{"id":2529,"date":"2017-10-06T14:13:31","date_gmt":"2017-10-06T14:13:31","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2529"},"modified":"2018-01-26T12:37:45","modified_gmt":"2018-01-26T12:37:45","slug":"the-supreme-court-must-choose-principle-over-politicization","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/the-supreme-court-must-choose-principle-over-politicization\/","title":{"rendered":"The Supreme Court Must Choose Principle Over Politicization"},"content":{"rendered":"

Maxime St-Hilaire is a Professor at the Faculty of Law, University of Sherbrooke. The following article is Professor St. Hilaire\u2019s response to the question asked by the organizing committee of the Supreme Court of Canada Symposium: \u201cIn your opinion, what is the most important challenge facing the Supreme Court of Canada in the coming decades, and might it meet this challenge?\u201d<\/em><\/strong><\/p>\n

 <\/p>\n

The greatest challenge facing the Supreme Court of Canada is the risk of its politicization, understood here as a form of adjudicative practice that is not governed by legal rules, legal principles, or other legal norms and that does not restrict itself to deciding justiciable questions.<\/p>\n

Let’s start with the question of judicial appointments. As I have explained elsewhere<\/a>, “it\u2019s relevant to keep in mind that a country may well opt for\u00a0greater conformity of its constitutional appointments to global\u00a0standards relating to judicial appointments, either through a direct\u00a0appointment system or under the direct appointment aspect of a\u00a0hybrid\u00a0system, especially a country with a generalist supreme court, where the\u00a0very idea constitutional justice is well established, and with a strong\u00a0tradition of judicial independence.<\/em>“\u00a0<\/em>That is why the “new selection process” of Supreme Court candidates, which includes a form of parliamentary consultation, albeit a weak one, signals a regression. Normally, it is in the opposite direction that progress is made, from more political criteria to increasingly professional criteria in the selection of those who are ultimately responsible for the judicial review of constitutional conformity. Indeed, this is only one among several vectors of politicization in this new process. Others include the composition of the Independent Advisory Committee; a newly-introduced criterion, for potential judicial appointments, for demonstrating the “[a]wareness of, and ability to synthesize information about, the social context in which legal disputes arise<\/a>“; and the very idea that a judge may have to account for the decisions she rendered or in which she took part other than through the reasons for judgment.<\/p>\n

The specter of the Court\u2019s politicization is also what lies behind the apparent formalization of the so-called \u201cliving tree\u201d method of constitutional interpretation. Note that the \u201cliving tree\u201d dogma insists upon a strictly evolutionary reading of the metaphor<\/a>. It ignores the fact that the legal possibility of any evolutionary interpretation is conditional on the existence of \u200b\u200blimits specific to a \u201cnatural growth.\u201d This discourse is indeed only a fa\u00e7ade, as the work of Benjamin Oliphant and Leonid Sirota<\/a> demonstrates. Not only can one observe that the judges of the Court frequently resort ad hoc<\/em> to the “method” of interpretation that best serves their already-formed conclusions, but it is also necessary to question the rather obvious affinity between the so-called official method of \u201cliving tree\u201d interpretation and social progressivism, incidentally conceived essentially in terms of identity politics. The question of whether socio-economic rights should fall within formally ordinary (which includes \u201cquasi-constitutional<\/a>\u201d) statutory law or within the \u201cliving\u201d interpretation of a formally constitutional law that does not provide for them any more than it protects property<\/a> is currently contested. Rather than trading sterile criticisms of \u201coriginalist\u201d or \u201cactivist\u201d orientations a la Supreme Court of the United States, constitutional or appellate judges should, in the interests of the rule of law, concern themselves with substantive arguments of positive law, true legal principles or global standards<\/a> (see my debate<\/a> with Leonid Sirota).<\/p>\n

Let us then turn to substance.<\/p>\n

The jurisprudence or, perhaps more accurately, the judicial practice of the Court is replete with decisions which are, bluntly, incompatible with the rule of law. In particular, see the recent erosion of the principles of stare decisis<\/em>\u2013\u2013Bedford<\/em><\/a> and Carter<\/em><\/a>, as well as the employees\u2019 freedom of association jurisprudence, from the Public Service Employee Relations Act<\/em> reference<\/a>, to Health Services and Support<\/em><\/a>, to Fraser<\/em><\/a>, to the Saskatchewan Federation of Labour<\/em><\/a> \u201ctrilogy\u201d\u2013and of res judicata<\/em> or its functional equivalent\u2013Carter <\/em>again\u2013not to mention the Court\u2019s possible conflating the two principles, one of which has to do with the general\/indirect jurisprudential authority of judicial reasons, the other, with the particular\/direct authority of judicial decisions per se<\/em>, and taken separately.<\/p>\n

Let us also think of the Court’s reflex of mechanically attaching to its declarations of constitutional invalidity not only temporary (at least in theory, but see Carter <\/em>\u201crehearing<\/a>\u201d) suspensions of rights, but also one or more constitutional exemptions (see Robert Leckey<\/a>‘s work).<\/p>\n

Note also this mythological jurisprudential law, which in reality corresponds only to a judicial practice or policy, including the so-called law<\/a> relating to the conditions of application of the Charter of Rights and Freedoms<\/em>. It is probably this stalemate, this impasse on a question which must<\/em> be fundamental, that explains the astonishing denial of constitutional justice<\/a> represented by the analytical framework set out in the Dor\u00e9<\/em> judgment.<\/p>\n

In addition to the foregoing, a judicial creation<\/a> such as the Crown\u2019s “duty to consult” with respect to Aboriginal and treaty rights (s. 35 of CA 1982<\/a>), amounts to a regime that, given its highly variable and vague triggering conditions and content, is quite ad hoc<\/em>. Moreover, in two recent companion cases\u2013Clyde River<\/em><\/a> and Thames First Nation<\/em><\/a>\u2013the Court demonstrated complete confusion between two very different issues: that of the power to consult, and that of the jurisdiction to control the consultation.<\/p>\n

We may draw parallels with the Court’s introducing, into the constitutional amendment procedure provided for in the Constitution Act<\/em>, 1982\u2013a procedure the Court itself had taken for a complete code in 1981<\/a>\u2013, an unlikely justiciable obligation of federal \u201cparticipants\u201d to \u201cnegotiate\u201d proposals for constitutional amendment\u2013Secession of Quebec <\/em>reference<\/a>, para 69.<\/p>\n

Also contributing to the risk of politicization is the Court’s case law on the constitutional right to equality (s. 15 of the Charter<\/a>), again conceived essentially in terms of identity politics (Corbiere<\/em><\/a>, para 13). For a long time, up to Quebec v A<\/em><\/a> (2013), this case law violated Hume\u2019s principle (that one cannot infer an \u201cought\u201d from an \u201cis\u201d) \u00a0by inducing discrimination – that is, arbitrary or otherwise unfair inequality – on the basis of alleged \u201csocial\u201d or \u201chistoric\u201d facts. Despite the recent introduction, in Taypotat<\/em><\/a> (2015), by way of judicial test, of a clear requirement (as opposed to a mere factor) of arbitrariness, s. 15 jurisprudence nevertheless continues to limit, without any normative basis, the normative idea of discrimination to a sphere which is delimited only by a distinction formulated as a question of fact (that of social or historical disadvantage).<\/p>\n

The Supreme Court of Canada\u2019s tendency to politicization was perhaps foreshadowed in the authorization which, beginning in 1981<\/a>, the Court has accorded itself to give its opinion on the existence and content of constitutional conventions, in a manner other than merely incidental.<\/p>\n

Finally, and more fundamentally, there is no doubt that adherence of members of the Court to anti(jus)nomian intellectual trends contributes to the risk of politicization It is notable that many within Canadian law faculties adhere to the scientism inaugurated by the Arthurs Report on \u201cLaw and Knowledge,\u201d which doubles as a mission of \u201csocial transformation<\/a>.\u201d I am not saying the Rule of Law, notably under its substantive or \u201crights\u201d conception, is incompatible with any social change. I am saying it is chiefly about something else, including narrowing the gap between positive law(s) and Rule of Law principles and global standards. As the call for papers<\/a> launched in Summer 2017 by Joanna Baron and I noted, \u201cIn August 2016, Supreme Court of Canada Justice Rosalie Abella expressed her skepticism with the concept of the rule of law in an interview with the Globe and Mail phrase \u2018annoyed her\u2019.\u201d<\/p>\n

While the Court does not have direct control over the selection of its members, I am confident it can meet this politicization challenge.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Maxime St-Hilaire is a Professor at the Faculty of Law, University of Sherbrooke. The following article is Professor St. Hilaire\u2019s response to the question asked by the organizing committee of the Supreme Court of Canada Symposium: \u201cIn your opinion, what is the most important challenge facing the Supreme Court of Canada in the coming decades, …<\/p>\n","protected":false},"author":3364,"featured_media":1866,"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":[397,399,398,64],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2529"}],"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\/3364"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2529"}],"version-history":[{"count":2,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2529\/revisions"}],"predecessor-version":[{"id":2531,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2529\/revisions\/2531"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1866"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2529"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2529"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2529"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}