The Administrative Law “Trilogy”: The Stare Decisis Trap

This post originally appeared on Advocates for the Rule of Law.

This week, the Supreme Court of Canada finally heard the consolidated appeals in Bell/NFL and Vavilov. ARL, expertly represented by Adam Goldenberg, put forward our submissions on the matter, which focus on a return to the basis of the law of judicial review: its statutory character.

During the hearings, one particular line of questioning posed a problem for this argument, which asks the Court to critically analyze all of its precedents, even those pre-Dunsmuir. Justice Moldaver, for example, suggested that one of the parties’ submissions in Bell/NFL would “take us back 30 years.” That comment was made as if it was undesirable to look to the foundations of the law of judicial review. Justice Gascon chided the same counsel for framing his submissions as a “minor adjustment,” suggesting that it was, in fact, a major overhaul. Again, the comment was stated as a decisive fact, acting as a criticism of the merits of the legal position.

This line of thinking, to my mind, is odd for at least two reasons.

First, when the Court granted leave to these cases and consolidated them, it invited a critical appraisal of its standard of review cases since Dunsmuir. Like all of the common law, Dunsmuir is a product of what came before it. Dunsmuir, for example, incorporates CUPE’s generally deferential posture without doing away with the pragmatic and functional factors outlined in Pushpanathan, Pezim, and Southam. The Court’s invitation of a critical appraisal should be taken seriously.

The line of questioning invited by Justices Gascon and Moldaver does not inspire confidence that the Court is serious about a full-blown reappraisal of Dunsmuir and what it contains. It may very well be that the line of questioning was aimed at protecting Dunsmuir from assault, on the grounds that it is not only good law, but workable and constitutionally acceptable law. But I heard no such robust defence of Dunsmuir, and it would be difficult to sustain one given the widespread discord it and its progeny have caused in the lower courts and among the academic community. To my mind, if the Court invited review of Dunsmuir, it should review. Weak appeals to stare decisis are not helpful.

On that note, the line of questioning is odd for a second reason: this seems like the perfect case, rare in the common law system, to tear down the precedent and critically interrogate first principles. I am alive to the concern this raises about reliance interests, certainty in the law, and the other virtues of a strong stare decisis rule. But the law of judicial review in Canada is so derelict of principle and unworkable that the reliance costs on it must be minimal. The costs of advice under the regime are already high, because (1) it undergoes constant change and (2) it is difficult for a lawyer to say to a client, with any acceptable probability, what the outcome of a case would be.

Given the already-high costs imposed by a strict rule of stare decisis in this case, it is a good opportunity to go back to first principles and create a modern law of judicial review. The key touchstones should be consistency with constitutional precepts and workability. But there is a challenge: reassessing the law of judicial review may invite a re-assessment of the foundational principles laid down in CUPE.

CUPE was about a labour board in a commercial context. Today, the administrative state is a much different beast. The same rule of deference formulated in light of the expertise and position of a labour board in the 1970s cannot be applied to the decision of an immigration official to deport someone in 2018. The positions of the immigration officer and the labour board are so vastly different that a law formulated in light of the former, 40 years ago, is difficult to apply to the latter today.

The challenge is for judges on the Supreme Court who were born and bred in the Keynesian 70s to accept another model of judicial review. CUPE is a sort of foil for this bygone era. The conception of administrative law, at that time, was its potential for redistributive social justice, and nowhere was the terrain more fraught than in the economics of labour. Deference to these sorts of decision-makers could be justified as a tool to empower them in the face of conservative judges. But today, administrative law is called on to do much more. Now, there is a worry (Vavilov is an example), of an administrative state that directly impacts the most personal individual rights. Administrative decision-makers can make life-altering decisions that bring to bear the most repressive arms of the state against vulnerable people. This has nothing to do with redistributive goals, the labour movement, or any other social goal. As such, it is difficult to apply the social-justice rationale of deference to these decision-makers.

The new administrative law, conceived as a sort of control on satellite decision-makers, must be attuned to the new administrative state. Accordingly, the judges should not keep themselves to any strict rule of stare decisis. They should review the interaction of any proposed framework with the intricacies of the modern administrative state. Anything less would be a wasted chance.

Lost Virtue

Joseph Raz revisits the subject of the virtue of the Rule of Law

Joseph Raz recently posted on SSRN a short essay call “The Law’s Own Virtue“, based on remarks he delivered on the occasion of receiving the Tang Prize. The essay revisits themes explored in Professor Raz’s famous article on “The Rule of Law and Its Virtue”, defending the same view that the Rule of Law does not mean the rule of good law, and that its requirements on the exercise of public power are formal and procedural, but not substantive. It is a view that I share, for what that’s worth. But there is an aspect of Professor Raz’s argument which is new, at least in comparison with his classic article, and which strikes me as deeply disturbing.

Professor Raz now makes the intention of government actors central to his discussion of the Rule of Law. He starts from the proposition that “one, commonly agreed, aim of the [Rule of Law] is to avoid arbitrary government”. (5) This is where the focus on the reasons for government action enter the picture, as Professor Raz defines “[a]rbitrary government [as] the use of power that is indifferent to the proper reasons for which power should be used”. (5) Government power should be used “to follow and to apply the law”; (6) If it is used with this intention, the Rule of Law is being complied with. It follows that

not every failure of the government to be guided by the law is a breach of the [Rule of Law]. For the most part such failure is due to mistakes and incompetence. Even the most conscientious and qualified government is liable to fail in such ways. (6)

Intention is also relevant when assessing (from the Rule of Law standpoint) the exercise of interpretive and discretionary powers, and indeed the rule-making powers. When making or interpreting law under the Rule of Law, governments must “not … promote their own interest, but that of  … the governed … includ[ing] their moral interests”. (8) Beyond that, however,

[d]etermining what ends to pursue in the exercise of discretionary powers, or in the interpretation of the law, is the stuff of ordinary politics, and the [Rule of Law] does not review the success of politics. (6)

Professor Raz sums his argument as follows:

Based in the main on only two premises, that governments may act only in the interests of the governed, and that honest mistakes about what that is, and what it entails are the stuff of ordinary politics, and honest mistakes about this do not violate the rule of law, I concluded that the virtue of the rule of law lies in tending to secure that the government acts with the manifest intention of serving the interests of the governed. (15)

Professor Raz’s original view of the virtue of law was that it was indifferent to governmental purposes. Compliance with the Rule of Law, he famously wrote, is like the sharpness of a knife: a quality that can be used in the service of bad ends, as well as good ones. The test for such compliance had to do with the form of laws (notably their clarity, openness, and stability) and with respect for legal procedures (the independence of courts, the executive complying with the law that authorizes it to act, and so on). An ill-intentioned, self-serving or abusive government could comply with the Rule of Law; a well-intentioned but incompetent one, not necessarily.

This view is reversed in Professor Raz’s return to the subject and, as noted above, I do not think that his change of heart is for the better. I think it is dangerous and counter-productive to judge governments by intention, both as a general matter and specifically when it comes to assessing their compliance with the Rule of Law. Moreover, even if intention were a relevant consideration, the pursuit of the “interest of the governed” seems a particularly unhelpful standard by which to judge governments.

Generally speaking, I think we would do well to embrace Lord Acton’s distrust of “[t]hose who judge morality by the intention [and] have been less shocked at the crimes of power … than at those committed by men resisting oppression”. The time elapsed since Acton’s death should only have reinforced this attitude. And it is especially relevant to the issue of the Rule of Law. Governments themselves don’t allow people to get away with law-breaking by pleading “mistakes and incompetence”. If you are caught speeding, telling the cop that you’re just a mediocre driver and, while desirous of complying with the traffic code, sometimes forget to check how fast you are going isn’t going to get you too far, I suspect. So why should you have any patience with similar claims by a government? Lon Fuller, in particular, emphasized the reciprocity that the Rule of Law fosters in the relationship between government and citizen: as the quid pro quo for the citizen’s law-abidingness, the government ensures that the law allows the citizen to plan his or her life. Under Professor Raz’s approach, this reciprocity can break down. The citizen is still asked to obey, but the government only to intend to do so.

Of course, Fuller, as well Professor Raz in “The Rule of Law and Its Virtue”, recognized that compliance with the Rule of Law is (usually) a matter of degree. A certain level of compliance is necessary; beyond that, the question becomes one of excellence, and perhaps even excess. But I don’t think that this is Professor Raz’s point in “The Law’s Own Virtue”. If “manifest intention” to act in the appropriate way is the relevant standard, then even fairly egregious failures, so long as they are due to good faith incompetence, perhaps even honest carelessness, will be excused, and not only a government’s inability to reach excellence.

Consider an example that I have previously discussed here as a Rule of Law failure: the Canadian law on the standard of review in administrative law. The Supreme Court changes the rules all the time, sometimes announcing that it does so and sometimes not; it often fails to follow the rules it has itself announced; its deferential approach is not impartial between the citizen and the government and allows erroneous legal interpretations arrived at by decision-makers who are not independent of the government to become the law. For all that, I am happy to suppose that the Supreme Court judges intend to follow the law, except in those cases where they (not inappropriately) reconsider their precedents, and that to the extent they are engaged in (re-)making the law, they think they act in the best interest of Canadians. The vexing inability to come up with and follow a truly legal framework is, at least for the most part, the fruit of plentiful mistakes and abundant incompetence. But so what? That doesn’t change the fact that where citizens (not to mention other judges) ought to find law, they find muddle. The Supreme Court’s pronouncements provide no useful guidance, and thus appear arbitrary, even if they do not meet Professor Raz’s narrow definition of arbitrariness. 

This example also points to another troubling claim in Professor Raz’s discussion: that legal interpretation is equivalent to an exercise of discretionary powers and must be assessed as “the stuff of ordinary politics”, not a Rule of Law issue. As not only John Marshall but also the Professor Raz of “The Rule of Law and Its Virtue” recognized, the province and duty of the judiciary to say what the law is. This is significant, because the courts are not engaged in “ordinary”—which I think must mean partisan and self-interested—politics when interpreting or even developing the law. Their performance in doing so cannot be judged politically, either as a normative matter (because political criteria are the wrong ones to apply to judicial decisions) or as a descriptive one (because the courts, being unelected and independent, are not subject to political judgment anyway). Of course, a political judgment in the shape of legislation or constitutional amendment overturning a judicial decision is possible; perhaps this is what Professor Raz means. But such legislation is fairly rare, and constitutional amendment still more so. In the ordinary course of things, the only judgment that we can pass on the judiciary’s exercise of interpretive and creative powers is a moral one, and it must be based on Rule of Law-related criteria, not political ones.

Finally, in any case, I think that “the interest of the governed” is not a standard by which the actions of any institution of government can usefully be assessed. “The governed” are not a homogeneous undifferentiated mass. The are individuals, organizations, and groups. Their interests differ, and sometimes—indeed, quite often—clash. Government action that is in the interest of some will run counter to the interest of others. The more things some people get governments to do, the more toes these governments must step on to accomplish these things (whether these toes’ owners are aware of being trampled on or, as often is the case, not). Now, perhaps the idea is that any plausible-seeming conception of the public interest will do, so long as the government is not blatantly oppressive and self-serving. Yet not only is it doubtful that even this test can eliminate controversy but, more importantly, it is quite meaningless. Protectionist legislation that blatantly favours, say, producers over consumers, or indeed government over citizens, can be dressed up in some public-spirited guise, and intelligent people will fall for this trickery, be they the judges of the Supreme Court in R v Comeau, 2018 SCC 15, or Sir William Blackstone, who wrote that

the statute of king Charles II which prescribes … a dress for the dead, who are all ordered to be buried in woollen … is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation.

The Rule of Law, I submit, is not only not the rule of good law, but also not the rule of well-intentioned law. The purposes of public institutions that create, interpret, and apply the law, or exercise discretionary powers granted by law, are not relevant to assessing their compliance with the Rule of Law. Innocent incompetence can lead to Rule of Law failures, while a self-interested government, for example one preoccupied with lining the pockets of its supporters and winning the next election, however worthy of condemnation, may well abuse its power in a manner that is consistent with the Rule of Law. Professor Raz’s classic article on the virtue of the Rule of Law remains an essential reference point for those of us who are interested in the subject. His return to the topic, sadly, will not be one.

Lowering Expectations: The Supreme Court’s Standard of Review Cases

Why, sadly, Canada’s administrative law community should probably lower its expectations.

Next week, the Supreme Court of Canada will finally conduct its once-per-decade review of the standard of judicial review. In Vavilov, and Bell/NFL, the Court will hear about a number of issues: the standard of review on questions of law, the role of reasons in administrative law, and the role of so-called “jurisdictional questions,” among others. Many administrative law aficionados will pay close attention to next week’s hearings. I have outlined my proposals for how the Court should handle these cases and judicial review more generally (here, here, and here). But no matter what one thinks about the merits of the law of the judicial review in Canada, I do not think the Court will do anything in these appeals that will affect, in any substantive way, the standard of review.

I take as a given “Daly’s law”: that is, the idea that “the more excited administrative law aficionados are beforehand, the more disappointed they will be afterwards.” Evidence helps us with this conclusion. Most recently, many administrative law watchers had high hopes for the Court’s Tran case last year. Tran was an appeal from a Federal Court of Appeal decision, where the FCA expressly noted the difficulty of applying the Supreme Court’s standard of review precedents on questions of law. But Tran frustrated our expectations by simply saying that its result would be the same under any standard of review.

I do not think we will get a Tran-type conclusion in the Vavilov and Bell/NFL cases; I expect a bit more than that given the Court’s express request for submissions on the standard of review. But I do not think that the Court will do anything exciting or substantive in these appeals. And so, I think we should all temper our expectations.

The Court is notoriously divided on administrative law in general, and the divisions are deep and intractable on foundational questions. This makes it difficult to hope that the Court will come up with a workable and constitutionally justifiable doctrine. For example, the Trinity Western case, while focused on matters outside the direct scope of these appeals, demonstrated the fault lines in how the Court views issues of judicial review. The Court has also divided on the specific issue of jurisdictional questions: see Guerin and CHRC. In those cases, the dissenters viewed the category of jurisdictional questions as fundamental to the Rule of Law. On those terms, it’s difficult to assume there is much wiggle room for the dissenters on the category. What’s more, the Court has divided on the factors that rebut the presumption of reasonableness review. In Groia, Justice Côté would have found that the presumption of reasonableness review was rebutted by the fact that “the impugned conduct occurred in a courtroom…” [166]. This factor was previously unknown to the standard of review framework, and indicates the breadth of considerations that at least one judge is thinking about on the issues. Other cases demonstrate more fundamental problems. In West Fraser, then-Chief Justice McLachlin (with the agreement of five other judges) claimed that the decision-maker in that case was the recipient of the delegation received unrestricted powers because of an “unrestricted” delegation, and so was (presumably) owed unrestricted deference. This is a bold statement that is strikingly at odds with a fundamental concept of administrative law in Roncarelli: there is no such thing as untrammeled discretion. Naturally, dissenting judges found that the enabling statute actually did confine the decision-maker at issue in West Fraser.

The problem transcends administrative law and affects broader issues that define the parameters of the debate. In Mikisew Cree, the Court split over the circumstances in which the duty to consult attached to legislative action. Two judges (Abella and Martin JJ) would have found that the legislative process was “Crown conduct” subject to the duty, despite the fact that in the Westminster tradition, the entire law-making process is immune from judicial scrutiny. Here, we have a deep disagreement about the very nature of the Parliamentary system, one which foreshadows the more specific administrative law problems.

Further, the problems that the Court has to face are broad, and that state of affairs lowers the probability of any workable agreement. The problems range from how courts should select the standard of review (the status of the presumption of reasonableness; the status of the jurisdictional questions category; the role of constitutional questions) to how the courts should apply the standard of review (what is the role of the principles of statutory interpretation?; should courts supplement reasons?). There is no reason to think the Court will create a precedent on any one of these issues, let alone all of them. Yet each of them is vitally important and deeply contested.

The factional stasis at the Supreme Court is a real shame, because now more than ever there is an academic and judicial movement that has converged on the idea that at least some reform of the law of judicial review, even at the margins, is highly desirable. Very few people are happy with judicial review in Canada. This is an important opportunity to fundamentally question the foundations of judicial review in Canada, to create a workable framework that deals with the developing Canadian administrative state.

So, if I had my way, I would take the opportunity and start from scratch. I once believed, naively, that the Dunsmuir framework was workable. A lot of people think, with good reason, that only the extensions on Dunsmuir that have caused the most academic consternation—the presumption of deference introduced in Alberta Teachers and entrenched in Edmonton East; the completely unjustified “supplementation of reasons” doctrine that the Court created out of whole cloth in Newfoundland Nurses. Of course, these doctrinal innovations have made the law unworkable. But Dunsmuir itself is a problem because it creates a sort of centrifugal force with which the Court must contend. Its categories and factors will remain, even if Edmonton East, Newfoundland Nurses, and Alberta Teachers are expressly overturned. The categories and factors are intractable precisely because there is no sense of the relationship between them on first impression. They are not necessarily connected to what I have before called the fundamental premise of administrative law: its statutory character. It would be better for the long-run doctrinal clarity of the standard of review framework if the Court began its analysis from this fundamental premise, while critically questioning whether these categories and factors are necessary at all.

But because the Court cannot even find agreement on more mundane points, it pains me to predict that Dunsmuir will remain largely unscathed. That prospect disappoints me given the opportunity the Court has created for itself. But if nothing else, administrative law scholars will have another decade of work.

The Supreme Court’s Unreasonable Reasons Doctrine in Admin Law

Why Newfoundland Nurses should be overturned and a recent FCA case adopted as a new starting point.

In Sharif v Canada (Attorney General), 2018 FCA 205, the Federal Court of Appeal (per Stratas JA) was faced with the herculean task of trying to do the impossible: review nothing. Indeed, that is what is asked by the Supreme Court when it says that courts should supplement the reasons of decision-makers. Sharif is the latest in a growing list of cases that demonstrate the fallacy of the Court’s approach. There are two reasons why Sharif’s reasoning demonstrates the flaws with the Court’s doctrine of supplementing reasons: supplementing reasons skewers itself on the Supreme Court’s own concept of deference; and a doctrine of supplementation creates perverse incentives for decision-makers.

First, to Sharif. The Chair of the Warkworth Institution Disciplinary Court convicted Mr. Sharif of “fight[ing] with, assault[ing] or threaten[ing] to assault” another person under the Corrections and Conditional Release Act [CCRA]. In making the decision, the Chair only made a few factual findings: (1) he attempted to keep his meal tray out of a correctional officer’s reach; (2) this conduct invited physical contact either by Mr. Sharif or by the officer [17].

Fatally, Stratas JA noted that the Chair did not analyze the provision of the CCRA under which he convicted Sharif—and that led him to obviously (but implicitly) conclude that Sharif’s action of keeping his meal tray away from the officer was “figh[ting] with, assault[ing] or threaten[ing] to assault.” But to Stratas JA, this “[fell] short of affirmative action or aggression with physical consequence” [23], the condition required under the CCRA. The Chair’s reasons did not contain a finding of aggressive conduct [25].

At this point, the Supreme Court of Canada’s conclusion in Newfoundland Nurses enters the fray. The Court there confirmed Dunsmuir’s selective citation of an academic article, reasoning that judicial review courts may provide reasons that were not but “could be” offered by the decision-maker. Courts should “supplement [reasons] before [they] seek to subvert them” [12] by looking to the record; additionally, inadequacy of reasons is not a standalone basis for review [14]. To the Court (through Justice Abella), this doctrine was consistent with Dunsmuir’s requirements of “justification, transparency, and intelligibility” [13].

Justice Stratas declined to supplement the Chair’s non-existent reasons, even though he looked to the record as instructed by Newfoundland Nurses. In fact, he concluded that, looking to the record, the Chair “declined to find that Mr. Sharif’s conduct was aggressive” [27]. Applying Newfoundland Nurses, and doing anything more to determine whether the ultimate outcome was reasonable, would amount to  “impersonation” of the decision-maker (Bonnybrook, at para 91 per Stratas JA in dissent—but with no quarrel from the majority). To Justice Stratas, doing so would usurp the role of the decision-maker, or otherwise speculate as to what the decision-maker thought about the relevant legal analysis. Here, the reasoning was plainly deficient. The Court could not conduct judicial review.

Having concluded this, Justice Stratas refused to take Newfoundland Nurses any further. In effect, he concluded that the lack of reasoning was a standalone basis for review. And he was right to do so. This is where Newfoundland Nurses goes wrong and Sharif should be followed. Reasons are a window into a decision. The decision-maker has been delegated power to make decisions; and the reasons offered are important for the court to determine the legality of a decision. If decision-makers are incentivized to provide inadequate reasons, but courts cannot intervene on those decisions, the administrative state is evasive of review. A court ginning up supplementary reasons only exacerbates this concern by providing cover for bad and inexpert decision-making.  Sharif raises this concern on two fronts, and I would take the reasoning in the decision further to bar all supplementation.

As Justice Stratas notes in the decision, supplementing decisions can be fundamentally corrosive of the separation of powers between the judiciary and the legislature. The task on judicial review is to police the boundaries of the administrative state (Wall, at para 13), with the appropriate degree of deference indicated by the legislature.   It is not giving “respectful attention” (Dunsmuir, at para 48) to the reasons the decision-maker offered if the court is, as Newfoundland Nurses instructs, permitted to recreate a decision from the record that the decision-maker did not make. The Justice Abellas of the world forget that reasonableness is a standard of review. If a decision-maker offers nothing, how can a court review—or even give deference—to something that does not exist? It is profoundly disrespectful of the (supposedly expert) delegated decision-maker to impose a court’s own reasoning, but it creates a situation where that disrespect begets insulation. By saving the administrative state from its own poor reasoning, courts will end up reviewing its own reasons, not the decision-makers. And decision-makers will use their delegated authority to make decisions that courts cannot review on the merits.

But the downstream effect of this doctrine of deference is likely also corrosive. A decision-maker under Newfoundland Nurses can provide one line of reasons knowing that courts can look to the record to supplement the decision. But this is not judicial review in any meaningful sense. The job of a judicial review court is to review a decision, not conduct documentary discovery.  A bare record is a necessary but insufficient condition for meaningful review. Reasons—addressing the main legal issues and engaging with the core interpretive difficulties—are vital. When a court supplements a decision, decision-makers can relax, knowing that the margin for error is quite wide. And in cases where the decision-maker has some control over compiling the record, the doctrine incentivizes the piling of documentary evidence into the record, without having to engage with the difficult legal questions, knowing that courts could–somewhere–find a justification.

In this sense, for a lawful administrative state, it is not enough that the outcome of a decision be supported by the record. The administrative decision-maker–the merits-decider–must herself support that outcome with reasons springing from her own pen. A court on judicial review must take those reasons for what they are, not create incentives for a free-riding administrator to depend on an expert court to cover for legal mistakes. This is all the more important where important liberties are at stake.

Sharif pushes back on these perverse incentives by demanding more. It asks decision-makers to explicitly set out the basis of the decision, and justifies the revocation of the lifeline granted to them by Newfoundland Nurses. It restores a modicum of respect for Parliament’s choices. Newfoundland Nurses should be rejected. Sharif is a good start as a replacement.

 

Vancouver Event Next Week

Announcing another talk

As I noted earlier, I have been and will be speaking at a few Canadian law schools ― I did an event in Calgary 10 days ago, and will be doing a couple of joint appearances with Geoff Sigalet, a debate on the “notwithstanding clause” at McGill this Wednesday at 1PM and a discussion (with Grégoire Webber) on constitutional dialogue and Commonwealth bills of rights at Queen’s next Monday, also at 1PM. 

As it turns out, I will be doing another event (I hadn’t previously realized that it would be public) ― this one at UBC, on Wednesday, November 28, at 12:30PM, in the Fasken Classroom (room 122). I’ll be speaking about the undermining of the Rule of Law in Canadian constitutional law, and its consequent politicization, by such ideas and techniques as judicial deference and “constitutional dialogue”, the re-legitimation of the use of the “notwithstanding clause”, and “living tree” constitutional interpretation.

I am grateful to my friend Régine Tremblay and to her colleagues at UBC who have organized this talk, which I am very much looking forward to. Come along if you are able to, and please say hello if you do.

When Judicial Disagreement Doesn’t Matter

What does it mean for an appellate court’s decision to be unanimous?

By Peter McCormick

To begin with the obvious: common law appellate court decisions include two major elements.  The first is the outcome – crudely, who won? – that takes the dichotomous form of“appeal allowed” or “appeal denied”.  The second is the reasons for judgment, that take the form of a legal essay, sometimes of extended length, explaining why that outcome is the appropriate one and how it is grounded in existing law.  Put more formally: an appeal court decision responds to two imperatives, the first being to provide a definitive resolution to a specific legal dispute, and the second being to provide the reasons for that outcome in such a way as to provide useful guidance to lower courts and future litigants.

From this it follows that there are two different types of judicial disagreement. A member of the panel may disagree with the outcome, saying that their colleagues got the winner wrong – we call this type of disagreement a“dissent”.  Or they can agree with the outcome but disagree, or at least not completely agree, with the reasons given to explain and justify that outcome – in Canadian usage we call this a “separate concurrence”.

Dissents have drawn a voluminous literature, both empirical and normative, to such an extent that even a preliminary list would take several pages. When the focus of discussion shifts from the consideration of a specific example to a more general level, the usual complaint is that dissent rates are too high – judges (or perhaps just some judges) are too ready to pursue their own vision of the law rather than contributing to and reinforcing a more solid institutional position.  Separate concurrences, on the other hand, are very much the forgotten poor cousin of judicial disagreement; to the best of my knowledge, there have only ever been two articles in Canadian law journals exploring the practice of separate concurrence and evaluating its contribution to the law.[1]

With respect to dissent, Jeremy Gans, in a recent piece in Inside Story and referring specifically to the High Court of Australia, has taken the highly intriguing position of flipping the “too many dissents”argument.   Quite the contrary, he complains that it is possible – and, for the current High Court, an actual achievement – to have dissent rates that are low to the point of dysfunction, so much so that it reflects badly on the Court’s performance. His “Great Assenters” title is deliberately and pointedly ironic; at a certain point, he does not think that “assent” is great at all.

This looks like a fascinating conversation that I would love to join – perhaps by suggesting a “proper” (or at least“normal”) level of judicial dissent that as a yardstick against which “too high” and “too low” can be more precisely measured, such that the reasons (commendable or otherwise) for departures from that norm can be identified.  But my enthusiasm was derailed by the second paragraph, which casually told me “All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons).”  Our own Supreme Court has exactly the same attitude toward “disagreement on the reasons”, keeping its statistics on how many of its judgments were “unanimous as to outcome” but not seeing any necessity of taking the further step of telling us how many of those were also “univocal” (which is to say: unanimous as to reasons as well).

The clear implication of both Gans’s comment and the Supreme Court statistical reporting is that only disagreement as to the outcome really matters; differences as to the reasons are not really worth noticing – not even if they involve fundamental differences expressed at considerable length, not even if they are joined by several other judges, not even if the consequence is that there is no statement of “outcome plus reasons”statement that is supported by a majority.  To be sure, disagreeing about the outcome is much more dramatic, with greater potential for news headlines and editorial commentary aiming scathing criticism at either the majority or the minority.  It conjures visions – sometimes rebuttable but often compelling – of innocent people sent to prison or guilty people freed, of honest people victimized without remedy, of perfectly valid laws rendered null and void or bad laws upheld.  Separate concurrences are less dramatic and often harder to explain, a judicial equivalent of “insiders’ baseball.”

With all due respect to both Prof. Gans andthe Supreme Court of Canada, I think their focus on “unanimous as to outcome”is a profound mistake.  Putting the pointas starkly as possible: the outcome really matters only to the immediate parties, but the reasons matter to everybody. This is because it is the reasons, not the outcome, that constitute the precedent that constrains the immediate court and instructs the lower courts.   Since there are only two possible outcomes (allow or dismiss), how can they carry any precedential message at all?  The real point about dissent is not that the judges disagreed on the outcome but that they disagreed about the content and meaning and application of the relevant law; generally speaking, to disagree with the outcome is ipso facto to disagree with the reasoning that led to the outcome, so it is easy to conflate the two.[2] But “disagreeing on the content, meaning and application of the law” is precisely what separate concurrences are aboutas well, in ways that may be less dramatic but are often as profound and as potentially impactful as many dissents.  As Scalia once said, a judgment that gets the reasons wrong gets everything wrong that it is the function of an appeal court decision to provide;[3]it follows that minority reasons identifying that species of error are just as functional, and just as important, as minority reasons that challenge the outcome as well.

To step back for a moment: there are essentially three different kinds of separate concurrence. The first is what we might call the “just one more thing” concurrence,which expresses agreement with the majority but wants to add one additional related thought about the law that the writer could not persuade their colleagues in the majority to sign on to. The second is what we might call the “one less thing” concurrence, which expresses general agreement with the majority but specifically excludes one or more elements of the majority reasons; depending how significant those elements are, and how many other judges sign on to it, this can sometimes have real implications.  But the third kind, and as it turns out (at least in Canadian practice) the most common of the three, is the “by another route” concurrence, which opens with some variant of the apparently innocuous statement “I reach the same conclusion, but for different reasons.”  This is not innocuous at all;it is as serious as judicial disagreement gets, so much so that McLachlin J. (as she then was) once described herself as “respectfully dissenting” from the majority even though she was at the time agreeing that the immediate appeal should be dismissed (in R v Potvin [1993] 2 SCR 880).  Although she seems to have repented from this terminology, I remain convinced that she was on to something.

The distinctions I am making are highlighted by two important developments on the Supreme Court of Canada.  The first is a consistent practice dating back several decades that distinguishes between unanimous (or majority, or plurality) judgments and minority(dissenting or separately concurring) reasons;this replaced the earlier practice whereby any set of reasons delivered by a judge was referred to as a “judgment”.  The term “dissenting judgment” has become an oxymoron when applied to the current Court, although it was used by the Court itself before the late 1960s and still is appropriate for jurisdictions (such as the Ontario Court of Appeal) where the parallel labeling practice has not been adopted.  The second is a decision-delivery process that highlights the judgment (or at least the initial attempt at a judgment) by systematically framing other sets of reasons as responses (“I have read the reasons”).[4]  The joint impact of these two developments is to flag the significance of non-dissent disagreement in a very transparent way,although it is only making more visible implications that apply even in the absence of such explicit signals.

When and why and how does this matter?  To simplify the context, let us take the most dramatic position and assume a nine-judge panel that has divided 5-4 on the outcome and then 4-1 on the reasons.  We have an outcome, but what do we do about the reasons for judgment?   Is there a plurality judgment, and if so which set of reasons earns the label?  Or is there no “judgment” at all?

That depends on the nature of the disagreement between the various fragments of the majority.  If the solo judge is writing reasons of the“one more thing” variety, then we have a separate concurrence that has explicitly lined itself up with and behind the four-judge reasons in such a way as to make those reasons the judgment.  If those reasons are of the “one less thing” variety, then it may well have displaced the other reasons to become the judgment itself (because the “rule” as to which fragment of a divided majority is the judgment is not “largest fragment” but“narrowest legal grounds” – for an example, see Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791).  But if the disagreement is of the “by another route” variety, then there may well be no “judgment” at all, which is to say that there is no majority position on the law that explains the outcome in way that clearly establishes precedent.  For the Supreme Court of Canada, this only happens about once a year, but the point is that it does happen – the most recent examples are Haaretz.com v Goldhar, 2018 SCC 28 and Centrale des Syndicats du Québec v Quebec (Attorney General), 2018 SCC 18. Or consider the even more recent case of Mikisew Cree First Nation v Canada, 2018 SCC 40, which was unanimous as to outcome but with four different sets of reasons, all of comparable length but none attracting more than three signatures on a nine-judge panel; the decision is either unanimous, or 7-2, or 5-4, depending which of the major issues attracts your attention.  Gans’s “great assenters” label hardly seems appropriate.

But my concerns apply more broadly than these dramatic and unusual developments.  More generally we might say that behind every dissent, especially one that draws multiple signatures, lurks a disagreement deep enough that it might one day grow into a dramatic explicit abandonment of the majority’s jurisprudential position – like the reversal of the 1987 Labor Trilogy (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313PSAC v Canada [1987] 1 SCR 424RWDSU v Saskatchewan [1987] 1 SCR 460) twenty years later in B.C. Health Services (Health Services and Support-Facilities Subsector Bargaining Association v British Columbia, 2007 SCC 27, [2007] 2 SCR 391) on the status of collective bargaining under the Charter’s guarantee of freedom of association, or Carter’s 2015 repudiation (Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331) of the 1993 Rodriguez decision (Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519) on the constitutional status of the ban on assisted suicide.  By a similar logic, behind every separate concurrence (but especially those of the “different route” variety, and especially those joined by several other judges) lies the potential for a less visibly dramatic but comparably significant evolution, perhaps to the extent of having the separate concurrence gradually displace the one-time majority incitation frequency (which again is something which has happened more than once).

Differences over reasons matter because reasons are what judicial decisions are all about; the evolution of the reasons explaining outcomes is what brings about much of the incremental change in the law.  This makes it a serious mistake to assume that some judicial disagreement is necessarily less important simply because it does not involve disagreeing on the outcome as well as on the reasons that justify that outcome.   When is it that judicial disagreement doesn’t matter?  Only when we are so shortsighted as to ignore it.


[1] I admit that I wrote both of them: see Peter McCormick, “The Choral Court: Separate Concurrences on the McLachlin Court 2000-2004Ottawa Law Review, Vol. 37 (2005-6); and Peter McCormick, “Standing Apart: Separate Concurrence and the Supreme Court of Canada 1984-2006McGill Law Journal Vol. 53 (2008).

[2] That said, I think it is not impossible for judges to disagree on the outcome without disagreeing on the central legal issues and their precedential implications; my leading candidates would be R v Therens, [1985] 1 SCR 613 and Andrews v Law Society of British Columbia [1989] 1 SCR 143, the point being that for both of them the major precedential finding on the constitutional issue is made and explained in the dissenting reasons.

[3] Antonin Scalia, “The Dissenting Opinion” 1994 Journal of Supreme Court History p.33

[4] Peter McCormick, “Structures of Judgment: How the Modern SupremeCourt of Canada Organizes Its Reasons” Dalhousie Law Journal, Vol. 32 (2009)

Criticizing the Supreme Court

Why we should vigorously dissent when the occasion presents itself.

What is the generally accepted scope of criticism for the Canadian judiciary?

This question was brought into stark relief last week, with a post from co-blogger Leonid Sirota and a similar post from me criticizing, in no uncertain terms, Justice Abella’s recent comments about the role of the Supreme Court in Canadian society. Leonid received criticism for his post, with others positing that there should be a presumption of good-faith when criticizing the judiciary.

It strikes me that the general reaction, while itself in good faith, ignores the nature of judicial decision-making in modern day Canada. The so-called “countermajoritarian difficulty” is, to some, a non-starter for discussion in Canada, because Parliament and the provinces (read: Canadians) themselves gave the strong-form power of judicial review to the courts in the 1982 constitutional negotiations. Within this argument is an admission that the court’s role—itself a product of democratic consensus—cannot usefully be criticized on democratic grounds. It is reflective, according to Justice Abella, of a broad consensus among Canadians that the court should be advancing values and principles that at one point were the responsibility of the legislature.

So be it. But with great power comes great responsibility. And if we are to accept a role for courts in legislating, then courts should be subject to the very same criticism that is leveled at politicians of all stripes. If courts are ruling on matters central to who we are as Canadians, and if they are doing so because we gave them that power through democratic channels, we should be responsible for monitoring our choice. In that sense, the judiciary’s great power should be checked by watchful criticism just as Parliament’s judgment is criticized.

The response to this is predictable, and it is raised by Justice Abella: the difference between the judiciary and the legislatures in our system is so important that it is given constitutional protection. Judicial independence is a cherished principle because it allows the courts full scope to check majoritarian passions, which is sometimes necessary in a society based on constitutionalism and the Rule of Law. In this sense, we should not undermine judicial independence through robust criticism of the judiciary, lest it invite enterprising Trumpian politicians to rail against the courts and reduce the public’s trust in these hallowed institutions.

The conflation between judicial independence and criticism is quite unfortunate. Judicial independence is indeed an important constitutional requirement, one that should be preserved. But judicial independence should not stop us from criticizing the judiciary when it goes too far, in light of other constitutional principles—including the separation of powers. Parliament is supreme within constitutional boundaries, but this does not stop any one of us from vigorously criticizing parliamentarians, even with invective language. Even lawyers, defenders of the institutional integrity of law, do this on Twitter from time to time when talking about Justin Trudeau, Doug Ford, Jim Watson, etc etc.

If one views the court as carrying immense power, it is natural to err on the side of promoting vigorous, powerful dissent rather than muddy agreement or assumptions of good-faith. We can always assume good-faith, but that gets us nowhere near the substantive justifications for a court decision, nor does it allow us to criticize a particular judge’s thought process and reasoning. Something may be in good-faith but totally and completely contrary to fundamental law; or it may be the result of several logical fallacies, or an oversized view of the judicial role unsupported by our history or traditions. It may be inevitable that we have to mention a judge’s name in criticizing her thought process, and if judges are public figures, they should expect nothing less. In this sense, short of the marginal cases where one lobs horrible insults, the judge and her worldview are inseparable from the things she says and the public pronouncements she makes.

In other words, if a judge of a particular court views her job as deciding value judgments, that same judge cannot then hide behind judicial independence as a protection against vigorous criticism. The Charter did not entrench courts. It entrenched a Constitution, the basis of which derives from popular support represented by legislatures. We, including those in the legal profession, have the right and the responsibility to vigorously criticize judges. If a line is to be drawn, it should be drawn inclusive of this important principle. In the same vein, in a society where judges carry great power, histrionics and celebration of those same judges should be avoided, much in the same way that we view politicians with a hint of distrust. This is not a malevolent consequence of our system, but it should be the natural reaction of human beings who have delegated broad powers to others to govern them.