Tag: justiciability

A Strategy against Lethargy?

Can courts order the government to appoint judges promptly? It’s complicated, but probably not

In my last post, I summarized and criticized the Federal Court’s decision in Hameed v Canada (Prime Minister), 2024 FC 242, which declared that the government of Canada has a duty under the constitution to just get on with judicial appointments already. Emmett Macfarlane has made many similar points on his Substack as well. But, as I noted, while the actual reasons given by Brown J were very bad, that doesn’t mean there weren’t serious arguments to be made for the outcome he reached ― though I’m not sure whether any such arguments were actually put to him by counsel. In this post, I review these arguments.

By way of reminder, the way I see it, there are two key substantive issues, on which I focus. First, is the government’s failure to ensure timely judicial appointments judicially reviewable in principle? And second, if it is, is there a judicially administrable standard by which the constitutionality of government inaction regarding judicial appointments might be assessed? As to the first, the government’s objection has to do with the involvement of constitutional conventions in judicial appointments. As to the second, the difficulty is that there is simply no standard apparent in the relevant constitutional or statutory provisions.

In reality, the first issue breaks down into several different ones. As Mark Walters points out in a very important article on “Judicial Review of Ministerial Advice to the Crown“, “it is important to distinguish between decisions made by the Governor General based on ministerial advice and decisions of the Governor in Council”. The former include the appointment of Superior Court judges pursuant to s 96 of the Constitution Act, 1867; the latter, the appointment of Federal Court judges pursuant to s 5.2 of the Federal Courts Act. Failure to draw this distinction is a mistake in the identification of the conventions of judicial appointments committed in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which is carried over in Hameed as I mentioned in my last post.

Conventions are, indeed, involved in both situations, but in different ways. In the case of Governor in Council appointments,

Although it is only by virtue of convention that the legal powers conferred upon the “Governor in Council” are exercised by the Governor and present cabinet ministers, it is by virtue of law that these ministers, sitting as a committee of the Privy Council, participate with the Governor to make the decision. In these circumstances, ministers are not merely advising the Governor as to what he or she should decide; they are, as a matter of law, joining with the Governor to make the decision.

The law at issue is, so far as appointments under the Federal Courts Act (and other statutory provisions) are concerned, s 35(1) of the Interpretation Act. What this means, I think, is that there is no ministerial advice that can be reviewed ― or that could be unreviewable ― separately from the decision, or failure to make a decision, by the Governor in Council. Rather, so far as appointments to the Federal Court are concerned, if one can identify a legal duty to make such appointments in a timely manner and a judicially administrable standard against which the exercise of such a duty can be measured, the conventional aspect of the appointments powers is beside the point and there is no obstacle to reviewability.

Appointments on advice, i.e. those to the Superior Courts, are a different beast. Here, conventions do matter. But, as Professor Walters argues, this is not to say that they are not reviewable. Professor Walters’s article is a comment on the challenge brought by Aniz Alani against the then-Prime Minister’s policy, first implicit and then overt, of not making appointments to the Senate. (I blogged about it here.) As he notes, the government’s response was to argue

that the Crown has the legal authority to act and the minister’s role is only to advise, and it will be added, with emphasis, that the advice is given as a matter of constitutional convention only and so cannot be the subject of judicial review. In this way, executive power may be exercised in a legal black hole. (35)

Professor Walters suggests that there are two potential “way[s] to address this worrisome conclusion”. (35) Of these,

One … is to question the assumption that constitutional conventions are never justiciable. Perhaps the time has come to contemplate the possibility of at least declaratory judicial relief when ministerial advice flouts established conventional rules. In this way, the veil of law would be pierced to reveal where real power lies. (35)

This is the approach Brown J took in Hameed, but he did so in a very clumsy, and indeed quite untenable, manner. I will return to this possibility below, because more can be said about it. But first, let me recount the other option outlined, quite persuasively in my view, by Professor Walters.

Professor Walters argues that “[t]he idea that ministerial advice to the Crown is a matter unknown to and outside the law … is a misunderstanding that results from the confusion between law and convention”. (37) It is law ― specifically, s 11 of the Constitution Act, 1867 ― that sets up the Privy Council as a body of advisors to the Crown. Convention, of course, is both what dictates that its advisory function is exercised, from time to time, by the ministers for the time being, and that the Crown is required to follow its advice. But the giving of advice, as such, is no more and no less than the Privy Council’s legal duty. And if the advisors fail in the discharge of this duty by offering advice that is unlawful or unconstitutional in itself (e.g. because it was procured corruptly) or because it will result in the Crown breaking the law, they can be held accountable for that:

Ministerial advice to the Crown, though triggered by convention, is given in the performance of a legal duty by ministers who hold a legal office, and the common law has always regarded ministers as legally responsible for the advice they give. Ministerial advice does not operate within a legal black hole. Of course, the old authorities … contemplate either a criminal prosecution or an action in tort, with examples of fraud, corruption, malicious abuse of public office, or flagrant neglect of public duties being given. I am not suggesting that the law historically acknowledged a modern remedy of judicial review of ministerial advice based upon public law principles of rationality, legality and fairness. I do think, however, that once the domain of ministerial advice is understood to be one governed by law, the forms of law that discipline advice must be understood in the usual legal way as expanding with the incremental developments that have shaped modern public law generally. (39)

I find this compelling. And I think that the UK Supreme Court’s judgment in  R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 (Miller II) can be understood as giving effect to this approach to ministerial accountability. This was a case where the UK Supreme Court treated as reviewable the advice given by the Prime Minister to the Queen to prorogue Parliament. As the Court noted,

the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter. That situation does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament. [32]

The appointment of Superior Court judges is not, to be sure, a prerogative power, but one set out in constitutional legislation, but I don’t think that changes the situation. If Canadian courts follow the Miller II approach, then the decisions of the persons and entities with the constitutional responsibility to have regard to the relevant interests, in this instance those of the judiciary and of the litigants who come before it, should be amenable to review, because there can be no suggestion that the Governor General is “other than obliged by constitutional convention to accept [their] advice” ― or, more to the point, prevented from acting in the absence of advice.

Now let’s consider the argument for the justiciability of constitutional conventions. For my part, I have long found the orthodox account of conventions as radically different from legal rules quite unpersuasive. This is not because conventions are judge-made rules, as Brown J claims, but rather because the distinction between rules that have a judicial origin and those that originate in politics simply does not matter very much. Statutes originate in politics too, after all. And of course common law rules aren’t always “judge-made” in the crude Benthamite sense. Many originate in the practices of other actors, commercial ones for example, and/or in the principles embedded in the legal system. Courts can identify such rules ― though, unlike Brown J, they must do so rigorously and carefully ― and apply them.

The trouble with this argument is that most people don’t agree with it. More importantly, apex courts don’t agree with it. As I am about to suggest, they no longer adhere to the orthodox rigid distinction between law and convention either, but nor are they prepared to simply accept what the Patriation Reference, Re Resolution to Amend the Constitution, [1981] 1 SCR 753, described as the crystallization of convention into law. The majority in the Patriation Reference is clear about this, and has never been directly repudiated in Canada or elsewhere. Indeed it was endorsed by the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61, and it too hasn’t been directly repudiated. I can and will go on thinking that these cases are wrong, but a judge bound by one or the other cannot act if it didn’t exist.

But that’s not the end of the matter either. While things are not especially clear, Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 may suggest a workaround to the dichotomy between law and convention asserted in the Patriation Reference. In that opinion, the Supreme Court relied on the concept of a “constitutional architecture”, which has something to do with “[t]he assumptions that underlie the [constitutional] text and the manner in which the constitutional provisions are intended to interact with one another”. [26] A law that would interfere with this architecture is as unconstitutional as one that contravenes an explicit provision of the constitution. Because the Court’s definition of “architecture” is sparse if not cryptic, there are different views on what it encompasses. I have argued that “architecture” is, simply put, a codeword for conventions. Others who have written on the subject may take a somewhat different view of the matter, but at any rate I think there is a credible argument to be made that advice, or perhaps even more so lack of advice, to the Governor General is, in principle, judicially reviewable if it would result in the undermining of “assumptions that underlie the text” of the constitution, regardless of the involvement of conventions in the process.

So where does that leave us? Recall that, for now, we have only been considering the first issue in Hameed: whether the government’s failure to ensure that judicial vacancies are filled in a timely fashion is in principle amenable to judicial review. I have argued that the answer is yes so far as Governor in Council appointments to the Federal Court are concerned, in the same way as failure to perform a statutory duty by any official or entity. The case of Governor-acting-on-advice appointments to the Superior Courts is less clear, but there are strong arguments for their being reviewable too, either on the basis of legal accountability for unlawful advice expounded by Professor Walters and demonstrated in Miller II, or through the invocation of the constitutional architecture referred to in the Senate Reform Reference.

Assuming that the government’s slowness in appointing judges is reviewable in principle, the question nevertheless arises whether there is legal standard by which it can be judged. Or is the pace of judicial appointments the kind of policy or discretionary matter that can only be subject to political, but not legal, accountability? (It is worth emphasizing that political accountability is important and should be pursued regardless of whether legal accountability is (also) available!) As I wrote in my last post, Brown J’s invention of a convention of prompt appointments to serve this purpose is indefensible. Even if violations of conventions are justiciable, they have to be real conventions that exist out there in the political world, and not judicial concoctions. Is there something else?

This is not obvious, to say the least. It is entirely fair to note that both the Constitution Act, 1867 and the Federal Courts Act make the appointment of judges pursuant to their respective provisions mandatory, using the word “shall”, and that, as Brown J suggests, it would be disturbing if the executive could undermine legislative choices as to the number of judges by refusing to fill the judicial positions created by provincial legislatures and Parliament. At the same time, no one, including Brown J, actually believes that any vacancy existing for any length of time is ipso facto a constitutional or statutory violation. The mandatory language in the relevant provisions is, it would seem, subject to an implicit qualification accepting at least some degree of churn ― and executive discretion.

That said, this discretion cannot be unlimited either ― Roncarelli v Duplessis, [1959] SCR 121, tells us this much. A Roncarelli-like scenario, where the executive misused its discretion for an improper purpose ― for example to punish a recalcitrant court by refusing to make appointments ― should be easy for a court to deal with. This is not a far-fetched hypothetical: think, again, about the Alani litigation concerning the Senate, and also of the delays in making appointments to the Supreme Court after the debacle of l’Affaire Nadon. But I don’t think that there is any suggestion of improper motive in the current situation; that would be, to quote the one and only Sir Humphrey Appleby, to mistake lethargy for strategy.

Professor Walters suggests what might be a further constraint on advice-giving discretion:

at least in those cases where the reasons for advice are publicly given or can otherwise be established through evidence … the question of whether those reasons are consistent with constitutional values and structure may well be, in the appropriate circumstances, a question of law for the courts to determine. (40)

But that doesn’t help much. The whole problem in Hameed is that there is no advice, and seemingly no specific reasons for the lack of any. Again, lethargy, not strategy. Moreover, even apart from that, a government may be able to argue (though I take it that it has not in fact argued) that its slowness in appointing judges is due to the difficulties it encountering in balancing relevant values, such as diversity, with the operational needs of the judiciary. If the reviewing court is inclined to be deferential ― and, as the Supreme Court reminded us in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, courts are supposed to be deferential to executive value-balancing, whether that makes any sense or not ― then this may well be enough to let the executive off the hook.

Lastly, there is the Miller II move: there, the UK Supreme Court said that prerogative powers are implicitly limited by constitutional principles, such that any use of the prerogative that undermines relevant principles needs to be justified by the executive as being proportional to the interference with the principles in question. There is at least an argument for treating constitutionally codified powers in the same manner as prerogative ones ― though I’m not sure that’s right. If this argument is accepted; and if, further, the Miller II reasoning is to be taken at face value; then it might work in the specific circumstances of Hameed, the government having, rather like in Miller II, not bothered to justify itself. But, for my part, I am not at all convinced that Miller II should be taken at face value: I have argued that, instead, what it really did was to enforce a putative constitutional convention governing the permissible length of prorogations, identified pursuant to an implicit application of the same sort of test I described in my last post. If that is so, then we are back to square one, since there is no plausible constitutional convention to be enforced here.

So there you have it: I think that failure to ensure that judicial appointments take place to fill the vacancies on Canadian courts is, in principle, judicially reviewable, but there is probably no standard by which timeliness of appointments, as opposed to something like an outright refusal to make any, could be assessed, which makes the question ultimately non-justiciable. That said, I am more confident about the first part of this conclusion than the second ― that is, about reviewability-in-principle than about the lack of standards. This case is complicated, and closer than I thought at first.

What isn’t close is the underlying question of what needs to be done. The government should just get on with making those judicial appointments. They may well have sound arguments for avoiding being told to do so by a judge. But this should never have come to litigation in the first place. The Alani case ultimately became moot when the government accepted its constitutional responsibility for appointing Senators. Ideally, Hameed should be concluded in the same manner.

Putting the Courts Together Again

The Federal Court orders the government to get on with appointing judges. But its judgment is very badly flawed.

Yesterday, the Federal Court delivered a decision declaring that the Canadian government has a constitutional duty to ensure timely judicial appointments and setting out specific targets to attain: Hameed v Canada (Prime Minister), 2024 FC 242. The outcome is a startling one, but it is Justice Brown’s reasons that are truly remarkable, and not in a good way. The outcome, indeed, might even be defensible, at least in part, though I doubt it. But Brown J’s reasons are pernicious.

Hameed is something of a constitutional law professor’s crazy exam hypothetical. The bottom line is simple enough. The federal government has long been slow to appoint judges to vacancies that arise, despite warnings from the legal community and indeed entreaties from various institutions and leaders, including, notably, a strongly-worded letter from the Chief Justice of Canada. Is this tardiness unconstitutional on the basis that the government has a duty to fill judicial vacancies promptly as they arise? But to answer this question, or more precisely for the federal court to answer this question, an impressive number of issues need to be addressed, from standing, to federal court jurisdiction, to evidentiary issues, to the nature of the alleged duty, to the remedy. And pretty much each of these issues falls somewhere on the spectrum from not-altogether-straightforward to really quite complex.

The substantive heart of the case, however, has to do with just two issues. First, is the government’s failure to ensure timely judicial appointments judicially reviewable in principle? And second, if it is, is there a judicially administrable standard by which the constitutionality of government inaction regarding judicial appointments might be assessed? This framing, to be clear, is mine, not Brown J’s, and heavily influenced, on the one hand, by the UK Supreme Court’s decision in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373, and on the other, by Mark Walters’s illuminating article on “Judicial Review of Ministerial Advice to the Crown“, neither of which is cited in Hameed despite their relevance.

In this post, I describe Brown J’s approach to these two issues and explain why it is wrongheaded. In a follow-up post, I will explain why, nonetheless, the outcome of the case on a proper approach to these issues is a close issue that deserves much more careful thought than Brown J has given it.

Whether the government’s role in ensuring timely judicial appointments is justiciable at all, let alone in the Federal Court, is a difficult issue because of the involvement of constitutional conventions. Brown J draws on the Federal Court’s discussion of these conventions in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which found that

By constitutional convention, when appointing judges to provincial superior courts, the Governor General acts on the advice of the Committee of the Privy Council of Canada. Similarly, the [Governor in Council], which appoints judges to the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada, is defined in the Interpretation Act … as the Governor General acting on the advice or consent of the Privy Council for Canada. The Privy Council is composed of all the ministers of the Crown, who meet in the body known as Cabinet … As such, all federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice … In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet. [9]

Unfortunately, this description contains two important mistakes. The most glaring but less consequential one lies in the description of the Privy Council as “composed of all the ministers of the Crown, who meet in the body known as Cabinet”. As Professor Walters explains,

The Privy Council for Canada is established by section 11 of the Constitution Act, 1867 and consists of all present and former ministers of the Crown as well as a variety of other members. … [I]t is only by virtue of convention that the legal powers conferred upon the “Governor in Council” are exercised by the Governor and present cabinet ministers. (34; emphasis in the original)

In other words, the Cabinet is the political, conventional entity through which the legal body that is the Privy Council acts; they are not the same. The second mistake is more subtle but more consequential: it consists in conflating judicial appointments by the Governor General and those by the Governor-in-Council. I will return to it in the follow-up post, though you will know what I’ll say there if you read Professor Walters’s article in the meantime.

Back to Brown J’s reasoning. On the orthodox view of Westminster-type constitutions, constitutional conventions are, in Dicey’s famous words, “not in reality laws at all since they are not enforced by the courts”. Is it the case, then, that in asking the court to require the Cabinet to provide its conventionally-mandated advice to the Governor General, the applicant is seeking to have a convention enforced, which cannot be done?

Brown J says no. He cites the Patriation Reference (though he at times misnames it as the Repatriation Reference), Re Resolution to Amend the Constitution, [1981] 1 SCR 753, for the proposition that while courts cannot enforce a convention, they can issue a declaration stating its import. Moreover, the conventions regulating judicial appointments

form part of Canada’s federal constitutional common law in the sense they are judge-made rules which the courts are entitled and may recognize in the appropriate case through the Court’s declaratory power, notwithstanding they are not laws that may been [sic] enforced by the courts. [122]

A breach of this “federal constitutional common law” by the Cabinet is reviewable by the Federal Court, in the same way as a breach of any federal law by a federal official is reviewable under the Federal Courts Act.

This is fundamentally wrong. As a matter of positive law as well as learned orthodoxy, it is absolutely not the case that conventions are a form of “constitutional common law”. Indeed, the majority opinion on the legal question in the Patriation Reference explicitly rejects this very view. In dismissing the idea of a “crystallisation” of conventions into legal rules, it says:

The leap from convention to law is explained almost as if there was a common law of constitutional law, but originating in political practice. That is simply not so. What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute. (784) 

As I will explain in the follow-up post (and as longtime readers will know), I am no fan of the Patriation Reference legal question majority. But it is binding on Brown J, whether he is a fan of it or not! He does not refer to this passage, which strikes me as very poor judicial craft. Moreover, the one thing that the Patriation Reference unquestionably does get right is that conventions “originat[e] in political practice”; in no way, shape, or form are they “judge-made”. As the UK Supreme Court put it in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 “[j]udges … are neither the parents nor the guardians of political conventions”. [146] One can object to the “guardians” bit; but it undeniably true that judges are not the “parents” of constitutional conventions.

And the idea of common law rules that aren’t enforceable by courts makes no sense at all; statutory provisions can be made unenforceable (as parts of the Official Languages Act used to be), but the common law doesn’t exist apart from judicial enforcement. If conventions are just common law rules, then they are in principle enforceable, subject to justiciability concerns in specific cases, and not merely declarable.

Brown J’s treatment of the issue of the standard by which to assess the government’s inaction is, if anything, even more cavalier. He points out that “Parliament has determined what it considered an appropriate number of judges required by the Superior Courts, including the Federal Courts, …. in legislation authorizing that number of appointments” and that failure to appoint these judges not only undermines the judiciary but also amounts to “Canada’s executive government … ignor[ing] the express will of Parliament”. [126] I have no quarrel with that ― on the contrary, this is an important point for, at the very least, the government to consider, whether or not it can also give rise to judicial remedies. But what follows is not so sensible.

The key passage deserves to be set out at some length. Brown J writes that

[T]he acknowledged constitutional convention that it is the exclusive authority of the Respondents to advise in respect of vacancies necessarily implies the related constitutional convention that judicial vacancies must be filled as soon as possible after vacancies arise, except in exceptional circumstances.

In this connection, nothing suggests Democracy Watch, which affirmed the existence of the convention, is the last word on the subject. … 

[T]he Court should now recognize that the relevant constitutional conventions include not only the responsibility to take steps to fill vacancies as soon as possible, but in this appalling and critical situation, to materially reduce the present backlog to what it was as recently as the Spring of 2016, that is to reduce the vacancies to the mid-40s across the federally appointed provincial Superior Courts and Federal Courts. [129-131]

This is just terrible. A court cannot simply will “conventions” into existence because they would be useful. The most charitable interpretation I can give to Brown J’s approach here is that he is getting high on his own supply, namely on the confusion between conventions and “judge-made” common law. But, pace Bentham, even those who would describe the common law as being “judge-made” (not an uncontroversial description), would not countenance such blithe creation of new common law rules for no other reason than their seeming desirability. At the very least, there are concerns about the limits of the judicial role in the development of the law that must be addressed.

If one accepts that it is appropriate for courts to address constitutional conventions, then one must adopt a rigorous approach to identifying them. Indeed, this is no different from what a court will do when dealing with common law or statutory rules ― it will carefully analyse precedents or interpret the legislature’s words, and not just say that a rule must exist to deal with this or that exigency. The methods for identifying the relevant rule vary depending the rule’s type, but not the need for a method.

There are two methods for identifying conventions. The easy one is by relying on authorities ― one can think, for example, of Andrew Heard’s magisterial book Canadian Constitutional Conventions. The harder one, given the imprimatur of the majority opinion on the conventional question in the Patriation Reference, is a test first developed by Sir W. Ivor Jennings, which asks whether there are precedents for the alleged conventional rule, whether the constitutional actors involved followed the rule out of a sense of obligation, and whether there is a constitutional reason for the rule.

Brown J doesn’t even pretend to follow either of these methods for identifying the purported convention requiring prompt judicial appointments. He points to no authority. Nor does he identify any precedents. This case, of course arises precisely because the government evidently does not follow the alleged rule and does not consider itself bound to do so. Now, that is not fatal: the Patriation Reference also arose out of the actions of a government that refused to recognize and be bound by a conventional rule. But there the Supreme Court pointed to a long course of past practice and acknowledgment of its binding character. That is entirely missing from Brown J’s reasons.

He thinks that he can simply conjure up a convention nobody’s thought of before, because past decisions don’t get “the last word on the subject”. But the question isn’t whether a case is “the last word”. It’s what conventions actually exist out there in the real world. It is bad enough when courts start “giv[ing] constitutional benediction” to new rights whose time they think has come, as the Supreme Court did in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245. But awful as that was, still the words of the constitutional text, however distorted from their original meaning, provide some modest measure of constraint even on wilful interpreters. If courts can give benediction to dreamt up conventions, there really isn’t anything they cannot add to the constitution just because they feel like it.

I cannot help but think that Brown J was so completely blinded by what he perceived as the practical necessities of the situation as to cut every corner imaginable on the way to a result of whose vital importance he was convinced. He begins his judgment by asserting that “[a]t its core, this matter concerns” the Chief Justice’s letter to the Prime Minister regarding the pressing need for judicial vacancies to be filled. [1] He is determined not to “allow the current untenable and crisis number of vacancies to remain unacceptably high with the negative consequences set out in the letter”. [126]

But that’s not how this judging business works. A court case is never about a letter sent by a non-party. I hesitate to speak to the letter’s admissibility, not only because this post is long but also, and more importantly, because the law of evidence is not my forte. But let me just note my puzzlement at Brown J’s repeated reference to that letter as “expert opinion” [12] and indeed “expert evidence” [124] when the Chief Justice wasn’t a witness. Be that as it may, a court case can only ever be about the law. Brown J lost sight of that altogether, and produced one of the more staggering judgments I can think of in a long, long time. (I should note, in fairness, that, assuming his account of the parties’ arguments is complete, he may have been very poorly served by them, especially the applicant.)

The irony is that there would have been serious legal issues to discuss, and a decision based on careful legal argument would have much better served the cause that Brown J tries to advance. And it is not a bad cause. The slowness of the federal government’s judicial appointments has been discussed, so far as I remember, from its early days in office. When the Chief Justice and Brown J denounce the current state of affairs, they are not wrong. I can only hope that the government takes the underlying message Brown J is trying to send seriously. But if the Canadian judiciary is broken, or nearly broken, the way to put it back together again is not by judges taking the need to do so for a warrant to do it. “Something must be done” is not a legal argument. As I said, I will try to consider actual legal arguments in my next post.

Activism v Constitution

The federal court rightly holds that the judiciary cannot control Canada’s climate policy

In a number of jurisdictions, environmental activists have turned to the courts in an ostensible attempt to force the implementation of policies they deem necessary to deal with climate change. Some of these lawsuits have succeeded to great fanfare, others not. Such litigation challenges not only constantly evolving public policy, but also longstanding principles of separation of powers. In the Federal Court’s decision in La Rose v Canada, 2020 FC 1008, the activists lose ― and separation of powers wins.

The activists challenged Canada’s public policy in relation to greenhouse gas emissions, notably insofar as it does not set sufficiently ambitious emission reduction targets, failed to meet the targets that were set, generally allowed emissions to rise, and “support[ed] the development, expansion and operation of industries and activities involving fossil fuels”. [8] All this, they said, “unjustifiably infringed their rights (and the rights of all children and youth in Canada, present and future, due to an asserted public interest standing) under sections 7 and 15 of the Charter” and amounted to a breach of the government’s “public trust obligations with respect to identified public resources”. [7] They sought a variety of declarations and orders, including “an order requiring the [government] to develop and implement an enforceable climate recovery plan that is consistent with Canada’s fair share of the global carbon budget plan”, [12] and asked that the court retain jurisdiction to supervise the implementation of this order.

The government sought to have the activists’ statement of claim struck on the basis that their demands were not justiciable or had no reasonable prospects of success. Justice Manson agrees. After, concluding that Charter claims, even novel ones, can be disposed of in the context of a motion to strike (an issue addressed in the most recent episode of the Runnymede Radio podcast, in which co-blogger Mark Mancini interviewed Gerard Kennedy), he holds that the Charter claims are not justiciable, while the “public trust” claim, although justiciable, has no reasonable prospect of success.

With respect to justiciability, “[t]he question to be decided is whether the Court has the institutional capacity and legitimacy to adjudicate the matter. Or, more generally, is the issue one that is appropriate for a Court to decide.” [29] The novelty of a claim, by itself, is not relevant, and the fact that a claim has a policy dimension is not a bar to justiciability. However, “[t]o engage the Court’s adjudicative functions, the question must be one that can be resolved by the application of law”. [34] The general direction of policy is a matter for governments and legislatures; “[p]olicy choices must be translated into law or state action in order to be amenable to Charter review and otherwise justiciable”. [38]

Justice Manson finds that the challenge here is impermissibly aimed at a general policy choices, “an overly broad and unquantifiable number of actions and inactions” by the government. [40] Indeed, nothing less than “the entirety of Canada’s policy response to climate change” is targeted, with the result that “assessments of Charter infringement cannot be connected to specific laws or state action”, breaking with the normal purpose of judicial review. [43] In effect, the activists seek to put the court in charge of Canada’s climate change policy. This is not the courts’ role, “no matter how critical climate change is and will be”. [48]

Justice Manson also criticizes the remedies sought by the activists. Declarations alone would amount to ineffective statements about the meaning of the Charter, or pronouncements about the effectiveness of public policy more appropriate to a commission of inquiry than a court. Meanwhile, judicial supervision of public policy is not appropriate, and would not, in any case, in itself redress the alleged breach of the plaintiffs’ Charter rights.

While this is not dispositive, Justice Manson also suggests that the Charter arguments would have no reasonable chance of success even if they were justiciable. In the case of the section 7 claim, this is because no one law or even specific set of laws is said to be rights-infringing. That said, in an obiter to the obiter, Justice Manson muses about the possibility of a positive-rights claim succeeding in a future case. As for the section 15 claim, “[i]t is unclear what impugned law creates the claimed distinction, whether on its face or in its impact”. [79] 

As for the “public trust” claim, according to which the government has an obligation, sourced either in the common law or in unwritten constitutional principle, “to preserve and protect the integrity of inherently public resources so that the public is not deprived of the benefits they provide to all”, [81] Justice Manson finds that it is justiciable, but has no reasonable prospect of success. The “public trust” doctrine is not recognized in Canadian law; it is “extensive and without definable limit” [88]; nor can it be supported as a principle essential to the Canadian constitutional order. There is no point in allowing this claim to proceed to trial.

This is the right outcome. As Justice Manson points out, it simply isn’t the role of the courts to dictate policy in areas where choices must be made among a multitude of variables and any number of competing considerations are to be balanced. It is one one thing for the courts to say that public funds must be expended on a specific matter prioritized by the constitution. They have done so in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3 (which dealt with the construction of schools to which a linguistic minority was entitled under section 23 of the Charter) and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 (where the Supreme Court invalidated a regulation imposing “hearing fees” on litigants who sought to have their day in court, in contravention, the majority said, of s 96 of the Constitution Act, 1867). Even that wasn’t uncontroversial, though I think these outcomes are defensible. But it would be something else entirely for a court to improvise itself the arbiter of policy touching on a matter as all-encompassing as climate change. Perhaps there are shades of grey in this area, matters where it is not quite clear whether the issue is too complex for the courts to intervene, as some critiques of Trial Lawyers suggest. But this isn’t one of them.

What I wrote here after the Court of Appeal for Ontario struck a claim by a coalition of activists that Ontario’s and Canada’s housing policy violated sections 7 and 15 of the Charter in Tanudjaja v Canada (Attorney General), 2014 ONCA 852, 123 OR (3d) 161 (a case to which Justice Manson refers) remains relevant:

[T]here are good reasons for the courts to refuse to adjudicate, if not any and all social and economic rights claims, then at least … vast campaigns intended to reshape entire areas of government policy. There is the issue of competing priorities ― if not all claims on public support can be satisfied, which ones should be favoured? It’s not obvious, to say the least, that the answer to that question ought to be “those who got adjudicated first.” There is the issue of legitimacy of unelected judges having to order Parliament and legislatures to increase taxes. Charles I lost his head for trying to raise taxes without Parliamentary approval, and George III lost an empire for insisting that he had the right to tax without consent. It is, again, not obvious that judges would fare any better. There is the issue of federalism. … The federal government chooses to help the provinces discharge many of their constitutional responsibilities, and the provinces accept the money (and ask for more), but how a court could assign responsibilities between the two level of government ― something that takes sometimes difficult political negotiations ― is really beyond me.

There is, finally, the issue of the law’s inherent conservatism. If a court decides that social programme X is constitutionally required, then programme X cannot be got rid of even to be replaced by a more effective but differently organized programme. … At best, the government would have to turn to the courts and demonstrate  that its proposed programme would be enough to discharge its constitutional obligations. But it could not really demonstrate this ― it would have to speculate, and it’s not clear that a court ought to be convinced by such speculation. (Paragraph break added)

All these concerns weigh on the attempts to litigate climate change policy. At least some plausible measures to reduce greenhouse gas outputs are antithetical to the promotion of economic growth, and it a complex question, a matter of economics and morality, but certainly not law ― and hence not for the courts to decide ― how these priorities are to be balanced. Carbon taxes (or cap-and-trade systems that amount to indirect taxation) are a key policy tool aimed at reducing greenhouse gas emissions, and it is not the courts’ place to impose such taxes without an electoral mandate. Federalism is, if anything, even more of a concern here than it was in Tanudjaja, because provincial governments ― which have an important part of policy responsibility in relation to both the environment and to the economy ― were not even before the court. Finally, climate change policy must necessarily be adjusted to the evolution of both the available science and the existing technologies. (Climate policy in a world of cheap solar electricity or, perhaps, fusion power, probably looks quite different from that of today.) Freezing a particular policy response developed in, say, 2021 in constitutional law sounds like a profoundly bad idea, as well one that is inconsistent with the judicial role.

Just to be clear: I’m not saying that these policies are bad. (I’m also not saying that they’re good.) The point is that the courts neither can nor would be justified in passing on their wisdom or even necessity. As Justice Manson says, the function of judicial review of legislation is to assess specific laws or government decisions against the legal rules and standards set out in the constitution. The task of supervising ongoing policy choices that the plaintiffs here were expecting the Federal Court to undertake is radically different.

It is a relief, then, Justice Manson avoids the temptation to “do something” just because “something must be done”, and accepts that the resolution of an important social issue is outside the scope of his office. That’s not to say that courts should avoid resolving important social issues just because they are important social issues. But nor should they assume that they, and the constitution which they enforce, must have something to say on such matters.

As Dwight Newman has written in a related if slightly different context,

[w]hile climate change policy is an immensely important area for governments, that context does not change the Constitution. Some might wish that it did … But the very nature of a constitution is that it must endure across various policy challenges of the day and not be bent to particular policy choices.

And recall, of course, Lord Atkin’s admonition in the Labour Conventions Reference: “While the ship of state now sails on larger ventures and into foreign waters she still retains the water-tight compartments which are an essential part of her original structure.” (684) Professor Newman and Lord Atkin were both addressing the federal division of powers between the Dominion and the provinces, but their point is no less applicable to the separation of powers among the various branches of government ― here, between the Federal Court and Parliament. We probably do not think enough about separation of powers in Canada, and when we do we too often reduce it to judicial independence. But the separation between the judiciary and the “political branches” must be water-tight both ways. There are ways in which Parliament and the executive cannot interfere with the courts. But there are also ways in which the courts must not interfere with Parliament and the executive. This principle holds no less true in waters warmed up and troubled by climate change.

Mulling over Miller

Some thoughts on the UK Supreme Court’s decision in “the case of prorogations”

It’s been a while already, but I would like to say a few things about the UK Supreme Court’s decision that Prime Minister Boris Johnson’s advice, last moth, that the Queen prorogue the Westminster Parliament for five weeks was unlawful, and that the prorogation is a nullity. The unanimous decision by Lady Hale and Lord Reed, R (Miller) v Prime Minister, [2019] UKSC 41 (Miller (No 2)) breaks new and, in my view, shaky constitutional ground. It is an understandable response to what Lord Sumption has accurately described as Mr. Johnson’s “constitutional vandalism”. But, while understandable, I am not persuaded that it is right.

I should note, of course, that I am no great expert on UK constitutional law. Many people who are have written about Miller (No 2) already, but, due to my recent travels and speaking engagements, I haven’t been able to keep up with the torrent of commentary. Anyway, the principles at stake are similar to those that apply in Canada and New Zealand, and I wanted to produce a record of my own thoughts regarding Lady Hale and Lord Reed’s reasoning. Add salt to taste. I will also add a note on the applicability to this decision to Canada, where of course the ability of a Prime Minister to procure the prorogation of Parliament for political purposes is something that has already been done, and could be attempted in the future.

The substantive issue in Miller (No 2) was whether the Prime Minister’s advice that the Queen prorogue Parliament for a five-week period was unlawful, either because it interfered with the constitutional principles of Parliamentary sovereignty and government accountability to Parliament, or because it had an improper purpose. But as a preliminary matter the Court had to decide whether the matter was justiciable at all. If it found that it was, and that the prorogation was unlawful, it also had to consider the appropriate remedy.

The argument against justiciability was that the substantive issues were subject to political accountability rather than judicial scrutiny and that there were, in any case, no legal criteria by which the lawfulness of advice to prorogue Parliament could be determined. For the judiciary to step into this controversy would offend against the separation of powers. But the Court rejected this contention. The fact that the decision it was asked to review was made by a political actor, had political resonance, and was potentially subject to political accountability did not, without more, mean that courts should refrain from reviewing its legality. As for the separation of powers, it would only be enhanced “by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions”. [34]

The power to prorogue Parliament is based in the Royal prerogative; that is to say, it is a power of the monarch that is recognized by the common law (rather than having a statutory foundation). The common law also outlines the limits of prerogative powers. Doubts about justiciability, the Court says, can legitimately arise if the dispute concerns the lawfulness of the exercise of a prerogative power within its proper limits. However, there is no question that it is the courts’ role to draw the limits in the first place. The dispute here, the Court says, involves just this sort of line drawing.

How are the limits of a prerogative power to be ascertained? Unlike with a statutory power, there is no text to guide the court. However, the scope of any prerogative power “has to be compatible with common law principles”, including “the fundamental principles of our constitutional law”, [38] which, despite the fact that the UK’s constitution is not codified and consists of “common law, statutes, conventions and practice”, “are enforceable by the courts in the same way as other legal principles”. [39]

Two such principles help circumscribe the scope of the power to prorogue Parliament: Parliamentary sovereignty, and the accountability of government to Parliament. The former means not only “that laws
enacted by the Crown in Parliament are the supreme form of law in our legal system” [41] but also that the executive cannot get int the way of Parliament “exercis[ing] its legislative authority” [42] as it would be in the absence of limits on the power of prorogation. While prospect of unlimited prorogation may be hypothetical and subject to “practical constraints”, [43] its very existence would be incompatible Parliamentary sovereignty, and therefore intolerable. The same goes for the accountability of the Ministry to Parliament,

through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. [46]

This accountability serves to ensure that “citizens are protected from the arbitrary exercise of executive power”, [46] but it too would be undermined by long-term prorogations.

It follows then that, while a short period of prorogation is acceptable as not interfering with Parliament’s legislative power or its scrutiny of the executive, the longer Parliament stands prorogued, the more these principles are put at risk. There is no bright-line limit between what is and what is not lawful. Rather,

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. [50]

Whether a given prorogation has this effect, and whether, if so, a justification has been provided for it, are questions of fact of “no
greater difficulty than many other questions of fact which are routinely decided by the courts”. [51] The court must decide these questions “with sensitivity to the responsibilities and experience of the Prime Minister, and with a corresponding degree of caution”, [51] but it can and must decide them. In this case, the Court finds that the length of the prorogation will interfere with Parliamentary sovereignty and the accountability of government, and that the justifications advanced on behalf of the Prime Minister are unpersuasive. Its decision on the latter point is influenced by the evidence given by a former Prime Minister, Sir John Major.

The Court must, then, decide on the remedy. The applicant would have been content with a declaration to the effect that the Prime Minister’s advice to prorogue Parliament was unlawful, but the Court goes further. Having rejected the contention that the prorogation is part of “proceedings in Parliament” whose validity the courts are precluded from reviewing by Article 9 of the Bill of Rights 1688, it finds, that the Order in Council signed by the Queen to require the prorogation,

being founded on unlawful advice, was likewise unlawful, null and
of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. [69]

The prorogation never happened.

As noted above, one can understand why the Supreme Court decided the way it did. Indeed, the reasoning of Lady Hale and Lord Reed has a certain elegance to it, and I think it is fair to say that a constitution in which the power to prorogue Parliament cannot be abused for partisan or political purposes is preferable to one where it can be. It would indeed be shocking if the Prime Minister were to attempt proroguing Parliament for years on end. As Canadians will recall, it is equally shocking when the Prime Minister uses a prorogation to avoid being held to account by Parliament. The question, though, is whether the United Kingdom actually had such a constitution, prior to the Supreme Court’s decision in Miller (No 2).

Canadians, of course, will be interested in what our constitution has to say on this. Let me begin with that. Unlike the United Kingdom’s, Canada’s constitution is partially codified and entrenched. As it happens, this entrenched constitution includes a specific provision that speaks to the possibility of indefinite prorogations: section 5 of the Canadian Charter of Rights and Freedoms provides that “[t]here shall be a sitting of Parliament and of each legislature at least once every twelve months”. An attempt to prorogue Parliament, or a legislature, for more than a year would be flatly unconstitutional, and a court ought to be able to recognize this and, pursuant to section 24(1) of the Charter, provide any “such remedy as the court considers appropriate and just in the circumstances”.

But what about abusive attempts to prorogue Parliament for periods of time shorter than a year? In my view, the Charter settles this matter differently than the common law constitution of the United Kingdom. Instead of a standard of justification, as under the latter, the Charter sets out a bright-line rule, and it would be inappropriate for the courts to re-write the constitution that we actually have in order to improve it on a pattern suggested, decades after its enactment, in a jurisdiction whose own constitutional landscape is, on this point, somewhat different from ours. The Supreme Court of Canada rejected an attempt to invoke constitutional principles to add to the Charter’s proscription on retroactive criminal law in British Columbia v Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 SCR 473, and it should follow the same logic in rejecting an attempt to import Miller (No. 2) into Canadian law.

This is not to say that the one-year line drawn by the Charter‘s framers is especially satisfactory. Certainly shorter prorogations can be abusive, as we saw in 2008. Perhaps our constitution could be improved by an amendment to section 5 of the Charter, just as it would in my view be improved by an expanded proscription against retroactive legislation. But of course such an amendment is not for the courts to effect. And, as I will now suggest, it is not obvious that such an amendment ought simply to codify the Miller (No. 2) decision.

Indeed it is not clear that the authors of Miller (No. 2) viewed it as a model for anything else that would follow. At the outset, the insist that the case “arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a ‘one off'”. [1] It is worth pointing out that this is an unusual statement for a court to make, and it should, I think, ring some alarm bells. (Consider another instance where a court said something similar: Bush v Gore, 531 US 98 (2000) where the per curiam majority opinion noted that its “consideration is limited to the present circumstances”. (109))

At the very least, one suspects that, despite its confident assertions about its ability to resolve factual claims about the necessity for a prorogation, the Court probably hopes that it will not have to do so again. And, perhaps even more fundamentally, the Court may well realize that it has not really articulated a principle against which to judge the lawfulness of prorogations so much as asserted the power to do so on a case-by-case basis. The Court gets away with it by shifting the burden of proof onto the Prime Minister, who is asked to justify his request for a prorogation instead of the applicants having to actually show that it was flawed in some legally cognizable way (as opposed to “merely” stinking to high heaven). Mr. Johnson was not prepared to discharge the burden. His successors, presumably, will not make the same mistake.

Seen in this light, Miller (No. 2) looks less as a re-assertion of constitutional principle in the face of a band of governing vandals, and more like a power grab. The vandals, admittedly, are real, so the power grab is for a good cause, but it’s a power grab all the same. This impression is only reinforced by the way in which the Court re-framed the issue from the legitimacy of a particular (albeit disturbing in the extreme) exercise of an undoubted prerogative power (namely, that of proroguing power) to that of the scope the prerogative. The cases on which the Supreme Court purports to rely sought to preserve a space for the exercise of prerogative powers that would not be amenable to judicial review, being too bound up with issues of policy and politics. Miller (No. 2) does not repudiate these cases, but it suggests a way around them: it is enough to say that, correctly understood, the issue concerns the scope of a prerogative power rather than the lawfulness of its exercise within its acknowledged scope.

If the prerogative of dissolution had not been abolished in the UK, this trick could have been applied to engage the courts in reviewing its exercise. (Of course, this prerogative has been preserved in Canada, even in jurisdictions that have adopted purportedly fixed election dates; this is an additional consideration that ought to give pause to Canadian courts urged to import the Miller (No. 2) reasoning here.) The same goes for the prerogative of mercy and the prerogative powers in relation to foreign affairs or war. In fairness to the Supreme Court, I doubt that it really wants to go there. If urged to embark on this sort of review, it can still say that, this time, the issues do not go to the scope of the prerogative. But that only highlights the fact that the reasoning in Miller (No. 2) is results-oriented. A one-off indeed. I don’t think this is the stuff of great constitutional law.

There are at least a couple of additional issues worth addressing about Miller (No. 2), one of which I will make here, and the other in a separate post. The former is that the Supreme Court’s conception of Parliamentary sovereignty is, in my view, something of a departure from how this concept has been understood until now. The orthodox view is that it referred to the supremacy of the law enacted by the existing Parliament over any other law ― common law, regulations, and even statutes enacted by Parliaments past. In recent decades, this view has been somewhat tempered by a growing acceptance Parliaments dictating the “fanner and form” ― but not the content ― of future statutes. Of course Parliamentary sovereignty in this orthodox sense is not at all affected by prorogation. But the Supreme Court expands this principle, by saying that it requires that there be no obstacles, or at least no obstacles created by the executive, in the way of a Parliament that might legislate, as opposed to one that already has.

I wonder how much the Court has thought this through. There is a tension between this understanding of sovereignty and the few that Parliament can complicate the life of its successors by enacting “manner and form” requirements. There is an even stronger tension between this view and the musings of some judges (Lady Hale among them!) about the possibility that Parliamentary sovereignty isn’t quite absolute, and that there might be some laws that Parliament cannot enact (or rather, that Courts would be justified in not giving effect to some laws). Again, future courts might resolve this tension by saying that the expanded version of Parliamentary sovereignty is a single-purpose idea meant to control the executive and not the other branches of government. But I wonder whether, in trying to stave of off the absolutist claims of the executive, the Supreme Court hasn’t provided intellectual ammunition for similar claims by Parliament.

The other way in which Miller (No. 2) departs from past, and indeed very recent, understandings of how the UK constitution (and other constitutions derived from it) works, which I will not address in detail here, has to do with the distinction between the legal and the political constitution. This distinction was a sharp one, or so we were told told by writers such as A.V. Dicey and courts in cases like Re: Resolution to amend the Constitution, [1981] 1 SCR 753 (Patriation Reference) and R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller (No. 1)). Statutes and common law rules were legal and legally enforceable rules; constitutional conventions, political and not legally enforceable. In Miller (No. 2) the lines between these types of constitutional rules are are blurred. This might not be all bad, but I will defer this to a separate post, which I will try to write in a not-too-distant future.

To repeat yet again, I am not criticizing the reasoning in Miller (No. 2) because I approve of, or even regard as at all defensible morally, the actions of the Prime Minister that led to it. The Supreme Court acted out of genuine and perfectly understandable concern with gross abuse of power, for which it found no redress in the orthodox legal toolkit, and so took unorthodox measures. As H.L.A. Hart wrote long ago, in cases where constitutional fundamentals are at stake, courts can reshape them and so transform our understandings of what law even is; “all that succeeds”, he observed, “is success”. Clearly, the UK Supreme Court has been successful. And perhaps that’s all that history will remember.

But the price of present success is, at best, considerable uncertainty about the future. Will the reasoning in Miller (No. 2) ever be followed, and if so, to what end? Will it serve to involve the courts in review of deeply political decisions about foreign affairs, war, and peace? Will the expansion of the understanding of Parliamentary sovereignty rebound it ways we may yet regret? Again, I wonder how much the Supreme Court ― pressed for time as it was, and apparently hoping to deliver a “one off” decision ― has really pondered all this. We, at any rate, have the leisure ― and the need ― to reflect on what it has done.

A Bad Case

As promised, here are some thoughts on the Memorandum of Fact and Law that the federal government’s lawyers have filed in response to Aniz Alani’s challenge of the Prime Minister’s policy of not appointing Senators. (I had previously canvassed what I thought ― mostly, but not entirely, correctly ― would be the main issues in this case here, and commented on the Federal Court’s decision rejecting the government’s motion to strike here.) Full disclosure, before going any further: I have spoken to Mr. Alani about this case, and made some comments on the draft of his own Memorandum of Fact and Law. Whether this makes me biased, you be the judge.

The government makes four arguments for dismissing Mr. Alani’s challenge. First, it says that he does not deserve to be granted public interest standing to pursue it. Second, the claim is, in its view, non-justiciable, because it requires the court to enforce a constitutional convention. Third, even if justiciable, the issue is not within the jurisdiction of the federal court. And fourth, when it comes to the actual merits, the Prime Minister has “broad discretion” as to the timing as well as the contents of his advice.

Note what’s missing here: an actual claim that s. 32 of the Constitution Act, 1867 doesn’t require the appointment of Senators. It’s blindingly clear that it does, and much of the government’s argument is devoted to directing the Court’s attention away from this simple truth. That said, all truths are not to be told by courts generally, and by the Federal Court of Canada specifically, and the government’s arguments on justiciability and, perhaps especially, jurisdiction are serious, albeit presented in a rather misleading way.

The standing argument is more difficult to take seriously. The test for granting a person public interest standing (i.e. the ability to pursue a claim that has no impact on his or her own legal rights) is explained in the Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. There must be a serious justiciable issue ― a point that is treated separately in the government’s submissions (and presumably always will be if it is a live issue in a case, which makes me wonder whether it even should be treated as part of the standing inquiry). The claim must be a reasonable and effective means of getting the issue before the courts. This is normally the most contentious part of the test, but here, the government’s submissions have little to do with the usual inquiry into the existence of alternative ways of getting the issue litigated. They focus, rather, on the other element of the standing test, which asks whether the claimant has a genuine interest in the issue. The government makes much of the the fact that Mr. Alani hadn’t taken an interest in the question of Senate vacancies for any length of time before launching his application. In its submission, this makes him “a ‘busybody’ as the term is defined in the jurisprudence,” [39] a person who doesn’t really care about the issue, and thus undeserving of representing the public interest.

This argument is really beside the point, however. The policy of not appointing Senators is new and unprecedented. Nobody can have demonstrated a long-standing interest in it, because it did not exist, or at least hadn’t been publicly announced, until last winter. Mr. Alani became interested in it as soon as it was possible for anyone to do so. The government’s argument amounts to a suggestion that nobody can bring a public interest court challenge to an unconstitutional government policy for some undefined time after it is put in place, because doing so makes the claimant a “busybody.” This is absurd. As for Mr. Alani himself, right or wrong, he has made a difficult argument very seriously; he has invested a considerable amount of time and effort into it; he doesn’t just come to court with a vague sense of grievance; he has also, I have argued, taken his role as a (self-appointed) representative of the public with more seriousness than most public-interest litigants, or for that matter the government itself, tend to do. In the absence of any other, more effective, vehicle for getting the issue adjudicated, his challenge deserved to be addressed substantively, and not dismissed for lack of standing.

The government’s argument on justiciability is that Mr. Alani “seeks … judicial enforcement of the Prime Minister’s role in Senate appointments.” [45] Courts, according to orthodox constitutional theory, are not in the business of enforcing constitutional conventions, and thus they should not adjudicate Mr. Alani’s claim. Nor is the Supreme Court’s recognition in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, of the existence of a “constitutional architecture” enough to make conventions justiciable.

As I have indicated above, I think that the justiciability issue is a serious one, but not exactly for the reasons the government suggests. Indeed, I think that it is somewhat misleading to describe Mr. Alani’s claim as seeking the enforcement of a convention. Convention says that the Governor General appoints Senators on the Prime Minister’s advice, and not on his own initiative. It eliminates the discretion that the text of the Constitution Act, 1867 seems to give to the Governor General. If the Governor General decides to appoint Senators on his own, without waiting for the Prime Minister’s advice, and the Prime Minister tries to block those appointments, that would indeed be an attempt to enforce a convention. What Mr. Alani is asking for is something else. He wants the Prime Minister to be told that he must advise the Governor General ― not the Governor General to be told that he must follow the Prime Minister’s advice. The duty Mr. Alani is asking the court to enforce is not the Governor General’s, but the Prime Minister’s.

This is, admittedly, a novel claim, and it raises two issues: does the duty in question exist at all, and if so, what is its nature? Contrary to the government’s submissions, I think that the notion of constitutional architecture is pertinent here. The architecture of our system of responsible government involves an advice-giving Prime Minister (in some situations, including Senate appointments) and cabinet (in others). When the relevant actors are refusing to give advice to the Governor General, they are undermining this architecture. This is particularly so when the advice in question is necessary for the Governor General to legitimately perform a clear constitutional duty, such as the appointment of Senators. For this reason, I think that it is quite clear that the Prime Minister does indeed have a duty to advise the Governor General to make Senate appointments. And, while this is less clear, I think that taking the notion of constitutional architecture seriously requires us to conclude that this duty is indeed a legal one.

The federal government’s strongest argument, in my view, is the one about the jurisdiction of the Federal Court, which is only empowered to review decisions of bodies acting pursuant to an Act of Parliament or a Crown prerogative. The government contends that the Prime Minister, in his advice-giving capacity, is not such a body. The heart of Mr. Alani’s argument on this point is his submission that

[i]In the case of Senate appointments, the Governor General enjoys the Crown prerogative power to summon and receive advice from the Prime Minister. The Prime Minister, in turn, has jurisdiction to advise “by a prerogative of the Crown.”

The government’s response is that “[t]he advice is simply provided pursuant to a constitutional convention” [75] ― otherwise, it says, the advice would be binding on the Governor General.

I think this is a difficult question. On the one hand, it’s not obvious to me that if the Governor General has the prerogative to summon advisers and receive and advice (as he does), the advice he receives is given “by” that prerogative. On the other, I think the government is wrong to claim that the non-binding nature of the advice shows that it is strictly conventional in nature. Convention that makes the advice binding, but it does not follow from that that the advice itself is given pursuant to a conventional, rather than a legal obligation. Indeed, as I suggest above, I believe that the Prime Minister does have a legal obligation to provide advice on Senate Appointments ― but again, I’m not sure that this is enough to make this advice into one given “by a prerogative of the Crown,” rather than a duty directly imposed by the constitution, over which, as the government argues, the Federal Court would lack jurisdiction (so that Mr. Alani would have to bring a new case in a provincial superior court if he wants the matter adjudicated).

Finally, on the substantive issue in Mr. Alani’s challenge, the government argues that the remedy he seeks, namely a declaration that Senate vacancies must be filled “within a reasonable time” is too vague to be granted, and that there is no constitutional convention limiting the time a Prime Minister can take to recommend an appointment. The matter is one in which the Governor General (and, presumably, the Prime Minister) has a “wide discretion.” [89]

One thing that comes to mind in response is Justice Rand’s famous statement in Roncarelli v. Duplessis, [1959] SCR 121, that “In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator.” (140) The context is not quite the same ― we’re not talking about economic regulation or even administrative law, but the warning is apposite. The Governor General does, undoubtedly, have some discretion, perhaps wide discretion, in complying with s. 32 of the Constitution Act, 1867, because a Senate appointment is, or should be, a serious political decision which may reasonably take some time. But this discretion cannot be abused in every which way a Prime Minister thinks expedient.

And, once again, the government’s emphasis on (non-existent) conventions is rather beside the point. The issue here is not that some one vacancy has gone unfilled for too long. It is that the Prime Minister has announced a policy of not filling them at all. If the existence of a constitutional convention cannot overturn clear constitutional text, then surely the non-existence of a convention cannot do so either. Yet that is exactly the government’s contention: no convention specifies how quickly s. 32 must be complied with, therefore s. 32 need not be complied with at all. This too is absurd.

When a court finally reaches the merits of Mr. Alani’s claim, it ought to rule in his favour. The government’s substantive submissions are feeble ― not because its lawyers are bad, but because its case is. But whether the Federal Court is the court that can address the merits of this case is a difficult question, to which I am unable to suggest a definitive answer.

Let’s Hear It

I’ve mentioned Aniz Alani’s challenge to the constitutionality of the Prime Minister’s apparent and admitted policy of not making any Senate appointments before. The federal government moved to strike Mr. Alani’s application for judicial review, arguing that it had no chance of success, and also that the Federal Court had no jurisdiction to hear it. Yesterday, that Court’s Justice Harrington rejected the motion to strike, thus allowing the application to proceed to a hearing on the merits. It is important to keep in mind that this is not a decision on the substance of any of the multiple issues Mr. Alani’s application raises. Indeed, Justice Harrington is very careful to make it clear, throughout his reasons, that these issues are very much open. Still, these reasons might give us some indications of what the eventual merits ruling could look like.

The issues presented by this case can be sorted in four categories. Logically the first is the question of whether the constitutionality of senatorial non-appointments is justiciable at all. Then there is the procedural question of whether Mr. Alani’s application to the Federal Court is the right way to raise it. Justice Harrington mostly considers a variety of sub-questions that can be grouped under these two headings, dealing with procedure first and with justiciability second.

What I have in the preceding paragraph called the procedural question is actually mostly one of jurisdiction. Justice Harrington briefly considers the matter of Mr. Alani’s standing, but does not really go beyond “grant[ing] him standing on a public interest basis to oppose the motion to have his application struck.” [11] He also comments on the question of whether there is a “decision” not to appoint Senators which the Federal Court could review. If there is no decision, Justice Harrington suggests when considering some amendments Mr. Alani proposed making to his application, then the application becomes a pure “reference” on a point of law, which the Federal Courts Act does not authorize an individual to pursue. The Federal Court would, in other words, be without jurisdiction to entertain a challenge not focused on a “decision.” For the purposes of a motion to strike, Justice Harrington is prepared to assume that a “decision” has been made, but he seems somewhat skeptical. This is likely to be a problem for Mr. Alani going forward, as I had already suggested here.

The other jurisdictional question Justice Harrington addresses is also one I had pointed at. Even assuming that the Prime Minister has made a “decision,” within the meaning of the Federal Court Act, not to advise the Governor General to appoint Senators, does this decision fall within the scope of the Federal Court’s review powers? More precisely, the government contended that decisions regarding advice do not fall within the scope of Crown prerogative, and are thus nonrenewable. Justice Harrington does not decide this point, but rather says that there is enough doubt about it to leave it open to a hearing on the merits. (It is worth noting, though, that he does not once mention the concept of “constitutional architecture,” which in my view is Mr. Alani’s best hope of bringing the issue of the Prime Minister’s advice within the legal, as opposed to the purely conventional, realm.)

As for the justiciability issues involved in Mr. Alani’s challenge, they all have to do with the role of constitutional conventions in the appointment of Senators. All agree that there is a convention pursuant to which Senators are appointed by the Governor General on the Prime Minister’s advice. The government has argued that, as conventions are not legal rules or legally enforceable, the whole matter non-justiciable. Justice Harrington suggests that this is not so. He notes that the government has not argued that a convention governs “the timing of the Prime Minister’s recommendations” to the Governor General, and adds that

[c]ertainly, at some stage, senators have to be appointed. If there were to be no quorum, (the quorum being fifteen), Parliament could not function as it is composed of both the House of Commons and the Senate. [17]

Justice Harrington goes on to say that courts can determine whether a convention exists, and that if the government wants to rely on one, it will not only have to establish its existence, but possibly also show that any convention it relies on does not “flaunt[]” the requirements of the Constitution Act, 1867, “that Senate vacancies be filled” “promptly” [18] ― though the existence of such a requirement is also left to be established (presumably by Mr. Alani) at the merits stage of the application. Finally, Justice Harrington suggests that, contrary to the government’s contention, the court could make a declaration even if doing so has the effect of making the government follow a convention.

It is good, I think, that Mr. Alani’s challenge will be considered on the merits. It underlying premise, that the timely appointment of Senators to fill vacancies is a constitutional requirement pursuant to s. 32 of the Constitution Act, 1867, seems to me obviously correct, and since the Prime Minister, as well as one of the men hoping to replace him, are committed (the latter perhaps even more strongly than the former) to disregarding the constitution, it would be good if the courts could call them to order. That said, it is still not clear that the Federal Court is actually authorized to do that. Specifically, it remains to be seen whether the Prime Minster’s course of action can be regarded as a reviewable decision and, if so, whether it is the sort of decision the Federal Court has jurisdiction to review. Courts, unlike Prime Ministers, cannot simply ignore pesky legal rules that might stop them from doing what they think is best.

Please Advise

The Prime Minister is apparently refusing to have any new Senators appointed, until, well, who knows (though one may suspect that it is until the next election. The leader of the official opposition has already declared that he would never appoint any Senators ever. And, as I noted in my first post on this subject, a Vancouver lawyer, Aniz Alani, has asked the Federal Court of Canada to put an end to the Prime Minister’s subversion of section 32 of the Constitution Act, 1867, which provides that “[w]hen a Vacancy happens in the Senate … the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.” Mr. Alani’s suit raises a number of interesting questions. In this post, I address some of them.

Although his notice of application names both the Prime Minister and the Governor General as respondents, Mr. Alani’s challenge is framed as an application for judicial review of the Prime Minister’s “decision … not to advise the Governor General to summon fit and qualified persons to … the Senate.” He seeks declarations to the effect that the Prime Minister must so advise the Governor General, and that his failure to do so is an unconstitutional violation both of the relevant provisions of the Constitution Act, 1867 and of underlying constitutional principles.

Before getting to the substantive issues this raises, a few words about preliminary matters. An issue that I will only flag, but not address, is that it can be difficult to show that a course of not doing something amounts to a decision not to do it that is amenable to judicial review. Assuming that Mr. Alani can clear that hurdle, he may also need to convince the court to grant him public interest standing, to pursue his challenge, since the non-appointment of Senators does not injure or affect him personally any more than any other citizen. The factors a court will consider in deciding whether to grant public interest standing are the existence of a serious justiciable issue, on which more below, though if the federal courts follow the Québec Court of Appeal’s recent decision in Canada (Procureur général) c. Barreau du Québec, 2014 QCCA 2234, they will not impose a high threshold here at the standing stage; the seriousness of the applicant’s interest; and the existence of alternative ways of getting the matter before the courts, which should not be an issue here.

Once these matters are out of the way, the biggest substantive issue with Mr. Alani’s application is the way in which it involves constitutional conventions. This arguably goes at once to the jurisdiction of the Federal Court under section 18.1 and to the justiciability of his claims under the general principles courts apply in cases where their power to decide a question is uncertain. To repeat, Mr. Alani’s application aims squarely at the behaviour of the Prime Minister, and not that of the Governor General. Yet the text of the Constitution Act, 1867 gives the power and the duty ― the word “shall” in section 32 is dispositive in this regard ― to appoint Senators to the Governor General. Pursuant to a constitutional convention, this power is exercised on the Prime Minister’s advice. But, on the orthodox view, that convention itself is not a legal rule, and there is no legal link between the Prime Minister and the appointment of Senators.

Thus, Mr. Alani may have some difficulty showing that his application raises at least one of the “grounds of review” which give the Federal Court jurisdiction under subsection 18.1(4) of the Federal Courts Act. At least on the orthodox view of a rigid separation between law and convention, the Prime Minister has not “refused to exercise [his] jurisdiction,” “failed to observe a … procedure that it was required by law to observe,” or “acted in any other way that was contrary to law.” The law, on this view has nothing to say about the Prime Minister’s behaviour with respect to the appointment of Senators. For the same reason, the government could argue that the a Prime Minister’s decision to advise or not to advise the Governor General is a purely political one, and therefore lacks a “sufficient legal component” to be justiciable.

The Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, complicates things, however. The Court introduced a notion of “constitutional architecture,” which seems to encompass the relationships between the various institutions of government, such as that between the Senate and the House of Commons. The Court took the position that making the Senate, in effect, elected would alter the constitutional architecture by making it the equal of, rather than the complement to, the House of Commons. Until then, we thought that the reason the Senate (normally) yielded to the House of Commons was a constitutional convention, rather than a legal constitutional norm.

Mr. Alani could invoke this notion of constitutional architecture, which is part of the legal and not only the conventional constitution, to argue that the Prime Minister’s actions ― or rather his inaction ― infringes on the “constitutional architecture” which makes him responsible for ensuring, by giving timely advice as to the identity of “fit and qualified persons,” that the Governor General can discharge his duty under s. 32 of summoning them to the Senate “when a vacancy arises.” Whether the courts would accept this argument remains to be seen. It seems at least plausible to me, but the notion of architecture is too new and too uncertain to make any predictions about the ways in which it might be applied in the future.

But even if Mr. Alani can overcome the difficulty of showing that the Prime Minister’s behaviour actually contravenes a legal rule, he will further need to convince the courts that the remedies he is seeking are appropriate. (Although I cannot develop the argument for this proposition here, I think that the courts’ decisions on justiciability are often dependent on their views of their remedial powers, and not only on the nature of the rules at issue in a case.) Mr. Alani is asking the court to declare that “the Prime Minister … must advise the Governor General to summon a qualified Person to the Senate within a reasonable time after a Vacancy” arises, and that he is acting unconstitutionally by failing to do so. But such a declaration would not be very helpful, because it would not specify what a reasonable time is. Unfortunately, it is probably impossible for a court to be any more specific, given the politically sensitive nature of any Senate appointment, not to mention the absence of any clear time limit in the constitutional text.

Now the Supreme Court has occasionally issued fairly vague declarations or statements of the law, often in the context of references (such as the Reference re Secession of Quebec, [1998] 2 S.C.R. 217). The one “normal” case where the Court did that, which immediately comes to mind, however, is Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, where the Court declared that the Canadian government had acted unconstitutionally, and said, in effect, that it ought to do something about that. But the government’s ― this Prime Minister’s government’s ― response to that decision was arguably perfunctory, and the same might happen in this case. A declaration that the Prime Minister is acting unconstitutionally may well be met with further inaction, and might thus only serve to undermine the courts’ authority. I am not sure that the courts will, or indeed that they should, risk such an outcome.

The constitutional rule set out in section 32 of the Constitution Act, 1867, seems clear enough. But the role of constitutional conventions and concerns about the remedial powers of the courts, not to mention administrative law and standing issues, might still prevent it from being judicially enforceable. This seems problematic from the perspective of the Rule of Law ― but then again, a rule of this sort never intended to be judicially enforced. A Prime Minister’s self-interest in making patronage appointments can normally be counted on to ensure that appointments to the Senate will be relatively expeditious. Unfortunately, when the incentives on which a constitutional scheme implicitly relies break down, the constitution itself becomes dysfunctional ― indeed, we may well speak of a constitutional crisis, albeit not yet an acute one ― and it’s not obvious what can be done about that, or by whom.

Challenging Succession, Round 2

Yesterday, in Teskey v. Canada (Attorney General), 2014 ONCA 612, the Court of Appeal for Ontario rejected a Charter challenge to the Succession to the Throne Act, 2013, a law that purports to “assent[] to” the changes to the rules of royal succession laid out in a British bill (and agreed to by the heads of government of the Commonwealth). This decision upholds the one issued by the Superior Court of Justice last year, about which I wrote here. In my view, like that decision, that of the Court of Appeal may well reach the correct outcome, although its reasoning is deeply flawed. And to the extent that it is correct, it only strengthens a different challenge to the Succession to the Throne Act.

The appellant, who represented himself (as he had done at first instance), argued that the continued exclusion of Catholics from the line of succession, which the Succession to Throne Act does nothing to address, infringes the equality rights guaranteed by the Charter. But, like the Superior Court, the Court of Appeal concludes that the case

does not raise justiciable issues and that Mr. Teskey lack[s] standing to bring the application. The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing.

I agree with the Court on the matter of standing. Even under the relaxed public interest standing test, a claimant’s capacity to develop his argument in a manner that will be helpful to the court is a relevant consideration, and it’s not clear that Mr. Teskey had such a capacity; nor is it clear, as the Court says, what his interest in the issue is.

However, there are several problems with the Court’s reasoning. One is that, assuming that the Succession to the Throne Act is not subject to the Charter because succession rules “are incorporated into [the Constitution] and therefore cannot be trumped” by it, this is not a matter of “justiciability.” As I explain in my post on the decision at first instance,

[j]usticiability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis.

An issue that does go to justiciability, at least in a broad sense, is whether the Court can address a constitutional challenge to a statute which has not even been proclaimed into force. I’m not aware of any such case, and I have serious doubts about a court’s power to entertain such a challenge ― but here, the Court of Appeal does not even raise this question.

And then, there is the matter of the grounds for the Court’s assertion that the rules of succession are a part of the Constitution. The Court doesn’t explain why this is so ― yet these rules are certainly not an explicit part of any enactment which s. 52 of the Constitution Act, 1982 lists as being part of the Constitution.

The Court’s assertion is, however, probably correct because, I wrote last year, the “office of the Queen” entrenched by par. 41(a) of the Constitution Act, 1982, “arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic.” Since then, the Supreme Court has held, in L’affaire Nadon, that the “composition” of the Supreme Court (entrenched by a different paragraph of s. 41) includes the eligibility criteria for judges, a conclusion which I think suggests (although probably does not require) that the phrase “the office of the Queen” should also be interpreted to include eligibility criteria.

But if the rules of succession to the throne are indeed “a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter,” it follows that, a fortiori, they cannot be amended by an ordinary act of parliament, such as the Succession to the Throne Act. If they are part of the constitution, they must be changed by a constitutional amendment. If I am right that they are part of the constitution by virtue of par. 41(a) of the Constitution Act, 1982, this amendment requires the unanimous consent of the provinces. I take it that Mr. Teskey did not make this argument, and that the Court could therefore not consider it, but it is at the heart of a challenge launched by a group of constitutional law professors in Québec. Like the Superior Court before it, the Court of Appeal has given that challenge additional ammunition. When it is finally heard ― not before next summer, apparently ― it will become clear that, just like with its Senate reform project, and the appointment of Justice Nadon, the federal government chose to take a shortcut to avoid formal constitutional amendment ― and has ended up violating the constitution.

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.

Operation Dismantle at the Olympics

Citizens concerned that the deployment of a weapons system in their place of residence will expose them to an increased risk of a devastating attack turn to the courts to try to block the deployment. They fail. To a Canadian constitutional law junkie, that’s the short story of Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. But that is also the story, on which the BBC reports, of a group of London residents who tried to challenge the decision by the British defence ministry to install a missile system on the roof of their apartment building as part of the security deployment for the upcoming Olympics. The High Court rejected their claim yesterday in Harrow Community Support Ltd v The Secretary of State for Defence, [2012] EWHC 1921 (Admin). But although the two cases can, I think, be fairly summarized in much the same way, there are substantial differences in the courts’ reasoning.

Operation Dismantle was an attempt by a coalition of civil society groups to block the testing of American cruise missiles in Canada on the ground that it increased the likelihood of nuclear war and thereby contravened Canadians’ right to the security of the person, protected by section 7 of the Charter. The Supreme Court had “no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter” (455) – and that the judiciary could verify compliance with this duty even of a cabinet decision having to do with foreign policy (459).

However, the Court held “that the causal link between the actions of the Canadian government [in allowing the missile test to go forward], and the alleged violation of appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action” (447). Chief Justice Dickson insisted that judicial “remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof” (456). The problem for the appellants was that given the inherent uncertainty of international relations, “it is simply not possible for a court, even with the best available evidence, to do more than speculate upon” (454) the consequences of the decision to allow missile tests. And as subsequent decisions of the Supreme Court show, the same can be true of other governmental decisions in the realm of foreign policy. Thus the actual consequences of the Supreme Court’s holding that “disputes of a political or foreign policy nature may be properly cognizable by the courts” (459) are rather less far-reaching than they might first seem to be. A sweeping assertion of judicial power is combined with a very cautious approach to its exercise.

The decision of the High Court might seem to be, in a sense, the opposite. Justice Cave-Haddon professes extreme caution, asserting that “[m]ilitary operational deployments for reasons of national security are matters for which the Government is answerable to Parliament and not – absent bad faith or acting outside the limits of the discretion – the Courts” (par. 27). And yet he makes – on the strength of a fairly scanty record quickly put together for an application heard on an expedited basis – detailed findings of fact, including a finding regarding degree to which the installation of the missile system makes the claimants’ apartment block more likely to be a terrorist target. Unfortunately for claimants, this degree is, in the judge’s view, nil. The claimants lose, but – purportedly – on the merits, rather than because their claim is inherently incapable of prof.

The reason for my skepticism as to whether this really is a decision on the merits is that the judge appears to have accepted with no reservations the government’s testimony, and in particular that of the general responsible for the military’s Olympics security deployment. Now it is not clear whether, or how seriously, the claimants challenged that evidence. But what seems clear enough is that much of it was opinion (about the missiles’ necessity, safety, etc.), not fact capable of proof in court. And even if we treat such testimony as expert evidence, what chance would the claimants have had to challenge it even if they had tried? A high-ranked military officer is, after all, presumably the best expert on such questions, and a court would be naturally inclined to defer to him.

Perhaps it is better simply to admit, as our Supreme Court did in Operation Dismantle, that the allegations of claimants in such cases are not capable of proof. Or to hold, as both the English High Court and our Supreme Court ostensibly did not,  that such cases are, quite simply, not justiciable.