Cushing v. Dupuy

The enduring issue in Cushing v. Dupuy concerned whether a provision in the federal Insolvency Act making certain court judgements "final" meant the Judicial Committee could not hear an appeal. The Committee held that the effect of the provision was to exclude an appeal to the JCPC as of right, but did not effect the ability of the Committee to give leave. The rationale was that giving leave was an aspect of the Crown Prerogative, which could only be extinguished by a statute if the statute was explicit. The editor of the Appeal Cases court reports added "quaere, what powers may be possess by the Parliament of Canada so to do", a note that anticipated battles in the twentieth century.

So far, we have been able to avoid talking about the tricky ontological issues about what the Judicial Committee of the Privy Council really was. We were able to get away with just treating it like the final court of appeal for the Empire, which nineteenth century Canada was very much a part of. In the twentieth century, that gets embarrassing, but no one was worried about that when Britannia still ruled the waves and Gilbert and Sullivan were at the height of their creative powers. Why not have your final court in London? As we will see, the part of Canada least enthusiastic about dying to keep China British -- Quebec -- was even less enthusiastic about having the relative powers of the federal and provincial governments decided by a tribunal located in Ottawa and picked entirely by federal Prime Ministers. But that's all in the future.

But whatever its merits as an impartial and imperial adjudicator, the Judicial Committee was built on a pile of legal fiction. In theory, litigants did not appeal to the Committee in accordance with some procedure set out in a statute. The legal fiction was rather that the Queen Insurance Company or Madame Belisle, as a subject of Queen (and now Empress) Victoria, was appealing to the batty old Hanoverian herself. And as the descendant and ultimate successor of a Norman bastard with above-average luck and leadership skills, she had the prerogative right to entertain an appeal from one of her subjects that her judges had erred.

Now nineteenth century Brits were sharp enough to see that leaving deciding the fine points of insolvency law to a grumpy matron from a line of notoriously plodding intellects was not fair either to her or to the contending parties. Shortly before she came to the throne, Parliament had enacted the Judicial Committee Act, which provided that members of the monarch's privy council who had "high judicial office" would constitute a judicial committee, and the monarch could refer matters to them, and they would advise him or her about them. This was already standard practice when colonial appeals were taken to the monarch, and it was already invariably the case that the monarch would just rubber stamp whatever the Committee advised.

However, some peculiar features arose from this fiction. For example, unlike the House of Lords, which was the final court of appeal for England and Wales, and whose judicial functions were exercised by largely the same people, the Judicial Committee always gave a single set of reasons, without dissent, since it would not be seemly for Her Majesty to receive conflicting advice about what to do. This was all good, since dissents and concurring judgements are really exercises in ego, and confuse lawyers.

The legal fiction had more controversial consequences in that it implied that any restriction on the jurisdiction of the Judicial Committee was, in legal theory, a restriction on the traditional prerogatives of the Queen. The constitutional battles of the seventeenth century had confirmed that Parliament could curtail Crown prerogatives, but went along with a presumption (remaining to this day) that it would not do so unless it said so expressly.

Sir Montague Smith reasoned that the Act must have intended to eliminate appeals as of right, but it did not explicitly eliminate the "Queen's" power to give leave. It therefore remained. The Committee gave leave, but it didn't help the appellant, since they ruled against him anyway. Or rather, humbly advised Her Majesty that her colonial court knew what it was talking about. Since the underlying issue was a secured transaction question under the Civil Code, which could only confuse common lawyers, that was a good move.

Beverley McLachlin or Dick Cheney?

The Supreme Court is pretty anxious about its secrets, even long ago ones.

The Globe and Mail reports that the Court has sent out an e-mail threatening its former clerks with legal action if they talk to a social scientist doing an institutional study of how the court works. The study would have been anonymous.

For reasons discussed by the Ectomorph, it is unwise to get in a legal battle with the appellate court of last resort.

Surely, there's no reason anyone should ever know how really important decisions get made. How did we lose Sunday shopping or legal restrictions on abortion? What happened with patriation anyway? It's none of your damn business.

"The purpose of constitutionalism, which is to subject politics to higher norms of reason, is enhanced in its comparative form."

Professor Murkens defends comparative constitutionalism in an explicitly Platonic vein.

There are two contestable premises here:

1. Politics ought to be subject to norms of reason.

2. The international community of judges is a better source of reason than democratic politics.

Tory Judges Exclude Evidence More; Female Judges Better for Divorced Dads

So says this empirical study of the Ontario Court of Appeal by Moin Yahya and James Stribopoulos, titans of the Canadian legal blogosphere. The finding that their Ladyships are more pro-male than their Lordships reflects folk wisdom in the profession. If I had to hazard an explanation for the fact that Tory appointees exclude evidence under s. 24 of the Charter more than Liberal appointees, I'd say it is just a cohort effect: "Tory" judges were appointed earlier, back when the Charter was cooler.

In Which We Declare War on Kirk Makin, the Globe's Law Reporter

I've long thought the guy is a bozo, as well as a sock puppet for the legal establishment. In today's Globe, we get:

The court's astonishing about-face [from the 1987 Labour Trilogy] ranks with its 2004 [sic.] Chaouilli [sic.] ruling in terms of unexpectedness, coming from a bench that has carved out a reputation as conservative, pragmatic and uneasy about using the Charter of Rights to disturb the status quo. [....]

Rather than being perceived as a startling reversal, however, the majority said that yesterday's decision "may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining."

The first paragraph is a classic example of journalistic unwillingness to revise a narrative in light of counter-evidence. A court that takes major social programs and labour law into the scope of the Charter -- moves the Dickson and Lamer courts did not -- cannot be considered judicially conservative.

The McLachlin Court is not genuinely deferential. It combines an aggressiveness about judicial power with substantively moderate decisions. There are no genuine left-liberals like Wilson or Dickson, but there is an ever-increasing comfort with overturning legislation that they disagree with. They just don't disagree with as much as a Bertha Wilson would.

Let us imagine a court that would hold unconstitutional all and only those statutes it disagreed with. Let's further imagine that the court generally sees things in a similar way to politicians. We'd get a lot of language about deference. No judge upholding a law ever says the challenged law was a good one. For one thing, it's human nature not to take more responsibility for a negative decision than is necessary. Beverly McLachlin was happy to rewrite the law of spanking. She just doesn't think spanking should be criminal (which shows she is a sensible person, by my lights). One would expect a reporter to try to see past spin, but that rarely happens on the court beat.

The second paragraph is even more embarrassing. It claims that there won't be a perception of "startling reversal" because the Court says what it is doing is consistent with history. Similarly, if Stephen Harper says changing the tax treatment of income trusts is completely consistent with his election platform, then there will be no perception of a reversal either. Jeez.

Libertarian Canadian Constitutional Foundation rate the Red Nine

The legal right in the United States is divided into two camps: those like Scalia and Bork who are generally hostile to judicial interference with majoritarian political process and those like Epstein and Barnett who want to see the judiciary defend economic liberty and property rights. Of course, ordinary partisans care more about results, and even the principals of the debate can show some inconsistency. (Note Thomas and Scalia's willingness to invalidate affirmative action schemes under the equal protection clause.) But the lines are undoubtedly there.

In Canada, with its tradition of parliamentary supremacy and with the left-liberal antecedents of the Charter, the idea that the judiciary should be used as a positive force for conservative goals is less common. The National Citizens Coalition (once led by a Stephen Harper) tried to take on the Rand formula, election spending restrictions. Joe Borowski tried to have abortion banned by the courts. These crusades were generally unsuccessful, confirming the supporters of parliamenary supremacy.

There is no doubt that Chaoulli has changed this somewhat. There is now some institutional backing for a quasi-libertarian attempt to employ the tool of legal activism in the form of the Canadian Constitution Foundation. They have recently published a generally favourable review of the "freedom" lovingness of the Red Nine.

Some of the cases that were not considered seem inexplicable from a libertarian point-of-view. For instance, Malmo-Levine upheld Canada's law criminalizing marijuana by rejecting Mill's harm principle. One would think that was worth commenting on. Authorson put the final nail in the coffin of any hope that Diefenbaker's Bill of Rights could be used to defend property rights from Parliament. In contrast, many of the 22 cases chosen seem insignificant. It is good to know that an employer can fire someone who can't come to work because they are in prison, but if that is trumpeted as a major victory for economic freedom, then we're in trouble. It isn't clear to me that there is any good libertarian reason to favour anunlimited contractual capacity on the part of local governments to promise future zoning changes or to give unmarried and unacknowledged biological fathers the right to choose their child's surname.

Anyway, it is an interesting development in our judicial politics.

Recycling

I want to recycle a couple of comments from this thread. Some, but probably not all, typos have been edited.

First, this one:

Would Dicey and Blackstone have agreed that there are “unwritten postulates that form the very foundation of the [British] Constitution”? Yes. Would they say these principles were binding on both Parliament and the courts? Yes. Would that imply that the courts could invalidate a statute passed by Parliament if the courts thought the statute contrary to those principles? No.

A rule can be binding on an agent either internally or externally. The Supreme Court is “bound” to apply a hierarchy of relevant legal sources when it decides a case. But if a litigant thinks they have failed to do so, she is out of luck — there is no other body that she can appeal to. They are not final because they are infallible — they are infallible because they are final.

If we are to have a closed system of positive law, at least one body must be final in this sense. In the British constitution, when it comes to the enactment of laws, that body is the Queen-in-Parliament. Blackstone and Dicey would both have insisted that the Queen-in-Parliament is obliged to follow the unwritten postulates of the constitution, but that obligation is internally binding. By enacting a statute, the Queen-in-Parliament is coming to a judgment that the statute is consistent with the unwritten constitution, and that judgment is not reviewable.

There is no point complaining about the existence of a body whose judgment is not reviewable. That’s just life. Either Parliament’s judgment is unreviewable or the final court of appeal’s judgment is unreviewable. For Dicey and Blackstone, it was preferable that the unreviewable body be Parliament.

Before Confederation, the same system applied to the colonies, except that imperial statutes were paramount over colonial ones. So the courts had the power to consider a colonial statute of no force and effect to the extent it conflicted with the imperial statute. That was the basis of judicial review under the BNA Act. It was, in principle, a corollary of the sovereignty of (the imperial) Parliament. Subject to the BNA Act, though, the federal and provincial legislatures are sovereign within their sphere. Again, they inherit unwritten postulates from Britain — but they are the final interpreter of how those postulates apply to new legislation. On the other hand (and especially once reservation and disallowance fall into disuse), the courts are the final interpreters of the imperial statutes which make up the written constitution.

The English courts have always referred to the unwritten constitution in interpreting legislation or disciplining executive action, and the Canadian courts followed them. It’s just that they accepted that their judgment of what the unwritten constitution might require was bound by the clear intent of Parliament, just as lower courts are bound by the precedents of higher courts.

Eventually we get to 1981-1982. In the Patriation Reference, 7 out of 9 judges made it perfectly clear that only the written constitution could legally restrict legislative sovereignty. The 1982 deal sets out exactly what texts count as the written constitution, and how they may be amended. As a critical part of the final deal, judicial review under much of the written constitution is subject to the notwithstanding clause. Unwritten principles continue to exist, but they play the role they have under the British and then Canadian constitution — used by the courts in statutory interpretation and administrative law, binding internally on the legislatures in making enactments.

Is the Manitoba Language Rights case inconsistent with this (I would argue universal) understanding? I don’t think so, because while it involved reference to the “rule of law” as a value, it did not purport to make it an independent basis for the courts to strike down any statutes.

On the other hand, the Provincial Court Judges case is revolutionary because it places the Court, rather than Parliament and the legislatures, as the final interpreter of the unwritten constitution. And it does so by confusing the issue of being internally bound by a rule and being externally bound by it. The Secession Reference compounds things by using “unwritten principles” to overturn the very amending formula set out in Part V.

And this one:

A practical lawyer might wonder whether there is any point criticizing decade-old precedents. I’d respond with T.S. Eliot’s observation that there are no lost causes because there are no gained ones. If we are in for a period of extended Conservative rule (and I suspect we are), we are going to have a different kind of judicial politics, more like that in the US. Partisan affiliation will become less important for patronage reasons, and more important for ideological reasons. Anyone who observes Canadian constitutional law will see waves of advance and retreat for the cause of judicial supremacy. The Motor Vehicle Act Reference is ultimately followed by Rodriguez (but then by Chaoulli). Oakes leads to Edward Books, Andrews to Law, and Provincial Court Judges’ Reference to Imperial Tobacco. Who knows what will happen with Christie? Whatever happens, the issue of the underlying legitimacy of Lamer’s coup is unlikely to die.

Anyway, in this country, we inherit the tradition of the United Empire Loyalists, and should not be afraid of being identified with lost causes.

I don’t think “incrementalism” and “originalism” are necessarily in conflict, since I think of both –at least in their defensible forms — as counsels of caution, rather than decision rules that will render determinate answers. I wouldn’t start with either, but with the question of the legitimacy of the judicial role. The need for judges arises out of the social need for a definite answer to legal conflicts. That’s the source of the obiter/ratio distinction, as well as of the virtue of incrementalism. Judges act with authority to the extent they say what is necessary to resolve a specific legal dispute. (References complicate things, but this is already too long for a comment, so I’m not going to pursue that point.) They should pick the narrowest (least controversial, least disruptive of settled expectations) grounds to fulfill this function. To the extent possible, they shouldn’t comment on anything else, but if they do, they are no longer acting within their authority.

Originalism, in a defensible sense, is just respect for the deal reached by the principals. Part of that deal, no doubt, was to give the courts a large amount of discretion and power. But a court misues its finality to seize more power than it was granted.

I suppose if time makes a revolutionary act a sufficiently settled part of the social order, it becomes pointless to oppose it. Most days, I have given up on trying to restore the Jacobite line, for example. I don’t think we are there yet with “unwritten principles.”

Is There an Ontologist in the House? Or, how I learned to stop worrying and accepted Lamer as my personal Galileo

The Pithlord may maintain a chin-pulling ambivalence about the merits of the Charter. But he becomes an unhinged, screeching partisan in opposition to the Supreme Court of Canada's post-1997 "discovery" that it can invalidate legislation on the basis of "unwritten principles" not found in the actual constitutional text.

Over at The Court, the Pithlord has been bitching about the fact that the Supreme Court of Canada changed the fundamental locus of sovereignty in our system without any of 35 the lawyers appearing before them even arguing that this was possible. I was then accused by a David Cheifetz of making a fallacious argument from authority:

So now the validity of an argument - either the procedural validity of the analysis or the substantive content of the premises - may be supported by counting the number of apparent experts who are prepared to agree it is right?

Do tell what school of (il)logic teaches that.

It follows from your assertion that that when most of the people on the planet believed the earth was flat, it was correct to say that it was flat. Or would you say we don’t have to count them because they weren’t experts.

The thread after that focuses on the merits of the Provincial Court Judges' Reference and the ethics of posting pseudonymously. Both are interesting issues, worthy of further discussion. But if I am ever going to crack the two digit mark in AdSense revenue, I am going to have to get better at giving the people, especially the critical veteran demographic, what they want. And what they want down at the Legion, I am told, is more post-structuralism. Fortunately, Mr. Cheifitz's question does raise some interesting issues about the ontological status of legal propositions, so I can easily segue into the relationship between power and knowledge,

Is it really fallacious to conclude from the fact that all or almost all experts with an opinion on a point of law believe P to be true that P is in fact true? A cartoon post-structuralist would say that about the shape of the earth or the number of planets in the solar system. In fact, a real post-structuralist would agree that some propositions about astronomy are true and others false, but would say that the development of astronomy as a discipline with epistemic criteria is (a) necessary for there to be astronomical propositions that could be true or false and (b) not itself the kind of thing that can be true or false. And our real post-structuralist would point out that the question of how many planets there are in the solar system depends critically on what counts as a planet, and that is a matter of stipulation and therefore politics. But this is the Internet, and we certainly aren't supposed to be fair to post-structuralists on the Internet.

Even if we assume a naive realist account of truth as "out there" and even if we were talking about scientific propositions, I still wonder if the argument from authority is really fallacious. After all, courts rely on the "consensus of the experts" all the time. Isn't that just the rational thing to do when the acquisition of knowledge is necessarily specialized? The fact that the relevant experts all think P may not prove that P is true, but it should move you to revise your Bayesian priors upward somewhat.

Nonetheless, and all caveats aside, I suppose that we all agree that Galileo was right that Jupiter had moons and everyone else was wrong, including the experts in the Holy Inquisition. It might not have been wise to have said so, but it was still the facts.

But does this mean that when Chief Justice Lamer "discovered" that he had the power to overturn statutes based on unwritten principles, contrary to what the legal profession and judiciary as a whole had thought from the seventeenth century on, he was analogous to Galileo. Could he have just seen further, understood better than the staid conformists who came before?

I think most of us would say, "No. That can't be. Law, unlike astronomy, really is a social construct. If all the lawyers think that legislatures are supreme within the bounds of the written constitution, then that must be the law." When it comes to law, we are all Foucauldians -- knowledge and power, in the end, amount to the same thing. So Lamer might have had the ability to change the constitution, but he couldn't really discover that it was always as only he knew it to be. The implication would be that Mr. Cheifetz's reproach was unjustified. It does follow from the fact that all the lawyers arguing before the Supreme Court in 1997 assumed that they would only invalidate legislation for violating the written constitution, and that they were representative of their profession in this respect, that this was then the law. If the law is different now, it is not that some new truth has been discovered, but that some new power has been won (and therefore lost).

All of this is true enough. But legal advocacy is nonetheless structured around the idea that there IS a law. "Out there", just like the starry heavens above. And, to a suprising extent, this assumption works. The big question is "why" and the answer, I am pretty sure, will come from evolutionary biology.



Photo of "Galileo" by beanic. Photo credit for portrait of former Chief Justice Lamer Phillipe Landreville, Supreme Court of Canada Collection.

Power-Knowledge: Legal Academics and the Charter

In my previous post, I warned the Chief Justice --who is promoting the idea of educating Canadians about their constitution -- that there may be an inverse relationship between knowledge of the Charter and support for it. Andy makes this interesting comment in response:

My view has always been that the Charter was cooked up under pressure from legal academics who were envious of the starring role their colleagues played in U.S. political discourse. Having started law school in 1987, just as the first Supreme Court Charter decisions were being handed down (I can well remember the shrieks of joy when our crim prof walked into class bearing glad tidings about R v Morgentaler), I can attest to the palpable sense of excitement among the faculty that they could now zip through the legalistic "federalism/BNA Act" parts of the constitutional law course in a couple of months while spending the remaining six months on U.S. style Charter casuistry.

So are academic experts on constitutional law the skeptics or the vanguard of the "Court party"? Well, it depends.

Love it or hate it, it's certainly true that the Charter makes Canadian constitutional law courses more interesting. Pretty much anyone would rather talk about abortion and euthanasia than egg marketing boards and the taxation of potash. To the extent a legal academic thinks in terms of power and status outside the ivory tower, the Charter is a pretty tempting object of esteem. Mandel reports that a prominent feminist organization actually lobbied Peter Hogg about the contents of his chapter on equality rights in his ConLaw textbook. But then it is also more fun to attack judicial decisions than celebrate them. So where do people end up?

Legal academics are a curiously hybrid sub-profession. Traditionally, they considered themselves part of the legal profession, and, to the extent the profession likes them, they continue to have more access to power and occasional billing opportunities than most SSH academics could imagine. However, over time, status in the legal academic world has increasingly become based on the same considerations that exist in the rest of the university, rather than the kind of things the profession values. That's led to a lot of tension, and duplication of legal education by the profession.

The result is that legal academics are divided between those comfortable with Bay Street and Wellington Street, and those who are engaged in a different, more academic, status game. The former dominate the University of Toronto law school; the latter are a bit more common at Osgoode.

My own experience at U of T came half a decade after Andy's. I can confirm that all the professors there were plus royaliste que le roi in their support of aggressive judicial review under the Charter. They only differed in how much plus royaliste they were. Those most likely to actually become judges could understand why the Red Nine did not invalidate every law that was presented before them; the others not so much.

By the time I was there, the mood was a bit sourer than Andy recounts. The glory days of Singh and Morgentaler had passed -- we were clearly in the age of bronze. I have no idea what the mood is like now.

Postcript: In the course of researching this post, I found out that the University of Toronto law faculty have a blog. Unfortunately, it sucks.

Charter propaganda in the schools?

As the legal profession gears up for celebrating 25 years of the Charter of Rights,* the Chief Justice has called for teaching constitutional law as a mandatory subject in the "schools and high schools":

[Chief Justice McLachlin] told a Toronto Charter conference that polls and surveys have revealed a disturbing ignorance about how judges make decisions, and the extent to which they can override Parliament and provincial legislatures.

"Canadians don't understand the Charter," Chief Justice McLachlin said. "If we want the Charter to retain the relatively high rate of approval it has been enjoying, we should worry that Canadians know so little about the details.

The Chief is a very intelligent woman, but she fails to consider the obvious inference from the surveys she refers to. Canadians like the Charter and know very little about it. It may be that these facts are correlated. Basically, Charter critics in English Canada consist solely of evangelical Protestants, the odd conservative Catholic, and constitutional experts. Reading a lot of constitutional decisions and thnking about the counter-majoritarian difficulty tends to promote a certain skepticism. Normal people, on the other hand, just think rights are a good thing and we should have more of them. Individual decisions -- especially in criminal law -- are very occasionally controversial, but if there is a real populist groundswell, it is against lenient sentencing, not the Charter.

But more realistically, McLachlin has little to fear from the kind of indoctrination the public schools will doubtless engage in on the subject. It will doubtless create a mild hostility towards something so boring -- rather similar to what most products of the Canadian school system bear towards Margaret Laurence -- but when pollsters come around, most people will recall that the Charter is one of those things they are supposed to be in favour of. The numerically larger categories of dissidents will doubtless be home schooled anyway.


*The actual birthday is next Tuesday, and I'll have a celebratory post, I promise.

The Witty and Incisive Post

As BKN notes, both of the Supreme Court of Canada cases released last week involved that dog's breakfast of administrative law, the "standard of review."

Most law revolves around conflicting imperatives. In administrative law, there is the principle that the ordinary courts should make sure that every body with legal power over the subject keeps within those powers (its "jurisdiction"). The New Dealers left us the competing principle that the expertise of specialized boards and tribunals should be respected (given "deference"). These two ideas -- each of which sounds reasonable -- are sort of at war with each other.

Canadian law tries to resolve the dilemma by deciding on one of at least three "standards of review" that should be applied to the decision of the tribunal by the reviewing court. Some things the inferior tribunal must be right about. Others it can be wrong, as long as it is reasonable. And still others, it can be unreasonable about as long as it is not "patently unreasonable."

This way of resolving the genuine dilemma is patently unreasonable itself. But what is even worse is how you decide which of the standards of review gets to be applied. I'm not going to get into it, but pretty much any administrative lawyer will agree that the whole thing is a mess.

That's bad, but not all that unusual. There are many messes in law. But what is really bad is that the Court calls its multi-factor approach to determining standard of review the "pragmatic and functional approach". And lawyers -- who are all sycophantic courtiers when it comes to legal argument -- follow along, even though they would to a soul agree that "scholastic and dysfunctional" fits better.

Undeserved self-praise in labelling is not unique to the Red Nine. Management consultants, commercial advertisers and politicians are more ubiquitous. Still, the judges are alone in that we expect them to delineate the limits of their own power. In Schmittian terms, they decide on the exception. So it is particularly obnoxious coming from them.

Bad Style and Bad Law

Via Larry Solum's excellent Legal Theory Blog, I found Paul Horwitz's 2000 article in the Osgood Hall Law Review entitled, "Law's Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law".

Horwitz's argument is that the style of judical writing makes a difference for the quality of law, particularly constitutional law. The typical judicial "opinion" (note to PH: in Canada, they are referred to as "reasons for judgment") takes an omniscient and dogmatic tone, states the obvious and irrelvant at length and sets out lots of "tests" and "hurdles" that rarely do much of the work of deciding the case. Horwitz not only thinks that this style is boring, but that it is also bad for the law, and although he doesn't make much of a case for his position, I tend to agree.

Instead, Horwitz would like to see a style of "open-textured minimalism." The Pithlord likes the minimalism part, but to the extent I understand what "open-textured" means (Socrates meets Solon, I suppose), I doubt that most judges are really up to the task. Judges are successful lawyers who have avoided creating powerful enemies-- intelligent and hard-working, usually, but not prophets. A few of them -- like Oliver Wendell Holmes or Richard Posner -- have original minds, but even these people are only acceptable as judges to the extetnt they suppress their most original ideas when on the bench.

Horwitz doesn't care for the Oakes test, and presumably would decry the Delgamuukw decision in which Lamer goes on and on at Russian novel length setting out impractical and many-stage tests, while never deciding any issue actually between the parties. So far, the Pithlord can add little more than "Amen" and "Hallelujah".

The Pithlord gets crankier when Horwitz reveals what he thinks of as skookum judicializing. Horwitz is a big fan of the Secession Reference, in which the Court held that Quebec couldn't unilaterally separate, but that a "clear majority on a clear question" would trigger a duty to negotiate the terms of secession. By Lamer-era standards, the decision is a model of clarity and pith. And the underlying political tradeoff is defensible. However, it seems to me that this case shows a bit of a weakness in the Horwitz approach, since the style cannot hide the substantive trickery of the decision. Our Constitution has a detailed set of provisions for its own amendment. Referenda, whether clear or opaque, have no role in those provisions. Legally, the question the Court was asked in 1997 wasn't hard at all: Quebec couldn't secede (except through revolution) unless at least the federal Parliament and six other provinces agreed, and there is no legal requirement for those other entities to consider a Quebec referendum at all.

Whatever its stylistic merits, then, the Secession Reference was lawless. That strikes me as the bigger point.

Technical note: The University of Montreal website with Supreme Court of Canada decisions seems a bit wacky right now, so I haven't tried to hyperlink the decisions referred to. I may get around to it someday.

The Chief Justice as Superstar

Andy the Ectomorph observes (I think correctly) the much-enhanced public role of Chief Justice Beverly McLachlin in comparison with her predecessor Antonio Lamer, and asks what it all means.

Its superempowered constitutional role has created an institutional need for a politically-savvy and media-conscious figure to do public relations for the Court. The need has existed for a while, but Uncle Tony was just not equipped to provide it: when he spoke extra-judicially and publicly, the result was always embarrassing for the Court Party. Brian Dickson wasn't as bad as Lamer, but he had the same corporate lawyer's incapacity for political communication that we saw in John Turner. Going back even further, Bora Laskin was more successful as a public figure than on his own court, where he was in a permanent minority with Spence and Dickson (L-S-D): in those days, it was really Ronald Martland, as leader of the conservative-Quebec alliance, who was the Chief Justice.

The current Chief Justice, though, is completely and utterly suited to be a public advocate for the court's role. In her own jurisprudence, she combines substantive caution and moderation with a consistent support for expanding the court's role. And she clearly has political skills. Maurice Vellacot was substantively in the right in his conflict with her last spring, but there can be no doubt that he had his political butt handed to him.

I agree with Andy that the Beverley McLachlin is, in many ways, an admirable judge. She is open-minded and pragmatic. And she has a superhuman work ethic. Unfortunately, though, her advocacy skills are put to the benefit of the institutional interests of the court and of the legal profession. That's perhaps what you would expect, given her role, but it could work against the interests of the country. The Harper government would be ill-advised to underestimate her.