{"id":2269,"date":"2017-03-11T14:57:27","date_gmt":"2017-03-11T14:57:27","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2269"},"modified":"2018-08-31T18:46:44","modified_gmt":"2018-08-31T18:46:44","slug":"why-i-am-not-a-conservative-either-thoughts-on-chief-justice-joyals-address","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/why-i-am-not-a-conservative-either-thoughts-on-chief-justice-joyals-address\/","title":{"rendered":"Why I am Not a Conservative Either: Thoughts on Chief Justice Joyal’s Address"},"content":{"rendered":"

Glenn D. Joyal, Chief Justice of the Court of Queen\u2019s Bench of Manitoba, gave the keynote address<\/a> at last January Canadian Constitution Foundation\u2019s recent Law and Freedom Conference. His talk, \u201cThe Charter and Canada\u2019s New Political Culture: Are We All Ambassadors Now?\u201d, was interesting and thought-provoking. Although the prepared text<\/a>\u00a0has been available on the website of Advocates for the Rule of Law\u00a0for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment.\u00a0Chief Justice Joyal sought to attract his audience\u2019s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-\u00e0-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.<\/p>\n

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here<\/a>, here<\/a>, and here<\/a>.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.<\/p>\n

* * *<\/p>\n

Political culture, according to Chief Justice Joyal\u2019s definition is the set of<\/p>\n

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.<\/p><\/blockquote>\n

Historically, Canada\u2019s political culture was a mix of \u201cliberal\u201d and \u201cnon-liberal\u201d (partly \u201cTory\u201d and partly \u201csocial-demoratic\u201d) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms<\/em> came into force, however, the belief in legislative authority has been eroded. Instead, \u201ca broad cross-section of the Canadian citizenry and its institutional actors\u201d have developed<\/p>\n

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.<\/p><\/blockquote>\n

This, in turn, has created a \u201cnew and imbalanced relationship between the judiciary and the legislative branch\u201d.<\/p>\n

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter<\/em>. It was, after all, a compromise between Pierre Trudeau\u2019s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the \u201cinnovations\u201d introduced by an \u201cextremely potent judiciary\u201d in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter<\/em> contains section 1, which allows rights to be limited, and section 33, which<\/p>\n

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.<\/p><\/blockquote>\n

For its part, section 7 was drafted<\/p>\n

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.<\/p><\/blockquote>\n

Yet these \u201ccommon expectations\u201d about how the Charter<\/em> would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter<\/em> that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1 \u00a0by engaging in the \u201ctraditionally legislative function\u201d of \u201cad hoc interest balancing and cost benefit analysis\u201d. The notwithstanding clause, meanwhile, turned into a \u201cnuclear option\u201d \u2015 and a dead letter.<\/p>\n

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a \u201cflight from politics\u00a0toward the zero-sum game of Charter<\/em> litigation\u201d, which<\/p>\n

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.<\/p><\/blockquote>\n

This trend ought to be reversed, in part through \u201ccontinuing efforts at renewal of parliamentary and political institutions\u201d, so as to \u201crestor[e] a peculiarly Canadian institutional balance in the judicial\/legislative relationship\u201d, featuring \u201ca resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies\u201d, and even to \u201carticulat[e] and promot[e] its own interpretation\u201d of the Charter<\/em>. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the<\/p>\n

more American liberal \/ rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.<\/p><\/blockquote>\n

* * *<\/p>\n

I am, I\u2019m afraid, part the problem that Chief Justice Joyal identifies. I distrust government \u2015 partly because I believe that power corrupts<\/a>, partly because I believe democratic government is subject to ineradicable problems of political ignorance<\/a> (and courts might not be<\/a> much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall<\/a> for the old trope of reading differences of national psyche into the alleged contrast between \u201clife, liberty, and pursuit of happiness\u201d and \u201cpeace, order, and good government\u201d. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out<\/a>, in introducing what is looking\u00a0to be a fascinating series of papers on Confederation by Mr. Gillespie,\u00a0that \u201c[c]omparisons of American revolutionary ideals and Canada\u2019s supposedly \u2018Tory\u2019 Constitution have sometimes been too crudely made\u201d and argue that \u201cCanadians should \u2026 take pride that our founders\u2019 speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.\u201d (4-5) But be that as it may,\u00a0I am rather skeptical that a return to politics would do us much good.<\/p>\n

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts \u2015 of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power \u2015 and also to the legislative and the executive<\/a>. So I share Chief Justice Joyal\u2019s discomfort at some of the post-Charter<\/em> jurisprudential developments \u2015 at the excessive ease<\/a> with which courts have sometimes granted public interest standing, the creation of constitutional \u201crights\u201d out of whole cloth, the often unprincipled application of section 1 balancing.<\/p>\n

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges\u2019 commitment to the Rule of Law<\/a>,\u00a0raise the spectre of a judiciary that denies any constraint on its power \u2015 and not because they portend an erosion of legislative power or mark a departure from the \u201ccommon understandings\u201d of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on \u201cunderstandings\u201d instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter<\/em> (which, as\u00a0I have argued<\/a>\u00a0even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court\u2019s reading of section 7 as encompassing substantive as well as procedural principles of justice, which \u2015 as Benjamin Oliphant and I show in our recent Queen\u2019s Law Journal article<\/a>\u00a0\u2015 was at least a defensible interpretation of that provision\u2019s original public meaning, even though it clearly contradicted its framers\u2019 intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between \u201cgarden-variety\u201d cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)<\/p>\n

Ultimately,\u00a0I do not share Chief Justice Joyal\u2019s concern that<\/p>\n

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.<\/p><\/blockquote>\n

A very similar concern motivates Jeremy Waldron\u2019s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the \u201cprincipled\u201d objection to it. (Ilya Somin\u2019s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.)\u00a0The concern with what Chief Justice Joyal describes as the\u00a0\u201cde facto constitutionalization of political and social issues\u201d assumes that some issues are inherently \u201cpolitical\u201d and\/or \u201csocial\u201d, and must therefore be resolved through society\u2019s political institutions. Prof. Waldron\u2019s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal\u2019s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must \u201crespect\u201d the Charter<\/em>.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal\u2019s more moderate one.<\/p>\n

The frontiers between law\u2019s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity\u2019s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures \u2015 say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.<\/p>\n

The defenders of these political cultures,think that pervasive economic regulation is the legislatures\u2019 prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy \u2015 only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867<\/em> would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee\u2019s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people\u2019s lives in the ways that came to be increasingly accepted half a century later. The political culture changed \u2015 not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?<\/p>\n

* * *<\/p>\n

Chief Justice Joyal\u2019s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.)\u00a0Having, along with Andrew Coyne<\/a> and Bob Tarantino<\/a>, complained<\/a> about the (big-c) Conservative government\u2019s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal\u2019s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.<\/p>\n

However, although I may learn from conservatives, and sometimes make common cause with them, \u2015 and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal \u2015 I am not a conservative myself. I do not share the conservative vision of the constitution.\u00a0Like Hayek<\/a>,\u00a0\u201cI am not\u00a0I personally cannot be content with simply helping to apply the brake\u201d (2) on whatever (constitutional) innovation\u00a0might be put forward in the name of \u201cprogress\u201d. As a liberal, I want \u201cto go elsewhere\u201d (2) \u2015 not back to the 1970s, or indeed even to the 1870s \u2015 but to a never-yet seen political culture in which, in Lord Acton\u2019s words, \u201c[l]iberty is not a means to a higher political end. It is itself the highest political end.\u201d If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.<\/p>\n

 <\/p>\n

This article was originally published on Double Aspect<\/a>, Professor Sirota’s award-winning blog<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Glenn D. Joyal, Chief Justice of the Court of Queen\u2019s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation\u2019s recent Law and Freedom Conference. His talk, \u201cThe Charter and Canada\u2019s New Political Culture: Are We All Ambassadors Now?\u201d, was interesting and thought-provoking. Although the prepared text\u00a0has been available on the website …<\/p>\n","protected":false},"author":1256,"featured_media":2272,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[107,297,321,323,319,322,205,103,51,298],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2269"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2269"}],"version-history":[{"count":4,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2269\/revisions"}],"predecessor-version":[{"id":2279,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2269\/revisions\/2279"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/2272"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2269"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2269"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2269"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}