The Dunsmuir Decade

Announcing a joint Administrative Law Matters/Double Aspect blogging symposium on the 10th anniversary of Dunsmuir

(This post is co-written with Paul Daly)

It may be hard to believe that March 7, 2018 marks the 10th anniversary of the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, where the Court reformulated Canadian administrative law.

Dunsmuir is — by some distance — the most cited decision of any Canadian court and, for Canadians and Canadaphiles, synonymous with Canadian administrative law.

For most listeners, “Dunsmuir” will represent something more profound. It might evoke a sense of hope, for in 2008, onlookers hoped that the Court had finally settled some great questions about deference, the administrative state and the Canadian Constitution. But it might also evoke a sense of despair, for in the years since 2008, it has become clear that many questions remained unsettled, about the scope of deference the nature of judicial review, and the role of judges in administrative law cases.

For these reasons, March 7, 2018 is a date worth observing.

Paul Daly and I propose to mark the anniversary in a novel way. In the weeks leading up to March 7, Paul and I will publish on Administrative Law Matters and Double Aspect a series of short blog posts written by leading members of the Canadian legal community. The list of confirmed contributors and indicative topics appears below (though is, of course, subject to change).

On March 7, we will publish a post by Justice David Stratas of the Federal Court of Appeal summarizing the contributions and the current state of play in relation to Dunsmuir, and, in addition, contributions by Louis LeBel and Michel Bastarache, the authors of the majority reasons in Dunsmuir, reflecting on the case and contemporary reactions to it.

These contributions will subsequently be published in the Canadian Journal of Administrative Law & Practice, the overall goal being to enrich discussion of Canadian administrative law and to blend new and old forms of legal writing. Contributors will be encouraged to edit their contributions in light of comments received from blog readers and other discussants on social media ― so don’t be shy!

The Background to Dunsmuir/Le contexte de Dunsmuir

Sheila Wildeman (Dalhousie)
Martine Valois (Montréal)
Lorne Sossin (Osgoode Hall)
Clarence Bennett (Stewart McKelvey LLP)

The Philosophy of Dunsmuir/La philosophie de Dunsmuir

Matthew Lewans (Alberta)
Mark Walters (McGill)
Mary Liston (UBC)

Correctness Review/La norme de la décision correcte

Lauren Wihak (McDougall Gauley LLP)
Suzanne Comtois (Sherbrooke)
Shaun Fluker (Calgary)
Gerald Heckman (Robson Hall)

Reasonableness Review/La norme de la decision raisonnable

David Mullan (Queen’s)
Eddie Clarke (Wellington)
Peter Gall (Gall Legge Grant Zwack LLP)
Alice Woolley (Calgary)

Dunsmuir and Fairness/Dunsmuir et l’équité procédurale

Kate Glover (Western)
Laverne Jacobs (Windsor)
Nicholas Lambert (Moncton)

Dunsmuir and the Constitution/Dunsmuir et la constitution

Audrey Macklin (Toronto)
Evan Fox-Decent & Alexander Pless (McGill & Justice Canada)

Indigenous Peoples and Dunsmuir/Les peoples autochtones et Dunsmuir

Naoimi Metallic (Dalhousie)
Janna Promislow (Thompson Rivers)

Teaching Dunsmuir/Enseigner Dunsmuir

Craig Forcese (Ottawa)

Judicial Perspectives/Regards de la magistrature

John Evans (Goldblatt Partners LLP)
Joseph Robertson (UNB) “How Would Dunsmuir be Decided Today?”

Comparative Perspectives/Regards comparatifs

Dean Knight (Wellington)
Jeff Pojanowski (Notre Dame)
Janina Boughey (UNSW)

The Effects of Dunsmuir/Les effets de Dunsmuir

Diana Ginn & Will Lahey (Dalhousie)
Paul Daly (Cambridge)
Robert Danay (Justice Canada)

Moving on from Dunsmuir/Faut-il passer à autre chose?

Leonid Sirota (AUT)
Martin Olszynski (Calgary)

Summary/Résumé

Louis LeBel (Laval)
Michel Bastarache (Caza Saikaley LLP)
David Stratas (Federal Court of Appeal

Was Lon Fuller an Originalist?

Some thoughts on Lon Fuller, the Rule of Law, and constitutional interpretation

I think that the best argument for originalism is that it is required by the principle of the Rule of Law. (Jeffrey Pojanowski’s contribution to an online symposium on originalism organized by Diritto Pubblico Comparato ed Europeo earlier this year makes this argument nicely and concisely.) So I probably brought some confirmation bias to a re-reading of Lon Fuller’s discussion of the Rule of Law requirement of “congruence between official action and the law” in The Morality of Law, which makes me think that he would have been at least sympathetic to originalism.

If law is to guide the behaviour of those to whom it is addressed, it is not enough that it be public, intelligible, stable, and so on. It must also be applied and enforced consistently with the way it is supposed to be. A failure of congruence, Fuller explains, amounts to nothing less than “the lawless administration of the law”. (81) It can result from a number of causes, some perhaps innocent, like “mistaken interpretation”; others having to do with the lack competence or intelligence; and in extreme cases “bribery”, “prejudice”, and “drive towards personal power”. (81) (The attempt at classification is mine; Fuller, somewhat oddly, presents this various causes pell-mell.)

Importantly, although one might be tempted to think that it is primarily the executive that has to be vigilant to ensure that it applies the law as written, Fuller was clear that the requirement of congruence is addressed to the judiciary too. The lower courts had to ensure that they applied the law as set out by the higher ones, but even an apex court has responsibilities towards the Rule of Law. After a detour into the importance of generality, coherence, constancy, and prospectivity in the articulation of adjudicative law, Fuller writes:

The most subtle element in the task of maintaining congruence between law and official action lies, of course, in the problem of interpretation. Legality requires that judges and other officials apply statutory law, not according to their fancy or with crabbed literalness, but in accordance with principles of interpretation that are appropriate to their position in the whole legal order. (82)

He proceeds to recommend the principle of articulation articulated in Haydon’s Case, (1584) 3 Co Rep 7a:

for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy.

Now, this quotation, which I have presented in the same way as Fuller does, is somewhat incomplete. Here is the full statement of “the office of all the Judges” according to Heydon’s Case:

always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

Fuller, instead of the reference to “the true intent of the makers of the Act”, adds one further element of his own,

a fifth point to be “discerned and considered,” which might read somewhat as follows: “How would those who must guide themselves by its [i.e. the Act’s] words reasonably understand the intent of the Act, for the law must not become a snare for those who cannot know the reasons of it as fully as do the Judges. (83)

In subsequent discussion, Fuller proceeds to criticise what he calls “an atomistic conception of intention”, which “conceives the mind to be directed … toward distinct situations of fact rather than toward some significance in human affairs that these situations may share”, (84) and denies the relevance of intention in interpretation, or at any rate in difficult interpretative questions, which arise in individual situations ostensibly not anticipated by the legislator. Intention matters, Fuller insists, but it is clear from the example he uses ― that of a dead inventor whose work must be continued from an incomplete design by another person ― that it is not an actual, specific intention that he has in mind, but the general purpose of the document to be interpreted that can be ascertained from its contents; indeed Fuller commends the exclusion of “any private and uncommunicated intention of the draftsman of a statute” (86) from its legal interpretation.

How does this all translate into approaches to constitutional interpretation ― which, after all, Fuller does not actually discuss? Many Canadian readers will no doubt be inclined to think that Fuller is advocating something like purposive interpretation, to which the Supreme Court of Canada sometimes professes to adhere. But, as Benjamin Oliphant and I have explained in our work on originalism in Canada, purposivism, especially as articulated in … is arguably compatible with some forms of originalism. Fuller’s purposivism, it seems to me translates fairly well into public meaning originalism, given its emphasis, on the one hand, on the circumstances of the law’s making as being key to interpreting it, and on the other on the reasonable understanding of those to whom the statute is addressed as one of the guidelines for the interpreters. Fuller’s exclusion of the “private and uncommunicated thoughts” reinforces my view that it is public meaning, rather than original intentions, originalism that he supported, while his rejection of the “atomistic conception of intention” shows that he would have had no time for original expected applications ― which, of course, most originalists have no time for either.

Of course, Fuller was writing before originalism became a word, and a topic for endless debate. It is perhaps presumptuous, as well as anachronistic, to claim him for my side of this debate. Then again, Fuller himself insisted that text are not meant to apply to finite sets of factual circumstances within their author’s contemplation. So long as the mischiefs they are meant to rectify remain, they can be properly applied to new facts ― something with which public meaning originalists fully agree. In the case of the dead inventor, were we to summon his “spirit for help, the chances are that this help would take the form of collaborating … in the solution of a problem … left unresolved” (85) ― not of the dictation of an answer. And failing that, if we stay within the inventor’s framework, and remain true to his general aim, we have done the best we could. This is a standard by which I am happy to be judged.

Squaring the Public Law Circle

Canadian administrative lawyers keep trying to reconcile parliamentary sovereignty and the Rule of Law; they shouldn’t bother

Ancient Greeks wondered whether it was possible to construct a square of the same area as a given circle using only a compass and a ruler ― to square the circle. The problem occupied some great minds of that age and of the subsequent ones, even Napoleon apparently. It took well over two millennia until it was shown to be impossible to solve. Public law has its own quadrature problem, posed by A.V. Dicey (the first edition of whose Introduction to the Study of the Law of the Constitution came out just a couple of years after the demonstration of the impossibility of squaring the circle): it consists in fitting together, albeit by means of verbal rather than geometrical contortionism, parliamentary sovereignty and the Rule of Law.

Dicey and many others since him have mostly been preoccupied by this problem in the context of fundamental individual rights, and their protection from a legislature unconstrained by a supreme law constitution. Canada eventually abandoned this attempt ― or rather cut back on it significantly, since some rights, such as that to property, remain unprotected by the Canadian Charter of Rights and Freedoms. But, to an extent that Dicey did not imagine and that is arguably without parallel in the rest of the Commonwealth, we have re-deployed our intellectual energies merely to a different application of the same problem, this one in administrative law. We are struggling to reconcile parliamentary sovereignty, which suggests giving effect to legislative attempts to insulate administrative decision-makers from judicial review, and the Rule of Law, which, as Dicey himself suggested, requires courts of justice to apply the law. We are not succeeding.

It is not for lack of trying. The majority opinion in the supposedly still-leading case on judicial review of administrative action,  Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, recognized that

[j]udicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. [27]

Dunsmuir and the subsequent cases that have fucked up beyond all recognition refined the framework that it laid down attempted to resolve this tension and to make sure that, as a Russian saying has it, the wolves are sated, and the sheep unharmed. Scholarly commentary has worked, I think, in the same direction.

The most recent example is a thoughtful post on ABlawg by Martin Olszynski. Professor Olszynski seeks to recover what he sees as Dunsmuir’s promise of reconciling parliamentary sovereignty and the Rule of Law. He proposes to achieve this by making

two inter-related changes to the Dunsmuir framework … The first change would be to reverse the presumption of reasonableness on questions of law to a presumption of correctness, which can then be rebutted for the large majority of such questions through the presence of a privative clause (this approach would be similar to that proposed by Justice Deschamps in Dunsmuir). The second related change would be to abandon the overly broad and fundamentally contradictory concept of “expertise” as a basis for deference and to replace it with the potential for democratic accountability, which ultimately is the basis for legislative supremacy.

Although the judiciary has the “training, independence, and impartiality” to claim “the upper hand in the interpretation of the law”, it ought to yield this upper hand to  legislative statements that call for deference to administrative decision-makers. Legislatures “must be respected – because they are democratically elected and accountable”. Provided they make themselves sufficiently clear by enacting “privative clauses” (provisions that typically seek to out judicial review of administrative decisions or to strictly limit it), legislatures can be made to answer for any decision to remove legal interpretation from the purview of the courts. When the legislation includes a privative clause, a reviewing court should, therefore, defer, but not otherwise ― and especially on the pretense that an administrative decision-maker is an expert by virtue of its very existence.

I agree with Professor Olszynski’s criticism of the role that the idea of administrative expertise has come to play in Canadian administrative law (which I have not fully summarized ― you really should read it). Last year I wondered here whether “the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it”, and I elaborate on my worries about “expertise” in a paper I recently presented at the TransJus Institute of the University of Barcelona. I also agree that courts should not be shrinking violets when it comes to legal interpretation. It’s their job, and it’s the think that they’re supposed to be good at. If legislatures decide to scrap some of the administrative bodies they have set up (a guy can dream, right?), the courts will have to apply the legislation these bodies are now responsible for. They ought to be able to do that.

But I am skeptical of Professor Olszynski’s suggestion that the presumption that questions of law must be addressed by courts should, in the name of democratic accountability, by rebutted by privative clauses. Indeed, I think that the idea of democratic accountability is not readily applicable in this context. Professor Olszynski argues that accountability works by pointing to his own criticism of the application of a privative clause in an environmental law case, and contrasting it with the fact “that few labour or employment lawyers would argue against privative clauses in that context”. With respect, the possibility of academic criticism does not make for democratic accountability; nor does acceptance by a relevant expert community (if indeed “labour and employment lawyers” are the relevant expert community in relation to labour law ― what about economists, for instance?) make for democratic legitimacy. How many voters have ever heard of privative clauses, never mind being able to articulate any thoughts on their desirability? To believe that legislatures can, let alone will, be held accountable for eliminating the courts’ role in legal interpretation unwisely, or even abusively, requires more optimism than I could ever muster.

I am inclined to think ― though my thoughts on administrative law are still tentative ― that in determining the standard of review we should not attempt to reconcile the Rule of Law and legislative supremacy. The reconciliation is never meant to be real in any case. The Rule of Law is, ultimately, the dominant value, because even those who claim that they want to respect legislative will refuse to give effect even to the clearest privative clauses. To take a statutory provision that says “no judicial review” to mean “deferential judicial review” is not to accede to the legislature’s desires, but to impose one’s own principles ― including the principle of the Rule of Law ― on it.

And there is nothing wrong with this. The Rule of Law, as the Justice Rand observed ― in the context of a lawless exercise of administrative power ― in Roncarelli v Duplessis, [1959] SCR 121 at 142, is “a fundamental postulate of our con­stitutional structure”. It is a constitutional principle that can, as the Supreme Court recognized in Reference re Secession of Quebec, [1998] 2 SCR 217, result in “substantive limitations upon government action” ― including, relevantly to us here, in government action aiming at reducing the courts’ powers of judicial review. By contrast, as the Secession Reference also recognized, democracy ― whether direct democracy, which was at issue in that opinion, or representative democracy, and whether accountable or otherwise ― must be confined by constitutional limitations. The Court wrote “that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy”. [72] But that’s not quite right. The Charter imposed additional restrictions on legislatures, but it did not “transform” the constitutional system, which was already one of “constitutional supremacy” under the Constitution Act, 1867.

To the extent that it is required by the Rule of Law principle, judicial review of administrative action, including correctness review on questions of law, is a constitutional requirement. This extent is the question that Canadian administrative lawyers and judges should be addressing. Virtually everyone, I think, agrees that the Rule of Law requires correctness review in at least some cases. My own inclination is to say that it requires correctness review often, and perhaps always. I might be wrong about that, but if I am, this is because I misunderstand the Rule of Law, not because I fail to account for Parliamentary sovereignty and to give effect to (modified versions of) privative clauses. There is simply no need to bring parliamentary sovereignty into the standard of review equation, thereby making it unsolvable. Unlike in mathematics, the impossibility of squaring the public law circle cannot be conclusively demonstrated (though even in mathematics the demonstration apparently did not stop enthusiasts from trying). But the futility of well over a century’s worth of attempts should, I submit, be a warning to us all.

Canadian Events in January

Announcing talks in Montreal and Toronto

This is just a quick announcement that I will be giving a couple of talks in Canada next month. Leaving the long and sunny days of New Zealand’s summer ― and this year, unlike last, at appears that we are having an actual summer ― for the Canadian winter is a dubious pleasure, but it’s for a good cause.

The first one will be on January 10, at McGill, I’ll be speaking about ― and against ― the “Statement of Principles” undertaking to promote equality, diversity, and inclusion that Ontario lawyers are now required to create. I have written a good deal about the “Statement of Principles” on this blog and elsewhere (explaining the reach and lawlessness of the requirement and, more specifically, its illegality; denouncing its violation of the freedom of conscience; and criticizing the vision of the legal profession behind it). I am looking forward to making my case to students and anyone else who might care to hear me. I am grateful to Runnymede McGill for giving me the chance. The talk will be at 17:30 at NCDH at 201.

The second event in which I will take part will be Runnymede Society’s Law and Freedom Conference at the University of Toronto’s Hart House, on January 12-13. I will be speaking on the 13, presenting a paper on “The Rule of Law All the Way Up”, which will argue that the Canadian constitution, which is supposed, including by its own terms, to be our Supreme Law, is all too often not treated by people both on the left and on the right as law at all, but rather as a set of merely political commitments. Justice Bradley Miller of the Court of Appeal for Ontario will comment, which is a great honour for me (and, truth be told, a source of some apprehension!). Our session is scheduled for 10:30, but there will be plenty of other interesting stuff there ― perhaps especially Justice Peter Lauwers’, also of the Court of Appeal for Ontario, Friday keynote on “The Mischief of Charter Values”, the subject of a much-discussed opinion he co-authored with Justice Miller in Gehl v. Canada (Attorney General), 2017 ONCA 319.

If you are able to make it to one of these events, please say hello! It’s always fun to meet readers in real life.

The $100 Question, in Court

A challenge to Québec’s harsh limits on political contributions has a decent chance of succeeding

As reported last week by Le Soleil, a citizen of Québec, Yvon Maheux, is challenging the constitutionality of both the province’s $100 yearly cap on donations to political parties and some of the collateral consequences of a conviction for infringing this cap. In my view, much of the claim has considerable merit, and at least a reasonable chance of success. As I wrote when Québec was first considering lowering the amount its citizens were allowed to contribute to political parties from $1000 to $100, such a low limit is quite clearly unconstitutional, given the Supreme Court’s recognition that spending money to advance one’s political views is a form of expression that is entitled to the protection of the Canadian Charter of Rights and Freedoms.

As Mr. Maheux’s notice of constitutional question (kindly provided to me by his lawyer, Antoine Sarrazin-Bourgouin, whom I thank) explains, in 2016 he paid a provincial party, the Coalition Avenir Québec, $100 for taking part in a breakfast it organized, and then another $100 as a fee to take part in the party congress. For his trouble, he was prosecuted for breaching the $100 yearly cap on donations to political parties, provided for by section 91 of Québec’s Election Act. Section 564.2 of that Act provides that, if convicted, Mr. Maheux will face a minimum fine of $5000. Moreover, the infringement of the contribution cap is deemed a corrupt electoral practice (section 567), meaning that a conviction carries a number of additional consequences ― notably the disqualification from voting or running for office, as well as the loss of “the right to engage in partisan work”, both for five years (section 568).

This is a draconian regime. For one thing, the contribution limit is remarkably low. For another, the consequences for breaching it are astonishingly severe. Neither the Canada Elections Act nor Ontario’s Election Finance Act, for example, impose a mandatory minimum punishment for financial offences; nor do they deem making an excessive contribution a corrupt practice; nor do either Parliament or Ontario strip persons convicted of corrupt practices of their “right to engage in partisan work”. New Zealand ― which of course does not limit contributions to political parties at all, and is the least corrupt country in the world nonetheless ― does nothing of the sort either.

But does draconian, in this instance, also mean unconstitutional? The cases raises a number of distinct constitutional issues. The first is whether the infringement of the freedom of expression effected by the limitation of contributions one can make to a political party is justified under section 1 of the Charter. (That the limitation is a prima facie infringement of the freedom of expression must follow from the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although these cases concerned spending independent of parties.) The other issues have to do with the constitutionality of the various consequences of a conviction for breaching the contribution limit.

Regarding the constitutionality of the limit itself, there is no precedent directly on point, I think, but it seems to me that the Québec government will be hard-pressed to show that it is minimally impairing of the freedom of expression. A legislature is entitled to some, perhaps considerable, deference in a line-drawing exercise of this sort ― Libman and Harper indicate that the courts will accept that there ought to be some limit on contributions, and any given figure is bound to be somewhat arbitrary. Still, deference can only extend so far; there is a range of acceptable alternatives, but this range is not infinite. And even if a higher limit would (of course) be somewhat less likely to attain the legislation’s anti-corruption objectives, the issue, as Chief Justice McLachlin’s majority opinion … put it, is only “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner“. That no other jurisdiction in Canada (and perhaps elsewhere) has seen it fit to set a contribution limit anywhere near this low is a strong indication that Québec’s purposes can be substantially achieved through less drastic means.

The $100 limit also fails, I think, at the final stage of the section 1 analysis, which concerns proportionality between the rights limitation’s benefits and its effects on the rights claimants. These effects, in this case, are significant; indeed, the limit renders Quebeckers’ right to contribute financially to a political party of their choice virtually nugatory. Mr. Maheux’s personal story is an eloquent illustration of this fact. So is the simple arithmetic that shows that a donation of $2 a week would be illegal. This all is particularly galling because the Supreme Court’s law of democracy jurisprudence ― especially Harper but also, before it, Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912 ― suggested that participating in the activities of political parties was  political participation par excellence, to be valued and protected above others, as I explained here. Québec’s restrictive approach to political financing means that individuals such as Mr. Maheux can be prevented from developing their engagement with political parties, even as they are also prevented from participating in political debates as “third parties”, by spending money on advertising during electoral campaigns. Politics in Québec risks becoming even more of an insider activity ― ostensibly in the name of a fight against corruption. This makes no sense to me.

As for the consequences of conviction, there are three distinct issues. The first one is whether the disenfranchisement of those convicted, which is an obvious infringement of the right to vote protected by section 3 of the Charter, can be justified under section 1. In Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876, the Supreme Court upheld the disenfranchisement, for five years, of a member of a provincial legislature who had been convicted of trying to induce a person who was not entitled to vote to do so. Harvey was, of course, decided before Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which struck down the general disenfranchisement of prisoners serving sentences of two years or more, but I don’t think that Sauvé calls it into question. The Harvey court accepted that the temporary disenfranchisement of those convicted of corrupt electoral practices was a proportionate way of pursuing the specific purpose of protecting the integrity of elections, with which the general disenfranchisement provisions at issue in Sauvé had nothing to do.

That said, accepting that legislatures can disenfranchise people who compromise the integrity of the democratic process, the question is how far this principle extends. We wouldn’t accept, I think, the disenfranchisement of people who negligently infringe some technical rule about the reporting of a candidate’s expenses. But, again, how do we ― and, more to the point, how does a court ― draw lines? Again, I am not aware of judicial guidance on this point, but looking at what other jurisdictions do is instructive. The lists offences that are labelled as corrupt (or illegal) practices and can lead to disenfranchisement are not identical, but both federally (in section 502 of the Canada Elections Act) and in Ontario (in section 97.1 of the Election Act) the focus is on interference with the composition of electorate (involving voting under various false pretenses or, conversely, preventing electors from voting), or the process of casting ballots. An individual exceeding contribution limits is not deemed guilty of a corrupt practice. Although it is far from certain that the Charter prohibits this, there is, I think, at least a viable argument to be made for this proposition.

The next, related, issue is whether it is permissible not only to disenfranchise a person found guilty of having engaged in some form of corrupt practice, but also to deny him or her the “right to engage in partisan work”. As mentioned above, I do not think that any Canadian jurisdiction except Québec does it; I don’t know if any other democratic country does. The prohibition is an obvious infringement of the Charter freedoms of expression and of association. Can it be justified? Once more, I am not aware of judicial decisions directly on point, but it is possible to venture a few observations. One is that Québec is deliberately targeting political expression and association, which are at the heart of the Charter‘s protections. Another is that it’s not obvious how a ban on “partisan work” is connected to the integrity of the electoral process as such, or even of the political financing regime; at the very least it is seriously overbroad, because much of what might be fairly described as “partisan work” ― a term that Québec’s Election Act does not define, but uses in a number of provisions that suggest that it should be given a broad meaning ― has nothing to do with with either voting or fundraising. Third, once again the experience of other jurisdictions suggests that Québec’s ban is not minimally impairing, and indeed that it is likely quite unnecessary. And fourth, given its breadth, the ban’s deleterious effects on those subject to it surely outweigh whatever social benefits it might be said to have.

Finally, in his notice of constitutional question, Mr. Maheux indicates that he will argue that the cumulative effect of these various sanctions ― not any of them individually, mind you ― amounts to a violation of the prohibition on cruel and unusual punishments in section 12 of the Charter. The test here is whether the punishment is grossly disproportionate, compared to the one that would have been appropriate in the circumstances. This is of course a highly subjective assessment, and I am pretty skeptical of this claim as a standalone ground for constitutional challenge. If a court grants Mr. Maheux’s claims under sections 2 and 3 of the Charter, it is superfluous to consider the section 12 argument. If it thinks that the infringements of sections 2 and 3 are individually justified, I can’t imagine it holding that collectively they are grossly disproportionate; this would strike me as an odd result.

Be that as it may, Mr. Maheux’s challenge is mostly serious and, while we lack specific, on-point guidance from the courts because the provisions of Québec’s Election Act at which it is aimed are so unique, I think it has at least a reasonable chance of success ― perhaps even a very good one. At the level of political morality, the legislation that Mr. Maheux is attacking is indefensible. It is vastly more repressive than it needs to be, and appears to have been enacted in complete disregard of the rights of those affected by it (as well as of the desirability of a competitive political system). I hope that the law recalls Québec’s legislature both to its constitutional duties and to its senses.

Ceci est-il une conversation?

The Supreme Court holds we can expect our text messages to remain private, even on other people`s phones

Last week, the Supreme Court released its eagerly-awaited judgment in R v Marakah, 2017 SCC 59, holding that a person had standing to challenge the admissibility of text messages to which he was a party but which the police had seized from another’s cell phone. The Chief Justice wrote the majority opinion, in which Justices Abella, Karakatsanis, and Gascon concurred. Justice Rowe wrote a brief concurrence, raising some concerns about the future implications of the majority opinion, with which he nevertheless agreed. Justice Moldaver, with the agreement of Justice Côté, wrote a fierce, strongly-worded dissent.

Section 8 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to be secure against unreasonable search or seizure”.  This right applies when a person has an objectively reasonable “expectation of privacy” in the thing or information that is the object of the search or seizure. There is no question that Mr Marakah wanted and expected his exchange of text messages with an accomplice in a weapons-trafficking venture to remain private. But was he entitled to expect that the police would not read these messages on that accomplice’s phone?

The majority and Justice Rowe think that he was. As the Chief Justice put it, the

interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. [28]

The information exchanged in these nooks and crannies of cyberspace is, potentially, highly private, and indeed “[i]ndividuals may even have an acute privacy interest in the fact of their electronic communications”. [33] Crucially,

this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private. [37]

The fact that we might not control all the devices through which this information is accessible is not especially important. It is the information exchanged, the conversation, that is the subject of the expectation of privacy, not whatever device might allow one it view it. And even the fact the person with whom one is texting could disclose the fact or the content of the conversation does not allow the state to read it.

Justice Moldaver disagrees. For him, control is a key factor in the analysis. Justice Moldaver writes that “the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search”, and “[w]here an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable”. [98] Justice Moldaver gives a number of examples: DNA in one’s body is private, but DNA traces left on, say, the body of a victim of a crime are not; thoughts recorded in a private diary are private, but not those publicly shared online. [116] While control does not require ownership or exclusivity of access, a lack of control means that information is not in a meaningful sense private.

When it comes to conversations, including conversations conducted by text messaging, Justice Moldaver is of the view that one loses control over what one has said once one has said it. What one’s interlocutor’s phone records is “an independent record”, [128] similar to the notes one might make after a spoken conversation, and within the interlocutor’s exclusive control. Evesdropping on an ongoing conversation, or intercepting text messages as they are being sent, violates a reasonable expectation of privacy. By contrast, just as each party to a conservation is free to share a record or recollection of it, and his or her interlocutor can (subject to any applicable privacy legislation) have no reasonable expectation of privacy in that record, so it is also with a “record” of a conversation conducted via text messaging.

Here, as I see it, is one important point of disagreement between the majority and the dissent. Both are ostensibly agreed that what Mr. Marakah had, or lacked, a reasonable expectation of privacy — or, in other words, “the subject matter of the search was Mr. Marakah’s ‘electronic conversation’ with” his accomplice. [17; 111] But it seems to me that while the majority does indeed approach the case as one about the privacy of a conversation, the dissent sees it as being not about a conversation as such, but rather about a record of a conversation. To repeat, Justice Moldaver accepts that “an electronic conversation” would be private; it could not be intercepted without due authorization. But the messages stored in the cell phone of one of the parties to the conversation are not the same thing. They are like the notes one of the interlocutors took. (Hence the title of this, in reference to René Magritte’s notorious The Treachery of Images, a.k.a. Ceci n’est pas une pipe.) As Justice Moldaver suggests, we can expect not to be eavesdropped on, when having a private conversation, but not necessarily that the contents of that conversation will never be revealed to third parties. So the majority decision makes sense in light of how it understood the issue, and the dissent makes sense in light of its author’s different understanding of the case.

But which of them is correct? I personally find this a very difficult question. A number of legal issues arising out of new technologies, broadly speaking, has to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles. One of my very early posts, for instance, was about a case that concerned an attempt by a university to punish students who ranted about their professor on Facebook. Student rants about a professor are nothing new, but the fact that they were made online rather than over beers left a record for the authorities to look into and to try (unsuccessfully in the event) suppressing. In a different way, the disagreement about the way to characterize text messaging “conversations” — often created in a spontaneous way, as if the parties were together in the same room, but a permanent record for the police to look at later — exemplifies the same set of difficulties. (This might come out most clearly in Justice Rowe’s brief concurrence.) On balance, though, I am inclined to think that Justice Moldaver’s view makes more sense. The idea of a never-finished conversation, to which one is always an ongoing party, and in which one is permanently entitled to expected privacy, which seems implicit in the majority’s approach, doesn’t quite make sense to me. This is a very tentative thought, however, and a minority view, I gather.

Beyond the characterization of “electronic conversations”, the Chief Justice and Justice Moldaver also disagree about the policy implications of the Supreme Court’s decision. In particular, Justice Moldaver worries that police will not be able to access, without a warrant, “electronic conversations” that are voluntarily tendered to them by one of the parties, even when the conversations are themselves crimes, and the parties disclosing them to the police are victims. A person may, for example, receive a threatening text message, and want to show it to police officers, but it is not clear that the police will be entitled to look without judicial authorization. At best, this will complicate the work of the police; at worst, serious crimes will go unpunished. The Chief Justice responds that these difficulties can be dealt with if and when they arise. For his part, Justice Rowe is not so sure, and I take that it is because he ” share[s] the concerns raised by Justice Moldaver as to the consequences of this decision” [89] that he goes to the trouble of writing separately.

A lot, then, remains to be decided. Privacy issues have been consistently difficult for the Supreme Court, or at any rate more consistently divisive than most others. I find these issues difficult too, so I have sympathy for judges on both sides. That the majority wants to be protective of privacy in a way the majority in R v Fearon, 2014 SCC 77, [2014] SCR 621 (which I criticized here) was not is heartening. (Some people on Twitter were wondering how many of the judges had got smartphones in the meantime. A cynical question, perhaps, but I’m not well placed to critcize those who are cynical about judges, am I?) The question now is whether the pendulum has swung too far in the direction of privacy. It might have, but we will have to wait to find out.

Doré’s Demise?

What do the Supreme Court’s latest decisions mean for judicial review of administrative decisions that implicate the Charter?

In my last post, I wrote about the religious freedom issues addressed in the Supreme Court’s recent decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa, this time to address a different issue that has, so far as I know, attracted relatively little attention: that of the standard of review of the Minister’s decision. On this point, the majority opinion (by the Chief Justice and Justice Rowe) and the concurrence (by Justice Moldaver) illustrate the ongoing failure of the Rule of Law in the Supreme Court’s jurisprudence.

Let’s start with a bit of history. In Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, Justice Abella, for writing for the unanimous Supreme Court, articulated a framework “for reviewing discretionary administrative decisions that implicate Charter values”. [34] Such review would be deferential, conducted on a reasonableness standard, much like judicial review of most other legal issues, in recognition of administrative decision-makers’ expertise. This approach has been heavily criticized, not least by Paul Daly and Maxime St-Hilaire, but the Court has never overtly resiled from it. However, the application of Doré has been uneven, to say the least.

In Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, the majority opinion, written by Justice Abella, applied the Doré framework. However, as both Paul Daly and yours truly have suggested, there is little to choose between the way it does so and a more traditional proportionality analysis. Meanwhile, a partial concurrence by the Chief Justice and Justice Moldaver eschewed the Doré approach altogether. Just days later, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, a majority of the Supreme Court took yet another approach, holding that the relationship between the freedom of religion, religious neutrality, and prayer by government officials was a question of central importance to the legal system and therefore reviewable on a correctness standard. Justice Gascon, writing for the majority, did offer an explanation for why this case was different, though one that Paul Daly criticized as confused and confusing. Justice Abella was also unimpressed; she concurred, but would have reviewed the decision of Québec’s Human Rights Tribunal on a reasonableness standard. Neither she nor Justice Gascon even mentioned Doré.

Back, now, to Ktunaxa. Again, the majority opinion does not so much as mention Doré. What is more, it does not even raise, never mind address, the issue of the standard of review. After describing the background and the history of the case, and outlining the Ktunaxa’s religious freedom claim, it proceeds to discuss the Charter right to freedom of religion and to address and reject the claim, without referring, much less deferring, to the Minister’s decision at all. It is worth noting that the Supreme Court’s next decision, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, is the same in this regard. One of the issues raised there was whether a policy requiring government lawyers to be available, several weeks a year, to handle urgent matters outside of regular working hours was an infringement of their right to liberty under section 7 of the Charter. A labour arbitrator said that it was, but the Court (unanimous on this point) easily rejected that view, again without addressing either the question of the standard of review or the administrative decision-maker’s reasoning (though the majority did discuss it at length on the other issue in the case, which concerned the interpretation of a collective agreement).

Justice Moldaver’s concurrence in Ktunaxa is also worth mentioning here. He too starts out with his own discussion of the scope of religious freedom under the Charter, criticizes the majority’s view on it, and insists that the Minister’s decision was a prima facie infringement of that right. And then, Justice Moldaver turns to… the Doré framework (citing the majority opinion in Loyola for the proposition that it is “the applicable framework for assessing whether the Minister reasonably exercised his statutory discretion in accordance with the … Charter“. [136] Justice Moldaver explains why he thinks the Minister considered the Ktunaxa’s religious rights, and why his decision proportionately balanced these rights with the applicable statutory objective, paying fairly close attention to the minister’s reasoning.

So what is going on? Prof. Daly seems to think that not much is, but I’m not so sure. Without telling anyone, the Supreme Court might have killed off, or at least curtailed, Doré. Ktunaxa and Justice Counsel seem to suggest that, at least at the stage of defining the scope of a Charter right, Doré is not the applicable framework, and indeed no deference, or even attention, is due to an administrative decision-maker’s reasoning. Now, I’m no fan of Doré, and would be glad to know it’s dead and buried ― but if the Supreme Court has decided to get rid of it, that seems like a pretty big deal, and it should have told us. As things stand, for all we know, the Court might re-embrace Doré in the next case and pretend that Ktunaxa and Justice Counsel never happened, just as in those cases it seems to pretend that Doré, or at least Saguenay, never happened.

Moreover, there is an intermediate possibility, suggested by Justice Moldaver’s concurrence in Ktunaxa ― though of course we have no idea what the majority of the Court thinks about it, since it does not comment on this, or indeed any other, aspect of Justice Moldaver’s reasons. Perhaps, while the definition of Charter rights, as opposed to the justifiability of infringements under section 1, is a matter for the courts, while the justifiability of infringements is still to be reviewed by applying the Doré framework, perhaps as modified, if modified it was, in Loyola. This is not a crazy approach (which isn’t to say that I like even this diluted version of Doré). One could argue that the scope of Charter rights is necessarily a question of central importance to the legal system on which administrative decision-makers, even otherwise expert ones like labour arbitrators, are not in a privileged position vis-à-vis the courts, while whether a particular restriction to a right is permissible is an issue that is both less important and more bound up with a particular decision-maker’s expertise.

Crazy or not, I don’t think this approach is what Doré stands for. As I read it, Doré meant to move away from the two-stage Charter review with prima facie infringement and justification, in favour of a less structured, more global assessment. This is presumably why Justice Abella persistently spoke of Charter “values” instead of rights. Besides, at least one of the cases that Justice Abella invoked as supporting the proposition that discretionary administrative decisions engaging these “values” had to be reviewed on a reasonableness standard was a section 7 case, and in such cases the important questions typically (although, as we now know, not quite always) have to do with the definition of the right, not with its limitation under section 1. There just isn’t any indication in Doré that Justice Abella or her colleagues meant to confine it to the more limited role that it plays in Justice Moldaver’s Ktunaxa concurrence.

At the very least, then, the Supreme Court may have substantially modified Doré. Perhaps it has decided not to follow it anymore. But, to repeat, the Court has not told us so. This is problematic. Indeed, I think the Court is guilty of a serious Rule of Law failure. The Rule of Law requires law to be stable ― though not unchanging, to be sure ― yet the law on the standard of review of administrative decisions involving the Charter has now changed at least three, maybe four (depending on how to count Loyola) times in less than six years. The Rule of Law also requires, I think, that the fact of legal change be transparent (this is a function of the generally recognized requirement that law must be public). This is not always easy to ensure in the case of law being articulated and re-articulated by courts in the process of adjudication, but at least when a court knows that it is disregarding a relevant precedent or changing its approach to a type of case, it ought to be able to say so. The Supreme Court did so in Saguenay ― but not in Ktunaxa and Justice Counsel.

Or, look at this another way. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court famously spoke of the importance of “the existence of justification, transparency and intelligibility within the decision-making process”. [47] That was by way of defining the notion of reasonableness in administrative law (itself a requirement of the Rule of Law), but you’d think that the courts should at least be held to as high a standard as administrative tribunals. Well, I’d say that it’s not easy to see much by way of justification, transparency, or intelligibility within the process by which the Supreme Court determines the standard of review of administrative decisions involving the Charter these days.

One last point. Justice Stratas links the doctrinal uncertainty that bedevils Canadian administrative law with turnover on the Supreme Court. I’m sure that this is a part of the story ― but Ktunaxa suggests that it is only a part. It’s not just that judges retire and are replaced by others who don’t agree with them. They don’t even stick to one approach while they are on the Court. Justice Abella wrote Doré and defended deferential review in Saguenay, but she signed on to the majority opinion arguably ignoring it in Ktunaxa. Justice Moldaver co-wrote the partial concurrence in Loyola that effectively rejected Doré, but in Ktunaxa he enthusiastically applied it, albeit not in full. (To be sure, there is something to be said for a judge who accepts having been outvoted on a particular issue and falls in line with the majority. But given the overall uncertainty of the law in this area, it might not be the best place to demonstrate one’s team spirit.) Given this individual inconstancy, it is no surprise that the Supreme Court as a whole is lurching from one approach to another without anything to stop it.

Given the lack of clarity from the Supreme Court about what exactly it was doing to standard of review analysis in Ktunaxa and Justice Counsel, we will have to wait to find out whether these case are just aberrations or the start of a new trend. It is at least possible, however, that they mean that Doré is, in whole or in part, no longer good law. I’d offer three cheers for that result, but must instead lament the lack of clarity and transparency with which it has ― unless it has not ― been reached.