A Defense of Doctrine

Sometime ago, I was doing a presentation on the recent doctrine in a particularly contentious area of law at a Canadian law school. The presentation was designed to show how developments in the doctrine were inconsistent with fundamental principles underlying the doctrine, and that the doctrine should therefore be adjusted. I’m remaining at a high level of generality, because the details of the area of law don’t really matter.

When I finished my presentation, I received questions from the audience. Many were excellent. One was quite critical. But it was not critical on the doctrinal point I was making. Rather, the individual made the point–and I am paraphrasing–that the presentation was doctrinal. The gist of the argument was that doctrinal questions in law are too esoteric, not connected enough to the “real world,” and elide questions of empirics, morality, or otherwise.

My initial shock at the question–I was in a law school, after all–gave way to reflection. It seemed to me that this criticism, as I understood it at least, was way too broad. And if such a criticism is taken far enough, it can change entirely the expectations for lawyers and legal academics in a way that we are unequipped to handle.

At one level, perhaps the questioner’s point can be steelmanned. If one says that doctrine is all there is from a methodological perspective, legal analysis might miss something. Legal analysis that analyzes cases as a connected line of decisions, but unconnected to the philosophical or moral norms embedded in our legal system, will inevitably be incomplete (though all-things-considered moralizing is not the stuff of legal analysis). For a full picture of how the law actually works (at least at the functional level), empirics are important. In many ways–and despite the dangerous risks I will point out–the study of law has benefited from interdisciplinary work, done well.

But this questioner’s comment–and other trends I observe in the academy–lead me to think that the underlying argument is more radical. The point seems to be that the study of doctrine itself is the stuff of pedants; fiddling while Rome burns. On this account, if a legal academic is just studying doctrine, they are either complicit in the immorality of that doctrine, or they are unintentially missing the broader picture of how the law operates.

I think this criticism is misguided.

For one, as legal academics, we are trained in the law. We go to law school and graduate school to learn about the law–as it is, and in light of fundamental principles, perhaps how it should be. This is our craft. Without proper training, the further we go beyond this craft, the greater the risk of distortion or misinterpretation. This is why interdisciplinary work, particularly empirical work, carries such a great risk for legal scholars, despite its ascendancy in the academy. While legal scholars do produce good empirical work, no one suggests that this is the craft of the academic lawyer.

The specific craft of lawyers is also no more suited to philosophy or moralizing. In a memorable turn of phrase in the recent Rogers-Shaw decision, Justice Stratas tells us that judges are just lawyers who happen to hold a judicial commission. There is truth to this. While judges have been granted the power of judicial review of legislation under the Constitution, the problem is not this grant of power per se. Rather, it is the pretense that judges have special insight into the moral values of Canadians in exercising that power, as opposed to special insight into the law. When judges stray from the legal craft, it becomes irresistible for the public to conclude that lawyers have some special insight into the way the world should be. A dose of humility should tell us why this is wrong.

On the fundamentals, I worry about the degradation of doctrine. As Paul Daly pointed out in a recent piece, the role of doctrine in legal analysis is not the stuff of pedants. Decisions that are reached according to settled principles enhances public legitimacy of those decisions. Justified departures from those decisions can sometimes be warranted; but this is the point, they must be justified according to fundamental legal norms. Doctrine cabins in all-things-considered moralizing, which–as I have pointed out–lawyers are no more equipped to handle than anyone else. When crisis strikes–pandemics, war, what have you–floating adrift on a sea of political or moral theory (or worse, the say-so of someone in a robe) will only distort the sort of legal protections upon which Canadians have come to rely. This is not to say that the law is fool-proof and all-protective. Law is a human creation. Nonetheless, it is for this reason that doctrine serves an important legitimating function.

This is where the doctrinal methodology, best-suited to lawyers, comes in. Lawyers who study doctrine should not shirk from doing so. The clarification and study of doctrine can assist judges in reaching reasoned decisions that best reflect the legal materials. Whether we like it or not, the common law method is the bread-and-butter of legal decision-making. Someone needs to step into the role to study the doctrine, to try to make sense of things that could elude the attention of the philosopher or political scientist.

I’m glad the questioner phrased the challenge in the way they did. In a way, it provided an opportunity for reflection on the important, continued role of doctrine. The only error, to my mind, is hubris in either direction–a confident belief that doctrine doesn’t matter, or a confident belief that doctrine is all there is. But for the academic lawyer who finds a home in the weeds of doctrine, there should be no shame.

Consequences

Are demands that speech not be punished just a childish attempt to escape consequences?

A recent piece by Max Fawcett in the National Observer invokes a number of common tropes about freedom of expression. One, which I address here, is that when people are punished for what they have said or written, they have “not been denied that right. But neither [have they] been excused from the potential consequences associated with exercising it”. The implication is that it is just as absurd ― perhaps childish ― to try to escape punishment for one’s words as it is to escape the consequences of one’s actions.

The context of Mr. Fawcett’s piece is a dispute between Jordan Peterson and the Ontario College of Psychologists, which ― like pretty much everything else Dr. Peterson-related ― I don’t care about. But this response to all manner of speech-related controversies is widespread. It is, in these terms, particularly favoured on the social justice-minded left: see, for instance, the comments of a man whom the BBC describes as engaged in “publicly shaming” people for real or perceived transgressions against progressive propriety and “ultimately getting the people ‘cancelled'”: “These times of doing whatever you want without consequences are over”, the BBC quotes him as saying. But, as Cathy Young points out just today in The Bulwark, the political right, especially in the United States, is also quite willing to visit retribution on those who say and write things it doesn’t like, even as it poses as a defender of free speech.

Why is the claim that punishment for the expression of ideas is just “consequences” and, as such, must be accepted by any reasonable adult wrong? Because the whole point of freedom ― of any freedom, not only freedom of expression or speech, but also freedom of religion, of assembly, or association for example ― is precisely freedom from certain kinds of consequences. And it is only, I think, with freedom of expression that anyone would dispute this. Imagine saying “you’re free to go to Church on Sunday, but you must accept the consequence of being fined for it”; or, “you’re free to form a union, but you must accept that you’ll be jailed if you do”. This is arrant nonsense, and everyone will instantly recognize that it is just that. The freedom of expression is no different: it is also, of course, an immunity from at least some kind of consequences attaching to its exercise.

Now, the real issue ― and again, this is true of freedoms other than that of expression ― is what consequences, imposed by whom, are off-limits. At one end of the spectrum, almost everyone agrees that it’s wrong for government to jail people for what they say, at least in most circumstances; it’s wrong to fine people for going to this or that house of worship, or to beat them up for holding a peaceful protest in a public square. At the other end, contrary to the caricature prevalent in social-justice circles, very few people, if anyone really, think that pure criticism is a forbidden consequence for speech. Again, other freedoms are mostly similar, though there is, it seems to me, a tendency in some quarters to view any criticism of (some) religious beliefs as categorically wrong; indeed, there is a perplexing overlap between the people who believe this and those who argue that even state-imposed or -backed punishment for speech is just “consequences”.

The difficult questions, when it comes to expression, are of two main sorts. First, what are the exceptions to the general principle that the state should not punish people for what they say? I don’t think anyone who accepts the legitimacy of the state denies that there are some exceptions. Fraud is committed through speech or writing, for example. But there are issues on which reasonable people disagree in good faith; hate speech is a classic example. I’m inclined to say, though, that this category of hard questions is actually a comparatively narrow one.

The bigger and perhaps more socially provocative one has to do with the vast middle part of the spectrum between state-imposed punishment on the one hand and pure criticism on the other. Does an employer have the right to fire an employees for their politics? Can a social media platform censor a story it considers to be disinformation, or indeed ban a user inclined to share such stories? Should people be able, not just to criticise someone who they think has crossed a line that should not be crossed in polite society, but to seek to get them fired from their job? How about doxxing them?

What makes these questions even more fraught is that each of them, in truth, is at least two questions, if not more. Does an employer have a legal right to fire an ideological dissident? Does an employer have a moral right to do it? And, perhaps, even if there is a moral right, should a good employer forbear from exercising it? And so on. Far too many people confuse the legal and moral issues, or think that the law should precisely track (their) morality, but here as elsewhere there may be perfectly good reasons for law and morality to diverge.

This is the stuff the “culture war” about freedom of expression is largely about; the legal debates, less so, but increasingly in the last few years. There are genuinely difficult questions there. Questions about line-drawing, for example, such as when, if ever, what would be perfectly legitimate criticism coming from one person becomes a morally reprehensible pile-on when engaged in by a large group. Questions about clashing rights, such as those that arise in relation to employers or social media, who have expressive interests of their own to set up against those of employees and users. Questions about the nature and relevance, or not, of market competition and monopoly. And no doubt many others.

When such difficult questions are debated, as they should be, nobody is served by amalgam, clichés, and misdirection. The tired claim that punishment for speech at the hands of the state ― or for that matter at the hands of an online mob ― is just “consequences” is all of these things. Yes, of course a punishment is a consequence, but if we believe in freedom of expression at all, we are committed to the principle that not every consequence that can be visited on a person for what he or she says or writes is just. What we want to know is what consequences are just, and when. Let’s talk about that.

I will try to address a particular set of questions related to this, also based on Mr. Fawcett’s piece ― specifically, on his claim that “[t]here is nothing unjust or illiberal about professional organizations enforcing codes of conduct for their members” ― in a separate post. Stay tuned.

In the Name of God, Go!

The Canadian Judicial Council wants a tardy, cantankerous judge gone. So do I.

Yesterday, the Canadian Judicial Council published a report recommending the removal from office of a Quebec Superior Court judge, Gérard Dugré. I hadn’t followed this sordid story until now, and was a bit wary on seeing the news, especially given that media reports mentioned, somewhat blandly, off-colour remarks and such as grounds for the CJC’s recommendation. Was it a case of tone policing rather than genuine misconduct? It turns out, no ― not at all.

I haven’t been able to find out much about Justice Dugré’s career prior to his appointment to the bench, but here’s at least one indication that it was an accomplished one: back in 2006, he was named Plaideur de l’année ― oral advocate of the year ― by Le Monde juridique. Among other winners of this particular accolade is one Suzanne Côté, in 2008, now of course Justice Côté of the Supreme Court of Canada. Presumably, one doesn’t get this sort of recognition without being a talented and hardworking lawyer, as Justice Côté’s example suggests. Unfortunately, on his appointment to the bench, Justice Dugré did not live up to this kind of standard.

The CJC report proposes two grounds for his removal, each of them independently sufficient. The first is chronic tardiness in the delivery of judgments Justice Dugré took under advisement. The second, the one that seems to have attracted more media attention, is his persistent misbehaviour in the courtroom.

On the subject of delay, the report deals with two somewhat different issues. For one thing, there was a particular case where Justice Dugré disregarded his own undertaking to the parties to give judgment promptly in light of the exigency of the circumstances (the matter involved the sale of a family home, and delay resulted in heavy financial costs as well as, obviously, stress and inconvenience). Having let the parties think the case would be disposed of in weeks if not days, Justice Dugré took eight months.

But this case was, it turns out, merely illustrative. Concerns about Justice Dugré’s slowness were raised early in his tenure. He received both admonitions and help from his Chief Justices and Associate Chief Justices. His assistant kept track of his delays, presumably as part of this process. It was all to no avail. Of his

185 judgments, 60% … were rendered more than six months after being taken under advisement and 18% were rendered more than a year after that date. … [T]here were no other judges who experienced comparable delays in rendering judgments. [67]

One shudders at the thought of the cost this imposed on everyone involved in these cases ― again, financial cost, stress, delayed life plans. The CJC is right that a judge who behaves like this must not be allowed to continue in office.

And then, there are Justice Dugré’s courtroom antics. I will give only a few examples from the litany in the CJC report, which itself, I take it, is only a selection from what had been established during the fact-finding process. It is hard not to chuckle at reading some them ― Justice Dugré’s mannerisms had a certain darkly comedic quality. Only, he was a judge, not a comic, and there were real people at the receiving end of it all.

For example, in what the CJC describes as “a choice of school case” (in the family law context, I assume), Justice Dugré “[o]n two occasions, proposed a solution whereby the child in question would be sent to boarding school or put up for adoption”. [68] In a civil case, Justice Dugré

[m]ade jokes in reference to allegations of sexual misconduct about a
colleague of one of the parties. He asked whether one of the parties had
been “accused of sexual assault yet”, suggesting that he just wanted to
make sure that “everyone’s behaved themselves.” The case had
absolutely nothing to do with sexual assault. [70]

In a different family law case, Justice Dugré “[s]uggested the complainant’s non-disclosure of certain documents could result in a finding of contempt of court and incarceration in a cell with starving rats”. [71] In the same case, in addition to taking over the examination of witnesses ― for forty minutes at a stretch in one instance, justice Dugré went on the following rant, which the CJC soberly describes as “shar[ing] his views on alcoholism with a witness on the stand

Because a lot of people drink two bottles of wine a day, one at noon, one in the evening, are perfectly, they aren’t alcoholics at all, because they like wine, and they really like it. And after all, lunch goes on for three hours, and supper goes on for three hours. So, there’s five glasses, in a bottle of wine, so there’s, we’re two people, that makes two glasses, four glasses. Fine. They had two bottles of wine. That’s nothing. But a guy who has one glass of wine, he gets totally enraged, and all that, but he has to be careful, he can’t touch that, he’s not allowed. Because he gets totally crazy. So, that’s what alcoholism is. [71]

To which one is sorely tempted to say, go home, my Lord, you’re drunk. The CJC doesn’t put it in so many words, but its conclusion is to the same effect: Justice Dugré’s “behaviour in belittling parties and counsel, making inappropriate and offensive comments and not permitting parties an opportunity to present their case, are all sufficient to ground a finding of judicial misconduct”. [82] Again, no disagreement from me on this one.

Before ending this sorry tale, a word on Justice Dugré’s response to the CJC process. Assuming the report provides a fair account of his arguments (and I have no reason not to assume this), they consisted very largely of procedural quibbles about the manner in which his conduct was investigated and considered. This is of a piece with Justice Dugré’s repeated attempts to stop the investigation in its tracks by filing multiple judicial review applications, which resulted in three increasingly terse dismissals by the Federal Court of Appeal, and two dismissed applications for leave to appeal to the Supreme Court.

Of course, a judge investigated by the CJC is entitled to procedural fairness, but there is something unseemly in the extreme when this entitlement is used in an attempt to avoid a conclusion on the merits, instead of to ensure a fair consideration of the case, which there seems to be no reason to think Justice Dugré was denied. I have no problem with a person accused of a crime trying to “get off on a technicality”. But when a public officeholder’s fitness for office is in question, I think decency requires him or her to see to it that a decision on the merits is reached, so long as the process affords him or her a full opportunity to make his or her case. Justice Dugré, for his part, chose not to testify. The CJC is careful to note that no adverse inference should be drawn from this, but from a moral rather than a legal standpoint, I think this is bad form at the very least.


So while Justice Dugré will now have the opportunity to commence yet another judicial review, I can only hope he does not take it. This is pretty much his last chance to leave a job for which, for whatever reason, he turned out to be utterly unsuited with at least a modicum of good grace. He should have gone long ago. He must do it now. Now.

Why Couldn’t They?

Quebec probably can abolish the requirement that Members of the National Assembly swear allegiance to the King

The Quebec government has made news, even on this side of the pond, by introducing Bill 4, which purports to amend the Constitution Act, 1867 “by inserting the following section after section 128: ‘128Q.1. Section 128 does not apply to Quebec'”. Section 128 provides, in part, that

Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act.

No more oath of allegiance to King Charles, then, for members of the National Assembly? Not so fast, say a number of people whose judgment I regard highly. A province (or for that matter Parliament) cannot unilaterally change this provision’s application to itself, though, as Lyle Skinner notes, there seems to be some division of views on what the appropriate procedure would be.

But I’m not sure I see what it is that stops a province from proceeding unilaterally; or at any rate, I have not seen the relevant evidence yet, though I admit I haven’t followed this whole controversy closely. I should also note that I what I am about to say does not endorse Quebec’s predilection for purporting to inscribe amendments to its provincial constitution into the Constitution Act, 1867. I think this way of doing things is self-indulgent and silly, and I don’t know whether it is lawful either. Perhaps Bill 4 could be attacked on this ground, but I leave this question aside and focus on its substance.

The authority for Bill 4, if it exists, must come from section 45 of the Constitution Act, 1982, which provides that “[s]ubject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” Legislation must, satisfy two obvious criteria to be valid under this provision: it must be concerned with “the constitution of the province” and it must not trench on matters protected section 41 of the Constitution Act, 1982.

The first test is explained in Justice Beetz’s majority judgment in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2. It has two branches. First,

is the enactment constitutional in nature? In other words, is the enactment in question, by its object, relative to a branch of the government of [the province] or, to use the language of this Court in Attorney General of Quebec v Blaikie, [1979] 2 SCR 1016, at p. 1024, does “it [bear] on the operation of an organ of the government of the Province”? Does it for instance determine the composition, powers, authority, privileges and duties of the legislative or of the executive branches or their members? Does it regulate the interrelationship between two or more branches? Or does it set out some principle of government? (38-39)

 The existence, contents, and abolition of an oath to be sworn by members of the legislative assembly obvious meets this test, bearing as it does on the composition and duties of the members of the legislative branch. The fact that s 128 lies outside the part of the Constitution Act, 1867 entitled “Provincial Constitutions” is neither here nor there. It is the substance that matters here, as Justice Beetz pointed out.

The second branch of the OPSEU test is the one that those who believe Quebec lacks the authority to enact Bill 4 have in mind. It says that

provisions relating to the constitution of the federal state, considered as a whole, or essential to the implementation of the federal principle, are beyond the reach of the amending power bestowed upon the province … Furthermore, other provisions of the Constitution Act, 1867 could be similarly entrenched and held to be beyond the reach of s. 92(1), not because they were essential to the implementation of the federal principle, but because, for historical reasons, they constituted a fundamental term or condition of the union formed in 1867. (39-40)

Now, I think it’s obvious that the oath of allegiance has nothing to do with the federal principle and the distribution of powers among Parliament and the provincial legislatures, or with “the constitution of the federal state, considered as a whole”. On the contrary, part of the point of Canadian federalism is that Parliament and the provincial legislatures function autonomously. They are elected in separate elections, pursuant to different electoral legislation (and, potentially, with a different franchise, though subject to s 3 of the Canadian Charter of Rights and Freedoms); they have different privileges and different internal procedures.

If the second branch of the OPSEU test prevents provinces from abolishing the oath of allegiance for their legislators, it must be because this oath “constituted a fundamental term or condition of the union formed in 1867”. And… I just have a hard time thinking that that’s the case, whether for reasons of form or substance.

So far as form is concerned, it is true that s 128 mentions federal and provincial legislators in the same provision, indeed in the same sentence. But I don’t think it follows that they cannot be disaggregated. Consider s 96 of the Constitution Act, 1867, which provides in part that “the Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province”. Here too, federal and provincial institutions are mentioned ― and indeed, not merely mentioned in parallel as in s 128, but intertwined. Yet that did not stop the provinces from exercising their s 92(14) power over “the Constitution, Maintenance, and Organization of Provincial Courts” to abolish District and County courts. 

As for substance, the example to which Justice Beetz points in OPSEU is s 133 of the Constitution Act, 1867, which imposes the requirement of legislative and judicial bilingualism on both Parliament and the Quebec legislature. This is the provision considered in Blaikie. The Supreme Court referred to the judgment of the Quebec Superior Court “[o]n matters of detail and of history”. (1027) That judgment, for its part, quoted at some length from the Confederation Debates, where John A. Macdonald noted that it “was proposed by the Canadian Government … and it was assented to by the deputation from each province that the use of the French language should form one of the principles upon which the Confederation should be established”. Meanwhile, Georges-Étienne Cartier added that

The members of the [Quebec] Conference had wanted that this [French-Canadian] majority [in Quebec] be unable to enact the abolition of the use of the English language in the local legislature … just as the English majority in the Federal legislature would be able to do it to the French Language.

This is what a fundamental term of confederation looks like. A quick skim through PrimaryDocuments.ca doesn’t suggest any equivalent attention having been paid to the oath of allegiance. It was only a quick skim and it’s entirely possible that I have missed something, of course. But unless and until someone points to specific facts that suggest that the oath had any sort of comparable importance, I will not be persuaded that it was a “fundamental term or condition” without which Confederation would not have happened.

Thus, I don’t think that the OPSEU test prevents a province from changing or abolishing the oath of allegiance the members of its legislature must subscribe. There remains, though, the other restriction on section 45: section 41 and, specifically, the restriction that a province may not amend its constitution so far as it relates to “the office of the Queen, … and the Lieutenant Governor”.

Mr Skinner, in the tweet linked to above, says he “ha[s] not seen anyone suggest” that this restriction applied, but this overlooks obiter dicta in Blaikie. In responding to Quebec’s contention that s 133 was similar to certain other provisions of the Constitution Act, 1867 in being part of the provincial constitution despite not being included in the part entitled “Provincial Constitutions”, the Court had considered s 128. It said, however, that it “raises a different issue, referable to the office of the Gover­nor-General and of the Lieutenant-Governor and touching the position of the Crown in respect of members of the legislative chambers, so long as such chambers exist”. (1024) But the Court did not fully canvass this issue, stating that “[i]t does not seem necessary to come to a determi­nation whether s 128 is part of the Constitution of the Province and amendable as such”. (1025)

For my part, I find it difficult to accept the Court’s suggestion. I do not think that an abolition of the oath of allegiance affects “the office” of the monarch. The highest authority we have on the meaning of this phrase is Motard v Attorney General of Canada, 2019 QCCA 1826, where the Quebec Court of Appeal held that it referred to “the powers, status or constitutional role devolved upon the Queen”. [92] While I suspect that that judgment was wrong in its key holding ― that the rules of succession to the throne were not also part of the royal “office” ― I do not see the existence or otherwise of the oath as pertaining to “the powers, status or constitutional role” of the sovereign. It is a constraint on members of the legislature, not a privilege or power of the King.


In short, subject to better historical evidence on the importance of the oath of allegiance as a condition of Confederation coming to light, I think that a province has the power to dispense with it unilaterally. That does not make such a dispensation a good idea, though I have argued elsewhere that similar oaths are useless at best and pernicious at worst. It is arguable that legislators are in a different position than would-be citizens or would-be lawyers, but I don’t know how compelling these arguments are. And, of course, even the desirability of abolishing the oath requirement, let alone the constitutionality of doing so, has nothing to do with the desirability of preserving the monarchy. God save the King!

In Memoriam, Stephen A. Smith

Memories of one of my favourite professors

Stephen A. Smith, who taught me Contract Law and Advanced Common Law Obligations at McGill, and for whom I was a research assistant for two summers, has died. It is very sad news indeed. He was a good teacher and a good man.

Professor Smith was a leading private law theorist. He once joked that “every law professor only has one thing to say”, and there is truth in this, I’m afraid, as in any good joke, but he was very much the exception to this rule. Still, others will be better placed to speak to his accomplishments. As much as I liked him and enjoyed working for him, private law was and has remained beyond me, and indeed I don’t think I realized how important a scholar he was until much later; I’m afraid we took our professors for granted a lot. But I wanted to try to explain why I liked Professor Smith, despite not having been very interested in his subject.

As a teacher, he was always interested in why the law worked the way it did. One way in which this manifested itself, which I don’t think was especially popular but was probably my favourite part of the three semesters he taught me for, was having his second-year students read David Ibbetson’s A Historical Introduction to the Law of Obligations. Knowing that, centuries before Donoghue v Stevenson, there had been a case about a shipper who “by force of arms”, introduced salt water into the plaintiff’s wine barrels? I was there for that. Also, because he was interested in how things fit together and made sense, Professor Smith had no piety for courts that failed to live up to that standard. He wasn’t the only one of my professors from whom I learned this, but he was definitely one of them.

At the same time, he was mild-mannered, pleasant, unpretentious, and supportive. When a torts professor asked a class to describe the reasonable person, someone said that it was simply Stephen Smith. And he was.

Well, most of the time. Perhaps, to paraphrase Arthur Clarke, to discover the limits of the reasonable one needs to cross them a little into the unreasonable, and that’s what he did in the research he got me to help with. One of his jobs for me was to find out about remedies in French law. This sounds straightforward enough, until you realize that French law has no concept of remedies at all. It thinks in terms of obligations and the execution of obligations, rather than rights and remedies like the common law, and translating one into the other is by no means obvious. Professor Smith then went one better: what about remedies in Roman law? I’d never studied Roman law; good luck to me… And that wasn’t all. The best one, in fact, was this: try to find out if there actually exist private law examples of rights without remedies. That brought to mind Cristobal Junta, a character from the Strugatsky brothers’ Monday Starts on Saturday, a former inquisitor become researcher into wizardry and magic who regarded it as a point of principle to only investigate questions that had no answers, because if an answer exists, what’s the point of looking for it?

It wasn’t always easy to wrap my head around these things, but I think I learned a lot from them. Not so much about remedies, alas, but about law more generally, and about curiosity and thinking outside the box. I’m grateful to Professor Smith for having given me these opportunities ― despite my not having been an especially good student in his classes. These assignments may have made my head swim at the time, but they are some of my fondest law school memories now.

It is trite to say that one will miss a person who has died. But there it is, I will miss Professor Smith. He made me think harder and better, and he made the world a more interesting place, even if it was always in a low-key, reasonable, way. Thanks, and farewell.

Simplicity in the Law of Judicial Review of Regulations: Auer and TransAlta

This post is derived from this week’s edition of my newsletter, the Sunday Evening Administrative Review.

______________________________________________

Auer v Auer, 2022 ABCA 375 (November 22, 2022); TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (November 23, 2022)

Context and Holding: In these decisions, the ABCA deals with the question of how courts review regulations for compliance with primary law. The cases hold that the framework set out in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 applies, rather than the revised judicial review framework in Vavilov. In so doing, the ABCA sets itself up directly opposite from the Federal Court of Appeal, which has endorsed Vavilov as the starting point for the review of regulations: Portnov v Canada (Attorney General), 2021 FCA 171 (Issue #7). It is also set up opposite the BCSC/ BCCA: see e.g. Pacific Wild Alliance v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2022 BCSC 904 at paras 68-75; Whistler (Resort Municipality), 2020 BCCA 101.

Analysis: As readers of this newsletter will know, I strongly disagree with the ABCA’s conclusion, and the reasons underlying it. Reading Auer and TransAlta together, the ABCA advances several reasons for preferring the “hyper-deferential” Katz framework for the review of regulations over Vavilov:

  1. Vavilovian reasonableness impermissibly invades the exercise of legislative powers, violating a core tenet of the separation of powers. Katz “maintains the integrity of the separation of powers and the role of the legislative branch of government. It ensures that courts do not enter the legislative field by weighing in on matters that properly fall within the sphere of the legislature and the executive” (Auer, at para 58; see also para 83). Or as put in TransAlta, at para 50: “[t]o decide whether a valid regulation is, in outcome ‘reasonable’ is to judge the merits of the path chosen by the delegated lawmaker to achieve the objectives of the enabling statute.”
  2. Vavilov cannot be taken to implicitly overturn Katz: it makes only one passing reference to Katz (see Auer, at para 42; TransAlta, at para 47).
  3. There are practical problems with applying Vavilovian reasonableness review to regulations. As Auer notes, “…[m]any of the contextual factors highlighted in Vavilov simply have no application to a vires review” (Auer, at para 77).

I will respond to these three concerns, but I first want to highlight a core feature of my response. There have long been debates in the law of judicial review over the need to “limit and simplify” versus the need to “tailor deference to variety” (US v Mead Corp, 533 U.S. 218 at 236). Of course, this is rarely a binary, and because of the subject matter, some consideration of variety will be necessary (as Vavilov‘s acceptance of context demonstrates). This is inevitable. Nevertheless, I am on the side of limitation and simplification to the extent possible. The fact that administrative decision-makers come in all shapes and sizes does not mean we require legal rules that track every individual type of decision-maker or decision, absent any fundamental reason. To my mind, all that is required is: (1) the recognition of fundamental principles that guide the doctrine (in Vavilov’s case, legislative intent and the rule of law); (2) the creation of general, all-purpose doctrinal rules plausibly connected to these principles; (3) guidance on how to apply the doctrine.

Vavilov and its progeny accomplish this. While Vavilov is, admittedly, contextual, it simplifies judicial review because it provides (1) a set of standard of review categories that plausibly map to legislative intent and the rule of law (though imperfectly); (2) on the reasonableness standard, it provides guidance about the contextual constraints that are relevant in a given case–this guidance limits these constraints so courts and litigants know when they will be relevant. Most importantly, when I speak of simplicity, I think of the fact that Vavilov provides an agreed-upon starting point, connected to fundamental principles, for all review of action of all kinds taken under delegated power. In this sense, Vavilov is a hard-won template. As we will see, the recent case of Law Society of Saskatchewan v Abrametz, 2022 SCC 29 (see Issue #48), inexplicably unmentioned by the ABCA, endorses the “start with Vavilov” idea on a question outside Vavilov’s contemplation: procedural fairness. This shows Vavilov’s utility as a general framework.

Starting with the same well of conceptual resources for all sorts of decisions simplifies the law of judicial review, and is no small thing. Simplification isn’t just aesthetic. Lawyers—to their detriment—sometimes overcomplicate matters beyond what is necessary, perhaps out of academic self-satisfaction. But the reality is this: the law of judicial review must be workable. It must connect to fundamental principles but at the same time be applicable by judges and understood by parties who bear the brunt of state action. This is the gargantuan challenge of administrative law. In this sense, Vavilov has done an extraordinary thing by largely accomplishing this goal. Parties now tend to argue about the merits of their cases rather than the standard of review. The ABCA’s discursus on Katz, unfortunately, is a step back to the old days of distinctions between legislative/quasi-legislative/adjudicative functions, where there are islands of government power uninhibited by the regular law of judicial review. If there was a compelling reason in principle for this, that is one thing. In this case, the Court’s decision endorses Katz because of its own erroneous perception of what the separation of powers, Vavilov, and general principles of administrative law require.

On to some specific points of contention:

  1. The ABCA’s separation of powers argument does not get off the ground because of (1) a fundamental (though understandable) confusion about the word “merits” in Vavilov; and (2) a confusion about the role of secondary legislation. As Paul Daly argues, (1) leads the ABCA astray. Auer says that “[a] true Vavilov approach can only be accomplished by the reviewing court descending into a consideration of the merits of the policy decisions underlying the regulations and formulating its own reasons why the regulation was a reasonable policy choice” (Auer, at para 75). As Daly says, it is true that Vavilov speaks of its framework applying to the “merits” of administrative decisions (e.g. Vavilov at paras 2, 10, 16). But this does not mean that Vavilov endorses a judicial questioning of the policy wisdom of an administrative decision. This simply cannot be the case as a matter of fundamental principle. Vavilov’s reference to merits, instead, refers to the substance of administrative decisions as opposed to procedural concerns. As is well-known, judicial review polices the boundaries of the administrative state according to the concepts of legality, reasonableness, and fairness. This is different than questioning the policy merits of an administrative decision in the abstract. Judicial review—and Vavilov reasonableness—does not mean that courts arrogate to themselves the right to make certain policy choices. A few specific examples are relevant to show how this works throughout the law of judicial review:
  • In Alberta Teachers’ Association, 2011 SCC 61, the Supreme Court addressed the situations in which it would be appropriate for litigants to make new arguments on judicial review. Generally, the presumptive rule is that new arguments cannot be made on judicial review, because “the legislature has entrusted the determination of the issue to the administrative tribunal” (Alberta Teachers, at para 24). This is a recognition that judicial review cannot proceed as a trial de novo, a recognition of the space left to the decision-maker to flesh out the law in its field so long as the decision fits within the purview of the statute.
  • As the Federal Court of Appeal has stated with reference to new evidence on judicial review, the same rule applies because the legislature delegated the power to the administrator to “determine certain matters on the merits”; permitting new evidence routinely would undermine the demarcation between legislative and judicial roles, and so “[t]his Court can only review the overall legality of what the Board has done, not delve into or re-decide the merits of what the Board has done” (Association of Colleges, 2012 FCA 22 at paras 17-18).

Deference under Vavilov takes on a similar hue. Courts do not reweigh the evidence on judicial review (Vavilov, at para 125); deference necessarily involves a restriction on the court in intervening with an administrative decision-maker because that decision-maker has been delegated the power to make decisions (Vavilov, at para 13). These decisions may have policy consequences, but courts do not second-guess those consequences; they only ensure that a particular decision fits within the purview of the statute, and meets the basic requirements of rationality. This is even so where regulations are made after submissions in a legally-defined process: in such a case, the submissions form part of the record that courts use to assess whether the secondary legislation is justified by the law and the facts to which it applies. None of this involves, properly applied, an impermissible intrusion into the realm of lawmaking because the court is not formulating policy alternatives nor weighing in on which alternatives are best. It is only asking whether the action fits the bounds of the law and the evidence, like it does for all executive action. Indeed, this is the same rule we apply to all acts taken by the executive under statutory authority, including municipalities and other bylaw-creating bodies. As I will point out, the sweep of Auer/TransAlta is unknown, and presumably it should capture these bodies as well.

This is related to the second problem. The ABCA skirts over what I consider to be the real issue: the subordinate nature of what we call “executive legislation.” The ABCA’s entire point apparently seems to rest on the assertion that regulations are part of the primary legislative process—that, legally, the exercise of legislative powers by the Governor in Council is subject to the same rules that apply when Parliament enacts laws as an exercise of primary legislative authority (Auer, at para 53, citing Mikisew Cree First Nation v Canada, 2018 SCC 40 at para 32). Primary legislative authority is the authority to “enact, amend, and repeal statutes” (Pan-Canadian Securities Reference, 2018 SCC 48 at para 76). These statutes cannot be reviewed except for constitutionality, and this was the context of Mikisew Cree (notably not executive legislation). But this ignores a fundamental distinction between primary and secondary legislation. Inexplicably, the ABCA recognizes that regulation-making is “an act incidental to the legislative process” (Auer, at para 56), but does not take this to the logical conclusion. Secondary legislation (regulations) is subordinate legislation, which must fit the terms of the primary legislation. But regulations can be reviewed in order to determine whether they fit the scope of their enabling statute. Read literally, Auer seems to prove too much: if one simply transposes, as Auer does, the primacy of primary legislative authority to secondary legislation, one is endorsing a “hands-off” approach in judicial review altogether when it comes to executive legislation. But as we know, even if we follow Katz, secondary legislation can be reviewed to determine its fit with the governing statute, and so the analogy Auer draws to the primary legislative process is inapposite.

The point here is that secondary legislation is still executive action, amenable to review like all executive action–with the caveat that because of the legislative form of the action, it will be reviewed under Vavilov in a certain way (see point #3 below).

  1. The “Vavilov does not mention Katz” argument has been made before: see e.g. Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367, and this post from Martin Olszynski and I. We were not impressed with this argument at the time, and I remain unimpressed, for two reasons. First, the “Vavilov does not mention x” argument has lost a lot of steam after Abrametz. Again, Abrametz held that questions of procedural fairness that arise under a statutory right of appeal are reviewed under the appellate standards. These questions were not mentioned in Vavilov. Following Abrametz leaves the ABCA on shaky territory. Second, as Prof. Olszynski and I wrote, the question is not whether this or that case was mentioned. Vavilov tells us where (as with Katz) there is a question as to the appropriate standard of review, a court “should look to these reasons first in order to determine how this general framework applies to that case” (Vavilov, at para 143). The ABCA in Auer and TransAlta do not even attempt to do this. This is despite the fact that Vavilov is a “holistic” framework (Vavilov, at para 143), one that is “sweeping and comprehensive” (Portnov, at para 25). Auer and TransAlta suggest that courts use a magnifying glass to see if particular examples of executive action are mentioned within Vavilov. This is unnecessary. They simply need to follow Vavilov’s general principles, as outlined in Vavilov, at paras 143-144.
  1. The practical problems of applying Vavilov to regulations, with respect, do not exist. When Auer maintains that some of the legal and factual constraints listed in Vavilov do not apply in cases of regulation, the Court appears to misunderstand how Vavilov works. Not all of the constraints have to apply in a given case for Vavilov to be relevant. In some visa decisions, for example, statutory interpretation will not be the forefront consideration—these cases generally turn on evidence and findings of fact. With regulations, the dominant constraints will be the legal ones mentioned in Vavilov, and in many cases, deference will be expansive. This is not a surprise, though perhaps it is to the ABCA, which erroneously sees Vavilov as a more intrusive standard, always and everywhere (Auer, at para 61).

But the Court is also is too quick to discard the other constraints because it focuses on only one type of regulation-making: secondary legislation of general application. But as Portnov shows, this is not all there is. Portnov concerned the Governor in Council’s ability to “issue an order or regulation restricting or prohibiting any dealings with certain property held by designated individuals,” eighteen in total (Portnov, at paras 3,5). In such a case, the mere fact that the Governor in Council proceeded by secondary legislation does not immunize it from review on Vavilov grounds. In such a case, the statutory prequisites to the exercise of the power will be central. But because the court must also discern how the Governor in Council understood the authority granted to it under the primary statute (ie) to apply a regulation in these limited circumstances, the record must disclose the Governor in Council’s basis for its legal conclusion as applied to these individuals. In other regulatory cases, determining whether the regulation is justified by the primary law will depend on what explanations find their way into the record. This is the nature of Vavilov review, which is not always and everywhere more aggressive than Katz. Indeed, when we apply this review in cases of other “legislative” bodies including law societies and municipalities, the review looks fairly deferential, respecting the legislative posture of these bodies. While the Court calls this state of affairs “confusing,” (TransAlta, at para 49), I beg to differ: the same contextual constraints from Vavilov apply, with different force depending on the decision at issue. Regulations, if they are not primary legislation, are similarly nothing special as executive action.

I could say more—I hope to in longer form soon. But I end where I began. The ABCA’s approach will complicate the law of judicial review, not just because of its endorsement of a carveout for Governor in Council regulations. We do not know how far this could go. Are regulations made by agencies with a responsible Minister also captured by this rule? The logic should follow—and yet it would be a stretch to say that agency law-making is the same as primary law-making, especially given the deficiencies in the scrutiny of regulations process. What about rules of binding “legislative” effect created by agencies? These are unanswered questions left open by these decisions. The bottom line: when in doubt, start with Vavilov.

Paul Daly
John Mark Keyes

Why Read Cases?

Some advice for law students

Legal education in the common law world revolves around reading cases. Perhaps a little less than in the past, but still. But why? And why should students spend time on reading cases in full, instead of finding short summaries? Especially now that (unlike, say, 100 or perhaps even 50 years ago) there are great textbooks that summarise whole areas of the law, and (unlike, say, 20 or perhaps even 10 years ago) online sources, some of them quite good, that summarise individual cases, and indeed short and sometimes plain-language summaries produced by the courts themselves?

Before I explain why, I mention a fundamental fact which students at the outset of their legal careers probably don’t think much about, understandably: your legal career, if that’s the one you choose, may well extend for 40 or even 50 years, and during this time the law will change a lot. Think about what the law was like in 1972, and what it is like now. How many statutes and even cases from back then are you encountering in your classes? Some, no doubt; perhaps quite a few if your lecturers are more historically-minded. But still. For lawyers who graduated in 1972 or 1982, almost all of the law they are applying now was made after they left law school.

In a superficial sense, law school cannot prepare you for this, because we don’t have time machines and cannot really guess what the law of the future will look like. So how do the lawyers who graduated in 1972 and 1982 manage? It’s because law school doesn’t only or even mainly teach you what the law happens to be at the moment in time when you go there. Instead, it teaches you the skills you need to understand the law as it develops over the course of your career. This is why law school is not just a trade school, but part of a university: it is doesn’t just teach you how to do something, but how to think.

Reading cases is one such skill, for (at least) three categories of reasons. The first has to do with learning what the law is; the second, with expressing oneself in the law’s language; the third, with solving problems like a lawyer. All of these, it is worth noting, apply across all areas of law ― nothing in what I will say here is specific to public law.

To begin with, you need to read cases to know what the law is because many of the most important legal rules and principles are not recorded in legislation, and are only given form, however imperfect, in judicial decisions. Moreover, even legislation seldom stands by itself. You need to know how it is interpreted and applied by the courts. Of course, you can pick up a lot about the cases decided in the past from the abovementioned sources ― textbooks, online summaries, etc. Maybe, from this perspective, you could get away with not reading cases in law school, though it’s not a good idea. These sources may be wrong, or, even more likely, they may be incomplete or slanted in one way or another. You want, as much as possible, to be able to judge for yourself.

And then, what happens when you graduate, and new cases keep getting decided? Suppose the Supreme Court decides a case that bears on an ongoing issue you are helping a client with. You cannot very well tell them to wait for a few months or even years until someone else does the work for you. You need to know how to read the case for yourself and update your advice to your client accordingly. Practicing to read and understand cases in law school is how you prepare for that.

Next, you need to read cases to write and speak like a lawyer. Like any profession, law has its own jargon. It can be peculiar. To be sure, law has become less attached to some of the more archaic English or even Latin words and phrases it used to be fond of ― though of course you may still need to be comfortable with them to understand older cases. But that doesn’t mean that lawyers now speak like any other educated persons. You need to know, for example, that you can have a claim at common law, or in equity, and not in common law or at equity. Why? I’m not sure there’s a reason. It certainly doesn’t make a whole lot of sense. But you need to know these things to establish a common language with your fellow lawyers and with the judges, without which you cannot be a full member of the legal community ― or an effective representative of your clients’ interests.

Reading cases is the most obvious way in which you will acquire this peculiar language. Textbooks and summaries often abstract it away in the process of distilling the cases’ holdings to single sentences or short paragraphs. They might help a little, but they won’t be enough. I suppose you might read statutes, but I’m not sure that’ll be as effective, and I’m certain it will be boring. (You should sometimes read statutes too, to know what they are like. But you don’t need to do it as much as with cases.)

Finally, and perhaps most importantly, you need to read cases to understand how lawyers and judges solve problems. In his famous report of Prohibitions del Roy, Coke CJ claims that he told James I that the King could not decide cases himself, instead of letting his courts do it, because

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it.

While a lot in that report was made up, this idea was true in 1607, and it remains true today. The law has its own way of thinking through difficult questions, and being a smart person, which you are if you have made it to law school, isn’t enough to grasp it. In sports, you probably won’t be picked for a high-level team without some natural gifts. But you still need to train to become a great athlete, and not just someone who could have been one. It’s the same in law.

The cases are where you absorb legal reasoning. Textbooks and summaries focus on giving you the outcome, and not the step-by-step reasoning of the judges. Nor do they usually tell you which arguments the court found unpersuasive, or spend much time unpacking judicial rhetoric, which can be very useful if you are going to persuade judges: giving them ready-made arguments they can re-use will make them more likely to side with you. Lectures may go into such details from time to time, but they are too short to do it much.

Ultimately, there is no substitute for taking your own time and working your own way through judgments. Even if someone could learn all the legal rules that exist when they graduate law school without acquiring ― through long study and experience ― the skills that reading cases gives you, they would be useless to their clients within 10 years. And they’d still have 80% of their career ahead of them. You don’t want to be that person. The good news is that cases are often fun to read. They are stories, often interesting and sometimes well-told. The more you get use to reading them, the more attuned you become to the smaller details that can make them fascinating. And the sooner you start, the better you will be at it.

The Metastasis of Charter Vibes

The rigamarole around the notwithstanding clause this week has me thinking about the reach of the Charter, and in particular, a case that will be heard by the SCC early next year: A.B. v Northwest Territories. While there are other issues in the case, at its heart is a stark proposition: is it required for a government decision-maker to consider “Charter values” (or what I call “vibes”) even where it is accepted that a right is not engaged on the facts? One might think—as I do—that the answer to this question is “no.”

But others disagree, and with some precedent in support, and so the Supreme Court will soon hear this case. A.B. involves s.23 of the Charter, which provides the following:

               Language of instruction

23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

Continuity of language instruction
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant
(3) The right of citizens of Canada under sections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province;

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

As the NWTCA pointed out in the decision being appealed to the SCC, section 23, unlike some other constitutional rights, is rather precise: it delineates who is eligible to enjoy the constitutional right, and so its text inevitably “draws lines of eligibility” that will mean that there will be some “hard cases” that fall on either side of these lines [9]. This is a consequence of the finely-wrought s.23, which could have been phrased more broadly or generously, but isn’t.

As the NWTCA pointed out, this provision requires governments “to provide minority language education to those who have a right to it” [6] but “the government does have the discretion to allow the non-section 23 children to attend the minority language schools” [9]. In the NWT, at the time of the impugned decisions, this process was governed by a Ministerial Directive (and, of course, supplemented by ministerial residual discretion) , which provided that a “limited number” of non-section 23 children could be admitted [10].

Under this process, it was accepted that the A.B. family did not qualify under s.23 [10, 24]. And yet they argued that the Minister, in exercising her discretion and implementing the Directive, were required to consider the values underlying s.23 [28]. The chambers judge named some of the interests that would need to be considered by the Minister under the values-analysis:

…the needs of the linguistic minority and the need to foster the preservation and development of this community, in the exercise of her power over the admission of non-rights holders to minority language schools [28].

At the NWTCA, the majority of the Court rejected this contention. It held that this case did not implicate constitutional rights [59]. Rather, the essence of the claim was that the Minister should have considered values underpinning s.23 in considering whether the Minister properly exercised her discretion not to admit the non-rights holders. But as the Court stated, “[t]he obligations of the provinces and territories to observe and respect the Charter are collateral to the issues that were before the chambers judge” [59]. The point of the majority holding is simple: Charter values cannot be used to extend the protections of the Charter to those who otherwise are not eligible for the specific protections at issue. Rowbotham JA concurred, but would have required the Minister to consider s.23 [136].

In my view, the majority judgment cogently outlines a problem with Charter values—because of the lack of guidance on their scope and application, they can easily metastasize to expand the Charter in unexpected ways. This metastasis can occur in three ways. First, because Charter values are necessarily stated at a high level of abstraction, they can distort the interests protected by a purposive and textual interpretation of specific Charter rights (a concern raised by Rowe J in TWU). Second, a court can align a Charter value with a statutory objective, however broadly-stated, and in the face of a protected right, claim that an administrator can promote that Charter-sanctified statutory objective (as the majority pointed out in TWU, and as explained by Edward Cottrill here). This means that a state objective that otherwise may be directly contrary to an actually-protected right is given the imprimatur of constitutional benediction—that old chestnut. Third, Charter values can be used to “supplement” purported “deficiencies” or perceived lacunae in the Charter text. Because each Charter right delineates and narrows the interests that it protects, it is possible for a Charter value to come into play, even where an individual does not hold the benefit of the right.

A.B. presents this third situation. Like the other cases where Charter values are at play, there is arguably a distortion of the actually-existing Constitution. It would seem odd for there to be a duty on a Minister to consider the Charter where there is no one capable of claiming the right. This means that there is a normative constraint on the decision-maker to consider values (perhaps pale imitations of rights) that may not actually at issue in the case. Should this appear odd, it isn’t necessarily so to those who support Charter values. In Loyola, for example, the plurality seemed to draw an equality between rights and values, such that each are protections that can be claimed in any given case (see Loyola, at para 35). And as one author suggests, perhaps this means that even where a claimant does not have an official Charter right to claim “they ought to have had the protection of Charter values” (see here, at 79).

The key word here is “ought.” What s.23 ought to protect, in the view of one person, is evidently different than the value choices embedded in that provision.  I worry, specifically, about the use of Charter values to defeat the choices made in the Charter on this contentious issue. It distorts this Charter—as opposed to some other Charter of values—to ignore the specific choices made in the text, and to judicially-administer an ever-changing constitution of values, which can be raised where the actual Charter does not apply. The creation of two Charters must be avoided, and this should mean putting an end to expansive Charter values arguments that require judicial extension of existing rights.

There are a number of counter-arguments that could be advanced: some relating to administrative law precedent, and some to the specific context of s.23. It is true that the Supreme Court has referred to an administrative duty to consider Charter values. In Baker, the Court noted that “discretion must be exercised in accordance with the boundaries imposed by the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter” (Baker, at para 56). In Doré, the Court noted that administrative decisions are “always required to consider fundamental values” (Doré, at para 35). Even in the NWTCA decision, the Court claims that it is a “truism that public decision makers should always have regard to fundamental societal values, such as liberty, dignity, and equality” [57].

Putting aside that these values may already map onto existing Charter rights, or are otherwise amorphous and contested (they should not lead inexorably to some pre-determined outcome), I do not think these precedents can be marshalled in favour of the expansive proposition that Charter values are independent constraints on administrative discretion. It is obviously true that a decision-maker is required to consider Charter rights when those rights are argued. So, post-Vavilov, courts have found that when claimants do not raise Charter arguments before a decision-maker or only briefly refer to them, there is no concomitant duty on a decision-maker to engage in a Charter analysis (see e.g. Canada (Attorney General) v Robinson, 2022 FCA 59 at para 28). It’s only a small skip to the next step: of course administrators have a duty to consider the Charter, when a right is claimed, but values in the ether should not expand the scope of the Charter to situations where it “ought”  to apply.

More specifically, and for good reason, recent precedent of the SCC clamps down on these sorts of arguments: specifically City of Toronto and Quebec Inc.  While clarifying that the dominant approach to Charter interpretation is purposive in nature, the Court has finally confirmed that the text remains the starting point to all Charter interpretation. Unwritten principles and values may form a part of doctrinal construction, or construing the scope of a right—but these values must be properly-scoped, and they cannot be used to distort, undershoot, or overshoot the actual rights at hand. This is common sense in many ways, but the simple conclusions from these cases have a great deal of relevance for the continued use of Charter values.

It could also be argued that the specific context of s.23 would permit non-rights holders to act on behalf of the “entire Francophone community” [60]. In this way, the fact that the right is, in part, collective might signal that the Minister should consider s.23 “values.” I think this is wrong. To permit this would be to allow non-rights holders to “piggyback” on those who enjoy the right in question [60]. The collective aspect of a right does not require its extension in this fashion.

People who defend the Charter should be interested in ensuring its scope is limited to the sorts of interests it was meant to protect. The situation we have, these days, with the review of administrative decisions implicating constitutional rights is unsustainable. Most of it distorts orthodox constitutionalism. We have Doré , which can counsel weak review in particular cases when rights are actually advanced; and when rights are not advanced, A.B. brings forward the contention that the Charter applies nonetheless. We have a Charter of Values applying strongly where it shouldn’t, and a Charter of Rights being diluted by a deferential standard of review. This seems odd.

Standing Isn’t Free

On the importance of thinking about costs, as well as benefits, of judicial review of administrative action

NB: This post has been prompted by my teaching and is first addressed to my students in Public Law 2 at Reading, but I hope that other readers, at least those interested in administrative law, will also find it of interest.

Who can challenge an administrative decision: only the persons directly affected by it or, well, just about anyone? This is the question of standing. US law resolutely sticks to the narrow view (as will be apparent, for example, from the discussion of the prospects of the challenges to President Biden’s debt-cancellation plan on this recent episode of Advisory Opinions). But Commonwealth jurisdictions have tended to take a broader view.

As Lord Hope put it in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868, (even as he disclaimed “risk[ing] a definition of what constitutes standing in the public law context”), “the interest of the person affected by or having a reasonable concern in the matter to which the application related” is enough. [63; emphasis added] This means that “[a] personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” [63] Or, in the more colourful words of Palmer J in Smith v Attorney-General [2017] NZHC 1647: “The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists.” [2] While there are differences between the UK and New Zealand approaches, this description is apt for UK law too.

But is this very considerable relaxation of the standing requirement ― when you need to say that something “still exists”, its existence, evidently, is a matter of some doubt ― a good thing? Or does the stricter, American-style, approach has something to recommend it? It is not, after all, without precedent in English law too. In R v Environment Secretary, ex p Rose Theatre Trust [1990] 1 QB 504, Schiemann J insisted that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated”. (522) Doesn’t it, though?

The other view is exemplified in a much quoted (and sometimes implicitly referenced) statement of Sedley J in R v Somerset CC Ex p Dixon, [1998] Env LR 111 (1997):

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs —that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. (121)

The idea is that the law must see to it that public wrongs are set right, and that it matters little who commences the litigation that may lead to this beneficial result. The way I put it to students in my public law tutorials is that the people who take this view emphasise the “review” part of judicial review ― in contrast to those who stress the “judicial” part and so are wary of transforming courts into general-purpose defenders of the public interest.


But to say that an area of the law “is about wrongs” is not enough to show that it must make it possible to identify and ensure consequences for every wrong of the relevant kind that occurs. Just as the socially optimal amount of crime is not zero, so to the socially optimal amount of misuse of public power is not zero either. Some wrongs should actually go unredressed. The idea might seem counter-intuitive, but it makes good sense. The costs of a wrong, be it crime, misuse of public power, or anything else, must be set off against the costs of preventing or rectifying it. If prevention or redress consume more resources (money, time, brainpower, etc) than are lost as a result of the wrong itself, or indeed if they generate further wrongs, then they are wasteful, from the standpoint of society.

In the context of crime, this means, for example, that we wouldn’t want a police officer on every street corner. While their presence would probably deter and possibly help solve some meaningful number of crimes, it would be very costly. The cost, to be clear, is not just money, though that’s part of the story. Salaries are indeed costly, but so are the unseen opportunities lost due to all these people not doing something more productive than standing on street corners. And so, too, is the possibility that they may, if only to occupy themselves, harass or arrest people who are quite innocent.

Recognising all this does not mean that we do not care about crime and about the Rule of Law. As Lord Reed put it in AXA, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”. [170] Acknowledging the costs involved simply means being realistic about the constraints that apply when our ideals come into contact with reality.

The same sort of thinking should apply in public law. While Sedley J and other advocates of expansive standing (such as Lady Hale) do not acknowledge this, some public wrongs are not worth redressing through judicial review because of the cost of doing so. Timothy Endicott’s Administrative Law textbook does make this point. Professor Endicott writes that “the test of standing is a proportionality test. … Proportionality in this case is a relation between the value of hearing a claim for judicial review and the process cost, and any process danger that may result.” (415) I think this is basically the right idea, but it worth unpacking further.

Professor Endicott’s review of the decided cases suggests that courts do, in fact, attach some importance to “the value of hearing a claim”, in that standing is the more easily granted the more serious the claim raised in a case is. And it is not exactly a surprise that courts would pay some attention to this despite sometimes embracing the justice-at-all-costs rhetoric exemplified by Sedley J’s dictum. I have argued here that something similar happens in the realm of procedural fairness. But this is only one side of the proportionality equation.

What about “process cost” and “process danger”? Professor Endicott’s survey suggests judicial interest in this may be limited, and he too has comparatively little to say about these things. I’m not even quite sure what the distinction between “costs” and “dangers” is. Carol Harlow’s article “Public Law and Popular Justice” focuses on a particular set of such concerns, perhaps dangers rather than costs: those that have to do with courts being transformed into political institutions and/or made to address polycentric problems for which they lack institutional competence.

I think these dangers are real, but there is more, too. I discussed the costs (and the benefits) of judicial review in an old post here. I won’t rehash everything I said then, but one point that bears repetition is that

all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested … But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined … by an administrative decision-maker.

Perhaps I should have used a different word: judicial review is not so much superfluous as it is redundant, in the sense of providing an additional layer of protection to a system that could operate without it ― but at some real, and perhaps unacceptable, risk.

Be that as it may, the costs of judicial review, even those that accrue in any legal proceeding, are thus particularly significant. And some are peculiar to judicial review. Among other things, judicial review risks both unwarranted interference with the legitimate activities of government (insofar as anything the government does is legitimate) and, conversely, undue legitimation of government decisions that, while lawful and hence deserving of being upheld, are daft, immoral, or both. Ignoring these (and other) costs of judicial review does not make them go away; nor does it somehow strengthen the Rule of Law.

The other concern I have with Professor Endicott’s approach has to do with the concept of proportionality. As in human rights law, it seems to invite a comparison of things that cannot be assessed on anything like a common scale. As noted above, the costs of judicial review are not all reducible to pecuniary expenses, and its benefits are of course not pecuniary at all. How can we know that one is proportionate to the other? Professor Endicott argues that courts have not struck the right balance, allowing cases where there was no sufficient public interest in having the claims litigated to be brought forward, but with a proportionality approach, such arguments are inherently subjective.

What is more, case-by-case analysis of proportionality exacerbates what Professor Endicott laments as “[t]he irony of process”. This arises when

parties … need to be given more process than is actually due to them [because a] claimant without a sufficient interest in a matter is not entitled to be heard, but it is often necessary to hear the whole story from the claimant and the defendant in order to decide whether the claimant has a sufficient interest. (417; emphasis removed)

This, of course, only adds to the costs of judicial review: debates about standing have to be considered, on top of those of the substantive disputes.

In light of this, it is tempting to look for alternatives to proportionality in the form of clear, rigid rules. They might, of course, not be exactly right: perhaps they will allow some claims to go forward that should not, as is already the case now, Professor Endicott suggests. Or perhaps they will result in some unlawful decisions not being reviewed even though they should be. But if these rules can be applied straightforwardly and predictably, they will still be preferable to the uncertain proportionality approach, provided that they are reasonable proxies for where a case-by-case analysis would end up.


The argument for a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge, would have to be that this rule helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful in a way that is more efficient than the proportionality approach preferred by Professor Endicott or the easy-going approach now preferred by the courts. I think this is possible: the redundant nature of judicial review is particularly salient in case where the applicant’s right and obligations are not involved, and it may be that it is also in those cases that the risks of undue interference with government, and perhaps also of undue legitimation of legally sound but morally questionable decisions arise. But this is just a tentative view for now.

What I am confident about is we must not neglect the costs of judicial review, even as we study and perhaps promote its importance and advantages. The ideals we seek to realise through the law are seldom unmitigated goods, and we do them no justice by forgetting about this. In judicial review as elsewhere, in the heavens as in on Earth, TANSTAAFL.

Our Democratic Deficit

Much is made of Canada’s storied democratic heritage, and on this front, there is much to celebrate. But there is also a dark side that has, from time to time—and these days, more frequently—reared its ugly head: the spectre of a parliamentary process that does not encourage either the participation or the deliberation at the heart of most deliberative democratic accounts. The debility of our legislative process began some time ago. One could blame growing PMO control; omnibus bills, dilatory behaviour, or party whipping.  But now, more than ever, the shenanigans around Bill C-11 are an example of the democratic deficit that appears to characterize at least some aspects of Canadian law-making. One example is just one example, but it raises important questions about the process under which this Bill was adopted.

Bill C-11, on one hand, is a wonky bill giving power to the CRTC to regulate and promote “Cancon.” Given all that is happening in the world, one would be forgiven for forgetting that it is a live legislative proposal. Yet it continues to snake its way through our parliamentary process, and it is significant.

I have criticized the substance of the Bill before, suggesting that it vests the CRTC with unprecedented powers of internet regulation, without proper safeguards on the exercise of that power, especially over individual users. The Bill may permit the CRTC to apply ever-changing Cancon requirements on individual users, such that certain content that meets these standards will be prioritized over content that does not. Since the CRTC has the power to adopt these regulations, one might guess that it will be under pressure to impose ever-more protective Cancon measures that require algorithmic regulation. In this sense, it is true that the CRTC is likely attempting to solve a problem that does not exist; more precisely, it may be giving itself the power to create and solve problems that do not exist at some time in the future.

To be clear, the Bill gives the CRTC the power to regulate individual user content on the Internet—content uploaded to TikTok, Youtube, and the like. The scope of the Bill is potentially vast. The CRTC, as an administrative institution, is under intense scrutiny because of allegations of bias. At a time when valuable democratic institutions should be strengthened and renewed, the CRTC is asking for more power when its institutional credibility is questionable. 

 The substantive point is one on which people can agree or disagree. But ideally, the democratic process that accompanies a Bill of this kind should be robust. Instead, the Government’s conduct assures us that this Bill is so pressing that it justifies any number of shortcuts to cut debate, and rush through unexamined amendments.  An important amendment to clarify that any future regulations should not apply to user content was not considered as a result. This amendment would have curtailed the vast discretion conferred on the CRTC. And yet it fell by the wayside, and the Bill passed the House in June.

The Senate process is unfolding now, but it too has been rocky. “Serious charges of witness intimidation and bullying” have emerged in relation to the Senate Bill C-11 hearings. Liberal MP and Heritage Parliamentary Secretary Chris Bittle (in a letter co-signed by another Liberal MP) asked the Lobbying Commissioner to launch an investigation into Digital First Canada, an organization that was scheduled to testify before the Senate committee. The request was based on an allegation that the organization, which advocated for users, received funding from Youtube. Of course, any technical violation of lobbying rules should be taken seriously, though Digital First maintains that it has received assurances that it followed the rules. But coming from government MPs, and in absence of any other investigations about funding sources of any other witnesses, the timing and specific targeting of this organization is highly suspect. 

More importantly, the targeting of this witness sets an unfortunate precedent. Independent Officers of Parliament are designed to be separated from the government of the day, to support Parliament’s role in the constitutional order. The Officers of Parliament are sometimes called to investigate sensitive matters. But it is incumbent on a government member to conduct themselves with a bit of honour. And weaponizing an officer of Parliament to investigate a particular witness only cheapens the parliamentary process, potentially chilling criticism of the Bill’s wideranging consequences.

It’s trite to say that our legislative practice does not meet some idealized standard. C’est la vie. But where the gap is particularly striking, as here, it raises important questions about what Parliament is doing when it passes bills like C-11 under these conditions. Is it really scrutinizing the Bill and its amendments and producing reasoned debate on them? The House hearings were mostly partisan nonsense, to put it lightly.  If groups worry about being investigated if they testify, how representative is the parliamentary committee process?

At the end, I suppose I have no other point than to lament. None of this is to attack the role of Parliament. In our system, Parliament is sovereign subject to constitutional limits, and statutes adopted by Parliament are law, no matter how imperfect the hearing process. But to the extent that the government can control the hearing process, especially on a bill of this sort, it should do so in a manner that permits examination. 150 amendments, one of which could have solved the legal problem that plagues the Bill, were simply left on the table. That is deeply regrettable.

The result is that Bill C-11, with its power gift to the CRTC, will likely become law, even if the Senate process provides to be an improvement. Cultural protectionism aside, the government’s conduct in the parliamentary process has only shielded the Bill from the sort of scrutiny that might better represent the considered views of parliamentarians and those affected by the law. A law adopted under such conditions is likely to be more readily accepted by the public. In the absence of this adequate deliberation, we are left with a skeletal bill, one that will likely affect user content in service of a vaguely defined Cancon goal. Users should rightly be concerned–and so should lawyers.