On Friday, the Globe and Mail dropped a large bombshell by revealing that four of the six judges proposed by the federal government to fill Justice Fish's seat on the Supreme Court of Canada came from the federal courts.
Regular readers will of course know that in Reference re Supreme Court Act, ss. 5 and 6, the Court held that federal court judges could not be appointed to its three 'Quebec seats'. Two months on the controversy has still not subsided: I wrote an op-ed for the Ottawa Citizen last week with Carissima Mathen; we have organized a free symposium that will take place this Wednesday at the University of Ottawa.
The latest sad and unfortunate outcome of L'affaire Nadon (to borrow from the title of Justice Gilles Letourneau's presentation for Wednesday's symposium) is that the federal courts are now being painted as kangaroo courts, ready to jump as high as the federal government says. In the eyes even of usually sensible commentators federal court judges are, apparently, 'more deferential' to the government. Hence why Mr. Harper -- a fierce opponent of judicial activism -- stacked his longlist.
This is not a new narrative: I have heard senior practitioners (senior enough to know better) describe the federal courts as "government courts". But it is now seeping into the public consciousness. It should be strongly challenged.
First -- and in the absence of empirical evidence impressions are all we have to go on -- there is no reason to believe that federal court judges are any more 'deferential' than other judges. One might get that impression from reading their decisions, but one should remember that judicial review dominates their workload. And in judicial review cases, the deck is stacked against the individual. Administrative decisions are presumptively valid, it is an uphill struggle to get a court to apply anything other than a deferential standard of review, and as long as decisions are relatively clear and fall within a range of reasonable outcomes, the federal courts cannot intervene.
Second, a large body of federal court work is immigration law, an area in which weak cases are more likely to be brought. So much rides on immigration decisions that individuals have strong incentives to pursue every legal avenue available, regardless of the merits of their cases. Dealing with weaker cases on a deferential standard might make judges appear pro-government, but that would be an illusion created by circumstance.
Third, there are high-profile cases in which the federal courts, particularly the Federal Court of Appeal, have refused to defer to the federal government. Georgia Strait, written by Mainville J.A. and concurred in by Nadon J.A. (two of the names on the longlist) invoked separation of powers concerns against a claim that deference should be accorded to a ministerial interpretation of law. Indeed, it is plausible that concerns about the quality of decision-making in government departments would motivate the federal courts to be less deferential. Having been exposed to low quality decision-making, federal court judges promoted to the Supreme Court of Canada and freed from the shackles of precedent might prove to be quite interventionist.
If an expectation of greater deference from federal courts judges was the federal government's reason for stacking the shortlist, it was pretty weak, a shortcut to judicial restraint singularly unlikely to change Canada's prevailing legal culture.