By Sean Fine for The Globe and Mail
When Federal Court Justice Henry Brown ruled this month that Prime Minister Justin Trudeau and his cabinet need to appoint more judges, fast, he did something no judge has done before.
Justice Brown told the federal executive branch that its inaction on judicial appointments is a constitutional violation, and that it is the business of the courts to supervise the government until it does its duty.
Traditionally, judges in Canada have stayed away, mostly, from telling the Prime Minister, cabinet and the legislative branch what to do. The underlying idea: The “separation of powers” among the different branches of government needs to be respected, even as judges maintain their role as guardians of constitutional rights and freedoms. Cabinet and legislators weigh priorities and set political directions – and judges defer.
But Justice Brown’s ruling cast aside such deference.
“Henry Brown’s ruling is certainly muscular and unusual,” says Joseph Magnet, a law professor at the University of Ottawa.
Justice Brown is not the only one in recent months to go out on a limb. Federally appointed judges have asserted themselves in a series of cases in which they have stood up to the executive and legislative branches in Ottawa and the provinces, striking down some laws and ordering other laws put on hold until constitutional issues can be decided.
Another Federal Court judge, Justice Richard Mosely, ruled in late January that the federal government’s invocation of the Emergencies Act to shut down the anti-vaccine-mandate convoy protests in Ottawa and elsewhere two years ago was unreasonable.
Ottawa has asked the Federal Court of Appeal to overturn that ruling.
Lawyer Sujit Choudhry said Justice Mosely treated cabinet, the ultimate decision-maker, as simply another “wielder of statutory power” – that is, subject to review like any other government official or administrative body.
“He brought the cabinet down to earth,” said Mr. Choudhry, who represented the Canadian Constitution Foundation in its successful challenge in that case.
But that’s just the most notable among a whack of other muscular and unusual rulings.
In Federal Court, Justice Angela Furlanetto found in November that cabinet had acted unreasonably in listing plastic manufacturing items as toxic, a listing that enabled the government to ban certain single-use plastics such as cutlery and some straws.
In December, the Supreme Court of Canada rejected as unreasonable a cabinet minister’s decision in the Northwest Territories to deny spots in French-language schools to several non-Francophone children. Two months before that, the court ruled that a major environmental law known as the Impact Assessment Act, giving Ottawa sweeping regulatory powers over natural-resource projects, was an unconstitutional overreach into provincial jurisdiction.
In British Columbia, Supreme Court Chief Justice Chris Hinkson stopped the provincial government in late December from banning drug use in certain public places until constitutional arguments could be heard and ruled on.
And on Feb. 12, Ontario’s top court ruled that a wage agreement imposed on public-sector workers by the provincial government violated the workers’ Charter rights.
The case before Justice Brown began with human-rights lawyer Yavar Hameed applying for a court order that the government appoint more judges, saying that his vulnerable clients could not gain access to an understaffed justice system. The federal government said Justice Brown had no jurisdiction in the matter.
Justice Brown said he certainly did. He described the government’s responsibility to appoint judges as a constitutional convention, and while Supreme Court precedent barred him from enforcing a convention, he said he expects cabinet to “obey the law” and reduce the number of vacancies to the mid-40s in a reasonable time.
Prof. Magnet has acted as counsel in more than 200 constitutional cases, been an adviser to the federal government and provincial ones, and is the author of 18 books. Justice Brown is his former student and research assistant.
He said he can’t comment on whether the judiciary is “somehow aroused and more willing to challenge the executive,” but added: “I do not rule out that there could be a greater level of frustration in the federal judiciary than previously. Henry’s reasons provide some cause for thinking that is so – overwork, understaffed, too many retirements, and resignations, and more.”
Now lawyers are leaping on the precedents to challenge the tradition of “hyper-deference” toward cabinet. (The phrase is from University of Ottawa legal scholar Paul Daly.)
“If, and it’s a big if, the Supreme Court upholds the logic of this first decision,” said Andrew Heard, a political science professor at Simon Fraser University, referring to Justice Brown’s ruling on judicial appointments, “then it definitely could open the door to more challenges to governments ignoring their duties across a range of contexts.”
In April, the Supreme Court will hear a case in which a divorced father seeks to throw out federal child-support guidelines created by cabinet as unreasonable. His legal filing says they are based on “broken logic.”
One reason for deference is that courts are “sometimes not at all good” at devising effective public policies, said Jeremy Webber, a former law dean at the University of Victoria.
In B.C., for example, the province decriminalized the use of illicit drugs for a three-year trial, with federal permission, and passed a law banning such uses in outdoor recreational areas and near bus stops and building entrances. Chief Justice Hinkson determined that the ban would drive drug users underground, and posed a danger to them. He suspended the legislation.
“The legislature is trying to allow space for public authorities to manoeuvre, to reduce the carnage [of the opioid epidemic], perhaps to experiment with approaches, in a zone where there are no easy solutions,” Prof. Webber said. “In the absence of clear evidence of a mis-weighing of those concerns, how does it help the situation to simply strike it down by anticipation?”
Typically, judges still do show a high degree of deference to cabinet and legislators, says lawyer Tom Slade, mentioning two cases from this month – one in which the Supreme Court upheld legislation affirming Indigenous self-government in child-welfare matters, and one in which it upheld Ontario Premier Doug Ford’s refusal to make his 2018 mandate letters to his cabinet ministers public.
“The fact that deference is the default partly explains why Justice Brown’s ruling on judicial appointments attracted so much attention,” he said. “Likewise, the recent Emergencies Act decision was an exceptional result in a sea of decisions ruling in favour of the legislative responses to the pandemic.“
But others say the growing trend is courts leaving deference behind.
“There does seem to be a general abandonment of the idea of restraint or deference as judicial virtues, particularly in the legal academy, but also with Canadian judges,” said Geoffrey Sigalet, director of the UBC Centre for Constitutional Law and Legal Studies.
But judges’ deference is selective, says Bruce Pardy, who teaches law at Queen’s University. “They have become increasingly deferential to government policies and administrative decisions when they are progressive, but not when they push in the other direction,” he said.