Which Principles? What Politicization?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Judge Unbound

The Prime Minister has at last named his choice to fill the vacancy left on the Supreme Court by the retirement of Justice Thomas Cromwell. It is Justice Malcolm Rowe, now at the Newfoundland and Labrador Court of Appeal. For all the concern ― of the Prime Minister’s and his government’s own making ― about whether he would be prepared to breach the convention of regional representation on the Supreme Court in the service of an identitarian quest to appoint, say, an aboriginal woman, Justice Rowe’s appointment will, on the surface, be an unremarkable one. The convention stands undisturbed ― and perhaps stronger thanks to having been affirmed by a unanimous resolution of the House of Commons ― and the Court gets yet another successful and well-connected white male member. (Justice Rowe will be the first Newfoundlander to sit on the Supreme Court, however, so his appointment is groundbreaking in that way ― a step forward for old-fashioned regional diversity, if not for the contemporary demographic sort. Justice Rowe, who was born in 1953, is also relatively old ― among his new colleagues, only Justice Moldaver was older when he was appointed to the Supreme Court; many were substantially younger.)

Justice Rowe’s appointment is noteworthy, however, because of his views on his new job ― disclosed by the government as part of a questionnaire that he, as well as others who applied, had to complete in order to be considered. There are other interesting nuggets there, which others have highlighted. There’s Justice Rowe’s assertion that he was in fact the author of an opinion ostensibly signed by his court (see “Synopsis 2” in Part 7 of the Questionnaire); there’s the fact, highlighted by Dave Snow on Twitter, that he took a French immersion course just before applying, suggesting that his French might be rather rusty, at best; there’s a rather turgid writing style, though it is perhaps unfair to judge a man’s prose by the way in which he filled out a form. But let me focus on Justice Rowe’s ideas about judging and, especially, the Supreme Court. These ideas are, to me, concerning if not disqualifying.

Justice Rowe states that “[t]he Supreme Court is not, primarily, a court of correction,” which is certainly true, so far as it goes. He is right to say that “[t]hrough the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement.” But his conclusion ― that “the Supreme Court judges ordinarily make law, rather than simply applying it” ― is still remarkable. It is worth recalling, though admittedly Justice Rowe is not the only person who does not, that as John Austin pointed out in The Province of Jurisprudence Determined, the phrase “judge made law” was itself made up, by Jeremy Bentham, and was intended as “disrespectful and therefore,” Austin thought, “injudicious.” More importantly, the idea that judges ― those of the Supreme Court anyway ― usually “make make law rather than simply applying it” suggests that Justice Rowe will not feel bound by the constraints that precedent and statutory and constitutional text are thought to impose on judges, including those of the highest courts. The view is not exactly original ― as I noted elsewhere, Chief Justice McLachlin has expressed her own sympathy for it ― but it is disconcerting nonetheless. For the Rule of Law to exist, courts, like other government institutions, ought to be bound by the law. If judges feel that they can simply make the law up, indeed that this is what they are expected to do, the Rule of Law is not long for this world.

Now, in the very next paragraph, Justice Rowe says that ― unlike in common law adjudication ― “the role of judges concerning the interpretation of statutes … is to give effect to the will of the legislature.” But of course a substantial part of the Supreme Court’s work does in fact involve interpretation of statutes ― whether of the Criminal Code, the Income Tax Act, or of other legislation. At best, then, Justice Rowe’s previous statement about judges as law-makers is thoughtless, or reflects a certain confusion about what it is that the Supreme Court does. (It may well be that this is what’s going on here: as prof. Snow has observed, Justice Rowe is simply wrong to claim that “[r]elatively few recent cases deal with the division of powers.”) At worst, he is deliberately saying one thing and its opposite, the better to justify any approach he might be pleased to take in a given case. As Benjamin Oliphant has pointed out, this is indeed something of a tendency in Justice Rowe’s answers ― and also in the jurisprudence of the Court which he is about to join.

Justice Rowe’s view of the Supreme Court’s place in the Canadian constitutional framework is, ultimately, the smugly self-assured one that is prevalent in the Canadian legal community. Judges make law ― especially, it would seem, constitutional law, where Justice Rowe sees room for reviewing the Privy Council’s division of powers jurisprudence (though he does not explain on what issues), while the plebs (including, presumably, its representatives in Parliament) gladly and wisely accepts the pronouncements of the patres iudices: “Canadians,” Justice Rowe informs us, “have come to accept and embrace this enhanced role for judges. The wisdom and well-founded principles that have informed this role in the jurisprudence of the Supreme Court reflect favourably on our country.” Some might even find Justice Rowe’s frankness in stating these views refreshing in comparison with the balls-and-strikes boilerplate future members of the U.S. Supreme Court are now generally expected to spout. Yet to me, a judiciary that is no more bound by a sense of modesty than it is by the law itself is a distressing prospect. Considering that the Prime Minister and his advisers seem to be comfortable with it, I may have to get used to it too.

Unconstitutional

Thoughts on the constitutionality of the new Supreme Court appointments process

In my last post, I argued that the process for appointing Supreme Court judges announced by the federal government last week is not a positive development. It will neither increase the transparency of the appointments nor de-politicize them, while creating an illusion of having done so. In this post post, I turn to the separate question of whether this process is constitutional. Two issues are relevant here. One is the government’s insistence that all future judges be bilingual. The other is the possibility that it will disregard the convention of regional representation on the Supreme Court, which requires the next appointment to come from Atlantic Canada.

* * *

I have argued here that in light of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433 legislation requiring judges to be bilingual would be unconstitutional. Kate Glover has reached the same conclusion, albeit on the basis of a rather different reasoning, in a guest-post here. (I should note however that others, notably Sébastien Grammond, disagree with this view.) At the same time, it is quite clear that the government is entitled to make a policy choice to privilege certain criteria for appointing judges. After all, even a stated commitment to only appoint meritorious or excellent judges is an addition to the bare-bones constitutional requirements that l’Affaire Nadon froze in place. It would be well within the Prime Minister’s discretion to only appoint bilingual judges, and even to say that he would only appoint bilingual judges. (It would, I have argued, be an unwise thing to do, but that’s another question.)

The constitutional issue, then, is whether the government’s announcements amount to an attempt to modify the law governing the appointment of Supreme Court judges, which in my view would be unconstitutional, or are merely a policy statement, which would not be. I am inclined to think  that so long as the bilingualism criterion remains essentially a policy directive, found in nothing more law-like than press releases and mandate letters, it does not stray into unconstitutionality, despite the contrary suggestions of some others, such as Matthew Hennigar and Dennis Baker in a very informative roundtable discussion published by Maclean’s. The difference between their conclusion that the Prime Minister is (in prof. Hennigar’s words) “courting a constitutional challenge” and mine may be due to the fact that they approach the issue by asking whether the bilingualism requirement is formal (and therefore constitutionally questionable) or informal (and therefore permissible). In my view, it is better to think in terms of the legal or extra-legal nature of the requirement, rather than in terms of its formality, because the underlying concern is with the integrity of constitutional rules, not their expression. Still, my views on this are tentative, and I am open to being shown that they are in error.

* * *

The matter of the regional representation convention is more clear-cut. The government’s initial statements simply ignored the convention altogether. Then, the Prime Minister’s mandate letter to the Chairperson of the Advisory Board that will supply him with a shortlist of potential appointees asked her to “consider the custom of regional representation on the Court as being one of the factors to be taken into consideration.” But a constitutional convention is not a mere custom. It is a mandatory rule of the constitution, not just a factor to be taken into consideration among others. Violating it means acting unconstitutionally.

This point needs to be emphasized, because more than a few commentators seem to believe that an appointment in violation of the convention of regional representation would not be unconstitutional, because it would not be illegal or attract a judicial sanction. (Paul Daly’s dismissal of the convention as “fluid,” and a rule that can be tinkered with at will because it is not legal is sadly representative of this attitude.) I will return to the question of judicial sanction in a moment. But first, it is sadly necessary to remind those who think that ignoring conventions is a relatively trivial matter, that this has never been the position even those jurists who, following A.V. Dicey, insisted that courts could not enforce conventions. In the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, the Supreme Court explained that

important parts of the constitution of Canada … are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution. (877-78; emphasis mine)

These important, even fundamental, constitutional requirements, or ― as the Court also described them ― “essential rules of the constitution” (878) are conventions. The Diceyan view, which was also that of the Supreme Court in the Patriation Reference, is that constitutional conventions and constitutional law together make up the constitution. In the Patriation Reference, the Court observed that in some cases, a breach of convention “could be regarded as tantamount to a coup d’état.” (882) Of course, the breach of the convention of regional representation would not rise to that level of unconstitutionality, but it would still amount to unconstitutional action by the government, much like Pierre Trudeau’s attempt at unilateral patriation of the constitution would have been unconstitutional, although not illegal.

At Emmett Macfarlane’s urging, I will grant that the Advisory Board might take the convention more seriously than the government seems to want it to, or that the Prime Minister might yet see the folly of breaking it. The intervention of the CBA president Janet Fuhrer, who is “urg[ing]” the Prime Minister “to amend the mandate of the Advisory Board … to ensure that the Atlantic Canada vacancy is filled by a meritorious candidate from that region” is encouraging in this regard, although it is disappointing to see Ms. Fuhrer hedging her language and referring to “the longstanding custom or constitutional convention of regional representation.” The re-classification of convention into custom denigrates it and suggests that it is not binding on the Prime Minister. For the purpose of passing a political judgment on his actions, it really does not matter whether the constitutional rules he is prepared to breach are classified as being convention or law.

Now, this classification does matter for a court passing a legal judgment on the constitutionality of the government’s actions ― or at least it does so on the Diceyan view. I have argued in the past, and still believe, that this view is mistaken as a matter of legal philosophy. That is, of course, irrelevant. But there is now reason to question whether the Diceyan view is still valid in Canada as a matter of positive law. For one thing, as we know from the Patriation Reference itself, Canadian courts consider themselves free to express their views on conventions in the context of reference proceedings. It would be enough for a provincial government to refer the issue to its court of appeal for the convention of regional representation to be fair judicial game. Moreover, lower courts have already pronounced on constitutional conventions in the context of ordinary litigation (notably in Conacher v. Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411, aff’d in Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 FCR 22) though the Supreme Court has not yet had an opportunity to do so.

Then, there’s the possibility that that the Supreme Court has transformed at least some constitutional conventions into legal rules when it invoked the notion of a “constitutional architecture” in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. My view, at least, is that that’s exactly what the Court did, but this is a controversial claim, and I have no room to develop, much less to defend, it here. (I will try to do that in a paper I am due to write in the coming months, and I will try to blog about it as I do so.) Even if I am right, however, there remains the further question of which conventions are part of the constitutional architecture, and in particular whether that of regional representation is. In a very interesting post at the CBA National Magazine’s blog, Jennifer Taylor has argued that it is. She may well be right, but I need to think a bit more about this before I am sure.

* * *

Important though it is, the legal issue should not distract us from the constitutional one. Constitutionally (and legally), the Prime Minister is in my tentative view free to adopt a (misguided) policy of only appointing bilingual judges to the Supreme Court, and to ask his advisers to counsel him accordingly. But, constitutionally (whether or not legally) the Prime Minister is not free to deprive Atlantic Canada (or any other region) of its representation on the Supreme Court. The appointment of a judge from outside Atlantic Canada would be unconstitutional, regardless of whether it would be illegal (though it might be), and of whether or not courts could say so (though they could).

That the Prime Minister should be open to engaging in such behaviour makes it clear that ― rather like his predecessor ― he does not consider himself bound by the constitution, or at least those parts of the constitution that he thinks he might get away with ignoring. For this reason, I find the many expressions of support for the Prime Minister’s plan quite dispiriting. They give the impression that the scrutiny which the legal community rightly applied to the previous government’s cavalier approach to the constitution was as much the result of opposition to that particular administration as of a sincere belief in constitutionalism. And it would be very sad indeed if that impression were justified.

Smoke and Mirrors

The new process for appointing judges to the Supreme Court is nothing to be happy about

Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a triumph of transparency and depoliticization, this new process is an elaborate mechanism of smoke and mirrors set up by a government that wants to look like it is committed to improving the state of the Rule of Law and of Canada’s judicial institutions ― and to act like it is not.

The new process starts with a seven-member “Advisory Board” appointed by the government, which will receive applications from lawyers and judges who put themselves forward for an appointment, and is also asked “to actively seek out qualified candidates and encourage them to apply.” After consulting “with the Chief Justice of the Supreme Court of Canada and other key stakeholders the Board considers appropriate,” the Board will put together a list of three to five candidates and provide an assessment of how they meet the criteria for an appointment ― both the baseline laid out by the Supreme Court Act and the government’s wish list for a perfect judge. After a further round of consultations ― including, once again, with the Chief Justice ― “the Minister of Justice will present recommendations to the Prime Minister who will then choose the nominee.” Finally, the Chairperson of the Advisory Board, the Minister of Justice, and the chosen candidate (whom the government documents refer to as the “nominee” even though his or her appointment at that point, is a fait accompli or at least a foregone conclusion), will meet with Members of Parliament, the latter in a “question and answer session” moderated by a law professor.

Is this really a victory for transparency? In an excellent round table published by Maclean’s, Dennis Baker ― who, as we’ll see, is in many ways skeptical of the new appoitnment process, says that the “Government deserves credit for making the process more transparent and open.” Paul Daly is delighted that judges will no longer “actively lobby behind the scenes for elevation to the Court.” I am not so sure. There is simply no objective way to weigh the sixteen ― yes, sixteen ― criteria on the government’s wish list, and to classify the indefinite number of candidates whom the Advisory Board will consider according to these criteria. The same goes for the Prime Minister’s ultimate choice between as many as five candidates. Whatever reasons the Board and the government may give for their choices will be no more than exercises in ex-post self-justification, which does not count as transparency in my book, though the illusion of transparency the process creates may if anything be even worse than the current clearly opaque process. As for judges lobbying the Advisory Board or the Justice Minister behind the scenes, I see nothing in the government’s announcement preventing that from happening.   

In some ways, to be sure, the new process will be more transparent than those that were used before. In particular, it is pretty clear (although not explicit) that the Advisory Board’s shortlist will be public, which past shortlists were not (until leaked, or dug out by, the media). For my part, I do not find this change an improvement. I feel for those candidates who will be encouraged by the Board to apply and not shortlisted, and for those shortlisted and ultimately shortchanged. John Pepall asks whether MPs who take part in Parliamentary hearings with the Justice Minister “[w]ill … be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice,” he says ― sarcastically of course.

The other supposed achievement of the new appointment process is that, in prof. Daly’s exultant words,

[n]o longer will political appointments be made because of party allegiance or ideology rather than legal acumen. … Henceforth, a judge’s ability to ‘do law’ will become the primary criterion for nomination, bringing Canada into line with other countries where appointments are made entirely on merit.

With respect, this strikes me as an unlikely prospect. First, as already noted, the Prime Minister retains substantial discretion under the new process, having reserved for himself the prerogative of choosing from among up to five candidates, and the large number of subjective, imponderable criteria supposed to guide that choice mean that any selection can be retroactively justified in suitably lofty language. Nothing stops this discretion from being used ― or abused ― to appoint the candidate seen as the most ideologically friendly, or indeed the one deemed to best satisfy some set of demographic desiderata having nothing to do with legal acumen. The government’s reported frustration at being unable to find a judge corresponding to such demographic criteria to replace the retiring Justice Cromwell gives little hope that they will not overshadow ability “to ‘do law'” as it goes forward with its Supreme Court appointments.

And second, even if the Prime Minister has no intention of doing this, the fix is already in by the time he receives the Advisory Board’s short list ― and it is his government’s design of the Board that assures that this is the case. In the Maclean’s round table, Troy Riddell says that

The dominance of the legal profession on the [Advisory Board] coupled with the other non-legal members appointed by the government is suggestive of the kind of candidates the government wishes to choose (and those whom they do not want to choose—namely those with more conservative ideology). [The new process] is an improvement over the old system, but “politics” broadly defined will stay play a role.

Lori Hausegger responds by saying that

the representation [on the Advisory Board] of the Canadian Bar, the Canadian Judicial Council and the Federation of Law Societies—not to mention a progressive conservative as chair … —suggests [excluding “someone with a more conservative ideology”] is not the government’s main focus.

However, as prof. Riddell points out,

Organizations representing lawyers and judges tend to see themselves as “guardians” of the constitution—their vision of the constitution and the relationship between courts and Parliament is likely not as liberal as some activists would desire, but it is more liberal than what would be espoused by a conservative-oriented jurist. The overall result could be a lack of ideological diversity on the Supreme Court bench, which I think would be unfortunate.

I think prof. Riddell is right, and indeed I would put the point more strongly. The legal profession and the judiciary already are ideologically homogeneous. This is why Stephen Harper found it so difficult to appoint judges to his liking. An advisory Board dominated by representatives of an ideologically homogeneous profession will be homogeneous itself, and, as any such group, will reproduce and reinforce its members’ preferences in its decisions.

Like prof. Riddell, I think this unfortunate, because I believe that courts benefit from ideological diversity just as much as they benefit from demographic diversity. However, the lack of such diversity as such is not a significant criticism of the new appointments process, because it is every bit as possible for appointments made at the Prime Minister’s unfettered discretion to be just as homogeneous. The reason I belabour this point, rather, is that it shows that the pretense that the new process is somehow de-politicized to be a sham.

There is more to say about the new process, but this post is getting long, so I’ll try to be brief. I will note that I have already explained, in some detail, why I think that bilingualism should not be required of newly-appointed Supreme Court judges. In a nutshell, while I take the point that competency in both official languages is an aspect, and a very important aspect even, of legal competence, judicial appointments inevitable involve tradeoffs, because all potential judges have their strengths and weaknesses, and I would not foreclose the possibility that a candidate’s strengths elsewhere outweigh his or her linguistic shortcomings. The requirement of bilingualism ― and the government’s wish list, which states that it “has committed to only appoint judges who are functionally bilingual,” makes it very clear that it is a requirement and not, as prof. Daly says, merely “a desirable characteristic” ― is a serious mistake.

And then, there is the question of just how heavily demographic considerations, such as gender, background, or disability will weigh in the new process. Although the government has hinted that such factors will matter ― and, other things being equal, a demographically diverse court is better than a homogeneous one ― it is rather encouraging to see that “[e]nsuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society” is only one of the sixteen criteria on the government’s wish list, and indeed the very last one. As for the Advisory Board chairperson’s mandate letter, it does not mention this issue at all. Perhaps the government knows that its winks and hints will be enough ― but perhaps its approach really is a little less identity-focused than some of its fans might have hoped for, and its skeptics (yours truly included) feared.

This is ― perhaps ― a silver lining. But otherwise, the news of the shiny new appointment process for Supreme Court judges portends nothing good. The process conceals Prime Ministerial power as much or rather more than it diminishes it, while needlessly exposing unsuccessful candidates ― many of them, no doubt, sitting judges ― to public humiliation. It does not prevent the government from appointing judges on the basis of political or considerations or other factors unrelated to legal ability, and indeed ensures that ideology will continue to play a key role in judicial appointments. And it foolishly elevates bilingualism into a determinative consideration for appointment, reducing the pool of eligible candidates and doubtless depriving the Supreme Court of many fine judges. It is, in short, nothing to be happy about. As for the further question of whether it is also unconstitutional, I hope to return to it later this week.

Good Advice

Randy Barnett and Josh Blackman have an interesting piece in the Weekly Standard, with some pointed advice to the eventual Republican presidential nominee, whoever that might be, regarding the choice of nominees to the U.S. Supreme Court. Admittedly, it will be most interesting to constitutional law junkies and fascinated observers of the American legal system such as yours truly, because much of it has to do with the politics of the American nomination and confirmation process, and with the debate about the proper judicial role that might not resonate very strongly this side of the border. But it also contains lessons Canadian politicians of all stripes, and for the broader public.

Profs. Barnett and Blackman urge the appointment of judges with “paper trails” ― those, in other words, who have expressed their views on the law and on adjudication publicly. Partly, that’s because they want judges to be known quantities who will not disappoint those who have appointed them once in office. But they make another point: judicial “wannabes who ‘trim their sails’ and limit their potential based on a fear of a future confirmation hearing … lack the character a justice needs.” Profs. Barnett and Blackman quote Pamela Karlan ― a professor who has never been appointed to judicial office because, it is suspected, of her outspoken views ― who said that “Courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.” And they add that would-be judges who “spend their careers seeking the approval of others” will bow to social and journalistic pressure once on the bench ― to the detriment of the Rule of Law.

I think this is a very important point. I wouldn’t go so far as to say that a “paper trail” should be a requirement for judicial office, even on the Supreme Court. I suspect that the bench at all levels, including the highest one, benefits from the appointment of people with a variety of professional backgrounds, including practising lawyers who, (almost) necessarily, will not have had the opportunities to express their views that law professors and sitting judges have. But profs. Barnett and Blackman’s argument about what “trimming one’s sails” says about a person’s character and independence of mind still holds. That a practising lawyer has not said controversial things probably does not prove that he or she is an approval-seeker; that a professor has never made an unorthodox or a controversial argument should make one more suspicious. A person, whatever his or her prior occupation, who has not been shy about expressing his or her views including when this might lead to criticism and disapproval demonstrates a character trait that is highly desirable in a judge ― though needless to say it is not the only such trait.

I am thinking of Justice Brown as I write this, of course, and the criticism his blog posts, in particular, have attracted. Professor Brown, as he once was, was an outspoken man who wasn’t afraid to ruffle some feathers among colleagues who, for the most part, did not share his views. Following his appointment to the Supreme Court, some of his critics have attacked the substance of his posts, which is fair enough, though as profs. Barnett and Blackman explain, politicians would be wrong to avoid appointing judges who will attract such criticism. But some of the criticism directed as Justice Brown’s appointment struck me as suggesting, deliberately or not, that there was something wrong with the very fact of then-prof. Brown’s taking controversial positions, or of the Prime Minister’s appointing a person who has taken such positions to the bench. Profs. Barnett and Blackman make a compelling case that criticism of this sort is wrong-headed.

There is, in addition, a broader lesson that we ― and especially our politicians ― can take from their article, whether or not we agree with its prescriptions. It is that the sort of judges political candidates plan on appointing if elected is an important question which deserves to be reflected upon, debated, and made an issue during an election campaign. A month into the ongoing federal campaign, we have not heard the candidates speak about this at all. We might, or might not, despite his nearly ten years in office, have a sense of what Stephen Harper’s approach to judicial appointments is. But about Justin Trudeau? What about Thomas Mulcair? Journalists, of course, bear a large part of responsibility here, since they have not asked these questions.

So here’s some advice of my own: if you are a journalist, do ask these questions. And if you are a wannabe Prime Minister, be prepared to answer them.

False Friends

The elevation of Justice Brown to the Supreme Court has provoked an outpouring of anguish and anger about the system of judicial appointments in Canada. The critics of the current arrangements, whereby judges of superior, federal, and appellate courts are in effect appointed by the federal government, with relatively little ex-ante and no ex-post control by anyone else say that they allow ideology, partisanship, or patronage to play too large a role in the selection of judges. Some go so far as to say that these arrangements make the impartiality of the judiciary questionable. In a recent op-ed in the Globe and Mail, Joseph Arvay, Sean Hern, and Alison Latimer go further still, and call for a constitutional challenge to be brought, allowing the Supreme Court to require the creation of “an independent appointment and promotion commission.” Actually, such a ruling by the Supreme Court may well prove a disaster for the independence of the Canadian judiciary.

I can’t help but notice that there is something deeply ironic about many of the calls for reform that have been prompted by the appointment of Justice Brown and, earlier, that of Justices Huscroft and Miller to the Court of Appeal for Ontario. These appeals give pride of place to the need to free the appointments process of the influence of ideology. Why is it, then, that they follow the appointment of judges known or suspected to be ideologically out of step with the bien-pensant Canadian legal community? Why was there nothing like the same amount of criticism directed at the process by Justice Côté was appointed, which was no different from that which led to the appointment of Justice Brown?

To be sure, the Canadian judicial appointments system has long had its critics, and they are entitled to use the news cycle to advance their arguments. But they seem to me to be a minority among those who have been denouncing the appointments process in the last few weeks. For the other would-be reformers, at least, the aim seems to be not so much to rid judicial appointments of ideology, but to prevent the appointment of certain judges for the same sort of ideological reasons which they say have no role to play in this process.

Whatever their motivations, Messrs. Avray and Hern and Ms. Latimer that the processes of judicial appointment and promotion in Canada “are systemically vulnerable to political strategizing and a majoritarian disregard for the importance of diversity on the bench.” It is clear enough that the ominous-sounding “strategizing” is the appointment by of judges presumed to be ideological allies. As for “diversity,” though its meaning is never actually explained, it seems to refer to a diversity of the demographic kind ― not a diversity of opinion.

According to Messrs. Avray and Hern and Ms. Latimer, the risk of “strategizing” and the lack of diversity create a risk that the judiciary will be perceived as not independent from government. They seem especially worried by the process of promotion from a lower to a higher court, over which the government now his full discretion. Litigants, they say, “must be free of all reasonable concern that the presiding judge could be influenced by a desire to be promoted.” As I have already said, their proposed solution to these ills to set up, by judicial fiat, an independent commission that would, presumably, see to it that merit and diversity are the only factors considered in the appointment and promotion processes.

This remedy would in my view be worse for the independence of the Canadian judiciary than the disease ― if, indeed, disease there is. Messrs. Avray and Hern and Ms. Latimer claim darkly that “public confidence in the process is failing,” but offer no evidence whatever in support of that claim. Is an outburst of panicked tweets and top-eds from a certain section of the legal community indicative of falling public confidence? Colour me skeptical. It is well known that the Conservative government has kept losing more and more cases before the Supreme Court even as it appointed more and more of that court’s judges. For anyone to think that, nevertheless, the appointment process has in any way undermined the Court’s independence, they would have to be simply paranoid. Messrs. Avray and Hern and Ms. Latimer are not paranoid, so they only speak of “appearances” of a lack of independence, but even so, it is hard to avoid the impression that appearances rather support than infirm the impression that the government has no sway whatever over the judiciary.

The inspiration for their argument is, of course, the Supreme Court’s notorious opinion in the Provincial Judges Reference. The Court said there that a constitutional principle of judicial independence demanded the creation of independent commissions that would issue recommendations as to the appropriate level of judicial compensation. But it is important to keep in mind what the Court did not say, too. Notably, it did not say that a neutral, impartial, or depoliticized appointments process was a component or a requirement of judicial independence. Indeed, the Supreme Court has never said that it was. To reach such a conclusion now would be a major innovation. The Court also did not require governments and legislatures to follow the commissions’ recommendations ― only to give a rational explanation for any refusal to do so. Could a government similarly disregard the recommendations of the commission proposed by Messrs. Avray and Hern and Ms. Latimer? If not, their proposal is even more of an innovation, compared with the alleged precedent for it. If yes, then how would the process work?

This is just one of the important practical questions that the op-ed does not even begin to address. While its authors denounce the lack of clarity about “the standard on which merit is determined” in the current process, they say nothing of the standard they themselves would like to see enforced by the commission they propose. (Nor do they say who ― the Supreme Court, Parliament, or the proposed commission itself ― should devise such a standard.)That is, I suspect, because there is and can be no objective standard at all. Of course, we can agree that some credentials and character traits are required in a judge, and some desirable, while other traits must be avoided; but not all judicial virtues are subject to universal agreement, and even among those that are, there is no agreement on how to weigh the different qualities are to be weighed. Nor is there a way of guaranteeing that judges will not decide cases with an eye towards the preferences of the authority responsible for promoting them ― whether the government or a commission. We must, in this respect (as in others) rely on the judges’ good faith and ethos of independence ― which is almost certainly stronger than the alarmists would have us think.

But the proposal of Messrs. Avray and Hern and Ms. Latimer is not “merely” unworkable ― it is also horribly counterproductive. It is important to appreciate its radicalism. There has never been an independent commission of the sort they recommend. (Indeed, when amendments to the process of appointing judges to the Supreme Court were proposed as part of the Meech Lake and Charlottetown accords were considered, the issue was involving additional political actors in the process, not creating an independent bureaucracy to direct it.) Implicit in the argument that such a commission is required to uphold the appearance of judicial independence is, then, the striking proposition that the Canadian judiciary has never in its history appeared quite independent of the executive that appointed it. Not when it stopped Pierre Trudeau’s attempts at unilateral Senate Reform or Patriation; nor when it struck down the Lord’s Day act or a variety of criminal law provisions insufficiently respectful of the rights of suspects and the accused; nor yet more recently, as it delivered rebuke after rebuke to the present government. Nobody actually believes that, of course. A judicial decision that ratifies this principle would be a substantial constitutional amendment. (Not the first such amendment, to be sure, as Grégoire Webber has cogently demonstrated.)

Would such an amendment be a good thing? Admittedly, I am skeptical of its substantive merits, as I actually believe that ideological diversity on the bench, which is no less, and probably more, important than the demographic kind, is better served by government control over judicial appointments than by a commission staffed, in all likelihood, by people committed to the prevailing orthodoxy. But even if you disagree with me about that, you ought to be concerned about the introduction of such an amendment by judicial fiat. The Supreme Court’s opinion in the Provincial Judges Reference has been the subject of withering criticism (for example, by Jean Leclair) ― and yet its practical impact, in terms of impairing the powers of governments, was arguably a good deal less  serious than that of a ruling requiring appointments commissions would be. The backlash against such a ruling would almost certainly be stronger still. It was bad enough when judges seemed to be protecting their colleagues against the impact of budget cuts to which all public servants were subject. It will be worse if they seem to be insulating the courts from all outside influences, including those that have been regarded as legitimate and indeed desirable for 150 years. Those who are concerned about appearances out to be distressed by the prospect a judicial decision coming across as a self-interested constitutional coup.

Messrs. Avray and Hern and Ms. Latimer probably think that they act as the friends of the Canadian judiciary. But they do not. A friend does not expose you to a temptation in which he knows you to indulge more often than is good for you, as Canadian courts do with re-writing constitutional law. A friend does not urge to stake your reputation on an enterprise whose benefits are uncertain at best, as decision requiring appointments commissions would be. Most importantly, a friend does not make disparaging insinuations about you in order to make you cave to his requests, as Messrs. Avray and Hern and Ms. Latimer do when they claim, without any basis, that the courts are already losing their legitimacy.

Living with Imperfect Judges

The arguments about limiting appointments to the Supreme Court to bilingual candidates are rather tired, not to mention more or less moot. But they keep coming back, over and over again. I actually wrote about the topic a while ago, but since it is in the news again, following the appointment of (the apparently bilingual) Justice Brown, and since not all of my readers are bilingual themselves, it might be worth returning to.

The first thing to say here is that, as I have already noted, the Supreme Court’s opinion in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 means that any legislation to add bilingualism to the list of requirements for Supreme Court appointments would be unconstitutional. The criteria, as they now exist, have been set in stone by the Court’s conclusion that they are part of the “Constitution of Canada,” and more specifically of the “composition of the Supreme Court of Canada.” It would take a constitutional amendment supported by every province to change them.

Of course, that does not make it impossible, or necessarily wrong, for a Prime Minister from making it his policy, even publicly declared policy, to only appoint bilingual candidates. Indeed, there is nothing to prevent such practice, if continued long enough (and by more than one Prime Minister), from becoming a constitutional convention. So the question whether instituting such a practice, and trying to foster such a convention, would be a good idea.

The argument in favour of requiring bilingualism is that it is imperative that a judge be able to understand the parties appearing before him or her. To be sure, the Supreme Court has a translation service, including simultaneous translation at the hearings, but that’s not good enough. Translators can make mistakes, and when the fate of a litigant, and sometimes even of the country, is at stake, it is unconscionable to allow the outcome of a case be affected by such things. This seems compelling enough, until we start asking more precisely what it is that the proponents of mandatory bilingualism want, how they plan to achieve it, and what the cost of doing so would be.

It is good and well to say that a judge must understand those who appear before him, but what level of understanding is enough? Is fluency mandatory, or is a lesser level of proficiency sufficient? Grégoire Webber, perhaps the only person I have seen address this question, says “legal competency in language is satisfied by understanding a case without the aid of an interpreter” ― a standard that strikes me as very vague. A person might think that he or she does not need the assistance of an interpreter, and yet be mistaken about this, or at least end up with a worse understanding of the case than if he or she had relied on an interpreter.

Partly for this reason, it matters how we are going to determine whether a judge meets bilingualism requirements, whatever they are. Will we rely on an appointee’s say-so, or are we going to have them take the civil servants’ exams? Is having a judge take an exam, especially one where evaluation is in part discretionary, and where so much is at stake, ever a good idea? Can it be squared with judicial independence? At the very least, those who clamour for bilingualism requirements owe us answers to these questions. They have seldom, if ever, given any.

However, even if these questions could be answered in a satisfactory fashion, a policy of mandatory bilingualism would come with significant downsides. Fears, such as those of the National Post’s editorial board, that it would become well-nigh impossible to appoint judges from the non-bilingual parts of the country are clearly overblown (as the appointment of Justice Brown seems to demonstrate). But it is true that the pool of eligible candidates would become a good deal shallower than it now is. Among the current judges, the Chief Justice and Justice Moldaver (as well as Justice Rothstein, whom Justice Brown will replace) could not have been appointed under a mandatory bilingualism rule. I think this has to be acknowledged as a clear loss. Both the Chief Justice and Justice Moldaver made efforts to learn French since their appointments, by the way ― the Chief Justice, at least, with considerable success, so much that she is now generally regarded as bilingual. Still, it is a mistake to forget that she was not bilingual when she was first appointed. And more generally, as I said in my earlier post on the subject, to the extent that a unilingual candidate is regarded as better qualified than a bilingual one, is there not an injustice involved ― an injustice to all the litigants who will appear before the court ― in not appointing him or her?

Prof. Webber argues that linguistic competency is an aspect of legal competency, and that there is therefore a loss of quality involved in appointing unilingual judges. I agree with that. If I were in the business of appointing judges to the Supreme Court, I would consider any evidence of their bilingualism as a major strength, and evidence of the contrary as a weakness. But I would keep in mind the fact that judicial appointments inevitably involve tradeoffs. A prospective judge might be a brilliant criminal lawyer, but know relatively little about commercial law. Another can be an expert on the civil law, but have only limited notions of the common law. Such judges are therefore, far from perfect ― but sometimes, far from perfect is the best we can get. There is no Hercules hiding out there within the ranks of the Canadian legal profession, awaiting a Supreme Court appointment. Similarly, lack of linguistic skills is a flaw in a potential judge ― but I would not foreclose the possibility that a candidate who has this flaw nonetheless represents the best balance of flaws and qualities available, or the one that is most adapted to the present needs of the court to which he or she will be appointed.

To be sure, I think it is incumbent on newly-appointed judges to be aware of their shortcomings, and to do their best to remedy them. Given the breadth of the Supreme Court’s jurisdiction, no judge can be expected to be an expert in all the areas of the law that may be relevant to its work, but all judges can be expected to try to fill the gaps in their legal knowledge. And in the same way, I think it is fair to ask that judges who do not speak or understand one of the Court’s languages try hard to learn it ― exactly as the Chief Justice has done and Justice Moldaver is doing. But it would not be fair to expect all to succeed perfectly.

There are good reasons why appellate courts are multi-member institutions. One of these reasons is that the judges all have their strengths and weaknesses, and the strengths of some can help mitigate the weaknesses of others. In the context of the Supreme Court of Canada, unilingualism is a weakness. As some the current judges prove, it is not an incorrigible one even at the individual level but, more importantly, this weakness can be remedied by the institution. It would be great, of course, if the Supreme Court’s bench consisted of nine fluently bilingual experts on every part of Canadian law. But, realistically, we must make do with imperfect judges. Among the many judicial imperfections, I do not think that unilingualism is a uniquely disqualifying one.