The Book

This blog serves to update Craig Forcese and Aaron Freeman, The Laws of Government: The Legal Foundations of Canadian Democracy (2nd Ed., Irwin Law 2010). It is also a depository for comments relating to two public law course taught by Craig Forcese at the University of Ottawa, Faculty of Law: CML 1104 Public Law and Legslation and CML 2212 Administrative Law.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Monday
Dec012014

Supreme Court Appointments: Two Steps Backwards, None Forward

Update: Laws of Government (LofG), Chapter 4, judicial appointments, pp.263 et seq.

I will begin with the usual caveats:  I don't know Madame Justice Côté.  I have no reason to doubt the endorsement her Supreme Court appointment has earned from the legal profession's establishment. 

But just like good can occasionally come of any bad process, that goodness is not reason to go silent on that process.  This appointment is the first to follow the disastrous events known as the "Nadon affair".  That debacle has many villains.  None of those villains was Justice Nadon himself.  But one of them was the process followed: a deck loaded with legally doubtful options that was considered by a deficient parliamentary process, and produced fall-out of all sorts when it all collapsed.  That fall-out now includes abandonment of a flawed appointment system in favour of an even worse one: We have now retreated from any kind of openness in Supreme Court appointments. 

I haven't seem much blow-by-blow reporting on what exactly took place, but I take it the approach employed was the one used for all appointments prior to that of Justices Charron and Abella.  This "traditional" approach was described by then-Justice Minister Irwin Cotler and described in LofG, p.263:

First, the minister identifies potential candidates, either through his or her own devices or via nomination. The minister consults with the chief justice of the Supreme Court, and occasionally that court’s other judges. He or she also singles out key individuals from the province or region associated with the empty spot on the court: at least one senior member of the CBA and law society, and the attorney(s) general and chief justice(s) of the courts of the provinces concerned. Typically, the candidates identified via this processes are current judges of the country’s Courts of Appeal, although they may also be senior members of the bar or academia.

Second, the minister assesses the candidate, according to three broad criteria: professional capacity;personal characteristics; and diversity. The minister’s assessment of professional ability is assisted by “jurisprudential profiles” compiled by the Department of Justice, reviewing the candidate’s judicial writings as assessed by their “precedent-setting value” and the outcome of any appeals of their decisions.

The minister discusses the candidates with the prime minister. A candidate is selected and the prime minister recommends this person to the Cabinet.

The appointment follows.  My colleague Adam Dodek puts it well in some of his writing about the traditional process: “more was known about the process for electing a new Pope than about the process for selecting a new Supreme Court Justice".

This model was abandoned (or at least supplemented) by the Martin government in favour of a parliamentary hearing of sorts, a tradition then maintained and enhanced (albeit modestly and occasionally in the breach) for the first several Harper appointments.  Few observers considered this token hearing perfect.  But it did create a form of transparency and public engagement on appointments.  More than that, it was a base on which to build.

No more. And so, I cite another passage from LofG, p.269:

...the increased power of the judiciary under the Charter requires an urgent rethink of the appointments process. In this respect, we are discomforted by a system that depends exclusively on the good faith of the executive branch in selecting meritorious candidates. ...[W]e believe that if Canada has been blessed with excellent Supreme Court justices, this is the fortunate byproduct of an honourable, and once widely shared, political culture opposed to politicizing Court appointments. It is not the result of robust checks and balances in the appointments process minimizing the likelihood of such politicization. We fear that this shared political culture is now waning. Accordingly, preserving the calibre of an independent judiciary — and ensuring that it remains (or becomes, in the view of critics) depoliticized — will require a rethinking of our antiquated appointment process.

Nothing that has happened since my co-author and I wrote that passage in 2005 changes my mind.  Indeed, the gamesmanship of the Nadon affair seems to affirm it.  So badly botched was that process that the return to the insularity of the traditional process seems to have relieved the profession.  (I am somewhat cynical about this response, since the profession is now restored to an especially privileged, backroom position in opining on candidates.) 

It was good politics to made the latest appointment a moderate choice.  But politics is capricious and whatever check it places on executive excess cannot be guaranteed to last.  Any process that cannot restrain politics in the interest of the integrity of the justice system deserves condemnation, not a sigh of relief.

We have more checks and balances for lower court judge appointments, albeit ones that have been weakened at the federal level under the current government.  It is well past time to legislate an effective, meaningful appointment process, starting with Supreme Court appointments.  (And no, I do not believe that anything in the Senate reference or the Supreme Court's Nadon decision would preclude careful legislative rules.)

I have my favourite alternative appointment models, as set out in LofG.  Others, have their's.  All are better than the new status quo. 

Thursday
Nov202014

Angels on Pinheads and "Internal Standards of Review" in Administrative Law

Every year, at least one student in my administrative law class wonders whether (or assumes that) standard of review concepts applicable as between courts and tribunals also apply as between two levels of administrative tribunals. 

As a general rule, I am allergic to the idea that judicial review standard of review concepts should inspire how appellate administrative tribunals relate to tribunals of first instance.  I have long considered this an idea attractive only to those caught up in esoteric doctrine without an appreciation of the principled bases of judicial review standard of review.  As something who has, however, long advanced the idea that all standard of review issues should be cured through legislative enactment and not the idiosyncratic musings of judicial minds, I also accept that the legislature can dictate quite a different relationship between appellate and lower administrative tribunals. 

This week, I was pleased to be invited by the members of the Appeal Division of the new Social Security Tribunal to ponder these issues, in the context of their governing statute.  I reproduce my own idiosyncratic musings here.

***

Thank you for your invitation.  I come to you not as someone with expertise in relation to your tribunal, but as a person with a much more generic role as a professor of administrative law.  After discussions with Vice-Chairperson Wake, my thought was to facilitate a discussion on the state of play on the question of so-called “internal standards of review”, and then consider implications for the Social Security Tribunal.  By internal standards of review, I mean the question of “how much deference one level of administrative tribunal may owe another, in the course of an administrative appeal from one to the other”.

To tee up the debate: there is what I consider a perplexing and idiosyncratic line of jurisprudence suggesting that deference analysis developed in a judicial review context may be imported into the statutory administrative appeal process.  I’ll highlight aspects of that jurisprudence, and then I want to answer this development with an invocation of both authority and principle.  And then I shall turn to some thoughts on relevance to your activities. 

My take away is this: yes, standard of review analysis matters for the Appeal Division, but not for the General Division.  And it matters not through false analogy to judicial review jurisprudence, but because the statute matters.

Developments in the Internal Standard of Review Jurisprudence

So first, what is happening with internal standards of review?  Well, quite a lot, at least in Alberta, at the Alberta Court of Appeal.  The Alberta line of cases stems from Newton, a 2010 decision involving a police disciplinary proceeding.[1]  At issue, in part, was the standard of review to be applied by the appellate administrative body in relation to the decision of an initial administrative decision-maker. 

To cut to the chase, the Court of Appeal held (in essence) that the appellate tribunal owed a standard of reasonableness to the initial administrative decision-maker.  In so doing, it concocted a test that mixed together the Dunsmuir line of judicial review cases and also the Supreme Court’s jurisprudence on review standards as between trial and appellate courts (most notably, the 2002 decision Housen)

Newton has since been followed by 5 cases, and cited in several dozen more.  None of the cases in which it has been followed are from outside Alberta.  In fact, some jurisdictions have exhibited a distinctive lack of enthusiasm for Newton.  The BC Supreme Court, for instance, has critiqued the decision,[2] and regarded it as confined to a particular statutory context.  And while the Quebec Court of Appeal has not cited Newton, it has clearly struck its own course on this issue.  In cases like Parizeau,[3] the Court has preferred an appellate like approach: deference on fact-finding, no deference on other errors.

Federally, Newton has been more warmly (and it turns out, wrongly) received by the Refugee Appeal Division.  In 2013, that tribunal followed Newton,[4] concluding “except for strict issues of law or natural justice, it is appropriate for us, as members of the RAD, to extend the same deference to the decisions of the RPD. Indeed, this deference is the same as that which courts of law are required to extend to decision-makers of first instance when the issue is a question of fact or a question of mixed law and fact.”  And it would seem other RAD decisions apply reasonableness pretty much across the board.

To date, the Federal Court has mentioned Newton in 8 judicial review cases stemming from RAD decision.  These Court decisions have been hostile to the view that the RAD should review the RPD on a deferential standard, except where at issue is fact finding (and especially credibility findings). To wit: deference is owed where the issue concerns the RPD’s assessment of the credibility of a witness or “where the RPD enjoys a particular advantage in reaching such a [factual] conclusion.”[5] 

To cite the summary contained a Federal Court decision issued on October 28: “… this Court clearly rejected the position taken by the RAD in the decision under review, that it owes deference to the findings of the RPD and that it should apply the reasonableness standard, as this Court does when reviewing the RPD decisions that are not subject to an appeal before the RAD.”[6]

It is also the case, however, that while the Federal Court has been consistent in rejecting the idea that the RAD is to be reflexively deferential to the RPD, it is not been entirely consistent on why it has taken this view, or exactly what deference is in fact owed.

And on this issue, it is worth examining the entrails of probably the most interesting treatment of this subject to date from the Federal Court, Alyafi v. Canada (Minister of Citizenship and Immigration) (released October 8, 2014).[7]

Here, Justice Martineau pointed to uncertainty in the Federal Court’s line of cases as to what deferential standard of review should be applied by the RAD to fact finding by the RPD.  Some courts are content with “reasonableness” drawn from the administrative law caselaw.  Others speak of “palpable and overriding error”, drawn from the caselaw on appellate review of trial court decisions.  Some courts see the two standards are effectively identical. 

Others see the standards as different.  At first blush, this standard appears even more deferential than mere reasonableness.  In a Quebec Court of Appeal case cited in Alyafi:

 Palpable and overriding error is an error that, in its undeniability -- and therefore not a difference of opinion on the assessment of the evidence - determines the outcome of the dispute in that the conclusion of the trier of fact, i.e. the result of his or her decision, cannot hold, thus, ipso facto, making the decision unreasonable.

(I find myself wondering if we should call a palpable and overriding error one that is patently unreasonable!)

On the other hand, the Federal Court in Alvarez applied this palpable and overriding error test in a manner that made it seem more (not less) demanding of the first level decision maker than the reasonableness standard: “the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. … The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes.”

So far I think I’ve demonstrated clearly that administrative law deserves its reputation as a close cousin of metaphysics.

But let me try to piece this together in a manner that makes it somewhat more operational and less dysfunctional.  And I’ll take my signal from magazines that always seem to sell well when they promise “5 easy steps” to something or other.   I don’t have steps.  I don’t want to propose a variation on the Newton test, for example.  But I do have three easy principles that should guide any approach to internal standards of review. 

Principle 1: Don’t Lose Sight of the Big Policy Picture

Any student of the history of deference in judicial review knows that deference reflects, at heart, judicial humbleness.  If you read cases from the Supreme Court like Corn Growers all the way through to many of the most recent standard of review cases, deference is viewed as recognition that generalist courts are often ill-equipped to second-guess the decisions of specialized tribunals.  It remains the case that considerations of relative expertise are at the heart of modern standard of review analyses.  Witness the almost ironclad presumption in the most recent post-Dunsmuir cases of deference where at issue is construals of the tribunal’s home statute.

Relative expertise is the animating spirit of judicial review deference. 

It is a policy position that has no place in discussions of internal standards of review.  Here, we have two specialized, expert bodies, one that hears appeals from the other and nothing else.  One presumes that a body whose sole role is to hear appeals on the same home statute as applied by the original decision maker is equally expert to that original decision maker.

The entire justification for basically the whole corpus of judicial review standard of review jurisprudence is entirely non-applicable to internal reviews.  It is a category error to apply it.

Principle 2: Common Sense Does have a Place in Administrative Law

Several courts reacting to Newton raise the perplexing issue of: “why would the legislature want deference in internal appeals in a world in which the decision is ultimately reviewed in court on a deference standard”.  We’ll call this the “deference squared” problem. 

It makes no sense to pile deferential review on deferential appeal. If a legislature creates an internal appeal, the presumption, absent competing statutory language, should be assertive appeal.  Any other approach assumes the legislature’s aim was to increase expense and limit relief for any prospective appellant.  A parsimonious legislature would surely have cut out the middle level of internal appeal if all you get is the same deferential review to which you are entitled by judicial review.  We’ll call my observation the “maxim of administrative parsimony”.

Principle 3:  It’s Always About the Statute

This is by far the most important consideration: the statute.  It is entirely conceivable that Parliament intended something quite unique in a specific tribunal context.  The structure of the tribunal may signal that Parliament intended a more complex arrangement than just decision, followed to full-blooded appeal and then (usually deferential) judicial review.

Something that is often forgotten in administrative law is that, at heart, it is a glorified species of statutory interpretation.  And even in the area of internal standards of review, whatever pie in the sky standards courts may devise, they all acknowledge that statutory language matters.  For instance, many courts seem preoccupied with deciding whether the internal appeal is a full appeal de novo, or a more limited creature.

So the statute is everything.

To summarize my principles: do not uncritically think that all that jurisprudence on judicial standards of review matters one wit in an internal appeal context; do presume that the legislature was trying to create non-duplicative types of appeal followed by judicial review; but, three, above all else always be guided by the statute and all the maxims of the statutory interpretation that are often invoked, but unevenly applied in administrative law.

So let me apply these principles to your tribunal.  In your case, I think it is all about the statute:

You have a three-part administrative appeal system, as I understand it: Original decision within the bureaucracy (e.g., the Commission under the Employment Insurance Act).  First level appeal to the General Division.  Second level appeal, with leave on matters decided on the merits, to the Appeal Division. 

Your statute also imposes progressively narrower grounds of appeal.  So, as I understand, appeals to the General Division, under, for example, s.113 of the Employment Insurance Act are as of right and are not limited to specific grounds.

In comparison, a further appeal on the merits to the Appeal Division is with leave and is limited to grounds that echo the grounds for judicial review found in the Federal Courts Act.

And then, judicial review of the Appeal Division decision is done by the Federal Court of Appeal (at least in relation to decisions on the merits).

The legislative history is also potentially relevant.  Here, I have only limited knowledge, but I believe that this new system replaces, among other things, appeal from employment insurance commission decisions to a board of referees and then to an umpire (actually a Federal Court judge).  Judicial review of the umpire went then to the Federal Court of Appeal.  And the language on the grounds of appeal open to the new Appeal Board echoes that on grounds once applied in the old umpire appeals.

I think this history matters.  The jurisprudence under the old system suggested that the umpire was required to apply an internal standard of review.  Question of law were reviewable, for example, on correctness.[8]

So let me try to piece it together with reference to my trilogy of principles.  So principle 1:  Relative expertise does not matter here, and so there is no reason to embark on a JR style standard of review analysis.  (I note that the issue of the Appeal Division’s expertise seems to have been asked and answered in a different factual context by the Federal Court in Bellefeuille).[9]

Principle 2: We should not assume that Parliament intended appeal to the General Division to require deference to, e.g., the Commission.  Logic dictates that the existence of the internal appeal is designed to allow a close look over the shoulder of the Commission.  Indeed, the fact that there is then a further appeal (albeit with leave) to the Appeal Division strongly militates against the application of an internal standard of review to be conducted by the General Division.  It would make little sense to have government decision, followed by deferential first appeal, followed by another deferential appeal, followed by potentially deferential judicial review.  That violates my “maxim of administrative parsimony”. 

This observation bleeds into Principle 3: the General Division’s seemingly broad powers in terms of appellate authority also hints at sweeping appellate powers, to the level of de novo review.  These factors, like those at issue in the RAD cases in Federal Court, suggest that JR SOR concepts are inapplicable. Instead, the General Division should be thinking of the standards that govern appeals from trial courts to courts of appeal: correctness on law and overriding and palpable error for fact.

My assessment of the Appeal Division is a bit different.  Principle 1 is the same.  But in relation to Principle 2, it seems to me that the “maxim of administrative parsimony” points in a different direction.  I am not inclined to assume automatically that we should assume appeal de novo piled on appeal de novo.  This is a conclusion compounded both by the statutory language (limiting the grounds of appeal for the Appeal Division to ones analogous to grounds of review in the Federal Courts Act) and also the past jurisprudence involving umpires.  As noted, the latter jurisprudence required umpires to apply an internal standard of review.  I am also cognizant that judicial review lies with the Federal Court of Appeal, pushing ultimate judicial review up the court hierarchy – a possible signal as to the status of the Appeal Board as a not “just your usual, run of the mill” administrative body.

All told, therefore, I think these factors mean that the Appeal Board should be in the business of applying an internal standard of review analysis in deciding General Division appeals.

But I also don’t think this matters much in practice.  Yes, the Appeal Tribunal should probably engage in a pro forma standard of review exercise.  But as already noted, that exercise hinges now mostly on relative expertise.  I do not think there is a compelling case to be made that the relative expertise of the General Division is greater than that of the Appeal Division.  In other words, this key variable in the SOR analysis is neutralized.  That leaves us looking for other signposts, including other SCC language to the effect that on questions of law, deference may be less common.

In the result, my instinct is that the Appeal Division will end up with legal questions reviewed on correctness, and questions of fact with deference. 

But unlike the RAD, I think the Appeal Division can handsomely sidestep the esoteric discussion of whether reasonableness = palpable and overwhelming error.  Since the Appeal Division is applying the JR SOR analysis, its only choices are reasonableness or correctness.  And reasonableness would be the standard for questions of fact. 

(As an aside, if I am right in my analysis, it is the General Division that would need to be on the hunt for palpable and overwhelming error in its assessment of facts.  And then the Appeal Division would simply need to decide whether the outcome of that hunt was reasonable.)

Those are my two cents.  When it comes to my predictions, time will tell if I am even close to being correct, or even reasonable.

 


[1]           Newton v. Criminal Trial Lawyer's Assn, 2010 ABCA 399.

[2]           British Columbia Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331

[3]           Parizeau c Barreau du Québec, 2011 QCCA 1498

[4]           RPD File No. MB3-01975

[5]           Yetna v. Canada (Minister of Citizenship and Immigration), 2014 FC 858; Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 79; Alvarez c Canada (Citoyenneté et Immigration), 2014 CF 702; Triastcin c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2014 CF 975; Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952; Spasoja c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2014 CF 913; G.L.N.N. v. Canada (Minister of Citizenship and Immigration), 2014 FC 859; Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711.

[6]           Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022.

[7]           2014 FC 952.

[8]           See, e.g., Canada (Attorney General) v. Lemire, 2010 FCA 314; MacNeil v. Canada (Employment Insurance Commission), 2009 FCA 306.

[9]           Bellefeuille v. Canada, 2014 FC 963.

Thursday
May292014

Privacy Commissioner & Emerging Controversy over Appointment

On May 29, 2014, the Prime Minister announced his pick for the next Privacy Commissioner, an officer of Parliament post under the Privacy Act.  The nominee, Mr. Daniel Therrien, is a career Justice lawyer presently serving as an Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice.  The official opposition reacted negatively to the PM's nomination, and called on the PM to reconsider Mr. Therrien.

In this post, I rehearse the legal issues tied to appointment of the Privacy Commissioner.  Under the Privacy Act, the Commissioner is appointed by the Governor in Council, "after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons".

In the following extract from Laws of Government (at 242), Freeman and I trace past controversy over the appointment process, flowing from the resignation in 2003 of the then-commissioner:

[Some MPs] questioned a process in which Parliament was asked to “rubber-stamp” a government-selected nominee, without vetting fully alternatives:

I am sure that there are Canadians who would have been great nominees. Parliament could have had some role in short listing them and suggesting to the government that it select from half a dozen people. This would have been a much more meaningful process and would have helped, in the public’s mind, to reduce the cynicism about parliament being a rubber stamp for things that are decided elsewhere. Let us not kid ourselves. This was clearly decided elsewhere.[1]

...[T]he controversy [surrounding the Privacy Commissioner in 2003] prompted the Commons Standing Committee on Government Operations and Estimates to recommend to the Commons a study of officers of Parliament appointments.[2] In its words, “[t]he appointment processes that currently apply to privacy commissioners and other officers of Parliament may be deficient. The imbalance, in practice, between the respective roles of the Governor in Council and Parliament in such appointments warrants examination.” As a consequence, the committee recommended a comprehensive review of officers.[3]

The subsequent standardization of the appointment process for most officers of Parliament made by the 2006 Federal Accountability Act arguably increases parliamentary scrutiny of candidates.  Not least, approval of these candidates by Parliament is preceded by a process in which the GIC consults with the leaders of the official political parties in Parliament on the candidate.  This last innovation – something that was not required under prior versions of the statutes governing most officers – presumably means that opposition politicians turn their minds more actively to the identity of candidates than was the case when candidates were simply presented to Parliament as a whole for approval by the government.

 

What Parliament did not enact were ground rules on the credentials and expectations that might guide selection of candidates.  That means that the issue remains high politics (or low politics, depending on your perspective).

While I have seen no reporting on the issue, my assumption is that the Prime Minister did consult with Messieurs Mulclair and Trudeau before announcing his nomination.  My assumption is that Mr. Mulclair did voice his concerns during that consultation, which the PM has now rejected.  The matter will now be decided by the senate and House of Commons, and each will need to pass a resolution approving the appointment.  The government enjoys a majority in both houses, and can secure passage of the resolutions.  Along the way, however, there is risk of acrimonious political debate.

There would be considerable virtue in clearer expectations on the qualities nominees should possess.  And there would also be considerable virtue in party leaders hammering out consensus on such matters behind closed doors.  Contentious nominations visit unfairness and significant collateral damage on people who deserve much better, and risk tarnishing the institutions which appoint and to which they are appointed.  The Justice Nadon matter is an obvious case in point. Controversy over SCC appointments has likely put blood in the water in relation to similar matters.  We seem, in Canada, to be entering our "Robert Bork era". 

 


[1] Mr. Bill Blaikie (Winnipeg–Transcona, NDP), Hansard, no. 124, 36th Parl., 2d Sess. (28 Sept. 2000).

[2] Commons Standing Committee on Government Operations and Estimates, Matters Relating to the Office of the Privacy Commissioner at 18–19.

[3] Ibid.

 

 

Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Wednesday
May282014

Politicized Judicial Appointments & the Absence of Checks and Balances

Recent reporting and commentary allege (rather persuasively) that the Harper government has sought to politicize appointments to the Supreme Court.  The government may do so with relative ease because the appointments system has depended on a shared political culture, not institutional checks and balances.  That shared political culture no longer exists.  In our 2005 edition of Laws of Government (and again in our 2011 edition), Freeman and I expressed concern with the Supreme Court appointments process as follows:

Repeated objections have been raised ... to the inscrutable nature of the appointments process, and the potential for abuse it creates. As the Commons justice committee puts it, the secretive process of selecting Supreme Court judges “could lead to the perception that appointments may be based upon improper criteria.”[1]

Depending on your political leanings, this perception may prove well-founded. Indeed, in the 2004 federal election, Minister Cotler himself reportedly claimed that the Conservatives would politicize the Supreme Court by choosing judges on ideological, not purely professional, grounds.[2] These comments followed remarks made months earlier by then-Alliance leader Stephen Harper, reportedly accusing the Liberals of stacking the bench with “pro-gay” judges.[3]

Harper’s comments suggest that at least one side in the “culture wars” — that represented by the Conservative Party and its academic brain trust — perceives the judiciary as already tainted by political bias, and thus a legitimate target. As the gay rights issue suggests, these critiques are often motivated by judicial decisions viewed as ideologically undesirable by critics.[4] In other instances, the complaints are predicated on more universal principles, not least democratic accountability.[5] Even this latter, laudable principle simplifies, however, the complex issues at stake.

As Professor Ed Ratushny has noted, pure democratic accountability is inconsistent with the very attribute elemental to a functioning judicial system — judicial independence:

[i]t is incompatible with the judicial role for judges to view themselves as representatives of particular “constituencies.” That is a political rather than judicial function. Judges may act “politically,” in the broad sense of that term, when their decisions involve policy choices. But those choices are made on different criteria by judges than by politicians. … The Supreme Court of Canada is not a “democratic” institution even though it is an essential institution within our democratic system under the rule of law. Its role is not to be democratic, but to be judicial. It is not elected by the public and it is not accountable to the public for the content of its decisions.[6]

Professor Lorraine Weinrib has made similar comments.[7]

There is, however, another way of examining the appointments issue through the prism of judicial independence. Professor Martin Friedland, in his influential study on judicial independence, notes several connections between a credible appointments process and judicial independence. First, the better the quality of judge, the less likely subsequent disciplinary action will be required, with its concomitant stresses on independence. Second, weak appointments diminish the status of the judiciary in the public mind, fostering a climate potentially receptive to interference with judicial functions. Last, politically motivated appointments may prompt legitimate questions about a judge’s actual independence and impartiality.[8] As is discussed elsewhere, the test for judicial independence hinges, in part, on whether bias is reasonably apprehended (or not) by an objective observer. The opaque Supreme Court selection process described by Minister Cotler to the Commons justice committee has allowed dubious selections in the more distant past and might do so again in the future. To that extent, it potentially imperils judicial independence, measured on a reasonable apprehension standard. The fact that Court appointments may not have been (in fact) tainted by partisan or truly ideologically driven selections since at least the 1980s does not diffuse fully these concerns. In the words of Professor Jacob Ziegel: “If major controversies have been avoided over the appointment of Supreme Court judges since the adoption of the Charter … this is largely because successive Prime Ministers — Trudeau, Mulroney, Chrétien — have shared similar constitutional philosophies and because the full impact of the Charter has not yet sunk in.”[9]

Echoing Minister Cotler’s election-time reproof, Professor Ziegel also predicted consequences were parties not sharing this classic consensus to take office: “Without the restraining force of an independent nomination procedure or confirmation process appointments would become more polarized, as the appointees would be selected on the basis of their … political and social philosophies.”[10]

We share these concerns. While we join others in acknowledging the general excellence of recent Supreme Court appointments, we agree that the increased power of the judiciary under the Charter requires an urgent rethink of the appointments process. In this respect, we are discomforted by a system that depends exclusively on the good faith of the executive branch in selecting meritorious candidates. Like Professor Ziegel, we believe that if Canada has been blessed with excellent Supreme Court justices, this is the fortunate byproduct of an honourable, and once widely shared, political culture opposed to politicizing Court appointments. It is not the result of robust checks and balances in the appointments process minimizing the likelihood of such politicization. We fear that this shared political culture is now evaporating. Accordingly, preserving the calibre of an independent judiciary — and insuring that it remains (or becomes, in the view of critics) depoliticized — will require a rethinking of our antiquated and traditional appointment process.



[1] Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Improving the Supreme Court of Canada at 4.

[2] Cristin Schmitz, “Cotler, Arbour Differ on Risk Tory Government Would Politicize Supreme Court,” The Lawyers’ Weekly, 18 June 2004.

[3] Tonda MacCharles, “Liberals Rigged Same-Sex Rulings, Harper Charges,” Toronto Star,  5 Sept. 2003.

[4] See also the discussion in ch. 2 of this book.

[5] See, e.g., Mr. Reed Elley (Nanaimo–Cowichan, Ref.), Hansard, 36th Parl, 1st Sess. (1 April 1998) (“Judges are civil servants. What other recourse do the people of Canada have to hold the judiciary accountable except through their elected representatives? If we in this House do not have the freedom to be able to criticize the judiciary of this country, then who does?”); Ted Morton, Reforming the Judicial Appointment Process for the Supreme Court of Canada, Presentation to the Commons Standing Committee on Justice and Human Rights (April 2004) (“But when a national court of appeal is given the function of constitutional review, of supervising the laws passed by Parliament, it is no longer simply enforcing laws; it is also making law. In a 21st century democracy, law-making institutions are expected to be accountable and representative, not independent.”).

[6] Ed Ratushny, “Confirmation Hearings for Supreme Court of Canada Appointments: Not a Good Idea!” in Pierre Thibault et al., eds., Essays in Honour of Gérald-A. Beaudoin: The Challenges of Constitutionalism (Cowansville, PQ: Editions Y. Blais, 2002).

[7] Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Evidence (23 March 2004) (“It is regrettable, I think, that we have entered into this process of thinking about the appointing authority as an offshoot from the new government’s concern with the democratic deficit. The democratic deficit is primarily focused on the interplay between the legislature and the executive and properly concerns a number of appointments that are made that could benefit by further engagement by parliamentarians. However, the Supreme Court — and the other courts as well, but in particular the Supreme Court — is a very particular type of institution. We have to have concern that we not analyze the appointing power only or even primarily in the context of the democratic deficit question.”).

[8] Friedland, A Place Apart at 233.

[9] Institute for Research on Public Policy (IRPP), “Merit Selection and Democratization of Appointments to the Supreme Court of Canada,” by Jacob Ziegel, Choices (June 1999) at 10.

[10] Ibid.

 

Tuesday
May272014

When does independence begin? Judicial appointments & the Constitution

Commentators and the legal community have expressed renewed interest in the question of Supreme Court judicial appointments, in the months since the Nadon appointment and the resulting Supreme Court decision.

Freeman and I write on this issue in Ch 4 of Laws of Government (2011), and I have uploaded (with permission from the publisher) the 40 pages or so on the topic.  (My comments on the Supreme Court Act and the constitutional amendment formula on p.265 have obviously been overtaken, although perhaps not entirely superseded, by the Nadon decision.  But other than that, the issues remain ripe).

The question worth addressing here is whether all the discussion about a renewed, revised, improved, abandoned, tainted, or troubled (depending on the commentator) Supreme Court appointment process is entirely the domain of politics and policy, or whether there are constitutional law issues in play.

By this I do not mean the question of the ultimate appointment authority.  The Governor in Council appoints Supreme Court judges, pursuant to the Supreme Court Act.  And that aspect of the Supreme Court Act may well (and indeed, is probably given the Nadon decision) subject to one of the amendment formulae in the Constitution Act, 1982.  And by constitutional convention, the GG acts on the advice of Cabinet.  But having the GG as the final appointer on the recommendation of Cabinet does not address the question: "how are names brought to Cabinet".

For all non-SCC federally-appointed judges, the Governor General (or Governor in Council) also does the appointing, either under s.96 of the Constitution Act, 1867, the Federal Courts Act or the Tax Court Act.  Here, however, names are vetted by judicial advisory committees, and have been (with changes) since 1988.  These bodies attach recommendations, conveyed to the political executive.  I am not aware of any serious complaint that this vetting is unconstitutional (although there have been complaints that this vetting is imperfect).

So all told, prior vetting with recommendation prior to names wending their way to Cabinet is entirely permissible.

The more interesting issue is whether it may also be constitutionally obligatory, because of judicial independence.  This is a heretofore unorthodox thought (although, as noted below, not entirely without foundation in the musings of the Supreme Court).  On the other hand, it is probably no more (administratively) radical than what the Supreme Court did in the PEI Reference Case, when it crafted the constitutional requirement of independent salary commissions implicated in judicial pay decisions.

Judicial Independence

It is worth a quick tour of the concept of judicial independence.  Here's an extract from Laws of Government (at p. 57):

Judicial independence, says the Supreme Court, is the “lifeblood of constitutionalism in democratic societies.”[1] It is “essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law.”[2]

Judicial independence requires “objective conditions that ensure the judiciary’s freedom to act without interference from any other entity.”[3] It ensures that “judges, as the arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference.”[4] By insulating judges from retaliation for their decisions, it guarantees that “the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals.”[5]

Judicial independence also preserves the separation of powers between the three branches of our democracy by “depoliticizing” the relationship between the judiciary and the other two branches: “the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely … members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.”[6]

Judicial independence is entrenched in the Constitution Act, 1867, the Charter, s.11(d) and the "unwritten" constitution.  It has a number of recognized aspects -- both of an individual and institutional nature.  I reproduce our summary from Laws of Government

In all its facets of security of tenure, financial independence and administrative independence, it is a doctrine that begins when a judge becomes a judge. So is it nonsense to imagine that the principle spills over to the process by which a judge becomes a judge? 

On the contrary, I think judicial independence issues are necessarily engaged by the appointment process.  If a lawyer agrees to favour government interests on condition of being appointed a judge, surely that judge's independence is impaired.  (For different facts, same dilemma, see Angevine v. Ontario, On SC). There is no magic curtain that separates judge from prior conduct upon appointment.

Indeed, the vetting process employed for non-SCC judges includes consideration of "potential impediments to appointment" that include unethical or criminal past conduct.  The existence of these considerations, I would posit, go to whether the person's appointment to the bench would reduce confidence in the administration of justice.  As the famous Landreville matter suggests (whatever its merits on the facts), conduct prior to appointment may justify termination of a judge's office, even with robust security of tenure protections.

So point 1: judicial independence questions can arise from events that pre-date appointment, at least where they have the affect of tainting the actual or perceived integrity of the judge.

The next issue is whether an entire system of appointment that is (now) in disrepute raises judicial independence concerns.  Or put another way: if a judge is appointed via a political process that creates serious doubts about the merit of judicial appointments, does it transgress constitutional minimal expectations?

Judicial independence, the Supreme Court has admonished repeatedly is necessary to uphold public confidence in the administration of justice.  It made this point in the PEI Reference Case (at para. 180), when it made a system of independent judicial salary commissions a constitutional necessity and required that rejections of this body's recommendations be supported by reasons.

And in Ell v. Alberta, it noted (at para. 3): "The principle of judicial independence must be interpreted in light of the public interests it is meant to protect: a strong and independent judiciary capable of upholding the rule of law and our constitutional order, and public confidence in the administration of justice."  In that case, the Supreme Court upheld changes to the security of tenure and appointment qualifications of Alberta Justices of the Peace.  Along the way, it underscored the importance of the independent judicial council that had recommended these changes:

45     Historically, there was a widespread belief that appointment to office was solely on political grounds. The McRuer Commission (1968) described the situation in Ontario as a "mockery of judicial office [that is] bound to depreciate respect for law and order in the community" (p. 518). It is hoped that patronage in the appointment process has been at least lessened if not eradicated since the time of that report. Unquestionably, the perception that appointment to judicial office is political in nature undermines public confidence in the administration of justice.

46     One step towards ameliorating this perception was to require that candidates for office meet qualifications decided upon by an independent committee that is divorced from political influence. In this appeal the Alberta amendments stipulated that no person may be appointed as a sitting or presiding justice of the peace unless he or she meets qualifications determined by the Judicial Council: s. 2.1(1). The setting of qualifications for office by this independent committee counters the perception of patronage in the appointment process.

47     The delegation of this task to an independent Judicial Council also ensures that appropriate qualifications are set by a body that is familiar with the duties demanded of justices of the peace and the level of education and training required to discharge those duties. ...

(emphasis added).

Point 2: The perception that appointment to judicial office is political in nature undermines public confidence in the administration of justice, a core precept of constitutionalized judicial independence.  The setting of qualifications for office by an independent committee counters this perception.

Based on this language, I believe that the proposition "judicial independence requires a depoliticized, merit based vetting of judicial candidates in order to secure public confidence in the administration of justice" to be an entirely defensible proposition.

So next question, given recent developments, should the application/action for a declaration be brought in Federal Court or Quebec courts?


[1] Beauregard v. Canada, [1986] 2 S.C.R. 56 at 70.

[2] Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405 at para. 34.

[3] Ell v. Alberta, [2003] 1 S.C.R. 857 at para. 18.

[4] Ibid. at para. 21.

[5] Ibid. at para. 22.

[6] Re Remuneration of Judges, [1997] 3 S.C.R. 3 at para. 140.