Pen and paper

Professor Finnis’ paper Judicial Power: Past, Present and Future describes developments in the United Kingdom which have led to what he sees as a legal quagmire, and advocates a push back towards judicial deference to legislative policy preferences, based upon respect for the proper separation of powers, and a measure of judicial humility sufficient to recognise the judiciary’s lack of expertise (relative to legislators) in matters of policy-making. The merits of this solution in the UK context to which his paper is principally addressed are beyond my ken. My comment is restricted to considering the applicability of Professor Finnis’ solution to the Canadian legal order, which order has been profoundly shaped by three decades of jurisprudence since the enshrinement into the Canadian Constitution of the Canadian Charter of Rights and Freedoms.[1] Rather than providing my thoughts on each of ten propositions he advances, I will attempt here to offer my thoughts on what seems to me to be the fundamental theme of the paper — the proper distinction between the judicial and legislative roles — while highlighting the limits to its application to the Canadian constitutional order, and also considering how it might nonetheless have salutary influence upon Canadian jurisprudence and legal thought.

Professor Finnis argues that the judicial responsibility is to adjudicate legal rights and obligations by applying, to facts agreed between them or as found by the trial court, the law that defines those rights at the time the dispute arose. This is, of course, the classic articulation of the judicial role, based on a neat understanding of the separation of powers: legislatures make law, executives implement it, and courts apply it. But these compartments are decreasingly watertight. Legislatures often delegate law-making powers to the executive via the various functional and adjudicative bodies that comprise the modern administrative state. In the Canadian context, moreover, the Constitution of Canada further disrupts this neat division of powers. While Professor Finnis insists that it is “the legislature’s responsibility … to make new or amended commitments about private rights (and public powers) for the future”, our Constitution Act 1982 strips from legislatures final authority on delimiting public powers, binding them and subordinating their enactments to a supreme law which grants public rights to persons, enforceable by courts against the state.[2]

This is not to say that Professor Finnis’ description of the judicial role is altogether inapplicable in a constitutional democracy. The Constitution binds legislatures, but Canadian courts do not possess a monopoly on defining the public rights conferred by the Charter. And, where legislatures do so, their superior expertise in policy-making should prompt a cautious — the currently favoured term seems to be ‘deferential’— judicial response. This consideration is particularly relevant where courts are called upon, in determining whether a rights violation is justified as a reasonable limit, to engage in ‘proportionality’reasoning which, as the Supreme Court of Canada recently acknowledged,[3]“entails difficult value judgments” — that is, subjective weighing of incommensurables.

While Canadian observers would see all this as leaving open the question of the degree to which courts ought to defer to legislators’ policy preferences, Professor Finnis advocates drawing a bright line such that courts should always defer, since to do otherwise usurps democratic legitimacy by making policy choices for the community’s future under the guise of shaping legal doctrine. The case for a bright line is not difficult to understand. The problem with judicial policy choices is that they may not actually represent the community’s values and policy preferences. A judicial policy choice favouring liberal ideas about dignity and individual autonomy may not, for example, accord with the community’s preferred way of resolving difficult moral problems. Yet, by constitutionalising that policy preference, other policy outcomes are foreclosed, without any public recourse.

A bright line is, however, simply not a legally available response where the constitutional order precludes it — as the Canadian constitutional order does. Canada’s democratically elected national parliament and provincial legislatures chose to adopt the Charter, knowing full well that this would extinguish any bright line. Hard and fast rules about unreviewable legislative action fall away quickly when such an order is promulgated, and questions of degree become unavoidable. This is not, I concede, a complete answer to objections to the scope of judicial review powers exercised under the Charter; the Supreme Court of Canada, for example, famously expanded that scope under section 7 of the Charter beyond that which was contemplated by those democratic bodies.[4] That aside, however, Professor Finnis’ arguments about democratic legitimacy and about courts making unaccountable decisions for the community are, as a matter of the positive constitutional law of Canada, arguments for deference and restraint, not for the absence of judicial review for constitutionality altogether.

Professor Finnis might also wish to account more fully for the necessity of judicial review — whether in a legal order constrained by a constitutional rights document such as Canada’s or not — to correct injustice. He cites judicial review as a remedy but, when the meaning of a constitutional document (as opposed to an ordinary statute) is being discerned and applied to a dispute, the exercise of judicial review still risks running afoul of his thesis. The judicially discerned meaning will — especially where injustice is being remedied — typically carry unavoidably open-ended consequences governing future disputes, because that meaning will, as Professor Finnis puts it, be “open-ended to views about the future”. While I do not see this as undermining his overall thesis, I might have thought that the better position would be to acknowledge the subsisting necessity of judicial review (including judicial review for constitutionality) to correct injustice, while at the same time employing his thesis to minimise the risk of creating further injustice (by accounting for concerns for deference and restraint in light of relative policy-making institutional competencies as between courts and legislatures).

Such concern for institutional competencies and relative degrees of policy-making expertise seems to me key to making the case for Professor Finnis’ thesis, even within a constitutional order such as Canada’s which contemplates that which he rejects — judicial review of legislative action for constitutionality. On this point, Professor Finnis’ arguments about the unsuitability of the litigation process as a vehicle for social reform are compelling. Faced with Charter claims, a single trial judge will make findings of fact based on the testimony of whatever experts the plaintiffs see fit to call — often, after years of preparation. Respondent attorneys general (whether federal/national or provincial) may not have the resources or the capacity to prepare a significant evidentiary record in response, or may be defending litigation which was the product not of empiricism, but of incomplete knowledge regarding, for example, social problems.[5] The resulting findings of fact can make all the difference. (For example, in Canada (Attorney General) v Bedford[6] and Carter v Canada (Attorney General),[7] deference to the trial judge’s findings on the safety of prostitutes profoundly influenced the Charter section 7 analyses.) This raises questions — which I do not purport to answer here, but which are nonetheless important ones to consider — about the suitability of the litigation process for working through complex and difficult policy choices, where that process is often characterised by an evidentiary record that is the product of the litigants themselves, who will understandably not be interested in representing that difficulty and complexity.

The inevitably selective evidentiary record takes even greater significance where it might persuade a court to depart from binding precedent (the reasoning being that the “richer” evidentiary record “fundamentally shifts the parameters of the debate”).[8] The concern about precedent relates to an intriguing and perhaps insoluble dilemma identified by Professor Finnis, being the way in which judicial decisions made on policy grounds may be perpetuated due to divisions between so-called‘reforming’and‘conservative’judges. His point is that, after a divided decision in which the former camp hold a narrow majority over the loud protests of the latter camp, the latter — out of what is assumed to be a conservative tendency to respect stare decisis — will continue to apply the earlier reformist decision for the sake of stability in the law, thereby perpetuating and entrenching a (ex hypothesi) poor judicial decision.

The ‘reformist’camp might argue, of course, that the answer cannot be to abandon reform and slavishly adhere to stare decisis. If, after all, all judges are ‘conservative’ and simply apply existing principles to the cases before them, how can the law evolve? While this criticism has the potential to be nuanced (since the common law’s perpetuation of discriminatory principles is an often undetectable undercurrent in even the most banal and seemingly objective legal reasoning), such nuance is not what one typically sees from those who advance this counterpoint. Rather, the current tendency broad legal reform is sought, sweeping out the old (and sometimes discriminatory) principles in favour of new laws which conform to contemporary understandings of‘social justice’. This touches upon one of Professor Finnis’ related arguments, being that the judicial efforts to reform the law are often counterproductive, since a judge’s conclusion that “the law is an ass” (or their predecessors’ law is an ass) is sometimes misguided. In any event, as Professor Finnis points out, there is a better author for such change: “the modern legislature, fortified by its own committees and their hearings, and by the investigative, discursive and reflective work of law reform commissions”.

Again, bearing in mind that a bright line shielding legislative policy-making from judicial review for constitutionality is precluded by the Canadian legal order (such questions now being channelled into discussions of deference and restraint), Professor Finnis’ argument that legislatures are as concerned as courts are with legal and moral rights, and have a role in defining them and protecting them, remains apposite and furnishes a useful concluding point. I would expect that this argument would likely receive, at least at first glance, wide acceptance amongst Canadian jurists. Legislatures are not typically seen as designed to be rights-infringing machines, although they occasionally have that effect. Professor Finnis’ argument is, however, in profound tension with much of our contemporary constitutional jurisprudence that privileges individual autonomy. Some legislation will always be‘overbroad’in a constitutional rights-limitation sense, because it is based on analyses — sometimes statistical or otherwise empirical, and sometimes merely reasoned — designed to protect most effectively the rights of all (in the sense of a community of persons), even if it leaves some persons exposed to risk. An emphasis on the individual, however, and a concomitant disregard for legislative choices and trade-offs between competing rights, plausibly leaves open to constitutional challenge almost any legislation that negatively affects someone’s life,[9] notwithstanding the degree of protection or benefit such legislation affords to the community. At some point, our courts will have to grapple with this reality.

Hon. Justice Brown (Russell Brown) is a Justice of the Supreme Court of Canada. He was admitted to the Bar of British Columbia in 1995 before successive judicial appointments from 2013. He was appointed to the Supreme Court of Canada in 2015. Justice Brown was previously Professor of Law at the University of Alberta.

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[1] Canada Act 1982 (UK), c 11, Sched B, Pt 1.

[2] Constitution Act 1982, ibid., ss. 24, 52.

[3] R. v K.R.J., 2016 SCC 31 at [79]. See also [160] (dissenting, but not on this question).

[4] Re BC Motor Vehicle Act [1985] 2 SCR 486.

[5] As my court has recognised, “social claims are not always amenable to proof by empirical evidence”: Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, [2015] 1 SCR 3, at [144].

[6] 2013 SCC 72.

[7] 2015 SCC 5.

[8] Bedford, at [41]-[42].

[9] See, on this point, Lauwers JA’s reasons in R v. Michaud, 2015 ONCA 585 at [79], [148]-[150] (leave to appeal to SCC refused).