Can Do Better

Today, the Court of Appeal decided Canada Christian College and School of Graduate Theological Studies v Post-Secondary Education Quality Assessment Board, 2023 ONCA 544, a public law case that raises a number of interesting questions ― not all of them intentionally. The facts are simple. In 2020, the Legislature enacted a law authorizing the appellant College to call itself a university and grant degrees. But, like many laws, this one would only come into force only if and when proclaimed by the Lieutenant Governor, on the government’s advice of course. This one never did. On the contrary, the relevant minister, following the respondent Board’s advice, recommended against bringing the legislation into force “at this time”. This recommendation was followed. The College applied for judicial review.

There are a few other issues the Court of Appeal deals with, but the one I am interested in has to do with the lawfulness of not bringing the legislation into force. Writing for the unanimous court, Justice Sossin notes that “[t]here is no suggestion in the record that proclamation was being taken off the table, or that the question would not be reconsidered” [43] in the future. He further observes that “[t]he discretion to determine when proclamation would occur is a power expressly provided through the commencement provision in the Act. Exercising this discretion … was precisely what the commencement provision contemplated.” [44]

He adds, though, that “[w]hile the Minister’s exercise of this lawful authority is entitled to deference, the power of a minister to defer proclamation is in no way unlimited”. [45] At the prompting of the Canadian Constitution Foundation, which intervened in the case, Justice Sossin explains that “it would not be open to a Minister to decide that an enacted statute will never be proclaimed”. [50] On the contrary, “[t]he discretion to exercise the authority conferred by this commencement provision is subject to the same constraints that apply to all exercises of ministerial discretion”. [53] In particular, as Justice Rand argued in Roncarelli v Duplessis, [1959] SCR 121, statutory discretion must be exercised consistently with the statute’s “perspective”. As a result, “[t]he legitimate grounds for delaying proclamation must be related to the conditions necessary for implementing the legislation”, [54] and “the executive” is subject to a “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision”. [55]

In this, Justice Sossin follows the House of Lords in R v Secretary of State for the Home Department, ex p the Fire Brigades Union, [1995] 2 AC 513, which he discusses at some length. As he explains, in that case, the House of Lords “held that the Secretary of State was under a duty to keep under consideration from time to time whether or not to bring [unproclaimed statutory] provisions into force”, [58] and further, that the the Secretary could not so exercise a prerogative power as to make it impossible that he or a successor would decide to bring the statutory provisions into force. (Justice Sossin’s phrasing here is a bit confusing ― he does not make clear that Fire Brigades involved the exercise of a separate prerogative power so as to frustrate the statutory power to bring provisions into force.) The upshot is “that it is for Parliament, not the executive, to repeal legislation”. [58] But this is not what is being alleged here: since it is, seemingly, possible that the legislation will eventually be brought into force, the matter stands differently than in Fire Brigades.

I am glad that the Fire Brigades Union‘s case is discussed in a Canadian judgment; all too often Canadian administrative law is parochial and ignores directly relevant lessons from elsewhere in the Commonwealth. But beyond that, Justice Sossin’s reasons raise some difficult questions.

To begin with, discussing relevant House of Lords authority is well and good, but what about Supreme Court authority that binds* the Court of Appeal? Specifically, the Criminal Law Amendment Act Reference, [1970] SCR 777, a.k.a. the Breathalyzer Reference, which also addresses a ministerial decision not to bring provisions into force. Granted, there was an extra twist there in that the government had brought most of the relevant statutory scheme into force, only leaving out the defences of which an accused might have availed him- or herself. But, much as in Fire Brigades, the question was whether the executive could in effect repeal legislation by failing to proclaim it into force. As I noted when I discussed the Breathalyzer Reference here,

Despite vigorous dissents pointing out that the government effectively re-wrote what Parliament had enacted without having any clear authority to do so, Justices Judson and Hall both insisted that “provisions” could be any parts of the bill. And if, as Justice Hall diplomatically put it, “proclaiming parts only of” the scheme enacted by Parliament “may indicate on the part of the executive a failure to live up to the spirit of what was intended by Parliament”, (784-85) that wasn’t the courts’ concern. Justice Laskin (as he then was) was even worse, arguing that “we should be very wary of judicializing the exercise of the very broad executive power conferred by Parliament”. (801)

Surely these remarks from the Supreme Court warranted a comment from the Court of Appeal. I personally find it very difficult to distinguish Canada Christian College from the Breathalyzer Reference. But if Justice Sossin and his colleagues thought that a distinction exists, they ought to have explained it. (To the extent that the government lawyers did not alert the Court to the Breathalyzer Reference, that is not a great look for them; indeed, some might think that even the appellants and the CCF should have alerted the court to this binding authority.)

I happen to think that the Breathalyzer Reference was a terrible decision. In the post already linked to, I pointed out that

its abdication of the judicial duty to interpret the law and to see to it that Parliament’s will is carried out, antithetical to the separation of powers and the Rule of Law, still infects the Supreme Court’s jurisprudence ― above all in administrative law.

If the damnatio memoriae performed by the Court of Appeal is part of the Canadian courts’ walking back that abdication, it has at least that silver lining. But if it is simply per incuriam, a failure to consider an opinion that, as I wrote, is “somewhat obscure” ― or perhaps very obscure indeed ― that is unfortunate. Doubly so, perhaps, because it is not only a failure of legal craft, but also a missed opportunity to alert the Supreme Court to the need to revisit this misbegotten precedent.

The second question I have about Christian College concerns my old bugaboo, judicial deference to the executive on questions of law. Here, the comparison with Fire Brigades is instructive. We ― and I assume other law schools in the UK ― teach Fire Brigades in constitutional law; for that matter, I also learned about the Breathalyzer Reference in constitutional law at McGill. As Justice Sossin’s summary of Fire Brigades makes clear, it’s a case about the separation of powers and the respective roles of Parliament and the executive ― and the courts’ role in policing the boundaries between the political branches, too.

But, evidently, that is not how Justice Sossin thinks of Christian College. He sees at as an administrative law case, subject to administrative law rules about judicial deference to the executive. He frames the issue as whether the Minister’s decision not to recommend that the legislation be proclaimed was unreasonable and, as already noted, says that the minister’s “exercise of this lawful authority is entitled to deference”. Justice Sossin is not simply saying that, once it is established that the minister’s recommendation was lawful, it is not to be disturbed, which would be trite. Deference is built into the determination of lawfulness.

But why is that? If indeed this is a constitutional case about the separation of powers, about whether a minister improperly repealed an Act of the Legislature, why does the minister get the benefit of judicial deference, of which there is, quite rightly, no hint in Fire Brigades? I think this is a mistake even under the standard of review analysis established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. There, the majority stressed that

[q]uestions regarding … the relationship between the legislature and the other branches of the state … require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions. [55]

It is bad enough that Vavilov continues to require courts to abdicate their duty to say what the law is and to take the side of the executive against the subject by deferring to its interpretation of legislation. But whatever specious justifications may be proffered for this misbegotten practice, they do not apply to separation of powers issues between the executive and the legislature. In Vavilov, the Supreme Court justifies deference by the fiction of legislative intent. How conceivable is it that the legislature intended courts to take the executive’s side against itself?

The third and last question I have about Christian College also arises from the Fire Brigades analogy. It is simply this: what follows from this fine assertion of the separation of powers? As I see it, the “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision” is a paper tiger. In Fire Brigades, the members of the majority were all quite clear that it gave rise to political questions that prevented any judicial enforcement. The Secretary of State had, perhaps naïvely, been forthright enough to say he would never bring the statute into force. His successors would be warned by their officials not to say that. The matter is under consideration, they would say. And the courts would do no more. (“The matter is under consideration”, said Sir Humphrey Appleby, “means we’ve lost the file. The matter is under active consideration means we’re looking for it.”)

I do not mean to insinuate that the Minister here was insincere and would not reconsider the decision not to proclaim the legislation into force if relevant circumstances changed. I don’t know much about the story, so I wouldn’t want to suggest anything about the specific facts and am happy to assume perfect good faith. But for future cases, the duty identified by the Court of Appeal will mean nothing ― absent some special circumstances. The Breathalyzer Reference, I think, did present special circumstances, because of the way that only some provisions of a statutory scheme were brought into force, changing the balance Parliament had struck. I think that in a case like that a person charged under the provisions that had been brought into force should be able to challenge the lawfulness of the prosecution. That’s a very different matter, though, from attempting to force the government to bring a whole statutory scheme into force.

To the extent Christian College undermines the intellectual authority of the Breathalyzer Reference, such as it was, it is still a valuable decision. But it does not address that case in the way it had to, and it does not comply with much more recent precedent about the standard of review of ministerial decisions either. I am glad for the CCF, which successfully pressed the separation of powers point, but this is not a great performance from the Court of Appeal.

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*NOTE: As Emmett Macfarlane reminded me, this is somewhat loose language. Strictly speaking, reference opinions are not binding precedents. But they are unfailingly treated as such, and even if not strictly biding, they are very highly persuasive indeed, especially for lower courts.