Saturday, August 19, 2017

A Chief Justice’s Power to Assign and Schedule and the TWU ‘Intervention Affair’*


     There was a lot of discussion about the Supreme Court of Canada's (SCC) recent decision to permit additional interveners in the upcoming Trinity Western University  (TWU) case, see e.g. here and here.  The ‘intervention affair’ is the latest in series of developments that have highlighted the independent scheduling and assignment powers of top judges in Canada.
     There remains an uncertainty about this important aspect of judicial independence.  In this context, this blog briefly highlights how this power relates to the 'inherent discretion' of Courts, and describes two other notable developments where this authority has also created controversy.  It concludes by describing the circumstances of the use of the Chief Justice's assignment and scheduling power in the recent TWU proceedings.

     In my view, this important part of judicial independence, central to rule of law, requires further clarification generally.  More specifically, the SCC should take some further action to appropriately acknowledge or recognize this authority in the context of its own recent actions, which may have created some unfortunate misperceptions about rule of law and judicial independence in the administration of justice.
1.     Judicial Scheduling and Assignment
     Judicial independence in Canada is usually viewed in the context of several ‘dimensions’ that include tenure and remuneration, see e.g. the case law in the line starting with Valente v The Queen.  Judicial authority for assignment and scheduling falls within the third administrative dimension, which has both an individual and an institutional aspect.
     Individually, this part of independence is perhaps best captured in the concept of the ‘inherent discretion’ of the Courts.[i]  This power can be described as the authority of judges to control proceedings over which they preside, but I would say also imbues the 3rd branch of government with a broad authority in Courts' administration and is a source of a Chief Justice’s power to act to appoint judges to preside in locations and over cases.  ‘Inherent discretion’ has some likely limits, see e.g. here, but remains a poorly defined reserve of additional judicial powers. 

     The examples below illustrate challenges created by this ambiguity, focusing on the exercise of a Chief Justice’s power to assign and schedule.[ii]
2.     2017 New Brunswick Legislation
     Last spring, New Brunswick passed legislation that provides the provincial Attorney General (AG) with a veto power over the Chief Justice’s assignment of judges to geographical locations, see hereThis recent law likely touches on the recognized authority of judges for assignment and scheduling, see the SCC decision in MacKeigan v Hickman.

     Given provincial constitutional responsibility for the administration of justice, to provide things like a physical office space, human resources and administrative support, the involvement of the provincial executive in these decisions makes sense.  Media reports paint government involvement in assignment elsewhere as a facilitative process, where the executive and judicial branches work together, see the examples of Alberta and Saskatchewan highlighted in this articleHowever, New Brunswick’s recent law faced judicial opposition when Chief Justice Smith of the provincial Court of the Queen’s Bench raised concerns that it impermissibly trenched on the recognized independent authority of judges to assign and schedule, see e.g. here.
      Since there few, if any absolute discretions in Canadian law, see e.g. the well-known case of Roncarelli v Duplessis, this legislation must respect judicial independence, but also be balanced against the public interest. If these New Brunswick amendments purport to vest in the provincial AG an absolute discretion to determine sitting locations, absent appropriate considerations of judicial independence and other public law principles, then they may well prove untenable within Canada’s constitutional framework. 
     In the end though, the question of whether or not this recent legislation inappropriately breaches judicial independence remains a live issue.  
3.     Alberta Court of Appeal 2017 Decision in R v Gashikanyi
     Recent obiter comments in the Alberta 2017 decision in R v Gashikanyi have also created controversy and focused attention on judicial assignment and scheduling.  In that case, Justice Berger asserted that the Court of Appeal Chief Justice’s assignment to judicial panels was not random.  Justice Berger’s comments raised the possibility that individual judges are being assigned on the basis of their approaches to law, which could influence the final outcomes of some decisions, as I discussed in a previous post.
     The SCC decision in Mackeigan, noted above, suggests that assignment and scheduling is within the exclusive purview of judges.  But some recent case law also supports the proposition that the assignment and scheduling power may also be reviewable in the context of determining sitting locations, see the 2000 Alberta case involving a provincial court judge in Wachowich v Reilly. 

     Ultimately, there appears to be little evidence advanced in Gashikanyi to support Justice Berger’s obiter comments (see para 114 of the decision).  As noted by the dissent there, such a proposition faces a high bar of proof as a potential breach of the presumption of judicial impartiality (at para 117 of the decision).  However, the decision does raise the question of the scope of a Chief Justice’s powers to schedule and assign, and whether they might also be subject to a measure of external scrutiny.  
4.     The TWU ‘Intervention Affair’
     In addition to the legislative and jurisprudential examples above, the recent Supreme Court orders in the TWU litigation, which is scheduled for hearing in the Fall of 2017, appears to present a procedural example of uncertainties in the exercise of this power.
     The proceeding involves the authority of provincial law societies to accredit a law school in British Columbia which imposes a ‘community covenant’ on its students not to engage in sexual relations outside of marriage, which is defined as between a man and a woman.  Leave to intervene in the case, out of matters arising in British Columbia and Ontario, see here and here, was initially denied by Justice Wagner for a number of parties. The first decision to exclude some parties was subject to the criticism on social media, that these groups had an interest in the litigation and their distinct perspective was being unjustly excluded, see e.g. below:

      A few days after Justice Wagner’s order, the Chief Justice issued a subsequent order, which added an additional day to the hearing and granted leave to 17 of these excluded groups to make submissions in the case, see here.    Whether or not the Chief Justice’s order ‘overruled’ the earlier decision, or simply ‘varied’ it, could also be a matter of dispute.  However, either characterization fails to address the lack of explicit authority for the Chief Justice to make a later change under the existing rules of the Court, see Rule 75, here. The change to the first decision by the Chief Justice also appears unprecedented, see here.

     The Supreme Court does not usually issue reasons for its leave decisions. The lack of reasons in the intervention affair left some questioning the legal basis for the change, see here.  Further compounding the unprecedented nature of the Chief Justice’s decision, the Court subsequently issued a rare press notice, that appeared to provide some supplemental explanation for the Chief Justice’s decision to change the initial order.  The unusual nature of these developments was further complicated by Justice Wagner's subsequent media interview discussing the case, in which additional details of the Court’s internal deliberations seemed to be revealed, suggesting that the change was made in part because of the negative reaction to the initial decision by some on social media, see here.

     The press notice and subsequent media interview appear to fly in the face of the longstanding practice of the Court and its judges to only comment on litigation in open proceedings or in judgments, see discussion of this point here.  In this case the matter is still pending and therefore also subject to the sub judice rule, see a good scholarly treatment of the principle here, which stands for the proposition that all public officials should avoid comment that could adversely impact the perception of impartiality of the administration of justice.   Possible misperceptions in this case include that the Chief Justice acted without legal authority to overrule another judge, or that one or more judges had their independence and decision-making in an ongoing matter influenced by public criticism. 

     For now, these perceptions remain largely unaddressed.
     The indeterminacy I’ve identified in the judicial scheduling and assignment power is one that has created challenges.  Given the centrality of judicial independence to rule of law, this lack of clarity is particularly disconcerting, especially when it manifests at the highest Court.  I think there is little doubt, based on the discussion above, that there exists some legal basis for the Chief Justice’s intervention in the TWU litigation, given the broad reserve of powers available to the Court as a matter its inherent jurisdiction.
     But all of these cases highlighted also suggest that some clarification of the scope and limits of a Chief Justice’s authority in this area may be needed.  At a minimum in the intervention affair, the fact that SCC leave decisions can be re-visited in some fashion should be recognized, and, if necessary, acknowledged in the rules governing proceedings before the Court.  At a time when democratic rule of law is being challenged around the world, see e.g. here and here, it is important that Canadian Courts and judges continue to be as open and transparent as possible in the exercise of their independent powers. 


* The views and opinions expressed in this work are my own.  From 2003 to 2011 I served as judicial counsel, in several capacities, in the Office of the Chief Justice of the Superior Court of Justice of Ontario. My recent  2016 PHD in law examined the principle of ‘independence’ for lawyers and judges in the Canadian justice system, see "Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System".

[i] The seminal article is I.H. Jacob, “The Inherent Jurisdiction of the Court” in Current Legal Problems (1970).
[ii] See e.g., discussion of ‘inherent jurisdiction’ by Canadian Judicial Council document "Alternative Models of Court Administration", at pp 42 – 47.

Monday, August 7, 2017

Harry's 'Call to Arms' Comes With a Canadian Caveat

Harry Leslie Smith is a hero from another age with a cautionary tale about politics today.
The 94 year old has written books, like Harry’s Last Stand, and is a well-known contributor to numerous publications, including The Guardian and The New Statesman.  Together with a popular podcast, Facebook presence, and almost 100,000 Twitter followers, Smith has become a world-wide social media phenom.  His message, that forgetting our shared past risks the future, has also brought him national attention in Canada, as described recently in the Globe and Mail.
It was a pleasure to hear Smith speak recently.  A World War II veteran, Smith told the story of his early days of extreme poverty, to a small gathering at the public library in Prince Edward County’s Picton branch in late July.  He warned that the benefits won in hard fought past battles, in both war and social policy, are being threatened by today’s events.
Harry Leslie Smith, his son John, and me.
“I have seen all this before.  In the 1930s people gave fascism a chance because they felt betrayed by politicians who promised a better life, but only delivered material wealth to the one percent of the day.”  Smith’s described his early days as filled with hunger, cold and deprivation.  “I lived in a neighbourhood where no one could afford sentimentality,” he told us. 
“Workhouses existed just like in the novels of Dickens.  They were places for people whose only crime was being poor.”
His own father dug coal six days a week, 10 hours a day, but the family always lived on the edge of extreme poverty. “There is no dignity in labour exploited for extreme profit,” he said.  “It is evil.”
 Children at Crumpsell Workhouse in England, 1895 - 1897

There were few basic social services in the working class northern English town of his youth. “People screamed their way to death” he said and he recalled “walking down the street at 6 or 7 and from behind the windows hearing screams of people in pain from illness, who could not afford to go to the doctor.” Smith’s own sister contracted tuberculosis, died, and had to be buried in a pauper’s grave.
At age 18 in 1941 Smith joined the Royal Air Force. “Before we could fix the tyranny of unmitigated capitalism at home, we would have to stop the tyranny of Nazism,” he said. At the end of the conflict, grateful to have survived and mourning those lost in battle, he celebrated victory.  But he also foresaw the “genuine possibility” that people could build a better and fairer society.
But, Smith noted, the political will to improve social conditions did not last.  He described how governments in the 1970s slowly began instead to favour corporate over public interests, in a trend leading to the present day.
A physically unimposing five feet or so in height, the bespectacled nonagenarian spoke sitting down, with a quiet Yorkshire accent, his reading hampered by poor eyesight and low light.  Yet his conclusion, borne of his own experience, was a forceful warning about recent events: “Brexit and Donald Trump are what happens when nations deprive their citizens of social security & good paying jobs.  In the twilight of my life, I am watching the tide of civilization creep out to sea, like the tide in the Bay of Fundy.”
Smith’s son John accompanied him, and helped to flip through the many pages of his speech, prompting when he lost his place.  There was something very familiar about Harry Leslie Smith, and I felt a little déjà vu, when we met at the library.  Turns out there is a Canadian connection to this story.
John said his father liked to think “his life began” when he immigrated to Canada in 1953.  Following the war, Smith moved to Scarborough, Ontario.  In fact, the family were my neighbours. 
Of a similar age, Harry’s son even graduated from one of my rival high schools, in the Toronto suburb that we both called home.  I mentioned to him that I had also worked as a teenager as a sales clerk at the Canadian Tire store near to where we lived, and he said he had visited there “many times” in the past. 
It’s a small world indeed.
Canadians have been getting attention, and praise, for how well our democratic institutions seem to be holding up in the face of a perception that democracy is failing in other places, see e.g. here.  But Smith had a further warning for us too, suggesting that similar democratic challenges to social policy could soon be faced by this country.
“Canada is no different”, he said.   It is “in as bad a shape as the rest of the western world.” 
He noted multiple public crises here including in housing, personal debt, health care, lack of wage rises and a shrinking middle class, and suggested the seriousness of these issues remains obscured only now by Canada’s large geography and small population. 
Neither did Smith spare current political leaders from scrutiny in his remarks.  “Never believe the good intentions of a provincial premier who raises the minimum wage while gutting ordinary services,” he said.About federal politics he observed critically that, “a PM who takes selfies and talks of the politics of inclusion, while reneging on promises to make Canada more democratic and selling our infrastructure off to the private sector, will not protect the country from demagogues."
In another bit of synchronicity, Smith is both a former and current neighbour of mine, who lives part-time at his Belleville home in Ontario’s Quinte region.  Reached there for further comment he said,“the suffering I endured coming from a working class family was no different for working class people in Canada during the dirty thirties.  The erosion of the Welfare State in Canada is almost identical to what occurred in Britain.” 
He also mentioned his new book, “Don’t Let My Past Be Your Future: A Call to Arms”, which he said, “is universal in its condemnation of neo-liberalism or the bogus ‘middle of the road’ of politics of Justin Trudeau.”
Despite his relative fame, and local connections, his son said that they get surprisingly very few speaking requests here.  It may be that in the face of Canada’s apparent exceptionality to the decline of democracy elsewhere, Smith’s message doesn’t get much traction here. 
A Black Swan   -  "Fir0002/Flagstaffotos"
And I hope his fears for this country are wrong.  But agree or disagree, I think it wise for Canadians to take note of his warnings to be on guard against these dangers.  As everyone has witnessed south of the border, there seem to be some once-in-a-generation, ‘Black Swan’ type changes occurring in politics now, which are both rare and unexpected, see e.g. Donald Trump: The Black Swan President. There is little reason to think that Canada could not be similarly at risk.

In the end, Harry Leslie Smith’s remarks were a provocative message from the past that has caught the ear of some important people elsewhere.  His new book, due out this September, has been endorsed by British Labour Party Leader Jeremy Corbyn.