Not Withstanding Scrutiny

The Saskatchewan government hasn’t justified its resort to the notwithstanding clause in the Catholic school funding case

Yesterday, I summarized and briefly commented on the decision of the Saskatchewan Court of Queen’s Bench in  in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which held that funding Catholic schools for educating non-Catholic students was an unjustifiable infringement of religious liberty and equality guarantees of the Canadian Charter of Rights and Freedoms. In my view this decision is correct. However, plenty of people disagree. Importantly, so does the government of Saskatchewan, which has announced that it will have the provincial legislation resort to the Charter‘s “notwithstanding clause” to nullify the Court’s decision, ostensibly in the name of school choice. Some thoughtful people, like Emmett Macfarlane and Dennis Baker, are supportive of the idea. In my view, however, it is misguided and hypocritical, not to mention illustrative of why the notwithstanding clause should never be used.

The best justification for occasionally resorting to section 33 of the Charter, which allows a legislature to suspend for a renewable period of up to five years the operation of constitutionally protected right is that the legislature disagrees with the courts’ interpretation of that right. After all, if the truth about rights, to borrow a phrase from Jeremy Waldron, exists at all, it’s not obvious that courts have privileged access to it. Questions about rights, about what counts as justifiable limitations of rights, are difficult, and reasonable people can disagree about them. In the face of such disagreement, isn’t it acceptable for the people’s elected representatives to decide that their views ought to prevail over those of unelected judges?

Trouble is, this solemn scene ― representatives of the people deliberating about rights and coming to conclusions that are reasoned and reasonable, if different from the judges’ ― has not taken place in Saskatchewan. The government doesn’t say that it disagrees with Justice Layh’s views about the scope of religious liberty or equality. It does not argue that the constitutionally protected freedom of religion does not encompass a duty of religious neutrality on the part of the state. It does not say that granting funding for students outside of a school’s denomination to Catholic schools and to no others is consistent with neutrality or not discriminatory. It is content to state the objective of “school choice” ― which, by the way, I think is a laudable objective, but which the government’s lawyers didn’t even dare put to the Court ― as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so. This is not what the defenders of the notwithstanding clause, or indeed the critics of any judicial enforcement of individual rights, say they have in mind. Why, then, do they defend the Saskatchewan government?

The Charter, or any sort of system that protects individual rights against infringement by the state, is based on the idea that the end does not always justify the means. At most, there is a proportionality test, such as the one embodied in section 1 of the Charter. A pressing social objective can justify some limitations of rights, but no more than is necessary, and in particular, not if less restrictive means are available to the government. Of course, whether the means at issue in a given case are the least restrictive available is a difficult question, and legislatures and courts might disagree about that. But there is no sign that Saskatchewan’s government has given any thought to alternative ways of achieving its professed objective of school choice. Why, then, do those boosters of the “notwithstanding clause” that justify its use by the existence of reasonable disagreement defend this government?

In reality, the government’s position is doubly hypocritical. It is hypocritical, first, because although it is posing as the defender of school choice, it is the government that is ultimately responsible for limiting the choices of the parents at the centre of this litigation. The government funds public schools. Its funding was not sufficient to keep a rural school open. The school board decided to close it, and have students be bussed to a different one. Instead of accepting this, some parents took advantage of constitutional rules allowing them to set up a “separate” Catholic school―in a village where there had never been one―, and non-Catholic parents, who had never had any particular interest in Catholicism, decided to also send their children there. If the choices of these parents mattered as much as the government now says they do, the local public school would have stayed open, and this case would not have arisen.

The government is hypocritical, second, because it has perfectly constitutional options to provide even more school choice than it now does ― in which it appears to take no interest. The government could provide all groups, including all religious groups, with funds to educate students from outside their communities. That would be real, meaningful school choice ― not the rather limited choice of a public or a Catholic school, which is only a choice, as Justice Layh points out, for those who do not mind their children receiving a Catholic education. Sure that might be costly system ― but if school choice is important enough to override constitutional rights, surely it’s worth a little tax raise?

Instead of admitting that its position is driven by fiscal, and presumably ultimately electoral, considerations rather than an authentic concern with school choice, the government compounds its hypocrisy with misleading threats. It claims that “[t]he ruling [in Good Spirit School Division] could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.” The press release conveniently doesn’t mention the fact that this funding, which was not actually at issue in the Good Spirit School Division case, is less that the funding Catholic schools receive, and that at least the Huda School was on the side of the plaintiffs in the proceedings. Indeed, I wonder how the people involved the Huda School feel about being used in this way to make the government’s case considering the testimony of the school’s president at trial. Here’s how Justice Layh describes it:

he asked why the Huda School cannot receive funding to educate non-Muslim students, just like Catholic schools receive funding to educate non-Catholic students. The Huda School does not discriminate against hiring non-Muslim teachers (unlike Catholic schools). The majority of its teaching staff is non-Muslim. Dr. Aboguddah testified that the Huda School would welcome non-Muslim students to its growing school of 430 students (in 2016) which would provide an opportunity to build bridges with the broader Canadian community to reduce the stereotyping and negative image affecting the Muslim community in light of recent world events. [397]

A Rabbi similarly testified “that certain advantages would accrue to the small Jewish school in Regina if it received complete government funding for non-Jewish students.” [440] Again, if the government were committed to meaningful, non-discriminatory school choice, it would fund schools equally, regardless of who is behind them. The constitution would not stand in its way. It is its choice not to do so ― and it ought to accept the constitutional consequences of this choice.

Like a court looking to uphold a dubious administrative decision on a reasonableness standard, Profs. Macfarlane and Baker, and those who agree with them, offer their own reasons for why Justice Layh’s decision was wrong. I might return to that in a future post. Here, my point is that the government of Saskatchewan does not give any such reasons. Its justification for overriding this decision cannot withstand scrutiny. And it’s the government, not the thoughtful (if in my view mistaken) scholars, that gets to use the “notwithstanding clause”. If government were run by profs. Macfarlane and Baker, I would have fewer qualms about its ability to override judicial determinations of constitutional rights. But it is not.

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

Don’t Fix It

There is no good reason to start using the Charter’s “notwithstanding clause”

In an article in the Walrus on the 35th anniversary of the Canadian Charter of Rights and Freedoms, Lauren Heuser raises the issue of what is probably the least loved provision in our constitution ― the Charter‘s section 33, a.k.a. the “notwithstanding clause”. Section 33 allows Parliament and provincial legislatures to immunize legislation from judicial review and invalidation under sections 2 and 7 to 15 of the Charter ― provisions protecting, among other things, the freedoms of religion and expression, the due process rights of the accused in criminal cases, and most equality rights. Ms. Heuser wants us to reconsider the existing norm, some would even say convention (although I do not think it is one yet) against using section 33. She is wrong.

Ms. Heuser quotes Howard Anglin, who points out (correctly) that section 33 was an essential component of the political compromise that made the enactment of the Charter possible, and Emmett Macfarlane, who insists that this compromise reflects a “recognition that the courts wouldn’t always get it right”, and not only a hidebound commitment to “parliamentary sovereignty with no reason”. Ms. Heuser concludes ― it’s not clear to me whether Mr. Anglin and prof. Macfarlane share the conclusion ― that

[c]ontrary to what much of the public has been led to think, then, it is not necessarily inappropriate for government officials to push back when they believe a court gets a ruling wrong;  this is as legitimate as a citizen asserting her Charter right to justify some action.

Provided that a legislature can justify itself by “explaining how a court’s policy analysis failed to take account of relevant considerations or contravened the will of the democratic majority”, resorting to section 33 should not be regarded as a political impossibility.

Ms. Heuser is not alone in trying to rehabilitate the “notwithstanding clause”. Attempts to do so are made with some regularity in nationalist circles in Québec, where the Charter is still seen as an illegitimate imposition on the province’s legislative competence. The most recent such attempts have been in response to the purported iniquity of courts giving effect to the constitutional right to be tried within a reasonable time. (Over at À qui de droit, Maxime St-Hilaire has argued convincingly that Québec could not validly override the Supreme Court’s decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 even if it tried, and Finn Makela has ventured what strikes me as at least a plausible political explanation for why politicians ignore these legal arguments. I would only add that this is not the first time there has been talk of invoking section 33 when it was manifestly impossible to do so.) But whoever is making this argument, and whatever their motivations, they are wrong.

Here’s what I wrote when I considered invoking section 33 in response to what I considered to be some of the worst decisions ever made by the Supreme Court under the Charter, those that elevated to constitutional status the rights to bargain collectively and to strike:

[T]he norm … against using the notwithstanding clause is, on balance[,] a very good thing. Courts sometimes make mistakes, even very bad mistakes, as [the labour rights decisions] demonstrate. But, pace Jeremy Waldron, the Supreme Court of Canada’s record on rights issues is still so much better than that of Parliament and the provincial legislatures that we’re better off with not merely a rebuttable presumption, but a bright-line [rule] against legislative corrections of perceived judicial mistakes. The likelihood of the perception being itself mistaken is simply too high.

This should, I think, take care of prof. Macfarlane’s and Mr. Anglin’s arguments. Sure the courts don’t always get it right, and section 33 was put into the Charter as a remedy against courts systematically getting it wrong (as the Charter’s framers thought ― wrongly ― the American courts had during the so-called “Lochner era”). But in light of our experience with the Charter we know that the courts get it right more often than the legislatures that would be relying on section 33 would.

As for Ms. Heuser’s suggestion that legislatures would be justified in setting aside judicial decisions whenever these “contravene[] the will of the democratic majority”, taking it seriously would make those provisions of the Charter that are subject to section 33 so many dead letters. By hypothesis, all democratically enacted legislation reflects the will of the majority, and any judicial finding that such law is unconstitutional contravenes this will. There are occasions when we may be able to show that what I have previously called a “democratic process failure” has occurred, and the law did not in fact reflect the majority’s will. But demonstrating that this has happened is not straightforward, and for obvious reasons legislators will be the last people in the world to accept such claims. Ms. Heuser would, in effect, give them carte blanche to override any judicial decision they disagreed with. This is not a crazy position, to be sure, but those who support it should recognize that they are advocating for a substantial revision of our whole approach to judicial review ― a clear change to constitutional practice rather than a return to the roots.

For the reasons outlined above, I would not support such a change. Although I disagree with the Supreme Court more than most Canadian constitutional lawyers, I still trust its judges more than I trust legislators. That section 33 was the price to pay to have the Charter at all is not a reason to use it now ― or ever. The status quo ain’t broke, and there is no need to fix it.

Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

* * *

I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I am not I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

All about Administrative Law

Justice Stratas’ remarkable endeavour to improve our understanding of administrative law

Justice Stratas recently posted a most remarkable document on SSRN. Called “The Canadian Law of Judicial Review: Some Doctrine and Cases“, it is nothing less than a comprehensive overview of the concepts, principles, and rules of administrative law in an accessible format, for the reference of judges, lawyers, scholars, and students. While Justice Stratas cautions that it “is not meant to be complete” (1), and notes ― with perhaps just a little optimism ― that it “can be read from beginning to end in one short sitting” (7), the wealth of information it contains is really astonishing.

Here is how Justice Stratas himself describes what he is doing:

 It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review.

Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available).

The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers’ understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

(SSRN abstract; some paragraph breaks removed)

Justice Stratas’ work (I am not sure how to describe it ― it is neither an article nor a case- or textbook; in a way, it is perhaps a super-blog-post; more on that shortly) is of course an outstanding service to the legal profession writ large. But it is also, I think, a challenge to us, or indeed several challenges at once.

For one thing, as he did in his lecture on “The Decline of Legal Doctrine” last year, which I commented on here, Justice Stratas calls upon us to devote ourselves to shoring up this weakened edifice. As he notes in his introduction, in order to treat litigants fairly, judges must apply

ideas and concepts binding upon them, a body of doctrine. … If decisions are made because of an individual judge’s sense of fairness or justice, the appearance, if not the reality, is that the decision sprung from personal or political beliefs of an unelected person. (4)

Here, Justice Stratas now says, is a restatement of the ideas and concepts that structure administrative law. One challenge for us simply to help him with it: “contributions of case law, articles, comments and input will improve this document and are most welcome”. (9) But there is a broader challenge here too, especially to those of us in academia. If a sitting judge is able to produce such a statement in a notoriously tricky and unsettled area of the law, why haven’t we done something similar in others?

Now, of course there treatises and textbooks in many areas of the law, and part of what prompted Justice Stratas to put together his document, which is based on PowerPoint presentations he uses to speak on administrative law, is the dearth of “new, up-to-date texts on administrative law, perhaps reflecting its currently unsettled nature. Who dares write about a landscape that is shifting so much?” (6) But Justice Stratas challenges us on the form as much as on the substance. He forces us to think about the media we use to present legal doctrine, even we do write about it.

Justice Stratas points out that

[b]ack in the day of published law reports, knowledgeable editors, skilled in the area, could pick out the cases that matter. These days, however, most lawyers work online, not from the law reports, encounter the flood of cases and somehow have to separate the wheat from the chaff. Alas, most don’t have criteria in mind to do that. (5)

Meanwhile, loose-leaf services, though informative as to particular cases, might tend to “encourage us to think of administrative law as a bunch of particular rules that govern particular topics”, (6) without thinking about underlying concepts and their inter-relationships. (Justice Stratas’ concerns here echo those of Jeremy Waldron, whose work emphasizes the “systematicity” of law, and seeks to push back against treating it as just a collection of unrelated rules and commands.)

And then, of course, there is a concern about access to justice, or to law anyway. In an age in which, on the one hand, many litigants represent themselves, and on the other, those who take interest in Canadian administrative law are sometimes half a world away from a Canadian law library, and also in an area in which the resources even of many practising lawyers are likely to be limited (I’m thinking, for instance, of the immigration bar), it would arguably not be enough to point people to books even if very good ones existed. Justice Stratas writes that

[t]he law should be accessible to all: other judges, counsel, academics, law students, parties and self-represented litigants. Online publication and availability for free encourages this. Hence this document and the location where I have posted it. (6)

If we accept the doctrinal mission with which Justice Stratas wants to invest us, we must think about the form of our work as well as its content. I’m not sure that we must quite imitate Justice Stratas. His document has some advantages. It is relatively easy to access, concise, and convenient in its abundant use of hyperlinks. But I think that a website having the same content would be even easier to access than a document one must download from SSRN, and easier to navigate than a pdf through which one must scroll. Needless to say, I am not criticizing Justice Stratas. Again, we owe him greatly, and I, at least, would probably not have started thinking about this without his nudge. But if can improve on his first attempt in this regard, then we should.

Last year, I wrote about about a symposium at McGill about the “Responsibility of Doctrine”. Musing on the English/common law and French/civilian senses of the word doctrine/doctrine, I concluded that if these ongoing conversations about the law “are to flourish in the 21st century, they will need to remain open to new forms, and … it will not do to ignore these new forms simply because they are unfamiliar.” Justice Stratas makes a remarkable contribution to legal doctrine, in both of its senses, in an unfamiliar form. I hope that the legal community will pay all the more attention to it for this reason.

H/t: Patrick Baud

Why Bother about the Charter?

The Supreme Court divides on whether one might claim Charter damages against an administrative tribunal

Last week, the Supreme Court issued its first decision of 2017, Ernst v. Alberta Energy Regulator, 2017 SCC 1. One can only hope that it is not a trendsetter. The decisions raises more questions than it answers. The Court is split 4-1-4, with the different opinions at odds about which questions it is necessary or even appropriate to answer, and there is no holding on the most important of these, which was whether damages for breach of the Canadian Charter of Rights and Freedoms could ever be awarded against an administrative tribunal. As Jennifer Koshan notes over at ABlawg, “[t]he Ernst decision is challenging to read”, and “[i]t is also challenging to identify the precedential value of the case.”

The case arose out of allegations that the Alberta Energy Regulator (an administrative tribunal) attempted to silence Ms. Ernst in retaliation for her criticism. She claimed that the Regulator demanded that she no longer take disagreements with it to the media, and refused to consider her submissions to it on the same terms as it did those of other members of the public in retaliation for her failure to comply, and thereby breached her freedom of expression, contrary to paragraph 2(b) of the Charter. As a remedy for this breach, Ms. Ernst sought an award of damages, arguing that it was an “appropriate and just” remedy under subsection 24(1) of the Charter.

The Regulator sought to have her claim in damages struck as devoid of any chance of success, invoking a statutory immunity clause that barred suits for “any act or thing done purportedly in pursuance of” the Regulator’s legislative mandate, “or a decision, order or direction”. Ms. Ernst, however, argued that the constitution prevented this provision from denying her the ability to bring Charter claims.

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As just mentioned, there are three sets of reasons ― and no majority. As prof. Koshan helpfully explains, there are

three key issues, although not all of the justices agreed that these issues were worthy of consideration, nor did they agree on the order in which they should be considered:

  1. Whether it was plain and obvious that [the immunity clause] barred Ernst’s Charter claim;
  2. Whether it was plain and obvious that Charter damages were not an appropriate and just remedy in Ernst’s claim against the [Regulator]; and
  3. Whether Ernst’s failure to provide notice of a constitutional challenge to s 43 was fatal to her claim.

In what the Court designates as “reasons for judgment”, Justice Cromwell, with the agreement of Justices Karakatsanis, Wagner, and Gagnon, finds that Charter damages will not be an appropriate and just remedy, in this case or indeed, it seems, in just about any conceivable case against an administrative tribunal, meaning that the immunity clause is constitutional ― and, assuming, as Justice Cromwell does, that it bars Ms. Ernst’s claim ―the claim must be dismissed. (I would quibble here with prof. Koshan’s otherwise insightful post: she writes that Justice Cromwell “held that [the immunity clause] did, on its face, bar Ernst’s claim for damages”. It seems to me that this somewhat mischaracterizes Justice Cromwell’s reasons, which do not amount to a holding on this point. But as prof. Koshan says, it is difficult to understand what the Court actually decides.)

Justice Abella, who concurs in the result, would instead have dismissed Ms. Ernst claim for failure to provide notice of her constitutional challenge to the immunity clause. She she also suggests, however, without deciding, that Justice Cromwell is likely right about the appropriateness of Charter damages against administrative tribunals. Meanwhile, the Chief Justice and Justices Moldaver and Brown, with whose joint opinion Justice Côté agrees, dissent on the basis that it is not plain and obvious that the immunity clause bars Ms. Ernst’s claim or that Charter damages are an appropriate and just remedy.

The three opinions trade surly accusations of procedural impropriety, implicit or explicit. Justice Cromwell accuses the dissent of having decided that the immunity clause did not plainly bar Ms. Ernst’s claim even though the Court heard no argument on this point, because Ms. Ernst herself had conceded it. The dissent responds that the issue is too important for the court to simply proceed on the assumption that the concession is right. For her part, Justice Abella implies that Justice Cromwell should not have addressed the constitutional question at all ― and, remarkably, Justice Cromwell does not even attempt to respond to this accusation (though he repeatedly refers to the obiter part of Justice Abella’s reasons!).

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Prof. Koshan has summarized the three sets of reasons in detail; there is no need for me to do so again. In the remainder of this post, I want to focus on the question, which goes ostensibly unanswered in a 4-4 tie vote (Justice Abella abstaining), of whether Charter damages can be an appropriate and just remedy against an administrative tribunal. Justice Cromwell emphasizes the “need for balance with respect to the choice of remedies” for Charter breaches. [25] It is hard to be against “balance”, of course, but the question is how that balance is to be struck.

For Justice Cromwell, damages should not be too widely available. He gives two reasons for denying them in this case. First, if Ms. Ernst was wronged, she had an adequate alternative remedy in the form of an application for judicial review. It is her own fault that she did not make one. Had she done so, a court could have set aside the Regulator’s unconstitutional decisions. Indeed, “judicial review would in all likelihood provide vindication in a much more timely manner than an action for damages” ― if it had been initiated “promptly”, anyway. [36] Second, allowing claims for Charter damages to be brought against administrative tribunals would interfere with “good governance” by “chilling” their exercise of “responsibilities of a policy-making and adjudicative nature.” [42] Defending against damages actions is time- and money-consuming and distracting, and tribunals will be tempted to act “defensively” to avoid having to do so. Justice Cromwell adds that “allowing Charter damages claims to be brought … has the potential to distort the appeal and review process”, [54] and undermine the finality of administrative decisions. Moreover, the rule barring such claims needs to be categorical, since case-by-case consideration of whether a given claim might amount to an “appropriate and just” remedy would defeat its purposes.

The dissent disagrees with this; indeed, it is aghast at the prospect of a blanket immunity from Charter claims for administrative tribunals. Whether an application for judicial review ― which cannot lead to an award of damages ― would be an adequate alternative remedy is too early to say. As for concerns about good governance, courts should recall that “Charter compliance is itself” such a concern, indeed “a foundational” one. [169] While damages awards will likely not be “appropriate and just” “where the state actor has breached a Charter right while performing an adjudicative function”, [171] there is no need to expand immunity from such awards for non-adjudicative actions, especially when, as is alleged to be the case here, the actions at issue are “punitive”. At most, “certain state actors are subject to qualified immunities”, [176] such that it is only possible to claim damages against them for abuse of power or actions outside of their functions. In other words, there is no need for a blanket rule precluding case-by-case consideration, as Justice Cromwell suggests.

For my part, I do not think that Justice Cromwell’s arguments in favour immunizing administrative tribunals are persuasive. I thus sympathize with the dissent, Indeed, I wonder whether even it may go too far in favour of immunity of adjudicative decision-makers. In New Zealand, the Supreme Court’s holding in Attorney-General v Chapman [2011] NZSC 110, that damages for the breach of the New Zealand Bill of Rights Act 1990 are not available when the breach results from actions of the judiciary has been criticized, including by the two dissenting judges, who pointed out that while a personal immunity for judges is necessary to prevent the sort of ill-effects that worry Justice Cromwell, it is not so clear that the state should also benefit from this immunity.

Be that as it may, I think that the dissent is right to be skeptical of the need for an immunity for decisions that are not of an adjudicative character. Of course defending Charter damages claims may be a distraction and a drain on an administrative tribunal’s resources. But that’s true for any government entity that could be subject to such damages. On Justice Cromwell’s logic, we might as well abolish this remedy (admittedly already underdeveloped and moribund as it is). And as for the worry that administrative decision-makers may suffer a “chilling effect” ― that is as much a feature as it is a bug. If we care about the constitution, shouldn’t we want government entities to worry about acting unconstitutionally, instead of being concerned that they will? Perhaps there is a level of concern that would be excessive. But are we anywhere near it? It is, as the dissent points out, for the government to prove that good governance considerations preclude Charter damages awards; Justice Cromwell’s reasons show no evidence of such proof having been produced (unsurprisingly at such a preliminary stage in the litigation).

Finally, a word on a precedent that Justice Cromwell dismisses, it seems to me, rather too quickly. In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585 and companion cases, the Court held that a litigant who want to bring a private law damages claim against the government did not have to first pursue a judicial review claim to have the decision from which the claim purportedly arose quashed. Justice Cromwell notes that “[t]he Court did not comment on the appropriateness of a Charter damages award against a quasi-judicial board.” [40] That’s true so far as it goes. But the principle underlying the TeleZone decision was that litigants are entitled to seek compensation for losses caused by the government, and so to pursue a damages action, without having the underlying decision set aside, because judicial review and damages claims are of a different nature. TeleZone does not dispose of Ernst, not least because it involved private law rather than Charter damages claims, and it is possible that the function of Charter damages is at least somewhat different, making judicial review a closer substitute. I am skeptical about that, but need to think more about this. In any case, it is too bad that Justice Cromwell seemingly does not trouble himself with this question (and also that the dissent does not raise it).

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In the event, Ernst only flags the issue of potential liability of administrative decision-makers for Charter breaches. It does not dispose of it. This is as well, because the decision is not going to be a Supreme Court classic. But it is worrying all the same. If it turns out that administrative decision-makers cannot be held to account for Charter breaches except by way of judicial review (and holding them to account through that means is a tricky business in light of the Supreme Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395!), then one will have to wonder whether they will bother thinking about their Charter obligations at all.

Don’t Know What You’re up to

Thoughts on Ilya Somin’s take on the consequences of political ignorance for judicial review

I have recently finished reading Ilya Somin’s Democracy and Political Ignorance: Why Smaller Government Is Smarter (2nd ed). Although I was familiar with the gist of Prof. Somin’s argument from his numerous blog posts on the subject of political ignorance as well talks, such as this one, one of which I had the good fortune of attending at NYU, I found it a rewarding read. Even if you know where the argument is going, it is still well worth your while. That said, since prof. Somin has so frequently summarized his case himself, there is no need for me to do so here. Rather, I will volunteer some observations on an issue which he addresses in the book, but not, for the most part, in his blog posts: the impact of his findings on political ignorance on the issue of judicial review of legislation.

In a nutshell, prof. Somin’s general argument is that, as extensive survey evidence shows, most people are profoundly ignorant about both the organization and the activities of government. They are also unaware of crucial facts relevant to assessing these activities. Meanwhile, most of those who are not as ignorant as the rest are still incapable of correctly assessing the government’s performance because they are “fans” who are more interested in the success of their political “team” than in the search for truth. The reason this problem persists is that the costs of acquiring information and processing it in good faith are too high  compared to the benefits one might get from doing so, given that it does not matter whether one’s vote is well-informed or not: it still counts for virtually nothing. In a word, ignorance is rational. By contrast, people are remarkably able and willing to acquire information when they are considering a decision that would assuredly have an impact on them, such as where to live or what to buy. The most effective solution to the misgovernment caused by the pervasive and persistent ignorance of voters is, therefore, to devolve decision-making powers from large, centralized governments to more local ones among which people are more easily able to choose by “voting with their feet” and from all governments to the market.

This argument, which, to be clear, I find very compelling (though I should perhaps note that ― like prof. Somin, I take it ― I would support the prescriptions of smaller and more decentralized government even quite apart from the existence of political ignorance) has a couple of important consequences for debates about judicial review of legislation. For one thing, it strengthens the case for judicial review.  Enforcing limits on the power of government, as judicial review does, and perhaps especially enforcing limits set up by federal constitutions, insofar as they circumscribe the powers of centralized governments, helps preserve foot-voting and market-choice opportunities. It can also help limit the number of issues to which the government attends and thus the amount of information that voters need to acquire and process in order to keep tabs on it. For another, persistent and pervasive political ignorance undermines the case against judicial review. This case rests on the courts’ lack of democratic legitimacy vis-à-vis the legislatures whose work they check. But if voters are largely ignorant about what it is that the legislatures are up to anyway ― and prof. Somin observers that “[f]or most legislation, the vast majority of voters will not have heard of its existence, much less have an informed opinion on its merits” (184) ― then legislation’s claim to democratic legitimacy is weak if not non-existent, except in unusual circumstances.

This too is largely compelling. Even the Waldronian argument about the legitimacy of legislatures arising out of the (roughly) equal say that elections (if run fairly) give to voters in public affairs loses much of its bite if we think, as prof. Somin shows we ought to, that the voters largely do not know enough to choose their representatives reasonably well. The equality argument remains, of course, but it is a hollow one. Still, I think that prof. Somin’s arguments raise a number of questions that his book does not answer ― which is not to say that they are unanswerable.

One such question is what can be done to ensure that judicial review actually works to counteract, rather than worsen, the problem of political ignorance. Judicial review can, after all, serve to expand rather than limit the powers that the government is called upon to exercise, or to obscure the exercise of existing powers instead of making it more transparent. It will do so if courts are merrily enforcing “social and economic rights”, requiring governments to create or expand social programmes instead of leaving issues to be dealt with in the markets. It will also do so if courts blur the lines between federal and state or provincial authority, making it more difficult for citizens to know what government is responsible for what law or social programme, or give private unaccountable actors, such as civil servants’ unions, power to influence public affairs.

The Supreme Court of Canada has already done some of these things, and its parasiti ― who are, in reality, just one species of the rent-seeking genus that afflicts all specialized expert agencies, as prof. Somin notes in his discussion of delegation of power to experts ― are urging it do more. Should these suggestions be taken up, the problems of ignorance resulting from the vast scope of and difficulty of monitoring government will likely become that much worse. (This does not conclusively prove, of course, that none of these things ought to be done; perhaps there are reasons why increased ignorance is a price worth paying. The point is simply that the ignorance-related costs must be taken into account.) The answer, presumably, is some combination of “write a constitutional text that does not lend itself to ignorance-promoting interpretations” and “appoint judges who will not engage in such interpretations when not required to do so by the text”, but I wonder whether prof. Somin might suggest something more specific.

More specific solutions would be particularly important because relying on judicial appointments is really not much of a solution at all. Prof. Somin notes, elsewhere in the book, that the American public pays little attention to presidents’ performance in choosing judges, even though this is one area where (unlike in many others, such as economic policy, on which presidents are often judged) a president wields decisive influence. The problem is, if anything, much worse in Canada. Appointments to the Supreme Court attract attention only insofar as they conform to or depart from conventions about representation, whether established (i.e. regional/provincial representation) or emerging (demographic representation) and expectations about bilingualism. Other judicial appointments pass entirely unnoticed. The voters are not going to put any sort of pressure on Canadian governments to appoint judges who could enforce constitutional limits on the power of government, or otherwise contribute to counteracting the ill effects of political ignorance.

This makes me wonder whether much of anything can be done about this problem. Prof. Somin addresses some of the proposals that have been made to increase the voters’ levels of political knowledge generally, and concludes that none are likely to succeed to any substantial degree. He does not, however, consider the feasability of improving voter knowledge about specific issues, rather than as a general matter. Can something be done to make the electorate more aware of the importance of the judiciary and of the elected officials’ role in shaping it? The Federalist Society might have been somewhat successful at this in the United States, though I am not sure if even its determined efforts over the last several decades have changed popular opinion, as opposed to that of a certain section of relatively well-informed (and intensely partisan!) elites.

Last but not least, as prof. Somin also notes in his discussion of experts, ignorance is not only a problem for hoi polloi. “Expert regulators face serious knowledge problems themselves”, (215) he points out. Prof. Somin has in mind the experts’ lack of knowledge of people’s preferences and local circumstances, but another type of knowledge problem from which many experts, and perhaps especially the courts, suffer is the narrow scope of their expertise. Judges are (one hopes) experts in legal analysis, but they are as ignorant as the next person when it comes to all manner of facts and scientific theories that are relevant to policy-making ― including that which occurs in the course of policy-making. When adjudicating a trade union’s claim that its alleged right to extract above-market wages for its members is an instance of the freedom of association, it would help judges to have a basic understanding of labour economics. But they do not. When adjudicating claims about the police’s power of search incident to arrest, it might help judges not to think that crime rates are going up when they are in fact going to do. But they do. In many ways, judges are every bit as ignorant as the rest of us. So are lawyers, who thus cannot enlighten the judges before whom they litigate. Here again, I wonder if prof. Somin has any suggestions about relieving ignorance.

Prof. Somin’s discussion of expert decision-makers concludes that, while delegating decision-making powers to them may help counter some of the effects of the voters’ ignorance, it is no panacea. Although this discussion only mentions courts in passing, the conclusion, I am afraid, is applicable to them. Prof. Somin has put his finger on a very significant problem and it might be, if anything, even more intractable than his (already rather gloomy) account suggests. Still, if we are to do anything about, we must start by understanding what the problem is, and for helping us do so, we owe prof. Somin greatly.

Constraint and Candour

The case for a constrained judiciary ― but also candour about adjudication

At the website of Advocates for the Rule of Law (ARL), Asher Honickman has posted a reply to my post here on “How to Do Constitutional Adjudication” (which was itself a reply to some of his arguments in a previous ARL essay making “The Case for a Constrained Approach to Section 7” of the Canadian Charter of Rights and Freedoms). I would like to respond, focusing mostly on what I have been referring to as “democratic process failures” and their relevance to constitutional adjudication. I think that Mr. Honickman mis-characterizes my arguments on this point, but perhaps that’s because they were not clear enough to begin with.

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First, though, a note on what is, as I know from conversation, a persistent but perhaps unimportant disagreement between Mr. Honickman and me. I wrote that

law generally, and constitutional law in particular, contains an ineradicable moral and ideological element, so that there is nothing wrong with perceiving judges as being ― in part ― moral agents and political actors. [Moreover], the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Mr. Honickman responds by conceding that “[t]he judge can no more divorce herself from her subjective experiences, beliefs and values than can the historian, the economist, or the physician,” but arguing that “it does not follow that judges should embrace their fallibility.” He wants judges to be “constrained by a ‘rule of law’ culture” that will limit, if not altogether remove, the negative consequences of the judges’ inability to be entirely objective.

I have no quarrel with this, but think this misses the point I was trying to make, which is that moral values and ideology are not just something that judges bring into the law because they are fallible, but something it is built into the law ― perhaps into the very concept of law. Mr. Honickman’s example is a telling one: history, economics, and medicine are supposed to be amoral. They describe the world and suggest ways to change it, but whatever values their practitioners bring to their craft are external to the disciplines themselves. Law is different. It has, Lon Fuller argued, an “internal morality.” It is, Jeremy Waldron says, inherently protective of human dignity. The Rule of Law, which Mr. Honickman wants judges to uphold, is itself a moral concept. (This view is not universal ― Joseph Raz, in particular, famously challenged it. But I find it quite persuasive.)

What I meant, then, when I wrote that law is necessarily moral and ideological was not only, and not so much, that judges will inevitably fail to avoid bringing their subjective values into their work ― though they will, and I agree with Mr. Honickman that this is regrettable. What I meant is that even when judges perform their work to perfection and only apply such principles as can be readily inferred from the constitutional text (the Rule of Law, federalism, and democracy, say) and many of the text’s explicit guarantees (I mentioned freedom of religion, equality, and protection against unreasonable search and seizure), they are already engaged in a moral and ideological endeavour. The proper response to the unreconstructed Marxist or the social justice warrior who dismisses the Rule of Law and the rest of it as bourgeois ideology is not to say that it’s not, but to admit that it is, and that you will keep sticking to that ideology because it helps prevent Gulags instead of building them. That said, in practice, little turns on the difference between these two responses.

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Coming back to the issue of democratic process failures, my contention was not ― as it seems to me that Mr. Honickman took it to be ― that these provide a self-standing ground for judicial intervention, regardless of constitutional text or doctrine. The text, in particular, remains the overarching limit on judicial power, the law to which this power is subordinate. Doctrine is a more complicated case, and perhaps the ground of some disagreement between Mr. Honickman and me, because I would favour a somewhat less stringent approach to stare decisis than he might prefer. Still, I share Mr. Honickman’s belief in the importance of constraint.

My reference to democratic process failures ― as well as that to pervasive political ignorance ― was specifically in response to Mr. Honickman’s insistence that the legislatures’ ability to resolve moral issues means that judges do not need to do so. Legislatures, I argued, will often fail to address moral issues, or will address them in ways that have little to do with the voters’ preferences or interests, and much to do with those of the legislators. The point is not that courts have a roving commission to find out and correct cases when this occurs, but that they should not hesitate to make moral judgments ― when authorized or required to do so by the constitutional text (and doctrine) ― under the pretext that the legislatures will take care of this.

I originally spoke of democratic process failure in my comment on Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, where the Supreme Court held that a blanket prohibition on medically-assisted suicide was inconsistent with section 7 of the Charter. Although there were problems with the way the Supreme Court articulated that decision, its interpretation of section 7 was at least plausible ― and in my view correct ― in light of the constitutional text and the doctrine as it had developed in the years since the Court first answered that question in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. The point of my discussion of democratic process failure was to address concerns about the “counter-majoritarian difficulty” said to be inherent in judicial review. Because of such failures, it is not the case that judicial review is always counter-majoritarian (though of course it often is).

This example shows that any court empowered to review the constitutionality of legislation is ipso facto “empowered to correct ‘democratic process failures,'” ― and thus that Mr. Honickman need not worry that such correction “will necessarily be ‘instrumentalist,’ finding and affirming rights that are not supported by the Charter itself, but which, in the judges’ view, make for good social policy.” To repeat, the Charter‘s provisions remain the source of the court’s authority and at the same time the constraint on this authority, while democratic process failure is the reason for which that authority is invoked. Accordingly, when faced with what it thinks is a democratic process failure, the Court’s role is not to figure out the preferences of a majority ― which, as Mr. Honickman correctly points out, may not be determinate ― but simply to do the usual judicial task and invalidate the impugned statute or government decision if it is contrary to the constitution. At most, the presence of a failure obviates the case, if any, for judicial deference to the other branches of government.

I agree with Mr. Honickman that the questions that I raised about democratic process failures ― most basically, how do we know, and how can a court know, that one has occurred ― are difficult to answer, though it’s not clear to me that there can be “no objective standard” to help in the enterprise. But this difficulty does not undermine the case for judicial intervention, because, and so long as, that intervention is justified on another ground ― namely that of inconsistency between the government’s action and the constitution. Whether a democratic process failure has occurred might influence the deference that the court ought to show the government’s decision-making process, but the basic propriety of judicial intervention does not turn on the answer to this question.

Ultimately, Mr. Honickman and I might be disagreeing less about the judicial role than about democratic theory. Where I see “persistent inability of the democratic process to produce laws that majorities would agree with and find desirable,” Mr. Honickman sees “legislatures [that] do not base their decisions on the polls at any given time and look instead to the national interest.” The fact, which he acknowledges, that a passionate (or, I would add, strongly self-interested) and well-organized minority can prevail over the majority is not a bad thing in his view ― and, I suppose, fully consistent with the national interest. Even if democracy malfunctions, we should recall that it is “the worst system except for all the others” and correct its “imperfections … from within.” To me, this sounds like saying that because a free market is better than any alternative, we should not bother trying to correct market failures and hope that the market will correct itself, or that because government is necessary, our only response to government failure should be to improve regulatory mechanisms, instead of privatizing and deregulating. A few people accept the former argument, and many the latter, but to me, both seem fallacious. Democracy is indeed better than the alternatives, but if its shortcomings can be mitigated by means external to its normal processes ― such as judicial review ― then so much the better.

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I share Mr. Honickman’s concerns about judges exercising their power without the constraints of constitutional text and legal doctrine. However, I do not think that the proper response to these concerns is to say that judges ought to be entirely non-ideological, and that they should leave matters of moral judgment to the legislative process, however flawed that process is. Like Mr. Honickman, I believe that judges should be enforcing constitutional rules, but I do not mind acknowledging the moral and ideological dimensions of many of these rules as well as the shortcomings of democracy, which judicial review can help remedy.