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).

* * *

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.

* * *

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.

* * *

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.

* * *

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.

How To Do Constitutional Adjudication

Some thoughts on Asher Honickman’s take on the judicial role

As I mentioned in my previous post, I would like to respond to a number of points that Asher Honickman makes in a very interesting ― albeit, in my view, misguided ― essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law. In the last post, I responded to Mr. Honickman’s critique of the Supreme Court’s jurisprudence relating to section 7 of the Charter. Here, I want to consider his approach to the role of courts more generally. Mr. Honickman, as I previously explained,

tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake.

I have considerable sympathy for the attempt, but I am not sure that it is successful. At a very general level, I have no quarrel at all with waht Mr. Honickman describes as “the common-sense proposition that the Constitution should be interpreted based on what it actually says, not what some might wish it would say.” The devil, as usual, is in the details.

One issue Mr. Honickman raises is the relaxation of the stare decisis principle in constitutional cases, whereby the Supreme Court is willing, as it explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, not only to reconsider its own precedents, but also to allow lower courts to do so in response to changes in the legal background or the “social, political and economic assumptions underlying” these precedents. This is indeed a valid concern. As Lon Fuller and other Rule of Law theorists point out, the law must be stable, because if it changes too easily or too often, people will understandably no longer pay much heed to it, and it will cease playing its role of guiding action. Yet against that, we must also consider the possibility that legal rules will cease commanding respect if they are understood to be based on legal, moral, or empirical foundations weak from the moment they were laid, or eroded over time. I am not quite sure what the right solution to this conundrum is. I am a bit skeptical, for instance, of the Supreme Court’s choice to allow lower courts to actually depart from its precedents, as opposed to merely suggesting that it do so on appeal. But there is certainly more to be said for allowing departures from stare decisis than Mr. Honickman allows.

Mr. Honickman is also concerned that judges venturing into the realm of moral issues and “social policy” will, on the one hand, make them appear to be political actors and lead to a politicization of judicial appointments, and on the other, deter legislators “from tackling politically sensitive issues, preferring instead to punt them to the unelected and unaccountable judiciary.” The flippant answer to this is that this particular ship has sailed a long time ago. The less flippant one is 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. Mr. Honickman wishes to remove morality, policy, and politics from section 7 jurisprudence, but even if he were successful in that, I doubt that he could eliminate them from, say, decisions about state neutrality and accommodation of religion under section 2(a) of the Charter, or reasonableness of police searches under section 8, or equality under section 15. For better and for worse, the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Besides, as I have argued here, we know that even when it comes to non-justiciable rules, politicians can fail to take the constitution into account at all. Judicial circumspection in the interpretation of justiciable constitutional provisions would not help politicians grow a backbone and take constitutional rights and principles seriously. Mr. Honickman is right that legislatures have more resources to deal with issues of policy, and are more representative of the popular opinion on matters of morality, than the courts. Yet all too often they fail to make use of this advantage. What I have referred to here as “democratic process failures” ― cases of “persistent inability of that process to produce laws that majorities would agree with and find desirable” ― occur with some regularity in democratic polities, while political ignorance, which can result in elected officials ignoring issues altogether or addressing them in ways that serve their own interests rather than the electorate’s is pervasive. Arguments to the effect that courts should act this way or that because, if they do so, politicians will behave better reflect hope rather than experience.

None of this amounts to a suggestion that judges should approach constitutional cases in any particular way. As I say above, I share Mr. Honickman’s concerns about judicial subjectivity and about an inflationary interpretation of constitutional texts that divorces constitutional law from the rules that actually were enacted through the democratic process. Judges are not angels. They are human beings, exercising power over other human beings (whether in their individual or collective capacities), and this power should be limited and subject to law like any other. This law should indeed be stable ― but it should also not be divorced from reality, and how to balance these two constraints is a very difficult question. Morevoer, if judges are to interpret the constitution in accordance with what actually says and not what we wish it to say, as Mr. Honickman rightly proposes, then they should not shy away from making the moral judgments constitutional text requires. And while we err dangerously in regarding judges as angels, we err too in not noticing the less-than-angelic behaviour, or indolence, of our legislators. Our approach to judicial review of legislation, whatever it is, should account for these realities.

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.

Why’d You Do This?

Giving Parliament more time on assisted suicide, the Supreme Court fails to explain itself

On Friday, the Supreme Court issued its ruling on the federal government’s request for an extension of the suspension of the declaration of unconstitutionality of the Criminal Code’s provisions that have the effect of making assisted suicide unlawful in all circumstances. The ruling, Carter v. Canada (Attorney General), 2016 SCC 4 (which I suppose will be known as Carter II, to distinguish it from the merits decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331) extends the suspension for another four months ― instead of the six requested by the government. Emmett Macfarlane has a scathing op-ed in the Globe and Mail, arguing, convincingly in my view, that the Supreme Court’s decision is unprincipled and illogical. I have nothing much to add to prof. Macfarlane’s comments regarding the substance of the decision. I do, however, want to say something about procedure and form.

The Supreme Court’s decision-making process was hurried. The oral argument took place last Monday, and the decision came out on the Friday afternoon. Why the rush? The original suspension of the declaration of unconstitutionality had three more weeks to run. It is nice of the Court not to wait until the last possible moment ― but it have to issue its decision with less than an hour’s notice on a Friday afternoon? I won’t speculate as to the reasons why the Court did this, but whole business looks a bit shambolic.

As for form, my complaint is that the Supreme Court provides no justification for its conclusions. The Court agrees, unanimously, to extend the suspension of the declaration of unconstitutionality, but the sum total of its explanation is this:

In this case, the length of the interruption of work on a legislative response to the Court’s decision due to a federal election constitutes [an extraordinary] circumstance. Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months. [2]

The invocation of an election as effectively a time-stopper for calculating the delay Parliament has to respond to the Court’s ruling is unprecedented ― and unexplained. Why did the Court never mention the matter earlier? And how much sense does it make to think that a day on which Parliament was not able to sit to consider a response to the Court’s ruling must necessarily be recouped later on? After all, it’s not as if Parliament had spent every day on which it would have been able to do so actually doing it!

Beyond that, the Court simply ignored the issues that were debated at oral argument (about which I wrote here). There was, for instance, a good deal of discussion about whether a comprehensive legislative framework dealing with assisted suicide is necessary to avoid creating paralyzing uncertainty for the medical profession and other stakeholders. The Court says nothing at all about this in its opinion. Nor does the Court even mention another issue that got a good deal of attention on Monday ― the role of the provinces in devising the regulatory framework for assisted suicide. And the Court keeps ignoring broader issues about when, if ever, suspended declarations of unconstitutionality are appropriate, and how much explanation should be given when they are granted. (Though if this ruling is anything to go by, the Court still believes that the answer to the latter questions is “none whatsoever.”)

When I commented about the oral argument, I expressed the hope that the Supreme Court’s “ruling, whatever its conclusion, [would be] mindful of the issues that it will inevitably raise and that go well beyond just this case.” My hope was not fulfilled. Prof. Macfarlane says that the Supreme Court “needs to reconsider its use of suspended declarations.” I have in the past been more willing than some others to defend the Court’s use of this remedial device. But if the Supreme Court cannot exercise this power it has granted itself in the way any judicial power ought to be exercised ― that is, in a transparent and rule-bound fashion ― then it should renounce it altogether.

Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

Last week, at the Canadian Constitution Foundation’s Law and Freedom 2016 conference, Justice David Stratas of the Federal Court of Appeal delivered a fascinating lecture called “The Decline of Legal Doctrine.” I highly recommend it. I won’t summarize it beyond saying that Justice Stratas’ thesis is that judges, lawyers, and academics are all guilty of a lack of interest in legal doctrine and tend to see the law as largely result oriented, which diminishes the legitimacy of judicial decision-making and risks leaving us at the mercy of dangerous prevailing opinions should crisis strike. There is simply too much there, and it is too important, for a summary to be useful. I will share a few reflections of my own below. Here it is.

Before I get to my comments, I want to say that I am, of course, very flattered at being mentioned as one of the exceptions to the general lack of interest in legal doctrine. Indeed, I am flattered that Justice Stratas should read my blog at all. I hope, however, that my gratitude for Justice Stratas’ kind words does not bias my views of his lecture.

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Here they are, in a somewhat disjointed form. With one exception, they concern things that Justice Stratas did not say, and which I would love to hear him say more, at some future point, rather than things he did say with which I disagree. They are, in other words, intended not as criticisms, but as questions.

1. Let me start with the word “doctrine” itself. Maybe it’s just me, but I find it a slippery one ― it’s one of those words that lawyers love to use that can mean different things in different contexts, perhaps depending on whether we use them with a definite or an indefinite article, or no article at all, while assuming that everyone knows what we are talking about. A non-lawyer in the audience asked Justice Stratas what the difference between legal “theory” and legal “doctrine” was, but only got a definition of “theory” in response. As best I can though, legal doctrine (no article) is the set of rules and principles that can be derived or inferred from judicial decisions.

Here’s an interesting twist though: later in the Q&A, Justice Stratas spoke of the various types of judges and said that “doctrinal” judges are those who “understand the rules but want to know more about how to use them and these are perhaps reformist people that might want to tweak or modify the rules.” I think that this connection, in practice if not as a matter of definition, between an interest in the rules and their underlying principles on the one hand, and an interest in tweaking them on the other, might be, if not slightly paradoxical, then at least in tension with the need for doctrinal stability of which Justice Stratas spoke so passionately. Does doctrine bear the seeds of its own destruction?

2. Justice Stratas argues that we need stable, coherent, legal doctrine to which lawyers and judges alike are committed because we might not always live in “benign times,” and in a moment of crisis we will be better off if judges decide controversial cases on the basis of stable legal doctrine rather than of what they feel is right or fair in those ominous circumstances. Crises rarely make for clear, even-handed thinking. Legal doctrine is, in other words, a form of pre-commitment that will save us from the siren calls of rights-crushing emergency.

I would like to think that this is true. But is it? Can we think of situations where doctrine has played such a role? And indeed, why do we think that a commitment to legality will be less likely to falter in a time of crisis than a commitment to justice? That, after all, is the underlying premise of the claim that doctrine will save us even if the judges’ sense of right and wrong is swayed by momentary considerations. Again, I would like this to be true, but I wonder if we have reasons to think it is, other than our desire for it to be.

3. Justice Stratas argued that we must devote ourselves to stabilizing legal doctrine, to settling public law doctrine in a comprehensive way ― and that we must do it right away. Tomorrow will be too late. At present, public law is too unsettled ― precedents can be reversed with little apparent explanation, or simply ignored without being reversed. (An aside: one area which Justice Stratas specifically mentioned as illustrating this trend is the courts’ relationship to empirical evidence, and the rule ― which he tied to the Supreme Court’s recent assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, but which actually goes a little further back, to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ― that appellate courts should defer to a trial judge’s findings with respect to such evidence. Some of the points he made in criticizing this rule seem to echo ideas I have expressed on this blog, especially here, so I was very glad to learn that Justice Stratas shares these concerns.)

Here’s a question though. If we accept, as I think we should, the mission that Justice Stratas wants us to undertake, what is our departure point? Do we simply take the current state of the law as a given and stop messing with it, on the assumption that it is more important that things be settled than that they be settled right? Or should we, in order to build on solid foundations, go back to first principles to some extent ― at the risk of reversing some more precedents? Are there other potential pitfalls to deciding from first principles? Justice Stratas praised the Supreme Court of the 1980s for its “painstaking,” “scholarly,” and “balanced” approach to Charter cases, in which it had to build doctrine from the ground up ― but I wonder if that is not idealizing things somewhat.

4. Justice Stratas argues that a doctrine-focused approach to judicial decision-making, even in cases of first impression or those involving conflicting lines of authority, can be free from politics, and that the judges’ personal views matter less than people tend to suppose. That is true, as I’ve often said, if we understand politics in a partisan sense or, as Justice Stratas might have meant it, as synonymous with results-oriented reasoning. However, as I’ve also often said, I think that politics, in a much broader sense of ideas about how the state and society as a whole should be organized does matter to judicial decision-making. Justice Stratas speaks of developing legal doctrines in ways that “make sense” ― but it seems to me that legal doctrines make sense in light, among other things, of certain values that they reflect or serve, and that these values can be described as political, in a broad sense.

This is perhaps the only point on which I disagree with Justice Stratas. Though it might be a disagreement about words more than about the underlying realities, I think that the words matter. I worry that complete denials of the political aspects of adjudication come across as overdone, and as a result do not actually help the courts establish their legitimacy.

5. That said, Justice Stratas was right to criticize those ― whether academics, lawyers, students, or journalists ― who think of judicial decisions purely in terms of results and their political implications, real or supposed. (He compared such commentary to “essentially an open-line radio-show comment put in an educated way using highfalutin legal language.”) He was also right to lament judicial decisions that leave room for such interpretations, in particular through their failure to adequately explain, in terms of legal doctrine, the outcomes that they reach.

I wonder, though, what can be done about this very real problem. I’m afraid that judges focusing on the doctrine and explaining their decisions will not be enough. For instance, I don’t think that the Supreme Court’s recent jurisprudence in the area of language rights is half bad, in terms of engaging with doctrinal issues. Yet in December’s Policy Options, a couple of political scientists published a tendentious take-down of this jurisprudence looking at it entirely through the lens of results (which happened to go against language-rights claimants) and, as I have argued in a Policy Options blog post, blithely ignoring the law in the process. In other words, people are liable to misrepresent the courts’ work as results-oriented even when any fair reading of the decisions in question shows that it is not. Dan Kahan et al. wrote about this problem in a fascinating study (about which I blogged for the National Magazine) that found that while legal reasoning tends to be based on legal, rather than (narrowly) political considerations, “our system of justice lacks reliable practices for communicating courts’ neutral resolution of divisive matters.” Lawyers should, no doubt, try to push back against tendentious and uninformed criticisms of the judiciary (though as I have also argued they should do so without misrepresenting all criticism as tendentious or as endangering the Rule of Law!). But is that enough?

* * *

Well, this is more than enough for me. Again, I express my gratitude to Justice Stratas for a fascinating lecture and for his kind words, and I hope that he comes back to this topic in the future. The above questions and quibble notwithstanding, Justice Stratas is right that we need to take legal doctrine seriously, and we owe him for reminding us of this.