Tag: judicial independence

Citizens and Judicial Independence

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

This is a joint post with Mark Mancini

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

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

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

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

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

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

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

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

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

Day 10: Bruce Ryder

Riding the waves of ascendant normative currents

Osgoode Hall Law School, York University

All judicial opinions are directed to adjudicating disputes and to the clarification and development of the law. Majority and dissenting opinions reach different conclusions of course; they also speak to different points in time. Dissenting opinions imagine and bring into view more distant legal futures. The dissenter hopes to have an impact on the development of the law further down the road, when anticipated injustices fostered by the majority’s position have been revealed.

Because the value of a dissent emerges over time, we ought to be cautious about lauding or condemning dissents early in their lifetimes. After a few decades have passed, we can ask: what impact has the dissent had on the development of the law? has the dissent shifted or ignited professional, judicial and scholarly debates about what the law ought to be?

The best dissents expose flaws in majority opinions and where they will take us. They deftly catch and ride the waves of ascendant normative currents in the law. They pose better questions, open new debates, and expand our critical imaginations about what a just future might look like. They invite us to dissent, not just from the majority, but also from the dissent itself. And by doing so they remind us that the best dissents are the ones that have not yet been written.

The three dissents I have chosen to highlight in the Supreme Court of Canada’s public law jurisprudence are Justice Beetz’ in the Anti-Inflation Reference, [1976] 2 SCR 373 , Justice La Forest’s in the Provincial Judges Reference, [1997] 3 SCR 3, and Justice McLachlin’s in Shell Canada Products Ltd v Vancouver (City), [1994] 1 SCR 231. Each has had an important impact on the subsequent development of the law, has advanced debates in professional and scholarly circles, and has invited us to pursue further critique beyond where the dissents themselves ventured.

Justice Beetz and the POGG Power

In his dissent in the Anti-Inflation Reference, Justice Beetz began by explaining in precise detail why the federal Anti-Inflation Act interfered with provincial jurisdiction “in a frontal way and on a large scale”. His concerns about federal interference with provincial autonomy resonated with the times – the Parti Québécois would be elected for the first time four months later. He explained why inflation was not a subject-matter that could be allocated to the national concern branch of POGG. To do so, he wrote, would “destroy the equilibrium of the constitution” since inflation lacked “a degree of unity that made it indivisible, an identity which made it distinct from provincial matters and a sufficient consistence to retain the bounds of form”.

Justice Beetz then turned to the emergency branch of POGG, describing its distinct contours, as he had with the national concern branch, with new conceptual clarity. The emergency power, he wrote, temporarily accords to Parliament all legislative powers necessary to deal with a crisis, including “concurrent and paramount jurisdiction” over matters that fall within (ordinarily exclusive) provincial jurisdiction. Resort to the emergency power, he said, “amounts to a temporary pro tanto amendment of a federal Constitution by the unilateral action of Parliament.”

The majority judges were willing to allow Parliament to rely on the emergency power despite the absence of any indication in the legislative history that it was doing so. Justice Beetz stood firmly against sanctioning such a cavalier approach to federalism and democratic deliberation. He insisted that “Parliament cannot enter the normally forbidden area of provincial jurisdiction unless it gives an unmistakable signal”. In the absence of such a signal, “[i]t is the duty of the courts to uphold the Constitution, not to seal its suspension”.

The Court has not had an opportunity to revisit the emergency power since 1976. Justice Beetz’ opinion on the required form of its exercise remains the dissenting view. But the force of his position is undeniable. It is, like all the best dissents, a law in the becoming, an imminent law set to bloom. It would be foolhardy for Parliament to attempt to invoke the emergency power by stealth ever again.

Justice Beetz’ comments on the national concern branch of POGG were powerful obiter dicta that later became the law when they were adopted by the Court in R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 (1988) a decade later. The criteria Justice Beetz articulated – and whether those criteria need to be adjusted to give greater weight to the importance of national responses to problems of the scale and urgency of global warming – will be at the heart of the references on the validity of the Greenhouse Gas Pollution Pricing Act to be heard by the Supreme Court in March 2020. The new emphasis Justice Beetz gave to provincial autonomy in 1976 will continue to shape the evolution of the POGG power and Canadian federalism jurisprudence more generally.

Justice La Forest and Unwritten Constitutional Principles

Chief Justice Lamer’s extended obiter dicta in the Provincial Judges Reference, locating a guarantee of judicial independence applicable to all courts in the preamble to the Constitution Act, 1867, were a startling and self-serving expansion of judicial power.

Justice La Forest’s dissenting opinion was a lacerating critique of the majority’s overreaching dicta. He emphasized that if judicial review is not grounded in the provisions of the text of the constitution, the courts lack a democratically legitimate basis for placing limits on the powers of the executive and legislative branches of government. “The express provisions of the Constitution are not, as the Chief Justice contends, ‘elaborations of the underlying, unwritten, and organizing principles found in the preamble”, he wrote. “On the contrary, they are the Constitution.  To assert otherwise is to subvert the democratic foundation of judicial review.”

Remarkably, Justice La Forest’s powerful critique failed to pry any of his colleagues loose from the majority opinion. The Court has adopted Chief Justice Lamer’s dicta in a series of rulings on judicial independence. Nevertheless, Justice La Forest’s dissent has had a large influence. Much of the scholarship commenting on the Court’s use of constitutional principles has echoed his concerns. Apart from the Secession Reference, [1998] 2 SCR 217], the Court over the last two decades has rebuffed many attempts to use unwritten principles to fill gaps in the constitutional text. In British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, for example, Justice Major wrote that “protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box”.

The opinions in the Provincial Judges Reference and the Secession Reference stand, but otherwise the Court appears to have drawn a line in the sand on the gap-filling deployment of unwritten principles. The power of Justice La Forest’s dissent has played an important role in halting any further reliance on a methodology that raised serious questions about the legitimacy of constitutional judicial review.

Justice McLachlin, Racism, and Municipal Government

At issue in Shell Canada Products Ltd v Vancouver was the validity of a resolution of the Vancouver City Council refusing to do business with Shell until the company “completely withdraws from South Africa”. The municipal boycott of Shell was motivated by “moral outrage against the racist apartheid regime in South Africa”. Justice Sopinka’s majority opinion found that the resolution was not adopted for municipal purposes and also amounted to unauthorized discrimination against Shell. For these two reasons, he concluded that the resolution was beyond the scope of the city’s statutory powers.

Justice McLachlin’s dissent rejected the majority’s parochial approach to local government. She aligned herself instead with “the weight of current commentary” that supports “a more generous, deferential approach” to the exercise of municipal powers. A healthy respect must be given, she wrote, to “the democratic responsibilities of elected municipal officials and the rights of those who elect them”. The welfare of the city’s residents included their moral welfare. Moreover, the city’s power to enter into transactions necessarily entailed a power to discriminate between companies. She thus departed from the majority’s perverse expression of greater concern about discrimination against Shell than it did about the oppression of African peoples.

While the majority’s insistence on a strict separation of municipal purposes and global concerns has yet to be overruled, the approach outlined in Justice McLachlin’s dissent has had a strong influence on the development of municipal law over the past quarter century. Citing her opinion on multiple occasions, the Court has embraced a broad and purposive approach to the interpretation of municipal powers.

The opinions in Shell participated in a long-standing Canadian tradition of managing to say nothing about racism in cases about racism. Neither opinion mentioned the inter-relationships between forms of colonialism and racism across the British Commonwealth. Nor did the Vancouver resolutions have anything to say about the connections between racism at home and abroad, and the need to address the impacts of racism and settler colonialism on Indigenous peoples in the city. Future dissents – and majority opinions – are less likely to leave these issues unspoken.

Day Four: Jonathan Maryniuk

 

I am honoured to be asked to provide three of my favourite Supreme Court of Canada dissents.

I enjoyed reading dissents in my free time even before I was even accepted into law school.  Picture me: I am in the lunchroom at one of my summer warehouse jobs in the middle of the night.  Everyone else is watching Family Guy or doing Sudoku.  And then there is me, alone in the corner, reading and revelling in stacks of paper printouts of SCOTUS dissents from the 2000s (read this fascinating piece behind one of them).  Yes, I was a nerd and a sucker for judicial zingers.

We have been recently been living in a bit of a golden era for dissents.  But to remove any recency bias, I have chosen three of the following Supreme Court of Canada dissents from outside this era.

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 (La Forest J.)

This decision was released just days before Justice La Forest retired.  La Forest’s dissent in this case was a bit of a “mic drop”.

The issue was whether and how s. 11(d) of the Charter protects against a reduction of provincial judge’s salaries because it guarantees those charged with an offence the right to “an independent and impartial tribunal”.

La Forest was, by polite Canadian standards, scathing in addressing the majority’s analysis that the preamble to the 1867 constitution means government cannot interfere with the judiciary.  He called the majority opinion “historical fallacy” (para. 311), “strained” reasoning (para. 322), “made of insubstantial cloth” (para. 313), a “dubious theory of an implicit constitutional structure” (para. 319) and “entirely misapprehends the fundamental nature” of the constitution (para. 318):

The express provisions of the Constitution are not, as the Chief Justice contends, “elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867 ”… On the contrary, they are the Constitution.  To assert otherwise is to subvert the democratic foundation of judicial review. (para. 319)

And if that was not enough, La Forest suggested the Court’s majority opinion hurt the legitimacy of the judiciary itself: the legitimacy of the courts are imperiled “when courts attempt to limit the power of legislatures without recourse to express textual authority” (para. 316):

Given that the express provisions dealing with constitutional protection for judicial independence have specifically spelled out their application, it seems strained to extend the ambit of this protection by reference to a general preambular statement. (para. 322)

On the heels of this, La Forest could not agree that the Charter mandates there be an independent judicial compensation commission to deal with judicial compensation.  “Requiring commissions a priori, however, is tantamount to enacting a new constitutional provision to extend the protection provided by s. 11 (d)” (para. 344).

The opposite is true – that the constitution does not mandate a salary commission for judges –  “because it is grounded in reason and common sense” (para. 334).   To La Forest, the majority’s “result represents a triumph of form over substance” since they acknowledged the government may ignore the commission’s recommendations in some circumstances (para. 343).

La Forest was also highly critical of the Court causing waves without a mandate to do so.  The Court should not “venture forth on this uncharted sea” by making a decision with significant ramifications on an issue “where only the briefest of allusion to the issue was made by counsel” (paras. 301, 324).   The Court in 2018 understood this when it alerted the parties it was potentially reconsidering Dunsmuir.

Overall, La Forest’s language and reasoning makes for a highly readable and compelling dissent.  It is unfortunate we could not get a counter-response to this dissent.

Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Abella J./LeBel J.)

Like some others have said, there is a lot to like about Justice Abella and LeBel’s dissenting opinions in this case. Abella wrote separately, and was joined by LeBel, who also wrote separately.

This case upheld the Province of Alberta’s ability to require Hutterites be photographed in order to drive.

Although the tone of Abella’s dissent is relatively demure, there were a few zingers.  Justice Abella took aim at both Chief Justice McLachlin’s majority opinion and the government’s arguments.  Abella said the government’s evidence justifying the infringement wasn’t “anything more than a web of speculation”.

According to Abella, the majority’s “analysis fully flounders” at the proportionately stage of Oakes.  She then offered this devastatingly simple retort:

The fact that Alberta is seemingly unengaged by the impact on identity theft of over 700,000 Albertans being without a driver’s licence, makes it difficult to understand why it feels that the system cannot tolerate 250 or so more exemptions.

In their dissents, Abella and LeBel explicitly recognized the communal and associative nature of religion.  This was something that had been largely absent from freedom of religion jurisprudence.  They rejected the notion that the Hutterites should simply find third party transportation: “This balance cannot be obtained by belittling the impact of the measures on the beliefs and religious practices of the Hutterites and by asking them to rely on taxi drivers and truck rental services to operate their farms and to preserve their way of life” (para. 201, LeBel J.).  The emphasis of community in religion would be later recognized in Loyola, Mounted Police, and (to a degree) TWU.

Justice Abella built off of her dissent in this case in her later dissent in R. v. NS:  “It is unclear to me how a claimant’s ‘strength” of belief…affects the protection a claimant should be afforded under the Charter” (para. 89).  Conversely, Abella appeared to walk back from this in TWU, when she found as part of the majority that exercising a communal right that was a “preferred” practice rather than a “necessary” one means the interference in a right is “limited” (TWU, para. 88).

Abella and LeBel’s dissents expose how easily minority rights can be trampled by tenuous and weak claims by the government that minorities cannot be accommodated.

Dunsmuir v. New Brunswick, 2008 SCC 9 (Binnie J.)

While technically a concurrence, Justice Binnie’s opinion in Dunsmuir is really an alternative approach to the majority’s reimagining of the standard of review.  It is an opinion that has simmered with me ever since the rendering of Dunsmuir caused havoc during my administrative law class.

Citing Romeo and Juliet, Binnie called for a “broader reappraisal” of judicial review than replacing administrative law nomenclature the majority called for:  “Judicial review is an idea that has lately become unduly burdened with law office metaphysics.  We are concerned with substance not nomenclature….Every hour of a lawyer’s preparation and court time devoted to unproductive “lawyer’s talk” poses a significant cost to the applicant. (para. 122, 133).  Binnie later managed to incorporate his “law office metaphysics” line in another case.  It is a great phrase.

Binnie, who was directly appointed to the Supreme Court from being a lawyer, identified a compelling problem that the Court’s recent landmark Vavilov decision admitted (para. 21) that Dunsmuir failed to alleviate.  Lawyers cannot predict the standard of review, which may determine the disposition of a case:

Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied….A victory before the reviewing court may be overturned on appeal because the wrong “standard of review” was selected.  A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome . . . .

As a lawyer, my response to this is an enthusiastic “yes!”. Clients review an administrative decision because they feel a decision-maker got it wrong.  It is difficult to explain to them that their success may hinge on “law office metaphysics”.

Lawyers are preoccupied with arguing “standard of review” and not “on the who, what, why and wherefor of the litigant’s complaint on its merits” (para. 154).

Binnie had proposed a more predictable way of choosing the standard of review than the majority.  He said that reasonableness should be presumed (later adopted in Vavilov), absent a statutory right of appeal or pure question of law or jurisdiction.  As a lawyer, the perspective of lawyers/clients and offering predictability is appreciated.

Binnie also rightly saw what was glaringly missing in the majority’s opinion and what courts have struggled with ever since.  That is, how “reasonableness” review ought to operate and how “court and litigants can plug in the relevant context” into the review (para. 151).  Dunsmuir’s majority opinion is surprisingly scant on this.  Administrative law lawyers have since had a “fun” time extrapolating para. 47 of that opinion.

Binnie fleshed out reasonableness review in a way Dunsmuir’s majority had not.  Although Binnie insisted his approach could be done “without traumatizing the participants” (para. 153), I am not so sure administrative law will ever be trauma-free.

Day One: Dwight Newman

Three dissents of principle

Professor of Law, University of Saskatchewan

In considering some dissents of note, it is important to consider what factors make a dissent stand out. Amongst these are its intellectual coherence, its adherence to basic principle, and its tendency to stand up to a majority opinion with some surface allures. In some cases, such dissents of principle end up shaping the law in future, and that is the case in varying ways with all three of the dissents I will discuss here: the dissent of Beetz J. in the Anti-Inflation Act Reference, [1976] 2 SCR 373, the dissent of La Forest J. in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 SCR 3, and the dissent of LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.

Beetz J. in the Anti-Inflation Act Reference

Justice Beetz, though not always attracting as much attention today, was an intellectual giant of his era. His dissenting opinion in the 1976 Anti-Inflation Act Reference, in which he stood up for fundamental principles of federalism, is a landmark judgment. In the case, Beetz J. wrote against the majority judgments upholding relatively popular legislation designed to combat severe inflation, including the lead judgment of Laskin C.J.C. supported by the future chief justice Dickson J.

In doing so, Beetz J. had to articulate tests for the so-called “peace, order, and good government” (POGG) power. While the majority mistakenly stated the POGG test too broadly and in ways that would harm Canadian federalism had they come to be applied in other cases, the tests articulated by Beetz J. could inform future jurisprudence, notably shaping the approaches of both the majority and the dissent in the 1988 decision in R. v. Crown Zellerbach Ltd., [1988] 1 S.C.R. 401. 

On the use of the national concern branch of POGG, Beetz J. actually obtained a majority even in the Anti-Inflation Act Reference itself, as Ritchie J.’s opinion signed on with Beetz J. on this issue. The judgment of Laskin C.J.C. had a peculiar ambiguity to it, not drawing clear distinctions between “national dimensions” and a “national emergency”, and Beetz J.’s dissent thus offered an appealing intellectual rigour by comparison to an approach that would have failed to offer meaningful constraints on federal power. Indeed, Beetz J. presciently warned against the dangers of the federal government inventing new powers by developing creative names for matters it sought to claim under the POGG power.

On the emergency branch, Beetz J. was ready to insist upon the need for transparency in any invocation of emergency powers, along with the other elements needed for the use of the power, including genuine temporariness.  Writing of the mixed body of evidence put forth in support of the federal anti-inflation legislation allegedly being focused on an emergency, Beetz J. showed his readiness to describe matters frankly: “I remain unimpressed” (p. 466). His dissent in the case continues to stand as a tour de force in resisting federal overreach.

La Forest J. in the Provincial Court Judges Reference

The dissent of La Forest J. in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.) (Provincial Court Judges Reference), saw La Forest J. standing alone against a Court that claimed to find unwritten constitutional principles governing judicial salaries. The forthrightness of the judgment is stark, as La Forest J. wrote that “the approach adopted by the Chief Justice, in my view, misapprehends the nature of the Constitution Act, 1867” (para. 320) and he suggested that the approach adopted caused the very legitimacy of the Court to be “imperiled” (para. 316). Indeed, he saw the case as being about “the nature of judicial power” (para. 300) in so far as the rest of the Court dreamt up arguments not proffered by the parties to find unwritten principles in the preamble of the Constitution Act, 1867.

In doing so, the majority set the stage for the kind of reasoning they would end up using in the Reference re Secession of Quebec, [1998] 2 SCR 217 shortly thereafter. But it was La Forest J.’s resistance to judicially created principles that would later win out, as the Court had to take  steps in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 SCR 473 to fend off a surge in litigation grounded in alleged unwritten principles. The majority managed to use unwritten principles on judicial salaries and on secession but came to realize that such an approach was unmanageable for the judiciary as an institution. In Imperial Tobacco, it also indicated its arguably newfound respect for “the delimitation of […] rights chosen by our constitutional framers” (para. 65). While unwritten constitutional principles were convenient in a particular moment, the principled position is to seek to focus on the written text, and that was what La Forest J. defended. 

There has been over the years much talk that La Forest J.’s  resignation from the Court—essentially simultaneous with the release of the judgment in being announced weeks before the release and taking effect weeks after—was a mark of his profound disagreement with the decision, its methodology, and its implications for the upcoming cases. His dissent lives on as a defence of the rule of law.

LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony

There are many important Charter dissents, and the dissent of LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony might not be a common choice.  In some ways, the dissent of Abella J. in the same case has attracted more attention and defends some of the same positions as those within the dissent of LeBel J. But it is LeBel J.’s dissent that has a certain starkness and that marks more profoundly a certain commonsensical resistance to the majority’s convenience-oriented rejection of a religious freedom claim.

The facts concerned the religious freedom claim of a small group of 250 Hutterite farmers from some particular colonies in rural Alberta whose understanding of Scriptural principles against graven images took a particularly strict form: they took the view that they could not have their photographs on their driver licences. The province of Alberta had implemented a universal photo requirement to create a universal facial recognition database and removed an exemption previously granted to these 250 Hutterite farmers that would exclude them from the database, along with the 700,000 Albertans who did not have driver licences at all.   

While the majority opinion of McLachlin C.J.C. (erroneously) accepted the creation of the database itself as the government objective for purposes of analyzing any infringement and McLachlin C.J.C went so far as to suggest that the farmers in question could simply arrange alternative transportation, LeBel J. eviscerated the majority logic in a few lines. Writing against the judgment of McLachlin C.J.C. —who grew up in rural Alberta—it fell to LeBel J. to point out the importance of a driver’s licence in rural Alberta and to suggest that an appropriate constitutional balance was not obtained “by belittling the impact of the measures on the beliefs and religious practices of the Hutterites and by asking them to rely on taxi drivers and truck rental services to operate their farms and to preserve their way of life” (para. 201). 

The defence of collective aspects of religious freedom resonating through various parts of LeBel J.’s dissent (and the subject of a beautiful passage about communities of faith at para. 182), also found in Abella J.’s dissent, won out in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613.  There, McLachlin C.J.C. and Moldaver J., wth Rothstein J. also signing on, decided to state that LeBel J. had not actually been in dissent on the significance of religious communities and the collective dimensions of religious freedom (para. 93). Sadly, such reassurances may have come too late, as many understood the majority opinion in Hutterite Brethren as implicitly about worries about future cases involving Muslims, and the majority’s tolerance of government restrictions probably set a tone for the years to come. But, in principle, LeBel J.’s dissent came to be the law on these aspects.

Another, fascinating dimension of LeBel J.’s dissent also deserves more attention than it has received thus far. In his dissent, he also fosters new thought on the Oakes test for rights limitations, recognizing explicitly some problems in how it had come to be applied over the years. This thought was also prescient, and further rethinking of the Oakes test has emerged as an arena for ongoing discussion. Like other great dissents of principle, LeBel J.’s dissent in Hutterian Brethren sparkles with intellectual energy and stands on fundamental points of principle in ways that make it endure not as a mere minority report but as a light for the future.

Things I Dislike about the Constitution

10 problems with the Canadian constitution (according to its original meaning)

In an interesting Volokh Conspiracy post, Ilya Somin provides a “list of several areas where … the Constitution [of the United States] gets important issues badly wrong”. This is in response to concerns that (American) originalists, most of whom tend to be conservatives or libertarians, come to their position on how to interpret (their) constitution because they think that originalism yields results consonant with their political views. As Professor Somin notes, “[s]imilar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views”. But, even if one’s work is focused on those areas where one’s political and constitutional views are aligned, for any principled person there are likely to be areas where this alignment break down.

Here are some of mine (for the Canadian constitution of course, not the American one). It is a very tentative list. That’s partly due to my ignorance in some areas, especially that of Aboriginal law, and partly because there simply hasn’t been enough work done on the originalist interpretation of the Canadian constitution. There is still less written on the correct originalist approach to non-textual constitutional rules (notably constitutional conventions and principles) and also to provisions that are spent or obsolete and yet have never been excised from the constitutional text (notably sections 55-57 of the Constitution Act, 1867, which provide for the intervention of the UK government in the Canadian legislative process, and which I have simply ignore here).

Anyway, this is a start. The list, after the first two items, is more or less in the order in which things come up if you read the Constitution Acts 1867 and 1982.

* * *

1. What is the constitution of Canada?

Let’s us start with the most conceptually fundamental problem. Section 52(2) of the Constitution Act, 1982 provides that “[t]he Constitution of Canada includes” a number of legislative instruments, notably the Constitution Acts, 1867 – 1982. The word “includes”, as the Supreme Court has correctly recognized, means that the list it introduces is not exhaustive. So what else is part of the “Constitution of Canada”? I doubt that the term “constitution” has an unambiguous original public meaning, given its fluidity in the Westminster tradition, which the existence of constitutional texts in Canada only compounds.

This is a big problem, because it is “the Constitution of Canada” that, by virtue of section 52(1) of the Constitution Act, 1982, “is the supreme law of Canada”, invalidating any other inconsistent law, and by the (self-referential) terms of section 52(3) can only be amended “in accordance with the authority contained in the Constitution of Canada”? Section 52(2) fails to provide useful guidance on an issue of fundamental importance in our constitutional law. Ideally, it should be amended to clarify what is, and what is not subject to sections 52(1) and 52(3), in particular among Imperial legislation such as the Bill of Rights 1688, as well as “unwritten” constitutional rules and principles.

2. Parliamentary sovereignty

My biggest philosophical problem with the Canadian constitution is that, subject to the federal division of powers and the specific restrictions on legislative power found mostly in the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982, it is underpinned by the traditional view of Parliamentary sovereignty.  As much as I would like the constitution to include something like a Barnettian “presumption of liberty“, and whether or not such a presumption exists under the Constitution of the United States, correctly interpreted, it is a thing alien to the Westminster tradition as it evolved in the 18th and 19th centuries. I don’t think there is or can be any serious dispute about that.

Under the Canadian constitution, subject to the aforementioned limitations, Parliament and the legislatures are free to enact laws that benefit some people at the expense of others or are otherwise  not rational means to advance the public interest. Now, these limitations are not insignificant. They would be more important still if the courts interpreted them correctly, instead of letting their pro-regulatory bias dictate their decisions, as the Supreme Court recently did in R v Comeau, 2018 SCC 15, and if they adhered to the original requirement of exclusivity in the federal division of powers. Nevertheless, the scope of legislative power under the Canadian constitution is much too broad.

Parliamentary sovereignty is also pernicious because it is, paradoxically, the constitutional foundation of the administrative state. While I would not yet concede the constitutionality of judicial deference to administrative decision-makers, Parliamentary sovereignty is the best argument for it. And there is no doubt that Parliamentary sovereignty is the justification for the delegation of considerable legislative and adjudicative powers to administrative decision-makers in the first place. Whatever limits on such delegation might exist as a matter of the constitution’s original public meaning ― a subject that I would love to see explored ― I strongly suspect (based notably on decisions made by the Judicial Committee of the Privy Council, whose outlook was more or less originalist), that any such limits are pretty broad. Thus, even if constitution, properly understood, is more constraining than the courts now recognize, Parliamentary sovereignty means that Canadian legislatures are entitled to create an extensive administrative state ― and that’s bad  for the liberty of the subject, the accountability of government, and the Rule of Law.

3. Lack of proportional representation of the provinces in the House of Commons

Proportional representation of the provinces was one of the key aims of Confederation, and it is seemingly enshrined in sections 52 of the Constitution Act, 1867, and 42(1)(a) of the Constitution Act, 1982. Yet this principle is qualified by sections 51 and 51A of the Constitution Act, 1867 and 41(b) of the Constitution Act, 1982, to ensure that the representation of small provinces is not reduced. The result is that small provinces are over-represented, and also that the size of the House of Commons keeps increasing, and will likely have to keep increasing in perpetuity, since this is the only way to dilute this over-representation. I do not particularly like either of these things, but there they are, doubtless a necessary if unprincipled political compromise.

4. Lack of recognition of municipal institutions

While the Constitution Act, 1867 has served us well ― for the most part, as noted below ― in maintaining a robust division of powers between the Dominion and the provinces, but this is probably not enough. The kerfuffle about the imposition by Ontario of a downsizing on Toronto’s municipal council, which I take it has the support of pretty much nobody in the city, is only the latest evidence for the proposition that municipal self-government ought to enjoy at least some constitutional protection from provincial interference. While I do not know just what this protections should take, and do not argue that municipalities ought to be recognized as a full-blown third order of government, the situation in which they can be interfered with at will, for good reasons, bad reasons, and no reasons, seems undesirable. Yet as things stand, municipalities are subject to the provinces’ plenary power under section 92(8) of the Constitution Act, 1867, and the right to vote in municipal elections is not protected by section 3 of the Charter, which by its clear terms only applies to “election[s] of members of the House of Commons or of a legislative assembly” of a province. The ongoing litigation between Toronto and Ontario may yet see the courts accept some of the city’s strained constitutional arguments, but I do not think that there is any serious claim that the constitution’s original public meaning prevents the province from doing what it did, however unwise its decision was.

5. Taxation provisions

My thoughts here are  tentative, because I am by no means an expert on tax law, or even on just its constitutional aspects. I take it, however, is that the distinction between “direct” and “indirect” taxes that forms the basis of section 92(2) of the Constitution Act, 1867 and is ― as decisions of both the Judicial Committee of the Privy Council and the Supreme Court recognize ― based on economic views prevailing at the time that legislation was enacted, is obsolete. The Supreme Court is right to try to stick with the original meaning of the constitution taxation provisions, but it would probably be a good thing if these provisions were amended to reflect more up-to-date economic concepts ― and, ideally, provide a clearer distinction between the respective sources of income of the federal and provincial governments.

6. Trade and commerce

Here too my thoughts are somewhat tentative, but there are ways in which the federal power over trade and commerce inmight be both too broad and too narrow. For one thing, like Professor Somin, I lament the indubitable constitutionality of tariffs. Professor Somin writes that “[a] well-designed Constitution would at the very least make it far more difficult to enact trade barriers than ours does” ― but the Canadian constitution, by this standard, is no better than the American one. Section 122 of the Constitution Act, 1867 clearly authorizes Parliament to enact “Customs and Excise law”. At the same time,  section 91(2) of the Constitution Act, 1867 is arguably too narrow in that, read together with section 92(13), it leaves securities law, to provincial jurisdiction (as the Supreme Court correctly found in Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837). Again I am no expert, but I take it that federal power in this area is widely regarded as desirable. It is worth noting that on the whole Canada has been well served by the decentralized division of powers embodied in sections 91 and 92 of the Constitution Act, 1867. But, while generally sound, this division is not perfect.

7. Lack of protections for judicial independence

The Canadian constitution has relatively little to say about judicial independence. The Judicature provisions of the Constitution Act, 1867 incorporate the rule of the Act of Settlement 1700 that the judges of the superior courts can only be removed by the Crown on address of the two houses of Parliament, and it is at least arguable that the convention that no such address would be moved except on grounds of misbehaviour or incapacity is part of the context in which this provision must be understood. The Constitution Act, 1867 also provides for the payment of these judges by Parliament, but seems to provide no protection against the reduction of judicial salaries, let alone any requirement for salaries to be set through some non-political process. Of course it does not apply to the judges of federal or provincial courts. Section 11(d) of the Charter provides a right to trial by an “independent and impartial tribunal” to persons “charged with an offence”, but does not specify what this means; nor does it guarantee the independence of judges who do not exercise criminal jurisdiction.

I would like to see more research into the original public meaning of the term “independent tribunal” as it is used by the Charter and into its good faith construction, but I am pretty skeptical that the Charter requires the sort of independent commissions for setting judicial salaries that the Supreme Court’s opinion in the Provincial Judges Reference, [1997] 3 SCR 3, demands. I am still more skeptical of the appropriateness of reading extensive protections for judicial independence, including for courts not covered by the Charter, into the constitution through the unwritten principle of judicial independence. Yet I also think that such protections are highly desirable. If I were re-writing the Canadian constitution, I would provide such protections for all courts ― superior, federal, and provincial alike. The weakness of existing constitutional provisions in this respect is somewhat embarrassing.

8. Lack of protections for economic liberty

The Charter does not protect property rights, freedom of contract, or the right to earn a living by lawful means of one’s choosing ― except the latter against discrimination “among persons primarily on the basis of province of present or previous residence”. As I’ve argued in the past (here and here), this is very unfortunate. As Professor Somin, among others, often points out, the absence or weakness of constitutional protections for property rights or economic freedom often causes the poorest and most politically disfavoured or excluded members of society to be disproportionately targeted by the state or by private interests who are able to use their political connections to put its coercive power at their own service. It is most unfortunate that the framers of the Charter failed to understand this. Indeed, if I had to rank my objections to the constitution in order of their practical signifiance, this one would probably be at the top of the list.

9. Protection for affirmative action

Section 15(2) of the Charter insulates affirmative action or positive discrimination programmes from scrutiny based on the Charter‘s equality guarantee. This is not the place for a full argument, but I don’t like this one bit. Discrimination is still discriminatory even if its present targets belong to groups that historically were perpetrators rather than victims. If exclusion based on innate characteristics is demeaning, then job postings that say that straight white men need not apply are demeaning. The framers of the Charter were wrong to tolerate such practices.

10. The “Notwithstanding Clause”

I’ve written a good deal about this one already: see here, here, here, and here. In a nutshell, I don’t think that allowing politicians to set aside constitutional protections for fundamental rights is a good idea. Of course, courts can err by expanding these protections beyond their original scope, or by failing to recognize the reasonableness of legislative limitations. But in my view the expected costs of legislative error are much higher than those of judicial error. Yet there is no question that section 33 of the Charter, which permits Parliament and legislatures to legislate “notwithstanding” some of the rights the Charter normally protects is part of the law of the constitution, and I don’t think that there is yet a convention against its use, even at the federal level, let alone in some of the provinces.

* * *

This is a fairly lengthy list, and some of the items on it reach deep into the constitutional structure ― rather deeper, I think, than Professor Somin’s objections. Why, then, should I, or anyone, be an originalist, and insist that our flawed constitution is to be applied by the courts in accordance with its original public meaning, instead of urging the courts to make it just? Because, as Jeffrey Pojanowski argues, we should not be too demanding of constitutions. It is unrealistic to expect perfection, even if we believe that such a thing is conceptually possible. We should set our sights lower:

even if one has moral qualms about particular provisions of the constitution, any constitutional regime that passes a threshold of moral respectability has a moral claim to our support and respect. (586)

But for a morally respectable constitutional regime to serve as a law capable of guiding the expectations and conduct of citizen and government alike, its terms

must be known and reasonably durable. Were the constitution’s legal norms treated as merely good advice, a polity would not enjoy the moral benefits that positive law exists to provide in the first place … 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. (586-87)

The Canadian constitution is imperfect but, despite the shortcomings identified in this post, I think it easily passes the moral respectability threshold. So it deserves to be treated as law and not just as advice, good or bad according to the whims of the Supreme Court.

Administrative Law’s Virtues and Vices

What Joseph Raz’s classic Rule of Law article tells us about administrative law

Joseph Raz’s article on “The Rule of Law and Its Virtue” (eventually incorporated in the collection of essays The Authority of Law: Essays on Law and Morality) is well known, mostly for the argument that the Rule of Law should not be confused with good law, and that a legal system can be thoroughly iniquitous while still complying with its requirements. The Rule of Law (I follow Jeremy Waldron’s practice in capitalizing the phrase), Professor Raz famously says, is like the sharpness of a knife: a knife needs to be sharp to be useful, and a legal system should comply with the requirements of the Rule of Law to be effective, but that tells us nothing at all about whether the knife is being used to cut bread or to kill people, and whether law is used to protect or to repress them. Professor Raz describes his “conception of the rule of law”  as “formal”, (214) although a number of its tenets have to do with the operation of the courts, and are best described (following Professor Waldron again) as procedural.

I think, however, that Professor Raz’s understanding of the Rule of Law amounts to a substantive one in one particular area, in which his insights are not, so far as I know, particularly appreciated: administrative law. Administrative decision-making and its review by the courts are at the heart of the Razian Rule of Law. The third Rule of Law “principle” Professor Raz lists, after the ones calling for “prospective, open, and clear” (214) laws and “stable” ones, (214) is that “the making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules”. (215) This is a warning about the dangers of administrative (and executive more generally) discretion:

A police constable regulating traffic, a licensing authority granting a licence under certain conditions, all these and their like are among the more ephemeral parts of the law. As such they run counter to the basic idea of the rule of law. They make it difficult for people to plan ahead on the basis of their knowledge of the law. (216)

This is not to say that no executive power can be exercised consistently with the Rule of Law. Professor Raz suggests that the problem with its “ephemeral” nature

is overcome to a large extent if particular laws of an ephemeral status are enacted only within a framework set by general laws which are more durable and which impose limits on the unpredictability introduced by the particular orders. (216)

This framework includes

[t]wo kinds of general rules … : those which confer the necessary powers for making valid orders and those which impose duties instructing the power-holders how to exercise their powers. (216)

The former are the substantive statutory (or prerogative) basis for the exercise of executive power. The latter, which I think would include both procedural rules strictly speaking and those guiding the administrative decision-makers’ thought process (such as the prohibition on taking irrelevant considerations into account or acting for an improper purpose), form an important part of administrative law.

Professor Raz’s next Rule of Law “principle” is that of judicial independence. But the way he explains is also directly relevant to administrative law. Professor Raz points out that

it is futile to guide one’s action on the basis of the law if when the matter comes to adjudication the courts will not apply the law and will act for some other reasons. The point can be put even more strongly. Since the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly. … The rules concerning the independence of the judiciary … are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law. (217; paragraph break removed)

Although Professor Raz does not explore the implications of this for administrative law (why would he have, in the post-Anisminic United Kingdom?), they seem obvious enough. Only independent courts applying the law, and not acting on extra-legal considerations can assure that the law is able to guide those subject to it. Administrative decision-makers, however, typically lack anything like the safeguards that exist for the independence of the judiciary. In Canada, in Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781,  the Supreme Court has held that there is no constitutional requirement of administrative tribunal independence. In Saskatchewan Federation of Labour v Government of Saskatchewan, 2013 SKCA 61, the Saskatchewan Court of Appeal upheld legislation that allowed an incoming government to summarily dismiss all the members of an administrative tribunal in order to replace them with those deemed more ideologically  acceptable. Indeed, for many administrative tribunals, their sensitivity to considerations of policy ― and ideology ― is part of their raison d’être. This makes it essential that independent courts be committed to policing these (and other) tribunals’ compliance with the law ― with the entire framework of stable general rules that guide administrative decision-making, both the limits on substantive grants of power and the procedure- and process-related administrative law rules. Judicial deference to non-independent, policy-driven administrative decision-makers is incompatible with legally bound adjudication that is necessary for the law to provide guidance, and is thus anathema to the Rule of Law as Professor Raz describes it.

Professor Raz’s next Rule of Law requirement is that “[t]he principles of natural justice must be observed”. This is a point that obviously applies to administrative law, as everyone now agrees ― in a (perhaps insufficiently acknowledged) victory for administrative law’s erstwhile critics. But here too it is worth noting Professor Raz’s explanation: respect for natural justice is “obviously essential for the correct application of the law and thus … to its ability to guide action”. (217) (Of course, respect for natural justice is important for other (dignitarian) reasons too, but they are not, on Professor Raz’s view, embedded in the concept of the Rule of Law.)

The following Rule of Law principle Professor Raz describes is that

[t]he courts should have review powers over the implementation of the other principles. This includes review of … subordinate … legislation and of administrative action, but in itself it is a very limited review—merely to ensure conformity to the rule of law. (217)

Although review for conformity to the Rule of Law is “limited” in the sense that it need not entail review for conformity with any particular set of substantive fundamental rights, it is nevertheless very significant. It means that the courts are empowered to ensure the consistency of administrative decisions with grants of power that purportedly authorize them, as well as with the rules that govern the procedures and processes by which they are made. And while Professor Raz does not explicitly address the question of how stringently the courts should enforce these rules, it seems clear that only non-deferential correctness review will satisfy the requirements of the Rule of Law as he presents them.

Finally, Professor Raz writes that “[t]he discretion of the crime-preventing agencies should not be allowed to pervert the law”. (218) He addresses the behaviour of police and prosecutors, and specifically their ability to exercise discretion so as to effectively nullify certain criminal offenses. Yet, presumably, similar concerns apply to administrative tribunals ― most obviously, those that are charged with the prosecution of regulatory offences, but arguably others too. Professor Raz’s argument seems to be only a special case of Lon Fuller’s insistence (in The Morality of Law) on “congruence” between the law on the books and its implementation by the authorities, at least insofar as it applies to the executive. (Fuller also wrote about the what congruence meant in the context of statutory interpretation ― something I touched on here.)

Why is this important? I don’t suppose that an appeal to the authority of Professor Raz will persuade the proponents of judicial deference to administrative decision-makers, and in particular to their interpretations of the law. Those who defend deference argue that administrative interpretations are the law, so that there is nothing else, no statutory meaning meaning or independent standards, for the judges to ascertain and enforce. As the majority opinion in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 put it,

certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. [47]

In such cases, the Supreme Court held, the courts would only engage in deferential reasonableness review of the administrative decisions. Moreover, Dunsmuir suggested, and subsequent cases have confirmed, that all questions regarding the interpretation of administrative decision-makers’ grants of power (the first part of what Professor Raz describes as the framework of general rules governing the making of administrative orders) will be presumptively treated as having no “one specific, particular result”. I have already argued that this is an implausible suggestion, because

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers.

But Professor Raz’s arguments point to an even more fundamental problem with the pro-deference position. Those who defend this position are, of course, entitled to their own definition of the Rule of Law, which is a fiercely contested idea. If they think that the Rule of Law does not require the existence of clear, stable, and general rules, or that it can accommodate “particular laws” not guided by such general rules, well and good. (It is worth noting, however, that Dunsmuir itself embraced an understanding of the Rule of Law not too distant from that advanced by Professor Raz: “all exercises of public authority must find their source in law”. [28]) But I do not think that the proponents of deference have a response to the underlying difficulty Professor Raz identifies. In the absence of general rules that are stable enough not to depend on the views each administrator takes of policy considerations, or simply in the absence of an enforcement of such rules by independent courts, people will find it “difficult … to plan ahead on the basis of their knowledge of the law”, “to fix long-term goals and effectively direct one’s life towards them” (220). As Professor Raz notes, this compromises respect for human dignity, which “entails treating humans as persons capable of planning and plotting their future”. (221)

I do not mean to exaggerate. As Professor Raz and other Rule of Law theorists note, compliance with the Rule of Law is a matter of degree. Deferential judicial review of administrative action is a failure of the Rule of Law as Professor Raz understands it, but it is hardly the worst failure one can imagine, at least so long as some meaningful review is still involved. (Suggestions, such as that recently voiced by Chief Justice McLachlin in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, that there can be “unrestricted” [11] delegations of regulatory power are disturbing in this regard, but perhaps they only need to be taken seriously, not literally.) Nevertheless, and whether or not the proponents of judicial deference to administrative tribunals recognize this, deference does undermine the ability of citizens to rely on the law and to plan their lives accordingly. To that extent, it does amount to mistreatment by the state, of which the courts are part. It needs, at the very least, to be viewed with serious suspicion, and probably outright hostility. An administrative law that takes the requirements of the Rule of Law seriously has important virtues; one that does not is mired in vices.

Judicial Independence in America

A look at the conventions of judicial independence in the United States

Although American constitutional thought has long ignored the fact that conventions are scarcely less important to the operation of the Constitution of the United States than they are to Westminster-type constitutions, this blind spot is being removed. Tara Leigh Grove’s forthcoming article on “The Origins (and Fragility) of Judicial Independence” under the US Constitution is largely, and deliberately, a story of conventions, and a well-told one. Although Article III of the Constitution entrenches some protections for judges ― the tenure and salary guarantees that were already protected in Great Britain by the Act of Settlement 1701 ― prof. Groves shows that much of the architecture of judicial independence that observers of the American judiciary take for granted has no obvious foundation in the constitutional text. It is, instead, built of convention.

Prof. Grove examines three ways in which judicial independence is respected in the United States that “are so deeply ingrained in our public consciousness that it rarely occurs to anyone to question them”, and that they have assumed the status of “self-evident” “truths”:

judges are entitled to life tenure and salary protections, and cannot be removed outside the impeachment process. Political actors must comply with federal court orders. And “packing” the Supreme Court is wrong. (1)

There is, prof. Grove argues, nothing self-evident about any of this. The constitutional text was once thought to permit these violations of judicial independence. But then ― quite recently ― “political actors built the conventions” that make them well-nigh unthinkable. (2)

More specifically, prof. Grove shows that American political actors long thought that it was permissible to remove judges from office by abolishing their courts (except the Supreme Court itself, on the basis that it alone was explicitly mentioned in the constitution). There were a number of attempts to do so, some of them successful:

Through at least the early twentieth century, although the abolition of federal court judgeships was controversial, it was by no means considered “ridiculous” or “off-the-wall”. (13)

And yet over the course of the last century that is exactly how this idea came to be treated. Indeed the very fact that judges had in the past been removed because their courts were abolished was forgotten. Proposals of such measures are now met with consternation and fierce resistance ― as befits violations of conventions.

Similarly, although there now exists “widespread and bipartisan consensus that political actors must abide by federal court orders”, (17) this too is a relatively recent constitutional innovation. While some scholars still suggest that there is, occasionally, room for executive resistance to judicial decisions, political actors have abandoned this view, which they had long held. Prof. Grove traces this change of political heart to the aftermath of  desegregation decisions, showing that even those politicians who, like President Eisenhower, had originally seemed to accept resistance to court orders as legitimate then came to condemn it. From then on, “subsequent political actors did not want to be equated with the segregationists who led the ‘massive resistance’ to” the cause of civil rights. (25)

Last but not least, “[t]here is a strong norm today against … modifying the [Supreme] Court’s size in order to alter the future course of its decisions”. (29) Yet the text of the US Constitution says nothing about the number of judges there must be on the Court (except that there must be a Chief Justice), and historically, Congress has decreased and increased it on a number of occasions, “often … in part for partisan reasons”. (30) Indeed, the convention against doing so has not been around for as long as one might think. Prof. Grove points out that although Franklin Roosevelt’s notorious “court-packing” scheme  aroused “strong opposition”, it “also had considerable support in Congress and came close to passage”. (29) It is only “starting in the late 1950s”, (34) some time after a proposal for a constitutional amendment fixing the Supreme Court’s size failed to pass, that the convention against court-packing solidified ― to the point where the term “court-packing” became an all-purpose epithet.

Prof. Grove argues that the conventions of judicial independence are “historically contingent”; they could have been different now, and they might be different in the future. She notes that there is no convention preventing the enactment of legislation denying the federal courts, or specifically the Supreme Court, the jurisdiction over certain types of cases, although in her view “the protection for judicial independence would be far stronger if there were a convention leading officials not even to propose, much less seriously consider, jurisdiction-stripping bills”. (42) Why, though, is there no such convention, while there conventions against firing judges by abolishing courts, disobeying court orders, or court-packing? Prof. Grove attributes the difference to “narratives” ― to the way lawyers and officials (many of them, of course, lawyers by training) ― were told the stories of the various forms of interference with the courts and re-told these stories in their turn. Conventions developed against those practices that the “narratives” condemned, and against that which it did not.

Prof. Grove concludes with a question that has caused considerable difficulty to courts and scholars in the Commonwealth: that of the relationship between conventions and law. Could it be the case that “the norms protecting judicial tenure and requiring obedience with federal court orders have become so well-accepted that they have transformed into binding rules of law”? (54) Prof. Grove says that she “do[es] not foreclose the possibility that conventions may over time crystallize into legal rules”, thought “the precise mechanisms by which such crystallization may occur” remain uncertain. (54) She notes that ultimately both conventions and legal rules can change in response to a changed political environment ― and cautions that this change need not always be for the better.

Prof. Grove’s historical account is worth the attention of anyone interested in American Constitutional law. Her demonstration of the importance of conventions in the operation of the constitution ― small c ― of the United States should provide an effective counter-argument to claims of exceptionalism, and resulting superiority or inferiority (depending on the speaker’s substantive views), made both in America and in the Commonwealth. “Written” constitutions do not settle all constitutional questions, nor do they prevent the development of conventions that restrict the discretion that constitutional actors might seem to enjoy under the terms of black-letter constitutional law, whether authoritatively enacted or common law.

Prof. Grove’s account leaves a number of important questions unanswered ― not only that of the interplay between convention and law and the possibility of “crystallization”, but also that of the role of “narratives” in relation to conventions. Saying that narratives determine whether conventions do or not arise seems to beg the question of why narratives develop in one way rather than another, and perhaps to obscure the role of constitutional principles that underpin conventions in shaping those narratives. Perhaps prof. Grove might have paid more attention to what the principle of judicial independence means ― and, for instance, to whether it actually requires restrictions on legislatures’ ability to limit courts’ jurisdiction. (It seems to me that some legislative control over jurisdiction is necessary for the good administration of justice, and that removal of discrete elements of a court’s jurisdiction will not always, perhaps rarely, interfere with its independence.)

But these are friendly criticisms ― one cannot expect a single article to fully tell a story as complex as that which prof. Grove begins. I hope that she and/or her colleagues will take it up. Constitutional theory can only be enriched if American scholars pay constitutional conventions the attention they deserve. Prof. Grove makes a very valuable contribution to this endeavour.

Still Unhappy

The Canadian Judicial Council’s report on the former Justice Camp does little to ease my concerns

First of all, my apologies for the silence in the last couple of weeks. Let me return to something that happened during that period: the Canadian Judicial Council issued its Report to the Minister of Justice in the matter of Robin Camp, the “why didn’t you keep your knees together?” judge. The Council confirmed the recommendation of the Investigative Committee it had previously set up that the judge be dismissed, and Justice Camp finally resigned ― which, as I argued in my post on the Committee’s report he should have done long ago. Unfortunately, Justice Camp’s failure to do so gave the Committee the occasion to issue a report that was, in my view, seriously flawed. The Judicial Council’s own Report does little to remedy these flaws.

My general objection to the Committee’s report was that it was not clear on what basis it recommended that Parliament dismiss Justice Camp. Perhaps it was his (inconvertible) sexism. Perhaps it was his “antipathy” towards, indeed his “bias” against, the law he was applying, or maybe not the law itself but the values underlying it, though it is possible that that was only because this law was “laden with concerns about gender equality bias and discrimination”. Perhaps it was because Justice Camp’s behaviour contributed to a public impression that the system is rigged against the victims of sexual assault. All of these factors were present in Justice Camp’s case, but what about some future one where they would not be? Parliament’s power to remove a judge from office is too grave to be exercised on an uncertain basis.

Unfortunately, the Judicial Council does not clarify matters. Its own report, beyond assertions that it has carefully considered that of the Committee, consists mostly of and of responses to Justice Camp’s objections. The responses are arguably sufficient so far as they go, but while they may have persuaded Justice Camp to finally fall on his sword, they provided little guidance for future that may be somewhat, but not entirely, similar to his. We still do not know whether the various factors identified by the Committee are all necessary, or which of them are, for a judge to be removed. As I did in my earlier post, I want to acknowledge the difficulty of being precise here. Each case is unique and calls for a judgment on its own fact. But I still believe that more clarity about the circumstances in which it is permissible to interfere with judicial independence would have been in order.

The Council might have tried to address one specific point tried to make ― not that I think it did so because I made it! ― about the potential chilling effect of the Committee’s report on judges who might be less than enamoured with the law as it happens to stand from time to time. The Council wants us to know that it is

mindful that any criticism Council levels against a judge must not have a chilling effect on the ability of judges, generally … to call attention to deficiencies in the law in appropriate cases. Indeed, judges have a duty to be critical of existing legislation in specific circumstances, for example where a judge forms a view that a specific provision contravenes our Constitution or otherwise operates in a deficient manner. We do not in any way intend to deter judges from asking the hard questions and taking the difficult positions that are sometimes necessary to discharge their judicial responsibilities. [35]

This is a useful clarification, although in my view it does not go far enough. It does not address the Committee’s confusing, and in my view unsustainable, attempt to distinguish (permissible) criticism of a law’s practical effects and (impermissible) criticism of values underpinning the law. Nor does it address the unjustified asymmetry between judicial commentary that criticizes the law and that which goes out of its way to approve it, though admittedly the latter sort of commentary was not in issue here. Be that as it may, the Council notes that “some of the Judge’s comments in this case were not in the nature of legitimate legal inquiries or comment” [36], perhaps because they were irrelevant to factual and legal issues before him. But again, this strikes me as too vague to provide useful guidance for the future about the scope of “legitimate … comment”.

It is said that hard cases make bad law ― not hard in the sense of intellectually challenging, but hard in the sense of emotionally difficult. But perhaps so do easy ones. Justice Camp’s case was easy ― in the sense that it was easy to want him gone from the bench. But that may well have encouraged the people who decided it ― thoughtful jurists though they are in their day jobs ― to spare themselves some difficult line-drawing exercises. I can only hope that we do not come to regret this.

Unhappy Camper

The shortcomings of the report into the misconduct of Justice Camp

The Inquiry Committee set up by the Canadian Judicial Council to investigate whether Justice Robin Camp ― the “why didn’t keep your knees together” judge ― has “committed misconduct and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge” has produced a report concluding that he did. The Report has been praised, not least for its pedagogical qualities. But of course, its primary function is not to be a teaching aid in educating lawyers and judges about rape myths and the conduct of sexual assault trials, useful though it may be in doing that. It is, first and foremost, the potential foundation for Parliament’s exercise of one of its most tremendous powers: that of moving an address for the removal of a judge. And in that respect, in my view, the Report falls short of what would have been desirable.

To be clear: I do not say this out of any sympathy for Justice Camp. His conduct towards the complainant (and, to a lesser extent, the prosecutor) during that notorious trial was appalling, as the Report details. And, unlike Brenda Cossman, I do not think that whatever efforts Justice Camp has undertaken since to educate himself about the history and purposes of sexual assault law are enough to allow him to go on in office. This re-education, whatever its value, cannot address the fact that he had the conceit of conducting a trial in an area of law about which he knew next to nothing. Since he is now at the Federal Court, there would be no sexual assault trials in Justice Camp’s future even if here were to stay there, but there could be plenty of other cases in areas of the law about which he does not know much ― and I do not think that litigants who appear before him in such cases can be assured that he will make enough efforts to educate himself about those. So there are sufficient reasons in the report for Justice Camp to resign ― indeed, to make resignation the only right course of action.

But are there sufficient reasons for Parliament to fire him? That is not so clear to me. The Report never quite articulates a clear reason why Justice Camp should be removed from office. Instead, it seems that a combination of several factors, which may or may not have been sufficient on their own (we are never told), lead to that conclusion. Such an approach is not necessarily objectionable in other contexts, but it is a problem here, because, not knowing which of the Report’s concerns might have been the decisive one, governments, activists, or simply disgruntled individuals with an ax to grind may be tempted in future cases to use any one of them as a stand-alone motivation for an attempt to remove another judge. And this is disturbing, because these concerns can potentially extend to circumstances quite unlike those involved here, and the exercise of any power, but especially one as awesome (in the old sense of the word) as the removal of a judge, in the absence of clear principles limiting this power, is worrying.

* * *

Part of the reason why the Report suggests that Justice Camp ought to be removed from office is simply the sexist stereotyping that many of his comments during the trial and his subsequent reasons for judgment reflect. But it is only a part, and as I read the Report not the decisive one. Rather, the Report puts a great of emphasis on the fact that Justice Camp’s comments demonstrated his “antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials”. [6] The Report suggests that “antipathy” towards the law the judge is charged with applying, or maybe to the values underlying this law, in itself amounts to bias ― though it is not quite clear whether this is only in the unique circumstances of a sexual assault trial, but perhaps more generally.

The Report notes that “[g]enerally, judges refrain from commenting on the merits or wisdom of laws enacted by Parliament or the provincial legislatures”, but also “that judges are permitted to criticize the law in certain contexts”, [86] especially in constitutional cases. The Report concludes, however, that

Justice Camp’s comments about [the ‘rape shield’ provision] of the Criminal Code are far removed from … permissible criticism. His comments were gratuitous and stemmed from a limited understanding of what he was so quick to criticize. Moreover, his criticisms were not based on thoughtful analysis nor even any analysis at all. [88]

This criticism is to be contrasted with, not compared to, the good sort of criticism that “ha[s] nothing to do with the values underlying those provisions” that a judge is criticizing, “and everything to do with the well-known and widely accepted fact that” the application of these provisions did not serve these values well. [89] The report finds that “Justice Camp held a bias, whether conscious or unconscious, in the form of an antipathy towards the present laws governing sexual assault trials”; [104]  indeed, “his bias, whether conscious or not, led him to express disdain for the law in its current state”, [108] to formulate “comments … reasonably understood as being disparaging of legislative attempts to remove discredited myths from sexual assault law”. [182]

What the Report sees ― quite fairly, I hasten to add ― as Justice Camp’s “disdain for the careful development of the law through legislation and jurisprudence designed to bring balance and equality to a process that historically discriminated against women” [276] is, if I understand correctly, every bit as important as his underlying sexism in justifying Justice Camp’s removal. On the one hand,

[s]exual assault law and sexual assault trials are laden with concerns about gender equality, bias and discrimination. Justice Camp’s manifest failure to behave impartially and to demonstrate respect for equality in such a context, over a protracted period of time, has raised considerable public concern about how women who allege they have been sexually assaulted are treated in the judicial system. [287]

On the other,

[w]hen a judge displays disrespect or antipathy for the values that a law is designed to achieve or towards witnesses whose vulnerability is exposed, it encourages a similar disrespect or antipathy in others in the judicial system. Judges are not viewed simply as participants in the justice system. They are expected to be leaders of its ethos and exemplars of its values. … A judge who uses his role in a criminal trial to denigrate values he should respect commits serious and significant misconduct. [289, 291]

The Report makes an additional, and only distantly related point, stating that,

Justice Camp’s conduct … renders it more difficult for judges to make credibility findings adverse to a complainant in a sexual assault prosecution without fear of facing complaints that they too are part of a system rife with bias. [292]

Again, it is difficult to tell what contribution this argument makes to the report’s overall conclusion: is it important? is it necessary? is it sufficient? There is no telling.

* * *

None of the points the Report makes are wrong. But, as I suggested above, because we do not know how decisive each of them is, I worry about their being taken in isolation and used to attack judges in the future. Even if the attacks prove unsuccessful, they are liable to have a chilling effect that would undermine judicial independence.

Take the very last point, about Justice Camp’s conduct contributing to an impression that, to use a recently popular term, the system is rigged. It is very likely true. But how much can it matter? If a court issues a decision which is legally questionable and which provokes a public outcry, this is likely to “render it more difficult for judges” to reach similar outcomes “without facing complaints that they too are part” of a rigged system. But does this mean that any legally questionable, or indeed obviously mistaken, judicial decision is grounds for complaint to a judicial council (as opposed to appellate intervention, which is supposed to be the remedy for errors of law, even very bad ones)? I don’t think this is what the report means to suggest, but on its face, its argument is not limited to “credibility findings adverse to a complainant in a sexual assault prosecution”, and could be applied in all sorts of other situations.

The report’s discussion of judicial “antipathy” for or “denigration” of the law suffers from the same flaw. Is it always true that antipathy to a law that a judge ought to apply ― or perhaps to the values underlying this law ― amounts to bias and hence to misconduct? If so, then opinions such that of Judge Richard Posner in Khan v State Oil, 93 F.3d 1358 (1996) (7th Cir.), much of which was devoted to showing why the relevant Supreme Court precedent was “unsound when decided”, would amount to judicial misconduct (although Judge Posner actually applied the precedent that he was criticizing). And by the way, why is there, if indeed there is, a distinction between judicial criticism of the law, which may (at least sometimes) be tolerable (though this isn’t very clear), and judicial criticism of values underlying the law (which apparently is not)? Judges, after all, are not just sworn to uphold the values of the law ― they are sworn to uphold the law itself, though they sometimes forget this, so if criticism of values suggests that a judge might not do his or her duty, then presumably so does criticism of the law itself.

But perhaps criticism only amounts to bias when the law in question is “laden with concerns about gender equality, bias and discrimination”. Yet what area of the law is not laden with concerns about equality, bias, discrimination ― at least in the opinion of some theorist? (And whose opinion about these matters ought to count?) I am not being snarky here ― I certainly do not mean that the report is wrong about sexual assault law being laden with these concerns, or that various critical theorists are always wrong about the presence of bias in other areas of the law. What I am saying is that if the existence of concerns about bias, or perhaps about one specific form of bias (but then, why this one in particular?), are the limiting principle that defines when criticism of the law is and is not permissible, then the principle is hopelessly uncertain, and cannot do much limiting at all.

Let me make a final point in this vein, which is something of a pet peeve. If, as the report suggests, judicial antipathy to the values underlying existing law is in itself bias against those whom the law is meant to protect, then isn’t vocal sympathy for the values underlying existing law bias in favour of its beneficiaries? And isn’t bias in favour of a party or, as in this case, a witness, just as much a breach of judicial impartiality as bias against one? This isn’t just a theoretical concern: courts do sometimes go out of their way to commend the law, and while I have argued elsewhere that they should avoid doing so, I would not want judges who commit this particular judicial sin to be the subject of inquisition.

* * *

Perhaps I am making a little too much of the Report’s failure to draw clear lines between what is and what is not permissible. Perhaps a little chilling effect forcing judges to err on the side of circumspection in their commentary might even be a good thing. Then again, I doubt somehow that judges who go around the country or even the world telling people that their job is “to think about what’s best for Canadian society” rather than anything so lowly as merely applying the law will be deterred.

 It may be that judicial misconduct is, to some extent, one of those “I know it when I see it” things. But people disagree about what it is that they see. Where I see distressing arrogance, others see business as usual, and vice versa.  We might all agree about Justice Camp, but it is likely enough that we will not agree about some future cases. And while reasonable disagreement is inevitable in law and politics, and arguably something to be embraced rather than feared, there a few areas where clarity and generally understood rules are especially important. The realm of permissible interference with judicial independence is one of them. For this reason, the Report leaves me with a very uneasy feeling.

Sub Lege

I often criticize judges, on this blog and elsewhere. I think it is very important that people who exercise power over citizens be subject to criticism whenever they exercise it unwisely or, worse, recklessly, and still more when they abuse or overstep the powers given them. While the media can, more or less, be counted on to criticize legislators and bureaucrats, from time to time anyway, criticizing judges is difficult, because this criticism has to be informed by technical knowledge and skills, which few journalists possess (though there are worthy exceptions). This means that it is especially important for lawyers, including academic lawyers such as myself, to be the judiciary’s critics. And precisely because I am an unabashed critic of the judiciary that I think I need to do so something that might be outside the scope of my normal blogging.

I want to express my dismay, my horror even, at the way in which judges have been treated in much of the British Press in response to the High Court’s ruling that legislation is necessary before the United Kingdom’s government can formally initiate the process of withdrawing the UK from the European Union. The Guardian has collected the front-page reactions: “Who do you think you are?” “The judges versus the people” “ENEMIES OF THE PEOPLE“. A paper “helpfully” noted that one of the (very distinguished) members of the panel that heard that case is gay. Another is apparently just as suspicious by virtue of his wealth. This is shocking, vile stuff.

I do not feel confident enough to comment on the merits of the High Court’s ruling, but there appears to be quite a strong case ― made for instance by John Finnis and other experts for the Judicial Power Project, as well as by Adam Tomkins ― for the proposition that the Court erred. That’s beside the point ― except insofar as these arguments, some of them quite forceful, remind us that it is possible to criticize judicial decisions without resorting to taunts, insults, and sloganeering. Whether or not the High Court rendered the right decision, it decided the case before it in accordance with its understanding of the law and of its own constitutional role. The argument implicit in the tabloids’ headlines is that the court had to decide otherwise ― having no regard to the law, but only to the supposed will of the people. But that would be a culpable dereliction of duty; that would make judges act like politicians in robes; that would make their unelected, unaccountable status grounds for criticism.

But perhaps trying to discern an argument amidst that fury is already too generous. Look at the words they use. Enemies of the people! In modern history, the phrase was apparently first popularized by Robespierre. In case anyone is wondering what life under the Jacobins was like, they should read Dame Hilary Mantel’s A Place of Greater Safety, which succeeds remarkably at creating an atmosphere of all-encompassing, pervasive fear. That same atmosphere was also characteristic of the other period in history where “enemy of the people” was a label used by power to justify mass murder ― Stalin’s purges. This is the heritage which the English press now claims. Land of hope and glory, mother of the free!

Criticizing courts is necessary if we are to hold on to the inevitably precarious proposition that there is a law apart from what the courts say the law is; that there can be a Rule of Law and not merely a rule of judges. If we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law. But if we are to have a government of laws not of men, then even the most revered men and women ― which in a democracy means the voters ― cannot stand above the law.

A final historical parallel, perhaps more exact although of greater antiquity, is in order. When in 1607 the King of England thought that he could substitute his own judgment for that of the law, his Chief Justice would not let him:

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King ought not to be under any man but under God and the law].

Like once their king, the people of England ― or at least the demagogues who would speak for them ― may be offended by being “under the law”. But ― as the examples of the Jacobins and the Bolsheviks remind us ― it is the law that protects them in safety and peace. One has every right to insist that judges too keep to the law. But it is lunacy ― suicidal lunacy ― to wish to with to throw off the law’s protection under the pretense of throwing off its shackles.