judicial appointments – Double Aspect

A Strategy against Lethargy?

Can courts order the government to appoint judges promptly? It’s complicated, but probably not

In my last post, I summarized and criticized the Federal Court’s decision in Hameed v Canada (Prime Minister), 2024 FC 242, which declared that the government of Canada has a duty under the constitution to just get on with judicial appointments already. Emmett Macfarlane has made many similar points on his Substack as well. But, as I noted, while the actual reasons given by Brown J were very bad, that doesn’t mean there weren’t serious arguments to be made for the outcome he reached ― though I’m not sure whether any such arguments were actually put to him by counsel. In this post, I review these arguments.

By way of reminder, the way I see it, there are two key substantive issues, on which I focus. First, is the government’s failure to ensure timely judicial appointments judicially reviewable in principle? And second, if it is, is there a judicially administrable standard by which the constitutionality of government inaction regarding judicial appointments might be assessed? As to the first, the government’s objection has to do with the involvement of constitutional conventions in judicial appointments. As to the second, the difficulty is that there is simply no standard apparent in the relevant constitutional or statutory provisions.

In reality, the first issue breaks down into several different ones. As Mark Walters points out in a very important article on “Judicial Review of Ministerial Advice to the Crown“, “it is important to distinguish between decisions made by the Governor General based on ministerial advice and decisions of the Governor in Council”. The former include the appointment of Superior Court judges pursuant to s 96 of the Constitution Act, 1867; the latter, the appointment of Federal Court judges pursuant to s 5.2 of the Federal Courts Act. Failure to draw this distinction is a mistake in the identification of the conventions of judicial appointments committed in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which is carried over in Hameed as I mentioned in my last post.

Conventions are, indeed, involved in both situations, but in different ways. In the case of Governor in Council appointments,

Although it is only by virtue of convention that the legal powers conferred upon the “Governor in Council” are exercised by the Governor and present cabinet ministers, it is by virtue of law that these ministers, sitting as a committee of the Privy Council, participate with the Governor to make the decision. In these circumstances, ministers are not merely advising the Governor as to what he or she should decide; they are, as a matter of law, joining with the Governor to make the decision.

The law at issue is, so far as appointments under the Federal Courts Act (and other statutory provisions) are concerned, s 35(1) of the Interpretation Act. What this means, I think, is that there is no ministerial advice that can be reviewed ― or that could be unreviewable ― separately from the decision, or failure to make a decision, by the Governor in Council. Rather, so far as appointments to the Federal Court are concerned, if one can identify a legal duty to make such appointments in a timely manner and a judicially administrable standard against which the exercise of such a duty can be measured, the conventional aspect of the appointments powers is beside the point and there is no obstacle to reviewability.

Appointments on advice, i.e. those to the Superior Courts, are a different beast. Here, conventions do matter. But, as Professor Walters argues, this is not to say that they are not reviewable. Professor Walters’s article is a comment on the challenge brought by Aniz Alani against the then-Prime Minister’s policy, first implicit and then overt, of not making appointments to the Senate. (I blogged about it here.) As he notes, the government’s response was to argue

that the Crown has the legal authority to act and the minister’s role is only to advise, and it will be added, with emphasis, that the advice is given as a matter of constitutional convention only and so cannot be the subject of judicial review. In this way, executive power may be exercised in a legal black hole. (35)

Professor Walters suggests that there are two potential “way[s] to address this worrisome conclusion”. (35) Of these,

One … is to question the assumption that constitutional conventions are never justiciable. Perhaps the time has come to contemplate the possibility of at least declaratory judicial relief when ministerial advice flouts established conventional rules. In this way, the veil of law would be pierced to reveal where real power lies. (35)

This is the approach Brown J took in Hameed, but he did so in a very clumsy, and indeed quite untenable, manner. I will return to this possibility below, because more can be said about it. But first, let me recount the other option outlined, quite persuasively in my view, by Professor Walters.

Professor Walters argues that “[t]he idea that ministerial advice to the Crown is a matter unknown to and outside the law … is a misunderstanding that results from the confusion between law and convention”. (37) It is law ― specifically, s 11 of the Constitution Act, 1867 ― that sets up the Privy Council as a body of advisors to the Crown. Convention, of course, is both what dictates that its advisory function is exercised, from time to time, by the ministers for the time being, and that the Crown is required to follow its advice. But the giving of advice, as such, is no more and no less than the Privy Council’s legal duty. And if the advisors fail in the discharge of this duty by offering advice that is unlawful or unconstitutional in itself (e.g. because it was procured corruptly) or because it will result in the Crown breaking the law, they can be held accountable for that:

Ministerial advice to the Crown, though triggered by convention, is given in the performance of a legal duty by ministers who hold a legal office, and the common law has always regarded ministers as legally responsible for the advice they give. Ministerial advice does not operate within a legal black hole. Of course, the old authorities … contemplate either a criminal prosecution or an action in tort, with examples of fraud, corruption, malicious abuse of public office, or flagrant neglect of public duties being given. I am not suggesting that the law historically acknowledged a modern remedy of judicial review of ministerial advice based upon public law principles of rationality, legality and fairness. I do think, however, that once the domain of ministerial advice is understood to be one governed by law, the forms of law that discipline advice must be understood in the usual legal way as expanding with the incremental developments that have shaped modern public law generally. (39)

I find this compelling. And I think that the UK Supreme Court’s judgment in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 (Miller II) can be understood as giving effect to this approach to ministerial accountability. This was a case where the UK Supreme Court treated as reviewable the advice given by the Prime Minister to the Queen to prorogue Parliament. As the Court noted,

the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter. That situation does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament. [32]

The appointment of Superior Court judges is not, to be sure, a prerogative power, but one set out in constitutional legislation, but I don’t think that changes the situation. If Canadian courts follow the Miller II approach, then the decisions of the persons and entities with the constitutional responsibility to have regard to the relevant interests, in this instance those of the judiciary and of the litigants who come before it, should be amenable to review, because there can be no suggestion that the Governor General is “other than obliged by constitutional convention to accept [their] advice” ― or, more to the point, prevented from acting in the absence of advice.

Now let’s consider the argument for the justiciability of constitutional conventions. For my part, I have long found the orthodox account of conventions as radically different from legal rules quite unpersuasive. This is not because conventions are judge-made rules, as Brown J claims, but rather because the distinction between rules that have a judicial origin and those that originate in politics simply does not matter very much. Statutes originate in politics too, after all. And of course common law rules aren’t always “judge-made” in the crude Benthamite sense. Many originate in the practices of other actors, commercial ones for example, and/or in the principles embedded in the legal system. Courts can identify such rules ― though, unlike Brown J, they must do so rigorously and carefully ― and apply them.

The trouble with this argument is that most people don’t agree with it. More importantly, apex courts don’t agree with it. As I am about to suggest, they no longer adhere to the orthodox rigid distinction between law and convention either, but nor are they prepared to simply accept what the Patriation Reference, Re Resolution to Amend the Constitution, [1981] 1 SCR 753, described as the crystallization of convention into law. The majority in the Patriation Reference is clear about this, and has never been directly repudiated in Canada or elsewhere. Indeed it was endorsed by the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61, and it too hasn’t been directly repudiated. I can and will go on thinking that these cases are wrong, but a judge bound by one or the other cannot act if it didn’t exist.

But that’s not the end of the matter either. While things are not especially clear, Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 may suggest a workaround to the dichotomy between law and convention asserted in the Patriation Reference. In that opinion, the Supreme Court relied on the concept of a “constitutional architecture”, which has something to do with “[t]he assumptions that underlie the [constitutional] text and the manner in which the constitutional provisions are intended to interact with one another”. [26] A law that would interfere with this architecture is as unconstitutional as one that contravenes an explicit provision of the constitution. Because the Court’s definition of “architecture” is sparse if not cryptic, there are different views on what it encompasses. I have argued that “architecture” is, simply put, a codeword for conventions. Others who have written on the subject may take a somewhat different view of the matter, but at any rate I think there is a credible argument to be made that advice, or perhaps even more so lack of advice, to the Governor General is, in principle, judicially reviewable if it would result in the undermining of “assumptions that underlie the text” of the constitution, regardless of the involvement of conventions in the process.

So where does that leave us? Recall that, for now, we have only been considering the first issue in Hameed: whether the government’s failure to ensure that judicial vacancies are filled in a timely fashion is in principle amenable to judicial review. I have argued that the answer is yes so far as Governor in Council appointments to the Federal Court are concerned, in the same way as failure to perform a statutory duty by any official or entity. The case of Governor-acting-on-advice appointments to the Superior Courts is less clear, but there are strong arguments for their being reviewable too, either on the basis of legal accountability for unlawful advice expounded by Professor Walters and demonstrated in Miller II, or through the invocation of the constitutional architecture referred to in the Senate Reform Reference.

Assuming that the government’s slowness in appointing judges is reviewable in principle, the question nevertheless arises whether there is legal standard by which it can be judged. Or is the pace of judicial appointments the kind of policy or discretionary matter that can only be subject to political, but not legal, accountability? (It is worth emphasizing that political accountability is important and should be pursued regardless of whether legal accountability is (also) available!) As I wrote in my last post, Brown J’s invention of a convention of prompt appointments to serve this purpose is indefensible. Even if violations of conventions are justiciable, they have to be real conventions that exist out there in the political world, and not judicial concoctions. Is there something else?

This is not obvious, to say the least. It is entirely fair to note that both the Constitution Act, 1867 and the Federal Courts Act make the appointment of judges pursuant to their respective provisions mandatory, using the word “shall”, and that, as Brown J suggests, it would be disturbing if the executive could undermine legislative choices as to the number of judges by refusing to fill the judicial positions created by provincial legislatures and Parliament. At the same time, no one, including Brown J, actually believes that any vacancy existing for any length of time is ipso facto a constitutional or statutory violation. The mandatory language in the relevant provisions is, it would seem, subject to an implicit qualification accepting at least some degree of churn ― and executive discretion.

That said, this discretion cannot be unlimited either ― Roncarelli v Duplessis, [1959] SCR 121, tells us this much. A Roncarelli-like scenario, where the executive misused its discretion for an improper purpose ― for example to punish a recalcitrant court by refusing to make appointments ― should be easy for a court to deal with. This is not a far-fetched hypothetical: think, again, about the Alani litigation concerning the Senate, and also of the delays in making appointments to the Supreme Court after the debacle of l’Affaire Nadon. But I don’t think that there is any suggestion of improper motive in the current situation; that would be, to quote the one and only Sir Humphrey Appleby, to mistake lethargy for strategy.

Professor Walters suggests what might be a further constraint on advice-giving discretion:

at least in those cases where the reasons for advice are publicly given or can otherwise be established through evidence … the question of whether those reasons are consistent with constitutional values and structure may well be, in the appropriate circumstances, a question of law for the courts to determine. (40)

But that doesn’t help much. The whole problem in Hameed is that there is no advice, and seemingly no specific reasons for the lack of any. Again, lethargy, not strategy. Moreover, even apart from that, a government may be able to argue (though I take it that it has not in fact argued) that its slowness in appointing judges is due to the difficulties it encountering in balancing relevant values, such as diversity, with the operational needs of the judiciary. If the reviewing court is inclined to be deferential ― and, as the Supreme Court reminded us in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, courts are supposed to be deferential to executive value-balancing, whether that makes any sense or not ― then this may well be enough to let the executive off the hook.

Lastly, there is the Miller II move: there, the UK Supreme Court said that prerogative powers are implicitly limited by constitutional principles, such that any use of the prerogative that undermines relevant principles needs to be justified by the executive as being proportional to the interference with the principles in question. There is at least an argument for treating constitutionally codified powers in the same manner as prerogative ones ― though I’m not sure that’s right. If this argument is accepted; and if, further, the Miller II reasoning is to be taken at face value; then it might work in the specific circumstances of Hameed, the government having, rather like in Miller II, not bothered to justify itself. But, for my part, I am not at all convinced that Miller II should be taken at face value: I have argued that, instead, what it really did was to enforce a putative constitutional convention governing the permissible length of prorogations, identified pursuant to an implicit application of the same sort of test I described in my last post. If that is so, then we are back to square one, since there is no plausible constitutional convention to be enforced here.

So there you have it: I think that failure to ensure that judicial appointments take place to fill the vacancies on Canadian courts is, in principle, judicially reviewable, but there is probably no standard by which timeliness of appointments, as opposed to something like an outright refusal to make any, could be assessed, which makes the question ultimately non-justiciable. That said, I am more confident about the first part of this conclusion than the second ― that is, about reviewability-in-principle than about the lack of standards. This case is complicated, and closer than I thought at first.

What isn’t close is the underlying question of what needs to be done. The government should just get on with making those judicial appointments. They may well have sound arguments for avoiding being told to do so by a judge. But this should never have come to litigation in the first place. The Alani case ultimately became moot when the government accepted its constitutional responsibility for appointing Senators. Ideally, Hameed should be concluded in the same manner.

Putting the Courts Together Again

The Federal Court orders the government to get on with appointing judges. But its judgment is very badly flawed.

Yesterday, the Federal Court delivered a decision declaring that the Canadian government has a constitutional duty to ensure timely judicial appointments and setting out specific targets to attain: Hameed v Canada (Prime Minister), 2024 FC 242. The outcome is a startling one, but it is Justice Brown’s reasons that are truly remarkable, and not in a good way. The outcome, indeed, might even be defensible, at least in part, though I doubt it. But Brown J’s reasons are pernicious.

Hameed is something of a constitutional law professor’s crazy exam hypothetical. The bottom line is simple enough. The federal government has long been slow to appoint judges to vacancies that arise, despite warnings from the legal community and indeed entreaties from various institutions and leaders, including, notably, a strongly-worded letter from the Chief Justice of Canada. Is this tardiness unconstitutional on the basis that the government has a duty to fill judicial vacancies promptly as they arise? But to answer this question, or more precisely for the federal court to answer this question, an impressive number of issues need to be addressed, from standing, to federal court jurisdiction, to evidentiary issues, to the nature of the alleged duty, to the remedy. And pretty much each of these issues falls somewhere on the spectrum from not-altogether-straightforward to really quite complex.

The substantive heart of the case, however, has to do with just two issues. First, is the government’s failure to ensure timely judicial appointments judicially reviewable in principle? And second, if it is, is there a judicially administrable standard by which the constitutionality of government inaction regarding judicial appointments might be assessed? This framing, to be clear, is mine, not Brown J’s, and heavily influenced, on the one hand, by the UK Supreme Court’s decision in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373, and on the other, by Mark Walters’s illuminating article on “Judicial Review of Ministerial Advice to the Crown“, neither of which is cited in Hameed despite their relevance.

In this post, I describe Brown J’s approach to these two issues and explain why it is wrongheaded. In a follow-up post, I will explain why, nonetheless, the outcome of the case on a proper approach to these issues is a close issue that deserves much more careful thought than Brown J has given it.

Whether the government’s role in ensuring timely judicial appointments is justiciable at all, let alone in the Federal Court, is a difficult issue because of the involvement of constitutional conventions. Brown J draws on the Federal Court’s discussion of these conventions in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which found that

By constitutional convention, when appointing judges to provincial superior courts, the Governor General acts on the advice of the Committee of the Privy Council of Canada. Similarly, the [Governor in Council], which appoints judges to the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada, is defined in the Interpretation Act … as the Governor General acting on the advice or consent of the Privy Council for Canada. The Privy Council is composed of all the ministers of the Crown, who meet in the body known as Cabinet … As such, all federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice … In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet. [9]

Unfortunately, this description contains two important mistakes. The most glaring but less consequential one lies in the description of the Privy Council as “composed of all the ministers of the Crown, who meet in the body known as Cabinet”. As Professor Walters explains,

The Privy Council for Canada is established by section 11 of the Constitution Act, 1867 and consists of all present and former ministers of the Crown as well as a variety of other members. … [I]t is only by virtue of convention that the legal powers conferred upon the “Governor in Council” are exercised by the Governor and present cabinet ministers. (34; emphasis in the original)

In other words, the Cabinet is the political, conventional entity through which the legal body that is the Privy Council acts; they are not the same. The second mistake is more subtle but more consequential: it consists in conflating judicial appointments by the Governor General and those by the Governor-in-Council. I will return to it in the follow-up post, though you will know what I’ll say there if you read Professor Walters’s article in the meantime.

Back to Brown J’s reasoning. On the orthodox view of Westminster-type constitutions, constitutional conventions are, in Dicey’s famous words, “not in reality laws at all since they are not enforced by the courts”. Is it the case, then, that in asking the court to require the Cabinet to provide its conventionally-mandated advice to the Governor General, the applicant is seeking to have a convention enforced, which cannot be done?

Brown J says no. He cites the Patriation Reference (though he at times misnames it as the Repatriation Reference), Re Resolution to Amend the Constitution, [1981] 1 SCR 753, for the proposition that while courts cannot enforce a convention, they can issue a declaration stating its import. Moreover, the conventions regulating judicial appointments

form part of Canada’s federal constitutional common law in the sense they are judge-made rules which the courts are entitled and may recognize in the appropriate case through the Court’s declaratory power, notwithstanding they are not laws that may been [sic] enforced by the courts. [122]

A breach of this “federal constitutional common law” by the Cabinet is reviewable by the Federal Court, in the same way as a breach of any federal law by a federal official is reviewable under the Federal Courts Act.

This is fundamentally wrong. As a matter of positive law as well as learned orthodoxy, it is absolutely not the case that conventions are a form of “constitutional common law”. Indeed, the majority opinion on the legal question in the Patriation Reference explicitly rejects this very view. In dismissing the idea of a “crystallisation” of conventions into legal rules, it says:

The leap from convention to law is explained almost as if there was a common law of constitutional law, but originating in political practice. That is simply not so. What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute. (784)

As I will explain in the follow-up post (and as longtime readers will know), I am no fan of the Patriation Reference legal question majority. But it is binding on Brown J, whether he is a fan of it or not! He does not refer to this passage, which strikes me as very poor judicial craft. Moreover, the one thing that the Patriation Reference unquestionably does get right is that conventions “originat[e] in political practice”; in no way, shape, or form are they “judge-made”. As the UK Supreme Court put it in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 “[j]udges … are neither the parents nor the guardians of political conventions”. [146] One can object to the “guardians” bit; but it undeniably true that judges are not the “parents” of constitutional conventions.

And the idea of common law rules that aren’t enforceable by courts makes no sense at all; statutory provisions can be made unenforceable (as parts of the Official Languages Act used to be), but the common law doesn’t exist apart from judicial enforcement. If conventions are just common law rules, then they are in principle enforceable, subject to justiciability concerns in specific cases, and not merely declarable.

Brown J’s treatment of the issue of the standard by which to assess the government’s inaction is, if anything, even more cavalier. He points out that “Parliament has determined what it considered an appropriate number of judges required by the Superior Courts, including the Federal Courts, …. in legislation authorizing that number of appointments” and that failure to appoint these judges not only undermines the judiciary but also amounts to “Canada’s executive government … ignor[ing] the express will of Parliament”. [126] I have no quarrel with that ― on the contrary, this is an important point for, at the very least, the government to consider, whether or not it can also give rise to judicial remedies. But what follows is not so sensible.

The key passage deserves to be set out at some length. Brown J writes that

[T]he acknowledged constitutional convention that it is the exclusive authority of the Respondents to advise in respect of vacancies necessarily implies the related constitutional convention that judicial vacancies must be filled as soon as possible after vacancies arise, except in exceptional circumstances.

In this connection, nothing suggests Democracy Watch, which affirmed the existence of the convention, is the last word on the subject. …

[T]he Court should now recognize that the relevant constitutional conventions include not only the responsibility to take steps to fill vacancies as soon as possible, but in this appalling and critical situation, to materially reduce the present backlog to what it was as recently as the Spring of 2016, that is to reduce the vacancies to the mid-40s across the federally appointed provincial Superior Courts and Federal Courts. [129-131]

This is just terrible. A court cannot simply will “conventions” into existence because they would be useful. The most charitable interpretation I can give to Brown J’s approach here is that he is getting high on his own supply, namely on the confusion between conventions and “judge-made” common law. But, pace Bentham, even those who would describe the common law as being “judge-made” (not an uncontroversial description), would not countenance such blithe creation of new common law rules for no other reason than their seeming desirability. At the very least, there are concerns about the limits of the judicial role in the development of the law that must be addressed.

If one accepts that it is appropriate for courts to address constitutional conventions, then one must adopt a rigorous approach to identifying them. Indeed, this is no different from what a court will do when dealing with common law or statutory rules ― it will carefully analyse precedents or interpret the legislature’s words, and not just say that a rule must exist to deal with this or that exigency. The methods for identifying the relevant rule vary depending the rule’s type, but not the need for a method.

There are two methods for identifying conventions. The easy one is by relying on authorities ― one can think, for example, of Andrew Heard’s magisterial book Canadian Constitutional Conventions. The harder one, given the imprimatur of the majority opinion on the conventional question in the Patriation Reference, is a test first developed by Sir W. Ivor Jennings, which asks whether there are precedents for the alleged conventional rule, whether the constitutional actors involved followed the rule out of a sense of obligation, and whether there is a constitutional reason for the rule.

Brown J doesn’t even pretend to follow either of these methods for identifying the purported convention requiring prompt judicial appointments. He points to no authority. Nor does he identify any precedents. This case, of course arises precisely because the government evidently does not follow the alleged rule and does not consider itself bound to do so. Now, that is not fatal: the Patriation Reference also arose out of the actions of a government that refused to recognize and be bound by a conventional rule. But there the Supreme Court pointed to a long course of past practice and acknowledgment of its binding character. That is entirely missing from Brown J’s reasons.

He thinks that he can simply conjure up a convention nobody’s thought of before, because past decisions don’t get “the last word on the subject”. But the question isn’t whether a case is “the last word”. It’s what conventions actually exist out there in the real world. It is bad enough when courts start “giv[ing] constitutional benediction” to new rights whose time they think has come, as the Supreme Court did in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245. But awful as that was, still the words of the constitutional text, however distorted from their original meaning, provide some modest measure of constraint even on wilful interpreters. If courts can give benediction to dreamt up conventions, there really isn’t anything they cannot add to the constitution just because they feel like it.

I cannot help but think that Brown J was so completely blinded by what he perceived as the practical necessities of the situation as to cut every corner imaginable on the way to a result of whose vital importance he was convinced. He begins his judgment by asserting that “[a]t its core, this matter concerns” the Chief Justice’s letter to the Prime Minister regarding the pressing need for judicial vacancies to be filled. [1] He is determined not to “allow the current untenable and crisis number of vacancies to remain unacceptably high with the negative consequences set out in the letter”. [126]

But that’s not how this judging business works. A court case is never about a letter sent by a non-party. I hesitate to speak to the letter’s admissibility, not only because this post is long but also, and more importantly, because the law of evidence is not my forte. But let me just note my puzzlement at Brown J’s repeated reference to that letter as “expert opinion” [12] and indeed “expert evidence” [124] when the Chief Justice wasn’t a witness. Be that as it may, a court case can only ever be about the law. Brown J lost sight of that altogether, and produced one of the more staggering judgments I can think of in a long, long time. (I should note, in fairness, that, assuming his account of the parties’ arguments is complete, he may have been very poorly served by them, especially the applicant.)

The irony is that there would have been serious legal issues to discuss, and a decision based on careful legal argument would have much better served the cause that Brown J tries to advance. And it is not a bad cause. The slowness of the federal government’s judicial appointments has been discussed, so far as I remember, from its early days in office. When the Chief Justice and Brown J denounce the current state of affairs, they are not wrong. I can only hope that the government takes the underlying message Brown J is trying to send seriously. But if the Canadian judiciary is broken, or nearly broken, the way to put it back together again is not by judges taking the need to do so for a warrant to do it. “Something must be done” is not a legal argument. As I said, I will try to consider actual legal arguments in my next post.

Nothing Doing

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

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

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

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

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

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

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

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

Admittedly, some people might disagree.

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

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

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

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

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

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

Legal skills/qualifications are irrelevant anyway!

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

You’re undermining confidence in the Supreme Court!

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

You’re racist/sexist!

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

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

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

A Little Representation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Self-Own of Court-Packing

2020 dealt us another major blow last week, when Justice Ruth Bader Ginsburg passed away at the age of 87. Justice Ginsburg, agree or disagree with her jurisprudentially, was an inspiration to many. Rightly so. She was a trailblazer. Incidentally, for anyone interested, there is a great movie about her life in the law: “On the Basis of Sex.” Available on Crave, I think.

Predictably, though, the good feelings towards Justice Ginsburg have quickly morphed into a sickening volcano of politics. The story starts back in 2016, when then-President Barack Obama nominated Merrick Garland to fill a Supreme Court seat left open by Justice Antonin Scalia upon his death. The Senate, which has the advice and consent function on new judges under the US Constitution, and led by Republican Mitch McConnell, refused to even hold a vote on Garland. The rationale at the time was that, with a Democratic President and a Republican-controlled Senate, “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” The gamble worked out for the Republicans, who won the Presidency in 2016 and were able to nominate Justice Neil Gorsuch to fill Justice Scalia’s old seat.

The Republicans put a mark in the sand in 2016, and if we lived in a world of consistency and honour, the Republicans would forestall their choice for the Supreme Court until after the 2020 election. But unfortunately, the Republicans see an opportunity. Mitch McConnell has announced that the Senate will consider the President’s nominee before the election. His justification for doing so, compared to 2016, is that now the same party holds the White House and the Senate. This is, to put it in a word, ridiculous. But in this imperfect world, I do not see any way for the Democrats themselves to stop the nomination from moving forward–save for some courageous Republicans.

The Democrats, angry by this, have lost their patience. Prominent Democrats have opened the door to court-packing, a play that would expand the court and allow Democrats (should they win the presidency) to “pack” the court with sympathetic judges. The underlying theory behind this move is simple: the Republicans have gamed the Supreme Court for too long, and the system itself is illegitimate. The Democrats have to react accordingly by bringing a gun to a gun fight. Or, perhaps more generously, the Democrats need to “expand democracy” (loads of problems with this that I cannot deal with here).

I think this is a flawed way of thinking that will simply lead to a race to the bottom. More promising are calls for a comprehensive deal between the parties. But if the choice is to pack the court or retain the status quo, I say retain the status quo, much as it pains me to say it. Life—and law—is not about utopia, but about choosing the least of bad options. And this is one of those situations.

There are reasons of principle and pragmatism for my conclusion. The entire point of the Supreme Court—in both Canada and the United States—is to act as an apex court in a system of judicial review. Despite the fashionable trend towards eroding the distinction between law and politics, judicial review is a quintessentially legal task, asking whether government laws or action remain consistent with some external norm, such as the Constitution. To do so, over time, courts (in theory) develop settled doctrine and precedent to govern the application of the law. To be fair, we have never reached this Nirvana in law. But in the application of law, we do our best to depoliticize the process as much as we can, so that the work judges do has some legitimacy attached to it.

Whether one accepts this or not, as time has gone on, especially in the United States, the Supreme Court appointment process itself has become politicized, undermining the perception of the review role of the court. Ideological litmus tests abound, and as noted above, at least in recent memory, the Republicans have played games with the nomination process. This raises a question. Even if the application of law is, ideally, removed from the spectre of “politics” (a vexing terminological question I am conveniently sidestepping here), there is still a question of perception. In other words, the system must also be supported by a “spirit of legality,” as Dicey put it. In service of that spirit, it is my view that political actors sometimes need decline to exercise power they strictly have in legal form in order to create an institutional culture of respect for the law. This goes both ways. While it is true that the Republicans have the “raw power” to move a nomination through the Senate, they may want to keep their powder dry in the name of the rule they created in 2016, and as a means to protect the legitimacy of the Court in the public eye. And the Democrats will want to abstain from moving on court-packing, because it too transforms the trappings of the court into an ideological fever-pitch. Even if one believes the system is illegitimate, making it more illegitimate is a self-own.

I am alive to the criticism that I live in a world that either never existed or is long gone. That is, at least since Bork (and likely before), the Supreme Court selection process has been a breeding ground for partisan considerations. This is true. But that is not a reason to go further down the rabbit hole. If anything, it is a moment to reflect how far we have come, and what we need to do to ensure our institutions retain legitimacy. As Aziz Huq and Tom Ginsburg note, court-packing is anathema to the Rule of Law.

Arguments from principle nowadays are not very convincing to many, left and right, who view themselves as engaged in a culture war where institutions are just organs of power, rather than bodies with designed and limited powers. So let me speak their language on my second point. Court-packing will be like a drug for the Democrats. It will feel really good to dunk on the Republicans for a few years. But as Joe Biden aptly noted in 2019:

In other words, on and on the merry-go-round goes. And it will never end. The Democrats have to ask themselves an important question if they go down the road of court-packing: are you so sure that you will end up on the winning end of the deal, over the years? How much would you be willing to bet? The Republicans have gamed the Court far more effectively than the Democrats over the years. There is no reason to believe that would stop in a post-court-packing world. In other words, as a matter of strategy, unless the Democrats are sure they would end up winning, the smart play is to simply hold fire.

Holding fire is not desirable for many in today’s world, as I alluded to above. Today, the name of the game is power. Those who consider themselves engaged in a culture war view the matter as a tactical one, in which power that is held must be used to extinguish the other side. But there are more important things than winning a political battle. Institutions that are designed to apply law, for all of us, is one of those important things.

On the other hand, holding fire is not the ideal solution here, by far. While there are many permutations on offer, I am quite convinced that Ilya Somin’s suggested solution is one worth exploring. Here it is:

The Republicans promise not to confirm any Supreme Court nominee until after January 20 of next year, at which time whoever wins the election will get to name Justice Ginsburg’s replacement.

2. In exchange, the Democrats promise not to support any expansion of the size of the Supreme Court for at least the next ten years.

This solution puts protecting the institution at the forefront before political victories. And it buys time for the sides to cool down the temperature and do the right thing. There are other options on the table: term limits, mandatory retirement, the list goes on. In a healthy constitutional democracy, all of these things should be on the table. Of course, I have no hope that this these solutions will come to pass. That in itself is an indictment of the American constitutional democracy as it stands.

All in all, court-packing poses the question to the Democrats: are you confident in your side winning the war over the long term? If you aren’t, court-packing is a gamble that could hurt the Democrats over the long haul. And nowadays, maybe that is the most important consideration for culture warriors to keep in mind. Self-owning is never fun.

Of Malice and Men

Double Aspect responds to attacks on another scholar

This post is co-written with Mark Mancini

Suppose you say something on Twitter that you wish you hadn’t said. No, actually―if you’re on Twitter―remember that time you said something you wish you hadn’t said? How would you hope that the rest of us would react? For our part, a sad bemused shrug and, perhaps, a friendly private word of reproof sound about right. Well, this is a post about doing unto others, etc.

When Emmett Macfarlane tweeted about “burning down” the US Congress to prevent a successor to the late Justice Ginsburg being confirmed before the presidential election, we cringed a bit. There is too much hyperbole out there, too much violent imagery, too much speaking as if the next election, or the next judicial appointment, is―literally―the end of the world. Twitter makes this phenomenon worse. As Justice Stratas of the Federal Court of Appeal noted in a recent talk, the Twitter world is like the Holodeck from Star Trek―a convincing pastiche of reality. Twitter, in many cases, magnifies our worst impulses.

There is too much of this nonsense on all sides. President Obama, who often modelled grace and calm when his political opponents and supporters alike lacked both, now suggests that questions such as “whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures” turn on who replaces the late Justice Ginsburg. On US political right, the 2016 election was notoriously compared to Flight 93―the plane that crashed in a field in Pennsylvania on September 11, 2001 after the passengers stormed the cabin to prevent hijackers from turning it on their intended target. Similar arguments are being made again. The message is that even death―or at any rate a vote for an avowedly appalling man who would uphold none of the principles one claims to believe―is preferable to the other side taking power until the next election.

So, to repeat, we cringed at Professor Macfarlane’s “burn it down” tweet. And yet we knew full well―as does anyone with a brain and even a modicum of good faith―that it is only a hyperbolic, spur-of-the-moment outburst, not an actual call to arson and violence. Professor Macfarlane’s Twitter persona may be cantankerous, but he is a genuine scholar and a decent man. (Disclosure: one of us (Sirota) has contributed a chapter to a book project Professor Macfarlane edits. You can discount our arguments accordingly, but the diversity of views represented in that project speaks to Professor Macfarlane’s scholarly seriousness and open-mindedness.)

Sadly, there are people who do not operate in good faith at all. They affect to think, or at any rate they say, that Professor Macfarlane was actually threatening violence, and profess worry for the safety of his Trump-supporting students. This is arrant nonsense, a smear with no factual basis whatsoever. Professor Macfarlane’s opinions are neither new nor secret, and those who now betake themselves to the fainting couch haven’t paused for a second to inquire whether he has ever been so much as unfair, let alone threatening, to his students.

These people are as uninterested in truth as they are lacking in charity. They see a political opponent say something that can be―at least to those equally uncharitable―made to look like a threat or a sign of depravity, and pounce to virtue-signal on Twitter, to whip up their allies’ outrage, and thereby to increase their own standing with their in-group. They are hypocrites too, with their feigned outrage about hyperbolic rhetoric which is no worse than that in which they themselves engage. They deserve nothing but unreserved rejection.

A couple of weeks ago, another scholar, Dwight Newman, was disparaged by people who engaged in an uncharitable if not outright twisted reading of his work to impugn his integrity. That was an attack from the left on someone perceived to be on the right. We were proud to give Professor Newman an opportunity to refute their smears (and one of us (Sirota) added a further response of his own). Now Professor Macfarlane is being vilified by people who are trying to make him into an avatar of the unhinged left. Although both the targets of these attacks (an article in one case; a tweet in the other) and their perpetrators (fellow scholars, alas, in the former case; anti-intellectual populists in the latter) are different, they have much in common.

Both need to be defeated. As Justin Amash pointed out just yesterday, limited government―that is, a government that respects democracy and human rights―cannot exist without trust among citizens. To be sure, we need not pretend that our fellow-citizens, let alone our governments, are better and more trustworthy than they really are. But, if we want to continue living together in peace and freedom, we must not pretend that they are worse people than we know them to be for the sake of scoring some political points. To quote another American politician, we must go forward with malice toward none, and charity for all.

Day Nine: Leonid Sirota

The Roads Not Taken

Sometimes, as other contributors to the symposium have discussed, dissenting opinions chart the law’s future course. But at other times, they are only signposts for alternative paths which the law passes by, perhaps for the better. And sometimes, they point to the lost straight road, from which the law tragically deviates, never to return. The three dissents below belong to this last category.

1. Justice Beetz in Slaight Communications v Davidson, [1989] 1 SCR 1038

Slaight was an unjust dismissal case, in which a labour arbitrator sided with the former employee. The issue at the Supreme Court was the arbitrator could, consistently with the Charter, require the former employer to provide the employee with a recommendation letter bearing the employer’s signature but actually entirely dictated by the arbitrator, and further to refrain from saying anything else about the former employee. The majority held that he could. After all, there was a power imbalance between employer and employee that needed to be rectified, and anyway the employer was only required to state true facts, as established by the arbitrator.

Justice Beetz saw things differently. To force a person to state “facts in which, rightly or wrongly, he may not believe” is tantamount making him “tell a lie”. The outcome of an official fact-finding process cannot be equated with an objective, all-purpose truth, let alone be elevated into a dogma everyone must believe in. The state has no more authority to make a person proclaim what it, but not he, believes to be true facts than to make him proclaim what it, but not he, believes to be true opinions. Such an order “is totalitarian in nature and can never be justified under s. 1 of the Charter. It does not differ, essentially, from the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus.”

Justice Beetz also rejected the arbitrator’s order that the former employer not say anything other than what the arbitrator required about the former employee. He pointed out that “one should view with extreme suspicion an administrative order or even a judicial order which has the effect of preventing the litigants from commenting upon and even criticizing the rulings of the deciding board or court”. Finally, while condemning the former employer, Justice Beetz pointed out that “under the Charter, freedom of opinion and freedom of expression are guaranteed to ‘everyone’, employers and employees alike, irrespective of their labour practices and of their bargaining power.”

All these points are important, and Canadian law is the worse for not having taken them more seriously. Most disturbingly, of course, we have seen in recent years recurring attempts to impose official dogma on dissenting individuals, whether by the Law Society of Ontario or by the governments of Canada and Ontario. But we also now have an asymmetrical Charter jurisprudence, notably in the realm of freedom of association, against which Justice Beetz correctly warned. And, while fortunately we have not seen attempts to stifle criticism of the judiciary or the administrative state by law, too many Canadian lawyers are intolerant of critiques of their judicial heroes.

2. Justice McLachlin (as she then was) in R v Keegstra, [1990] 3 SCR 697

Before she became, allegedly, the “Conscience-in-Chief” of Canada, or at least of the Central Canadian establishment, and a Chief Justice somewhat notorious for strong-arming colleagues into consensus, Justice McLachlin, as she once was, authored a number of important dissents. Famously, the one in Rodriguez v British Columbia (Attorney-General), [1993] 3 SCR 519 eventually, in effect, became Supreme Court’s unanimous position. The one in Keegstra did not. Even Chief Justice McLachlin, as she became, eventually resiled from it. That’s too bad.

In Keegstra, the Supreme Court considered the constitutionality of the Criminal Code‘s proscription of hate speech. The four-judge majority upheld it as a reasonable limit on the freedom of expression. Justice McLachlin wrote for three (on the freedom of expression issue) dissenters. Her opinion is, perhaps, a little fastidious, and contains little in the way of memorable language, but it is thoughtful and deserves to be considered even by those who do not ultimately agree with her. Indeed, having argued the substantive case against the criminalization of hate speech elsewhere on this blog (and Emmett Macfarlane having discussed them in his contribution to this symposium), it is the more general or procedural points that I would like to highlight here.

For one thing, Justice McLachlin was fundamentally skeptical of content-based regulation of speech, and much sympathetic to the American approach, the views all such regulation with great suspicion. For another, Justice McLachlin firmly rejected the attempt to equate hate speech with violence. Violence, she stressed, involved the use of physical force, not words, even hurtful words. Furthermore, Justice McLachlin refused to read down the Charter‘s protection of freedom of expression in the name of equality: “it seems a misapplication of Charter values to … limit the scope of that individual guarantee [of freedom of expression] with an argument based on s. 15, which is also aimed at circumscribing the power of the state”. Compare this to the use of “Charter values” to impose egalitarianism on private actors and eviscerate religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293!

Last but not least, consider Justice McLachlin’s insistence on the need for evidence to justify limitations on the freedom of expression. While acknowledging the appropriateness of some deference to the government on this issue, Justice McLachlin nevertheless wrote that, in order to avoid trivializing the justification of limitations on rights, “in cases … where it appears that the legislation not only may fail to achieve its goal but may have a contrary effect, the Court is justified in finding that the rational connection between the measure and the objective is absent”. Good intentions are not enough ― nor is the sort of ill-informed speculation, camouflaged as “common sense”, that has all too often sufficed in subsequent Supreme Court decisions.

Had just one vote gone the other way, and this opinion become the law, our constitution may well have been in much better shape than it is, far beyond the narrow issue of hate speech. As things stand, Keegstra has to count as one of the more significant missed opportunities in the Charter‘s history.

3. Justice Moldaver in Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433, a.k.a. l’Affaire Nadon

In l’Affaire Nadon the Supreme Court was asked to opine on the eligibility of the judges of federal courts for appointment to the Supreme Court itself, and especially that of judges of the federal courts from Québec for appointment to one the Supreme Court’s Québec seats. It was, as readers will recall, a very high-profile and controversial case (more on which in a forthcoming book by Michael Plaxton and Carissima Mathen). The sort of case, in other words, in which the Supreme Court not infrequently issues unanimous opinions “by the court”. But Justice Moldaver’s dissent prevented the majority from giving itself this ultimate institutional imprimatur.

The majority held that, while judges of the federal courts were, as former lawyers, eligible for non-Québec seats on the Supreme Court, only current lawyers or current judges of the Québec’s superior courts could take one of the Québec seats. In doing so, the majority relied heavily on the idea that judges from Québec had to be not only experts in the civil law, but also representatives of Québec’s “social values”. This, they could not do without being current, not merely former, judges of Québec’s courts or members of the Québec bar.

For his part, Justice Moldaver dissected each of the majority’s arguments, and found them empty. In particular, as a matter of text, the two provisions governing eligibility for appointment ― the general one requiring judges to be or to “ha[ve] been” judges or lawyers of at least 10 years’ experience, and the specific one providing that Québec judges are to be chosen “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province” ― are “inextricably linked”. If the 10-year rule applies to Québec seats, as the majority accepted, so must the eligibility of former lawyers.

As for purpose, Justice Moldaver rejected the majority’s claim that the eligibility criteria had anything to do with the representation of Québec’s alleged “social values”. Indeed, “[i]mporting social values — 140 years later — is unsupported by the text and history of the [Supreme Court] Act”. The majority’s interpretation leads to the absurd result that judges not only of the federal courts, but also of Québec’s provincial court, are ineligible for appointment, while a lawyer who has done no more than pay his fees to the Québec bar while not engaging with the law at all could be appointed; so could a former judge who rejoined the Québec bar for a single day. While Parliament might have chosen such absurd criteria for eligibility and said so, “when interpreting a statute to determine what the relevant criteria are — i.e. what Parliament intended them to be — absurd results are to be avoided”.

As I have said here before, the majority opinion was not only wrong but pernicious; in particular, its linchpin, the concept of “social values”, was just self-important twaddle. Justice Moldaver deserves credit for exposing its vacuity. Rumour has it that he did it at some cost to himself. His fortitude, then, is to be commended as much as his legal acumen.

Honourable mentions: Justices Brown and Côté in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, which I described here as “probably the best opinion to come out of the Supreme Court in a long while”, and Justices Martland and Ritchie in Re: Resolution to amend the Constitution, [1981] 1 SCR 753, a.k.a the Patriation Reference, which I plan on discussing further in a post on unwritten constitutional principles in a not-too-distant future.

Guest Post: Andrew Bernstein

A response to Mark Mancini’s post on Supreme Court appointments

About every 15 months, a vacancy arises in the Supreme Court of Canada. There is then a search process that lasts somewhere between a few weeks and a few months, which recommends certain candidates to the Prime Minister. The Prime Minister then selects the candidate and the Governor-in-Council makes the formal appointment “under the Great Seal.”

Since the appointment of Justice Marshall Rothstein in 2006, the process has had an additional step: the “Parliamentary hearing.” At this point, the Prime Minister’s selection is named, but instead of simply being appointed to the Court, s/he is as the “nominee.” This “nominee” then to appears before a Parliamentary committee and answers questions (or as Mark Mancini noted in his recent post, not answer questions) about various things, including his or her record, bilingualism, and even judicial philosophy. After these proceedings, the “nominee” is formally appointed to the Court.

The concept of the “hearing,” which neither exists in Canada’s constitution nor the Supreme Court Act was put in place 24 years after the Charter was enacted, as the result of decades of demands by media, academic and some conservative political figures. The concept was that since the Supreme Court now has a greater influence on Canadians’ lives, we should demand greater transparency and accountability from its judges. As a result, the logic went, Parliament should have a greater role in selecting Supreme Court judges, akin to the “advise and consent” function of the United States Senate. We have even adopted the language of the American process, where the President selects a “nominee,” and the Senate can choose to confirm or not confirm that nominee to the position.

Mark’s post points out a number of flaws in the hearings as they currently stand. He suggests that these hearings could be made more useful if they were opened up to a broader array of questions and answers While I agree with his diagnosis, I differ on the prescription and prognosis. In my view, this patient is terminal and should be put out of its misery. For reasons that are institutional, constitutional and functional, my own view is that these “nomination hearings” will never serve any useful purpose, and this 13 year long experiment should be considered a failure.

Institutionally, the committee conducting the hearing is a toothless tiger. It has a power to ask questions, but no power to do anything with the answers. It does not get to vote at the end of the process. So instead, the most it can do is harass or try to embarrass the candidate (as some non-government members tried to do with one candidate’s lack of fluency in French – it was a one-day story which no doubt harmed Justice Moldaver). But a Prime Minister with two vertebrae to rub together will know that almost no one is paying attention. Unless the candidate gives an answer that will make persistent negative headlines, his or her “confirmation” (by the same Prime Minister that “nominated” them in the first place) is guaranteed. So the candidates know that they have one job: don’t embarrass the Prime Minister. Not exactly a tall order for someone with the brains and experience of a typical SCC nominee. And if that’s not enough, the whole thing is “moderated” by a trusted legal luminary, who presumably understands that her role is to ensure that things don’t get too interesting. So what results is a very bland hearing where the people conducting it don’t have any decision-making power. The only way that could ever change is to give the Parliamentary committee an effective veto by allowing it to vote on the nominee. But no PM will do this because it means giving up one of his or her most important prerogatives. In fact, both Prime Ministers Harper and Trudeau have occasionally skipped this “nomination” process altogether (for Justices Cote and Rowe, respectively) and simply inserted their pick on the Supreme Court (as the Supreme Court Act contemplates). So what exists is an optional hearing, before a powerless committee. As Mark says, this is not a process, it’s Kabuki theatre.

My second reason for eschewing the nomination hearing is that it is contrary to the structure of Canada’s (written and unwritten) Constitution, and, as a result, misapplies the notion of political accountability which it is intended to serve. In the United States, the strict separation of powers means that there can be sharp political divisions between the Executive and the two houses of Congress. A President neither requires the confidence of either house to form a government nor must maintain it. As a result, he (or maybe, some day, she?) has no structural accountability to the legislative branches, with one major exception: executive appointments must typically be approved by the Senate as part of its “advise and consent” function. This is in no way limited to the Supreme Court. It is true for lower Federal courts, cabinet departments, agencies, and any number of other roles selected by the Executive to perform various government functions. In other words, Senate approval was designed to be a check on executive power.

In Canada, of course, the separation of powers is blurrier and political accountability works very differently. Confidence of the legislature is a crucial prerequisite to forming a government, and a requirement for keeping that government in office. A Prime Minister that loses the confidence of the House of Commons for any reason must immediately resign. Conversely, a Prime Minister can be presumed to have the confidence of the House for all purposes, including making governor-in-council appointments. Some of these appointments have an enormous effect on the lives of Canadians; potentially much greater than any Supreme Court judge. The most notable of these are federal Cabinet Ministers and Deputy Ministers (the political and civil service heads of federal departments, respectively), as well as the Clerk of the Privy Council (the head of the federal civil service). In all cases, the Prime Minister must answer to the legislature for his choices, not by putting these people through a nomination process, but rather by answering questions in Parliament about who he selected and why. If enough MPs believe that the Prime Minister is being reckless in his or her choices, they can vote no confidence and trigger an election. That is what political accountability looks like in a Parliamentary democracy. There is no reason in principle to have a different process for Supreme Court.

My third and related point is functional: by having a fake hearing for the purposes of fake accountability, we are missing an opportunity to have a real hearing with real accountability for the person who should actually take responsibility for the appointment. I wholly endorse the portion of the process by which the Minister of Justice and the head of the independent search process appear before the committee to answer their questions. I would add that since the Prime Minister has the final word, he or she should also appear, and be prepared to answer real questions about the process, the strengths and weaknesses of the candidate, and any other question that Parliamentarians want to ask him. This could include tough questions like “this is your third Supreme Court selection, why haven’t you selected an indigenous judge?” It could explore the PM’s philosophy of judicial selection, including what his or her priorities are (demographics, experience, credentials, political involvement, geography, etc.) and how s/he intends to implement them. This is useful information: in an election, different parties might contrast their priorities with the current government’s and voters can make a more informed decision, if this matters enough to them.

Because it’s never a good idea to publish anything without letting someone you trust read it first, I should say that I ran a draft of this piece by my colleague Jeremy Opolsky. In addition to making some excellent edits, challenging some weaker points, and greatly improving the arguments, he made one point that I found persuasive (if not quite persuasive enough to change my mind). Jeremy pointed out that getting to know a Supreme Court candidate could have real value separate and apart from asking the government questions, and even if the committee cannot change the result. He points out that the hearings provide an informational function about the judge which is, at a minimum, interesting. So if the hearings can accomplish this and do no harm, he posits, why not hold them? However, I remain unpersuaded, for one essential reason: perhaps uniquely among important decision-makers, we actually do get to know our judges, through their written reasons for judgment. In fact, they reveal a lot more about themselves in their judicial writing than we could ever learn about them in a nomination hearing, and without the political theatre that goes with it.

In sum, I suggest we let the political actors deal with the politics of judicial appointments. It is, after all their job. Little that happens at a nomination hearing actually allows us to know how judges are going to do their job, or really anything useful about them at all. So let’s skip the part where the judges get grilled and move to asking questions of the person who could actually be held accountable for their nomination. The whole institution of the Canadian “nomination hearing” was invented to assuage the demands of legal academics and the media, who no doubt were suffering a little excitement envy from the U.S. even before the events of 2018, as well as conservative political figures who have criticized the perceived liberal bent of Canada’s judiciary. When it comes to the Supreme Court, the practicing bar is primarily concerned about the Court providing coherent and well-reasoned decisions that can actually be applied to future cases so we can properly advise our clients on their rights and obligations. So to many of us, the real question for any new appointment process is whether it will improve the overall quality of the Supreme Court’s adjudication. There is reason to believe that the current Prime Minister’s independent search process will actually do that; certainly the first two “outputs” from this process look extremely promising. However, in the 13 or so years since Justice Rothstein first appeared, the existence of these nomination hearings, appear to have made no difference one way or the other.

I Said Don’t Do It

The federal government is wrong to involve Québec in the process of appointing the next Supreme Court judge

In 2014, after the Supreme Court invalidated the appointment of Justice Nadon to one of its seats reserved for Québec judges or lawyers, the federal government got the Québec government to propose a shortlist of candidates for the vacant-again position. This process resulted in the appointment of Justice Gascon to the Supreme Court. The federal government meant the outsourcing of the shortlist to be a one-off; the Québec government was hoping that it would create a precedent. Québec’s wishes were ignored when the next appointment to one its seats (that of Justice Côté) was made.

But now Justice Gascon is now retiring ― sadly, much before his time ― and a version of the process that produced his appointment is being brought back. As the Canadian Press reports,

[t]he federal and Quebec governments have reached what the province is calling a historic deal that ensures it will play an active role in the process of selecting the next Supreme Court of Canada justice from Quebec.

An advisory committee similar to those used for previous appointments made by the current federal government submit will then

submit a shortlist of candidates to the federal and provincial justice ministers. … [T]he premier of Quebec will also provide an opinion and forward a recommendation to the prime minister, who will make the final decision weighing the recommendation of the federal justice minister and Quebec’s input.

The provincial government’s role is, if I understand correctly, not as important as in the 2014 process, since it doesn’t extend to unilaterally determining the Prime Minister’s range of choices. But it is still significant. The province seems delighted. The Canadian Press writes that the provincial justice minister “called the deal precedent-setting” ― yes, again ― “saying it would allow the province to take a ‘direct and significant part’ in the judicial appointment”.

The rest of us should not be happy. In fact, we should be rather angry. I criticized the 2014 process at some length here, and I believe that that criticism is still applicable, albeit in a slightly watered-down form, to the new process. It is common enough for members of the Canadian chattering classes to claim that the federal government’s power of appointing Supreme Court judges without taking provincial preferences into account is a defect in our federal system. But this view is mistaken. Here’s part what I said in 2014 (with references updates):

[H]ow much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 and that in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election?

The latest developments sure give us some food for thought on this last question. The Parti Québécois, it is true, not only remains out of government, but is currently the fourth-largest party in Québec’s legislature. Yet its idea of purging the province’s public service of overtly religious persons ― especially if they are overtly religious in a non-Catholic way ― is alive, kicking, and in the process of being enacted into law, as Bill 21, by the Coalition Avenir Québec’s government. This is the same government, of course, that its federal counterpart wants to involve in the appointment of the judges who may yet be called upon to pronounce on Bill 21’s consistency with the constitution.

Back in the sunny days of 2015, when illusions about the current federal government being formed by the “Charter party” were still possible, the Prime Minister wrote the following to his Attorney-General:

[Y]our overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

The “Mandate Letter” in which these wonderful commitments are set out is still on the Prime Minister’s website, although its original addressee was eventualy fired for acting like an actual Law Officer of the Crown and not a political weather-wane. But the same Prime Minister’s government is now going out of its way to hand over part of its constitutional responsibility for appointing the judges of Canada’s highest court to a provincial government bent not only on trampling on fundamental freedoms, but also on insulating its actions from review for compliance with the Charter. I should have thought that this is an odd way of respecting the Constitution of Canada, of ensuring that the rights of Canadians are protected, and of demonstrating the greatest possible commitment to respecting the Charter of Rights and Freedoms. But what do I know?

Well, I know this. Five years ago wrote that

[t]he power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. … [T]he constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Don’t do it. Just don’t.

Lessening Us: The Supreme Court and SNC-Lavalin

The SNC-Lavalin episode gets worse, if that is possible.

In an apparent effort to distract from the SNC-Lavalin affair, a leak on Monday claimed that the rift between Prime Minister Justin Trudeau and former Attorney General Jody Wilson-Raybould began far before the term “deferred prosecution agreement” entered the public lexicon. Apparently, it all started when Wilson-Raybould recommended Manitoba Queen’s Bench Chief Justice Glenn Joyal to the Supreme Court of Canada. For those unaware, Chief Justice Joyal has, over the years, advanced a welcome antidote for the Charterphile Canadian legal community. His views are not extreme or inappropriate; rather, they are intelligent appreciations of the cultural and institutional changes that the Charter introduced. The fact that he was rejected out of hand for a Supreme Court appointment—and the fact the circumstances of his appointment have been leaked—are indictments of both Canada’s legal and political system.

The most important part of all of this is the morally repugnant way in which Chief Justice Joyal’s application for the bench was released by some unknown party. Originally, it was reported that Trudeau scuttled Wilson-Raybould’s recommendation because of his disagreement with Chief Justice Joyal’s views. Then, it was reported that Chief Justice Joyal actually withdrew his application, because his wife was suffering from metastatic breast cancer. The fact that this was leaked, and that Chief Justice Joyal’s personal life was implicated in the process, is a low for Canadian politics. No one should have to endure public scrutiny on a matter as personal–and tragic–as a cancer diagnosis.

What makes it even more tragic is that, as Chief Justice Joyal noted, his personal situation seems to be used as an agenda for the broader SNC-Lavalin controversy. The implication of all of this is that someone in the Prime Minister’s Office leaked the information to the press in order to show just how misguided Wilson-Raybould was as Attorney General. If there was any doubt, the episode shows just how far some politicos will go to undermine not only norms surrounding judicial appointments but also the personal lives of those in the way.

And, all of this for views that are not at all controversial and are important counterpoints to the ongoing debates about the Charter and its institutional features. A good example of Chief Justice Joyal’s welcome assessment of the major counter-majoritarian difficulty introduced by the Charter is his 2017 speech to the Law and Freedom Conference. The main theme of the speech outlined the consequences of the “judicial potency” that the Charter introduced, a feature that “was not anticipated back in 1982.” These consequences are ones that are not often discussed, are certainly true. For example, consider a few of the consequences Chief Justice Joyal noted:

The constitutional requirements imposed by the Charter do not “mesh” well with the legislative process, making it more difficult to make laws.
The Charter has moved important debates outside of the realm of the legislature and into the realm of courts.
This movement outside of the legislative realm creates “a public discourse dominated by the concept of ‘rights’,” one that is defined by “judicial formulations and tests.”
The political culture introduced by the Charter conflates constitutionality with policy wisdom, when there is no need to necessarily merge the two concepts.

Agree or disagree, these are all important consequences of the system of judicial review introduced by the Charter, and the way in which Canadian lawyers have reacted to that power of review. There is no doubt that the Canadian legal community largely suffers from “Charteritis,” (not my term–check out David Mossop’s 1985 article entited “Charteritis and Other Legal Diseases”). And for that reason, Chief Justice Joyal’s remarks in 2017 were a welcome appreciation of the symptoms of that disease.

But in the leak published on Monday, the nuance and force of Chief Justice Joyal’s conclusions were completely lost. Apparently, when Wilson-Raybould recommended Chief Justice Joyal to the bench, Prime Minister Justin Trudeau was concerned about the 2017 speech. Trudeau was apparently concerned that Joyal would be less willing to protect rights that have come from judicial interpretation of the Charter, including rights to abortion access and LGBTQ2 rights.

If this is true, this base understanding of Chief Justice Joyal’s legal views is completely wrong. There is nothing in his 2017 speech that would indicate a preference—one way or another—for any particular issue that would come before the Supreme Court, should he have been a judge. All of Chief Justice Joyal’s broader views are perfectly consistent with a respect for stare decisis and the cases that have entrenched rights, whether those cases were rightly or wrongly decided.

Chief Justice Joyal’s views have nothing to do with these issues, simply put. They merely stand for the idea that, in the age of the Charter, the legislatures have assumed a different role. This is simply an empirical fact. There are consequences to this. One is that, rather than dealing with issues through the cut-and-thrust of political debate, we have moved those debates into the courts, which are often ill-suited to deal with these sorts of problems. The issue of Aboriginal rights and title is a perfect example. Because of the recalcitrance of governments over generations, Aboriginal groups have, strategically, moved to the courts to vindicate their rights. But that does not mean that the judicial forum is a better place to do so. The Tsilqho’tin case is a good example of this—a case which took decades of time and untold resources to reach the Supreme Court. Even people who believe in the Charter, and in the judicial role that it introduced, should recognize that legislatures should still be important areas of public debate that should be equal constitutional actors in their own right, owed respect by the Supreme Court’s judges.

While it is perfectly appropriate for the Prime Minister to want to appoint people to the bench who reflect his view of the Constitution, those views should at least be informed and educated. Based on the media reporting so far, it appears that the Prime Minister was unwilling or unable to understand that one can have different approaches to Charter interpretation—or a less positive view of the broader implications of the Charter—and still have a respect for the document as a matter of constitutional law. Even if one thinks those views are wrong, this is no reason to misunderstand what Chief Justice Joyal’s views actually represent.

Taken together, this whole SNC-Lavalin episode continues to lessen us–our law and our politics.