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.

 

Are Provincial Election Spending Restrictions Ultra Vires?

Here’s a simple, crazy question: is legislation limiting electoral campaign expenses unconstitutional because ultra vires the provinces? I think that the argument in support of an affirmative answer makes sense, even though I wouldn’t expect Canadian courts to buy it. Here it is.

Campaign spending restrictions restrict free speech on political matters. Nobody disputes that, and the Supreme Court recognizes this in cases such Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569. Nonetheless, such laws (if not too restrictive – as the law in Libman was found to be) can be justified under s. 1 of the Charter, and are therefore constitutional. Or are they?

In the “implied bill of rights” cases, starting with the Alberta Statutes Reference, [1938] R.C.S. 100, the Supreme Court pushed back against attempts by the provinces (first Alberta and then Québec) to curtail political speech disagreeable to authoritarian provincial governments. As there was no Charter then, it used the federal division of powers to ground its judgments. Speech, especially political speech, was said to be within the exclusive competence of Parliament, outside the reach of provincial legislation. Whatever its subject, it was not of merely provincial importance. In the words of Chief Justice Duff and Justice Davis in the Alberta Statutes Reference, at p. 134,

[a]ny attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting and through the press) would, in our opinion, be incompetent to the legislatures of the provinces, or to the legislature of any one of the provinces, as repugnant to the provisions of The British North America Act, by which the Parliament of Canada is established as the legislative organ of the people of Canada under the Crown, and Dominion legislation enacted pursuant to the legisla­tive authority given by those provisions. The subject matter of such legislation could not be described as a pro­vincial matter purely; as in substance exclusively a matter of property and civil rights within the province, or a matter private or local within the province.

Saumur v. City of Québec [1953] 2 S.C.R. 299 and Switzman v. Elbing [1957] S.C.R. 285 are to the same effect.

Overruling such hallowed precedents, showing the Supreme Court’s commitment to individual rights even in the absence of explicit constitutional authorization, seems unthinkable.

Can they be distinguished? One might argue that regulation of provincial elections, as opposed to political speech generally, is a different subject, competent to the provinces. I think the distinction fails. The passage I quote above does not really leave room for it. Provincial politics and federal politics are obviously connected, so if federal political discussion is to be free, so must provincial political discussion. But there is another possibility. It is at least a somewhat plausible reading of the “implied bill of rights” cases that what they prohibit is not any regulation of political speech by the provinces, but only, to use an American term, “viewpoint restrictions.” A province can regulate speech; it just cannot single out one opinion for unfavourable treatment. And it is perhaps arguable, though I believe (for reasons I have no room to elaborate here but touch on in my Cyberpresse op-ed) not correct, that campaign spending restrictions are viewpoint neutral. If that argument fails, as I think it should, then provincial restrictions on election spending are ultra vires and thus unconstitutional.

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.

***

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”