Doré’s Demise?

What do the Supreme Court’s latest decisions mean for judicial review of administrative decisions that implicate the Charter?

In my last post, I wrote about the religious freedom issues addressed in the Supreme Court’s recent decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa, this time to address a different issue that has, so far as I know, attracted relatively little attention: that of the standard of review of the Minister’s decision. On this point, the majority opinion (by the Chief Justice and Justice Rowe) and the concurrence (by Justice Moldaver) illustrate the ongoing failure of the Rule of Law in the Supreme Court’s jurisprudence.

Let’s start with a bit of history. In Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, Justice Abella, for writing for the unanimous Supreme Court, articulated a framework “for reviewing discretionary administrative decisions that implicate Charter values”. [34] Such review would be deferential, conducted on a reasonableness standard, much like judicial review of most other legal issues, in recognition of administrative decision-makers’ expertise. This approach has been heavily criticized, not least by Paul Daly and Maxime St-Hilaire, but the Court has never overtly resiled from it. However, the application of Doré has been uneven, to say the least.

In Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, the majority opinion, written by Justice Abella, applied the Doré framework. However, as both Paul Daly and yours truly have suggested, there is little to choose between the way it does so and a more traditional proportionality analysis. Meanwhile, a partial concurrence by the Chief Justice and Justice Moldaver eschewed the Doré approach altogether. Just days later, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, a majority of the Supreme Court took yet another approach, holding that the relationship between the freedom of religion, religious neutrality, and prayer by government officials was a question of central importance to the legal system and therefore reviewable on a correctness standard. Justice Gascon, writing for the majority, did offer an explanation for why this case was different, though one that Paul Daly criticized as confused and confusing. Justice Abella was also unimpressed; she concurred, but would have reviewed the decision of Québec’s Human Rights Tribunal on a reasonableness standard. Neither she nor Justice Gascon even mentioned Doré.

Back, now, to Ktunaxa. Again, the majority opinion does not so much as mention Doré. What is more, it does not even raise, never mind address, the issue of the standard of review. After describing the background and the history of the case, and outlining the Ktunaxa’s religious freedom claim, it proceeds to discuss the Charter right to freedom of religion and to address and reject the claim, without referring, much less deferring, to the Minister’s decision at all. It is worth noting that the Supreme Court’s next decision, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, is the same in this regard. One of the issues raised there was whether a policy requiring government lawyers to be available, several weeks a year, to handle urgent matters outside of regular working hours was an infringement of their right to liberty under section 7 of the Charter. A labour arbitrator said that it was, but the Court (unanimous on this point) easily rejected that view, again without addressing either the question of the standard of review or the administrative decision-maker’s reasoning (though the majority did discuss it at length on the other issue in the case, which concerned the interpretation of a collective agreement).

Justice Moldaver’s concurrence in Ktunaxa is also worth mentioning here. He too starts out with his own discussion of the scope of religious freedom under the Charter, criticizes the majority’s view on it, and insists that the Minister’s decision was a prima facie infringement of that right. And then, Justice Moldaver turns to… the Doré framework (citing the majority opinion in Loyola for the proposition that it is “the applicable framework for assessing whether the Minister reasonably exercised his statutory discretion in accordance with the … Charter“. [136] Justice Moldaver explains why he thinks the Minister considered the Ktunaxa’s religious rights, and why his decision proportionately balanced these rights with the applicable statutory objective, paying fairly close attention to the minister’s reasoning.

So what is going on? Prof. Daly seems to think that not much is, but I’m not so sure. Without telling anyone, the Supreme Court might have killed off, or at least curtailed, Doré. Ktunaxa and Justice Counsel seem to suggest that, at least at the stage of defining the scope of a Charter right, Doré is not the applicable framework, and indeed no deference, or even attention, is due to an administrative decision-maker’s reasoning. Now, I’m no fan of Doré, and would be glad to know it’s dead and buried ― but if the Supreme Court has decided to get rid of it, that seems like a pretty big deal, and it should have told us. As things stand, for all we know, the Court might re-embrace Doré in the next case and pretend that Ktunaxa and Justice Counsel never happened, just as in those cases it seems to pretend that Doré, or at least Saguenay, never happened.

Moreover, there is an intermediate possibility, suggested by Justice Moldaver’s concurrence in Ktunaxa ― though of course we have no idea what the majority of the Court thinks about it, since it does not comment on this, or indeed any other, aspect of Justice Moldaver’s reasons. Perhaps, while the definition of Charter rights, as opposed to the justifiability of infringements under section 1, is a matter for the courts, while the justifiability of infringements is still to be reviewed by applying the Doré framework, perhaps as modified, if modified it was, in Loyola. This is not a crazy approach (which isn’t to say that I like even this diluted version of Doré). One could argue that the scope of Charter rights is necessarily a question of central importance to the legal system on which administrative decision-makers, even otherwise expert ones like labour arbitrators, are not in a privileged position vis-à-vis the courts, while whether a particular restriction to a right is permissible is an issue that is both less important and more bound up with a particular decision-maker’s expertise.

Crazy or not, I don’t think this approach is what Doré stands for. As I read it, Doré meant to move away from the two-stage Charter review with prima facie infringement and justification, in favour of a less structured, more global assessment. This is presumably why Justice Abella persistently spoke of Charter “values” instead of rights. Besides, at least one of the cases that Justice Abella invoked as supporting the proposition that discretionary administrative decisions engaging these “values” had to be reviewed on a reasonableness standard was a section 7 case, and in such cases the important questions typically (although, as we now know, not quite always) have to do with the definition of the right, not with its limitation under section 1. There just isn’t any indication in Doré that Justice Abella or her colleagues meant to confine it to the more limited role that it plays in Justice Moldaver’s Ktunaxa concurrence.

At the very least, then, the Supreme Court may have substantially modified Doré. Perhaps it has decided not to follow it anymore. But, to repeat, the Court has not told us so. This is problematic. Indeed, I think the Court is guilty of a serious Rule of Law failure. The Rule of Law requires law to be stable ― though not unchanging, to be sure ― yet the law on the standard of review of administrative decisions involving the Charter has now changed at least three, maybe four (depending on how to count Loyola) times in less than six years. The Rule of Law also requires, I think, that the fact of legal change be transparent (this is a function of the generally recognized requirement that law must be public). This is not always easy to ensure in the case of law being articulated and re-articulated by courts in the process of adjudication, but at least when a court knows that it is disregarding a relevant precedent or changing its approach to a type of case, it ought to be able to say so. The Supreme Court did so in Saguenay ― but not in Ktunaxa and Justice Counsel.

Or, look at this another way. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court famously spoke of the importance of “the existence of justification, transparency and intelligibility within the decision-making process”. [47] That was by way of defining the notion of reasonableness in administrative law (itself a requirement of the Rule of Law), but you’d think that the courts should at least be held to as high a standard as administrative tribunals. Well, I’d say that it’s not easy to see much by way of justification, transparency, or intelligibility within the process by which the Supreme Court determines the standard of review of administrative decisions involving the Charter these days.

One last point. Justice Stratas links the doctrinal uncertainty that bedevils Canadian administrative law with turnover on the Supreme Court. I’m sure that this is a part of the story ― but Ktunaxa suggests that it is only a part. It’s not just that judges retire and are replaced by others who don’t agree with them. They don’t even stick to one approach while they are on the Court. Justice Abella wrote Doré and defended deferential review in Saguenay, but she signed on to the majority opinion arguably ignoring it in Ktunaxa. Justice Moldaver co-wrote the partial concurrence in Loyola that effectively rejected Doré, but in Ktunaxa he enthusiastically applied it, albeit not in full. (To be sure, there is something to be said for a judge who accepts having been outvoted on a particular issue and falls in line with the majority. But given the overall uncertainty of the law in this area, it might not be the best place to demonstrate one’s team spirit.) Given this individual inconstancy, it is no surprise that the Supreme Court as a whole is lurching from one approach to another without anything to stop it.

Given the lack of clarity from the Supreme Court about what exactly it was doing to standard of review analysis in Ktunaxa and Justice Counsel, we will have to wait to find out whether these case are just aberrations or the start of a new trend. It is at least possible, however, that they mean that Doré is, in whole or in part, no longer good law. I’d offer three cheers for that result, but must instead lament the lack of clarity and transparency with which it has ― unless it has not ― been reached.

A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”. Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. But as Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter’s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.

Which Principles? What Politicization?

A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada

In a blog post over at Advocates for the Rule of Law (and in a previous version at À qui de droit), my friend and sometime guest Maxime St-Hilaire argues that

The greatest challenge facing the Supreme Court of Canada is the risk of its politicization, understood … as a form of adjudicative practice that is not governed by legal rules, legal principles, or other legal norms and that does not restrict itself to deciding justiciable questions.

Whether or not “politicization” is the best possible label for this sort of adjudication, and whether or not it is the greatest challenge facing the Supreme Court ― both plausible but debatable propositions ― I agree that the danger Prof. St-Hilaire identifies is a serious one. It is a challenge, moreover, not only for the Court, or even the judiciary as a whole, but for the legal profession, which is too readily supportive of adjudication that does not abide by the requirements of the Rule of Law.

However, precisely because this is a very serious issue, it is important to be careful in circumscribing it ― not to accuse the Supreme Court of being “political” or disregarding the Rule of Law when it is not. And here, I part company with Prof. St-Hilaire to some extent. Some of the specific instances of politicization that he identifies are indeed examples of the Court failing to act judicially or to uphold the law. Others, in my view, are not.

I agree with Prof. St-Hilaire’s criticism of the Supreme Court’s theoretical embrace of living constitutionalism in theory ― and its practical embrace of interpretive eclecticism with few if any principles to constrain cherry-picking interpretive approaches. If, in other jurisdictions, there is such a thing as a “law of interpretation” (to borrow the title of a recent article by William Baude and Stephen E Sachs), constitutional interpretation in Canada seems to be largely lawless, as most recently highlighted by Benjamin Oliphant. Indeed, I would go further than Prof. St-Hilaire (if I understand him correctly), and argue that judges ought to be originalists in order to uphold the principles of the Rule of Law and constitutionalism, because, as Jeffrey Pojanowski argues,

if one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms.

I share Prof. St-Hilaire’s unease at the Supreme Court’s often unprincipled practice of suspending declarations of invalidity of legislation. While I once argued that this device had some redeeming virtues, the Court’s failure to articulate and apply coherent principles for deploying it nullifies these virtues. As things currently stand, the Court’s approach to suspended declarations of unconstitutionality is yet another manifestation of the sort of uncabined discretion that is antithetical to the Rule of Law.

I also agree with Prof. St-Hilaire that the Supreme Court’s approach to review of allegedly unconstitutional administrative decisions under the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 is a “denial of constitutional justice”. (That said, it is worth noting that the Court’s application of this framework is a mess, and it might matter less than the Court itself suggests ― though is a Rule of Law problem in its own right.) And I agree with Prof. St-Hilaire’s criticisms of the Court’s approach to s 15 of the Canadian Charter (including because it is flatly inconsistent with its original meaning, as Justice Binnie, among others, openly recognized).

Now on to some of my disagreements with Prof. St-Hilaire. Some of them we have already canvassed at some length. I remain of the view (previously expressed here) that judges can, in appropriate cases, criticize the legitimacy of their colleagues’ adjudicative techniques. Indeed, I am puzzled by prof. St-Hilaire’s insistence on the contrary. Can a judge who agrees with his critique of the Supreme Court not say so? I also remain of the view, that courts can, subject to usual rules on justiciability, pronounce on constitutional conventions, which are not essentially different from legal rules. I most recently expressed and explained this view in a post here criticizing the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, and in this short article for a special issue of the Supreme Court Law Review.

New, to this space at least, is my disagreement with Prof. St-Hilaire on the scope of the doctrine of res judicata and the force of stare decisis. Prof. St-Hilaire accuses the Supreme Court of “conflating the two principles”, and of playing fast and loose with both. In his view, stare decisis is about “the general/indirect jurisprudential authority of judicial reasons”, while res judicata concerns “the particular/direct authority of judicial decisions per se, and taken separately”. When the Supreme Court upheld the constitutionality of the criminalisation of assisted suicide in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, that rendered the matter res judicata, and should have prevented the courts, including the Supreme Court itself, from revisiting the matter, as they eventually did in Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331. More broadly, the Supreme Court has been too cavalier with precedent, in particular in the area of labour law.

I agree with Prof. St-Hilaire that the Supreme Court has in some cases ― especially those concerning the purported constitutional rights of labour unions ― disregarded precedent without any compelling reason to do so. For reasons best explained, I think, by Jeremy Waldron, a fairly robust version of stare decisis is an important component of the Rule of Law. However, in my view, prof. St-Hilaire takes this point much too far. For my part, I am content to accept the Supreme Court’s explanation in Canada (Attorney General) v Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 SCR 477 that “res judicata … require[s] that the dispute be between the same parties”, as well as on the same issue, while stare decisis is the broader ― and more flexible ― principle that applies “when the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata“. [25] This is not merely a terminological dispute. The point is that courts should be able to reverse their own decisions, albeit with the greatest circumspection.

Without fully defending my views, I would argue that the criteria set out in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 are a sound guideline, provided that they are rigorously applied (which they were not in the labour union cases). Precedent, the Court held,

may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [42]

I think this is right, because while the stability of the law, its diachronic coherence, is very important, the law’s consistency at any given time point, its ability to remain a “seamless web”, or synchronic coherence, is important too, and also a requirement of the Rule of Law. These two dimensions of legal coherence are in tension, and sometimes in conflict, and I think it is a mistake to say, as I take it Prof. St-Hilaire does, that diachronic coherence must always prevail. Perhaps more controversially, I am inclined to think that there is also a case to be made for the proposition that the Rule of Law can accommodate, if it does not positively require, departures from precedent that serve to make the law make sense in light of changed circumstances and evidence. The ideas of non-arbitrariness and congruence between the law on the books and its real-world application at least point in that direction, though the argument would be worth developing in more detail.

I will end where Prof. St-Hilaire begins: with judicial appointments. (Of course, the process of appointment is not part of adjudication. But it makes sense to consider it in a discussion of the danger of the politicization of the Supreme Court, even though it doesn’t fit within Prof. St-Hilaire’s definition of that term.) Prof. St-Hilaire criticizes the inclusion of “parliamentary consultation” in the appointment process, and I agree with him to that extent. However, I do not share the main thrust of his comments, which is that we need to move “from more political criteria to increasingly professional criteria in the selection of” Supreme Court judges. Political control over judicial appointments is an important check on the power of the courts, as well as an indispensable means to inject some much needed ideological diversity into the judiciary. The current judiciary and legal profession are too homogeneous ― in their thinking, not (only) their skin colour ― for a “professional” appointments process to produce a judiciary that does not all believe the same pieties (including pieties about living constitutionalism and other things that Prof. St-Hilaire criticizes!). That said, since politicians should have the responsibility for judicial appointments, it is also politicians who should be held accountable for them. As Adam Dodek has suggested, the Justice Minister who should appear before Parliament to explain the government’s choice of Supreme Court judges ― but not (and here, I take it, I part company with prof. Dodek) the new judges themselves.

I share Prof. St-Hilaire’s view that “the Supreme Court must choose principle over politicization”. I am looking forward to the Runnymede Society’s forthcoming conference at which this call will no doubt be much reiterated ― including by yours truly. That said, though it reflects a nice sentiment, an appeal to principle over politics does not tell us very much. It leaves open both the question of what principles one should adopt, and of counts as objectionable politicization rather than mere good faith error. Prof. St-Hilaire and I disagree about that to some extent, as I have endeavoured to show. The debate must, and will, continue, and we should have no illusions about settling it with high-minded slogans.

The Originalist Papers

Benjamin Oliphant’s and my articles on originalism in Canada are officially out

Last year, I posted here the abstracts of two draft papers that Benjamin Oliphant and I had just finished writing. I am happy to report that both have now been published. The first one, “Has the Supreme Court of Canada Rejected ‘Originalism’?“, (2016) 42:1 Queen’s LJ 107, appeared back in January (despite what the journal says about the date!). The second, “Originalist Reasoning in Canadian Constitutional Jurisprudence“, (2017) 50:2 UBC L Rev 505, has only just come out.

In a nutshell, the first paper argues that, once we take stock of the developments in originalist thought (especially in the United States) over the last 30 years ― which too many Canadians who reject originalism out of hand have not done ― we realize that the answer to its title question is “no”. The precedents that are usually said to represent rejections of originalism do not support this conclusion. At most, they reject a type of originalism that no serious contemporary originalist endorses; they leave open the question of whether other originalist approaches might be used by Canadian courts.

The second paper answers this last question, from a descriptive perspective. It shows, with a variety of example drawn from the decisions both of the Judicial Committee of the Privy Council and the Supreme Court Canada, spanning most of our constitutional history since Confederation, that our jurisprudence is replete with examples of originalist reasoning of various sorts. In some cases, courts look to the meaning of constitutional provisions at the time of their enactment; in others to the intentions of their framers; and in a few, perhaps even to the exact way in which the framers would have expected these provisions to operate. We do not claim that our constitutional law is systematically originalist; nor do we claim, in this paper anyway, that it ought to be. But we do argue that originalism has a significant, if underestimated, presence in Canada, and deserves careful study and serious consideration by Canadian lawyers, whether they be in practice, in academia, or on the bench.

Working on these papers has been a whirlwind. We’ve gone from discussions about putting together the couple of blog posts we’d written on originalism (which, we thought, would be enough to make up 3/4 of the single paper we were intending to write) to two published papers totalling 130 pages in just over 18 months. The papers took up a big part of my life (during an otherwise busy period involving the little matter of moving to New Zealand) ― and I’m pretty sure that it was the same for my co-author. I am very glad that these papers are now out of our hands, and beyond the reach of last-minute edits ― though you will see that we did our best on that front, even adding a post-script to the second paper after the Supreme Court granted leave to appeal in R v Comeau, the “free the beer” case, just a few weeks ago. (Thanks to the UBC Law Review editors for accommodating us!)

I do hope that we will return to this topic eventually, though. Working with Mr. Oliphant has been a real pleasure, and I am very grateful to him for having taken time out of his busy life as an actual lawyer to go on this crazy adventure. If all goes well, you will hear from us (jointly or severally, and perhaps both) again. But for now, I at least will celebrate a bit. (No, not really. I have other papers to write.) And you, well, you should read our papers, if you haven’t yet!

The Court on Conventions

Shameless self-promotion for my latest academic article

In academia if not so much elsewhere, the sesquicentennial of Confederation is being used an occasion for some retrospectives on Canada’s constitutional development that go back further than what Ian Holloway ironically calls the “year zero” of 1982. One such retrospective was a very successful conference organized by Matthew Harrington that was held at the Université de Montréal a couple of weeks ago; another, not coincidentally, is a book/special issue of the Supreme Court Law Review edited by prof. Harrington. The book consists of chapters by various Canadian academics examining specific areas of the Supreme Court’s jurisprudence in the realms of constitutional structure, individual rights, and private law.

My own contribution deals with constitutional conventions. In a nutshell, it is a review of the Court’s engagement with constitutional conventions, from the 1930s and into the early 21st century ― I don’t discuss the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, because that discussion would have required a separate, and longer, paper. (That paper is what I presented at the UdeM conference; I hope to have it ready for submission soon enough.) I do review some of the scholarly responses to that jurisprudence, and reiterate my own view that the Court’s take on conventions is misguided and should be revisited. Here is the abstract:

Conventions are among the most important rules of the Canadian constitution. Yet orthodox legal theory does not recognize them as being rules of law, a view which the Supreme Court of Canada endorsed in the Patriation Reference. Nevertheless, both before and after the Patriation Reference, the Court’s jurisprudence engaged with existing or alleged constitutional conventions. This article reviews this jurisprudence, and the scholarly commentary that responded to it. It concludes that the Court’s endorsement of the orthodox view that there exists a rigid separation between conventions and law was poorly justified, and ought to be abandoned.

The paper is available on SSRN. As Lawrence Solum says, download it while it’s hot!

Arguing against Originalism Badly

Noura Karazivan’s flawed argument against using originalism to understand constitutional structure

Noura Karazivan has recently published an article called “Constitutional Structure and Original Intent: A Canadian Perspective” in the University of Illinois Law Review. Prof. Karazivan raises interesting questions: what is, and what should be, the mix of originalism and living constitutionalism in the Supreme Court’s treatment of constitutional structure ― understood as the set of institutions that make up Canada’s government, and the relations among them. Unfortunately, prof. Karazivan’s argument suffers from her failure to engage seriously with contemporary originalist thought, or indeed to take note of recent work exploring it in the Canadian context, and her answer to the normative question, which decisively favours living constitutionalism, is unsatisfactory.

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Prof. Karazivan’s starting point is an orthodox proposition: “[i]n Canadian constitutional law, there is no doubt that a broad, purposive, and progressive approach”, described by the famous “living tree” metaphor, “is preferred” for the interpretation of any and all constitutional provisions, (630) though she acknowledges that the Supreme Court uses other interpretive methods too. In addition to being used in the interpretation of constitutional text, living constitutionalism has played a crucial role in a number of decisions concerning constitutional structure. For example, in l’Affaire Nadon, Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433, the Court’s “conclusion would probably have been different” had it not engaged in “actualizing” its place in the constitutional structure, and only looked “its role in 1875”. (648)

Yet in a couple of recent decisions, says Prof. Karazivan, the Court adopted a more originalist approach to constitutional structure, rather than the evolutionist one that it normally favours. Prof. Karazivan focuses on Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, but also mentions Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. In the former, “the Court greatly relied on the intent of the 1867 framers”, (646) who wished the Upper House to supply “sober second thought”. The Court disregarded the practice of partisan appointments to the Senate, the Senate’s contemporary role, and even “the impact of the enactment of the Constitution Act, 1982”, (647) which arguably transferred the role of protector of constitutional rights from the Senate to the judiciary. Meanwhile, in Trial Lawyers, the superior courts’ historic dispute-settling role was crucial to the decision.

Prof. Karazivan argues that the Supreme Court was wrong to resort to originalism in these decisions. She gives four reasons. First, she takes Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 to stand for the proposition that the judiciary is not bound by the intent of constitutional framers. Second, originalism can make no democratic claim in Canada, since the Constitution Act, 1867 was the work of “a group of white men, mostly Parliamentarians, concerned with the preservation of British institutions on Canadian soil”, while “[t]he constitutional negotiations in 1982 were even less ‘democratic'”. (651; square quotes in the original) In short, “Canada does not have a great constitutional moment”. (651) Third, the Canadian constitution is simply too rigid for the courts not to update it from time to time. Finally, a “living tree” approach to interpretation yields a fuller understanding of both the constitution as a whole and its various components, as well as being “in line with Canadian constitutional structure and tradition”. (654)

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As I said at the outset, this is unconvincing. Prof. Karazivan repeats pieties about the superiority of living constitutionalism to originalism without understanding what originalism actually is. Although she refers, in passing, to the distinction between originalist interpretation that seeks the intent of constitutional framers and that which centres on the constitution’s original public meaning, her article focuses on original intent ― which relatively few contemporary originalists are still committed to. Prof. Karazivan also enlists a number of cases, such as the BC Motor Vehicle Act Reference and Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 SCR 669, in support of the proposition that living constitutionalism is the dominant approach to interpretation in Canada, while originalism has been rejected. Yet Benjamin Oliphant and I have shown that not only do these cases not support the claim of a wholesale rejection of originalism, but they are arguably (in the case of the BC Motor Vehicle Act Reference) or quite clearly (in the case of Employment Insurance Reference) consistent with public meaning originalism.

More broadly, we have also shown that the Supreme Court has never squarely rejected the more plausible forms of originalism, and indeed that various forms of originalist reasoning make frequent, if erratic, appearances in the Court’s reasoning. In particular, as both we and J. Gareth Morley and Sébastien Grammond have observed, originalist reasoning features heavily not only in the Senate Reform Reference, which prof. Karazivan decries, but also in the Nadon Reference, which she commends. Mr. Oliphant and I have also pointed out that cases on the jurisdiction of superior courts have had an originalist bent well before Trial Lawyers. In short, at the level of description, prof. Karazivan’s story, in which a largely living constitutionalist Supreme Court issued a couple of aberrant originalist decisions is much too simple.

Prof. Karazivan’s normative argument is even weaker. Her appeal to the authority of Justice Lamer’s opinion in the BC Motor Vehicle Act Reference has to be set against not only the arguable  consistency of this opinion with public meaning originalism, but also its author’s resort to more explicitly originalist reasoning elsewhere. For instance, in B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 he wrote that

[t]he flexibility of the principles [the Charter] expresses does not give [the courts] authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers. (337)

Prof. Karazivan’s denial that Canada had “a great constitutional moment”, and her insistence that the drafting of the Constitution Act, 1867 (by “white men”) and that of the Constitution Act, 1982 (presumably by persons unknown) would be simply bizarre were they not sadly typical of the ritual denigration of Canadian constitutional history in which even Supreme Court judges have been known to engage. The truth, though, is that Canada did have not one, but two great constitutional moments ― in the mid-1860s and the early 1980s. My friend Alastair Gillespie has been exploring the first of these in a compelling (and ongoing) series of papers for the Macdonald-Laurier Institute, which, as I have written in a recent post for the CBA National

make clear [that] the Fathers of Confederation wrestled with such seemingly contemporary questions as whether diversity is a source of weakness of strength for a political community, what claims such a community may legitimately make on minorities within its midst, and what rights these minorities may assert against the community. The settlement of 1867 was a remarkable achievement in this regard.

To be sure, the Fathers of Confederation were indeed white men ― as were those who took part in the framing of the US Constitution, to which prof. Karazivan does not deny the status of a “great constitutional moment”. This is one reason, among others, why I do not find the democratic case for originalism very compelling. But the sexism and racism of our 19th-century forbears is not a reason for dismissing the substance of their achievements; and least of all for allowing a group nine men and women, who are if anything even less representative of society than the Fathers of Confederation on every dimension except for gender, the power to re-write the constitution. As for the enactment of the Canadian Charter of Rights and Freedoms, it was preceded by wide-ranging public consultations which resulted, for example, in the adoption of section 28 at the urging of feminist groups, as Kerri Froc has shown. Why prof. Karazivan claims it was undemocratic, I cannot understand.

That the constitution is rigid and difficult to amend is a feature, not a bug that needs to be removed by the backdoor expedient of judicial reinterpretation. The politicians who came up with and agreed to the amending formula in Part V of the Constitution Act, 1982 obviously thought it was flexible enough. Why were they wrong? That said, had prof. Karazivan taken public meaning originalism, and in particular the work of those originalists who recognize the distinction between constitutional interpretation and constitutional construction, seriously, she would have realized that many, perhaps most originalists do not advocate for a static constitutional law. They insist that the meaning of the constitution’s text is fixed, but recognize that this text can in fact be applied to facts and circumstances quite unforeseen at the time of its drafting through the development of constitutional doctrine.

Finally, I fail to see how living constitutionalism can lead us to a better understanding of the constitution. The argument, insofar as I understand it, seems question-begging. Saying treating the constitution as a “living tree” allows us to understand it better presupposes that the object of constitutional interpretation is the contemporary constitution rather than the intention of the constitutional text’s drafters or its original public meaning ― which is very much the point in issue. To be sure, Canadian constitutional tradition is laden with denunciations ― usually quite ignorant denunciations ― of originalism. But as the emerging Canadian scholarship that takes originalism seriously shows, these denunciations do not tell us the whole story. Nor can they serve as a normative justification in the absence of any more compelling ones.

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As I mentioned at the outset, prof. Karazivan addresses an important question, that of the place of originalism in the Supreme Court’s understanding of constitutional structure. Unfortunately, she does so in a way that reflects a simplistic or outdated understanding of originalism, and as a result oversimplifies relevant precedents and offers thoroughly unconvincing arguments against originalism. That her arguments do not succeed does not show that the Court is right to be as originalist as it is, or that it ought to be more so. That case remains to be made. But so does prof. Karazivan’s in favour of living constitutionalism. Her article does not advance it.

Justice in Masks

(Some) French judges want their names removed from the decisions they make

In the traditional iconography, Justice wears a blindfold. When we come before her, she must listen to our arguments, but not see us. But should justice also wear a mask, so that we do not see her face? This is the question raised by a report by Caroline Fleuriot for Dalloz Actualité. Ms. Fleuriot writes that the French judges’ union is demanding their names be removed from their decisions, in anticipation of these decisions being made freely available online ― although a number of judges who she quotes are opposed to this idea. And this demand might, of course, seem rather astonishing to us in the common law world. But then again, as Peter McCormick’s recent articles on decisions “by the Court” issued by the Supreme Court of Canada, about which I blogged here, suggest, the concept of judicial anonymity is not entirely foreign to us either. I think the French proposal is a good occasion to further our reflection on it.

As best I understand Ms. Fleuriot’s report, the French judges make two arguments in favour of removing their names from their decisions. They say, first, that failing to do so would encourage increased criticism and even formal complaints aimed at judges personally rather than at their decisions, potentially compromising trial fairness. Second, it would allow the performance of each individual judge to be assessed, including “to identify judges who do not issue decisions that follow the wishes of the government of the day”.

To some extent,these justifications ring hollow. In the common law world, the authors of judicial decisions are routinely identified, and while this does open the door to sometimes personal, and occasionally outright vicious and distasteful criticism, and occasionally formal complaints, this is not generally seen as imperilling judicial independence or impartiality. Neither is the existence of statistics about the decisions of individual judges, even though such statistics are routinely (at least in the United States) pressed in the service of attaching rather crude and sometimes unfair ideological labels to members of the judiciary.

To be sure, I am not at all an expert on the French judiciary; I do not know how strong the protections for judicial independence are in France. If they are much weaker than in countries such as Canada, the United Kingdom, or the United States (in the federal judiciary), perhaps the judges’ union’s concerns are more justified. But if the French judiciary is sufficiently independent now, its worries seem rather overblown, if they are sincere. Indeed, one might wonder whether what is really going on is not simply an attempt to escape criticism ― whether from the government or from parties and civil society.

That said, if we are indeed right be skeptical of the French judges’ seemingly self-serving claims, we should also ― as prof. McCormick urges us ― take a hard look at our own. The Supreme Court is in the habit of issuing decisions signed by “the Court”, without attribution to one author (or several authors, as is increasingly common). Insofar as there is a common thread to these decisions, it is that many (although by no means all) of them involve potential confrontations between the Supreme Court and either a government, whether federal (say l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433) or provincial (say Quebec (Attorney-General) v Blaikie, [1979] 2 SCR 1016), whether on issues concerning the judiciary or on other politically salient topics, from the death penalty to language rights. In these cases, the Supreme Court may well be concerned, rightly or wrongly ― often wrongly, I suspect ― about deflecting criticism from its individual members and even with preserving its independence.

Admittedly there are important differences between this practice and that which the French judges’ union is looking to institute. In France, appellate decisions (rendered by multi-member panels) already are anonymous in the sense that “by the court” decisions are: they do not identify an individual author, though first instance decisions rendered by a single judge necessarily are not. If I understand the point of the judges’ union’s demands correctly, so far as appellate courts are concerned, they seek to hide the composition of the panels, as well as the identity of the actual authors of the decision. When the Supreme Court (or, on occasion, provincial courts of appeal) issue “by the court” decisions, we are always told who was on the panel. And of course, the practice of “by the court” decisions is quantitatively marginal ― although qualitatively significant ― one. On average, the Supreme Court issues only one or two decisions a year without attribution.

Indeed, these differences are a good starting point in thinking about whether the anonymity of judicial decisions is a problem, as prof. McCormick argues it is, and as I am now inclined to think too. Does it matter that we know the composition of the panels that render unattributed decisions? I suppose some information is better than none. And of course, in a very important sense, judges should be accountable, or amenable to criticism, not just for the decisions they happen to write, but also for those with which they agree ― at least in the common law world, where concurring and dissenting is (almost) always possible, if sometimes unpopular with one’s colleagues on the bench. Still, the composition of the panel ― especially a large panel at the Supreme Court ― seems insufficient. Does it matter whether only a few, or many, or all decisions are unattributed? I think it does. If the practice of “by the Court” decisions were really sporadic (and it is now a bit more than that), it would arguably matter very little. If it were clearly reserved for decisions where the Courts feel the very separation of powers, or indeed the future of the country, is at stake (as the Supreme Court may have felt in, say Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 SCR 44, and in Reference re Secession of Quebec, [1998] 2 SCR 217), it would be more readily understandable. But it is neither, and as prof. McCormick shows, it is difficult to establish a coherent narrative that would account for all of the “by the court” decisions.

Thus it may well be that the French judges’ proposal is, from our standpoint, not exactly an entirely alien idea, but rather something like a reductio ad absurdum of our own Supreme Court’s practice. It is possible to criticize the former and accept the latter, of course. But perhaps we should not be too quick to do so. Whatever we might think of justice in robes, justice in masks does not seem like a very attractive ideal.

H/t: Pierre Trudel