We at Double Aspect are very excited to host this important symposium. As I’ve written before, I think it is necessary for observers to turn a critical eye to the Supreme Court’s cases. Those of us interested in doing so should not shirk behind the ceremony of the bench.
Here is my list of the 5-worst Supreme Court cases of the last generation. My North Star is the separation of powers between the courts and the political branches, and the division of powers between the provinces and the federal government. These fundamental protections are necessary for any constitutional democracy, and are logically prior to any bill of rights, which are simply mere “parchment barriers.” These cases, in their own way, undermine these important structural protections.
Doré has received criticism on so many levels, but my concern is the separation of powers problem it creates. It sacrifices the supervisory function of courts for the sake of the Court’s fascination with a pop-psychology sort of “expertise.”
Doré rests on the assumption that technical policy expertise in the decision-maker’s ambit transfers seamlessly to constitutional matters arising in that ambit [46-47]. This assumption is academic at best, and completely wrong at worst. It rests on the mistaken view that we can fuse together questions of law and “policy” in one mishmash of questions that administrative decision-makers can address relying on one well of policy expertise. But this is not the way human knowledge and information works. Agencies can be viewed as information processors, and when processing information, they also prioritize it. Unless decision-makers receive constitutional training (like lawyers), they could undervalue the importance of certain relevant facts applicable to constitutional problems.
The effect of this myth of expertise is the dilution of a court’s recognized supervisory role over constitutional matters (see Hunter v Southam). No one denies that a challenge to a government law is analyzed on a correctness standard. Of course, the Oakes test contemplates deference (Doré, at para 57). But deference to a legislature—a recognized constitutional actor—is functionally different than deference to a quango. We defer to legislatures for good reasons (for example, because a question is inherently political, best amenable to resolution by legislatures), whereas the reasons for deference to administrators on constitutional matters are weak and unproven.
Though this list appears in no particular order, Newfoundland Nurses is my pick for the worst case of the last 50 years. Thinly reasoned but consequentially harmful to the institutional roles of Parliament and the courts, Newfoundland Nurses extended a sentence in Dunsmuir (which itself grabbed a theoretical prescription from an academic article) that courts should defer to reasons that “could be offered” by decision-makers [12-13].
Newfoundland Nurses responds to the classic “insulation” problem in judicial review: the decision-maker has not offered enough information for the court to be sure that relevant issues were addressed. Understandably, courts cannot undertake the constitutional supervisory function of judicial review if they cannot determine the basis for the decision. Newfoundland Nurses tells us that courts, in the name of deference, should not strike a decision on this basis alone.
But it is no answer to this problem for courts to create reasons for the decision-maker. After all, Parliament delegated power to administrative decision-makers, not the court, to decide particular cases (see here, and Stratas JA’s reasons in Bonnybrook). The legislature’s delegation, absent constitutional objection, should be respected by courts. But when courts attempt to cooper up decisions that are otherwise left wanting, they disrespect Parliament’s delegation, and they end up reviewing a “decision” of the court’s creation, rather than the one actually rendered.
Ironically, Newfoundland Nurses instantiates a rule of deference that isn’t really deferential. On one hand, courts—in the name of respect for legislative intent and the unhelpful metaphysical idea of a “culture of justification”—defer to administrative decision-makers. On the other, courts build up defective reasons to save decisions.
The Federal Courts Act provides grounds of review which tell courts when they could allow judicial review. The question in Khosa was whether these grounds of review superceded the common law judicial review analysis set out in Dunsmuir, and relatedly, what the position of a court is on judicial review in absence of statutory direction.
While Justice Binnie for the majority began his analysis by noting that Parliament need not specifically direct deference for it to be applied, Justice Rothstein (in concurrence on result) had the better of the argument by reasoning that a free-standing idea of expertise amounts to a court-amendment of duly enacted legislation. The reason is this: Parliament could repeal or reorganize various administrative decision-makers at any time. It follows that the legal justification of the administrative state is statutory law. How a decision-maker is reviewed is also a function of statute. Therefore, a court cannot subvert statutory language in service to its own policy goals, in this case, some ethereal “judicially determined expertise” [96].
Regarding the Federal Courts Act, for Justice Binnie, questions of home statute interpretation are reviewed on a reasonableness standard, regardless of legislative guidance [44]. This allowed him to conclude that the grounds of review specified in the Federal Courts Act were largely silent on the standard of review, permitting deference. But because there is no reason to presume deference in absence of statutory language, Justice Rothstein was clearly right to conclude that most of the grounds in the Federal Courts Act set the standard of review as correctness [72]. While the common law Dunsmuir framework can inform the review of federal decision-makers, it should not resist the Federal Courts Act.
The Supreme Court interprets Canada’s division of powers to permit overlap between the orders of government, in the name of “cooperative federalism” (Securities Reference II, at para 18). Modern regulation is said to require nothing less. General Motors is perhaps the best example of the folly of this assumption from the perspective of the exclusive division of powers.
General Motors concerns the case of a statutory provision that facially intrudes on the other order of government’s jurisdiction, but that are included in an otherwise valid statute. Since the days of the Privy Council, it was recognized that such provisions were not constitutionally problematic if they were necessarily incidental to the broader legislative scheme. Slowly but surely, courts diluted this strict test, next permitting only a “rational, functional connection” between the provision and the scheme (Papp; Zelensky). General Motors is the cherry on top. It creates a shifting standard—depending on the severity of the intrusion of the provision, a more or less strict test would apply—sometimes the rational-functional test, sometimes the necessarily incidental test. [669].
But this shifting standard does not match onto the division of powers. As Asher Honickman persuasively argues, the division of powers was not originally understood to permit overlap, and instead was meant to be an exclusive distribution of powers. This means General Motors goes wrong in two ways: first, it sometimes permits a “rational, functional test,” which permits a great deal of overlap. A necessarily incidental test, while also permitting some overlap, only does so to enable the enacting government to legislate to the full extent of its power; without the impugned provision, the rest of the statute would fall. Second, General Motors purports to measure the “seriousness” of an intrusion. Not only does this encourage judicial navel-gazing, but one can’t get a little bit pregnant. The exclusive division of powers prevents intrusion by one order of government on the other, no matter its “seriousness,” except in the narrow case of necessity.
Residential Tenancies sets out the test for when provinces (or the federal government) want to divest courts of adjudicative power in favour of statutory tribunals. A divestment of this kind implicates s.96 of the Constitution Act, 1867, which has been interpreted to protect the judicial function of the superior courts from provincial abrogation (see Crevier, at 237). Even though a power may have been considered judicial in 1867, provincial legislatures can attach judicial functions to a tribunal within a “broader institutional framework” [733-734].
From a separation of powers perspective, Residential Tenancies incentivizes governments to regulate broadly order to enable the attachment of a purely judicial function to a tangentially related legislative scheme. This erodes the power of courts, and incentivizes mass delegation to any tribunal that can be characterized as promoting the “collective good.” This amorphous term enables Parliament and the legislatures to “regulate away” the judicial functions contemplated by the historical understanding of s.96, subverting the hierarchy of laws.
On the division of powers of side, broad provincial delegation eats away at the function of uniformity that is achieved by s.96. A federal power of appointment is designed to vest a power to create uniformity, while still respecting provinces (see MacMillan Bloedel, at para 15). But if provinces can eat away at judicial functions originally understood as being a matter of federal control, the uniformity function slowly ebbs.
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