The Supreme Court of Canada Marc II: The Constitution

Having decided, on the questionable grounds I discuss below, that Marc Nadon, because he is a judge of the Federal Court of Canada, is not eligible to take one of the Quebec seats on the Court, the majority of the Supreme Court of Canada went on to consider whether it would require a constitutional amendment to make Federal Court judges eligible.

The Constitution Act, 1982 in para. 41(d) includes ‘the composition of the Supreme Court of Canada’ among the matters that require the consent of all provinces for amendment. Very reasonably, the majority concluded that changing the law, as they had interpreted it, to make Federal Court judges eligible to take Quebec seats on the Court would change its composition and require unanimous provincial consent. One might say that Sections 5 and 6 of the Supreme Court Act say that the Court must be composed of such and such people.

The government argued that, as Section 101 of the Constitution Act, 1867 granted Ottawa the power to create the Supreme Court of Canada, and other courts, but there is no provision in the Constitution Acts maintaining the Court, Ottawa retains its power to do with the Supreme Court whatever it likes. In support of this, it pointed out that the Supreme Court Act is not included in the schedule of acts forming part of the Constitution as defined in Section 52.

In face of the express provision in 41(d) protecting the ‘composition’ of the Court this argument was not persuasive. But the Court’s way of rejecting it was unsettling:

'Accepting this argument would have two practical consequences that the provinces could not have intended. First, it would mean that Parliament could unilaterally and fundamentally change the Court, including Quebec’s historically guaranteed representation, through ordinary legislation. Quebec, a signatory to the April Accord, [a stage in the constitutional negotiations] would not have agreed to this, nor would have the other provinces. Second, it would mean that the Court would have less protection than at any other point in its history since the abolition of appeals to the Privy Council. This outcome illustrates the absurdity of denying Part V its plain meaning. The framers cannot have intended to diminish the constitutional protection accorded to the Court, while at the same time enhancing its constitutional role under the Constitution Act, 1982.'

In interpreting an enactment courts are bound to try to find some meaning in even the obscurest language. But to infer from anything beyond the language of the enactment, from history or what the court thinks would be best, that the framers intended something is a dangerous step. There is no ground for assuming that the framers of the Constitution Act, 1982 knew what they were doing in every detail from any point of view. It is in many respects a botched job and it is not the job of the Supreme Court to write the constitution the framers should have written, to make up for their failings in the last four days after years of confused palaver.

The provinces intended nothing. Their premiers and attorneys general took political stands excited about some things, opting out, natural resources, the Charter, and neglecting others. They settled on some words, which were refined by legislative draftsmen. It is for the Court to interpret those words by the received standards of statutory interpretation.

When it came to what amending formula would apply to what aspects of the Constitution, neither the politicians nor the draftsmen seem to have thought the ‘matters’ through. This leaves the Court with a difficult task. But, again, that task is not to speculate as to what they would have done had they thought more carefully or to try to infer that from the mass of words emitted in the course of the negotiations but to interpret the words of the Constitution Act as they stand. If that means some things seem too easy to change and others practically impossible, whatever the merits of the change, that’s what the ‘framers’ have done for us and we, and the Court, must live with it.

And what does the Court mean by

'…it would mean that the Court would have less protection than at any other point in its history since the abolition of appeals to the Privy Council.'

Does it mean that Ottawa could not legally have abolished or totally reshaped its creature, the Supreme Court of Canada, before 1982? It was never a political question and would never had been done. But it could legally have been done. Indeed the abolition of appeals to the Privy Council, leaving the Supreme Court of Canada, whose judges are appointed by Ottawa, as the final court of appeal, was itself a radical step taken by Ottawa on its own.

The oddity of the Court’s reasoning and its implications is highlighted by its unnecessary discussion of paragraph 42(1)d, which includes ‘the Supreme Court of Canada’ among the ‘matters’ that require the consent of seven provinces having half the population for amendment. The Court continually qualifies this as protecting the ‘essential features’ of the Supreme Court, which ‘include, at the very least, the Court’s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.’ But ‘essential’ is the Courts interpolation. What does the matter of ‘the Supreme Court of Canada’ mean? The whole 36 pages of the Supreme Court Act? Would an amendment to subsection 58(2), which excludes July from the calculation of time for filing appeals require the consent of seven provinces. One assumes the Court would say no. But where it might draw the line must be a matter of speculation inviting further references. One aspect of the botching of the Constitution is the obscurity of the amending provisions. Nadon is only one of three cases before or heading to the Court asking clarification of what requires an amendment to the Constitution and with what provincial consent. The Senate reference and the Succession to the Throne Act callenges are the others.

The Supreme Court Act was in fact amended in 1985 in the regular revision of statutes producing the Revised Statutes of Canada, 1985. This is approached as a technical housekeeping measure but it involved changing Section 6 to replace a reference to ‘the Court of Queen’s Bench, or of the Superior Court’ of Quebec with a reference to ‘the Court of Appeal or of the Superior Court,” Quebec having rearranged and renamed its courts. While superior court judges are appointed by Ottawa, the provinces establish the courts. Section 5 refers to ‘superior court of a province’ without capitals, a generic phrase, which would cover courts whatever they were called and however they were arranged. But Section 6 uses capitals to name the Quebec courts as they are legally named in Quebec legislation.

Referring to the 1985 change the Court says ‘Parliament did not intend any substantive changes’ and it could reasonably be argued that changing courts’ names would not affect the ‘composition of the Supreme Court of Canada’ and would require no constitutional amendment. But what if Quebec were to rearrange its courts creating civil and criminal divisions, including civil and criminal courts of appeal? In that case it could be argued that judges serving on the criminal courts might have poor knowledge of civil law, the principal purpose of having Quebec judges on the Supreme Court of Canada. If Parliament amended the Supreme Court Act to reflect the rearrangement, even excluding judges from the criminal courts, would that still not affect the ‘composition’ of the Court? The Court might say the change was consistent with the purposes, the values, the principles or whatever behind Section 6 and in the Constitution, but that would effectively amount to the Court saying it approved of the change and did not think provincial consent was required, even though the Court’s ‘composition’ was affected. So that the standard for when an amendment to the Constitution is required would become whatever the Court thought questionable. And as underlying the question is the political fact that constitutional amendments with provincial consent are practically impossible, we should be left with a Constitution that could only be amended through the back door, when the Supreme Court of Canada approved and didn’t think the provinces should be asked to consent.

And the ‘composition’ of the Supreme Court of Canada was given absolute protection, above its ‘essential features,’ for Quebec only. Only Quebec’s share in the Court could justify such entrenching. The other provinces have no special interest in the Court’s composition. It might have made more sense simply to subject the ‘composition’ of the Court to a Quebec veto. But that would have been politically awkward, so Quebec was given an effective veto by means of the unanimity requirement.

On this analysis, and adopting the Court’s method of speculating on what the provinces intended, it could be argued that if Quebec expressed its contentment with an amendment to Section 6, it would not affect the ‘composition’ of the Court within the ‘framers’ intentions and no amendment with unanimous consent would be required.

Mr. Justice Moldaver, having decided that Section 6 did not bar Federal Court judges from appointment to Quebec seats, did not need to address the constitutional question, but he remarked:

'I have difficulty with the notion that an amendment to s. 6 making former Quebec advocates of at least 10 years standing eligible for appointment to the Court would require unanimity, whereas an amendment that affected other features of the Court, including its role as a general court of appeal for Canada and its independence, could be achieved under s. 42(1)(d) of the Constitution Act, 1982 using the 7-50 formula. Put simply, I am not convinced that any and all changes to the eligibility requirements will necessarily come within “the composition of the Supreme Court of Canada” in s. 41(d).'

seeming to invite the kind of argument I have outlined.

The obscurity of the ‘matter’ of ‘the Supreme Court of Canada’ in 42(1)d raises the question whether any legal change to the process of appointment of Supreme Court of Canada judges would require provincial consent. The ‘process’ of appointment adopted by Stephen Harper culminating in an ad hoc Supreme Court Appointments Selection Panel made up of MPs and an appearance of the ‘nominee’ before another committee of MPs is not provided for by law. As happened with the appointment of Thomas Cromwell in 2008 it can be scrapped. But if we decided to ape the Americans and require parliamentary confirmation of Supreme Court appointments by law, would that not affect the ‘essential features’ of the Supreme Court of Canada, one of which, according to the Court, is its independence. A legal process of confirmation might be thought to enhance the Court’s independence, though it also might be thought to subject it to more partisan political influence. It should not be for the Court to judge whether such a change is for the good or enhances the values of the Constitution. It either touches the ‘matter’ protected by paragraph 42(1)d or it doesn’t. If that matter is the Court’s ‘essential features’ and one of them is its independence, that can only mean precisely the degree and kind of independence it now enjoys, and not just that and nothing less, but more is OK.

And should Harper’s extra-legal ‘process’ become politically entrenched, impossible to get round, what then? Harper’s Senate election legislation, now before the Court, is defended on the basis that it makes no change to the law on Senate appointments. It only provides a means of consulting the voters, but the voters’ choices can legally be ignored. The expectation obviously is that it would be politically impossible to ignore the voters’ choice, though Jean Chrétien did. But Chrétien was ignoring the choice of voters in elections held under plainly unconstitutional provincial legislation. What if the elections/consultations are provided for in legislation passed by the Parliament in which the Senators are to sit?

Some have speculated that the Court’s reasons in Nadon bode ill for the Senate Reference. That its readiness to say a constitutional amendment would be required to make Federal Court judges eligible for appointment to Quebec seats on the Court indicates it will say Harper’s Senate plans will require constitutional amendments. But that would be to assume a lucidity, rigour and probity not evident in the Court’s reasons.

The Supreme Court of Canada and Marc Nadon

It doesn’t much matter whether Marc Nadon should get to serve on the Supreme Court of Canada, or whether any judge of the Federal Court of Canada can serve as one of the three Quebec judges on the Court.

But the Supreme Court’s decision on the Nadon reference has produced an eruption of excited comment from political pundits, academics and politicians.

The Globe provided a summary of over the top reactions:

• Paul Daly, who teaches administrative law at the University of Montreal, called the ruling "a huge day for the Canadian federation. This is a ringing declaration from the Supreme Court of Canada on the importance of Quebec's distinct character and how important it is to protect it."
• Errol Mendes, a law professor at the University of Ottawa, called the ruling "a slap in the face to the PM who sought to stack the Court with a clearly unsuitable candidate." He also said it was a criticism of the way the Prime Minister treated the question of national unity.
• William Trudell, a Toronto lawyer, said the ruling made him proud to be a member of the legal profession. "Mr Harper is not above the law, and cannot shape it or ignore proper processes to fit his political agenda. True 'law' and especially 'order' has been protected by the Supreme Court of this remarkable country."

As is often the case with the Supreme Court, it is not its decision but what people make of it, which much depends on how it expresses itself, that matters.

The question the Court had to decide was a technical one, an issue of statutory interpretation. Though that does not mean it is beyond the understanding of laymen.

Section 5 of the Supreme Court Act says that ‘ Any person may be appointed a judge [of the Supreme Court of Canada] 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.’

Section 6 says that ‘At least three of the judges 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.’

It was argued, and the majority of the Court held, that the use of ‘is or has been’ in Section 5 and its absence from Section 6 meant that Parliament intended that, while for the other seats on the Court people who had been lawyers in a province for ten years but were no more could be appointed to the Court, for the Quebec seats, only people who are at the time of their appointment Quebec lawyers, or judges, can be appointed. Marc Nadon, who was last a lawyer in Montreal in 1993, was ineligible since his appointment to the Federal Court in that year.

The counterargument, cogently put by Mr. Justice Michael Moldaver in his lone dissent, was that, reading the two sections together, it was clear that the absence of ‘is or has been’ from Section 6 was not meant to restrict Quebec appointees to current advocates, or judges, but assumed ‘is or has been,’ and only restricted their qualifying service to service in Quebec. As Moldaver sharply pointed out, not carrying forward the provisions of Section 5 into Section 6 would mean that a Quebec lawyer would be eligible for appointment to the Court on the day of his call to the bar, while lawyers from other provinces would have to have have had ten years under their belt.

The majority seemed to think that Quebec appointees would have to have 10 years membership in the Quebec bar, even though the 10 years requirement only appears in Section 5. Moldaver wrote ‘with respect’ that ‘this amounts to cherry-picking. Choosing from s. 5 only those aspects of it that are convenient and jettisoning those that are not.’ The majority cutely declined to say whether it would be enough for a judge of the Federal Court to step down and be readmitted to the Quebec bar for a day, saying that they had not been asked that.

Moldaver’s reasons had been anticipated by an opinion obtained by the government from retired Supreme Court of Canada judge Ian Binnie. An opinion endorsed by Louise Charron, another retired Supreme Court of Canada judge, and Peter Hogg, a law professor who holds the reputation of Canada’s leading constitutional expert.

I am not a judge and do not need to decide which postion is correct. Though I do find Moldaver’s most persuasive. But the controversy over the Nadon appointment has been fueled by the way the majority chose to express itself.

Working up to its decision the Court had this to say about itself:

• ‘central to the functioning of legal systems within each province and, more broadly, to the development of a unified and coherent Canadian legal system.’
• ‘further enhanced as the 20th century unfolded.…Parliament…gave the Court control over its civil docket, and allowed it to focus on questions of public legal importance.…the Court’s “mandate became oriented less to error correction and more to development of the jurisprudence”’
• ‘a constitutionally essential institution engaging both federal and provincial interests.’
• ‘essential under the Constitution’s architecture as the final arbiter of division of powers disputes and as the final general court of appeal for Canada. The Constitution Act, 1982 enhanced the Court’s role under the Constitution and confirmed its status as a constitutionally protected institution.’
• ‘The judiciary became the “guardian of the constitution”. As such, the Supreme Court of Canada is a foundational premise of the Constitution. With the adoption of the Constitution Act, 1982, “the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy”’

Golly Gee! Ain’t they grand! And humble too! As some time late in the last century they refused to be called ‘Their Lordships’ as they had been for the first 120 years of their existence.

Warming up to its task the majority proclaimed that the questions it was asked ‘which on their face raise issues of statutory interpretation, engage more fundamental issues about the composition of the Court and its place in Canada’s legal and constitutional order.’ Not for them any little questions of statutory interpretation. Only fundamental issues. And so Sections 5 and 6 ‘must be interpreted in a broad and purposive manner and understood in their proper linguistic, philosophic [emphasis added] and historical context.’ And so on to much palaver about the ‘historic bargain’ that led to Quebec having three seats on the Supreme Court of Canada, ‘social values’ and ‘the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights.’

The Court’s idea of ‘purposive’ interpretation is to think that where any dispute arises about the meaning of a statute Parliament must have meant to do what the Court thinks best and the words it used should be interpreted accordingly. That Parliament might simply not have made itself crystal clear, though clear enough for Moldaver, Binnie et al. won’t do. The Court knows what Parliament meant, it meant well by the Court’s standards, and the Court will make it clear for us.

What it all amounts to is saying that Parliament intended that Quebec lawyers who accept appointment to the Federal Court render themselves ineligible for appointment to Quebec seats on the Supreme Court of Canada because their knowledge of civil law might become a bit rusty.

Reasonable lawyers could disagree on the interpretation of Sections 5 and 6 together, but it is surprising that the court came down 6 to 1 against the Nadon appointment. 5 to 2 maybe, if not 4 to 3. But that would be to descend from ‘ fundamental issues about the composition of the Court and its place in Canada’s legal and constitutional order’ to mere statutory interpretation. The Nadon appointment would face a mere technical glitch and there would be little for the commentators to sink their teeth into.

So the majority held that ‘the purpose of s. 6 is clearly [emphasis added] different from the purpose of s. 5. Section 5 establishes a broad pool of eligible candidates; s. 6 is more restrictive. Its exclusion of candidates otherwise eligible under s. 5 was intended by Parliament [emphasis added] as a means of attaining the twofold purpose of (i) ensuring civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) enhancing the confidence of Quebec in the Court. Requiring the appointment of current members of civil law institutions was intended to ensure not only that those judges were qualified to represent Quebec on the Court, but that they were perceived by Quebecers as being so qualified.’

There is not the slightest ground for attributing these grand purposes to Parliament in its framing of Section 6 as the majority interprets it. The purposes the Court finds are not Parliament’s but its own. Nor is their any ground for attributing to Quebeckers a perception that Quebec lawyers who have served on the Federal Court, as Quebeckers (Nadon was appointed to the Federal Court, and then the Federal Court of Appeal, as one of the quota of Quebec judges on the Court), are not qualified to represent Quebec’s legal traditions and social values. Except that the Court has now said so and the Parti Québécois government, for whom the word ‘federal’ is a hex, was one of those who started the issue on its way the Court.

It’s all nonsense anyway, as, on the Court’s interpretation, a Quebecker who, without ever practicing in Quebec, had kept up his membership in the Bar but worked in New York for years, a character from a Denys Arcand film perhaps, would be qualified for appointment as a Quebec judge of the Supreme Court of Canada, while Nadon is not.

With its ‘broad’ ‘purposive’ ‘historical’ ‘fundamental’ and ‘philosophic’ reasons the Court gave something for the pundits to sink their teeth into and they were off.

Many took the majority’s grand view of its work and reported its ruling in terms like this, from Sean Fine, The Globe’s ‘Justice Writer,’ ‘Quebec's distinctive character must be reflected in the appointment of judges to the Supreme Court of Canada.’ No one doubts or disputes that. That’s the point of Section 6. What was at issue was whether the wording of Sections 5 and 6 together disqualifies sitting judges of the Federal Court, despite training and experience in Quebec law that would have qualified them for appointment had they not accepted a seat on the Federal Court. The Court itself says ‘Our opinion,…limits itself to the legal and jurisdictional issues necessary to answer the questions. We are not asked about nor opine on the advantages or disadvantages of the eligibility requirements codified in ss. 5 and 6 of the Act and possible changes to them.’ So despite their purportedly ‘purposive’ interpretation of the Act, the Court wasn’t saying this is just the way to assure the most Quebeckish judges for the Quebec seats on the Court. As my example above illustrates.

Canada’s almost official national pundit Jeffrey Simpson in The Globe pulled out all the stops:

• ‘The Harper government thoroughly deserved the complete rebuke it received…’
• ‘the justices taught the Harper government a bunch of lessons.'
• 'Among the lessons: Don't play politics with the judiciary. Don't play fast and loose with the law. Pick the best qualified, not the average. Understand the Constitution.’

Simpson doesn’t go into detail on the reasons, which he may not even have read. But the necessary implication of his column is that we must be greatly relieved that Binnie and Charron are no longer on the Court, having endorsed arguments deserving only of rebuke. And worried about Moldaver.

Simpson’s outrage is an illustration of a general problem when governments’ actions or plans are rejected by the Court. Losing an argument in court is treated by pundits and politicians as a rebuke, almost conviction for a crime. Former Liberal Justice Minister Irwin Cotler and Jordan Press in The Post also called the decision a rebuke. Other favoured phrases to describe the decision have been ‘stunning political defeat’ and ‘stunning blow.’

On this thinking, a government concerned for its reputation might be tempted never to send its lawyers to court unless guaranteed of success. And where there are legal arguments, there are no guarantees of success. So governments would be bound not simply to obey the rulings of the courts, which they do, but to do nothing against which an argument might be raised, for fear of losing the argument and being pilloried for being ‘rebuked’ by the courts.

The political reaction is best represented by Françoise Boivin, the NDP’s justice critic:

• …the NDP was quick to respond, saying the ruling suggested no one in the government was “minding the constitutional house” since it had been trying to appoint a judge who didn’t qualify for the Supreme Court.
• “The court, thank God, decided to tell them, no you can’t do that,” NDP justice critic Francoise Boivin told reporters in Ottawa.
• “We shouldn’t play politics … with justice issues like this,” Boivin said. “The court doesn’t play politics.”
• Boivin put the blame for Nadon’s appointment on the government, which she said didn’t follow proper processes or listen to the will of the Quebec legislature.

Boivin was a member of the Supreme Court of Canada Appointments Selection Panel from whose shortlist Nadon was chosen. Did she check with the Quebec legislature in the course of her work? And ‘minding the constitutional house,’ where does it say in the Constitution that the Quebec legislature must be consulted on Supreme Court of Canada appointments?

Jeffrey Simpson does what most of the commentators have done, confuse the technical question of Nadon’s eligibility under the Supreme Court Act and his merits as a potential judge of the Court. If Nadon had been the most admired judge in the country the reasons of the majority should have been exactly the same. To say that they would not have been would be to say that they were dishonest. That the majority simply cooked up its reasons because it didn’t want Nadon sitting with them. Only Moldaver expressly states that it ‘is a legal issue, not a political one. It is not the function of this Court to comment on the merits of an appointment or the selection process that led to it. Those are political matters that belong to the executive branch of government. They form no part of our mandate.’ But harsh critic of the Court that I am I would not go as far as Simpson and most commentators do in implicitly saying that the Court’s real reasons were a distaste for Nadon.

The alternative line would be to think that the majority was worried about reaction in Quebec. The National Assembly had voted unanimously against Nadon’s appointment. Nationalistes are quick to take offence where there is none. It is one of the French Facts we must live with. Perhaps the Court was worried that taking Moldaver’s more persuasive line would upset them and set to work to find a way in its reasons and in the result to placate them.

It used to be said that ‘an ambassador is essentially an honest man sent overseas to lie for the sake of his country.’ And a Supreme Court judge goes to Ottawa to do it?

Prostitution: The Supreme Court of Canada rules

I am content to leave it to others, who have filled the media in the days since the judgment of the Supreme Court of Canada in Bedford was released, to debate what law, if any, there should be to regulate ‘the oldest profession.’ As it is a ‘sex trade’ there is vast interest. What interests me is why nine judges in Ottawa should have the first, for they started the debate, and last, for whatever is done must satisfy them, word on the subject.

The answer might seem simple. The Charter is the supreme law of Canada and the judges’ job is to apply it. They are the experts. They were asked and they answered. Who are we to question them?

If it is that simple, why has it taken 31 years since the Charter became our supreme law for us to be told that the longstanding provisions of the now subordinate law, the Criminal Code, must go? And the question becomes more poignant when it is remembered, as the judges did at length, that 23 years ago the Supreme Court of Canada was asked much the same question in the Prostitution Reference and found no fault in the provisions of the Criminal Code now struck down.

The question boils down to this: is there any difference between the Supreme Court of Canada’s opinion with all its references to the Charter and old cases, and your or my opinion arguing in a bar without any reference to the Charter? Were the judges constrained by the language of the Charter, and the interpretations of judges before them, to render the judgment they did? Might some of the judges think that absent the Charter we should do best to keep the provisions of the Criminal Code but have felt bound to render, as a legal opinion, the judgment they did, though it conflicted with their personal opinion on the subject?

The answer to this question, pace a battalion of law professors, is NO.

The judges make a great show with references to Sections 2(b) and 7 of the Charter and ‘doctrines of arbitrariness, overbreadth and gross disproportionality’ as expounded in their more recent cases, of applying law in which they are experts. But ‘arbitrariness, overbreadth and gross disproportionality’ are just words with which we might pomp up our arguments in a bar. As the Court has chosen to interpret the Charter nothing in it constrains them from making whatever law they choose.

This goes so far that they show no deference to old, largely dead, judges who preceded them. The Prostitution Reference is dismissed on the basis that the old judges had not articulated the doctrines they have so cleverly come up with and that their social, political and economic assumptions are no longer valid. When these nine judges are gone their successors may articulate new doctrines and make new assumptions and show them no deference.

And in dismissing the work of their predecessors 23 years ago the judges were careful to send a message to all judges below them not to feel constrained by precedents. The Ontario Court of Appeal had questioned the readiness of the judge a first instance to proceed with slight regard for the Prostitution Reference. ‘Not to worry.’ said the Supreme Court of Canada to all judges. 'Hear whatever arguments take your fancy and send it all up to us and we’ll decide.'

As further encouragement to judges below the Court said courts of appeal should accept the findings of fact of judges at first instance. When a trial judge accepts a witness’s evidence that she saw the accused covered in blood leaving the room where the victim was found courts of appeal will accept the finding. They did not see the witness and cannot judge her credibility. But evidence in Charter cases is a very different thing, as I have discussed. In this case it was 25,000 pages of affidavits and ‘experts' opinions. The judge at first instance heard some witnesses but the Court does not pretend that the case turned on their evidence. The Court excused itself from reading it all. Neither we in a bar nor the opinionators in the media feel the need, so why should the Court? The judge’s findings matched their opinions and she had saved them the trouble.

They also saved themselves the trouble of writing new law that might appeal to them and their successors. They gave Parliament a year to try something new. This is part of what the law professors lyingly call the ‘dialogue’ between the Court and Parliament. Something like the dialogue between a sergeant and a platoon.

A year should be plenty of time, shouldn’t it? But it took over four years for the courts to deal with the issue. Over six months for the Supreme Court of Canada to decide the case. Longer if one assumes the judges spent some time reading before they heard the arguments. Or 31 years if we start counting from when the Charter came into effect.

If we think all that need be done is for a clerk to read the Court’s judgment and draft a bill to suit the judges' opinions and Parliament to wave it through a year is more than enough. But the Court itself says ‘The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.’ And Parliament, unlike the Court, does not act in a vacuum. Is not irresponsible. Parliament acts as the servant of us all, taking all our ideas and interests and making decisions for us. Bills passed in Parliament are the result of of years of public discussion, lobbying and controversy. Even accepting the rough restrictions placed on Parliament by the Court, the question of what, if anything, should be done, is not one that can, democratically, be settled in a year.

But the judges, though they have given themselves the vote, are above politics and no doubt innocent of having landed Stephen Harper with an embarrassing issue in the year before the next election.

This is what comes of government by Charter. No doubt there is much to be said by any of us about what the law on prostitution should be. Absent the Charter those who wanted change would have engaged us in public debate. With the Charter all this was channeled into a court case that was only occasionally reported as it proceeded. The Supreme Court of Canada with its cumallya approach to intervenors heard a crowd of parties while Parliament and the public were sidelined.

Now we’re under orders to sort it all out. And pronto.

Against Michael Chong's Reform Act

Michael Chong’s proposed Reform Act has been excitedly received: The bill ‘would change Canada’s Parliament forever,’ ‘repair our damaged democracy,’ ‘takes a stab at fixing Canada’s undemocratic Parliament,’ ‘could empower MPs and save democracy,’ ‘democratize democracy,’ ‘it’s the change Canada needs.’

I am Against Reform and should be expected to be suspicious of Chong’s initiative. But some claim it will return us to Westminster style parliamentary government. I should be all for that.

And I believe party leaders should be chosen by those they are to lead, the party’s MPs. So I might be expected at least to like the proposed procedure under which 15% of a party’s MPs could trigger a vote of those MPs, who could by a majority oust their leader and then choose an interim leader. But Chong’s bill is grounded in the muddled and foolish thinking that underlies all reform talk and is all bad.

As Andrew Coyne, who on this issue, if on no other, sees roughly eye to eye with me, and who is Chong’s chief cheer leader, has delicately pointed out: ‘The logic of caucus review points to election by caucus as well.’

But Chong stops short of providing that MPs should chose their own leader, because he knows, and accepts, that that would be a step too far. Had he proposed to forbid parties to choose leaders by whatever cockeyed scheme they fancy, the populist screech would have doomed his initiative.

So all the bill does is set out a procedure under which MPs could trigger a party leadership contest. The party might throw the ousted leader back at them. The bill is circumspect about that, using the words ‘review,’ ‘replace’ and ‘endorse.’ It would be a brave judge who would read it as forbidding a party to send back a leader ousted by MPs.

Supporting, following or accepting a leader are not like worshipping God or subscribing to the Furherprinzip, unqualified and unconditional. It is always a matter of compared to whom? And the ‘to whom’ is circumscribed by whom those who chose the leader like. What Chong proposes is that MPs should be provided with a procedure by which they might choose between their present leader and whoever might be chosen by whoever might be the party members or their delegates some months later, perhaps the present leader. If the party at large is unhappy with its leader or sees a better prospect, MPs might think it best to wait for the party’s own leadership review. If it is the MPs who don’t like the leader or see a better prospect, they’d risk in using Chong’s procedure up to a year of damaging party turmoil with no assurance that they’d get the one they wanted.

As things stand now, no statute or rule of the Commons requires MPs to support their leader. They do so, if they don’t simply think their leader is the best available, because they accept the practice, which has become part of our political culture since the fell Liberal Convention of 1919 that chose Mackenzie King as leader, of leader selection on the model of American candidate selection. They may even think that’s best. Apart from Andrew Coyne and myself hardly anyone seems to question it. The direction has all been towards longer, more involved leadership contests culminating in the nonsense of Justin Trudeau’s election by Liberal ‘supporters’ with the ever stronger implication that whomever the party people have invested as leader no MPs should set aside.

But by stopping short Chong’s bill affirms what its chief object should be to condemn. As it says

(iii) if a majority of caucus members present at the meeting referred to in subparagraph (ii) vote to replace the leader of the party, a second vote of the caucus shall be conducted immediately by secret ballot to appoint a person to serve as the interim leader of the party until a new leader has been duly elected by the party.

The party, not the MPs, are to chose the new leader.

Some may say: “At least it’s something.” But it’s not even that. You say: “If it became law it would be clear how MPs unhappy with their leader should proceed.” It is clear enough now. But if Chong’s bill passed there would be a rule. 14% of discontented MPs prepared to speak out would not be enough. 10% were enough to oust Stockwell Day from his leadership of the Canadian Alliance in 2001. Had Chong’s rule been in effect their not being 15% would have been an argument to be used against them.

Best that Chong’s initiative should fail and the real issue be addressed: Why shouldn’t MPs choose who will lead them?

Eighty Thousand Petitioning Kensington Market Shoppers or Tourists?

Almost eighty thousand people have signed an online petition against a proposed Walmart on Bathurst Street south of College Street about half a mile from the Kensington Market in Toronto. And over six thousand have signed a petition against a proposed Loblaw’s on College Street on the verge of the Market.

What these people must be saying is that many people who now shop in the Kensington Market would, if the Walmart or Loblaw’s opened, choose to shop at them instead. And they want the City government to deny them that choice.

Just conceivably the petitions could be a kind of voluntary market survey, kindly warning Walmart and Loblaw’s that people won’t shop at their stores. That they will lose money because people prefer to shop at the Kensington Market. But plainly they are not. The petitioners call themselves the Friends of the Kensington Market and claim they are trying to Save the Kensington Market. The big corporations and their big stores are the baddies. And the retailers of Kensington Market are the good guys.

What are they up to then? If they are a statistically significant sample of people who regularly shop at the Kensington Market, they have nothing to worry about. Unless they own shares in Walmart or Loblaw’s. They will continue to shop in a thriving Kensington Market and Walmart and Loblaw’s will struggle and perhaps go away.

Might they? Just might they be people who already shop at the Loblaw’s on Christie or Whole Foods on Avenue Road and, perhaps, fashionable organic farmers’ markets and occasionally go down to Kensington Market for fine cheese or fish, or vintage clothing and a bite at one of its characterful restaurants?

If so, and at over eighty thousand and rising the petitioners must go way beyond the regular household shoppers in the Market, they are basically local tourists who want to restrict the shopping choices of those who live in the Kensington neighbourhood so that they can have a picturesque market to visit when they tire of the Distillery District or funky Queen Street West.

And restaurants? Oh, dear! They’re another problem.

It’s not clear who is behind the move. I could find no petition. But the City government that is being asked to stop the Walmart and Loblaw’s opening anywhere near the Kensington Market has already limited ‘restaurants’ to 25% of the storefronts on Queen Street West in Parkdale. And City Councillor Adam Vaughan, whose ward includes the Kensington Market, has started the City studying a similar ban there. They may find that ‘restaurants’, which, so far as the City can regulate them include coffee shops, already constitute more than 25% of the Market. Most of my visits to the Market, which is four short blocks from my home, have been to go to those ‘restaurants.’

The chief ground advanced for limiting ‘restaurants’ is that they will drive up rents. Which is to say that more people will come and spend at restaurants than do at grocery stores or funky clothing stores or hardware stores. And they must be stopped. Or else Adam Vaughan will have to get in a car to buy a light bulb. Something he finds ‘extremely offensive.’ I can buy light bulbs at six places within five minutes walk of where I am sitting. They sell them at Loblaw’s. Mostly incandescent, but that’s another issue. Apparently Vaughan doesn’t use public transit.

A more plausible ground for objecting to ‘restaurants’ is that they would risk turning the area into a clubland with drunken youth yelling and puking in the wee hours. But that is a liquor licencing issue and no business of the City. Under the legislation the Alchohol and Gaming Commission is supposed to consider whether there are already enough licensed establishments in an area.

There is already under the Criminal Code of Canada a ban on crack houses in the Kensington Market and Parkdale. But as this is not the subject of a Zero Tolerance policy those who frequent the areas for what Adam Vaughan apparently believes is the Mayor’s favorite pick-me-up need not worry.

UPDATE November 12, 2020: An Independent City Market, a kind of Loblaw's franchise, did indeed open on College Street in 2016. It closed a couple of weeks ago. It was a fine store but had no obvious street presence. It could not compete with the Kensington Market.

There is no Walmart on Bathurst Street. There is a Freshco and a Winners, but they are too far from Kensington Market to compete with it.

Chrystia Freeland's Prize Winning Stupidity

Chrystia Freeland is a star in the higher journalism: some kind of high mucky muck at Reuters, formerly at The Financial Times, and briefly at Canada’s Globe, and now a prize winning author. Her Plutocrats has just won the $15G Lionel Gelber Prize. She has jumped on the trouble with billionaires bandwagon and seized a big drum.

I haven’t read her book and won’t unless someone pays me.

But we can get the measure of it from a widely published trailer, ‘The Self-Destruction of the 1 per cent.’ I have my copy from The New York Times.

This adapted extract from her book flatters the middle brow chattering classes by showing off a bit of what must be for most obscure, if romantic, history.

Her text is Why Nations Fail, another book I haven’t read, but which sounds like a fine example of the lucrative genre of lessons from history for people who know no history.

Daron Acemoglu and James A. Robinson, economists, not historians, tell the story of how Venice, around 1300, closed its oligarchy by creating a Libro d’Oro recording the existing families with a right to sit in its Grand Council and closing it off. This was known as the Serrata, the closing. According to Acemoglu and Robinson, and Freeland, this led to the decline and fall of Venice.

This is simply stupid. Venice remained a great power for roughly four centuries after the Serrata.

Venice’s prosperity and power were based on its effective monopoly on trade with the East in a Western Europe where power was diffused under feudalism.

Around 1500 the Ottoman Turks had seized control of the whole Eastern Mediterranean, the Portuguese led by Vasco da Gama had opened a sea route to the East, Columbus had discovered America, and a new world of riches was opened, and France was on the way to becoming the first absolute monarchy and a great power.

These developments led to the, at first relative, decline of Venice. Serrata or no Serrata they would have happened.

And whatever the consequences of the Serrata the pretentious parallel Freeland seeks to draw with the flowering of billionaires in the United States is absurd.

Far from being a closed group the plutocrats are almost all new men. And the Serrata was not in the long term a plutocracy nor closed. When Venice needed money to fight the Turks, or the French, new money could buy in. And by the 18th century the roughly 2000 in the Libro d’Oro were not the 2000 wealthiest families in Venice. Many were quite poor barnabotti, too proud of their families to strive to make a ducat but swaggering about and making trouble in the Grand Council.

Freeland’s ‘Self-Destruction’ is a tissue of stupidities including a most inapposite invocation of Marx, at which Karl would have barked, and several references to her meetings with the great, either good or bad.

Bring on the prizes!

INJURY ADDED TO INJURY RESIGNING FROM THE CABINET TO RUN FOR PREMIER

Five Ontario cabinet ministers have now resigned in order to run to succeed Dalton McGuinty as Leader of the Ontario Liberal Party and Premier of Ontario. They have done this in obedience to an edict of McGuinty's unknown to law and the conventions of parliamentary government and the rules of the Ontario Liberal Party.

It was not always thus. In 1968 seven sitting cabinet ministers ran to succeed Lester Pearson as Leader of the Liberal Party of Canada and Prime Minister and none of them resigned.

The folly seems to have begun in Alberta in 2006 when Ralph Klein decreed ministers wanting to succeed him would have to step down almost six months before the leadership vote.

Ministers resigned in 2009 in Manitoba to run to succeed Gary Doer and in 2011 in British Columbia to succeed Gordon Campbell and in Alberta to succeed Ed Stelmach. As Interim Leader of the New Democratic Party of Canada Nicole Turmel decreed that candidates for the leadership would have to step down as committee chairs and opposition critics. On obscure grounds Thomas Mulcair was allowed to remain Deputy Leader.

But before all that ministers routinely ran for their party's leadership without resigning.

Why should ministers have to resign to run to lead their party?

Is it because they would be too busy running to carry out their responsibilities? If so, why has this only recently been noticed? And why then shouldn't the whole government resign prior to an election?

And why, the Parliament of Ontario having been shut down so that the Liberals can choose a new leader, should injury be added to injury and the cabinet be stripped of those who are presumably its strongest ministers as well. With the prorogation, ministers already have a lighter load, not having to answer for their ministries to Parliament.

If ministers running for the leadership may be a bit distracted by their campaigning might they not be better able to handle their portfolios than temps who will very likely be shuffled away once the new leader is chosen, just as they have mastered their new portfolios?

The argument that leadership candidates will be too busy to remain in cabinet makes no sense. If a candidate believes that, he or she can step down. But that would be based on an assessment of what he or she was going to do in the way of campaigning. Kathleen Wynne might have decided it would be enough to say 'I'm Kathleen Wynne. You know me.' and keep working at her minister's desk.

The real impetus behind the requirement that ministers resign to run for the leadership is the notion that it is somehow unfair that a leadership candidate should already be a minister. As is often the case when people say something is unfair, there is nothing unfair about it. The ex-ministers running for the leadership have won themselves prominent places. Whatever those of us who are not Liberals might think of them, for Liberals that is a fair advantage. In the ordinary course whoever will lead the Ontario Liberal Party should have made it to cabinet. It would be a harsh commentary on the Liberals if no one in the cabinet was deemed worthy to lead them.

As it is, the only other candidates are former ministers who had stepped aside for a while. They have the earned advantage of their prominent pasts and the unearned advantage of not being associated with any recent troubles.

This foolishness is a new injury to our politics arising from the treatment of party leadership on the model of American political candidacies. The new Leader of the Liberals will lead the Liberal members at Queen's Park, and as Premier will be responsible to the Legislative Assembly. But the Liberal Party members will chose the Leader and the notion arises that a cabinet minister should have no advantage over the next person who goes through the turnstiles at the Walmer entrance to the Spadina Subway Station. Everyone should have to prove themselves in a campaign, as if no one knew anything of them before.

If running for the leadership is really too onerous to combine with sitting in cabinet, it can only be because candidates are expected to mount a U. S. style, full time campaign. To reach out to the Liberal grassroots, who should already know them, and recruit temporary Liberals to pack the delegate selection meetings. No good can come of that.

There are many advantages in politics of which the most elementary, as the operatives will tell you, is name recognition. Perhaps Justin Trudeau should have to change his name to James Sinclair in order to run for the Leadership of the Liberal Party of Canada.

I cannot find that anyone has ever commented in our media on this curious and  foolish practice. The resignations of five senior Ontario cabinet ministers passed without comment. Apart from their being reported as each candidacy was announced, they have not been noticed and commented on. The closest thing to a comment is in the 9th paragraph of this column by Rex Murphy.