Judicial misadventures in unwritten constitutionalism: The Federal Court invents a convention and egregiously runs with it

The federal government has made a total hash out of judicial appointments since 2016. It has allowed lengthy vacancies to persist and is slow to replace retiring judges, even when their retirements are anticipated by a mandatory retirement age (although it has been a bit quicker lately). It’s a problem that contributes to major backlogs and a serious access to justice crisis, and as with many things (given the utter lack of transparency around how we’re governed in Canada) we don’t quite know why the government seems so bloody incompetent on this file. [One thing we know that isn’t the issue: there is no shortage of lawyers in this country, nor lawyers who want to become judges].

It is against this background that yesterday’s ruling by Justice Henry S. Brown was likely greeted with little more than nodding heads. Justice Brown issued a declaration to the effect that the federal government must make judicial appointments in a timely and suggested that the vacancies should be reduced from their current number of approximately 75 to the mid-40s.

As a ‘declaration’ rather than a writ of mandamus, the ruling is in a sense more symbolic than a specific enforceable order by the Court. But in this particular context, there is almost no meaningful distinction because it is doubtful there is a real remedy that a formal order could resolve: what could, or will, the Court do if the government is unable to significantly improve its efficiency in making appointments? I suspect very little, precisely because the formal appointing power as outlined in the Constitution - as belonging to the Governor General - does not give the courts much leeway in substituting a different process or ordering specific appointments themselves (any ‘direct’ remedy like this is simply unfathomable).

The ruling might appear to be entirely sensible, except for the reasons Brown employed when issuing it, which rely almost entirely upon the completely fallacious idea that timely judicial appointments are a “constitutional convention” and that conventions can be a basis for a judicial declaration like this.

The decision evinces a major misunderstanding of the nature of constitutional conventions. Brown wrongly transforms the recognized convention that it is the political decision-makers (the PM and cabinet) who make appointments in practice (through “advice” to the Governor General, who then makes the appointment as a matter of formal law) into the idea that, since there is a constitutional requirement that judicial appointments be made, it naturally follows that they be made in a timely manner, and thus the convention itself can be described as one requiring just that.

In making this leap, Brown ignores the requirements for recognizing a convention as normative (prescriptive) requirements pertaining to political behaviour: that there is a reason for the rule, that there is precedent supporting the rule, and that the relevant political actors agree they are bound to a rule. It is a giant red flag that Brown never engages in any sort of analysis (such as the Supreme Court’s application of the so-called ‘Jennings test’ in the 1981 Patriation reference that specifies these three conditions). This is because on any reasonable account of the test, the idea that a convention exists with respect to “timely appointments” would fail. While there is an obvious underlying reason for the rule, neither precedents nor the agreement of the relevant actors are established here. Indeed, precedent - the idea that months-long judicial vacancies are unacceptable - goes entirely against the idea of a convention relating to timeliness. Similarly, we would not be in this situation if there was a strong belief held by the government that they were breaking a recognized convention.

But even if we could meaningfully speak of a convention on timely appointments, the definition of what counts as ‘reasonably timely’ appointments would not - indeed, could not - be up to the courts but would instead be determined by the political actors themselves. This is because conventions are the moral rules of political conduct - binding rules of political behaviour that are not enforced by courts. They are not law. They are not legal rules.

Unfortunately, Brown suggests otherwise. In a frankly dangerous passage, he concludes that conventions, once judicially recognized, are effectively common law (i.e. judge-made law) rules (see, paras. 84-105). This blows up the distinction between convention and law, something none of the cases Brown cites in support of his conclusion actually do.

In fact, in the most relevant case, the Patriation reference, the Supreme Court recognized a convention that a “substantial majority” of provinces needed to support a proposed amendment to the Constitution before the House and Senate could make a joint submission to the UK to effect changes to the constitution (this ‘convention’ was also a judicial invention; some felt a convention existed requiring all provinces to agree, and others felt there was no convention at all, and the Court seemed to decide it could split the difference - but that’s a debate for another day). What’s important about the Patriation reference, however, is that the dual majorities went to great lengths to explicitly distinguish between their legal finding (nothing prevented the Prime Minister from seeking to unilaterally request patriation) with their non-legal and thus non-legally binding decision about the status of the convention.

Brown effectively abandons this central distinction, first by suggesting that judicial recognition makes conventions part of the common law and then by issuing what appears to be nothing short of a legal declaration about the purported convention that the government must act. It is a violation of the separation of powers and a clear act of judicial activism. It threatens to upend the practical and political nature of the operation of the broader constitution and subjects to judicial oversight the machinery of government even in the absence of actual legal rules.

Brown’s recourse to constitutional convention to justify this outcome is plainly the result of there being no constitutional or statutory provision upon which to rest his reasoning. The most relevant provision, section 96 of the Constitution Act, 1867, plainly requires that the Governor General make judicial appointments. A policy of non-appointment, then, would likely infringe this guarantee (as Stephen Harper’s policy of non-appointment to the Senate late in his tenure as PM likely violated similar provisions relating to the Senate).

But there is nothing in the law that says the government can’t do a terrible job filling judicial vacancies. And there is nothing about the convention of practice (who makes appointments, in practice as opposed to the formal law) that says anything about the nature of those appointments, the efficiency of the decision-making, or the timeliness.

For many legal observers, who demand legal answers to seemingly legal problems - and certainly a valid, major problem for the work of the judiciary and the justice system - this is a very unsatisfactory argument. And I should say there might be a point at which a poor job at filling judicial vacancies might become such a crisis that it threatens the integrity of the entire system (despite the Chief Justice of Canada’s letter that the current situation is “untenable”, I don’t think we’re quite there yet), such that perhaps there are legal answers to this problem (consider, for example, Charter jurisprudence requiring timely trials).

But you can’t justify appalling reasoning just because it arrived at a good ‘outcome’ (indeed, it’s not even an outcome because, again, there no real remedy available here). There is too much at stake for future cases, for the operation of our politics - indeed, for the democratic nature of our parliamentary system - to let this poorly-reasoned judgment stand.