Finally, a Supreme Court of Canada appointment made in the good old fashioned way. The way Dickson, Laskin, Cartrwright, Tascherau, Duff and 90% of the others were appointed. No Supreme Court Of Canada Selection Panel of MPs. No phoney appearance before a committee of MPs. The Prime Minister and the Minister of Justice confidentially consulted all who might have ideas on who might be suitable. Prospects were confidentially consulted as to their willingness to serve. And Suzanne Coté was chosen to general acclaim.
But oh the usual suspects are unhappy! The process! The process! The routinely invoked scare word ’secret’ was invoked again. Law professors squawked. Editorial boards harrumphed. How, we are asked, can we have confidence in the Supreme Court of Canada without an ‘open and transparent process’ for appointments?
What evidence is there that we lack confidence in the Court? Its judgments, whether popular or unpopular or just puzzling, are reverently received and respectfully reviewed. Only those agitating for a new process claim our confidence in the Court needs bolstering.
And just how much confidence should we have in the Court? The Court seems confident enough. Neither its judgments nor its way of expressing itself could be called timid. Perhaps we should do well to reflect that the judges are just humans like the rest of us and no process can assure us that they will be so many Solomons.
What exactly the process agitators want is not clear and they could not agree amongst themselves. The demand for openness and transparency would lead at its extreme to the claim that we should elect the judges. But nobody has argued that in Canada for many years.
A halfway house would be some kind of parliamentary confirmation in pathetic emulation of the American model. Senate confirmation could fairly be claimed to have undermined confidence in Supreme Court of the United States in recent decades. In any event, parliamentary confirmation in Canada would require a constitutional amendment and we can’t go there.
The agitators seemed to enjoy the process of the the Supreme Court Of Canada Selection Panel and the appearance of the appointee before a parliamentary committee. But the Selection Panel was either of little importance or unconstitutional, shifting at least some of the power of appointment from the Governor General, with whom it lies under the Constitution, to an ad hoc group of MPs who have no role under the Constitution. The Supreme Court showed in the Senate Reference that it would not accept dodges that would practically change the Constitution without express amendment.
The committee appearance was a complete sham, a pretence of openness when the appointment was already a done deal. Nobody knew what the MPs were supposed to be doing in questioning the incoming judge and they had to be instructed like school children on how to behave themselves.
For all the talk of openness and transparency much of the impetus behind the process agitation seems to be resentment that the Prime Minister gets to appoint the judges. In much of Europe, and now even in the United Kingdom, judges are chosen by august bodies with very little openness and transparency. Most people have no idea how judges are chosen. The result is often that judges choose the judges, with an assist from law professors, something that agitating law professors can warm to.
Under such as system no one is responsible for who become judges. In Canada it is still clear. The government is responsible. If you don’t like their choices you can turf it out.
For the most part even the agitators have not objected to Stephen Harper’s appointments, have even welcomed them, while continuing to witter.
Diehards still hallucinate a Harper Court while his appointees hand him what are reported as one defeat after another.
Coté will be Harper’s last appointment before the next election. But after seven Harper Supreme Court appointments the last reason you could have for not wanting another Harper government is fear of a Harper Court.
The general cry that we should all have our say on who gets to sit on the Supreme Court drew out a few who objected that Coté had litigated cases vigorously in accordance with her instructions.
The half baked process started by Paul Martin and fitfully continued by Stephen Harper may have made some difference. But only by discouraging one or two good judges from serving.
It has done no good and nothing better has been proposed.
We must hope that the Coté will set a precedent for a return to normalcy. We cannot hope that the agitators will dry up.
I have myself very qualified confidence in the Supreme Court of Canada. But I see no solution in better appointments however made. The way to a solution lies in understanding what judges should do and what they are doing, in sorting out the law schools and turning away from our obsession with the politicised American courts and the process by which judges are appointed.
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Saturday, December 13, 2014
Monday, June 30, 2014
Yet more on the Nadon appointment, the story that will not quite die
I had not thought that I should be posting again on the Nadon appointment. But the story seems not to die. It only grows. And grows more complicated.
When I first wrote this post it was about an allegedly inappropriate attempted or contemplated call from Chief Justice Beverley McLachlin to Prime Minister Stephen Harper and its rights or wrongs and the rights or wrongs of the revelation of the call and its implied criticism of McLachlin.
Since then the confidential list of six prospects considered by the Supreme Court of Canada Appointments Selection Panel of MPs has been revealed, the Government of Quebec has been consulted, Clement Gascon has been appointed to general satisfaction, without the involvement of the Panel and without a hearing before a Commons committee, but with continued grumbling about the 'process,' and one of the prospects has been appointed to the Quebec Court of Appeal, prompting speculation that he is being readied to replace Louis Lebel when he retires from the Supreme Court at the end of November, and there is a further court challenge of that appointment by Rocco Galati, who started the challenge to Nadon’s appointment.
As no more has been reported or said in the last week, I take this opportunity to update and extend my posting. Fearful that as I click on ‘update’ the story will be revived by some further stupidity.
It now appears that the Chief Justice's call was contemplated or attempted early in the summer of last year and that she wanted to flag the issue of the eligibility of Federal Court judges. Critics of Harper’s initiating the spat with McLachlin acknowledge that she may have made a ‘minor error’ in contemplating contacting the Prime Minister. Her own office said that the issue was “well-known within judicial and legal circles.” She had had an opportunity to raise it with the Panel. And presumably raised it with Justice Minister Peter MacKay. Indeed the government was well aware of it before Nadon was chosen and an opinion that he was eligible was obtained from the most eminent and respectable authorities.
The spat became an occasion to expatiate on Harper’s unpleasant character and that of his government. And its political ineptitude. For, despite the success of ‘Harper’s Team,’ they have been playing the game very poorly lately, whatever their merits as a government. But allowing that starting the spat with McLachlin was politically foolish and morally shabby, some of the commentary has been foolish and unsound.
Naturally, a law professor leapt to McLachlin's defense lavishing praise on her and accusing the government of endangering
'one of the most important aspects of Canadian constitutional democracy, the relationship of respect and credibility between the judicial and executive arms of our constitutional democracy.'
Professor Errol Mendes seemed to know no more on May 2 about what actually happened than the rest of us, but he was sure McLachlin was
‘one of the most distinguished jurists in Canadian history with a global reputation for effectively presiding over some of the most challenging legal and constitutional issues facing the country’
and the government dangerous. McLachlin is a judge distinguished only by her long tenure and eminent position, earning her diplomatic plaudits from other similarly placed judges, and the government is not dangerous, but inept.
The rule he seemed to suggest is that the courts must never be criticised, except in law journals, written and read only by law professors, while the courts are free not only to find against the government but to rebuke it while doing so.
A posse of bar association presidents pronounced that
‘The judicial branch is one of the three independent components of Canada's constitutional democracy, the other two being the legislative and the executive branches. Our system can operate effectively only if each component is respectful and courteous in its relations with the others. The courtesy and respect that these relationships require are particularly important for the judicial branch because it must ultimately judge the constitutionality of the conduct of the other two branches and, yet, at the same time, must on a day-to-day administrative level have dialogue with them.’
Skipping over the rather too pat theory of the three branches of government, usually attributed to Montesquieu, they seem not to have noticed the practically daily rude dissing of the executive by the legislature in the House of Commons, and they insinuate that the ‘judicial branch’ must be above criticism and, well, supreme.
All 23 deans of Canada’s law schools jumped on the bandwagon to condemn Harper saying
'There are very few issues on which all members of the legal community spontaneously agree,…The unanimous condemnation of the government's statements regarding Chief Justice McLachlin reflects our shared sentiment that this is an unfortunate and unprecedented attack on one of the most important institutions of Canada's constitutional democracy.'
Well, I still have my LL.B. from York University, but I don’t agree, either spontaneously or on reflection.
In the good old days when the courts were not ‘supreme,’ one could comment on their decisions critically, suggesting better arguments they should have accepted, without it becoming heated or political. Though the left often became heated and political about the courts without anyone holding it against them.
But since 1982, with the courts regularly deciding major political issues, the government’s wins and losses in the courts have become a political issue. If the Harper government has been too free in impugning the integrity of the courts when they have thwarted them, its opponents have shown no restraint in invoking the judgments of the courts as comminations. If Tories are 'incensed' with the Court, it is because politicians and the media persist in seeing the Court’s decisions as ‘rebukes’ and ‘defeats’ for the government. If they would cool down, so would the Tories.
Thomas Mulcair practically waved the Nadon judgment at Harper and 'accused the federal government of failing to respect Quebec's constitutional rights by appointing Nadon.'
Peter MacKay
'told the House of Commons on Monday [May 5] that, “prior to the ruling” of the top court, there was nothing in the act that “prohibited the appointment of a Supreme Court judge who had come through the Federal Court.”
“That is not in the Supreme Court Act,” MacKay asserted.
He reiterated that two former Supreme Court justices and legal experts consulted by the government advised that Nadon was eligible for appointment to the top court.'
All of which is true, though now immaterial. As Mulcair said, he was ‘trying to replead his case.’ But Mulcair was maintaining there had been no case to plead, that the government had been trying to flout the law, which was patently untrue.
Mulcair could quite properly have urged the government to ‘suck it up’ and come up with another appointment, but with Justin Trudeau and much of the media, he cited it as a rebuke of the government. A characterisation encouraged by the Court’s way of expressing itself. The judges are well aware of the impact their judgments will have. So they should know that they should be careful in expressing themselves. Not hyping their assumed role of guardians of the constitution and all that is right and good and simply answering in measured language the questions they are asked.
It is a theme of the critics of Harper that while he has ‘smeared’ the Chief Justice, judges are from their position unable to reply. McLachlin has not hesitated to issue a series of replies to the ‘smear,’ but more importantly, the Court is presented as ‘rebuking’ the government and the great and the good insist the government should not reply.
All this is put in the context of what is described as ‘The government [losing] five major cases at the Supreme Court in the past six weeks, with only one voice of support from the court's eight sitting members, just once.’ This rather overstates things. Three of the five cases, the ones involving the Truth in Sentencing Act, were really just one case. And the Court did not strike down the government’s legislation. It simply gave it a plausible interpretation that fell short of the government’s somewhat hyperbolic presentation of the act.
The others were the Nadon appointment and the Senate Reference. It is hard to believe that Harper is much upset by the Court’s dismissal of his Senate schemes or that it constitutes a major defeat of his cherished hopes. He only put forward his schemes in deference to Reform Party pieties and in a play to the popular loathing of the Senate. He tried but, having asked the Supreme Court for its opinion, he can now say there is nothing he can do. Justin’s Trudeau’s stupidities are not an option.
The brouhaha produced the customary reaction that something must be done about the ‘secretive’ process of Supreme Court of Canada appointments. Thanks to The Globe it is no longer secretive. Stephane Dion complained when the story of McLachlin’s contemplated call broke that it must have been Tory MPs who leaked the story of her call, breaching the confidentiality of the process. Now we are asked to accept something like an election contest with candidates vying for the endorsement of The Globe, The Star and the CBC.
In the particular conjuncture Harper decided to turn to the government of Quebec. As The Globe in a brief moment of lucidity points out this cannot set a precedent. Ottawa appoints judges. It’s in the constitution. After the Senate Reference it must be clear that nothing can absolve Ottawa of the responsibility. Whatever the momentary political benefits of consulting and practically handing it over to Quebec, it can’t work.
The readiness with which Gascon’s appointment was accepted, without the ‘process’ of a Selection Panel of MPs and a Commons committee hearing, exposes it as the folly that it is.
And what do those who complain of the ‘secretive’ process actually want? That every suggested name, every indication of willingness to serve, every comment on the merits or possible flaws of every prospect should be published in real time and argued over in the media and Parliament? Many good judges would not be willing to serve under such a ‘process.’
That would be ‘politicising’ the Court, what Harper is foolishly accused of doing.
Even the Liberal justice critic Sean Casey had the decency to say "To suggest [Nadon] was brought forward because he has the same philosophy as the government does him a disservice,…”
The one issue raised about Gascon’s appointment was that in losing Morris Fish, the Supreme Court was losing criminal law expertise and as a commercial lawyer Gascon could not make it up. But this highlights the absurdity of the Nadon controversy and the Court’s judgment. As a criminal lawyer Fish was likely less up to speed with Quebec Civil Law than Nadon. And though bilingual he is not a Francophone. Nadon’s appointment in Fish’s stead would have strengthened the Franchophone/Quebec/Civil Law element in the Court.
When I first wrote this post it was about an allegedly inappropriate attempted or contemplated call from Chief Justice Beverley McLachlin to Prime Minister Stephen Harper and its rights or wrongs and the rights or wrongs of the revelation of the call and its implied criticism of McLachlin.
Since then the confidential list of six prospects considered by the Supreme Court of Canada Appointments Selection Panel of MPs has been revealed, the Government of Quebec has been consulted, Clement Gascon has been appointed to general satisfaction, without the involvement of the Panel and without a hearing before a Commons committee, but with continued grumbling about the 'process,' and one of the prospects has been appointed to the Quebec Court of Appeal, prompting speculation that he is being readied to replace Louis Lebel when he retires from the Supreme Court at the end of November, and there is a further court challenge of that appointment by Rocco Galati, who started the challenge to Nadon’s appointment.
As no more has been reported or said in the last week, I take this opportunity to update and extend my posting. Fearful that as I click on ‘update’ the story will be revived by some further stupidity.
It now appears that the Chief Justice's call was contemplated or attempted early in the summer of last year and that she wanted to flag the issue of the eligibility of Federal Court judges. Critics of Harper’s initiating the spat with McLachlin acknowledge that she may have made a ‘minor error’ in contemplating contacting the Prime Minister. Her own office said that the issue was “well-known within judicial and legal circles.” She had had an opportunity to raise it with the Panel. And presumably raised it with Justice Minister Peter MacKay. Indeed the government was well aware of it before Nadon was chosen and an opinion that he was eligible was obtained from the most eminent and respectable authorities.
The spat became an occasion to expatiate on Harper’s unpleasant character and that of his government. And its political ineptitude. For, despite the success of ‘Harper’s Team,’ they have been playing the game very poorly lately, whatever their merits as a government. But allowing that starting the spat with McLachlin was politically foolish and morally shabby, some of the commentary has been foolish and unsound.
Naturally, a law professor leapt to McLachlin's defense lavishing praise on her and accusing the government of endangering
'one of the most important aspects of Canadian constitutional democracy, the relationship of respect and credibility between the judicial and executive arms of our constitutional democracy.'
Professor Errol Mendes seemed to know no more on May 2 about what actually happened than the rest of us, but he was sure McLachlin was
‘one of the most distinguished jurists in Canadian history with a global reputation for effectively presiding over some of the most challenging legal and constitutional issues facing the country’
and the government dangerous. McLachlin is a judge distinguished only by her long tenure and eminent position, earning her diplomatic plaudits from other similarly placed judges, and the government is not dangerous, but inept.
The rule he seemed to suggest is that the courts must never be criticised, except in law journals, written and read only by law professors, while the courts are free not only to find against the government but to rebuke it while doing so.
A posse of bar association presidents pronounced that
‘The judicial branch is one of the three independent components of Canada's constitutional democracy, the other two being the legislative and the executive branches. Our system can operate effectively only if each component is respectful and courteous in its relations with the others. The courtesy and respect that these relationships require are particularly important for the judicial branch because it must ultimately judge the constitutionality of the conduct of the other two branches and, yet, at the same time, must on a day-to-day administrative level have dialogue with them.’
Skipping over the rather too pat theory of the three branches of government, usually attributed to Montesquieu, they seem not to have noticed the practically daily rude dissing of the executive by the legislature in the House of Commons, and they insinuate that the ‘judicial branch’ must be above criticism and, well, supreme.
All 23 deans of Canada’s law schools jumped on the bandwagon to condemn Harper saying
'There are very few issues on which all members of the legal community spontaneously agree,…The unanimous condemnation of the government's statements regarding Chief Justice McLachlin reflects our shared sentiment that this is an unfortunate and unprecedented attack on one of the most important institutions of Canada's constitutional democracy.'
Well, I still have my LL.B. from York University, but I don’t agree, either spontaneously or on reflection.
In the good old days when the courts were not ‘supreme,’ one could comment on their decisions critically, suggesting better arguments they should have accepted, without it becoming heated or political. Though the left often became heated and political about the courts without anyone holding it against them.
But since 1982, with the courts regularly deciding major political issues, the government’s wins and losses in the courts have become a political issue. If the Harper government has been too free in impugning the integrity of the courts when they have thwarted them, its opponents have shown no restraint in invoking the judgments of the courts as comminations. If Tories are 'incensed' with the Court, it is because politicians and the media persist in seeing the Court’s decisions as ‘rebukes’ and ‘defeats’ for the government. If they would cool down, so would the Tories.
Thomas Mulcair practically waved the Nadon judgment at Harper and 'accused the federal government of failing to respect Quebec's constitutional rights by appointing Nadon.'
Peter MacKay
'told the House of Commons on Monday [May 5] that, “prior to the ruling” of the top court, there was nothing in the act that “prohibited the appointment of a Supreme Court judge who had come through the Federal Court.”
“That is not in the Supreme Court Act,” MacKay asserted.
He reiterated that two former Supreme Court justices and legal experts consulted by the government advised that Nadon was eligible for appointment to the top court.'
All of which is true, though now immaterial. As Mulcair said, he was ‘trying to replead his case.’ But Mulcair was maintaining there had been no case to plead, that the government had been trying to flout the law, which was patently untrue.
Mulcair could quite properly have urged the government to ‘suck it up’ and come up with another appointment, but with Justin Trudeau and much of the media, he cited it as a rebuke of the government. A characterisation encouraged by the Court’s way of expressing itself. The judges are well aware of the impact their judgments will have. So they should know that they should be careful in expressing themselves. Not hyping their assumed role of guardians of the constitution and all that is right and good and simply answering in measured language the questions they are asked.
It is a theme of the critics of Harper that while he has ‘smeared’ the Chief Justice, judges are from their position unable to reply. McLachlin has not hesitated to issue a series of replies to the ‘smear,’ but more importantly, the Court is presented as ‘rebuking’ the government and the great and the good insist the government should not reply.
All this is put in the context of what is described as ‘The government [losing] five major cases at the Supreme Court in the past six weeks, with only one voice of support from the court's eight sitting members, just once.’ This rather overstates things. Three of the five cases, the ones involving the Truth in Sentencing Act, were really just one case. And the Court did not strike down the government’s legislation. It simply gave it a plausible interpretation that fell short of the government’s somewhat hyperbolic presentation of the act.
The others were the Nadon appointment and the Senate Reference. It is hard to believe that Harper is much upset by the Court’s dismissal of his Senate schemes or that it constitutes a major defeat of his cherished hopes. He only put forward his schemes in deference to Reform Party pieties and in a play to the popular loathing of the Senate. He tried but, having asked the Supreme Court for its opinion, he can now say there is nothing he can do. Justin’s Trudeau’s stupidities are not an option.
The brouhaha produced the customary reaction that something must be done about the ‘secretive’ process of Supreme Court of Canada appointments. Thanks to The Globe it is no longer secretive. Stephane Dion complained when the story of McLachlin’s contemplated call broke that it must have been Tory MPs who leaked the story of her call, breaching the confidentiality of the process. Now we are asked to accept something like an election contest with candidates vying for the endorsement of The Globe, The Star and the CBC.
In the particular conjuncture Harper decided to turn to the government of Quebec. As The Globe in a brief moment of lucidity points out this cannot set a precedent. Ottawa appoints judges. It’s in the constitution. After the Senate Reference it must be clear that nothing can absolve Ottawa of the responsibility. Whatever the momentary political benefits of consulting and practically handing it over to Quebec, it can’t work.
The readiness with which Gascon’s appointment was accepted, without the ‘process’ of a Selection Panel of MPs and a Commons committee hearing, exposes it as the folly that it is.
And what do those who complain of the ‘secretive’ process actually want? That every suggested name, every indication of willingness to serve, every comment on the merits or possible flaws of every prospect should be published in real time and argued over in the media and Parliament? Many good judges would not be willing to serve under such a ‘process.’
That would be ‘politicising’ the Court, what Harper is foolishly accused of doing.
Even the Liberal justice critic Sean Casey had the decency to say "To suggest [Nadon] was brought forward because he has the same philosophy as the government does him a disservice,…”
The one issue raised about Gascon’s appointment was that in losing Morris Fish, the Supreme Court was losing criminal law expertise and as a commercial lawyer Gascon could not make it up. But this highlights the absurdity of the Nadon controversy and the Court’s judgment. As a criminal lawyer Fish was likely less up to speed with Quebec Civil Law than Nadon. And though bilingual he is not a Francophone. Nadon’s appointment in Fish’s stead would have strengthened the Franchophone/Quebec/Civil Law element in the Court.
Tuesday, April 15, 2014
Last thoughts on Marc Nadon and the Myth of the Harper Court
Abstracting from the technical issue, discussed below, what are we to make of Stephen Harper’s choice of Marc Nadon for the Supreme Court of Canada?
Quite apart from the technical issue, commentary judged him undistinguished, only chosen because Harper liked his dissent in a case concerning Omar Khadr. Harper wanted to plant a pliant judge, deferential to the government, on the Court was the theory. In doing so he was ‘politicising’ the Court.
Nadon was the 6th judge Harper had ‘nominated’ to the Court, as we now say in our Americanised understanding of these things. US presidents nominate judges. Their appointment must be confirmed by the Senate. In Canada judges are simply appointed by the Governor General on the advice of the government. But, in the case of Supreme Court of Canada appointments, this has become confused by a ‘process’ that has emerged in clumsy emulation of the Americans. As followed by Harper, this consists of a Supreme Court Appointments Selection Panel of MPs going through a long list of prospects and coming up with an unranked short list of three from which the Prime Minister makes his choice.
Commentary has also followed the American example, looking for the politics in the choices, as there undoubtedly is in Obama’s. In the States most judges can be labelled progressives or conservatives, likely to be chosen by Democrat or Republican presidents respectively. But Canada is not the States. If Harper wanted to stack the Court with conservatives, he wouldn’t know how to do it. And, on the record, he hasn’t even tried.
Every one of Harper’s choices had been appointed to a lower court by a Liberal government.
And what have they done for him? Three of his appointments figured in the majority that turned down Nadon. Two in the unanimous court that turned down the national securities commission. Four in the unanimous Court that ‘dealt another blow’ to him in the recent Truth in Sentencing Act judgment, the reasons written by Madam Justice Karakatsanis, the previous choice spotlighted by Harper Court theorists. Five in the unanimous Court that handed him the political embarrassment of the prostitution case.
As for the ‘process,’ his last four choices have passed through the peculiar all party Selection Panel, unknown to law. The Globe’s Jeffrey Simpson complains that the Selection Panel had little time and only got to read a selection of judgments by the judges under consideration. What would he have them do? Constitute themselves as a head hunting firm and beat the bushes for prospects, take applications, seek references, conduct interviews? Appointing people to offices is an executive function. In the US the Senate doesn’t choose judges. The President does. The Senate only confirms his choices.
If a group of MPs is capable of expressing any intelligent preference, which is very much to be doubted, they can do it on the basis of some background material and reviewing judgments.
Who is ‘politicising’ the Court? It is the commentators who imagine Harper’s scheme to make a Harper Court who are politicising the Court. Lawyers should be appointed judges who understand the law, can take in and assess the arguments made before them, come to a decision and explain it in cogent reasons. It is the commentators who would add to these qualifications, or substitute for them, that a good judge should see things at The Globe, The Star and the CBC see them. Should use their seats on the bench to advance a liberal consensus and stymie conservatives. They want a political bench, as long as its politics is correct.
They needn’t worry. Judges come from the comfortable, conventional bourgeoisie, listen to the CBC, take The Globe, if not The Star, and are in thrall to the progressive ideology of the law schools.
So far as Nadon is concerned, perhaps Harper was aware of Nadon’s dissent in the Federal Court of Appeal in Khadr and took a shine to him because of it. For the commentators, to have made a decision in favour of the government, and worse, against Khadr, must mark Nadon as a brutish conservative and a bad judge. In fact Nadon’s dissent is well reasoned, the work of a good judge. And, when the case went on appeal to the Supreme Court of Canada, the unanimous Court, including only two Harper appointees, implicitly agreed with him in substituting a declaration that “that through the conduct of Canadian officials in the course of interrogations in 2003-2004,…, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter,….” for the Federal Court of Appeal’s order “that the government request the United States to return him to Canada.”
There was no “court order repatriating Canadian child terrorist Omar Khadr” as the press had it. The courts could not issue an order repatriating Khadr. That was up to the Americans. Nadon did not say he should not be repatriated. He said the government should not be ordered to ask that he should be. And the Supreme Court of Canada, including seven judges appointed by Liberal governments, agreed. It was under a Liberal government that the Court held Khadr’s rights had been violated. And, in the event, Khadr has been ‘repatriated,’ at Canada’s request, and is in a comfy Canadian gaol.
There is no reason to think that Nadon, had he been permitted to sit on the Court, would have served out his term finding for Harper, or his successors, whoever they may be. He wrote for the Federal Court of Appeal in holding that the government had violated the rights of the blind.
I have a problem with the Supreme Court of Canada. But I see no solution in searching for a school of ‘conservative’ judges and packing the Court with them. The way to a solution lies in understanding what judges should do and what they are doing, in sorting out the law schools and turning away from our obsession with the politicised American courts and the political process by which judges are appointed.
Quite apart from the technical issue, commentary judged him undistinguished, only chosen because Harper liked his dissent in a case concerning Omar Khadr. Harper wanted to plant a pliant judge, deferential to the government, on the Court was the theory. In doing so he was ‘politicising’ the Court.
Nadon was the 6th judge Harper had ‘nominated’ to the Court, as we now say in our Americanised understanding of these things. US presidents nominate judges. Their appointment must be confirmed by the Senate. In Canada judges are simply appointed by the Governor General on the advice of the government. But, in the case of Supreme Court of Canada appointments, this has become confused by a ‘process’ that has emerged in clumsy emulation of the Americans. As followed by Harper, this consists of a Supreme Court Appointments Selection Panel of MPs going through a long list of prospects and coming up with an unranked short list of three from which the Prime Minister makes his choice.
Commentary has also followed the American example, looking for the politics in the choices, as there undoubtedly is in Obama’s. In the States most judges can be labelled progressives or conservatives, likely to be chosen by Democrat or Republican presidents respectively. But Canada is not the States. If Harper wanted to stack the Court with conservatives, he wouldn’t know how to do it. And, on the record, he hasn’t even tried.
Every one of Harper’s choices had been appointed to a lower court by a Liberal government.
And what have they done for him? Three of his appointments figured in the majority that turned down Nadon. Two in the unanimous court that turned down the national securities commission. Four in the unanimous Court that ‘dealt another blow’ to him in the recent Truth in Sentencing Act judgment, the reasons written by Madam Justice Karakatsanis, the previous choice spotlighted by Harper Court theorists. Five in the unanimous Court that handed him the political embarrassment of the prostitution case.
As for the ‘process,’ his last four choices have passed through the peculiar all party Selection Panel, unknown to law. The Globe’s Jeffrey Simpson complains that the Selection Panel had little time and only got to read a selection of judgments by the judges under consideration. What would he have them do? Constitute themselves as a head hunting firm and beat the bushes for prospects, take applications, seek references, conduct interviews? Appointing people to offices is an executive function. In the US the Senate doesn’t choose judges. The President does. The Senate only confirms his choices.
If a group of MPs is capable of expressing any intelligent preference, which is very much to be doubted, they can do it on the basis of some background material and reviewing judgments.
Who is ‘politicising’ the Court? It is the commentators who imagine Harper’s scheme to make a Harper Court who are politicising the Court. Lawyers should be appointed judges who understand the law, can take in and assess the arguments made before them, come to a decision and explain it in cogent reasons. It is the commentators who would add to these qualifications, or substitute for them, that a good judge should see things at The Globe, The Star and the CBC see them. Should use their seats on the bench to advance a liberal consensus and stymie conservatives. They want a political bench, as long as its politics is correct.
They needn’t worry. Judges come from the comfortable, conventional bourgeoisie, listen to the CBC, take The Globe, if not The Star, and are in thrall to the progressive ideology of the law schools.
So far as Nadon is concerned, perhaps Harper was aware of Nadon’s dissent in the Federal Court of Appeal in Khadr and took a shine to him because of it. For the commentators, to have made a decision in favour of the government, and worse, against Khadr, must mark Nadon as a brutish conservative and a bad judge. In fact Nadon’s dissent is well reasoned, the work of a good judge. And, when the case went on appeal to the Supreme Court of Canada, the unanimous Court, including only two Harper appointees, implicitly agreed with him in substituting a declaration that “that through the conduct of Canadian officials in the course of interrogations in 2003-2004,…, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter,….” for the Federal Court of Appeal’s order “that the government request the United States to return him to Canada.”
There was no “court order repatriating Canadian child terrorist Omar Khadr” as the press had it. The courts could not issue an order repatriating Khadr. That was up to the Americans. Nadon did not say he should not be repatriated. He said the government should not be ordered to ask that he should be. And the Supreme Court of Canada, including seven judges appointed by Liberal governments, agreed. It was under a Liberal government that the Court held Khadr’s rights had been violated. And, in the event, Khadr has been ‘repatriated,’ at Canada’s request, and is in a comfy Canadian gaol.
There is no reason to think that Nadon, had he been permitted to sit on the Court, would have served out his term finding for Harper, or his successors, whoever they may be. He wrote for the Federal Court of Appeal in holding that the government had violated the rights of the blind.
I have a problem with the Supreme Court of Canada. But I see no solution in searching for a school of ‘conservative’ judges and packing the Court with them. The way to a solution lies in understanding what judges should do and what they are doing, in sorting out the law schools and turning away from our obsession with the politicised American courts and the political process by which judges are appointed.
Wednesday, April 9, 2014
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 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.
Thursday, March 27, 2014
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:
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:
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:
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:
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?
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."
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”’
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’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.
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?
Thursday, January 2, 2014
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.
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.
Tuesday, December 17, 2013
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?
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?
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