It’s a difficult time to get news coverage in this country right now, unless the subject is the near-end of the pandemic or the horrific discoveries at the former sites of residential schools.
Recently, Sean Speer and Andrew Coyne both wrote sharp pieces about an unprecedented court case that Canada’s attorney general has brought against the Speaker of the House of Commons.
I agree with much of what they wrote. But neither truly proposed solutions, which I intend to do here. And one of Coyne’s ideas — that the Speaker and Parliament should ignore an adverse court ruling — though eminently understandable, has the potential to make the saga much worse.
MORE SIGNAL. LESS NOISE. THE HUB NEWSLETTER.
Though there are ways to resolve this particular case quickly, a reconsideration of a culture of judicialization may be the ultimate way out of disputes like this being reflexively brought before courts.
How we got here
To recap how we got here, the House of Commons has demanded that the Public Health Agency of Canada produce to Parliament unredacted versions of documents relating to the firings of two Winnipeg-based scientists.
Anthony Rota, Speaker of the House of Commons and a Liberal MP himself, has ruled that the agency must comply with Parliament. Iain Stewart, head of the Agency, has refused to comply, asserting that he has been told by the government’s lawyers that doing so would violate the Canada Evidence Act’s prohibition on disclosure of information that would be potentially injurious to national security.
Stewart’s legal basis for refusing to comply with Rota’s order is dubious for at least four reasons. First, the Canada Evidence Act complements the common law of evidence regarding the use of evidence in judicial or quasi-judicial proceedings such as those before federal administrative tribunals or even public inquiries. Applying to Parliament truly seems to bring the Act outside of its purpose.
Second, and most importantly, centuries of practice has provided Parliament immunity from the jurisdiction of the courts in carrying out its activities, with the Sergeant-at-Arms permitted to bring the mace (not just ceremonial!) to force individuals to comply with Parliament’s rulings.
The Sergeant-at-Arms exercises this authority independent of the police and the courts. In addition to allowing Parliament to function as a law-making entity, this “parliamentary privilege” also reminds us all that the executive (historically, the king, but, in this case, the Public Health Agency and the attorney general) are accountable to Parliament.
As Lauren Dobson-Hughes has noted, the opposition may be acting unwisely in seeking the unredacted documents, or playing partisan games with a serious matter. But this is ultimately up to the parliamentarians to weigh — and wear at the next election. The executive is accountable to them, and not the other way around.
Third, there is a serious question as to whether legislative attempts to restrict parliamentary privilege are even constitutionally permissible. This is a matter of controversy, but Ryan Alford, as both a scholar and a public interest litigant, has at least cast doubt on whether attempts to restrict parliamentary privilege would be permissible.
But fourth, even if parliamentary privilege could be amended by legislation, legislation must be very clear to overturn such privileges. As noted above, the Canada Evidence Act neither mentions overturning any privileges, nor does it seem to apply to the functioning of Parliament.
If there is any ambiguity, therefore, the Speaker’s ruling must stand and the Public Health Agency must produce the documents.
Ignoring the ruling would be dangerous
In the face of the unprecedented attempt to have the Federal Court overturn the Speaker’s ruling, Andrew Coyne suggested that Parliament should ignore any court order siding with the government. This is understandable – but ultimately dangerous.
Ignoring court rulings is rare but not unprecedented, particularly in the United States.
Abraham Lincoln ignored Chief Justice Roger Taney’s ruling in the civil war that the president could not suspend the writ of habeas corpus (though Taney did not dispute that Congress could suspend the writ, recognizing the difference between the legislative and executive branches of government, even in a system with a president who is not accountable to the legislative branch).
Andrew Jackson similarly did not enforce Chief Justice John Marshall’s determination that the state of Georgia had violated Cherokee sovereignty by deciding who could live on Cherokee territory. In an oft-cited, likely apocryphal, quote, Jackson is reported to have commented, “John Marshall has made his decision; now let him enforce it!”
Despite Lincoln’s lionized reputation and Jackson’s controversial one, it is today nearly universally acknowledged that it was wrong for these two presidents to ignore these two rulings. As Coyne himself has argued (albeit in the context of constitutional adjudication under the Canadian Charter of Rights and Freedoms), it is important to have an institution to ensure that the constitution — the law that governs law-making — is followed.
If a province were to pass a law that electric cars cannot be driven in the province, while the federal government purported to bar the sale of non-electric cars, it would soon become difficult if not impossible to comply with both laws, and a referee will be needed to resolve the issue. This was seen to a significant extent earlier this year in the Supreme Court of Canada’s reference decision concerning carbon pricing, and whether the federal government was infringing upon provincial jurisdiction.
So how should courts behave in their proper, if narrow, role? There are two complementary avenues: one to resolve individual cases that should not be before the courts; the other, more difficult, to fix the political culture that has led us here.
A quick resolution is possible
The common law has recognized for centuries that fair adjudication requires a fair process. Unfortunately, our civil justice system has frequently become bogged down in process such that that process itself becomes the punishment for those dragged into it.
Those entitled to a quick ruling in their favour cannot get it and those responding to meritless claims have their lives put on hold pending adjudication.
There is no “silver bullet” for fixing these access to justice issues. However, one discrete tool can be particularly appropriate when novel legal claims are raised: a motion to strike or a motion to determine a question of law. On such motions, a court can assume that everything the party not bringing the motion has asserted regarding the facts is true, but still dismiss its claim because, as a matter of law, the facts it alleges would not entitle it to the relief it seeks.
For example, suppose a person claims that her Charter rights to security of the person are violated because the government has expropriated her cottage to build an airport and passed legislation to deny her compensation. A court can dismiss her claim on the grounds that the Charter does not protect property rights, irrespective of the impacts of the deprivation of the person’s property. In other words, there is no need to have a lengthy proceeding to determine the facts if the court can determine the law in a way that is dispositive.
When the courts can resolve proceedings quickly, it helps develop the law, resolves cases quickly for the parties to the case, and allows the courts to spend their time on matters where the facts are actually in dispute.
Whether the Canada Evidence Act amends parliamentary privilege is a question of pure law. Knowing the details of the unredacted documents and how they affect national security is not helpful to — and indeed is likely distracting from — knowing whether parliamentary privilege has been or could be affected by the legislation.
The attorney general’s case could therefore be resolved relatively quickly. (If the Federal Court were to hold that the Canada Evidence Act does permissibly curtail parliamentary privilege, a hearing would then be required to determine whether the sought documents are actually injurious to national security.)
The Globe and Mail reported last week that the Speaker’s lawyers were going to bring precisely such a motion. Whether it can be heard and resolved before a new Parliament is an open question, but it seems likelier than waiting for the traditional hearing process.
Don’t Americanize the courts
While a motion to determine a question of law can hopefully resolve the saga of the attorney general and the Speaker, as well as other cases of illegitimate second-guessing of the legislature, it does not address a larger issue that the case exemplifies: the tendency to turn to the courts to resolve contentious potential disputes when it is questionable that the courts are well-suited to resolve those disputes.
This has extended far beyond resolving intra-Parliament disputes to matters that the legislature is reluctant to decide (such as assisted dying and prostitution) to invoking retired Supreme Court of Canada judges to provide their opinions on matters ranging from the SNC-Lavalin scandal to misconduct in the military to academic freedom at the University of Toronto.
A dramatic way to respond to this culture of judicialization is Coyne’s suggestion to ignore a dubious court decision. This has been trumpeted by serious progressive voices in the United States in recent years — a country where the federal judiciary is widely perceived as hostile to progressive causes. I indicate above why ignoring court decisions is deeply problematic. But it is still entirely understandable when the courts are perceived as excessively sympathetic to a particular end of the political spectrum.
And this brings me back to the point that Speer made that Canadian conservatives are similarly concerned that they do not receive a fair hearing in the courts, and the media’s coverage of them.
My point here is not to decide whether that perception is warranted. (Though one can ponder what the reaction would have been had Doug Ford brought an application against Ted Arnott to overturn a Speaker’s decision.) But the mere perception, like that of progressives in the United States, is problematic, as it leads to a perceived politicization of the courts, and a temptation to disrespect their rulings, even though the courts are necessary arbitrators of the constitutional order.
The courts’ weighing into contentious political issues is, to some extent, dictated by our constitution. As Canada’s newest Supreme Court judge, Mahmud Jamal, wrote in his application, courts in Canada did not usurp the ability to decide constitutional issues for themselves. It was assigned to them first regarding the division of powers between the federal government and the provinces in 1867, and then regarding the Canadian Charter of Rights and Freedoms in 1982.
We can debate whether, from an institutional design perspective, entrusting the courts with all of these powers was wise. (The United Kingdom, Australia, and New Zealand, by contrast, have courts with far fewer powers, are hardly rights-abusing dystopias compared to North America, and have not suffered the same negative consequences of judicialization.) But the framers of Canada’s constitution in 1867 and 1982 did give extensive powers to the courts and that must be acknowledged.
It does not follow, however, that legislatures should simply resign themselves to allowing courts to resolve difficult issues. As Justice Jamal noted elsewhere in his application, legislatures have far greater ability than courts to appreciate the trade-offs and consequences of particular policy decisions and institutional design choices.
Courts only need to enter the fray when the democratic branches of government have been unable to resolve a dispute. There is no need for the legislatures to “give up” and resign themselves to the courts resolving the issue.
Those across the political spectrum should realize that they abrogate their duties to the courts at their peril. The comparative experience of progressives in the United States and conservatives in Canada regarding a culture of judicialization indicates that there is nothing inherent about strong judicial powers that leads to particular outcomes.
The Canadian Charter was, probably not coincidentally, enacted just after the great progressive era of the Supreme Court of the United States between 1954 (Brown v. Board of Education) and 1973 (Roe v. Wade), being first envisioned by Professor Pierre Trudeau during that era. Oh, how times have changed south of the border. There is no reason a similar shift could not happen in Canada.
Canada’s courts have not become as politicized as those in the United States. We should be very thankful for that. But suggestions that their decisions should be ignored, even when understandable, are alarming and bring us further in an American direction.
As Coyne himself has argued, courts are an important “other” referee in a constitutional order. But for courts to be perceived as a legitimate referee, they ought not to be turned to unless absolutely necessary.
That requires a cultural shift in the different branches of government. That cultural shift will not be easily achieved. But it may be in the best interests of Canada’s legislatures — and our courts.
