Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

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I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I am not I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

Still Playing Favourites

Despite its broader focus, the Court Challenges Program remains objectionable

The federal government has officially announced that it is bringing back the Court Challenges  Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights ― not only equality and language rights under the Canadian Charter of Rights and Freedoms and the Official Languages Act, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, “fundamental freedoms” of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.

As I wrote in a post for the CBA National Magazine’s blog last year, we should question the government’s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country ― but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular. Why are, for instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter rights but not that of other constitutional provisions, such as those pertaining to the division of powers.

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.

The government’s public statements today only confirm my impression. The Prime Minister has tweeted that the Court Challenges Program “will help protect the language & equality rights of all Canadians” ― singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags about “reinstating the Court Challenges Program as we celebrate #Charter35 to show our commitment to human rights and the rule of law” ― without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.

I have other objections to the Court Challenges Program too ― notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own ― but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter and Canadian Bill of Rights compliance might be one good place to start instead; there are others as well.

But as the program is first and foremost symbolic, and in light of the Prime Minister’s and the Justice Minister’s statements, my objection to the program’s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Grégoire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It’s not that I am entitled to have my objections responded to, of course ― but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?

A Pile of Problems

A critique of Steven Penney’s take on the Supreme Court’s distinction between criminal and administrative penalties

Steven Penney has recently posted to SSRN an interesting article, published last year in the Supreme Court Law Review, criticizing the Supreme Court of Canada’s jurisprudence distinguishing the imposition of “administrative” and “criminal” penalties. People (and corporations) who risk the latter kind of penalties ― “true penal consequences” as the Court calls them ― benefit from a variety of procedural protections which section 11 of the Canadian Charter of Rights and Freedoms grants to “[a]ny person charged with an offence”. Those facing only “administrative” penalties ― which can include suspensions of licenses (to drive or to practice a profession) and fines, even fines ranging in the hundreds of thousands if not millions of dollars ― are not protected by the Charter.

Prof. Penney traces the intellectual roots of this distinction to the Canadian rejection of the “Lochner era” in American constitutional jurisprudence, which is generally thought to have involved judicial subversion of valuable economic regulation intended to protect society’s less powerful members.  Prof. Penney shares the concern that motivated this rejection, but argues that it has been taken too far. The “shadow of Lochner“, as his article’s title has it, has dimmed the guiding lights of the Charter, even as

[l]egislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law. In many instances, the sanctions accompanying these regimes are harsh, the targets are ordinary people, and the rules protecting adjudicative fairness are weak. (309)

Prof. Penney argues that section 11 of the Charter should be interpreted more broadly, to provide procedural protections to persons involved in administrative as well as criminal proceedings. The government’s ability to justify restrictions to or departures from these protections under section 1 should be enough to prevent them from standing in the way of truly important economic regulation ― but the necessity of these restrictions or departures would have to be justified.

This is an intriguing argument. I have written here about Thibault c. Da Costa, 2014 QCCA 2347, a case in which the distinction between administrative and criminal penalties was used to uphold the imposition, on a financial advisor who had swindled some of his clients, of fines that were higher than those authorized by the applicable legislation as it stood at the time of the acts. In the criminal context, paragraph 11(i) of the Charter, which entitles persons charged with an offence “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”, prohibits this. But the Québec Court of Appeal took the view that the proceedings here were not really criminal, because the fines imposed were not “true penal consequences”, and so their retrospective increase was upheld. I wrote that the decision, although legally correct, was disturbing. Prof. Penney discusses two decisions of the Supreme Court that also apply this distinction to disturbing effect (as he, persuasively in my view, argues):  Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 and Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250.

At the same time, however, Prof. Penney’s article suffers from a some flaws that are, sadly, characteristic of Canadian constitutional thought. One issue I have with Prof. Penney’s argument is that it mostly does not question the conventional wisdom on the “Lochner era” in which it finds the roots of the problem it tries to push back against. According to this conventional wisdom, the U.S. Supreme Court’s decision in Lochner v New York, 198 US 45 (1905), held up, in prof. Penney’s words, “a rigid and formalist interpretation of the Bill of Rights to limit state efforts to enact and enforce progressive economic legislation”. (308) This is questionable; indeed, recent scholarship argues that it is simply wrong. David Bernstein, whose book prof. Penney cites but does not engage with, has shown that, far from being intended to protect the vulnerable and the disadvantaged, the legislation invalidated in Lochner served to protect (relatively) big ― and unionized ― established businesses against smaller, family-owned competitors. Many other laws invalidated in the “Lochner era” ― which were never as numerous as subsequent criticism made them out to be ― were similarly objectionable. Meanwhile, this reviled jurisprudential era has served as the foundation for the subsequent expansion in the enforcement of constitutional rights in the non-economic realm.

This history matters. Rectifying the record is useful for its own sake of course. Prof. Penney says that “[t]he story of Lochner is well known” (310) ― and, in the next sentence, misstates the year in which it was decided; an accident, no doubt, but an ironic one. Prof. Penney quotes a passage from Justice Cory’s reasons in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 describing the “so-called ‘Lochner era'” as the period of time when “courts struck down important components of the program of regulatory legislation known as ‘the New Deal'”. But of course the “Lochner era” began well before Franklin D Roosevelt’s New Deal, and most of the laws struck down during this period had nothing to do with it. In short, “the story of Lochner” is rather less well known than one might be tempted to suppose; what people think they know about it may be ideological myth more than reality. More importantly, however, recovering Lochner‘s philosophy ― an opposition not to any and all economic regulation, but to the sort of regulation that privileges some groups in society above others ― might also make us rightly more suspicious than we tend to be of the  regulatory schemes that the courts end up protecting by invoking the administrative-criminal distinction. In my post on Thibault I suggested that courts should be wary of “the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role” when they ask themselves whether the penalties at issue are administrative or penal in nature. Remembering Lochner‘s lesson ― that economic regulation is not always as benign and protective as it seems ― might help here.

My other, and more important, objection to prof. Penney’s argument concerns his approach to constitutional interpretation. He “claim[s] … that the Supreme Court’s construal of ‘charged with an offence'” in section 11 of the Charter as excluding administrative proceedings  “is too restrictive”. (323) It is too restrictive, prof. Penney argues, because of the bad consequences it produces ― in the sense that individual rights to “adjudicative fairness in contesting substantial state-imposed penalties” (324) are under-protected. As I suggest above, I think that prof. Penney is right to decry the under-protection of these rights. But it is not enough to say that, because interpreting a constitutional provision in a certain way produces unpleasant consequences, a different interpretation can and ought to be adopted.

The jurisprudence that prof. Penney criticizes arguably illustrates the perils of this approach. In prof. Penney’s telling, the Supreme Court is concerned about the costs of enforcing the Charter‘s procedural protections for the state’s ability to impose economic regulations, more than it is about the consequences of not enforcing these protections when “true penal consequences” such as imprisonment are not at stake. A consequentialist approach to constitutional interpretation can go either way; there is no guarantee that it will always be right-protecting. Consequentialism, in turn, is one possible way of implementing the “living tree” interpretive methodology that the Supreme Court and Canadian academia loudly insist is the only appropriate one. It’s not the only way ― one might be a living-treeist without being a consequentialist. But saying “living tree” is not enough to decide cases. Once one accepts that constitutional meaning can change, one has to figure out what it should change to, and this is where consequentialism comes in. If one wants to foreclose, or at least to limit, its influence in constitutional interpretation, one should, I suspect, abandon living-treeism, at least in the radically unspecified form in which it is practised in Canada.

Now, it is not clear that doing so will lead to results that prof. Penney or I would find pleasant in this particular case. The main alternatives to living-tree constitutional interpretation are the different versions of originalism. (For a primer, see Benjamin Oliphant’s and my paper recently published in the Queen’s Law Journal.) An originalist approach to section 11 of the Charter would consist in asking whether (depending on the version of originalism one subscribes to)  “charged with an offence” would have been understood in 1982 as applying to administrative proceedings or was intended to apply to them by the Charter‘s authors. And I don’t know the answer to these questions. What I do know is that, insofar as these questions do have an ascertainable answer (they might not; perhaps the phrase “charged with an offence” is irreducibly vague, forcing an originalist interpreter into the “construction zone” that is, on some views, not very different from living tree interpretation), this answer does not turn on competing, and potentially variable, cost-benefit analyses, which will inevitably be influenced by personal preferences, of judges or scholars. Originalism is not necessarily more rights-protective than living-treeism ― though as prof. Penney shows, living-treeism isn’t always very rights-protective either. But originalism does hold out a promise of a constitutional law that is actually law-like, in that it is independent of the individuals who apply it. In the long run, this is not only valuable in itself, but arguably also more likely to protect individual rights in situations where doing so is likely to be seen as undermining important social objectives ― which after all is the whole point of constitutional rights protection.

Prof. Penney’s article is valuable because it attracts our attention to a number of serious problems affecting our constitutional law. On the one hand, there is problem of insufficient constraints on the imposition of “administrative” penalties, which the article decries. On the other, there are the twin problems of reliance on a blinkered version of history and on open-ended “living tree” constitutional interpretation that opens the door to consequentialist reasoning unconstrained by anything other than personal preferences, which the article exemplifies. Proponents of prof. Penney’s interpretive approach might say that my argument is contradictory, since it suggests that the constitution might not give us the resources to address the problem prof. Penney identifies. But if that is so, the solution is not to surreptitiously re-write the constitution under the guise of an interpretation that will only be adhered to by those who share the interpreter’s beliefs, but to amend it in a way that will be binding on all future interpreters, whatever their personal views.

Someone’s Got to Do It

Was the Supreme Court right to change the law on the right to a speedy trial?

In my last post, I summarized the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, in which the Court, by a 5-4 majority and over the vigorous disagreement of the concurrence, held that criminals prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by paragraph 11(d) of the Canadian Charter of Rights and Freedoms. (The deadline is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, 30 months otherwise.) This decision, I said, raises a number of significant questions regarding constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. I addressed the first of these questions in my last post, saying that while one aspect of the majority’s decision was clearly at odds with constitutional text, I am not sure that this is true of its main feature, the fixed presumptive ceilings. Here, I address the other questions.

* * *

I will start with the one on which I have a pretty firm view ― that which concerns the court’s decision-making process. The concurrence castigates the majority for having imposed its presumptive “ceilings” ― and thereby transformed long-standing understanding of paragraph 11(b) ― without having been asked to do so by the parties and without adversarial debate. It adds that there was limited evidence in the record about both the current state of affairs ― which the majority characterized as “a culture of delay” ― and about the potential consequences of the new approach. I think that these criticisms are justified.

There is no question that the majority’s decision is a fairly radical departure from the existing law. Indeed, the majority is clear that it wants to change the way all the actors in the criminal justice system operate, and that governments may well have to spend more to meet their new constitutional obligations. Whether or not this new departure is a good idea, and whether or not it is consistent with the Court’s constitutional role ― questions to which I will come shortly ― it should not have been taken lightly. And while I have no doubt that the majority did consider it seriously, I do not think that it has done enough. Given the magnitude of the change it was considering, and the fact that it was not canvassed by the parties in argument, the Court should, it seems to me, have re-opened the argument and invited the parties to make submissions that would have addressed its concerns. Indeed, I wonder if the Court could have invited Attorneys General, only one of whom (Alberta’s) intervened, to participate in the debate.

Alternatively, the Court could have decided the case on the basis of the existing framework (perhaps modified as suggested by the concurrence), and suggested ― in its reasons ― that it would, in a future case, be willing to entertain submissions on whether that framework should be overhauled in the future. This would of course have delayed the implementation of any proposed changes, but it would also have allowed for any decision on whether these changes are a good idea to be made on the basis of a record put together and tested by the parties, and not only of the majority’s own limited research.

Speaking of the the research, Michael Spratt points out that the majority “did not do what every elementary school student is taught to do — show his or her work.” He calls the majority’s framework “a product of judicial alchemy and … entirely unprincipled.” I would not go this far, but an opinion that doesn’t show its authors’ work makes them vulnerable to such charges. As I said here after the Court’s decision in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, “I am happy to assume that the Court did its work, but others may not be, and neither they nor I should have to take that on faith.” Sure, the reasons in Jordan are very long, but the majority could have produced some sort of annex to explain the results of its research much better than it has done. It is a question of transparency, and arguably even simple respect for the public over which the Court is exercising a considerable power.

* * *

Put these (significant) concerns about process to one side, and the question whether the majority was right to decide the case the way it did gets much trickier. Admittedly, I am not especially well qualified to answer it, so take what follows with a generous helping of salt. And admittedly, more qualified people have been quite critical of the majority decision in Jordan. Mr. Spratt is especially scathing, arguing that “[t]he Supreme Court’s latest decision pays lip service to the constitution while doing little to improve the pace of Canadian justice.” In a very well argued interview with Jim Brown, on the CBC Radio’s The 180, my friend Joanna Baron has defended “incrementalism,” in preference to the majority’s approach that risks allowing too much time for trials in provincial courts, and not enough in the superior courts. Lauren Heuser, in a National Post op-ed, calls “the ceiling on trial times … worryingly firm,” especially in that it prevents courts from making exceptions on account of the “the depravity of an offence.” She writes that “[m]ore than a few people will be uncomfortable when suspected perpetrators of serious crimes walk free on perceived legal technicalities.”

Ms. Heuser’s suggestion, at least, is easy enough to dispose of. The Charter does not speak of “a right to be tried within a reasonable time, except for those accused of depraved offences.” The Jordan majority is quite right to say that only the complexity of the legal or factual issues, rather than the gravity of the charge, can justify a prosecution taking longer to conclude. Those who think otherwise need to amend the constitution.

But the underlying critique ― that (relatively) firm ceilings are not an appropriate response to the problem of delay due to the infinite variety of the cases to which they will be applied is serious. I do not know nearly enough to reject it. But I would like to raise a question for those who endorse it. It is, quite simply this: what makes you think that a few tweaks to an approach that appears to have thoroughly failed are enough? Ms. Heuser writes that “[w]hile one can question whether this ruling was the best way to light a fire under Canada’s court system, few would dispute that a fire needed to be lit.” The Jordan concurrence does not seem to address the majority’s claim that the system suffers from a “culture of delay” directly ― which seems like a concession. The concurrence does argue that the majority’s radical approach is unnecessary, because the case isn’t even a close one under the old one, at least as modified in its opinion. But there remains the fact that both the trial court and the unanimous Cour of Appeal thought that the delay which the concurrence thinks is clearly unconstitutional was just all right. I share Ms. Baron’s general preference for incrementalism, but I’m not convinced that the time for incrementalism on this issue has not run out.

Now, that doesn’t mean that what the Supreme Court did was right. Just because something must be done, and x is something, it doesn’t follow that x must be done. But what other options were there? Mr. Spratt agrees that “[c]hange is indeed needed,” but insists that “we should hold little hope that a cynical judgment from the Supreme Court will change anything.” Well, maybe ― though I think it’s unfair to describe the majority opinion in Jordan as “cynical,” despite its flaws, and would be unfair even the majority is ultimately wrong. But while it is easy enough for a blogging defence lawyer to rail against the practices of police and prosecutors, and the policies of governments, and accuse the courts of complicity, such tirades, even if justified, hardly answer the question of what a court ought to do when it does recognize the existence of a problem, even if belatedly.

* * *

Sometimes, though, the answer to the question of what one is to do even in the face of a situation crying out action, is “nothing.” The courts’ role, like that of other institutions, is limited. The Jordan concurrence has suggested that numerical ceilings should only be imposed, if at all, by legislation. Ms. Baron is also of that view. The concurrence has also criticized the majority for overturning settled precedent. So has Ms. Heuser. Both these critiques amount to a contention that the majority overstepped the proper judicial remit. I am not persuaded of this.

I agree that the majority’s decision is essentially legislative. The fact that it felt the need to lay out a transitional framework underscores this ― transitional provisions are common in statutes, but almost unheard-of in judicial decisions. But that alone isn’t enough to show that it is not appropriate for a court to make such a decision. Some judicial decisions are essentially legislative: one that comes to mind is Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, in which the Supreme Court imposed a hard cap on the amount of damages that can be awarded for pain and suffering in personal injury cases. Pace such legal philosophers as Ronald Dworkin and F.A. Hayek, courts do on occasion introduce new rules of law that cannot be derived in any straightforward way from either legal principles or from the practices prevalent in society, and most people seem prepared to live with these decisions. Legislatures often accept them even when they could overturn them.

So it’s not enough to say that the Court effectively made new law and thus usurped the legislatures’ prerogative. And of course, even if the legislatures had enacted statutes to impose ceilings on delays in the justice system, the courts would still have the last word on these statutes’ constitutionality. Ruling on ceilings in the context of a constitutional challenge to a statute is almost certainly better from a process standpoint, as such a case would likely feature a substantial record of the sort that was missing in Jordan. But in terms of institutional legitimacy, it would not be that different. Indeed, such a ruling would come with complications of its own, because it would confront the courts with very difficult questions under section 1 of the Charter, which are avoided when, as in Jordan, the constitutional challenge is not aimed at a rule or regulation ― most fundamentally, about whether delays that are intolerable if produced by a “culture of delay” can be saved as “reasonable limits” to the section 11(b) rights, under section 1, by a legislative ratification.

Ultimately, though, the issue is not whether, in a perfect world, the legislatures would act to limit delays, and how the courts should respond to such legislation. Rather, the issue is that legislatures have done nothing at all to remedy the problem of unconstitutional delays. If, the lack of evidence in the record notwithstanding, it is the case that delays are endemic, and that there is a “culture of delay” ― which no one denies ― the issue is the existence of widespread and ongoing violations of the constitutional rights of thousands of people. These violations have to be remedied. Sure, it’s not the courts’ job to pursue policy objectives to which the elected officials fail to attend. But we’re not talking about mere policy here. Sure, courts should beware of disregarding procedural constraints because doing so undermines the Rule law. But doesn’t systematic disregard for the constitution undermine the Rule of Law too? If the governments will not bring themselves in conformity with their constitutional obligations, shouldn’t the courts try to make them? And if the courts do not, who will?

* * *

For all that, I am not certain that the Supreme Court got Jordan right. Its interpretation of the Charter is not beyond question; its procedural careless is disturbing; its chosen solution to what is admittedly a grave problem may be a bad one; and perhaps, all things considered, it should not have endeavoured to do more than mitigate that problem’s worst manifestations. But it is far from clear that this is so. There is more to be said in defence of the majority opinion in Jordan than most observers seem to think. Getting the government to comply with constitutional obligations is hard ― but someone’s got to do it.

Keeping Time, Time, Time

The Supreme Court changes the meaning of the right to be tried within a reasonable time

A couple of weeks ago, the Supreme Court issued a very important, and fairly radical, decision on the “right … to be tried within a reasonable time,” which paragraph 11(b) of the Canadian Charter of Rights and Freedoms grants to “any person charged with an offence.” In R. v. Jordan, 2016 SCC 27, a divided Court overturned precedent and introduced presumptive caps on the amount of time that can elapse before a trial no longer takes place “within a reasonable time.” This decision raises significant questions about the judicial role, especially in the face of inaction by other branches of government.

Mr. Jordan, along with a number of others, had been charged with multiple drug offences. His trial concluded a little over four years later, two months of which he spent in prison, and the rest under restrictive bail conditions. The trial judge found that while Mr. Jordan was responsible for four months of that delay, the prosecution was responsible for two more, while the rest ― more than two and a half years ― “was attributable to institutional delay” [15]. However neither the trial judge nor the Court of Appeal accepted Mr. Jordan’s argument that the delay was an infringement of his rights under par. 11(b) of the Charter.  This was notably so because Mr. Jordan was facing other charges and serving a separate sentence, with conditions more or less equivalent to those of his bail, while waiting for his trial, meaning that his liberty would have been restricted even without the delay in this case.

* * *

The majority opinion, co-written by Justices Moldaver, Karakatsanis, and Brown, with whom Justices Abella and Côté concur, treats Mr. Jordan’s case as symptomatic of “a culture of delay and complacency towards it” [29]. The existing rules for the application of par. 11(b), which involved assessing the reasonableness of the delay in a given case in light of its length, causes, and impact on the accused are too complicated and vague, causing “its application [to be] highly unpredictable” [32] and subjective. A focus on the prejudice the delay causes to the accused misses some of the less tangible harms delay produces, not least those to the administration of justice as a whole, and devalues the right to a speedy trial. Finally, the existing rules are “designed not to prevent delay, but only to redress (or not redress) it” [35]. The “culture of delay” must change,

[a]nd, along with other participants in the justice system, this Court has a role to play in changing [it] and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. [45]

The way in which the majority wants to play that role is by changing the applicable rules. As mentioned at the outset, the majority opinion introduces

ceiling[s] beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry), [46]

excluding any delay for caused or waived by the defence. The Crown can still show that exceptional circumstances outside of its control have arisen and that they explain ― and excuse ― a case taking longer than these timeframes, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but to do so they will need to demonstrate not only that the delay is “markedly” greater than reasonable, but also that they diligently sought to have the case heard sooner. (This test is reminiscent of that which Justice Moldaver applied in the Court’s recent decision in R. v. Vassel, 2016 SCC 26.)

The majority justified its decision by asserting that

[a] presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. [50]

In the majority’s view, its approach is simpler than the existing rules, and eliminates the undue focus on prejudice to the accused. The majority acknowledges that even the ceilings it imposes are “a long time to wait for justice,” but insists that they “reflect[] the realities we currently face,” [57] ― as reflected, it seems, in “a qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts” [106] ― while cautioning that the Court “may have to revisit these numbers and the considerations that inform them in the future.” [57] Ultimately, the majority hopes that its approach “will help facilitate a much-needed shift in culture,” [112] including

by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such. [117]

In its conclusion, the majority adds that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.” [140]

Applying its approach (including a transitional framework for cases already in the system prior to its ruling) to the facts of Mr. Jordan’s case, the majority finds that the delays that afflicted it were unreasonable. In the process, it castigates the Crown for not having had a plan for bringing the matter to trial expeditiously, and for doing “too little, too late” when it became aware of the problem.

* * *

The Chief Justice and Justices Cromwell, Wagner, and Gascon do not disagree with this conclusion. They too are of the view that the delay in this case was unreasonable. However, Justice Cromwell’s concurring opinion is sharply critical of the majority’s approach to par. 11(b), which it calls “both unwarranted and unwise.” [254] While it accepts that some revisions to the current framework are in order, it rejects the imposition of fixed ceilings on acceptable delays.

Drew Yewchuk summarizes the concurrence’s approach and exposes some difficulties with it in a post at ABlawg. Here I will briefly sum up Justice Cromwell’s critique of the majority opinion. Justice Cromwell argues that the majority’s approach will not be as simple to apply as the majority hopes, because “[t]he complexity inherent in determining unreasonable delay has been moved into deciding whether to ‘rebut’ the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.” [254]

As a matter of principle, the reasonableness of pre-trial delay “cannot be captured by a number; the ceilings substitute a right for ‘trial under the ceiling[s]’ … for the constitutional right to be tried within a reasonable time.” [147] Indeed,

The proposed judicially created “ceilings” largely uncouple the right to be tried within a reasonable time from the concept of reasonableness which is the core of the right. The bedrock constitutional requirement of reasonableness in each particular case is replaced with a fixed ceiling and is thus converted into a requirement to comply with a judicially legislated metric. This is inconsistent with the purpose of the right, which after all, is to guarantee trial within a reasonable time. Reducing “reasonableness” to a judicially created ceiling, which applies regardless of context, does not achieve this purpose. [263]

No foreign jurisdiction imposes numerical guidelines for speedy trials either. As for the majority’s approach to cases where trial is completed with the 18- or 30-month limit, it is “a judicially created diminishment of a constitutional right, and one for which there is no justification.” [264]

Each case must be decided separately, based on its own circumstances ― including, to some (limited) extent the prejudice to the accused, as well as society’s interest in the prosecution. The creation of definite ceilings is a legislative task, and it should be accomplished, if at all, by legislation. Besides, there is no evidence to support the majority’s approach, and it was neither put forward by any of the parties nor “the subject of adversarial debate.” [147] Nor was the majority’s assessment of the jurisprudence subject to scrutiny by the parties. The impact of its decision is unknown, but “[f]or the vast majority of cases, the ceilings are so high that they risk being meaningless,” thus “feed[ing] … rather than eliminat[ing]” [276] the culture of delay that the majority is concerned about, while for a small but significant minority, the ceilings risk proving too rigid, leading to stays being entered in the most important prosecutions.  

* * *

There are many questions to be asked about this case. They concern the constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. Since this post is already very long, I will only briefly address the first one here, and put off the other three to a separate discussion, which I hope will follow… in a reasonable time.

What I mean by the constitutionality of the majority’s decision is its consistency with the Charter’s text. The concurrence effectively argues that the constitutional text requires treating reasonableness as a standard and prohibits translating it into a bright-line rule. (Notice, though, that Justice Cromwell doesn’t quite put the point in this way: he says that the majority’s approach is inconsistent with “purpose of the right” ― consistently with the Supreme Court’s tendency to treat constitutional text as secondary, at best, to the “purposes” it is deemed to implement.) The majority, it seems to me does not make much of an effort to address this argument.

I am not sure who is right, to be honest. The idea of reasonableness does indeed normally refer to a standard, not a rule. But ― precisely for that reason ― the constitutional text that entrenches this standard calls for judicial elaboration or, as modern originalists would say, construction. In other words, the constitutional text itself does not give answers to the questions that arise in the course of adjudication. It must be supplemented by judicially-developed doctrines. The question is whether the courts can make numerical rules part of their doctrines. (And it really is only part; the majority is probably right to say that the concurrence somewhat overstates the degree to which the test a numerical one.) Or is it simply inconsistent with the meaning “reasonableness”? Again, I am not sure, but I do not think that the matter is as clear as the concurrence suggests. The fact that reasonableness requirements have not been construed in this way so far, in Canada or abroad, is significant, but hardly dispositive. It really is too bad that the majority does not address this issue.

In my view, however, the concurrence is pretty clearly right that the majority’s approach to cases that fall below its ceilings is a departure from constitution text. The text provides a right “to be tried within a reasonable time” ― not a right “to be tried within a time that is not markedly unreasonable provided that one has been diligent.” Presumably the majority introduce these additional requirements in order to incentivize defence counsel to contribute to the cultural change which it seeks. But while understandable, this motivation cannot justify an obvious inconsistency with the constitutional text.

That said, the issues of whether there can and ought to be a “ceiling” above which the burden of proof shifts to the Crown, and just what ought to happen below that ceiling, are distinct. It may be that the majority is right about the first even if it is wrong about the second.

All right. That’s quite unreasonable already ― for now.

Not Such a Simple Thing

A divided Supreme Court expands the powers of search incident to arrest

A couple of weeks ago, the Supreme Court issued a decision, R. v. Saeed, 2016 SCC 24, that was further evidence of its majority’s expansive views of the police’s powers of search incident to arrest ― and trust in judicially developed checklists to prevent the abuse of these powers. Meanwhile, by writing an opinion which, although concurring with the majority in the result, rejected its approach, Justice Karakatsanis confirmed her role as the Court’s leading ― if only in dissent ― privacy-protecting voice. To that extent, the case was a reprise of the Court’s earlier decision in  R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, where it considered the powers of the police to search an unlocked cell phone incident to arrest. (I commented on that case here.)

The issue in Saeed, was whether the police could conduct a penile swab on a man arrested on suspicion of sexual assault (or effectively force him to do it for them) in order to obtain the victim’s DNA ― without a warrant. In an opinion by Justice Moldaver, a seven-judge majority answered that question in the affirmative. Justice Karakatsanis disagreed, but would have admitted the evidence under section 24(2) of the Charter. Justice Abella dissented, endorsing Justice Karakatsanis’ approach to the main issue, but being of the view that the evidence was not admissible.

The friend of a victim of a brutal sexual assault having pointed to Mr. Saeed as the perpetrator, the police arrested him. Some time later, having concluded that a penile swab would potentially uncover useful evidence, the police placed Mr. Saeed, fully clothed, “in a dry cell, with no toilet or running water, to preserve the evidence. Mr. Saeed was handcuffed to the wall to prevent him from licking his hands or otherwise washing away evidence,” [18] for 30 or 40 minutes. Eventually, Mr. Saeed took the swab, under the direction of two male police officers, who were the only persons present. “The procedure took at most two minutes.” [25]

* * *

Justice Moldaver begins his reasons by asserting ― without much of an explanation ―  that “perhaps more than any other search power,” the “ancient and venerable power” of search incident to arrest “is used by the police on a daily basis to detect, prevent, and solve crimes.” [1] This power extends, he concludes, to the taking of a penile swab, although he “agree[s] that the common law power of search incident to arrest must be tailored to protect the enhanced privacy interests involved.” [42]

Despite the privacy implications, the taking of a penile swab is not, in Justice Moldaver’s view, analogous to that of a bodily sample ― which cannot be carried out as a search incident to arrest. The swab does not reveal information about the arrested person’s body ― it aim is to find the DNA of the complainant. It is also not particularly invasive ― or at any rate less invasive than the taking of dental impressions. Finally, the material it serves to collect can be removed quite quickly, whether deliberately or accidentally.

Justice Moldaver emphasizes the usefulness of collecting this material for prosecuting sexual assaults ― or indeed for exonerating an innocent suspect.  “This type of evidence,” he points out, “is highly reliable. It can be crucial in the case of complainants who are unable to testify, such as children, adults with disabilities, or those who have died or suffered serious injuries as a result of the offence or otherwise.” [59] For this reason, to require consent for a penile swab ― as the United Kingdom does ―  “effectively disregards the interests of victims of sexual assault … and all but ignores the public interest in bringing sexual offenders to justice.” [61] As for requiring a warrant, obtaining one takes time ― hours perhaps ― and thus involves “leaving accused persons to wait for an indefinite period in an uncomfortable and potentially degrading position,” “handcuffed without access to water or toilet facilities … in order to preserve the evidence.” [65]

Justice Moldaver cautions that a penile “swab must be truly incident to the arrest, in the sense that the swab must be related to the reasons for the arrest, and it must be performed for a valid purpose” [74]; that there must be reasonable grounds for conducting one; and that it must be conducted in a reasonable manner, to which end he supplies a list of 10 “factors” or guidelines, admonishing the police to proceed expeditiously, to explain the procedure to the arrested person, to respect his privacy to the extent possible, and to keep records. In Mr. Saeed’s case, the police acted consistently with these guidelines, and the evidence they collected is, accordingly, admissible.

* * *

As she had done in Fearon, Justice Karakatsanis takes a much narrower view of the power of search incident to arrest. She is much more concerned about the privacy interests of the accused, and more skeptical of the ability of courts to prevent abuses by supplying guidelines for the police.

For Justice Karakatsanis, a genital swab (notice, by the way, the gender-neutral terminology she uses, in contrast to Justice Moldaver) are no different from “mouth swabs, dental impressions and hair samples [which] cannot be taken as part of searches incident to arrest because they represent too great an infringement of bodily integrity and affront to privacy and dignity.” [99] Indeed,  “[a] swab of the genital area is far more damaging to personal dignity and privacy than a swab of the inside of the mouth or a pluck of hair from the head,” [101] and this is especially the case for a woman. That a genital swab doesn’t serve to collect information about the individual on whom it is conducted does not matter. The affront to the person’s dignity is the key consideration. However, whatever its purpose, “an effect of the seizure is to put the individual’s DNA in the hands of the state.” [104]

Justice Karakatsanis also notes that “if there is no lawful means by which the police could collect the evidence, ever,” ― and there may not be such means to collect the evidence yielded by a genital swab, as it is not clear that a warrant to collect it can be lawfully issued under the Criminal Code

it would not matter how long the evidence lasts.  Nothing would be lost when the evidence disappeared — no state interests would be compromised —because even if the evidence had survived, the police would have had no lawful authority to collect it. [108]

Further, Justice Karakatsanis argues that although it is not clear that it is actually necessary to handcuff a person in a dry cell in order to preserve the evidence while waiting for a genital swab, if it is,

this necessity could not be used to justify the greater affront to dignity that a genital swab would represent.  One indignity cannot justify another.  It would be ironic indeed if [section 8 of the Charter] did not protect individuals from the indignity of genital swabs precisely because it protects them from the indignity of detention in dry cells. [113]

Finally, Justice Karakatsanis is unconvinced that judicially developed safeguards can effectively protect the privacy interests of all those who may come into contact with the police ― and not only the subset of suspects who will be charged and thus have an opportunity to seek to exclude evidence against them. If Parliament wants to authorize genital swabs by statute, it can do so, but the common law power of search incident to arrest does not extend so far.

Justice Karakatsanis ultimately agrees that the evidence against Mr. Saeed should be admitted, because its admission does not bring the administration of justice into disrepute, not least because “the law on this issue was unsettled at the time of this seizure and the police acted on their understanding of the law.” [129] Justice Abella, who agrees with her section 8 analysis, does not agree with this and dissents.

* * *

For my part, I’m inclined to agree with Justice Karakatsanis. She is right that the distinction which Justice Moldaver draws between the swab at issue here and the taking of other bodily samples ― that the penile swab does not yield, or rather is not intended to yield, the DNA of the person on whom it is performed rather misses the point of the prohibition on taking bodily samples. I also think that she is right to focus on preventing unconstitutional infringements of privacy, and right that this is best accomplished by having clear prospective rules, and not lengthy checklist to be applied, if at all, by judges after the fact. Beyond these specific points, I am concerned by the expansion of the power of search incident to arrest ― including to cases where, as here, those searches take place many hours after the arrest, in the secure confines of a police station rather than in the unpredictable environment in the field. It hardly needs to be said that Justice Moldaver’s paean to that “venerable” power does nothing to soothe my worries.

I will end with a couple of thoughts about judging. It is sometimes suggested, in the heat of controversies about the judicial system’s handling of cases of sexual assault, that male judges systematically fail to empathize with the victims, leading to perpetrators getting off the hook. There is no denying that this sometimes happens. But Saeed shows that one should be careful with generalizations. Here, the Court’s five men sign on to an opinion overtly driven, in significant measure, by concerns about the difficulty of prosecuting sexual assaults. Two of the women members of the Court, by contrast, dissent from their approach, in the name of respect for privacy rights.

No doubt, a judge is influenced in part by his or her background and personal experiences. But that influence is surely more complex than a reflex that causes women to react in one way and men in another. Nor is background the only thing that influences a judge. Adjudication, even in cases involving sexual assault, should not be seen through the lens of a zero-sum battle of the sexes ― unless, of course, a specific judge gives us cause to do so in a specific case. Unless the evidence leads us to the opposite conclusion, we should treat judges as thinking human beings ― apt err sometimes, perhaps often ― but thinking all the same, and not mere automatons.

How To Do Constitutional Adjudication

Some thoughts on Asher Honickman’s take on the judicial role

As I mentioned in my previous post, I would like to respond to a number of points that Asher Honickman makes in a very interesting ― albeit, in my view, misguided ― essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law. In the last post, I responded to Mr. Honickman’s critique of the Supreme Court’s jurisprudence relating to section 7 of the Charter. Here, I want to consider his approach to the role of courts more generally. Mr. Honickman, as I previously explained,

tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake.

I have considerable sympathy for the attempt, but I am not sure that it is successful. At a very general level, I have no quarrel at all with waht Mr. Honickman describes as “the common-sense proposition that the Constitution should be interpreted based on what it actually says, not what some might wish it would say.” The devil, as usual, is in the details.

One issue Mr. Honickman raises is the relaxation of the stare decisis principle in constitutional cases, whereby the Supreme Court is willing, as it explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, not only to reconsider its own precedents, but also to allow lower courts to do so in response to changes in the legal background or the “social, political and economic assumptions underlying” these precedents. This is indeed a valid concern. As Lon Fuller and other Rule of Law theorists point out, the law must be stable, because if it changes too easily or too often, people will understandably no longer pay much heed to it, and it will cease playing its role of guiding action. Yet against that, we must also consider the possibility that legal rules will cease commanding respect if they are understood to be based on legal, moral, or empirical foundations weak from the moment they were laid, or eroded over time. I am not quite sure what the right solution to this conundrum is. I am a bit skeptical, for instance, of the Supreme Court’s choice to allow lower courts to actually depart from its precedents, as opposed to merely suggesting that it do so on appeal. But there is certainly more to be said for allowing departures from stare decisis than Mr. Honickman allows.

Mr. Honickman is also concerned that judges venturing into the realm of moral issues and “social policy” will, on the one hand, make them appear to be political actors and lead to a politicization of judicial appointments, and on the other, deter legislators “from tackling politically sensitive issues, preferring instead to punt them to the unelected and unaccountable judiciary.” The flippant answer to this is that this particular ship has sailed a long time ago. The less flippant one is that law generally, and constitutional law in particular, contains an ineradicable moral and ideological element, so that there is nothing wrong with perceiving judges as being ― in part ― moral agents and political actors. Mr. Honickman wishes to remove morality, policy, and politics from section 7 jurisprudence, but even if he were successful in that, I doubt that he could eliminate them from, say, decisions about state neutrality and accommodation of religion under section 2(a) of the Charter, or reasonableness of police searches under section 8, or equality under section 15. For better and for worse, the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Besides, as I have argued here, we know that even when it comes to non-justiciable rules, politicians can fail to take the constitution into account at all. Judicial circumspection in the interpretation of justiciable constitutional provisions would not help politicians grow a backbone and take constitutional rights and principles seriously. Mr. Honickman is right that legislatures have more resources to deal with issues of policy, and are more representative of the popular opinion on matters of morality, than the courts. Yet all too often they fail to make use of this advantage. What I have referred to here as “democratic process failures” ― cases of “persistent inability of that process to produce laws that majorities would agree with and find desirable” ― occur with some regularity in democratic polities, while political ignorance, which can result in elected officials ignoring issues altogether or addressing them in ways that serve their own interests rather than the electorate’s is pervasive. Arguments to the effect that courts should act this way or that because, if they do so, politicians will behave better reflect hope rather than experience.

None of this amounts to a suggestion that judges should approach constitutional cases in any particular way. As I say above, I share Mr. Honickman’s concerns about judicial subjectivity and about an inflationary interpretation of constitutional texts that divorces constitutional law from the rules that actually were enacted through the democratic process. Judges are not angels. They are human beings, exercising power over other human beings (whether in their individual or collective capacities), and this power should be limited and subject to law like any other. This law should indeed be stable ― but it should also not be divorced from reality, and how to balance these two constraints is a very difficult question. Morevoer, if judges are to interpret the constitution in accordance with what actually says and not what we wish it to say, as Mr. Honickman rightly proposes, then they should not shy away from making the moral judgments constitutional text requires. And while we err dangerously in regarding judges as angels, we err too in not noticing the less-than-angelic behaviour, or indolence, of our legislators. Our approach to judicial review of legislation, whatever it is, should account for these realities.