I’m a bit late to the debate, I’m afraid, but I did want to say something about the Supreme Court’s decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, delivered last week. The decision is very significant insofar as it purports to uphold the approach to judicial review of administrative decisions implicating constitutional rights and vibes first outlined in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which had been severely criticized by both judges and scholars of administrative law, and whose validity was specifically left in doubt in Vavilov v Canada (Citizenship and Immigration), 2019 SCC 65, [2019] 4 SCR 653.
Co-blogger Mark Mancini has already explained what was at stake and made many astute observations about the case, in particular about the practical difficulties that are likely to result from it. I will not say much about the substance of the decision, on which I have little to add to my own previous criticism of Doré and its progeny and to Mark’s post, or its consequences. My focus is on SCFTNO’s disregard of legal authority and of the artificial reason of the law on which judges depend for no small part of their authority. Specifically, I will argue that SCFTNO is inconsistent with several important cases or lines of cases, including Vavilov, as well as recent cases on constitutional interpretation and, arguably, even Doré itself. Moreover, Justice Côté’s reasons for the unanimous court do not respond to the academic and judicial criticisms of Doré. In short, they make no effort to integrate the decision into the fabric of Canadian law. They are the work product of a court that does not understand or does not care about law at all.
As most readers will know, SCFTNO was a judicial review of the respondent minister’s refusal to exercise her discretion to allow several children whom section 23 of the Canadian Charter of Rights and Freedoms did not entitle to attend the applicant’s schools to nevertheless do so. This could have been decided simply enough, by pointing to Vavilov’s admonition that decisions that have very significant consequences for the individual concerned must be thoroughly justified and holding that the Minister’s justification was not sufficient. I think there is a fairly strong case for saying that a decision as to whether children can attend school in the language of their parents’ choice is a important one, calling for substantial justification. The case for holding that the reasons were insufficiently responsive would have been a closer one, but not implausible either. But the Supreme Court did not choose the easy route.
Instead, it held that “the Minister was required not only to consider the values embodied in s. 23 in exercising her discretion … but also to conduct a proportionate balancing of these values and the government’s interests”. [8] This is even though all concerned agreed that section 23 as such did not actually apply. Decision-makers, such as the Minister in this case, must consider “Charter values” and balance them against the government’s aims whether or not the rights associated with these values actually apply. For this proposition, Justice Côté cites Doré itself, as well as Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293. The courts will then review the decision on a reasonableness standard.
For Justice Côté, this is an easy case. “There can be no doubt about” the duty to consider Charter values “because ‘[t]he Constitution — both written and unwritten — dictates the limits of all state action’”. [65, citing Vavilov [56]] There is, moreover, “no reason to depart from [the reasonableness] standard of review”. [60] But for anyone who’s thought seriously about the issues involved, there are very good reasons for departing from reasonableness review and plenty of doubt about the propriety of forcing decision-makers to give effect to “Charter values”. It’s just Justice Côté doesn’t give a flying flamingo.
Start with deference. The same passage from Vavilov on which Justice Côté purports to rely here insists on correctness review for constitutional issues, though it specifically leaves the consideration of the standard applicable to judicial review of discretionary decisions affecting Charter rights to another day. If indeed what is at stake here is constitutional constraint of administrative discretion, the reasons for correctness review are obvious: the meaning of the constitution is a question for the courts, as Vavilov recognizes for every other context and as the Supreme Court had acknowledged long before. For example, as I noted in the article linked to above,
in Re Manitoba Language Rights, [1985] 1 SCR 721, the Court pointed out that ‘[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the constitution’ and any arrangement whereby constitutional compliance is left to the executive’s discretion “would be entirely inconsistent” with this duty. (7, citing Manitoba Language Rights at (754))
There is more. As I pointed out in that article and as Mark has argued in his own work on this subject, Vavilov pulls the rug from under the justification for reasonableness review that was given in Doré. The argument there had been that administrative decision-makers were experts in applying their “home statutes”, and that expertise extended to the application of constitutional values to the legislation. This was consistent with the rationale for broader judicial deference to the administrative state that the Supreme Court had given in the then-leading case, Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. But Vavilov rejects expertise as a rationale for deference, and endorses an altogether different one, namely legislative intent. It is not crazy (although still wrong) to suggest that the delegation of decision-making power to officials necessarily implies a delegation of interpretive power over the enabling legislation, which it has enacted, to the exercise of which courts can defer; it is in effect a sort of implied Henry VIII clause (*shudders*).
Yet a legislature cannot require, implicitly or explicitly, courts to defer to the executive’s views about the import of the constitution, no more than to its own: nemo dat quod non habet. If deference in constitutional cases is warranted, this can only be for reasons implicit in the constitution itself. It is worth noting that Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504, on which Paul Daly relies for the proposition that administrative decision-makers can consider the Charter specifically explained that this would not endanger the constitutional order because their decisions would be subject to judicial review on a correctness standard.
Thus, deference to administrative decisions implicating the Charter does not sit easily, to put it mildly, with Vavilov and with broader constitutional principle. At a minimum, Justice Côté ought to have explained on what basis such deference is now justified. But she could not be bothered. Instead, she went for the cheap rhetorical trick of claiming that her position was self-evidently right. If she did not see that this was not so, she is a much worse lawyer than I thought. If she did, she wrote in bad faith. I’m not sure which of these alternatives is worse.
Before leaving the issue of the standard of review, it is important to note that, as Mark points out, Justice Côté’s approach to reasonableness review is also inconsistent with Vavilov in two important ways. As Mark explains, “remarkably, it may be a requirement for decision-makers to consider Charter values even where not argued” by the parties. And, to quote Justice Côté again (though Mark makes this point too), while “[a]s a general rule, a reviewing court must not, in assessing the reasonableness of a decision, reweigh the factors underlying the decision”, [71] “the Doré approach requires reviewing courts to inquire into the weight accorded by the decision maker to the relevant considerations in order to assess whether a proportionate balancing was conducted by the decision maker”. [72] This is antithetical to any sensible definition of reasonableness review.
In other words, Justice Côté seems to have endorsed ― nay, required ― disguised correctness review when “Charter values” are at stake, while proclaiming that she “cannot see” why anyone would question the applicability of the reasonableness standard. I don’t know whether to laugh or to cry. This is simply unserious “reasoning”, unless Justice Côté is playing some sort of four-dimensional chess in order to quietly eviscerate deference in the guise of upholding it. More on why she just might be doing that below, but it is worth recalling that, when they play deference chess, judges can only lose, even to themselves.
Consider now the supposedly indubitable administrative duty to consider “Charter values” as part of the executive’s duty of compliance with the “unwritten constitution”. The most obvious thing to note here is that, after Vavilov, the Supreme Court decided Toronto (City) v Ontario (Attorney General), 2021 SCC 34, where the majority purported to cut the unwritten constitution down to size. To be sure, what was at issue there was a constitutional principle, not “Charter values”, and the claim was that the principle could be invoked to invalidate legislation, not just an administrative decision. Perhaps these are important distinctions, though to my mind that is not obvious. And of course I have argued here that City of Toronto itself was not at all convincingly reasoned. Perhaps Justice Côté agrees! But if so, she needs to say this. Instead, once again, she simply breezes past the difficulties and does not even begin to explain how she deals with them.
The broader point is one that Mark makes in his post. The idea that “Charter values” can be used to, in effect, expand the Charter’s protections, or at least (and I’m not even sure about that) some toned-down versions of these protections, to people who, by everyone’s admission do not benefit from them according to the Charter’s text is flatly inconsistent with City of Toronto and with the Supreme Court’s other recent decisions. As I have argued (and as others have noted too), the majorities in these cases adopted textualist and sometimes even originalist approaches to constitutional interpretation, according to which courts ― and, one would have thought, administrative decision-makers too ― are to apply the Charter’s text and not an expanded edition incorporating the Supreme Court’s own idea of what our constitution ought to be. Here, at least, City of Toronto, with its explicit rejection of the use of unwritten norms to expand the deliberately chosen wording of Charter rights seems pretty much on point ― and on more solid ground than in its broader attack on written constitutional principles, since in this it follows British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473.
For this reason, I am not persuaded by Professor Daly’s invocation of a “constitutional settlement” that has embraced “the decentralization of the Canadian Constitution”, by which he means the Supreme Court has allowed administrative decision-makers to decide constitution questions. It’s one thing to say that these decision-makers are required to endeavour to comply with the constitution. It is another, as I note above, to take the further step, as significant as it is indefensible, to demand judicial deference to these decision-makers’ views. But it is a further step still, and no part of a “settlement” as I will further explain below, to say that it is not just the actual constitution that has been “decentralized”, but also the vibes that the courts, and perhaps decision-makers too, feel when they dream about the constitution they would like Canada to have.
Be that as it may, Justice Côté again doesn’t deign to say anything about any of this. One thing she does do throughout her judgment is invoke the specialness of section 23 of the Charter. This provision “imposes positive obligations on the state” and “is therefore meant to alter the status quo”. [2] It also grants collective and not merely individual rights. But section 23 is unique in another way too. It is quite obviously the product of a careful political compromise, granting robust protection to some people and withholding it from others (subject, of course, to legislatures adding similar entitlements by statute, or indeed to the executive doing so in exercising statutorily-enabled discretion). As Benjamin Oliphant and I have noted, both early cases on section 23 and some more recent ones (though admittedly not all) have made a point of noting this origin and held that it ought to have consequences for how this provision is to be interpreted. This is consistent with how the Supreme Court has approached other cases involving positive obligations of the state and collective entitlements, such as British Columbia (Attorney General) v Canada (Attorney General), [1994] 2 SCR 41 (the Vancouver Island Railway Case) and Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511.
Needless to say, expanding the entitlements created by section 23 to (at least some) people not covered by it upsets the compromise the constitution embodies and is inconsistent with those cases that have emphasized its significance. Once again, Justice Côté says nothing about this, though she does note that the Court is not “endorsing freedom of choice of the language of instruction, a model expressly rejected by the framers under s. 23”. [103] Well, if the choice of the framers of section 23 matters to that extent, why doesn’t it matter in full? On a practical note, when parents in Quebec start relying on “Charter values” to get their children into English public schools, it will be time to get out the popcorn. Justice Côté is trying to caveat her way out of this problem, but that won’t be enough. As the Charter’s framers understood, sometimes you need bright line rules. The Supreme Court’s endorsement of “Charter values” undermines this choice too, as well as that which defined the scope of section 23.
It is surely no accident that an opinion so replete with incoherence, self-contradiction, and disregard of authority fails to engage in any sort of dialogue with both academic and judicial opinion on the issues it decides. I have already noted that I have criticized the Supreme Court’s jurisprudence mandating, or purporting to mandate, judicial deference to administrative decisions affecting rights. So has Jonathan Marynuk, here, and Edward Cottrill. Mark has pointed out that this jurisprudence had no justificatory leg to stand on after Vavilov, and I have made this argument too. Of course, it is a bit greedy to expect the Supreme Court’s to respond to one’s criticism of its decisions, if only in substance (I am not so naïve as to hope for citations). But only a bit. After all, Doré itself purported to respond to academic criticism of the Court’s earlier approach to administrative decisions implicating the Charter.
And even if the Supreme Court’s ignoring unruly academics is to be expected, the Doré framework generally and its reliance on “Charter values” specifically have been called into question by judges too. The best-known examples of this are probably the joint opinion of Justices Lauwers and Miller in Gehl v Canada (Attorney General), 2017 ONCA 319 and that of Justice Lauwers, with Justice Miller concurring, in ET v Hamilton-Wentworth District School Board, 2017 ONCA 893. In the former, Justices Lauwers and Miller point out that
Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application. Their use injects a measure of indeterminacy into judicial reasoning because of the irremediably subjective — and value laden — nature of selecting some Charter values from among others, and of assigning relative priority among Charter values and competing constitutional and common law principles. The problem of subjectivity is particularly acute when Charter values are understood as competing with Charter rights. [79]
These are compelling, or at any rate very serious arguments. Justice Côté has no answer for them.
And there is another noteworthy judicial critic of the Doré line of cases, as persuasive as any and more important than the others by virtue of her office. It is, of course, Justice Côté herself. This is why I suggested above, if only in bitter jest, that Justice Côté might be trying to undermine Doré while purporting to uphold it. Her joint dissent with Justice Brown in Trinity Western cautioned that rights claims are to be disposed of by applying “legal principles that guide the relationship between citizen and state, between private and public. And those principles exist to protect rights-holders from values which a state actor deems to be ‘shared’, not to give licence to courts to defer to or impose those values.” [265; emphasis removed and added] Chief Justice McLachlin and Justice Rowe, whom Mark quotes in his post, also challenged the legitimacy of the use of “Charter values”.
Hence, I do not think that one can speak of a “constitutional settlement” requiring the use of “Charter values”. It’s not just that the Supreme Court cannot effect a settlement that subverts the one reached by political actors who were amending the constitution in accordance with the relevant rules, though it certainly can do no such thing. But it is also, in addition, simply not the case that there existed ― until, seemingly, now ― a consensus on the Supreme Court itself, let alone within the broader judiciary and the Canadian legal community ― to the effect that such a settlement would be desirable or even defensible.
The Supreme Court’s failure to address any of these issues in a decision on a point of fundamental constitutional importance (and one that, whatever Justice Côté may say, was very much not open and shut), is a serious matter. Supreme Courts, as Justice Jackson famously observed, are not final because they are infallible but only infallible because they are final. If they are to have greater authority than that of ipse dixit, they cannot rely on finality alone. They need to engage in a reasoned dialogue with other courts and even, at least on occasion, with academics. They don’t have to agree with us; that much their finality means. But to act as if no one else had views worth considering on the issues they decide is a conceit that risks being fatal to their credibility. #LOLnothingmatters is the maxim of a troll, not a jurist.
The CSFTNO decision is inconsistent with precedent, as well as with constitutional sense, and instead of explaining itself it affects to be self-evidently correct. It refuses to engage with well-reasoned critiques of the precedents it purports to apply, effectively telling the critics, whether academic or judicial, not to bother engaging with the Supreme Court’s pronouncements. After all, even a Supreme Court judge can flip-flop from being a vigorous critic of an idea to its enforcer and not bother giving an account of her change of heart.
Years ago, I wrote here about a symposium I attended about “the responsibility of doctrine”. I took the occasion to discuss the very different, but nonetheless related, ways in which common lawyers and civilians use that word. The key similarity that unites them despite the differences is this:
The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. … And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.
Justice Côté’s opinion for the Supreme Court in CSFTNO disclaims its responsibility to be part of collective thinking about the law. It is an exercise of unreasoned power, a flex. No number of roadshows can restore the credibility of a court that behaves in this fashion.
Double Aspect 
Not a doctrinal or theoretical comment but an (armchair) sociological one.
This post criticizes Cote J for various things – e.g. she doesn’t care about the law; she is a poor lawyer or decided in bad faith; the reasoning is scant; the decision is unserious; the decision is incoherent/self-contradictory/contrary to authority; the decision employs cheap rhetorical devices etc. I agree with some of these criticisms but think some of the more personal ones misfire.
Cote J may be the public face of this decision but it bears the hallmarks of a decision drafted, and heavily influenced by, SCC law clerks. And SCC law clerks who are working in this area of the law for the first time. FWIW, I think the decision is a rather mediocre effort even judged by the standards of a new SCC clerk.
You may or may not be right; I’m not sure. But either way, the judge is responsible for what gets put out under his or her name.
I have been a regular reader of this blog since Vavilov, but this might be the last straw yet. You may or may not be right in your criticism of the decision; I’m not sure either. But either way, your post would be a lot easier to get through without the criticism of Cote J which come across as uncalled for and deeply unprofessional.