Sotto Voce

The Supreme Court has an inexplicable habit, especially in administrative law.

Much has been written about the Court’s uneasy—to put it mildly—relationship with precedent. Especially after Bedford/Carter, which expanded the grounds on which previous precedents can be discarded, stare decisis is less of a hard-and-fast rule and more of an option in hard cases. But official departures from stare decisis are not the only means by which courts can question precedents. Lower courts can sometimes overrule from below—arguably, this happened in the pre-Vavilov world, when the Federal Court of Appeal “tip-toed” around questionable Supreme Court cases: see Utah, at para 28.

There is another way. Recently, the Court has offered examples of “overruling” sotto voce—reaching holdings and engaging in reasoning that implicitly undermines previous cases without saying so. This habit is mildly annoying for those who try to offer clarity about the law, but it is also inconsistent with the Court’s own stated role; to clarify the law for lower courts and litigants.

This is not a new phenomenon. It was common in the pre-Vavilov world (anyone remember Association of Justice Counsel?) But recently it has picked up steam. Two examples. First, the Supreme Court’s decision in CSFTNO. This case holds that in the context of s.23 (minority language education rights), a Minister was required to consider Charter values underlying this provision, advanced by a non-rights holder. There is much to say about this, and I have already written about the theoretical and technical problems with this decision.  But there is one line of reasoning that, taken seriously, kicks the conceptual legs out from two recent cases in the law of interpretation: City of Toronto and Quebec Inc. Crudely summarizing, these cases basically held that the text of Charter is the object of interpretation, setting the outer bounds on the use of constitutional principles and purposes. These unwritten principles and purposes cannot overwhelm the text or supplant it.

But the Court in CSFTNO takes a rather different tack. It says that “[t]he choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision‑making process of the various branches of government.” This appears to reason from the purpose of the purported right in question, using that purpose to impose a duty on the government where there is no claimed right. As the Court of Appeal in CSFTNO said, this turns orthodox constitutionalism on its head.  This is the sort of methodology that was supposedly put to rest in City of Toronto and Quebec Inc. True, CSFTNO was not a case of constitutional interpretation per se. But it was a case that raised the scope of Charter rights, and the relative roles of text and purpose.

Maybe this approach is justified by the peculiar nature of s.23—a collective right that can be pierced by admitting non-rights holders. But if this is the case, we should expect the Court to say so, and to explain how and why this approach sits with its previous cases.

Consider next the Supreme Court’s decision in Mason, which dealt with issues pertaining to the standard of review of administrative action and international law. The case involved the Immigration Appeal Division’s [IAD] interpretation of the Immigration and Refugee Protection Act, as it pertains to a finding of inadmissibility. It is a basic rule of administrative law that parties must put their best food forward—they must lead all of their arguments at first instance. Why? Because administrative decision-makers have been delegated power to make decisions on the merits. If litigants could bypass decision-makers and raise new arguments on judicial review, courts would be arrogating to themselves a merits-deciding function, which is not an accepted role for the courts on judicial review.  This rule and its justification are longstanding, but was given particular expression by Rothstein J in Alberta Teachers.

Mason, of course, does not overrule Alberta Teachers. But it does, sotto voce, put it in an odd place in the pattern of Canadian administrative law. For a majority, Jamal J faults the IAD for failing to address certain legal constraints imposed by international law, an issue the Federal Court of Appeal did not address because the argument had not been raised before the IAD [116]. The IRPA does quite expressly contemplate the Refugee Convention being a major part of the interpretive context [117]. Perhaps, as Paul Daly opines, the IRPA’s commitment to international law is a “uniquely powerful, textually explicit commitment to implementing Canada’s international law obligations in the IRPA, which is unlikely to have similar force in any other context (save, perhaps, citizenship).” But, typically, the importance of the issue or the strength of the statutory signal would not obviate the need for a litigant to lead trump or risk losing. Is this a new exception to the general presumption in Alberta Teachers?

Abstracting away from the substantive issues themselves, the Court’s choices in CSFTNO and Mason raise difficult questions about judicial craft. We know that on a multi-member court, internal politics can drive decision-making. Nonetheless, the Court should be more alive to the fact that when it does things without saying so, and without explaining itself, its decisions read more as legislative declarations than reasoned judicial acts. In normal administrative law cases, this is bad enough. In Charter cases—like CSFTNO—it’s especially bad. The Charter was a significant grant of authority to judges. That delegation of power must have been made on the basis that judges would act judicially. When the Court leaves breadcrumbs in its decisions that could lead reasonable observers to doubt the propriety of previous cases, it raises the prospect that its caseload is a wilderness of single instances.