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 best described (following Professor Waldron again) as procedural, rather than formal.

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, in 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.

The Public Confidence Fairy

Public confidence in the courts cannot be the foundation of judicial independence

Judicial independence is often justified, both in the decisions of the courts and in the broader public discourse, by the need to maintain public confidence in the administration of justice. It seems to me that this justification is not compelling. To borrow Paul Krugman’s well-known phrase (coined perhaps in this column in the New York Times), it relies on a mythical “confidence fairy”, whose existence would be convenient perhaps, but is supported by no evidence. Whatever the accuracy of Krugman’s economic argument (which may well be misbegotten even on the terms of his own preferred intellectual framework), it seems to fit the judiciary rather well.

The notion of confidence in the judiciary as crucial to judicial independence has been a staple of the Supreme Court’s jurisprudence since the seminal judgment in R v Valente, [1985] 2 SCR 673, where Justice Le Dain, for the unanimous court, wrote that, along with impartiality,

independence [is] fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. (689)

In Ell v Alberta, 2003 SCC 35 , [2003] 1 SCR 857, Justice Major, again for the unanimous court, wrote that “[c]onfidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry.” [23] There are other examples too; no need for me to multiply them. As for an instance of the same idea appearing in the broader public discourse (albeit that it is carried there by lawyers), one might look at this op-ed by Joseph Arvay, Sean Hern, and Alison Latimer, arguing that the insulation of judicial appointments from politics would make Canadian courts truly independent and thereby enhance the public’s confidence in them. (I criticized this argument here.)

Why, then, is the popular argument that judicial independence is required (among other reasons) in order to maintain public confidence in the courts misguided? The claim seems to be an empirical one, establishing a causal relationship between the independence of a judiciary and the public’s trust in it. Confidence in a strongly independent judiciary should be high, and it should go up when judicial independence is further increased. For example, public confidence in the Canadian judiciary should have gone up in the aftermath of the Supreme Court’s decision requiring independent commissions to recommend judicial salaries to legislatures. It should be possible to support such a claim with data ― polls showing that confidence in the judiciary grows when its independence is enhanced, or that it decreases in response to judicial independence being undermined. Only, those who make the claim never provide the data that would support it. That should make us skeptical.

What data there exist do not obviously support the argument. Statistics Canada’s recent study of Public Confidence in Canadian Institutions found that Canadians trust the “justice system and courts” less than they trust the banks ― only 20% of the respondents had “a great deal” of confidence in the courts, while 37% had “some.” (The courts still did better than Parliament, though.) Yet the Canadian judiciary is highly independent. What’s wrong with this picture? Admittedly, as a (somewhat old, but most likely still valid) report prepared by Mary Stratton and Diana Lowe makes clear, opinion polls purporting to ascertain the level of public confidence in the justice system tend to be pretty lousy. But Stats Can is, presumably, as good as we are going to get. Why are the proponents of the confidence thesis so sure about it?

And they are very sure indeed. Justice Binnie, speaking to the Venice Commission (a Council of Europe institution that advises it on constitutional matters and produces statements of constitutional best practices), has asserted that “[t]he Supreme Court’s independence as an institution and that of its judges is undoubted and has lead to strong public confidence in the administration of justice.”  Needless to say, Justice Binnie provided no evidence or explanation in support of his claim. But it is, it seems to me, more reflective of the judges’ and lawyers’ beliefs about what ought to be the case than of their knowledge of what actually is. (This knowledge, of course, is often woefully inadequate and reliant on the stereotypes carried in bien-pensant political discourse, as I pointed out here ― with supporting data.)

The very notion of public confidence in the judiciary is a theoretical one at best. As Dr. Stratton and Ms. Lowe’s report makes clear, people lack a clear understanding of what is meant by having confidence in the justice system. And that’s not exactly surprising, since the terms involved are vague, and political ignorance certainly extends to the judicial branch of government as well as to the legislative and the executive. Indeed, I suspect that to the extent that such a thing exists and can be measured at all, public confidence in the judiciary is likely to be a function of public agreement with high-profile decisions (a proposition which there is polling data to support, at least in the United States). But judicial independence exists precisely to ensure that judges will not be influence by the likely popularity or otherwise of their potential decisions. If actual, and not purely hypothetical, public confidence in the courts were the objective, judicial independence might have to be weakened rather than strengthened.

Why, though, does the belief in the confidence fairy persist? I’m afraid that at least a significant part of the reason for this is that the fairy is a very useful creature. In Valente, having stated that “[w]ithout that confidence the [justice] system cannot command the respect and acceptance that are essential to its effective operation,” Justice Le Dain draws the conclusion that “[i]t is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.” (689) In other words, invoking public confidence in the judiciary allows courts (and their parasiti) to expand the constitutional protections of judicial independence, on the premise that they must be robust enough not only to ensure the judiciary’s actual independence, but also the perception of its independence among the general public.

It might of course be nice if public confidence in the courts really were a function of their independence. Because the courts in Canada in elsewhere in the common law world are in fact highly independent, the public would trust them and would accept even controversial or disagreeable judicial decisions. Perhaps the confidence in the courts would be so high that few of their decisions would even be controversial. Indeed this seems like a pretty fair description of the state of affairs within the Canadian legal community, if not among the general public. But wishful thinking is not a very solid basis on which to depend a fundamental constitutional principle. Whatever the true foundation of judicial independence (and I’ve ventured a couple of hypotheses over the years here and here), it must be something different ― and more substantial ― than the confidence fairy’s magic.


A Voice of Moderation?

Thoughts on the Chief Justice’s Speech on “Democracy and the Judiciary”

Her court might not be very busy ― it had decided only 19 cases this year through May 31, the lowest number this century ― but Chief Justice McLachlin certainly is. Another Friday, another speech. After the one she gave at the Université de Montréal‘s symposium on Supreme Courts and the Common Law, there was one given on June 3 at the Empire Club of Canada. I criticized the Chief Justice’s remarks at the Université de Montréal over at the CBA National Magazine’s blog, because to me they suggested a misunderstanding of and a lack of belief in the common law, and indeed the Rule of Law itself. The Empire Club speech, in which the Chief Justice outlined her views of the history, current role, and future challenges of what she called “the third branch of Canadian governance [sic] – the judiciary” at times struck a different tone. Yet it too contained its share of historical mistakes, and ultimately was less of a statement of judicial moderation than it was perhaps supposed to be.

One interesting, and arguably telling, historical inaccuracy occurred in the Chief Justice’s description of the history of judicial independence. The Chief Justice traced this constitutional principle to the thought of

jurists like Lord Coke, who maintained that the task of judges was to apply the law as they saw it, not to do the King’s bidding. These jurists took the view that to do justice between the parties in the cases that came before them, judges must not only be impartial, but be seen to be impartial. And for impartiality, actual and perceived, they must have guarantees of independence, notably, fixed terms of appointment, fixed salary and security of tenure.

There is some truth here. Coke did value adjudicative impartiality ― indeed, as Fabien Gélinas has pointed out (at 12), it was Coke who popularized, and perhaps even coined, the maxim “nemo iudex in causa sua.” And, in Prohibitions del Roy, Coke took the position that judges had to decide cases according to law, and that the King, not being learned in the law, could not adjudicate. But it would have come as news ― though perhaps welcome news ― to Coke that judges must have guaranteed tenure. He was, after all, dismissed from judicial office after one run-in too many with James I, and that king’s son and grandchildren were also quite adept at dismissing recalcitrant judges. Judicial independence and security of tenure did not become part of the English constitution until the Act of Settlement, 1701. Importantly, as Peter Cane explained at the Supreme Courts and the Common Law symposium, it was part of a bargain of sorts whereby courts, as well as the Crown, submitted to Parliament and acknowledged its sovereignty. It may well be that the Chief Justice is just a little unclear about 17th-century constitutional history ― but it is still noteworthy that she is unclear in a way that elevates the role of jurists and judges, and obscures that of Parliament.

The Chief Justice’s take on Canadian legal history is also curious. She claims, for instance, that “[f]or eighty years after Confederation, Canada’s legal system functioned as a shadow replica of England’s legal system,” in that “England’s laws became Canada’s laws.” This is an exaggeration. The Canadian judicial system was never quite a replica of the English one (there being no distinct courts of equity, for instance) (UPDATE: See Jan Jakob’s comments below), and the Colonial Laws Validity Act, 1865 made clear that British legislation did not apply in Canada and in other colonies unless it was specifically intended to. The Chief Justice also seems to suggest that the Supreme Court was an afterthought for the fathers of confederation, saying that “befitting its secondary status, [it] wasn’t created until 1875.” Yet the majority opinion in l’Affaire Nadon, which the Chief Justce co-signed, points out that the issue was in fact considered, although “[a]t the time of Confederation, Quebec was reluctant to accede to the creation of a Supreme Court because of its concern that the Court would be incapable of adequately dealing with questions of the Quebec civil law,” [50] and that Sir John A. Macdonald “introduced bills for the establishment of the Supreme Court in 1869 and again in 1870 in the House of Commons.” [79] The Chief Justice seems to take a rather dismissive view of the early days of Canada’s early legal system in order to extol the modern Supreme Court. This rhetorical move is similar to the one she made in her Université de Montréal speech, in which she contrasted the supposed reasoning styles of pre-20th-century and modern common law judges. Yet in both cases, the contrasts are less stark, and the continuity between old and new is more important, than the Chief Justice lets on.

Another statement of the Chief Justice that is worth discussing is her assertion that the fact that “[i]n the lead-up to 1982, the government of the day took as its goal the creation of a ‘just society'” was a “major change[] to the Canadian legal system.” For one thing, the Chief Justice’s chronology might be a bit off again ― Pierre Trudeau first ran on the “just society” slogan in 1968. (In 1972, a heckler asked him where it was. Trudeau retorted that he should ask Jesus Christ, who’d promised it first.) More importantly though, I do not  understand how a political statement by the government of the day can amount to a “major change to the … legal system.” The Chief Justice seems to be saying that Trudeau’s articulation of the just society is some sort of benchmark by which to assess the progress of our polity, but even assuming that that is true ― and a great many people would disagree ― I still don’t see how benchmark is a legal one. Of course, to some extent Trudeau’s ideas are reflected in the Canadian Charter of Rights and Freedoms ― but the Charter was never meant to provide a complete code of social justice, and the courts’ duty is to apply the Charter as it has been enacted, and not to expand it forever until the day the just society arrives.

It also seems to me quite inappropriate for a judge to take up what was, for better or for worse, a partisan slogan and try to make it into a constitutional ideal. By doing so, the Chief Justice only gives grist for the mill of those who already think that the Charter, and the courts that enforce it, are essentially Liberal self-entrenchment devices. As I wrote in a Policy Options Perspectives post a few months ago, it is dangerous to associate a part of our constitution with a political party ― and that party’s changing fortunes. When these fortunes sag, the constitution must retain its exalted position as the protection of our rights. I urged impartial observers to keep that in mind and avoid associating the Charter with the Liberal party. I had no idea that the Chief Justice of Canada, of all people, would need the same reminder.

While the Chief Justice’s take on Canadian legal history stresses the Supreme Court’s independence and importance, and perhaps stakes out for it a role as an engine of social progress, her other comments seem intended to show that the Court is actually a modest institution aware of its place in the constitutional structure. Along with other institutions, says the Chief Justice, the Court must strive “to maintain the proper constitutional balance between the judiciary and the legislative and executive branches of governance.” It is “Parliament and the provincial legislatures,” not the courts it seems, that “are pre-eminently suited to” “make law” ― quite a contrast to the Chief Justice’s enthusiasm, in the Université de Montréal speech, for judicial development of the law. Moreover, when reviewing the constitutionality of legislation,

courts … must approach the laws adopted by Parliament and the legislatures with due deference for their preeminent law-making role and their ability to arrive at optimal solutions through debate and research. Such deference is particularly important on complex social and economic issues.

Similarly, when reviewing administrative decisions, “the courts show appropriate deference for the expertise and mandate of administrative actors and agencies.”

What to make of this description of a modest judicial role, which seems to stand in tension with the Chief Justice’s claims regarding the exalted standing of the courts ― and her rather ambitious remarks made a week previously? Perhaps the modesty is a sham, or a sop to the particular sensitivities of last week’s audience (though I don’t know what these sensitivities are). But it seems to me that there is more to it than that. The Supreme Court really does believe in and practice deference to both legislatures and the executive when reviewing their decisions ― although it does so inconsistently.

Sometimes it is bold, as when it strikes down laws that try to limit the government’s expenditures on courts on the basis of little more than constitutional principles. Sometimes it is meek, as when it insists that it will not require administrative decision-makers to apply the law correctly, never mind the facts. And it is not always easy to anticipate which it is going to be in a given case ― or even to tell which it is in an already-issued opinion. (I’m thinking, for instance, of Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, of which I could never tell whether it was a capitulation disguised as a threat, or a threat disguised as a capitulation.)

Perhaps the Chief Justice believes in a sort of departmentalism-lite, whereby each branch of government is presumptively entitled to make its own legal and constitutional determinations but, unlike with real departmentalism, the courts keep the last word if they think that the other branches are really wrong. Such a doctrine might reconcile the exaltation of the Supreme Court, and a belief in the judges’ right to do as they please with judicially-articulated doctrines, with the insistence on deference to the other branches of government. (It would also fill the empty cell in the little table of attitudes to judicil review that I offered here, to sit alongside “conservative” or Diceyan, “progressive,” and “classical liberal” or “libertarian” approaches.) Never mind whether such a doctrine is good or justified. (I don’t think it is.) The Supreme Court is, again, too inconsistent to claim its mantle.

Maybe there is some other way to make sense of the Chief Justice’s speeches. In any case, it is worth saying that the seeming inconsistency of her positions is in itself a source of discretionary if not arbitrary power. Benjamin Oliphant and I have described the same phenomenon in the realm of constitutional interpretation in our work on originalism: the Supreme Court fails to adhere to any interpretive methodology with much consistency, and thereby maintains a roster of alternative approaches on which it can draw at its convenience, while avoiding scrutiny and criticism for deviating from previously-articulated principles. Whether or not they are intended to achieve this, the Chief Justice’s  speeches present a number of different conceptions of the Supreme Court and its role, which allows it to strike whatever pose it deems appropriate in any given case. This may be to the advantage ― the short-term advantage, anyway ― of the institution that Chief Justice McLachlin leads, but this advantage is gained at the expense of principle, transparency, and ultimately the Rule of Law itself.