Image from Chris Wattie | Reuters

Ryan Lindenbach is a 2L student at the University of Ottawa Faculty of Law (Common Law Section).

On February 15th 2017, the Faculty of Law at the University of Ottawa continued its long standing tradition when it hosted the nine judges of the Supreme Court of Canada as well as many distinguished guests and students to hold a reception ceremony for the Honorable Justice Malcolm Rowe. Following the kind opening statement by Céline Lévesque, Dean of the Civil Law Section, and a few words from François Larocque, Dean of the Common Law Section, the Honorable Madame Chief Justice Beverly McLachlin enthusiastically took on the role of introducing Justice Malcolm Rowe. During her speech, Chief Justice McLachlin recognized the tradition that had been forged, in order to welcome new judges appointed to the Supreme Court to the “broader legal academic milieu of Ottawa.” Furthermore, in her remarks towards this tradition, she made reference to the long standing relationship that exists between the Supreme Court and the University of Ottawa as well the mutual benefit to all that participate in the ceremony. When describing Justice Malcolm Rowe, Chief Justice McLachlin recognized his reputation as “a thoughtful hard working judge with a keen sense of justice” and an “experienced and accomplished bilingual jurist who brings to the court a wealth and diversity of experience” among his many qualities. The Chief Justice also described him as a “deliberate thinker” and “[a] truly nice man” while describing Justice Rowe on a personal level before concluding her introductory remarks.

The Honorable Justice Malcolm Rowe, in the same fashion as the Dean and the Chief Justice, articulated his speech in both official languages. He spoke of his colleagues at the Supreme Court as a family, whose responsibility is towards the Canadian judicial system; a family that has welcomed him with an open embrace. The topic Justice Rowe elected to talk about was the Canadian constitution, more notably, “perspectives on constitutionalism in Canada.” The topic of interest within this large theme was constitutional conventions. Justice Rowe was particularly familiar with this topic since he had taught about it at the University of Ottawa in the 1990s.

After describing the Canadian constitution as a collection of laws that dictates who can make what decision, he elected to separate the broad notion into seven groups: (1) the written constitution; (2) aboriginal ancestral rights and rights stemming from treaties; (3) constitutional arrangement adapted for self-governing aboriginals; (4) the unwritten constitution; (5) laws and customs of parliament; (6) quasi-constitutional laws and; (7) constitutional jurisprudence.  Staying within the original topic of interest, constitutional conventions, Justice Rowe decided to speak of the four latter topics and not of the first three.

Beginning his analysis by stating “most of the constitution is unwritten”, Justice Rowe recognizes the responsibility bestowed upon government to determine its own framework while recognizing the fundamental rule that its decisions must not go against the written constitution. Although the unwritten constitution comprises most of the constitution in its largest sense, Justice Rowe acknowledged that there is no “definitive statement of constitutional conventions […] nor is it possible to make one.”  He conceded, all that can be done is to describe what happens in practice. In order to explain this, Justice Rowe gave the example which made the distinction between the theoretical powers of the Governor General and how this power is exercise in practice, being closely circumscribed by constitutional conventions.

Justice Rowe, moving onto the second group of conventions, discussed parliamentary conventions and the operation of cabinet. Seeking to delineate his analyses, he enumerated three best known conventions; “confidentiality, solidarity and collective responsibility”. Venturing into the unknown, Justice Rowe also enumerated certain practices of cabinet that may not have obtained the status of convention, the most notable of these being the role of the prime minister to set the agenda for cabinet. For this, he said, “while proposals come from the sponsoring ministers, it is the [prime] minister’s decision as to when or even whether they appear on the cabinet agenda.”

Proceeding to better known constitutional conventions, Justice Rowe presented the conventions stemming from the relationship between cabinet and the legislature. Among these, the most “fundamental” being that “ministry must conserve the confidence of the legislature.” This is put to the test most distinguishably by the vote of legislature on the budget. To further this point, Justice Rowe admits “if the legislature does not approve budgetary measures, the ministry must seek a mandate through an election or it must resign”. However, not every defeat by the legislature will constitute a vote of none-confidence; Justice Rowe elaborates that it is dependent on the circumstances. Within this discussion, Justice Rowe expanded on the importance of the laws and customs of Parliament. These conventions such as the role and responsibility of the speaker, “operate within the context of certain written rules which are often call the Standing Orders.” Ending this topic of the obligation of royal assent, Justice Rowe presented the long-standing convention that the Governor General give his assents, while briefly comparing it with the theoretical power of disallowance and reservation provided in Article 90 of the Constitution Act 1867.

Turning to quasi-constitutional laws, Justice Rowe highlighted Québec’s autonomous role when it adopted in 1975 the Charter of Human Rights and Freedoms for its province. However, he reserves the potential difficulties that can arise in applying such a law in conjunctions with the Canadian Charter of Rights and Freedoms, demonstrated in the case Chaoulli v Quebec (AG), 2005 SCC 35, [2005] 1 SCR 791.

In his last topic, jurisprudence, Justice Rowe made a point of noting he would be focusing on topics generally left out by the courts. In this way, he spoke of constitution conventions and structural argumentation. Speaking of the role of the courts, he recognizes that “constitutional conventions are not enforceable by law, nonetheless they were found to be in 1981, justiciable and can be recognized by the court by declaration.” Due to this, the courts can determine what a convention is comprised of and what it requires of the parties. Justice Rowe found this characteristic to be fundamental and says it permits a “critical protection for constitutionality”. Furthermore, he elaborated that some circumstances require definitive answers on constitutional convention, to bring clarity and certainty, the absence of which “would be harmful to the country.” Justice Rowe detailed the two competing theories on constitutional conventions. The first of these, that constitutional conventions are simply political arrangement would lead to the conclusion that the courts have no role. The second theory “convention while they describe arrangement between political actors, do not speak to political issues, rather they are a critical part of an overall set of constitutional arrangements. In this sense, conventions are a constitution” leads to the opposite conclusion, that the courts would have a role in upholding them. Being mindful of his new role in the judiciary, Justice Rowe was cautious not to speculate too much on either of these theories.

In ending his speech, Justice Rowe discussed of structural argumentation. In essence, the Supreme Court has relied on an organizing principle “drawn from basic feature of the constitution” to complete its interpretation when the constitution is silent on a fundamental issue. However, the principles are classified as interpretive aids, and cannot be used as a stand-alone argument (R v Imperial Tobacco Canada Ltd, 2011 SCC 42, 3 SCR 45.). Certain recent examples were noted by Justice Rowe, such as judicial independence (Re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3, 150 DLR (4th) 577.), federalism, democracy, the rule of law and protection of minorities (Re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385.). While concluding on constitutional conventions, Justice Rowe, while quoting Lord Stain, made a reflection on the sovereignty of parliament. In this case, he noted that constitutional conventions must be evaluated in conjunction with the notions of constitutionalism. In this way, the conventions are at the mercy of the evolution of these notions.

Justice Rowe, while speaking in a more formal and academic tone at this occasion, did illustrate many of his qualities. First and foremost, his ability to speak both official languages in an exquisite manner. Second, his love and understanding of the Canadian constitution and its intricacies. Lastly, he demonstrated great wisdom and knowledge towards the Canadian judiciary as a whole.

Through his words on the important complementary role of conventions, Justice Rowe held up another important tradition; the close relationship between the legal academic community and the judiciary in Ottawa.