judicial appointments – Double Aspect

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.

The Joke’s On Us

Canadians ought to care about who gets on the Supreme Court

Over the Thanksgiving weekend, the Beaverton ― Canada’s version of the Borowitz report ― ran a piece called “Canadians thankful they can’t name single Canadian Supreme Court Justice“. Remarkably enough, a number of lawyers in my social media feeds shared it ― with apparent approval. And of course a more reputable outlet published a rather similar story in all seriousness just a few months ago. I suppose one ought to be grateful that Canada has so far avoided the sordid spectacle of American “confirmation battles” generally, and that over the appointment of Brett Kavanaugh in particular. The ability of the Canadian governments to simply get their preferred candidates on the bench is, on the whole, a good thing. But it doesn’t follow that it is of no consequence who the judges of the Supreme Court are.

The Beaverton, parroting the national myth (aren’t they, like, supposed to make fun of things?), claims that “many Canadians were happy their court was quietly and deliberately applying the constitution”. This is, to use a technical term, bollocks. Just this year, the Supreme Court read the guarantee of free trade out of the constitution in R v Comeau, 2018 SCC 15; proclaimed, in defiance of fundamental principle, that administrative agencies can enjoy “plenary”, “unrestricted powers” in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (at [10] and [11]); and gutted religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32. This is not a court “quietly applying the constitution”; this is a court re-writing the constitution as its suits its fancy. Nor is this some sort of new development. Back in 2015, Grégoire Webber wrote that

Over the past year, the people of Canada have undertaken an important remaking of our constitution. We have given constitutional status to the Supreme Court, created a constitutional right to strike, and created a constitutional right to assisted death, among other changes. …

How have we done so? … We have … appealed to that straightforward constitutional amendment process called the Supreme Court of Canada.

Now, both in West Fraser and Trinity Western, and in some of the cases to which Professor Webber refers ― notably Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245, which “gave benediction” to the right to strike ― the Supreme Court was not unanimous in its rewriting or shredding of the constitution. There were fierce, and compelling, dissents. While no Supreme Court judge has taken a very consistent position in opposition to the Court’s majority view of its powers of constitutional amendment ― the Court was unanimous in Comeau, for instance ― some have been more forceful than others in resisting the trend. Justice Côté, in particular, has been a strong voice in favour of upholding the Rule of Law by opposing the empowerment of lawless administrative decision-makers.

And so it matters that there is only one Justice Côté on the Supreme Court; and that even with Justices Rowe and, especially, Brown, who sometimes join her in whole or in part, she is far from commanding a majority of the Court. It matters whether or not you agree with me that Justice Côté tends to be right (she isn’t always) and that most of her colleagues tend to be wrong. If you think that the majority of the Court is generally correct, and that Justice Côté and others who resist its assertions of judicial and administrative power are wrong, it also matters that there not be more Justices Côté, or even Justices Brown or Rowe. Indeed, the enthusiasts of judicial power in Canada understand this very well, which is why some were sufficiently upset when Justice Brown was appointed to the Supreme Court to demand that the Court prevent politicians from choosing judges in the future.

Smug self-satisfaction is, of course, Canada’ national disease, and self-congratulation at not being Americans is a widespread complication. Canadian lawyers are as susceptible to these things as their other compatriots. But we should know better. We should realize that Canadian judges are no more oracles than their American colleagues ― indeed, unlike some American judges, they don’t even pretend otherwise: witness Justice Abella’s repeated rejections of the Rule of Law as even an ideal to aspire to. We should understand that the Supreme Court’s relative anonymity, which it is only too happy to foster with “by the court opinions”, is part of what allows it to exercise powers with which, as even the Beaverton inadvertently suggests, many Canadians would not, in fact, be especially comfortable. If we cannot figure this out, the joke really is on us.

Which Principles? What Politicization?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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