Which Principles? What Politicization?

A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada

In a blog post over at Advocates for the Rule of Law (and in a previous version at À qui de droit), my friend and sometime guest Maxime St-Hilaire argues that

The greatest challenge facing the Supreme Court of Canada is the risk of its politicization, understood … as a form of adjudicative practice that is not governed by legal rules, legal principles, or other legal norms and that does not restrict itself to deciding justiciable questions.

Whether or not “politicization” is the best possible label for this sort of adjudication, and whether or not it is the greatest challenge facing the Supreme Court ― both plausible but debatable propositions ― I agree that the danger Prof. St-Hilaire identifies is a serious one. It is a challenge, moreover, not only for the Court, or even the judiciary as a whole, but for the legal profession, which is too readily supportive of adjudication that does not abide by the requirements of the Rule of Law.

However, precisely because this is a very serious issue, it is important to be careful in circumscribing it ― not to accuse the Supreme Court of being “political” or disregarding the Rule of Law when it is not. And here, I part company with Prof. St-Hilaire to some extent. Some of the specific instances of politicization that he identifies are indeed examples of the Court failing to act judicially or to uphold the law. Others, in my view, are not.

I agree with Prof. St-Hilaire’s criticism of the Supreme Court’s theoretical embrace of living constitutionalism in theory ― and its practical embrace of interpretive eclecticism with few if any principles to constrain cherry-picking interpretive approaches. If, in other jurisdictions, there is such a thing as a “law of interpretation” (to borrow the title of a recent article by William Baude and Stephen E Sachs), constitutional interpretation in Canada seems to be largely lawless, as most recently highlighted by Benjamin Oliphant. Indeed, I would go further than Prof. St-Hilaire (if I understand him correctly), and argue that judges ought to be originalists in order to uphold the principles of the Rule of Law and constitutionalism, because, as Jeffrey Pojanowski argues,

if one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms.

I share Prof. St-Hilaire’s unease at the Supreme Court’s often unprincipled practice of suspending declarations of invalidity of legislation. While I once argued that this device had some redeeming virtues, the Court’s failure to articulate and apply coherent principles for deploying it nullifies these virtues. As things currently stand, the Court’s approach to suspended declarations of unconstitutionality is yet another manifestation of the sort of uncabined discretion that is antithetical to the Rule of Law.

I also agree with Prof. St-Hilaire that the Supreme Court’s approach to review of allegedly unconstitutional administrative decisions under the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 is a “denial of constitutional justice”. (That said, it is worth noting that the Court’s application of this framework is a mess, and it might matter less than the Court itself suggests ― though is a Rule of Law problem in its own right.) And I agree with Prof. St-Hilaire’s criticisms of the Court’s approach to s 15 of the Canadian Charter (including because it is flatly inconsistent with its original meaning, as Justice Binnie, among others, openly recognized).

Now on to some of my disagreements with Prof. St-Hilaire. Some of them we have already canvassed at some length. I remain of the view (previously expressed here) that judges can, in appropriate cases, criticize the legitimacy of their colleagues’ adjudicative techniques. Indeed, I am puzzled by prof. St-Hilaire’s insistence on the contrary. Can a judge who agrees with his critique of the Supreme Court not say so? I also remain of the view, that courts can, subject to usual rules on justiciability, pronounce on constitutional conventions, which are not essentially different from legal rules. I most recently expressed and explained this view in a post here criticizing the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, and in this short article for a special issue of the Supreme Court Law Review.

New, to this space at least, is my disagreement with Prof. St-Hilaire on the scope of the doctrine of res judicata and the force of stare decisis. Prof. St-Hilaire accuses the Supreme Court of “conflating the two principles”, and of playing fast and loose with both. In his view, stare decisis is about “the general/indirect jurisprudential authority of judicial reasons”, while res judicata concerns “the particular/direct authority of judicial decisions per se, and taken separately”. When the Supreme Court upheld the constitutionality of the criminalisation of assisted suicide in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, that rendered the matter res judicata, and should have prevented the courts, including the Supreme Court itself, from revisiting the matter, as they eventually did in Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331. More broadly, the Supreme Court has been too cavalier with precedent, in particular in the area of labour law.

I agree with Prof. St-Hilaire that the Supreme Court has in some cases ― especially those concerning the purported constitutional rights of labour unions ― disregarded precedent without any compelling reason to do so. For reasons best explained, I think, by Jeremy Waldron, a fairly robust version of stare decisis is an important component of the Rule of Law. However, in my view, prof. St-Hilaire takes this point much too far. For my part, I am content to accept the Supreme Court’s explanation in Canada (Attorney General) v Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 SCR 477 that “res judicata … require[s] that the dispute be between the same parties”, as well as on the same issue, while stare decisis is the broader ― and more flexible ― principle that applies “when the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata“. [25] This is not merely a terminological dispute. The point is that courts should be able to reverse their own decisions, albeit with the greatest circumspection.

Without fully defending my views, I would argue that the criteria set out in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 are a sound guideline, provided that they are rigorously applied (which they were not in the labour union cases). Precedent, the Court held,

may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [42]

I think this is right, because while the stability of the law, its diachronic coherence, is very important, the law’s consistency at any given time point, its ability to remain a “seamless web”, or synchronic coherence, is important too, and also a requirement of the Rule of Law. These two dimensions of legal coherence are in tension, and sometimes in conflict, and I think it is a mistake to say, as I take it Prof. St-Hilaire does, that diachronic coherence must always prevail. Perhaps more controversially, I am inclined to think that there is also a case to be made for the proposition that the Rule of Law can accommodate, if it does not positively require, departures from precedent that serve to make the law make sense in light of changed circumstances and evidence. The ideas of non-arbitrariness and congruence between the law on the books and its real-world application at least point in that direction, though the argument would be worth developing in more detail.

I will end where Prof. St-Hilaire begins: with judicial appointments. (Of course, the process of appointment is not part of adjudication. But it makes sense to consider it in a discussion of the danger of the politicization of the Supreme Court, even though it doesn’t fit within Prof. St-Hilaire’s definition of that term.) Prof. St-Hilaire criticizes the inclusion of “parliamentary consultation” in the appointment process, and I agree with him to that extent. However, I do not share the main thrust of his comments, which is that we need to move “from more political criteria to increasingly professional criteria in the selection of” Supreme Court judges. Political control over judicial appointments is an important check on the power of the courts, as well as an indispensable means to inject some much needed ideological diversity into the judiciary. The current judiciary and legal profession are too homogeneous ― in their thinking, not (only) their skin colour ― for a “professional” appointments process to produce a judiciary that does not all believe the same pieties (including pieties about living constitutionalism and other things that Prof. St-Hilaire criticizes!). That said, since politicians should have the responsibility for judicial appointments, it is also politicians who should be held accountable for them. As Adam Dodek has suggested, the Justice Minister who should appear before Parliament to explain the government’s choice of Supreme Court judges ― but not (and here, I take it, I part company with prof. Dodek) the new judges themselves.

I share Prof. St-Hilaire’s view that “the Supreme Court must choose principle over politicization”. I am looking forward to the Runnymede Society’s forthcoming conference at which this call will no doubt be much reiterated ― including by yours truly. That said, though it reflects a nice sentiment, an appeal to principle over politics does not tell us very much. It leaves open both the question of what principles one should adopt, and of counts as objectionable politicization rather than mere good faith error. Prof. St-Hilaire and I disagree about that to some extent, as I have endeavoured to show. The debate must, and will, continue, and we should have no illusions about settling it with high-minded slogans.

Where Is the Grass Greener?

In a recent article in Constitutional Forum, Peter Russell argues that Canada needs to imitate New Zealand by creating a Cabinet Manual that would, notably, contain an authoritative although not legally binding statement of the principal constitutional conventions, especially those that regulate the formation of governments. While this would, in prof. Russell’s view, have a number of benefits ― “[a] Cabinet Manual”, he writes, “can be a quietly evolving instrument for reforming the ‘unwritten’ part of our constitution” and increase political accountability ―  “the biggest benefit a Cabinet Manual would yield for our society is to increase the knowledge of citizens about how
they are governed” (98).

Meanwhile, in New Zealand itself, a former Prime Minister and inveterate constitutional reformer, Sir Geoffrey Palmer, is campaigning, together with one of the country’s leading lawyers, Andrew Butler, for the enactment of a codified constitution that would eliminate conventions altogether. A major reason they cite for their effort is New Zealanders’ ignorance of their constitution ― which the Cabinet Manual lauded by prof. Russell has apparently done nothing at all to dispel. (Note, however, that their proposed constitution would require the publication of updated versions of the ― presumably slimmed down ― Cabinet Manual every six years (s 25).) A codified constitution, by contrast, will do wonders to rectify this sorry state of affairs

Prof. Russell does not really explain how the existence of a Cabinet Manual will bring about the “increase [in] the knowledge of citizens about how they are governed” that he anticipates. He provides no evidence of its having done so in New Zealand, although he does confidently assert that “[m]aking the Cabinet Manual available on the internet was a giant step in increasing the constitutional literacy of New Zealanders” ― mostly, it seems, thanks to the wonders of hypertext. If Sir Geoffrey and Dr. Butler (as well as many of my colleagues here in New Zealand) are to be believed, prof. Russell is simply wrong.

For their part, Sir Geoffrey and Dr. Butler do not really explain how the codification of constitutional rules will change anything to the citizens’ ignorance of and lack of interest in these rules. They hope that a codified constitution that dispenses with conventions “will educate people and public decision-makers on their rights and responsibilities … and provide a better framework for learning about civics” (25). But they provide neither evidence that this can happen, nor examples that it has. Canada and Australia, with their partly codified and partly conventional constitutions, would seem to offer perfect natural experiments that can test their assertions: if Canadians and Australians are more knowledgeable or better educated about federalism, which is codified in their respective constitutions, than they are about responsible government, which is not, then Sir Geoffrey and Dr. Butler are right. Otherwise ― and although I have no empirical evidence, it seems to me that it is indeed otherwise in Canada ― they too are simply wrong.

In fact, the idea that an authoritative text ― whether legally binding or merely informative ― telling people “how they are governed” is going to achieve much of anything to educate citizens on this admittedly crucial issue is naïve. Consider the situation in the United States, with its revered Constitution (and, let us note, a very short constitution in contrast to the 40-page one that Sir Geoffrey and Dr. Butler are proposing, never mind the length of a Cabinet Manual). As Ilya Somin reminds us, “[p]ublic ignorance” there

also extends to the basic structure of government. A 2006 poll found that only 42 percent can even name the three branches of the federal government: the executive, the legislative, and the judicial. There is also much ignorance and confusion about the crucial question of which government officials are responsible for which programs and issues. (164-65)

Neither prof. Russell nor Sir Geoffrey and Dr. Butler explain how their proposals will ensure that their respective countries will avoid the fate of the United States. Prof. Somin, by contrast, does have an explanation for the phenomenon that he observes, which is that

[f]or most people, political ignorance is actually rational behavior. If your only incentive to follow politics is to be a better voter, that turns out not to be much of an incentive at all, because there is so little chance that your vote will actually make a difference to the outcome of an election. … For most people, it is rational to devote little time to learning about politics, and instead to focus on other activities that are more interesting or more useful. (166)

No Cabinet Manual, and codified constitution, can change that. But unless they recognize this fact, well-meaning reformers are bound to think, with no particular justification, that whatever system they have must be responsible for the public’s ignorance of the constitutional basics, and that whatever system some other country has must be the solution to the problems they see in theirs. So Canadians will propose imitating New Zealand, while New Zealanders will want to imitate, and indeed go further than, Canada. Yet while the grass may always be greener on the other side of the Pacific Ocean, the putrid flowers of political ignorance bloom on both.

A Bad Case

As promised, here are some thoughts on the Memorandum of Fact and Law that the federal government’s lawyers have filed in response to Aniz Alani’s challenge of the Prime Minister’s policy of not appointing Senators. (I had previously canvassed what I thought ― mostly, but not entirely, correctly ― would be the main issues in this case here, and commented on the Federal Court’s decision rejecting the government’s motion to strike here.) Full disclosure, before going any further: I have spoken to Mr. Alani about this case, and made some comments on the draft of his own Memorandum of Fact and Law. Whether this makes me biased, you be the judge.

The government makes four arguments for dismissing Mr. Alani’s challenge. First, it says that he does not deserve to be granted public interest standing to pursue it. Second, the claim is, in its view, non-justiciable, because it requires the court to enforce a constitutional convention. Third, even if justiciable, the issue is not within the jurisdiction of the federal court. And fourth, when it comes to the actual merits, the Prime Minister has “broad discretion” as to the timing as well as the contents of his advice.

Note what’s missing here: an actual claim that s. 32 of the Constitution Act, 1867 doesn’t require the appointment of Senators. It’s blindingly clear that it does, and much of the government’s argument is devoted to directing the Court’s attention away from this simple truth. That said, all truths are not to be told by courts generally, and by the Federal Court of Canada specifically, and the government’s arguments on justiciability and, perhaps especially, jurisdiction are serious, albeit presented in a rather misleading way.

The standing argument is more difficult to take seriously. The test for granting a person public interest standing (i.e. the ability to pursue a claim that has no impact on his or her own legal rights) is explained in the Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. There must be a serious justiciable issue ― a point that is treated separately in the government’s submissions (and presumably always will be if it is a live issue in a case, which makes me wonder whether it even should be treated as part of the standing inquiry). The claim must be a reasonable and effective means of getting the issue before the courts. This is normally the most contentious part of the test, but here, the government’s submissions have little to do with the usual inquiry into the existence of alternative ways of getting the issue litigated. They focus, rather, on the other element of the standing test, which asks whether the claimant has a genuine interest in the issue. The government makes much of the the fact that Mr. Alani hadn’t taken an interest in the question of Senate vacancies for any length of time before launching his application. In its submission, this makes him “a ‘busybody’ as the term is defined in the jurisprudence,” [39] a person who doesn’t really care about the issue, and thus undeserving of representing the public interest.

This argument is really beside the point, however. The policy of not appointing Senators is new and unprecedented. Nobody can have demonstrated a long-standing interest in it, because it did not exist, or at least hadn’t been publicly announced, until last winter. Mr. Alani became interested in it as soon as it was possible for anyone to do so. The government’s argument amounts to a suggestion that nobody can bring a public interest court challenge to an unconstitutional government policy for some undefined time after it is put in place, because doing so makes the claimant a “busybody.” This is absurd. As for Mr. Alani himself, right or wrong, he has made a difficult argument very seriously; he has invested a considerable amount of time and effort into it; he doesn’t just come to court with a vague sense of grievance; he has also, I have argued, taken his role as a (self-appointed) representative of the public with more seriousness than most public-interest litigants, or for that matter the government itself, tend to do. In the absence of any other, more effective, vehicle for getting the issue adjudicated, his challenge deserved to be addressed substantively, and not dismissed for lack of standing.

The government’s argument on justiciability is that Mr. Alani “seeks … judicial enforcement of the Prime Minister’s role in Senate appointments.” [45] Courts, according to orthodox constitutional theory, are not in the business of enforcing constitutional conventions, and thus they should not adjudicate Mr. Alani’s claim. Nor is the Supreme Court’s recognition in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, of the existence of a “constitutional architecture” enough to make conventions justiciable.

As I have indicated above, I think that the justiciability issue is a serious one, but not exactly for the reasons the government suggests. Indeed, I think that it is somewhat misleading to describe Mr. Alani’s claim as seeking the enforcement of a convention. Convention says that the Governor General appoints Senators on the Prime Minister’s advice, and not on his own initiative. It eliminates the discretion that the text of the Constitution Act, 1867 seems to give to the Governor General. If the Governor General decides to appoint Senators on his own, without waiting for the Prime Minister’s advice, and the Prime Minister tries to block those appointments, that would indeed be an attempt to enforce a convention. What Mr. Alani is asking for is something else. He wants the Prime Minister to be told that he must advise the Governor General ― not the Governor General to be told that he must follow the Prime Minister’s advice. The duty Mr. Alani is asking the court to enforce is not the Governor General’s, but the Prime Minister’s.

This is, admittedly, a novel claim, and it raises two issues: does the duty in question exist at all, and if so, what is its nature? Contrary to the government’s submissions, I think that the notion of constitutional architecture is pertinent here. The architecture of our system of responsible government involves an advice-giving Prime Minister (in some situations, including Senate appointments) and cabinet (in others). When the relevant actors are refusing to give advice to the Governor General, they are undermining this architecture. This is particularly so when the advice in question is necessary for the Governor General to legitimately perform a clear constitutional duty, such as the appointment of Senators. For this reason, I think that it is quite clear that the Prime Minister does indeed have a duty to advise the Governor General to make Senate appointments. And, while this is less clear, I think that taking the notion of constitutional architecture seriously requires us to conclude that this duty is indeed a legal one.

The federal government’s strongest argument, in my view, is the one about the jurisdiction of the Federal Court, which is only empowered to review decisions of bodies acting pursuant to an Act of Parliament or a Crown prerogative. The government contends that the Prime Minister, in his advice-giving capacity, is not such a body. The heart of Mr. Alani’s argument on this point is his submission that

[i]In the case of Senate appointments, the Governor General enjoys the Crown prerogative power to summon and receive advice from the Prime Minister. The Prime Minister, in turn, has jurisdiction to advise “by a prerogative of the Crown.”

The government’s response is that “[t]he advice is simply provided pursuant to a constitutional convention” [75] ― otherwise, it says, the advice would be binding on the Governor General.

I think this is a difficult question. On the one hand, it’s not obvious to me that if the Governor General has the prerogative to summon advisers and receive and advice (as he does), the advice he receives is given “by” that prerogative. On the other, I think the government is wrong to claim that the non-binding nature of the advice shows that it is strictly conventional in nature. Convention that makes the advice binding, but it does not follow from that that the advice itself is given pursuant to a conventional, rather than a legal obligation. Indeed, as I suggest above, I believe that the Prime Minister does have a legal obligation to provide advice on Senate Appointments ― but again, I’m not sure that this is enough to make this advice into one given “by a prerogative of the Crown,” rather than a duty directly imposed by the constitution, over which, as the government argues, the Federal Court would lack jurisdiction (so that Mr. Alani would have to bring a new case in a provincial superior court if he wants the matter adjudicated).

Finally, on the substantive issue in Mr. Alani’s challenge, the government argues that the remedy he seeks, namely a declaration that Senate vacancies must be filled “within a reasonable time” is too vague to be granted, and that there is no constitutional convention limiting the time a Prime Minister can take to recommend an appointment. The matter is one in which the Governor General (and, presumably, the Prime Minister) has a “wide discretion.” [89]

One thing that comes to mind in response is Justice Rand’s famous statement in Roncarelli v. Duplessis, [1959] SCR 121, that “In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator.” (140) The context is not quite the same ― we’re not talking about economic regulation or even administrative law, but the warning is apposite. The Governor General does, undoubtedly, have some discretion, perhaps wide discretion, in complying with s. 32 of the Constitution Act, 1867, because a Senate appointment is, or should be, a serious political decision which may reasonably take some time. But this discretion cannot be abused in every which way a Prime Minister thinks expedient.

And, once again, the government’s emphasis on (non-existent) conventions is rather beside the point. The issue here is not that some one vacancy has gone unfilled for too long. It is that the Prime Minister has announced a policy of not filling them at all. If the existence of a constitutional convention cannot overturn clear constitutional text, then surely the non-existence of a convention cannot do so either. Yet that is exactly the government’s contention: no convention specifies how quickly s. 32 must be complied with, therefore s. 32 need not be complied with at all. This too is absurd.

When a court finally reaches the merits of Mr. Alani’s claim, it ought to rule in his favour. The government’s substantive submissions are feeble ― not because its lawyers are bad, but because its case is. But whether the Federal Court is the court that can address the merits of this case is a difficult question, to which I am unable to suggest a definitive answer.

Continuing the Conventions Conversation

Yesterday, I suggested that we may be in the midst of a change in the conventions pertaining to the formation of government after an election that results in what the British call a “hung Parliament” ― one in which no party has a majority of seats. Traditional convention allows the incumbent government to remain in office and to “meet” the House of Commons to see if it can obtain the House’s confidence. But all the major federal party leaders are on record saying that it is, instead, the party with the largest number of seats that should govern (so Stephen Harper) or at least have a “first shot” at forming a government (so Justin Trudeau). (Thomas Mulcair seems unsure of which it is.) People who actually know about the functioning of Westminster-type political systems have mostly dismissed these statements as ignorant and/or self-serving but, I argued, they may reflect the emergence of a new convention, that will modify the one to which we are used.

I got a lot of interesting comments on that post, both here and on Twitter (another reminder of how fortunate I am in my online interactions), and would like to respond to some of them in a more organized fashion than I was able to do yesterday. Apologies if I am ignoring your particular points, or not citing you by name ― it would be too time-consuming to go through everything again, especially on Twitter.

The comment that I found the most perplexing is that the leaders’ statements are really of no significance because they are just political posturing. Conventions are inherently political. They are, to be more precise, rules of political behaviour, born out of political practice, and crucially dependent on the politicians’ understanding of their own actions ― and the obligations that frame those actions. Now, if my interlocutors are only channelling Bismarck’s quip that the worst lies are told before an election, during the war, and after a hunt, and reminding us that talk is cheap and that we will only find out whether Messrs Harper, Trudeau, and Mulcair meant what they said after the election, I agree with them. Only ― call me naive ― I think that clear statements like the ones we have heard will actually limit the politicians’ options after the election.

One species of the “it’s just politics” comment suggested that Mr. Harper’s position, in particular, was actually aimed at making any coalition or arrangement between opposition parties to deny him confidence and form an alternative government of their own in the event of the Conservatives winning the most seats, by however slender a margin, seem illegitimate. This may well be a part of what is going on. But it is important to distinguish two questions that Mr. Harper, as well as some of my interlocutors are running together. Who gets the first shot at forming a government and seeking the confidence of the House of Commons is a separate question from whether the other parties could legitimately refuse confidence to whoever goes first, and make their own subsequent attempt at forming a government. That the answer to the first of these questions may change from “the incumbent” to “whoever wins most seats” need not imply ― though admittedly it might make it more likely ― that the answer to the second will change from “yes,” as it clear is under the existing conventions, to “no,” as Mr. Harper may well want it to be. The fact that Mr. Trudeau is actually distinguishing these questions and only saying that the party with most seats gets “first shot,” not that it is entitled to govern, is I think grounds for some optimism in this regard, though it would surely help if Mr. Mulcair clarified his views, and also if the media were alert to this distinction.

Anyway, I think that by focusing on the short-term politics of the leaders’ statements on government formation we risk ignoring some important, deep and long-term changes that are affecting our political system and may be driving the evolution of the constitutional conventions that govern it. Conventions, as I said yesterday, make it possible for the political system to adapt to the changes in the prevailing “political theory” of the times. If the “political theory” changes, conventions may have to change. And the “political theory” that prevails in Canada is changing, even though scholars are sometimes slow to acknowledge it. It is Paul Daly who really identified the key development here: the increasing centrality of the Prime Minister to our government, and consequently of party leaders to our politics.

Prof. Daly pointed to the centralization of power in the Prime Minister’s office. But there is even more than that. As I explain in some detail in an article published earlier this year in the McGill Law Journal, electoral campaigns increasingly focus on leaders, not parties and their platforms. As a result of these twin developments, our elections increasingly feel like presidential, not parliamentary ones. When Mr. Harper claimed that elections are about electing a government, he was dead wrong insofar as he meant this to be a description of the traditional Westminster system (which is how Mr. Harper presented this claim). But he was not so wrong if we take it as a description of how people ― including not only the ordinary voters, but also many in the media ― increasingly tend to think.

The traditional conventions regard the government as the bridge between Crown and Parliament. The government is the group of people advising the Crown while commanding the confidence of Parliament. The voters are absent from this picture. Elections are (almost) non-events, because what happens on election night does not, strictly speaking, matter. What matters is what happens when Parliament is recalled in the weeks or months thereafter. But given the changes in our politics, and perhaps also a more democratic set of background political values, it would not be surprising if this “political theory” proves unsustainable, and is replaced by a somewhat different one ― and if that’s what is happening, or happens at some point in the future, the conventions of government formation may well have to change.

Some of my interlocutors have suggested that this will cause practical difficulties. Hugo Cyr, for example, thinks it would be absurd to have an incumbent government resign if it fails to win most seats only to return to office if it, rather than the party with the most seats, is actually able to command the confidence of the House of Commons thanks to third-party support. Sure, that would be clumsy, but not necessarily more so than an incumbent government refusing to resign pending a certain defeat in the new House of Commons, which is a real possibility in our current system. In both cases, awkwardness can be avoided by the party entitled to the “first shot” at governing simply forgoing its turn.

Aaron Clausen has brought up what I think is a more interesting concern: the possibility that our electoral system will be changed in such a way that hung Parliaments become the norm, including Parliaments split between many more parties than are represented now. If this happens, the perception that the party with the most seats is a “winner” entitled to (at least) a first shot at forming a government might wither, and the emerging convention will be stillborn. Then again, it’s not obvious that the old convention of giving the incumbent the first shot will still make sense in those circumstances either. If anything, this point is an invitation for us to think carefully before we start messing with the electoral system.

I’ll mention one more issue that some comments brought up: the fact that the conventions of responsible government of which our political leaders seem to be ignorant are the same throughout the Commonwealth. These conventions structure not only the Canadian system of government, but the “Westminster system.” We are used to appealing to precedents in other countries that share it (and, for that matter, to those that occurred in Canadian provinces). That’s true of course. Yet the genius of the Westminster system is precisely its capacity for evolution ― and there can be no guarantee that the different polities that share that system will all evolve in the same direction or at the same speed. Attractive as the notion of a family of independent nations sharing a constitutional system is, it is probably unsurprising, and perhaps inevitable, that our “constitutional theories” should diverge at some point.

All that is not to say that the emerging convention of government formation ― if indeed it does emerge, and I have not said that it will, only that it may ― will be better, all things considered, than the current one, and still less that the “constitutional theory” underpinning it is attractive. I do not particularly like the leader-centred politics we have. But we cannot just pretend that our politics haven’t changed in the last half-century, or that these changes cannot cause constitutional conventions to change in their wake. It may be tempting to dismiss political leaders as self-serving ignoramuses, but when it comes to conventions, they are, for better and for worse, the people whose opinions and actions matter. We observers can criticize and push back, but must acknowledge that the rules can change ― even over our objections.

Constitutional Metamorphosis

The major party leaders have made some curious statements regarding the formation of a government in the aftermath of an election where no party claims the majority of seats. First Thomas Mulcair, then Stephen Harper, and then Justin Trudeau as well, have asserted that whichever party wins more seats than the others should be called on by the Governor General to try and form a government. But that’s not what constitutional conventions, as understood by anyone who has actually studied them, say.

The conventions of responsible government require the government to enjoy the confidence of the House of Commons; but an incumbent a government is, we might say, deemed to be enjoying the confidence of the House until a vote of the House proves otherwise. The prorogation crisis of 2008, when the Governor General took the Prime Minister’s advice to prorogue Parliament is a case in point ― even though everybody knew that at that moment the government did not actually have the confidence of a majority of MPs, it is not enough for everybody to know. There has to be a Parliamentary vote to confirm what “everybody knows.” Similarly, it has always been said, after an election, the incumbent government is entitled to “meet the House” of Commons and test its confidence. Only if it does not obtain the confidence of the House does convention force it to resign.

Thus, contrary to what Messrs Mulcair, Harper, and Trudeau have claimed, the government’s number of seats has nothing to do with its entitlement to remain in office ― so long as no other party has got a majority. (If one has, there is no point in an incumbent government trying to meet the House, and I think it’s fair to say that there is a convention that demands the government’s prompt resignation in that event.) Accordingly, Andrew Coyne is wondering whether the leaders “understand the basics of our system of gov[ernmen]t,” and Emmett Macfarlane is positive that they do not. Dale Smith thinks they are “totally wrong.” Others have chimed in to the same effect as well. But the better question, in my view, has been asked by John Michael McGrath: “At what point does this go from ‘wrong answer’ to ‘new unwritten convention’?”

Constitutional conventions are just like law in that they are only valid until they have been changed. Conventions are unlike (some) law in that it is often difficult to tell when they have changed. (Actually, the common law, or any law articulated by courts is sometimes like that too. It is only at a certain point in the development of a line of cases that it becomes possible to say that the law is no longer what it had been at some earlier point.) But while it is can be difficult to pinpoint the moment when a convention has changed, we do know that conventions can change, and those pertaining to government formation are no exception.

Conventions, W.S. Holdsworth wrote in “The Conventions of the 18th Century Constitution,” (1932) 17 Iowa L. Rev. 161 ensure “that the constitution works in practice in accordance with the prevailing constitutional theory of the time.” (163) As the prevailing constitutional theory changes, so do conventions. How do we know though that a convention has changed? The same way that we know that one exists in the first place ― by looking at the behaviour of political actors to determine whether, in Sir Ivor Jennings’ classic formulation (endorsed by the Supreme Court in the Patriation Reference), there are “precedents” for an alleged convention; whether “the actors in the precedents believe that they were bound by a rule”; and whether there is “a reason for the rule.” If the convention observed at point B is not the same is that which regulated the same events at some previous point A, the convention has changed.

To come back to Mr. McGrath’s question, how do we know whether the convention regulating government formation in Canada has changed? Prof. Macfarlane has suggested that we would know “[w]hen [an] incumbent wants to test confidence but a [Governor General] ignores them & appoints a new gov[ernmen]t before the House meets. Maybe.” I don’t think that’s the only possibility. We don’t need to wait for a Governor General to dismiss an incumbent government when an opposition party wins a majority of seats to know that convention requires the incumbents to resign in such circumstances. Incumbents unfailingly resign on their own in such circumstances. Similarly, we wouldn’t need the Governor General to dismiss a government that wants to appoint one formed by the party with a plurality of seats.

If the Conservatives do not win a plurality of seats on October 19, and the government resigns without trying to meet the House, despite no opposition party having won a majority, and especially if it explains its resignation by reiterating Mr. Harper’s belief that it would be improper for a party that has not won a plurality to attempt to govern, that will be a very important indication that the convention has changed. We would have a precedent, and we would have a statement from the actor in the precedent that he felt bound by a rule. Would there be a reason for the rule? Arguably, yes, though that’s a somewhat trickier question. The rule that the winner of a plurality of seats gets first crack at forming a government has simplicity to recommend it, and it appeals to our majoritarian intuitions. It is similar to the rule we use in our electoral system ― though ironically the opposition parties might be looking to change that. I’m not saying, mind you, that this rule would be a better one than the old one. Only that there would be some reasons to justify it.

Now, it has to be possible to say, as Mr. Coyne, prof. Macfarlane, and others do, that the political actors are simply mistaken as to what the applicable rule is, just as it must, I think, be possible to say that the Supreme Court has wrongly decided a case (constitutional or otherwise). Mr. Trudeau, for instance, is just wrong to claim that “that’s the way it’s always been, whoever commands the most seats gets the first shot at governing.” It hasn’t always been that way. But just as with a Supreme Court decision, a mistake, at least if it is repeated in the future, can generate a rule just as surely as a correct statement of the relevant norm. To twist Justice Jackson’s well-known statement somewhat, the Supreme Court ― and, in the case of conventions, the political leaders of the day ― may not be final because they are infallible, but their being final does give them a form of deemed infallibility.

Constitutional rules change. Neither the process of change nor its results are always pretty. That is true of formal constitutional amendments and of the decisions of the Supreme Court that have the same effect. It is also true of the change in constitutional conventions. And of course there is nothing improper with trying to resist or even to undo a change one does not like. But it is important to recognize the possibility of constitutional change, and not only to criticize those engaged in it as mistaken. The Canadian constitution might be undergoing a metamorphosis before our eyes ― whether that word makes us think of Richard Strauss or of Franz Kafka.

Conventional Thinking

There is big news on the Supreme Court appointment front today, which is arguably not getting enough attention. According to the Globe’s Sean Fine, “[t]he Conservative government has turned to Quebec to create a candidate list for the Supreme Court of Canada” ― asking the provincial government to submit names of potential replacements for Justice Fish (who retired last fall) and Justice Nadon (whose appointment the Supreme Court invalidated in March). The federal government is promising to choose the new judge from the provincial list. Relying on a federal government “source”, Mr. Fine writes that

the new process is not meant to be a precedent … It applies to the current vacancy, but will probably not be used to select a replacement for Justice Louis LeBel of Quebec when his retirement takes effect at the end of November. It would be wrong to see the same process being used for the two judges, the federal source said.

Except that Québec’s Justice Minister does not see it that way. In her view, “the collaboration undertaken with [her] federal counterpart will allow us to chart the course for things to come.”

What we are witnessing, at least for this appointment, but perhaps for the future too, if the Québec government has its way (and perhaps those of other provinces, which would not want to miss out on such an expansion of their powers), is nothing less than the implementation of the appointment process that would have been constitutionalized (in a proposed section 101C of the Constitution Act, 1867) by the (failed!) Meech Lake Accord. In the mid-1980s it was thought that this sort of change required a constitutional amendment, debated over years of public agony; in the mid-2010s, it can apparently be done by some phone calls, about which we learn weeks after the fact and might not care. But what about those big huge Supreme Court decisions this spring, in the Nadon case and in Reference re Senate Reform, 2014 SCC 32? didn’t those have something to say about changing the constitution, in particular as it concerns the Supreme Court? Well, they did. But the events might be exposing the limits of the Court’s pronouncements, and indeed of its power, faster than anyone probably expected.

In the the Nadon decision, the Supreme Court’s majority was of the opinion that

[u]nder s. 41(d) [of the Constitution Act, 1982], the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the “composition of the Supreme Court”. The notion of “composition” refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982 (par. 91).

It further found that all other “essential features of the Court” (par. 94) were entrenched under par. 42(1)(d) of the Constitution Act, 1982, thus being subject to amendment under the “7/50” formula. Interestingly, the majority’s opinion omits the Supreme Court Act‘s reference to the appointment process ― subs. 4(2), which provides that “[t]e judges shall be appointed by the Governor in Council by letters patent under the Great Seal” from the list of provisions entrenched by s. 41. Nor is it entirely clear whether it is entrenched by par. 42(1)(d). The majority’s opinion states that “the essential features of the Court” which are so entrenched are to be

understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation. These essential features include, at the very least, the Court’s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.

The appointment mechanism is conspicuously absent from this meagre list, but then the list is not exhaustive. It seems at least logical to suppose that it is, in fact, an “essential feature” of the Court. And, to reiterate, in the years following patriation, the political actors presumably thought that it was entrenched and required constitutional amendment to be changed.

Now, subs. 4(2) of the Supreme Court Act only mentions appointment by the Governor in Council. It doesn’t say anything about any procedure that must, may, or may not be followed prior to that appointment. Sounds familiar? It should. That’s also the situation with respect to appointments to the Senate under s. 24 of the Constitution Act, 1867, which provides that “The Governor General shall from Time to Time … summon qualified Persons to the Senate.” In the Senate Reform Reference, the government argued that this silence about what preceded appointments allowed it to organize “consultative” elections the winners of which the government would have to “consider” recommending to the Governor General for appointment. The Supreme Court rejected this claim, first and foremost on the basis that “consultative” elections “would fundamentally alter the architecture of the constitution” (par. 53).

Unfortunately, the Court does not define this notion of constitutional “architecture” well at all, beyond saying that it has something to do with “[t]he assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another” (par. 26). The Senate’s place in the constitutional “architecture” is that of a chamber of “sober second thought,” devoid of democratic legitimacy and the ability to challenge the House of Commons that elections would confer on it. But what about the Supreme Court?

In my view, there is a strong argument to be made that it was always an “assumption[] underlying the text” both of s. 101 of the Constitution Act, 1867, which authorized Parliament to create the Supreme Court in the first place, and then of the amending formula of the Constitution Act, 1982, that the federal government would be in control of the appointments to the Supreme Court, and that provincial governments would not be part of it. Again, it is based on this assumption that the inclusion of the provinces in the process was stipulated in the Meech Lake Accord for constitutional amendment and not just implemented on an informal basis.

So is the involvement of a provincial government in the appointment of a Supreme Court judge unconstitutional in the same way as “consultative elections” to the Senate? Perhaps not. In a paper dealing with the federal government’s Senate reform plans (published before the Supreme Court heard, much less decided the Senate Reform Reference), Fabien Gélinas and I have argued that there is a distinction to be made between a law setting up “consultative elections” and an informal process of genuine consultation prior to the appointment of a Senator:

the Prime Minister is free to consult before advising the Governor General to summon a person to the Senate. However …  when that consultative process is made the subject of legislation, that legislation—unlike a mere practice—must pass constitutional muster. The distinction between practice and legislation is … what allows constitutional conventions to grow even when the conventional rule is at odds with a clear rule of constitutional law. The legal limits on the constitutional changes that Parliament can achieve by legislating are more stringent than the political limits that constrain the actual action of the Prime Minister. This is only logical, because a law, once enacted by the Parliament of today, needs no further confirmation by those of the future to remain in force, whereas the practice of a single Prime Minister will not acquire the binding character of a convention unless his or her successors come to view it as “the constitutional position” and feel bound by it themselves (p. 122; reference omitted).

The involvement of the Québec government in the forthcoming Supreme Court appointment is informal; even if the process is repeated when Justice Lebel is replaced, it will still be a mere practice, not the subject of legislation. The Québec government will have to hope that the current Prime Minister’s successors will feel bound to replicate the practice for it to crystallize into a firm constitutional convention.

Yet the notion of a “constitutional architecture” challenges the orthodox distinction between law and convention on which we relied (without quite believing ― certainly on my part ― in the distinction’s validity). It may be that some of the current constitutional conventions are part of the entrenched “architecture.” It may also be that the “architecture” prevents the development of new conventions that would undermine it. I don’t think that anyone ― including the members, current or future, of the Supreme Court ― know whether it does. And it is doubtful whether we will find out. If both the federal and the provincial government are on board, no one will begin a reference that would force the Supreme Court to clarify its position. Could another Rocco Galati challenge the appointment that will come out of the current process? Perhaps, but I wouldn’t count on it happening. One thing that seems reasonably certain, however, is that although conventional thinking may no longer hold as a result of this spring’s decisions by the Supreme Court, thinking about constitutional conventions, which the Court avoided, will still be necessary.

UPDATE: I explain why, regardless of its constitutionality, making permanent this change in the appointments process is a bad idea in this post.

Nurturing Conventions?

The idea of constitutional conventions, familiar in the Commonwealth since the times of A.V. Dicey, has recently been attracting some attention from American scholars. Gerard Magliocca is apparently using it in a forthcoming article. And, most recently, it appears in an intriguing guest-post by Miguel Schor at Balkinization. Prof. Schor argues that conventions are important ― an obvious point to us, but not to Americans, who tend to conflate the constitution and “the Constitution,” i.e. the written constitutional texts (and, maybe, judicial interpretations of that text). He uses the example of what he suggests was a convention that prevented Congress, or a political party in Congress, from using the statutory debt limit (and the threat of default) from extracting policy concessions from the President or from partisan opponents.

Prof. Schor then suggests that

[t]he supposed wall between the Constitution and politics means that the Supreme Court [of the United States] lacks the intellectual tools to play a constructive role in buttressing the political conventions necessary for democratic politics to flourish

― for example, by intervening to stop partisan gerrymandering. In his view,

[t]he [Supreme] Court should seek to nurture the emergence of conventions that facilitate political competition. To that end, we, as scholars and teachers of constitutional law, need to find a way to educate law students about the importance of political conventions.

Now I’m all for talking talking about constitutional conventions as much as possible. Most of my published output so far does just that. And I agree that courts ― not only in the United States, but also in Canada (and elsewhere in the Commonwealth) ― seem to lack the intellectual resources to deal effectively with the political dimensions of conventions; in my article about the “Jurisprudence of Constitutional Conventions,” I attempted to supply some such resources. (The journal’s copyright terms prevent me from posting the actual paper on SSRN. I am happy to share it with those interested though.) However, I am skeptical of the idea that courts can “nurture the emergence of conventions,” whether intended to facilitate political competition or to further some other constitutional principle.

Constitutional conventions are entirely the creatures of politics. As Fabien Gélinas and I put it in a recent article,

[c]onventions are rules of political practice, which emerge when the rules of constitutional law are not or are no longer in accordance with, or sufficient to give full effect to, “the prevailing constitutional theory” or values. Faced with a discrepancy or a gap between law and constitutional values, political actors work out solutions that enable them to give effect to the latter without openly contravening the former. As the solution adopted by one political actor is imitated by that actor’s successors, expectations that it will be similarly imitated in the future develop, with each precedent reinforcing these expectations. The combined forces of the values to which the practice gives effect and of the expectations that it will be followed make it binding. Constitutional conventions are indeed the pearls of the constitution, formed as the mollusk of the political process responds to the irritant of inadequate law or to the stimulus of a deliberate political decision, by enveloping it in layer after layer of the protective coating of precedent, until its very existence might be forgotten except by those who know that it must once have been there.

What this means is that courts cannot really “nurture” a convention in its infancy. It will crystallize depending on the political actors’, not the judges’ choices. At most, a judicial decision can supply, as we put it, the “irritant” that will cause a convention to appear, by pointing out to the political actors the state of the law which they will regard as unacceptable in light of the “constitutional theory” or values of the time.

However, what courts could ― but refuse to ― do, however, is enforce an already developed convention. Now, maybe that is what prof. Schor actually means, but to me “nurture” and “enforce” sound like very different things. One nurtures something that is not yet fully mature. But for a court to be able, even if it is willing, to enforce a convention, the convention has to have reached a (considerable) measure of maturity. Indeed, there are dangers in overhasty judicial enforcement of conventions. One is the risk of uncertainty of an unsettled convention. The skeptics of judicial enforcement of conventions, from Dicey on, have always insisted that conventions are not sufficiently certain to provide meaningful legal standards. As I explain in the “Jurisprudence of Constitutional Conventions” article, I think that this is not always so, but this point is surely more powerful with respect to emerging conventions than to stable ones. Judicial intervention in the field of convention carries another risk too, that of preventing political practice from adjusting to the unsettled needs or changing “constitutional theory” of the day. By enforcing a convention too soon, a court may prevent it from accomplishing its function of making constitutional norms correspond to the prevailing constitutional values. 

Prof. Schor’s call on courts to nurture constitutional conventions thus seems to me at odds with their true nature. However, more academic ― and judicial ― engagement with conventions in the United States would be very interesting.