The Power of Perspectives

The Canadian Bar Association

Léonid Sirota

Constitution 150

Why are we ignoring the Constitution Act of 1867?

By Léonid Sirota March 27, 2017 27 March 2017

Why are we ignoring the Constitution Act of 1867?

 

An anniversary might be thought an occasion for commemorating the event to which it refers. Not so, apparently, the sesquicentennial of Confederation. Celebrations are due to take place, to be sure, but a visitor to Canada might be forgiven for wondering what it is that we are about to celebrate. He or she might head to the government’s Canada 150 website, and find plenty of information about the festivities that are due to occur―but precious little about the historical events that we will, or will not, be marking. Yet in case you forgot, July 1 will be the anniversary of the coming into force of what we now call the Constitution Act, 1867.

This lack of interest in one part of our constitution is all the more remarkable when contrasted with the attention being showered on another―the Canadian Charter of Rights and Freedoms. It is turning 35 this year, and the Canadian government wants to make sure we know. A special section of the Department of Justice’s website, complete with nifty graphics, is dedicated to the Charter’s 35th anniversary, while the Justice Minister herself is travelling the country speaking and tweeting. There was indignation when the previous government ignored the Charter’s 30th. The watchword this time seems to be “never again”―except, that is, for that pesky old Constitution Act.

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Opinion

A modest judge

By Léonid Sirota November 7, 2016 7 November 2016

 

There has been some debate about whether Justice Russel Brown of the Supreme Court was part of a trend of judicial arrogance. Alice Woolley argued that he was, citing the opening paragraph of his majority opinion in Canada (Attorney General) v Igloo Vikski Inc. I said no, as did Nicholas Hay over at The Court. So it is timely that Ultra Vires, the University of Toronto Faculty of Law student newspaper, has recently published an interview with Justice Brown himself. While it contains no insights on the art of hockey goaltending, it does give us a better sense of Justice Brown's views on judging ― and indications, insofar as extrajudicial talk, which like any talk is by definition cheap, can give us indications about the judge's true views, that this judge is a rather modest one.

In response to a question about the influence of his background on his judicial work, Justice Brown says that his "experience as an academic has been helpful in the sense of taking seriously what the other side says". (Actually, this is a useful reminder for academics as well as judges; Justice Brown attributes it to advice from David Dyzenhaus, and prof. Dyzenhaus will not give bad advice!) Audi alteram partem ― listen to the other side ― is of course the very first part of a judge's job description, but keeping to it consistently does require some humility, or at least an awareness that one does not have all the answers worked out beyond dispute.

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The judiciary

Red card for Justice Ginsburg

By Léonid Sirota July 18, 2016 18 July 2016

 

In a series of much noticed interviews, Justice Ruth Bader Ginsburg of the Supreme Court of the United States made it perfectly clear that she does not think much at all of Donald Trump, the presumptive Republican nominee for the presidency. Such overt and public condemnation of a candidate for office by a sitting member of the Supreme Court is apparently unprecedented in the United States (though then-Justice Sandra Day O’Connor’s privately expressed dismay at the prospect of Al Gore’s election in 2000 became public knowledge). Justice Ginsburg’s comments have been widely condemned, including by the editorial boards of the New York Times and the Washington Post, and she ended up expressing regret, although not quite apologizing. Still, there might be some lessons to draw from this imbroglio.

One lesson is that appearances matter. It’s not exactly a shock that Justice Ginsburg doesn’t like Mr. Trump. (For the record ― I don’t like him either.) Indeed, given the contempt of many prominent right-leaning legal academics for Mr. Trump, it wouldn’t exactly be surprising if all of Justice Ginsburg’s colleagues, not just her habitual ideological allies, felt the same way. Why, then, should we care that Justice Ginsburg publicly expressed what we could reasonably guess she already thought? Some people, indeed, have been praising her for her “transparency.” But we insist on judges keeping an appearance of neutrality, even we can guess their likely thinking on an issue, for a good reason. It’s not merely, as some have said (following La Rochefoucauld), a matter of the vice of bias paying homage to the virtue of impartiality. A judge having an opinion on a social controversy is not in itself a vice, because to have no such opinions at all, judges would need to be quite out of touch with the society in which they live. But so long as the judge keeps that opinion to him- or herself, or at least does not publicly commit to it, there is a better chance that he or she will be able to set it aside when adjudicating, or even to revise it in the face of proof and argument. It is human nature to stand by opinions to which one is publicly committed, and the judicial duty of reserve is supposed to shield judges from the temptation to seek consistency by closing their minds.

Another lesson is, I am afraid, that age matters too.

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Constitutional law

Does the Chief Justice believe in (the common) law?

By Léonid Sirota June 1, 2016 1 June 2016

 

The Université de Montréal’s Common Law Programme held a fascinating symposium on “Supreme Courts and the Common Law” last week, thanks to the hard work of Matthew Harrington and Paul Daly. (If you missed it, you can watch it here.) Kicking off the event was a rather remarkable speech by Chief Justice Beverley McLachlin (see the video at the 12-minute mark). Most judges who speak public strive to be uncontroversial by being incontrovertible, usually to the point of blandness and not infrequently insipidity. Not so the Chief Justice, who made a number of statements that, while not likely intended to invite controversy, are likely to do so.

In a nutshell, the Chief Justice argued that traditional views of common law reasoning as being “bottom-up” ― proceeding from cases to principles ― and of civilian reasoning as being “top-down” ― proceeding from principles to cases ― are no longer valid. Regarding the common law, while it was formerly thought dangerous to let judges reason from abstract principles ― because they might invent these principles themselves ― this distrust has faded in the last 100 years or so. Invoking examples such as the Persons Case and Donoghue v. Stevenson, the Chief Justice argued that judges rightly feel entitled to change the law, finding in principles responses to changed social circumstances. She explained this change of heart by three factors. First, bills of rights lay down general principles for judges to elaborate, and as judges enjoy doing so, this approach “trickles down” to common law adjudication. Second, the role of supreme courts is increasingly seen (and indeed described in statutes) as being the development of the law, rather than mere error-correction in private disputes. And third, international law, which also requires “reasoning down,” is increasingly influential. These factors combine to give the top common law courts more latitude and opportunities to reason in a manner traditionally ascribed to civilians; and a good thing too, for, in the Chief Justice’s view, “neither precedent nor doctrine should easily undermine the court’s mandate to find truth and do justice.”

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Constitutional law

Stop playing favourites with the Constitution

By Léonid Sirota April 11, 2016 11 April 2016

Writing recently in CBA National, Justin Ling questioned the priorities of the Court Challenges Program, which the federal government is in the process of resurrecting. Why will it, he asked, fund challenges based on the linguistic and equality rights provisions of the Canadian Charter of Rights and Freedoms, but not those based on, say, section 7, at least insofar as these claims can also contribute to some marginalized groups quest for equality? That’s a fair question. But in my view, it is not nearly radical enough. It is important to ask why the government is supporting litigation that aims to enforce some elements of the Constitution, and not others.

When it comes to language rights, it is tempting to point to the government’s statutory mandate in section 41 of the Official Languages Act, to promote and enhance the vitality of minority language communities across Canada and to ensure the recognition of the status of English and French throughout the country. Yet there is any number of ways in which the government go about fulfilling this mandate. It is not obvious that funding court challenge ought to be one of them. And there seems to be even less of a reason for the government to specifically concern itself with supporting equality rights ― as opposed to freedom of expression, or voting rights, or for that matter the respect of the division of powers between Parliament and the provinces.

Speaking of federalism, the Court Challenges Program seems to me to sit uneasily with this fundamental principle of our constitution. It is one thing for Parliament to help people overturn its own laws, or the decisions of the people it hires to administer them. It is something else for it to help people overturn laws enacted by provincial legislatures, which did not vote for and might not support the availability of public funding to people who seek to undo their or their agents’ work. Insofar as federalism implies some duty of loyalty or co-operation, for one order of government to help citizens undermine the laws of another seems to go against these duties. (These duties, if they exist, are purely political of course ― the Supreme Court rejected the attempt to make co-operative federalism into a legal obligation in the gun registry litigation, and it was right to do so in my view.)

But, subject to these concerns, isn’t it a good thing for Parliament to contribute to upholding the principles of the Rule of Law and constitutionalism by helping people challenge laws that might be unconstitutional?

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Léonid Sirota teaches constitutional law at the AUT Law School in Auckland, New Zealand. He blogs at doubleaspectblog.wordpress.com / Léonid Sirota enseigne le droit constitutionnel à la AUT Law School à Auckland, en Nouvelle-Zélande. Il est l’auteur du blogue doubleaspectblog.wordpress.com.

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