Can We Be Friends?: A Conservative Reply to Leonid Sirota’s “Refusionism”

This post is written by Thomas Falcone

I was surprised, if a little taken aback, by Leonid Sirota’s recent declaration on Double Aspect that he is opposed to co-operation with conservatives whom he deems insufficiently committed to a rigid Hayekian philosophy. The reason for my surprise lay not in Sirota’s ideology laid bare – he is commendably transparent about his public philosophy – but more to the creeping suspicion I had that I may have played a small part in inspiring his writing.

Sirota mentions “conversations” he engaged in at the recent Runnymede Society Law and Freedom Conference in Toronto as prompting his exposition of the reason why collaboration with conservatives is indefensible. Now, Sirota is a bit of a rock star at any Runnymede Society event – and rightfully so. His contributions to Canadian jurisprudential thought surely vault him into that vogue category of “thought leader.” I myself have plastered Double Aspect articles penned by him onto slides I’ve used in graduate seminars. Sirota’s leading ideas on originalism in a Canada are extremely impressive, and (as I have told him myself!) I am mostly in firm agreement with his opinions on the administrative state.

But I am compelled to respond to his call for libertarians to reject “refusionism”, which is to say his belief that we cannot be friends, let alone political allies. Perhaps he is right.


It is unfortunate that in Sirota’s attempt to describe what he calls “right-wing collectivism” he doesn’t bother to engage with any of the thinkers he finds so frightening. To be fair, however, the very nature of conservatism makes it difficult to attribute unifying policies or ideas that form a singular coherence. Oakeshott’s old adage that conservatism “is to prefer the familiar to the unknown, to prefer the tried to the untried” is helpful only insofar as it helps to explain that what a conservatism will stand for, or against, or agree to over time and after collective consideration, will vary in different places and amongst different peoples. Roger Scuton’s refrain that the task of a conservative is to assure people that their prejudices (properly understood as a person’s gut feeling) are justified is thus perhaps more helpful than Oakeshott’s old formulation.

In a Canadian context, Ben Woodfinden’s recent long essay in C2C Journal on Red Toryism is surely the closest thing we have to a contemporary “manifesto” of the sort of reform conservatism loosely associated with the broader movement Sirota wants to pre-emptively divorce himself from. But Sirota is right that conservatives ought properly to understand the goal of politics as being attached to the promotion of the highest good. This isn’t nearly as scary as he makes it out to be.

Take the institution of private property, for instance. Conservatives rightly commit themselves to the steadfast protection of this institution. But why is private property so important? Surely it cannot be a sacrosanct institution in-and-of-itself, despite idolatrous libertarian suggestions that the primacy of private property will result in an almost supernatural “spontaneous” right ordering of society. We can find a hint of why conservatism is associated with this institution in Scruton’s invaluable The Meaning of Conservatism:

“Home is the place where private property accumulates, and so overreaches itself, becoming transformed into something shared. There is no contract of distribution: sharing is simply the essence of family life. Here everything important is ‘ours’. Private property is added to, and reinforces, the primary social relation. It is for some such reason that conservatives have seen the family and private property as institutions which stand or fall together.”

Sirota’s biblical pronouncements of Hayekian “warnings” to the contrary, I would submit rather confidently that the vast majority of Canadians – and surely universally conservatives! – would agree on a general scale that the family is an immutable social good, and ought to be defended as the primary organizing unit of our society. The rather modest suggestion that I would posit to conservatives is that when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family. Devin Drover has proposed publicly-funded therapy for families to combat the mental health crisis plaguing our society. US Senator Josh Hawley has proposed cash subsidies to families as emergency relief in response to the Chinese coronavirus pandemic.

Surely another commonly held value amongst Canadians is that it is better to work than to be idle. Having a job ties us to our community, provides us with income, and fills us with a sense of purpose. The notion that the state ought to be “neutral” as to whether people choose have jobs or sit around smoking cannabis would be nonsensical to the average person on the street. But that is precisely the Hayekian proposition Sirota suggests is “the philosophically and morally right position”, whereby individuals are the sole arbiters of their own ends. It is also a position completely alien to a conservative to whom work is fundamental good.

Recognition of the importance of work – and, indeed, the primacy of production over consumption (another value Sirota rallies against in his piece) – is central to Oren Cass’ The Once and Future Worker. And yet Cass’ proposed policy response to our society’s moral devaluation of work is, characteristic for a conservative, quite modest. He proposes a direct wage subsidy to not only make work more monetarily valuable but also signal the state’s – and thus our society’s – value of work. From an excerpt of Cass’ book in The American Interest:

“The subsidy would be calculated relative to a target wage of, say, $15 per hour and make up half the difference—so someone earning a market wage of $9 per hour would receive an additional $3 per hour. Such a subsidy would have two major effects: first, a substantial raise for low-wage workers, making each hour worked more valuable and yielding more take-home pay; second, encouragement for less-skilled workers to take that initial step into the workforce and for employers to offer such jobs.”

My point here is not to provide a laundry list of bold policy ideas that combat the scourges of family decline, widespread opioid misuse, loneliness and social isolation, and widespread disengagement of young men from the workforce. My point, rather, is to suggest that these are good and fundamentally conservative ideas. They are also not the stuff of totalitarian nightmares as Sirota will have us believe.


Finally, I feel compelled to address Sirota’s concluding appeal to the Book of Hayek. Here he suggests that power itself is an evil and thus there should be no power. This is untenable and flies in the face of our contemporary political reality. Harvard law professor Adrian Vermuele has best expounded on the internal contradictions at the core of Sirota’s philosophy by coining the phrase “the liturgy of liberalism.” How is it that liberalism, supposedly so profoundly committed to principles of freedom and liberty, can so quickly turn to repress any intellectual heterodoxy? Vermuele’s work is profound and complex, but the basic problem is that a political philosophy underpinned by nothing more than the idea of “freedom” will forever look for new oppressions to dismantle.

And herein lies the crux of my departure with Sirota: while he suggests conservatism is the flip-side to the woke-ism phenomenon, it is in fact libertarianism that is a not-so-distant cousin of SJWism. Both are committed to a religious devotion of individual preference maximization and will ruthlessly supress any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person. Power is real and always will be – and as US Attorney General Bill Barr has noted, it is currently being deployed by left-leaning liberals against conservatives. I doubt libertarians will be spared.

This all bodes poorly, perhaps, for the future of a long-term political partnership with Sirota. But it need not foreshadow the demise of any would-be friendship. To the contrary, I am confident that right-leaning politics would benefit mightily from a continued dialogue around these difficult issues – especially in these difficult times. He is also, as I mentioned, a brilliant legal thinker. The reality is also that I know libertarians in 2020 are unlikely to try to “cancel” or “deplatform” me and I would never utilize such tactics against a libertarian. The same cannot be said for progressives. This may be a thin basis for continued political co-operation but the stakes are too high to let our disagreements overwhelm us.

 

Thomas Falcone is an LLM candidate at the University of British Columbia Peter A. Allard School of Law. He holds a BA in philosophy and political science, an MA in political science, and an LLB from the University of London. He is co-president of the UBC Runnymede Society chapter. You can follow him on Twitter @thomas_falcone.

Stupid. But Constitutional.

The Globe and Mail reports that the government is seeking to introduce wideranging methods to permit the Cabinet to raise revenue. However, this report has now evolved, and the proposed measures have been walked back. But the original Globe article said:

One section of the bill grants cabinet the power to change taxation levels through regulation, rather than through legislation approved by Parliament. It states that cabinet will have this power during the period “before 2022.”

“For greater certainty, a regulation made under this section may contain provisions that have the effect of repealing or imposing a tax, decreasing or increasing a rate or an amount of tax or otherwise changing the incidence of tax,” the bill would have stated.

Let’s assume that this reporting was accurate. Let’s also assume that there are more provisions in the bill that set out some more detail on the tax (based on the words “[f]or greater certainty”). In my view, and despite opposing arguments from unwritten principles, I think this Bill would have likely been constitutional. I first address my argument that s.53 of the Constitution Act, 1867 would likely not have been abridged; and second, that the presence of unwritten principles does not change this conclusion.

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While this Bill has now been walked back (and probably for very good reason), the old proposal would have been constitutional, because (at least at face value) it clearly delegated taxing power.

Let’s start with the basic point. Section 53, as noted in the seminal Eurig Estate case, encodes the principle of “no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature” (Eurig, at para 30). The restriction here is simple: s.53 prohibits the executive from imposing new taxes ab initio “without the authorization of the legislature” (Eurig, at para 31).

Notably, however, this does not mean that the executive cannot raise taxes. Merely, the executive’s ability to do so is parasitic on clearly-delegated legislative authority. As John Mark Keyes notes in his work Executive Legislation, “[s]ection 53 does not set up an absolute bar to the delegation of taxation powers” (at 122). If it is clear that Parliament has delegated taxing authority to some executive actor, there is no reason to impugn the delegation, constitutionally. This means that executive legislation raising revenue will be constitutionally proper if it does two things: (1) the legislation is enacted pursuant to a delegated power; (2) it is clear that the delegation is a delegation of taxing authority.

Most of the conceptual work is done at the stage of determining whether the delegation is clear. And on that note, the Supreme Court has spoken: consider its opinion in the Ontario English Catholic Teachers Assn case, at para 74:

The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. The democratic principle is thereby preserved in two ways. First, the legislation expressly delegating the imposition of a tax must be approved by the legislature. Second, the government enacting the delegating legislation remains ultimately accountable to the electorate at the next general election.

The point of the clarity principle, then, is to ensure that the executive is actually acting pursuant to lawfully delegated authority. So long as the delegating provision is clear, there is no constitutional basis to assail it.

Additionally, and as noted above, I am making an assumption that this is not the only operative delegating provision. In other words, it may be a requirement that a bare delegation of taxing authority must be couched in language that sets out the tax’s “structure, base and principles of imposition” (see Keyes, at 124; see also Ontario English Teachers Association, at para 75). I am assuming that this is the case here. But if my assumption is wrong, this becomes a closer case. If the delegation says it is delegating a tax, is that enough on the Supreme Court’s terms? Or is a framework a requirement?

If only the word “tax” is required, or if the taxing power is cabined by other provisions (as it appears to be in this case), then the case for constitutionality is strong. As such, this statute seems to clearly delegate power to the executive to take any number of actions with respect to taxes. Since that authority is lawfully delegated, it likely cannot be impeached in a constitutional sense. And so long as the executive remains responsible for these powers, there is no sense in which it could be said that the executive is evading parliamentary scrutiny.

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More broadly, the Supreme Court’s comments on delegation also support the constitutionality of this measure. Though these comments do not relate to taxation, they do underscore the broader context of how the Court has historically viewed delegated power. In short, the Court has permitted extremely broad delegations of power—especially in crisis situations—so long as the executive remains responsible to Parliament for the exercise of these extraordinary powers. The same goes in this situation.

I highlight two cases to this end. In Re Gray, the context was WWI. Under the War Measures Act, Parliament granted power to the executive under a so-called Henry VIII clause; the power to amend or repeal laws, delegated to the executive. The Court upheld this delegation. It said, even though the delegation was extensive, Parliament has not abandoned control over the executive carrying out these powers, and the Ministry remained “responsible directly to Parliament and dependent upon the will of Parliament for the continuance of its official existence” (Gray, at 171). Therefore, so long as Parliament retains control over the delegated power—so long as it does not “abdicate” its power (Gray, at 157) there is no legal concern.

Similarly, in the Chemicals Reference, another broad delegation was at issue. The delegated power permitted the Ministry, in service of WWII efforts, to make rules allowing censorship, control of transportation, forfeiture and disposition of property, and arrest and detention. Again, the Court upheld the delegation :

Parliament retains its power intact and can, whenever it pleases, take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies and how long it shall continue them in existence, are matters for. Parliament and not for courts of law to decide. Parliament has not abdicated its general legislative powers. It has not effaced itself, as has been suggested. It has indicated no intention of abandoning control and has made no abandonment of control, in fact. The subordinate instrumentality, which it has created for exercising the powers, remains responsible directly to Parliament and depends upon the will of Parliament for the continuance of its official exist­ence (Chemicals Reference, at 18).

While these cases might not be directly applicable in the taxation context, they do shed light on the underlying theory that was also present in the Ontario English Catholic Assn case. That is, so long as Parliament controls the delegation and the executive is responsible for the exercise of delegated powers, there is no way to impeach the delegation of power.

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I do want to address one potential argument, that is primarily made by Alyn (James) Johnson, in his delegation piece in the UBC L Rev. That argument is based on unwritten constitutional principles (and perhaps constitutional architecture) set out in cases like the Secession Reference and the Senate Reference. One might make the argument that constitutional architecture—the structure and separation of the legislature and the executive—should serve here to prohibit the legislature from delegating its power away in this fashion to the executive. Additionally, Johnson makes the argument primarily based on the principle of democracy: he contends that a “marginalized legislature delegating un-cabined power to willing executive instrumentalities is incoherent and unprincipled.” (Johnson, at 823). More specifically, legislatures are a place for discussion and deliberation; they are fora for democratic contention; but if delegation is widespread, the political/democratic process is lost, and people lose “authorship” over laws (Johnson, at 879-880). Moreover, one could make an argument from the separation of powers: it fundamentally transforms the functions of each of the branches for widespread delegation of this sort to be permitted.

My initial impetus is to be skeptical of unwritten principles and arguments from constitutional structure. For one, the role of unwritten principles is somewhat limited: they may have “normative force” (Quebec Secession Reference, at para 54) they also cannot be used to attack the content of legislation (or so the Court held with respect to the Rule of Law: see Imperial Tobacco, at para 59). In whole, while it could be true that unwritten principles could strike the content of statutes, their role appears to be limited; they cannot, for example, “dispense with the written text of the Constitution” (see Quebec Secesstion Reference at para 53; see also literature questioning the extent of use of unwritten principles: Jean Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” 2002 27 Queen’s LJ 389 at 400).

Moreover, unwritten principles arguments lack the coherence and structure of traditional doctrinal arguments, and in my view, can be used to support whatever outcome a person wishes. For example, in my view, the principle of “democracy” for example, endorsed by the Supreme Court, might just as well support a Parliament taking an expansive view of its ability to delegate, and delegating widespread authority to the executive. After all, the Court has said that “regulations are the lifeblood of the administrative state” (see Hutterian Brethren, at para 40), and if the Bill of Rights of 1688 meant anything, it meant that Parliament came into its own as the controller of the executive; it became a sovereign body: “each successive delegation of legislative power has been a fresh recognition of that sovereignty” each delegation “a victory at the expense of the Crown” in which the Crown gives up pretensions to legislate by itself (see C.T. Carr, “Delegated Legislation: Three Lectures” at 48-52; see also A.V. Dicey, at Introduction to the Study of the Law of the Constitution, at 6 ). What we are talking about is a sovereign Parliament, and as the Supreme Court has recognized, “parliamentary sovereignty remains foundational to the structure of the Canadian state: aside from constitutional limits, the legislative branch of government remains supreme over the judiciary and the executive” (Pan-Canadian Securities Reference, at para 49). If that is the case, Parliament can just as well delegate its power away if it is sovereign.

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In conclusion, I am not trying to say that this law is a good idea. Indeed, there are abstract worries we might think about: what about the separation of powers? What about the institutional functions of each of the branches of government? There are also significant policy reasons to dislike the old proposal. Are these powers proportionate and strictly tailored to their purpose, for example?

Nonetheless, I believe the legal case for a statute of this sort was at least facially strong.

The Nero Post: Two Niche Issues in Judicial Review Post-Vavilov

Lest I be accused of fiddling while Rome burns, I wish to note that I approach a pandemic as a time in which we must, subject to social distancing and isolation, proceed as normal as much as possible. Indeed, it is this sense of normalcy that should characterize what we do as much as possible. Because eventually, we will return to a sense of normal; and once we do so, we need to be equipped to handle the new world in which we will experience. Surely, life will be different. But we must be ready to tackle those challenges, and so we can’t close the door on the world. Life must, to the extent possible, go on.

In that spirit, I write today’s post, tackling two niche issues in the law of judicial review, post-Vavilov: the scope of the correctness categories, particularly the “general questions” category, and the effect of Vavilov on the BC Administrative Tribunals Act.

Let’s start first with the general questions category. As a reminder, Vavilov amended this category, a hold-over from Dunsmuir, to exclude considerations of expertise (Vavilov, at para 61). Now, the category reads as “general questions of law of central importance to the legal system as a whole.” If a question falls in this category, it will be subject to correctness review by the reviewing court. The logic behind this category is that certain questions transcend particular administrative regimes and require consistent answers from the reviewing court (Vavilov, at para 59). But the Court, in Vavilov, cautioned against an expansion of this category: questions that merely address issues of wider public concern do not fall in this category, and the simple fact that a question might be “important” in an abstract sense does not satisfy the category. In short, this category is not a “broad catch-all category for correctness review” (Vavilov, at para 61). Indeed, of all the questions so far recognized by the Supreme Court as falling into this category, all have had constitutional dimensions transcending the boundaries of a particular statutory scheme (see Justice David Stratas’ work, here, at pg 37).

Post-Vavilov, courts have largely heeded the call to interpret this category narrowly. For example, in Bank of Montreal v Li, the Federal Court of Appeal held that the issue of waiver of statutory entitlements was not an issue of general importance. The Court held that there was “no constitutional dimension to the question of whether an employee can contract out of a specific provision of a statute” and that the answer to the question posed “will not have legal implications for a wide variety of other statutes” (Li, at para 28). The Court again cautioned that this category is narrowly construed.

Similarly, in Beach Place Ventures, the BCSC also rejected the invitation to label a question as a general question of central importance. The controversy in that case involved whether certain complainants were “employees” under the Employment Standards Act [ESA]. The Court rejected the invitation to characterize this question as one of general importance. While the Court agreed that “what constitutes ‘employment’ is an important societal question,” the employee determination is one cabined by “statutory provisions rather than left to general principles of law” (Beach Ventures, at para 33). Put differently, the employee determination is one that is particular to the ESA, and the fact that the legislature chose to vest this question in the ESA was determinative for the Court.

But there has been at least one case where general questions were recognized. Take College of Physicians and Surgeons v SJO, where the issue was the production of documents in the context of a professional conduct investigation. The subject of the complaint raised an issue of privilege. The Court held that correctness should apply to this question, because “the way the disclosure and production issue has been raised here impacts in a broad way on the operation of the professional regulatory system” (SJO, at para 10).

Overall, I would say that the ground has largely stayed the same post-Vavilov on this ground of questions. Of the three cases cited above, two have recognized that this category is not a broad way to invite the application of the correctness standard. The only case that has recognized such a question, SJO, largely does so on solid ground: indeed, the Supreme Court has already noted that solicitor client privilege is a general question of central importance (see University of Calgary, at para 20). While SJO did not involve solicitor client privilege, it is only a hop, skip, and a jump from solicitor client privilege to other forms of privilege, even those not currently recognized at law. Indeed, the form of privilege asserted by the subject of the investigation in SJO was not recognized at law, but could impact other claims of privilege across the professional regulatory system. This, as I see it, is at least facially supported by existing Supreme Court precedent.

Overall, though, there has been little movement on this ground. And I think this is for the best. The central questions category is one that preserves the Rule of Law, but if it is used liberally, it could eat away at duly-delegated authority over certain questions. In this sense, I see the warning in Beach Place Ventures as apposite: a liberal application of the central questions category arrogates greater power to the courts to overturn decisions that, at least facially, have been delegated to administrative decision-makers. In the ordinary course, the scope of power delegated to a decision-maker, discernible through the ordinary rules of interpretation, should dictate the space available to a decision-maker—the level of deference (see Vavilov, at para 90 for a similar approach in which statutes, among other things, constrain a decision-maker). The ready imposition of an artificial correctness category risks upsetting this ordinary task. While this category should obviously exist, it must be left for questions with truly transcendental impact.

The second issue: the impact of Vavilov on the BC ATA. So far, there are duelling cases out of the BCSC that deal with this issue. In College of New Caledonia, the Court concluded that “Vavilov has not changed the law with respect to the meaning of patent unreasonableness under [the BC ATA]” (College of New Caledonia, at para 33). Meanwhile, in Guevara v Louie, the BCSC concluded that Vavilov’s comments on the reasonableness standard “also apply to a review of reasons on the standard of patent unreasonableness” because common law jurisprudence may impact what constitutes a patently unreasonable decision (Guevara v Louie, at para 48).

Of course, this is a classic problem: what role does the common law play in elucidating statutory guarantees? The Guevara Court cited to Khosa, at para 19, where the Court did say that patent unreasonableness in BC will be interpreted in light of general common law principles of administrative law. But this passage, in my view, should not be taken so far. While patent unreasonableness may receive limited inspiration from common law principles, it is also a distinct standard of review that differs from reasonableness as defined by the Supreme Court. Its distinctiveness comes from the fact that it is a statutory standard of review. As recently confirmed in Vavilov, legislated standards of review such as the patent unreasonableness standard should be given effect (Vavilov, at paras 35-36). This is simply a function of the hierarchy of laws; statutes (explicitly or by necessary implication) trump the common law. The common law cannot override the statutory standard, and I fear that is what happened in Guevara, and what a liberal application of Khosa would entail (just another reason to disfavour Khosa).

Overall, these two niche issues in judicial review will continue to be fleshed out in lower courts. For now, sit back, quarantine, and stay strong.

UAlberta Pro-Life: Another Nail in the Doré Coffin?

On the Ontario Bar Association website, Teagan Markin describes and analyzes the recent UAlberta Pro-Life Case, 2020 ABCA 1. I had meant to blog on this decision when it came out, but life intervened, so I thank Markin for reminding me of the case. In the case, Watson JA employs a creative use of the Doré test, similar to how the Ontario Court of Appeal’s approach in Ferrier (which I blogged about here). Both Ferrier and UAlberta Pro-Life “bifurcate” the standard of review, so that the definition or scope of the Charter right at issue is reviewed on a correctness standard, while the right’s application in a proportionality analysis is reviewed on a reasonableness standard.

While I understand the impetus to clarify what the Court calls the “unelaborated language” of Doré (UAlberta Pro-Life, at para 166), I see bifurcation as only a medium-term solution because there are more fundamental issues between Doré and Vavilov. I actually see bifurcation as introducing more problems than it solves. It raises tricky issues about what the scope of a Charter right is versus its application; it is plainly inconsistent with Doré ; and if one takes Vavilov seriously, bifurcation arguably does not go far enough. If constitutional questions are so connected to the Rule of Law that they require consistent answers from the courts, bifurcating the standard of review is at best an intermediate solution to a more serious problem: Doré is simply inconsistent with Vavilov, on its own terms.

In this post, I explore this argument.

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The UAlberta Pro-Life Case involved two appeals. The first appeal concerned a 2015 demonstration by the UAlberta Pro-Life group. The Pro-Life group complained to the University that counter-protests erected in response to the pro-life protest “breached the University Code of Student Behaviour” [4]. This first issue, while interesting, is not in my cross-hairs for this post.

The second issue relates to a request by the Pro-Life group for permission to hold another demonstration in early 2016. The University determined that the group would be permitted to hold the event, so long as the group agreed to defray the costs associated with security for the event, estimated to be around $17 500. The Pro-Life group “said the cost was prohibitive and amount to denial of their exercise of freedom of expression” [5].

On judicial review, the chambers judge, relying on Doré , concluded that the University decision fell within “the range of possible acceptable outcomes” [156] because even though the costs of security impacted Pro-Life’s freedom of expression, “[t]hat impact had to be balanced against other interests” [156].

For the Court of Appeal, a number of issues presented themselves, including the thorny issue of whether the Charter applies to universities [148-149]. However, for our purposes, the relevant part of the decision dealing with the standard of review and the articulation of the Doré test are most important. The Court, early in the decision, says the following:

The standard of review as to the definitional scope of a Charter right or the definitional scope of s.32 of the Charter must be correctness. These are transcendent questions of law not resting within the enabling legislation of any specific decision-maker…By comparison, for issues of fact or discretion, the reviewing court is to “tread lightly”[30].

The Court, later in the decision, went on to explain that since the chambers judge’s error in applying the Doré test (which I will address below) “was erroneous on a Constitutional legal test, it is reviewed for correctness and it is reviewable as incorrect” [169].

Why is the articulation of a constitutional test a matter for correctness review? The Court couched the answer to this question in Vavilov:

In this respect, the Supreme Court in Vavilov recently referred briefly to Doré and appeared to distinguish review of the “effect” of a judicially reviewable administrative ruling from a specific finding of unconstitutionality of a statute on the basis of Charter inconsistency. The Supreme Court said “correctness” applied to the latter. The Court, however, did not state the standard of review for “effect” cases, and did not erase the above passages from TWU 1 and TWU 2. Significantly, the Court also reinforced at para 53 and elsewhere in their reasons, that correctness review applies to any determination of law linked to respect for the rule of law name ly “questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.” I read, therefore, Vavilov as being consistent with the approach taken here [170].

With the standard of review set out, the Court also looked at the chambers judge’s application of the Doré test. There were two problems with this test, in the Court’s eyes: first, the chambers judge failed to articulate the proper s.1 limit, and second, she failed to properly allocate the proper burden of proof. On the first issue, the Court concluded that “the limitation must, in my view, be demonstrably justified in a free and democratic society. Although that expression about demonstrable justification does not figure prominently in the cases from Doré onward, it is not erased from the Charter as linguistic frill” [161]. Since the chambers judge failed to ground her analysis in the language of s.1, she “applied a utilitarian approach” that failed to “apply the correct criteria” [159].

On the second issue of onus, the Court concluded that even under the Doré administrative law approach, “the onus on proving the ‘section 1 limit’ on expression freedom…should be on the state agent” [161]. This suggestion is reminiscent of both McLachlin CJC’s and Rowe J’s opinions in Trinity Western, where they suggested friendly amendments to the Doré framework. But Doré was quite unclear on this point, as a matter of first principle.

Overall, the Court chastised the Doré framework, concluding that “[w]ith respect, Doré was expressed in elastic terms after which incorrect readings of Doré exposed Charter rights and freedoms to an inadequate level of protection” [166].

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Bifurcation is not necessarily a new way to deal with issues of Charter rights. As Professor Daly points out, it is an approach that appears in the Supreme Court’s duty to consult jurisprudence (particularly, look at Rio Tinto and Moldaver J’s opinion in Ktunaxa). Ferrier, as I’ve written about before, is also an example of this approach. One understands the impetus for the Court of Appeal’s reasoning in UAlberta Pro-Life, from both a first-principles perspective and from a Vavilov perspective. From first principles, Doré , to many, has turned out to be a way to disempower Charter rights by reference to untethered “values,” and to let the government off scot-free, escaping the traditional justification it must bear under s.1. Indeed, as noted above, this was the impetus behind McLachlin CJC’s and Rowe J’s opinions in Trinity Western. For the then-Chief Justice, bifurcation seemed on the cards, because “the scope of the guarantee of a Charter right must be given a consistent interpretation regardless of the state actor, and it is the task of courts on judicial review of a decision to ensure this” (Trinity Western, at para 116). For Rowe J, the focus on values could lead to “unpredictable reasoning” (Trinity Western, at para 171) that, one can imagine could lead to under-powered Charter rights.

As the then-Chief Justice seems to understand, reasonableness does not help the situation. It means that the initial scope of a right might be given inconsistent (but reasonable) interpretations by different decision-makers. These inconsistent interpretations could be given even more power by sloppy “values-based” reasoning that divorces Charter analysis from the actual text of Charter rights. Bifurcation solves this problem. It forces courts to give a consistent interpretation, through correctness review, on issues of the scope of Charter rights. Conceivably, such decisions transcend the scope of particular statutory objectives and contexts, and go to the force of Charter rights in the abstract. Correctness review, then, adequately guards the consistent application of the scope of particular Charter rights in different statutory contexts.

But Vavilov, as I have written before, could also support this sort of bifurcation based on the principle of consistency. Recall that while Vavilov did not squarely address the Doré framework (see Vavilov, at para 57), it did expand on what the Rule of Law requires in the context of selecting the relevant standard of review. Sometimes, to the Court, “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions…” (Vavilov, at para 53). This is particularly so with constitutional questions, where

[t]he application of the correctness standard…respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary (Vavilov, at para 53).

The scope of Charter rights, as the then-Chief Justice noted in Trinity Western, requires consistency. Correctness review on the scope/definition of Charter rights would accomplish that goal, at least in theory.

But bifurcation presents two problems: both from the Doré perspective and from the perspective of Vavilov. Like it or not (and I don’t) Doré is a binding precedent of the Supreme Court. As Markin argues in her post, Doré —and most recently, Trinity Western—were largely silent on this sort of bifurcation of the standard of review. While it has been recognized that the Doré test requires two distinct steps (1) “whether the administrative decision engages the Charter by limiting Charter protections” and (2) proportionate balancing (see Trinity Western, at para 58), the Court in both Doré and Trinity Western only said that the standard of reasonableness applies to decisions taken by decision-makers that impact Charter rights (see Trinity Western at paras 56-57; Doré , at para 56-57). It did not mention bifurcation as a proper approach. Indeed, Doré was an attempt to comprehensively address this standard of review issue—indeed, it arose, because of the Court’s appraisal of a “completely revised” relationship between the Charter and administrative law (Doré , at para 30). One would have expected such a comprehensive approach to mention bifurcation if it indeed was a doctrinal solution that the Court could endorse.

This, of course, does not mean that Doré is on solid ground. Indeed, much of Vavilov can be read as a way to undermine Doré , as I wrote about here. And on this front, one could make a convincing argument that bifurcation simply does not go far enough in light of Vavilov. Vavilov says that issues involving the Constitution should be reviewed on a correctness standard. Again, it is because these questions require consistency from the courts, as courts are in the unique position of being guardians of the Constitution (see Hunter v Southam, at 155: “ Ell v Alberta, at para 23; United States v ; Kourtessis v MNR, at 90). Based on this idea, one could convincingly argue that the proportionality analysis—not just the issue of the scope of Charter rights—should also be reviewed on a correctness standard.

This is true for a few reasons. First, Doré was premised on a functional idea of expertise as a reason for deference. The idea was that, in the context of statutes under which administrative decision-makers receive power, administrative decision-makers are best suited to be able to balance the Charter values at play in light of the statutory objectives (see Doré , at paras 35, 46). Vavilov resiles from expertise as a reason for applying the reasonableness standard reflexively (Vavilov, at para 31). Now, expertise is a reason for deference, but only after reasonableness has been selected for other reasons going to legislative intent (Vavilov, at para 31). There is no warrant to impose a different standard when it comes to constitutional questions, even those that arise in statutory contexts with which decision-makers may be familiar. That is, if we do not presume expertise on run-of-the-mill, humdrum legal questions, then why should we presume it in the context of constitutional questions? My uneducated guess is that most decision-makers do not have expertise on constitutional matters, even if they arise in the context of familiar statutes. And if expertise is no longer a reason for reflexive deference, then the rug is pulled out from Doré as a matter of first-principles. Now, courts should not lessen the robustness of review based on questions of expertise. Vavilov, then, lowers the importance of functional reasons for deference.

Second, proportionality still counts as a “constitutional question” that should be subject to Vavilov’s comments about the Rule of Law. One might argue that there is a difference in kind between the scope of Charter rights and their application/balancing in the proportionality context. For one, the scope of a Charter right is a pure question of law, and application considerations are probably questions of mixed fact and law, to which we might owe deference. But there is no reason to think this strict division will hold all the time. In the first place, I am skeptical of the ability of courts to reliably decide what is an issue of “scope” and what is an issue of “application.” Indeed, constitutional challenges as against statutes largely depend on their facts—this is borne out if one looks at cases like Bedford and Carter. And yet, in statuory contexts, we apply a correctness standard (see Vavilov, at para 57). We might lessen the force of a correctness standard in respect of particular facts—ie the margin of appreciation—but that margin is not always applicable. Neither it should be in the Doré context.

All of this to say, the UAlberta Pro-Life Case is a good illustration of the ways in which courts are trying to navigate Doré post-Vavilov. As noted above, I understand the impetus behind bifurcation as a medium-term way to bridge the gap between Doré and Vavilov. But I still see fundamental strains between Doré and Vavilov that bifurcation cannot solve.

Horrocks: What Happens to Agraira?

One of the more nerdy judicial review questions is the standard of review applicable from an appellate court to a lower court in judicial review cases. That is, how do appellate courts deal with lower court decisions that, either through a right of appeal or by application for judicial review, review administrative decisions?

The current orthodox position is outlined in Agraira. There, the Supreme Court held that when an appellate court reviews a lower court decision disposing of a judicial review application, the appellate court “steps into the shoes” of the lower court (Agraira, at para 46). In effect, as Stratas JA points out in Sharif, at para 5 this turns out to be pure de novo review: the appellate court reconducts the standard of review analysis, in both selection of the relevant standard of review and its application.

Post-Vavilov, Stratas JA questions how long Agraira-review will last (see pg 60 of his masterful work here). Luckily, we won’t have to wait too long for the answer to this question. The Supreme Court recently granted leave in Horrocks, a Manitoba case that raises this question directly. The Supreme Court, in describing the main question in the case, says the following: “What is appropriate standard of appellate review, as between levels of court sitting in review of decision of administrative tribunal?”

This is an open question. In this post, I assess some of the options for dealing with this issue. I first describe the holding of the Manitoba Court of Appeal in Horrocks, then I outline the potential options that are in front of the Court in assessing this question. I ultimately conclude that, on balance, there are good reasons to favour the application of the Housen v Nikolaisen standard of review across the board when an appellate court reviews a lower court’s review of an administrative decision. Put differently, we should rid ourselves of Agraira.

**

Horrocks involves, in addition to the standard of review issue, a tricky issue of “jurisdictional lines” between two or more tribunals. While I do not address this issue in this post, some description of the basic conundrum is necessary for context.

Horrocks was a health care aide at a personal care home operated by the Northern Regional Health Authority in Manitoba (NRHA). NRHA is a party to a collective agreement with CUPE. Horrocks, during work hours, was observed as intoxicated. After refusing to sign a document that would have forced Horrocks to abstain from alcohol completely, her employment was terminated. CUPE grieved under the collective agreement. Prior to a scheduled arbitration, another document was negotiated between the parties, which again asked Horrocks to abstain from alcohol, and contained other revisions, including that any breach of the document would constituted just cause for termination, and that Horrocks could challenge any employment decision by NRHA under the collective agreement’s grievance and arbitration procedures.

Horrocks was, again, found to be intoxicated outside work. NRHA again terminated her employment. Horrocks then filed a discrimination claim with the Manitoba Human Rights Commission (MHRC). The core question was whether the MHRC had jurisdiction over the dispute, or whether the collective bargaining/arbitration provisions governed. At the Manitoba Court of Queen’s Bench, the court found that the MHRC lacked jurisdiction. The Manitoba Court of Appeal allowed the appeal, concluding, interalia, that there was a “modest” place for human rights adjudication; and so the lower court judged erred in overturning the MHRC decision that there was jurisdiction.

In analyzing the issue, the MBCA also commented on standard of review. The Court held that “both the identification and the application of the appropriate standard of review by a superior court judge conducting a judicial review is a question of law under the standard of review framework as set out in Housen [v Nikolaisen]” (Horrocks, MBCA at para 47). Therefore, the Court purported to apply the framework set out in Housen for appellate review (see Horrocks MBCA at para 38), meaning correctness review on any extricable legal questions. However, the Court, relying on Stewart, also said that the basic question on judicial review was whether “there is a principled reason to afforded deference here…” (Stewart, at para 19; Horrocks MBCA at para 49). The Court concluded that there was no such reason, because:

If one returns to the basic question discussed in Stewart (see para 19) as to whether there is a principled reason to afford deference here, I am satisfied that there is not. The record before the reviewing judge was the same that was before the Chief Adjudicator. He was not required to make any original findings of fact or exercises of discretion. Additionally, there are no limitations on the Commission’s right of appeal of the reviewing judge’s decision pursuant to section 89 of The Court of Queen’s Bench Act, CCSM c C280, such as a requirement that the decision being appealed must have wider significance beyond the parties such that leave to appeal must first be obtained. Taken together, these circumstances make it difficult to justify, on a principled basis, that a margin of appreciation should be afforded to the reviewing judge’s decision when he was not required by Dunsmuir (at
para 61) to afford deference to the decision of the Chief Adjudicator on the same issue (Horrocks MBCA at para 49).

Seemingly on the basis of Stewart, the Court therefore concluded that the administrative decision must be reviewed on a correctness standard, in both application and selection of the standard of review.

**

The question: what should the Court do with Agraira in Horrocks?

One option might be the reliance on Stewart as a comprehensive statement of the relationship between appellate courts and lower courts on judicial review. But I do not read Stewart as the MBCA does. That is, I do not see Stewart standing for a broad-based approach to the relationship between appellate courts and lower courts. But on principle, a standard phrased like the one in Stewart is too broad to be of much use on a comprehensive basis. It raises the prospect of standard-less doctrine that does not help reviewing judges to know the proper basis of intervention.

More seriously, there are two other basic approaches that are operating in tandem, to my mind. The first, the Agraira approach, views both the selection and application of the standard of review as questions of law. A lower court choosing and applying a standard of review, then, is owed no deference by an appellate court, even on questions of mixed fact and law or fact. Again, as noted above, this approach results in basically de novo review, a “re-do” on the merits by the appellate court, with the focus on the administrative decision.

This approach has its benefits and drawbacks. In principle, it is aligned with the focus of judicial review: the administrative decision. It ensures that administrative decisions (and errors) are not sheltered by deference doctrine applied by the appellate court. But there is a price to pay for fidelity to principle: as Stratas JA notes in Sharif, at para 5, it is an open question whether this “re-do” is consistent with principles of judicial economy and access to justice, heralded by cases like Hryniak v Maulden.

The second approach is to adopt Housen v Nikolaisen. That is, the lower court decision would be viewed as a pure appeal, notwithstanding the fact that it reviews an administrative decision. This means that, while selecting the relevant standard of review will be a question of law, there will be room for some deference on a palpable and overriding error standard on the application of the standard of review, and the law, to the facts (see, for nuance on this point, John Evans, “The Role of Appellate Courts in Administrative Law” (2007) 20 Can J Admin L & Prac”). A good example of this approach is contained in Hupacasath. There, Stratas JA noted that while he was applying the Agraira standard, that approach does not allow for the substitution of factual (or mixed fact and law) findings made by a lower court (Hupacasath, at para 75). Stratas JA goes on to say:

In my view, as is the case in all areas of appellate review, absent some extricable legal principle, we are to defer to findings that are heavily suffused by the first instance court’s appreciation of the evidence, not second-guess them. Only palpable and overriding error can vitiate such findings. In the context of the existence of Aboriginal title, the Supreme Court held to similar effect in Tsilhqot’in Nation, supra at paragraph 52 (Hupacasath, at para 76; see also Long Plain First Nation, at para 86.

This approach, of course, solves some of the problem of “re-doing” the standard of review analysis that characterizes the other approach. And, at least nominally, it ensures that the selection of the relevant standard of review remains a question of law that is reviewable on a correctness standard under Housen. But it leaves the door open to deference on findings “heavily suffused by the first instance court’s appreciation of the evidence.”

The main difference between approaches, then, is in the application stage, where Housen would not counsel a pure de novo review. People will different priors will favour one approach over another, but a complicating factor in the choice is the decision in Vavilov. While there is much in Vavilov that bears on this question, the main distinction that affects the choice between approaches is the strong distinction now drawn between cases going up to a higher court on a statutory right of appeal and cases proceeding by an application for judicial review. This distinction is driven, in the Vavilov Court’s mind, by an expression of Parliament: “…legislative intent can only be given effect in this framework if statutory appeal mechanisms, as clear signals of legislative intent with respect to the applicable standard of review, are given effect through the application of appellate standards by reviewing courts” (Vavilov, at para 49). So, on this account, there is a distinct difference when Parliament legislates a right of appeal—in effect, it legislates the appellate standards of review (see Vavilov, at para 36).

This suggests that there might be a reason to favour one standard of review framework over another, depending on the context. However, in my view, there are reasons internal and external to Vavilov to favour the Housen standard of review as a comprehensive standard for appellate review.

1) The appellate standard can no longer be Agraira because of reasons internal to Vavilov. This is because of Vavilov‘s holding on statutory rights of appeal. Now, an administrative decision taken to a court via a statutory right of appeal invites the application of the Housen standard of review (Vavilov, at paras 36 et seq). This, in other words, is a legislative signal that courts should treat the lower administrative decision as a decision from which to be appealed. There is no principled reason to differ the approach when the lower court decision is subsequently reviewed. The relationship between the appeal court and the lower court is similarly governed by statute; and the fact that the first instance decision-maker is an administrative decision-maker does not change the statutory relationship going “all the way up” to the appeal court. Agraira, then, is inconsistent with Vavilov on this score.

2) When the case involves an application for judicial review, the question is trickier. Vavilov does not speak directly to the issue. We now have the choice between Agraira and Housen presented directly. Based on reasons external to Vavilov, in my view, there is good reason to ditch Agraira and move to Housen for these cases, whether they involve a reasonableness or correctness standard on pure questions of law. That is because, when viewing the decision of a lower court that deals with an administrative decision, the appellate court’s role is not to directly review the administrative decision. In the hierarchy of courts, the appellate court role is to correct errors of lower courts; it is not to re-review the merits of administrative action. That is, primarily, the task of the superior courts and courts of first instance with judicial review jurisdiction. Based on this overriding first principle, the Agraira rule had three main flaws:

a) In principle, it corrupted the relationship between appellate courts, superior courts, and administrative decision-makers. Appellate courts do not review administrative decisions at first instance; they review decisions of lower courts as a matter of appeal. The appellate standards should, therefore, apply.

b) Whether the relevant standard is reasonableness or correctness, Agraira saps any deference to a lower court’s appreciation of the facts and evidence from the analysis. While the selection of the standard of review is a question of law to be decided by the court (see Monsanto, at para 6), its application to the facts may involve mixed questions of fact and law or assessment of evidence. There are good functional reasons to favour a first instance court’s appreciation of these issues. Agraira, for no good reason, did not account for this issue of first instance courts.

c) As Peter Hogg noted, there is no good reason to favour review of any kind, given that review necessarily involves some duplication of effort. Sometimes, review is a legal necessity, and we bite the bullet on duplication (ie) judicial review in the first instance is a constitutional necessity, and a legal good. But there is no principled reason to favour duplication of effort by an appellate court that did not get a first-hand glimpse of the record. There is no constitutional or legal good served by this sort of review that would vitiate these concerns.

A comprehensive standard for appellate review, then, emerges: it is the Housen v Nikolaisen standard. Adopting that standard in all instances of appellate review of a judicial review decision has two added benefits. First, it creates a comprehensive standard across judicial review contexts for appellate review. Whether the case involves a statutory right of appeal or an application for judicial review, an appellate court’s posture remains the same. While there are different reasons to favour the Housen standard in rights of appeal versus judicial reviews, the bottom line is the same: the posture of the appellate court is focused on reviewing potential errors in a lower court decision. The appellate court, at a basic level, is not a court of original judicial review jurisdiction, and was always a mistake to transform appellate review into first-instance judicial review.

But secondly, on a practical level, appellate courts are familiar and comfortable with Housen review. We now have extensive guidance on how to apply Housen review, including on the tricky issue of what constitutes “palpable and overriding error” (see South Yukon per Stratas JA, at para 46; Mahjoub per Stratas JA at para 61 et seq). There is a practical benefit that supports the in-principle reasons for favouring Housen review on these matters.

Overall, while this issue might appear to be a niche issue for administrative law lawyers, it is actually a fundamental issue. It goes to the relationship between the judiciary and the administrative state, an issue that should captivate all public lawyers. Hopefully, Horrocks helps to clear up some of the confusion that characterizes the current status of Agraira, on this front.

On the Rule of Law, Blockades, and Indigenous Self-Government

Recently, Canadians have been captivated by a set of protests occurring both in British Columbia and Ontario in relation to the Coastal GasLink pipeline. The pipeline is a $6B dollar, 670 km project which runs across Northern British Columbia. In British Columbia, the hereditary chiefs of the Wet’suwet’en lead blockades across the pipeline path, even in the face of injunctions issued against the blockades. On the other side of the country, in Ontario, a blockade led by members of the Mohawk First Nation has brought trains and other travel to a standstill, causing supply shortages in some areas. New protests and blockades pop up almost daily across the country. An injunction was also issued in respect of a blockade in the Toronto/Vaughn area, which was immediately burned by protestors in the area.

In all of this, many have called on police to enforce the various injunctions, because of the principle of the Rule of Law. The Rule of Law, so goes this argument, requires an injunction duly issued to be enforced. Still others rebuke the reliance on the Rule of Law, positing that (1) the Canadian Rule of Law, as presently understood, encompasses claims of Indigenous rights and title and (2) the Canadian Rule of Law does not speak to Indigenous systems of law, separate and apart from colonial law. As a result, in the debates, it is sometimes unclear whose Rule of Law we are talking about, and whether one particular application of a particular rule of law would lead to different results.

While it does matter in what sense we are using the term “the Rule of Law,” I write today to draw attention to two aspects of this dispute that I believe can exist in a complementary way. First, it is clear that on any understanding of the Rule of Law, a system of laws requires courts whose orders are respected. This is true even if one does not view the Rule of Law as the rule of courts. But additionally, what is required, as Dicey said, is a “spirit of legality” which should characterize the relationship between individuals and courts. On this account, the blockades in both Ontario and BC should be shut down, because they fail to respect valid court orders that are contributing to a public order. Canada’s Rule of Law as it is can support no other result.

But second, that cannot, and should not, be the end of the matter. Indeed, the blockades are showing why the current framework of Aboriginal rights vis-à-vis the Canadian state is so lacking. The Rule of Law is not only a fundamental postulate of our law, but it is also an aspirational ideal. There may be ways in which our constitutional order can move towards the ideal of the Rule of Law. On this front, it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter.  I have made this argument before, but wish to renew it here: Canada’s Constitution can and should recognize distinctive Indigenous self-government.

I write this with the full knowledge that I am not an Indigenous person. And also, I know nothing of the particular Indigenous law that applies in this situation. I am merely intervening in the debate to provide some clarity around what the “rule of law” might mean in this context.

***

There are different ways we can understand the Rule of Law. Each of these three understandings set out above are being used interchangeably in the debate over whether the blockades are proper, on one hand, or legal on another hand.

The first understanding of the Rule of Law, the “thin” understanding, largely associates the Rule of Law with the rule of courts. That is, on this account, a court injunction duly issued should be respected. And in this case, there have been injunctions. The British Columbia Supreme Court issued an injunction in late 2018, which was later expanded in 2019 to include emerging blockades.  Further, under this heading of the Rule of Law, a court in Ontario issued a valid injunction against blockades in Ontario on Saturday, February 15.

It goes without saying that the Rule of Law might not exhaustively mean the rule of courts, but that courts are still required in a system of the Rule of Law. This is because there must be some tribunal that can handle competing claims, especially in the context of property. Even if one accepts that Indigenous peoples have their own system of law operating within Canada, courts will be required to handle conflict of laws or jurisdictional contests. The ordinary courts, as Dicey called them, are central to an ordered society in which people can plan their affairs. If that is the case, the law should be respected, as interpreted by courts.

The Supreme Court of Canada has largely accepted this notion of order as central to a society governed by law. In the Quebec Secession Reference, the Supreme Court noted that the “rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs” (Quebec Secession Reference, at para 70). What is required is an “actual order of positive laws which preserves and embodies the more general principle of normative order” (Manitoba Language Reference, at 749). As an analogue to this general principle of normative order, there needs to be arbiters of the law in order to ensure that state action is not arbitrary in nature, itself an aspect of the Rule of Law (see Quebec Secession Reference, at para 70). Courts are the typical arbiters—the regulators, so to speak—of the relationship between individual and state. In order for the normative order to be upheld, then, a respect for courts are required.

This is true even if one takes a more substantive or “thick” conception of the Rule of Law. If one accepts, as some do, that the Rule of Law can encompass substantive policy aims like the promotion of human rights, one still requires the ordinary courts to recognize these rights as a matter of judicial interpretation.  As such, the thick conception of the Rule of Law is parasitic on the thin conception. And all require that the judiciary be respected, and that court orders be followed. This does not bode well for the propriety of the blockades.

But one might take the argument based on the Rule of Law further, by arguing that the Canadian Rule of Law includes Indigenous rights recognized under law. One might make the argument that the Wet’suwet’en have existing Indigenous title to the land on which the Coastal GasLink pipeline will be built. Indeed, in Delgamuukw, the Wet’suwet’en were at the centre of the controversy. There, the Supreme Court outlined its approach to handling claims based on Indigenous title. What it made clear was that Indigenous title was a sui generis sort of right, arising before the assertion of British sovereignty (Delgamuukw, at para 114). However, because of a technicality in the pleadings, the Wet’suwet’en were unable to receive a declaration that they held Indigenous title in the land (Delgamuukw, at para 76) . As such, while the Wet’suwet’en may have a valid claim, it has yet to be proven, and can only be accommodated within the context of the duty to consult, a sort of antecedent framework that preserves Indigenous claims that have yet to be proven (see Tsilqho’tin, at para 2).

While there are some questions in this case about who the proper “consultees” were, the bottom line is that Wet’suewet’en title has never been proven over the lands in question. And in the context of a Canadian Rule of Law argument based on Aboriginal title, proof is the centrepiece (see the test for demonstrating Indigenous title, in Delgamuukw at para 143). A blockade relying on these rights must respect their fundamentally judicial nature, in terms of Canadian law: they are recognized by courts, even if they predate the assertion of British sovereignty. One using an argument based on Aboriginal rights recognized under Canadian law, then, cannot justify the blockades on this ground.

***

Thus far, I have reviewed the Canadian-centric way of understanding the Rule of Law. Under these two conceptions, the blockades should come down. But to my mind, this point is insufficient and incomplete.  That is because the Canadian version of the Rule of Law may not be cognizable to Indigenous peoples. Indeed, the blockades reveal that there is a problem of much bigger proportions: the true compatibility of Indigenous systems of law in relation to Canadian constitutional law.  That is the real issue on which the blockades shed light.

I am not an expert on the Wet’suwet’en system of law, but Indigenous peoples may make the claim that Canadian court orders do not apply to them, because they are a sovereign nation. It is true that the Supreme Court of Canada has recognized, in the context of Canadian-Aboriginal law, that Indigenous peoples have pre-existing systems of law and governance that predated conquest. And it has been widely recognized, as Chief Justice McLachlin once said, that settlers committed “cultural genocide” against Indigenous peoples. All of this provides necessary context to the acts of the blockaders.

But, because of the failure of the Charlottetown Accord, Indigenous peoples do not have inherent jurisdiction recognized in the Canadian Constitution. That Accord would have recognized the inherent nature of Indigenous self-government, and made it so that the right to self-government is not contingent on negotiations. Indeed, the right to self-government would have included the right to “develop and maintain and strengthen their relationship with their lands, waters and environment.” This is a fundamental difference from the status quo. Currently, Indigenous rights  must be proven in court to be recognized. The judicial system is thus the locus of Indigenous rights, under s.35 of the Constitution Act, 1982. But inherent jurisdiction, recognized as a constitutional matter, would mean that Indigenous peoples have always had a constitutional basis or jurisdiction to act over matters within their remit. This turns the matter into one of jurisdiction. Inherent jurisdiction may mean that Canadian courts have jurisdiction to issue court orders, but the analysis would be different; instead of proving a “right”, Indigenous peoples would have a recognition of their jurisdiction, and the analysis would be akin to a federalism analysis. As a matter of constitutional amendment, this would put Indigenous systems of law on the same playing field as Canadian law, turning disputes over rights into disputes over jurisdiction. We should encourage our political actors to solve the disputes between the Canadian government and Indigenous groups through constitutional and political means, not only to provide clarity to these sorts of disputes, but to recognize the legal fact of existing Indigenous systems of government.

Questions regarding proof of Indigenous rights and title are currently difficult to resolve under the status quo of s.35 litigation. This is because courts are ill-suited to deal with the essentially political and jurisdictional task of recognizing distincitve orders of government and the lands on which they sit. Questions of proof are subject to years of litigation in court, putting dire pressures on Indigenous groups and government resources. One only need look at the Tsil’qhotin litigation for proof-positive of this point.

Additionally, this solution is not anathema to the Rule of Law. As the Court noted in the Quebec Secession Reference, constitutionalism and the Rule of Law are closely related principles. Once the Constitution recognizes distinctive Indigenous self-government, it becomes a matter of constitutional law, similar to the jurisdiction of the provinces represented in s.92 of the Constitution Act, 1867.

Some people may view this solution as a pipe dream. It is only so because our politicians lack moral courage. But in terms of the legal analysis, Canadian courts have the tools to manage conflicts of law and jurisdictional wrangling. Our federalism has been built on such wrangling for over 150 years, with provinces and federal government vying for power based on their constitutionally-delegated powers. Courts have developed the tools to manage jurisdictional disputes. Those same tools could be applied in this context as well. And of course, there are nuances to be worked out with this solution, as well. While Constitutions can set frameworks for government and provide rules for interjurisdictional disputes, land and resources will continue to be hot button issues subject to negotiations againt the backdrop of constitutional guarantees.

But, for the present moment, courts will need to exist and be respected. An existing system of Indigenous law, without more, cannot justify the disobeying of a court order simply by virtue of its existence. For now, so long as Indigenous peoples fall under the jurisdiction of Canadian courts, the blockades cannot stand as a matter of the Rule of Law. But this does not mean that Canadians, and Canadian leaders, should not bear the onus to complicate our idea of the Rule of Law. We should be looking to recognize inherent Indigenous jurisdiction over matters as an analogue of our own Rule of Law, just as we do in the context of federalism.

The bottom line: the blockades, under any conception of the Rule of Law, cannot stand in the face of a court order. But the blockades do illustrate a larger issue. As I have written before, Canadian understandings of the Rule of Law have to evolve to take account of Indigenous law. Surely, given our federal structure, this is a possibility.

What Does Vavilov Stand For?

This post is co-written with Leonid Sirota.

As we previously noted in a joint post on Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, that decision leaves open the question whether reasonableness review, as explained in the majority reasons, tends toward deference or vigilance, and so whether it will be more rigorous than pre-Vavilov reasonableness. After all, Vavilov begins by saying that its application of the reasonableness standard is based on a principle of judicial restraint, one which “demonstrates a respect for the distinct role of administrative decision-makers” (Vavilov, at para 13). Yet in the same breath the majority insists that reasonableness “remains a robust form of review” (Vavilov, at para 13). It then adds that the reasonableness standard is strong enough to guard against threats to the Rule of Law—yet not so strong as to revert to a form of jurisdictional review (Vavilov, at para 67).

Because of these statements, it is not surprising that some suggest that Vavilov is more robust than restrained, while others view it as “inherently deferential”. At first blush, these different takes on Vavilov could be argued to reflect confusion at the heart of the decision. And Vavilov’s rhetoric is indeed confusing. But an optimistic interpretation of the majority’s reasons might be that they speak to the great variety of cases to which they apply. In some, review will be more constrained; in others, it will be more rigorous. It will be the task of lower courts to parse the Vavilov judgment to determine which circumstances call for which application. But it is not clear that Vavilov prescribes an approach to judicial review that is uniformly more or less restrained.

While it is too early to draw any trend lines, the lower courts have had a chance to weigh in on this question, and they too are divided. But taking the cases together, they might support the conclusion that Vavilov is more contextual than categorical. On one hand, some cases have put forward more interventionist readings of Vavilov. One of us wrote here about Canadian National Railway Company v Richardson International Limited, 2020 FCA 20. There Nadon JA applied the appellate correctness standard, but he added that had he applied reasonableness review, he would have found the decision unreasonable. Nadon JA faulted the Canadian Transportation Agency for failing to take account of statutory context by focusing too much on the text of the relevant statutory provision—and said this would have been just as much of a problem on reasonableness review. Similarly, in Farrier c Canada (Procureur général), 2020 CAF 25, Gauthier JA explained that while she might have found a decision of the Appeal Division of the Parole Board of Canada reasonable under Dunsmuir and its progeny, under Vavilov, the story was different (Farrier, at paras 12, 19). The failure of the administrative decision-maker to provide reasons on some key legal elements of the decision was fatal.

By their own admission, these cases take a harder look at the administrative decisions under review than one would have expected prior to Vavilov, especially in how they scrutinize the administrative decision-makers’ reasons. This seems fully consistent with Vavilov’s “reasons first” approach to judicial review (Vavilov, at para 84) and its clear rejection of the practice of judicial supplementation of reasons (Vavilov, at paras 96-97). Coupled with these changes, Vavilov introduces what one might call a “legal hard look review”. There is now an expectation that administrators will reason with reference to their enabling statutes and take account these statutes’ text, context, and purpose (Vavilov, at para 120). Their omissions in this regard can only be tolerated if they are minor (Vavilov, at para 122). But, as Richardson holds, a failure to justify a decision in relation to the statute at all will be fatal.

By contrast, some decisions in Ontario’s Divisional Court fail to see a meaningful difference between Vavilov and the previous judicial review regime. In Radzevicius v Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319 , for example, Swinton J asserts that “Vavilov does not constitute a significant change in the law of judicial review with respect to the review of the reasons of administrative tribunals” (Radzevicius at para 57). She holds that, because there was no “fundamental flaw or gap in the Tribunal’s analysis”, the decision was reasonable (Radzevicius, at para 59). And in Correa v Ontario Civilian Police Commission, 2020 ONSC 133, Swinton J (writing for a differently composed panel) was similarly disposed, insisting that Vavilov did not impose a “more robust reasonableness review” (Correa, at para 54).

These cases divide on a basic question: is Vavilov reasonableness review more robust than what preceded it? The temptation is to fall on one or another side of this question, but the truth might be a bit more nuanced. The decisions we have just discussed suggest that, while Vavilov may impose more robust review in some circumstances, it is also possible that, in other cases, Vavilov will, indeed, not change the degree of deference.

In Richardson and Farrier, at issue were questions of legal interpretation: questions that required the decision-maker to engage with the enabling statute to determine the meaning, in context, of relevant provisions. A failure to engage with key elements of the statute, insofar as such a lack of consideration may change the result, is not reasonable, according to Vavilov (Vavilov, at para 122). It is probably fair to say that, at least when it comes to pure questions of statutory interpretation, reasonableness review may now take on a more interventionist flavour, particularly where decision-makers are not simply applying a statutory provision to facts but are actually attempting to determine the meaning of particular provisions. When decision-makers are interpreting a statute, Vavilov demands more of them than the cases it supersedes.

Radzevicius and Correa, by contrast, presented issues of mixed fact and law. Decision-makers having applied legal standards to particular facts and evidence; they did not fail to take account of relevant legal provisions or fundamentally misunderstand them. Vavilov says that while the evidence acts as a constraint on the decision-maker, courts must refrain from reweighing evidence or holding decision-makers to a high evidentiary standard (Vavilov, at para 125). This injunction is consistent with Vavilov’s judicial restraint theme. When evidence is more central to the disposition of the case, we might expect review to be more deferential. Whatever else it did, Vavilov did not—for better or for worse—bring back the concept of jurisdictional fact.

This division finds some theoretical support in the literature, specifically Jeffrey Pojanowski’s recent paper advocating for a “neoclassical” approach to administrative law (which one of us reviewed here). Under the neoclassical approach, courts take a harder look at agency legal interpretations while respecting agency space to maneuver on policy or evidentiary matters (883). Neoclassicism pays attention to what both a particular decision-maker’s enabling statute and general legislation, such as the American Administrative Procedure Act indicate about the intensity of the review to which the decision-maker is subject. This approach is to be contrasted with, among others, “administrative supremacy”, which advocates across-the-board deference on all questions of law, reducing the rule of law to a “thin residue” around the margins of delegated power (869).

Vavilov, on the understanding expounded in this post, lends itself to a neoclassical interpretation. On one hand, it asks decision-makers to specifically reason in relation to the limitations on their power, most notably their enabling statute (Vavilov, at paras 108-110, 120). It introduces new requirements to engage with the text, context, and purpose of the statute (Vavilov at para 118 et seq). All of these requirements are rooted in the centrality of the enabling statute, and the role of courts to interpret that statute to decide on the intensity of review. But on the other hand, Vavilov largely incorporates existing law in asking courts to stay their hand when it comes to the evidence before a decision-maker, and the way it might have been assessed (see Khosa, at para 61). In part, this can be justified as a dutiful reflection by the courts that the decision-maker was (1) the initial merits decider and (2) Parliament’s chosen delegate, established to be the merits decider. This division is therefore rooted in a plausible understanding of the respective roles of courts and delegated decision-makers.

Some caveats are in order. First, the distinction between questions of law and questions of evidence will not necessarily be perfectly neat. Indeed, it is true that sometimes, on legal questions, a decision-maker will have a wide margin in which to operate because of the words of a statutory grant of authority (Vavilov, at para 110). As a result, the distinction we draw here might not be helpful in every case. Our point is simply that it may help explain how courts have thus far treated Vavilov. And second, we do not know whether this distinction is really what drove the courts’ reasoning in these cases. Or was their reasoning, instead, primarily a function of individual or institutional views on judicial review, which are bound to influence judges as they work to make sense of equivocal guidance from the Supreme Court? It will be interesting to see, for example, how the Federal Court of Appeal treats more fact-bound cases and, conversely, how the Divisional Court will approach those where statutory interpretation is at the forefront.

That said, if there is one thing that is clear about Vavilov, it is that the various constraints that operate to limit the space within which a decision-maker can maneuver are supposed to be sensitive to context. As the relevant facts and applicable law vary, so different constraints come to the fore. The constraints that apply in a given case lead to more or less interventionist review. One of us suggested, in a contribution to the symposium on the tenth anniversary of Dunsmuir, that the administrative law framework that should replace the one that built on Dunsmuir (or on its ruins) ought to “abandon the pursuit, or the pretense, of across-the-board deference” in favour of greater sensitivity “to the circumstances of particular cases … As these circumstances vary, so must the applicable rules.” Ostensibly, Vavilov instead doubles down a one-size-fits-most reasonableness standard of review. But it may be that, in practice, it makes sufficient room for a more nuanced approach.

In the short term, this might lead to more confusion. In the long run, however, it may prove a more fruitful way of developing the Canadian law of judicial review. For now, it is for the lower courts to work out the precise circumstances in which more or less deference is due to administrative decision-makers. As a result, confident broad judgments about Vavilov’s true import are probably premature.