In support of a process based on merit

One of the better and more nuanced discussions regarding merit in the judicial appointment process and the involvement of the political levels:

The president of the Canadian Bar Association has written to party leaders in Parliament and justice critics to clarify his comments on judicial appointments, which he says have been mischaracterized in the House of Commons and in news reports. CBA president Brad Regehr states that he has not accused the government of interfering in the appointment process, nor has he suggested that the process has resulted in the appointment of unworthy candidates.

The president of the Canadian Bar Association has written to every party leader in Parliament to clarify his comments on judicial appointments, which he says have been mischaracterized by several of those leaders and in news reports. CBA president Brad Regehr states that he has not accused the government of interfering in the appointment process, nor has he suggested that the process has resulted in the appointment of unworthy candidates.

Regehr also points to leaks about applicants to the media as demeaning the selection process, unfairly tainting those who are appointed, and discouraging worthy candidates from applying.

“One of the things that really concerns me is the naming people who submitted their names in the belief that it was a confidential process, and all of a sudden their names are appearing in the media,” Regehr told the CBA National. “It really bothers me that this happened. The potential impact on those individuals – their relationships with their clients, with their co-workers, with their firm – it was highly inappropriate.”

In recent weeks, news stories based on those leaks have fuelled speculation that the government is appointing friends and donors of the party. Members of the Prime Minister’s Office vet candidates who have been recommended to the Justice Minister by the Judicial Appointments Committees (JACs). They also consult with caucus members to learn if they have heard anything about those candidates that could potentially embarrass the government.

Justice Minister David Lametti stated in Question Period that the PMO has not directed any appointments, nor has it declined any of his recommendations.

According to Regehr, the current appointment process has improved compared to what it once was. His concern is that the process remains free of political interference.

“I understand that government … may do some additional vetting – I’m not unrealistic,” says Regehr. “If there is an indication that a person’s enrollment in a particular party or their financial support to a political party becomes a governing factor, that’s of concern, because the idea should be that these judges are being appointed on merit, and that they are reflective of Canadian society.”

Regehr reiterated that political involvement is an indicator of someone who is devoted to public service.

“It would be best if there could be some further affirmation that this is not the governing factor in the appointment of judges,” says Regehr. “I will take those accusations in the House and allegations in the media with a grain of salt. I have a good relationship with Minister Lametti, and I have had a talk with him about this, and he has assured me that this is not the case.”

In an emailed statement to CBA National Magazine, Lametti said he was pleased to read Regehr’s letter.

“I share his concerns about the confidentiality of the process,” Lametti stated. “Those who have chosen to leak the names of individuals who are seeking a judicial appointment are violating the privacy rights of those individuals as well as undermining public confidence in the appointments process. They may also be discouraging qualified applicants from applying.”

Addressing Regehr’s stated concerns about delays in filling vacancies on the JACs, which in turn delay filling vacancies on the bench, Lametti said the government has worked to reconstitute the JACs in jurisdictions where terms have expired. It has also reduced the number of vacancies nationally, he said.

“It is my responsibility to make recommendations to Cabinet for judicial appointments,” said Lametti. “It is one of the most important tasks I have as Minister. I make my recommendations to Cabinet on the basis of merit and the needs of the particular court. I also believe that an effective bench is one which reflects the diversity of the country it serves, and I am proud of the progress we are making in appointing diverse candidates. More needs to be done, but we are on the right path.”

Asked about the vetting by the PMO as a function of the appointment process, University of Waterloo political science professor Emmett Macfarlane says that our political system has rested on a set of executive prerogatives of appointments that provide a direct line of accountability for the appointment itself.

“Modernization of a lot of these processes have included establishing a bit of an independent filter, usually through these Judicial Advisory Committees, that have been set up for a lot of the Section 96 courts, and are probably a reasonable step to the extent that historically there was a lot of patronage in these appointments,” says Macfarlane. “A degree of professionalization of the appointments process was reasonable.”

Macfarlane says he is concerned by some of what has transpired over the past week. People have taken to the idea that an independent filter means the government and the prime minister should be cut out of the equation entirely.

“That’s a bit of a naïve view about the nature of courts and the role of the judiciary in our system, in that we obviously want a judiciary staffed with people who can do their best to recognize their biases, but there’s no such thing as an apolitical court,” says Macfarlane. “In fact, the higher up the ladder you go, the more political the nature of the court’s work gets.”

Macfarlane says that having an elected official who must maintain Parliament’s confidence and is responsible for selecting people appointed to our courts provides some measure of democratic accountability to the third branch of government.

“This is important – the quality of people appointed obviously matters, but the political nature of the role matters too,” says Macfarlane. “That’s not to say we slide off the opposite slope in that we should be talking about electing judges – very few people, rightly, in Canada want to go that route, but the reason that we should want that degree of political accountability is reflected in the nature of judicial decision-making, particularly in areas like constitutional and administrative law.”

Source: In support of a process based on merit

Quebec law banning face coverings is neither neutral nor constitutional: Emmett Macfarlane

Good assessment by Macfarlane:

The Quebec National Assembly has passed Bill 62, legislation introduced by the Liberal government that bans public workers and anyone receiving public services from wearing the niqab or any other face covering.

Although it is described as imposing a duty of religious neutrality on public servants and people using government services, the new law is neither neutral nor constitutional. It is impossible to reconcile this law as anything other than the targeting of a minority group, a slightly narrower spin on the now perennial Quebec debate over the wearing of (non-Catholic) religious identifiers.

Much like past proposals by the former Parti Québécois government under Pauline Marois, the law here is defended on the grounds of Quebec secularism, but it is a perversion of secularism, which would normally see the state refuse to adopt or sanction particular religions over others. Instead, the version of secularism to which Quebec’s political class seems to adhere is simply anti-religion, and more specifically, religions not reflected by the giant cross hanging in the National Assembly.

Protections under the Charter

It is this systemically discriminatory aspect of the bill which will fail to meet constitutional muster under the Charter of Rights. For not only does the bill violate the freedom of religion guarantee, it undoubtedly violates the Charter’s equality rights protections as well. The ban takes effect immediately, but detailed guidelines for exemptions – specifically, religious accommodation – apparently will not materialize until next July. In the meantime, the government better hope no Muslim woman wearing a niqab is prevented from accessing government services, for the law is unlikely to survive a court challenge.

No doubt the government has attempted to shield the law from precisely this sort of legal challenge. The ban applies to all face coverings, not just religious ones. But rights are held by individuals, and where it may be constitutional to force someone to remove a winter scarf or a pair of sunglasses, governments must justify imposing limits on religious freedoms like wearing the niqab.


You will not see the Supreme Court sailing into the text of the Bible or Qur’an to determine which religious practices are “legitimate” requirements and which are not. The test is whether a rights claimant has a sincere belief. (Luc Lavigne/Radio-Canada)

It is at this point that some readers might object: “the niqab is a cultural affectation, not a religious requirement!” But courts in Canada do not engage in theology when ascertaining whether someone’s religious freedom has been infringed. Religions are not monolithic, and adherents have a diversity of viewpoints on all sorts of religious rules and practices. You will not see the Supreme Court sailing into the text of the Bible or Qur’an to determine which religious practices are “legitimate” requirements and which are not. The test is whether a rights claimant has a sincere belief that their religion requires particular practices or traditions.

So what justification does the government have for this law? The justice minister has cited reasons of communication, security and identification. You will be forgiven for wondering if you missed the news about a rash of nefarious people riding public transit lately, for it is unclear what security-related issues are actually at stake. As for identifying people using public services, there haven’t been any issues when people legitimately do need to show their face, such as when obtaining driver’s licenses.

But let’s stipulate that courts will accept this rationale as a pressing and substantial purpose for limiting people’s rights (courts normally accept any reasonable-sounding government purpose). The crucial question will be whether the ban minimally impairs the rights in question, and the clear answer is no.

There is no reason, security or otherwise, that anyone needs to see anyone else’s face on the bus. Especially in Canada with its pesky winters. To meet the Charter’s requirements, the benefit of a law needs to outweigh the harms imposed, and here religious freedoms will be violated for entirely illusory benefits.

There is one other common objection to this analysis, and that relates directly to why the government might have a legitimate reason to ban niqabs specifically: that niqabs are themselves oppressive, as Muslim women may be forced to wear them by their husbands or fathers or even their broader communities.

Banning women from the bus

Proponents of this view like to present a niqab ban as the feminist policy. But it is telling that some people will argue they are defending women, while defending the state telling women what they can or cannot wear. It is also unfortunate for this particular brand of “feminist” that Canadian women who wear the niqab have explained their own reasons for choosing to wear it and most have denied they are being forced. It is at best patronizing, and at worst xenophobic, to pretend that all of these Muslim women in Canada are suffering from a lack of personal agency in this regard.

It is also worth noting that if any of these women are oppressed, subject to such misogynistic control by their husbands or fathers, the effect of the law will not be to free them from their shackles but instead will be to simply ban them from using the bus.

The state cannot impose freedom by restricting it.

Source: Quebec law banning face coverings is neither neutral nor constitutional – CBC News | Opinion

Canadians open to quotas to boost indigenous representation in government

Interesting and significant. Of note that opposition is highest in the two provinces with the largest percentage of Indigenous people, Saskatchewan and Manitoba:

The majority of Canadians are open to designating seats for the country’s indigenous people to boost their representation in Parliament and on the Supreme Court.

A recent survey by Environics Institute and the Institute on Governance found that two-thirds of Canadians are open to improving the representation of indigenous people in federal institutions.

They are divided, however, when it comes to how that representation would be achieved.

When asked about hypothetically designating a specific number of seats for indigenous representatives in the House of Commons, Senate or Supreme Court, one-third backed the idea; one-third opposed, and one-third said it “depends” on how it was done or were unsure.

Maryantonett Flumian, president of the Institute on Governance (IOG) , said the nearly 30 per cent who said they could support quotas depending on how they are handled suggests an “openness” among Canadians and a significant shift in attitude.

 “We don’t have comparative data but I … think these numbers represent an evolution in public opinion and in the minds of many Canadians. I would bet that we wouldn’t have had those responses five years ago and that attitudes have evolved that far.”

She also said Canadians seem to recognize that we can’t fix the country’s relationship with indigenous peoples “with good intentions (only) — they have to be in the positions driving it.”

Scott Serson, a former deputy minister of Indian and Northern Affairs, said the survey suggested Canadians are more open today than when a group of seven organizations conducted a major survey of non-aboriginal Canadians in 2014.

That survey was conducted by Environics as a baseline to track changing public attitudes towards reconciliation. It found Canadians increasingly recognize the historic and current challenges indigenous people face, with many indicating support for reconciliation and finding solutions.

“We have always said that First Nations must be at every table where decisions are being made that affect us, including the cabinet table, the boardroom table, the Supreme Court of Canada and beyond,” said Assembly of First Nations National Chief Perry Bellegarde.

“I am encouraged that many Canadians have confidence in the ability of First Nations leaders, and support the need for us to be fully involved in setting the path forward as partners.”

Emmett Macfarlane, a political scientist at the University of Waterloo, called Canadians’ openness to increased indigenous representation in government a “turning point” in attitudes.

He said the intense media attention around the Truth and Reconciliation Report into the residential school system, coupled with the Idle No More movement and the inquiry into missing and murdered indigenous women, have all helped increase Canadians’ knowledge and understanding.

“This is an important development that puts them at the top of mind for non-indigenous people. It’s a bit of a surprise because it’s a departure from historical norms where non-indigenous Canadians have not given a lot of thought to indigenous Canadians.

…According to the survey, 46 per cent of Canadians support more indigenous representation while 16 per cent are opposed. Nearly 30 per cent responded with “depends” how it was done and nine per cent had no opinion.

The level of support, however, divided along East-West lines.

Support to expanding representation was strongest in Eastern and Central Canada, especially in Quebec where 56 per cent said they supported the idea. Opposition was most evident Manitoba and Saskatchewan where 26 per cent were opposed.

The survey asked Canadians who opposed expanding indigenous representation to give reasons for their objections. The most common reason, given by 35 per cent of them, was that all Canadians are equal and no group should be given preferential treatment.

About 10 per cent said indigenous peoples are adequately represented; nine per cent said they were over-represented; nine per cent said they were irresponsible and might abuse the system, and that representation should be based on qualifications not background.

About 28 per cent offered no specific reasons for their objections.

Source: Canadians open to quotas to boost indigenous representation in government | Ottawa Citizen

How a new appointment process ushers in Supreme Court transparency

Two separate commentaries on the new Supreme Court process and the diversity aspects, starting with Emmett Mcfarlane:

Moreover, statements that the committee will canvass across Canada to fill the new appointment has been met with criticism that the government is doing away with the convention of regionally-based appointments. The upcoming vacancy is historically Atlantic Canada’s seat on the Court. There is speculation that one reason the government would look to other parts of Canada for the next appointment is the desire to appoint an Indigenous or visible minority candidate to the bench. Not appointing someone from Atlantic Canada would not conflict with anything in the constitutional text, but it would be contrary to convention. While the courts tend not to enforce conventions, the government invites significant controversy if it chooses to abandon one here.

The regional issue aside, the lack of diversity on the Court is also a serious problem, at least from the perspective of the institution’s legitimacy. Lack of representativeness in a key governing institution like the Court runs contrary to the stated objectives of the Trudeau government (because it’s 2016, after all). Since the Court’s creation in 1875, every justice has been white. The language of the committee’s mandate is no doubt intended to rectify that. Whether it will, and whether the new process will succeed in bringing greater transparency to appointments and to the Court itself, remain to be seen.

Source: How a new appointment process ushers in Supreme Court transparency

Errol Mendes on the same point:

While the advisory panel has the mandate to consult widely (including with the Chief Justice of the Court, provincial representatives, and MPs and senators from all parties) it must go further in filling in what is missing – namely the lack of aboriginal and visible minority representation in the court while also achieving full gender parity on the bench.

Mr. Trudeau emphasized that the court must reflect our diverse society to bring different and valuable perspectives to the decision-making process. That is indeed what should be part of an appointment process based on merit. To achieve that, the advisory committee must perform extensive outreach activities, going into every part of our legal institutions to seek out the most competent and meritorious of such representatives of the missing diversity on the court.

Expectations of transparency and openness have been raised high by this new appointment process, but so has the expectations of a more diverse court. Because it is 2016.

 New advisory panel needs to dig deep for diversity on Canada’s top court 

Baloney Meter: How meaningful is the Bloc’s promise to ban veiled voting, oath taking?

Notwithstanding public opinion and wedge politics, likely that the experts have it right:

Constitutional law experts believe banning women from wearing veils while taking the citizenship oath or providing public services would almost certainly be struck down by the courts as a violation of religious freedom and equality rights.

“A ban during (the) citizenship oath ceremony is unquestionably unconstitutional,” says University of Waterloo political scientist Emmett Macfarlane, who has written extensively on Supreme Court constitutional rulings.

“I think a ban on front-line public service workers would also be constitutionally problematic, for similar reasons, although a court may entertain arguments relating to job requirements a little more seriously than it would the purely symbolic arguments concerning the oath.”

Ottawa University constitutional law professor Errol Mendes concurs: “If they didn’t use the notwithstanding clause, it would almost certainly be struck down.”

But here’s the tricky bit: the notwithstanding clause can be used to override only some provisions in the Charter of Rights, including religious freedom and equality rights. It cannot be used to override democratic rights, including the right to vote. Since Duceppe’s promised bill would include a ban on veiled voting, he could find the notwithstanding clause would be of no use to him.

“If the adverse effect was on voting rights, which is not covered by sect. 33 (the notwithstanding clause), it would fall,” says Mendes.

Carissima Mathen, another University of Ottawa law professor, agrees: “I think you absolutely could make a separate (democratic rights) argument because the citizen is being deprived of her right to vote.”

If the bill was limited to removal of face coverings for identification purposes before allowing a person to vote, Macfarlane said the courts might find that to be a justified limit on democratic rights.

However, it might be hard to justify requiring citizens voting in Canada to show their faces for identification purposes when Canadians abroad can vote by mail-in ballots – with no way to verify the identities of those who actually mark the ballots.

The Harper government twice flirted with the idea of banning veiled voting but did not ultimately pursue the matter, perhaps due to the constitutional hurdles.

It introduced a government bill in 2007 which was allowed to languish on the order paper. Conservative MP Steven Blaney introduced a private members’ bill on the same subject in 2011, which then-immigration minister Jason Kenney – the same minister who subsequently issued the directive against face coverings at citizenship ceremonies – called “entirely reasonable.” It went nowhere.

Even if the notwithstanding clause did apply to Duceppe’s promised bill, Mathen points out that its use would have to be approved by both the Commons and the Senate, so it’s “not necessarily a slam dunk.”

The Verdict

Strictly speaking, Duceppe’s promise to introduce a bill banning face coverings during voting, citizenship ceremonies and the provision of public services is accurate. He didn’t explicitly say it would be passed or enacted, although that was the obvious implication.

Given the procedural hurdles facing private members’ bills, it’s debatable whether such a bill would ever see the light of day. Were it to be passed, it’s equally debatable whether it would stand up to a charter challenge or whether the government could invoke the notwithstanding clause to get around the charter.

But of course none of this matters as the intent behind both the Conservatives and the Bloc lies more within identity politics than winning legal arguments.

With respect to the public servant issue (where a ban, as Macfarlane indicates, could be justified on the basis of job requirements), the following table, taken from the National Household Survey, shows the representation of religious minorities in all three levels of government:


This table of course only measures religious faith, not the religiosity of followers and the degree to which they request accommodation and/or they wear visible symbols of their faith (e.g., hijab, kippa, turban etc).

Source: Baloney Meter: How meaningful is the Bloc’s promise to ban veiled voting, oath taking? – The Globe and Mail

What we’re talking about when we talk about ‘judicial activism’

Emmet Macfarlane commenting on the recent set of articles on judicial activism:

In the wake of landmark decisions on assisted suicide and the right to strike (among others), there appears to be a new renaissance for decrying the “judicial activism” of the Supreme Court of Canada.

Andrew Coyne accuses the Court of ignoring precedent, rewriting the constitution and basically lacking “any rational basis” for its decisions. Conrad Black is equally critical. Stockwell Day accuses the Court of writing law, rather than merely applying existing law. Gordon Gibson arguably goes even farther, calling the Court “the greatest threat to our democracy,” and accusing it of “making” rather than merely “interpreting” the law. And Brian Lee Crowley complains of the “unaccountable” and virtually unlimited control judges have over the meaning of the Charter, allowing them to trump legislation and introduce uncertainty into the law. In the view of all of these critics, it is asserted that judges have abandoned the “appropriate” level of judicial restraint.

…Instead, judicial activism has an empirical definition that can be understood in both a quantitative and qualitative sense. In a quantitative sense, activism can be measured based on the frequency with which the Court invalidates laws or impacts government policy. A deferential court that never overturns government decisions is not activist, a court that always does so is the most activist. As political scientists like Christopher Manfredi argue, judicial activism can be seen as being on a spectrum. Our Supreme Court is “activist” in about 35 percent of Charter cases.

But saying that does not make a claim about whether this level of activism is inappropriate or desirable. Indeed, given the whole purpose of the Charter of Rights, a completely “restrained” Court would arguably be as problematic as one that is constantly making policy. Whether the Court is “too activist” is a normative judgment that people are free to argue about. But under this definition, to say that activism is meaningless or does not exist would be incorrect.

…Judicial activism is a tricky concept, and it is often used in completely subjective ways. The public debate about judicial power is incredibly important precisely because the Court wields so much policy influence. A lot of the time charges of “activism” do not seem particularly helpful in clarifying the terms of that debate. A big problem is that the Court’s critics and critics of judicial activism are both wrong, albeit in opposite directions. The former think that judges should just stick to “the law,” as if that were possible, while the latter think the Court’s decisions are only about the law because the policy consequences are merely the result of what the constitution means.

Dismissing the notion of judicial activism entirely is to deny that judges have the discretion—which they invariably exercise—to act with more or less deference to the decisions of democratically elected governments. In this sense, the concept itself remains useful and important.

What we’re talking about when we talk about ‘judicial activism’

How Marois made a prophet out of Pierre Trudeau and other Charter articles

A round-up of Charter-related articles, starting with Paul Adams reminding us of the blind end of ethnic and identity politics:

…. progressives are reluctant to give Stephen Harper credit for much of anything. But one bit of data in a recent Ipsos Reid poll has startling implications: the Conservatives are in a comfortable first place among foreign-born Canadians.

I defy you to find another developed country where a conservative party — and one with a populist past to boot — can claim such an achievement.

Whether it was moral insight or political advantage that led Harper to turn his back on the Reform Party’s red streak of xenophobia doesn’t really matter. He made a choice that was immensely important to that young woman in the supermarket, whether we wish to acknowledge it or not.

Marois and Drainville have made a different choice. And they’ve made a prophet of Pierre Trudeau, the man who predicted Quebec’s political nationalism would lead inevitably to an ethnic dead end.

How Marois made a prophet out of Pierre Trudeau | iPolitics.

And good commentary from Emmett Macfarlane of University of Waterloo, noting that judges also have an ideology and biases, similar to the arguments I make in Policy Arrogance or Innocent Bias: Resetting Citizenship and Multiculturalism with respect to public servants:

It is a myth Ms. L’Heureux-Dubé herself helped propagate when she was interviewed before the House of Commons standing committee on justice in 2004, which was examining reform to the Supreme Court appointments process. Asked about the role ideology might play in judging, L’Heureux-Dubé stated: “We talk about ideology, but very few of us [judges] have any. You may not perceive that, but we look at a case by first reading and knowing the facts and then reading the briefs, and then we make up our minds.”

A generous interpretation of these comments would not take them as literal – everyone has an ideology, it is what allows us to make sense of the world around us – but rather as a suggestion that judges can simply separate themselves from ideology and apply the law (as a thing somehow autonomous from politics) in an objective fashion. But would anyone seriously believe that if Ms. L’Heureux-Dubé were on the Court today she would refrain from upholding the Quebec Values Charter as constitutional?

It sometimes appears that judges would like to have their constitutional cake and eat it too. By supporting the notion that courts can reach the “correct” answer on where broad constitutional phrases like “freedom of expression” begin and end – often settling controversies about which reasonable people might reasonably disagree – by somehow detaching themselves from their political ideology, we are presented with a caricature of judges as infallible oracles.

 Secular Charter case shows Supreme Court judges can be ideological – and wrong

And some general updates on the debates and discussion in Quebec, starting with hospitals wanting a general exception:

Charte des valeurs: les hôpitaux veulent une exemption

Lysiane Gagnon noting how the proposed Charter has created a feminist rift between radical and liberal feminists:

In Quebec, a feminist rift over secularism

Gerry Weiner, former multiculturalism minister during the Mulroney government who negotiated the Japanese Canadian redress agreement and led the development of the Canadian Multiculturalism Act, is harshly critical of the proposed Charter:

“In the name of separation of church and state, the charter presents the government with a way to abandon the previous policy of tolerance and respect for minority communities that has been an integral part of Quebec for many decades.

“Instead the charter proposes a policy of uniformity, a policy of enforced assimilation, and a contempt for minority values—vilifying them as outsiders and not a part of the real Quebec,” he told his audience who during WW II were vilified and interned in war camps as being dangerous outsiders, where not a shred of intelligence justified such an action.

He noted that he is worried that this is a policy that will divide the province, “that it could strip away decades of building a caring society, of returning us to the Quebec of my youth filled with hate, discrimination, and indifference.  It had taken many decades to become what we are today, with a wonderful quality of life.”

Weiner says Quebec charter to break up Canada