Thank you all for the helpful thoughts and comments. Some responses are below. I’ll probably turn a full round of edits this weekend in accordance with the below.
I don’t think that hypothetical is very likely to come to pass. The requirement that the PM consult with the Court on appointments is in the current Judicial Act, and has never prevented an appointment as far as I am aware. In any event, the law cannot command the impossible. If there were no member of the Court with which the PM could consult, then the PM could simply submit appointments to the Assembly directly.
As a firm believer in the rule of lenity, I agree with this edit and will implement it.
I agree that Justices should be permitted to file concurrences and dissents, but I’m not sure that has to be codified into the Judiciary Act. Is there any lawful basis on which the Court could restrict the ability of Justices to issue such opinions? If not (and I don’t believe that there is), then I would generally prefer that practice to develop as a custom of the Court, rather than via legislation.
Regrettably, I agree with Erstavik that the Court’s opinion is susceptible to that interpretation, even if it is not the only plausible reading. But I also agree with Pronoun that it’s somewhat awkward to single out a single judicial opinion for repeal. My general view on this precedent is that the Assembly should monitor its development carefully. Since its meaning is at least ambiguous, we should see how, if at all, the Court applies it going forward before stepping in to legislate more detailed justiciability rules.
I’m not sure I follow this comment. The Chief Justice merely assigns each case to an individual Justice to preside over the matter. The Chief Justice has no authority to decline to consider a case on behalf of the Court. Could you point me to the language that you believe creates such authority?
Fair point. I will make that edit.
I’m not sure how that would work given that the Court really can’t force any member to represent someone in the way that RL public defenders are employed to do that. I suppose the Court could make a public call for volunteers, but would that be any different than the criminal defendant doing the same?
That’s correct, but it would still be different than it is now. Today, we have a situation where two Justices (the appeal “panel”) are asked to overturn a decision by two other Justices (the initial “panel” who issued the decision that is being appealed). That does not make sense. In the scenario you lay out, it requires two Justices (i.e., 2/3 of a hypothetical 3 member Court sitting en banc) to overturn the decision of one Justice (i.e., the Presiding Justice who issued the decision that is being appealed). That is much more in line with how appeals are designed to work–more judges overturning the decision of fewer.
I’ve intentionally kept factual review quite limited, i.e., to new evidence or instances of clearly erroneous factual findings by the Presiding Justice. In my view, en banc appellate proceedings should be primarily focused on resolving important legal issues that will govern future cases, rather than case-specific factual determinations.
This is an interesting point. The personal information standards in this draft are identical to those in the current Judicial Act. I would appreciate comment from sitting Justices if they have had any responses to these interpretive questions or have experienced challenges applying the current standards.
I stand by my previously expressed views on separation of powers and would argue that whatever tweaks to our rules are necessary, a reform of the Judicial Act is not the place to make them.
I left these comments for last, as they strike me as related and the most conceptually challenging.
The limitation of 3.1(b) to negative injunctions blocking unlawful government action was intentional. For two reasons. First, empowering the Court to direct government officials in the exercise of their constitutional and statutory powers brings the Court perilously close to improper interference in political affairs. Second, and more importantly, the language of the Charter that empowers the Court to hear and decide review requests seems limited in that way. Perhaps reflecting concerns about the Court interfering in political affairs, it refers only to the High Court having “the power to declare any [government action] void upon a determination that it violates the terms of this Charter or any other constitutional law.” The express enumeration of the Court’s authority to void government action in deciding review requests would seem to exclude the possibility of an unenumerated power to order government action in deciding such cases. Put differently, and just to make Pronoun happy, expressio unius est exclusio alterius.
That said, one might wonder if the Court would be empowered to order affirmative actions by government officials in its legal question jurisdiction. Maybe. But this draft intentionally channels any such authority into the temporary injunction mechanism, which are both temporally limited and can only be issued for specific reasons. To my mind, that strikes the proper balance between permitting the Court to issue such orders where absolutely necessary and, to quote another Court, transforming the High Court into “continuing monitors of the wisdom and soundness of executive action.”
On the related AWA point, I certainly considered adding just such a provision. And I’m still open to it, but I think it merits fleshing out what sorts of orders we envision as being necessary to preserve the Court’s jurisdiction. The only one that comes readily to mind is the authority to stay a Presiding Justice’s opinion and orders pending appeal of the underlying case to the full High Court. And perhaps authority to issue a temporary injunction to preserve the status quo where the Presiding Justice handing the case has declined to do so. Any others?