The Supreme Court’s Hubris in Mikisew Cree Nation v Canada

In Mikisew Cree Nation, the Supreme Court dealt with a novel argument: does the duty to consult [DTC] attach to legislative action? The Court, rightly, answered no, holding unanimously that the Federal Court had no jurisdiction under the Federal Courts Act over a judicial review brought against Parliament’s law-making power. But the Court split into four sets of reasons on the substantive matter of whether the DTC applies to legislative action. While rejecting the challenge in this case, Karakatsanis J in the lead opinion left the door open to these sorts of challenges in the future. For the reasons I’ll explain below, I think this is a profoundly unprincipled way of reasoning about the issue—first, because it is an attempt to expand judicial power in violation of the separation of powers, and second, because it undermines the national certainty the Supreme Court is designed to provide.

The facts of the case are simple. In 2012, two omnibus bills affecting environmental protections were introduced and passed in Parliament, receiving Royal Assent. The Mikisew, with proven Aboriginal rights under Treaty 8, alleged that the Crown had the DTC them on these legislative changes to the environmental protection regime—arguing that it affected their constitutionally-protected rights. The Federal Court agreed with the Mikisew, holding that they were entitled to notice of the parts of the bills that would affect their interest, as well as an opportunity to make submissions. The Federal Court of Appeal reversed, concluding that the Federal Court had no jurisdiction over the matter.

The first opinion in the Supreme Court was written by Karakatsanis J. On the issue of jurisdiction, Karakatsanis J held that the Federal Courts Act only contemplates judicial review of Crown actors (defined as Her Majesty in right of Canada in s.2(1) of the Federal Courts Act) or federal boards, commissions, or other tribunals. On the first count, Karakatsanis J concluded that Her Majesty in right of Canada refers only to Crown actors in their executive, rather than legislative, capacity [15-16]. As well, the Crown is not a “board, commission, or other tribunal” as defined in ss. 2(1) and 2(2) of the Federal Courts Act.

This is enough to dispose of the case. But Karakatsanis J went on to address the merits, concluding that the DTC, which applies to “Crown conduct,” can only apply to executive action—not the actions of Ministers introducing legislation (acting in their legislative capacity). While Karakatsanis J acknowledged the “overlap” between executive and legislative functions in Westminster systems, here what was challenged was a direct exercise of legislative power under the Part IV of the Constitution Act, 1867 [33]. This challenge, to her mind, implicated the separation of powers, parliamentary sovereignty, and parliamentary privilege [35-37]. But Karakatsanis J did not close the door to the challengers completely. She first noted that “the Crown’s honour may well require judicial intervention where legislative may adversely affect—but does not necessarily infringe—Aboriginal or treaty rights” [3]. She then concluded her reasons by saying that “other protections may well be recognized in future cases” [52].

Abella J, concurring on the jurisdiction point, nonetheless wrote separately to say that the Court’s aboriginal law jurisprudence, specifically pertaining to the honour of the Crown, compelled a result that the DTC applied to Parliament. To her mind there was no “doctrinal or conceptual justification which would preclude a [DTC] in the legislative context” [81]. The “formal label applied to the type of action that the government takes…”, to Abella J, has no impact on the sanctity of rights protected in s.35 of the Constitution Act, 1982—whether that action is legislative or executive. Abella J would introduce a requirement that legislatures consider whether their chosen legislative process affecting Aboriginal rights “…accords with the special relationship between the Crown and Indigenous peoples of Canada” [93].

Brown J also wrote separately, while concurring on the jurisdictional point, to attack Karakatsanis J’s mixed message on the DTC in a legislative context. To him, Karakatsanis J’s reluctance to close the door completely on the issue would “throw this area of the law into significant uncertainty” [104]. To Brown J, “…the entire law-making process—from initial policy development to and including royal assent—is an exercise of legislative power which is immune from judicial interference” [117]. This is because, while the separation of powers in Canada is not rigid, this does not mean that the roles of the legislative and executive branches are “indistinguishable for the purposes of judicial review” [119]. The history of parliamentary sovereignty—for example, the hard-fought adoption of the Bill of Rights of 1688—compelled the conclusion that “…parliamentary and judicial functions have been clearly separated from Crown control” [128]. And so, Karakatsanis J’s opinion was “searching for a problem to solve (while at the same time declining to solve it)” [135]. This situation would invite courts to, potentially in the future, take a greater supervisory role over the legislative process in a way that is at odds with the separation of powers [135, 142].

Finally, Rowe J also wrote separately, outlining mainly the practical problems with an approach invited by Karakatsanis J. Specifically, what types of legislation would trigger the DTC? Who would need to be consulted? And at what stage in the legislative process would consultation take place? [165].

***

There is much in this decision worth noting, but I want to focus on Karakatsanis J’s problematic reasons and their implications for the separation of powers and the Supreme Court’s general method of deciding cases.

Each of the opinions decided the case on the question of jurisdiction. That is, the Federal Court had no judicial review jurisdiction over the decision of a legislature—not a Crown actor per se nor a federal “board, commission, or other tribunal.” This should have decisive, and Karakatsanis J should have gone only so far as to explain that finding—particularly for the purposes, for example, of preventing forum-shopping whereby a new claimant could bring relief against the Crown in a provincial superior court and make the same arguments (s.17 of the Federal Courts Act contemplates a system of concurrency where claims can be brought against the Crown in provincial or federal court so long as statute does not say otherwise). Obviously, the jurisdictional finding in this case dovetails with a finding that legislation is not “Crown conduct.”

In consideration of this, Karakatsanis J should have ended her comments at the finding that the court had no jurisdiction because the enactment of legislation is not “Crown conduct.” For her to go further and leave the door open to future legislative challenges based on the honour of the Crown–which also undergirds the DTC– is severely flawed for two reasons: (1) it is not prescribed by the structure of the Constitution, nor would it be a good policy idea and (2) it introduces uncertainty.

Brown J is right to point out the contradictory nature of Karakatsanis J’s opinion. On one hand, she writes that parliamentary sovereignty, the separation of powers, and parliamentary privilege preclude the challengers’ preferred outcome. This is all correct for the reasons outlined by Brown J and Rowe J. But then, in service to unknown goals, she decides that these principles can be violated just a bit—that in a future case, they could be compromised to permit the sort of challenges sought by the claimants here where rights are adversely affected by “the Crown” in enacting legislation even when the legislation itself is constitutional (see Karakatsanis J’s reasons at paras 3, 25, 44 and 52). This means, to Karakatsanis J, that the separation of powers/parliamentary sovereignty are negotiable in a manner uncontemplated by the Constitution. Her guiding light seems to be the hobby-horse of changing circumstances; some future time when the separation of powers and parliamentary sovereignty will give way to allow these sorts of challenges.

Query why these principles preclude challenges based on a failure to abide by the DTC now, while in the future, they could allow challenges based on an “adverse effect” on Aboriginal rights. The same principles apply. Under the current doctrine, in order for a DTC violation to occur, asserted Aboriginal rights must be “adversely affected” (Rio Tinto, at para 31).  But Karakatsanis J now purports to say that a DTC violation and adverse effect are two different things–and that the principles of parliamentary sovereignty and the separation of powers could allow an independent claim based on the latter in the future. The honour of the Crown is not a free-standing right to challenge legislation, and most importantly, no matter the legal label, the Crown does not enact legislation. 

Notwithstanding this unprincipled distinction drawn by Karakatsanis J regarding the DTC, it is completely unclear why the constitutional principles relied on by Karakatsanis J would operate to, in the future, allow an “adverse effect” challenge based on the amorphous “honour of the Crown.” While the separation of powers and parliamentary sovereignty are principles that are necessarily variable in our constitutional monarchy, that variation is included in the structure, not as a product of the times. For example, Karakatsanis J herself notes that the Cabinet and the legislature operate in some ways as a piece—this is a basic feature of Westminster government. But as Brown J noted, the separation of powers does not expand and contract to permit something tomorrow that isn’t allowed today; in this case, a constitutional challenge that is fundamentally unknown to the legal system. Karakatsanis J frames the requirements of the separation of powers and legislative sovereignty in language that calls to mind a standard (see Brown J’s reasons at para 103). But these principles are rules that bind the actors in the constitutional system. They are only open to negotiation to the extent the Constitution prescribes that negotiation.

The target for Karakatsanis J—and more honestly, Abella J—seems to be the sphere of authority granted by the Constitution Act, 1867 to the legislature. Karakatsanis J seems to want to, slowly but surely, increase judicial oversight over that sphere and erode what the Constitution expressly contemplates. This is wrong simply because it is not prescribed by any constitutional text or principle. While the honour of the Crown is a constitutional principle, it is unclear why that principle is ill-served as applied to legislation by the existing Sparrow justification framework. In other words, why does the honour of the Crown compel the requirement of some new cause of action in violation of the very same principles relied on by Karakatsanis J?

The beneficiary of such a duty would not be Aboriginal peoples, but the judiciary. Its existence would expand judicial power beyond deciding cases towards ongoing supervision of the legislative process. This seems to be a legal fact wholly lost on the Supreme Court. It seeks to enlarge its power and process beyond its constating statue (the Supreme Court is simply a statutory court, no matter the pains it takes to say otherwise) and beyond the constitutional division and separation of powers. Judicial oversight of legislative acts could create distorted inefficiencies in our system of government that achieve no ends—in this case, I have doubts it would achieve the ends of reconciliation sought by the Court.

For some, this would be enough to counsel against the idea. But Karakatsanis J and Abella J seem to believe that this is required as a matter of policy. It seems, to them, that courts are able to vindicate the rights of Aboriginal peoples by monitoring the legislative process, and in fact, should in order to promote “reconciliation.” Even on this count, they fail. First, reconciliation would be an admirable goal if anyone, especially the Supreme Court, could adequately define what it means. But at any rate, the Supreme Court itself has recognized that its august halls are not suited to the promotion of Aboriginal rights (Clyde River, at para 24—an opinion jointly penned by Karakatsanis J). And this seems just logical. Why are nine patrician judges any better able to define reconciliation? Why should Aboriginal peoples have to spend years and thousands of dollars trying to define to these same nine judges what reconciliation is? This would be enough to question the wisdom of an approach advocated by Karakatsanis J and Abella J, but of course, there are also the practical concerns raised by Rowe J.

A final broader point about the Supreme Court’s method of deciding cases. Part of the reason for the Supreme Court’s existence is its ability to settle law. In fact, the Supreme Court was founded under s.101 of the Constitution Act, 1867 “for the better Administration of the Laws of Canada.” It does nothing of the kind when it leaves open the door just a crack to an argument that it otherwise rebuffed. This seems to be a repeat habit for the Court. In Gosselin, the Court did the same thing regarding positive rights under s.7 of the Charter. In Wilson, Justice Abella wrote separately to argue for a new standard of review framework in absence of arguments on that front, and despite acknowledging that a future case would have to deal with the issue. And for now, the separation of powers and legislative sovereignty preclude DTC-like legislative challenges—but not forever.

This method of deciding cases wholly undermines certainty. As Brown J notes, it invites enterprising litigants and judges to argue that this case—their case—is the one that was contemplated by the Court or a judge of the Court in Gosselin, or Wilson, or Mikisew. Courts should decide cases. If they seek to depart from precedent in the future, they should be able to do, according to generally recognized and principled criteria. But the Court shouldn’t write its own precedents with the express understanding that they will be overturned.

In a way, all of this expresses the Supreme Court’s hubris. It’s hard to believe that the Court would want to download onto the lower courts a general duty to supervise legislative action, especially when it would be structurally incompatible with the Constitution, practically difficult, and likely unsuccessful as a way to vindicate Aboriginal rights. What we should seek to avoid is a jurocracy, as Herbert Weschler once put it. But, with the door open to a some sort of DTC in the legislative context, we are well on our way.

Dealing with Delegation

Thoughts on a proposal for a judicial crackdown on the delegation of law-making powers to the executive

The explosive growth of legislation made by various government departments, boards, and other entities ― rather than enacted by Parliament, as legislation ought to be on the orthodox understanding of separation of powers ― is quite likely the most understudied aspect of contemporary constitutions, in Canada and elsewhere. In “Reassessing the Constitutional Foundation of Delegated Legislation in Canada“, an article that will be published in the Dalhousie Law Journal and is now available on SSRN, Lorne Neudorf sets out to shed light on and proposes means of reining in delegated legislation ― that is, rules made by the executive branch of government pursuant to a legislative authorization, often a very vague one. It is a worthwhile endeavour from which we have much to learn, even though Professor Neudorf’s arguments, and some of his recommendations, strike me as just as problematic, in their own way, as the phenomenon he criticizes.

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This phenomenon’s importance is out of all proportion to the attention it receives. Professor Neudorf notes that “[b]y volume, delegated legislation is made at a rate of nearly 5-to-1 as compared to primary legislation”. (3) Yet the text of the constitution seems to say nothing at all about the executive being able to make law. On the contrary, the Constitution Act, 1867, endows Parliament and provincial legislatures with “exclusive” law-making powers. Still, the courts have recognized that the legislative bodies are able to mandate the executive to make rules having the force of law, and indeed even rules that override the provisions of laws enacted by legislatures. This, Professor Neudorf argues, is a mistake that needs to be reversed.

Professor Neudorf traces the mistake to a misguided introduction into Canadian constitutional law of orthodox, Diceyan, notions of Parliamentary sovereignty. The notion that “Parliament can make or unmake any law whatever” has always been out of place in a federation, where the Dominion Parliament and provincial legislatures were always subject to limits on their powers. In any event, the enactment of “[t]he Charter” in 1982 “cemented the location of Canadian sovereignty in the Constitution as opposed
to a single lawmaking institution”. (9) Judicial decisions emphasizing the plenitude of legislative powers (subject to the constraints imposed by the Constitution Act, 1867)

should be understood as less about transplanting a robust vision of parliamentary sovereignty into Canada and more about the courts prodding along and encouraging the development of new country with a distinct identity. (9)

Yet the leading precedents on the scope of Canadian legislatures’ ability to delegate its legislative powers to the executive, notably In Re Gray, (1918) 57 SCR 150, recognize no obvious limits on delegation. In Gray, Chief Justice Fitzpatrick held that, since no limitation on delegation was expressed in the Constitution Act, 1867, “within reasonable limits at any rate [Parliament] can delegate its powers to the executive government” (157) ― provided that it be able to terminate and resume the powers it temporarily cedes. Professor Neudorf argues that sweeping delegation of the kind at issue in Gray “might not be viewed as reasonable outside the context of an exceptional national security threat”, (16) but the subsequent cases did not elaborate on the constraints that this reasonableness requirement might impose.

Professor Neudorf insists that Gray rests on a “narrow and technical interpretation of the
Constitution”, an “outmoded interpretive approach”, (18) long superseded by “living tree” constitutional interpretation. Applying this approach, the courts ought to

engage with how the Constitution sees Parliament: as a key part of the basic constitutional architecture: possessing democratic, representative and accountable qualities, and the key player in bringing together different constituencies to formulate national policy and resolve pressing questions facing the country as a whole. (23)

Delegation imperils Parliament’s position, envisioned by John A. Macdonald, as the constitutional cornerstone. It hands law-making over to persons and bodies that are not representative and often operate behind the thick veil of cabinet secrecy. Delegation also undermines the Rule of Law (which provides additional reasons to favour transparent lawmaking) and the separation of powers.

Therefore, Professor Neudorf proposes a number of ways of curtailing the use of delegation. To begin with,

courts should adopt a stricter interpretation of statutory provisions that delegate lawmaking power and strengthen the rigour of the vires review of regulations to overcome the current weaknesses that allow for the delegation of broad powers
through generic words and exceptionally wide latitude for the exercise of delegated power. (30)

If Parliament wants to delegate broad legislative powers, courts ought to make it say so very clearly ― especially if these powers are meant to be exercised retroactively, punitively, or in a manner that is at odds with the Charter. Courts should also drop their deference to the executive’s interpretation of its authority to enact delegated legislation. Nothing less than constitutional principle compels this change of approach, which “will better safeguard Parliament’s constitutional role and give effect to the principle of legality and the rule of law”. (32) But sometimes, the courts should go further still:

when generic words are used in enabling legislation, which are incapable of intelligent qualification by the text, context or purpose of the statute, the court should hold the grant of authority invalid on the basis that it is impermissibly vague. (33)

Indeed, the grant of authority ought to be “narrower than the general purposes of the legislation, with some specificity for the kinds of regulations contemplated”. (33)

Professor Neudorf’s other set of proposals concerns the process by which regulations are reviewed in Parliament. He calls on Parliament to take its inspiration from the review systems that exist in the United Kingdom (which Professor Neudorf describes in some detail), and look into both the delegation provisions of bills as they are enacted, and the already existing regulations that may be flawed or ineffective. But here too, Professor Neudorf envisions a role for the judiciary:

If needed, a court may issue a declaration of the constitutional obligation as the impetus for Parliament to take the necessary action. In an extreme case where the scrutiny system is totally ineffective, the court may seek to enforce this constitutional obligation by holding inadequately scrutinized regulations as legally ineffective. (40)

Professor Neudorf concludes that, while the delegation of some legislative powers is desirable and necessary, and particular bodies (such as the legislatures of territories) can be quite different from the ordinary executive delegates, reform ― and judicial intervention to implement it ― is constitutionally justified and necessary.

* * *

I have mixed feelings about Professor Neudorf’s article. It addresses a real problem that deserves much more attention than it usually receives. I agree to a large extent both with the values underlying Professor Neudorf argument (notably, the empowerment of legislative institutions and the limitation of the power of the unaccountable executive) and with his specific proposals, as I shall explain. But, as noted at the outset, I think that the way in which Professor Neudorf makes his case, and indeed some aspects of his proposals, which follow from his approach to constitutional law, are deeply problematic.

Let me begin with the bad, to finish on a more positive note. Professor Neudorf’s general approach is an excellent illustration of what I recently described as “constitutionalism from the cave“:

On this view, the Canadian constitution … is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts; it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution.

Professor Neudorf refuses to attach any real consequence to the constitutional text’s apparent silence on the question of delegation; on the contrary, he chides the Gray court for having done so, declaring this an “outmoded” way of doing constitutional law. Professor Neudorf argues that, regardless of what the text says or doesn’t say, the courts should implement the ideal conception of Parliament and of its place in a democratically accountable system of government. As I explained, this amounts to a license for the courts to re-write the constitution, in defiance of its own provisions, which quite clearly do not contemplate its amendment by the judiciary.

The fact that I am sympathetic to the policy objectives that this re-writing would be designed to achieve is irrelevant; it’s illegitimate all the same. Professor Neudorf’s appeal to the so-called “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), to prove otherwise ― to show that good courts re-write constitutions to suit their policy preferences ― fails resoundingly. He faults the Supreme Court in that case for having been “disinterested [sic] in the question of the desirability of women Senators” (18) and believing that “giving meaning to the Constitution was a simple and neutral exercise in statutory interpretation”. (19) Yet Lord Sankey, whose opinion for the Judicial Committee of the Privy Council Professor Neudorf extols, similarly insisted the case did not involve “any question as to the rights of women”. (DLR 107) Lord Sankey’s opinion, as, for example, I have argued here, is a master class in statutory interpretation techniques ― not a policy judgment about the desirability of women Senators. And Professor Neudorf’s invocation of the wishes of John A. Macdonald ― odd in an article otherwise extolling living constitutionalism, but of a piece with the strategic (mis)use of original intent originalism by Canadian legal academics that co-blogger Mark Mancini described here ― is no more convincing. Macdonald was interested in the federal division of powers, not the question of delegation.

In short, I don’t think that Professor Neudorf succeeds in justifying the role he sees for the judiciary in implementing his more far-reaching proposals. A more robust judicial review of the vires of delegated legislation, including by the application of the principle of legality (which prevents the executive from trespassing on constitutional and common law rights with clear authorization by the legislature) only requires the courts to abandon their absurdly deferential, pro-regulatory posture. But it is much more difficult to make the case for the courts’ power to nullify vague delegations. (I don’t know whether this is impossible, but that’s a discussion for another time.) Professor Neudorf appeals to the doctrine developed under the Charter for determining whether a limitation of a constitutional right is “prescribed by law”. This is not satisfactory, because the courts have tended to treat even vague laws as sufficiently clear, and even more so because the Charter‘s requirements simply do not apply unless one of the rights it protects is at stake. And as for the idea that courts can order Parliament how to structure its review of regulations ― suffice it to say that it creates much greater separation of powers problems than it is likely to solve, and undermines the very autonomy and authority of Parliament as a democratic decision-making body that Professor Neudorf seeks to restore.

Behind the embrace of constitutionalism from the cave is a belief, which I think is not only misguided but also counterproductive, that supreme constitutional law must have an answer to any and all constitutional concerns. Professor Neudorf is quite right to characterize the rise of delegated legislation as a constitutional issue. But it simply does not follow that it is an issue that the courts must be able to fully address. As the experience of polities such as the United Kingdom (which Professor Neudorf cites as a model!) and New Zealand reminds us, it is possible to think intelligently about the constitution that is not supreme law at all. Indeed, these polities often pay much closer attention to the governance aspects of their constitutions than does Canada. Instead of calling on the courts to twist and stretch our supreme constitutional law, undermining their own commitment to the Rule of Law and indeed their credibility as impartial constitutional arbiters in the process, we should emulate these polities’ commitment to getting the constitution right as a matter of ordinary law and political process.

Professor Neudorf’s recommendations will, mostly, be very helpful in this regard. Greater judicial vigilance in reviewing the legality of the executive’s exercise of its delegated legislative powers is essential ― and it need not rest on dubious appeals to living tree interpretation. The principle of the Rule of Law, as developed by Canadian courts at least as far back as in Roncarelli v Duplessis, [1959] SCR 121, means that the executive’s authority, even if delegated by the legislature in ostensibly, indeed ostentatiously, broad terms, cannot be unlimited, and that the courts are not only authorized, but required to ensure that the executive doesn’t overstep the bounds of this delegation. Professor Neudorf is right to be concerned that Canadian courts are in serious danger of abdicating this responsibility. Recent decisions which he does not mention, notably West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, provide further demonstration of this point, as I argued here and here. The Supreme Court appears to see no issue what it described in West Fraser as “broad and unrestricted delegation of power”. This needs to change.

Professor Neudorf is also right to call for the development of Parliamentary procedures for the review of regulations. I wonder if the smaller number of parliamentarians in Canada in comparison with the UK might be an obstacle to copying the British system of three Select Committees devoted to the study of subordinate legislation (and the problem would, of course, be even more pressing in much smaller and unicameral provincial legislatures), but even if the UK system cannot be perfectly emulated in Canada, it seems to offer a source of inspiration if not a model for imitation.

* * *

To repeat, it is a mistake to think that judicially enforceable supreme  law must have a solution to every constitutional problem. Yet the problem Professor Neudorf identifies is real. Precisely because supreme law may be unable to help us, it is important to get ordinary law and legislative process right. Judicial review and parliamentary procedure might be less glamorous than what Canadians usually think of as constitutional law. Yet Professor Neudorf’s article should be taken as a reminder that these are properly constitutional preoccupations, and that Canadian constitutional lawyers ought to devote more of their energies to them than to the development of exotic theories about what the ideal Canadian constitution would look like.

Twitter Blocking, Freedom of Expression, and Public Forums

Canadian legal twitter and podcasting celebrity Emilie Taman, along with a few other plaintiffs, have started a constitutional challenge in which they allege that Ottawa Mayor Jim Watson has violated their freedom of expression by ‘blocking’ them on his twitter account. As described by the Ottawa Citizen’s David Reevely:

When Mayor Jim Watson blocks people on Twitter he’s violating their constitutional rights, a trio of Ottawa activists says, and they’re going to court to try to make him stop.

The case is the first of its kind in Canada, says human-rights lawyer Paul Champ, who’s representing them…

[The Plaintiffs] all say Watson has cut them off from his Twitter feed after they’ve annoyed him. Which is not OK, they argue, because the mayor is a public official who uses his Twitter account for public purposes, to communicate public information and explain things he’s doing as Ottawa’s top civic politician.

The claim has raised some eyebrows. In particular, political scientist and constitutional expert Professor Emmett Macfarlane commented on twitter that “(i)f this [challenge] succeeds then rights don’t have any meaning anymore”.  Those are strong words, against which I want to push back a bit in this post.

I have not yet read the Plaintiffs’ statement of claim. But as I see it, the key to the argument is to view a public official’s twitter account, to the extent that it is regularly used as the account of a public official for public purposes, as a sort of “public forum”, from which individuals cannot be unreasonably or arbitrarily excluded.  It is something like this argument that was successful in the similar suit against Donald Trump, and it is the one I want to address here.

The idea of a public forum is a staple of US First Amendment jurisprudence. It recognizes that there are certain forums for expressive activity where it would be fundamentally contrary to a free society to permit the exclusion of individuals on the basis of the viewpoints they express. The basic idea was famously expressed by Professor Kalven in these terms:

[I]n an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom.

Cited in Committee for the Commonwealth of Canada v. Canada, [1991] 1 SCR 139.

Different categories have since been created – traditional public forums (e.g. public parks, sidewalks, etc.), designated or limited public forums (e.g. university spaces or auditoriums used for public purposes), and non-public forums. In the US constitutional law context, these designations result in different degrees of scrutiny in terms of justifying a restriction on access, with access to traditional public forums attracting the highest level of scrutiny, and non-public forums attracting the least.

While the “public forum” analysis as such is a unique feature of US constitutional law, Canadian courts have grappled with similar issues, and reached similar conclusions. A few cases come to mind. In Committee for the Commonwealth of Canada v. Canada, certain individuals were prohibited from soliciting and leafleting in an airport that was government owned and controlled. There were six (!) sets of reasons, so I will not dare hazard a summary of the ratio of the decision. But suffice it to say that the Court held in favour of the leafletters, on the basis that the location was and should be available for expressive activities.

Perhaps more on point, in Greater Vancouver, the Supreme Court held that a public bus service that provided advertising space could not prevent individuals from advertising on the bus without a compelling section 1 justification. According to the Court:

The very fact that the general public has access to the advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government‑owned space. Moreover, an important aspect of a bus is that it is by nature a public, not a private, space. Unlike the activities which occur in certain government buildings or offices, those which occur on a public bus do not require privacy and limited access… Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings. Thus, rather than undermining the purposes of s. 2(b), expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self‑fulfillment.

Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 43.

Canadian cases have extended this type of conclusion to other public forums, such as sidewalks and parks: see generally the cases cited in Bracken v. Niagara Parks Police, 2018 ONCA 261 at para 39-44. As Mr. Justice Miller put the point in Bracken, at para 49, in relation to a protestor in a public marketplace:

… Grandview Plaza is a place where people congregate and must expect to interact with others. That is precisely what made it an attractive destination for Mr. Bracken. Nothing that happens there requires quiet or an absence of distraction. Indeed, neither quiet nor the absence of distraction is even possible there. As in Greater Vancouver,

[u]nlike the activities which occur in certain government buildings or offices, those which occur [in the Parks] do not require privacy and limited access … Like a city street, [the Parks are] a public place where individuals can openly interact with each other and their surroundings (Greater Vancouver, at para. 43, emphasis added).

The point of these cases is not that one has a “right” to advertise on buses or to access any other particular “platform” for expression, as standalone proposition. The point is rather that if the Government creates expressive opportunities ostensibly open to all, it cannot unreasonably or arbitrarily prevent individuals from using those opportunities.  In my view, we should be particularly concerned when they do so to suppress certain messages they find distasteful generally, or critical of the public official or government entity specifically.

Is a public official’s twitter account properly considered a public forum of some sort, such that some degree of constitutional scrutiny should apply where individuals are excluded from participating in that forum? I think there are good reasons to say it should be.

First, blocking an individual from seeing and responding to tweets in the twitter thread created by the public official deprives that individual of their freedom to express themselves in a particularly important way, in a particularly effective forum, and moreover, in a forum explicitly designed for those types of communications. The critical importance of unfettered speech on issues of public interest, and speech critical of public officials and government in particular, is too widely accepted to warrant a citation, but here’s one anyway:

“The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule.  The liberty to criticize and express dissentient views has long been thought to be a safeguard against state tyranny and corruption.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 SCR 480 at para 18.

Second, and relatedly, blocking dissenters prevents many other twitter users from seeing the critical or other commentary of the speaker in this uniquely effective forum, and engaging with that commentary in turn. As the Court has recognized, freedom of expression protects “listeners as well as speakers”, and we should be wary of state action that interferes with either (see e.g. Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 766-67; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at 1339-40).

In my view, curating a twitter feed to effectively block dissenting or critical voices, in an open and public venue perfectly compatible with such reactions and commentary, undermines both of these important constitutional values.

It is in my view not an adequate response to say that the blockee could create a new twitter account, and therefore could still read the tweets of the blocker. While this is true, it is not responsive to the unique constitutional harm engaged. To me, the harm is not that the individual cannot read the statements or commentary of the public figure, but rather that they cannot express themselves and participate in an especially critical forum created by that public official, i.e., the very twitter feed in which the public announcement or statement is made. The inconvenient workaround of creating a separate twitter account to view the statements does not solve the problem of the arbitrary exclusion from the public forum designed for expression and debate, and the uniquely important expressive opportunities that the public official has created.

All of which is to say that I think there is a strong argument, grounded in existing constitutional law and in the fundamental purposes of freedom of expression, for considering a publicly available twitter account used for public purposes by a public official to be the type of forum in which restrictions on access may deserve constitutional scrutiny. The more twitter and other social media accounts become the predominant method for communications with and interactions between elected officials and their constituents, increasingly in preference to stump speeches and news conferences of previous generations, the stronger this argument becomes.

Although other analogies to a public official’s twitter feed have been floated, the most persuasive from my perspective would be the making of a government announcement on a public street or a public park, or in a government owned or rented building or auditorium made open to members of the public generally.

In those circumstances, I think we would consider it a rather intolerable intrusion on freedom of expression and assembly if the public official, at a function ostensibly available to all members of the public, sent around police officers or security guards to evict those do not seem to support the public official or their message. This would not only trammel upon the freedom of expression of the excluded dissenters, but would deprive listeners and viewers of being exposed to contrary viewpoints. Perhaps as concerning, from my perspective, the process of regularly blocking dissenters while permitting supporters to access the forum creates the false impression of unanimous support for the public official’s statement in the forum in which that statement is made. This is of course a common tactic in certain regimes, but not one normally seen in free and democratic societies.

Yes, in such situations – as in the context of a twitter blocking – the individuals excluded from the public venue can express themselves elsewhere. You can go down to another public area or find a private one, where no one is actually located to hear your message (a free speech zone, perhaps?). But in my view, that does not eliminate the constitutional issue. The key feature and logic of public forums is that they create a particularly effective venue for expressive activities, both in terms of a larger audience generally, and in terms of reaching an audience who have an interest in the public official or the content of their speech. Saying that an individual is free to express themselves in this uniquely effective forum if they support the public official, and in other far less effective forums if they do not, does not seem to address that concern.

And contrary to Professor Macfarlane’s view, I think there is a principled basis to say that ‘muting’ does not raise the same constitutional issues. That is because muting does not prevent individuals from accessing and participating in this modern public forum, nor does it prevent anyone else from benefiting from their commentary in that same forum. The point is not that you have a right to be listened to by public officials or anyone else, but rather that you cannot be unreasonably excluded from public forums made available for that purpose. Thus, muting strike me as the rough equivalent of a public official who decides to give a speech or hold a public event that permits dissenting voices, but then averting their eyes from critical signs or ignoring contrary speech within earshot. That is ok.

Public officials can of course avoid this issue entirely, by not creating the public or quasi-public forum in the first place. They can create a ‘private’ or ‘protected’ twitter account, for instance, in which they screen and only accept followers and commenters who support their viewpoint, and curate that list as aggressively as they like. This would be like holding an exclusive private event or conference limited to party members, in which property rights are used to exclude those from the conversation that the public official does not want interact with or hear from. In other words, it would not be a “public” and open forum at all, but a “private” and exclusive one.

However, having chosen to create or utilize a public forum to reach and engage with the widest possible audience, and at least ostensibly making it open to all to hear the views of the politician and express views in return, it strikes me as constitutionally problematic for a public official to require that forum, which they exclusively control, to be used only to praise and cheer the public official, and not to criticize or question her or him.

Finally, I would add that it does not strike me as problematic to block twitter users whose commentary can be properly characterized as threatening, abusive, harassing, or unduly disruptive, just as such individuals could be excluded from a more traditional or designated public forum for those reasons. But that would be a reasonable justification for a restriction on speech, not a justification for taking it outside of the constitutional arena altogether.

There are of course many potential wrinkles here. It may be difficult to determine whether a public official has created and used a twitter account for public or private purposes, and what to do if it is a little of both. There are also practical obstacles that the claimants may need to traverse, such as a Court’s fear that giving effect to the constitutional arguments in this context will create a flood of twitter litigation. A court might even reject the premise altogether, and treat a public official’s twitter feed as less the “online equivalent of government property”, as Andrea Gonsalves and Justin Safayeni have described it, and more the online equivalent of an personal diary, over which the official has and should have absolute discretion.  As with any novel case, I’m sure there are plenty of other issues that will need to be hashed out, and at the end of the day, Professor Macfarlane’s doubts may be vindicated. But the claim strikes me as being perfectly viable from a constitutional law perspective, even if it is not ultimately successful.

I will conclude with this.  For all its incurable faults, the great promise of social media is that it can open up new and uniquely democratic forums for public engagement, including public dissent and criticism. Unlike public speeches that are only available to those living nearby, or news releases and no-questions press conferences that are decidedly unidirectional, twitter creates a forum for constant engagement, debate, interaction and feedback. It provides citizens – particularly those with relatively little political, economic or social power – a meaningful opportunity to have their views broadcast and heard, in nearly equal measure to the public figures they support or denounce. In my view, excluding people from that conversation on the basis of their political opinions or substantive viewpoints, in a modern forum designed deliberately for the purpose of fostering that type of dialogue, is worth scrutinizing through a constitutional lens.

Oliphant on the Constitutionality of Twitter Blocking

Announcing an upcoming guest-post

My friend, co-author, and occasional guest here Benjamin Oliphant will be back soon to give us his perspective on a constitutional challenge to Ottawa Mayor Jim Watson’s blocking of citizens on Twitter. This is a novel case in Canada ― though American citizens have succeeded, for now at least, in a similar one involving Donald Trump’s Twitter feed ― and I am very much looking forward to Mr. Oliphant’s thoughts on it.

 

Vavilov: Doing the Administrative State’s Dirty Work

Over the next few weeks, I will be taking some time in this space to summarize the submissions in the upcoming Dunsmuir review: the cases of Vavilov and Bell/NFL. Today I will focus on Vavilov, and the proposals offered by both the Appellant (the Government of Canada) and the Respondent (Vavilov) for the standard of review of administrative action. As I’ll explain, on balance, the Respondent’s formulation is most consistent with the fundamental function of judicial review.

I should note at the outset that I am the Vice-President of the Advocates for the Rule of Law group, which is intervening at the Court in the Vavilov and Bell/NFL appeals. My comments below should be read as only my view on the merits of the parties’ submissions.

Facts

In many ways, Vavilov is a perfect case to test the merits of Dunsmuir. It is a case of pure legislative interpretation. Under the Citizenship Act, persons generally born on Canadian soil receive Canadian citizenship (under the principle of jus soli embedded in s.3(1)(a) of the Citizenship Act). There are, however, exceptions contained in s.3(2)(a), (b), and (c) of the Citizenship Act:

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

The Vavilov case turns on s.3(2). Vavilov was born in Canada to Russian parents who were spies for the Russian government. The parents lived in Canada under assumed identities. But for Vavilov, he was always Canadian. He did not have any suspicion that his parents were covert agents.

In 2010, while living in the US with his family, the FBI arrested his parents. This was the first time that Vavilov was made aware of his parents’ identities. Subsequently, the Registrar of Citizenship cancelled Vavilov’s citizenship, on the conclusion that s.3(2) of the Citizenship Act applies. To the Registrar, since Vavilov’s parents were not citizens or lawfully admitted to Canada, and because they were “employees of a foreign government” under s.3(2)(a), Vavilov was not entitled to citizenship.

The Federal Court of Appeal disagreed with the Registrar’s conclusion. On the standard of review, the Court noted that this is a case where the margin of appreciation was exceedingly narrow for the Registrar, for three reasons: (1) the interests of the individual affected were elevated in this case; (2) the Supreme Court had conducted searching review of immigration matters in its recent cases and; (3) the reasons were inadequate.

On the merits, the Court concluded that the words “…employee in Canada of a foreign government” must be read ejusdem generis with the words preceding it. According to the Court, the common theme underpinning the s.3(2)(a) category was the concept of diplomatic privileges and immunities. Section 3(2)(a) was designed to apply only “to those employees who benefit from diplomatic privileges and immunities” [45]. This conclusion was supported by the context of the provision. Sections 3(2) (c), for example, referred to privileges and immunities granted to persons referred to in s.3(2)(a), indicating a legislative intention that persons in s.3(2)(a) are only those with privileges and immunities. International law also supported this conclusion—the Citizenship Act “borrows many of the same phrases that the Vienna Convention on Diplomatic Relations uses in the context of diplomatic immunity” [74]. Under the Vienna Convention, certain employees of a foreign government have immunity, specifically persons connected with the diplomatic mission. Persons not associated with the diplomatic staff are outside of the Convention, and to the extent that Convention is adopted into Canadian law, Vavilov’s parents were therefore outside the Citizenship Act exception to jus soli citizenship [58].

For our purposes, the Federal Court of Appeal’s concerns also extended to the process of reasoning by the Registrar. The Court noted that “[O]n the central statutory interpretation issue before us, the Registrar said nothing” [38]. The Registrar, as is common in administrative law, apparently relied on a report prepared by an analyst. But that report “contains only one brief paragraph on the statutory interpretation issue, and a very limited one at that” [39]. The Court was concerned that the decision was immunized from review, because it could not be sure that the central statutory interpretation issue was even considered.

The Government’s Submissions

With the facts of the case in the backdrop, the Government began its submissions by outlining its proposal for revisions to the standard of review framework set out in Dunsmuir. The government set out its proposal clearly in the first paragraph of its factum:

The standard of review should be deferential, subject only to limited exceptions where the foundational democratic principle and the rule of law make it clear that the courts must have the final word.

The motivation behind this proposal is the mere fact that the legislature granted authority to an administrative body [49]. To the government, delegation=deference.

So, we have a rule (rather than a presumption) of deference for even more matters than Dunsmuir and its progeny prescribed. Notably, no longer do we have the correctness categories of true jurisdictional questions or the category of questions of central importance to the legal system and beyond the expertise of the decision-maker.  This general category of deference applies not only to the result reached by the decision-maker but its process of reasoning. For the government, administrative decision-makers under the ambit of government should not be expected to undertake the type of statutory interpretation analysis that courts undertake [4]. And, the decision-makers should not be expected to make explicit findings on matters of statutory interpretation [60].

The only exceptions to this general rule of deference are constitutional questions (where a law is challenged before a decision-maker on constitutional grounds) and on issues of procedural fairness.

On the merits, the government argues that there was a cogent basis for the Registrar’s decision. The government highlighted that in previous versions of the Citizenship Act, there was a requirement embedded in the citizenship exception that representatives or employees of foreign governments have official accreditation, or any connection to a diplomatic mission [84]. That requirement no longer exists, and the Registrar pointed this out, concluding that the wording in s.3(2)(a) was meant to encompass additional individuals beyond just those with immunities and privileges. Since the decision-maker canvassed this legislative change, some case law bearing on the problem, and other factors, the government argues that this is a sufficient basis to uphold the legality of the decision on its deferential standard.

It appears, for the government, that this alone is enough on its prescribed intensity of review. The government argues that if there are “additional relevant interpretive factors which the administrative decision-maker did not consider, a court may examine such factors in order to discover whether the administrative decision-maker’s interpretation can be sustained” [89]. These “additional relevant interpretive factors” are the text, context, and purpose of the statute that the Registrar was tasked with interpreting. On an interpretation of these factors, the government argues that the decision is legal.

Vavilov’s Submissions

The Respondent’s proposed standard of review framework is from a different world than the government’s. He proposes a two-part framework. First, so-called “discretionary decisions” are reviewed for reasonableness. Second, questions of law are reviewed on a correctness standard. On this second prong, the Respondent concedes that the view of the decision-makers on the “purpose and policy of its own statutes will continue to deserve respect” [59]. However, courts will still have to review the administrative decision-makers’ view of its enabling statute, independently.

The Respondent also, instructively, responds to the government’s proposed standard of review framework. He first notes that while deference to administrative decision-makers presumes trust on the part of these decision-makers, “It is worth recalling that some of the most regretted episodes in Canadian history were the work of federal statutory decision-makers exercising delegated authority” [33]. And, the Respondent also notes that the government’s submission was basically an attempt to insulate its statutory decision-makers from review. Under the government’s formulation, for example, expertise is also always presumed—“no matter how limited the statutory discretion that Parliament gave to the decision-maker or how insubstantial their real expertise” [53]. Particularly on this front, the Respondent notes that the Registrar under cross-examination said that she was “not a lawyer” and therefore did not know the legal “significance” of words in the provision [102].

On the merits, the Respondent argues that the Federal Court of Appeal’s interpretation was right, particularly noting that the Registrar/analyst interpretation did not address the legislative context of s.3(2), particularly s.3(2)(c).

Analysis

In my view, the Respondent accurately describes the implications of the government’s view. Particularly, the Respondent’s proposal is better than the government’s on a number of fronts if we view the matter from the basis of the fundamental function of judicial review—quite aside from any constitutional mandate for superior courts to police the boundaries of the administrative state.

First, most of Canadian administrative law doctrine is premised around the idea that the administrative state is a collection of virtuous experts creating good public policy and fairly adjudicating disputes. But the Respondent points out that this is far from the case. In fact, the state’s statutory creations have been perhaps the greatest purveyor of discriminatory treatment in the history of Canadian society. Far from being “flexible and expert,” (Edmonton East, at para 22) sometimes administrative decision-makers have been unfair, discriminatory, and even racist: particularly, the examples cited by the Respondent of the deportation of Japanese Canadians and the experience of Aboriginal peoples with residential schools are apposite. This is not to say that government agencies today have designs to discrimination. But it does mean that government agencies can make irrational decisions—particularly ones that are inconsistent with enabling law or the facts and record before it.

So, contrary to current scripture, it is not unreasonable that some would question the lawfulness of state action at the outset. And this is where the idea of a going-in rule of deference loses its force. The government wishes to create a system where state action is presumably lawful; where the mere fact of delegation speaks to the degree of deference owed by courts to a decision-maker. But on simple logical terms, a decision of a government to delegate to a satellite decision-maker says nothing about the degree of deference owed to that decision-maker by courts. Governments delegate to administrative decision-makers for a whole host of reasons: (1) the legislature does not want to spend the time setting up a complex regulatory scheme ex ante; (2) the legislature doesn’t care about the intricacies of the particular issue at hand, and wants someone else to deal with them; (3) the government legitimately feels that it does not have expertise in a particular matter; (4) the government does not want to make politically-charged decisions and wants to foist the political heat on someone else. More reasons abound. But the very fact of delegation says nothing about how courts should view that delegation, given that the reasons motivating delegation are so variable.

Quite the opposite from the traditional story, the potential for legislatures to shirk responsibility for important matters may invite scrutiny by courts. Delegation creates a form of distance between legislatures and decision-makers that makes it difficult for courts to conduct review. The idea is that a law passed by the legislature sets a standard—and decision-makers, relying on their own practices or ideas of what is right, and the informational asymmetry that they enjoy, can “drift” from the text of the law by which they are bound. This principal-agent problem invites, rather than counsels against, the scrutiny of courts.

On this front, the government’s standard of review proposal makes it more difficult for courts to determine whether a decision-maker is acting lawfully. Perhaps the most pernicious of the proposals is the idea that courts should presume deference on implied interpretations of law. One of the most common rationales for deference, put forward by the government above, is the idea that Parliament’s decision to vest power in an administrative decision-maker in the first place is legally significant. Even if we accept this logically deficient rationale, deferring to “implied” interpretations of law raises the prospect that the court is deferring to nothing. This is because it will be difficult for courts to determine whether the interpretive difficulty faced by the decision-maker was even addressed, let alone in a substantive way, if there is only an “implied determination.” Not to mention, of course, that if Parliament delegated to a decision-maker the power to make a decision, we should expect that a decision be made, not merely “implied.”

This is even more so where there are multiple analytical paths to a particular result. It may be easy in some cases for courts to draw a direct line to a particular analytical path from a result—in such cases, it may be easy to say what sort of interpretation is “implied” (putting aside the objection that it is the job of the decision-maker to positively pronounce on the matters it has been entrusted with by the legislature). But in most cases, if it is truly the case (as most argue) that statutes can fairly bear more than one meaning, then the reasoning employed to get to a certain result is quite important on judicial review. Where the decision-maker has multiple options, and has failed to pronounce on its reasoning, the court is left in the unenviable position of having to guess. In all cases, the quality of the reasoning adopted by the decision-maker—whether it addressed the text, context, and purpose of the statute, which cabins its discretion (McLean, at para 38)—is key. For the government to claim that these are mere “additional interpretive factors” is simply incorrect when it is the quality of the reasoning that determines whether a particular interpretation is lawful.

Vavilov shows why the government’s proposal is so flawed on both of these fronts. Even though we always presume expertise by decision-makers, the decision-maker in Vavilov basically admitted that she had no idea about the central interpretive difficulty in the case. She said she did not understand the terms of legal significance. The result she reached evinced this lack of understanding; she failed to take account of the whole of s.3(2) of the Citizenship Act and barely pronounced on the key interpretive difficulties. Yet, the text, context, and purpose of statutes are key to determining the range of reasonable outcomes available to the decision-maker. So, it is not true to say hers was a decision that fell within a range of reasonable outcomes, as Justice Gleason at the Federal Court of Appeal did in dissent. Quite the contrary, her decision was flawed precisely because her reasoning was flawed and wanting. It was unclear whether she took a proper analytical path to her decision. And yet, the government asks courts, on a hope and a prayer, to defer to this sort of reasoning merely because it is implied.

As Justice Stratas said in Bonnybrook, it is not the job of courts on judicial review to impersonate the decision-maker and fill in the gaps in deficient decisions. Yet the government’s proposal asks courts to do just that. Putting aside the constitutional objections to this posture, it fundamentally misconceives what courts are supposed to do on judicial review. Judicial review is designed to ensure decision-makers act rationally and according to law.

Courts cannot be conscripted into service by the administrative state to do its dirty work.

 

 

The Joke’s On Us

Canadians ought to care about who gets on the Supreme Court

Over the Thanksgiving weekend, the Beaverton ― Canada’s version of the Borowitz report ― ran a piece called Canadians thankful they can’t name single Canadian Supreme Court Justice. Remarkably enough, a number of lawyers in my social media feeds shared it ― with apparent approval. And of course a more reputable outlet published a rather similar story in all seriousness just a few months ago. I suppose one ought to be grateful that Canada has so far avoided the sordid spectacle of American “confirmation battles” generally, and that over the appointment of Brett Kavanaugh in particular. The ability of the Canadian governments to simply get their preferred candidates on the bench is, on the whole, a good thing. But it doesn’t follow that it is of no consequences who the judges of the Supreme Court are.

The Beaverton, parroting the national myth (aren’t they, like, suppose to make fun of things?), claims that “many Canadians were happy their court was quietly and deliberately applying the constitution”. This is, to use a technical term, bollocks. Just this year, the Supreme Court read the guarantee of free trade out of the constitution in R v Comeau, 2018 SCC 15; proclaimed, in defiance of fundamental principle, that administrative agencies can enjoy “plenary”, “unrestricted powers” in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (at [10] and [11]); and gutted religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32. This is not a court “quietly applying the constitution”; this is a court re-writing the constitution as its suits its fancy. Nor is this some sort of new development. Back in 2015, Grégoire Webber wrote that

Over the past year, the people of Canada have undertaken an important remaking of our constitution. We have given constitutional status to the Supreme Court, created a constitutional right to strike, and created a constitutional right to assisted death, among other changes. …

How have we done so? … We have … appealed to that straightforward constitutional amendment process called the Supreme Court of Canada.

Now, both in West Fraser and Trinity Western, and in some of the cases to which Professor Webber refers ― notably Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245, which “gave benediction” to the right to strike ― the Supreme Court was not unanimous in its rewriting or shredding of the constitution. There were fierce, and compelling, dissents. While no Supreme Court judge has taken a very consistent position in opposition to the Court’s majority view of its powers of constitutional amendment ― the Court was unanimous in Comeau, for instance ― some have been more forceful than others in resisting the trend. Justice Côté, in particular, has been a strong voice in favour of upholding the Rule of Law by opposing the empowerment of lawless administrative decision-makers.

And so it matters that there is only one Justice Côté on the Supreme Court; and that even with Justices Rowe and, especially, Brown, who sometimes join her in whole or in part, she is far from commanding a majority of the Court. It matters whether or not you agree with me that Justice Côté tends to be right (she isn’t always) and that most of her colleagues tend to be wrong. If you think that the majority of the Court is generally correct, and that Justice Côté and others who resist its assertions of judicial and administrative power are wrong, it also matters that there not be more Justices Côté, or even Justices Brown or Rowe. Indeed, the enthusiasts of judicial power in Canada understand this very well, which is why some were sufficiently upset when Justice Brown was appointed to the Supreme Court to demand that the Court prevent politicians from choosing judges in the future.

Smug self-satisfaction is, of course, Canada’ national disease, and self-congratulation at not being Americans is a widespread complication. Canadian lawyers are as susceptible to these things as their other compatriots. But we should know better. We should realize that Canadian judges are no more oracles than their American colleagues ― indeed, unlike some American judges, they don’t even pretend otherwise; witness Justice Abella’s repeated rejections of the Rule of Law as even an ideal to aspire to. We should understand that the Supreme Court’s relative anonymity, which it is only too happy to foster with “by the court opinions”, is part of what allows it to exercise powers with which, as even the Beaverton inadvertently suggests, many Canadians would not, in fact, be especially comfortable. If we cannot figure this out, the joke really is on us.

Anglin: Administrative Lawmaking

How administrators could make law in the dark of night.

In Anglin v Chief Electoral Officer, 2018 ABCA 296, the Alberta Court of Appeal dealt with a hidden issue in administrative law: to what extent are administrative decision-makers required to follow guidelines specifically contemplated by legislation?

In Anglin, the Chief Electoral Officer of Alberta imposed a $250 fine for breaching the Election Act. Anglin had typographical problems: “the sponsorship information on his election signs was printed in a font size smaller than that required by the Guidelines established under the Act, and was not sufficiently legible.” Anglin argued that the guidelines established by the Chief Electoral Officer do not constitute law and cannot form part of the governing statute, and as such a breach of the guidelines is not a contravention. To Anglin, there was no legal authority to impose an administrative penalty for breach of the Act [3].

The legislative context was dispositive to the Court. Under s.134 of the Election Act, candidates must ensure that ads comply with certain requirements “…in accordance with the guidelines of the Chief Electoral Officer” (s.134(2)). Under s. 134(3), the Chief Electoral Officer is required to “establish guidelines respecting the requirements referred to in (2)” which deals with sponsorship information. The specific guidelines adopted in this case prescribed a legibility requirement along with a minimum font size.

Based on this “clear” language [9], the Court concluded that the statute itself incorporates the Chief Electoral Officer’s guidelines, and that the legislature “has the power to delegate and the guidelines, like other forms of subordinate or delegated legislation are all forms of law.” This delegation, to the Court, “is incidental to legislative sovereignty.”

The Court’s reasoning raises significant problems from a democratic perspective, even though it is likely consistent with governing authority; my problem is with that governing authority itself. The making of guidelines and soft law, taken too far and unrestricted by legislatures or courts, can do an end-run around the democratic channels of adopting law, susceptible as those channels are to citizen input.

We have a few rules, insufficient as they are, to control this risk. For example, a decision-maker cannot bind herself to non-binding guidelines to the exclusion of governing law; this would be a “fettering of discretion” (see Thamotharem, at para 62).  Despite express statutory authority to issue guidelines, those guidelines may not “have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them” (Thamotharem, at para 66). At the same time, for example, guidelines issued by the Human Rights Commission have been held to have the full force of law, even if they are formulated solely by the Commission (see Bell, at para 56).

The image of a spectrum is helpful here. As noted in Thamotharem, we could have guidelines that are issued without any statutory authority whatsoever—these guidelines are still, in the traditional account, useful for guiding the administrator’s decision and providing a foundation for reviewing its legality. At the other end, we could have guidelines that are adopted according to specific delegated authority, and which must be followed as if they were law; the Anglin case is a good example. In the middle, we could have a broad legislative authorization that allows an agency to simply issue guidelines without any indication as to whether they must be followed or not.

From a fundamental democratic perspective, all forms of guidelines issued in any of these ways are trouble for different reasons. If the guidelines in the first case are applied as if they were law, we have a classic fettering problem. If the guidelines in the third case are applied as if they were law, the people subject to the guidelines have no say over binding law to which they are subject. Perhaps one could argue that these democratic issues could be excused because (1) the legislature has the undisputed authority, short of constitutional constraints, to prescribe the level of procedure required for internal agency workings and (2) perhaps this is the price of a more efficient government. But the problem remains.

One might say that the Anglin case, from a democratic perspective, is not problematic at all; after all, here the legislature has said itself what is supposed to happen. But in reality, the situation is more serious. In every case, the legislature has approved the Chief Electoral Commissioner’s making of guidelines, and his power to apply them as if they were law formulated and adopted by the legislature. And from a public administration perspective, this is completely understandable. Why would the legislature want to expend the cost of conducting a deep dive into the font sizes required on a sign? This is, on the traditional account, clearly a matter for “expert” administrators.

But if we view the problem from first principles, the legislature has in effect delegated the actual power of making the law to the Chief Electoral Officer. And if we accept that such guidelines are “hard law,” then we must accept that the law could be passed in the dark of night, because administrative agencies control how and when these guidelines (read: laws) are adopted. The answer that the legislature authorized the delegation puts form before substance. The question is whether the legislature should be able to delegate the power to the Chief Electoral Officer in the first place, given that this law will not be adopted in the ordinary course of the normal legislative process.

The context of font sizes is a bad example for this argument because it is relatively unimportant. But if we allow this form of delegation writ large, extremely broad delegations of law-making authority would be permitted. A statute could simply have one line, saying “The Administrator of [whatever agency] is entitled to make Guidelines which have the force of law.” Because there is no restriction on the power to make laws in substance, these guidelines would bind as if they were law under the current authority.

The US has some experience with this phenomenon, with its nondelegation doctrine. In practice, United States courts rarely interfere with broad delegations. But at least they have a doctrine—that a delegation must be accompanied by an “intelligible principle” to guide agencies. Here, there is no such controlling doctrine.

A restriction on Anglin-type delegations would actually likely attack very few delegations and interfere minimally with good government. The delegation problem does not arise as strongly—(ie) as a strict form of delegation in substance—in a case where the legislature authorizes the agency to make guidelines to structure its discretion. Without knowing for sure, I’d imagine this is a more common form of delegation. But where the legislature simply allows an administrator to make law itself, this seems to be a bridge too far.