Impartiality and Constitutional Adjudication Ph.D. Dissertation
CONTENTS 1 - Impartiality in Constitutional Adjudication 2 - Constitutional Protection of Aboriginal Interests 3 - Justified Limits on Aboriginal Rights 4 - Impartiality, Social Rights & Institutional Capacity Conclusion SUMMARY My dissertation tests the hypothesis that judicial decision-making under a constitutional bill of rights remains impartial. It does so through a close analysis of judicial reasoning in selected areas of constitutional rights law. In Canada, political scientists have paid scant attention to the possibility of impartiality in judicial decision-making under the constitution. This is consistent with prevailing methodological assumptions in political science, which do not, in general, view principles and norms arising from professional obligation as useful analytical tools. Instead, political scientists, with certain exceptions, are apt to explain judges’ decisions with reference externally observable 'facts', such as the absence of electoral constraints, the ideological or cultural predispositions of judges, revealed through their elite backgrounds, and/or judges' material self-interest in maximizing their own political power and currying favour with certain powerful interest groups. As a whole, this body of work represents a profound challenge to the idea of the rule of law. If it can be truly said that judicial decisions under a constitutional bill of rights are made for personal as opposed to legal reasons, then it must follow that under the Charter of Rights and Freedoms, and other constitutional rights-protecting provisions, Canadians are ruled by individuals, rather than the law. To a certain extent, the tendency to ignore the norm of impartiality in the explanatory enterprise would seem to be required by the nature of the judicial task in interpreting the constitution. Canada’s Charter offers nothing on its face to authoritatively direct the interpretation and application of broad, aspirational terms such as 'freedom of expression,' 'equality' and other rights. Given that the ‘law’ of the Charter appears to provide no direct authority in this regard, it is not surprising that scholars would ignore it as an explanatory variable. On the other hand, methodological assumptions about the influence of ‘political’ factors have been applied to the judiciary without serious examination of theoretical alternatives. Legal theorists have long grappled with the possibility of law under legal text which is to some degree indeterminate. At a basic level, the debate may be characterized as one between those who hold that law, if it is to exercise authority and thereby determine to some extent legal outcomes, must take the form of rules, and those who believe on the other hand that law may have an effect even if it does not appear to settle conclusively, in the manner of a rule, the questions which arise under it. The most famous of the former school, which is broadly known as legal positivism, is H. L. A. Hart, who described law as a system of rules generating clear obligations. For Hart, in the absence of clear rules there could be no law, for no legal obligations could be appreciated by the supposed subjects of the legal order. The opposing camp may be exemplified by natural law scholar R. M. Dworkin, who viewed law as an interpretive enterprise requiring moral reasoning about the nature of principles and their particular application to concrete cases. For Dworkin, the effect of law was to provide the opportunity to think about and settle policy problems in light of these principles, as opposed to the raw political power of opposing groups or non-moral policy considerations such as efficiency. In general, theories of law such as these attempt to capture the ways in which the law can claim some practical authority, so as to displace the personal preferences of legal decision-makers. And, quite a few theories of law allow for the possibility that this authority may inhere even in laws which appear to permit or require discretion. Even if the law requires the exercise of discretion or moral reasoning, in other words, it is not necessarily the case that it has no authority over that discretion and can be effectively discarded as an explanatory variable. Such a move may be warranted, certainly, but only after genuine and sustained engagement with theories of law, and the testing of their insights on the evidence of legal decisions. My dissertation tests one purported norm of judicial policy making in particular - the requirement of impartiality. At the outset, the analysis is confronted by the familiar conceptual challenge of locating a legal norm where the rules are unclear. Impartiality has a particular burden in this regard, in that it is often thought to be synonymous with the very act of following a rule. To decide legal cases impartially, it is said, is simply to apply a rule without passion or prejudice. Where the rules appear to be unclear, such as under the Charter of Rights, impartiality on this conceptualization must be an irrelevant consideration. In response, the dissertation first explains alternative conceptions of impartiality, which may be recognized in decision-making even when rules are unclear. Building on legal and political theory, the discussion proceeds from the insight that often, legal subjects expect judges to reason impartially, even when it is clear that the law permits or requires the exercise of discretion. Judicial decisions in the areas of sentencing in criminal law and assigning damages in tort law, for example, are expected to be impartial, even though these are discretionary activities. From this analysis the dissertation crafts a model of impartiality - roughly, the idea of sensitivity to harm and the balancing of competing harms - which can account for this expectation, and which may be a similarly relevant expectation under the Charter. In the dissertation, this is called impartiality as consideration. As well, impartiality can be understood as ensuring equality of treatment under the law. An impartial judge will ensure that the law treats those who are relevantly similar similarly, and that it makes suitable accommodation for relevantly different persons. Laws may be overbroad or underinclusive in light of their purposes, and therefore vulnerable to claims of partiality, depending on the way they categorize individuals for certain kinds of treatment. The protection against overbreadth and underinclusiveness, roughly speaking, is the right of equality, a vital aspect of the rule of law. Here it is called impartiality as consistency. The claim is not that these kinds of substantive impartiality, as opposed to formalist rule-following, conclusively settle constitutional disputes in all cases. It is rather that impartiality entails a distinctive approach to resolving such disputes which is recognizable in judicial decisions and which in theory will appeal to judges faced with indeterminate legal text. It may be contrasted with other sorts of interpretive constitutional approaches which seek to limit the scope of constitutional rights review by declaring certain sorts of considerations and interests off-limits or irrelevant. Impartiality is fundamentally and absolutely hostile to the notion that constitutional rights automatically and absolutely 'trump' other considerations of significance. Impartiality is concerned to fully investigate all sides of a constitutional dispute, rather than allowing one set of interests to have a free ride. In this respect it is demonstrably distinct from other, more partial approaches to constitutional adjudication, and is also attractive, in theory, as a judicial norm. These two elements make it a useful approach to assessing constitutional judgments. In subsequent chapters, the dissertation subjects to empirical testing the hypothesis that these varieties of impartiality - consideration and consistency - characterize decisions taken by judges under the Charter. It examines closely the judicial reasons in a series of constitutional rights cases to verify or disprove the hypothesis that legal judgment in the Charter era remains impartial. The cases are drawn from two significant areas of constitutional rights law - social rights, including cases under sections 7 and 15(1), and aboriginal and treaty rights under section 35(1). Throughout, dynamics which can be interpretively explained according to the norms of impartiality are highlighted, and methods of reasoning and decisions which do not accord with any variety of impartiality are likewise examined. Of course, such a limited series of cases cannot offer any sort of conclusive proof that judicial decision-making under the Charter has or has not been impartial, but it can provide some sense of the usefulness of theorizing impartiality and testing for its influence in the scientific examination of Charter decisions. It is important to emphasize that no conclusions are drawn ahead of this empirical test about the explanatory power of an impartiality ideal. The study does not assume that judges are more impartial than other political actors, or that as a matter of fact they have been impartial in the constitutional cases which have arisen for their consideration. Rather, this is exactly what is being tested, in light of the serious challenge to the rule of law posed by the implicit claim that judicial decision-making under the Charter is entirely a matter of power, prejudice and self-interest. Neither does the dissertation offer any normative defense of the ideals of impartiality, as they are conceptualized here. Rather, the aim of the study is to shed some light on the effects of enshrining rights in a constitution and subjecting subordinate legislation and policy to rights-based judicial review. Whether such effects are desirable in particular societies, facing particular sorts of political challenges, is a very different matter. .
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