Upcoming Talks

Following in my co-blogger Leonid Sirota’s footsteps, I am posting a list of the talks I am giving across Canada this fall. My list is much shorter than Leonid’s, but if you are at any of these events, please feel free to come say hello. As Leonid says, it is always great to meet readers of the blog in person:

September 19: University of Saskatchewan College of Law, 11:30-1pm, “The Extreme Intoxication Defence” with Professor Sarah Burningham. I will discuss my recent paper on the McCaw case and declarations of invalidity in superior courts.

September 20: Canadian Law and Economics Association Annual Conference, University of Toronto Faculty of Law, 12:00pm: “An Economic Theory of Immunization in the Canadian Law of Judicial Review.” My paper deals with the problem of immunization adverted to in a number of Federal Court of Appeal decisions, and advances an informational explanation for the causes of immunization.

More information on the conference here. 

October 18: Université de Montréal (Symposium of the Journal of Commonwealth Law): “The Political Problem with Human Rights Tribunals,” a discussion of the norm of independence in administrative decision-making and the tension between political accountability and independence.

Hope to see you at one of these events!

Ignoring Legislative Intent: Deference in Quebec and s.96

The constitutionality of a regime of deference is not something much explored in the wider context of Canadian administrative law. But in Quebec, the question is a live one because of particular statutory and judicial arrangements. The Quebec Court of Appeal just released a case [the Reference] that dealt with the question head on: does a statutory court’s statutory review of administrative decision-makers become unconstitutional if that court is required to apply principles of deference?

In this post, I first review the set-up of the Court of Quebec and its relationship with various statutes that nourish it with appellate review power. Then I address the controversy surrounding the way the Court is arranged. I argue that deference in these circumstances is, indeed, unconstitutional based on first principles. It deprives the Superior Court of Quebec of a core element of its jurisdiction—its ability to review, without impediment, inferior tribunals. But I argue that there is a way around the constitutional problem. Courts should begin to recognize, and give full effect, to statutory rights of appeal as elements of legislative intent. Doing so largely eliminates deference questions and is more aligned with the task of judicial review: to discover what the legislature means when it delegates power.

The Court of Quebec, Established Law, and the Quebec Court of Appeal’s Conclusion

The Court of Quebec is a statutory court. It has been given, through a number of statutes, appellate review jurisdiction over a number of administrative tribunals in the province of Quebec. This is a key point that I will return to later: appellate, statutory review jurisdiction should be fundamentally different from an application for judicial review.

In the reference before the Court of Appeal, the chief justices of the Superior Court challenged eight separate legislative schemes that provide for appeals to the Court of Quebec. Their challenge was based on s.96 of the Constitution Act 1867, which, among other things, guarantees a core jurisdiction for the superior courts of the provinces. The challenge concerned not the establishment of a statutory court/tribunal per se (which has typified the jurisprudence around s.96), but the requirement imposed doctrinally that the Court of Quebec must apply principles of judicial deference when they review the decisions—via statutory appeal—of administrative decision-makers.

Administrative law buffs might immediately recoil at the argument, because the Supreme Court has long made clear that judicial review principles apply regardless of whether a case comes to the court via an application for judicial review or statutory rights of appeal (see Dr. Q, at para 20; Saguenay, at para 38). The Court has even held, with respect to the Court of Quebec, that it is required to apply principles of judicial deference (Proprio Direct, at paras 19-21). But recall that this argument is constitutional in nature—that the status of the Court of Quebec, coupled with the requirement of deference, runs afoul of the protections afforded in s.96 of the Constitution Act, 1867 for superior courts. This is a unique argument because it is both the jurisprudential requirement of deference and the Court of Quebec’s statutory status which, together, create an alleged unconstitutional effect.

The Quebec Court of Appeal, though, rejected this argument in whole. It held (1) that the Court of Quebec must apply common law principles, with Dunsmuir standards of review as the governing tests (see para 280); and (2) although there was a transfer of authority to the Court of Quebec that, at first glance, usurps the Superior Court’s s.96 role, this was insufficient to cause a s.96 problem, because “…all of these legislative schemes maintain the Superior Court’s superintending and reforming power” (324). In other words, there was no privative clause ousting the Superior Court’s power on “jurisdiction,” even if the Court of Quebec was to apply deferential principles of review. Since what was envisioned was not an exclusive transfer of jurisdiction (as exemplified in the s.96 cases, see MacMillan Bloedel), there was no constitutional problem.

Avoiding the Constitutional Problem: Statutory Rights of Appeal

In my view, and putting aside for the moment the constitutional concerns, whether the Quebec Court of Appeal got this right is dependent on how one characterizes a statutory right of appeal. If a statutory right of appeal is characterized as a legislative signal for a reviewing court—even a statutory court like the Court of Quebec— to simply apply the ordinary principles applicable on appeal, what basis is there for a court to apply the principles of deference? It is only by accepting that the common law principles of judicial review override clear statutory signals that we get into this problem of constitutionality, at least in the context of this case.

As noted above, though, the Court has been content to permit uniformity in the way courts review administrative decision-makers, through the application of the typical common law tests. In a variety of contexts, the Court has either treated statutory rights of appeal as non-determinative (see Pezim, at 591 and Southam, at para 54) or has specifically said that the common law principles of judicial deference apply, even in the face of a clear legislative regime governing a statutory court (Khosa, at para 25).

While the Quebec Court of Appeal rightly followed this jurisprudence, it seems to me completely wrong in principle. Under no circumstances should common law principles of judicial review apply if the legislature has specified, in the relevant statutes, a right of appeal to a statutory “court of justice” (see para 363). This is because a statutory right of appeal is an implicit legislative signal that, on questions of law, the statutory court should simply intervene in a lower administrative decision as it sees fit. Statutory rights of appeal stand for this proposition unless they contain some wording that would imply deference, or unless there are other signals in the statute, like a privative clause.  Forcing these courts to apply common law principles of judicial review ignores this implicit legislative signal.

What’s more, the theoretical underpinnings of the Supreme Court’s maintenance of the common law rule are wanting. The basic point is that the very act of delegation to (apparently) “specialized” and “expert” administrative tribunals justifies deference. But there are two problems with this justification. On one hand, it is completely unjustified to impute a legislative intent of deference to the legislature when it merely delegates power. The reasons why a legislature delegates power are many, but there is no evidence to assume that it does so because it wants the decision-maker to receive deference. Why should courts assume so? Secondly, the across-the-board expertise presumption is not necessarily empirical true. In this sense, it is a classic overbroad rule.

This conclusion was forcefully expressed by Rothstein J in Khosa. In that context, the Supreme Court majority held that the ordinary principles of judicial review apply when the Federal Court reviews decisions of federal decision-makers. But the Court gave no effect to the Federal Courts Act, which establishes certain grounds of review that could also be said to imply standards of review (see s.18.1(4)). Rothstein J noted that “a common law standard of review analysis is not necessary where the legislature has provided for standards of review” (Khosa, at para 99).  Instead, where the legislature has done so,  the common law idea of deference melts away. It is for the legislature to evaluate expertise, and include a privative clause, if it sees fit to mandate deference; it is not for the court to simply override legislative language in service of some court-created ideal of deference.

Rothstein J’s position is on better footing. Rather than buying into the expertise presumption, and the subversion of the relationship between common and statutory law that it creates, his position expresses support for the typical relationship between these two types of law; statutory law takes priority over the common law. It is for the legislature to prescribe the relevant standard of review. And in the context of the Court of Quebec—at least the relevant statutes in the case—the legislature has. Of the eight statutes at play in the Quebec case, all of them contain a statutory right of appeal. Some even contain language specifying that “The Court can confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in first instance (see para 217; s.175 of the Professional Code). This is strong, “correctness”-type language.  Even in absence of such language, a statutory right of appeal ousts the common law rule of deference, and removes any constitutional doubt from the issue. In each case of a statutory right of appeal, it is a sign that deference should not be the modus operandi.

Addressing the Constitutional Problem: The Core of Judicial Review

But, whether or not my preferred position is adopted, there could still be cases where deference arises—either by legislative language or judicially imposed doctrines. In such a case, was the Quebec Court of Appeal right to hold that there is no constitutional problem with deference?

In my view, it was not. The starting point is the Supreme Court’s comment in MacMillan Bloedel that it is not permissible for the legislature to remove any “core” powers of the superior courts in the provinces (MacMillan Bloedel, at para 37). As the Court noted, “ [d]estroying part of the core jurisdiction would be tantamount to abolishing the superior courts of general jurisdiction.” Therefore, even abolishing part of the core jurisdiction is tantamount to destroying it all, according to the Supreme Court. This conclusion was cited by the Quebec Court of Appeal (at para 46).

What is protected in the core jurisdiction? For our purposes, as the Quebec Court of Appeal noted, “the exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial public bodies” is part of the core (at para 45, citing MacMillan Blodel at paras 34 and 35). This is an aspect of the core jurisdiction which can never be removed—even in part. Yet the effect of asking the Court of Quebec to apply deference is to dilute this reviewing function. As Professor Daly notes in his “Les appels administratifs au Canada” (2015) 93 Canadian Bar Review 71:

This power of the Superior Court to correct certain types of illegalities committed by inferior tribunals in the exercise of their jurisdiction was an integral part of the Court’s supervisory authority as it existed in 1867; it is therefore clear that such control power cannot be validly transferred by the Legislature from the Superior Court to a court that is not comprised within the enumeration contained in s. 96 of the B.N.A. Act.

Attorney General (Que.) et al. v. Farrah [1978] 2 SCR 638 at p. 654. See similarly Séminaire de Chicoutimi v. City of Chicoutimi, 1972 CanLII 153 (SCC), [1973] S.C.R. 681.

The requirement of deference significantly dilutes this role, to the point where the core power of the superior court is imperiled. This is because of a “double deference” problem, as Professor Daly argues. The Court of Quebec will apply deference to the administrative tribunal’s legal findings. Then, the Superior Court will defer to the Court of Quebec. When the Superior Court defers, though, it simply asks whether the Court of Quebec’s decisions is reasonable or not. It does not get a first instance glimpse of the legality of the decision. This double deference problem significantly limits, if not fundamentally changes, the task of the Superior Court.

The Court in the Reference responds to this problem by saying that:

[W]hen the Superior Court hears an application for judicial review of a judgment of the Court of Quebec, it must begin by focusing on the administrative decision in order to first determine whether the Court of Quebec identified the appropriate standard (which, in Superior Court, is a question of law subject to the correctness standard, and then determine whether it applied the standard properly. Thus, strictly speaking, the judgment of the Court of Quebec is set to one side and the impugned administrative decision is the one under review.

This might solve the double deference problem, but it creates a whole other issue: it deprives the Court of Quebec of the appellate jurisdiction that the legislature intended it to have (see Professor Daly’s post here). Now, the Court of Quebec’s ruling is set aside. Here again is another example of courts failing to respect legislative intent.

This is a less-than-ideal solution to the constitutional problem of double-deference.

Conclusion

This is a complex case, and my views are necessarily tentative. But I think, in the first place, that the constitutional problem can be avoided in many cases by simply giving effect to the appellate jurisdiction that the legislature granted to the Court of Quebec. In cases where the problem does arise, I think the Quebec Court of Appeal’s solution to the problem is less than ideal, because it again ignores legislative intent.

The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”. 

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.

CARL v Canada, 2019 FC 1126: Administrative Delegation and Guidelines

How far can an administrative agency go before it fetters its decision-making discretion? This is an important practical question. On one hand, the Federal Court of Appeal has recognized that agencies can issue guidelines—even in absence of any legislative authorization to do so (Thamotharem, at para 56), in part because agencies are masters in their own house (Prassad, at 568-569). One might argue that such a power is important and necessary for good government. But on the other hand, agencies cannot bind their own decision-makers through non-legal, non-binding policy guidelines—this impinges on the necessity, at common law, for decision-makers to exercise their functions independently. How do we square this impossible circle? How does independence—central to the Rule of Law, subject to statutory constraints—govern the efficiency of the administrative state?

The case of CARL v Canada, a recent Federal Court case, attempts to address this problem. In this post, I first address the issue at play in CARL. Then I address implications of the decision for good administration. Specifically, I argue that the Parliament should resile from broad-based delegations that empower decision-makers to issue guidelines; instead, these delegations, in order to respect the common law principle of independence, should clearly delineate when and where it is appropriate for decision-makers to bind themselves. The desire should be for more specificity in delegation.

Issue

CARL involved a challenge by the Canadian Association of Refugee Lawyers (CARL) against four so-called “jurisprudential guides” [JG] issued by the Chairperson of the Immigration and Refugee Board [the Board], purporting to guide other members of the Board. Under s.159(1)(h) of the Immigration and Refugee Protection Act [IRPA], Parliament has authorized the Chairperson of the Board to issue JGs, which are guidelines based on model decisions by other decision-makers on the IRB. CARL challenged four JGs (Nigeria, Pakistan, India, and China) on different grounds, only one of which is relevant for us here: “Do the impugned JGs unlawfully fetter Board members’ discretion and improperly encroach upon their adjudicative independence?” (para 55).

After concluding that the JGs in question permissibly specify issues of fact for decision-makers to consider, the Federal Court turned to the main issue of fettering. The Court, after considering the principle of adjudicative independence at common law (there was no Ocean Port argument about statutory ousting; see para 147), started the analysis by stating that there was no authority which permitted a decision-maker “to issue a JG or other “soft law” instrument that constrains the complete freedom of quasi-judicial decision-makers to make their own factual determinations, free from pressure or inducement from others” (102). The Court distinguished this sort of guideline from other situations, such as where a Minister issued his own policy guidelines (see Maple Lodge), and a situation where an adjudicative decision-maker bound itself as to its own procedures (Thamotharem).

The question of whether a guideline impermissibly fetters the discretion of a decision-maker turns on a basic distinction; whether a guideline purports to specify factual circumstances beyond the circumstances before a decision-maker (see para 172). It is fair game, in other words, for a guideline to set out general considerations that a decision-maker should undertake. It is not fair game for guidelines to impose “…an expectation that factual conclusions will be adopted or a requirement to provide reasoned justification as to why such conclusions were not adopted” (see para 150). A lack of indication in a guideline, for example, that each case should be judged on its own merits could be a significant problem (para 139). On the basis of these principles, the Court found that three of the four JGs presented a fettering problem.

Analysis

One might say that this case is largely a run-of-the-mill, administrative law case. One could be right. But normal cases sometimes present an opportunity to grapple with difficult and fundamental issues in administrative law. On that front, there are two main issues that this case raises: (1) the proper balance between administrative efficiency and Rule of Law concerns and (2) the specificity of Parliamentary delegation on these issues.

In my view, the Court in CARL basically outlines the correct principle at the outset when it said that

As far as factual determinations are concerned, the principle that “s/he who hears must decide” is sacrosanct. It is a fundamental pillar of the rule of law. It cannot be sacrificed on the altar of achieving greater consistency and efficiency in administrative decision-making (at para 1).

In absence of statutory ousting, the Court is absolutely correct—independence is an important virtue, connected to the Rule of Law. Where statutes are truly ambiguous, the courts should guard against encroachments on the principle of independence which at common law is extended to administrative decision-makers (see Matsqui). This is because of the Rule of Law itself. For example, Joseph Raz argued in his “The Rule of Law and its Virtue” that an independent judiciary is an integral component of the Rule of Law. It is impossible for all to be subjected equally to the law if the arbiter of the law is not separated from all the parties in front of it. This has particular resonance in administrative law. If an administrative decision-maker is to administer the law through delegated power, it should remain separate and apart from its controller, a particular executive actor. This is all subject, of course, to statutory constraint; the principle of parliamentary sovereignty takes priority over common law independence.

This seems easy enough in the abstract. But the problem becomes more difficult when we are speaking about when administrative decision-makers themselves purport to bind their own discretion in the name of efficiency. Here, the Court’s concern is right on point. The delegation of power to agencies is motivated, in large part, by efficiency concerns. The argument runs something like this: Parliament cannot make, and the executive cannot administer, all of the law required to run a country at any particular point; so Parliament delegates power away to do these things to so-called expert tribunals to take advantage of their expertise, and so that the laws can be administered and made efficiently in order to keep up with modern necessities. I have significant problems with this traditional story, but let us assume it is true. The delegation of power to publish JGs is important from an efficiency perspective, because it creates economies of scale. These economies of scale are particularly directed towards issues of fact, which might arise across factual contexts—this is true with regard to refugee determinations, where the same conditions and facts may frequently arise in relation to specific countries. Those who might view administrative decision-makers as repositories of expert efficiency could say that the frequent issuance of JGs under appropriately delegated authority is highly desirable. The creation of economies of scale in the administrative state—a foundational principle of efficiency—is exactly what we expect from administrative decision-makers.

But the cost of efficiency could come against the judicial independence component of the Rule of Law. If, in the name of efficiency, administrative decision-makers purport to limit the right of individuals to a common law, independent decision-maker, it is clear that the administrative efficiency concern must give way. In this sense, there is no real balance to be had between efficiency and independence. Independence must govern, absent a statute saying otherwise. Experts should be on tap, not on top.

This is particularly true in refugee contexts. Refugee determinations are not a place to experiment with economies of scale. These determinations must be based on the inherent qualities of a refugee claimant’s circumstances. It is an individual assessment. In that context, independence takes on even greater importance. Attempting to completely stultify that process through internal guidelines is profoundly corrosive of a refugee’s right to determination on the facts.

This relates to the second concern. When Parliament delegates power to create JGs in s.159(1)(h), it does so in capacious and ambiguous language:

s.159(1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson

[…]

(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties.

Such a delegation illustrates the broader point about efficiency that characterizes the act of delegation itself. Parliament saw fit, in this delegation, not to specify the kinds or scope of JGs that would be permissible or impermissible. For example, the Court in CARL had to decide whether JGs could be issued in respect of issues of fact. Further, it is unclear just how far a JG should be able to go, if indeed such an instrument could be used to specify issues of fact. Rather than specifying these matters, the delegation is broad-based, purporting to clothe the Chairperson of the IRB with authority to issue guidelines of any sort. But clearly, such guidelines could be problematic from an independence perspective. These sorts of broad delegations, while lawful and constitutional, are undesirable from a good governance perspective. They fail to adequately state up front the sorts of considerations that decision-makers and courts should take into effect when issuing and reviewing JGs. The failure to do so rests a great deal of authority in administrative decision-makers to issue any number of JGs, with the only control an application for judicial review.

The weight of controlling administrative discretion cannot be borne by the courts alone. Parliament, too, has a role to play in good governance; by issuing clear, legislative rules that bind these decision-makers in the exercise of their authority. The goal of such rules would be to clearly demarcate where common law protections begin and end. Put differently, administrative decision-makers should not be able to, internally, subvert the common law of independence without Parliament’s express imprimatur. Otherwise, the game is rigged from the inside.

Upcoming Canadian Talks

Save the dates!

In a couple of weeks, I will be hopping on to a 13-hour transpacific flight and heading to Canada to give a series of talks. Here are the dates and topics. I don’t have all the details about the exact time and location yet, so if you are based at or near one of the host institutions, keep an eye out ― or get in touch with me or my hosts closer to the day.

  • September 26, University of Victoria, Faculty of Law (Runnymede Society): “The Road to Serfdom, 75 Years On”. I take it that this will be inaugural Runnymede event at UVic, and I am very honoured to be part of it.
  • September 30, Université de Sherbrooke, Faculty of Law: « Route de la Servitude: fermée pour travaux (de démolition)… depuis 75 ans ». This will be the French version of the UVic talk; I’m afraid I’m a bit puzzled by the title, but I didn’t to choose it.
  • October 2, University of Toronto, Faculty of Law (Runnymede Society): “An Election Is No Time to Discuss Serious Issues. Really?” This will be discussion of the regulation of civil society participation in election campaigns, which has been much in the news in recent weeks.
  • October 4, University of Waterloo (Freedom of Expression in Canada Workshop): “A Conscience- and Integrity-Based Approach to Compelled Speech”. The workshop is being organized by Emmett Macfarlane, who has just told it is full… but there is apparently a waitlist. My paper builds, of course, on what I have had to say about things like the citizenship oath, the Law Society of Ontario’s “statement of principles”, and Ontario’s anti-carbon-tax stickers.
  • October 9, Université du Québec à Montréal, Département des sciences juridiques: « Les élections sont-elles une occasion de se taire? ». This will be the French version of the Toronto talk, with a discussion of the Québec legislation thrown in.
  • October 11-12, Ottawa (Workshop on the Royal Prerogative): “The Royal Prerogative in New Zealand”. This is the first meeting of a group put together by Philippe Lagassé to carry out a SSHRC-funded research project on the prerogative in Canada, the UK, Australia, and New Zealand. Professor Lagassé also tells me the workshop is “pretty much full”. Are you seeing a theme here? Yep, I’ve managed to get myself invited to really cool workshops.
  • October 16, McGill University, Faculty of Law (Runnymede Society): a discussion with Paul Daly on administrative law. If the Supreme Court co-operates, we will, of course, discuss the Vavilov and Bell/NFL cases, in which the Court may, or may not, completely change the Canadian law of judicial review. If the decisions are not released, it will be a more general conversation. Either way, I am looking forward to
  • October 18, Université de Montréal (Symposium of the Journal of Commonwealth Law): “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”. I will be presenting a paper arguing that the Supreme Court’s disgraceful decision in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case illustrate the problems that plague “administrative constitutionalism” ― the view that administrative decision-makers’ decisions bearing on constitutional rights are entitled to judicial deference.

I am grateful to the people who have invited me and/or organized these events. (A special shout-out to my co-blogger and president of the Runnymede Society, Mark Mancini!) If you are able to make it to one (or more) of the talks, please say hello. It is always a pleasure to meet some of my readers in person. See you soon!

The System Is Working

Environmentalist groups have a point when they say they are being muzzled by Elections Canada; trouble is, that’s exactly how the law is meant to work

As the media reported earlier this week, environmentalist groups are angry at Elections Canada, which has warned them that spending money to raise awareness of climate change in the run-up to the coming federal election would subject them to the rules on “third party” participation in election campaigns. Many are feeling that they will be required to keep quiet during the campaign, which rather defeats the purpose of being advocacy groups. Even the BBC has a story on this.

For its part, Elections Canada has issued a response claiming that the Canada Elections Act doesn’t prevent advocacy groups from advocating, so long as they register if they spend $500 or more and comply with the spending cap. Elections Canada adds that the registration requirement “leads to increased transparency” and has been in place “for nearly 20 years”. Helpfully, I suppose, the statement concludes with an acknowledgement that the rules “can be complex”, and Elections Canada is happy to answer questions about them.

The rules are indeed somewhat complicated, as I explain below. But the bottom line is simple enough. Despite the officials’ protestations, NGOs ― be they environmentalist or other ― have a point when they say that they are being muzzled. To some extent, that’s what the Canada Elections Act is designed to do; to an even greater extent this might be an unintended consequence of the Act’s pursuit of transparency, but an entirely predictable one. The issues are well known; I, for one, raised them in my statement to the House of Commons Select Committee that considered the latest round of amendments to the Canada Elections Act. The only surprising thing is the degree to which people still end up being surprised when problems of sort arise.


The Canada Elections Act‘s regulation of political spending is predicated on the idea that attention during election campaigns should be focused on politicians ― individual candidates and political parties, especially parties. Parties, if they run candidates in all ridings, are able to spend tens of millions of dollars on advertising ― which they are entitled to buy at favourable rates, in addition to an allowance of free airtime. Non-politicians ― that is, individuals, labour and student unions, corporations, and NGOs ― are known as “third parties” in the election law jargon and, as I explained here, their participation in electoral debates is viewed as anomalous, indeed suspicious, and is strictly limited.

One set of limits concerns the amounts of money third parties are allowed to spend, which are only a small fraction of the spending allowed political parties. The Supreme Court has upheld the limitation of third party spending during election campaigns, notably in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although there is good reason to be critical of that decision, which I have even rated as one of the worst in the last fifty years. (As I noted here, the High Court of Australia was also quite skeptical of Harper in a recent decision.) Last year, Parliament enacted further limits that apply even before the formal campaign begins, and their constitutionality has not yet been tested; Harper, in my view, does not dispose of the question.

In addition to spending limits, “third parties” are also subject to onerous registration and reporting requirements. Some of these are the cause of the latest dust-up. Specifically, Division 1 of Part 17 of the Canada Elections Act imposes such requirements on “third parties” that incur more than $500 of expenses on, notably “partisan activities” and “partisan advertising” during the “pre-election period”, which begins on June 30 of the year for which a fixed-date election is scheduled and ends with the start of the election campaign. During the election campaign itself, governed by Division 2 of Part 17, “election advertising”, as well as “partisan activities” count for the spending thresholds that can trigger registration and reporting requirements.

The definitions of “partisan” and “election advertising”, found in section 2(1) of the Canada Elections Act, are very broad. The former term “means the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes” a party or a candidate, further defined in section 2(7) as “naming”, “identifying” (“including by … logo” or picture, as the case may be, and “providing a link to an Internet page that” names or identifies the party or candidate. “Election advertising” includes the same things as “partisan advertising”, but also “taking a position on an issue with which a … party or candidate is associated”, even without naming that party or candidate. Since issues with which no candidate or party “is associated”, come election time, are about as common as colour pictures of a Maple Leafs Stanley Cup parade, the definition of “election advertising” encompasses pretty much any advertising that has anything to say on matters of government or policy.

Now, some means of communicating with the public are exempted from these definitions. In particular, the exemptions cover anything that the media will print or broadcast without charge to the speaker ― things like quotes in news items, interviews, and op-eds. Also exempt are organizations’ communications with their members, shareholders, or employees, as well as “the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views”. Note, though, that on its face the latter exemption doesn’t cover ― indeed, it rather pointedly excludes ― a group’s or an organization’s online communications, even if not paid for (for example, tweeting under the organization’s handle). And of course, any communication that the media are not interested in carrying free of charge will count as an advertising. In effect, for groups and organizations, the media are the gatekeepers of their ability to communicate with the public without having to register as “third parties”.

So what’s the big deal about registration? Well, although you won’t know it from the Elections Canada statement linked to above, registration doesn’t just mean filling out a form. There are a number of other requirements. To begin with, unions and corporations cannot register before their board has adopted a resolution authorizing them to incur expenses on “partisan” or “election advertising” (sections 349.6(5) and 353(5) of the Canada Elections Act). All “third parties” are also required to have a “financial agent” who will be responsible for collecting money to be spend on “partisan” or “election advertising” and for spending it (sections 349.7 and 354). These transactions must be done through a separate bank account (section 358.1) After the election is over, a detailed report on the money collected, advertising taken out, and costs incurred must be filed (section 359). And this is not all. Those “third parties” that spend more than 10,000$ are also required to file interim reports during the course of the election campaign and, most significantly, to appoint auditors (section 355) and file the auditor’s report on their spending (section 360).

Needless to say, this is all quite costly, at least in time, but also ― especially for those third parties that spend more 10,000$ ― in money. Big trade unions, whose budgets are extracted from workers who don’t get a say on whether to contribute or on how the money is spend, may not be especially troubled by these costs. But for NGOs, whose income comes from voluntary (albeit taxpayer-subsidized) donations, and which need to be much more careful about how they spend it, compliance with the Canada Elections Act may be too expensive. From their perspective, the sensible if unfortunate thing to do may well be to keep quiet for the duration of the election campaign, or even starting with the beginning of the pre-campaign period.

This means that for a period of almost four months preceding the election ― the period when the most people pay attention, even if it’s still sporadic and fragmentary attention, to political and policy issues ― civil society organizations may indeed be prevented from expressing their opinion about politicians, except to the extent that the media will let them. Again, the bigger and better-known you are, the less of a problem this may be for you. Smaller groups, whose views are (naturally and fairly) of less interest to the media, will find it more difficult to get across to the voters. The more unusual voices, in other words, are the ones who are the most at risk of being silenced ― in effect if not, perhaps, in intent ― by the Canada Elections Act.

And of course even for larger groups, having to pass through the media means sound-bite-sized interventions have a much better chance of getting across to the voters than anything more serious. Say that a politician or party is anti-environment, or pro-worker, or something equally inane, and the media may well pick it up. But they’re not going to run a detailed report card assessing the competing parties’ platforms on some issue ― but publishing it on an NGO’s website, let alone running it as an advertisement would mean having to comply with burdensome registration and reporting requirements under the Canada Elections Act.


No wonder, then, that environmentalists are feeling muzzled and frustrated. And of course groups pursuing other agendas may be feeling that way too ― or may come to feel that way when the occasion arises. They have more than a little justification. And they shouldn’t be the only ones feeling wronged. The voters should be too. You may not miss the presence of a particular set of activists in the election campaign, but the rules that silence them silence the activists on your side too. You may not be all that interested activists generally have to say, but you should be interested in politicians’ feet being held to the fire.

The ostensible rationale for registration and reporting requirements is that they serve to promote transparency, in addition to assisting in the enforcement of spending limits applicable to “third parties”. It is on that basis that the Supreme Court upheld those requirements that apply in the course of the election campaign ― although not those applicable in the pre-campaign period, which weren’t yet in the Canada Elections Act ― in Harper. Yet one needs to weigh the value of transparency against the costs that its pursuit imposes on those subject to the Canada Elections Act ― and, as I have just explained, on the voters who are being deprived of important contributions to the electoral debate.

The Harper majority’s analysis on this point was quite perfunctory. There is no real discussion of compliance costs and their deterrent effects. Instead, the majority is content to baldly assert that “[t]he appointment of a financial agent or auditor is not overly onerous. Rather, it arguably facilitates the reporting requirements.” [145] Even worse, the majority did not at all consider what I think is the crucial issue: the thresholds at which the registration and reporting requirements kick in. All it said was that the requirements “vary depending on the amount spent on election advertising”. [145] Yet one can accept the principle of imposing such requirements on heavy spenders while also acknowledging that the existing rules go much too far.

In New Zealand, “third parties” are not required to register until they spend NZ$13,200 (ca. C$11,000); more detailed reporting requirements only apply once a “third party” spends NZ$100,000. (Even then, third parties aren’t peremptorily required to provide an auditor’s report, although they may be asked to do so.) These strike me as rather more reasonable figures than those in the Canada Elections Act, though even they should probably be multiplied several-fold to account for the fact that New Zealand’s population is only a small fraction of Canada’s.

It is difficult to believe that a “third party” spending a few thousand, or even tens of thousand of dollars is going to have any substantial impact on an election by itself. At most, it may be successful enough in getting other people ― voters, media, or politicians ― to discuss the issues it is raising. It is this discussion, rather than anything published on an NGO’s website or even a Facebook ad, that might, conceivably albeit theoretically, matter. In the abstract, this discussion might be enriched by more disclosure. In practice, the very real costs of the disclosure requirements end up preventing the conversations from happening at all. I fail to see how the voters benefit from this.


As Elections Canada points out in its response to the environmentalist groups, the “advertising during the election period has been subject to the Canada Elections Act for nearly 20 years”. This is true. (As noted above, rules on advertising in the pre-election period are new.) For about half of this time, it has been known, at least to those who study these things, that the rules tend to hobble not business interests, but labour unions and civil society groups. Colin Feasby wrote about this in 2010; I did (in the context of Québec elections, which are subject to similar but even more draconian rules) in 2012; also in 2012 Tom Flanagan came out in support of rules like those in the Canada Elections Act, whose enactment he had opposed, with the declared intention to muzzle unions; I updated Dr. Feasby’s findings in an article published in 2015. And in my statement to the House of Commons Standing Committee on Procedure and House Affairs when it was studying amendments to the Canada Elections Act last year (which, among other things, introduced restrictions on “third parties” in the pre-campaign period) I specifically mentioned both the registration and reporting requirements’ tendency to muzzle civil society, and the needless low threshold at which these requirements apply. Needless to say, that had no effect on the resulting legislation.

Yet at every election the impact of restrictions on “third parties” seems to surprise. It happened in Québec in 2014, when the Chief Electoral Officer tried censoring a short documentary a group of citizens had produced to oppose the election of the Parti québécois and the enactment of its “values charter”. Eventually, the Chief Electoral Officer changed his mind; but he was wrong to do so. It happened again in Québec in 2018, now with environmentalist groups being targeted. And now it’s happening at the federal level. The system, one might say, is working. It was designed to shut down political debate not dominated by politicians or the media. That’s what it’s doing.

It will be obvious that I don’t think it’s a good system. Like the National Post’s Chris Selley, I think the rules need to be changed. Whether any restrictions on political spending are justified is debatable but, as noted above, one can accept the premises of Canada Elections Act and still support relaxing its requirements a great deal. Ideally, the next Parliament will take up the issue. But there is also room for litigation. Certainly rules on pre-campaign spending, whose constitutionality has not yet been tested all the way to the Supreme Court can be challenged. But perhaps even the registration and reporting rules upheld in Harper could be attacked, provided that the courts are forced to consider solid evidence of their pernicious effects.

The First Year of Law School

For many, the coming of September signals the start of a new school year. More specifically, law schools will be kicking into full gear in the coming days and weeks, and nervous 1Ls will occupy the halls of law schools the country over. 1L can be a scary time; meeting new people, overcoming the challenges of a rigorous academic education, and simply learning a new legal language can all appear daunting. I write today to try to assuage some concerns, and in general, make a few recommendations about how to approach life, law, and law school. Of course, my views are simply based on my experiences. But I am in the position of being about 2 years out of the law school experience, and in that time, I have gained some perspective about how to get the most out of one’s time at law school. I present these ideas in no particular order.

The first thing that is important, I think, is to recognize for whom the law is designed. I had a professor in my first year of law school tell us that we were now separate and apart from the man or woman  on the street, who could not understand legal language. Of course, this is strictly true; people who aren’t trained as lawyers are not lawyers. But I think it is important to retain perspective. The law is not designed to separate the intelligentsia from the rest of us. It is designed for the people, and lawyers are there to communicate complex legal concepts to the people. Once one becomes a lawyer, they do not stand separate and apart from the rest of society. And one is no better than anyone else simply because they have chosen a life of the law.

This is why I urge students to learn plain-language writing, and to not take prose tips from the old judges you read in 1L. Far be it from me to dole out writing tips, but I think that learning to write for one’s audience is such an important skill that should be inculcated in the first year of law school. This takes practice. But it will make you a better, more relatable lawyer in the long run, especially if you wish to practice law.

Secondly, I think it is important to enter law school with an open mind. One might have an idea as to the sort of career path in the law that one will take once entering the law school. But it is important to recognize that that path should not be set in stone. At the stage of entering law school, it is hard to fathom the ways in which you will grow; the passions you will develop; and the skills you will learn. You may very well be a different person at the end of the experience. So, if you really want to be a criminal lawyer now, nurture that interest. But do not stop thinking about the other possible avenues.

Third, I would view law school as a time to intellectually feast. This is true even if you do not want to be an academic. There will likely never be another time (unless you pursue graduate studies) where you can sit back and learn for the sake of learning. You will be surrounded by smart students and professors. Take advantage of that opportunity. It will also make you a better lawyer in the long run.

Connected to this is the ever-present issue of grades. Grades are the necessary evil of law school. Indeed, it is true that one needs good grades in order for certain doors to open. But keep in mind that you will have an impoverished law school experience if you only take courses in which you think you will do well in your upper years. Take courses that will challenge you. Do so for two reasons. First, a course that challenges you is, in its own right, a benefit to you. You will learn something you didn’t know before, in a way that forced your mind to operate in different ways. Second, if you put in enough work, a challenging course could end up being a sparkling A on your transcript.

Fourth, work hard—but do not shun your friends and family. This is a grave mistake that can sometimes be made by those who feel they need to work 24/7 to do well or to be an ideal lawyer. The assumption is not true. It is more important to work smart rather than hard. By this, I mean adopt a method for reading cases that works for you; decide what the most important parts of the case are and focus on those parts. In class, consider the possibility that it is bad for your overall education to transcribe pages of notes, much of which might be irrelevant come exam time. By listening intently and writing down what is important, you end up leaving more time at the back-end to study the material, rather than creating some master document of the material that is 100 pages long. Hopefully, with this sort of method in place, you have time to retain connections with those that matter to you. Because law school is only three years, but friends and family are forever.

The final point that I can raise is something that is of the utmost importance to me, personally: dare to be different. If you don’t agree with something your professor or fellow classmate says, and have an intelligent critique to offer, speak up. Of course, this is not an invitation to interrupt a lecture with uninformed commentary. No one likes that. But if you have an informed disagreement with a professor that is material to the class discussions, let him or her know. This will help you to learn the language of argument in the law, not to mention that it will force you to understand the material from different perspectives. Being different can come at a cost. But it is worth standing up for what you believe in.

Overall, take law school for what it is; a glorious opportunity to learn and to grow. Do not take it as an opportunity to be competitive, or to prove you are the smartest. You will lose out in the end. Remain humble, eager to learn, and be proud of what you stand for and believe. In my view, these are the tickets to a fantastic law school experience.