THE VIRTUE OF JUDICIAL RESTRAINT OR WHO GUARDS THE GUARDIANS? REMARKS OF THE HONOURABLE MALCOLM ROWF.

• Position: REFLECTIONS

1. A SIMPLE QUESTION

   To begin, let me pose a simple, but fundamental question: how should the three principal institutions of the state--the legislature, the executive, and the courts--relate to one another?

   Note, this question is not about what gets decided. Rather, it is about who gets to decide what. Thus, it is not about the content of public policy. Rather, it is about the process by which that policy is decided. Restraint is not about the content of policy. Rather, it is about which institution of the state makes what policy decisions. Restraint is about institutional relationships.

   Until the Constitution Act, 1982, (1) legislatures were supreme, subject to the federal-provincial division of powers. Judges interpreted and applied laws--a more policy laden exercise than is advertised--but courts did not invalidate laws, save on the division of powers. Executive action was reviewed under administrative law.

   Things changed. There was a Canadian Charterof Rights and Freedoms (Charter). (2) There were Aboriginal and treaty rights. And there was express authority to invalidate any law to the extent of its inconsistency with the Constitution?

   Before 1982, judges accepted that public policy was largely for parliamentarians and ministers, not for them. After 1982, judges had to adapt to their additional public policy role. At first, the traditional judicial "culture" was a gentle brake on constitutional litigation.

   Early decisions were well received, as Canadians embraced the Charter. Confidence grew in the legitimacy, then the central importance, of the Charter. Legal education, practice, and jurisprudence became Charter-oriented.

   Before 1982, judicial restraint was hard-wired into the system. After 1982, the hard wire connected judges to the power to invalidate laws. Restraint was no longer imposed by the system. Now, it is more a matter of outlook, of how one sees the role of the courts.

   The Chief Justice of the Manitoba Court of Queen's Bench, Glenn Joyal, said in January 2017:

   [A] broad cross-section of [Canadians have]... an almost unconditional willingness to accept... judicial adjudications... of what are often complex... social and political problems. What were once political issues are now frequently transformed into legal issues. (4) I would reformulate slightly what Chief Justice Joyal said: the nature of the issues remains the same; what has changed is who decides those issues. To a greater degree, it is judges who do so.

2. WHO GUARDS THE GUARDIANS?

   That is a prelude to my topic: The Virtue of Judicial Restraint. Why do I say that restraint is a virtue? My explanation begins in an unlikely place, in Plato's Utopia, The Republic.''

   In The Republic, Plato describes an ideal society guided by an elite, the guardians. But, what if they step outside their proper role ? Who will guard against the guardians ? It seems the guardians will guard themselves, as they will be virtuous and their virtues will include self-restraint.

   History shows that while those striving to bring about an ideal society have generally had a positive effect, where this has led to unchecked power the result has been a tale of grief. As an extreme, think of Mao Tse-Tung. Then contrast that with the moderate and restrained approach of Nelson Mandela. Plato's philosopher kings would almost certainly have proven Lord Acton's famous dictum, that all power corrupts and "absolute power corrupts absolutely." (6)

   Aristotle had expressed a similar view in his Politics when he wrote that it would be "bad for a man, subject as he is to all the accidents of human passion, to have the supreme power". (7) Aristotle placed reliance on laws arrived at by the many, rather than on rule by the best people. He wrote, "[t]he multitude ought to be supreme rather than the few best". (8) Aristotle wasn't a democrat, of course, but he probably would have been quite comfortable with collective leadership, perhaps along the lines of the Venetian republic.

   As to Plato's guardians, our society has its guardians. Prominent among them are judges. But, what if judges step outside their proper role? Who will guard against these guardians ? The guardians will guard themselves, as they are virtuous. Their virtue should include restraint.

3. HABITS OF MIND

   Let me first describe, briefly, three habits of mind that support restraint: (1) pragmatism; (2) the wisdom of experience; and (3) seeing the proper operation of the legal system as an end in itself.

   1. PRAGMATISM

      By inclination and experience, I am a pragmatist. By this, I mean that I see practicality as a more reliable guide than ideology. I do not mean expediency, which readily contemplates departure from principle. Rather, I mean an approach grounded in principle, but shaped by considerations of consequence. To me, this is self-evident. But, it warrants repetition that what is so obvious to me may well be strongly contested by others. An example of such differences was the 2018 Mikisew decision. (9) In it, I wrote about the serious practical consequences of finding that the duty to consult is engaged by the preparation of legislation, rather than in its review for constitutionality when adopted by Parliament as contemplated in R v Sparrow. (10)

      You might ask, how can one take a pragmatic...