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.

False Friends

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

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

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

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

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

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

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

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

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

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

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

What’s the Big Deal?

The Globe and Mail’s Sean Fine has for months been pushing a “conservative judicial appointments” narrative, and he was back at it this weekend, with a lengthy piece on “Stephen Harper’s Courts.” We are, I take it, supposed to be worried about a “judiciary [that] has been remade” by ideologically shaped appointments. Mr. Fine quotes quite a few people who are worried and further reports on calls for the appointment process to be revamped to purge it of nefarious ideological influences. But for my part, I see very little that is objectionable in what Mr. Fine reports. Not only is there, as Emmett Macfarlane has pointed out, very little evidence of a conservative remaking of the judiciary, but if or to the extent that a remaking has occurred, there is nothing objectionable about it.

The one disturbing fact that Mr. Fine presents is that some sitting judges actively lobby the government for promotions. Such lobbying, it seems to me, creates a real danger that the judge will try, whether consciously or not, to ingratiate himself with the government in his or her decisions. In other words, it creates an appearance of bias if not actual bias. Judges should strive to remain above such suspicions. The possibility of promotion is a weak spot in the arrangements protecting judicial independence, and judges themselves should not be exploiting it.

There is nothing improper, however, in a government seeking to appoint judges with whose ideological leanings it is comfortable. Of course, judicial appointments should be merit-based ― in the sense that every person appointed to the bench should deserve to be, by virtue of his or her accomplishments and character. But that’s just a threshold. Ideology, in my view, can properly be taken into account in deciding whom to appoint among the candidates who can get over that threshold. (It’s worth noting that, as Mr. Fine points out, the committees that screen applicants for judgeships rate many more as “recommended” ― and used to rate more as “highly recommended” when that was an option ― than there are positions available).

Now we should keep our sense of perspective about this. As prof. Macfarlane has pointed out, Mr. Fine mentions a grand total of two judges (Grant Huscroft and Bradley Miller) who can fairly be described as ideological conservatives. The rest of Mr. Fine’s “remaking the judiciary” case is built on the appointment of judges said to be not so much conservative as deferential, to Parliament and to precedent. But there is nothing inherently conservative about deference. A deferential judge will give way to Parliament or precedent regardless of whether they are “conservative” or “liberal” or something else.

That said, even to the extent that some of the judges appointed by the Conservative government are indeed ideologically conservative, there is nothing wrong with that. As I have argued repeatedly here and elsewhere, judging is in part an ideological activity, and Canadian judges, whether appointed by Mr. Harper or by any of his predecessors, are not free from ideology. We might like to think that they are, and that the core tenets of our legal system, such as the “living tree” approach to constitutional interpretation, on which Mr. Fine dwells in his article, are somehow natural and value-free. But that is an illusion. “Living tree” interpretation is no less of an ideological commitment than originalism, albeit one that most Canadian lawyers share most of the time (though by no means always, as I have pointed out here and Benjamin Oliphant, more recently, at Policy Options).

Given that no matter what judges the government appoints, it will  always be appointing judges whose decisions will, in part, be influenced by their ideology, I don’t see anything wrong with governments wanting to appoint judges who will be influenced by what they see as the right ideology. Indeed, like prof. Marfarlane, I think that it is a good thing that the current government has been able to inject at least a modicum of ideological diversity into the Canadian judiciary. As I wrote in response to one of Mr. Fine’s earlier articles,

[t]he lessons of Jonathan Haidt and his colleagues’ work on the mischiefs of ideological uniformity, about which I recently wrote over at the National Magazine’s blog, are relevant to courts as well as to the social sciences. Precisely because ideology affects adjudication, more ideologically diverse courts will produce better argued decisions, in the same way, as prof. Haidt et al. show, as an ideologically diverse academy will produce more solid research.

As I also wrote in that post, an individual judge actually has very little power except that of persuading his or her colleagues or, in the case of lower court judges, hierarchical superiors. Are the people who decry the appointment of some judges seen to be ideological outliers actually worried that these few judges, despite being a small minority, will convince other judges that they are right?

What would indeed be worrying is evidence to support David Dyzenhaus’s assertion, quoted by Mr. Fine, that “that the appointment of judges is from a very small pool of lawyers,” resulting in a lower-quality bench. Now it is no doubt true that, as prof. Dyzenhaus says, “people of considerable ability are being passed over.” But that in itself is not a problem, so long as are more able candidates than positions on the bench. And Mr. Fine presents no proof that that is not so. That said, it is worth noting that the Conservative government and the broader conservative movement have done nothing at all to broaden the pool of genuinely conservative lawyers whom they could appoint to the bench. As I pointed out here, they neither articulated much of an ideology, nor created any sort of organization that might do so, like the Federalist Society did in the United States. But those from whom ideological diversity on the bench is a source of concern can take comfort in the Conservatives’ laziness.

In short, there is little evidence of impropriety in the Conservatives’ handling of judicial appointment, at least Mr. Fine describes it. (Ironically, his piece does not even mention what is arguably the most serious charge against them in this regard ― their notorious reluctance to appoint women to the bench.) Similarly, there is no evidence in Mr. Fine’s piece that we need to change the judicial appointments process. Indeed, I would go so far as to say that attempts to “depoliticize” that process are a bad idea insofar as they will prevent a government from pushing back against the ideological homogeneity of the judiciary. Such pushback, far from being a problem, is a good thing that will improve the quality of the bench and of the decisions Canadian courts render.

Fear-Mongering

Irwin Cotler has table a private member’s bill, C-669, that would give judges the ability to reduce any mandatory minimum sentence provided by the Criminal Code

in any manner that [the judge] considers just and reasonable, taking into consideration the circumstances of the offence, victim and offender, the sentencing principles set out in [the Code], and the interests of justice and fairness.

The bill’s short title is Independence of the Judiciary Act. It is this title that I want to comment on. Despite the respect I owe Mr. Cotler, I consider it to be as misleading as any of the propagandist monikers the Conservative government has given its tough-on-crime legislation.

The bill, quite simply, is not about the independence of the judiciary ― much like the Safe Streets and Communities Act, which introduced some of the many mandatory minimum sentences that Mr. Cotler is trying to push back against, was not really about the safety of Canadian streets and communities, since mandatory minimum sentences do not deter crime and hence do next to nothing to promote public safety. Judicial independence, as the Supreme Court has repeatedly stated, comprises security of tenure, financial security, and administrative independence. C-669 does nothing to enhance any of these aspects of independence. Instead, its title seems based on the assumption that the existence of mandatory minimum sentences is, in itself, an impairment of judicial independence. But that’s not so.

While I’m not a fan of that decision’s take on the Rule of Law, and while even its application of the principle of judicial independence to the statute at issue may be contestable, the Supreme Court’s unanimous opinion in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, does supply what strikes me as a useful statement regarding the respective roles of the judiciary and the legislatures:

[T]he judiciary’s role is not … to apply only the law of which it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or pertinent. Nor is it to second-guess the law reform undertaken by legislators … . Within the boundaries of the Constitution, legislatures can set the law as they see fit. [52]

To show that a law interferes with judicial independence,

more is required than an allegation that the content of the legislation required to be applied by that adjudicative role is irrational or unfair, or prescribes rules different from those developed at common law. The legislation must interfere, or be reasonably seen to interfere, with the courts’ adjudicative role, or with the essential conditions of judicial independence. [54]

Even “draconian” laws do not interfere with the “courts’ adjudicative role,” which is “to hear and weigh, in accordance with the law, evidence that is relevant to the legal issues confronted by it.” [50] Needless to say, a mandatory minimum sentence does not prevent a court that must impose it from doing these things. The existence of a legal rule imposed by the legislature that confines the range of orders a court is authorized to issue in a given case does not stop the court from issuing the decision it deems appropriate, within the constraints of that rule. And in the case of criminal sentences, unlike the civil issues with which Imperial Tobacco was concerned, a draconian legal rule can be challenged as unconstitutional.

The words of Chief Justice MacDonald, in the Nova Scotia Court of Appeal’s decision in R. v. MacDonald, 2014 NSCA 102, are also apposite:

in our constitutional democracy, Parliament decides what actions will constitute a criminal offence together with the corresponding range of punishment for each. This may include, in Parliament’s discretion, mandatory minimum sentences for certain offences. In this regard, the will of Parliament shall prevail, unless the sentencing provisions are so severe as to constitute cruel and unusual punishment as prohibited by our Charter of Rights and Freedoms. It then falls to the judiciary, as guardians of the Charter, to prevent such occurrences. (Emphasis mine)

The claim that mandatory minimum sentences interfere with judicial independence is being advanced by the Barreau du Québec in its wholesale constitutional challenge to a variety of such sentences ― with some success, so far, in that both Québec’s Superior Court and its Court of Appeal have seized on it to allow the challenge to go forward, despite the government’s argument that the Barreau did not have standing to pursue it. However, these judgments, right or wrong, did not concern the merits. As I have repeatedly argued, this claim does not stand up to scrutiny.

So much for the law. As a matter of logic, the claim that mandatory minimum sentences interfere with judicial independence fares no better. Mr. Cotler’s own bill actually illustrates this quite clearly. It does not seek to authorize judges to impose sentences in excess of the upper limits decreed by Parliament for each offence in the criminal code. Yet if the concern is that Parliament’s limiting judicial discretion and the ability to impose a “just and reasonable” sentence interferes with judicial independence, that concern ought to be equally applicable to “mandatory maximums” as to “mandatory minimums.”

Mr. Cotler, I conclude, does not really think that limiting the judges’ discretion impose whatever sentence they think fit is inherently wrong. He thinks that mandatory minimum sentences are sometimes unjust, and perhaps also that they are unnecessary and inefficient. He is right about that. (For the most part, anyway; I wonder if he, or anyone else, seriously oppose the mandatory sentence of life imprisonment for murder for instance.) He should rename his bill accordingly. The bill’s current name, like that of so many Conservative bills, particularly in the realm of criminal law, is a propaganda device intended to convey the impression that a grave problem exists when this is not the case, and the bill’s author knows this not to be the case. Such fear-mongering deserves condemnation, whoever it comes from, but it is especially unworthy of an honourable man and great lawyer such as Mr. Cotler.

Judge Kopf on Mandatory Minimums

At his blog Hercules and the Umpire, Richard G. Kopf, a judge on the U.S. District Court for the District of Nebraska, has a fascinating post on mandatory minimum sentences, which I would urge anyone who has been following the Canadian debate about them to read. (Indeed, this is the rare occasion on which you should read the discussion in the comments.) Judge Kopf is generally critical of mandatory minimums as a policy matter, but his views are nuanced. In particular, they call into question the argument against mandatory minimum sentences being made by the Québec bar in its challenge to the 94 mandatory minimums created by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10, which the Québec Court of Appeal recently refused to dismiss for lack of standing.

Judge Kopf’s post consists of his answers to a series of questions asked by a journalism student, the very first of which is the same as that posed by the Bar’s challenge:

are these laws an encroachment upon the judicial branch and the prerogative of the individual judge by the executive and legislative branches?

Judge Kopf’s answer is that

there is nothing inherently wrong with Congress enacting mandatory minimums. After all, Congress has the power to pick specific and definite sentences for any crime on the books.

At the same time, Judge Kopf points to a serious problem with mandatory minimum sentences: “[i]n order to maintain proportionality between offenders mandatory minimums tend to drive up sentences” imposed on those whose crimes are more serious than the least blameworthy ones that could be punished under the same offence, for which the minimum sentence should in fairness be reserved. In the United States, this happens through the intermediary of the Sentencing Commission which must, as Judge Kopf explains, “implement those minimums and then peg the rest of the sentences [provided by the Sentencing Guidelines, which the Commission develops] around those benchmarks.”

There are no Sentencing Guidelines in Canada, but Canadian courts have recognized this effect of mandatory minimums as well. In the recent decision in R. v. Holt, 2014 BCSC 2170, Justice Warren of the Supreme Court of British Columbia explained that

[s]ome mandatory minimum sentences have been found to create an “inflationary floor” that affects the sentence of not only those who might have received sentences below the mandatory minimum, but also those who would have received higher sentences, on the theory that the overriding sentencing principle of proportionality requires the minimum sentence to be reserved for the so-called “best offender.” [26]

As Justice Warren further explained, if the mandatory minimum for a given offence is in line with the lowest sentences already being handed to those found guilty of it, there will be no inflationary effect. But if it forces courts to increase the sentences at the lower end of the range for the offence, then it will also affect those offenders whose sentence ought to harsher.

All that to say, as the Nova Scotia Court of Appeal, as well yours truly, have already pointed out, that the big problem with mandatory minimums is not their effect on judicial discretion or separation of powers, but their effect on people being sentenced. And that effect, as Judge Kopf observes, can be very unfair. Judge Kopf acknowledges that mandatory minimums can be legislative response to disparities in sentencing for substantially similar crimes between judges and courts. They are, he says, “a way of imposing a minimum level of equality, albeit it at a great cost,” both that of the distortion of the sentences imposed across the board, and that of the injustice of punishments “that may have little or nothing to do with the proper sentence.”

Judge Kopf is no bleeding heart, and no libertarian, in case you’re wondering. Even if you think that Canadian judges and academics who have been denouncing mandatory minimums ― and, in the case of judges, striking them down on a regular basis ― are incorrigibly soft on crime, you should take what he has to say very seriously.

A Standing Invitation

Today the Québec Court of Appeal dismissed the federal government’s appeal from the Superior Court’s decision in Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, which granted the Québec Bar public interest standing to challenge the constitutionality of the mandatory minimum sentences ― all 94 of them ― introduced by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10. The decision came from the bench at the end of this morning’s hearing, with reasons to follow. I was there, however, so I think I’m in a position to explain the (likely) grounds for the Court’s decision right away.

The federal government’s first, and less important, argument was that Justice Roy, who granted the Bar public interest standing, was to wrong to accept that it had a genuine interest in the issue. The government pointed out that the Bar failed to intervene in any of the multiple ongoing challenges to mandatory minimum sentences. It also asserted that ― unlike the NGO that was granted public interest standing in the Supreme Court’s most important recent case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, it wasn’t an “umbrella,” a representative for the people actually affected by the impugned legislation.

The Bar countered that it had a long-standing interest in matters related to the legal and judicial system, and that this challenge was in furtherance of that interest. The Court of Appeal, presumably, agreed.

The government’s main focus was on Justice Roy’s conclusion that the Bar’s challenge was a reasonable and effective way to get the issues it raised before the courts. Having a credible and well-resourced litigant willing to take on a case is not enough. Downtown Eastside, in the government’s view, stood for the proposition that if a litigant with personal standing could reasonably be expected to mount an equally or more effective challenge, public interest standing should (normally) not be granted. Unlike on the facts of Downtown Eastside, such was the case here. The accused who were potentially subject to the mandatory minimum sentences at issue had every incentive in the world to challenge them. Accused persons had challenged other mandatory minimums all the way up to the Supreme Court in the past, and were already challenging those introduced by C-10. Unlike with the prostitution-related provisions at issue in Downtown Eastside, no person was harmed by the the mandatory minimum sentences before they were imposed on them by courts, so there was no urgency to consider their constitutionality at once.

The government argued that the Bar’s challenge was seriously flawed. For one thing, it would have to be argued in a factual vacuum. The Bar proposed to use available judicial decisions as “reasonable hypothetical” examples of concrete situations to which the mandatory minimums might be applied to fill it up, to  but the Supreme Court has cautioned against such practices. And for another, the case was going to turn into an aggregate of 94 individual challenges to the various mandatory minimums created by C-10, and would be unmanageable, and thus not a good use of judicial resources.

The Court, however, was of the view that there was something more to the Bar’s case than an assemblage of challenges to individual mandatory minimums. These were “the trees,” but there was also “the forest” ― the Bar’s claim that Parliament interfered with judicial discretion and even judicial independence. The Bar, the judges suggested, was better placed than any individual litigant to argue this claim. If Parliament were to enact American-style sentencing guidelines, who could challenge them? Surely not an individual accused?

The federal government tried countering that this issue would be just the tip of the iceberg, because “99%” of the time of the court that would consider the case on the merits would be devoted to the challenges to the individual provisions. Switching metaphors, it said that the issue of judicial powers would be “Trojan horse” concealing the “soldiers” of these separate challenges under s. 12 of the Charter. Besides, accused persons could well raise the judicial independence issue, since it is another way, in addition to s. 12, in which the law under which they could be sentenced might be declared unconstitutional. Sure an individual could not fell every “tree,” by attacking provisions under which he is not accused, but he can still burn down the “forest.” If the Bar wants to make this argument, it can always intervene in an existing case. It just hasn’t done so. Increasingly desperate in the face of the bench’s skepticism, the government added that we should not be impressed by the “aura” surrounding the Bar, that we didn’t even know how much the Bar was spending on this challenge, and that many of its members were opposed.

To no avail. The judges obviously thought that the Bar’s argument that the introduction of multiple mandatory minimums amounted to unconstitutional interference with judicial independence or separation of powers was a serious one, and were concerned that it would not be made if the Bar were not allowed to bring it. And the existence of one serious question on which the Bar could have standing was enough to let the whole challenge go ahead. Any issues arising from its scope, the judges suggested, can be addressed through case-management.

The government tried to retreat to a subsidiary position, arguing that even if the Court upheld the decision to grant the Bar standing, it could and should limit standing to the “forest” issue, that of judicial independence. The Bar demurred, saying that this possibility had not been raised at first instance, and the Court, always skeptical, did not take up the suggestion.

Those of you who recall my earlier posts on this case will not be surprised to learn that I think this is a very bad decision. As I wrote here, the Bar’s challenge is a distortion of the nature of judicial review of legislation in the Canadian legal system. During its argument (very brief, at the Court’s request), the Bar insisted that its challenge aimed at the way the mandatory minimums were enacted by C-10 ― all at once and without studies. As a matter of political morality, I fully agree that this way of doing things is a shocking violation of what Jeremy Waldron has called “legislative due process.” But that’s not a legal argument. Legally, I remain persuaded that the argument based on judicial independence is feeble. (I wish the federal government had made that point more forcefully, however.) As I recently noted here, other courts seem committed to the view that Parliament is free to set the ranges within which judges may sentence offenders, subject to s. 12 constraints. In law, as I wrote in discussing the decision at first instance, the Bar’s inclusion of a doomed separation of powers argument allows it to jump through the standing hurdle, and the argument can then be more or less discarded.

A bad precedent, unfortunately, is not so easy to get rid of. I don’t know if the government intends to appeal, but unless it does and the Supreme Court intervenes, the Court of Appeal’s decision will be a standing invitation to any interest group with an ideological agenda to challenge any law it doesn’t like, the courts’ usual admonitions against fact-free constitutional challenges be damned.

Open Bar

First of all, apologies for my silence. I’m afraid I will not blog much this week either, but I should resume normal schedule next week.

I am able to write today, however, and want to discuss the decision of Québec’s Superior Court on a challenge to the standing of the Québec Bar to attack the constitutionality of the plethora of mandatory minimum sentences introduced by an omnibus criminal law bill, C-10, enacted by Parliament as the Safe Streets and Communities Act, S.C. 2012 c. 1. I blogged about the Bar’s challenge when it was launched, and said I expected it to be dismissed for lack of standing. Well, I was wrong. In Barreau du Québec c. Canada (Procureur général)2014 QCCS 1863, Justice André Roy rejects the federal government’s attempt to have the case dismissed, holding that the Bar has public interest standing. It is not, in my view, a very persuasive ruling, but it shows that the Bar’s litigation strategy, which I thought rather bizarre, might in fact be pure genius.

The test for deciding whether a litigant not personally affected by a statute should be granted public interest standing to challenge its constitutionality were most recently revised and set out by the Supreme Court in  Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which I summarized here. Briefly, the challenge must raise serious and justiciable issues, the plaintiff must have a genuine interest in the dispute, and the case must be a “reasonable and effective way to bring the issue before the courts” in all the circumstances. Relevant factors to determine whether this last criterion is met include (but are not limited to) the plaintiff’s capacity to prosecute his claim, and the possibility that the issues he raises (and his perspective on them) would be brought before the courts in a different way.

The federal government conceded that at least some of the issues raised by the Québec Bar’s challenge were justiciable and serious. Indeed, courts around Canada have already been considering the constitutionality of mandatory minimum sentences, and the Supreme Court will do so when it hears the federal government’s appeal from the decision of the Court of Appeal for Ontario in R. v. Nur, 2013 ONCA 677 and its companion cases.

On the issue of the Bar’s interest in the issue, the government tried arguing that the constitutionality of mandatory minimum sentences had nothing to do with its ostensible mission to protect the consumers of legal services. The Bar itself claimed that its mission was far broader, and that it had a legitimate interest in issues concerning courts and the justice system. Justice Roy agrees with the Bar, finding that it is “a leading actor on all questions relative to both federal and provincial legislation” (par. 42; translation mine here and throughout), and that its mission of protecting the public had a preventive component, encompassing a “social role” (par. 46) which includes the public expression of positions on issues relating to its expertise.

Finally, the government argued that the Québec Bar’s challenge is not a reasonable and effective way to get the issue of the constitutionality of mandatory minimums before the courts, claiming that the Bar’s case really involves 94 distinct challenges (the number of new mandatory minimums in C-10), many of which were already being litigated, and that it would require their consideration in a factual vacuum. The Bar, for its part, contended that its challenge was the best, and perhaps the only, way to bring before the courts an issue which individuals who could be subject to the mandatory minimum sentences would not be likely to litigate, and which is common to all the various provisions it attacks: the elimination of judicial discretion and the corresponding interference with judicial power and independence. Justice Roy agrees with the Bar, asserting that its challenge “gave raise to a judicial [sic] debate on the true issues of this legislation and posed questions that go to the heart of the judicial process in penal matters” (par. 63). “[T]he central question” (par. 67) of any individual challenge to a mandatory minimum is that of judicial discretion, and the Bar’s challenge is a reasonable and effective way of having it answered. As for the necessary factual background, it can be found in past cases cited by the Bar in its application.

Even assuming that Justice Roy’s disposition of the second part of the public interest standing test is correct (which it probably is, given the fairly lax application of this criterion by the Supreme Court in the past), I think that he goes astray in discussing the “reasonable and effective” criterion. It seems strange, if not preposterous, to me to claim that the real issue with mandatory minimums is interference with judicial power rather than the potential for disproportionate punishment in which their imposition may result. The Bar’s application itself devotes 43 paragraphs to allegations of violations of sections 7 and 15 of the Charter, and only 15 ― one third as much ― to the alleged violations of separation of powers and judicial independence. Furthermore, as I argued here, the judicial independence argument is a very weak one ― and it is perhaps noteworthy that Justice Roy does not even mention it in his discussion of the first part of the standing test. I still think that it would be astonishing if this argument were to succeed. And if we set it aside, the Bar’s challenge becomes, as the federal government contended, nothing more than an unwieldy collection of challenges to a large number of independent statutory provisions, presented in a factual vacuum which the Bar and Justice Roy propose to fill with hypotheticals. It is miles away from the Downtown Eastside case, where public interest standing was first and foremost the only way to bring crucial, probably even determinative, facts to bear on a challenge to a unified statutory scheme.

Justice Roy, it seems to me, has fallen for the Bar’s litigation strategy, which is really brilliant ― whether deliberately or accidentally so. By making a doomed, nearly frivolous argument, on which it is most likely to lose when the merits of its case are appraised, the Bar is nonetheless able to give a very different look to its constitutional challenge, and thus get over the standing hurdle, which it should never have overcome. Having overcome it, it can discard this argument altogether, or confine it to the throwaway status that is the best that it deserves, and focus its energy on its more serious claims, which it should not have been allowed to make in the first place. Litigators take note.

I hope the Court of Appeal will take note too, however. I don’t know if the federal government intends to appeal (though it seems like a pretty good bet), but if it does, it should win. I have no love lost for its “tough-on-crime” legislation generally or mandatory minimums in particular, but this case, if it goes forward, will make constitutional litigation into an open bar. As I wrote in my original post, this is not consistent with the nature of judicial review of legislation in Canada. Courts should not allow it to happen.

NOTE: Hat tip to Maxime St-Hilaire for making me aware of the decision, which I had missed.

You’re Fired!

Earlier this month, the Saskatchewan Court of Appeal issued a decision which, if legally predictable, offers us a useful opportunity to think about some serious questions in Canadian administrative law. At issue in Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, was the constitutionality of s. 20 of Saskatchewan’s Interpretation Act, 1995, which allows a newly elected government to dismiss from office members of boards, commissions, and other administrative agencies (except those appointment can only be terminated by the legislative assembly).

One of the agencies whose members are thus subject to summary dismissal by a newly installed cabinet is the province’s Labour Relations Board. In 2007, an incoming government dismissed its chairperson and vice-chairpersons, appointing in their stead persons with whose ideological leanings it was more comfortable. A number of trade unions challenged the dismissal on administrative law grounds, but that challenge failed. They then challenged the constitutionality of s. 20, alleging that it breached the constitutional principle of judicial independence.

The Court of Appeal unanimously rejected this argument. The question, it found, was settled by the Supreme Court’s decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, which held that the principle of judicial independence did not apply to administrative tribunals, except insofar as their decisions concerned rights protected by sections 7 or 11(d) of the Canadian Charter of Rights and Freedoms. For all other tribunals ― the majority of them, and in particular all those that deal with citizens’ economic interests, which s. 7 of the Charter does not protect ― legislatures are free to define and limit the extent of their independence. There is a “fundamental distinction between courts and administrative tribunals” (par. 51), the principle of judicial independence applying only to the former.

The unions argued that Ocean Port did not apply, because the administrative body it concerned, a liquor control agency, was of a policy-making character, whereas the Labour Relations Board’s functions were quasi-judicial. That was true, the Court of Appeal found, but not enough to make a difference, because the Supreme Court had not limited the scope of its holding in Ocean Port to administrative tribunals with policy-making functions. Nor did the Supreme Court’s subsequent decisions temper the distinction it had drawn in Ocean Port between courts and administrative tribunals.

This seems the right answer as a matter of law as it is. Whether the law should be this way is a different question. In the immediate context of this case, s. 20 makes all members of administrative tribunals, including those adjudicating disputes that would, if the tribunal did not exist, be settled by judges of ordinary courts, political appointees subject to dismissal by an incoming government for no better reason than ideological disagreement. This is, so far as I know, a very unusual provision in Canadian law. But it is not unusual for administrative tribunals to enjoy very limited independence from the government.

In Ocean Port, the Supreme Court suggests that this is as it should be.

Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. …

Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.  However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.  (Par. 23-24)

Perhaps so. But the Supreme Court’s other decisions make it clear that courts must defer to an administrative tribunal’s interpretation of law, except on legal questions considered “of central importance for the legal system” (a category that notably includes constitutional questions). This means that legal questions might be settled beyond the reach of judicial review by tribunals not only lacking all the (admittedly generous) trappings of judicial independence granted to courts, but indeed existing for the purpose of implementing government policy. In other realms, courts very much enjoy drawing a sharp line between law and policy and insisting that the two fields must be kept separate. (The Québec Court of Appeal’s recent gun registry decision, Canada (Procureur général) c. Québec (Procureur général), 2013 QCCA 1138, which I summarized here, is a fine example of that sort of rhetoric.) But in administrative law, the combination of a refusal to extend a constitutional requirement of adjudicative independence to administrative tribunals and the emphasis on deference to such tribunals’ decisions even on legal questions blurs that line into invisibility.

I can think of a couple of explanations for why this might be the case. One is practical: there is, as the courts are fond of saying, a “spectrum” of administrative tribunals, ranging from the entirely quasi-judicial to the obviously policy-making. Between these two extremes, distinguishing between the two categories to decide which tribunals should be granted independence would be very difficult, causing no end of litigation, an outcome courts are ― rightly ― keen to avoid. But if distinguishing between quasi-judicial and policy-oriented tribunals is impracticable, refusing to defer to tribunals’ interpretations of law ― and especially to the decisions of tribunals that lack independence ― is not.

The other explanation might (I am really just speculating here) be due to a common, but, in my view, unfortunate, understanding of the rationale for judicial independence. Both courts and scholars often emphasize the role of judicial independence in constitutional litigation, where the rights of citizens or the powers of governments are at stake. This emphasis, I am afraid, tends to make people forget that it is no less important in “ordinary” than in constitutional litigation that decisions be made according to law rather then anyone’s policy preferences. As it is, it is thought that review of constitutional decisions independent courts is enough.

It isn’t. Don’t count on the Supreme Court to change its approach though. And unless it does, courts will have to defer to administrative tribunals to whom governments can, if the tribunals’ decisions are not to their liking, say “you’re fired!”

The Ghost of Patriation

If the ghost of communism is, or ever was, haunting Europe, Canadian constitutional law is haunted by what Fabien Gélinas described as the Ghost of Patriation. This ghost has been seen abroad again this week, stirred by an historian’s claims that, while the Supreme Court was considering questions about the constitutionality of the federal government’s proposed plan to seek Patriation without support from the provinces, the Court’s Chief Justice, Bora Laskin, leaked inside information about the Court’s deliberations to the government. The historian, Frédéric Bastien, apparently claims that this was an egregious violation of the separation of powers and that it made Patriation tantamount to a coup d’État and the resulting constitution illegitimate. Québec’s separatist government has seized on the claims, and even the Supreme Court has launched an internal inquiry, as the Globe reports.

Cooler heads are trying to put the ghost to rest by pointing out that, even if true, Dr. Bastien’s allegations are not enough to make out his claims about a coup d’État and the illegitimacy of the constitution. So Yves Boisvert argues in La Presse that while a breach of the secret of the Supreme Court’s deliberations, had it become known, might have been a cause for the Chief Justice’s resignation, it was not “a ploy that changed the course of history” (my translation). He points out that Justice Laskin found himself dissenting on the crucial question in the Court’s decision, usually referred to as the Patriation Reference, whether constitutional conventions prevented the federal government from acting unilaterally to amend the constitution. Indeed, Mr. Boisvert observes that whatever information Chief Justice Laskin might have given the government may well have been erroneous. Mr. Boisvert’s colleague, André Pratte, makes similar points in his editorial.

Messrs. Boisvert and Pratte are right. The coup d’État theory simply ignores the fact that by stating, in the Patriation Reference, that the federal government’s project was unconstitutional, albeit “only” in a conventional rather than a strictly legal sense, the Supreme Court thwarted unilateral Patriation. The Court’s majority, led by Justice Jean Beetz, held that constitutional conventions required “substantial” provincial support for constitutional amendments, which forced the federal government to negotiate with the provinces. Nine provinces eventually agreed on a (revised) Patriation plan, and the Supreme Court unanimously confirmed, in the “Québec Veto Reference,” that this was enough. The process of Patriation was constitutional in both the legal and the conventional sense.

Indeed, in my view Messrs. Boisvert and Pratte are wrong to concede, as both do, that Chief Justice Laskin’s actions amounted, or at least can be regarded as amounting, to a violation of the separation of powers. Separation of powers is an elusive concept, even by the low standards of constitutional theory, but if it has a core, it is something like the idea that political decisions of different sorts ought to be made by different institutions, whether because dividing political power in this way limits potential for abuse and tyranny, or because different institutions have peculiar strengths and good government requires decisions to be made by that institution which is most apt to handle each specific question. A pithy summary of the idea of separated decision-making is James Madison’s well-known phrase, in The Federalist No. 51, that each branch of government “should have a will of its own.” The actions of Chief Justice Laskin, even if they were as Dr. Bastien alleges, simply did not undermine the separation between the executive and the judiciary so understood. Even if he passed some information about the Supreme Court’s deliberations to the government, he did not involve the executive in the Court’s decision-making. He neither asked the Prime Minister how to rule nor took orders from him, even for himself, let alone his colleagues who disagreed with him. The ruling on the Patriation Reference was always in the Court’s hands, and the Chief Justice’s indiscretions did not change anything to that. Indiscretions, breaches of judicial ethics they were, if the allegations are confirmed. But not every breach of judicial ethics, however regrettable, is a violation of fundamental constitutional principle.

Patriation is bound to remain a murky and controversial episode of our history. As the men involved in it die, the first-hand memory of events fades. Perhaps we will never know the exact truth about what happened. On the other hand, the fading of the first-hand memories of the bitter divisions of those days should be an opportunity to leave behind the passions that reigned then. In order to do that, we would do well to leave the ghost of Patriation alone. He has haunted us enough, and earned his peace.