The Wrongs of Rights?

The New York Review of Books has an interesting piece by David Cole on Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. The thesis of the book (which I haven’t read, so I’m relying on prof. Cole’s summary) is that litigation in pursuit of the recognition of marriage equality has done more harm than good, if not to that specific cause then to gay rights or civil liberties more generally. Indeed, prof. Klarman claims that that’s what usually happens when courts oppose public opinion in defence of the rights of unpopular minorities. Unpopular judicial decisions provoke backlash, and the price of a sometimes inconclusive victory in the short term is decades of hostile legislation. Prof. Cole argues that this isn’t necessarily so; what prof. Klarman characterizes as backlash would have happened regardless of the courts’ interventions, but without those things would have been even worse; and in the case of same-sex marriage and gay rights more generally, courts have done a lot of good, not least by forcing people to confront issues which would otherwise have remained marginal at best. This is all very interesting, though I don’t know enough to tell who is right and to what extent.

What I would like to comment on is prof. Cole’s more general argument about judicial review and its role in advancing civil liberties. “The very reason,” he writes

we protect certain rights through constitutions that resist revision by majorities is that some rights by their nature are unlikely to be realized through the ordinary political process—particularly the rights of minority groups, unpopular dissidents, or the criminally accused. If we could rely on the ordinary political process to protect such rights, there would be no need for protecting them through judicial enforcement of constitutional principles. But history shows that we cannot.

Precisely because constitutions are needed to safeguard unpopular rights, protection of those rights is likely to spark a popular reaction.

Constitutional protections can mean, as in the case of marriage equality, that “the legal argument [is] very strong” despite the hostility of public opinion. And of course the courts’ job is to look to the law, not to opinion polls. So if their decisions provoke backlash, “we might well take that as evidence that they are actually performing the function that we expect from them.”

I think this is much too optimistic, or maybe too simplistic. Courts aren’t independent of public opinion in the way prof. Cole seems to suggest. Courts are certainly not supposed to look at opinion polls, and I’m not suggesting that they do, though some judges at least are clever politicians in their own right. But clever politicians or not, and however good lawyers, their legal ideas and arguments don’t come out of thin air. Their ideas about civil rights are only as advanced―and sometimes much, much less advanced―than those of their time.

The famous case of Griswold v. Connecticut, 381 U.S. 479 (1965), which struck down a state law prohibiting the use or provision of contraceptives or information about contraceptives, even to married couples, is an apt illustration. Eventually, it was read as standing for a general principle of sexual privacy and relied on in opinions striking down prohibitions on abortion and gay sex. If the Supreme Court of the United States rules in favour of marriage equality―this year or at some point in the future―that will be, and will be said to be, the result of a process that started in Griswold. Yet that opinion did not necessarily promise so very much. The majority went to great pains to argue that its holding applied to married couples, no one else. Justice Goldberg’s concurrence refers to “statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication” and endorses statutes criminalizing homosexuality (498). Now admittedly I cannot tell for sure, but I suspect that the idea that such statutes would soon enough be considered, beyond doubt, unconstitutional, would have been surprising to the Griswold court, perhaps astonishing and distressing.

At any given time courts can only do so much for civil liberties. The beauty of judicial review isn’t that it can accelerate progress in this area by leaps and bounds over popular opinion. It might, however, do some useful things. One is to bypass legislatures which aren’t even prepared, for whatever reason, to go as far as the opinion of their constituents. Another, as prof. Cole points out, is to bring some issues to the public’s attention. And a third, which Griswold’s progeny (contraceptives, I suppose, don’t always work as intended!) demonstrates, is that judicial decisions, probably to a greater extent than legislation, have to stand and can be interpreted as standing for certain principles, which can then be extended beyond the expectations of their authors, and used to advance rights and liberties further―when judges, and perhaps the public, can accept the next step.

That’s Right

A couple of blog posts published over the holidays seem to confirm that two Canadian appellate decisions about which I posted recently are right―not necessarily as a matter of law, about which the posts don’t tell us much―but at least as a matter of policy. I thought they’re worth pointing out.


First, at Concurring Opinions, Gaia Bernstein writes about the unintended consequences of the prohibitions on anonymous sperm or egg donations, which the BC Court of Appeal, in a decision on which I commented hererecently refused to elevate to the rank of a constitutional requirement. According to Prof. Bernstein, her research shows that

three jurisdictions, which prohibited donor gamete anonymity[,] Sweden, Victoria (an Australian state) and the United Kingdom …  share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

Her more recent research looks at “the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy.” Because of the peculiarities of the legal regime surrounding surrogacy in the United States, surrogacy is more dependent on donor eggs there than in many other countries. So “[t]he adoption of prohibitions on anonymity in the United States could destabilize the practice of surrogacy in a way that did not occur in other countries that adopted these prohibitions.” (Prof. Bernstein explains why―there’s no point in my reproducing her argument here.)

Now I don’t know whether the legal regime for surrogacy is in Canada, or rather in the various Canadian provinces (I seem to remember from discussions with friends who do know that there might be differences, especially between common law provinces and Québec) is like that of the United States. But what I can tell is that it is another variable that ought to be taken into account when crafting the rules on donor anonymity, and that the process of judicial review, during which such “side” issues are often, perhaps inevitably, obscured. So it is for the better that the issue of anonymity is left to the legislatures. As I wrote in my earlier post, I also think that the law does not require the contrary conclusion.


The second post is by Jonathan Hafetz at Balkinization. Prof. Hafetz writes about a case, The People v. Morales, in which the New York Court of Appeals reversed the convictions for terrorism of members of a gang responsible for a shooting in which a child was killed and another bystander suffered horrible injuries. New York’s law defined terrorism as the commission of one of a range of offences with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” On the face of it, this might include gang violence, but that would be a very broad interpretation and the Court rejected it. As prof. Hafetz writes,

While [treating gang violence as terrorism] might enhance prosecutorial power, it could undermine other law enforcement efforts to reduce gang activity, which often involve a combination of traditional criminal sanctions and gang-prevention programs … At the same time, treating gang violence as terrorism would alter collective understandings of the type of acts—the deliberate and ideologically motivated targeting of the civilian population—viewed as terrorism, potentially diluting the exceptional stigma attached to those acts and undermining public support for anti-terrorism efforts generally.

This suggests that it is well that the Supreme Court of Canada, in its recent decision in R. v. Khawaja, 2012 SCC 69, about which I wrote here, refused to declare unconstitutional the “motive clause” in the Criminal Code’s definition of terrorism, which provides that in order to be considered terrorism, an “act or omission” must be “committed in whole or in part for a political, religious or ideological purpose, objective or cause.” While Mr. Khawaja argued that the motive clause would in effect give excessive powers of ideological surveillance to law enforcement agencies, what it really does is to limit their power by making it impossible to do what the New York prosecutors tried to do and treat “ordinary” criminal violence, however serious, as terrorism. A case such as Morales would simply not have been possible under the Criminal Code―thanks to the “motive clause.” Good thing that the Supreme Court let it stand.

The Faint of Heart

Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to prohibit this punishment. But it occurred to me, when I re-watched Justice Scalia’s impassioned and entertaining defence of originalism in a debate with then-Justice Binnie at a conference a few years ago, that he, and originalists generally, are fainthearted in another, much broader way.

Justice Scalia’s argument for originalism goes something like this. Even if there are right and wrong answers to questions about morality of the sort that arise in judicial review of legislation, questions about the permissibility of abortion or the death penalty, for example, or the extent of the freedom of speech, or of the right to privacy (and he thinks that there are indeed right and wrong answers to such questions, dictated by natural law), we have no satisfactory way of demonstrating that any given answer to such a question is right. Therefore, we cannot pretend that the answers that we give to such questions aren’t political, so that impartial experts can figure them out. There are no “moral experts” who can do that job. In particular, we have no reason to believe that judges are endowed with moral expertise greater than that of “the fabled Joe Sixpack.” They disguise their moral reasoning behind legal forms, but the law doesn’t really give answers to these fraught questions. The only way we have to resolve them is by figuring out what the people think about them, through the political process. So when the people have, through the political process of ratifying a constitution, resolved the question of what rights should be protected against legislative abridgement, judges, entrusted with the enforcement of that protection, should stick to what the people have resolved and go always so far but never further. Because they are not moral experts, judges cannot revise―either upwards or downwards―the protections that the people have granted, which are the people’s own answers to moral questions facing the community.

The first part of this argument is very familiar indeed―from the work of Jeremy Waldron. In “The Core of the Case against Judicial Review,” prof. Waldron too argues that we have no agreed way to determine which answers to difficult questions of political morality are right and which are wrong; that judges, in particular, possess no expertise in these matters; that they do more harm than good in trying or pretending to deal with these questions as if they were legal rather than political; and that rather than trust the judges with moral reasoning, we should let the people, or better their elected representatives, decide.

Prof. Waldron and Justice Scalia part ways in the conclusions they draw from this. Whereas Justice Scalia accepts judicial review of legislation as a given and argues that the consequences of the judges’ lack of moral expertise lie in the realm of interpretive methodology, prof. Waldron takes the position that judicial review itself is the problem and should be abandoned. Since judges know no better than the people what “the truth about rights” is, they have no business second-guessing the people’s conclusions about this matter―not just the conclusions the people reached once upon a time, when they ratified a constitution, but at any given time, whenever they enact a piece of legislation.

I think that, as between these two views, prof. Waldron’s is the more persuasive one. If there is no way to demonstrate that one has “the truth about rights” in one’s possession, then what justifies the people in deciding that they are in fact possessed of that truth and making it impossible for later generations to revise it by majority vote? If we can only answer moral questions through the political process, how is it just to then remove the answers we give to these questions from that process?

And so, I have the impression that Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way―fainthearted Waldronians.

All this is not to say that the originalist/Waldronian view of the nature of judicial review―the view that it requires answering distinctly moral questions on which the law doesn’t have special insight―is correct. But it is at least plausible, and should not be dismissed lightly. All the more important, then, to be clear about its implications.

What You Don’t Know

The BC Court of Appeal delivered an important decision this week, holding that the Charter does not protect the right of persons conceived with donor sperm (or egg) to “know their past”―that is, to know the identity and medical and social history of the donors whose biological offspring they are. The decision is Pratten v. British Columbia (Attorney General), 2012 BCCA 480. The plaintiff argued that legislation which allowed people who had been adopted to obtain this information, without making similar provision for “donor offspring” such as the plaintiff, was a violation of her equality rights protected by s. 15(1) of the Charter. She also argued that the “right to know one’s past” was protected by s. 7 of the Charter. The Court of Appeal rejected both these claims.

The ruling has been criticized: over at The Court, Nikita Rathwell blames the s. 7 holding on the courts’ “usual timidity,” while writing in the Globe and Mail, Juliet Guichon, a professor of medicine at the University of Calgary, calls it “an ignoble step backward.” But as a matter of law, I think it is exactly right; indeed, this case demonstrates the limitations of judicial review as a means of changing social policy.

The trial judge found that donor offspring face a number of problems due to not knowing the medical history of their biological parents. It is more difficult and takes longer to diagnose medical conditions from which they suffer. And the gaps in their identity and history cause them anxiety, frustration, and other psychological difficulties. They also “commonly, and legitimately, fear inadvertent consanguinity. ” (par. 17). Their situation is essentially similar to that of adoptees. These findings were not challenged on appeal. The government’s argument was rather that they were not constitutionally problematic.

The first issue is that of s. 15 of the Charter. S. 15, on the one hand, prohibits discrimination on the basis of a number grounds, such as race, age, gender, etc., and other similar ones (subs. 15(1)).  On the other, it explicitly authorizes “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups” (subs. 15(2)). And as the Supreme Court held in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at par. 41,  subs. 15(2) means that

[a] program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.

The parties agreed, as did the Court, at least for the sake of argument, that “manner of conception” of an individual is one of those similar and thus protected grounds. But while the plaintiff contended that allowing adoptees but not donor offspring to access information about their biological parents amounted to discrimination on the basis of their manner of conception, the government argued that the provisions it had made for adoptees were designed to remedy the disadvantages of adoptees, who, as the trial judge found, “ha[d] historically, if not currently, been subject to negative social characterization” (par. 38). The Court accepted this claim; in its view, “[t]he purpose of the impugned provisions is to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents” (par. 37). Under the Kapp test, this is enough to save the law from scrutiny under subs. 15(1). The Supreme Court clarified that test in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  [2011] 2 S.C.R. 670, 2011 SCC 37, holding that subs. 15(2) protected only measures that “in a real sense serve or advance the ameliorative goal” pursued by the government. The plaintiff argued that the distinction between adoptees and donor offspring did not serve such a purpose. But the Court rejected this submission. In its view, the disadvantages the adoptees faced and which the legislature sought to redressed resulted from the change in their legal relationship with the biological and adoptive parents, and the legislation was tailored to address that problem. Since donor offspring did not face it―they never had a legal relationship with their donor biological parents to begin with―their exclusion from the scope of the legislation is justified.

I think that’s the right outcome. There are real differences in the way relationships between adoptees and donor offspring and their biological parents arise and are severed; in particular, the state intervenes in the relationship between the adoptee and his or her biological parents in the way it does not in the relationship of donors with their offspring. It is not obvious that these groups must be treated identically, and s. 15(2), as the Supreme Court held in Cunningham, permits differences in the remedial measures offered to various disadvantaged groups.

The second issue in Pratten was the existence of a “right to know one’s past” under s. 7 of the Charter. The trial court did not accept the plaintiff’s position on this point; nor did the Court of Appeal. The plaintiff argued that s. 7 should be expanded not only to prevent deprivations of life, liberty, or security of the person effected by the state, but also to require the state to provide these benefits―a proposition which the Supreme Court rejected, albeit narrowly, in Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429. The Court refuses to expand s. 7 in this way. It points out that “the right to know one’s past” is not generally regarded as fundamental in Canada. Neither the decisions of Canadian courts nor the interpretations of international conventions to which Canada is a party have recognized such a right. The Court also notes that

the rights in s. 7 are guaranteed to “everyone.”  Accordingly, recognition of what can be called the right “to know one’s past” would have implications reaching well beyond adoptees and donor offspring.  Further, it is pure speculation to suggest that only minimal resources would be needed to give effect to such a right.

The s. 7 claim is rejected.

Rightly so. For one thing, it is not open to the Court of Appeal to disregard Supreme Court precedent as the plaintiff invited it to do. For another, it is indeed difficult to regard a right which neither legislatures nor courts have ever recognized as a general one as fundamental to the workings of the Canadian legal system. And the Court is right to point out that recognizing it as such would extend it to every person however conceived. Exactly how this right could be enforced for the benefit of individuals conceived the natural way, without a medical record, is not clear at all―such enforcement would require invasions of privacy on a scale difficult to imagine. But rights are rights are rights. Which means that they should not be extended lightly.

This case highlights the deficiencies of judicial review as a means to change social policies where multiple interests are at stake. It is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens. The donor offspring have good reasons to want to know “their past.” But it may well be that many donors would not have donated sperm or eggs without the benefit of anonymity. Which, of course, would mean that infertile couples would not be able to have children. There are thus at least three groups of citizens―none of them, I should note, so numerous or powerful as to use its strength to dominate the political process at the expense of the others―whose interests must be taken into account and balanced. Legislatures can and ought to do that. Courts cannot, and should not try.

A Bar Brawl

The Québec Bar has launched a constitutional challenge against a substantial part of the Conservative government’s “tough-on-crime” agenda, Radio-Canada reports. In an application filed in Québec’s Superior Court, it contends that every provision of the the omnibus criminal law bill, C-10, enacted by Parliament this year as the Safe Streets and Communities Act, S.C. 2012 c. 1, that creates or increases a mandatory minimum sentence of imprisonment is unconstitutional. (A note on terminology: I, for one, do not wish to play the government’s game by using the tendentious and self-serving name it chose for this piece of legislation, so I will refer to it as bill C-10, even though, the bill having become law, this is not strictly correct.)

The grounds for the challenge are summarized at par. 9 of the application. The Bar argues that the mandatory minimums breach s. 7 of the Canadian Charter of Rights and Freedoms, which prohibits deprivations of liberty except “in accordance with principles of fundamental justice,” first, because they are arbitrary in that they bear no relationship to the stated objectives of the legislation, and, second, because they might result in sentences disproportionate to offences. For this reason, some of them also breach s. 12 of the Charter, which prohibits cruel and unusual punishment. Furthermore, says the Bar the mandatory minimums infringe the equality rights of Aboriginal Canadians, protected by s. 15 of the Charter. Finally, they are an intrusion on judicial functions and thus contrary to the principles of judicial independence and separation of powers.

There have been plenty of challenges against specific elements of bill C-10. I have blogged about some of them―my posts on the topic are collected here. But this is a different beast. Rather than an accused challenging the specific provision pursuant to which he is charged, this is an interest group attacking the entire policy of mandatory minimum sentences wholesale―but doing it not in the context of the political debate, but in the courts.

Yet in some ways, the application of claim reads like a political rather than a legal argument. It asserts that

minimum sentences … do not serve the public interest; respond to no real need; do not contribute to protecting citizens; and do not permit the realization of the public safety objective (par. 3; translation mine throughout).

It also points out that the vast majority of Canadians do not feel unsafe because of crime and that both the number and the severity of crimes committed in Canada has long been falling.

For the most part, though, the application elaborates the four grounds of unconstitutionality listed above. I will not discuss them in detail here. I canvassed some of the applicable principles in previous posts dealing with challenges to elements of bill C-10, and I might return to the substance of the Bar’s arguments in future posts, especially to the claims about judicial independence and separation of powers. For now, I want to say a couple of things about the challenge as a whole.

One question I want to address is whether the Bar has standing to bring a challenge of this sort. Of course, it is not accused of any crime. It argues that, nevertheless, it has “public interest” standing to bring this application in accordance with the principles set out by the Supreme Court in its recent decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which I summarized here. (Another explanation of the decision, by Pivot Legal, which represented the respondents, is here.) In that case, the Supreme Court held that public interest standing should be granted when “in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). In particular, courts should consider a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court (par. 51). The Bar argues that its challenge fits these criteria. It is a concerned with rights and liberties, has intervened in a variety of constitutional cases to protect them, and seeks to have the constitutionality of the mandatory minimums determined at once, in order to prevent the potential violation of the rights of a great number of accused.

That may indeed be so, but I do not think that the Bar’s challenge is comparable to that which the Supreme Court allowed to go ahead in Downtown Eastside. Unlike in that case, there seems to be no special difficulty in bringing constitutional challenges against mandatory minimum sentences by the traditional route―by individuals who stand accused of crimes conviction of which carries a mandatory minimum sentence. Indeed, many such challenges have already succeeded or are working their way through the courts. Now the existence of alternative routes by which a constitutional challenge can be brought is not dispositive, the Supreme Court said in Downtown Eastside. But there are other differences too. In that case, the Court emphasized the fact that the challenge was to the entire scheme Parliament adopted to regulate prostitution; such a wholesale challenge gives the court a much more complete picture than piecemeal attacks on individual provisions. Here, although the challenge aims at a large number of similar provisions, they are really quite disparate, and not part of a single scheme attempting to respond to one social problem. Finally, a crucial point about the Downtown Eastside challenge is that the groups bringing it are able to marshal substantial evidence to support their claims, evidence that individual accused would be most unlikely to bring to bear on their cases, and which is likely to be essential to the challenge’s chances of success. Here, the Bar does not seem to intend to bring any sort of evidence that would not be accessible to an accused. Its application relies largely on past decisions of courts, including for examples of cases where the new mandatory minimum sentences would have been disproportionate, rather than on social science or testimony which it would be uniquely well-positioned to gather, as the respondents in Downtown Eastside.

This brings me to the second point I wanted to make. The Bar’s challenge ill suits the very nature of the judicial review of legislation as it is understood in Canadian law. Judicial review of legislation in Canada normally happens in the context of specific disputes, with a set of facts to which the court can look to appreciate the effect of the legislation it is reviewing in real life. Of course, the facts of the case tend to be no more than a starting point; courts must also think beyond them when evaluating the constitutionality of legislation. Nevertheless, they often insist, and rightly so, on the importance of a “factual matrix” for adjudication. Adjudication, after all, is application of the law to a set of facts. It might involve other things too, like the development of the law, but at a minimum, it is that. The Bar’s challenge to the constitutionality of mandatory minimum sentences is abstract. It is a shortcut. Its very raison d’être is to avoid waiting for the relevant facts to arise. That’s not how judicial review is supposed to work.

My two cents is that the Bar’s challenge to mandatory minimum sentences will fail because the Bar does not have standing to bring it. And so it should. This is not to say that mandatory minimum sentences are a good idea, or even constitutional. But they should be challenged in real cases, as indeed they are already being all over the country.

Not So Great Expectations

Whatever his other merits and demerits, Conrad Black has made some noticeable contributions to the development of the law of justiciability in Canada. The latest came this week, in the form of a judgment of the Federal Court of Canada, in Black v. Advisory Council for the Order of Canada, 2012 FC 1234.

The first had come in Black v. Canada (Prime Minister), (2001) 54 OR (3d) 215  (ON CA), in which Mr. Black, as he then was, tried to challenge the advice that Jean Chrétien, then Prime Minister of Canada, give to the Queen regarding Mr. Black’s possible appointment to a peerage in the United Kingdom. The Court of Appeal for Ontario held that the matter was not justiciable.

Now, decade, a peerage, and a couple of criminal convictions later, Lord Black is trying to dissuade the Advisory Council for the Order of Canada from recommending the termination of his appointment to the Order due to his criminal convictions in the United States. Having notified Lord Black that it was considering making such a recommendation to the Governor General (who makes all the final decisions regarding the appointment to and termination from the Order), the Council invited him to make submissions on the matter, in writing. Lord Black, however, demanded an oral hearing, arguing that it was necessary to let him explain why his convictions were unjust, and thus not grounds for terminating his appointment. The Council refused, and Lord Black applied for judicial review of the refusal.

The first question facing Justice de Montigny was whether the application for judicial review was premature. Normally, a court will not review an interlocutory decision of an administrative tribunal―such as whether to allow a person to make written or oral submissions. These decisions can be reviewed as part of the review of the tribunal’s final decision. However, this case is exceptional: the Council’s final recommendation is not a “decision” at all, and so is not subject to review for that reason, while the Governor General’s eventual decision to withdraw an honour such as an appointment to the Order of Canada is discretionary and probably non-reviewable, so that there is no juncture at which the Council’s decision not to give Lord Black the opportunity to make oral submissions could be reviewed. The time to review it is now or never.

If, that is, it is the sort of decision that can be reviewed by courts at all―if it is justiciable. The decision to grant an honour is certainly not. It is made in the exercise of the royal prerogative over honours―a discretion belonging to the monarch (though in most cases exercised on the advice of others political actors, such as the Prime Minister or the Cabinet). That in itself does not make it non-justiciable. The question is rather whether it is purely discretionary and political, or concerns rights or legitimate expectations. The grant of an honour does not. It is inherently subjective and motivated by moral and political considerations rather than legal ones; it is a matter of discretion, not right or entitlement. And, says Justice de Montigny, so is the decision to withdraw an honour. Lord Black could have no expectation of remaining an Officer of the Order of Canada forever; indeed, the Order has an explicit policy stating that the Council will review the membership of those who have been found guilty of a criminal offence. However, the policy also lays down a specific procedure for such a review. And that, says Justice de Montigny, is what makes this case justiciable. Lord Black could have no legitimate expectations as to the substance of the review of his membership, but he could have such an expectation about the procedure that would be followed. (This is also the difference between this case and the 2001 one: there, there was no predetermined procedure for the Prime Minister to follow.)

The trouble for Lord Black is that the review procedure prescribed by the Council’s policy affords the person concerned an opportunity to make written, but not oral submissions. An oral hearing is possible, but not required. Therefore there can be no legitimate expectation that one will be held. Nor is there anything wrong with that, says Justice de Montigny, either as a general matter, or in Lord Black’s specific case. Generally speaking, a hearing is not required to make an administrative procedure fair, even one that can have very grave consequences, such as a person’s deportation from Canada. Hearings are generally required only in proceedings where credibility is at stake. Lord Black claimed that this was his case because what is really at issue is his innocence of the misdeeds of which he was found guilty by American courts. Not so, says Justice de Montigny. His reasons on this point are a little confusing, because he says both that the Council cannot second-guess the decisions of the U.S. Courts and that

if, as [Lord Black] submits, he was treated unfairly in the American justice system, there is nothing preventing him from making that argument in writing.  …  He has provided the Council with a copy of his book on the subject of his convictions which runs to more than 500 pages.

In any event, the fairness of the U.S. criminal proceedings does not depend on Lord Black’s credibility.

In the end, then, Lord Black was no luckier than 11 years ago. But maybe he can console himself with the fact that this time, his claim was, at least, found to be justiciable.

Federalism and Judicial Review

First of all, apologies for my silence in the last 10 days. I have a partial excuse in that I gave a guest-lecture in Fabien Gélinas’ constitutional law class at McGill last Thursday, about the Rule of Law and the legitimacy of the judges’ law-creating activity, which of course had me freaking-out to prepare. But it went well―the students, with just a month of law school under their belts, deserve a lot of credit for understanding the material which was quite difficult―and I have no excuses any more, and I plan to resume a more normal blogging pace now.

There’s no shortage of material either, but I start off with more shameless self-promotion. I just posted a new draft paper, “Federalism and Democracy: A Defence of Federalism-Based Judicial Review“, on SSRN.  It is a response to critiques of judicial enforcement of constitutional divisions of power between federations and sub-federal units, such as ss. 91/92 of the Constitution Act, 1867. Although such criticism is seldom heard in Canada, it is common enough, at least in the legal academia, in the United States, and it is also an implication, albeit an unexplored one, of the general critiques of judicial review, such as that of Jeremy Waldron.

Here is the abstract:

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.

I will present it at the Third Annual Constitutional Law Colloquium at the Loyola University of Chicago School of Law in early November, and then revising it before, I hope submitting it for publication. So comments are more than welcome.