Off Course

In my post on  Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code, I said I would have some thoughts on what this decision means for the future of Charter-based judicial review in Canada. As Churchill said, it is a dangerous thing to make predictions, especially about the future. And I have little reason to believe that I am particularly qualified for prognostication. Still, I can at least ask questions, and point out some dangers ahead on the path on which the Supreme Court seems to be headed.

I speak of dangers because elements of the Supreme Court’s approach to deciding Bedford bothered me. In a nutshell, I am very uncomfortable with the Supreme Court’s insistence on deference to the trial judge’s fact-finding, and the key role it played in the decision. Excessive reliance on and deference to first-instance fact-finding risks shifting power to people neither expected nor prepared to wield it, undermining what little accountability there is in the judicial review process, and making Charter litigation the tool of interest groups rather than of individual citizens harmed by the government.

The Supreme Court’s conclusions in Bedford that the prostitution provisions of the Criminal Code endanger sex workers, and even that they are unrelated or disproportionate to their purposes, are largely endorsements of the findings of the judge of first instance on these points. Perhaps this is inevitable given the framing of the case as being one about security of the person (as opposed, say, to liberty). But, before reaching these conclusions, the Supreme Court also commented on the approach appellate courts must generally take to findings of fact in constitutional cases. It rejected the distinction, made by the Ontario Court of Appeal, between the levels of deference due to findings of “adjudicative facts” ― that is, facts about the parties and witnesses, their actions, and their credibility ― and findings of “legislative facts” ― that is, the broader social context of the dispute, and in particular the background and effects of the legislation at issue. The Supreme Court holds that the two sorts of facts are to be treated the same: a trial judge’s findings are conclusive barring a “palpable and overriding error” (par. 48). This is both because judicial resources must be preserved, making it undesirable for appellate judges to delve into the (often voluminous) record assembled by the parties, and because the two sorts of facts are often intertwined and difficult to distinguish.

Thus, fact-finding ― including “legislative” fact-finding ― at trial is likely to define cases all the way up to the Supreme Court. Furthermore, the Bedford decision also encourages litigants to frame their cases as intensely factual. A party needs only to convince a trial judge to adopt its vision of the facts, and its success in the case may well be locked in, avoiding the risks and difficulties of convincing 12 (or 14) appellate judges.

This makes trial judges very powerful in Charter cases. Yet there is reason to question whether this empowerment is a good idea. Trial judges ― most of whom are former litigators, without any sort of systematic training that would make them suitable for assessing social science evidence from which “legislative facts” are drawn ― are not chosen in the expectation that they will exercise determinative influence on the outcome of key constitutional cases. Many trial judges are capable of undertaking this responsibility. But many, with the best will in the world, are not. Of course, this may be true of appellate judges too, although presumably more of them are chosen for their expected capacity to deal with important, challenging cases. More importantly regardless of initial qualifications, appellate judges are more likely to develop an expertise relevant for exercising such functions, because there are relatively few of them, so that each one is much more likely to come across complex constitutional cases than a trial judge, of whom there are relatively many, so that each one may face significant constitutional cases only once or twice in his or her career. Furthermore, appellate judges do not sit alone. This means that the odds that an individual judge’s error will be caught and corrected before the court’s decision is issued are higher. Shifting power in constitutional cases from appellate to trial courts may thus lead to more errors in the dispositions of such cases.

It will also make constitutional adjudication less accountable. Trial decisions, even in important constitutional cases, attract less attention than appellate ones, especially those of the Supreme Court. Even when such decisions do attract attention from the media and academic commentators, the focus is not likely to be on the assessment of the evidence. Yet under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.” (Indeed, I wonder whether this was not the real attraction of this approach to the Supreme Court in deciding Bedford.) Call it judicial leading from behind.

The final problem with this approach that is worth mentioning is that it risks making Charter litigation the province of sophisticated interest groups, such as those that intervened in Bedford, and out of reach of ordinary litigants and their equally ordinary lawyers, such (mostly) as the people behind some of the early ground-breaking Charter cases. Assembling a record for winning a Charter case on the facts ― on legislative facts ― is long and difficult. It is also, needless to say, expensive. As Sonia Lawrence pithily puts it in her post on Bedford (which I highly recommend)

these aren’t cases that walk into your office one day.  They are cases put together piece by painstaking piece.  It’s a long road to justice this way around, folks.

The government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it. The road is certain to be long, but it may well lead to nowhere.

There is a sad irony in all of this. One wonders whether, indeed one suspects that, the Supreme Court prefers to rely heavily on fact-finding ― preferably on fact-finding by others ― in order to avoid responsibility for controversial decisions, or at least, to put the point less harshly, in order to make such decisions appear more inevitable and hence less questionable and more legitimate. This strategy may succeed in the short term. The reasoning from facts in Bedford seems very solid; although it has not escaped criticism (not necessarily enlightened, or even having anything to do with the actual decision), it has not attracted the firestorm which would have been inevitable if it had been a broader ruling based on the right to liberty, the freedom to do what one pleases with one’s body. Yet if my worries about errors, lack of accountability, and access to justice are justified, in the long run, the legitimacy of Charter-based judicial review may well be undermined. The problem with leading from behind is that one has trouble seeing ahead. The Supreme Court is in serious danger of veering off course.

Cross-Purposes

I wrote some time ago about the challenges, legal and political, to the appointment of Justice Marc Nadon to the Supreme Court.  I argued that although the appointment was unwise because Justice Nadon did not bring enough to the Court, the legal challenge to it, on the basis that he did not fulfill the requirements of s. 6 of the Supreme Court Act as a Québec judge (not being, allegedly, an “advocate of that province”) was without merit. An interesting new paper by Michael Plaxton and Carissima Mathen argues otherwise.

Professors Plaxton and Mathen take issue with the conclusions of  an opinion of (the former Supreme Court Justice) Ian Binnie to the effect that an appropriately contextual and purposive reading of s. 6 did not exclude potential judges who had been lawyers in Québec in the past, but had given up their Québec bar membership (in Justice Nadon’s case, in order to serve on the Federal Court and then the Federal Court of Appeal). Justice Binnie, they say, fails to give to consideration to one of the purposes of s. 6; but, as or more importantly, he was wrong to allow legislative purpose to eclipse the plain text of the provision.

While Justice Binnie took the purpose of s. 6 (as well as of s. 5) to be to ensure that members of the Supreme Court have a certain minimum degree of experience, professors Plaxton and Mathen argue that s. 6 “also reflects the need to assure Quebeckers that members of the Supreme Court have … expertise” (20) in Québec’s civil law. Parliament’s chosen way to provide this assurance is by requiring that the prospective Québec judges’ relationship with the practice of the law in the province be “ongoing,” as evidenced by a current, rather than a former, bar membership or a seat on one of Québec’s courts. If the purpose of s. 6 is understood in this way, then the exclusion of federal court judges from appointment to one of the Québec seats is not absurd; it even makes sense, contrary to what Justice Binnie said, that a lawyer who could have been appointed directly to the Supreme Court after a career at the bar becomes ineligible after serving on the Federal Court of Appeal despite this experience obviously making him or her more, rather than less, qualified.

There is anyway a danger, say professors Plaxton and Mathen, in paying too much attention to the purpose of a statute at the expense of its text. One might do that, after all, not only to relax the text’s apparent requirements if they appear more stringent than necessary to fulfill the statute’s purpose, as Justice Binnie proposes to do with s. 6, but also to strengthen them if they seem insufficient. So if the purpose of s. 6 is to ensure expertise, we might as well read the requirement of actual expertise into the law. But of course we don’t want to be in the business of ascertaining a potential judge’s actual expertise, much as we don’t want to ascertain the level of maturity of a voter. Statutes can provide easy-to-verify requirements which will serve as proxies for the accomplishment of their purposes ― age as a proxy for the maturity of voters, an ongoing connection to the legal practice in Québec for Supreme Court judges. Of course, the proxies are imperfect, but a legislative choice in favour even of an imperfect proxy deserves deference.

This is a good point (and the analogy to voting age rules hits home, because I have myself argued for a bright-line rule in that case, against Ilya Somin’s suggestion that young voters’ political knowledge be tested in order for them to accede to the franchise before they turn 18), but I am not persuaded. Even if our first reaction is to defer to a legislature’s choice of a proxy measure to ascertain the realization of the purpose it is pursuing, so that we should be wary of going too quickly to the purpose to circumvent statutory text, there can be no such thing as unlimited deference. If the proxy chosen by the legislature is unreasonable, it forfeits its claim to deference.

Hence the importance of professors Paxton and Mathen’s argument to the effect that current membership in the Québec bar or a place on the Québec bench is a good proxy for something important, “a current understanding of Quebec civil law” (19). I do not think that this argument succeeds though. S. 6 is simply too poor proxy for the purpose professors Plaxton and Mathen impute to it. It it both over- and underinclusive for this purpose. Overinclusive, because it not only does not prevent the formalistic workaround of a federal court judge resigning office, re-joining the Québec bar of a single day, and then being appointed to the Supreme Court, but also, and more importantly, because it does not prevent the appointment of a lawyer who, while paying his fees and thus maintaining membership in the Québec bar, has no ongoing connection with it. Professors Plaxton and Mathen worry that on Justice Binnie’s interpretation of s. 6, 

it would be possible to appoint a person who practiced law in Quebec for 15 years, but for the past 10 years has lived and practiced in Vancouver, ensconced in the common law system. … [I]f the point is to assure Quebeckers that the Supreme Court can draw on judges who are familiar with and sensitive to French Canadian legal traditions, that result looks … problematic.

But of course, even on their interpretation it would be perfectly possible to appoint that person provided that he or she had the foresight of paying Québec bar fees and doing the occasional continuing legal education course.

Furthermore, if the purpose of s. 6 is understood in this way, it is underinclusive too, because on its face, it seems to prevent the appointment not only of federal court judges, but also of those of Québec’s provincial court, who surely cannot be reasonably said not to have an ongoing connection to the province’s legal practice. In short, s. 6 does not really fit the purpose identified by professors Plaxton and Mathen better than that identified by Justice Binnie.

Beyond this, I think one should be cautious about divining the purpose of a statute from the statements of some individual parliamentarians, on which professors Plaxton and Mathen seem to place a good deal of reliance. As Justice Binnie shows, the difference between the wording of sections 5 and 6 of the Supreme Court Act, which seems to suggest a narrower eligibility for Québec seats on the Supreme Court than for others, is a historical quirk. His analysis of these provisions is, in my view, fully persuasive.

The Right Person to Ask

There was an interesting op-ed in yesterday’s Globe by Adam Dodek, arguing that the mechanism which the federal government has devised for bringing greater transparency to the appointment of new Supreme Court judges, namely the interview of the new appointee by a special committee of the House of Commons, is a failure, and that instead of the judges, it is the those who appoint them who should be interviewed. This suggestion seems quite right to me, with perhaps a minor question mark.

Prof. Dodek writes that the hearings at which the newly-appointed judges are interviewed are “about nothing ― or at least nothing of legal significance.” Judges tell their life stories, make jokes, and generally appear pleasant. But they say nothing at all about their views on the law or on the job that they are about to take up. And although the hearings allow citizens to learn something (trivial) about the new members of the Supreme Court, they do not make the politicians who appoint them accountable for their decisions.

Hence prof. Dodek’s suggestion:

The wrong person is on the hot seat. It should be the justice minister, not the nominee, explaining the selection. As it stands, the process has actually led to less accountability: By putting forth the nominee to be interrogated, successive justice ministers have completely escaped having to explain their decisions.

Irwin Cotler, when he was Justice Minister, did appear before a committee of the House of Commons to explain the appointments of Justices Abella and Charron, talking about their qualifications and jurisprudence. That, says prof. Dodek, is how we should do it.

That seems about right. The small question mark I mentioned above concerns the identity of the member of the government who should explain appointments to the Supreme Court. Unlike ordinary judicial appointments, which are primarily the Justice Minister’s responsibility, appointments to the Supreme Court are (also) a direct concern of the Prime Minister. As prof. Dodek says, bringing some accountability to the process is meant to be a check on Prime Ministerial power. So why should not the Prime Minister himself appear? There may well be good reasons for this. For example, the Justice Minister is probably better placed to talk about Judges’ careers and past decisions, even if the ultimate decision to appoint them is not really his. But it’s too bad that prof. Dodek does not explain this.

Apart from that question, I think it would be a very good thing to have the government explain its decision to appoint a judge, rather than the judge appear for a meaningless getting-to-know-you interview. Of course, the Justice Minister or the Prime Minster would mostly deliver feel-good boilerplate, but that would be no loss over the current process. Any substance at all that they might provide would be an improvement. And they could be questioned more aggressively than a judge. There are good reasons why judges should be circumspect in talking about the law ― they should not give rise to any worry that their minds are made up about issues that they might have to resolve in the future. (There are bad reasons for circumspection too, such as the desire to preserve the appearance of a judiciary that does not shape the law, but they are not the only ones.) There are no such reasons for cabinet ministers explaining their decisions.

Of course, it is difficult to expect any government, and especially the present one, willingly to submit to more accountability instead of deflecting questions. But such things happen, every now and then. Let us hope that this will be one of these cases.

Tempest in a Teapot

I’m quite late to the topic, but I want to say something about the debacle that is Justice Nadon’s appointment to the Supreme Court. The government’s decision to appoint him is being attacked both legally and politically, and while the political criticism cannot undo it, the legal challenge could, in theory, and has already forced Justice Nadon to step aside from the Supreme Court’s work. Yet, ironically, the legal challenge is without merit. So are some of the political attacks ― but not others.

The line of criticism against Justice Nadon’s appointment that does have merit concerns his suitability for the job. As Jeffrey Simpson put it yesterday in the Globe and Mail, “the Supreme Court deserves better.” It is simply not clear what qualifies Justice Nadon for the Supreme Court ― it is certainly not his expertise in maritime law, which will go unused there. Actually, Justice Nadon’s most important asset in the eyes of the government which appointed him was probably his usual strong inclination to side with the government in disputes about its power. The best-known and most dramatic example of that was his dissent in Canada (Prime Minister) v. Khadr, 2009 FCA 246, [2010] 1 FCR 73, where he argued that not only had Canada not infringed Omar Khadr’s rights, but in fact that it did all it could for him ― in Justice Nadon’s view, it seems, interrogating a citizen who you know has been tortured is helping him. Presumably, the government expects Justice Nadon to take the same sensitivity with him to the Supreme Court, and help endorse its agenda, starting with the Senate reform plan the constitutionality of which the Court is due to consider next month. Appointing a judge in the expectation that he will be rubber-stamp rather than an independent thinker does, of course, deserve harsh criticism. If anything, there has not been enough of it in the last few weeks.

What there has been too much of, however, is criticism of Justice Nadon’s ability to represent Québec. The most absurd claims, voiced by members of the provincial government, is that Justice Nadon does not deserve to be appointed to one of Québec’s seats at the Supreme Court because he lives on the Ontario side of the Ottawa river. La Presse’s André Pratte demolished this line of argument in a recent editorial,  pointing out that

[i]f we follow [this] reasoning, a lawyer who practiced for 10 years in Rivière-du-Loup would be a more suitable representative for Québec than a brilliant jurist who, for example, spent a part of his career with the International Court of Justice. (Translation mine)

The seemingly more serious critique concerns Justice Nadon’s supposed lack of familiarity with Québec’s civil law ― the distinctiveness of which, after all, is the reason Québec is entitled to three judges at the Supreme Court in the first place. But this herring is of only a mildly less intense hue of scarlet than the matter of Justice Nadon’s address. It is simply not true that all the judges appointed from Québec are civil law experts. Justice Fish, for example, whom Justice Nadon was appointed to replace, was a criminal law expert, and I’m not sure he had ever dealt with civil law in his practice. He did serve on the Québec Court of Appeal for a long time prior to his appointment to the Supreme Court, dealing of course with civil law cases, but I don’t think that it ever became an area of expertise for him. The same is true of Chief Justice Lamer (whose prior judicial service was mostly on the Superior Court). Justice Beetz had taught constitutional law prior to becoming a judge, and served only briefly on the Québec Court of Appeal prior to his appointment to the Supreme Court. Yet they were all distinguished (and, in the case of Chief Justice Lamer and Justice Beetz, arguably great) judges. No judge can be an expert in, or even familiar with, all the areas of the law with which his or her court deals with. This is especially true of Supreme Court judges, who might be called on to deal with just about any case that can conceivably arise in the Canadian legal system. Judges have to learn on the job ― and it probably doesn’t matter very much whether a particular judge’s learning curve is steepest in civil, criminal, or constitutional law. It is legitimate to ask just what each judge brings to the Supreme Court’s table ― and in Justice Nadon’s case, the answer seems to be, sadly, not a whole lot. But it is not fair to criticize a new appointee for what he or she does not bring ― there are no good judges by that standard.

Right or wrong, political critiques about the wisdom of Justice Nadon’s appointment cannot undo it. A legal challenge, originally launched by a Toronto lawyer, then joined by the Québec government, and subsequently superseded ― in practice although not yet technically, so far as I know ― by the federal government’s decision to submit the issue to the Supreme Court on a reference, is another matter. The problem is that s. 6 of the Supreme Court Act provides that “[a]t least three of the judges [of the Supreme Court] shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon is obviously not a judge of the Court of Appeal or the Superior Court of Québec. He was, prior to his appointment to the Federal Court, an “advocate of that province” ― but of course he no longer is one. At first glance, only current, not former, Québec lawyers can be appointed. By contrast, s. 5 of the Supreme Court Act, which applies to all judges (other than those from Québec), provides that “[a]ny person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” This wording embraces former lawyers, and thus permits the appointment of judges from the federal courts. Since s. 6 is drafted differently, it should also be understood differently ― or so goes the argument; and at first glance, it is a persuasive one.

Even more persuasive to me, however, is the opinion of (the former Supreme Court) Justice Ian Binnie, who has concluded that, despite the literal meaning of these provisions, their correct interpretation permits the appointment to the Supreme Court of former members of the Québec bar who have subsequently served in the federal courts, such as Justice Nadon. Justice Binnie’s argument is twofold. First, he studies the history of the predecessor provisions of sections 5 and 6, and concludes that the current wording of s. 6 is only a quirk of statutory revision, which does not actually reflect Parliament’s intent to prevent the judges of federal courts (or, say, of international tribunals) from being appointed to the Supreme Court. Legislative purpose is the second element of Justice Binnies analysis. The raison d’être of sections 5 and 6, he says, is to ensure that only qualified, experienced candidates can be appointed to the Supreme Court. But reading s. 6 as preventing the appointment of former Québec lawyers who then became federal court judges not only does nothing to achieve that purpose ― it contradicts it, because it would mean that a lawyer who could be appointed to the Supreme Court straight out of practice could not be appointed after serving some years at the Federal Court of Appeal ― despite being, obviously, a more experienced and better qualified candidate. I encourage you to take a look at Justice Binnie’s analysis. It is quite brief and easily readable ― and, as I said, very persuasive.

Justice Nadon’s nomination was supposed, it seems, to be a vessel that would carry the federal government to the sweet lands of success, whatever projects of its that the Supreme Court might be called upon to validate ― starting with that about Senate reform. The vessel was not fully seaworthy ― but that wasn’t expected to matter. Yet it has been caught in a legal storm that is going to keep Justice Nadon at sea for the next several months, if not longer, and which might yet sink him, if the Supreme Court disagrees with Justice Binnie. Ironically, that storm is, in my view, nothing but a tempest in a teapot.

Constitutional Conventions and Senate Reform

Fabien Gélinas and I have written a paper on the (under-appreciated yet crucial) role of constitutional conventions for assessing the constitutionality of the federal government’s plans for reforming the Senate, which are the subject of references now being considered both by the Supreme Court and by the Québec Court of Appeal. (The factums for the Supreme Court reference are available here.) Our paper is now on SSRN. Here is the abstract:

Constitutional conventions are of central importance to the operation of the Canadian constitution; the constitution cannot be understood without reference to them. Yet their effect on the constitutionality of the federal government’s successive proposals for reforming the Senate, which aim at making most or all senators elected rather than appointed at the Prime Minister’s discretion as they are now, has not received much attention.

Constitutional conventions are essential to an assessment of the constitutionality of the proposed Senate reform. Although the government’s proposal does not affect formal constitutional provisions, it would change the actual operation of the constitution by subverting the conventions which make the prime minister responsible for senatorial appointments and requires the unelected Senate to yield to the House of Commons.

We argue that he amending formula of the Constitution Act, 1982, must be interpreted to take these conventions into account. Conventions are underpinned by constitutional principles and are an essential part of the context in which constitutional text must be understood. For the constitution to be a “living tree,” its interpretation must, so far as possible, be consistent with the way it is actually lived. The “method of selecting Senators” and the “powers of the Senate,” which par. 42(1)(b) of the Constitution Act, 1982, protects from unilateral amendment by Parliament are not those that exist only on paper, but those of the living constitution. Because the government’s Senate reform proposal would change them, it can only be enacted under par. 42(1)(b). In its present form, it is unconstitutional.

And from our conclusion:

The [Supreme] Court … held that the new amending formula set out in the Constitution Act, 1982 replaced the rules on constitutional amendment that applied before its enactment. But that formula requires interpretation—and in order to be meaningful, its interpretation must also take the conventions of the constitution into account. These conventions, through which the constitution develops, are part of what makes it “a living tree”. No less than the society’s views on, say, equality, they are part of the evolving context that courts must appreciate when interpreting the constitution.

 The amending formula’s provisions relative to the Senate must, therefore, be understood in the context of the conventions that apply to that institution and give life to the relevant constitutional principles. These conventions limit the Senate’s powers and define the way in which its members are chosen, which are protected from unilateral amendment by Parliament. The federal government’s plan for unilateral Senate reform would alter both of these characteristics and is, for this reason, unconstitutional.

The paper is fairly short, and, I hope, fairly readable. We hope that it reaches people involved with the Supreme Court case, so if you are one of them, please take a look at it, and if you know such people, feel free to pass it on to them.

What They Said

It is usually understood that judges must give reasons for their decisions. But does it matter if the reasons a judge gives are largely lifted from the submissions of one of the parties? That was the question that the Supreme Court of Canada confronted in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, delivered on Friday. The Court’s answer is that while it’s not “good practice” for judges to adopt a party’s submissions wholesale, that is not enough for an appellate court to set the decision aside.

The trial decision at issue is 368 paragraphs long, of which 321 were taken directly from the plaintiffs’ submissions. As the Supreme Court put it, “[t]his raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions” (par. 10). The Court described this concern as procedural, because it has to do with the fairness of the decision-making process, rather than with the substantive correctness of the outcome or the sufficiency of the reasons given to support it. The test to be applied in deciding whether a concern with the fairness of a court’s decision-making warrants setting aside the allegedly unfair decision is whether

a reasonable observer, having regard to all relevant matters … would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently. (Par. 13)

However, in applying this test, courts must bear in mind “the presumption of judicial integrity,” which “carries considerable weight” (par. 20) and can only be rebutted by “cogent evidence” (par. 22). Without more, the Supreme Court holds, the fact that a judge incorporated a party’s submissions into his or her reasons is not enough to rebut the presumption, because it does not show that the judge failed to consider the case and come to his or her own conclusions about the issues it presents.

The Court says that “judicial copying” (par. 30) is not a bad thing in itself. Reasons for judgment should not be assessed by the same criteria as works of literature or scholarship. They do not normally aim for originality. For that reason, a judge’s failure to acknowledge the fact of copying or mention his or her sources does not matter ― the judge is not actually claiming that the work of others is somehow his own original creation. The Court quotes, approvingly, an article by Simon Stern arguing that lack of originality is, if anything, a virtue rather than a vice of judicial writing:

[t]he bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law.

While it is best not to abuse the privilege of being unoriginal, and judges should try to explain their decisions in their own words, failure to do so does not demonstrate that judge did not actually consider and decide the case.

In the case at bar, the trial judge actually wrote some paragraphs of his own, and did not accept all of the claims of the party whose submissions made up the bulk of his reasons. This shows, the Supreme Court holds, that he did not fail to consider the case, and this the presumption of integrity has not been rebutted. (The Court then goes on to hold that a number of the judge’s conclusions were the result of palpable and overriding error, and reverses them ― but that is, in theory at least, a different story that doesn’t interest me here.)

I have mixed feelings about this decision.

On the one hand, the Court is right that originality of ideas and writing is not something judges normally aim for (it might be a trait of great judges, but there is an important difference between what makes a judge great, and what is required in ordinary adjudication, as I have argued here). So some copying and some failure to acknowledge sources is arguably not a big deal (though I still think that judges should avoid such practices). And of course it is difficult to draw the line between what is acceptable and what is not, so I can sympathize with the Supreme Court wanting to discourage litigation on this issue, which would create a mess of appellate decisions and drive up the costs of litigation for parties, thus further impeding access to justice. (I suspect, at least, that such considerations must have been on the judges’ minds, though the Court does not explicitly discuss them.)

On the other hand, the decision means that judges who delegate the writing of their decisions to law clerks ― or who use the parties as their law clerks, as the trial judge here seems to have done ― can go on with no fear of appellate correction. Yet our judicial system relies on the articulation by judges of the reasons for their decision to help judges maintain the attitude of impartial decision-makers open to persuasion, as I have explained here. Shortcuts that allow judges to escape the burden of stating their reasons for decision can compromise this attitude. They might also lead to substantively poor  decision-making. Indeed, this may well have happened in this case ― it is not often that trial decisions are overturned, even in part, for “palpable and overriding error” in the assessment of evidence.

On balance, the Supreme Court is probably still right, because the law is not a very good tool for deciding when judges have strayed far enough from what is “good practice” in reason-giving for their decisions to be set aside. But judges themselves ought not to take this decision as an endorsement of their taking short-cuts. Their position imposes on them duties that go beyond the requirements of the letter of the law. The “presumption of integrity” of which the Supreme Court makes so much can only exist if judges are mindful of these duties. “What they said” is not enough.

Le langage de la justice

Un article paru sur le site de Radio-Canada parle d’une étude réalisée par un avocat, Mark Power, de Heenan Blaikie, pour le compte de la Fédération des associations des juristes d’expression française de common law, portant sur la constitutionnalité de nominations de juges unilingues à la Cour suprême. Selon Me Power (ou du moins selon l’article de Radio-Canada, puisque l’étude n’est pas disponible en ligne) de telles nominations contreviendraient à la garantie du bilinguisme officiel enchâssée à l’article 16 de la Charte canadienne des droits et libertés.  Dans la mesure où la chance d’être compris par un juge de la Cour suprême dépend de la langue dans laquelle on s’adresse à lui, tous les juges parlant l’anglais, mais pas tous parlant le français, les deux langues officielles ne sont pas égales. Certes, la Cour dispose de traducteurs et d’interprètes, mais ceux-ci feraient des erreurs et ne seraient donc pas des substituts adéquats à des juges bilingues. Ce raisonnement et cette conclusion, à supposer qu’ils sont bien présentés par Radio-Canada, soulèvent plusieurs questions.

Il y a des questions pratiques, celle par exemple de savoir ce qui constitue un niveau de bilinguisme adéquat. Ainsi, l’article mentionne deux juges unilingues. (Il s’agit des juges Rothstein et Moldaver.) On juge donc le niveau de bilinguisme de la Juge en chef suffisant, mais l’ayant entendu prononcer un discours et répondre aux questions en français, je me demande si je ne préférerais pas, si je devais plaider en français devant elle, qu’elle ait recours aux services d’un interprète. Son français n’est pas mauvais―il remarquablement bon même, considérant qu’elle ne l’a appris qu’après sa nomination à la Cour suprême―mais il est loin d’être parfait, et je serais peut-être rassuré si les détails de ma plaidoirie lui étaient traduits par un spécialiste.

Il y a des questions d’interprétation constitutionnelle. Certaines de celles-ci concernent l’enchâssement du processus de nomination des juges de la Cour suprême dans la Loi constitutionnelle de 1982. L’alinéa 42(1)(d) de celle-ci semble élever “la Cour suprême du Canada” au rang constitutionnel, mais la Loi sur la Cour suprême ne fait pas partie de la liste de lois faisant partie de la Constitution du Canada selon l’Annexe de la même Loi constitutionnelle, si bien qu’on ne sait pas vraiment si la Cour suprême est enchâssée ou non. Cependant, si elle l’est, la règle selon laquelle une partie de la Constitution (en l’occurrence, l’article 16 de la Charte) ne peut modifier ou invalider une autre (les règles concernant les qualifications et la nomination des juges de la Cour suprême) empêcherait la conclusion que la nomination de juges unilingues est inconstitutionnelle. Une autre question d’interprétation concerne le libellé du paragraphe 16(1) de la Charte, qui dispose « [l]e français et l’anglais … ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada ». La références aux « institutions du Parlement et du gouvernement du Canada » se retrouve aussi dans le texte de l’article 32 de la Charte, en vertu duquel celle-ci « s’applique … au Parlement et au gouvernement du Canada ». Or, cette disposition a été interprétée comme ne s’appliquant pas directement aux tribunaux, le Parlement et le gouvernement faisant référence aux branches législative et exécutive du gouvernement, et la branche judiciaire étant manifestement omise. Si les termes identiques utilisés par le constituant au paragraphe 16(1) de la Charte reçoivent la même interprétation, alors il faudrait conclure que cette disposition est silencieuse quant au statut des langues officielles devant les tribunaux.

Et puis il y a la question de principe. Est-il raisonnable de nommer des juges bilingues de préférence à des juges unilingues mieux qualifiés―car c’est ce qu’exigerait l’introduction d’une exigence de bilinguisme? Selon Me Power, il y aurait un risque d’injustice résultant d’erreurs de traduction. Peut-être bien. Mais n’y a-t-il pas aussi un risque d’injustice résultant de la nomination de juges qui ne sont pas d’aussi bons juristes? Et ce risque-ci serait présent non seulement dans la petite proportion d’affaires plaidées en français où le vote d’un juge unilingue anglophone est déterminant, mais dans chaque dossier traité par la Cour suprême.

À qualité égale, un juge pleinement bilingue serait peut-être préférable à un collègue unilingue. Et encore. Comme je le mentionnais plus haut, la Juge en chef McLachlin n’était pas bilingue au moment de sa nomination, mais elle a appris le français. Idéalement, son exemple devrait inspirer ses collègues unilingues. Mais le plus important n’est pas que les neuf juges de la Cour suprême parlent tous le français et l’anglais. C’est qu’ils parlent tous le langage de la justice.

Keeping Judges Busy

The Globe and Mail reports that the federal government will go to the Supreme Court to review the constitutionality of its Senate Reform project. Opponents of the reform have dared it to do so for years. They’ll get their wish now. The Supreme Court’s was already asked to rule on Senate reform project once, by Pierre Trudeau’s cabinet. The result was Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54―a somewhat vague and inconclusive decision, because the government then did not have a specific reform project, and referred only vague questions to the Court. This time will be different. I won’t comment on the substance of the case just yet, but for those interested in the subject, the text of the bill, as it now stands, is here. And here are the comments of Peter Hogg, the most prominent Canadian constitutionalist, and of Fabien Gélinas, who taught me constitutional law at McGill, on a previous Senate reform bill.

The government also announced today that it will appeal the decision of Québec’s Superior Court in Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202, the gun registry case, which I summarized and commented on last week. As I wrote then, I think that the decision should stand, albeit that Justice Blanchard’s opinion was far from the best that could have been written.

So the government is keeping judges―and lawyers of course, not to mention us humble bloggers―well occupied. Which reminds me: it will be four months tomorrow since Justice Deschamps announced her resignation from the Supreme Court. Since the government likes to keep the courts busy, it should also make sure they are fully staffed.

 

Quasi-Constitutional Rights?

What are “quasi-constitutional rights”? Is this a meaningful, a useful concept? Justice Lebel’s comments in a decision released last week by the Supreme Court raise the question.

The decision, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 is one of three released last Wednesday, all dealing with questions of when Canadian courts can, and when they should, assume jurisdiction over a tort action with multi-jurisdictional elements. In this case, the action was in defamation. The appellants were the publishers of a book savaging Canadian mining companies for their activities (allegedly involving massive human rights violations) in Africa. The respondents were one of these companies. The book was published in Québec, but over 90 copies were sold in Ontario, some to public libraries, and the book was promoted there. The respondents are based in Ontario, and sued for defamation there. The publishers tried to have the proceedings stayed either for lack of jurisdiction or because the Ontario court was a forum non conveniens; they argued that the respondents were engaging in libel tourism, suing for defamation in jurisdiction more favourable to plaintiffs than that in which the suit should logically have been brought (in this case, Québec). Their motion was dismissed, and their appeals rejected both by the Ontario Court of Appeal and now by the Supreme Court.

In discussing the issue of the choice of law in defamation actions, Justice Lebel wrote (for the unanimous court)

that the harm occasioned by the publication of a defamatory statement is not the publication itself, but rather injury to the plaintiff’s reputation. While the constitutional right to the protection of freedom of expression must be upheld in the crafting of the law of defamation, this Court has recognized that one of the primary purposes of the law of defamation is to protect the reputation of the individual, which was elevated to quasi-constitutional status in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. [par. 57]

As those of you who read my lament about the Charter’s unfortunate effects will recall, I am not a fan of Justice Cory’s reasoning in Hill, linking reputation to innate dignity and privacy, which I called “grasping at constitutional straws.” At least, Justice Cory did not actually speak of a “quasi-constitutional status” for the right to reputation. Justice Lebel now does. What does that mean? Continue reading “Quasi-Constitutional Rights?”

A Charter Child’s Blues

This was originally written more than three years ago now, but I am fond of the text. I thought I would repost it tomorrow, on the Charter‘s 30th anniversary, but decided to do it today. Hopefully I’ll come up with something more celebratory tomorrow.

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I am a proud Charter child. A copy of the Charter is hanging in my room; right above my bed in fact. Every night I fall asleep secure in the knowledge that “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” You might I’m really taking too far – or even that I’m nuts. You can even tell me this in so many words. That’s fine. “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion, and expression.” But the Charter, according to our Chief Justice, belongs to the people, so it belongs to me too. I’m not the fat old lady, or the gentleman wearing some sort of cross between a Chinese hat and a sombrero, or a kid playing hockey, or any other character gracing my copy of the Charter. But collectively, they all are me. So why is that that I have been having the Charter blues?
Continue reading “A Charter Child’s Blues”