The Elected and the Appointed

Dennis Baker rails against Canadian constitutional orthodoxy. He refuses to exalt the 1982 Charter of Rights and Freedoms. He will not genuflect to senior judges and eminent professors, the Charter’s high priests. He enthusiastically bashes what he calls the “legal elite.” Despite these stimulating qualities, Baker’s Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation is unlikely to make it off university reading lists into main street bookstores. It is complex, fond of arcane in-house controversies that concern only a tiny group of legal scholars and full of jargon. It is a pity if that limits readership, because Baker presents an alternative and original constitutional theory, one that is tightly argued, comprehensive and interesting.

Baker’s main point is that interpretation of the Canadian constitution by the judiciary is not necessarily the last word on the subject. The legislative branch can reject what the courts say. He writes that “it is often perfectly reasonable for a legislature to test the Supreme Court’s resolve and conviction in its own judgment by persisting for a time longer with its contrary legislative interpretation.” Indeed, this testing of the judiciary by the legislature is highly desirable, since “the Canadian Supreme Court, relying on the claim of constitutional interpretive supremacy, has indeed usurped the executive and legislative powers.”

Baker also argues that the legislature has partial independence from the executive. Legislators, he says, are not trained seals. He has to argue this way, for otherwise his theory that the legislature can “test” the judiciary would be torpedoed by the objection that legislative power over the judiciary is just another avenue for undemocratic executive control over everything. It is a bonus for Baker that a legislature with some independence, one that can talk back to the executive, mitigates the need for a Charter-empowered judiciary to check the government. Baker calls his theory “coordinate interpretation.” Its essence is “that each branch of government—executive, legislative, and judicial—is entitled and obligated to exercise its constitutional powers in accordance with its own interpretation of what the constitution entails … The interpretative power is shared between institutions in the course of an unfolding process of constitutional interpretation … It is only through repeated inter-institutional exchanges that enduring constitutional principles emerge.”

Baker asks why so many are hostile to the theory of coordinate interpretation? Principally, he says, it is because it conflicts with the cherished belief of lawyers that the judiciary is assigned the exclusive power to interpret the constitution. This belief, argues Baker, confuses constitutional supremacy, which just about everyone thinks is a good idea, and judicial supremacy, which is quite a different (and bad) thing. The confusion is driven by “the orthodox assumption that, lacking any effective separation of powers between the executive and legislative branches, the only effective checks and balance in the Canadian system are those provided by the courts.” 

The villains perpetrating this wrong-headedness are the members of something Baker calls the “legal elite,” most of whom seem to hang their hat in Toronto. Baker revels in the role of cantankerous outsider, hurling imprecations at Toronto law professors from his redoubt at the University of Guelph where he is an assistant professor of political science. His favourite targets are Peter Hogg, constitutional law scholar and former dean of Osgoode Hall Law School, and professors Kent Roach and Sujit Choudhry of the University of Toronto law school. People like Hogg, Roach and Choudhry “prefer the rigid clarity of judicial interpretive supremacy to the messy politics that can occur under a more coordinate system.” According to Baker, these law professors just do not get it: “Contrary to the accepted opinions of some of Canada’s foremost constitutional thinkers, the separation of powers continues to play a vital [sic] in Canada’s constitutional design.” (He means separation between the legislative and executive branches.) Baker points out, with some justification, an inherent absurdity in the legal elite’s supremacist logic. “The only means of contesting a Supreme Court’s interpretation is through formal constitutional amendment or, where applicable, invocation of the notwithstanding clause. An interpretive power construed in this fashion, however, would create a stark asymmetry: a judicial interpretation—perhaps amounting to a judicial amendment of the constitution—can be made by a simple majority of a nine-judge court; it can be formally overruled only by an exceedingly supermajoritarian process or with the high costs of using the notwithstanding clause.”

This is bracing stuff. The judiciary does not provide the last word on the constitution. Legislators are not trained seals. Nuts to you, legal elite! But, heady as it is, there’s a problem or two with Baker’s approach. The theory of coordinate interpretation does not seem to explain what we actually see when we examine the institutions of Canadian governance. In the world as we know it, everyone behaves as if the Supreme Court does have the last constitutional word. Parliament, prorogued and otherwise abused by the prime minister whenever it suits, shows little if any convincing independence from the executive branch. Baker offers no empirical evidence to support his point of view. It is not convincing, for example, to summon up section 53 of the Constitution Act, which requires money bills to originate in the House of Commons, to support the claim that there is a “finely tuned interaction between the executive and legislative branches.” The theory of coordinate interpretation is not a description of what actually happens. It is normative and politically inspired, born on the right wing, designed to help turn back what is seen by some as a storm surge of Charter excesses. 

The theory of coordinate interpretation also subverts the possibility of desirable reforms. Many think, for example, that the time has come to change the way Supreme Court judges are appointed. As things stand now, the prime minister privately chooses who is to fill a vacancy, and that’s that. This is inadequate and inappropriate if judges have the final say on important matters and have to stand up to other branches of government. If that is the case, then perhaps judges should be appointed in a very public way, perhaps one that requires legislative approval, and for a limited term (as in South Africa). But if coordinate interpretation is at work, how judges are appointed matters much less. If that is happening, then there is a sort of undifferentiated mass of people bossing us about; the details of who’s who hardly matter.

Dedicated readers of the LRC will have noticed in the last issue David Smith’s review of Andrew Petter’s The Politics of the Charter: The Illusive Promise of Constitutional Rights. According to Smith’s review, Petter regards the Charter as “a setback in the struggle of ordinary people to attain democracy,” a regressive political instrument used to promote the interests of the economically privileged. He rejects placing democracy in servitude to “academic scribblers or imperial judges” who encroach on the prerogative of the legislature by telling elected officials how to deal with public policy. This sounds like another promo for something like the theory of coordinate interpretation (we can’t let those unelected judges use the Charter with impunity and without check). Perhaps there is something in the wind.

But then again, as Petter might put it, all this is just a bunch of academic scribblers going after imperial judges. Guilty, M’lud!