Charitable Status and Freedom of Expression: Testing Labour Union Exceptionalism in the context of the Charter’s Fundamental Freedoms

The charitable organization Canada Without Poverty (“CWP”) has created some buzz lately with its constitutional challenge to a provision in the Income Tax Act that makes charitable tax status contingent on refraining from engaging in certain “political activities”.

As a preliminary matter, there is always a risk in assessing laws impacting expression that our thinking will become clouded by sympathies for the expression at issue. In order to avoid this at the outset of this egregiously long post, I would like to invite readers to not think of this as a challenge brought by an anti-poverty group. No one likes poverty. Think of it as a challenge brought by an organization whose otherwise lawful political expression you find obnoxious or distasteful. I, for instance, will imagine that the challenge was brought by a not-for-profit organization dedicated to promoting the interests of self-described “foodies”.

So the question is: does this lawful organization (whose ideas or objectives you dislike) have a constitutional entitlement to favourable tax treatment not available to other organizations, and to use the additional funds for their political purposes, as an incident of their fundamental freedoms?

Positive and Negative Rights

This challenge raises a number of unresolved issues that go to the very nature of the concept of “freedom” used in section 2 of the Charter, and in particular everyone’s favourite but murky (if not analytically unstable) distinction of “positive” vs. “negative” rights.

These difficult issues arise because the Government does not prohibit, restrict, or otherwise impose sanctions on organizations for engaging in political activities or expression. No one is stopping any organization from saying or doing anything, as such.

Rather, what the law does is make beneficial tax status contingent on refraining from engaging in political activities, including political expression. As I understand it, charitable organizations can engage in political activities and expression, or obtain tax breaks, but not both.

The difficulty with the CWP’s position is that we normally think of “freedom” as requiring the government to not interfere with the fundamental freedoms (religion, expression, assembly and association), but not as requiring positive state assistance for those activities. Presumably, we would all have greater opportunity to expend funds on religious, expressive or associational activities if we were afforded state assistance for them, be it through beneficial tax status, government grants, or positive legislative protections designed to facilitate these activities. But if you walk into court and say that the government has violated your fundamental freedoms because they have not left you with enough post-tax income to build a church or to run prime time election ads or to rent lane-time so your bowling association can practice, you will probably not get very far.

This point is not lost on the lawyers for the CWP. In their Notice of Application, they assert that they are seeking an entitlement to charitable status as such, but rather take the existence of charitable tax status as a given:

  1. CWP is not arguing that Parliament is constitutionally obliged to confer the benefit of charitable status for the promotion of any particular purpose or view. Though an argument could be advanced that governments have an obligation to provide statutory or financial support for organizations such as CWP to promote the relief of poverty, that is not the issue in this case. Parliament has accepted that relief of poverty is a charitable purpose and CWP has been granted charitable status to pursue this purpose. CWP relies on the fact that even if there is no constitutional obligation to provide charitable status for the relief of poverty, Parliament must ensure that where it chooses to provide the benefit, it does so in a manner that complies with the Charter. Restrictions imposed on CWP’s political expression must therefore be in compliance with the Charter. Section 149.1 (6.2) has as its clear purpose the restriction of political activities or expression. All of CWP’s activities that are subject to this restriction have expressive content, thereby bringing them prima facie within the scope of s. 2(b) protection.

While there are a number of ways this challenge could go,* I will focus on the constitutional principle underlined above – that while the government may not be constitutional required to confer a certain benefit, once it chooses to do so, it must do so in compliance with the Charter.

This principle is rather obviously true in general, but is more readily applicable in certain respects than in others. In particular, in the context of section 15 equality challenges, the government cannot extend a benefit to some and deny it to others on discriminatory grounds, and then claim it has not breached the Charter because the persons deprived of the benefit would have no entitlement to it in addition to their right to not be unlawfully discriminated against. The whole point of equality rights – and in particular the rights to “equal benefit” and “equal protection” of the law – is to forbid the discriminatory extension of benefits, burdens and protections.

The question the CWP application raises is different.  It is not raising a section 15, relative-entitlement equality claim – I am entitled to this state benefit/protection/support because others get it.  Rather, by relying on section 2, the CWP claim (or at least the angle I am focussing on) enters into the field of absolute entitlements – I am entitled to this additional state benefit/protection/support regardless of what other people get, because it is necessary to permit me to meaningfully exercise my fundamental freedoms.

Positive and Negative Rights and the Fundamental Freedoms

Generally, the courts have been resistant to extend state benefits or protections in that way under the fundamental freedoms. For instance, in Haig v. Canada, a case involving the government excluding persons from voting in a referendum due to their fluid residency status, L’Heureux-Dube J. made the following remarks:

As a starting point, I would note that case law and doctrinal writings have generally conceptualized freedom of expression in terms of negative rather than positive entitlements. (…)

It has not yet been decided that, in circumstances such as the present ones, a government has a constitutional obligation under s. 2(b) of the Charter to provide a particular platform to facilitate the exercise of freedom of expression.  The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones… [at 1035; emphasis added]

In applying this principle to the expressive ‘benefit’ at issue (the ability to express oneself through voting in a referendum), the Court in Haig found that there was no such entitlement:

A referendum is a creation of legislation.  Independent of the legislation giving genesis to a referendum, there is no right of participation.  The right to vote in a referendum is a right accorded by statute, and the statute governs the terms and conditions of participation.  The Court is being asked to find that this statutorily created platform for expression has taken on constitutional status.  In my view, though a referendum is undoubtedly a platform for expression, s. 2(b) of the Charter does not impose upon a government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum.  Nor does it confer upon all citizens the right to express their opinions in a referendum.  A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone.  A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law.

The following caveat is, however, in order here.  While s. 2(b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution.  The traditional rules of Charter scrutiny continue to apply. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion, and particularly not on ground prohibited under s. 15 of the Charter. [at 1041; emphasis added]

On this logic, the Court has rejected various constitutional challenges where the claimant sought state assistance or a certain ‘platform’ to facilitate their expression (i.e. a positive right). For instance, in NWAC, the Court rejected the claim that the government was constitutionally required under s. 2(b) to provide an aboriginal women’s group with funding and access to facilitate their position in constitutional negotiations:

It cannot be claimed that NWAC has a constitutional right to receive government funding aimed at promoting participation in the constitutional conferences (…) The respondents conceded as much in paragraph 91 of their factum as well as in oral argument. Furthermore, the provision of funding and the invitation to participate in constitutional discussions facilitated and enhanced the expression of Aboriginal groups. It did not stifle expression. (…)

At this point, I should add that it cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, that the Government is also required to fund a group purporting to represent the opposite point of view.  Otherwise, the implications of this proposition would be untenable.  For example, if the Government chooses to fund a women’s organization to study the issue of abortion to assist in drafting proposed legislation, can it be argued that the Government is bound by the Constitution to provide equal funding to a group purporting to represent the rights of fathers?  If this was the intended scope of s. 2(b) of the Charter, the ramifications on government spending would be far reaching indeed. [at 654-656; emphasis added]

At one time, this was the default assumption that applied to all of the fundamental freedoms. As Robert Charney has recently explained, it has been applied in the context of freedom of religion, in cases like Adler:

Persons seeking funding for private religious schools have argued that without government funding they are unable to establish a religious school, or, if established, students who might want to attend would be unable to do so because they could not afford the tuition. In other words, they argued, that for at least some individuals, the right to attend a private religious school was meaningless in the absence of government funding to build and support such schools. This argument was rejected by the Supreme Court, which held that freedom of religion does not entitle one to state support for one’s religion. As Chief Justice Dubin stated in the Ontario Court of Appeal:

The right [to freedom of religion under Charter s.2(a)] involves the freedom to pursue one’s religion or beliefs without government interference, and the entitlement to live one’s life free from state-imposed religious beliefs. It does not provide . . . any entitlement to state support for the exercise of one’s religion.

Robert E. Charney, “Should the Law society of Upper Canada Give Its Blessing to Trinity Western University Law School” (2015) 34 NJCL 173 at 182; see also Adler, at para 199-200, per McLachlin J, at paras 171, 175, per Sopinka J., and at para 58, per L’Heureux‑Dubé J..

Similarly, in the context of freedom of association, the Court (at one time) rejected the proposition that the Government was required to extend certain ‘positive’ entitlements under the rubric of the fundamental freedoms, such as affirmative labour rights designed to facilitate or promote associational activities.

In Delisle v. Canada, for instance, the Court rejected the submission that excluding certain employees (there, RCMP members) from the protections found in the general labour relations statute violated their freedom of association. The RCMP members were left free to associate and to make representations to their employer about working conditions; they simply were not provided with the affirmative statutory protections necessary to enhance the power of that association in the collective bargaining context. In essence, the employer could ignore them. The majority explained the distinction between the principle’s application in the context of section 15 and in the context of the fundamental freedoms:

The structure of s. 2 of the Charter is very different from that of s. 15 and it is important not to confuse them.  While s. 2 defines the specific fundamental freedoms Canadians enjoy, s. 15 provides they are equal before and under the law and have the right to equal protection and equal benefit of the law.  The only reason why s. 15 may from time to time be invoked when a statute is underinclusive, that is, when it does not offer the same protection or the same benefits to a person on the basis of an enumerated or analogous ground (on this issue, see Schachter v. Canada, [1992] 2 S.C.R. 679), is because this is contemplated in the wording itself of s. 15.  The distinguishing feature of s. 15 is that the Charter may require the government to extend the special status, benefit or protection it afforded to the members of one group to another group if the exclusion is discriminatory and is based on an enumerated or analogous ground of discrimination. (…)

It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance. (…)

On the whole, the fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue in the instant case.  In accordance with the decision of the majority of this Court in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), supra, there is no violation of s. 2(d) of the Charter when certain groups of workers are excluded from a specific trade union regime.  The ability to form an independent association and to carry on the protected activities described below, the only items protected by the Charter, exists independently of any statutory regime. (…) [at paras 25, 26, 33]

As can be seen, the Court was characteristically cautious to never say never. In Haig, for instance, the majority mused that “a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required”. It gave the example of “legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information”, which it implied may require constitutional protection, despite the fact that it could be characterized as an assertion of a ‘right’ to positive protection or assistance (Haig at 1039). And as discussed below, the Court has taken this ball and thrown deep, especially (or perhaps exclusively) in the context of freedom of association and labour rights.

However, even after that ball started rolling, the Court has generally hewed closely to the orthodox distinction in most other contexts. In Siemens v. Manitoba, the Court again confirmed that freedom of expression did not entitle an individual to vote in a referendum, relying on Haig. And in Baier v. Alberta, the Court developed a somewhat obscure framework for the extension of positive rights in the context of section 2, in the course of rejecting the claim that freedom of expression was violated by excluding certain persons from running in a school board election. Notwithstanding the unique expressive advantage conferred by being a school trustee – i.e. it enhances the meaningfulness of expression – the court found that “claiming a unique role is not the same as claiming a fundamental freedom” (Baier at para 44).

Thus, I take it to be the general rule under section 2 that state may not act to impede religious belief or practice, expression, or associational activities, but it need not actively facilitate, promote, enhance or assist those activities.

Departing from the Rights vs. Freedom Distinction

The Court has since departed from this general s. 2 rule in a rather big way, albeit almost exclusively in one particular context: labour rights designed to facilitate meaningful association in the workplace. The first departure came in Dunmore v. Ontario, where the Court found that section 2(d) of the Charter required the extension of statutory rights specifically designed to facilitate the act of association, namely, protections against unfair labour practices of employers discriminating against employees who choose to associate (i.e. firing someone who joined a union), which employers are free to do at common law.

Since Dunmore, proceeding to BC Health and Fraser, and on to MPAO and Saskatchewan Federation of Labour, the Court has found that a broader range of affirmative statutory rights are necessary to permit workers to “meaningfully” exercise their fundamental freedom of association in the labour relations context. In these cases, no law or state actor stopped anyone from freely associating, generally speaking. The problem was that the association so created was not able to achieve what it was designed to achieve in the absence of unique statutory protections: i.e. engaging in meaningful collective bargaining, including by placing an obligation on the employer to bargain in good faith, protecting employees from termination lawful at common law, having access to a right to strike, and so on.

I do not think the Court has yet extended this principle outside the labour relations context, with one possible exception. In CLA, the Court found that section 2(b) of the Charter could require the government to disclose information in its possession where doing so was necessary to facilitate expression on the subject matter of the disclosure.  I happen to think is not so much an exception to the general rule, but that discussion is beyond the scope of this post. In any event, and beyond the CLA case, the extension of fundamental freedoms to require positive state support appears to only really apply in the context of labour relations. As the Court stated in Dunmore, with perhaps some degree of understatement, “it may be asked whether the distinction between positive and negative state obligations ought to be nuanced in the context of labour relations” (at para 20).

Notably, in defending the position that section 2 imposes positive obligations on the government in some circumstances, the Court has arguably gone beyond the wholly defensible position that the distinction between (positive) rights and (negative) freedoms can be murky and will at least admit of borderline cases, to the more radical proposition that there is really no distinction at all, stating for instance that “(t)he freedom to do a thing, when guaranteed by the Constitution interpreted purposively, implies a right to do it.” (Fraser, at para 67).

I think that taken too far, this view is problematic, if for no other reason that it would tend to put the courts in the position of doling out governing funding and statutory rights based on some arbitrary baseline entitlement to ‘meaningful freedom’. I doubt that is something that would be contemplated outside of the unique labour relations context. As I have put it elsewhere:

For example, consider freedom of religion. Section 2(a) does not impose any positive duty on the government, even if my lack of resources makes an important incident of this freedom (e.g., going on pilgrimages to Mecca or building a church) all but illusory, vapid or ‘impossible to exercise’. Likewise, if you are without the means or opportunity to effectively distribute your message to an audience, or simply no one cares to listen to you, your freedom of expression may be effectively rendered ‘pointless’. The absence of state action in this case may have the effect of ‘precluding’ meaningful expression, and the futility of the enterprise may indirectly ‘discourage’ it, but this does not entitle you to a constitutional remedy on the basis of government inaction. (…)

While the Court has shied away from strictly categorizing guarantees as ‘rights’ or ‘freedoms’, there can be little doubt that the questions “can the state prevent me from building a church?” or “can the government criminalize my political message?” are categorically different than “must the government purchase a parcel of land for my church?” or “must the legislature force private broadcasters to disseminate message?” While both state action and state inaction can operate to effectively ‘preclude’ the meaningful exercise of one’s substantive freedom, depending on the circumstances, the two inquiries are and must be treated differently as a matter of constitutional law. Simply stating that the line between ‘rights’ and ‘freedoms’ can occasionally be a hazy one cannot obliterate the line entirely.

On a more practical level, a ‘right to the meaningful exercise of a freedom’ standard necessarily requires the courts to attempt the almost impossible task of determining with any degree of certainty what is required to ‘meaningfully exercise’ a freedom – at what degree of meaningfulness does the state obligation to enhance the purposes and objectives of the association, expression or religion, begin and end? Many freedoms that the state may not unjustifiably encumber, such as writing papers on constitutional interpretation in obscure legal journals, may be done in vain, but that does not normally entitle authors to constitutional remedy.

Benjamin Oliphant, “Exiting the Freedom of Association Labyrinth:  Resurrecting the Parallel Liberty Standard Under 2(d) & Saving the Freedom to Strike” (2012), 70 UTFLR 36 at 68-71.

In other words, I think there is a fundamental distinction between section 15, relative – entitlements – you cannot deprive me of this benefit you give to everyone else – and the task of defining baseline entitlements to ‘meaningful freedom’, and we should not conflate them.  It is one thing for the Courts to erect a wall of freedom over which the state may not intrude, but quite another to start directing the distribution of government funds and legislative protections to achieve some abstract amount of ‘freedom’. The latter strikes me as a rather massive expansion of judicial power, made deceptively easy in the labour relations context by a ready-made statutory superstructure of positive protections (i.e. the Wagner Act labour relations legislation established across the country).

The Counter Point

All of that being said, I agree that the distinctions accepted in a range of cases discussed above – between a freedom and a right, between positive and negative entitlements, between state action and inaction, and so on – are not bright line rules that can resolve hard constitutional cases on the basis of an initial characterization.

To see how the distinction can break down, consider the Government conditioning access to a public space – e.g. holding a political rally in a city park – on supporting a particular partisan viewpoint.  I should think that a rather intolerable intrusion upon freedom of expression, despite the fact that a publicly-maintained public park could be characterized as access to a ‘platform’ of sorts. So the mere fact that a claim can be characterized as access to a state ‘platform’ or ‘benefit’ cannot end the analysis.

The US case law here might be instructive. The general rule applied by the US Courts is consistent with the orthodox position stated above. As recently outlined in AID v. Alliance for Open Society Intern.:

As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds. This remains true when the objection is that a condition may affect the recipient’s exercise of its First Amendment rights. See, e.g., United States v. American Library Assn., Inc., 539 U.S. 194, 212, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (plurality opinion) (rejecting a claim by public libraries that conditioning funds for Internet access on the libraries’ installing filtering software violated their First Amendment rights, explaining that “[t]o the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance”); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (dismissing “the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State” (internal quotation marks omitted)). [at 2328]

One of the cases cited for the general rule, Regan v. Taxation With Representation of Wash, closely resembles the CWP challenge, as it deals with restrictions on charitable tax status. There the Court rejected the premise that freedom of expression requires the Government to extend state subsidies for public activities, stating:

The reasoning of these decisions is simple: “although government may not place obstacles in the path of a [person’s] exercise of . . . freedom of [speech], it need not remove those not of its own creation.” Harris, 448 U. S., at 316. Although TWR does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like, the Constitution “does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” Id., at 318. (…)

TWR contends that § 501(c)(3) organizations could better advance their charitable purposes if they were permitted to engage in substantial lobbying. This may well be true. But Congress — not TWR or this Court — has the authority to determine whether the advantage the public would receive from additional lobbying by charities is worth the money the public would pay to subsidize that lobbying, and other disadvantages that might accompany that lobbying. (…) It is not irrational for Congress to decide that tax-exempt charities such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying. [at 549; emphasis added]

As in Canada, however, this is not a hard and fast rule. I don’t presume to be an expert in First Amendment jurisprudence, but it seems that they have come up with a few subsidiary doctrines to deal with borderline cases where an otherwise meritorious claim could be characterized as one to state support.

First, if the ‘benefit’ being denied is one traditionally available to all to use for the purposes of expression (as in our public parks example above), the government cannot deny it without a good reason: “the existence of a Government “subsidy,” in the form of Government-owned property, does not justify the restriction of speech in areas that have “been traditionally open to the public for expressive activity” (see United States v. Kokinda, 497 U. S. 720, 726 (1990)).

Second, in the AID case quoted above, the majority found that the Government could not make federal funding for a program contingent on engaging in expressive activities that are in some sense beyond the scope of the objectives of the program itself, and perhaps especially where the condition “requir[es] recipients to profess a specific belief”. This distinction is itself a fine one, and I think that particular case shades into a different area – the coerced expression cases. However, because the CWP case does not involve requiring the endorsement or forswearing of any particular political message, I am not sure this angle will be helpful.

Third, and most relevant to the CWP challenge, the US Supreme Court seems to be relatively comfortable with restricting the use of public funds and subsidies for certain expressive activities, but much less comfortable with blanket prohibitions tied to the group itself. As explained in Rust v. Sullivan:

In contrast, our “unconstitutional conditions” cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. In FCC v. League of Women Voters of Cal., we invalidated a federal law providing that noncommercial television and radio stations that receive federal grants may not “engage in editorializing.” Under that law, a recipient of federal funds was “barred absolutely from all editorializing” because it “is not able to segregate its activities according to the source of its funding” and thus “has no way of limiting the use of its federal funds to all noneditorializing activities.” The effect of the law was that “a noncommercial educational station that receives only 1% of its overall income from [federal] grants is barred absolutely from all editorializing” and “barred from using even wholly private funds to finance its editorial activity.” 468 U. S., at 400. We expressly recognized, however, that were Congress to permit the recipient stations to “establish ‘affiliate’ organizations which could then use the station’s facilities to editorialize with nonfederal funds, such a statutory mechanism would plainly be valid.” Ibid. Such a scheme would permit the station “to make known its views on matters of public importance through its nonfederally funded, editorializing affiliate without losing federal grants for its noneditorializing broadcast activities.” Ibid.

Similarly, in Regan we held that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, we explained that such organizations remained free “to receive deductible contributions to support … nonlobbying activit[ies].” 461 U. S., at 545. Thus, a charitable organization could create, under § 501(c)(3) of the Internal Revenue Code of 1954, 26 U. S. C. § 501(c)(3), an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and at the same time establish, under § 501 (c)(4), a separate affiliate to pursue its lobbying efforts without such contributions. 461 U. S., at 544. Given that alternative, the Court concluded that “Congress has not infringed any First Amendment rights or regulated any First Amendment activity[; it] has simply chosen not to pay for [appellee’s] lobbying.” Id., at 546. We also noted that appellee “would, of course, have to ensure that the § 501(c)(3) organization did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize.” Id., at 544. The condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights. “Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures.” See id., at 548. [at 197-198; emphasis added]

If I were a betting man, I would suspect the Canadian courts might find this compromise position appealing. That is, while the government could condition the receipt of funds (or tax breaks) on using that money for certain purposes and not others (i.e. political activities), it cannot then prevent the organization from using funds collected from other sources for those political purposes. Whether this is a sustainable distinction in principle or a workable idea in practice is something I will leave to others.


The challenge raised by CWP is not an easy one to resolve.  However, it is a good one to test the theory of labour union exceptionalism in the context of section 2, i.e., that the courts are willing to extend relatively robust “positive” protections to labour unions to make their freedom of association more meaningful, in a way they would typically not contemplate in other contexts, either for other associations who might benefit from additional statutory protections (as most associations would), or for other persons who could benefit from government ‘enhanced’ freedom of expression or religion.

I should clarify that I do not mean to suggest that there’s any sort of ideological predisposition in favour of labour unions, at the Supreme Court level or otherwise. I suspect the discrepancy in the case law, if there is one, is better explained by path dependency and a sense of fairness than either some high constitutional principle or bias. That is, because the Wagner Act model has been extending affirmative rights to labour unions for nearly a century, and these rights were in exchange for a rather dramatic diminution of the freedom of workers (discussed here at 260 n. 28), the Court appears uncomfortable with legislation that fails to extend its baseline protections, even if there would be no independent constitutional entitlement to these particular statutory protections but for the historical fact of the Wagner Act model.

Nevertheless, in light of the relative success labour unions have had in claiming positive protections under freedom of association as compared with others in the context of the other fundamental freedoms, we should not be surprised that the CWP included a freedom of association claim in their Application, using language that conspicuously mirrors the that the Court has used in the context of extending affirmative protections to labour unions (see Notice of Application at paras 23-27).

If nothing else, this will put the courts to the task of deciding whether there are other associations beyond labour unions that require positive state protection or support to make their expressive and associational activities sufficiently “meaningful” to pass constitutional muster. This becomes a hard question once we realize that every organizations “freedom” to achieve their objectives and purposes would be enhanced in so far as they received government funding or positive statutory protection not available to everyone else.

At the very least, there is no doubt that the CWP’s expressive and associational activities will be enhanced to the extent that it would continue to benefit from beneficial tax treatment, without the corresponding responsibility to refrain from engaging in “political activities”. The question is whether the government is constitutionally obliged to support the expressive and associational activities that help the CWP advance its mission. Or, put differently, is there some principled reason why CWP’s claim to ‘meaningful’ expression and association does not require affirmative state protection of this sort, but that labour unions are entitled to certain positive protections to enhance the meaningful exercise of their freedoms? I think the CWP deserves a good answer to this question.


* First, the idea that the impugned ITA provision has an unconstitutional purpose , which the CWP’s Notice of Application asserts, might be a clever end run around all of the above, and raises other complications that I have not addressed in this post. For my purposes, I have assumed that there is some sort of rational basis for the provision that extends beyond the mere objective of repressing political expression, as such. Second, I recall there being allegations that the audits being undertaken by the previous government were politically motivated. I have no idea whether this is true and this does not appear to form the basis of CWP’s Application, and so I have assumed that not to be the case for the purposes of the post. If that were the essence of the allegation, however, it would raise constitutional issues, whether or not the impugned provision is permissible as a general rule.  In particular, I think that would get us into whether the government had an unconstitutional purpose in deciding to audit particular organizations, which might involve a Doré type analysis (scrutinizing the administrative discretion exercised by the CRA), or perhaps a Little Sisters type challenge, both of which raise complications I have not addressed.


The Public Confidence Fairy

Public confidence in the courts cannot be the foundation of judicial independence

Judicial independence is often justified, both in the decisions of the courts and in the broader public discourse, by the need to maintain public confidence in the administration of justice. It seems to me that this justification is not compelling. To borrow Paul Krugman’s well-known phrase (coined perhaps in this column in the New York Times), it relies on a mythical “confidence fairy”, whose existence would be convenient perhaps, but is supported by no evidence. Whatever the accuracy of Krugman’s economic argument (which may well be misbegotten even on the terms of his own preferred intellectual framework), it seems to fit the judiciary rather well.

The notion of confidence in the judiciary as crucial to judicial independence has been a staple of the Supreme Court’s jurisprudence since the seminal judgment in R v Valente, [1985] 2 SCR 673, where Justice Le Dain, for the unanimous court, wrote that, along with impartiality,

independence [is] fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. (689)

In Ell v Alberta, 2003 SCC 35 , [2003] 1 SCR 857, Justice Major, again for the unanimous court, wrote that “[c]onfidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry.” [23] There are other examples too; no need for me to multiply them. As for an instance of the same idea appearing in the broader public discourse (albeit that it is carried there by lawyers), one might look at this op-ed by Joseph Arvay, Sean Hern, and Alison Latimer, arguing that the insulation of judicial appointments from politics would make Canadian courts truly independent and thereby enhance the public’s confidence in them. (I criticized this argument here.)

Why, then, is the popular argument that judicial independence is required (among other reasons) in order to maintain public confidence in the courts misguided? The claim seems to be an empirical one, establishing a causal relationship between the independence of a judiciary and the public’s trust in it. Confidence in a strongly independent judiciary should be high, and it should go up when judicial independence is further increased. For example, public confidence in the Canadian judiciary should have gone up in the aftermath of the Supreme Court’s decision requiring independent commissions to recommend judicial salaries to legislatures. It should be possible to support such a claim with data ― polls showing that confidence in the judiciary grows when its independence is enhanced, or that it decreases in response to judicial independence being undermined. Only, those who make the claim never provide the data that would support it. That should make us skeptical.

What data there exist do not obviously support the argument. Statistics Canada’s recent study of Public Confidence in Canadian Institutions found that Canadians trust the “justice system and courts” less than they trust the banks ― only 20% of the respondents had “a great deal” of confidence in the courts, while 37% had “some.” (The courts still did better than Parliament, though.) Yet the Canadian judiciary is highly independent. What’s wrong with this picture? Admittedly, as a (somewhat old, but most likely still valid) report prepared by Mary Stratton and Diana Lowe makes clear, opinion polls purporting to ascertain the level of public confidence in the justice system tend to be pretty lousy. But Stats Can is, presumably, as good as we are going to get. Why are the proponents of the confidence thesis so sure about it?

And they are very sure indeed. Justice Binnie, speaking to the Venice Commission (a Council of Europe institution that advises it on constitutional matters and produces statements of constitutional best practices), has asserted that “[t]he Supreme Court’s independence as an institution and that of its judges is undoubted and has lead to strong public confidence in the administration of justice.”  Needless to say, Justice Binnie provided no evidence or explanation in support of his claim. But it is, it seems to me, more reflective of the judges’ and lawyers’ beliefs about what ought to be the case than of their knowledge of what actually is. (This knowledge, of course, is often woefully inadequate and reliant on the stereotypes carried in bien-pensant political discourse, as I pointed out here ― with supporting data.)

The very notion of public confidence in the judiciary is a theoretical one at best. As Dr. Stratton and Ms. Lowe’s report makes clear, people lack a clear understanding of what is meant by having confidence in the justice system. And that’s not exactly surprising, since the terms involved are vague, and political ignorance certainly extends to the judicial branch of government as well as to the legislative and the executive. Indeed, I suspect that to the extent that such a thing exists and can be measured at all, public confidence in the judiciary is likely to be a function of public agreement with high-profile decisions (a proposition which there is polling data to support, at least in the United States). But judicial independence exists precisely to ensure that judges will not be influence by the likely popularity or otherwise of their potential decisions. If actual, and not purely hypothetical, public confidence in the courts were the objective, judicial independence might have to be weakened rather than strengthened.

Why, though, does the belief in the confidence fairy persist? I’m afraid that at least a significant part of the reason for this is that the fairy is a very useful creature. In Valente, having stated that “[w]ithout that confidence the [justice] system cannot command the respect and acceptance that are essential to its effective operation,” Justice Le Dain draws the conclusion that “[i]t is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.” (689) In other words, invoking public confidence in the judiciary allows courts (and their parasiti) to expand the constitutional protections of judicial independence, on the premise that they must be robust enough not only to ensure the judiciary’s actual independence, but also the perception of its independence among the general public.

It might of course be nice if public confidence in the courts really were a function of their independence. Because the courts in Canada in elsewhere in the common law world are in fact highly independent, the public would trust them and would accept even controversial or disagreeable judicial decisions. Perhaps the confidence in the courts would be so high that few of their decisions would even be controversial. Indeed this seems like a pretty fair description of the state of affairs within the Canadian legal community, if not among the general public. But wishful thinking is not a very solid basis on which to depend a fundamental constitutional principle. Whatever the true foundation of judicial independence (and I’ve ventured a couple of hypotheses over the years here and here), it must be something different ― and more substantial ― than the confidence fairy’s magic.


Why Do the Write Thing?

Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and seek out comments, which they say in the book’s description “will be reflected in a second edition to be published in 2017.” The Twitter account has published the following infographic listing reasons for adopting a written constitution:

These reasons apply not just in New Zealand but pretty much everywhere ― if they are indeed good reasons, that is. So the experience of countries that have adopted “written” constitutions ― including Canada and the United States ― should be relevant to assessing whether they are. If these reasons support the adoption of a “written” constitution, their effects should be observable in Canada (to the extent that our constitution is “written”), the U.S., and elsewhere. The countries with written constitutions should be doing better than those without (and notably New Zealand) on all these counts. With respect, it seems to be me that for the most part they are not. In this post I explain why.

But just before I do that, a brief comment is in order on the phrase “written constitution,” which as you may have noticed I only use in scare quotes. The reason for this is that “unwritten” constitutions tend in fact to be written down somewhere, so that they are not really unwritten at all. This is especially true of New Zealand’s “unwritten” constitution, which is written down both in legal sources such as the Constitution Act 1986, the Letters Patent Constituting the Office of Governor-General of New Zealand, or judicial decisions, and in extra-legal ones, such as the Cabinet Manual 2008, which re-states most if not all of the constitutional conventions and other important rules governing the executive branch, in authoritative although not legally binding format. When people speak of a “written” constitution, they tend to speak of a codified or an entrenched constitution, and usually, but not always, both. This is how Sir Geoffrey and Mr. Butler use the term: on their website, they say that “[p]eople have rights and they should be provided in a constitution that is supreme law and binds the Parliament.”

* * *

The above “reasons to adopt a written constitution” can be grouped in a few categories. Some of them have to do with the democratic process; others with the limitation of state power; others still with transparency and accountability. Let me consider these in turn. (I will not say anything about the enhancement of national identity, partly because I am not qualified to speak to the subject in New Zealand, and partly because I am, as a general matter, profoundly skeptical of any action, and especially any legal change, that pursues this objective.)

I do not think that anything about the strength of a polity’s democracy (to which I also take the “easier to participate” and, in part, “government is more accountable” claims to refer) turns on whether that polity’s constitution is codified, entrenched, both, or neither. Polities with unentrenched and uncodified constitutions, including of course New Zealand but also, to a lesser extent, Canadian provinces (whose constitutions are partly entrenched) can be well-functioning democracies. They can, and already do, have free and fair elections which produce regular changes of government. Is democracy stronger ― whatever that means ― in Canada or in the United States than it is in New Zealand? Quite a few Canadian election reformers passionately believe the opposite, because Canada has a first-past-the-post electoral system (as does the U.S., mostly), while New Zealand has moved to a version of proportional representation. Whether or not we agree with them ― I do not, as I’ve explained here ― it is to say the least not obvious where the democratic gains from moving to a codified or entrenched constitution are.

Codification and entrenchment will have some effect on the limitation of state power (including to protect human rights and the Rule of Law, and to prevent abuses). A codified constitution might be clearer and thus easier to understand than an uncodified one. An entrenched constitution is ― ostensibly anyway ― less malleable than one that can amended by ordinary legislation, and can in principle better protect individual and minority rights. But the gains on these various counts are actually rather smaller than they might at first appear.

So far as clarity is concerned, I’m not sure that the current sources of New Zealand’s constitution are especially unclear, as these things go ― they do not strike me as any more obscure than Canadian or American ones. One should also keep in mind Chief Justice Marshall’s warning, in McCulloch v Maryland, that

[a] constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. (200)

As for stability, an entrenched constitution is only as stable as the judiciary lets it be. As Grégoire Weber, among others (including yours truly), has pointed out, the Supreme Court of Canada has lately been re-writing the Canadian constitution a couple of times a year at least. The Supreme Court of the United States is regularly accused of similar mischief. Admittedly, if there could be guarantees of the courts strictly adhering to some version of originalist constitutional interpretation, this danger would be minimized. But there can be no such guarantees anywhere, and in New Zealand in particular, originalism is not the preferred interpretive approach to the New Zealand Bill of Rights Act 1990, so there seems to be little reason to think that judges could be persuaded to approach an entrenched constitution in this spirit.

The same goes, of course, for protecting rights. The protections provided by an entrenched constitution can be no stronger than the judiciary’s inclination to enforce them. Admittedly, the attitude of Canadian judges changed when the partly entrenched Canadian Bill of Rights was supplemented by the mostly entrenched Canadian Charter of Rights and Freedoms, I’m not sure if the same sort of change would occur in New Zealand ― which, after all, already largely respects individual rights. Would, for example, the adoption of an entrenched constitution, change anything to what seems to be a consensus that it is perfectly fine to disenfranchise prisoners serving long terms? I doubt it.

Turning to transparency and accountability, it seems to me that the great problem here is not the form of the constitution, but political ignorance. Ignorance of basic facts about the constitution is prevalent in the United States, where merely a third of the respondents to a recent poll could name the three branches of government ― despite a constitution whose very structure begins with these three branches. Pointing out that Donald Trump has never read the U.S. Constitution is a great rhetorical move (and I say this unironically), but while the charge is doubtless accurate so far as it goes, many of Mr. Trump’s fellow citizens (and not only among his voters) are every bit as guilty of it as he is. Ironically, Sir Geoffrey and Mr. Butler might just succeed in improving the public’s understanding of New Zealand’s constitution simply by encouraging conversations about it, without any changes being made. I wouldn’t be too optimistic though. As Ilya Somin and others explain, people have no incentive to become informed about the workings of  government, and the existence of an entrenched constitution changes nothing to this reality.

That said, New Zealand already has a number of accountability mechanisms, some of which seem to be functioning better than those in place in Canada. Though I’m far from an expert in the field, New Zealand’s access-to-information legislation might be stronger than its Canadian (federal) counterpart, for instance. And New Zealand’s government is much better than that of Canada at proactively making a lot of information (such as the advice it receives on the compliance of its laws with the Bill of Rights Act available to the public. (I might write about this in the future ―not too distant, I hope.) Perhaps entrenching these accountability mechanisms would give them greater symbolic weight. But it would also freeze them in place, which may not be a good thing ― not to mention that it would yield a constitution suffering from the “prolixity of a legal code.”

* * *

In a polity like New Zealand ― which already has a well-functioning, if in some people’s view imperfect democratic system, and which largely, if again imperfectly, respects human rights ― the gains from constitutional entrenchment are likely to be marginal in the short or even medium term. There will be some costs, too, though I have not discussed them here. Of course, the case of federal states may well be different ― it is usually said that a federal state needs an entrenched constitution to protect the division of powers (though note that Switzerland’s constitution is effectively not entrenched as against the Federal Assembly, its parliament, and that many on the American left would like the division of powers under the U.S. Constitution to be unenforceable against Congress). But this reason for constitutional entrenchment does not apply to New Zealand.

Other than the speculative prospect of a long-term crumbling of the polity’s commitment to human rights and the Rule of Law that would somehow not affect the judiciary, is there a good reason to entrench New Zealand’s constitution? Well, maybe, but it’s not one that Sir Geoffrey and Mr. Butler name. Entrenching the constitution makes sense if one’s goal is to shift power from Parliament and the executive to the courts. The courts’ incentives are different than those of the “political branches.” They might be more solicitous of minorities at the margins, but as or more importantly, they may also be less solicitous of special interests, because these special interests can do little for them. (Tough this is far from certain ― some special interests may find keen listeners on the bench, if for example they can provide the plaudits and recognition that judges, not unlike politicians, may come to crave.) It may be that in a unitary, Westminster-type system, democracy becomes too potent a force, and judicial review of legislation is the only countermeasure available, so it must be used faute de mieux, even in the knowledge that judicial power too will be abused and can degrade the constitution and the Rule of Law as much as the legislative and the executive.

These are serious reasons in my view. But whether they are conclusive or not, one thing is certain. Shifting power from elected officials to judges does not strengthen democracy ― it weakens it, deliberately. It does not make law clear. And it certainly does not make those who wield power more accountable. It might be worth doing regardless. But not for the reasons that Sir Geoffrey and Mr. Butler give us.


Thoughts on the constitutionality of the new Supreme Court appointments process

In my last post, I argued that the process for appointing Supreme Court judges announced by the federal government last week is not a positive development. It will neither increase the transparency of the appointments nor de-politicize them, while creating an illusion of having done so. In this post post, I turn to the separate question of whether this process is constitutional. Two issues are relevant here. One is the government’s insistence that all future judges be bilingual. The other is the possibility that it will disregard the convention of regional representation on the Supreme Court, which requires the next appointment to come from Atlantic Canada.

* * *

I have argued here that in light of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433 legislation requiring judges to be bilingual would be unconstitutional. Kate Glover has reached the same conclusion, albeit on the basis of a rather different reasoning, in a guest-post here. (I should note however that others, notably Sébastien Grammond, disagree with this view.) At the same time, it is quite clear that the government is entitled to make a policy choice to privilege certain criteria for appointing judges. After all, even a stated commitment to only appoint meritorious or excellent judges is an addition to the bare-bones constitutional requirements that l’Affaire Nadon froze in place. It would be well within the Prime Minister’s discretion to only appoint bilingual judges, and even to say that he would only appoint bilingual judges. (It would, I have argued, be an unwise thing to do, but that’s another question.)

The constitutional issue, then, is whether the government’s announcements amount to an attempt to modify the law governing the appointment of Supreme Court judges, which in my view would be unconstitutional, or are merely a policy statement, which would not be. I am inclined to think  that so long as the bilingualism criterion remains essentially a policy directive, found in nothing more law-like than press releases and mandate letters, it does not stray into unconstitutionality, despite the contrary suggestions of some others, such as Matthew Hennigar and Dennis Baker in a very informative roundtable discussion published by Maclean’s. The difference between their conclusion that the Prime Minister is (in prof. Hennigar’s words) “courting a constitutional challenge” and mine may be due to the fact that they approach the issue by asking whether the bilingualism requirement is formal (and therefore constitutionally questionable) or informal (and therefore permissible). In my view, it is better to think in terms of the legal or extra-legal nature of the requirement, rather than in terms of its formality, because the underlying concern is with the integrity of constitutional rules, not their expression. Still, my views on this are tentative, and I am open to being shown that they are in error.

* * *

The matter of the regional representation convention is more clear-cut. The government’s initial statements simply ignored the convention altogether. Then, the Prime Minister’s mandate letter to the Chairperson of the Advisory Board that will supply him with a shortlist of potential appointees asked her to “consider the custom of regional representation on the Court as being one of the factors to be taken into consideration.” But a constitutional convention is not a mere custom. It is a mandatory rule of the constitution, not just a factor to be taken into consideration among others. Violating it means acting unconstitutionally.

This point needs to be emphasized, because more than a few commentators seem to believe that an appointment in violation of the convention of regional representation would not be unconstitutional, because it would not be illegal or attract a judicial sanction. (Paul Daly’s dismissal of the convention as “fluid,” and a rule that can be tinkered with at will because it is not legal is sadly representative of this attitude.) I will return to the question of judicial sanction in a moment. But first, it is sadly necessary to remind those who think that ignoring conventions is a relatively trivial matter, that this has never been the position even those jurists who, following A.V. Dicey, insisted that courts could not enforce conventions. In the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, the Supreme Court explained that

important parts of the constitution of Canada … are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution. (877-78; emphasis mine)

These important, even fundamental, constitutional requirements, or ― as the Court also described them ― “essential rules of the constitution” (878) are conventions. The Diceyan view, which was also that of the Supreme Court in the Patriation Reference, is that constitutional conventions and constitutional law together make up the constitution. In the Patriation Reference, the Court observed that in some cases, a breach of convention “could be regarded as tantamount to a coup d’état.” (882) Of course, the breach of the convention of regional representation would not rise to that level of unconstitutionality, but it would still amount to unconstitutional action by the government, much like Pierre Trudeau’s attempt at unilateral patriation of the constitution would have been unconstitutional, although not illegal.

At Emmett Macfarlane’s urging, I will grant that the Advisory Board might take the convention more seriously than the government seems to want it to, or that the Prime Minister might yet see the folly of breaking it. The intervention of the CBA president Janet Fuhrer, who is “urg[ing]” the Prime Minister “to amend the mandate of the Advisory Board … to ensure that the Atlantic Canada vacancy is filled by a meritorious candidate from that region” is encouraging in this regard, although it is disappointing to see Ms. Fuhrer hedging her language and referring to “the longstanding custom or constitutional convention of regional representation.” The re-classification of convention into custom denigrates it and suggests that it is not binding on the Prime Minister. For the purpose of passing a political judgment on his actions, it really does not matter whether the constitutional rules he is prepared to breach are classified as being convention or law.

Now, this classification does matter for a court passing a legal judgment on the constitutionality of the government’s actions ― or at least it does so on the Diceyan view. I have argued in the past, and still believe, that this view is mistaken as a matter of legal philosophy. That is, of course, irrelevant. But there is now reason to question whether the Diceyan view is still valid in Canada as a matter of positive law. For one thing, as we know from the Patriation Reference itself, Canadian courts consider themselves free to express their views on conventions in the context of reference proceedings. It would be enough for a provincial government to refer the issue to its court of appeal for the convention of regional representation to be fair judicial game. Moreover, lower courts have already pronounced on constitutional conventions in the context of ordinary litigation (notably in Conacher v. Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411, aff’d in Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 FCR 22) though the Supreme Court has not yet had an opportunity to do so.

Then, there’s the possibility that that the Supreme Court has transformed at least some constitutional conventions into legal rules when it invoked the notion of a “constitutional architecture” in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. My view, at least, is that that’s exactly what the Court did, but this is a controversial claim, and I have no room to develop, much less to defend, it here. (I will try to do that in a paper I am due to write in the coming months, and I will try to blog about it as I do so.) Even if I am right, however, there remains the further question of which conventions are part of the constitutional architecture, and in particular whether that of regional representation is. In a very interesting post at the CBA National Magazine’s blog, Jennifer Taylor has argued that it is. She may well be right, but I need to think a bit more about this before I am sure.

* * *

Important though it is, the legal issue should not distract us from the constitutional one. Constitutionally (and legally), the Prime Minister is in my tentative view free to adopt a (misguided) policy of only appointing bilingual judges to the Supreme Court, and to ask his advisers to counsel him accordingly. But, constitutionally (whether or not legally) the Prime Minister is not free to deprive Atlantic Canada (or any other region) of its representation on the Supreme Court. The appointment of a judge from outside Atlantic Canada would be unconstitutional, regardless of whether it would be illegal (though it might be), and of whether or not courts could say so (though they could).

That the Prime Minister should be open to engaging in such behaviour makes it clear that ― rather like his predecessor ― he does not consider himself bound by the constitution, or at least those parts of the constitution that he thinks he might get away with ignoring. For this reason, I find the many expressions of support for the Prime Minister’s plan quite dispiriting. They give the impression that the scrutiny which the legal community rightly applied to the previous government’s cavalier approach to the constitution was as much the result of opposition to that particular administration as of a sincere belief in constitutionalism. And it would be very sad indeed if that impression were justified.

Smoke and Mirrors

The new process for appointing judges to the Supreme Court is nothing to be happy about

Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a triumph of transparency and depoliticization, this new process is an elaborate mechanism of smoke and mirrors set up by a government that wants to look like it is committed to improving the state of the Rule of Law and of Canada’s judicial institutions ― and to act like it is not.

The new process starts with a seven-member “Advisory Board” appointed by the government, which will receive applications from lawyers and judges who put themselves forward for an appointment, and is also asked “to actively seek out qualified candidates and encourage them to apply.” After consulting “with the Chief Justice of the Supreme Court of Canada and other key stakeholders the Board considers appropriate,” the Board will put together a list of three to five candidates and provide an assessment of how they meet the criteria for an appointment ― both the baseline laid out by the Supreme Court Act and the government’s wish list for a perfect judge. After a further round of consultations ― including, once again, with the Chief Justice ― “the Minister of Justice will present recommendations to the Prime Minister who will then choose the nominee.” Finally, the Chairperson of the Advisory Board, the Minister of Justice, and the chosen candidate (whom the government documents refer to as the “nominee” even though his or her appointment at that point, is a fait accompli or at least a foregone conclusion), will meet with Members of Parliament, the latter in a “question and answer session” moderated by a law professor.

Is this really a victory for transparency? In an excellent round table published by Maclean’s, Dennis Baker ― who, as we’ll see, is in many ways skeptical of the new appoitnment process, says that the “Government deserves credit for making the process more transparent and open.” Paul Daly is delighted that judges will no longer “actively lobby behind the scenes for elevation to the Court.” I am not so sure. There is simply no objective way to weigh the sixteen ― yes, sixteen ― criteria on the government’s wish list, and to classify the indefinite number of candidates whom the Advisory Board will consider according to these criteria. The same goes for the Prime Minister’s ultimate choice between as many as five candidates. Whatever reasons the Board and the government may give for their choices will be no more than exercises in ex-post self-justification, which does not count as transparency in my book, though the illusion of transparency the process creates may if anything be even worse than the current clearly opaque process. As for judges lobbying the Advisory Board or the Justice Minister behind the scenes, I see nothing in the government’s announcement preventing that from happening.   

In some ways, to be sure, the new process will be more transparent than those that were used before. In particular, it is pretty clear (although not explicit) that the Advisory Board’s shortlist will be public, which past shortlists were not (until leaked, or dug out by, the media). For my part, I do not find this change an improvement. I feel for those candidates who will be encouraged by the Board to apply and not shortlisted, and for those shortlisted and ultimately shortchanged. John Pepall asks whether MPs who take part in Parliamentary hearings with the Justice Minister “[w]ill … be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice,” he says ― sarcastically of course.

The other supposed achievement of the new appointment process is that, in prof. Daly’s exultant words,

[n]o longer will political appointments be made because of party allegiance or ideology rather than legal acumen. … Henceforth, a judge’s ability to ‘do law’ will become the primary criterion for nomination, bringing Canada into line with other countries where appointments are made entirely on merit.

With respect, this strikes me as an unlikely prospect. First, as already noted, the Prime Minister retains substantial discretion under the new process, having reserved for himself the prerogative of choosing from among up to five candidates, and the large number of subjective, imponderable criteria supposed to guide that choice mean that any selection can be retroactively justified in suitably lofty language. Nothing stops this discretion from being used ― or abused ― to appoint the candidate seen as the most ideologically friendly, or indeed the one deemed to best satisfy some set of demographic desiderata having nothing to do with legal acumen. The government’s reported frustration at being unable to find a judge corresponding to such demographic criteria to replace the retiring Justice Cromwell gives little hope that they will not overshadow ability “to ‘do law'” as it goes forward with its Supreme Court appointments.

And second, even if the Prime Minister has no intention of doing this, the fix is already in by the time he receives the Advisory Board’s short list ― and it is his government’s design of the Board that assures that this is the case. In the Maclean’s round table, Troy Riddell says that

The dominance of the legal profession on the [Advisory Board] coupled with the other non-legal members appointed by the government is suggestive of the kind of candidates the government wishes to choose (and those whom they do not want to choose—namely those with more conservative ideology). [The new process] is an improvement over the old system, but “politics” broadly defined will stay play a role.

Lori Hausegger responds by saying that

the representation [on the Advisory Board] of the Canadian Bar, the Canadian Judicial Council and the Federation of Law Societies—not to mention a progressive conservative as chair … —suggests [excluding “someone with a more conservative ideology”] is not the government’s main focus.

However, as prof. Riddell points out,

Organizations representing lawyers and judges tend to see themselves as “guardians” of the constitution—their vision of the constitution and the relationship between courts and Parliament is likely not as liberal as some activists would desire, but it is more liberal than what would be espoused by a conservative-oriented jurist. The overall result could be a lack of ideological diversity on the Supreme Court bench, which I think would be unfortunate.

I think prof. Riddell is right, and indeed I would put the point more strongly. The legal profession and the judiciary already are ideologically homogeneous. This is why Stephen Harper found it so difficult to appoint judges to his liking. An advisory Board dominated by representatives of an ideologically homogeneous profession will be homogeneous itself, and, as any such group, will reproduce and reinforce its members’ preferences in its decisions.

Like prof. Riddell, I think this unfortunate, because I believe that courts benefit from ideological diversity just as much as they benefit from demographic diversity. However, the lack of such diversity as such is not a significant criticism of the new appointments process, because it is every bit as possible for appointments made at the Prime Minister’s unfettered discretion to be just as homogeneous. The reason I belabour this point, rather, is that it shows that the pretense that the new process is somehow de-politicized to be a sham.

There is more to say about the new process, but this post is getting long, so I’ll try to be brief. I will note that I have already explained, in some detail, why I think that bilingualism should not be required of newly-appointed Supreme Court judges. In a nutshell, while I take the point that competency in both official languages is an aspect, and a very important aspect even, of legal competence, judicial appointments inevitable involve tradeoffs, because all potential judges have their strengths and weaknesses, and I would not foreclose the possibility that a candidate’s strengths elsewhere outweigh his or her linguistic shortcomings. The requirement of bilingualism ― and the government’s wish list, which states that it “has committed to only appoint judges who are functionally bilingual,” makes it very clear that it is a requirement and not, as prof. Daly says, merely “a desirable characteristic” ― is a serious mistake.

And then, there is the question of just how heavily demographic considerations, such as gender, background, or disability will weigh in the new process. Although the government has hinted that such factors will matter ― and, other things being equal, a demographically diverse court is better than a homogeneous one ― it is rather encouraging to see that “[e]nsuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society” is only one of the sixteen criteria on the government’s wish list, and indeed the very last one. As for the Advisory Board chairperson’s mandate letter, it does not mention this issue at all. Perhaps the government knows that its winks and hints will be enough ― but perhaps its approach really is a little less identity-focused than some of its fans might have hoped for, and its skeptics (yours truly included) feared.

This is ― perhaps ― a silver lining. But otherwise, the news of the shiny new appointment process for Supreme Court judges portends nothing good. The process conceals Prime Ministerial power as much or rather more than it diminishes it, while needlessly exposing unsuccessful candidates ― many of them, no doubt, sitting judges ― to public humiliation. It does not prevent the government from appointing judges on the basis of political or considerations or other factors unrelated to legal ability, and indeed ensures that ideology will continue to play a key role in judicial appointments. And it foolishly elevates bilingualism into a determinative consideration for appointment, reducing the pool of eligible candidates and doubtless depriving the Supreme Court of many fine judges. It is, in short, nothing to be happy about. As for the further question of whether it is also unconstitutional, I hope to return to it later this week.

Constraint and Candour

The case for a constrained judiciary ― but also candour about adjudication

At the website of Advocates for the Rule of Law (ARL), Asher Honickman has posted a reply to my post here on “How to Do Constitutional Adjudication” (which was itself a reply to some of his arguments in a previous ARL essay making “The Case for a Constrained Approach to Section 7” of the Canadian Charter of Rights and Freedoms). I would like to respond, focusing mostly on what I have been referring to as “democratic process failures” and their relevance to constitutional adjudication. I think that Mr. Honickman mis-characterizes my arguments on this point, but perhaps that’s because they were not clear enough to begin with.

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First, though, a note on what is, as I know from conversation, a persistent but perhaps unimportant disagreement between Mr. Honickman and me. I wrote that

law generally, and constitutional law in particular, contains an ineradicable moral and ideological element, so that there is nothing wrong with perceiving judges as being ― in part ― moral agents and political actors. [Moreover], the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Mr. Honickman responds by conceding that “[t]he judge can no more divorce herself from her subjective experiences, beliefs and values than can the historian, the economist, or the physician,” but arguing that “it does not follow that judges should embrace their fallibility.” He wants judges to be “constrained by a ‘rule of law’ culture” that will limit, if not altogether remove, the negative consequences of the judges’ inability to be entirely objective.

I have no quarrel with this, but think this misses the point I was trying to make, which is that moral values and ideology are not just something that judges bring into the law because they are fallible, but something it is built into the law ― perhaps into the very concept of law. Mr. Honickman’s example is a telling one: history, economics, and medicine are supposed to be amoral. They describe the world and suggest ways to change it, but whatever values their practitioners bring to their craft are external to the disciplines themselves. Law is different. It has, Lon Fuller argued, an “internal morality.” It is, Jeremy Waldron says, inherently protective of human dignity. The Rule of Law, which Mr. Honickman wants judges to uphold, is itself a moral concept. (This view is not universal ― Joseph Raz, in particular, famously challenged it. But I find it quite persuasive.)

What I meant, then, when I wrote that law is necessarily moral and ideological was not only, and not so much, that judges will inevitably fail to avoid bringing their subjective values into their work ― though they will, and I agree with Mr. Honickman that this is regrettable. What I meant is that even when judges perform their work to perfection and only apply such principles as can be readily inferred from the constitutional text (the Rule of Law, federalism, and democracy, say) and many of the text’s explicit guarantees (I’d mentioned freedom of religion, equality, and protection against unreasonable search and seizure), they are already engaged in a moral and ideological endeavour. The proper response to the unreconstructed Marxist or the social justice warrior who dismisses the Rule of Law and the rest of it as bourgeois ideology is not to say that it’s not, but to admit that it is, and that you will keep sticking to that ideology because it helps prevent Gulags instead of building them. That said, in practice, little turns on the difference between these two responses.

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Coming back to the issue of democratic process failures, my contention was not ― as it seems to me that Mr. Honickman took it to be ― that these provide a self-standing ground for judicial intervention, regardless of constitutional text or doctrine. The text, in particular, remains the overarching limit on judicial power, the law to which this power is subordinate. Doctrine is a more complicated case, and perhaps the ground of some disagreement between Mr. Honickman and me, because I would favour a somewhat less stringent approach to stare decisis than Mr. Honickman might prefer. Still, I share Mr. Honickman’s belief in the importance of constraint.

My reference to democratic process failures ― as well as that to pervasive political ignorance ― was specifically in response to Mr. Honickman’s insistence that the legislatures’ ability to resolve moral issues means that judges do not need to do so. Legislatures, I argued, will often fail to address moral issues, or will address them in ways that have little to do with the voters’ preferences or interests, and much to do with the interests of the legislators. The point is not that courts have a roving commission to find out and correct cases when this occurs, but that they should not hesitate to make moral judgments ― when authorized or required to do so by the constitutional text (and doctrine) ― under the pretext that the legislatures will take care of this.

I originally spoke of democratic process failure in my comment on Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, where the Supreme Court held that a blanket prohibition on medically-assisted suicide was inconsistent with section 7 of the Charter. Although there were problems with the way the Supreme Court articulated that decision, its interpretation of section 7 was at least plausible ― and in my view correct ― in light of the constitutional text and the doctrine as it had developed in the years since the Court first answered that question in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. The point of my discussion of democratic process failure was to address concerns about the “counter-majoritarian difficulty” said to be inherent in judicial review. Because of such failures, it is not the case that judicial review is always counter-majoritarian (though of course it often is).

This example shows that any court empowered to review the constitutionality of legislation is ipso facto “empowered to correct ‘democratic process failures,'” ― and thus that Mr. Honickman need not worry that such correction “will necessarily be ‘instrumentalist,’ finding and affirming rights that are not supported by the Charter itself, but which, in the judges’ view, make for good social policy.” To repeat, the Charter’s provision remain the source of the court’s authority and at the same time the constraint on this authority, while democratic process failure is the reason for which that authority is invoked. Accordingly, when faced with what it thinks is a democratic process failure, the Court’s role is not to figure out the preferences of a majority ― which, as Mr. Honickman correctly points out, may not be determinate ― but simply to do usual judicial task and invalidate the impugned statute or government decision if it is contrary to the constitution. At most, the presence of a failure obviates the case, if any, for judicial deference to the other branches of government.

I agree with Mr. Honichman that the questions that I raised about democratic process failures ― most basically, how do we know, and how can a court know, that one has occurred ― are difficult to answer, though it’s not clear to me that there can be “no objective standard” to help in the enterprise. But this difficulty does not undermine the case for judicial intervention, because, and so long as, that intervention is justified on another ground ― namely that of inconsistency between the government’s action and the constitution. Whether a democratic process failure has occurred might influence the deference that the court ought to show the government’s decision-making process, but the basic propriety of judicial intervention does not turn the answer to this question.

Ultimately, Mr. Honickman and I might be disagreeing less about the judicial role than about democratic theory. Where I see “persistent inability of the democratic process to produce laws that majorities would agree with and find desirable,” Mr. Honickman sees “legislatures [that] do not base their decisions on the polls at any given time and look instead to the national interest.” The fact, which he acknowledges, that a passionate (or, I would add, strongly self-interested) and well-organized minority can prevail over the majority is not a bad thing in his view ― and, I suppose, fully consistent with the national interest. Even if democracy malfunctions, we should recall that it is “the worst system except for all the others” and correct its “imperfections … from within.” To me, this sounds like saying that because a free market is better than any alternative, we should not bother trying to correct market failures and hope that the market will correct itself, or that because government is necessary, our only response to government failure should be to improve regulatory mechanisms, instead of privatizing and deregulating. A few people accept the former argument, and many the latter, but to me, both seem fallacious. Democracy is indeed better than the alternatives, but if its shortcomings can be mitigated by means external to its normal processes ― such as judicial review, then so much the better.

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I share Mr. Honickman’s concerns about judges exercising their power without the constraints of constitutional text and legal doctrine. However, I do not think that the proper response to these concerns is to say that judges ought to be entirely non-ideological, and that they should leave matters of moral judgment to the legislative process, however flawed that process is. Like Mr. Honickman, I believe that judges should be enforcing constitutional rules, but I do not mind acknowledging the moral and ideological dimensions of many of these rules as well as the shortcomings of democracy, which judicial review can help remedy.