judging – Double Aspect

What Needs to Be Said

Sometimes people say things that need to be said. These things may make us uncomfortable. They may force us to look in the mirror. They may ask us to really sit and think about our conduct. We might not like to hear these things, but they might start a discussion. Or maybe they will force us to change our ways.

Enter Stratas JA in Canada v Kattenburg, 2020 FCA 164. Here, Stratas JA says what needs to be said. In the decision, Stratas JA shines a light on two increasing tendencies in Canadian law: (1) the tendency of some intervenors, contrary to governing jurisprudence, to insert international law or policy preferences in the interpretation of legislation, particularly in the discernment of legislative purpose and (2) the tendency for some judges, in extra-judicial speeches or otherwise, to weigh in on matters of public policy, typically left to the political branches. Stratas JA has launched an important conversation that we should embrace, tough as it is.

International Law and Statutory Interpretation

Let me start with the basic facts of the case. The Canadian Food Inspection Agency decided that certain wine imported to Canada from the West Bank are “products of Israel” (see the Federal Court’s decision in 2019 FC 1003 at para 3). The judicial review, among other issues, concerned whether the wine could be labelled as “products of Israel.” That’s it. Under ordinary administrative law principles, the court will assess whether the decision of the CFIA is reasonable. A typical legal task.

Here’s where it gets hairy. Sometimes, international law can enter the act of legal interpretation. If you want to know more about how this is the case, see my post on Stratas JA’s decision in Entertainment Software. The point is that international law can only be relevant to the interpretation of Canadian law where it is incorporated in domestic law explicitly, or where there is some ambiguity. Parliament remains sovereign because it controls the international law it adopts; indeed, “[s]ometimes it is clear…that the purpose of a legislative provision is to implement some or all of an international law instrument” (Kattenburg, at para 25) (see Gib Van Ert, here, for some nuance on this). Other times, there is ambiguity that permits the consideration of international law (Kattenburg, at para 25). But other times, probably most times, international law plays no role in the interpretation of legislation, where there is no indication that the governing law explicitly or by implication incorporates international law. That was the case here.

Yet many of the intervenors in this case were motivated to bootstrap international law into the authentic interpretation of legislation. For many, the argument was that the Israeli occupation of the West Bank is illegal under international law principles. This was despite the fact that nothing in the governing law was designed “to address state occupation of territories and, in particular, Israel’s occupation of the West Bank” (Kattenburg, at para 20). To make this point, some of the interveners attempted to further bootstrap the record with “hyperlinks to find reports, opinions, news articles and informal articles to buttress their claims about the content of international law and the illegality of Israel’s occupation of the West Bank” (Kattenburg, at para 32).

There are many problems with what’s going on here, and Justice Stratas rightly rejected the efforts to make the case about the West Bank issue rather than the reasonableness of a regulatory decision. First, at the level of fundamental principle, judicial review of administrative action is about policing the boundaries of the administrative state, at the level of a particular regulatory decision. Some times these decisions can have major consequences, for the party subject to the decision or for the legal system on the whole. But the focus is not the at-large determination of major issues like the Israeli-Palestinian conflict. The focus is on the decision under review. And so the attempts by the moving parties to buttress the record, to force the Court’s hand into saying something, anything, about the Israeli-Palestinian conflict is inappropriate, to say the least. Justice Stratas rightly, and humbly, rejected the call to enter this fraught political territory.

Another problem is the attempt to use international law to guide, where it is inappropriate to do so, the ascertainment of legislative purpose. When courts interpret statutes, they do not do so with the aims of achieving a result that the judge thinks is “just,” “right,” or even “fair.” The goal is to interpret statutes authentically, so that we can plausibly determine what the legislature meant when it used certain words in enacting a law. Contrary to fashionable legal realism, courts and decision-makers must do their best not to reverse engineer a desired outcome through interpretation (see Vavilov, at para 121, but also see the litany of Federal Court of Appeal and Supreme Court cases on this point). Here, the intervenors clearly tried to use international law to reach a desired policy outcome. But all of the intervenors, piled up together, shouldn’t be able to encourage courts to engage in this pure policy reasoning. Indeed, as Justice Stratas notes, “[s]o much of their loose policy talk, untethered to proven facts and settled doctrine, can seep into reasons for judgment, leading to inaccuracies with real-life consequences” (Kattenburg, at para 44). And to the extent that doing so is contrary to established Supreme Court precedent, Justice Stratas was right to call out this pernicious behaviour.

None of this is to suggest that intervenors do not play an important role in Canadian law. None of this is to suggest that international law cannot, in appropriate circumstances, play a role in the interpretation of legislation. But a new Canadian textualism is emerging that rebuffs policy reasoning and at-large international law arguments. All for the better.

The Role of the Courts

In Kattenburg, Justice Stratas also made a number of comments that, I think, needed to be said about the activities of some Canadian judges. Here is the gist of his comments:

[45] As for judges, some give the impression that they decide cases based on their own personal preferences, politics and ideologies, whether they be liberal, conservative or whatever. Increasingly, they wander into the public square and give virtue signalling and populism a go. They write op-eds, deliver speeches and give interviews, extolling constitutional rights as absolutes that can never be outweighed by pressing public interest concerns and embracing people, groups and causes that line up with their personal view of what is “just”, “right” and “fair”. They do these things even though cases are under reserve and other cases are coming to them.

This comment raises the important question of the difference between the legal world and the political world. It has become increasingly common to hear that law=politics. In some sense, this is true. Law is the product of political deliberation. And because judges are only humans, there is always a risk that a judge’s experiences and personal views may guide the interpretation of legislation. No legal system can reduce this risk to zero, and perhaps it is unwise to do so.

But this is a completely different proposition from the normative question: should the political views of judges affect the interpretation of laws or judicial review of administration action? Obviously the answer is no. So, in legislative interpretation, we create a series of rules to guide legal interpretation. We ask courts and decision-makers to focus on text, context, and purpose—authentically. In other words, while law is the product of politics, that fact does not give judges the right to interpret laws as they wish.

There are a number of examples of prominent judges who have, extrajudicially, blurred the lines between law and politics. At least two judges of the Supreme Court have suggested that their job is to decide what is best for Canadians, for example (see Justice Moldaver here and then-Chief Justice McLachlin here). This is a real misapprehension of the judicial role. Judges aren’t tasked with making the best normative decisions for Canadians. That is Parliament’s job. Of course, the problem is that politics can be slow and frustrating. But that is no reason to bypass the legislature for a quick judicial resolution.

Another example, but by far not the only one, is Justice Abella. Justice Abella frequently enters the public fray to provide her views on certain legal issues. Quite separate from the content of these interjections, it is typically not the role of a Supreme Court judge to write popular columns, putting their thumbs on the scale of pressing public issues that might make their way to the Court. It is one thing to set out one’s view of the law in reasons for decision. We can agree or disagree on that reasoning, in the legal academy. It is another to take to the streets, as a judge, and participate in the political process by setting out one’s view of the law—whatever it is–in the context of popular publications. On a related note, in fact, this is not just an affliction of judges that might be considered “progressive.” As I wrote here, in the United States, conservatives are increasingly looking at the courts as an instrument of power, rather than as neutral and objective arbiters of the law.

I could go on and on. The point is that Justice Stratas is on to something in Kattenburg. The comments come as we see, increasingly, the veneration of judges as heros, who are celebrated when they enter the political fray by many in the bar. RBG on the left, with the action figures and paraphenalia. Scalia on the right, to a somewhat lesser extent. In Canada, the “stanning” of judges like Justice Abella as if they were celebrities. Judges are just “lawyers who happen to hold a judicial commission” (Kattenburg, at para 41). When put that way, it seems remarkably odd that we celebrate certain judges the way we do. We should celebrate judges for applying the law and following precedent to the best of their ability. We should refrain from celebrating the results of cases over the reasoning. And judges, themselves, should generally stay out of political debates. Indeed, lawyers are just lawyers, and law school confers no special insight on issues of moral or political weight, compared to the rest of the population.

Sad for some lawyers to hear, I am sure. But it needed to be said.

When the Surgeons Miss

Federalism and the Genetic Non-Discrimination Act Reference

Guest Post by Shannon Hale*

It is ironic that sometimes health-related cases pose the greatest risks to the health of the constitution when federalism goes under the knife.

Just over two months ago, the Supreme Court of Canada released its decision in Reference re Genetic Non-Discrimination Act (GNDA Reference). At issue was whether the federal government validly enacted parts of the Genetic Non-Discrimination Act (GNDA) that prohibit the forced testing and disclosure or unauthorized use of health-related genetic tests as a condition of providing goods and services or contracting (ss. 1 to 7).

The Court split three ways on this issue, with the majority, led by Karakatsanis J., ultimately deciding that the federal government had the legal authority to pass the law. The GNDA Reference provides much food for thought on division of powers analysis and federalism, especially since some of the conclusions drawn in that decision may undermine the ability of legislators and policymakers to make various policy choices with legal certainty.

Dwight Newman and I discuss the implications of the GNDA Reference in a forthcoming paper in Constitutional Forum. Our paper focuses on how the majority outcome achieves an arguably pragmatic and desirable policy result at the expense of established federalism jurisprudence, legal predictability, and effective intergovernmental cooperation.

I wanted to write about the GNDA Reference because of its far-reaching effects on federalism, in particular its impact on provincial autonomy to make policy choices that are responsive to regional diversity. As a former policy wonk, I admit that there are several situations in which it could be easier and more efficient for the federal government to legislate. Yet, the Canadian constitutional structure emerged from a political compromise and it is intentionally designed to mitigate against such centralization of power (Reference re Secession of Quebec at paras 55-60). An important policy goal or concerns about efficiency should not factor, or appear to factor, into the Court’s reasoning on whether the government in question validly passed a law. As we point out in our paper, the Court must be—and appear to be—above policy debates to maintain its institutional legitimacy.

The GNDA Reference also interests me because of the GNDA’s surprising origins and the even more surprising three-way split on the Court over the law’s characterization.

The GNDA was introduced as a private member’s bill in the Senate and it was voted into law despite opposition from Cabinet, including from the then federal Justice Minister who had thought the law was unconstitutional. Although the Court was aware of the GNDA’s unusual legislative history, that did not factor heavily into its analysis (see, for example, GNDA Reference at paras 18, 161). Nor should it. As Karakatsanis J. clarifies, the “sole issue before [the Court] is whether [the federal government] had the power to [enact the GNDA]” (at para 18).

Unfortunately, what seems to end up happening is that the merits of a particular policy—preventing genetic discrimination—distract Karakatsanis J. from the demands of the established legal tests in division of powers cases. As we explain in greater detail, Karakatsanis J. adopts a purpose-driven approach that more closely resembles the “pressing and substantial objective” step of the Oakes analysis in Charter jurisprudence than the focus on the law’s “true subject matter” in pith and substance analysis (see, for example, Reference re Firearms Act (Canada) at para 18).

Of equal concern is the three-way split on pith and substance. It is not uncommon for the Court to disagree on the law’s pith and substance. But if these disagreements become the norm rather than the exception there is a danger that the Court could create the perception that judicial preferences, not established legal principles, dictate the outcome in division of powers cases.

This perception grows when the Court strays from established legal tests to shoehorn the analysis to reach a result that also favours a particular policy outcome. The task before the Court is not to weigh the merits of particular policies; it is to determine whether the government in question has the legal authority to make laws about those policies.

Despite its good intentions, the majority outcome may actually make the situation on the ground worse for Canadians. Our paper examines how the majority outcome will create considerable confusion for provincial insurance schemes and could result in higher insurance premiums across the board. It is also interesting how the majority outcome prevents genetic discrimination in some insurance contexts but not in others, which seems to be at odds with Karakatsanis J.’s view that the pith and substance of the GNDA is to prevent genetic discrimination “in the areas of contracting and the provision of goods and services” (GNDA Reference at paras 63-65).

Another problem with the majority outcome is that it fails to rein in the federal criminal law power. That power can swallow up a lot of provincial jurisdiction, leaving provincial governments with little room to make policy choices about issues that matter most to its people.

Karakatsanis J.’s approach to “gaps” in the law is also troubling. There are many reasons why provincial governments may or may not legislate an issue. Sometimes the lack of a provincial law is the product of an intentional choice. If the federal government can pass a law because the provinces haven’t, in the future, provincial governments may rush to pass a law to secure its control over an issue.

While some may say a bad law is better than no law, a “use it or lose it” approach to lawmaking may not necessarily reflect good policy. Provincial governments should be free to pass laws on issues within their jurisdiction without fearing that the federal government will pass a law if they fail to act. As the saying goes, “hard cases make bad law”. And in this case the main casualty is federalism.

*Shannon Hale is a Research Associate at the University of Saskatchewan College of Law for the September-December 2020 term

Just Hook It to My Veins

Judge Amy Coney Barrett’s excellent lecture on statutory and constitutional interpretation

Justice Scalia’s 1989 Lecture on “Assorted Canards of Contemporary Legal Analysis” is well known; indeed it has featured in a post by co-blogger Mark Mancini. Judge Amy Coney Barrett of the US Court of Appeals for the 7th Circuit revisited that lecture last year, and her remarks have been published recently, as “Assorted Canards of Contemporary Legal Analysis: Redux“. They are a short and profitable read, including for Canadian lawyers, to whom almost everything Judge Barrett says is relevant. Judge Barrett’s comments have mostly to do with statutory and constitutional interpretation, but they also touch on the issue of “judicial activism”. And I agree with just about every word.

The main topic Judge Barrett addresses is textualism. She defines it as the approach to interpretation that

insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

Judge Barrett contrasts textualism, so understood, with the view that “statutory language isn’t necessarily a hard constraint. … Sometimes, statutory language appears to be in tension with a statute’s overarching goal, and … a judge should go with the goal rather than the text”. (856) Judge Barrett labels this latter approach “purposivism”, but that is perhaps not ideal, since many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive.

With this in mind, the first three of Judge Barrett’s canards are “textualism is literalism” (856); “[a] dictionary is a textualist’s most important tool” (858); and “[t]extualists always agree”. (859) She notes that

[l]anguage is a social construct made possible by shared linguistic conventions among those who speak the language. It cannot be understood out of context, and literalism strips language of its context. … There is a lot more to understanding language than mechanistically consulting dictionary definitions. (857)

The relevance of context to interpretation is an important reason why textualists (and originalists) don’t always agree. If it were simply a matter of consulting the dictionary and the grammar book,

one could expect every textualist judge to interpret text in exactly the same way. Popping words into a mental machine, after all, does not require judgment. Construing language in context, however, does require judgment. Skilled users of language won’t always agree on what language means in context. Textualist judges agree that the words of a statute constrain—but they may not always agree on what the words mean. (859)

The example of such disagreement that Judge Barrett provides concerns the interpretation of the provisions of the US anti-discrimination statute ostensibly directed at discrimination “because of sex” as applying, or not, to sexual orientation and gender identity. Judge Barrett describes what happened at the US Court of Appeals for the 7th Circuit, but a similar disagreement arose when the matter was decided by the Supreme Court in Bostock v Clayton County, 140 S.Ct. 1731 (2020). Mark wrote about it here.

Judge Barrett then turns to another issue, this one concerned specifically with constitutional interpretation: should the constitution be interpreted differently from other legal texts? The idea that it should ― for which Chief Justice Marshall’s well-known admonition in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) that “we must never forget, that it is a constitution we are expounding” (407) is often taken to stand ― is Judge Barrett’s fourth canard. For her, “the Constitution is, at its base, democratically enacted written law. Our approach to interpreting it should be the same as it is with all written law.” (862) To be sure, the Constitution contains “expansive phrasing and broad delegations of congressional and executive authority to address unforeseen circumstances”. (862; footnote omitted) (One might do an interesting comparison of the US and Canadian constitutions on this point: as a very superficial impression, I am tempted to say that the delegations of legislative power are more precise in the Constitution Act, 1867, but those of executive power are even more vague.) But while constitutional language differs from that of an ordinary statute, the ways in which it should be interpreted do not: “[t]he text itself remains a legal document, subject to the ordinary tools of interpretation”. (862) Indeed, as Justice Scalia already argued, this the only reason for having installing courts as authoritative interpreters of the Constitution: were it not an ordinary law, why would we allow ordinary lawyers to have anything to do with it?

In particular, the principle that “the meaning of the law is fixed when it is written”, which is “a largely, though not entirely, uncontroversial proposition when it comes to statutory interpretation”, (863) applies to the Constitution too. This principle is indeed recognized, in statutory interpretation, even by the Supreme Court of Canada: R v DLW, 2016 SCC 22, [2016] 1 SCR 402 is a recent example. In the constitutional realm, however, our Supreme Court buys into the canard denounced by Judge Barrett ― or at least says it does. (Reality is often different.) As Judge Barrett explains, “as with statutes, the law [of the Constitution] can mean no more or less than that communicated by the language in which it is written” (864) ― and what that language communicates must of course be understood with reference to what it meant when it was communicated, not what it would come to means at some future date.

Judge Barrett makes an additional point which requires some clarification in the Canadian context, so far as statutes are concerned. It concerns the importance of compromise to the drafting of legal texts. For Judge Barrett, since laws reflect arrangements reached by representatives of competing or even conflicting interests, their interpreters should seek to give effect to these agreements and compromises, notably through “reading the text of the statute at the level of specificity and generality at which it was written, even if the result is awkward”, (863) and even when it might seem in tension with the statute’s purpose. The Canadian caveat is that our statutes are, at least to some extent, less the product of compromise than those of the US Congress. Especially, but not only, when they are enacted by Parliaments and legislatures where the executive has a majority, they reflect the executive’s policy, and are primarily drafted by officials executing this policy. But one should not make too much of this. As I pointed out here, statutes ― including in Canada ― often reflect compromises between a variety of purposes and values, even if these compromises are the product of a cabinet’s disucssions or even of a single politician’s sense of what is right and/or feasible. It follows that statutes should indeed be read carefully, with text rather than any one among these purposes being the interpretive touchstone. And as for constitutional interpretation, Judge Barrett’s point applies with full force. It was nowhere better expressed than by Lord Sankey in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58:

Inasmuch as the [Constitution Act, 1867] embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR, 65)

After briefly passing on the idea that “judicial activism is a meaningful term” (865) ― she notes that, actually, “there is no agreed-upon definition of what it means to be an activist” (865) ― Judge Barrett turns to the view that a legislature’s failure to overrule a judicial decision interpreting an enactment can be taken as assent to the interpretation. For one thing, since the meaning of a statute is fixed at the time of its enactment, “what a later Congress” ― or Parliament or legislature ― “thinks is irrelevant”. (867; footnote omitted) But further, “even if we did care, there is no way to reliably count on congressional silence as a source of information”. (868) Silence might just mean that the legislature is unaware of the decision, or it might mean that the legislature finds intervention inexpedient, or not enough of a priority, though desirable in the abstract. Judge Barrett does not quote Sir Humphrey Appleby, but she reminds us that we ought not to mistake lethargy for strategy. Judge Barrett also refers to the bicameralism-and-presentment legislative procedures of the US Constitution, but that discussion is probably less relevant to Canadian readers.

Indeed I am not sure how salient this issue of acquiescence-by-silence is in Canada, as a practical matter. I don’t seem to recall decisions invoking this argument, but I may well be missing some. Judge Barrett’s attention to it is still interesting to me, however, because it is one of the possible justifications for the persistence of adjudicative (or as Bentham would have us say “judge-made”) law (not only in statutory interpretation but also in common law fields) in democratic polities.

In that context, I think that Judge Barrett is right that we cannot draw any concrete inferences from legislative silence. My favourite example of this is the issue of the admissibility of evidence obtained in “Mr. Big” operations, where suspects are made to believe that confessing to a crime is the way to join a powerful and profitable criminal entreprise. Such evidence was largely admissible until the Supreme Court’s decision in R v Hart, 2014 SCC 52, [2014] 2 SCR 544, which made it presumptively inadmissible, except when tight safeguards are complied with. This was a major change, framed in almost explicitly legislative language. Yet Parliament ― with, at the time, a majority ostensibly focused on law-and-order issues ― did not intervene in response to the Supreme Court’s decision, just as it had not intervened before it. Does this mean Parliament agreed with the law as it stood before Hart, and changed its mind as a result of Justice Moldaver’s reasons? Probably not. What does its silence mean, then? Who knows. As Judge Barrett suggests, this does not really matter.

I wouldn’t have much to write about, I suppose, if I always agreed with the courts. I should be more grateful than I tend to be to judge who make wrongheaded decisions ― they may be messing up the law and people’s lives, but they are helping my career. Still, at the risk of depriving myself of future material, I call upon Judge Barrett’s Canadian colleagues to read her remarks and to take them on board. They are smart and show a real commitment to the Rule of Law. And, on a more selfish note, it really is nice to agree with a judge for a change.

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)

When Judicial Disagreement Doesn’t Matter

What does it mean for an appellate court’s decision to be unanimous?

By Peter McCormick

To begin with the obvious: common law appellate court decisions include two major elements. The first is the outcome – crudely, who won? – that takes the dichotomous form of“appeal allowed” or “appeal denied”. The second is the reasons for judgment, that take the form of a legal essay, sometimes of extended length, explaining why that outcome is the appropriate one and how it is grounded in existing law. Put more formally: an appeal court decision responds to two imperatives, the first being to provide a definitive resolution to a specific legal dispute, and the second being to provide the reasons for that outcome in such a way as to provide useful guidance to lower courts and future litigants.

From this it follows that there are two different types of judicial disagreement. A member of the panel may disagree with the outcome, saying that their colleagues got the winner wrong – we call this type of disagreement a“dissent”. Or they can agree with the outcome but disagree, or at least not completely agree, with the reasons given to explain and justify that outcome – in Canadian usage we call this a “separate concurrence”.

Dissents have drawn a voluminous literature, both empirical and normative, to such an extent that even a preliminary list would take several pages. When the focus of discussion shifts from the consideration of a specific example to a more general level, the usual complaint is that dissent rates are too high – judges (or perhaps just some judges) are too ready to pursue their own vision of the law rather than contributing to and reinforcing a more solid institutional position. Separate concurrences, on the other hand, are very much the forgotten poor cousin of judicial disagreement; to the best of my knowledge, there have only ever been two articles in Canadian law journals exploring the practice of separate concurrence and evaluating its contribution to the law.[1]

With respect to dissent, Jeremy Gans, in a recent piece in Inside Story and referring specifically to the High Court of Australia, has taken the highly intriguing position of flipping the “too many dissents”argument. Quite the contrary, he complains that it is possible – and, for the current High Court, an actual achievement – to have dissent rates that are low to the point of dysfunction, so much so that it reflects badly on the Court’s performance. His “Great Assenters” title is deliberately and pointedly ironic; at a certain point, he does not think that “assent” is great at all.

This looks like a fascinating conversation that I would love to join – perhaps by suggesting a “proper” (or at least“normal”) level of judicial dissent that as a yardstick against which “too high” and “too low” can be more precisely measured, such that the reasons (commendable or otherwise) for departures from that norm can be identified. But my enthusiasm was derailed by the second paragraph, which casually told me “All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons).” Our own Supreme Court has exactly the same attitude toward “disagreement on the reasons”, keeping its statistics on how many of its judgments were “unanimous as to outcome” but not seeing any necessity of taking the further step of telling us how many of those were also “univocal” (which is to say: unanimous as to reasons as well).

The clear implication of both Gans’s comment and the Supreme Court statistical reporting is that only disagreement as to the outcome really matters; differences as to the reasons are not really worth noticing – not even if they involve fundamental differences expressed at considerable length, not even if they are joined by several other judges, not even if the consequence is that there is no statement of “outcome plus reasons”statement that is supported by a majority. To be sure, disagreeing about the outcome is much more dramatic, with greater potential for news headlines and editorial commentary aiming scathing criticism at either the majority or the minority. It conjures visions – sometimes rebuttable but often compelling – of innocent people sent to prison or guilty people freed, of honest people victimized without remedy, of perfectly valid laws rendered null and void or bad laws upheld. Separate concurrences are less dramatic and often harder to explain, a judicial equivalent of “insiders’ baseball.”

With all due respect to both Prof. Gans andthe Supreme Court of Canada, I think their focus on “unanimous as to outcome”is a profound mistake. Putting the pointas starkly as possible: the outcome really matters only to the immediate parties, but the reasons matter to everybody. This is because it is the reasons, not the outcome, that constitute the precedent that constrains the immediate court and instructs the lower courts. Since there are only two possible outcomes (allow or dismiss), how can they carry any precedential message at all? The real point about dissent is not that the judges disagreed on the outcome but that they disagreed about the content and meaning and application of the relevant law; generally speaking, to disagree with the outcome is ipso facto to disagree with the reasoning that led to the outcome, so it is easy to conflate the two.[2] But “disagreeing on the content, meaning and application of the law” is precisely what separate concurrences are aboutas well, in ways that may be less dramatic but are often as profound and as potentially impactful as many dissents. As Scalia once said, a judgment that gets the reasons wrong gets everything wrong that it is the function of an appeal court decision to provide;[3]it follows that minority reasons identifying that species of error are just as functional, and just as important, as minority reasons that challenge the outcome as well.

To step back for a moment: there are essentially three different kinds of separate concurrence. The first is what we might call the “just one more thing” concurrence,which expresses agreement with the majority but wants to add one additional related thought about the law that the writer could not persuade their colleagues in the majority to sign on to. The second is what we might call the “one less thing” concurrence, which expresses general agreement with the majority but specifically excludes one or more elements of the majority reasons; depending how significant those elements are, and how many other judges sign on to it, this can sometimes have real implications. But the third kind, and as it turns out (at least in Canadian practice) the most common of the three, is the “by another route” concurrence, which opens with some variant of the apparently innocuous statement “I reach the same conclusion, but for different reasons.” This is not innocuous at all;it is as serious as judicial disagreement gets, so much so that McLachlin J. (as she then was) once described herself as “respectfully dissenting” from the majority even though she was at the time agreeing that the immediate appeal should be dismissed (in R v Potvin [1993] 2 SCR 880). Although she seems to have repented from this terminology, I remain convinced that she was on to something.

The distinctions I am making are highlighted by two important developments on the Supreme Court of Canada. The first is a consistent practice dating back several decades that distinguishes between unanimous (or majority, or plurality) judgments and minority(dissenting or separately concurring) reasons;this replaced the earlier practice whereby any set of reasons delivered by a judge was referred to as a “judgment”. The term “dissenting judgment” has become an oxymoron when applied to the current Court, although it was used by the Court itself before the late 1960s and still is appropriate for jurisdictions (such as the Ontario Court of Appeal) where the parallel labeling practice has not been adopted. The second is a decision-delivery process that highlights the judgment (or at least the initial attempt at a judgment) by systematically framing other sets of reasons as responses (“I have read the reasons”).[4] The joint impact of these two developments is to flag the significance of non-dissent disagreement in a very transparent way,although it is only making more visible implications that apply even in the absence of such explicit signals.

When and why and how does this matter? To simplify the context, let us take the most dramatic position and assume a nine-judge panel that has divided 5-4 on the outcome and then 4-1 on the reasons. We have an outcome, but what do we do about the reasons for judgment? Is there a plurality judgment, and if so which set of reasons earns the label? Or is there no “judgment” at all?

That depends on the nature of the disagreement between the various fragments of the majority. If the solo judge is writing reasons of the“one more thing” variety, then we have a separate concurrence that has explicitly lined itself up with and behind the four-judge reasons in such a way as to make those reasons the judgment. If those reasons are of the “one less thing” variety, then it may well have displaced the other reasons to become the judgment itself (because the “rule” as to which fragment of a divided majority is the judgment is not “largest fragment” but“narrowest legal grounds” – for an example, see Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791). But if the disagreement is of the “by another route” variety, then there may well be no “judgment” at all, which is to say that there is no majority position on the law that explains the outcome in way that clearly establishes precedent. For the Supreme Court of Canada, this only happens about once a year, but the point is that it does happen – the most recent examples are Haaretz.com v Goldhar, 2018 SCC 28 and Centrale des Syndicats du Québec v Quebec (Attorney General), 2018 SCC 18. Or consider the even more recent case of Mikisew Cree First Nation v Canada, 2018 SCC 40, which was unanimous as to outcome but with four different sets of reasons, all of comparable length but none attracting more than three signatures on a nine-judge panel; the decision is either unanimous, or 7-2, or 5-4, depending which of the major issues attracts your attention. Gans’s “great assenters” label hardly seems appropriate.

But my concerns apply more broadly than these dramatic and unusual developments. More generally we might say that behind every dissent, especially one that draws multiple signatures, lurks a disagreement deep enough that it might one day grow into a dramatic explicit abandonment of the majority’s jurisprudential position – like the reversal of the 1987 Labor Trilogy (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313; PSAC v Canada [1987] 1 SCR 424; RWDSU v Saskatchewan [1987] 1 SCR 460) twenty years later in B.C. Health Services (Health Services and Support-Facilities Subsector Bargaining Association v British Columbia, 2007 SCC 27, [2007] 2 SCR 391) on the status of collective bargaining under the Charter’s guarantee of freedom of association, or Carter’s 2015 repudiation (Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331) of the 1993 Rodriguez decision (Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519) on the constitutional status of the ban on assisted suicide. By a similar logic, behind every separate concurrence (but especially those of the “different route” variety, and especially those joined by several other judges) lies the potential for a less visibly dramatic but comparably significant evolution, perhaps to the extent of having the separate concurrence gradually displace the one-time majority incitation frequency (which again is something which has happened more than once).

Differences over reasons matter because reasons are what judicial decisions are all about; the evolution of the reasons explaining outcomes is what brings about much of the incremental change in the law. This makes it a serious mistake to assume that some judicial disagreement is necessarily less important simply because it does not involve disagreeing on the outcome as well as on the reasons that justify that outcome. When is it that judicial disagreement doesn’t matter? Only when we are so shortsighted as to ignore it.

[1] I admit that I wrote both of them: see Peter McCormick, “The Choral Court: Separate Concurrences on the McLachlin Court 2000-2004” Ottawa Law Review, Vol. 37 (2005-6); and Peter McCormick, “Standing Apart: Separate Concurrence and the Supreme Court of Canada 1984-2006” McGill Law Journal Vol. 53 (2008).

[2 ] That said, I think it is not impossible for judges to disagree on the outcome without disagreeing on the central legal issues and their precedential implications; my leading candidates would be R v Therens, [1985] 1 SCR 613 and Andrews v Law Society of British Columbia [1989] 1 SCR 143, the point being that for both of them the major precedential finding on the constitutional issue is made and explained in the dissenting reasons.

[3] Antonin Scalia, “The Dissenting Opinion” 1994 Journal of Supreme Court History p.33

[4] Peter McCormick, “Structures of Judgment: How the Modern SupremeCourt of Canada Organizes Its Reasons” Dalhousie Law Journal, Vol. 32 (2009)

Dunsmuir 10 Years Later

The context, aims, and aftermath of Dunsmuir

The Hon. Michel Bastarache CC QC

At the outset, I should express my gratitude to Professors Daly and Sirota for the invitation to contribute to this remarkable project, including such a superb array of leading lawyers, scholars, and judges. I have encountered the challenges of administrative law for most of my professional life in various capacities, but the sheer diversity of diagnoses and prescriptions, from such a wide range of contributors with such disparate views and organizing premises, has been eye-opening. By my count, there have been calls to revive the patent unreasonableness standard and to eliminate standards of review entirely; calls to greatly expand and tightly limit deference; calls to jettison presumptive categories and calls for more categorization; calls for greater attention to theory and more steely-eyed pragmatism; calls to hew more closely to Dunsmuir and to cast it aside more or less entirely; and much else besides that.

Depending on how you look at it, Dunsmuir is a decision so poor that all can agree went wrong in every conceivable direction, even if they agree on nothing else; or it may be that by synthesizing previous decisions and providing useful guideposts, it managed to secure some modest measure of progress. That ultimate reckoning is a task I will leave to others. I can only say that the contributors have been imaginative, original, astute and perceptive, and reading them all together provides invaluable insight into the subject, for which I am personally grateful and from which I think others can benefit greatly.

Obviously, I have my own views on Dunsmuir and the cases that followed it, and will share a few of them. But my focus in this response is not to defend Dunsmuir from its many critics, but to hopefully provide some insight into what we were trying to achieve, the thinking that went into it, how the unique role of a Supreme Court judge manifested itself in the decision. I intend this not as an apologia, although it may seem that way sometimes; rather, I hope that a better idea of our processes and thinking might help inform and provide some context around the many insights contained in the contributions, and be of some value to students of administrative law, of which I remain myself. I offer these observations in that spirit.

Institutional Constraints

I will begin with the paradox within which Supreme Court judges operate: that we are at once enormously powerful and tightly constrained. Acting at the apex of a system of laws, and guarded by judicial independence, there are few options categorically off the table, at least in terms of developing the common law, of which administrative law is one part. At the same time, we are subject to a broad range of effective constraints, including those imposed by precedent, the autonomy of colleagues, the cases that come before us, and the arguments as framed and argued by the parties. The degree to which a judge feels constrained by any of these factors will vary depending on the judge and the case; I can only speak of my own views, and the extent to which these considerations informed my contribution to Dunsmuir.

From my perspective, it is rarely possible for judges, even Supreme Court judges, to rewrite the law from scratch, however much we may like to do so. We are neither scholars at liberty to develop innovative solutions entirely anew, nor a law reform commission. And while we have the luxury of time that many judges in trial courts do not, we still need to decide a good many cases each year. We do not have the opportunity to focus exclusively on a particular problem or agonize over a judgment for too long, nor can we address an area of law in every conceivable respect in a single judgment. As our individual records might indicate, we are only too human.

Moreover, to the extent we can provide solutions to particular problems, we must not only attempt to find solutions that are conceptually sound, but also practically workable. We realize that it is not helpful to create overly abstract standards, however theoretically pleasing, that judges cannot apply and litigants cannot understand. Especially in an endeavour as diverse as administrative law, which touches on so many aspects of the modern state, the importance of ensuring our judgments are practical and accessible is not to be underestimated.

Perhaps most importantly, Supreme Court judges do not operate alone. We operate within a framework defined by our predecessors, by the need to obtain consensus with our contemporary colleagues, and by the knowledge that there will be subsequent judges who will soon take the reins.

Therefore, in a case like Dunsmuir, we must not only attempt to provide guidance to lower courts, but also create a workable framework that is consistent with and synthesizes the wisdom of generations of judges who came before us. To borrow from Ronald Dworkin’s terminology, we must attempt to both “justify” the system of judicial review by placing it in its best light, and make sure our solution “fits” reasonably well with our past and current practices. We can move the law, but incrementally ― we cannot knock everything down and start from scratch, however much that may be our personal preference.

And when we attempt to move the law, we must do so in a way that satisfies at least four of our colleagues. I recall experiencing this difficulty early in my Supreme Court career, when I first tried to obtain support for a less daring change in Pushpanathan. Of course, it is always possible for a Supreme Court judge to set out his or her own personal vision of the perfect solution, but that is not always the way you make real progress. (I should not be taken to be diminishing the value of a strong and principled, if lonely, judgment; my Dunsmuir co-author’s concurring reasons in CUPE, of course, identified many of the concerns that led to Dunsmuir itself.)

The difficulty, of course, is seeking to reconcile considerations that may pull in different directions in the context of a particular case that needs to be decided. An innate sense of justice and view of a theoretically sound approach to a particular issue pulls one way; the equally firmly held views of colleagues may pull in another; the gravitational force of precedent may pull in a third; and the concern with ensuring not only conceptual coherence but practical workability may pull another way still. In this reality, compromise is unavoidable.

I will confess I often found managing this task challenging, as I think most Supreme Court judges do. And it was especially challenging in a case like Dunsmuir, involving an attempt not only to craft reasons that will have some lasting impact, but which touched on such an enormous range of circumstances. As difficult and controversial as many issues that reach the Supreme Court can be, they often only affect a small subset of the population or a narrow area of the law; changes to judicial review of the scale contemplated in Dunsmuir affect a good part of the Supreme Court’s docket, hundreds if not thousands of lower court decisions every year, and at least at the margins, the day-to-day interactions between members of the public and government.

In this institutional setting, you realize your limitations pretty quickly, and do your best to work within them. I turn now to our attempt to manage this reality in Dunsmuir, and the problems we were trying to solve.

Our Objective in Dunsmuir

When Justice Lebel and I wrote the decision in Dunsmuir, we were not naïve enough to think it would be the last word on judicial review. We were not trying to resolve all of the insuperable theoretical disagreements or irreconcilable precedents in this vast legal universe, which often go to the heart of public law theory and modern governance. We were ambitious, but not that ambitious.

Instead, we were trying to bring as large a reform as we could to deal with what we saw as immediate and, we hoped, manageable problems. Those problems have been described many times, but I will say a word on some of the considerations that motivated us to think that we should try to do more than simply resolve the case before us.

First, from a practical perspective, we recognized that judges would routinely spend as much or more time addressing which of the three standards of review properly applied as they did on the legality of decisions under review. As Justice Binnie observed in his concurring reasons in Dunsmuir, the courts had become “unduly burdened with law office metaphysics” (at para 122). While there were paradigmatic cases where the standard of review would be clear, such as labour arbitrators interpreting a collective agreement, the proliferation of administrative actors and bodies and the variety of issues that may come before them often made it difficult to determine what standard should be applied. We hoped to make that process easier, at least some of the time.

Second, the distinction between reviewing for ‘reasonableness’ and ‘patent reasonableness’, in our view, had no principled foundation. As mentioned in Dunsmuir, we considered that “it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough”, and that it was “inconsistent with the rule of law to retain an irrational decision” (at para 42).

The primary difficulty, of course, was to determine when deference should be applied. One of our goals was to try to eliminate the need to undertake a full pragmatic and functional approach in every case. To that end, we attempted to provide principled and workable “guideposts”, while recognizing that we cannot provide more certainty than that.

We did not think that we could eliminate the pragmatic and functional factors entirely, however, simply because we realized the sheer breadth and diversity of the administrative state, and the ability of governments to come up with new and inventive ways of enforcing laws, delivering services, and carrying out social policies. Thus, if the standard of review had not been clearly identified in the past in relation to the particular body and type of decision, the court would still be able to consult the newly renamed standard of review factors.

It is true that the factors were not new, and did not lead to a clear or undisputable result in every case, but we saw no reason to abandon them. We believed, like many of our colleagues before us, that the standard of review factors – the presence of a privative clause, the purpose of the tribunal or other decision maker, the nature of the question at issue and the expertise of the tribunal – were the type of considerations that properly informed the question of how our courts should determine the appropriate degree of deference. Given the nature of the case itself, our analysis was prepared with adjudicative tribunals in mind; more attention would be paid to other actors in the administrative state in another context. But our hope at the time was that new decisions could fill that void, and that the retention of the standard of review factors gave the courts the tools to do so.

Having eliminated the patent unreasonableness standard, we were left with an obvious problem: what does “reasonableness” mean? One struggles to think of a concept as integral to so many areas of the law, and as stubbornly resistant to definition, as the idea of “reasonableness”. We recognized that we were unable to resolve that quandary in a way that could apply with precision to all of the varied circumstances that the courts would face, and therefore made no attempt to do so. What we did try to do was, again, to provide some guidelines or touchstones that fit with our understanding of the term as it had been applied in this context.

With our focus being on adjudicative tribunals, we were particularly concerned with their reasoning and decision making processes, to ensure that they demonstrate justification, transparency and intelligibility. But in our view, that did not exhaust the court’s supervisory task; we believed that one also must consider the outcome, and ensure that it was defensible in respect of the facts and the law. In this way, we attempted to reconcile and provide at least some structure to the types of decisions that the courts had, throughout modern history, determined were ‘unreasonable’. Our hope was that with the two flexible foundations for reasonableness review in hand, that subsequent cases would have the tools they needed to reach justice in individual cases, and develop the law accordingly.

Our objective in Dunsmuir was to create a framework for greater clarity moving forward, which both justified the use of judicial review, fit it into the framework of the cases that came before, and provided at least some workable guidance moving forward to be filled in and supplemented by future decisions. This provides a convenient segue into my next and final topic: the post-Dunsmuir cases.

Post-Dunsmuir

As just mentioned, our hope in Dunsmuir was to make some progress in both simplifying the standard of review analysis, and providing some workable guideposts and grounding for judicial review moving forward. It was an attempt to take stock of all the disparate and idiosyncratic decisions over the previous decades, and to synthesize it into a workable model. The success of such a project depends not only on the (always limited) abilities and foresight of authors, but also on the existence of other judges who agree with the project, both in terms of the foundational principles set out in Dunsmuir, and their application in particular cases.

Needless to say, such a consensus has been hard to achieve. I mentioned earlier that there have been cases decided since Dunsmuir that I would have decided differently, sometimes quite drastically. I will give a few examples.

In my view, in order for the Dunsmuir understanding of reasonableness to apply, there must be reasons and a rationale behind a decision. Unfortunately, this was set aside in Newfoundland and Labrador Nurses, and in Bernard v Canada (Attorney General) (2014) SCC 13. I also believe that legislative intent is still relevant, with the privative clause providing a strong suggestion that deference applies (see Dunsmuir, at para 52), and a right of appeal indicating otherwise. That is why, in my view, it is not acceptable to collapse appeal and judicial review, contrary to what was held in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. Professor Daly mentions that the leave requirement for an appeal and the differentiation between questions of law and questions of fact reveal an intention to have the question addressed by the courts. I agree.

In the Sageunay case, the court found that the presumption of deference had been rebutted; but I do not think there is or should be a legal presumption. The presumption of deference came from Alberta Teachers. As I understand Dunsmuir ― a necessary qualification, because I know my co-author signed on to the reasons in Alberta Teachers! ― we insisted on a contextual approach with general guideposts, which is inconsistent with a presumption of deference across the board. We simply said that, generally, reasonableness would apply in some circumstances (at para 54). We certainly did not say that correctness would no longer apply except in the case of four categories of decisions; the so-called correctness categories were examples of cases where correctness was obviously required. Beyond those categories, context would determine when correctness would be applied, and expertise would play a key role in those determinations. I might add that we did not say that expertise would be presumed, as some subsequent cases have held; in my opinion, deference had to be earned and justified in the context (at para 49). Deference is imperative for “processes and determinations that draw on particular expertise and experiences”, but not for all questions of law, merely because the question is raised by a decision-maker’s home statute. As Justice Slatter of the Alberta Court of Appeal put it, “these signposts were never intended to be hard and fast categories, and the standard of review analysis remains sensitive to the statutory and factual context.” Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City) 2015 ABCA 85 at para 23.

It also seems to me that some of the decisions that followed Dunsmuir were not based on a consistent principled approach, whether it be that in Dunsmuir or another; it seems clear to me that, in at least some cases, the Court wanted to expedite affairs that had dragged on for too long, and in the process, lost sight of the need for consistency (see Bernard, Canadian Human Rights Commission).

Indeed, I think there have been too many decisions that have cut against what we were trying to achieve in Dunsmuir, or at least have proceeded on an understanding of administrative law to which I do not personally subscribe. I did not expect the court to give leave soon after Dunsmuir to so many applicants; I thought it would give lower courts time to experiment so that future necessary changes could be better identified. I personally regret that the court tried to adjust the Dunsmuir approach so soon, and that it made decisions that were, in my view, inconsistent with Dunsmuir, while purporting to apply it. In my view, this created unnecessary confusion.

Suffice to say that there have been many decisions made since Dunsmuir that I would not have personally made. Differences of opinion are to be expected. I respect that. To a certain extent, this reflects the complexity of the subject, the wide variety of cases that may come before the Court, and the difficulty of creating a comprehensive solution that will suit every judge and work for every case in a field such as this. Whether the more significant departures reflect the limits and errors of the authors of Dunsmuir, a misapplication of it by subsequent judges, or a deeper disagreement with the project itself, I cannot say. The reality is that I cannot force others to follow the understanding of Dunsmuir that I would want them to follow, much less to resolve its unanswered questions and unavoidable ambiguities as I would want them resolved. And while that can be frustrating at times, it might ultimately be for the best.

That is because our common law system of judging depends on forging a consensus that persists over time, and proceeds on the assumption that the wisdom of judges collectively, acting incrementally, are better than a single judge dictating law for all time. While each individual judge is fallible and each judgment is flawed in the eyes of some, we must have faith in the collective abilities of the judiciary to work through and get us ever closer to where we should be. Like democracy as a system of government, I believe this widely dispersed, common law system is the worst possible process for judicial law making, except for all the others.

It is for this reason that while some might regret that our decision in Dunsmuir was incomplete or left important questions unanswered, I do not. I understand those who express this regret but can only say that it is not possible to produce such comprehensive and definitive answers to such monumental questions. All that we could do, in our short time on the Court, is to attempt to provide a theoretically sound and practical framework for the application of judicial review, and then to try to apply those principles in subsequent cases, to the best of our ability. I will leave it to others to judge our success in that project – the reviews appear to be mixed – and to the courts to do all that they can to improve upon that project moving forward. I have faith that they will do so to the best of their ability, as we attempted to do with ours.

How Judge Posner Thinks

Some thoughts on a recent book about Richard Posner

I have recently finished reading William Domnarski’s book on Richard Posner ― for reasons that will become apparent, I hesitate to describe it as a biography ― and want to share some thoughts on it. Be warned though: I am something of a Posner fanboy, and thus start with a favourable pre-disposition to a book that reads, at places at least, like it was written by one of my fellows. That said, as Paul Horwitz wrote in his review, for the New Rambler, of Judge Posner’s own Diverging Paths: The Academy and the Judiciary, “Posner’s greatest fans, if they take him as a model, should be his most engaged critics”. (I think this is also true any intellectual fandom; I try to apply this precept to my own, anyway.) If Mr. Domnarski’s book has a failing, it is probably that the author did not take this wise piece of advice as seriously as he might have.

In a sense, Richard Posner is of course a biography. It proceeds chronologically, from its subject’s childhood in New York, to his studies in English (at Yale) and law (at Harvard), to a Supreme Court clerkship (with William Brennan Jr.), to government work (in the office of the Solicitor General and at the FTC), to academic positions (briefly at Stanford and then in Chicago), to the bench. But after the first chapter, which covers the first three decades of Judge Posner’s life, up until his appointment in Chicago, there is no biography in a traditional sense at all. It is almost as if, having joined the Chicago faculty, Richard Posner simply lived happily ever after ― and I suppose he really has, although his happiness is often of a grumpy kind. It’s not for nothing that he loves cats and, as Mr Domnarski notes, compares himself to them.

Unlike in fairy tales, however, the happy ever after is the real story here ― albeit a purely intellectual, almost a dis-incarnate one. We learn about Judge Posner’s articles and books ― and others’ responses to them; about his questioning style on the bench ― and lawyers’ views on it; about his judgments ― and their citation rates; about how his decisions fared at the Supreme Court ― and how the Supreme Court fares in his writing (the short answer: very badly); and a little about his interactions and debates with academic colleagues (Martha Nussbaum is probably the one who is mentioned most often, but others, including Ronald Dworkin, feature too) ― and their views of him. More than a biography, then, Mr Domnarski has written a study of Judge Posner’s place in American law and legal thought in the last half-century ― the people and ideas who influenced him, his influence on others through his academic and judicial writing, and the reception that his ideas got from those who encountered them.

For a Posner fan, such as myself, this is fascinating stuff. And indeed it should be very interesting reading for anyone interested in American law, or in law tout court, which as an intellectual pursuit is now difficult to imagine without the economic analysis that Judge Posner has championed, especially in the first few decades of his career. Judge Posner has been many things to different people: an object of admiration (albeit tempered with criticism) to some, and a bogeyman to others; a heartless arch-conservative and a “deeply moral” progressive hero. That’s partly because his views have long been too complex for any caricature, but also because they have changed considerably over time, and Mr. Domnarski’s book does us all a service in re-tracing their evolution.

In one way, however, it does come up short. As mentioned above, I think Mr. Domnarski is not always living up to a Posner fan’s duty to be also a critic. He is critical sometimes, to be sure, as when he discusses some of Judge Posner’s adventures in looking for information outside the record, extending even to staging experiments in his chambers (which Josh Blackman has mocked as “judicial fashion shows“). But there might be more to be said about, and against, Judge Posner’s self-styled pragmatism, his admitted lack of regard for constitutional text and other conventional legal authority, and his criticisms of the legal profession’s hidebound ways, then is to be found in Mr. Domnarski’s book.

Alone, Judge Posner is often the child who is willing to cry out the truth about the nakedness, or at least the raggedness of the clothing, of the legal system’s majesty. (In a joint interview that Tom Ginsburg conducted with Mr. Domnarski and Judge Posner this week, the Judge mentioned that he was “brattier” than his classmates at Harvard Law School. He still is brattier than anyone in the legal world, as the interview itself demonstrates.) But what would happen to the legal system if all judges acted as he does, elevating policy at the expense of law? As a critic, Judge Posner scores painful hits when lambasting his colleagues, and lawyers, for a lack of scientific literacy or even curiosity. But what has he really offered in the way of solutions to a problem he eloquently identifies? Mr. Domnarski does not engage with, and mostly does not raise, these difficult questions, and that’s too bad.

These questions however reinforce a point that Mr. Domnarski does make (underscoring it with a running comparison between Judge Posner and his colleague, first at the University of Chicago and then on the 7th Circuit, Frank Easterbook). Judge Posner, in a word, is unique. Perhaps for the better, but mostly I think for the worse, there is not his like, and perhaps never will be. Mr. Domnarski’s study of Judge Posner’s thought and its place in American law is a reminder of what a force this thought has been, and remains.

Constraint and Candour

The case for a constrained judiciary ― but also candour about adjudication

At the website of Advocates for the Rule of Law (ARL), Asher Honickman has posted a reply to my post here on “How to Do Constitutional Adjudication” (which was itself a reply to some of his arguments in a previous ARL essay making “The Case for a Constrained Approach to Section 7” of the Canadian Charter of Rights and Freedoms). I would like to respond, focusing mostly on what I have been referring to as “democratic process failures” and their relevance to constitutional adjudication. I think that Mr. Honickman mis-characterizes my arguments on this point, but perhaps that’s because they were not clear enough to begin with.

* * *

First, though, a note on what is, as I know from conversation, a persistent but perhaps unimportant disagreement between Mr. Honickman and me. I wrote that

law generally, and constitutional law in particular, contains an ineradicable moral and ideological element, so that there is nothing wrong with perceiving judges as being ― in part ― moral agents and political actors. [Moreover], the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Mr. Honickman responds by conceding that “[t]he judge can no more divorce herself from her subjective experiences, beliefs and values than can the historian, the economist, or the physician,” but arguing that “it does not follow that judges should embrace their fallibility.” He wants judges to be “constrained by a ‘rule of law’ culture” that will limit, if not altogether remove, the negative consequences of the judges’ inability to be entirely objective.

I have no quarrel with this, but think this misses the point I was trying to make, which is that moral values and ideology are not just something that judges bring into the law because they are fallible, but something it is built into the law ― perhaps into the very concept of law. Mr. Honickman’s example is a telling one: history, economics, and medicine are supposed to be amoral. They describe the world and suggest ways to change it, but whatever values their practitioners bring to their craft are external to the disciplines themselves. Law is different. It has, Lon Fuller argued, an “internal morality.” It is, Jeremy Waldron says, inherently protective of human dignity. The Rule of Law, which Mr. Honickman wants judges to uphold, is itself a moral concept. (This view is not universal ― Joseph Raz, in particular, famously challenged it. But I find it quite persuasive.)

What I meant, then, when I wrote that law is necessarily moral and ideological was not only, and not so much, that judges will inevitably fail to avoid bringing their subjective values into their work ― though they will, and I agree with Mr. Honickman that this is regrettable. What I meant is that even when judges perform their work to perfection and only apply such principles as can be readily inferred from the constitutional text (the Rule of Law, federalism, and democracy, say) and many of the text’s explicit guarantees (I mentioned freedom of religion, equality, and protection against unreasonable search and seizure), they are already engaged in a moral and ideological endeavour. The proper response to the unreconstructed Marxist or the social justice warrior who dismisses the Rule of Law and the rest of it as bourgeois ideology is not to say that it’s not, but to admit that it is, and that you will keep sticking to that ideology because it helps prevent Gulags instead of building them. That said, in practice, little turns on the difference between these two responses.

* * *

Coming back to the issue of democratic process failures, my contention was not ― as it seems to me that Mr. Honickman took it to be ― that these provide a self-standing ground for judicial intervention, regardless of constitutional text or doctrine. The text, in particular, remains the overarching limit on judicial power, the law to which this power is subordinate. Doctrine is a more complicated case, and perhaps the ground of some disagreement between Mr. Honickman and me, because I would favour a somewhat less stringent approach to stare decisis than he might prefer. Still, I share Mr. Honickman’s belief in the importance of constraint.

My reference to democratic process failures ― as well as that to pervasive political ignorance ― was specifically in response to Mr. Honickman’s insistence that the legislatures’ ability to resolve moral issues means that judges do not need to do so. Legislatures, I argued, will often fail to address moral issues, or will address them in ways that have little to do with the voters’ preferences or interests, and much to do with those of the legislators. The point is not that courts have a roving commission to find out and correct cases when this occurs, but that they should not hesitate to make moral judgments ― when authorized or required to do so by the constitutional text (and doctrine) ― under the pretext that the legislatures will take care of this.

I originally spoke of democratic process failure in my comment on Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, where the Supreme Court held that a blanket prohibition on medically-assisted suicide was inconsistent with section 7 of the Charter. Although there were problems with the way the Supreme Court articulated that decision, its interpretation of section 7 was at least plausible ― and in my view correct ― in light of the constitutional text and the doctrine as it had developed in the years since the Court first answered that question in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. The point of my discussion of democratic process failure was to address concerns about the “counter-majoritarian difficulty” said to be inherent in judicial review. Because of such failures, it is not the case that judicial review is always counter-majoritarian (though of course it often is).

This example shows that any court empowered to review the constitutionality of legislation is ipso facto “empowered to correct ‘democratic process failures,'” ― and thus that Mr. Honickman need not worry that such correction “will necessarily be ‘instrumentalist,’ finding and affirming rights that are not supported by the Charter itself, but which, in the judges’ view, make for good social policy.” To repeat, the Charter‘s provisions remain the source of the court’s authority and at the same time the constraint on this authority, while democratic process failure is the reason for which that authority is invoked. Accordingly, when faced with what it thinks is a democratic process failure, the Court’s role is not to figure out the preferences of a majority ― which, as Mr. Honickman correctly points out, may not be determinate ― but simply to do the usual judicial task and invalidate the impugned statute or government decision if it is contrary to the constitution. At most, the presence of a failure obviates the case, if any, for judicial deference to the other branches of government.

I agree with Mr. Honickman that the questions that I raised about democratic process failures ― most basically, how do we know, and how can a court know, that one has occurred ― are difficult to answer, though it’s not clear to me that there can be “no objective standard” to help in the enterprise. But this difficulty does not undermine the case for judicial intervention, because, and so long as, that intervention is justified on another ground ― namely that of inconsistency between the government’s action and the constitution. Whether a democratic process failure has occurred might influence the deference that the court ought to show the government’s decision-making process, but the basic propriety of judicial intervention does not turn on the answer to this question.

Ultimately, Mr. Honickman and I might be disagreeing less about the judicial role than about democratic theory. Where I see “persistent inability of the democratic process to produce laws that majorities would agree with and find desirable,” Mr. Honickman sees “legislatures [that] do not base their decisions on the polls at any given time and look instead to the national interest.” The fact, which he acknowledges, that a passionate (or, I would add, strongly self-interested) and well-organized minority can prevail over the majority is not a bad thing in his view ― and, I suppose, fully consistent with the national interest. Even if democracy malfunctions, we should recall that it is “the worst system except for all the others” and correct its “imperfections … from within.” To me, this sounds like saying that because a free market is better than any alternative, we should not bother trying to correct market failures and hope that the market will correct itself, or that because government is necessary, our only response to government failure should be to improve regulatory mechanisms, instead of privatizing and deregulating. A few people accept the former argument, and many the latter, but to me, both seem fallacious. Democracy is indeed better than the alternatives, but if its shortcomings can be mitigated by means external to its normal processes ― such as judicial review ― then so much the better.

* * *

I share Mr. Honickman’s concerns about judges exercising their power without the constraints of constitutional text and legal doctrine. However, I do not think that the proper response to these concerns is to say that judges ought to be entirely non-ideological, and that they should leave matters of moral judgment to the legislative process, however flawed that process is. Like Mr. Honickman, I believe that judges should be enforcing constitutional rules, but I do not mind acknowledging the moral and ideological dimensions of many of these rules as well as the shortcomings of democracy, which judicial review can help remedy.

Not Such a Simple Thing

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

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

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

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

* * *

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

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

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

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

* * *

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

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

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

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

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

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

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

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

* * *

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

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

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

Permanent Problems

The law’s ideals and problems have not changed too much in 400 years

I have only now read Francis Bacon’s essay “Of Judicature.” Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway ― I suspect that they haven’t heard much of Coke in the science faculties, where Bacon is regarded as “the father of the scientific method.” Still, his essay is fascinating, because it shows just how little the law’s aspirations and failings have changed in the 400-odd years since it was published.

Bacon’s essay is essentially a collection of advice to judges about how to discharge their office. A good deal of it could still be repeated today. My point, in drawing attention to it, is not to say that all of this advice is good, at least in an unqualified form. It is, first and foremost, to remind the reader of the remarkable historical continuity which, for better and for worse, characterizes the law as a field of human activity. Here are a few of Bacon’s recommendations, with some accompanying thoughts or comments of my own.

* * *

Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.

Sounds familiar, doesn’t it? If and when there is at last a confirmation hearing for the next judge of the Supreme Court of the United States, you will hear this exhortation repeated ad nauseam; you might even hear it if there is any sort of public hearing involving the next judge of the Supreme Court of Canada. John Finnis quoted Bacon’s appeal in his very interesting recent lecture on “Judicial Power: Past, Present and Future” (whence I learned about Bacon’s essay). But the very fact that this limitation on the judicial role has for so long, and so often, been reiterated should alert us to the habitual futility of the appeal. The Supreme Court’s equivocation over whether it discovers or makes up the legal rules which it articulates for the first time seems to the suggest that the ideal of the law-saying judge has some appeal to those already holding judicial office ― but not as much as Bacon would have liked.

[W]hen there appeareth on either side an high hand, violent prosecution, cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.

This is also a familiar idea in 2016. Richard Posner, to give but one ― perhaps unexpected ― example has been very vocal about the need for active judicial intervention “to make inequality equal” by correcting the disparities of resources between parties to litigation, whether in his judgments or in a recent extra-judicial indictment of “What Is Obviously Wrong with the [American] Federal Judiciary, Yet Eminently Curable” (see 190-91). There are situations, it is worth noting, where judges might be making things worse, not better. I have been arguing for a while now that this may be happening in constitutional law, as judges increasingly expect expert evidence to support Charter challenges, and thus increase the inherent disparity of resources between citizens and government. (In a recent post over at The Court, Lillianne Cadieux-Shaw seems to share this concern.)

Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge … to prevent information by questions, — though pertinent.

There has been much discussion of this point following the recent death of Justice Scalia. He was a famously active interrogator of the lawyers who appeared before the US Supreme Court. Surviving him is his colleague Justice Stephen Breyer, whose ~~solliloquies~~ questions occupying entire pages in the oral argument transcript Josh Blackman lovingly (?) documents. By contrast, Justice Clarence Thomas, of the same court, had spent a decade without asking a single question until finally doing so recently. Justice Thomas, one supposes, would agree with Bacon. Those who derided him for his self-imposed silence presumably would not.

[T]hose, that engage courts in quarrels of jurisdiction, … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.

Here at least, I agree with Bacon wholeheartedly. Those who, in the pursuit of their own ― these days usually political ― agenda, seek to draw the courts beyond their proper remit are not the courts’ friends, though they may present themselves as such. I have said as much in response to a call for the Supreme Court to decree, by judicial fiat, the “depoliticization” of judicial appointments. I wish I’d known the phrase parasiti curiae then, but I will make sure to use it on the next appropriate occasion.

Judges ought above all to remember the conclusion of the Roman Twelve Tables; Salus populi suprema lex.

Perhaps the most obvious example of Canadian judges applying Bacon’s prescription is the Supreme Court’s opinion in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, where the Court sought to avoid “chaos” that its finding of unconstitutionality of Manitoba’s entire statute book by the expedient of suspending this finding’s effect. But beyond such exceptional situations, Bacon’s advice gets tricky fast. For one thing, the Latin salus is ambiguous. It can mean “health,” “safety,” or “welfare” ― making salus populi not one single objective, but a complicated programme. Still it is often said that judges ought to have regard for the public safety (“the Constitution is not a suicide pact”) or even welfare ― Judge Posner being a foremost advocate for the latter position. But isn’t there a tension between making public welfare into supreme law, and renouncing judicial legal innovation? Bacon says, “let no man weakly conceive, that just laws and true policy have any antipathy,” but even if true, this point doesn’t really address the issue of the judicial role. And Bacon’s concrete recommendations for achieving the salus populi ― frequent consultations between the three branches of government, and a demand that judges “be lions, but yet lions under the throne” would run afoul of our views on judicial independence, which are quite different from his.

* * *

In the essay I mention above, prof. Finnis writes that “[t]he problems about the nature and reach of judicial power, about which Bacon and Coke disagreed, are with us today in forms much shifted in occasion and location but still recognizably the same.” That is because they are “permanent problems, capable it seems of only provisional rather than permanent solutions.” (3) The relevance of Bacon’s prescriptions, and the fact that they would be contested now as they were contested when given (and again, except as specified above, I do not fully agree with them), suggests that prof. Finnis is right about that.