1. Assessing Judicial Power November 13, 2010 Ian Greene

2. Background for Judicial Review Five key constitutional principles in Canada – Legislative supremacy (also called Parliamentary Supremacy). The appropriate legislature can make any law within its jurisdiction. Courts settle legal disputes arising under law. – The rule of law (which reinforces legislative supremacy) No one can be made to suffer except for a clear breach of the law Everyone is equal before the law Strict application of the rule of law by judges is the major defence of human rights – Federalism: sovereignty is divided between Parliament and provincial legislatures according to the written constitution – Limited government: The Charter of Rights and Freedoms puts limits on what the 11 sovereign legislatures can do according to the written constitution – Legitimate laws enacted by legislatures are recognized and applied by courts (creatures of legislatures). Canada also has “constitutional conventions” (eg. responsible government), but these conventions are enforced by the political process, not by courts. Legislatures may NOT change convention into law. Note that the “aggregate legislature” (most importantly, 7/10 provincial legislatures representing 50% of pop. plus Parliament) can amend the rules of federalism and limited government, so that the “aggregate legislature” (legislative bodies required to amend the constitution) is always supreme.

3. Judicial Review Courts have the responsibility to ensure that governments stay within their legal jurisdiction – Municipal governments may not pass bylaws that are not permitted by provincial legislation. In Britain, for centuries courts have struck down municipal bylaws that are outside of municipal jurisdiction. – Similarly, provincial and central governments in Canada must stay within their jurisdictions under the Canada Act, 1867 – After 1982, all governments in Canada are limited by the Charter of Rights and Freedoms. Courts must have the power to enforce legislative supremacy and the rule of law, which in Canada includes a federal and limited constitution. Therefore, courts have the power to strike down illegitimate legislation.

4. The controversy The controversy over whether courts are too powerful has nothing to do with their power to strike down legislation. It is about whether they have applied judicial review legitimately. In 1981, I was strongly opposed to the proposal for a Canadian Charter of Rights & Freedoms. I thought judges had done a terrible job of applying the legislated Canadian Bill of Rights, and that they would do the same under a constitution Charter of Rights. My view is that in most respects, Canadian judges have made Charter of Rights decisions that have advanced rather than retarded human rights in Canada, and have done more to promote human rights than legislatures. However, the courts have also made some legally indefensible decisions, and these ought to be challenged by legislatures, just as the courts have challeneged legislatures.

5. Controversial Court Decisions Going back in history, when the Judicial Committee of the Privy Council was Canada’s top court (until 1949), the JCPC made a number of decisions that are nearly impossible to defend with a legal analysis. Lord Watson and Viscount Haldane interpreted the division of powers to increase the powers of the provinces. Why? Both were Scots, and feared that Britain may not succeed without decentralization. Canada – even more diverse – would surely fail without decentralization. Their decisions, thanks to stare decisis, became law. Political scientists have debated ever since whether these decisions saved Canada, or made us nearly ungovernable. As a Westerner and a Scot, I admire Watson and Haldane. But many of their decisions were clearly legally wrong.

6. Contemporary Decisions Judicial Activism is not something new. Given the current level of education of our judges, and public scrutiny, I doubt whether any future Canadian judiciary will be as activist as the Watson-Haldane era. But had it not been for this Watson-Haldane “activism,” Canada may well have not survived as a unified country into this century. – I argue that the basic reason why the Supreme Court has rendered better decisions than I had anticipated is because the judges are much better educated now than they were in the Bill of Rights era. Discuss history of legal education. – When I interviewed appellate court judges in the early 1990s, I asked all of them, “How do you decide between conflicting precedents?” Few gave me the correct legal answer. A plurality said, “you choose the most just precedent.” I’d like to contrast two Charter of Rights decisions of the Supreme Court of Canada which I think summarize both the benefits and dangers in our constitutional system, in which judges are there to support legislative supremacy and the rule of law, but might depart from sound legal interpretation for various reasons. These decisions are – Provincial Judges Remuneration Decision [1997] 3 S.C.R. 3. – Canada (Prime Minister) v. Khadr [2010] SCC 3.

7. Provincial Judges Remuneration Decision [1997] 3 S.C.R. 3. In early 1990s, judges in several provinces were appalled by attacks from provincial attorneys general about their decisions (all conservative provincial governments – Alberta, Manitoba, Ontario) Some provinces had experimented with “judicial compensation commissions” (JCCs) – bodies designed to insulate judicial salary negotiatons from politics. During the recession in the early 1990s, some provinces reduced judicial salaries, or rejected the recommendations of JCCs. Judges associations litigated for violation of judicial independence. Several of these cases reached the Supreme Court in 1996, and were considered together. Supreme Court’s decision: – Judicial independence, referred to in the Charter of Rights regarding criminal cases, consists of more than this limited reference – Judicial independence is one of the basic principles of the constitution, enshrined by the preamble to the British North America Act – Canada has a constitution “similar in principle” to that of the United Kingdom. – Thus, constitutional principle can become enforceable by the courts, thanks to the Preamble. – Judicial Compensation Commissions (never even thought of in 1867) are part of the conventional principle of judicial independence, now enshrined in the constitution thanks to the Preamble. – Judicial salaries may not be altered by governments without due consideration of JCC recommendations.

8. Canada (Prime Minister) v. Khadr [2010] SCC 3. Omar Khadr is a Canadian who was child soldier for Al-Qaeda in Afghanistan, thanks to his jihadist father, who coerced him to fight for Al- Qaeda as a young teenager. In 2002, when Khadr was 15, he was severely wounded and captured by U.S. forces, and then accused of murder. (“unlawful enemy combattant”) Transferred to Guantanamo Bay in Cuba. He was repeatedly tortured at the U.S. base (waterboarding, sleep deprivation, threats), and after one period of torture was questioned by representatives of the Canadian Security Intelligence Service and the R.C.M.P., as confirmed later by the Supreme Court of Canada. The George W. Bush administration had set up special military tribunals to “try” prisoners held at Guantanamo Bay. These tribunals are outside of the rules of international law, and were established because so many detainees at Guantanamo Bay were tortured to give evidence, contrary to international law. Neither legitimate military tribunals nor the internal courts of any democratic country will admit evidence obtained under torture. Nor will they allow the prosecution, as an adult, of a child soldier. For these reasons, in early 2010 the Supreme Court of Canada unanimously found that Khadr’s Charter rights, as a Canadian, had been greiviously violated, but the Court left it up to the Canadian government to determine an appropriate remedy.

9. Canada (Prime Minister) v. Khadr [2010] SCC 3 [2] The government – rather than requesting Khadr’s return to Canada to be dealt with under Canadian law (as had every other Western country) –simply requested the U.S. authorities not to use evidence from Canadian the public servants in the prosecution of Khadr. The request was refused by the U.S. As a result, Khadr brought an application to the Federal Court of Canada in the spring of 2010 for the Canadian government to implement another remedy that would meet Charter requirements. In July, the Federal Court accepted Khadr’s application. The government appealed to the Supreme Court. The appeal has not been heard. Hearings at Guantanamo continued, and recently Khadr pleaded guilty to the murder of a U.S. soldier in return for a plea bargain that would result in no more than 8 years imprisonment, only one year of which would be at Guantanamo in solitary confinement, and the rest of which will be served in Canada according to an agreement with the Canadian government. I believe that Khadr was likely not guilty (both because of being a child soldier, and the legitimate evidence), but he pleaded guilty in order not to spend the rest of his life in prison at Guantanamo. The Supreme Court was right – Khadr’s rights were violated, and it was up to the Canadian government to determine the remedy. The court was right not to tell the government what to do. It is up to the political process to punish the government? Is that likely to happen? If not, should the courts become more activist? Are Canadians too uninformed about constitutional conventions to leave punishment of violations to the “political process”?