109
Political Accountability in Appointments to the Supreme Court of Canada
John D Whyte*
There are good reasons to consider a regime for would at least be a pre-emptive check against the parliamentary review1 of persons who have been appointment of the facile, the glib, the dogmatic, proposed for appointment to the Supreme Court the egotistical, and those insensible and insensi- of Canada.2 Although the Supreme Court is the tive to the social realities of living ordinary lives final court of appeal for all legal disputes and, in this nation. therefore, has an important role in the clarifica- tion and development of Canadian private law There are many issues related to the method and administrative law, the primary ground for and formal structure of a hearing process. There urging parliamentary review3 of persons named are also legitimate concerns about the damage for appointment is the importance of the Court’s that might be done to the Supreme Court or the constitutional decisions (and its opinions in con- judicial branch generally by hearings, chiefly the stitutional references) to Canada’s political envi- risk of political partisanship in the review pro- ronment.4 The Supreme Court of Canada serves cess, which might be perpetuated through politi- as Canada’s “constitutional court” and the effec- cally partisan conflict among the members of the tive power of appointment to it rests with the Court. Neither the issues of implementation nor Prime Minister.5 This may be too significant a strategies for reducing the risks of injuring the power to leave to the head of the executive branch Supreme Court’s reputation or eroding confi- to exercise unilaterally; it is a power insufficiently dence in the legal process through coarse politi- circumscribed in light of the national social and cization of a hearing process are addressed in political influence of the Supreme Court.6 this paper, although they are hardly insignificant concerns. The matters discussed in this article As a remedy to outsized power being given are, first, the case for instituting legislative hear- to the Prime Minister, there should be hear- ings and, second, assessing the value of hearings ings held before a parliamentary committee at in terms in light of the types of questions that can which committee members listen to the person properly be explored in hearings before a parlia- who has been proposed for appointment to the mentary committee. Court speak of his or her record of achievement, his or her views of judicial decision-making, and his or her ideas about the national purposes that Seeking political accountability in are advanced by the Constitution, and subse- Supreme Court appointments quently put to that person questions about such things as professional and life experiences, moral The impetus for adding legislative hearings to bearings, ideas on the adjudicative process and the current statutory arrangement for making basic ideas about the good state. Such hearings appointments to the Supreme Court is a conse-
Constitutional Forum constitutionnel 109 110
quence of the adoption of the Canadian Charter sion of governmental action is a far older legal of Rights and Freedoms into Canada’s Consti- development than its presence in the Canadian tution in 1982.7 While the structural relation- system of constitutional government or, even, in ships between courts and political branches of liberal democracy.11 A pivotal point was adding government were not altered or, from a formal the practice of controlling legislatures through perspective, expanded by the introduction of application of the legal limits set out in a written the Charter into the Canadian Constitution, the Constitution to the dominant electoral concep- popular grasp of the nature of this relationship tion of democratic theory. Commonly, credit for has grown considerably since the inclusion of this highly significant structural development is human and political rights in the Constitution given to Chief Justice John Marshall of the United and, as a consequence, the Court’s engagement States Supreme Court.12 Within Canada, it could with legal issues that touch on moral sensibilities just as well be given to Chief Justice Ritchie of and societal values. This increase in the scope of New Brunswick in The Queen v Chandler13 for the Court’s supervision of legislative policy and his recognition of the necessity of a Canadian executive administration has produced a popu- practice of judicial review of legislation — not lar understanding of the enhanced capacity of based so much on the imperial arrangement of the Court to interfere with choices that have testing for the validity of Canadian legislation been made through political processes.8 Aware- under the Colonial Laws Validity Act, 186514 but, ness of the Court’s role has been increased by the rather, resting judicial determinations of consis- frequent claim that the Charter’s impact on exer- tency with the Constitution on the more deeply cises of political powers is a threat to the demo- rooted ideas of the rule of law and ultra vires.15 cratic foundation of Canadian political legiti- macy because it has granted courts new bases for Because constitutional review on the politi- nullifying the laws and policies of democratically cal capacity of Canadian legislatures and gov- elected legislators and the actions of the demo- ernmental agencies has been controversial from cratically chosen executive branch. The theme time to time, it has placed the role of courts — of the judicialization of political discretion has especially final courts of appeal — under public become a leitmotif of Canadian constitutional assessment, not just through critical analyses scholarship since 19829 and has served to under- by constitutional scholars,16 but occasionally score public awareness of the significance of the through reactions of elected political leaders. Court. In addition, there is frequent evidence From judicial reading down of the expected (at that courts do strike down, or modify, legisla- least, in some political quarters) large scope of tively created programs of wide social interest. the “peace, order and good government” and All of this has served to underscore the political “trade and commerce” clauses, to judges plac- importance of courts’ constitutional decisions.10 ing limits on the power of legislatures to create new administrative structures, to judicial inter- As significant as the adoption of theChar - pretations that limit provincial regulatory and ter of Rights and Freedoms has been in bringing taxation powers (most visibly with respect to public attention to the Supreme Court and its the regulation of provincial natural resources17), influence on the policies and actions of Cana- judicial decisions have engendered political dian governments, the political effect of, if not notice. Canada’s constitutional jurisprudence has popular sensitivity to, judicial review of govern- been a continuous element of Canadian demo- mental action has been a factor of Canadian gov- cratic governance, although not always a widely ernance over the century and a third of Canada’s conspicuous one. constitutional regime. There is a long record of legal accountability for Canada’s democratically It seems clear that those responsible for the elected governments based on the rule of law 1867 Constitution did not anticipate the degree — on the limits placed on governmental author- to which judicial supervision of the actions of the ity found in statutes, the Constitution and case political branches would occur. While the rule of law. Furthermore, the idea of judicial supervi- law notion in the period prior to Confederation
110 Special Issue: Volume 25, Number 3, 2016 111
was clear and fully rooted in the legal culture, There are additional incentives for creat- it was likely not anticipated to be a legal prin- ing greater political accountability for Supreme ciple that would forcefully impact governments’ Court appointments. One of these arises from political programs and ambitions.18 The method changes in the practice of politics and the influ- of appointing superior court judges,19 including, ence of political loyalty. The once-confident later, judges of the Supreme Court of Canada, assessment that granting the Cabinet full power would not have been thought to be unduly influ- to appoint persons to the judiciary, including to enced by governmental interests, nor so caught the nation’s final court of appeal, would produce up in political calculation that it would lead good results was possibly a reflection of a gen- either to impairment of the intellectual function eral political understanding of the duty to pre- of legal judgment or to significant distortion of serve the integrity and efficacy of the organs of legal standards in order to serve political inter- government so that the virtues that were, as a ests. In any event, court decisions that dealt with constitutional design, sought for them would be questions of governmental capacity and author- heeded in making appointments. When there is ity were expected to be well-constrained; mid- agreement on the institutional virtues that need nineteenth century views on legal judgment were to be maintained in making political choices, based on confidence in the broad intellectual especially choices bearing on institutional capac- separation between making legal judgments and ity, there is, under the theory of preserving insti- weighing social and political interests or values. tutional integrity, less need for countervailing Although it has long been recognized that law, at checks on the exercise of powers. Under a gen- the point of application, is mostly indeterminate, eral subscription to the conserving conception of its dispositive effect was once more attributed to political power, unilateral executive power over largely determined correct applications of estab- judicial appointments represents a low risk to the lished rules than to fleshing out the normative integrity of the judicial branch. weight of laws’ underlying social purposes, or to the linking of laws’ applications to their moral When political practice becomes less prin- provenance. cipled and less institutionally idealistic and pub- lic confidence in the commitment to exercising However, the marked increase in the effect power to preserve institutional integrity wanes, of the Court’s decisions on politically con- it seems wise to reform political structures to structed social arrangements has been produced provide a check against self-favouring exercises by the introduction of the Charter and it is this of power. If the political imperative becomes increase that leads to the claim that the power a constant search for partisan advantage, and to make appointments to the Supreme Court of commitments to institutional purposes are com- Canada should be re-constructed so that they promised through intensified factionalism, and can be made subject to a process that offers a when this flavour of politics reaches into the more robust degree of political accountability.20 composition of the national supreme court, it is Increased public awareness of the impact of the prudent to make renovations to the exercise of Supreme Court’s constitutional adjudication on constitutional powers so that ethical assump- different social and personal interests has given tions lying behind constitutional arrangements the appointment process broader political vis- might be more readily preserved. ibility and importance. As a matter of conven- tional design in liberal democratic states, the It seems, however, that the initial Cana- exercise of significant political powers — making dian experimentation with parliamentary hear- decisions of "high politics" and structural signifi- ings for persons named for appointment to the cance — should be made subject to checks and Supreme Court21 did not come about due to restraints through a structure of direct account- specific anxiety about questionable appoint- ability, which can be accomplished most effec- ments. It may, however, have been prompted by tively in the form of a coordinated decision pro- an abstract anxiety about parliamentary govern- cess. ment and about the risks of ruthless majoritarian
Constitutional Forum constitutionnel 111 112
rule that that inevitably lurk within its structures. sion-making.22 Of course, any political process Power wielded under the influence of political can lead to the perverse effects of disillusioning dogmatism by a parliamentary majority can be the general population and producing cynicism as destructive of the instruments of government, about claims of virtue that are typically made including the rule of law, as can be any other for political debate. This may be particularly form of illiberalism. true with placing the selection of judges within a regime that can give rise to political contestation. There is a further case for a form of legis- What may emerge from vehement party support lative approval of appointments to a nation’s for, or vehement party opposition to, an appoint- supreme court based on the idea that the courts’ ment is the belief that what is truly at stake for role in ensuring accountability for the decisions those reviewing the nomination is not the intel- of government is an essential element of liberal ligence, skill or integrity of nominated persons, democracy. Acceptance of the need for a court but rather his or her reliability as a representa- role in regulating state action depends on politi- tive of the political views of the political parties cal confidence in the integrity of courts and their in conflict over the appointment. This possibility decision making. If the sole political engagement needs to be resisted, first, through the creation with the formation of a nation’s highest court of a parliamentary norm of non-partisanship in comes from the party with power to appoint performing this review function and, second, judges, then the sense of political confidence in political belief in the democratic value of letting that court will be weaker than it needs to be. In citizens see, through the experience of legislative democracies that, unlike Canada, are struggling hearings, that in interpreting and applying the to adopt government under a constitution, shifts constitution there is an intelligible intellectual in the holding of undiluted power may lead to process of matching governmental decisions to claims of lack of judicial legitimacy when new constitutionally established relationships, com- political leaders come to power. Judges appointed mitments and purposes — that there are consti- to a national supreme court through the partici- tuted principles of statecraft that represent the pation of only those holding political power may national ideals of justice and accommodation be characterized as favouring factional political that, through law, bind governments. interests, and, in extreme circumstances, may not survive the shift in governmental power. While this may seem an unlikely scenario in developed Scope of legislative review: democracies, all evidence suggests that mature constitutional adjudication democracies, too, easily descend to destructive partisanship. If the issues a court is called on to In “Appointment of Thomas A. Cromwell to the resolve grow closer to questions of the permissi- Supreme Court of Canada,”23 Peter Hogg asserted ble scope of political authority and more engaged that: “… the majority of the court’s case load is with social beliefs that have foundational mean- non-constitutional law … . These cases may not ing — or, even, existential meaning — for indi- be as important to the public policy of the coun- viduals and minorities, the prudence of having try as constitutional cases but the parliamen- broader political endorsement of judges and tary committee is aware that the judges have to courts is more evident. Legislative hearings are decide the non-constitutional cases wisely too.”24 a structural adaptation that promotes broader It is correct that constitutional cases do not form political connection to nations’ supreme and a majority of the Supreme Court’s caseload and, constitutional courts. also, that non-constitutional cases need to be decided wisely. Bu, in 2015, for example, one Finally, legislative review of Supreme Court third of the Court’s decisions were in constitu- appointments can produce the political dividend tional cases. This represented the Court’s most of public understanding of both the role of the active area of decision-making. It was the area Court and the distinctive nature of judicial deci- of Court activity that produced virtually all the sion-making, especially of constitutional deci- public attention that was paid to Court decisions.
112 Special Issue: Volume 25, Number 3, 2016 113
Charter decisions give rise to extensive public perceptions of social conditions and to have the discourse and debate over their implications for humility to hold on to perceptions and beliefs Canadian society. It was the Court’s role in medi- tentatively and presumptively only. The process ating between challenged legislative measures, or of legislative committee review of both character their application, and individuals’ and minori- and the intellectual commitment to understand- ties’ Charter claims that captured both political ing and explaining the nature and process of and popular interest in the Court’s work. Over constitutional application should influence gov- the post-Charter period it is clearly constitu- ernments to nominate to the Supreme Court per- tional litigation that has led to broad public sons with large minds capable of discerning and engagement with who is appointed to the Court. describing the processes for applying the statu- tory and constitutional rules of public ordering. A more profound case for legislative hear- ings for persons nominated for appointment is Legal interpretation of constitutions, stat- the opportunity for public discourse over legiti- utes and prior decisions shapes justification for mate sources in constitutional adjudication and judicial determinations. Such justifications are the chance to explain constitutional interpreta- hardly based on the sense that legal texts are tion (and, perhaps, to save it from the unhelp- so self-prescriptive that judicial construction of ful analogy of baseball umpires calling strikes meaning is not necessary. One role for legisla- and balls) . The constitutional text, whether the tive hearings is exploration with the nominated 1867 text or the 1982 text, has, to a consider- person of the types of interpretive strategies that able extent, been constructed around the goals judges adopt. This process can shed light on the of stability and justice — and stability through sources and the nature of judicial conflicts and justice — as well as current ideas of public inter- illuminate what is behind shifts in constitutional est and personal entitlements. A jurisprudential outcomes over time. This exploration of intellec- ideal is that the realization of basic constitutional tual shades in judging can lead to a more sophisti- goals — and the constitution’s specific ideas of cated understanding in legislators and the public justice for individuals and communities — must of how basic ideas about interpretation produce be worked out through contemporary discern- different conceptions of the limits of govern- ment of the nation’s current needs in light of the mental action. To place before the population commitments and ideas of justice that shaped through public legislative hearings the idea that national formation and led to the constitutional legal judgment, and constitutional judgment in text.25 Ideas of constitutional justice should be particular, relies on ideas of the state — ideas that recognized in adjudication as having normative limit the state or compel the state with respect to significance. This normative significance is cap- dealings with individuals and minorities — helps tured by the idea of keeping faith with our past, carry forward the most basic aspiration of demo- not by the replication of it, but through under- cratic political power, which is to enable citizens standing its ideas of justice and seeking to bring to become engaged with the discussions that those ideas into our current conflicts. explore the nation’s idea of doing justice.
Cultivating this understanding entails an A basic claim about judicial adjudication of intellectual process that relies on prudential competing ideas of constitutional meaning is the insight and moral understanding as judges seek idea that courts should be bound by an intellec- out the normative weight of the words of the tual discipline that controls judicial discretion. constitutional text and precedents for specific One version of this discipline in making deci- contexts before them. In addition to a process for sions, particularly decisions interpreting consti- examining such things as the strength of a can- tutional texts, is that judges should seek to fulfil didate’s jurisprudential understanding and his or the discernible general purposes that lie behind her capacity to understand the moral climate, a constitutional provisions; courts should apply hearing can bring out the ability of a candidate these legal texts in ways that advance the pur- for appointment ability to recognize his or her poses that animated their formation. This pro-
Constitutional Forum constitutionnel 113 114
cess can call for constitutional theorizing that realized at the point of judicial control of govern- converts simple grants of governmental power to ment regulation resort will need to be made to broad ideas about democratic power and legiti- the current moral climate. The ideals of liberty, macy. An example of this process can be found due process, just treatment and equality must, of in the decision in Edwards v Attorney General of course, fit with the needs for social solidarity and Canada26 (the Persons case) that women can be common morality, as well as with traditions and appointed to the Senate. That decision was based principles of public ordering. What is clear is that not on finding the one true and essential seman- this boundary between society’s needs for order tic value of the word “person,”27 but on the basic and social solidarity and the precepts of just and tenet of responsible government that informs fair treatment is always in a state of flux — is our democratic system — that electors are politi- always ripe for re-negotiation. What is essential cal governors and that changing who it is that to the idea of constitutional law is that setting can be an elector must change who it is that is this boundary is not a majoritarian task. It is to qualified to be a governor or, in the context of be conducted under the constitutional under- responsible government, who it is that can serve standing that in setting the legitimate borders as a legislator. This discovery of underlying pur- of respect for personal integrity, majorities are pose permitted interpretive dynamism to meet suspect and that constitutional precepts about new social realities and sustained the integrity of personal worth and integrity are moral limits to a fundamental constitutional idea without creat- the state’s will — a limit that must be determined ing the sense that the language of the constitu- independently of majoritarian preferences and tion is infinitely malleable. political urges. The constraint of political moral- ity grants to judges the task of assessing limits The view that courts are held in check by with respect to regulation that touches on core their obligation to ascribe to texts only meanings elements of personal liberty and dignity, such as that accord with the principles that the textual who may marry, when state punishment can be provisions support is reflected in a many cases imposed, when people can solicit aid in dying, decided under the Charter. We can take from the and when segregation and discrimination on the text of the Charter that Canadian constitutional bases of race religion or gender can be resisted. principles are that the state must act in recog- The factors of resolution are constitutionally pre- nition of a universal entitlement to be treated scribed but the judgment is rooted in context. with equal dignity, must guarantee fair and just treatment for all, and must preserve individuals’ This description of constitutional decision- liberty to pursue personal hallmarks of purpose making relies on a dynamic conception of just and identity. These principles are laudable in a treatment ice and, hence, a dynamic sense of the free society, but their points of application are scope of constitutional protections. In a sense often conflicted and controversial. These prin- this idea of constitutional interpretation merely ciples cannot stand on their own terms, as justifi- grants courts the usual privilege of interpreta- cations for specific constitutional applications. It tion, where judges can set the meaning of a text would, however, be rash to say that the principles and give normative weight to the values and that lie behind Canada’s human rights regime (moral) purposes the text suggests. However, this should not serve as decisional guides; broad state idea of how constitutionalism works within lib- principles serve effectively both to extend and to eral democracy is not universally held. Some feel constrain judges’ applications of legal texts. that the constitutional texts dealing with human rights are so indeterminate in application that In discovering constitutional meaning, there needs to be some rule that constrains judi- broad constitutional ideas such as the prohibi- cial interpretation. Otherwise, judges are given tion of cruel and unusual punishment, or prin- too much power to shape the terms of public ciples of fundamental justice or equality before ordering; democratic theory, they say, requires the law, represent unequivocal moral values of a high level of judicial boundedness. The ques- governing. In order for these moral values to be tion is how to get that degree of boundedness.
114 Special Issue: Volume 25, Number 3, 2016 115
One strategy may be to urge a general attitude Court appointment.”30 However, in democratic of judicial deference to the current decisions of elections we ask candidates to speak to their val- governments and legislatures.28 ues and commitments and to identify the ends for which they are seeking to exercise power. We ask A different strategy for creating judicial politicians to relate their political ambition and boundedness is to infer, or calculate, the consti- their political judgment to an idea of the good tutional framers’ fixed intentions with respect to state that they are willing and able to articulate. the text’s application. These are characterized as It seems likely that legislators are able to explore the text’s “original intent” and, it is argued, judges the positive connection between fitness to hold a should be bound to interpretations of the con- state office, such as judge of the Supreme Court 29 stitution that correspond to this original intent. of Canada, and the purposes behind its creation. These several approaches to interpretation are It further seems likely that legislators will under- common themes of constitutional jurisprudence. stand the connection between a power of adju- They are the ideas that shape a nation’s consti- dication that is constitutionally created and the tutional law. Political accountability for Supreme method, attitudes, and commitments appropri- Court appointments ought to include an under- ate for its exercise. Institutional arrangements standing by legislators of the nature of constitu- and the talents and attitudes necessary to have tional adjudication and its competing theories their purposes and virtues realized is a funda- and ought to include an opportunity for them to mental connection, one that legislators under- demand from persons nominated for appoint- stand as well as anyone. ment nominees’ explanations and justifications for their interpretive commitments. A difficult question may be whether a legisla- Conclusion tive hearing process conducted by members of the national Parliament — members who, most Justifications for legislative hearings relating to definitely, are not restricted to legislators who are the suitability of a nominee’s appointment to lawyers — would actually be effective in getting the Supreme Court include: first, guaranteeing at the central questions relating to a nominee’s consideration of actual legal and constitutional capacity to sit on the Supreme Court. Capac- commitments, as opposed to loyalty to political ity for this role should include not only profes- or partisan interests; second, the creation of a sional capacity as a lawyer (that is, to know law, sense of political ownership over the process of to know how to find law, to understand normal preserving constitutional integrity through judi- legal constraints on the interpretation of laws), cial review of executive and legislative action; but also the ability to articulate their understand- and, third, providing public (and, of course, ing of the ethic, purposes and commitments that parliamentary) education about the subtlety of have shaped the Canadian constitutional order, judicial decision-making — its refined elabora- and should shape it. This inquiry should explore tions of current normative meaning from ante- the nominee’s ideas about the political virtues of cedent texts designed to produce sound and just constitutionalism, about the very ethic of consti- ordering. It is true that for these purposes to be tutionalism. These are not simple enquiries. realized hard questions relating to nominees’ jur- isprudential bearings will need to be asked. But Peter Hogg, in responding to the argument law is not that far away from exegesis and inter- that the purposes of a legislative hearing should pretation and the constant construction of insti- include questions of judicial philosophy, wrote: tutional and personal purposes, based on experi- “a parliamentary committee is composed of peo- ence and reflection, that is found everywhere in ple of various backgrounds and interests, many life — in religion, in history, in ethics, in building of them without a sophisticated understanding houses, in protecting the vulnerable, in promot- of constitutional law, and it would not necessarily ing valued ends in commerce and in civil society. occur to them that these questions were a valu- Parliamentarians deserve to be trusted to think able way of assessing credentials for a Supreme deeply, especially when the nature of the respon-
Constitutional Forum constitutionnel 115 116
sibility that judges bear is explained and when 3 Although this paper deals only with parliamentary they come to see the nature of the responsibility review of nominees for appointment to the Supreme they bear. Court, there are other forms of coordinated decision-making with respect to making judicial appointments. One such structure is the creation of a commission that would review the suitability for appointment of persons who apply, or who are proposed, for judicial appointment. Reviews would be based on criteria such as knowledge of Endnotes law and legal process and character and demeanor. The goal of this mechanism is to restrict judicial * Professor Emeritus, Faculty of Law, Queen’s appointments to persons who have been assessed University. This essay is adapted from a paper as suitable and competent for judicial appointment presented to The State of Canada’s Constitutional by a body designed to be non-partisan and expert Democracy, a symposium presented by the Asper regarding the judicial function. Such a mechanism Centre for Constitutional Rights, University of has now been adopted by the Government of Toronto and the Centre for Constitutional Studies, Canada. See, Office of the Prime Minister,ibid. University of Alberta, Toronto, February 26-27, The new process allows any person qualified for 2016. appointment to apply. A seven member Advisory 1 Canada’s uneven experiment with legislative Board will submit to the Prime Minister a shortlist hearings of persons named by the federal of three to five persons from the list of applicants government for appointment to the Supreme who it considers suitable for appointment. The Court from 2006 to 2014 was based on the Prime Minister’s statement on Supreme Court creation of ad hoc committees of the House of appointments states that this is designed to Commons. However, parliamentary review of introduce “an open, transparent and non-partisan nominees need not be performed by members of process that will help ensure the best, most well- the House of Commons exclusively. Conducting qualified people reflective of Canadian society are a review through a committee of the Senate or a named to Canada’s top court”: ibid. joint committee of the Senate and the House of 4 Cf Peter W Hogg, “Appointment of Thomas A Commons may be more effective in establishing a Cromwell to the Supreme Court of Canada” in non-partisan deliberation process independent of Nadia Verrelli, ed, The Democratic Dilemma: government interests. Reforming Canada’s Supreme Court (Montreal 2 This paper was prepared prior to Prime Minister & Kingston: McGill-Queen’s University Press & Trudeau’s announcement of a new process for Institute of Intergovernmental Relations School appointing judges to the Supreme Court of of Policy Studies, 2013) 13. Hogg notes that “it is Canada, beginning with the appointment in worth remembering that the majority of the court’s the Fall of 2016 of a judge to replace Justice case load is non-constitutional law”: ibid at 24. Thomas A. Cromwell who retired on August 30, This statement was made in response to the claim 2016. See Office of the Prime Minister, “Prime advanced in John D Whyte, “The Supreme Court Minister Announces New Supreme Court of from the Outside” (2006) 13 Policy Dialogue 14 Canada Judicial Appointment Process”, (Ottawa: that it would be understandable and appropriate Office of the Prime Minister, 2 August 2016), if legislators reviewing the suitability of a nominee online:
116 Special Issue: Volume 25, Number 3, 2016 117
will be best served if the choice of its judges resides by this Court as one of the fundamental principles solely with the Prime Minister with … assistance of our society.” ibid at 177. from a handful of members of the legal profession”: 13 (1868), 12 NBR 556 (SC). ibid at 897. 14 28 & 29 Vict., c 63, s 2 (UK). 7 Part I of the Constitution Act, 1982, being Schedule 15 See Barry L Strayer, The Canadian Constitution B of Canada Act 1982 (UK), 1982, c 11. and the Courts: The Function and Scope of Judicial 8 See Robert J Sharpe & Kent Roach, The Charter of Review, 2nd ed (Toronto: Butterworths, 1983) at Rights and Freedoms, 4th ed (Toronto: Irwin Law, 20-23 and Gordon Bale, “The New Brunswick 2009). Sharpe and Roach say “[u]nder the Charter, Origin of Canadian Judicial Review” (1991) 40 the questions put to judges involve issues of value UNBLJ 100. and moral choice, which are not only more open- 16 See e.g. Bora Laskin, “‘Peace, Order and Good ended and apparently less constrained by strict Government’ Re-examined” (1947), 25:10 Can Bar legal principles, but also of greater significance Rev 1054. Academic debate over the “correctness” to the average citizen than those relating to of the constitutional interpretations of the federalism”: ibid at 27. Judicial Committee of the Privy Council and the 9 See Patrick Monahan, Politics and the Constitution: Supreme Court of Canada has been consistently The Charter, Federalism and the Supreme Court active. An overview of this discussion is found of Canada (Toronto: Carswell, 1987). Monahan at Peter W Hogg & Wade K Wright, “Canadian states: “[C]onstitutional issues that reach the Federalism, the Privy Council and the Supreme Supreme Court of Canada are fundamentally and Court of Canada: Reflections on the Debate About inescapably political. Constitutional argument asks Canadian Federalism” (2005), 38:2 UBC L Rev the Court to define who we are as individuals and 329. as a people. Such questions cannot be answered 17 See e.g. Canadian Industrial Gas & Oil Ltd v through the application of some specialized or Government of Saskatchewan, [1979] 1 SCR 37, technical brand of expertise. What is demanded 91 DLR (3d) 555; Central Canada Potash Co v are political choices and acts of political will”: ibid Government of Saskatchewan, [1979] 1 SCR 42, 91 at iii. See also Christopher P Manfredi, Judicial DLR (3d) 609. Political reaction to these decisions Power and the Charter: Canada and the Paradox is described in John D Whyte, “A Constitutional of Liberal Constitutionalism (Toronto: Oxford Perspective on Federal-Provincial Sharing of University Press, 2001). Revenues from Natural Resources” in Charles 10 See David Schneiderman, Red, White and Kind of E McLure & Peter Mieszkowski, eds, Fiscal Blue?: The Conservatives and the Americanization Federalism and the Taxation of Natural Resources of Canadian Constitutional Culture (Toronto: (Lexington, Mass: Lexington Books, 1983) 205-13. University of Toronto Press, 2015) 235-236. 18 See Strayer, supra note 15, where Strayer states: Schneiderman writes “While the judiciary has “Though Macdonald did not deal directly with been policing constitutional limits between the question of judicial review … excerpts the federal and provincial governments since [from Parliamentary Debates on the Subject of Confederation, the entrenchment of constitutional Confederation 8th Parl, 3rd sess at 33] suggest that rights has dramatically increased the judicial role he did not consider that any ‘serious conflict of in Canadian public life”: ibid at 236. jurisdiction or authority’ would arise”: ibid at 17. 11 Dr. Bonham’s Case (1610), 8 Co Rep 107a, 77 19 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ER 646 at 652: (“when an Act of Parliament is s 96, reprinted in RSC 1985, Appendix II, No 5. against common right or reason, or repugnant, or Appointments are made by the Governor General impossible to be performed, the common law will (impliedly on the advice of the Cabinet). controul it, and adjudge such Act to be void.” 20 This claim is explored (with skepticism) in 12 Marbury v Madison, 5 US (1 Cranch) 137 (1803). Nadia Verrelli, “Reforming the SCC: Rethinking Marshall CJ stated: “Certainly all those who have Legitimacy and the Appointment Process” in framed written Constitutions contemplate them Verrelli, supra note 4 at 113. as forming the fundamental and paramount law 21 See Schneiderman, supra note 10, ch 5 for a of the nation, and consequently the theory of description of the five instances of parliamentary every such government must be that an act of the hearings of persons named to the Supreme Court. legislature repugnant to the Constitution is void. 22 Thh e House of Commons committee hearings held This theory is essentially attached to a written in respect of five persons named for appointment Constitution, and is consequently to be considered did not lead to engagement with issues of judicial
Constitutional Forum constitutionnel 117 118
philosophy — or with constitutional theory or ideas of self-government change, possibly a less principles — and, therefore, did not produce inclusive democratic process). Current popular evidence of public interest in, or engagement with, support is not intrinsically a more legitimate the intellectual process of making judicial decisions. form of self-determination than following the See Michael Plaxton, “The Neutrality Thesis and ideas and principles of governance that have been the Rothstein Hearing” (2008) 58 UNBLJ 92 at 99, adopted by “the people” at a prior time. It should where Plaxton states: “[T]here was a remarkable be within the range of popular self-determination failure to push Justice Rothstein to say anything to create long-term rules of governance. See Bruce about how judges go about interpreting broad, Ackerman, We the People: Foundations, vol I open-ended rules” These hearings did, however, (Cambridge: Belknap Press, 1991) at 3-33. give rise to a considerable degree of public media 29 The process of recovering the drafters’ intentions is coverage” See also Schneiderman, supra note 10. as much dogged by uncertainty as interpreting the 23 Hogg, supra note 4. words that they used to express their ideas. More to 24 Ibid at 24. the point, to decide that what the drafters intended 25 Lawrence Sager, “The Domain of Constitutional on the basis of what we think they thought about Justice” in Larry Alexander, ed, Constitutionalism: (often unanticipated) social practices would be Philosophical Foundations (Cambridge: Cambridge a faulty assumption in that it excludes, without University Press, 2001) 235. Sager states: “[C] reason, their more likely intention to create an onstitutional justice has a domain — a general area on-going interpretive community — that they of concern that can be described with sufficient intended to assign responsibility for the meaning clarity to aid in understanding the Constitution of the text to the future generations of judges generally and in resolving specific problems of who would dwell among the people who would interpretation.”: ibid at 235. be bound by the their decisions. See H Jefferson 26 [1929] UKPC 86, [1930] AC 124. Powell, “The Original Understanding of Original 27 Constitution Act, 1867, supra note 19, s 24 provides: Intent” (1985) 98:5 Harv L Rev 885. In fact, what “The Governor General shall … summon qualified can ever be the true reality of interpretation other persons to the Senate.” than taking on board the world that lives beyond 28 There is nothing in the concept of democracy the text and seeking the integration of the text’s that suggests that contemporary ideas of good ideas with our experience and our knowledge? governmental action should take priority over How else do humans ever reconcile themselves other, older and more procedural, ideas of good with their history and memory? governance that have themselves been chosen 30 Hogg, supra note 4, at 24. through a democratic process (although, as
118 Special Issue: Volume 25, Number 3, 2016