Quisque?

Would term limits for Chief Justices be a good idea?

Yesterday was the 17th anniversary of Beverley McLachlin’s appointment as Chief Justice of Canada. The Supreme Court’s account issued a celebratory tweet. And for my part, to visualize this length of time, I headed over to the Internet Archive to find what the Court’s website looked like in early 2000. A worthy exemplar of fin de siècle web design it was.

scc-2000

But, on a (slightly) more serious note, I have also been asking myself this question: is it a good idea for a Chief Justice to remain in this position for so long? This isn’t, mind you, a dig at Chief Justice McLachlin, or at least it isn’t only that. I have my differences with her, but the issue here isn’t a personal one. It’s about whether the position itself is such that no person, whoever she or he may be,  should occupy it for such an extended period of time.

Admittedly, Chief Justice McLachlin’s tenure, although record-breaking in Canada’s history, isn’t exceptionally long in a comparative perspective. Indeed, our Chief Justice is not even the longest-serving one among her current peers. New Zealand’s Sian Elias was appointed on May 17, 1999 (although she was the Chief Justice of the Court of Appeal at the time, and New Zealand still retained appeals to the Privy Council, the Supreme Court of New Zealand only being created in 2003, at which point the senior Court of Appeal judges were promoted). And while Chief Justice McLachlin’s tenure will soon overtake that of Warren Burger as Chief Justice of the United States, she will not quite catch William Rehnquist before she retires ― never mind John Marshall, who was Chief Justice for more than 34 years.

Still, one can wonder whether this all might be too much of a good thing. Now, I think that the Canadian approach to judicial terms ― appointing judges until a fixed retirement age ― is generally the right one. (Other Commonwealth countries, including New Zealand, generally follow this approach too.) Appointing judges for a fixed term, even a long one, means that, unless they are appointed at a relatively old age, they will be looking for post-bench employment, which is not especially conducive to independence in office. If the term is renewable, the problem is that much worse. Conversely, life-time appointments with no age limit, like those of federal judges in the United States, allow judges to continue in office longer than is probably good for them and, more importantly, for everyone else, as the recent escapades of Justice Ginsburg and Judge Posner demonstrate. But it’s not clear that the office of Chief Justice should be treated in the same way as that of an ordinary judge.

It is, after all, perfectly conceivable that a judge will become Chief Justice of his or her court for a time, and then return to the position of an ordinary ― or, in the language of the Supreme Court Act, puisne ― judge. Indeed, this is precisely the approach taken to the lower federal courts in the United States, where the Chief Judges of the Circuit Courts serve in that position for seven years or until they turn 70. Put the details ― the length of the term, and whether there should be an age limit where judges are already subject to mandatory retirement ― to one side. The question of whether Chief Justices should be individually chosen, as they are now, or selected pursuant to an automatically applicable rule, as the Chief Judges of Circuit Courts are, is also secondary. What I’m interested in is whether, once chosen in whatever fashion, a Chief Justice should retain that position so long as he or she remains a judge or only for a fixed term.

Unlike fixed terms for the tenure of ordinary judicial office, I do not think that such a rule would raise any concerns about judicial independence. There would be no question about what the soon-to-be-former Chief Justice is going to do next, or any reason to worry about his or her currying favour with a successor. A more serious concern might be whether a fixed-term Chief Justice would be weaker than an indefinite-term one when staring down other branches of government, as Chief Justice McLachlin had to do when the federal government sought to cast aspersions on her and her court’s integrity in the aftermath of l’Affaire Nadon. But I doubt that a Chief Justice’s position in such an unfortunate circumstance is meaningfully strengthened by the absence of a term limit. Again, provided that at the end of his term he or she simply reverts to being an ordinary judge able to serve until retirement age, the Chief Justice would be no more vulnerable to the government’s pressure than Chief Justice McLachlin was. In short, I do not see much of a downside to fixed term appointments to the position of Chief Justice ― though perhaps I am missing something.

As for upsides, they are admittedly speculative, but they might nevertheless be worth pursuing. A Chief Justice’s powers are narrow, but they are powers all the same, notably that of assigning the writing of opinions. And all power ― not only absolute power ― tends to corrupt. It is probably best if a single person does not exercise power for decades on end ― for the institution over which that person presides, the persons whose fates that institution decides, and indeed that person her- or himself. Moreover, in addition to the corrupting effects of power, a Chief Justice is also liable to be influenced by her or his position as the representative of the court, and indeed of the judiciary more broadly. Chief Justices are liable to see their loyalties as being primarily to the institutions they head, rather than to the law; they dislike it when their colleagues dissent; they might vote with an eye to their court’s standing and be tempted to twist arms if not break legs to get their colleagues to go along. These tendencies may be understandable, and perhaps even useful to some extent, but they can also become toxic if they are too strong. And it seems reasonable to suppose that the longer a person remains in the position of Chief Justice, the more he or she gets used to seeing the world from the distinct, and not always healthy, perspective that this office gives. Limiting the time during which a judge is put in this special position may check these tendencies, again to the benefit of all concerned.

Take this for what it’s worth ― it’s only me thinking out loud. And of course, should anyone take up the suggestion, the question of whether implementing it could be done by amending the Supreme Court Act or requires an amendment pursuant to par 42(1)(d) of the Constitution Act, 1982 would have to be faced. (The short answer to that question is “Who knows?”.) As it is, Chief Justice McLachlin is bound to retire by September 2018. But if the Prime Minister chooses to appoint one of the Québec judges to succeed her, then the next Chief Justice’s term might be even longer than hers.

Questionable Limits

Jim Prentice, the leader of Alberta’s Progressive Conservative Party (and would-be Premier), has proposed limiting the time provincial politicians can serve in office. Members of the legislature would be limited to three terms; the premier to (an additional?) three. The wisdom of this proposal has been much criticized. (Aaron Wherry, of Maclean’s, a critic himself, has links in this article.) Its constitutionality is also questionable.

As the thoughtful MP Brent Rathgeber points out in a blog post, section 3 of the Charter protects every citizen’s right to stand for election to a legislature; and “[n]otice,” he adds, “it says ‘every citizen of Canada’ not every citizen ‘who has not already completed three terms in the legislative assembly.'” The unconstitutionality of legislative term limits might not be so free from doubt as Mr. Rathgeber makes it out to be, since an infringement of s. 3 of the Charter can, in theory, still be justified under s. 1. (Eric Adams argues  that this one could not be, but without much of an explanation.) I might come back to this in a later post.

For now, however, I want to focus on another point Mr. Rathgeber makes, which is that

[p]roposed term limits for serving as the premier, however, are trickier, at least constitutionally. Section 3 provides only constitutional protection for seeking a seat in the assembly, not for being asked to serve in the executive. As our premier is chosen by the Lieutenant Governor to serve, provided he has the confidence of the elected assembly, I suspect term limits for premiers, similar to those imposed on US Presidents and some Governors, may very well survive a Charter challenge.

That may indeed be so, although again the matter is not so clear, because the voters’ s. 3 right to “effective political participation” might have to be considered in a Charter analysis of executive term limits. (On the other hand, formally at least, it is not the voters who choose members of the executive, so it’s not clear that this argument can go very far.) But be that as it may, there is another argument against the constitutionality of executive terms, which may not involve the Charter at all.

Rather, the constitutional issue with executive term limits is that appointing a Premier is a power of “the office of … the Lieutenant Governor of a province,” which par. 41(a) of the Constitution Act, 1982 protects from amendment except by the unanimous consent of the provinces and Parliament. Appointing the Premier is one of the very few things, if not the only thing, that the Lieutenant-Governor does on his own, without taking anyone’s advice. Of course, convention dictates the way in which he exercises this power (he must appoint the person most likely to obtain the confidence of the legislature ― which usually, but not necessarily, means the leader of the largest party in the legislature). But the power is the Lieutenant-Governor’s all the same, and sometimes (notably, after the election of a legislature in which no party has a majority) he may have to use his own judgment in exercising it. A statute that provides that a person cannot serve as Premier is a limit on the Lieutenant-Governor’s ability to exercise this power, and thus, logically, a modification of his “office.”

It is useful to recall here something that Lord Sankey said in the famous “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124. It is not true, says the great constitutional horticulturalist, that

their Lordships [are] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one, either male or female, has a right to be summoned to the Senate. The real point at issue is whether the Governor General has a right to summon women to the Senate.

In the context of that case, it sounds implausible (I have myself said that “His Lordship, one is rather tempted to think, protests too much”) but, legally, that’s quite right. And, just as no one has a right to be summoned to the Senate, but the Governor General ― or, by convention, the Prime Minister ― has (so the Privy Council concluded in Edwards) the right to summon women to the Senate, so while no one has a (Charter) right to be asked by the Lieutenant-Governor to serve as a Premier, the Lieutenant-Governor has a right to ask the person of his choice to serve as Premier.

The legislation imposing term limits could, however, be designed to operate in a way that would attempt to circumvent this constitutional prohibition. Instead of directly prohibiting a person from serving as Premier for a third term, it would have to prohibit political parties from having a two-term Premier as a leader. One could then argue that the Lieutenant-Governor’s choice is not impaired by that statute, but rather by the convention that requires him to appoint a party leader as Premier. Whether this argument would be accepted by courts is not clear, however.

If they stick to an orthodox understanding of the law, which excludes constitutional conventions and thus acknowledges no limits on the Lieutenant-Governor’s powers, they might see such a law as an attempt to do indirectly what cannot be done directly, and invalidate it on that basis. If however, they take something like the approach Fabien Gélinas and I have suggested in our paper on Senate reform, on which the office of the Lieutenant-Governor (as well as any other term in the constitutional text) must be understood with reference to conventions, they should probably accept that this approach does not actually limit the Lieutenant-Governor’s powers, since conventions already limit them to choosing among the leaders of the parties in the legislature, and give him no say in who those leaders are. Unfortunately, despite having the opportunity to do so in Reference re Senate Reform, 2014 SCC 32, the Supreme Court has not really made it clear which of these approaches is correct. Instead, it relied on an obscure notion of “constitutional architecture” which in my view may well include some, but perhaps not all, conventions. Do executive term limits interfere with the “constitutional architecture” as it relates to “the office of the Lieutenant-Governor”? Your guess is as good as mine.

However, even if a law imposing executive term limits by prohibiting parties from having long-term premiers as leaders could survive a challenge based on par. 41(a) of the Constitution Act, 1982, it would probably be an infringement with the parties’ rights under s. 3 of the Charter. An individual may have no constitutional right to serve in the executive, but a party is free to decide how many candidates to present (so the Supreme Court held in Figueroa v. Canada (Attorney-General), 2003 SCC 37, [2003] 1 SCR 912), it arguably also has the right to decide what candidates to present, and which of them to make its leader. Again, a s. 1 justification would theoretically be possible, but it would not be easy.

The constitutionality of executive term limits thus is, at best, highly questionable. But it would be better for all if it were never tested in court. As others have amply shown, term limits are a bad idea, and even if I am wrong and they constitutional, there is no point in trying to impose them. About that, there is no question at all in my mind.