “Keeping your exercises of formal authority separate from your views of legal questions outside that authority helps maintain the legitimacy of the authority you exercise.” (85)

This is especially so for those views which a judge held prior to or would hold irrespective of his or her judicial office. Perhaps there is a place for judges criticizing “a [binding] precedent … when the judge’s basis for that opinion is a special insight, gained only in a judicial capacity, into how the precedent is working”. (88) But even then, the lower court judge “can draw attention” to the problem “without taking a view on whether” the higher court should reverse itself. (87)

Meanwhile, Professor Dorf’s position is that judicial criticism of binding authority ― not just higher-court precedent but also legislation ― is appropriate in a wider range of circumstances. For him, it is important that “in a well-functioning judicial hierarchy, information flows both ways. Lower court judges have knowledge and views that can and should usefully inform judges on higher courts”. (85) If lower court judges “spot a defect — a rule that misfires or that ought to but does not contain an exception” (86), for example because “a statute or opinion of a higher court [is] be based on a seemingly reasonable premise that proves false in practice” (86) ―, they might try to finesse or work around that rule. But that’s not always possible, and not necessarily appropriate. Short of refusing to follow the law (and perhaps resigning to make the point), their only other option is to criticize it in an opinion applying it.

Professor Dorf agrees that this should not happen very often. Criticism on “moral” grounds should be especially rare. Yet since “law often incorporates moral judgments, there should be room for an occasional statement by lower court judges that the precedent they must apply is wrong and thus should be reconsidered”. (86) And, regardless of the reason for it, criticism can be offered in a statement of reasons; indeed “it is hardly obvious that doing so outside of the context of a concrete case is the least controversial way to do so”. (87)


For what it’s worth, my view is closer to Professor Dorf’s; in some ways, I might go further than him. Let me begin, though, with one point he raises without developing it, and which makes me uneasy.

It is judicial criticism of legislation. As I have argued before, I think courts (including apex courts) should mostly try to avoid giving their opinions on legislation, whether to praise or to criticize it. It is not their constitutional role ― except in a constitutional challenge to the legislation’s validity or application, and even then the courts ought to focus on legal issues. Commentary on legislation is, inevitably, bound up with policy issues that are outside of the courts’ purview, and it is just as inevitably at risk of being recycled by politicians themselves, at the risk of compromising the public’s perception of the courts’ impartiality. I think courts can comment on technical issues with legislation where it fails to provide sufficient guidance to the subject and to the courts themselves. But this is probably a narrower view of permissible criticism than Professor Dorf would allow.

That said, I think that lower-court criticism of higher courts’ jurisprudence is a different matter. Although the courts stand in a hierarchical relationship to one another, they are fundamentally engaged in the same enterprise of saying what the law is. In this exercise, as Justice Jackson famously put it, higher courts “are not final because [they] are infallible, but [they] are infallible only because [they] are final”. They can err, and I don’t think that it is constitutionally objectionable for their colleagues to say so ― provided, of course, that they still respect their subordinate role in the judicial hierarchy and apply binding precedent until it is overturned. (Of course, in the Canadian context, there is an exception even to this principle, set out by the Supreme Court in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. In my view that was a mistake.)

Sure, it’s probably a good idea for judges to be, well, judicious about when to speak out. Their main task is to decide disputes, not to be legal commentators. But I doubt there is really much danger of this happening. Lower-court judges are simply too busy to moonlight as opinionated bloggers. Conversely, though, I might actually be more uneasy with judicial commentary on the state of the law expressed either without reference to the problems it causes in a particular case or with reference to a past decision. I think it is a valuable principle that reasons for judgment ought to speak for themselves.

So when judges consider that the issue is important enough, and that it arises starkly enough in a case before them, I think they can ― and perhaps ought to ― take the opportunity to speak out. And I wouldn’t limit this to either cases of the binding precedent “misfiring”, or being based on a mistaken premise, or even particularly strong moral disagreement. I think that, just as importantly, it can be appropriate for a lower court judge to say that a higher court’s decision is legally wrong ― that it does not fit with other precedents or with the legal landscape as a whole. It is the Supreme Court’s job to sort out these conflicts and contradictions, which are to some degree inevitable in a dynamic legal system. But lower courts can contribute to the law working itself pure by pointing out impurities ― even when it is the higher court that caused them to exist.

Ultimately, I disagree with Professor Kerr’s view of judicial opinions. To repeat, he says that they “receive respect not because they’re wise or well-reasoned”, which they need not be, but “because they are legally operative documents issued by judges with the power to issue them”. I think this confuses respect and authority. A judgment’s binding authority is a product of the law alone. But the respect due to it is indeed a function of its reasoning. A poorly reasoned judgment is still binding on the parties, and its ratio sets a precedent that binds courts below that by which it was rendered. But it doesn’t follow that this judgment is automatically entitled to respect ― that it ought to be regarded as deserving to be part of the law. As a result, it is not improper for a court bound by that judgment to express reservations about it while still applying it: in doing so, the lower court defers to the higher court’s authority, but withholds the respect to which it is not entitled.

That’s my two cents, anyway. Again, the discussion between Professors Kerr and Dorf is worth your time.

Don’t Make Idiots into Martyrs

The Double Aspect view on why an Alberta judge was wrong to order that pandemic deniers promote the expert consensus

This post is co-written with Mark Mancini

In Alberta Health Services v Pawlowski, 2021 ABQB 813, a judge of the Alberta Court of Queen’s Bench sentenced a preacher opposed to anti-pandemic public health measures and his brother to steep fines for contempt of court. The defendants had ostentatiously breached court orders requiring them to comply with various public health requirements, and there is no question that they deserved punishment. But the remarkable thing about Justice Germain’s ruling, and the reason, we suspect, why it made the news, was an additional component of his order. “[W]hen … exercising [their] right of free speech and speaking against AHS Health Orders and AHS health recommendations, in a public gathering or public forum (including electronic social media)” the defendants

must indicate in [their] communications the following:

I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms.

This order manifests a deeply disturbing, not to mention likely unconstitutional, disregard for freedom of expression. And Justice Germain’s judgment suffers from other deep flaws on its way to this untenable conclusion, which make his decision all the more troublesome.

We should start by saying that, on a personal level, we have very little sympathy for the defendants’ cause. While reasonable people can always debate the specific measures being taken by the authorities―even to combat a pandemic―there is nothing reasonable in denying the seriousness of the situation, or in opposing vaccinations, which are our only hope to get out of this mess. And while both of us have written with some sympathy about civil disobedience, as practiced by people such as David Thoreau and Martin Luther King, civil disobedience involves acceptance of punishment―not flagrant disregard of the court system.

But the court system, for its part, should not beclown itself, even when dealing with jackasses. Justice Germain, alas, sets the tone quickly. “Alberta”, he writes,

has been and is in its worst shape ever concurrently with these sanction hearings. It is not an overstatement that Pastor Artur Pawlowski and his brother Dawid Pawlowski have contributed to this ominous health situation by their defiance of the health rules and their public posturing, which encourages others to doubt the legitimacy of the pandemic and to disobey the AHS Health Orders designed to protect them. [5]

The idea that the defendants deserve punishment not only for breaking the rules and the court orders enforcing them (which, to repeat, they do), but also for what they say and for what others make of what they say runs through Justice Germain’s reasons and taints his decision. Much of the opinion concerns what the judge personally thinks of the conduct of the defendants. But whatever one’s personal views, a judge cannot justify a decision that forces someone to agree with a particular law. The decision, in this sense, is incompatible with a free society where people can be required to comply with the law, but not to support it, as a majority of the Supreme Court held in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269.

One example of Justice Germain letting his personal views get the better of his judicial duty is his indignation at the fact that the defendants present themselves as martyrs. He is especially upset because one of them has done so “on a speaking tour in the United States where he parlayed his title as a pastor and the fact that he had been arrested for holding a church service into a rally cry that attracted like-minded individuals”. [33] For Justice Germain,

It is disappointing that Pastor Pawlowski had to air his grievances about Alberta in another country. Leaders and statesmen don’t do that. During his sanction hearing, AHS played some trip reports in which Pastor Pawlowski oozes hubris, while relishing in his notoriety. He got to take a picture with a governor of a U.S. state. He is proud of what he asserts is the love of the U.S. people for him. Love he implies he is not feeling in Canada. [34]

In a free and democratic society, no citizen is legally required to be a patriot. Punishment for not loving one’s country in accordance with its authorities’ idea of what such love ought to look like is a hallmark of dictatorial regimes. It is distressing to see a Canadian judge failing to comprehend this.

In a slightly different vein, Justice Germain is also angry that Mr. Pawlowski’s “accuses the Court of being a ‘tool of the government’” and so “show[ing] no civic understanding of the independence of the Courts and their distance from the government”. [35] To the extent that this anger contributes to Justice Germain’s choice of punishment for the defendants, it comes perilously close to being a sanction to the old contempt by “scandalizing” the court―that is, by making statements tending to bring the court into disrepute or to undermine its authority. The Ontario Court of Appeal held that this offence was unconstitutional in R v Kopyto, 62 OR (2d) 449, all the way back in 1987.  

Next, Justice Germain observes that, even as “Pastor Pawlowski makes much virtue of his status in Canada as an immigrant from Poland”, he also “describes health authorities as Nazis”. [36] To the judge, “[i]t defies belief, that any immigrant from Poland (having studied the atrocities of the Nazis in that country) could identify a doctor of medicine trying to keep people alive as a Nazi”. [36] At human level, one might sympathize with Justice Germain, but coming from a judge as part of reasons for sentencing, the suggestion that an immigrant might be held to some kind of special standard due to his origins strikes us as troubling.

These personal views take centre stage in Justice German’s opinion. The law is forgotten; only briefly does Justice Germain seem to acknowledge the relevance of freedom of expression to the case before him―and in a way that shows that, in truth, he just doesn’t get it. He says that “Pastor Pawlowski is entitled to express views about the government, the Courts, and AHS, but he must do it in a respectful, hate-free way that does not breach AHS Health Orders”. [37] To be sure, freedom of expression doesn’t extend to breaching court orders. But nor does it have to be exercised in a “respectful, hate-free way” as a matter of law (though as a matter of morality, we usually hope the freedom of expression is exercised in this way). One might, of course, refer to the US Supreme Court’s well-known decision in Cohen v California, 403 US 15 (1971), the “fuck the draft” case, where Justice Harlan famously wrote that “one man’s vulgarity is another’s lyric”. (25) But, closer to 2021 Alberta in time as well as in jurisdiction, let us note Justice Miller’s opinion for the Court of Appeal for Ontario in Bracken v Town of Fort Erie, 2017 ONCA 668, where it was argued that a loud protest was tantamount to violence and hence unprotected by the Charter’s guarantee of the freedom of expression:

A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

A protest does not cease to be peaceful simply because protestors are loud and angry. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. [49-51]

Justice Germain insists that

Pastor Arthur Pawlowski, his brother Dawid Pawlowski, and others that I dealt with in the sanction hearings are on the wrong side of science, history, and common sense on this issue. The growing number of dead and dying in North America from COVID-19 infection cannot be ignored, nor defined as a false reality. [38]

This is true. But the consensus view of science, history, and common sense, even to the extent that it exists, as here, is not and must not be an official ideology that all citizens are required to endorse. For this reason, while Justice Germain’s sentencing the defendants to a fine and community work is justified, his further order quoted at the beginning of this post is not. In a free and democratic society, which is what the Charter says Canada is, citizens are not required to make themselves into instruments of government propaganda when they engage in political or religious speech. Nor are they required to confess to their own heterodoxy, as Justice Germain would have the defendants do. It is for others to make that showing against them.

We might understand what Justice Germain did if he had framed his opinion in traditional legal terms. But his findings on s. 2(b) of the Charter, such as they are, are couched in personal opinion and conjecture. He does not conduct any analysis about freedom of expression of the sort that we have come to expect from Canadian courts. Indeed, he does not refer to precents on freedom of expression either. When it comes to determining whether his order is justified under s. 1, the only way Justice Germain addresses proportionality is through a comparison of his remedy to an order of jail time. He says that “many reasonable individuals will view the sanctions that I impose to be more beneficial in repairing the harm Pastor Pawlowski and his brother did to society than a short period of jail that will perhaps martyr them in the eyes of their followers”. [43] Yet this is not the test. Our constitutional law, in order to afford speech protection, does not count how many “reasonable people” support a particular exercise of speech or a particular way of repressing it. Not to mention, this statement does not consider, at all, the severity of the impact on the defendants’ freedom of expression—no matter how distasteful we might find their message.

We should note that Canadian case law on the subject of compelled speech is relatively sparse and nowhere near as robust as one would wish it to be. While National Bank, to which we refer above, rightly described attempts to coerce support for existing laws as totalitarian, Slaight Communications v Davidson, [1989] 1 SCR 1038 upheld an arbitral order that an employer state certain facts, found by the arbitrator, in a letter of recommendation provided to a former employee. The majority distinguished National Bank on the basis that Slaight concerned compelled statements of fact, rather than of opinion.

Ostensibly the order given by Justice Germain is framed as a factual statement. There is thus at least an argument that it is valid under Slaight. But this matter is also different from that case―even assuming that it was correctly decided. Justice Germain’s order applies whenever the defendants are speaking on a broad swathe of issues of pressing public concern and, contrary to what was the case in Slaight, the defendants vigorously―if not at all reasonably―dispute the facts they are required to convey. Justice Germain’s order requires them to undermine their own messaging and so to expose themselves to public ridicule if they wish to speak at all.

Thus, even as he gets on his high horse about science, common sense, and the importance of respecting court orders, Justice Germain simply ignores the constitution which constrains his own powers. In denouncing the defendants’ quest for martyrdom and, seemingly, punishing them for their opinions, he is in fact making them into martyrs. Indeed, thanks to him, they are now martyrs for free speech rather than only for covidiocy. We hope that there is an appeal, and the Justice Germain’s decision is reversed. So long as it stands, it is a much more serious affront to the dignity of the Canadian judiciary than anything the defendants―whom we do not mean to excuse―have done.

And that, perhaps, is the important point. COVID-19 has challenged all Canadian institutions in different ways. The challenges have been significant. Courts specifically have been asked to rule  that, at times, public necessity outweighs personal freedoms. We believe COVID-19 presents a number of these situations quite starkly. But when courts must make this judgment, they should do so by predictably applying established doctrines, and in a way that gives due respect to the rights and freedoms at issue. When the judicial analysis is perfunctory, or advanced as part of a personal opinion, public belief in the courts as guarantors of a government of laws, not men, is understandably diminished. This should worry us.

The Supreme Court―What Is It Good for?

The Supreme Court is deciding fewer cases; is this a sign of modesty, or boldness?

I’d like to come back to a recent post of Mark’s, the one on the Supreme Court seemingly granting leave to appeal in and hearing ever fewer cases. As Mark notes, “[o]n first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time” ― that of a national institution charged with developing the law, and not merely with correcting the errors that occur in the lower courts. Indeed the idea that the Supreme Court’s role is to develop the law follows logically from the requirement that decide whether to grant leave in a case according to whether it presents questions of “public importance” or “the importance of any issue of law or any issue of mixed law and fact involved”. And this requirement is laid down not by the Court but by Parliament, in s 40(1) of the Supreme Court Act. It might even be an essential characteristic of the Supreme Court and thus a constitutional requirement according to Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433. Who knows.

Be that as it may, Mark argues that, whether or not it is a dereliction of duty, the Supreme Court’s choice to butt out and let the provincial and federal courts of appeal develop the law isn’t all bad:

 There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court. This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. (Paragraph break removed)

I have a somewhat different view on this. For one thing, there is at least some reason to think that the Supreme Court’s decision-making process is in fact more suited to the development of the law. For another, and more importantly, the Supreme Court’s choice to take fewer cases is not exactly innocent.

On the process side, the reason panels expand, while the number of cases courts and individual judges hear shrinks, as one goes up the curial hierarchy is that we expect that more judges devoting more time to any one case are more likely to get it right. In particular, the Supreme Court’s nine-judge bench is sure to be more diverse ― geographically, on a number of demographic dimensions, and ideally intellectually too ― than a three- or even five-judge panel of a court of appeal. To be sure, there can be costs associated with larger panels, especially when they try to conjure up unanimous judgments that need to paper over substantial disagreements. But, at least in the long run, this logic seems sound.

The Supreme Court also benefits, if that’s the word, from inputs into its decision-making that should, in theory, improve it. There are more interveners at that level (including Attorneys General from provinces other than the one whence a case originated), more clerks, and more academics writing about cases before the Court. Perhaps some or all of these do more harm than good. (See, for example, Justice Stratas’ skepticism about interventions in Canada (Attorney General) v. Kattenburg, 2020 FCA 164.) But, to the extent that any do some good, they underscore the benefits of the Supreme Court’s decision-making. Again, the effects, if there are any, only appear in the long run. There are tons of great decisions made by courts of appeal, as Mark notes, and far too many bad ones made by the Supreme Court. But the latter does seem to have an institutional advantage.

More importantly though, I think that the Supreme Court does not grant leave in fewer cases out of some sort of modesty. The issue isn’t whether Court sees itself as having an important role in developing the law ― it certainly does ―, but how it chooses to play this role. Crudely, there are two possibilities: on the one hand, a court might develop the law incrementally by deciding many cases; on the other, it might decide only a few cases, but make significant changes to the law in every one. Of course, this is something of a caricature: how much a case develops the law is a matter of degree, a point on a spectrum. And even the same court might not take the same approach in every case. But you get the idea. Mark writes that “[i[f the Court is granting fewer leaves, it is deciding fewer cases that could ‘settle the law’ in areas that require it”. But deciding many cases isn’t the only way to settle the law.

Now it might seem that the two approaches ― many incremental cases or few big ones ― amount to much the same thing, in the long run: 10 cases developing the law by one unit each, the next always building on the last, or one case jumping ahead by 10 units end up in the same place. One might even think that the few-big-cases approach is preferable insofar as it saves some litigants the expense of ending up at the Supreme Court. It might also enable the Supreme Court to maximize the institutional advantages I have described above. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 is an illustration: it attracted all manner of attention from interveners and academics, and the Supreme Court itself appointed amici curiae to assist it.

Despite this, I think that we should be wary of the few-big-cases approach. It sits uneasily with the judicial role ― even the role of a court mandated to develop the law, and not only to do justice between parties in individual cases. Even when developing the law, a court still does so in the process of deciding cases, in response to the gaps or defects revealed by the disputes before it. It can properly seek to fill the gaps or remedy the defects, but it does not hold a roving commission to reform the law on a grand scale. Again, there are degrees of this, and the line between what is and what is not appropriate is blurry. But it should be apparent that, taken to the extreme, the view that a court can reform large areas of the law at once makes its role indistinguishable from that of a legislature.

There is, perhaps, an additional point. The self-perception of a court may matter: does it see itself as primarily engaged in adjudication or in law reform? This is related to but not quite the same as the vexing question of whether courts make or find law. (I discuss an example of the Supreme Court’s puzzlement at this here.) While a court that thinks of the common law as the product of judicial legislation might be inclined to be less modest than one that thinks of it as the product of judicial discovery, it need not necessarily be so; it might see itself as only properly legislating “in the gaps”. Conversely, a court may not be modest despite claiming not to be making law. The Dworkinian conception of judging is like that ― it is not at all modest, despite ostensibly disclaiming judicial law-making. In any case, the court’s self-understanding may shape its decision-making, at least in subtle ways.

And it is easy to point to decisions of the Supreme Court reflect a legislative, ambitious view of its role. Vavilov is one, of course, and very visibly so. Mark compares it to “an academic essay”, but it is at least as much of a legislative act, albeit one less crisp, though more fully reasoned, than a statute. The majority opinion does not even get to the dispute before the court until Part V, paragraph 146. But Vavilov is only an extreme, not the only example. R v Hart, 2014 SCC 52, [2014] 2 SCR 544, where the Court reformed the law on the admissibility of “Mr. Big” confessions, is a favourite of mine. Justice Moldaver, for the majority, explained that he

propose[d] a solution that … strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime.  This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [84]

And then, of course, there are the constitutional cases. There are those where the Supreme Court re-writes the law and gives “benediction” to rights heretofore unknown to our jurisprudence. But others too, like the notorious R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, also have a legislative feel to them.

Mentioning Jordan brings me to an important caveat: I do not mean to suggest that the Supreme Court should never go big. I have defended that decision, which may well have been the only way the right to a trial “within a reasonable time” could have been made more than a dead letter. Hart may have been the only way the considerable injustices plaguing the use of Mr. Big operations were ever going to be addressed, when one considers the resounding silence of Parliament on this issue both before and since. And even a clean-up on the scale of Vavilov may have been inevitable in administrative law. Justice Scalia, in “The Rule of Law as Law of Rules”, famously argued that judges should confidently lay down rules when deciding cases, to achieve equality before the law and predictability, and to bind themselves and their colleagues to a stable legal framework, including in the face of political pressure. There is something to this.

Nonetheless I think the point still stands: the Supreme Court is not necessarily being cautious or taking a laissez-faire approach just because it is deciding fewer cases. It may well be making a choice to develop the law in bold, big steps rather than incrementally. Bold action may have its advantages, and it may sometimes be necessary, but it runs the danger of being less judicial, and thus injudicious. On the whole, I think I would rather that the Supreme Court decided more smaller cases than fewer big ones. But they won’t ask me.

Does This Kat(z) Have Nine Lives?

In Katz, the Supreme Court set out the approach to judicial review of regulations. The Katz approach is (or, maybe, was) a carve-out from the general law of judicial review. As Professor Daly notes, it grants a “hyperdeferential” margin of appreciation to those that promulgate regulations. The Katz approach, based on previous cases, simply asked whether regulations are “irrelevant” “extraneous” or “completely unrelated” to the statutory scheme (Katz, at para 28), with the challenger bearing the onus.

Whether Katz has survived Vavilov is an open question. Vavilov purported to be a “comprehensive approach” to the determination of the standard of review (Vavilov, at para 17) for administrative action. On its face, that means that Vavilov‘s formula for determining the standard of review should apply to all instances of judicial review of administrative action—including judicial review of not only adjudicative acts, but “legislative” acts, as well. This would be a change, though: pre-Vavilov, there was (at least in theory) no judicial review for the “reasonableness” of legislative acts, and such decisions could not be set aside for errors other than jurisdictional ones. Specifically, Katz incorporates the old adage that judicial review does not entitle a court to review the merits of the legislative act, its “political, economic, or social…” context, or even whether it actually is rationally connected to its objective (see Katz, at para 28; Thorne’s Hardware, at 112-113).

Enter the recent decision of the Federal Court of Appeal (per Stratas JA) in Portnov. There are many issues in the case, but one concerned the propriety of Katz post-Vavilov. For the Court, Stratas JA suggests an easy answer to this question: “Thus, in conducting reasonableness review, I shall not apply Katz. I shall follow Vavilov” [28]. Stratas JA offers a number of reasons for this conclusion:

  1. The Katz approach (and its predecessors) were organized around the fundamental concept of “jurisdiction,” a “vestige” which Vavilov “eradicated” [22];
  2. Oddly, in the pre-Vavilov era, the Supreme Court sometimes simply reviewed regulations for their reasonableness under cases like Catalyst and Green [24].
  3. Vavilov is “intended to be sweeping and comprehensive” [25], and if there is a question as to whether Vavilov applies to an issue not addressed in that case, courts should ask how Vavilov’s general framework applies [25].
  4. Katz is a rule that “applies across-the-board to all regulations,” that “sits uneasily with Vavilov which adopts a contextual approach to reasonableness review” [27].

I think Portnov is right on the money.

Katz is problematic, in my view, because it (1) undermines the coherence of Vavilov’s simplicity; and (2) undermines the virtue of the contextual approach to reasonableness in Vavilov.

First, Vavilov was an attempt to finally address Binnie J’s comments in Dunsmuir, which encouraged a standard of review framework that “…get[s] the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Dunsmuir, at para 145). Part of this was the introduction of a presumption of reasonableness for most cases of judicial review. As I have written before, I have issues with this broad-based presumption (I do not buy the assumption that delegation necessarily implies deference) but it has one virtue: it may be wrong, but it is strong—it simplifies matters a great deal. That presumption, and the associated correctness exceptions, are largely principled. They are based on the core constitutional concepts of legislative sovereignty (choice to delegate) and the Rule of Law (guaranteeing judicial review of certain stringency on certain questions). A carve-out for regulations, with an ultra-deferential approach, simply complicates the conduct of judicial review for no principled reason. This is because whether an administrator is exercising adjudicative power or legislative power, it is delegated power all the same. And from the perspective of simplicity (with due regard for countervailing considerations) Vavilov‘s general principles for determining the standard of review should be determinative in all instances of judicial review of administrative action.

This is an issue of doctrine, but Stratas JA also provides good substantive reasons for not applying Katz. The contextual approach to reasonableness introduced by Vavilov, too, has its flaws: context can sometimes lead to uncertainty. But if context is adequately described by markers of unreasonableness (say, the “constraints” offered in Vavilov), the uncertainty is limited. Applying those constraints to the context of legislative instruments is perfectly justifiable. It may be, as in Catalyst or Green, that Vavilovian reasonableness is quite relaxed when dealing with certain legislative instruments. In other cases it may be more stringent. The constraints offered in Vavilov take account of the legislative context in a way that, at least to some extent, tracks the words and language used by the legislature to delegate power. With a fine-tuned approach like this, there is no need for a presumptive rule that puts a thumb on the scales for those that promulgate regulations based on any functional reasons.

Some judges of the Supreme Court have indicated an interest in preserving the coherence of Vavilov based on its general principles. In Wastech, for example, Brown and Rowe JJ filed a concurring opinion that would have applied Vavilov to the context of a commercial arbitration. They would have applied a correctness standard of review based on Vavilov’s holding on rights of appeal. These judges said this in Wastech:

[120]                     Factors that justify deference to the arbitrator, notably respect for the parties’ decision in favour of alternative dispute resolution and selection of an appropriate decision‑maker, are not relevant to this interpretive exercise. What matters are the words chosen by the legislature, and giving effect to the intention incorporated within those words. Thus, where a statute provides for an “appeal” from an arbitration award, the standards in Housen apply. To this extent, Vavilov has displaced the reasoning in Sattva and Teal Cedar.Concluding otherwise would undermine the coherence of Vavilov and the principles expressed therein.

I think this is the right approach. Vavilov’s general principles have much to say about many forms of decision-making. And, luckily for us, the fact that these principles have something to say makes judicial review much simpler for the parties and courts. No need for special rules any longer, and so I hope this Kat(z) is out of lives.

For more on this issue, see the following resources:

Paul Daly

John Mark Keyes

The Supreme Court’s Leaves (Or Lack Thereof)

The Supreme Court has gone yet another week without granting leave to any cases. I am not an empiricist, and this is not something I’ve been tracking, but I gather that the Supreme Court has granted leave to less cases over time in general (not to suggest that this week is particularly representative of anything).  Statistics from the Supreme Court from 2009-2019 suggest a drop-off in leave rates, and I imagine that the rate at which the Court granted leave was higher in the 1980s and 1990s than it is now.

There is good work being done to analyze the Supreme Court’s leave practice, an area that I understand is traditionally understudied. Led by Paul-Erik Veel, Lenczner Slaght’s Data-Driven Decisions project, and its related Leave Project, attempt to understand and predict the Supreme Court’s leave practice. And while I am not an expert on the subject, I gather that there is interest in understanding why the Supreme Court has granted fewer leaves over time, and relatedly, whether it is a good or bad thing.

On first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time. Its granting of a constitutional role for itself in the Nadon Reference suggests a court that sits at the centre of Canada’s system of laws. In Henry, at para 53, the Court said the following:

53 In Canada in the 1970s, the challenge became more acute when this Court’s mandate became oriented less to error correction and more to development of the jurisprudence (or, as it is put in s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to deal with questions of “public importance”).  The amendments to the Supreme Court Act had two effects relevant to this question. Firstly, the Court took fewer appeals, thus accepting fewer opportunities to discuss a particular area of the law, and some judges felt that “we should make the most of the opportunity by adopting a more expansive approach to our decision-making role”:  B. Wilson, “Decision-making in the Supreme Court” (1986), 36 U.T.L.J. 227, at p. 234.  Secondly, and more importantly, much of the Court’s work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case.

This passage packs in a number of points. First, the Court sees itself not only as an appellate authority of error correction, but as central to the development of the jurisprudence on issues of public or national importance. In turn, this could plausibly affect the doctrine the Supreme Court applies in certain areas. The Court is not designed simply to point out appellate errors, but in turn develops overarching doctrinal frameworks that sometimes requires the overruling of precedents. A modern example is the Supreme Court’s decision in Vavilov, which reads (sometimes) as an academic essay rather than a traditional judicial decision.

The fact that the Supreme Court grants fewer leaves, then, suggests a Court that is not living up to its role to develop the jurisprudence. If the Court is granting fewer leaves, it is deciding fewer cases that could “settle the law” in areas that require it. For those who see the Supreme Court’s role as, for example, arbitrating between competing national values, a lower leave rate suggests a less relevant Supreme Court than its members sometimes imagine.

On the other hand, the granting of fewer leaves is not necessarily problematic if one takes a pessimistic view of what the Supreme Court does. For most advocates across the country, the bread-and-butter of law does not occur in the august halls of the Supreme Court. Instead, it is more likely that legal issues are decided by lower courts and administrative actors. The prohibitive costs associated with bringing leave applications and appeals to the Supreme Court creates a built-in incentive for these issues to be finally decided at a lower level of decision-making.  

This is just my view, but I do not view this as a bad thing. For one,  Canada’s lower court judges are far from bit players in the development of the law. The Supreme Court gets a lot of attention, but the 9 judges on that Court are special only because of their station; not necessarily because they are more likely to come to better or more stable decisions than a lower court judge. The Supreme Court, as Robert Jackson once said, is only infallible because it is final. Our lower court judges are well-equipped to settle the law without high-stakes litigation at the Supreme Court. Vavilov provides another instructive example of this. Prior to Vavilov, the Federal Court of Appeal, led by Justice David Stratas, had attempted to make sense of the Supreme Court’s administrative law doctrine. Its approach to determining and applying the standard of review was, in many respects, adopted in Vavilov: see particularly the Vavilov Court’s approach to reasonableness. The Federal Court of Appeal itself has recently made note of this: Alexion, at para 7. There is an irony here: the Supreme Court, far from settling the law of judicial review in the 2010s, unnecessarily complicated things for lower courts and litigants. Far from stability, the Court actively made things worse. It took lower court judges doing their best to apply the law to make the Supreme Court clean up its own mess, with help from the Federal Court of Appeal.

I am not suggesting that the leave practice of the Supreme Court in recent years is a wholly good thing, but I do not necessarily see it as a bad thing either. There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court.

This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. Vavilov, for example, was an important case on which to grant leave because the doctrine was so unsettled across the country. I am candidly not sure how many such instances exist in various areas of the law. Unfortunately, this suggestion is a non-starter: we will never know what, beyond bromides, members of the Supreme Court take into account when granting leaves.

At any rate, I don’t have the answers here and as I said earlier, there is probably more in the available data to complicate the picture I have drawn here. Nonetheless, I do think more discussion of the benefits and drawbacks of the Supreme Court’s leave practice is desirable.

Citizens and Judicial Independence

A lawyer’s attempt to spy on a judge is a threat to judicial independence

This is a joint post with Mark Mancini

The goings-on in the Manitoba Court of Queen’s Bench seldom make for front-page news. This time is different though, as that Court’s Chief Justice, Glenn Joyal, has revealed that he has been followed and his house visited by a private investigator, and lawyers for the Justice Centre for Constitutional Freedoms (JCCF) have admitted that they are the ones who hired the investigator (though the Board of the JCCF has disclaimed any knowledge or responsibility for the incident). The JCCF is representing people challenging pandemic-related restrictions on religious worship and apparently thought that it would be a brilliant idea to find out whether Chief Justice Joyal, and seemingly other public figures too, complied with these orders.

This has elicited prompt and entirely proper condemnation. It is, of course, “astonishingly inappropriate” for lawyers to be gathering dirt on judges in their cases, with―presumably―the intent to embarrass them at the “right” moment, should the opportunity arise. If a lawyer is concerned about a judge’s impartiality, he or she needs to raise this with the judge, instead of proceeding in this underhanded fashion. But we want to make a further point here. This situation reminds us of the limited but still meaningful ways in which judicial independence imposes obligations on citizens, as well as on government officials—apart from and in addition to any obligations imposed on lawyers as officers of the court.

Generally speaking, we think of judicial independence as a constraint on what are (especially in the United States) sometimes called the “political branches” of government, i.e. the legislature and the executive. They are required by explicit constitutional provisions or implicit but enforceable constitutional principles to respect the judges’ security of tenure, financial security, and administrative independence. Private citizens cannot meaningfully threaten these incidents of judicial office, which makes it easy to think that judicial independence does not concern them.

Parliamentary rules and constitutional convention also strictly limit the ability of Members of Parliament and Ministers to criticize judges. This serves to avoid creating unconstitutional pressure or, perhaps more likely, the appearance of such pressure on the courts. Here, the position of ordinary citizens is radically different. They must be free to criticize individual judges and the courts as a whole. Judges and courts exercise the public power over citizens; the state’s armed force is wielded at their behest; the power of legislatures and thus the citizens is limited by their pronouncements. Their decisions, no less than the decisions of those who write the laws they apply, must be subject to public scrutiny. For this reason, arguments to the effect that citizens (or specifically the media) must respect judicial independence are sometimes little more than cover for disturbing attempts to silence legitimate criticism of the judiciary.

That said, there is indeed a way in which even private citizens ought to respect judicial independence. This obligation is so narrow that it is seldom worth discussing, but the JCCF’s shenanigans bring it to the fore. As with other fundamental constitutional principles, although the main responsibility for upholding and fostering them rests with officials, citizens should avoid undermining judicial independence, just as they should avoid undermining democracy (say, by making false allegations of electoral fraud) or the Rule of Law (say, by condoning private violence).

The most obvious way in which citizens can undermine judicial independence is by engaging in intimidation intended to make judges decide cases otherwise than in accordance with the judges’ honest understanding of the facts and the law. Indeed, the reason why political actors are so constrained in their ability to criticize the judiciary is precisely that their doing so risks being perceived as intimidatory even if it is meant as respectful disagreement. This is not normally true of private citizens or even the media. But there are exceptions. One of us (Sirota) has written here about some instances of extreme criticism of judges by UK media in the wake of Brexit. As that post suggested, that looked like an attempt to intimidate the courts into ruling in accordance with perceived popular will rather than the law.

The JCCF’s “investigation” of Chief Justice Joyal appears to have been a similar attempt at intimidation, intended to influence a judge’s decision (or at least his decision as to whether or not to recuse himself from a case). It may be worth noting that if, say, the media learn that a judge has been breaking the law―especially if this happens to be a law that the judge in question found to serve some important public purpose―they would surely be justified in reporting on it. But this would be very different matter from what the JCCF seems to have attempted. It is one thing to say that public power has been exercised hypocritically; it is quite another to attempt to direct the exercise of public power toward irrelevant considerations, such as potential embarrassment.

In short, the JCCF broke even the narrow obligations that ordinary citizens owe to the independence of the judiciary. This is apart from and in addition to a possible breach of the distinct, and more onerous, obligations that lawyers to the courts before which they practise. (We express no view on the JCCF lawyers’ actions from that perspective.) The JCCF’s conduct is reprehensible. While it may be tempting to write the situation off as the initiative of one person, it illustrates a deeper willingness of some—even legal professionals—to run roughshod over constitutional principles in service of their own legal or partisan goals. Whatever “advantage” the JCCF thinks it may have attained from its inappropriate investigation is clearly outweighed by the pound of flesh taken from the integrity of the legal system. Over time, these situations open the door to more enterprising litigants and private citizens who seek to maximize their chances of “winning,” however they describe it. The result is the continual erosion of cherished constitutional principles like judicial independence.

The widespread condemnation that has followed was thus reassuring―and we hope that it was the result of a widespread commitment to the principles at stake, and not only of the fact that the JCCF is known for defending views at odds with those of much of the legal profession. Some principles are so fundamental that they must be defended from ideological friend and foe alike.

Against Pure Pragmatism in Statutory Interpretation III: A Way Forward and Walsh (ONCA)

About a month ago, I wrote two posts attacking the concept of “pragmatism” in Canadian statutory interpretation. So my argument goes, the seminal Rizzo case, while commonly said to herald a “purposive” approach to interpretation, is actually methodologically pragmatic This is because the famous paragraph from Rizzo, which contains a list of things an interpret must take into account, does not assign ex ante weights to these factors. That is, it is up the interpreter to choose, in the circumstances of particular cases, which factors will be most relevant. In short, while everyone in theory agrees on what the goal of interpretation is, that agreement rapidly breaks down in the context of particular cases.

In these circumstances, methodological pragmatism is attractive because it permits interpreters to use an entire array of tools as they see fit. So the story goes, this freedom leads to “flexibility.” But it can also lead to a number of pathologies in interpretation that should be avoided. In this final post of the series, I outline these pathologies, sketch a path forward, and then highlight a recent example case (Walsh) from the Ontario Court of Appeal that demonstrates why methodological pragmatism unleashes judges to an unacceptable degree. The point here is that interpretation is designed to determine what the legislature meant when it enacted words. Purpose is important in ascertaining that meaning, but ascertaining purpose is not the point of interpretation. This leads to an approach that prefers some ordering among the relevant interpretive tools (for want of a better phrase), rather than a flexible doctrinal standard motivated by methodological pragmatism.

The Pathologies of Pragmatism

By now, and as I have outlined above and in my previous posts, Canada’s approach to statutory interpretation is oddly enigmatic. On one hand, everyone (seems) to agree on the goal of the enterprise: when courts interpret statutes, they are seeking to discover what Parliament intended when it enacted a particular provision or provisions. Putting aside thorny issues of what “legislative intent” might mean (and see here Richard Ekins’ important work), in practical terms, we are seeking to discover the legal meaning and effect of language enacted by Parliament; we are, put differently, seeking to discover what change has been effected in the law (either common law or existing statute law) by Parliament’s intervention (see Justice Miller’s opinion in Walsh, at para 134).

When a law is adopted, one can speak of ends and means, and it’s this framework that guides the discussion to follow. It would be strangely anodyne to claim that Parliament speaks for no reason when it legislates. We presume, in fact, that every word enacted by Parliament means something (represented in canons like the presumption against surplusage, see also Sullivan at 187). And so it only makes sense to take account of a particular provision’s purpose when considering interpretation. Those are the ends for which Parliament strove when adopting the legislation. Selecting the proper ends of interpretation—at the proper level of abstraction, bearing on the actual text under consideration—is an integral part of interpretation. To avoid a strictly literal approach, text must be read in this context.

But, importantly, this is not the end. What about means? In some ways, and as I will show through the example case, means are the real subject of debate in statutory interpretation. Parliament can achieve an objective in many different ways. In general, Parliament can enact broad, sweeping, mandatory language that covers off a whole host of conduct (within constitutional limits). It could leave it at that. Or it could enact permissive exceptions to general mandatory language. It can enact hard-and-fast rules or flexible standards. Administrative schemes can delegate power to “independent” actors to promulgate its own rules. The point here is that Parliament can decide to pursue a particular, limited purpose, through limited or broad means. This is Parliament’s choice, not the court’s.

While free-wheeling pragmatism can lead to all sorts of pathologies, I want to focus here on the relationship between ends and means, between purpose and text. Pragmatism can distort the proper ascertainment of ends and means. In some cases, the problem will be that the court, without any doctrinal guidance, chooses a purpose at an unacceptably high level of abstraction (see, for example, the debate in Telus v Wellman, and Hillier), perhaps even to achieve some pre-ordained result. The courts can do so because, if one simply follows Rizzo, there is no requirement that a judge seek textual evidence for the establishment of a purpose. Yet we know that, as a descriptive matter, it is most common that purpose is sourced in text (see Sullivan, at 193): an interpreter can usually glean the purpose of the legislation, not from legislative history, subsequent legislative enactments, or even the judge’s own imagination, but from the text itself.

This descriptive state of affairs is normatively desirable for two reasons. First, the point of interpretation is not to establish the purpose or mischief the legislature was intending to solve when it legislated (despite Heydon’s Case). The point is to discover the intent of the legislature as represented in the meaning of the words it used. The words are the law. Purpose assists us in determining the meaning of those words, but it cannot be permitted to dominate the actual goal of the enterprise. A pragmatist approach permits, at least in some cases, for that domination to exist: if purpose is better evidence of intention than text, in some cases, then it can be permitted to override text. But this undermines the point of interpretation.  

Secondly, for all we might say about legislative intentions, the best practical evidence of intention is what has been reduced to paper, read reasonably, fairly, and in context. Since statutory interpretation is not a theoretical exercise but a problem solving-one, the practicality of doctrine is central. For this reason, purpose can best assist us when it is related and grounded in text; when the text can bear the meaning that the purpose suggests the words should carry. To the extent pragmatism suggests something else, it is undesirable.

  Sometimes, however, the problem will lie in the means; while the relevant purpose may be common ground between the parties, there may be a dispute over the meaning of language used to achieve those ends. Such disputes tend to focus on, for example, the choice between ordinary and technical meanings, the role of particular canons of interpretation, and (importantly for our purposes) the relationship between the properly-scoped purpose and the language under interpretation. It is the job of the interpreter to work among these tools synthetically, while not replacing the means Parliament chose to accomplish whatever purpose it set out to accomplish. But with pragmatism, no matter the means chosen by Parliament, there is always the chance that the court can dream up different means (read: words) to accomplish an agreed-upon purpose. Often, these dreams begin with a seemingly benign observation: for example, a court might simply conclude that it cannot be the case that a posited interpretation is the meaning of the words, because it would ineffectually achieve some purpose.

These pathologies can work together in interesting ways. For example, an expansive purpose can cause distortions as the means selection stage of the analysis; a court entranced by a highly abstract purpose could similarly expand the means chosen by the legislature to achieve those means. But even in absence of a mistake at the sourcing stage, courts can simply think that Parliament messed up; that it failed to achieve the purpose it set out to achieve because the means it chose are insufficient, in the court’s eyes.

A Way Forward

When constructing doctrine, at least two considerations to keep in mind pertain to flexibility and formality, for want of better words. Flexibility is not an inherently good or bad thing. Being flexible can permit a court to use a host of different tools to resolve disputes before it, disputes that sometimes cannot be reduced to a formula. Too much flexibility, however, and the judicial reasoning process can be hidden by five-part factorial tests and general bromides. Ideally, one wants to strike a balance between formal limits on how courts must reason, with some built-in flexibility to permit courts some room to react to different interpretive challenges.

The point I have made throughout this series is that Rizzo—to the extent it is followed for what is says—is pragmatic, methodologically. Whatever the benefits of pragmatism, such a model fails to establish any real sequencing of interpretive tools; it does not describe the relationship between the interpretive tools; and leaves to the judge’s discretion the proper tools to choose. While subsequent Supreme Court cases might have hemmed in this pragmatic free-wheeling, they have not gone far enough to clarify the interpretive task.

The starting point for a way forward might begin with the argument that there must be some reasons, ex ante, why we should prefer certain interpretive tools to others. This starting point is informed by a great article written by Justice David Stratas, and his Law Clerk, David Williams. As I wrote here:

The piece offers an interesting and well-reasoned way of ordering tools of interpretation. For Stratas & Williams,  there are certain “green light” “yellow light” and “red light” tools in statutory interpretation. Green light tools include text and context, as well as purpose when it is sourced in text. Yellow light tools are ones that must be used with caution—for example, legislative history and social science evidence. Red light tools are ones that should never be used—for example, personal policy preferences.

In my view, this sort of approach balances formalism and flexibility in interpretation. For the reasons I stated above, the legislative text is really the anchor for interpretation (this is distinct from another argument, often made, that we “start with the text” in interpretation). That is, the text is the best evidence we have of intention, often because it contains within it the relevant purpose that should guide us in discovering the meaning of the text. For this reason, legislative text is a green light consideration. Purpose is also a green-light consideration, but this is because it is sourced in text; if it was not, purpose would be misused in a way that might only be recognizable to a methodological pragmatist. Other tools of interpretation, such as legislative history and social science evidence, can be probative in limited circumstances.

The key innovation here is the Stratas & Williams approach does not rule out so-called “external sources” of meaning, but it does structure the use of various tools for interpretation. For example, the approach does not raise a categorical bar to the consideration of legislative history. But it does make some ex ante prediction about the value of various tools, reasoning for example that purpose is most relevant when it is sourced in text.

This is an immediate improvement over the pragmatist methodology, at least when it comes to my core area of concern, the relationship between purpose and text. In the pragmatist model, purpose can be erroneously sourced and then used to expand the means chosen by the legislature; in other words, it can be used to override the language chosen by the legislature. Under the Stratas & Williams model, such a situation is impossible. Any purpose that is helpful and relevant to the interpretive task will be contained within the language Parliament chose, even if that language is limited, imperfect, or unclear.

An Example Case: Walsh

Much of this can be explained by a recent case, Walsh, at the Ontario Court of Appeal. While Walsh is a very interesting case for many reasons, I want to focus here on a key difference between the majority decision of Gillese JA and the dissent of Miller JA. Gillese JA seems to implicitly adopt a pragmatic approach, arguably making purpose rather than text the anchor of interpretation—presumably because the case called for it. Miller JA, instead, makes text the anchor of interpretation. The difference is subtle, but immensely important, because each opinion takes a different view of the “means” chosen by Parliament.

At issue in Walsh was s.162.1(1) and (2) of the Criminal Code. Section 162.1(1), in short, “makes it an offence for a person to knowingly disseminate an ‘intimate image’ of a person without their consent” [61]. An “intimate image” is defined by s.162.1(2), and relates to a “visual recording of a person made by any means including a photographic, film or video recording.”

Stripping the dispute down to brass tacks, the issue in this case was whether a FaceTime call that displays certain explicit content could constitute a recording. The problem, of course, is that FaceTime video calls cannot be conventionally saved and reproduced, like a photo (putting aside, for a moment, the possibility of recording a FaceTime video call). The Crown, at trial, argued that the language of the provisions are written broadly, and must be read “in the context of the harm that s.162.1 was enacted to address: sexual exploitation committed through technology, including cyberbullying and revenge porn” [23, 55]. For the Crown, the answer was found by reasoning from this general “mischief” that the statute was designed to address: the harm would still exist even despite “the recipient’s inability to further share or preserve the moment…” [23]. The defense, on the other hand reasoned from the ordinary meaning of the word “recording,” concluding that “recording” alludes to the “creation of an image that can be stored, viewed later, and reproduced” [57].

Gillese JA for the majority agreed with the Crown’s argument. She listed five reasons for her agreement, but one is particularly relevant on the issue of the relationship between text and purpose. Gillese JA writes, at paras 68 and 70:

[68] Fourth, restricting the meaning of “recording” to outdated technology—by requiring that it be capable of reproduction—would fail to respond to the ways in which modern technology permits sexual exploitation through the non-consensual sharing of intimate images. In so doing, it would undermine the objects of s.162.1 and the intention of Parliament in enacting it.

[…]

[70] …Giving “visual recording” a broad and inclusive interpretation best accords with the objects of s.162.1 and Parliament’s intention in enacting it.

As we will see, this is precisely backwards.

Miller JA’s dissent should be read in whole. It is a masterclass in statutory interpretation, and it is particularly representative of the approach I favour. But most importantly, Miller JA outlines why the majority’s approach demonstrates a means problem, as described above. For Miller JA, there is no purpose-sourcing problem here, since, as he says, there is common ground about the mischief that these provisions were designed to address [179]. However, for Miller JA, a proper application of the various tools of interpretation counselled an approach that did not rewrite the terms of the statute; the means chosen by the legislature. This approach is supported by a number of considerations. First, as Miller JA says, the term “recording” must be given its ordinary meaning. This is the going-in presumption, absent good reasons otherwise. But for Miller JA, the Crown offered no objective support for its assumption that the term “recording” must encompass the FaceTime video at issue. While dictionary meaning and ordinary meaning are two different things, dictionary meaning can shed light on ordinary meaning, and Miller JA noted that there was no instance of the term “recording” being used to describe a “visual display created by any means” [159].

This might have been enough, but the Crown offered another argument: that the term “recording” must be understood as encompassing new forms of technology [162]. Of course, because of the original meaning canon, it could not be said that any linguistic drift in the term “recording” is legally relevant in this case [166]. However, it is a common application of the original meaning rule that where words are written in a broad and dynamic manner, they could capture phenomena not known to drafters at the time of enactment. For Miller JA, however, this argument failed when it comes to the word “recording.” For him, FaceTime was clearly a phenomenon that existed at the time these provisions were drafted, and in fact, the context of the provisions indicated that Parliament had actually distinguished, in other places, recordings versus “visually observing a person…” [174-176]. The term “recording,” then must rely on the concept of reproducibility, as distinguished from other sorts of displays that cannot be saved and reproduced. This latter category of displays was known by Parliament when it crafted these provisions, but it is conspicuously absent from the provisions themselves.

Miller JA, having disposed of these arguments, then clearly contrasts his approach to Gillese JA’s:

[171] What the Crown is left with is the proposition that a reauthoring of the provision would better achieve s.162.1’s purpose….But where Parliament chooses specific means to achieve its ends, the court is not permitted to choose different means any more than it would be permitted to choose different ends. The interpretive question is not what best promotes the section’s purpose, such that courts can modify the text to best bring about that result, but rather how Parliament chose to promote its purpose

[172] …Although the Crown’s argument is framed in ascertaining the conventional, ordinary meaning of language, it is actually an argument about what meaning ought to be imposed on s.162.1, so as to best achieve the purposes of this section.

These paragraphs are remarkable because they clearly set up the difference between Gillese JA’s approach and Miller JA’s approach; the difference between a methodologically pragmatic approach, and an approach that roots ends in means, purpose in text. For Gillese JA, one of her five reasons for accepting the Crown argument pertained to the fact that the defense’s offered interpretation would fail to achieve the agreed-upon purpose of the provisions. This sort of reasoning is only possible under a pragmatic approach, which permits courts to prioritize different interpretive tools as they see fit. The result is a Holy Trinity abomination: where purpose is the anchor for interpretation, and the text is massaged to achieve that purpose, in the court’s view.

Miller JA’s approach is better, if one follows the argument in this post. His approach clearly sees text as an interpretive “tool” that is prior to all the others, in the sense that it is (1) what the legislature enacted to achieve some goal (2) it, practically, is the best evidence we have of what the purpose of the legislation is. Under this formulation, it is not up to the courts to decide whether better means exist to achieve the purpose of the legislation. If this were the case, the point of interpretation would be to identify the meaning of purpose, rather than the meaning of language as evidence of intention. Miller JA explicitly assigns more weight to the text in cabining the purposive analysis.

The Walsh case illustrates the problem that pragmatism has created. While all agree on the point of interpretation, that agreement tends to break down when we begin to apply the tools we have to determine the meaning of the text. Methodological pragmatism offers no hope for solving this problem, because it fails to take a stand on which tools are best. The Stratas & Williams approach, and the approach offered by Miller JA in Walsh, envisions some ranking of the interpretive tools, with text playing a notable role. This approach is better. It moves us away from the endless flexibility of pragmatism, while still leaving the judge as the interpreter of the law.