Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

A Strategy against Lethargy?

Can courts order the government to appoint judges promptly? It’s complicated, but probably not

In my last post, I summarized and criticized the Federal Court’s decision in Hameed v Canada (Prime Minister), 2024 FC 242, which declared that the government of Canada has a duty under the constitution to just get on with judicial appointments already. Emmett Macfarlane has made many similar points on his Substack as well. But, as I noted, while the actual reasons given by Brown J were very bad, that doesn’t mean there weren’t serious arguments to be made for the outcome he reached ― though I’m not sure whether any such arguments were actually put to him by counsel. In this post, I review these arguments.

By way of reminder, the way I see it, there are two key substantive issues, on which I focus. First, is the government’s failure to ensure timely judicial appointments judicially reviewable in principle? And second, if it is, is there a judicially administrable standard by which the constitutionality of government inaction regarding judicial appointments might be assessed? As to the first, the government’s objection has to do with the involvement of constitutional conventions in judicial appointments. As to the second, the difficulty is that there is simply no standard apparent in the relevant constitutional or statutory provisions.

In reality, the first issue breaks down into several different ones. As Mark Walters points out in a very important article on “Judicial Review of Ministerial Advice to the Crown“, “it is important to distinguish between decisions made by the Governor General based on ministerial advice and decisions of the Governor in Council”. The former include the appointment of Superior Court judges pursuant to s 96 of the Constitution Act, 1867; the latter, the appointment of Federal Court judges pursuant to s 5.2 of the Federal Courts Act. Failure to draw this distinction is a mistake in the identification of the conventions of judicial appointments committed in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which is carried over in Hameed as I mentioned in my last post.

Conventions are, indeed, involved in both situations, but in different ways. In the case of Governor in Council appointments,

Although it is only by virtue of convention that the legal powers conferred upon the “Governor in Council” are exercised by the Governor and present cabinet ministers, it is by virtue of law that these ministers, sitting as a committee of the Privy Council, participate with the Governor to make the decision. In these circumstances, ministers are not merely advising the Governor as to what he or she should decide; they are, as a matter of law, joining with the Governor to make the decision.

The law at issue is, so far as appointments under the Federal Courts Act (and other statutory provisions) are concerned, s 35(1) of the Interpretation Act. What this means, I think, is that there is no ministerial advice that can be reviewed ― or that could be unreviewable ― separately from the decision, or failure to make a decision, by the Governor in Council. Rather, so far as appointments to the Federal Court are concerned, if one can identify a legal duty to make such appointments in a timely manner and a judicially administrable standard against which the exercise of such a duty can be measured, the conventional aspect of the appointments powers is beside the point and there is no obstacle to reviewability.

Appointments on advice, i.e. those to the Superior Courts, are a different beast. Here, conventions do matter. But, as Professor Walters argues, this is not to say that they are not reviewable. Professor Walters’s article is a comment on the challenge brought by Aniz Alani against the then-Prime Minister’s policy, first implicit and then overt, of not making appointments to the Senate. (I blogged about it here.) As he notes, the government’s response was to argue

that the Crown has the legal authority to act and the minister’s role is only to advise, and it will be added, with emphasis, that the advice is given as a matter of constitutional convention only and so cannot be the subject of judicial review. In this way, executive power may be exercised in a legal black hole. (35)

Professor Walters suggests that there are two potential “way[s] to address this worrisome conclusion”. (35) Of these,

One … is to question the assumption that constitutional conventions are never justiciable. Perhaps the time has come to contemplate the possibility of at least declaratory judicial relief when ministerial advice flouts established conventional rules. In this way, the veil of law would be pierced to reveal where real power lies. (35)

This is the approach Brown J took in Hameed, but he did so in a very clumsy, and indeed quite untenable, manner. I will return to this possibility below, because more can be said about it. But first, let me recount the other option outlined, quite persuasively in my view, by Professor Walters.

Professor Walters argues that “[t]he idea that ministerial advice to the Crown is a matter unknown to and outside the law … is a misunderstanding that results from the confusion between law and convention”. (37) It is law ― specifically, s 11 of the Constitution Act, 1867 ― that sets up the Privy Council as a body of advisors to the Crown. Convention, of course, is both what dictates that its advisory function is exercised, from time to time, by the ministers for the time being, and that the Crown is required to follow its advice. But the giving of advice, as such, is no more and no less than the Privy Council’s legal duty. And if the advisors fail in the discharge of this duty by offering advice that is unlawful or unconstitutional in itself (e.g. because it was procured corruptly) or because it will result in the Crown breaking the law, they can be held accountable for that:

Ministerial advice to the Crown, though triggered by convention, is given in the performance of a legal duty by ministers who hold a legal office, and the common law has always regarded ministers as legally responsible for the advice they give. Ministerial advice does not operate within a legal black hole. Of course, the old authorities … contemplate either a criminal prosecution or an action in tort, with examples of fraud, corruption, malicious abuse of public office, or flagrant neglect of public duties being given. I am not suggesting that the law historically acknowledged a modern remedy of judicial review of ministerial advice based upon public law principles of rationality, legality and fairness. I do think, however, that once the domain of ministerial advice is understood to be one governed by law, the forms of law that discipline advice must be understood in the usual legal way as expanding with the incremental developments that have shaped modern public law generally. (39)

I find this compelling. And I think that the UK Supreme Court’s judgment in  R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 (Miller II) can be understood as giving effect to this approach to ministerial accountability. This was a case where the UK Supreme Court treated as reviewable the advice given by the Prime Minister to the Queen to prorogue Parliament. As the Court noted,

the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter. That situation does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament. [32]

The appointment of Superior Court judges is not, to be sure, a prerogative power, but one set out in constitutional legislation, but I don’t think that changes the situation. If Canadian courts follow the Miller II approach, then the decisions of the persons and entities with the constitutional responsibility to have regard to the relevant interests, in this instance those of the judiciary and of the litigants who come before it, should be amenable to review, because there can be no suggestion that the Governor General is “other than obliged by constitutional convention to accept [their] advice” ― or, more to the point, prevented from acting in the absence of advice.

Now let’s consider the argument for the justiciability of constitutional conventions. For my part, I have long found the orthodox account of conventions as radically different from legal rules quite unpersuasive. This is not because conventions are judge-made rules, as Brown J claims, but rather because the distinction between rules that have a judicial origin and those that originate in politics simply does not matter very much. Statutes originate in politics too, after all. And of course common law rules aren’t always “judge-made” in the crude Benthamite sense. Many originate in the practices of other actors, commercial ones for example, and/or in the principles embedded in the legal system. Courts can identify such rules ― though, unlike Brown J, they must do so rigorously and carefully ― and apply them.

The trouble with this argument is that most people don’t agree with it. More importantly, apex courts don’t agree with it. As I am about to suggest, they no longer adhere to the orthodox rigid distinction between law and convention either, but nor are they prepared to simply accept what the Patriation Reference, Re Resolution to Amend the Constitution, [1981] 1 SCR 753, described as the crystallization of convention into law. The majority in the Patriation Reference is clear about this, and has never been directly repudiated in Canada or elsewhere. Indeed it was endorsed by the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61, and it too hasn’t been directly repudiated. I can and will go on thinking that these cases are wrong, but a judge bound by one or the other cannot act if it didn’t exist.

But that’s not the end of the matter either. While things are not especially clear, Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 may suggest a workaround to the dichotomy between law and convention asserted in the Patriation Reference. In that opinion, the Supreme Court relied on the concept of a “constitutional architecture”, which has something to do with “[t]he assumptions that underlie the [constitutional] text and the manner in which the constitutional provisions are intended to interact with one another”. [26] A law that would interfere with this architecture is as unconstitutional as one that contravenes an explicit provision of the constitution. Because the Court’s definition of “architecture” is sparse if not cryptic, there are different views on what it encompasses. I have argued that “architecture” is, simply put, a codeword for conventions. Others who have written on the subject may take a somewhat different view of the matter, but at any rate I think there is a credible argument to be made that advice, or perhaps even more so lack of advice, to the Governor General is, in principle, judicially reviewable if it would result in the undermining of “assumptions that underlie the text” of the constitution, regardless of the involvement of conventions in the process.

So where does that leave us? Recall that, for now, we have only been considering the first issue in Hameed: whether the government’s failure to ensure that judicial vacancies are filled in a timely fashion is in principle amenable to judicial review. I have argued that the answer is yes so far as Governor in Council appointments to the Federal Court are concerned, in the same way as failure to perform a statutory duty by any official or entity. The case of Governor-acting-on-advice appointments to the Superior Courts is less clear, but there are strong arguments for their being reviewable too, either on the basis of legal accountability for unlawful advice expounded by Professor Walters and demonstrated in Miller II, or through the invocation of the constitutional architecture referred to in the Senate Reform Reference.

Assuming that the government’s slowness in appointing judges is reviewable in principle, the question nevertheless arises whether there is legal standard by which it can be judged. Or is the pace of judicial appointments the kind of policy or discretionary matter that can only be subject to political, but not legal, accountability? (It is worth emphasizing that political accountability is important and should be pursued regardless of whether legal accountability is (also) available!) As I wrote in my last post, Brown J’s invention of a convention of prompt appointments to serve this purpose is indefensible. Even if violations of conventions are justiciable, they have to be real conventions that exist out there in the political world, and not judicial concoctions. Is there something else?

This is not obvious, to say the least. It is entirely fair to note that both the Constitution Act, 1867 and the Federal Courts Act make the appointment of judges pursuant to their respective provisions mandatory, using the word “shall”, and that, as Brown J suggests, it would be disturbing if the executive could undermine legislative choices as to the number of judges by refusing to fill the judicial positions created by provincial legislatures and Parliament. At the same time, no one, including Brown J, actually believes that any vacancy existing for any length of time is ipso facto a constitutional or statutory violation. The mandatory language in the relevant provisions is, it would seem, subject to an implicit qualification accepting at least some degree of churn ― and executive discretion.

That said, this discretion cannot be unlimited either ― Roncarelli v Duplessis, [1959] SCR 121, tells us this much. A Roncarelli-like scenario, where the executive misused its discretion for an improper purpose ― for example to punish a recalcitrant court by refusing to make appointments ― should be easy for a court to deal with. This is not a far-fetched hypothetical: think, again, about the Alani litigation concerning the Senate, and also of the delays in making appointments to the Supreme Court after the debacle of l’Affaire Nadon. But I don’t think that there is any suggestion of improper motive in the current situation; that would be, to quote the one and only Sir Humphrey Appleby, to mistake lethargy for strategy.

Professor Walters suggests what might be a further constraint on advice-giving discretion:

at least in those cases where the reasons for advice are publicly given or can otherwise be established through evidence … the question of whether those reasons are consistent with constitutional values and structure may well be, in the appropriate circumstances, a question of law for the courts to determine. (40)

But that doesn’t help much. The whole problem in Hameed is that there is no advice, and seemingly no specific reasons for the lack of any. Again, lethargy, not strategy. Moreover, even apart from that, a government may be able to argue (though I take it that it has not in fact argued) that its slowness in appointing judges is due to the difficulties it encountering in balancing relevant values, such as diversity, with the operational needs of the judiciary. If the reviewing court is inclined to be deferential ― and, as the Supreme Court reminded us in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, courts are supposed to be deferential to executive value-balancing, whether that makes any sense or not ― then this may well be enough to let the executive off the hook.

Lastly, there is the Miller II move: there, the UK Supreme Court said that prerogative powers are implicitly limited by constitutional principles, such that any use of the prerogative that undermines relevant principles needs to be justified by the executive as being proportional to the interference with the principles in question. There is at least an argument for treating constitutionally codified powers in the same manner as prerogative ones ― though I’m not sure that’s right. If this argument is accepted; and if, further, the Miller II reasoning is to be taken at face value; then it might work in the specific circumstances of Hameed, the government having, rather like in Miller II, not bothered to justify itself. But, for my part, I am not at all convinced that Miller II should be taken at face value: I have argued that, instead, what it really did was to enforce a putative constitutional convention governing the permissible length of prorogations, identified pursuant to an implicit application of the same sort of test I described in my last post. If that is so, then we are back to square one, since there is no plausible constitutional convention to be enforced here.

So there you have it: I think that failure to ensure that judicial appointments take place to fill the vacancies on Canadian courts is, in principle, judicially reviewable, but there is probably no standard by which timeliness of appointments, as opposed to something like an outright refusal to make any, could be assessed, which makes the question ultimately non-justiciable. That said, I am more confident about the first part of this conclusion than the second ― that is, about reviewability-in-principle than about the lack of standards. This case is complicated, and closer than I thought at first.

What isn’t close is the underlying question of what needs to be done. The government should just get on with making those judicial appointments. They may well have sound arguments for avoiding being told to do so by a judge. But this should never have come to litigation in the first place. The Alani case ultimately became moot when the government accepted its constitutional responsibility for appointing Senators. Ideally, Hameed should be concluded in the same manner.

Putting the Courts Together Again

The Federal Court orders the government to get on with appointing judges. But its judgment is very badly flawed.

Yesterday, the Federal Court delivered a decision declaring that the Canadian government has a constitutional duty to ensure timely judicial appointments and setting out specific targets to attain: Hameed v Canada (Prime Minister), 2024 FC 242. The outcome is a startling one, but it is Justice Brown’s reasons that are truly remarkable, and not in a good way. The outcome, indeed, might even be defensible, at least in part, though I doubt it. But Brown J’s reasons are pernicious.

Hameed is something of a constitutional law professor’s crazy exam hypothetical. The bottom line is simple enough. The federal government has long been slow to appoint judges to vacancies that arise, despite warnings from the legal community and indeed entreaties from various institutions and leaders, including, notably, a strongly-worded letter from the Chief Justice of Canada. Is this tardiness unconstitutional on the basis that the government has a duty to fill judicial vacancies promptly as they arise? But to answer this question, or more precisely for the federal court to answer this question, an impressive number of issues need to be addressed, from standing, to federal court jurisdiction, to evidentiary issues, to the nature of the alleged duty, to the remedy. And pretty much each of these issues falls somewhere on the spectrum from not-altogether-straightforward to really quite complex.

The substantive heart of the case, however, has to do with just two issues. First, is the government’s failure to ensure timely judicial appointments judicially reviewable in principle? And second, if it is, is there a judicially administrable standard by which the constitutionality of government inaction regarding judicial appointments might be assessed? This framing, to be clear, is mine, not Brown J’s, and heavily influenced, on the one hand, by the UK Supreme Court’s decision in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373, and on the other, by Mark Walters’s illuminating article on “Judicial Review of Ministerial Advice to the Crown“, neither of which is cited in Hameed despite their relevance.

In this post, I describe Brown J’s approach to these two issues and explain why it is wrongheaded. In a follow-up post, I will explain why, nonetheless, the outcome of the case on a proper approach to these issues is a close issue that deserves much more careful thought than Brown J has given it.

Whether the government’s role in ensuring timely judicial appointments is justiciable at all, let alone in the Federal Court, is a difficult issue because of the involvement of constitutional conventions. Brown J draws on the Federal Court’s discussion of these conventions in Democracy Watch v. Canada (Attorney General), 2023 FC 31, which found that

By constitutional convention, when appointing judges to provincial superior courts, the Governor General acts on the advice of the Committee of the Privy Council of Canada. Similarly, the [Governor in Council], which appoints judges to the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada, is defined in the Interpretation Act … as the Governor General acting on the advice or consent of the Privy Council for Canada. The Privy Council is composed of all the ministers of the Crown, who meet in the body known as Cabinet … As such, all federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice … In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet. [9]

Unfortunately, this description contains two important mistakes. The most glaring but less consequential one lies in the description of the Privy Council as “composed of all the ministers of the Crown, who meet in the body known as Cabinet”. As Professor Walters explains,

The Privy Council for Canada is established by section 11 of the Constitution Act, 1867 and consists of all present and former ministers of the Crown as well as a variety of other members. … [I]t is only by virtue of convention that the legal powers conferred upon the “Governor in Council” are exercised by the Governor and present cabinet ministers. (34; emphasis in the original)

In other words, the Cabinet is the political, conventional entity through which the legal body that is the Privy Council acts; they are not the same. The second mistake is more subtle but more consequential: it consists in conflating judicial appointments by the Governor General and those by the Governor-in-Council. I will return to it in the follow-up post, though you will know what I’ll say there if you read Professor Walters’s article in the meantime.

Back to Brown J’s reasoning. On the orthodox view of Westminster-type constitutions, constitutional conventions are, in Dicey’s famous words, “not in reality laws at all since they are not enforced by the courts”. Is it the case, then, that in asking the court to require the Cabinet to provide its conventionally-mandated advice to the Governor General, the applicant is seeking to have a convention enforced, which cannot be done?

Brown J says no. He cites the Patriation Reference (though he at times misnames it as the Repatriation Reference), Re Resolution to Amend the Constitution, [1981] 1 SCR 753, for the proposition that while courts cannot enforce a convention, they can issue a declaration stating its import. Moreover, the conventions regulating judicial appointments

form part of Canada’s federal constitutional common law in the sense they are judge-made rules which the courts are entitled and may recognize in the appropriate case through the Court’s declaratory power, notwithstanding they are not laws that may been [sic] enforced by the courts. [122]

A breach of this “federal constitutional common law” by the Cabinet is reviewable by the Federal Court, in the same way as a breach of any federal law by a federal official is reviewable under the Federal Courts Act.

This is fundamentally wrong. As a matter of positive law as well as learned orthodoxy, it is absolutely not the case that conventions are a form of “constitutional common law”. Indeed, the majority opinion on the legal question in the Patriation Reference explicitly rejects this very view. In dismissing the idea of a “crystallisation” of conventions into legal rules, it says:

The leap from convention to law is explained almost as if there was a common law of constitutional law, but originating in political practice. That is simply not so. What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute. (784) 

As I will explain in the follow-up post (and as longtime readers will know), I am no fan of the Patriation Reference legal question majority. But it is binding on Brown J, whether he is a fan of it or not! He does not refer to this passage, which strikes me as very poor judicial craft. Moreover, the one thing that the Patriation Reference unquestionably does get right is that conventions “originat[e] in political practice”; in no way, shape, or form are they “judge-made”. As the UK Supreme Court put it in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 “[j]udges … are neither the parents nor the guardians of political conventions”. [146] One can object to the “guardians” bit; but it undeniably true that judges are not the “parents” of constitutional conventions.

And the idea of common law rules that aren’t enforceable by courts makes no sense at all; statutory provisions can be made unenforceable (as parts of the Official Languages Act used to be), but the common law doesn’t exist apart from judicial enforcement. If conventions are just common law rules, then they are in principle enforceable, subject to justiciability concerns in specific cases, and not merely declarable.

Brown J’s treatment of the issue of the standard by which to assess the government’s inaction is, if anything, even more cavalier. He points out that “Parliament has determined what it considered an appropriate number of judges required by the Superior Courts, including the Federal Courts, …. in legislation authorizing that number of appointments” and that failure to appoint these judges not only undermines the judiciary but also amounts to “Canada’s executive government … ignor[ing] the express will of Parliament”. [126] I have no quarrel with that ― on the contrary, this is an important point for, at the very least, the government to consider, whether or not it can also give rise to judicial remedies. But what follows is not so sensible.

The key passage deserves to be set out at some length. Brown J writes that

[T]he acknowledged constitutional convention that it is the exclusive authority of the Respondents to advise in respect of vacancies necessarily implies the related constitutional convention that judicial vacancies must be filled as soon as possible after vacancies arise, except in exceptional circumstances.

In this connection, nothing suggests Democracy Watch, which affirmed the existence of the convention, is the last word on the subject. … 

[T]he Court should now recognize that the relevant constitutional conventions include not only the responsibility to take steps to fill vacancies as soon as possible, but in this appalling and critical situation, to materially reduce the present backlog to what it was as recently as the Spring of 2016, that is to reduce the vacancies to the mid-40s across the federally appointed provincial Superior Courts and Federal Courts. [129-131]

This is just terrible. A court cannot simply will “conventions” into existence because they would be useful. The most charitable interpretation I can give to Brown J’s approach here is that he is getting high on his own supply, namely on the confusion between conventions and “judge-made” common law. But, pace Bentham, even those who would describe the common law as being “judge-made” (not an uncontroversial description), would not countenance such blithe creation of new common law rules for no other reason than their seeming desirability. At the very least, there are concerns about the limits of the judicial role in the development of the law that must be addressed.

If one accepts that it is appropriate for courts to address constitutional conventions, then one must adopt a rigorous approach to identifying them. Indeed, this is no different from what a court will do when dealing with common law or statutory rules ― it will carefully analyse precedents or interpret the legislature’s words, and not just say that a rule must exist to deal with this or that exigency. The methods for identifying the relevant rule vary depending the rule’s type, but not the need for a method.

There are two methods for identifying conventions. The easy one is by relying on authorities ― one can think, for example, of Andrew Heard’s magisterial book Canadian Constitutional Conventions. The harder one, given the imprimatur of the majority opinion on the conventional question in the Patriation Reference, is a test first developed by Sir W. Ivor Jennings, which asks whether there are precedents for the alleged conventional rule, whether the constitutional actors involved followed the rule out of a sense of obligation, and whether there is a constitutional reason for the rule.

Brown J doesn’t even pretend to follow either of these methods for identifying the purported convention requiring prompt judicial appointments. He points to no authority. Nor does he identify any precedents. This case, of course arises precisely because the government evidently does not follow the alleged rule and does not consider itself bound to do so. Now, that is not fatal: the Patriation Reference also arose out of the actions of a government that refused to recognize and be bound by a conventional rule. But there the Supreme Court pointed to a long course of past practice and acknowledgment of its binding character. That is entirely missing from Brown J’s reasons.

He thinks that he can simply conjure up a convention nobody’s thought of before, because past decisions don’t get “the last word on the subject”. But the question isn’t whether a case is “the last word”. It’s what conventions actually exist out there in the real world. It is bad enough when courts start “giv[ing] constitutional benediction” to new rights whose time they think has come, as the Supreme Court did in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245. But awful as that was, still the words of the constitutional text, however distorted from their original meaning, provide some modest measure of constraint even on wilful interpreters. If courts can give benediction to dreamt up conventions, there really isn’t anything they cannot add to the constitution just because they feel like it.

I cannot help but think that Brown J was so completely blinded by what he perceived as the practical necessities of the situation as to cut every corner imaginable on the way to a result of whose vital importance he was convinced. He begins his judgment by asserting that “[a]t its core, this matter concerns” the Chief Justice’s letter to the Prime Minister regarding the pressing need for judicial vacancies to be filled. [1] He is determined not to “allow the current untenable and crisis number of vacancies to remain unacceptably high with the negative consequences set out in the letter”. [126]

But that’s not how this judging business works. A court case is never about a letter sent by a non-party. I hesitate to speak to the letter’s admissibility, not only because this post is long but also, and more importantly, because the law of evidence is not my forte. But let me just note my puzzlement at Brown J’s repeated reference to that letter as “expert opinion” [12] and indeed “expert evidence” [124] when the Chief Justice wasn’t a witness. Be that as it may, a court case can only ever be about the law. Brown J lost sight of that altogether, and produced one of the more staggering judgments I can think of in a long, long time. (I should note, in fairness, that, assuming his account of the parties’ arguments is complete, he may have been very poorly served by them, especially the applicant.)

The irony is that there would have been serious legal issues to discuss, and a decision based on careful legal argument would have much better served the cause that Brown J tries to advance. And it is not a bad cause. The slowness of the federal government’s judicial appointments has been discussed, so far as I remember, from its early days in office. When the Chief Justice and Brown J denounce the current state of affairs, they are not wrong. I can only hope that the government takes the underlying message Brown J is trying to send seriously. But if the Canadian judiciary is broken, or nearly broken, the way to put it back together again is not by judges taking the need to do so for a warrant to do it. “Something must be done” is not a legal argument. As I said, I will try to consider actual legal arguments in my next post.

#LOLNothingMatters

The Supreme Court’s decision to uphold deferential review of administrative decisions that implicate “Charter values” is deeply unserious

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.

Bonkerstown Bypass

The “math is racist” decision is overturned―on narrow grounds that give little guidance for the future

Last week, the Court of Appeal for Ontario issued its decision in Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788. The case was the appeal from the notorious “math is racist” decision of the Divisional Court,  Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, about which I blogged here. The Court of Appeal, contrary to the Divisional Court, holds that the math and pedagogy test (the Math Proficiency Test [MPT]) that aspiring teachers are required to take in Ontario does not discriminate against non-white candidates. But the decision’s scope is very limited. It is based on additional evidence that was not available to the Divisional Court, and while it provides useful guidance on assessing evidence in cases alleging violations of the Charter’s equality guarantee, it neither calls into question the legal framework applicable to such cases (which in fairness, is not the Court of Appeal’s role) nor points out the Divisional Court’s public law mistakes.

Justice Monahan, writing for the unanimous court, sets out the basis for the decision quite succinctly:

The Divisional Court made its findings based on the July 2021 Data, which recorded the results from the approximately 3600 candidates who had attempted the MPT by July 26, 2021. The July 2021 Data disclosed that … White candidates had passed the MPT at a materially higher rate than had racialized candidates.

The July 2021 Data before the Divisional Court provided a preliminary and incomplete basis for assessing the impact of the MPT on entry to the teaching profession. Candidates who had not passed the MPT could rewrite the test an unlimited number of times, and fewer than half of the candidates who would eventually attempt the MPT in 2021 had done so by July 26, 2021. This was an insufficient evidentiary record that failed to discharge the respondents’ onus under s. 15(1) of the Charter.

… December 2021 Data discloses that of the 8350 candidates who attempted the MPT one or more times during 2021, 95% were successful, including 93% of candidates from racialized groups. Moreover, had the MPT been available in 2022, candidates who had not succeeded in 2021 would have had the opportunity to retake the test. Thus, the ultimate disparities in relative success rates between different demographic groups might well be even smaller than the relatively modest differences observed in the December 2021 Data. [6-8]

What matters, according to Justice Monahan, is whether the white and non-white test-takers are able to enter the teaching profession at similar rates, not the outcome of any particular test attempt. There is no evidence that having to retake the test is a material disadvantage; there is no need to wait any significant amount of time before resitting; no harm ― no foul. This is sensible so far as this particular arrangement is concerned, but note how little the decision really matters for the future: in effect, the test is upheld because failure has no meaningful consequences. The test isn’t really much of a test.

Justice Monahan’s comments about statistical evidence in discrimination cases are worth noting, but they too might turn out not to be very consequential. He points out that “the number of candidates who had self-identified as members of racialized groups” in the data considered by the Divisional Court

was quite small, representing a fraction of the total number of MPT test takers in 2021. Moreover, because the absolute numbers were small, relatively small changes in the numbers would have an outsized impact on the success rate (expressed in percentage terms) for racialized candidates. [71; footnote omitted]

Justice Monahan adds that “the Divisional Court did not explain why it was appropriate to draw firm conclusions about the impact of the MPT on racialized teacher candidates in Ontario from such a small sample size”. [71] But that is not fair. The Divisional Court did address this concern. It wrote that demanding more extensive data

is akin to suggesting that more racialized candidates must attempt and fail the MPT to accumulate the data necessary to show a disproportionate impact. The fact that a greater adverse impact could be demonstrated over time does not mean that there is no adverse impact now. While evidence is necessary, it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory. [Div. Ct., 85]

Of course, the flaw in this reasoning is that it presumes that early trends will simply continue. We know now that they did not, and this might have been anticipated in the circumstances, as the resit attempts allowed groups that were not initially as successful as others to catch up. But then again, the catching-up would presumably not have happened if there had in fact been some deep problem with the test. As I wrote in my post about the Divisional Court’s decision, “[t]here is a logic to” saying that “it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, though “but “that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture”.

In other words, a difficult question arises here: how does a court faced with a disparate impact discrimination claim balance the need for sufficiently robust data to support it against the concern about making people wait and suffer discrimination? It is the Court of Appeal that doesn’t explain why it disposes of this question as it does, even as it chides the Divisional Court for its alleged failure to explain itself. The explanation, I suspect, is implicit: facts are stubborn things, as John Adams long ago pointed out, and once the more complete data are admitted into evidence, it would take a peculiarly bloody-minded court to ignore them. But of course this too doesn’t give future litigants and courts a great deal of guidance.

Perhaps this is because the Court of Appeal is simply stuck with a legal framework foisted on it by the Supreme Court, and could not resolve the paradoxes that this framework throws up even if it tried. The difficulties I have just outlined are inherent in allowing statistics to ground claims of unconstitutional discrimination even if no one can offer a plausible hypothesis about how these statistics have come to be. A general invocation of “systemic racism/sexism/discrimination” isn’t an explanation of course ― it simply begs the question. Getting rid of disparate impact claims entirely would of course solve these problems. Short of that, one might at least require a claimant to explain exactly how the system works to produce this specific set of disparate outcomes. Statistical evidence would then be no more than useful supporting evidence, rather than the foundation of the claim, and its weakness would be less of a concern. In any case, these are things for the Supreme Court to think about.

What the Court of Appeal could and should have done better with is the basic question of the issue in this case and, relatedly, the standard of review and the eventual remedy. Justice Monahan describes the issue as “[d]id the Divisional Court err in finding a prima facie breach of s. 15(1) of the Charter … and [d]id the Divisional Court err in holding that any infringement of s. 15(1) caused by the MPT is not justified under s. 1 of the Charter?” [64] But this is ambiguous as to the nature or cause of the alleged “prima facie breach” or, to use more textually grounded language, limitation of the s 15(1) right. Is the claim that s 15(1) is limited and eventually breached by the specific test that was administered to would-be teachers, or to the statutory provisions authorized it?

The distinction doesn’t just matter for the sake of intellectual rigour. Under existing Supreme Court precedent, it makes a difference to the standard of review. If only the actual test that was administered is at issue, it should arguably be reviewed as a discretionary decision, and thus subject to deference under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and its progeny. If the statutory provisions themselves were being challenged, then correctness review was in order. The Court of Appeal follows the Divisional Court in applying correctness review, but doesn’t explain whether and why the provisions authorizing a test were being challenged despite the evidence dealing almost exclusively with the test that was actually administered and its outcomes. And of course, if the Court of Appeal had upheld the Divisional Court’s findings, the proper remedy would also have turned on the nature of the claim. As I wrote in my post about the Divisional Court’s decision, I don’t think there was a basis for invalidating the legislative provisions enabling the test, and yet the Divisional Court did just that. It looks like the Court of Appeal could have done the same, and we are none the wiser as to why.

The Court of Appeal’s decision is, obviously, better than the alternative. That alternative, as I wrote in my post, was “desperately sad”:

The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. … This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

But the survival of this particular test, for no more compelling reason than that it doesn’t ultimately prevent any significant number of people ― of whatever race ― from becoming teachers, isn’t exactly a cause for joy. The contrary outcome would have been bonkers, but the Court of Appeal doesn’t, and in fairness can’t, prevent it from occurring in a future case. It merely bypasses, for now.

Montreal and Aboriginal Law

Is Montreal built on unceded Indigenous land? No, actually

Guest post by Maxime St-Hilaire

This post is translated and adapted (by L.S.) from the original version published at À qui de droit

I have recently had an email exchange with a colleague from McGill, and noticed that their signature included the following statement: “McGill University is located on unceded Indigenous land Tiohtià:ke – Montreal”. Tiohtià:ke is the Mohawk name of the Monreal area. As the colleague in question is not an expert in this area, I surmise that this assertion is in more or less common use at McGill. 

And not only there. For instance, on October 26, 2021, Radio-Canada’s “Indigenous Spaces” page published an op-ed by a “lawyer specializing in aboriginal law for about 10 years” under the heading “Montreal, unceded territory: what does the law say”? Here is an excerpt:

Montreal is an unceded Indigenous territory. This is an unchallengeable fact. You can search the archives night and day, you will find no evidence to the contrary. Never did an Indigenous nation give these lands to the ancestors of the non-Indigenous Canadians.

Indeed, what really happened was quite different. When Jacques Cartier made his first visit, having erected his cross at Gaspé, and when de Maisonneuve et Jeanne Mance first began settling the island, they didn’t ask for anyone’s permission. They unilaterally decided to take possession of these lands as if they had been unoccupied.

Already the following year [i.e. after the foundation of Montreal], the Guardians of the Eastern Gate of the Haudenosaunee Confederation (i.e. the Mohawk) set out on a reconnaissance mission to meet the new French settlers. A series of Iroquois raids on Ville-Marie [as Montreal was then known] follows, in an attempt to dislodge the invaders. Thus, by then, the Mohawks already occupied the Upper-Saint-Lawrence region.

Claims to the effect that these lands were unoccupied are rooted in the discovery myth, also known as the terra nullius doctrine.

Of course, there is a debate as to which Indigenous people occupied the territory of the island of Montreal. Anichinabé, Mohawk, Abénaki and other Indigenous nations may have done so at one point or another in their history. The island may have served as a gateway or a shared space. But this debate (which the nations concerned should settle themselves) takes nothing away from the fact that Indigenous peoples were present on the island before any of those whose ancestors got off a boat.

This gets any number of things wrong. The op-ed purports to answer the question “what does the law say?”. But as a matter of positive Canadian state law, the 2005 companion cases of Marshall and Bernard suggest that, in order to claim Aboriginal title to a territory, an Indigenous group must have occupied it exclusively (and “sufficiently”) at the moment of the British assertion of sovereignty. So far as Montreal is concerned, the relevant time is that of the Treaty of Paris and the Royal Proclamation: 1763. Yet at that point, the island of Montreal was not occupied by any Indigenous people in the necessary way.

Moreover, it is pointless to look for a cession in an area where, as a matter of fact, European settlement only occurred outside the territories occupied by Indigenous peoples ― as seems to have generally been the case in New France (see Michel Morin and also Sylvio Normand’s writings). Thus, even if we were to ignore the importance of the British assertion of sovereignty in Canadian law, and set the relevant time earlier, back to French settlement of Montreal, still it would be fruitless to look for cession or to describe this territory as “unceded”.

And furthermore, while French public law and treaties were not given effect by British and then Canadian law following the conquest of New France (see the 1996 Côté case), it is important to understand that France never applied to the terra nullius doctrine to the Indigenous peoples. Rather, alliance treaties were concluded with them. And, so far as international law was concerned, this doctrine was rejected by the Pope as early as 1537. The weight of the scholarly opinion was also against it.

Lastly, we must come back to two key historical facts. First, it is far from a given that the present-day Mohawk are the descendants of the Saint-Lawrence Iroquois, who had dispersed by 1580 (John P. Hart, Jennifer Birch and Christian Gates St-Pierre). And second, however that may be, and whatever the history of the Iroquois and Mohawk presence in the “Upper-Saint-Lawrence region” ― a region vastly larger than the island of Montreal alone ― the island itself was seemingly not occupied by the time of French settlement in 1642, let alone British conquest.

One final thing: let me point the reader to a series of posts (here, here, here, here and  here) over at À qui de droit on the myth of the “discovery doctrine”.

A Squalid Policy

The UK Home Secretary wants to ban homeless people’s tents

The Financial Times’s Peter Foster and Lucy Fisher report on plans by the UK’s Home Secretary Suella Braverman to crack down on those who are called “rough sleepers” on this side of the pond, or simply homeless people on the other. They would be banned from sleeping in ― and charities that help them would be banned from distributing ― tents. The report quotes predictable and understandable criticisms of this on the merits, but I would like to make a different point about Ms Braverman’s plan: namely, that it is yet another example of a policy that seeks to nudge people by “crapping on them”, to use the language of that noted political philosopher Emmanuel Macron.

To be a bit more specific, unlike most laws ― good or bad, smart or stupid ―, which appeal to either the moral sense or the self-interest of the people who are supposed to comply with them (or, frequently enough, to both), some operate by triggering emotional responses, from exasperation, to disgust, to fear. I have written about this a number of times.

First, in the context of Canada’s prostitution legislation and, also, of prohibitions on flavoured tobacco products. I argued that, while the former is often roundly (and I think rightly) condemned and the latter broadly accepted and indeed welcomed,

[i]n both cases, the government (and advocates urging it on) seek to deter a behaviour that prevailing morality finds reprehensible (the sale of sex, the use of tobacco) not by prohibiting it, but by subjecting those who engage in it to the heavy pressure of their own negative emotions (fear, disgust).

Something similar is at work in the widespread prohibitions on “human smuggling” ― that is, unlike human trafficking, is the transportation of consenting, indeed willing, persons across borders they are prohibited from crossing. The effect of these bans is to raise the cost of the smugglers’ services: not just the pecuniary cost of course, but also the riskiness and the exploitativeness. As a result,

[w]e say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality … we create incentives for the smugglers to exploit them. 

Anti-smuggling laws work similarly to prostitution legislation that follows the “Nordic model”, as Canada’s now does:

Only one side of the consensual  transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

And then there was the pandemic policy of Mr. Macron ― and of many others, in fairness to him, though few have been as explicit about their reasoning. Faced with the reluctance of a relatively small but determined bunch of anti-social idiots to get vaccinated against the plague, the French president propounded the following doctrine:

The unvaccinated, I very much want to crap on them. And so we’ll keep on doing it, to the end. That’s the strategy. … [I]t is only a very small minority that is refractory. … How do we reduce them? We reduce them, sorry to say it this way, by crapping on them even more. … I’m not going to put them in prison; I will not forcibly vaccinate them.  And so we have to tell them: … you will not be able to eat out, you won’t be able to get a coffee, you won’t be able to go to the theatre, you won’t be able to go to the movies. (Translation mine)

As I wrote here,

To crap on people, Macron-style, is not quite like telling them that they ought to live in fear, as Canadian law used to tell and still tells prostitutes. It’s not even quite like physically disgusting them, as it does with smokers. But the way in which regulation that aims to crap on them acts is not that different from regulation that acts through fear or disgust.

Ms Braverman’s plans, to return to them, are not as subtle as Mr. Macron’s. They quite transparently enlist fear, cold, and squalor. Rough sleeping, she believes, is a “lifestyle choice”, and the choice needs to be painful to be unattractive, so she is willing to inflict pain. As I wrote in my first post on this topic, the one about sex work and cigarettes, ― though I am less tentative now than I was then ― “this approach is wrong, whether in the case of sex work, abortion, or smoking” ― or rough sleeping:

As Jeremy Waldron’s work on the Rule of Law and human dignity emphasizes, law normally tries ― and ought to try ― to treat those subject to it as human beings, endowed with dignity and capacity for rational choice. It does not, and ought not to, treat them as objects or beasts who need to be prodded around. Regulatory schemes that rely on visceral negative emotions such as fear, disgust, or shame seem to me to come close to doing that. To be sure, law often relies on a certain fear of negative consequences of non-compliance with its substantive or formal requirements (whether punishment, liability, invalidity or unenforceability, etc.). But, for one thing, it seems to me that, although the difference is difficult to put into words, the nature of this fear is not the same, and not as disturbing. Perhaps more importantly, and more clearly, the unpleasant consequences of non-compliance  are something the law explicitly tells people to avoid. There is no manipulation going on. They are also produced by the legal system itself ― by the judges who announce them, by the prison wardens and bailiffs who enforce them, and so on, not by external factors for the law purports not to take responsibility.

All this applies, I think. I only add two side points about Ms Braverman’s plan for crapping on rough sleepers.

First, she says she “want[s] to stop … those who cause nuisance and distress to other people by pitching tents in public spaces, aggressively begging, stealing, taking drugs, littering, and blighting our communities”. Pretty much all of these things can be and are criminalized quite independently of the possession and distribution of tents, and many of them should be criminalized. The question, perhaps especially acute in this country at present, is whether the police are willing to enforce the law. But adding to the list of laws that need to be enforced does not help address the problem.

And second, legalize housing. Just legalize housing already, instead of criminalizing tents. How’s that for a less squalid policy?

The End of Administrative Supremacy in Canada

Introducing a new article on Canadian administrative law theory (and history)

There has been a great deal of debate about the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, including about how much it would change Canadian administrative law, and then about how much it has in fact changed the law. For example, in a recent post, I argued that Mason v Canada (Citizenship and Immigration), 2023 SCC 21 was illustrative of some of the practical changes Vavilov has wrought. But this debate can also be had at a different level, that of administrative law and indeed constitutional theory. There, the question is not so much about Vavilov’s practical consequences for the law of judicial review, but about what it says or implies about that law’s theoretical foundations.

It is at this theoretical level that co-blogger Mark Mancini’s and my new article, “The End of Administrative Supremacy in Canada”, recently accepted for publication by the UBC Law Review, enters the debate. Here is the abstract:

For forty years, from the Supreme Court’s 1979 decision in CUPE to the 2019 one in Vavilov, Canadian administrative law has been characterized by a strong belief in the value of administrative power and a distrust of its supervision by the judiciary. This article charts the development of this approach to administrative law, which it refers to as “administrative supremacy”, and explains its fundamental commitments. It then argues that administrative supremacy is fundamentally misguided, and that its rejection by the Vavilov majority is a significant improvement for Canadian law.

Administrative supremacy rests on distinctive and, as the article argues, misconceived views about three key issues in constitutional theory. First, it rejects the separation of powers in favour of an embrace of allegedly expert administrative institutions. Second, it either rejects the Rule of Law or, more recently, redefines it to negate its central commitments to legal certainty. Third, it also redefines democracy as participation in administrative rule-making.

On each of these issues, the article contends that the more orthodox understanding of the relevant principles is preferable to that put forward by administrative supremacy. Administrative expertise does not live up to its promise and is not worth the abandonment of the safeguards against abuse of power. And while administrative reasons and participation may enhance the quality of administrative decision-making, it is no substitute for independent judicial review of administrative action.

To a large degree, Vavilov repudiates key aspects of administrative supremacy. While the repudiation is incomplete, it is to be warmly welcomed.

A few additional notes might be useful too. First, we take the phrase “administrative supremacy” and from Jeffrey Pojanowski’s “Neoclassical Administrative Law“, which I wrote about here, and, like Prof. Pojanowski, do not mean it as some sort of insult, but rather as a shorthand description of a set of constitutional commitments that privilege that administrative state over the legislatures, the courts, and indeed the political executive.

Second, to make our case about the administrative-supremacist commitments of Canadian administrative law pre-Vavilov, we trace the development of scholarship in this area, from John Willis to David Dyzenhaus, and of administrative law doctrine from CUPE, Local 963 v New Brunswick Liquor Corporation, [1979] 2 SCR 227 to the concurrence in Vavilov by Justices Abella and Karakatsanis. We do not say, of course, that all administrative supremacists, academic and judicial, thought exactly alike. Indeed we take pains to explain how their views, especially those of the academics, evolved. But we argue that, even as they evolved, they preserved crucial elements of continuity that mean that it is fair to consider them part of a common tradition, a single school of thought. One unfortunate consequence of tracing all this in some detail is that the article is very long, almost 20,000 words. But we hope that the amount of detail we provide will make it interesting too.

Third, our original submission of this article, to a journal that shall remain nameless, was promptly rejected in no uncertain terms. (I am grateful to the nameless journal for its expeditiousness, though I have to admit that it is difficult not to think that the review it commissioned was remarkable more by its promptness than by its thoroughness.) So uncertain were these terms that we simply ignored them and submitted the article again without revising it ― there simply wasn’t anything useful to get out of that review. And the reviewers commissioned by the UBC Law Review editors, for their part, quite liked our piece. At least one of them did note that it would not be to everyone’s taste ― which is fair enough ― but thought that its arguments were sufficiently supported to deserve an airing. I am disclosing all this, with Mark’s consent, because it provides further evidence for what I said here about an earlier article that went through the same process of rejection (albeit less peremptory) and then acceptance after another journal had commissioned more open-minded reviewers:

[T]he peer review process is a bit of a crapshoot. Even if you are cautious, some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy. But others may see their role differently, and say that, while they disagree with the paper, it is still well argued and deserves a hearing. (Of course, you have to make their life easier and make sure that the paper is indeed well argued; the more heterodox you are, the more you need to dot your i’s and cross your t’s.)

And further:

If at first you don’t succeed, try again. Try with a different journal, hope you get different reviewers, perhaps a more sympathetic editor. That’s easier to do when your paper is one that doesn’t need to be out right away … [An] article, making a less topical and more fundamental claim, could wait. And perhaps there is a further lesson here, which is that it is better to reserve heterodox ideas for articles of this sort, knowing that it might be a while before they can run the peer review gamut. But, be that as it may, the point is that, precisely because it is a crapshoot, precisely because it empowers people who enjoy being more Catholic than the Pope, the peer review process can be dispiriting ― but knowing why it is this way should remind us that it isn’t always this way.

And, last but not least, I am grateful, and so is Mark, to the people who have provided useful comments on previous drafts: Prof. Pojanowski, Paul Daly, Robert Thomas, and Gerard Kennedy, as well as the UBC Law Review’s anonymous reviewers. As is traditional to say, the remaining mistakes are ours alone, but they have made sure there are fewer of them.

Anyway, I hope that our injection of heterodoxy in Canadian administrative law theory will be of interest to some readers, and can stimulate further conversation on the constitutional foundation of judicial review in the post-Vavilov world.

Grow a Thicker Skin

The bench is no place for those who can’t cope with criticism

Justice Joëlle Roy, of Quebec’s provincial court, is not amused. At all. And she’ll have you know it. More importantly, she’ll have all involved in a sexual assault and incest case she’d been hearing know it. Even though neither they nor the case had anything to do with Justice Roy not being amused. No matter: as La Presse reported, Justice Roy pulled out of the trial, though a further report confirms the proceedings will after all be able to continue with a different judge (in application, so far as I can tell, of s 669.2 of the Criminal Code). But it’s a most unfortunate story, which reminds us of a fundamental requirement for judicial anatomy: a thick skin, to go with a stiff spine, a solid gut, and a good brain.

Justice Roy’s tantrum is in response to a column by Yves Boisvert, also in La Presse. Mr. Boisvert describes a judgment by Justice Roy in a different sexual assault case, which in his view is badly tainted by an embrace of rape myths of the perfect-victim variety ― he writes that it “is not too far away from the notorious ‘why didn’t you keep your knees’ together, which got an Albertan judge removed from office” (translation mine, here and below). Mr. Boisvert then proceeds to make a broader point about Justice Roy: “Within just seven years of her appointment, she has already been harshly rebuked by appellate courts on multiple occasions,” which he then lists. Not just reversed, mind you, but reversed based on “serious and repeated errors of judgment”, which, Mr. Boisvert argues, raise questions about Justice Roy’s “competence”.

This is harsh criticism, no doubt. But it is criticism based on facts presented to the reader and detailed so far as a newspaper column permits (though I do wish newspapers ― especially those, like La Presse, that are only published online anyway ― actually linked to judgments when those are available). And, while this wouldn’t excuse unfair criticism, it is worth noting that Mr. Boisvert is a knowledgeable and experienced writer about the justice system. I have had my differences with him, but he is neither a hack nor a rabble-rouser. I haven’t read the judgments he discusses, so I won’t express a definitive opinion on the fairness of his column, but even if one disagrees with it, it does not strike me as a hit piece. And it is certainly not an attack on Joëlle Roy the person rather than Justice Roy the judge.

In other words, it is a piece of perfectly legitimate criticism directed at the holder of a public office. It is precisely the sort of thing that journalists are expected to do. And office-holders are expected to put up with this sort of thing, because it comes with their station ― no less than the forms of respect and the salaries to which they are entitled. This is no less true of judges than of elected officials, because judges exercise coercive power over citizens. It is, or at any rate it ought to be true, that they do not control the “direction either of the strength or of the wealth of the society” and “may truly be said to have neither FORCE nor WILL, but merely judgment”. But when they are lacking in precisely that quality which they are called upon to exercise, they not only can but must be criticised for it. To be sure, as I have noted here, there are examples of criticism that goes far beyond what is justifiable, which should be denounced. But even then, that task falls not to the judges themselves, but by those of us who care about the judicial system.

Justice Roy, seemingly, is not of this view. The La Presse story linked to above describes her taking to the bench twice rather than once, in the aforementioned incest trial, to respond to Mr. Boisvert’s column. On the day it was published, Justice Roy described it as a “very vicious personal attack”. The next day, she read a prepared statement calling it “very violent”, and explaining her words the day before as due to her having “been punched. Because yes, words are sometimes like punches, more vicious even, especially when they are of this sort and magnitude.”

This is a remarkable outburst ― La Presse quotes judicial ethics experts who struggle to recall its like. They also point out that it calls Justice Roy’s “equanimity” (“sérénité“) into question. So it does. Her judgment too ― ironically, perhaps, but unsurprisingly, since that’s what Mr. Boisvert’s column said. To repeat, that column is not a personal attack. It is criticism of the manner in which an office-holder discharges her duties. But even a personal attack does not justify the “words are violence” move that Justice Roy pulls with an obliviousness that would be comical if it were less sad. Words, even very nasty words addressed to public officials, are not violence. It is a good thing that Canadian law no longer recognizes the contempt of “scandalizing the court”, which referred to doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority” ( R v Gray, [1900] 2 QB 36). One can only imagine how Justice Roy would have used it.

I am sure that it is thoroughly unpleasant for a judge to read public criticism, whether on a blog like this one, in a journal article (assuming judges read those once in a blue moon), or in a newspaper. It must hurt, and it must hurt all the more when it follows on from criticism delivered by the Court of Appeal, to which judges are sensitive. But, again, this comes with the office and with the nicer things about it. When you work for the public, especially in a position that involves sending members of the public to prison ― or failing to do so ― you have to put up with public scrutiny and even with public nastiness. If you don’t like that, you always have the option of resigning, and freeing up the spot on the bench for someone who is better able to cope with criticism. Who knows, they might even give less occasion for such criticism into the bargain.

Listening to Podcasts Like a State

The CRTC wants to know about podcasts. Beware!

If you are in the podcasting business (as indeed this blog occasionally is), the Canadian government wants to know about you. It hasn’t yet decided what to do about you, to be sure. Fear not, it will, in its own good time. But, while the full implications for the freedom of expression will only become clear once it does make up its mind, it is not to soon to be (re-)learning some lessons about the administrative state.

Michael Geist (among others) has explained what is afoot: in late September,

The CRTC [i.e. Canadian Radio-television and Telecommunications Commission] … released the first two of what is likely to become at least a dozen decisions involving the Online Streaming Act (aka Bill C-11). The decision … involves mandatory registration rules for audio and visual services that include far more than the large streaming services.

Podcasts are “audio services” within the meaning of the legislation. Ostensibly, only those services with more than 10,000,000$ of Canadian revenues are required to register, which includes few podcasts (and definitely not ours, which produces no revenues at all). But of course things are not so simple. Individual podcasts won’t be required to report to the CRTC, but the platforms on which they are hosted will.

Why is that? The CRTC helpfully explains, and is worth quoting at length:

There are a variety of podcasts that can provide a wide range of content relating to information, opinion and entertainment. Without information about online undertakings that transmit or retransmit podcasts, it would be more difficult for the Commission to ensure the achievement of the objectives of subparagraph 3(1)(i)(iv) of the Broadcasting Act, which relate to, among other things, providing a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and of subparagraph 3(1)(i)(i), pursuant to which the programming provided by the Canadian broadcasting system should be varied and comprehensive, providing a balance of information, enlightenment and entertainment for people of all ages, interests and tastes.

Given that podcasts constitute a quickly evolving type of content that is consumed by Canadians, the registration of online undertakings that transmit or retransmit podcasts over the Internet and that are subject to the Broadcasting Act would assist the Commission in improving its understanding of that type of content in order to ensure that the broadcasting system is working to achieve the identified objectives of the Broadcasting Act. [223-24]

Simply put, the CRTC doesn’t have the foggiest clue what is going on, but it sure as hell knows that, whatever is going on, it has got to regulate it. And so it better find out what’s up.

This brings to mind James C. Scott’s Seeing Like a State. The editors of a Cato Unbound symposium on it, on which I draw in what follows, summarise it as follows:

States can only exert their power on what they can know about. Knowing requires measuring, systematizing, and simplifying. It requires, in other words, missing out on a lot of particular local data. Strategies of resistance to state power often take these gaps as their starting point, and problems with state rule often begin here as well. The state itself to a high degree may be said to run on legibility — the ability to know what’s really going on in a governed population or territory. Legibility, however, is in limited supply, and it comes at a cost. 

As Prof. Scott points out, forms of legibility that we now take for granted ― even such seemingly self-evident things as everyone having a last as well as a first name ― took considerable inventing, and imposing. But invented and imposed they were, because without them, the state was rather helpless.

It is both striking and important to recognize how relatively little the pre-modern state actually knew about the society over which it presided. State officials had only the most tenuous idea of the population under their jurisdiction, its movements, its real property, wealth, crop yields, and so forth. … Having little synoptic, aggregate intelligence about the manpower and resources available to it, officials were apt either to overreach in their exactions, touching off flight or revolt, or to fail to mobilize the resources that were, in fact, available. To follow the process of state-making, then, is to follow the conquest of illegibility.

The CRTC’s admission of its ignorance and demand for information echo these points. John Perry Barlow had a point, after all, when he taunted “Governments of the Industrial World, you weary giants of flesh and steel … from Cyberspace, the new home of Mind.” On behalf of the inhabitants of this new home, he insisted that governments “do not know us, nor do you know our world”. The CRTC is saying, “damn right we don’t ― but damn right we will”. Its relationship with cyberspace has been pre-modern, but not anymore. It will colonize cyberspace, and to do so it will learn to see it, and to listen to it, like a state.

Note that this sort of thing entirely undermines the expertise justification for administrative power. Scholars who support the administrative state and insist that legislatures should delegate vast powers to it, while courts must defer to its decisions, including when those affect constitutional rights or purport to say what the law is, tend to justify these violations of the separation of powers by pointing to administrative expertise. As, for example, Matthew Lewans writes in Administrative Law and Judicial Deference ” we cannot hope to address [the] issues” facing modern societies “intelligently without harnessing the experience, expertise, and efficiency the modern administrative state provides.” (187) As Professor Scott points out ― and as the CRTC demonstrates ― the experience and expertise of the modern administrative state are manufactured.

They are also incomplete to the point of being quite fake ― and dangerously so. Consider one of the examples Prof. Scott uses in his contribution to the Cato symposium. He describes “the invention of scientific forestry in 18th-century Prussia and Saxony”. In the process,

 … the forests were reconceptualized as streams of salable commodities, above all so many thousands of board feet of timber and so many cords of wood fetching a certain price. … Missing were all those trees, bushes, and plants holding little or no potential for crown revenue. Missing as well were all those parts of trees, even revenue-bearing trees, which might have been of great use to the population but whose value could not easily be converted into fiscal receipts. … From a naturalist’s perspective, nearly everything was missing from the state’s narrow frame of reference. Gone was the vast majority of flora … Gone were most species of fauna, except for the large game integral to the aristocratic hunt. The utilitarian state could, quite literally, not see the real existing forest for the (commercial) trees. 

But the state did not stop at rethinking: it proceeded to remake. It made the

 attempt to create through careful seeding, planting and cutting, a redesigned forest that was easier to count, manipulate, measure, and assess. Thus was born the modern, “production” forest: a mono-cropped (Norway spruce or Scotch pine), same-age, timber-farm planted in straight rows. The very uniformity of the forest vastly simplified its management and exploitation. … Redesigning the forest as a “one-commodity machine,” however, had, in the long run, catastrophic consequences for forest health and production. The mono-cropped, same-age forest was far more vulnerable to disease, blight, and storm damage.

A little knowledge is a dangerous thing, and Prof. Scott’s shows that the state only ever has a little knowledge. This is a similar point to Hayek’s, but Prof. Scott’s reasons are different (and complementary). While Hayek emphasized the inherent unavailability to the state of information about rapidly-changing individual needs and desires, Prof. Scott points to the inevitable simplification and deliberate sidelining if not destruction of information that must occur for the state to “see” anything. Either way, it is dangerous for the state to presume that it knows enough to start not only understanding the world around it but also to improve it. In the attempt to improve, it will often destroy.

In fairness, there are occasions when the state’s gaze has its uses ― perhaps even its benefits. For example, Prof. Scott notes that “[t]he opacity of local society was, of course, actively maintained by local elites as one effective means of resistance to intrusions from above”. It seems plausible that, at least in some cases, oppression by these local elites may have been worse than whatever form of governance the modern state substituted for it. It is also frequently the case that, however simplified they may be, and sometimes precisely because they are simplified, centralized ways of seeing things reduce transaction costs (both in a literal sense and in a broader one too, as in Prof. Scott’s opening example of a unified road numbering system making it easier for emergency services to reach the scene of an accident). Then again, as some of the contributors to the Cato symposium note, such co-ordination devices may well emerge without the state’s coercive direction. (The modern English language, trimmed down and bastardized from its Old English origins to serve the needs of the various ethnic and linguistic groups co-habiting Britain would be a good example of this.) All this is the subject of a good deal of interesting discussion in the Cato symposium, but there is no need for me to summarize that here.

Whatever good seeing like a state may sometimes do, there is no real case that it is beneficial or even useful when it comes to, of all things, podcasts. There are no local elites exerting a droit du seigneur on hapless podcasters, and the transaction costs one most incur in order “to be exposed to the expression of differing views on matters of public concern” or “a balance of information, enlightenment and entertainment for people of all ages, interests and tastes” are very close to nil. The CRTC’s endeavour to learn about podcasting is nothing more than a colonialist enterprise intended to do nothing more than expand its empire. As Jen Gerson has noted in The Line, what begins as seemingly benign information-gather will become the conduit through which podcasts of any size can be regulated ― potentially out of existence.

It’s Nonsense But It Works

The Supreme Court’s latest administrative law decision is welcome, but it too is unsound in principle

Yesterday, the Supreme Court decided Mason v Canada (Citizenship and Immigration), 2023 SCC 21, which could turn out to be an important administrative law decision ― though my past assessment of how important administrative law cases are likely to be have often been badly wrong. Mason is noteworthy for being, in some ways, a resounding confirmation of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, and in some a clarification of that decision, potentially resolving some of the tensions latent in it in favour of robust judicial review of administrative decisions. At the same time, Mason provides yet another illustration of Vavilov‘s unsoundness in principle, even as it makes a commendable effort at making it work in practice.

At issue in Mason is s 34(1)(e) of the Immigration and Refugee Protection Act (IRPA), which makes non-citizens “inadmissible” to Canada ― or, as here, liable to be expelled if already present in Canada ― “on security grounds for …  engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. Specifically, the question is whether the acts of violence in question had to be connected to “the security of Canada” as a nation, or whether ordinary, albeit perhaps relatively serious, violence that endangers individual Canadians but not the country would suffice. While at first glance the statutory text seems broad, this provision is only one of several that deal with inadmissibility, including inadmissibility on the grounds of “serious criminality” and “criminality” tout court. The latter two require criminal conviction; s 34(1)(e) does not. There are also differences in the recourses available to people declared inadmissible under different provisions, including in that people found to be inadmissible under s 34(1)(e), unlike those inadmissible on grounds even of “serious criminality”, are unable to seek relief on “humanitarian and compassionate” grounds.

The Immigration Appeal Division of the Immigration and Refugee Board considered that s 34(1)(e) can apply to any acts of violence, regardless of any connection to national security. The Federal Court disagreed and set its decision aside, but gave the government permission to appeal by certifying a “serious question of general importance”, as permitted by the IRPA. The Federal Court of Appeal restored the Appeal Division’s decision, holding that, while not explicit on certain points, it was not unreasonable.

Before getting to the substance of the case, the Supreme Court must decide on the standard of review. Generally, under Vavilov, when administrative decision-makers like the Appeal Division interpret legislation, they are entitled to deference, and the reviewing court will only ask if they have sufficiently justified their interpretation to make it reasonable. But this is only a presumption, which can be rebutted if the legislation signals that the reviewing court should impose its own view of the legislation or, even in the absence of such a signal, if, among other things, the case presents a “general question of law of central importance to the legal system as a whole”. Is, then, the certified question mechanism either a legislative signal for correctness review or an indication that a question that has been certified is one of central importance?

The Supreme Court splits on this issue. The majority, in reasons by Justice Jamal, says “no”. It says that precedent supports reasonableness review even when the Federal Court has certified a question and that, important though it may be for the individuals to whom the provision might be applied, the interpretation of s 34(1)(e) is not of central importance to the legal system as a whole, notably because it only matters within the context of the administration of the IRPA. The majority also points out that no certified question exists until the Federal Court gives judgment on a judicial review application, which means that it would, logically, have no reason or even opportunity to apply correctness review in a case that, as it ultimately turns out, will eventually present such a question.

For her part, Justice Côté, who concurs in the result and, on most other points, in Justice Jamal’s reasoning, thinks that certified questions should be reviewed for correctness. The precedents are not nearly as unequivocal as the majority suggests. More importantly, the certification mechanism is a signal that Parliament wanted the courts to be clarifying the meaning of the Immigration and Refugee Protection Act, instead of leaving it to administrative decision-makers; indeed, the certification of questions would be pointless if they did not have to be definitively answered by the Federal Court of Appeal. This makes sense, moreover, in light of the fact that many provisions are subject to concurrent jurisdiction of different decision-makers in the immigration ecosystem. But the Rule of Law principle also requires correctness review. Justice Côté argues that because

[a] question whose answer turns on the unique facts of the case will not be certified … [b]y definition … certified questions concern issues of broad significance or general importance within Canada’s immigration and refugee protection regime. [160]

Correctness review is then in order. Moreover, when expulsion from Canada, possibly to persecution or even torture is at stake, nothing less than a correct legal interpretation can suffice to justify such action by the government and avoid arbitrariness that is antithetical to the Rule of Law.

Turning to the substantive issue, Justice Jamal begins by recapitulating ― at remarkable length ― Vavilov‘s instructions on conducting reasonableness review. He also reproves the Federal Court of Appeal for having suggested that a reviewing court should start with “a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before . . . examin[ing] the administrators’ reasons”. Justice Jamal worries that this is tantamount to the court “starting with its own perception of the merits”, which “may lead [it] to slip into correctness review”. [79] Justice Jamal summarizes the Appeal Division’s reasons, noting that they “applied several recognized techniques of statutory interpretation”. [84] However, he faults them for failure to address some key arguments.

First, it ignored the differences between the recourses available to people found inadmissible under s 34(1)(e) and other inadmissibility provisions, leading to a paradoxical situation where people who fall within the scope of the former on the basis of conduct that might have amounted to a crime for which they have, nonetheless, not been convicted are worse off than those actually convicted of that same crime and found inadmissible on the basis of that conviction. Justice Jamal writes that these considerations might not be “determinative” [91, 95] but failure to address them is a reviewable error, which could not be disregarded by inferring, as the Federal Court of Appeal did, that the Appeal Division considered them implicitly. Second, the Appeal Division did not sufficiently consider the potentially sweeping nature of its interpretation of s 34(1)(e). And third, it did not attend to “the legal constraints imposed by international law on its interpretation”. [104] The interpretation adopted by the Appeal Division could result in Canada expelling people who are not a danger to its security, in violation of its commitments under the Convention Relating to the Status of Refugees, to which IRPA explicitly points as a mandatory interpretive consideration. Justice Côté agrees with these points, emphasizing the significance of expulsion to the person affected.

Having concluded that the Appeal Division’s interpretation of s 34(1)(e) is unreasonable, Justice Jamal addresses the question of the remedy. Normally, deference means that the administrative decision-maker will be asked to interpret the statute anew, albeit drawing on the reviewing court’s guidance. But here, “[t]he relevant legal constraints cumulatively point overwhelmingly to only one reasonable interpretation of s 34(1)(e) — the provision requires a nexus to national security or the security of Canada”. [121]

Let me start with what I see as the positive aspects of this decision. As I have argued here and elsewhere, and as other said too, after Vavilov, there was a great deal of uncertainty about what its actual implications could be. While co-blogger Mark Mancini and I expressed some cautious optimism that it would lead to meaningful judicial review of administrative interpretations of law, it could also, quite plausibly, have been read with an emphasis on deference and judicial restraint, leading to continuing judicial abdication to the administrative state. As I noted at the time, this ambiguity, which was probably the product of compromise in the quest for a broad majority as much as of theoretical confusion, left Vavilov “open to future manipulation by courts that do not share its spirit or find it inconvenient in a given case”. In particular, of course, the danger was that, as the Supreme Court’s composition changed, the deferential reading of Vavilov would come to the fore. Mason suggests, to my mind at least, that this is not happening.

The Supreme Court is essentially unanimous in adopting an intrusive approach to reasonableness review, in which even a comparatively thought-through administrative decision is vulnerable to correction for failing to engage with relatively subtle issues raised by the applicable statutory scheme. The majority also doubles down on Vavilov‘s rejection of the earlier cases inclination to make up administrative reasons and defer to these judicial concoctions ― what I described as a court playing chess with itself and contriving to lose. I think it’s very ironic for the majority to reprove the Federal Court of Appeal for failing to follow this rule. The Court of Appeal’s decision was given by Justice Stratas, who penned the pre-Vavilov locus classicus on this exact point, writing in dissent in Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue), 2018 FCA 136: “My job is judicial review of the Minister, not judicial impersonation of the Minister. I do not work for the Minister. I am not the Minister’s adviser, thinker, or ghostwriter.” I do not suppose that Justice Stratas, of all people, has decided to take the job of ghostwriter for the Immigration Appeals Division. But, however uncalled for, the Mason majority’s criticism of him at least shows that the Supreme Court will not tolerate others doing so. The majority’s refusal to remit the case to the Appeal Division and its insistence that there is only one sensible reading of the statute also signal that courts should not pretend that they lack the wisdom to read legislation administered in the first instance by some bureaucrat.

All this is happening four years after Vavilov, with three members of the Vavilov majority gone from the Supreme Court. It is happening the agreement of Justice Karakatsanis who, along with the now-retired Justice Abella, attacked that majority for being insufficiently deferential. At the risk of being unduly optimistic, I will take this as a positive sign that the robust interpretation of Vavilov has legs and is likely to stand even as the turnover on the Supreme Court continues. It is probably not a coincidence that, like Vavilov, Mason is an immigration case. In decades past, too many leading administrative law cases featured friendly neighbourhood labour arbitrators solving annoying disputes between big business or big government and big labour. The more these cases are drawn, instead, from the immigration world, where the state red in tooth and claw is baring its fangs at the individual, the more we can hope for robust judicial review doctrine.

That said, Mason shows that, at the level of principle, this doctrine is as unsound as ever. It remains beset with the contradiction between the rhetoric of deference and the practice of robust review. This is illustrated, for instance, by Justice Jamal’s criticism of the Federal Court of Appeal’s “preliminary analysis” for the risk of slipping into correctness review ― combined with also criticizing the Court of Appeal for not conducting reasonableness review with enough vigour. Logically, the Court of Appeal wasn’t insufficiently and excessively deferential at once. The “preliminary analysis” it suggested is just the natural way a flesh-and-blood judge will approach judicial review, whatever the Supreme Court may say. Indeed, Justice Jamal himself begins by reciting the applicable statutory provisions. Are we to suppose he just copied them with no shade of reflection on what they might mean having entered his mind? Sorry, but I don’t believe this. But the posture of largely fake deference to the administrative state forces the Supreme Court into such implausible pronouncements.

More seriously, I’m inclined to think the majority is wrong to insist on deference in the context of certified questions under the IRPA. Justice Côté is right that the legislative scheme indicates that Parliament, for good reason, wanted the courts to sort out the legal issues arising out of IRPA’s interpretation, and that their failure to do so risks creating arbitrariness in high-stakes cases where it is utterly unacceptable from a Rule of Law standpoint. But Justice Côté’s reasons hint at a deeper problem with Canadian administrative law doctrine, which she does not address, and indeed might not see as a problem at all. Justice Côté writes:

[T]he risk of arbitrariness may be acceptable in the context of decisions regarding the extent of an income replacement indemnity during a temporary plant closure … or alleged violations of a provincial collective agreement … to use the two examples referred to in Vavilov … . It is not acceptable when the identity of the individual decision maker is what determines who is permitted to remain in Canada, as in these companion appeals, or in the context of other serious questions of general importance under the IRPA. [164]

But, even allowing, as one must, that the practical stakes of an immigration decision are much higher than many others ― indeed, they are as high as it gets in a legal system that does not impose the death penalty ― why exactly is arbitrariness tolerable in other contexts?

Questions of law ― at least pure questions of law whose answers, to quote Justice Côté, do not “turn[] on the unique facts of the case” ― are by definition of general importance insofar as laws, unlike commands directed at individuals, exist to apply to unknown numbers of unknown future cases. By definition, they have “broad significance or general importance” in whatever legal regime they arise in. On one point, Justice Jamal is actually right: the certified questions regime is, first and foremost, a leave to appeal mechanism rather than a way of distinguishing some special category of legal questions. But in a sound administrative law regime this would not have the consequences he says it does, which are wrongheaded for the reasons Justice Côté explains. (For that matter, even without moving to an entirely sound administrative law regime, progress could be made simply by reversing the fit of judicial madness that was Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, and holding that, in accordance with the Federal Courts Act, immigration decisions are reviewable for error of law on a correctness standard. This would eliminate the paradox of differing standards of review at the Federal Court and the Federal Court of Appeal when a question is certified.) Vavilov, with its misbegotten claim that questions of law need not be given unequivocal answers to comply with the Rule of Law, does not a sound administrative law regime ground.

Its unsoundness is, finally, further illustrated by the majority’s decision not to remit the case back to the Appeal Division because there is actually only one reasonable reading of the provision at issue. As I have written here,

I find it odd to say that reviewing courts must start from the position that “respect for [the] institutional design choices made by the legislature” in setting up administrative tribunals “requires a reviewing court to adopt a posture of restraint on review”, [Vavilov, 24] but then insist that respect for legislative choices also requires the courts to be vigilant in case these choices leave only one permissible interpretation. The view, endorsed in Dunsmuir, that deferential judicial review reflects the inherent vagueness of legal language, was empirically wrong (and indeed implausible, as I argued here), but coherent. The recognition in Vavilov that statutory language is sometimes precise and can have a definitive meaning is welcome, but it is logically incompatible with an insistence on deference and judicial restraint.

The conclusion that there is only one justifiable (and hence not only reasonable but also correct) reading of a statutory provision doesn’t need to come at the end of a big, but fake, show of deference. It should be the first thing a reviewing court decides, as part of its duty to say what the law is, and so of giving decisions that are definitionally of general importance.

I remain hopeful that one day, Canada’s administrative law will recognize these truths, even if it does not yet hold them to be self evident. But yesterday was not that day. The absurdity at the core of our law remains. But, at least, the law in action might just make more sense than the law on the books. The Supreme Court seems committed to playing a meaningful role in upholding the Rule of Law in the face of administrative overreach and to instructing other courts to do likewise. As the recent history of Canadian administrative law reminds us, this is no small blessing, and I am grateful for it.