Nothing Doing

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

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

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


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

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

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

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

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

Admittedly, some people might disagree.

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

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

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

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

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

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

Legal skills/qualifications are irrelevant anyway!

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

You’re undermining confidence in the Supreme Court!

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

You’re racist/sexist!

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


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

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

A Little Representation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mischief and the Chief

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Precedent and Respect

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Citizens and Judicial Independence

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

This is a joint post with Mark Mancini

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

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

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

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

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

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

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

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

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

An Empty Vessel

Thoughts on the Justice Kasirer appointment process

A few weeks back, Prime Minister Trudeau’s nominee to the Supreme Court, Nicolas Kasirer, subjected himself to questions from parliamentarians. By all accounts, Justice Kasirer is a qualified nominee for the Court, having spent a decade on the Quebec Court of Appeal. But one must separate the nominee from the process through which he was appointed. While the Government’s independent search process is probably, in theory, a step in the right direction, it is still plagued by one meaningful problem: parliamentarians have virtually no power to shed any meaningful light on the Prime Minister’s nominee.

Of course, unlike the United States, Parliament and its committees have no constitutional duty or mandate to give “advice and consent” on nominations made by the Prime Minister to the Supreme Court. Yet the fact that the Constitution does not require something does not mean that systems of government should not aspire to be better. This was the logic behind the Prime Minister’s independent appointments process, which is also not at all required by the Constitution.

But the process adopted by the government when it comes to public consultation, while not inconsistent with the Constitution, falls well short of other standards of public transparency. The judicial nomination “hearing,” if one could even call it that, was limited by a number of overriding principles. For example, Justice Kasirer could not talk about any past decisions he rendered as a judge of the Quebec Court of Appeal; politicians could not ask him about any judgments he would render as a judge of the Supreme Court;  politicians could not “cross-examine” the nominee; nor ask him to take a position on “controversial” issues; and finally, the nominee could not comment on existing Supreme Court decisions, and whether he supported those decisions or not.

Some of these restrictions are understandable. Asking a nominee to pre-judge an issue presents a real judicial independence problem. But some of the restrictions, I think, end up short-circuiting legitimate questions about the role of the judge in the modern era. Particularly, asking a judge to comment on her past rulings or to comment generally about her philosophy does not present the same judicial independence concern as pre-judging a case on the merits. Indeed, there are other countervailing values that make these questions apt for answering, in the name of public transparency, and in light of the judicial role in the modern era.

The idea is this: no one denies—not even proponents of strong-form judicial review—that the Supreme Court deals with issues of great national importance. This is in part represented in the Supreme Court’s leave requirements; but it is also manifested in the cases the Supreme Court decides, and how it decides them. In the last number of years, the Court has decided cases of broad public controversy, including reading a right to assisted dying into the Constitution, doing the same for the right to strike, and similarly interpreting an existing constitutional provision to encompass a right to Wagner-style collective bargaining. All of these issues—issues over which reasonable people can disagree in the political realm—have been removed from the public sphere of debate by the Supreme Court’s constitutional rulings. While the Court has often replied that it is the people through their representatives that thrust this role upon them when enacting the Charter (see BC Motor Vehicles, at para 16), this argument does not change the basic fact that courts have taken on this role, often liberated by emancipating doctrines like a “living tree approach” and a lax standard for the admission of all sorts of social science evidence. When it comes to Charter decision-making, the judicial role takes on the character of policy, under which decisions are made by courts that at one point might have been made by legislatures.

Putting aside whether this is normatively desirable, and if this is the case, why shouldn’t the public have a window past the veil of judicial decision-making in a substantive way that sheds light on the things a judge values in the decision-making process? In other words, while there is no formal process for “advice and consent” (and perhaps there shouldn’t be) shouldn’t the public’s representatives have a right to query the judge’s overarching judicial philosophy, including how it would apply to past Supreme Court cases? The role of the Supreme Court in the modern era, if it is going to be expansive, is deserving of some sunlight.

I am alive to the criticisms. One might argue that this imports an American style advice and consent function into Canada, potentially creating the conditions for the sort of circus we see in the United States. But the function I have in mind is suited to Canadian circumstances. In reality, my prescription would amount to allowing a few more substantive questions to be asked in a hearing. Anyone who watched the Kasirer hearing was probably left sorely disappointed; the nominee’s reliance on the restrictions of the entire process was somewhat frustrating given the stakes of a Supreme Court appointment. But if the process was somewhat more substantive, with the scope of questioning somewhat expanded, perhaps there might be more interest in the entire endeavour, with Parliament taking on a real public monitoring function. On my account, the questions that could be asked could account for general judicial philosophy considerations, an account of the judge’s past decisions, and perhaps general comments about existing Supreme Court cases, always on guard for the potential for questions to go into “gotcha” territory.

Another concern is judicial independence, as I alluded to above. We do not want prospective Supreme Court judges pre-judging cases. But setting out a general philosophy—including generally reflecting on Supreme Court cases or to reflect on one’s own judicial tenure—is hardly pre-judging particular cases on the merits. Indeed, one can criticize a past Supreme Court decision and still resolve to apply it because it is the law—this would be the ultimate in honest and transparency. The truth is that every judge has some system or guiding star for deciding cases that the public deserves to know. Judicial independence should not be a prophylactic reason to prevent all questioning of judges, especially in a system where the Court carries so much power.

The goal of the entire nomination process should be to balance the selection of qualified jurists with the protection of their independence and the public’s legitimate interest in knowing who is nominated. A Kabuki theatre nomination hearing, like the Kasirer one, fails to create the conditions for the public to actually know a judge. This is far from ideal in a situation where the Supreme Court, as Justice Abella once said, is the apparent arbiter of Canadian moral values. If the Court arrogates this role to itself, its members should at least be accountable through some mechanism.

The Five-Judge Myth

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

By Peter McCormick

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

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

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


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

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

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

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


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

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

Two-Headed Judges

By Peter McCormick

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

Why Governments Are Not Angels

The SNC-Lavalin affair reveals serious challenges to the functioning of all three branches of the Canadian government

This post is co-written with Mark Mancini

Law Matters has approached us suggesting that we write a short piece on the lessons of the SNC-Lavalin affair ― and kindly accepted to let us post it here without waiting for their publishing process to take its course. So, with our gratitude to their Editor-in-Chief Joshua Sealy-Harrington, here it is.

Attorney General Jody Wilson-Raybould was shuffled out of her office, and then resigned from cabinet; fellow minister Jane Philpott resigned too, and so have Gerald Butts, the principal secretary to Prime Minister, and Michael Wernick, the Clerk of the Privy Council. Ms. Wilson-Raybound and Dr. Philpott have now been expelled from the Liberal caucus. Indeed, the Trudeau government’s future is seemingly imperiled by the SNC-Lavalin scandal. In the unflattering light of these events, Canadians may rightly wonder about the way our government works.

It appears that many of the key decisions in the affair were made by the Prime Minister’s surrogates, who had no regard for the legality of the situation, but were only too happy to advance a political agenda. While the situation is still unfolding, one can already say that it has revealed significant challenges faced by all three branches of our government, and the defects in the ways in which they relate to one another.

Most fundamentally, the SNC-Lavalin affair requires us to take a grittier view of the way government works in Canada. As one of us wrote previously, government in the 20th century was widely perceived as a means to achieve certain substantive ends associated with the social welfare state.  The basic mythology held that, to break the “individualistic” mould of a judicially-developed law focused on upholding property rights and private contractual arrangements, Parliament and legislatures enacted complex legislation, to be administered by expert and efficient tribunals and agencies nested within the executive branch but more or less independent from the supervision of its political masters. This delegation was meant to remove from courts issues of collective justice deemed ill-suited for judicial resolution. The courts, meanwhile, were given a different but even more prestigious role: that of upholding a confined but elastic range of (mostly) non-economic individual rights and liberties.  

This rather Pollyannaish view of government persists today. The executive and agencies are seen as trustworthy technocrats, entitled to judicial deference (regardless of the absence of any real empirical evidence to support this view). Parliament, as the high-minded centre of political representation (at least so long as it is controlled by parties sympathetic to the redistributive project) and accountability. The courts, as the protectors of the rights of minorities. The SNC-Lavalin affair provides strong evidence that this picture is naïve.


The executive branch of government, it turns out, is not only populated by neutral, technocratic arbiters of policy. Rather, politically-minded actors, people like the Prime Minister’s former Principal Secretary, lurk in the shadows―and consider themselves entitled to really call the shots. These are the people who, in the face of an Attorney General’s refusal to cede to the Prime Minister’s pressure, said that they did not want to talk about legalities. They were ready to line up op-eds in newspapers to provide cover fire for their dismissive attitude toward law and discredited legislation adopted by a previous Parliament in which their party did not control the seats.

Instead of being guided by the law, or even (their own conception of) justice, these unelected, unaccountable apparatchiks are only motivated by the prospects of electoral success. Their empowerment means that even those decisions of the executive branch that are ostensibly protected by constitutional principles and conventions mandating their independence (like the prosecutorial function), are perceived as always up for grabs, according to the demands of political expediency.

Meanwhile, some civil servants are a quite prepared to act as the political hacks’ supporting cast, instead of standing up for rules and procedures. Mr. Wernick, the former head of the civil service, certainly was, having apparently had no compunctions about relaying the Prime Minister’s unconstitutional threats to the former Attorney-General and persisting when she warned him of the inappropriateness of his behavior.

But what of Parliament’s role in fostering accountability? Here again, one should not be too optimistic. A government that has the support of a majority of members in the House of Commons will also command a majority on, and thus control the work of, Select Committees, which are key to ensuring that the government is held to account beyond the limited opportunities afforded by the spectacle of question time. Admittedly, the committee supposedly looking into the SNC-Lavalin affair has let the former Attorney General present her version of the events, and it has made public the further documents she supplied, including the damning recording of one of her conversations with Mr. Wernick. Yet the committee is still resisting the calls to allow Ms. Wilson-Raybould to appear again to respond to Messrs. Butts and Wernick’s subsequent attempts to discredit her.

Parliament’s role as a locus of accountability is further compromised by the restrictions on what Ms. Wilson-Raybould is able―as a matter of ethics, at least―to say, even under cover of Parliamentary privilege. The problem is twofold. First, there is some debate about whether Parliamentary procedure would provide the former Attorney General an opportunity to speak despite the opposition of her former party colleagues. Second, even if such an opportunity is available, there is the matter of cabinet privilege, which in principle binds former (as well as current) ministers, even when they speak in Parliament. The Prime Minister could waive privilege in this case, to allow Ms. Wilson-Raybould to speak freely, but he is refusing to do so. 

Finally, the judiciary is unlikely to come out well of the SNC-Lavalin affair―even though it is not directly involved. For one thing, someone―and it is not unreasonable to suppose that that someone is not very far removed from the Prime Minister’s entourage or office―has seen it fit to drag a respected sitting judge, Chief Justice Joyal of the Manitoba Court of Queen’s Bench, through the mud in an attempt to cast aspersions on the former Attorney General. (One of us, we should perhaps note, has been more critical than the other of that judge’s views. In any case, the insinuations that Chief Justice Joyal would not follow the constitution are based on, at best, a fundamental misreading of his extra-judicial statements.)

But beyond that deplorable incident of which a sitting judge has been an innocent victim, it is the former members of the judiciary whose standing has been called into question. In particular, it is worth noting that Mr. Wernick, in his conversations with Ms. Wilson-Raybould, seemed to have no doubt that the former Chief Justice would be able to provide support for the Prime Minister’s position―despite his repeated acknowledgements that he was no lawyer. There is no question that the former Chief Justice, and other former judges involved in or mentioned in connection with the SNC-Lavalin affair, were independent while they were on the bench. Yet their willingness to become hired guns once retired, and perhaps to take aim in accordance with the government’s commands, is still disturbing.


One view of the matter is that―despite the gory appearances it projects and creaky sounds it makes― “the system works”. As Philippe Lagassé wrote in Maclean’s, referring to James Madison’s well-known remark in Federalist No. 51 that “[i]f men were angels, no government would be necessary”, the test of a government is not whether its non-angelic members turn out to be fallible, and sometimes unethical, human beings, but whether “our constitutional constructs include checks and balances to deal with their naturally occurring slip-ups”.

And perhaps the SNC-Lavalin affair ought to give new life to the idea that responsible government—and its attendant norms of political accountability and control of the executive by Parliament—provide adequate checks and balances for government in the 21st century. Despite the limitations on Parliament’s ability to hold the government to account, the opposition party has been able to whip up sufficient public scrutiny to force the hand of the incumbent ministry. Notably, the exposure of the roles played by Messrs. Butts and Wernick is a consequence of the opposition’s pressure―as well as, arguably, of the ability of the media, old and new, to involve experts capable of explaining complex constitutional issues in the discussion of political events. Perhaps, if public attention to aspects of our system that we typically do not consider can be sustained once the interest in the scandal at hand subsides, the system will even come out of it stronger than it was, especially if Parliament can, henceforth, put its mind to holding the executive accountable for its exercise of the powers Parliament has delegated to it.

But this view may well be too optimistic. Just a couple of sentences before his “if men were angels” quip, Madison issued a no less famous exhortation: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

As Dr. Philpott observed in a statement following her expulsion from the Liberal caucus, “[i]t is frankly absurd to suggest that I would leave one of the most senior portfolios in government for personal advancement”. Similarly, it seems most unlikely that Ms. Wilson-Raybould would have taken the principled stand she took, rather than doing the bidding of Messrs. Butts and Wernick and the Prime Minister himself, had she been the ordinarily self-interested politician. The ambitious thing to do for someone in her position would have been to take a hint, and to do as she was told.

And what would have happened then? Sure, her decision to overrule the Public Prosecution Service and to make a deal with SNC-Lavalin would have had to be published, and would have generated some negative publicity. But friendly journalists marshaled by Mr. Butts, and perhaps the former Chief Justice too, would have provided cover. It seems reasonable to suppose that the SNC-Lavalin affair, if we would even have been calling it that, would have been over already, and almost a certainty that it not have become the major political event that Ms. Wilson-Raybould has made it.

In other words, it is at least arguable that whether fundamental constitutional principles are upheld by our government turns rather too much on individuals doing the right thing under great political pressure, and despite their self-interest. It is to Ms. Wilson-Raybould credit that she has acted in this way. But it seems unwise, to say the least, to rely on her successors always following her example, or to suppose that her predecessors always have set a similar one.

A more realistic view of government, and of its more or less visible denizens, may thus lead us to conclude that all is not well with our constitutional system. In one respect, Madison (in Federalist No. 48) turned out to be wrong. It is not the legislative branch but the executive that “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex”. Law enforcement, Parliament, and perhaps even the judiciary, are endangered by its obstruction, threats, and promises of favours. We must recognize the difficulty to have the slightest chance of doing anything about it.

End of a Scandal

An attempt to criminalize criticism of New Zeand’s judges is rejected by a parliamentary select committee

Last year, the New Zealand Parliament took up a bill to update and reform the law of contempt of court. A worthy endeavour, but one that was seriously flaw in at least one very important way, as I argued at the time: one of the ways in which the bill changed the law was that it not only codified but seriously expanded the common law offence of “scandalizing the court” ― that is, according to a classic definition in R v Gray, [1900] 2 QB 36, doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority”. (40)

Obviously, the common law offence, if understood broadly, might have applied to vast amounts of perfectly legitimate criticism, including of the sort that is this blog’s trademark, so the courts applied it sparingly and with an eye ― indeed both eyes ― towards preserving the freedom of expression in this context. Even so, the offence has been abolished by statute in the United Kingdom, and left in a zombie-like state in Canada following the decision of the Court of Appeal for Ontario in R v Kopyto, which held that, in its current form, the law of scandalising the court was not consistent with the Canadian Charter of Rights and Freedoms.

By contrast, the bill before the New Zealand Parliament would have expanded the offence, notably by criminalizing the expression of opinion ― including opinion honestly held on the basis of publicly known or fairly stated fact ― if that opinion could undermine public confidence in the independence, integrity, or impartiality of a judge or court. The bill would also have criminalized the true statements of fact having that tendency, unless the accused were able to prove their truth on a balance of probabilities ― thus trenching on the presumption of innocence. And, in addition to this, the bill would also have created enforcement powers that would have made it possible for the prosecutors to exact apologies and retractions from people merely suspected of having committed the “scanadalizing” offence.

In addition to blogging about this, I co-wrote (with Edward Willis) a submission to the Justice Committee of Parliament, which studied the bill. Dr. Willis and I were joined by a number of scholars from across New Zealand. We also presented our views to the Committee in person (we come in at ca. -1:04:07). Our submission recommended that the offence of “scandalizing the court” be abolished, but it also set out alternative provisions that could have ameliorated the worst abuses of the original bill, should the Committee have been inclined to preserve the offence. Of course, our submission was not the only one (though not all the submissions were directed at the issues that interested us).

The Committee delivered its unanimous report last week, and I am happy to say that the expanded offence and created in the original bill is now gone, as are, mostly, the novel enforcement mechanisms. The common law offence, as it now stands, remains, if I understand correctly. (Subclause 29(2) of the Bill provides that “[n]othing in [it] limits or affects any authority or power of a court … to punish any person for contempt of court in any circumstances to which [the Bill] does not apply”, which I think would encompass the contempt of “scandalizing the court”.) There is also a provision, a new Clause 25, allowing the High Court to order a person “to take down, or disable public access to” “a false statement about a Judge or court [such that] there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court”. An interim order can be made on a showing of an “arguable case”, but a final order requires the government to prove the falsity of the statement concerned on a balance of probabilities.

This is not perfect. It would have been better for the offence of “scandalizing the court” to have been abolished altogether. And while, in this second-best of all possible second-best worlds, take-down orders for information which has actually been shown to be false (with the burden of proof, albeit the civil one, being on the government) are not the biggest freedom of expression concern there is, I’m also not a fan of the low threshold for the making of interim orders. Still, much worse has been averted.

As Andrew Geddis ― one of the scholars who have joined Dr. Willis’ and my submission ― has put it,

the system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response.

The system has, indeed, worked remarkably well in this case, though when we say “the system”, we should also give credit to the individual members of the Justice Committee. We should also, however, recognize that this is a technical bill of a sort that neither triggers any strong partisan reactions nor makes for good political point-scoring. As Professor Geddis explains, the system isn’t working nearly well enough with the gun control legislation being currently rammed through the New Zealand Parliament; nor did it work especially well in the case of a recent bill to ban some offshore drilling, about which I have written elsewhere.

Professor Geddis also points out that, while the Justice Committee has recognized that it is wrong to punish people for expressing unpleasant opinions about the judiciary, or to make them apologize for it, the New Zealand House of Representatives still takes a different view where it is itself concerned:

 Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And … it can require that they apologise to an MP and to the House itself for committing a contempt.

This power is still used from time to time ― and not just against MPs, but against members of the public too. So there is still some way to go before the evil of compelled apologies is banished from the land. But the Justice Committee has, at least, taken a stand against allowing it to fester.

And I would like to think that, in some small part, this is because I raised hell, and encouraged others to raise hell with me. And of course others still engaged in their own hell-raising activities with which I had nothing to do. Some people, it appears, are not fans of this blog’s rabble-rousing ways. That’s their right, of course. But if the rabble is of the right kind, it can help do great things. As Boris Vian told us, en protestant/quand il est encore temps/on peut finir/par obtenir/des ménagements ― by protesting while there is still time one could end up getting some concessions.