Wanted: A Canadian Rehnquist

The Harper government should have an opportunity during its term to make the Supreme Court into a body where the principles of judicial restraint and sound legal reasoning have strong exponents. Its opportunity is however restricted by the complete absence in Canada of a movement comparable to the U.S. conservative judicial revolution of the last few decades. It is not Stephen Harper's fault that one may look over the entire Court of Appeal plus all law faculties in the province and find no one who dares to dissent from the current regime of legal Bolshevism that followed the enactment of the Charter of Rights. Worse, the Ontario A-G and Federal DOJ constitutional lawyers of whom I have personal knowledge are if not card-carrying members, at least committed sympathizers of the left-wing human rights industry.

What the Government needs to come up with is another William Rehnquist. Rehnquist's career prior to his nomination as a SCOTUS judge was not as a judge or legal academic, but as a lawyer in the Department of Justice. (President Nixon happened to drop by a meeting at the Department of Justice which Rehnquist had handled with great skill. He was also at that time however wearing a jacket with a flamboyantly wide lapel and a bright yellow tie, leading Nixon to refer to him thereafter as "that clown". Nixon also was unable to remember Rehnquist's name, so after two of his nominees had been defeated by the Democratic Senate, Nixon, searching for a replacement, asked, 'What about that clown Renchburg?') The extent of Rehnquist's legal conservatism was, because of his DOJ background, unknown to those passing scrutiny on him. With the paper trail he would have had as a judge or professor, he would never have got through the Senate.

In addition, Rehnquist had the courage of his convictions. Rehnquist had no problem with recurrently being on the wrong end of 8-1 decisions, earning him the title, seriously or mockingly, of "The Great Dissenter". It would be over a decade before Rehnquist would be joined on the court by anyone else with a similar commitment to judicial restraint and original meaning. And longer than that before the legal academics were to take conservative legal thought seriously. But once you have 3 or 4 exponents of any judicial approach on the court, they have no choice.

With two Ontario appointments this summer, the Government can be cautious and prudent and select a woman practitioner or government lawyer who at least is not a full-fledged fanatic. But with the other appointment. what the Prime Minister needs to do is to pull, apparently out of his hat, the name of another Rehnquist, someone to hold the fort until the lower courts can be seeded with possible future appointees and some means can be designed to give the jurisprudence of true meaning and judicial restraint a foothold in the academy. He needs to be able to find himself a facsimile of "that clown Renchburg".

A Miss Thorne Conservative

When I came upon Trollope's portrait of Mr Thorne in Barchester Towers, I thought that I had found a man of fellow temperament:

In politics, Mr. Thorne was an unflinching conservative. He looked on those fifty-three Trojans, who, as Mr. Dod tells us, censured free trade in November, 1852, as the only patriots left among the public men of England. When that terrible crisis of free trade had arrived, when the repeal of the corn laws was carried by those very men whom Mr. Thorne had hitherto regarded as the only possible saviours of his country, he was for a time paralysed. His country was lost; but that was comparatively a small thing. Other countries had flourished and fallen, and the human race still went on improving under God's providence. But now all trust in human faith must for ever be at an end. Not only most ruin come, but it must come through the apostasy of those who has been regarded as the truest of true believers. Politics in England, as a pursuit for gentlemen, must be at an end. Had Mr. Thorne been trodden under foot by a Whig, he could have borne it as a Tory and a martyr; but to be so utterly thrown over and deceived by those he had so earnestly trusted, was more than he could endure and live.

Mr Thorne for a while withdrew from political discussion and social intercourse entirely, but

...that plan of his for avoiding the world did not answer. He, however, and others around him who still maintained the same staunch principles of protection -- men like himself, who were too true, to flinch at the cry of a mob -- had their own way of consoling themselves. They were, and felt themselves to be, the only true depositaries left of certain Eleusinian mysteries...To them and them only was it now given to know these things, and to perpetuate them, if that might still be done, by the careful and secret education of their children...He had within him something of the feeling of Cato, who gloried that he could kill himself because Romans were no longer worthy of their name. Mr Thorne had no thought of killing himself, being a Christian, and still possessing his 4000& a year; but the feeling was not on that account the less comfortable.

But Trollope had better to come. On discovering his sister, Miss Thorne, my feelings of sympathy of temperament were perfected:

As a politician, Miss Thorne had been so thoroughly disgusted with public life by base deeds long antecedent to the Corn Law question, that that had but little moved her. In her estimation her brother had been a fast young man, hurried away by a too ardent temperament into democratic tendencies. Now happily he was brought to sounder views by seeing the iniquity of the world. She had not yet reconciled herself to the Reform Bill, and still groaned in spirit over the defalcations of the Duke as touching the Catholic Emancipation. If asked whom she thought the Queen should take as her counsellor, she probably would have named Lord Eldon; and when reminded that that venerable man was no longer present in the flesh to assist us, she would probably have answered with a sigh that none now could help us but the dead.

I've never known how to describe myself when asked what kind of conservative I was. Now I can say that I am a "Miss Thorne conservative".

Canada's Not Returning the Favour

In view of transnationalist law professor Harold Koh’s controversial nomination to the position of State Department legal adviser, and Justice Ginsburg’s recent comment that the Supreme Court of Canada commands more respect in foreign courts than does the Supreme Court of the United States because the SCC listens more to other countries’ high courts’ jurisprudence than does SCOTUS, it seems appropriate to ask — does Canada return the favour? Koh believes SCOTUS should construe the U. S. constitution “in light of” foreign law when that foreign law contains roughly parallel provisions. So would Canada return the favour when its constitution contains provisions roughly comparable to those of other countries — like, say, the United States?

We found out the answer to that in one of the most important early cases interpreting Canada’s new-as-of-1982 Canadian Charter of Rights of Freedoms in a case that has to be in consideration for the title of worst reasoned Charter decision of all time. In Reference Re Motor Vehicle Act [1985] 2 S.C.R 486. the Court had its first opportunity to resolve the most crucial question about the interpretation of Section 7 of the Charter, which reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

If you're an American, does that look familiar? The Fifth Amendment provides that no person shall "be deprived of life, liberty, or property, without due process of law". Now there is a vast jurisprudence and scholarly literature concerning the appropriate scope of the Fifth and Fourteenth Amendments, with a particularly notable debate about the appropriateness of "substantive due process", a doctrine which has animated such notable American decisions as Lochner and Roe v. Wade.
Now the language in the two jurisdictions is not identical, but the similarities suggest that the SCC might at least have referred to the American experience to help it understand the immense implications of the choice of interpretation they were about to make.
The Court didn't see it that way. The majority opinion, written by Lamer J. entirely rejected the idea of consulting American law, rejecting

the characterization of the issue in a narrow and restrictive fashion, i.e., whether the term "principles of fundamental justice" has a substantive or merely procedural content. In my view, the characterization of the issue in such fashion preempts an open-minded approach to determining the meaning of "principles of fundamental justice".
18. The substantive/procedural dichotomy narrows the issue almost to an all or nothing proposition. Moreover, it is largely bound up in the American experience with substantive and procedural due process. It imports into the Canadian context American concepts, terminology and jurisprudence, all of which are inextricably linked to problems concerning the nature and legitimacy of adjudication under the U.S. Constitution.

Got that? Substantive Due Process and Procedural Due Process are (Gasp!) "American concepts". Not only don't we care how the Yanks reason about things, but we're not even going to let our reasoning be tainted by use of these foreign concepts.
Needless to say, after rejecting this distinction the Court went on to affirm full substantive due process, without using the barbarian words. Oh, and this was by the way the case which also at one stroke killed the doctrine of originalism in Charter jurisprudence. More is known about the original intent of Section 7 than about any other part of the Charter. The words "due process" were specifically avoided to prevent the possibility of the importation of American substantive due process to Canada. The words "fundamental justice" were intended to mean no more than procedural "natural justice". Lamer J. ignored the indisputable evidence of this intent, considering it to be "of little weight".
So if the Americans follow the advice of Dean Koh and other transnationalists and start using Canadian experience to help interpret their Constitution, don't expect Canada to be returning the favour.