The Supreme Court of Canada is a Marxist institution. Not Karl, don’t worry. They’re followers of Groucho Marx. “These are our principles”, they tell us. “And if you don’t like them, we have others!” This much is clear from today’s decision in York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22. What else it might mean, above all for the way in which Canadian courts will now review administrative decisions that implicate constitutional rights, remains to be seen. Or not, perhaps. If you don’t like our precedents, we have others!
The case arises out a school principal’s snooping on two of his teachers, whose private online chats he took pictures of and who were subsequently disciplined as a result. The question, first posed to a labour arbitrator and then to courts on judicial review, was whether the snooping breached the teachers’ privacy rights. Although it was not framed in this way before the arbitrator, the issue is ultimately a constitutional one, engaging s 8 of the Canadian Charter of Rights and Freedoms and its “right to be secure against unreasonable search or seizure”.
Or at least it is constitutional if the Charter even applies to school boards, which the Supreme Court had never actually decided. In YRDSB, the Court unanimously removes that bit of uncertainty; the majority argues that
[p]ublic education is inherently a governmental function. It has a unique constitutional quality, as exemplified by s. 93 of the Constitution Act, 1867 and by s. 23 of the Charter. Ontario public school boards are manifestations of government. [81]
This has to be correct. So long as government schools exist, there seems to be no good reason to treat them differently from government departments, government tribunals, or government prisons.
But that being so, and a school principal being, from administrative law perspective, in position similar to a prison warden or a minister, the question arises of the standard on which the principal’s decision’s compliance with the Charter is to be reviewed. Must it be right, because the constitution is, after all, and by its own terms, “the supreme law of Canada”, or is it enough for decision to be reasonable ― to sort jam with Charter vibes, a.k.a. Charter values?
Readers with particularly long memories ― longer than those of the Supreme Court’s judges ― may recall that the Court answered that question all of six months ago, in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31. There, writing for a unanimous bench, Justice Côté saw “no reason to depart from [the reasonableness] standard of review” when addressing a minister’s consideration of the Charter and the vibes, no, sorry, values, thereunto appertaining. That approach had, indeed, been set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, and confirmed by narrow majority, in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293. While there were serious questions about whether that made sense in light of the seemingly more cautious attitude the Supreme Court took towards administrative decision-making in Vavilov v Canada (Citizenship and Immigration), 2019 SCC 65, [2019] 4 SCR 653 (which, however, pointedly eschewed Charter issues), Justice Côté did not see fit to address or even advert to them. But that was then.
Now, it’s all different. Writing for the Chief Justice and Justices Côté (the same Justice Côté, it bears clarifying, not a namesake), Kasirer, and Jamal, Justice Rowe declares that
The issue of constitutionality on judicial review — of whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis — is a “constitutional questio[n]” that requires “a final and determinate answer from the courts”. [63, quoting Vavilov, at [53], [55]]
This is because “[t]he determination of constitutionality calls on the court to exercise its unique role as the interpreter and guardian of the Constitution”, [64] ― a role that, as Chief Justice McLachlin insisted in Trinity Western, does not lose its importance or change in nature in the face of an exercise of administrative rather than legislative power. Justice Rowe notes that both courts and academics have argued that correctness review was constitutionally required when Charter rights are engaged. Among the latter, he cites co-blogger Mark Mancini’s excellent paper on “The Conceptual Gap Between Doré and Vavilov“. Congratulations, Mark!
All that would be fine, in the abstract. As readers probably know, I, like Mark, have long opposed the Doré/Trinity Western requirement of deference to administrative decisions that potentially interfere with constitutional rights. I have no time for the nonsense concept of Charter values. I too have written a paper criticizing these ideas, though my stuff is only for plagiarising, not citing. I was scathing when CSFTNO came out, as well (and so was Mark). If indeed the Supreme Court has decided to disappear this entire line of cases like a disgraced People’s Commissar from a Soviet photograph, I shall shed no tears.
But I am not, in fact, about to celebrate. For one thing, I have proclaimed Doré‘s demise before, after the Supreme Court simply ignored that precedent in a couple of cases where it was plainly apposite. At the time, Paul Daly wrote that he didn’t expect significant changes in the Supreme Court’s overall approach, and he turned out to be right: in TWU, Doré was back. While today’s decision seems more clear-cut, and might more difficult to disregard, the Court has form: it is very good at simply ignoring past decisions, even very recent ones, and reverting to following lines of authority that seemed cut off for good. After all that is what YRDSB does to CSFTNO, which is not even mentioned in Justice Rowe’s opinion, and to Doré, whose only mention comes in the recapitulation of the decisions below. Justice Rowe does not deign to discuss a decision that was fundamental to this area of the law for well over a decade, and until six months ago.
And this brings me to my fundamental complaint about YRDSB, which is the same I had about CSFTNO. It’s an unserious decision. It ignores key precedent ― in this case, CFSTNO itself, or misrepresents it. (Chief Justice McLachlin’s opinion that Justice Rowe does cite was a concurrence, and sharply opposed to the majority on just this point. Justice Rowe does not mention this.) While to his credit Justice Rowe does refer to other judicial and academic opinions, which Justice Côté in CSFTNO simply ignored, he does not engage with the contrary views, which have also been expressed in scholarship, however misguided I happen to find them. I don’t know whether the Supreme Court’s judges think that simply pretending their opinion is the only possible one makes it more persuasive. But I do know that it doesn’t. Again, the fate of CSFTNO is a lesson here, disregarded no sooner than the ink with which it would have been printed, if it were printed, could have dried.
In my post about CSFTNO I wrote the following, which seems apposite again:
The Supreme Court’s failure to address any of these issues in a decision on a point of fundamental constitutional importance … is a serious matter. Supreme Courts, as Justice Jackson famously observed, are not final because they are infallible but only infallible because they are final. If they are to have greater authority than that of ipse dixit, they cannot rely on finality alone. … [T]o act as if no one else had views worth considering on the issues they decide is a conceit that risks being fatal to their credibility.
If anything, YRDSB goes one better than CSFTNO, by suggesting not only the views of others, but those of the Supreme Court itself are not worth giving a hoot about. If you don’t like them, they have others!
Double Aspect 