THE STRUCTURAL AND ADMINISTRATIVE DEMANDS OF UNWRITTEN CONSTITUTIONAL PRINCIPLES.

• Author: Berger, Kate Glover
• Position: Unwritten Constitutional Norms and Principles: Contemporary Perspectives

Introduction I. The Sources of Constitutional Structure II. The Canadian Judicial Council and the Process of Removing Judges A. Initiating the CJC's Inquiry and Investigation Process B. The Conduct of Proceedings by an Inquiry Committee C. After Proceedings of an Inquiry Committee III. Judicial Independence and the Removal of Judges Conclusion Introduction

This article asks: What are the implications of unwritten constitutional principles for concrete issues of institutional design in the public law order? To explore this question, this article focuses on a particularly relevant case study--namely, the oversight of judges. It considers what the Constitution requires of the discipline, and in particular the removal, of federally appointed judges in Canada. Section 99(1) of the Constitution Act, 1867, the sole provision to expressly address removal in the written constitution, shapes this case study. Section 99(1) provides that a federally appointed judge is removable by the Governor General upon address of the Senate and the House of Commons. On the face of the text, no other procedural steps are required to remove a judge from the bench. But the removal of a judge from office is a striking constitutional moment, one that can both jeopardize and advance judicial independence and the rule of law. By involving both the executive and legislative branches and by empowering both the upper and lower chambers, the decision-making process entrenched in section 99(1) reflects ideals of transparency, public accountability, and democracy in response to the fundamentally political character of removing a judge. In this way, section 99(1) highlights that the process to be followed to remove a federally appointed judge necessarily implicates dramatic and delicate issues of inter-branch relations and constitutional design. This article speaks to those relations and design, exploring how they are shaped by constitutional principles and aspiration.

The design of the judicial removal process in Canada has been under scrutiny in a number of recent cases before the Federal Courts, principally because of claims raised by the Canadian Judicial Council (CJC or Council). Established under the Judges Act, the Council is responsible for inquiring into allegations of misconduct against superior court judges and, when warranted, recommending removal to the minister of justice. (1) In response to challenges by judges whose conduct has been under investigation in recent years the CJC has argued that its decision-making processes and reports are immune from judicial review. While the Federal Courts have quite rightly rejected these claims, (2) neither the submissions of the CJC nor the courts' reasoning tells the full story about the nature of the Council's role or the Constitution's procedural and institutional demands for removing judges. This article aims to tell more of this story.

It is in service of this aim that this article considers whether the text of section 99(1) is a complete account of the constitutional demands for removing a superior court judge from the bench. It explores how unwritten constitutionalism, and in particular the unwritten principle of judicial independence, should inform how we read section 99(1). In short, this article argues that judicial independence requires certain forms and structures of decision-making be in place, in addition to the processes of deliberation guaranteed by the text of section 99(1), when considering and effecting the removal of a superior court judge. The article ultimately concludes that judicial independence demands that superior court judges be eligible for removal under section 99(1) only after an inquiry is held, one with certain defined features, and one that investigates the alleged misconduct and assesses the facts against the constitutional standard of good behaviour. The necessary features of this inquiry are paradigmatic in administrative law: the inquiry process must be carried out by a body that is independent from the political branches of government; the body must conduct itself in accordance with a strict commitment to the independence of the judiciary; the inquiry must be carried out in accordance with the duty of fairness; and both the process and substantive determinations of the inquiry must be subject to review by the courts.

With its focus on the CJC, this article goes beyond reorienting the unwritten constitutionalism literature to questions of institutional and structural design and, further still, goes beyond addressing the implications of unwritten principles for processes of judicial discipline. It also contributes to concrete conversations about legislative and operational reform of the CJC and existing regulatory arrangements. While this article does not offer a complete blueprint for renovating the existing decision-making framework, it does assess the institutional design and workings of the Council against the backdrop of judicial independence, which is instructive for conversations about reform of the existing regulatory arrangements.

At the same time, this article confronts the issue of how the Constitution might contemplate certain administrative minimums. That is, the Constitution might require certain administrative institutions or processes and it might specify some of the features of those institutions and processes, as well as features of their relationship to other institutions and processes. This more general issue inevitably raises the idea of a constitutionalized administrative state, which is a larger architectural implication of the arguments of this article. (3) By exploring potentially necessary connections between the Constitution and structures of the administrative state, the study of the CJC within Canada's public order offers insight into these broader inquiries as well. Indeed, while the emerging field of "administrative constitutionalism" has tended to focus on understanding the role of administrative actors in interpreting, implementing, upholding, and undermining constitutional rights, (4) this article highlights and contributes to a second structural branch of administrative constitutionalist inquiry. (5)

Like all questions that marry law with institutional design, the questions underlying this article ask us to care deeply about the substantive character of structure, form, and process and about the resulting practical demands for transforming this substance into reality. But the questions of this article become more complex because they ask us to work through these issues of design in a context shaped by multiple ongoing debates about the nature and effects of unwritten constitutional principles. For example, this article takes seriously the legitimacy of unwritten constitutional law and is thus confronted with the naturalist and structuralist critiques of unwritten constitutionalism more generally. (6) Further, this article accepts that unwritten constitutional principles have enforceable legal effects and it is therefore in conversation with claims that unwritten principles are both too abstract and too disconnected from the constitutional text to ground enforceable legal obligations for constitutional actors. (7) And further still, this article suggests that certain provisions of the Judges Acts (8) may be unconstitutional on account of their inconsistency with judicial in dependence, an unwritten principle of the Canadian Constitution, thus engaging the active debate on whether unwritten principles can and should limit legislative power. (9)

But this article does not only contribute to conversations as they are currently framed. Its primary aim, rather, is to direct much needed attention to gaps in the law's understanding of the impact of unwritten principles on the structure of the public order and the design and operation of public institutions. In this sense, it not only resists the preoccupying force of questions about unwritten principles and legislative invalidity, but also advances thinking on unwritten principles and institutional design beyond the defining impact of the Remuneration Reference. (10)

This article proceeds in three parts. Part I explores the relationship between the Constitution and institutional design. Given that this article suggests that unwritten constitutional principles can require the existence of particular institutional decision-making frameworks, Part I provides a high-level account of the role of written and unwritten constitutional sources in the design, operation, and interactions of public institutions. This account shows the inevitable role of unwritten sources in understanding the institutions and structures of Canada's constitutional order. It then focuses on the specific roles of unwritten principles, detailing the ways in which these principles have been used to first, set concrete minimums and aspirations for public actors (11) and second, entrench the need for certain decision-making structures to exist within the framework of government. With this background in place, Part II then turns to the existing process for removing judges in Canada. It sets out this process, as governed by section 99 of the Constitution Act, 1867, and explores the CJC's investigation and inquiry regime. In describing the CJC's role, Part II provides greater detail on the claims of the CJC regarding its constitutional status and immunity from judicial review.

This discussion leads into Part III, the heart of the article. Part III explores the structural implications of judicial independence in the context of removing judges from the bench. Drawing on theories of constitutional structuralism and judicial independence, this Part argues that an inquiry process designed and carried out within constitutional parameters must precede legislative and executive action under section 99(1). Within these parameters, Parliament has much freedom in designing the inquiry process and the body or bodies...