The Core of It: Quebec Reference and Section 96

At the end of June, the Supreme Court of Canada released its decision in the Court of Quebec case (what I call, unoriginally, the Quebec Reference). The main question in the case: does art. 35 of the Code of Civil Procedure, which grants the Court of Quebec exclusive jurisdiction over all civil disputes up to a value of less than $85000, abridge s.96 of the Constitution Act, 1867. Section 96, in general, protects the role of the superior courts. The Court (per Côté & Martin JJ) concluded that the $85 000 limit, combined with the broad, exclusive grant of power to the Court of Quebec over private law issues, did abridge s.96. Wagner CJ filed a partial dissent and Abella J filed a dissent.

This case contains elements that will both clarify and muck up the s.96 world. On one hand, the Court convincingly elucidates the importance of the rule of law, the core role of the superior courts, and the constitutional limits on legislative derogation of superior court powers. On the other hand, the Court introduces a new “modified” test to add to the s.96 mix, and does not do enough to clarify the circumstances in which this test can be invoked.

As a side note, the Court also briefly addressed the deference problem that was raised by the court below. I wrote about that issue here. The Court did the right thing and held that the issue was moot given Vavilov.

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Section 96 is an odd constitutional provision, in part because the bare text does not correspond to the role that the provision now plays. Section 96 gained a “judicially-nourished luxuriance” which added substantive heft to what is, on first glance, just an appointment power vested in the federal government. Now, s.96 (along with other provisions) protect the role of the superior courts as “the centerpiece of the unitary judicial system” (Quebec Reference, at para 29). In administrative law, s.96 plays an important role. It prevents the legislature, in so many words, from divesting superior courts of so-called “core” powers in favour of administrative decision-makers.

Against this backdrop, Côté and Martin JJ began their opinion by looking to the historical context in which s.96 finds itself. As we know, constitutional provisions like s.96 cannot be understood by viewing them in temporal isolation. By now, it is obvious that constitutional provisions must, in part, be interpreted by looking into the historic context—say, the historical purpose—behind these provisions (see, most famously, Big M at 344; but more recently Comeau, at para 52). In this case, the “compromise reached at Confederation that is central to Canada’s judicial system, as well as the role and purpose of s.96” formed the bulk of the analysis [30].

The historical analysis, for Côté and Martin JJ, led to the conclusion that national unity and the rule of law were the “two key principles” on which the role of the superior courts is based (Quebec Reference, at para 42). Taken together, these principles guarantee “a nucleus” to the superior courts, and s.96 “forms a safeguard against erosion of the historic compromise” (Quebec Reference, at para 41). That compromise was the division of labour between superior courts in the province and the federal government, which holds an appointment power designed to “reinforce the national character of the Canadian judicial system” (Quebec Reference, at para 43).

As for the Rule of Law, the Court made some very important comments about the role of s.96. For Côté and Martin JJ, “[t]he rule of law is maintained through the separation of judicial, legislative, and executive functions” (Quebec Reference, at para 46). The superior courts play an important role because “the task of interpreting, applying and stating the law falls primarily to the judiciary” (Quebec Reference, at para 46). They are best positioned to guard the rule of law. In fact, even though the Court has sometimes spoken favourably about the role of provincial courts in guarding the rule of law, Côté and Martin JJ specifically noted that superior courts are the “primary” guardians of the rule of law.

What does all of this mean? The bottom line for the Court—and this is somewhat of a new formulation—was that s.96 protects against the creation of parallel or shadow courts that mirror the functions of s.96 courts (see paras 53 et seq). To this end, the court has historically developed two tests to prevent legislative derogation from s.96. First is the so-called Residential Tenancies test, determines whether a legislative grant “affects a jurisdiction that has historically been exercised by the superior courts” (Quebec Reference, at para 71). The second is the so-called “core jurisdiction” test, solidified in MacMillan Bloedel. Both have different functions in preventing the creation of parallel courts. The Residential Tenancies test protects the historic jurisdiction of the superior courts. It “was established at a time when…a modern administrative state was emerging in Canada” to which the Court was “sensitive” (Quebec Reference, at para 77). For the Court, a purpose of this test was to “avoid stifling institutional innovations designed to provide administrative rather than judicial solutions for social or political problems” while still protecting the historical jurisdiction (Quebec Reference, at para 77). The core jurisdiction test, on the other hand, serves as a backstop, even if a particular grant passes the Residential Tenancies test. While what the core of superior court powers is necessarily amorphous, some common things jump to mind: judicial review jurisdiction, and for our purposes, “general jurisdiction over private law matters” (Quebec Reference, at para 82). Here, the Court concluded that the superior courts’ core jurisdiction “…presupposes a broad subject-matter jurisdiction whose scope corresponds, at the very least, to the central division of private law…” (Quebec Reference, at para 83).

Typically, the courts have not fleshed out the sorts of factors to consider when determining where a core superior court power is affected by legislative derogation. In the Quebec Reference, Côté and Martin JJ endeavoured to provide guidance where the legislature has vested a court with provincially appointed judges a jurisdiction as broad as the one in the Quebec Reference (Quebec Reference, at para 88). The judges called the collection of these factors the “modified” core test (Quebec Reference, at para 79). These factors included:

The scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the monetary limits to which it is subject, whether there are mechanisms for appealing decisions rendered in the exercise of the jurisdiction, the impact on the caseload of the superior court of general jurisdiction, and whether there is an important societal objective. This list is not exhaustive. Other factors may be relevant in different contexts: one need only think, for example, of geographical limitations.

Given that the grant of power in this case was broad and exclusive—granting the Court of Quebec power over the entire law of obligations at the monetary limit (Quebec Reference, at para 99)—s.96 was abridged by the legislative grant.

A major question that the Court addresses in this case is the scope of its reasons. That is, does this modified “core” test and the factors it involves supplant the old “core jurisdiction” test?:

The multi‑factored analysis we are adopting here is not intended to replace the current law. The analysis under s. 96 continues to involve two tests. The first — the Residential Tenancies test— continues to apply to any transfer of historical jurisdiction of the superior courts to an administrative tribunal or to another statutory court. The second — the core jurisdiction test — continues to apply in order to determine whether a statutory provision has the effect of removing or impermissibly infringing on any of the attributes that form part of the core jurisdiction of the superior courts. Where a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts, the question whether the infringement on the core jurisdiction is permissible or impermissible should be answered having regard to the factors discussed above. 

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While Wagner CJC and Abella J’s opinions are interesting and contain information worth reading, I think there are good and bad elements of the majority’s opinion in this case.

First, the good. It is reassuring to see a “resounding endorsement” of the role of the superior courts in the Canadian constitutional order. Sounding in both national unity and the rule of law, the majority has—more than rhetorically—strengthened the “rampart” that s.96 erects against the creative reassignment of superior court powers (Quebec Reference, at para 145). Specifically, the Court’s comments on the Rule of Law are interesting and welcome. We see, here, a glowing endorsement of the role of the separation of powers in Canadian law, and the role of the Rule of Law in relation to the separation of powers. For a Court that has insisted there is no strict separation of powers in Canada, it is interesting to see that, whatever the content of the separation is, it does real analytical work in relation to s.96.  Relatedly, it is reassuring to see the Court draw a direct separation between provincial courts and superior courts. Clearly, the latter have a greater constitutional footing than the former.

Another good piece of this decision: the synthesis of the case law around the prohibition of parallel courts. Section 96 has a somewhat tortured history, and it is defensible for the Court to distill the cases down to a simple proposition: legislatures cannot create parallel or shadow superior courts. In fact, this is the role s.96 has typically played in the constitutional order. Consider, for example, the controversy at issue in Farrah. There, a provincial legislature created a tribunal that had exclusive jurisdiction over questions of law, supported by privative clauses. As the Court noted in Crevier, the Farrah problem was the de facto creation of a s.96 court (Crevier, at 238). More examples abound, and so the Quebec Reference’s synthesis of this important point—the main goal of s.96—is important and helpful.

Now, on to the (potentially) bad: there will be an inevitable confusion that arises in the application of the modified core test the Court endorses. Professor Daly says that this approach is contextual, and meshes well with other aspects of Canadian public law. Contextual tests are not necessarily bad, but it is worthwhile to point out that what they provide in flexibility they trade away in certainty. In this context, a lack of certainty could arise in two ways. First, and in general, I wonder whether we need so many tests to govern s.96. As a reminder, we have three: the Residential Tenancies test, the core test, and the modified core test for cases like the Court of Quebec. The life of the law is experience, and so the Court in the Quebec Reference had to work with the tests that had been developed. That said, in a perfect world, I do think there is a way to simplify the test to determine whether s.96 has been abridged. In my view, most of the analytical work can be done by delineating the categories of “core” jurisdiction that have been recognized by the Court in the case law. While the Residential Tenancies test does play a historical function, ensuring that s.96 protects the jurisdiction of the superior courts at least as it was at Confederation, the core jurisdiction categories could also serve this function while providing more categorical guidance. This would, I admit, entail drawing rather broadly the content of the “core,” and this is what, in part, divided the various opinions in the Quebec Reference. On this account, the core would include substantive considerations (such as judicial review jurisdiction, private law jurisdiction, etc) rather than simply procedural powers concerning the management of inherent process (see Abella J’s characterization of core powers at para 301). There would have to be play in the joints, of course, to allow for institutional innovations resulting from the exercise of legislative sovereignty, particularized by s.92(14) of the Constitution Act, 1867; but I am candidly unsure why one test, grounded in the rule of law, which protects substantive and procedural powers of the superior courts is undesirable.

Relatedly, the modified core test is supposedly limited to cases involving courts, and the lead opinion emphatically says that it is not replacing the law when it uses this modified test (see para 144) . But as Paul Daly notes, it is an open question whether this modified test applies to administrative actors as well. While I am reticent, as I said above, about adopting yet another test to govern s.96, there is no principled reason why the tests developed should apply differently based on whether the derogation is in favour of a “court” or an administrative actor. The evil with which s.96 is concerned is the creation of shadow courts that functionally act as s.96 courts. Whether the recipient of this power is an administrative actor or some administrative actor, there is a chance that a shadow court could be created by the delegation of power mixed with the liberal use of privative clauses. Indeed, in Farrah and Crevier, the issue was the de facto creation of a s.96 court, even in the auspices of an administrative body. While the Court of Quebec is a unique judicial body in Canada, Professor Daly notes that broad delegations of power have been made to various tribunals across the country. Those broad delegations would, it seem, be captured by the Court’s modified test.

The Court seems to draw a distinction between administrative actors and courts, noting that the Residential Tenancies test was in part developed to accommodate the developing administrative state. While whatever test is adopted by the Court must be sensitive to the legislative choice to delegate, the functional reasons motivating that delegation cannot exceed constitutional limits; in other words, s.96 is the brake against unfettered legislative delegation that creates unaccountable shadow courts. No matter the desirability of an administrative state, legislative action is limited by s.96. And for that reason, there is no good reason why s.96 should be different in the context of administrative actors versus courts.

There is more in this decision, including the Court’s interpretive approach when it comes to s.96. For now, though, the Quebec Reference is an important jurisprudential statement about the role of s.96. No matter the difficulties that courts may have in applying the doctrine in this case, at the very least we have important statements about the role of s.96.

“Administrative Sabotage” and the Ontario Human Rights Tribunal

Recently, Professor David Noll (Rutgers Law) posted a fascinating article called “Administrative Sabotage” on SSRN, forthcoming in the Michigan Law Review. You can view the article here, and Professor Noll wrote a fascinating thread outlining its main arguments. The abstract:

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks succeed in sabotaging statutory programs?

This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than other more-studied forms of maladministration. In contrast to an agency that shirks its statutory duties or drifts away from Congress’s policy goals, one engaged in sabotage aims deliberately to kill or nullify a program it administers. Agencies sabotage because presidents ask them to. Facing pressure to dismantle statutory programs in an environment where securing legislation from Congress is difficult and politically costly, presidents pursue retrenchment through the administrative state.

[…]

Professor Noll’s paper is a significant contribution, relevant outside of the United States. In fact, as I have written about previously (see Mark Mancini, “The Political Problem with the Administrative State” (2020) 2 Journal of Commonwealth Law 55) the Ford government’s treatment of the Ontario Human Rights Tribunal (OHRT) is a classic example of a government legitimately delaying appointments to stymie the practice of the administrative justice system. Professor Noll has now provided the theoretical and linguistic tools for us to understand this phenomenon in administrative government, even for us in Canada.

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Noll’s focus is “the sabotage of statutory programs by agencies that administer them” [7]. In this, Noll’s project fits in a rich tradition of public administration scholarship that has studied the various ways in which bureaucrats can undermine policy objectives set by their enabling statutes, through mal -administration, “shirking” or drifting, or sabotage. Sabotage can be defined as bureaucratic action that “deliberately undermines policy objectives of the superiors” (see John Brehm & Scott Gates, Working, Shirking and Sabotage: Bureaucratic Response to a Democratic Republic, at 21).  Sabotage “involves a specific stance on the part of the agency toward the program it administers” and the stance “seeks to eliminate a program [the agency] administers” [8]. Sabotage is thus different from other bureaucratic phenomena, in that it involves a deliberate and intentional sacking from within of the agency’s ability to fulfill its delegated mandate [7]. A classic basic example of sabotage that Noll points out—and that I address in my paper on the OHRT—is “non-appointments”—failing to appoint agency heads, or other important positions, as the case may have it [30].

Administrative sabotage, in either Canada or the United States, is a destructive practice that undermines the legislative choice to delegate to agencies. As Noll says: “Rather than use delegated authority to enforce and elaborate statutory policy, an agency uses that authority to undermine the program it administers. In structural terms, this use of delegated authority is at odds with the principle of legislative supremacy” [10]. Once a legislature has delegated power to an agency, it is a condition of the delegation that the power be exercised according to the enabling statute. Agencies and politicians that fail to live up to these delegated terms—and worse, agencies and politicians that actively undermine them—act inconsistently with the power they have been given. Moreover, they act undemocratically—they undermine the legislative plan & bargain containing the conditions governing the administrative action.

Complicating this conventional picture is the emergence of theories of executive control over the administrative state and the desirability of political control as a constitutional matter. The unitary executive theory in the US, for example, generally holds that all executive power is placed in a President, and it therefore follows that the “executive”—including executive administrative agencies—must be controlled by the President (see, for the nuances, Seila Law). In Canada, we have a parliamentary system, but the gist is similar in at least some respects. Legislatures provide powers to executives and administrative decision-makers to make decisions. Legislatures also structure the relationship between the executive and the administrative state, creating and controlling powers of appointment, for example (see the classic example in Saskatchewan Federation of Labour, 2013 SKCA 61). A strong executive power advocate may claim that that the executive can lawfully engage in sabotage by appointing people who wish to undermine the agency itself. It can do so because the executive is the representative of the people, and thus is the politically legitimate actor, in contradistinction to unaccountable administrators.

In the US, the Trump administration furnished many examples of administrative sabotage, and it mooted the defense of the practice. A prominent example included Mick Mulvaney and the Consumer Financial Protection Bureau (the CFPB). The CFPB is in charge of imposing a variety of consumer financial laws. Mick Mulvaney, appointed the head of the CFPB, had previously indicated that he supported abolishing the CFPB [3]. Of course, by itself this is neither here nor there. But once Mulvaney became the head of the agency, on the conventional picture, he had no discretion to undermine the legislative bargain simply because he disagreed with it in principled. Yet he did so: he “declined to request money to fund the Bureau’s operations; installed “Policy Associate Directors” to shadow bureau chiefs protected by the civil service laws; rescinded, stayed, or delayed major rules on payday lending, overdraft fees, and student loan servicing…” [3]. Mulvaney justified these practices by appealing to the adage of “elections have consequences” [11].

Noll’s paper also explores the various reforms that might be adopted to stop sabotage. Noll shows how courts and Congress have been largely unable to control sabotage. Presidents and courts that have a reflexively anti-administrativist agenda may, in fact, be incentivized to exacerbate and permit administrative sabotage. But as a practical matter, there is another issue: many instances of “administrative sabotage” are simply not amenable to judicial review: “it is simple to invent technocratic explanations for agency actions designed to undermine a statutory program…”, and as such, there are evidential hurdles [13-14]. Noll suggests that specific statutory reforms that might shed light on the question, the goal of these reforms being that the statutory schemes are designed to prevent sabotage—“policymakers should not assume that programs will be administered in good-faith” [50]. Noll suggests statutory appointment qualifications consistent with the Constitution; and, notably for our purposes, endorses the proposition that broad statutory delegations (the norm since the New Deal) encourage sabotage [54].

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There is much in Noll’s piece to recommend it to Canadians, but I want to focus on just two points: (1) Noll’s conclusions about delegated power; and (2) the case of the OHRT, arguably an example of Noll’s sabotage.

As noted above, and since the New Deal, scholars have argued—and sometimes assumed—that broad delegations of statutory power are desirable. So the old case goes, legislatures simply do not have the time and expertise to consider all the factors when legislating; and particularly in complex fields of regulation, it makes sense to delegate power to so-called expert agencies. As a descriptive matter, this is likely true, and for that reason, it makes sense for legislatures to “trade-off” political control for expertise (as Epstein & O’Halloran once put it).  But this does not speak to the degree to which this should happen. As I wrote in my article on the matter [94], and as Noll essentially argues:

The real problem with executive discretion, then, is not that it abridges independence; but that it has a potential of being misused to undermine the limitations on statutory power that arise in the context of a delegating statute. The goal should be to cabin executive discretion tightly so that it, necessarily, cannot undermine delegated legislative power. Broad delegations, on this understanding, should be avoided.

The point is that the solution to sabotage starts not with depending on the good-faith of administrators (as a previous generation of pro-administrativist scholars did), or depending on the political control exercised by an executive actor (who may have incentives to permit sabotage). Instead, it starts with the legislature slightly increasing the cost of legislating by keeping the possibility of sabotage in mind when legislating, and using its powers to put meaningful limits on delegated powers.

This raises an important point about independence. To simplify, in Canada, the independence of administrative decision-making is parasitic on the degree to which a statute permits that independence (famously, see Ocean Port). Statutes can either liberate or constrict executive control over the administrative state. One way for executives to control so-called “independent” tribunals is for the legislature to vest an appointment power in the executive. Assuming this power is exercised according to the terms of the statute, there is no constitutional objection; while independence of administrative decision-making may be a good in some cases, it is not self-evidently legally required (though see the reading of the caselaw suggested by Ron Ellis in his text, Unjust By Design). And political control by elected actors is desirable in a system of responsible government.

But again, this is only true to an extent. Sabotage is quite different from an executive exercising lawfully delegated powers of control; it is a situation where an executive or agency head may intentionally choose to exercise power it does not have to undermine the power it has been granted. The sin of omission here is not that the executive is simply choosing not to exercise delegated power; it is that the executive is actively using its position to undermine the entire statutory bargain setting up the agency.

And this is exactly what happened in the case of the Ontario Human Rights Tribunal. As late as January 2021, observers argued that “…Ontario’s human rights enforcement system has become dysfunctional” in part because “The final resolution of a claim can now take years for individuals who have experienced discrimination.” The cause of this delay: few of the human rights adjudicators whose tenure is at-pleasure have been replaced. I previously studied this phenomenon as an example of a situation where an executive was failing to implement delegated statutory power. Indeed, the relevant legislation delegates power to the Cabinet, who “shall” make appointments to the tribunal [my paper, at 82]. By failing to do so, the government created grist for the mill of its critics, who asserted—not unreasonably—that the government was intentionally starving the tribunal and delaying the resolution of claims.

The failure here is traceable, ultimately, to the legislature—though the executive undermining of delegated power is the evil to which the legislature should have turned its mind. The legislature enacted the tribunal, and it can rescind its powers tomorrow. But executives do not have that authority, which is why sabotage is undesirable. So, in the OHRT case, by failing to impose timelimits for appointments and a minimum number of members, the legislation grants easily-abused delegated appointment power to the executive. So, as Noll suggests, it was the breadth of delegated power that created the conditions for sabotage.

Canadians should pay close attention to Noll’s article. While there are obvious differences between the Canadian and American administrative states, the phenomenon of sabotage is likely a common evil.

Bill C-10 and the CRTC Debacle

Does it get much worse?

Bill C-10 has passed the House of Commons. For those unaware, the bill nominally involves “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.”  Experts, like the University of Ottawa’s Michael Geist, are concerned about the far-reaching impacts of this law. The concerns mostly revolve around the idea that the government’s law may reach content produced on user-driven sites, targeting individual content creators rather than the “tech giants” that are the nominal targets of the law.

I agree with Professor Geist. I share deep worries about the chilling effect this, and other measures the government is introducing, will have on free expression. But that isn’t my area of interest or expertise, for the purposes of today. Instead, whatever the content of the law, no one can gainsay Professor Geist’s conclusion, upon the tabling of the bill, that it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.” The wide-reaching delegation of power will, as is common in administrative settings, be used by the CRTC to the hilt. We should expect nothing different, and we should therefore be disappointed that Canada’s government did all it can to prevent the legislature from taking a hard look at this bill.

In Canada, most of our discussions of administrative law are synonymous with discussions of judicial review. That is, we tend to view the law of judicial review as the same as administrative law. The focus of most Canadian administrative law academics (myself included) is on the stuff of judicial doctrine; standards of review, procedural fairness, etc etc. But, in other jurisdictions, like the United States, legislatures and courts have indicated an interest in controlling administrative power themselves. The United States’ Administrative Procedure Act, despite its flaws, is at least a legislative indication that the administrative state can and should be controlled by the legislative standards regarding adjudication and rule-making.

No such interest evidently exists in Canada, as the Bill C-10 debacle shows.  Put aside, for the moment, the rather emaciated Statutory Instruments Act (see Neudorf, here for problems with this statute at 562 et seq, and my paper, here, for more). The efforts by the government (and other abettors) to do anything—whatever the optics—to limit debate and amendment of the bill are unfortunate:

All bills, no matter their consequences, should be subject to robust debate, in both Parliament and the public forum more generally. But this law, in particular, is troubling from an administrative law perspective. Parliament’s inability to even fully debate—let alone control—the mass discretion passed to the CRTC should worry all Canadians.

I accept the legitimacy of the administrative state, parasitic as it is on delegated power. But that’s the rub—the power is delegated, and amenable to control by the delegator. The legitimacy question is quite aside from the need for the formal, constitutional actors in our system (the legislatures, specifically) to fully and frankly debate the policy and legal implications of broad delegated power. In fact, legislatures may be the only ones with the power to do this in our constitutional order. Despite strong arguments to the contrary (see Justice Côté’s opinion in the GHG Reference and Alyn Johnson’s excellent paper here), I am not convinced that courts can pass on the constitutionality (let alone the policy implications) of the scope of broad delegated power. While courts are the only “independent” guardians of the Constitution (see Ell, at paras 3, 23), that does not mean that legislatures should bar themselves from considering the legalities and policy implications of their delegations.

It gives me no comfort that judges of the Supreme Court and commentators has referred to the CRTC as the “archetype” of an expert tribunal (see the opinion of Abella and Karakatsanis JJ in Bell Canada, at para 64; see also B. Kain, “Developments in Communications Law: The 2012-2013 Term—The Broadcasting Reference, the Supreme Court and the Limits of the CRTC” (2014) 64 SCLR (2d) 63). While it is certainly true that “we simply do not know what the typical bureaucratic objective function looks like” (see Gersen, here, at 335), there is clearly a risk that “[d]elegation can create iron triangles of policymakers insulated from public control…” (Gersen, at 345). This is even more apposite where the mandates that are implemented by administrative actors are vague and general, as they often are. While expertise may be a valid reason for delegation, there is an inevitable trade-off involved in delegating power to experts—there is always a risk of bureaucratic drift, or expansion of delegated mandates. The worry is multiplied when the legislature indicates little interest in debating the merits of delegated power. Indeed, perhaps the legislature has no incentive to control delegated power, except for the incentives provided by constitutional principles.

 And here, the CRTC has been given delegated power a country mile wide. As Geist noted on the tabling of the bill, many of the specifics of the bill’s new concept of “online undertakings” will be left to the regulator. For example, the third reading of the bill does not unambiguously say that it does not apply to users.  Much will be left in the hands of the CRTC through its regulation-making powers. We will not know the extent to which the market and users will be affected until the CRTC begins using its new-found powers.

Now, because of the parliamentary calendar, it does not appear  that the Senate will be able to pass the bill in time. This is good news, but it seems more fortuitous than anything. More of this vast delegated power appears on the horizon for other agencies, like the Canadian Human Rights Commission. A rigorous public will need to step in where the government has made it impossible for the legislature to fully examine the proposed law.

The Politics of Law

Is law truly just a function of politics? Should it be?

It is common in progressive circles (and, increasingly, in conservative circles, to some extent) to say that law=politics, or some variation thereof (law is always political, law is political, etc etc). The claim is usually offered without much in the way of qualification, and it appears to capture the many aspects of “law”; the creation of law, the implementation of law, and the interpretation of law.

In this post, I argue that this claim is either banally true or implausible because it merges law with politics in a way that our current system simply cannot support. To determine its veracity, the claim must be examined closely—in relation to the various ways that political considerations interact with law. A failure to do so infects the “law=politics” claim with a fatal imprecision.

I first outline the limited ways in which the claim is likely true. Then I shift gears to a normative argument: while the claim may be true in certain ways, it is not self-evident that it should be true across the legal system. In other words, there is good reason to accept that law may be “political” in certain ways; but it isn’t the case that it should be in all aspects of the law (its creation, implementation, and interpretation).

***

Before jumping in, I should acknowledge some imprecision in terms here. The law=politics claim is often made bluntly, without defining what is meant by “politics” or “political.”  It could mean, for example, that law is inevitably wrapped up in partisan politics. It could mean that law is not necessarily co-extensive with partisanship, but is correlated with political ideology more broadly. Or it could mean something very simple: law is “political” in the sense that people are “political,” meaning that law mediates disputes in a society where political disagreement is inevitable.  It could also mean a combination of all three of these things, or more.

All of these claims could be descriptively true in various ways, in relation to different aspects of law-making, implementation, and interpretation. But a failure to distinguish between these various definitions of “politics” and “political” presents an immediate hurdle for those who claim, without qualification, that law is always political. As I will note throughout, these various claims to the political nature of law may be more or less true given the institutional context. It does not follow that every political consideration is always relevant to the law.

***

Starting with the descriptive claim, it is clearly true that law can be political. The creation of law in the legislature is itself a political act. Laws are created to achieve certain aims; these aims can clearly be motivated by ideologies; and the content of law is not “neutral” as between political aims. Political parties make up the legislatures, and they vie for power in elections. In this case, and quite obviously, law is the product of political machinations. It follows that the creation of law itself can be motivated by wholly ideological reasons, quite aside from any claims to public reason or ideological neutrality. As I will note below, the notwithstanding clause is a good example of a situation where a legal power can be exercised for solely political reasons.

As well, the implementation of law by administrators, state officials, police, and others will not always be perfectly consistent with what the law says. Officials could operate on personal whim or policy preferences that are inconsistent with the policy preferences specified in the law. After all, state officials routinely fall below the standards set by the law and the Constitution—one only need to look at the number of constitutional challenges against state action that are successful in Canadian courts (though, of course, this may be due to stringent constitutional standards rather than routine malfeasance by state officials). Whether this is due to cognitive biases, outright hostility to legal norms, or mistaken application, laws can best be seen as ideals that state officials will sometimes fall below. This illustrates that state officials—at best—can only approximate legal norms. In administrative law, for example, the law of judicial review could be understood as an attempt to police the gap between the law on the books and the law as applied; to inch state officials towards following the law on the books, as much as possible.

Similarly, as a descriptive matter, the interpretation of law could be “political” or perhaps more aptly, “ideological.” Law is fundamentally a human business, and interpretation cannot be a perfect science, a simple application of axioms to words. Human beings have cognitive biases and judges are simply human beings. Notwithstanding the fact that judges sometimes speak as if they are neutral protectors of constitutional values, it is simply impossible to guarantee that law will always be interpreted authentically. To be clear, this tendency is likely true across the political spectrum—results-oriented interpretation can be common on the left or the right, and in each case, it is unavoidable that there will be results-oriented interpretation.

That said, we simply do not know the extent to which any of the above is even true in Canada. While it is plausible to suggest that judges and officials may have their judgments infected by ideology extraneous to the legal instrument under interpretation, this should not be overstated. Empirical research would be helpful in determining the extent of this phenomenon. For the most part, though, Canadian judges likely do their best to apply the law according to its terms. (NB: see Emmett Macfarlane’s work here, which tackles some of these issues. I’ve ordered the text).

***

As a normative matter, let us assume that it is true that implementation and interpretation of law can be “political” or “ideological” or something of the sort.   There are two options: we create rules, standards, and principles to limit the gap between the law as adopted and the law as applied; or we do not.  The form of these rules, standards, and principles is unimportant for our purposes. For now, it is enough to say that there is a fork in the road. Either we choose to limit the political/ideological discretion of state actors—including judges—or we do not. The point here is that while there can never be perfectly “neutral” or “impartial” creation, implementation, and interpretation of law as a matter of fact, it is desirable—as a normative matter—to limit the role of pure ideology in certain areas of law, to the extent we can.

This is obviously not true in the context of law-creation. The public understandably, and quite likely, wants our laws to be the product of a democratically-elected legislature (to the extent our electoral system leads to fair democratic outcomes in the abstract). In this sense, people vote for representatives that share their priors or who they wish to see in the legislature. Those legislatures, composed as they are by political parties, will pass laws that reflect the majority will (again, to the extent the “majority will” is represented in our electoral system). Ideally, in legislative debates, we want all the cards on the table. We want our representatives to fully and frankly air their ideological differences, and we want the public to be able to judge which program of government is best. In this sense, it is undesirable as a normative matter to (somehow) limit the politics of law in the realm of legislation.

However, as a normative matter, the story changes dramatically when it comes to law implementation and interpretation. Our Supreme Court endorses the proposition, for example, that interpretation must be conducted in order to “discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome” (Vavilov, at para 121). Administrative decision-makers implementing law have only limited reserve to bring professional expertise to bear (Vavilov, at para 31); otherwise, they are creatures of statute, and are cabined by the terms of their statutes (Chrysler, at 410). Put differently, administrative actors implementing law have no independent reserve to make free-standing ideological determinations that are not incorporated into the law itself. A different way to put it: law is political in the legislatures, but when it is being interpreted or implemented, courts must discover the political choices embedded in the law itself.

  The Court also endorses a law and politics distinction, as a constitutional matter, when it comes to judicial independence. It says that judicial independence is “the lifeblood of constitutionalism in democratic societies” (Ell, at para 45), which “flows as a consequence of the separation of powers” (Provincial Judges Reference, at para 130). Judges should not, at least as a positive matter, render decisions that are infected by ideology—because it is the legislature’s job to make judgment calls based on political considerations, economic tradeoffs, or otherwise.

I could go on with examples of how our Court—and our system—endorses a separation between law and politics. For what it’s worth, and no matter the descriptive reality, I believe there is wisdom in articulating limits to the free-standing ideological whims of administrators and judges. Of course, these limits will not be perfect, and they will not reverse the reality that implementation and interpretation will sometimes be driven by results. But the use of rules, standards, and principles to cabin these free-standing policy preferences can be useful in ensuring that state actors and judges justify their decisions according to certain, universal standards.

Two examples could be offered. First, in statutory interpretation, we have semantic canons, presumptions, and tools to try to determine the authentic meaning of law. These “off-the-rack” tools and presumptions are far from perfect, as Karl Llewelyn once pointed out. They can be contradictory, and they are not axiomatic laws of nature that lead inexorably to certain results. But we have these rules for a reason. We use them because we have made an ex ante judgment, over the years, that they will help interpreters reach the authentic meaning of legislation (or, if one is an intentionalist, the authentic intention of legislatures). We do not expect judges to distribute palm-tree justice when faced with a law. Instead, we expect judges to justify their interpretive result through the prism of these canons and presumptions, because they are semantically and substantively useful. We do this because there is a law and politics distinction between legislative work and judicial work, endemic to our Constitution.

Of course, there is a recognition that legal principles may themselves have a certain political valence. Presumptions of liberty, substantive equality, strict construction of taxation laws–all of these rules could be said to contain certain “political” suppositions. As I have written before, I am generally not supportive of certain substantive presumptions of interpretation that put a thumb on the scale. But as Leonid Sirota writes, some of these presumptions are plausibly connected to the legal system–in this sense, they are political, but they represent values that are endemic to the legal system as it stands. Substantive equality is similar. It can, at least plausibly, be traced to the text and purpose of s.15 of the Charter. These are principles that have some connection to our legal system; they are not representative of the whims of the particular interpreter in a particular case. At any rate, forcing interpreters to justify their decisions is useful in itself.

Secondly, Doug Ford’s recent decision to invoke the notwithstanding clause presents a good difference between the ways in which law can be political, and the ways in which it should not be. When a government invokes the notwithstanding clause, it is not necessarily an exercise of reason. It could be a blunt assertion of legislative power. Now, that assertion of power can be justified by any number of considerations. If some detractors are correct, for example, Ford’s use of the clause in this case could simply be designed to punish his opponents. Less likely, it could be a good-faith attempt by a legislature to come to a different definition of a rights-balance. Whatever it is, the use of the notwithstanding clause is an exercise of power that could be motivated by distinctly political aims. In this way, legislation is quite clearly political.

However, and even if naked political judgments are not justiciable once invoked under cover of the notwithstanding clause, the public may wish to articulate a different justificatory standard for the use of power that is legalistic in nature. As Geoff Sigalet & I wrote here, the public may wish to subject politicians who invoke the notwithstanding clause to a standard of justification—the politicians should offer legitimate, objective reasons for the invocation of the clause. Again, this is not a legal requirement. But as a matter of custom, it is a requirement that the public may wish to impose on politicians as a check on rank political judgments. By imposing such a standard, the public can disincentivize uses of the clause that are not backed by solid, legal reasons.

None of this is new. Indeed, Dicey argued that for the Rule of Law to flourish in any society, the society must contain a “spirit of legality” that is separate and apart from any limits imposed on power by  courts themselves. This spirit of legality presupposes that there are some areas where the public should expect better than rank political and ideological judgments. Of course, the law & politics distinction is a matter of some controversy, and I cannot address every aspect of the distinction here. Suffice it to say: broad claims that “law is always political” cannot hold. Law is descriptively political in some ways. It does not follow that it should be in all cases. Quite the opposite, sometimes it is best for rules, standards, and principles to cabin the ideological capture of courts and others, as best they can. This will not be perfect, it will not always work, and it is not a mechanical process. But it’s worth trying.

For What It’s Worth

University of Toronto professor Richard Stacey recently released an article in the University of Toronto Law Journal (paywalled, which is truly unfortunate), arguing that (among other things) the Supreme Court of Canada’s decision in  Vavilov “affirm[s]” the Supreme Court’s controversial decision in Doré  (340; see also 351). To be specific, Stacey says (340-341):

Read together, and building on a rich body of Canadian case law that came before,  Vavilov and Doré  definitively mark a culture shift way from an outcomes-oriented conception of judicial review toward one that engenders a culture of justification…

…in a culture of justification built on a robust conception of reasonableness, constitutional law and administrative law come together in a unified system of public law.

Stacey also makes a number of other arguments, including: (1) the culture of justification apparently endorsed in the same way in  Vavilov and Doré necessarily and logically excludes correctness review (see pg 349) and (2) so-called “Charter values” act as “justificatory resources” that together bind a unified system of public law, bringing  Vavilov and Doré  together (357 et seq). That is the core of Stacey’s argument: the so-called “unity of public law” thesis draws together a requirement that administrative decisions be justified.

Stacey’s argument is interesting, but ultimately unpersuasive. For one, it treads well-worn territory of “administrative constitutionalism” and “the unity of public law,” theories that—as I will argue—are actually undermined by  Vavilov’s formalism. While  Vavilov does put a focus on justification, Stacey’s article does not deal with the parts of  Vavilov that clearly work against his thesis: the dispatch of expertise as a factor governing the standard of review; and the retention of correctness review based on Rule of Law considerations, among other things. Secondly, Stacey’s article does not engage with key scholarship on this issue post- Vavilov that could both strengthen and undermine his case. Finally, Stacey attaches too much determinacy to Charter values, ethereal things that even their most ardent supporters must agree are relatively indeterminate: perhaps not of this world.

***

Stacey sets out his argument on the first issue (the marriage between Doré  and  Vavilov) boldly: “The foundation of both cases is the same, and both judgments ultimately embrace the same conception of reasonableness” [351]. Stacey cites the Alsaloussi case out of the Federal Court, where the Court relied on  Vavilov in a Doré -type case to give guidance “on what a reasonable decision looks like” [351]. To Stacey, this case—and the theory—reinforces “how the two judgments help to draw administrative and constitutional law together in a single, unified system of law” [352].

As I have outlined previously, I do not see how this is the case, even on the terms of the reasonableness standard. Doré  was positively unclear about what administrators should do when faced with a Charter claim, beyond saying that an administrative decision-maker “balances the Charter values with the statutory objectives” (Doré , at para 55 et seq). The only question for a judicial review court is whether “in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré , at para 57). But, unlike the Oakes test, and unlike  Vavilov’s list of constraints, the Doré -line of cases do not provide any guidance on how courts should conduct the proportionality analysis.  Vavilov provides a far more robust and detailed schema of reasonableness than Doré  does, and so to equate these cases on this front is ultimately unpersuasive. The similarity on the reasonableness front—if it exists—is cosmetic at best.

Stacey also does not address why  Vavilov’s comments on constitutional issues do not demand a correctness standard in the Doré  context. As a reminder, the Court in  Vavilov—while expressly excepting Doré  from the scope of the comments for now (see para 55)—said that “[t]he constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard” ( Vavilov, at para 56).  As I have said before, this should logically include Charter issues. But Stacey does not address this point, nor does he address important literature attacking administrative constitutionalism as a general theory (see Leonid Sirota’s paper here).

Moreover, Stacey does not address other post- Vavilov commentary that could actually strengthen his point. For example, Paul Daly argues that all issues going to the merits in  Vavilov are, on its own terms, subject to the reasonableness standard. I have my issues with this argument, but I think it is far more persuasive in support of Stacey’s argument than the evidence Stacey actually offers–in part because it takes Vavilov on it’s own terms.

Relatedly, Stacey argues that a joint-reading of  Vavilov and Doré  renders the correctness standard irrelevant (349). Yet this is not convincing to me. As I have argued, and as Professor Daly argues to a similar extent,  Vavilov is not just one thing, easily explained with reference to a catchphrase like “culture of justification.” There are various currents of administrative law thought coursing through the decision.  Vavilov’s comments on the Rule of Law, for example, are relatively formalistic, focusing on the role of the courts as the guardian of the Constitution. On the other hand, other parts of  Vavilov clearly draw from the justificatory school of administrative law thought, championed by scholars like David Dyzenhaus. As I have argued in previous work, these schools of thought can be complementary, but  Vavilov is clearly a product of pragmatic agreement, even if guided by principle to some extent. Professor Stacey does not address this reality when he excludes correctness from the standard of review equation, without as much as addressing the counter-arguments clearly presented in Vavilov. Indeed, if one follows  Vavilov’s formalistic side, correctness review still has a valuable—and formally required—role in Canadian administrative law.

Finally, I should draw attention to Stacey’s argument on Charter values. Much has been written on Charter values, and I need not reprise that literature to make my objection: Stacey’s focus on Charter values as justificatory resources is only useful if the set of justificatory resources is relatively bounded and determinate. While we cannot expect perfect or near-perfect determinacy in law, and moral reasoning with regards to rights-claims is inevitable, this does not logically entail an embrace of Charter values. The problem is that Charter values are endlessly indeterminate—they are not necessarily bounded by the text of the guarantees they are supposed to represent, and some Charter values could conceivably not be found in the text. Enterprising courts and litigants could pitch a value at high level of generality, leading to needlessly subjective moralizing about rights in a way untethered to the doctrine of various constitutional guarantees. Since there is no clear agreement on (1) how to determine what Charter values are relevant; (2) how Charter values are different than Charter rights; and (3) on how administrators are supposed to understand Charter values as distinct from Charter rights, this set of justificatory resources is not at all helpful to courts or litigants.

Tying together Stacey’s article is a common claim: “…I see no distinction between administrative and constitutional law in the first place” (357). Of course, this is a common (one might say orthodox) position. And yet it ignores an important function of constitutional law in relation to the administrative state—the Constitution (written and unwritten) is a limitation or constraint on government action (see  Vavilov, at 56). The hierarchy of laws exists for a reason, and under that hierarchy administrative discretion is parasitic on a statutory grant, which itself is subject to Charter scrutiny. There is no real, formal equality between administrative law and constitutional law: the Constitution is supreme, and it shapes and constrains government power. It does not liberate administrative discretion.

All told, Professor Stacey’s article contributes to the growing post- Vavilov literature. Unfortunately, I do not find it convincing.  Nonetheless, the Supreme Court will eventually deal with Doré  post- Vavilov. And until then, my opinion is worth as much as the page it’s written on, for what it’s worth.

Overcoming Justice Abella’s Admin Law Legacy

On the occasion of her retirement, what can we learn from Justice Abella’s administrative law generation?

All good things must come to an end, and such is the case with the careers of our Supreme Court judges. On July 1, 2021, Justice Rosalie Abella will retire. Justice Abella has been a lighting rod—for good and bad reasons—throughout her tenure on the bench. There is no doubt that she, having been a Supreme Court judge since 2004, has left her mark on various areas of Canadian law. Others will analyze Justice Abella’s legacy in those areas.

In this post, I hope to provide an assessment of Justice Abella’s legacy in the world of administrative law. For a generation, Justice Abella (even before she was on the Supreme Court–see her decision in Rasanen) was a leading Canadian administrative law thinker with skills of persuasion. While Justice Abella’s thinking on administrative law was broadly representative of the judicial and academic zeitgeist of the period starting with CUPE , time and experience have shown limitations in this thinking, and the Court has rightly begun to rollback the “innovations” of this period. The problems are two-fold: (1) Justice Abella’s notion of deference is largely based on illusory assumptions about administrative expertise; (2) Justice Abella’s notion of deference makes too much of the position of administrative actors as “partners” in the law-making enterprise, especially on constitutional questions.

I will start by outlining Justice Abella’s general theory of administrative law, as represented in extrajudicial writing and some select opinions. I will then flesh out my criticisms of Justice Abella’s administrative law legacy, showing how and why the Court was justified in Vavilov in resiling from some of the commitments demonstrated by Justice Abella through her opinions and the Court’s pre-Vavilov case law. In short, Justice Abella’s lack of skepticism about government power—particularly administrative power—simply does not register as credible in the 21st century. To develop a doctrine of deference that is attuned to the diffuse nature of administrative power, the Court must continue to overcome the administrative law commitments of Justice Abella’s generation.

***

I have written many times about the dominant mode of administrative law thinking in Canada, culminating in the jurisprudential watershed moment of CUPE. Justice Abella fits neatly in this generational movement. The so-called functionalists (people like Justice Abella, John Willis, Harry Arthurs) were high on administrative power for two overlapping reasons. First, they saw the conservative common law courts stymying administrative decision-making, which was the means used by legislatures to implement social justice policy (see, particularly, the work of Harry Arthurs). Second, they assumed that administrative actors were more expert in the administrations of their statutory schemes than courts (see , again, Arthurs). This was best represented in the Supreme Court’s Dunsmuir decision, when the Court adopted the famous quote from David Mullan, suggesting that deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: see Dunsmuir, at para 49.   The net result of these two commitments is an ardent belief that administrators can render decisions, using their own techniques, that make sense of the law—and that courts should respect those decisions. For Justice Abella, then, the “Rule of Law”—which typically justified the subjection of administrative power to the law—is a formalistic legal principle that unnecessarily pits judicial power against administrative exigency. Instead, as Justice Abella says in a co-written piece with Teagan Markin, the law should inculcate a “mutually respectful relationship between the courts and administrative decision-makers” one that prizes the “legitimacy” and “authority” of administrative actors (Abella & Markin, at 272) as a “constitutional participant” (Abella & Markin, at 298).

With these commitments in mind, the Court developed a theory of deference that did just that. In the high-water mark era for epistemic deference, the Court confirmed that expertise was the most important factor influencing the selection of the standard of review (Southam, at para 50). In Dunsmuir, as noted above, respecting the institutional choice to delegate to experts was seen as a valid reason for courts to defer to administrative actors.

Justice Abella’s functionalist mindset was clearly represented in her opinions. Three are relevant. First is her decision in Newfoundland Nurses. That case—which Vavilov implicitly overruled (see Vavilov, at para 96)—permitted courts to “supplement” decisions that were otherwise deficient in their reasons (Nfld Nurses, at para 12). What was required under Nfld Nurses was a “respectful attention to the reasons offered or which could be offered…” (Nfld Nurses, at para 11 citing Dyzenhaus). The upshot of this is that courts could not quash decisions simply on the basis of the quality of the reasons alone (Nfld Nurses, at para 14) because of considerations of specialization and expertise (Nfld Nurses, at para 13). Here, we see the translation of administrative law theory into administrative law doctrine. Because Justice Abella is concerned about the legitimacy of the administrative state and undue judicial interference, she would rather courts partner with administrative decision-makers in supplementing decisions rather than subverting them.

A second example, and perhaps the most important one, is Justice Abella’s opinion for a unanimous court in Doré. Doré is important because it demonstrates the two strands of Justice Abella’s administrative law thought: pluralism and expertise. Doré basically held that when administrative decision-makers make decisions that engage constitutional rights, their decisions are entitled to deference if they represent a proportionate balancing between the relevant Charter right and the statutory objective at play (Doré, at para 57). For Justice Abella, though, Doré was more than just a technical framework. For her, Doré was “deference theory at work” (Abella & Markin, at 299) because it showed, finally, that “administrative bodies have then authority and expertise to interpret apply…legal constraints…” (299). Even on constitutional matters, typically jealously guarded by the judiciary, this was true. Indeed, it was because of the supposed (though unproven) expertise of decision-makers on constitutional questions arising in their ambit that deference was justified (Doré, at para 47).  Here, the various strands of functionalism are in full force, yielding a rather major shift in doctrine: courts must defer to administrators on constitutional matters.

Finally, Abella and Karakatsanis JJ’s opinion in Vavilov is perfectly representative of the sort of administrative law thinking that, as I will note, may be on its way out. In Vavilov, the Court implemented a number of changes to judicial review doctrine in Canada. One of these changes was a downgrading of expertise as a reflexive or presumptive deference factor (see Vavilov, at para 30). Now, there would be no assumption that “expertise” leads to deference—expertise would need to be proven through robust reasons (Vavilov, at para 31).  Additionally, the Court also clarified that in certain circumstances, the Rule of Law—as an apparently standalone, unwritten principle— would dictate that a standard of review of correctness should apply (Vavilov, at para 53 et seq). In these regards, and as I have written in other work, Vavilov  (at least in part) represents a more formalistic template of administrative law theory than what preceded it (796). For Abella and Karakatsanis JJ, this was the problem: to them, Vavilov was a “encomium for correctness and a eulogy for deference” (Vavilov, at para 201). Why? Because gone was expertise as a presumptive reason for deference, with the substitution of a “court-centric conception of the rule of law rooted in Dicey’s 19th century philosophy” (Vavilov, at para 240).

With these three cases taken together, Justice Abella’s views on administrative law can be sketched out. She often demonstrates an abiding trust in administrative decision-makers and their expertise over legal—and even constitutional—matters. This leads to a positioning of the administrative state as a partner in law-making and interpretation. Deference, put this way, is a recognition by a judicial actor of this apparently constitutional role of administrators. While this appears to be Justice Abella’s view on administrative law, it is worth noting that the Court as a whole seemed to largely accept this understanding of the relationship between courts and administrators.

***

Having set out the gist of Justice Abella’s general conception of administrative law, I now wish to show three problems with this understanding. To the extent the Court, in Vavilov, has walked back this understanding of administrative law, it should be celebrated. And while Justice Abella’s Doré opinion remains on the books, there are good reasons to think that it, too, will and should be overturned.

  1. Expertise

The first issue with Justice Abella’s view of administrative law, demonstrated throughout her tenure, is its problematic assumption of expertise. As demonstrated through the Supreme Court’s pre-Vavilov case law, and in Justice Abella’s opinions, “expertise” was a woefully underdeveloped doctrinal concept that carried with it great power. Its invocation—especially in relation to well-established decision-makers like labour boards—ensconced those decision-makers with a juridical and psychological immunity from judicial scrutiny. But the Court never explained what “expertise” meant, how it could be recognized by courts, and why a presumption of expertise (as hardened in Edmonton East) was at all empirically justified.

In fact, many issues with expertise arise that Justice Abella and others never addressed. The first and obvious issue is that “expertise” on legal matters may simply not always exist as an empirical matter. The Vavilov majority recognized this reality when it stated that if expertise is simply assumed in all cases, it cannot be a doctrinal concept that meaningfully assists a court in determining whether a particular decision-maker is actually expert (Vavilov, at para 27 ). But more importantly, the presence of expertise is based on an empirical assumption: administrators, operating within the confines of their legal schemes, can best transfer their policy expertise to the world of interpretation; their expertise can inform their understanding of their own statutory scheme, and as a result, courts should defer. But this is based on a number of unproven assumptions: (1) that particular decision-makers have relevant policy expertise; (2) that relevant policy expertise is easily transferrable to skills required to interpret statutes; (3) that relevant policy expertise will necessarily shed light on what particular legislative terms mean. Without answers to these questions, it is simply speculation to suggest that administrators possess expertise that would assist them in interpreting the law.

The assumption is even stranger when one considers constitutional questions. If courts are to defer to administrative consideration of the Constitution, a few more assumptions need to be added to the mix. It must be assumed that relevant policy expertise=relevant legal expertise=relevant constitutional expertise. While the Constitution is law, it is a sui generis law that contains its own meanings, purposes, and interpretive techniques. Absent some compelling reason to think otherwise, it is mind-boggling to simply assume that line decision-makers will reliably and expertly contribute to the meaning of the Constitution.

Secondly, the obsession with expertise in the case law and in Justice Abella’s opinions fails to recognize the dark side of expertise. The administrative state is gargantuan, and it does not only include benevolent, public-minded people applying their “neutral” expertise in authentic ways. Expertise can also cut the other way: it can lead to a decision-maker taking a myopic view of constitutional values, or otherwise subordinating constitutional or other general legal principles to the narrow exigencies of what is required by administrative “expertise” (see for example, Kerr, at 260).  Interestingly, Kerr writes in the prison context, where there is a professional environment that systematically values control over the exercise of constitutional rights–and where concerns about assumptions of expertise are grave, indeed (see the factum of the Queen’s Prison Law Clinic in Vavilov). A lack of familiarity with constitutional norms, and a professional environment that may not inhere respect for those norms, does not inspire confidence. Indeed, the Doré framework—which places constitutional “values” and statutory objectives on the same playing field, despite the hierarchy of laws—will underpower rights because it fails to accord priority to constitutional rights over administrative objectives (see the dissent of Brown and Cote JJ in TWU, at para 206).

Finally, Justice Abella’s deployment of the “expertise” label may have led her to undervalue the importance of reasoning in determining the legality of administrative decision-makers. Doré is an example of this undervaluing. In Doré, Justice Abella did not provide any detail on the standards to be used in determining whether an administrator’s reasoning met constitutional standards. It was enough  that administrator to “balance” (whatever that means) rights and objectives; indeed, in some cases, the administrator need only be “alive” to the Charter issues (TWU, at para 56). As I will note below, this is an empty theory of deference. It tends towards abdication based on faith in expertise rather than respectful deference. Relying on expertise as a faith-based reason for deference should not exclude the requirement for proper reasoning, as Vavilov confirms.

Now, the fact that administrators may not have expertise may not be fatal for Justice Abella. In her Vavilov opinion with Karakatsanis J, the judges note that internal administrative training could be a fix (see Vavilov, at para 283) rather than authorizing “more incursions into the administrative system by generalist judges who lack the expertise necessary to implement these sensitive mandates (Vavilov, at para 283). This is a nice thought, but it is a bit like allowing the fox to guard the henhouse. There is no reason to assume, without more, that administrators will undergo training sufficient to understand the Constitution, for example. Even if there was, internal training is clearly no substitute for judicial review by generalist judges. It is the very fact that judges are generalist that makes them well-suited to ensure that general legal concerns—like the Constitution—find expression in discrete administrative regimes, with their own internal pressures. And as a matter of law, judicial review must exist. In an ideal world, we would expect administrators to structure their discretion through robust legal training, and we would expect courts to act as a backstop.

2. Pluralism

A second theme seen throughout Justice Abella’s opinions is a focus on legal pluralism. As noted above, the idea is that administrators should be seen as valid contributors to the meaning of the law and Constitution—and thus, courts should not take a supervisory or command-and-control position vis-à-vis the administrative state.

Now, it should be noted that this theme presents two distinct questions. First is whether administrators should have the power to render binding interpretations of law and the Constitution. This normative point, however interesting, is somewhat moot, in part because of the success of Justice Abella’s administrative law theory over the years. Administrators, as a matter of law, do have the power to render binding interpretations of law & the Constitution, if they are delegated the power to do so (see Martin & Conway). In my view, the ability of administrators to do so is legitimate and legal. On ordinary questions of law, the legislature has validly delegated power to administrators to decide these questions in many cases. This legislative choice must be respected absent constitutional objection. On constitutional questions, the issue is trickier, but I can certainly concede that administrators should be able to render interpretations of constitutional law as a function of their subjection to constitutional norms. In other words, if the Constitution is seen as binding on all state actors (as it should be), then it is inevitable that administrators will need to deal with the Constitution. When they do so, they are determining whether the bounds of the Constitution hem in their decision-making power. This calculation is essential if administrative actors are to be bound by the law and the Constitution.

So far as this goes, the administrative state can contribute to the meaning of law. But not too much should be made of this statement. That is because, as a matter of fact and law, administrators and judges are not on an equal playing field. Judicial review necessarily implies a relationship where one body (the court) has the authority and power to correct and surveil another body (the administrator). As a matter of law, that supervisory jurisdiction must remain (see Crevier), and it may even need to occur at a certain stringency on certain questions. As a result, there can never be a perfect equality between administrators and courts, as Justice Abella suggested.

In this way, Vavilov is a drastic improvement over what preceded it. Vavilov clearly states that administrators can and do contribute to the meaning of law, even if judicial justice does not resemble administrative justice (see Vavilov, at para 92). As far as it goes, this is an accurate descriptive statement that acknowledges the current state of Canadian administrative law. But Vavilov does not counsel abdication to administrative power. It instead insists on stringent reasoning requirements, particularly as regards the law (see Vavilov, at para 108 et seq) with only a small margin for error (Vavilov, at para 122). By doing so, it ensures that courts have standards by which they can assess administrative exercises of power, without unduly trenching on jurisdiction delegated to an actor besides the courts.

What we see here is a difference between deference as rooted in the supervisory role of the courts and deference rooted in some external appreciation of the administrative state. In our constitutional system, it is simply the reality that there must be judicial review. The way courts review administrative action puts them in a supervisory position over delegated power. This hierarchy is inescapable. Courts can–and have–developed doctrines of deference based on notions of legislative supremacy. But that doctrine of deference is quite different than one based on expertise. In the former case, deference is plausibly rooted in a exercise of constitutional power by a coordinate branch of government. Deference is not justified by a court assuming–without more–that a decision-maker could come to a “better” decision than the court. As a side note, all of this makes the last piece of Justice Abella’s administrative law legacy–Doré –vulnerable. As I wrote in this paper, the downgrading of expertise as a reflexive reason for deference and the role of the Rule of Law in anchoring the standard of review (correctness on constitutional questions) at least raise the question of Doré ‘s long-term health.

Justice Abella, in her recent co-authored article, argues that such assertions on the basis of formal constitutional materials provide no answer to her conception of administrative law. She and her co-author note that the Secession Reference, which gave a place of priority to unwritten principles of constitutional interpretation, “acknowledges the political nature of law and embraces the idea that although the government is of course constrained by legality, legality is itself a political question capable of sustaining several answers” (295). To the authors, the Secession Reference ushers in a new era that demonstrates that all institutions can take part in the making of law, lending new legitimacy to the administrative state. So, an argument as I have made on the basis of the Constitution–to the authors–is a non-starter.

Needless to say, I find this retort particularly unconvincing for a number of reasons. First, whether law is “political” or not is besides the point. While law is the product of politics, interpretive pluralism should not be taken as an excuse to simply favour the decision-makers that form the political valence we may prefer. It is the legislature’s political choices–not the court’s–that are relevant in determining the space for deference.

Secondly, Vavilov throws a ton of cold water on Justice Abella’s understanding of the Secession Reference. The Secession Reference endorses the Rule of Law as an unwritten principle of constitutional law that can give rise to substantive obligations. To the Court in its various cases, the Rule of Law is understood in a formal sense, as having to do with the subjection of government power to rules in a system of positive laws (see Secession Reference, at para 71). This is a largely formal understanding of the Rule of Law. As an analogue to this understanding, the Court has held that the Rule of Law and s.96 Constitution Act, 1867 together protect the role of the superior courts in conducting judicial review (see, again, Crevier) and protecting core superior court powers (see MacMillan Bloedel). This formal understanding of the Rule of Law was extended in Vavilov. The Court held that legislatures were not free to set up the administrative state as theu wished: legislatures could only specify the standard of review “within the limits imposed by the Rule of Law” (Vavilov, at para 35).

This understanding of the Rule of Law as an unwritten principle, and its relationship to administrative pluralism, should not be understated. Under this understanding, the Rule of Law protects not only the existence of judicial review, but it prevents legislatures from insulating administrative actors from curial scrutiny at a certain intensity on certain questions. The fact that the Rule of Law and s.96 are understood in this way serve to make a point: it would be unconstitutional, in fact, for legislatures to make administrators perfectly equal to superior courts, in a legal sense. The role of superior courts is protected constitutionally, in part, because of its importance in maintaining the Rule of Law. This invites a hierarchical relationship between courts and administrative decision-makers.

All told, the retirement of Justice Abella will be a landmark moment for the Court in many ways. And given Justice Abella’s popularity in the legal community, I have no doubt her retirement will be appropriately marked. But, as lawyers, the retirement of a prominent judge presents us an opportunity to review the body of her work. In the world of administrative law, Vavilov represents the first major effort to overcome Justice Abella’s persuasive legacy. This is welcome.

No matter what, I wish Justice Abella well on her retirement.

Ontario’s COVID-19 Discretion Tragedy

Ontarians watched with a mix of horror and confusion on Friday as Premier Ford and medical officials announced what could only be described as drastic measures to, apparently, curb the spread of COVID-19 and its related variants. While the government has flip flopped on these measures since, and it is unclear if further changes are coming, these measures would have (and as I will point out, probably still do) significantly empower the police to enforce Ontario’s stay-at-home (SAH). These measures raise a whole host of enforcement concerns, ones that should worry all Ontarians.

In this post, I briefly review the state of affairs as they stand. I then make two general comments about the recent measures. First, the measures demonstrate why discretion is presumptively risky, even if a modern system of government requires it to function. Second, the measures demonstrate why a relatively thin version of the Rule of Law is a necessary but insufficient condition for a society that respects civil liberties. Instead, the Ontario example shows that a populace concerned with legality will sometimes act as a better check on discretionary power than the courts. This is a highly desirable feature of a society built around the Rule of Law.

***

On April 7, the Ontario government announced enhanced measures “in response to the rapid increase in COVID-19 transmission, the threat on the province’s hospital system capacity, and the increasing risks posed to the public by the COVID-19 variants.” The so-called SAH applied province-wide, and required “everyone to remain at home except for essential purposes, such as going to the grocery store or pharmacy, accessing health care services (including getting vaccinated), for outdoor exercise, or for work that cannot be done remotely.” The SAH also had some measures dealing with retail opening and staffing.

The province upped the ante last Friday, when it announced enhanced measures adopted in relation to the SAH to fight COVID. There were a few iterations of these measures, and the timeline is somewhat confusing, but below is my attempt to summarize the happenings (I do not include, here, any information about the interprovincial travel measures or the so-called “playground” measures:

  • On Friday, the provincial government gave police the power to require any individual not at home, on the street or in their cars, to provide the reason that they’re out and provide their home address. Put differently, the police had the power under this order to stop anyone randomly.  This rather surprising delegation of power, when it was announced by the Premier and medical officials, was not cabined by any limiting principle; ie, to many of us on Friday, it did not appear that the police even required “reasonable and probable grounds,” a constitutional standard, to stop anyone.
  • In response to the announcement, various police forces across the province intimated that they would not enforce the new rules, to the extent that they required random vehicle or individual stops (see ex: Waterloo Regional Police). The Ontario Provincial Police, however, seemed to suggest it would enforce the random stops (see here).
  • On Saturday, the relevant text of the regulation was released (as an amendment to O. Reg. 8/21 (ENFORCEMENT OF COVID-19 MEASURES). The amended regulation, at s. 2.1, specifically gave the police the power to require information from an individual “not in a place of residence.” This information included an address, as well as “the purpose for not being at their residence, unless the individual is in an outdoor or common area of their residence.”
  • On Saturday evening, Solicitor General Sylvia Jones announced that officers would no longer be able to stop any pedestrian or driver to ask why they’re out or to request their home address. The new regulation makes two important changes:
    • The range of information the police could collect in a stop in which they have reasonable grounds was seemingly expanded by the regulation (adding date of birth, for example).

As of moment of publication, this is where we stand. I turn now to analyzing this series of events in the two frames I have set out (1) discretion and (2) the Rule of Law.

**

Modern government is built on discretion. The insight here is simple. Legislatures cannot make all the laws they need to make to cover all policy or legal problems that exist in a modern society. As such, legislatures in Canada have chosen to take advantage of the supposed expertise of administrative actors, delegating power to make and enforce laws. They have also, relatedly, delegated power to Cabinet to adopt law quickly through regulation. The finely wrought legislative process will not always be reactive or quick enough to deal with problems, and so delegation is a way to create a more responsive body of law.

This is the positive side of the story.  But as KC Davis famously argued in his text Discretionary Justice: “…every truth extolling discretion may be matched by a truth about its dangers. Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder” (25). While it is important that a modern system of government can individualize justice, as Davis put it, there are costs to doing so.

The costs can be minimized, but often aren’t. Legislatures in Canada often delegate power to various recipients in the broadest fashion possible, and they generally do not fulsomely analyze the content of regulations adopted, after the fact. There are the famous “public interest” delegations that are legion in the statute books, for example. These delegations cannot be broader, in part because they ask the recipient of the delegation to decide themselves whether the public interest is met by a particular exercise of discretion.

Now, there is not a strict dichotomy between “rule” and “discretion,” but rather discretion starts where rules “run out”: “The problem is not merely to choose between rule and discretion, but…to find the optimum point on the rule-to-discretion scale” (15).  Davis’ idea of “structured discretion” is relevant here. To Davis, “[t]he purpose of structuring is to control the manner of the exercise of discretionary power within the boundaries” [97].  While Davis’ discussion is focused on the American rule-making context, the idea is equally relevant to us: legislatures and administrators themselves can choose, in certain circumstances, to confine their discretion through targeted delegations, policies and guidance documents, and precedents. This does happen: one might look at Ontario’s Emergency Management Act, particularly section 7.0.2, to see how a delegation can be cabined, even weakly (delegation to make orders in a declared emergency).

The problem with discretion, however, is that the systemic incentives tend towards permitting wide discretion that can be abused. Legislatures that are delegating because they cannot make laws themselves are probably not inclined to truly structure discretion: the Ontario emergency legislation is an example. Administrators, police officers, and other actors have no real incentive themselves to exercise their discretion within the bounds of law (except a political one, which I will note below). In fact, the institutional pressures of their own administrative settings may encourage ad hoc reasoning and decision-making, relying on broad delegated authority, in order to accomplish what they see as their policy goals. This is all hypothetical, of course, but the point is that when any government official is exercising delegated power, there is no real reason for them to exercise discretion properly (whatever that means in context), and especially so where the possibility of ex post judicial review is unlikely, or the strength of that review will be highly deferential.

In certain administrative contexts, abused discretion (in the notional sense, not the legal sense) carries grave consequences. Expropriation of land is an example. The police are another example. Police carry any number of discretionary powers, and police are constantly up against the rights and dignity of individuals. Recent events illustrate that police discretion—to detain someone, to arrest them, even to shoot them—can be easily abused based on irrelevant characteristics, such as race or class stereotypes. We have seen this story too many times to say that discretion is some inherently benevolent legal concept.

This is what made Ontario’s original order so surprising. A system of random stops is positively unstructured discretion. While, in normal circumstances, the delegation of legislative power cannot be constitutionally impeached, the legislature does not have the power to delegate a power to administrators or police to breach the Constitution: see Vavilov, at para 53. In this case, this unstructured discretion is likely unconstitutional (see here), even if it is validly delegated. This isn’t surprising: the discretion is so broad that the possibility of unconstitutional implementation is too great to bear.

Some might say it is a vindication of the police that many decided not to enforce the order. But this is simply not enough, for two reasons. First, not all police chose this path: as I mentioned above, the OPP had every intention, it seemed, of enforcing the original order as written. Secondly, the point is that there is no legal incentive (except the political one I mention below) that mandated the police to opt out of enforcing these measures. In the strictest positivist perspective, actually, until a court has rendered the delegated power or a government act unconstitutional, the law must be enforced. But as I will note below, there are other controls for potentially unlawful government conduct.

Additionally, one might think that the refined regulation is better. After all, it does seem to incorporate some “structuring” language: it includes the “reasonable and probable ground” language. This may insulate it from constitutional scrutiny, but that does not mean that the discretion is proper from a public governance standpoint (rather than a strictly legal one). This is barely structured discretion (much like the emergencies legislation). As Nader Hasan points out, on close reading of the regulation, it does appear that the police can stop people that they subjectively believe have violated certain rules, and then obtain any information they wish. The regulation compels an answer if the police can clear the “reasonable cause” threshold, which they likely could in most cases, given that if one is outside, they may be about to attend a prohibited public gathering, or about to return home from one. This could then lead to other information gathered about potential criminal activity that otherwise could not be obtained but for the pretense of the “COVID stop.” Because it is up to the police themselves to form the reasonable suspicion, there are many potentially irrelevant factors that could infect the discretion.

This is not to say that all police will always abuse their discretion. Many police officers perform their roles honourably, and I bet many officers did not want or ask for the powers that were granted to them. But, nonetheless, the Ontario example demonstrates the problem with discretion. There is no incentive for legislatures or the Cabinet to heavily structure discretion. In this case, the government obviously decided that an unfettered police power would best accomplish its goals. As citizens, we should be worried that this was the government’s first choice—not only because it is unconstitutional, but because of the potential error rate and abuse.

**

Finally, I want to say a few words about what this saga tells us about the Rule of Law.

There is a vibrant, old debate about what the Rule of Law accomplishes. Historically, some have said the Rule of Law is the rule of courts (Dicey is often said to represent this view: see Justice Abella & Teagan Markin’s recent piece). Others have suggested that the Rule of Law is much broader, encompassing substantive guarantees (see Lord Bingham’s book). Without taking a side in this debate, there is a subsidiary question: whose responsibility is it to preserve the Rule of Law?

Clearly, the courts play a vital role in preserving the Rule of Law. This is a point that requires no citation. We need a system of adversarial courts, and such a system is probably constitutionally prescribed. Moreover, we need a system of courts to police the boundaries of discretionary action. Courts ensure that administrative action falls within the bounds of the law, and in Canada, this is where the bulk of control over the administrative state occurs. Most reasonable people agree that we need this system of courts.

But these courts are only a necessary condition for legality to flourish. More is needed. Most notably, as Dicey notes (and as Mark Walters explores in his work), a Rule of Law society cannot depend on formal legality as the only requirement. What is required is a society of individuals who embody a “spirit of legality.” People need to jealously, but within reason, guard their constitutional rights that are protected in positive law. But they also need to see the Constitution as a floor rather than a ceiling. Troublesome discretionary acts can be perfectly constitutional but be undesirable because they increase the error rate of enforcement or liberate government actors to an unacceptable degree. What is required is a vigilant population, especially in an emergency situation where civil liberties might be the first legal rights to fall by the wayside.

Many people, on this front, acted appropriately in calling out the Ford government for its adoption of the first tranche of measures on Friday. It was this mass outcry, I think, that forced the government into walking back its original measures. This public outcry was essential. There was little chance (apart from an injunction) that any litigant would be able to stop the enforcement of these measures in time. In this case, it was a concerned population that forced the government to change its laws. One should never underestimate the power of political controls in hemming in potentially unconstitutional government conduct. Any society that says it is bound by the Rule of Law will be incomplete if it does not encourage vigilance and skepticism regarding government acts.

This is not to say that the balance has been appropriately struck throughout the pandemic. I’m not sure, from a policy perspective, if the SAH had the desired effect, for example–despite the cost it exacted in civil liberties. But we have to celebrate wins when they happen. Such is life.

Interpretation and the Value of Law II

This post is written by Leonid Sirota and Mark Mancini.

We read with interest Stéphane Sérafin, Kerry Sun, and Xavier Foccroulle Ménard’s reply to our earlier post on legal interpretation. In a nutshell, we argued that those who interpret legal texts such as constitutions or statutes should apply established legal techniques without regard for the political valence of outcomes. Only in this way can law function as a common reference and guide in a pluralistic, democratic society in which, as Madison eloquently argued in Federalist No. 10, disagreement about fundamental values and the policies required to implement them is pervasive and bound to remain so “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it”.

Our interlocutors claim that our argument leads legal interpretation into “insipid literalism” and, ultimately, sees law as nothing more than a form given to the outcome of power struggles, rather than as the product of reason striving to advance the common good. We remain unconvinced. Our interlocutors seem to wish to escape the more controversial uses to which the “common good” term has been put, but rely on ambiguous claims in doing so. We write today to address some of these claims.

The bottom line is this: if our interlocutors wish to fundamentally change the way we understand texts by sotto voce urging interpreters to adopt a “substantively conservative” position at the outset of the interpretive task, we must dissent. If they wish to simply “tune-up” the way we use purpose and context to enrich our understanding of bare texts, then that is a worthy contribution to the ongoing effort in which many of us are engaged: trying to make Canadian interpretation more workable, less results-oriented, and more focused on the text itself, understood in light of its legislative context in real, practical cases.

Our response is divided into two parts. First, we describe how our interlocutors misunderstand the relationship between, as Jeremy Waldron put it, “The Concept and the Rule of Law”. Second, we catalogue the ways in which our interlocutors’ position is muddled.

  1. The Rule of Law and the Concept of Law, Again

For our interlocutors, “it is clear” that when we say that interpretation must strive for neutrality in order to enable law to guide the members of a pluralistic society, we are “operating within a positivist legal framework”. At the same time, they suspect us of wanting to smuggle a substantive agenda of expanding pluralism into our interpretive views. Respectfully, they are simply mistaken about this. To be sure, as they suggest, the idea of law as a guide for citizens, and hence of the importance of the law’s compliance with the requirements of Rule of Law that make its guidance effective, is an important feature in the work of some positivists, such as Joseph Raz. But its not the positivists’ exclusive preserve.

Consider Professor Waldron’s argument that we need “to overcome casual positivism―to keep faith with a richer and more discriminating notion of law” (19) ― and further, that “[i]t is a mistake to think that a system of rule could be a legal system if there is no publicly accessible way of identifying the general norms that are supposed to govern people’s behavior” (26). Guiding behaviour, including by enabling and encouraging self-application of publicly available rules by those subject to them, and so upholding human dignity, is a key feature of the Rule of Law discourse, but also, Professor Waldron urges, of the very concept of law. This argument was as much on our minds as Professor Raz’s.

And if Professor Waldron might still be regarded as a positivist, trying to merely formulate a better version of that school’s doctrine, Lon Fuller is, alongside John Finnis and Ronald Dworkin, the epitome of Anglo-American non-positivism. And the idea of law as a guide is perhaps best represented in his famous parable of King Rex, the hapless legislator who repeatedly failed to make laws that his subjects could follow. For Fuller too, the requirement that law be framed so as to outline the state’s expectations of its citizens is a matter of respecting human dignity. It is also a matter of what he describes as reciprocity between those in power and those subject to their decisions. The former can expect compliance if, and only if, they frame their demands in such a way that the latter can make sense of them.

The real issue between our interlocutors and us, we suspect, is not a conflict between positivism and natural law, to which one of us (Sirota) is rather sympathetic. Nor is it our commitment to some nihilistic form of neutrality or, conversely, pluralism. As to the former, substantive legislation is of course not neutral―it embodies the commitments of its makers. The task of an interpreter is to ascertain and give effect to these commitments. To do so well, the interpreter must try to bring both established semantic, contextual, and substantive interpretive tools, and (most importantly) an equanimous disposition to his work―precisely to give effect to the commitments made by those with the authority to enact legislation and avoid imposing his own. A judge interpreting the law will never be perfectly neutral in fact, but an interpreter has no business abusing his position to advance pluralism in law, anymore than he is free to make the law more conservative, more progressive, or anything in between (this point was put eloquently by Justice Stratas in Kattenburg, at para 45). 

Lastly, the issue between our interlocutors and us is not a disagreement about whether law should be infused with reason rather than being a matter of raw power. What we disagree about is how reason matters. For us, as for Fuller, what matters is “the inner morality of law”, or its “artificial reason” as Coke put it ― the morality or reason of legal craft and technique, which ensures that law is intelligible to all those subject to it, simply because they are thinking, reasoning human beings, and which is inherent in the enterprise of governing through law, properly understood, rather than emanating from some benevolent ruler whom the  “[s]ubjects will come to thank”. Our interlocutors’ focus is less on form and more on the content of the law; the reason they appeal to is more substantive than the one on which we focus. We turn now to the substance of their argument.

2. The Motte and Bailey of the Common Good Approach

As we note above, the second broad point we wish to make relates to the ambiguities, whether studied or inadvertent, in our interlocutors’ arguments. We outline three areas where our interlocutors’ positions are confusing. In each, our interlocutors could, on one hand, be advancing controversial propositions about the way texts are interpreted—propositions which could run against the need to avoid outcome-based reasoning. On the other hand, our interlocutors’ position could be wholly uncontroversial, simply relating to the relative place of various interpretive tools (like purpose). If it is the former, our interlocutors should say so clearly. If it’s the latter, our interlocutors should disclaim some of the more controversial purposes for which their arguments could be used.

(A) The Natural Law Motte-and-Bailey

Our interlocutors spend a lot of time talking about natural law. They see it as reflected in the legislative process itself—to them, the natural law tradition asks us to “construe the law itself as permeated by reason.” In a passage bound to feel rather opaque to non-aficionados of the tradition, our interlocutors argue that “[n]atural law reflects an idea of reason immanent in the positive law and lends it intelligibility; while in making its general precepts more specific, the positive law realizes and makes concrete the otherwise abstract elements of the natural law.” More specifically, our interlocutors suggest (putatively relying on Justice Miller in Walsh) that all legislation is designed for the “common good.” So, for our interlocutors, it appears that a reflection on the natural law and the “common good” is inherent in the activity of legislating itself. Even the Constitution, they claim, is influenced by the idea of the “common good.”

We question whether the “common good” can mean the same thing in all these contexts. Hand-waving towards Aquinas or a “model opinion” does not adequately answer this question. Our interlocutors seem to assume that the “common good” as a theoretical matter has been stable across time—from the Angelic Doctor to Justice Miller in 2021. This seems intuitively wrong. Even according to those who subscribe to the natural law tradition, there are debates about what the natural law prescribes.

But ultimately, what we are interested in is how this all bears on legal interpretation; how jurists have applied this idea of the “common good” in relation to real cases and current circumstances. Here, we notice that our interlocutors’ suggestion that appeals to natural law and to the common good are nothing more than reminders of the law’s rationality and pursuit of ascertainable purposes is by no means the only view. Adrian Vermeule, for his part, argues for a “substantively conservative” approach to interpretation designed to support the rulers in endeavours—as Vermeule describes it—to “legislate morality” and to support “the traditional family.” This seems to be a fundamentally different use of the term “common good” than our interlocutors propose.

These two radically different approaches are deployed in typical motte-and-bailey fashion. When outlining their own agenda, the latter-day promoters of the “common good” and natural law support Vermeule’s project to use interpretation to stop the “urban-gentry liberals” from prioritizing their own “financial and sexual” satisfactions, on the basis of external values that exist outside of constitutional and statutory texts. When pressed, however, they retreat to the seemingly innocuous claims about law’s rationality, made to appear rooted in legislation and the Constitution.

These two positions are incompatible. If our interlocutors wish to claim that the pursuit of the “common good” is inherent in the act of legislating, that is a proposition we would be prepared to entertain within the context of deciding what a particular text means, although at least some (and perhaps a good deal of) legislation is demonstrably directed at the private benefit of the law-makers or their constituents, or at entrenching outright bigotry, with appeals to the common good nothing more than a smokescreen. But if our interlocutors wish, instead, to impose an “illiberal legalism,” as Vermeule does, that does not “play defensively within the procedural rules of the liberal order,” than that is a different matter entirely. The former deals with matters of interpretation. The latter concerns itself with the culture wars of the day. Our interlocutors should either disclaim Vermeule’s use of their “common good” or accept it.

(b) The Purposivism Confusion

Our interlocutors’ position on interpretation itself is also equivocal. The language of the “common good”, as used by our interlocutors, seems to invoke one rather uncontroversial argument with which we completely agree: text cannot be understood without understanding its abstract and particular purposes. That is a proposition that textualists and non-textualists alike accept (see A. Scalia and B. Garner, Reading Law: The Interpretation of Legal Texts, at 20), and which is hornbook law in Canada. But at the same time, that basic argument raises more questions than it does answers.

Our interlocutors claim that there is “one truth” in the idea of “purposive interpretation”—the premise that law is designed to fulfill an “end” that is “intelligible to reason.” Our interlocutors embrace a “teleological outlook on the essential nature of legislation.” This seems right so far as it goes. As Max Radin notes in his famous article “A Short Way with Statutes,” “the legislature that put the statute on the books had the constitutional right and power to set [the statute’s] purpose as a desirable one for the community” (398). We agree that texts must be read in light of their purposes if we wish to understand why a legislature used certain words in creating a particular rule ― though again we caution that the legislature’s motives may not have been at all noble or reasoned.

If this is all our interlocutors are suggesting, their use of the “common good” phraseology is benign and probably a distraction. Like Asher Honickman in his response to our interlocutors, we do not see these invocations as adding anything to current debates about understanding legal texts. But we take our interlocutors to be saying something, and so simply saying that law is a teleological enterprise is incomplete without specifying how text drives the interpretive process. What needs to be decided is how we choose what purposes are relevant to interpretation. Here, we could speak of “ulterior” purposes—à la “mischief”—or “implementational purposes”—the legal rules (such as rules, standards, or delegations) that legislatures use, in text, to enact particular ulterior purposes (see, for a discussion of these different purposes, Max Radin, “Statutory Interpretation” at 863, 876). At the highest level of abstraction, one could say that laws are designed to achieve “justice and security” or the “common good” or the “public interest.” This does not tell us much about how a legal instrument should be interpreted, because legislatures do not implement ulterior purposes at all costs or in totality, and courts err when they interpret statutes with this assumption, as one of us has argued here based on the Supreme Court’s decision in West Fraser. Interpreters must work between purposes, keeping a clear eye on the text and the way it enacts particular legal rules (see Sullivan, Statutory Interpretation, at 187).   

At times our interlocutors seem to agree with this position. They say that courts cannot “override the terms or the finitude of a statute” and that “no human law-giver can conceivably grant benediction to the common good across the whole of human affairs.” We agree. And yet, we note that an assumption that the legislature’s “reasoned choice is rendered intelligible by the idea of the common good” ignores that language may only imperfectly capture that aim.  Our interlocutors’ position is similar to the old “strong purposivist” view represented in the Hart & Sacks Legal Process materials: legislatures consist of reasonable people pursuing reasonably purposes reasonably. If one takes this view, then it is possible to claim that the idea of the “common good” contains within it substantive aims that could and should override the terms of a statute. If this is what our interlocutors argue, we must disagree, simply because the implementational means employed by legislatures will always be over- and underinclusive in relation to purposes stated at a high level of abstraction. Overriding the text of a statute in favour of a court’s appreciation of purpose risks ignoring the means the legislature chose.

Lest this discussion seem abstract, let us conclude with a reminder of what this “strong purposivist” view means in practice: the early-20th century Holy Trinity case of the Supreme Court of the United States. The Alien Contract Labor Law prohibited the immigration to the US of “foreigners and aliens under contract or agreement to perform labor or service of any kind in the United States”. It was intended to ban the immigration of Chinese workers―but did not specifically say so. The language of the statute also covered an Anglican priest engaged to work in the United States. Yet the Court held that it did not apply to him, because the United States was a “Christian nation,” and hence the law could not have been meant to exclude Christians as well as minorities. Here, we see that the court took a highly abstract background principle and used it to supplement the terms of a statute. This appears to be fine under at least one reading of the “common good” interpretive idea. And yet, this is an outrageous violation of the Rule of Law’s requirement that law be publicly stated and applied in accordance with its enacted terms. It is also, and not coincidentally, an example of intolerable partiality and bigotry.

We conclude this section by restating the point: our interlocutors’ embrace of teleology in law is interesting and welcome, but not helpful by itself. This is because it does not answer fundamental questions about the relationship between text and purpose; and, at best, a perspective focused on “the common good” adds no conceptual heft to relevant and current interpretive debates. We are left wondering whether our interlocutors simply believe in purposive interpretation, or whether they are advancing some other case.  

(C) The Political Confusion

Last but not least, it is important to emphasize that the idea of the “common good”, which our interlocutors present as having a consistent, definite meaning over time, has been put to very different uses by very different people. Our interlocutors claim, for example, that Josh Hammer’s idea of “common good originalism” is perfectly within the tradition of textualism and positivism.Our interlocutors want to reassure us that interpretation drawing on the “common good” does not pursue external policy goals, but rather seeks to determine the meaning of the law from within.

This is a valiant effort, but it flies in the face of the expressly political valence of Hammer’s essay. Hammer makes the following points about his proposed method:

I call my jurisprudential framework “common good originalism,” and I would humbly submit that it be adopted as conservatives’ new legal standard-bearer—a worthy complement to other simultaneously unfolding New Right/“new consensus” intellectual efforts.

[…]

Put more simply: The concerns of nation, community, and family alike must be prioritized over the one-way push toward ever-greater economic, sexual, and cultural liberationism. And this must be true not merely as a matter of public policy, but as a matter of legal interpretation.

Indeed, the entire first part of Hammer’s essay (and another more recent one) trades in politics. The point for Hammer seems to be the development of a certain type of conservative interpretive method that is an adjunct to a political project. One wonders why Hammer needed or wanted to include expressly political statements in a piece that is—our interlocutors tell us—wholly about interpretation. Do our interlocutors disclaim this part of Hammer’s essay, and more generally, how do they distinguish between legitimate and illegitimate uses of the concept of the “common good”?

That the “common good conservative” movement is a political project is clear from the reaction to the US Supreme Court’s Bostock case. As one of us wrote here, in that case, Gorsuch J decided that Title VII protected against discrimination on the basis of sexual orientation and gender identity, despite their not being expressly listed in the statute, because such discrimination necessarily and logically involves discrimination on the basis of sex. In all likelihood, the framers of Title VII did not foresee that the statute would protect sexual orientation and gender identity. Indeed, as Alito J pointed out in dissent, Congress had declined to add sexual orientation and identity to Title VII in the past.

Now, what divided the majority and the dissent in Bostock was a question of pure textual interpretation. As Tara-Leigh Grove argues, Bostock is representative of “two textualisms.” And as Asher Honickman points out, there are reasons to debate the respective roles of social context, expectations, and semantic context in Bostock. This debate has nothing to do with the political valence of one or the other interpretation.

And yet the conservative meltdown over Bostock focused squarely on the results of the case. Here we see the worry about “economic, social, and cultural liberationism.” For Hammer, Bostock was not a mistaken application of textualism, but a showcase of its fundamental faults, laying “bare the moral and intellectual bankruptcy of the conservative legal movement.” Hence Hammer’s proposal of common good originalism, designed to solve this very “failure.”

Bostock raises many questions about the aims of the “common good” movement more generally, and its relationship to interpretive method. One is hard-pressed to find how the concept of “the common good” solves any legal problems in Bostock that cannot be solved by robust debate among textualists about the role of expectations, intentions, and purpose. While one of our interlocutors seems to suggest that the result in Bostock was wrong because judges should take account of the underlying “metaphysics” of words, we view this perspective as a distraction for judges working through real cases—and this is clearly not what Hammer et al seem to be getting at. They have identified a “failure” in interpretive method—a result that they, for one reason or another, do not like. They have designed an interpretive method to solve that problem. Without Gorsuch J’s political “mistake” in Bostock, “common good originalism” was unlikely to ever enter the conversation as it has (which is all the odder since Bostock is a statutory case). As a result, we cannot endorse this fundamentally political project.

Conclusion

Those who subscribe to the “common good” in interpretation are on the horns of a dilemma. There are those who seek to use the concept for expressly political ends, through the task of interpretation as a sort of “living tree” for conservatives. And then there are our interlocutors, who appear to defend the concept as limited, well-understood, and innocuous. We hope our interlocutors can determine which of these options is theirs—and if they simply wish to change emphasis in textual interpretation, then they can join the ongoing debate on that question.

Against Pure Pragmatism in Statutory Interpretation III: A Way Forward and Walsh (ONCA)

About a month ago, I wrote two posts attacking the concept of “pragmatism” in Canadian statutory interpretation. So my argument goes, the seminal Rizzo case, while commonly said to herald a “purposive” approach to interpretation, is actually methodologically pragmatic This is because the famous paragraph from Rizzo, which contains a list of things an interpret must take into account, does not assign ex ante weights to these factors. That is, it is up the interpreter to choose, in the circumstances of particular cases, which factors will be most relevant. In short, while everyone in theory agrees on what the goal of interpretation is, that agreement rapidly breaks down in the context of particular cases.

In these circumstances, methodological pragmatism is attractive because it permits interpreters to use an entire array of tools as they see fit. So the story goes, this freedom leads to “flexibility.” But it can also lead to a number of pathologies in interpretation that should be avoided. In this final post of the series, I outline these pathologies, sketch a path forward, and then highlight a recent example case (Walsh) from the Ontario Court of Appeal that demonstrates why methodological pragmatism unleashes judges to an unacceptable degree. The point here is that interpretation is designed to determine what the legislature meant when it enacted words. Purpose is important in ascertaining that meaning, but ascertaining purpose is not the point of interpretation. This leads to an approach that prefers some ordering among the relevant interpretive tools (for want of a better phrase), rather than a flexible doctrinal standard motivated by methodological pragmatism.

The Pathologies of Pragmatism

By now, and as I have outlined above and in my previous posts, Canada’s approach to statutory interpretation is oddly enigmatic. On one hand, everyone (seems) to agree on the goal of the enterprise: when courts interpret statutes, they are seeking to discover what Parliament intended when it enacted a particular provision or provisions. Putting aside thorny issues of what “legislative intent” might mean (and see here Richard Ekins’ important work), in practical terms, we are seeking to discover the legal meaning and effect of language enacted by Parliament; we are, put differently, seeking to discover what change has been effected in the law (either common law or existing statute law) by Parliament’s intervention (see Justice Miller’s opinion in Walsh, at para 134).

When a law is adopted, one can speak of ends and means, and it’s this framework that guides the discussion to follow. It would be strangely anodyne to claim that Parliament speaks for no reason when it legislates. We presume, in fact, that every word enacted by Parliament means something (represented in canons like the presumption against surplusage, see also Sullivan at 187). And so it only makes sense to take account of a particular provision’s purpose when considering interpretation. Those are the ends for which Parliament strove when adopting the legislation. Selecting the proper ends of interpretation—at the proper level of abstraction, bearing on the actual text under consideration—is an integral part of interpretation. To avoid a strictly literal approach, text must be read in this context.

But, importantly, this is not the end. What about means? In some ways, and as I will show through the example case, means are the real subject of debate in statutory interpretation. Parliament can achieve an objective in many different ways. In general, Parliament can enact broad, sweeping, mandatory language that covers off a whole host of conduct (within constitutional limits). It could leave it at that. Or it could enact permissive exceptions to general mandatory language. It can enact hard-and-fast rules or flexible standards. Administrative schemes can delegate power to “independent” actors to promulgate its own rules. The point here is that Parliament can decide to pursue a particular, limited purpose, through limited or broad means. This is Parliament’s choice, not the court’s.

While free-wheeling pragmatism can lead to all sorts of pathologies, I want to focus here on the relationship between ends and means, between purpose and text. Pragmatism can distort the proper ascertainment of ends and means. In some cases, the problem will be that the court, without any doctrinal guidance, chooses a purpose at an unacceptably high level of abstraction (see, for example, the debate in Telus v Wellman, and Hillier), perhaps even to achieve some pre-ordained result. The courts can do so because, if one simply follows Rizzo, there is no requirement that a judge seek textual evidence for the establishment of a purpose. Yet we know that, as a descriptive matter, it is most common that purpose is sourced in text (see Sullivan, at 193): an interpreter can usually glean the purpose of the legislation, not from legislative history, subsequent legislative enactments, or even the judge’s own imagination, but from the text itself.

This descriptive state of affairs is normatively desirable for two reasons. First, the point of interpretation is not to establish the purpose or mischief the legislature was intending to solve when it legislated (despite Heydon’s Case). The point is to discover the intent of the legislature as represented in the meaning of the words it used. The words are the law. Purpose assists us in determining the meaning of those words, but it cannot be permitted to dominate the actual goal of the enterprise. A pragmatist approach permits, at least in some cases, for that domination to exist: if purpose is better evidence of intention than text, in some cases, then it can be permitted to override text. But this undermines the point of interpretation.  

Secondly, for all we might say about legislative intentions, the best practical evidence of intention is what has been reduced to paper, read reasonably, fairly, and in context. Since statutory interpretation is not a theoretical exercise but a problem solving-one, the practicality of doctrine is central. For this reason, purpose can best assist us when it is related and grounded in text; when the text can bear the meaning that the purpose suggests the words should carry. To the extent pragmatism suggests something else, it is undesirable.

  Sometimes, however, the problem will lie in the means; while the relevant purpose may be common ground between the parties, there may be a dispute over the meaning of language used to achieve those ends. Such disputes tend to focus on, for example, the choice between ordinary and technical meanings, the role of particular canons of interpretation, and (importantly for our purposes) the relationship between the properly-scoped purpose and the language under interpretation. It is the job of the interpreter to work among these tools synthetically, while not replacing the means Parliament chose to accomplish whatever purpose it set out to accomplish. But with pragmatism, no matter the means chosen by Parliament, there is always the chance that the court can dream up different means (read: words) to accomplish an agreed-upon purpose. Often, these dreams begin with a seemingly benign observation: for example, a court might simply conclude that it cannot be the case that a posited interpretation is the meaning of the words, because it would ineffectually achieve some purpose.

These pathologies can work together in interesting ways. For example, an expansive purpose can cause distortions as the means selection stage of the analysis; a court entranced by a highly abstract purpose could similarly expand the means chosen by the legislature to achieve those means. But even in absence of a mistake at the sourcing stage, courts can simply think that Parliament messed up; that it failed to achieve the purpose it set out to achieve because the means it chose are insufficient, in the court’s eyes.

A Way Forward

When constructing doctrine, at least two considerations to keep in mind pertain to flexibility and formality, for want of better words. Flexibility is not an inherently good or bad thing. Being flexible can permit a court to use a host of different tools to resolve disputes before it, disputes that sometimes cannot be reduced to a formula. Too much flexibility, however, and the judicial reasoning process can be hidden by five-part factorial tests and general bromides. Ideally, one wants to strike a balance between formal limits on how courts must reason, with some built-in flexibility to permit courts some room to react to different interpretive challenges.

The point I have made throughout this series is that Rizzo—to the extent it is followed for what is says—is pragmatic, methodologically. Whatever the benefits of pragmatism, such a model fails to establish any real sequencing of interpretive tools; it does not describe the relationship between the interpretive tools; and leaves to the judge’s discretion the proper tools to choose. While subsequent Supreme Court cases might have hemmed in this pragmatic free-wheeling, they have not gone far enough to clarify the interpretive task.

The starting point for a way forward might begin with the argument that there must be some reasons, ex ante, why we should prefer certain interpretive tools to others. This starting point is informed by a great article written by Justice David Stratas, and his Law Clerk, David Williams. As I wrote here:

The piece offers an interesting and well-reasoned way of ordering tools of interpretation. For Stratas & Williams,  there are certain “green light” “yellow light” and “red light” tools in statutory interpretation. Green light tools include text and context, as well as purpose when it is sourced in text. Yellow light tools are ones that must be used with caution—for example, legislative history and social science evidence. Red light tools are ones that should never be used—for example, personal policy preferences.

In my view, this sort of approach balances formalism and flexibility in interpretation. For the reasons I stated above, the legislative text is really the anchor for interpretation (this is distinct from another argument, often made, that we “start with the text” in interpretation). That is, the text is the best evidence we have of intention, often because it contains within it the relevant purpose that should guide us in discovering the meaning of the text. For this reason, legislative text is a green light consideration. Purpose is also a green-light consideration, but this is because it is sourced in text; if it was not, purpose would be misused in a way that might only be recognizable to a methodological pragmatist. Other tools of interpretation, such as legislative history and social science evidence, can be probative in limited circumstances.

The key innovation here is the Stratas & Williams approach does not rule out so-called “external sources” of meaning, but it does structure the use of various tools for interpretation. For example, the approach does not raise a categorical bar to the consideration of legislative history. But it does make some ex ante prediction about the value of various tools, reasoning for example that purpose is most relevant when it is sourced in text.

This is an immediate improvement over the pragmatist methodology, at least when it comes to my core area of concern, the relationship between purpose and text. In the pragmatist model, purpose can be erroneously sourced and then used to expand the means chosen by the legislature; in other words, it can be used to override the language chosen by the legislature. Under the Stratas & Williams model, such a situation is impossible. Any purpose that is helpful and relevant to the interpretive task will be contained within the language Parliament chose, even if that language is limited, imperfect, or unclear.

An Example Case: Walsh

Much of this can be explained by a recent case, Walsh, at the Ontario Court of Appeal. While Walsh is a very interesting case for many reasons, I want to focus here on a key difference between the majority decision of Gillese JA and the dissent of Miller JA. Gillese JA seems to implicitly adopt a pragmatic approach, arguably making purpose rather than text the anchor of interpretation—presumably because the case called for it. Miller JA, instead, makes text the anchor of interpretation. The difference is subtle, but immensely important, because each opinion takes a different view of the “means” chosen by Parliament.

At issue in Walsh was s.162.1(1) and (2) of the Criminal Code. Section 162.1(1), in short, “makes it an offence for a person to knowingly disseminate an ‘intimate image’ of a person without their consent” [61]. An “intimate image” is defined by s.162.1(2), and relates to a “visual recording of a person made by any means including a photographic, film or video recording.”

Stripping the dispute down to brass tacks, the issue in this case was whether a FaceTime call that displays certain explicit content could constitute a recording. The problem, of course, is that FaceTime video calls cannot be conventionally saved and reproduced, like a photo (putting aside, for a moment, the possibility of recording a FaceTime video call). The Crown, at trial, argued that the language of the provisions are written broadly, and must be read “in the context of the harm that s.162.1 was enacted to address: sexual exploitation committed through technology, including cyberbullying and revenge porn” [23, 55]. For the Crown, the answer was found by reasoning from this general “mischief” that the statute was designed to address: the harm would still exist even despite “the recipient’s inability to further share or preserve the moment…” [23]. The defense, on the other hand reasoned from the ordinary meaning of the word “recording,” concluding that “recording” alludes to the “creation of an image that can be stored, viewed later, and reproduced” [57].

Gillese JA for the majority agreed with the Crown’s argument. She listed five reasons for her agreement, but one is particularly relevant on the issue of the relationship between text and purpose. Gillese JA writes, at paras 68 and 70:

[68] Fourth, restricting the meaning of “recording” to outdated technology—by requiring that it be capable of reproduction—would fail to respond to the ways in which modern technology permits sexual exploitation through the non-consensual sharing of intimate images. In so doing, it would undermine the objects of s.162.1 and the intention of Parliament in enacting it.

[…]

[70] …Giving “visual recording” a broad and inclusive interpretation best accords with the objects of s.162.1 and Parliament’s intention in enacting it.

As we will see, this is precisely backwards.

Miller JA’s dissent should be read in whole. It is a masterclass in statutory interpretation, and it is particularly representative of the approach I favour. But most importantly, Miller JA outlines why the majority’s approach demonstrates a means problem, as described above. For Miller JA, there is no purpose-sourcing problem here, since, as he says, there is common ground about the mischief that these provisions were designed to address [179]. However, for Miller JA, a proper application of the various tools of interpretation counselled an approach that did not rewrite the terms of the statute; the means chosen by the legislature. This approach is supported by a number of considerations. First, as Miller JA says, the term “recording” must be given its ordinary meaning. This is the going-in presumption, absent good reasons otherwise. But for Miller JA, the Crown offered no objective support for its assumption that the term “recording” must encompass the FaceTime video at issue. While dictionary meaning and ordinary meaning are two different things, dictionary meaning can shed light on ordinary meaning, and Miller JA noted that there was no instance of the term “recording” being used to describe a “visual display created by any means” [159].

This might have been enough, but the Crown offered another argument: that the term “recording” must be understood as encompassing new forms of technology [162]. Of course, because of the original meaning canon, it could not be said that any linguistic drift in the term “recording” is legally relevant in this case [166]. However, it is a common application of the original meaning rule that where words are written in a broad and dynamic manner, they could capture phenomena not known to drafters at the time of enactment. For Miller JA, however, this argument failed when it comes to the word “recording.” For him, FaceTime was clearly a phenomenon that existed at the time these provisions were drafted, and in fact, the context of the provisions indicated that Parliament had actually distinguished, in other places, recordings versus “visually observing a person…” [174-176]. The term “recording,” then must rely on the concept of reproducibility, as distinguished from other sorts of displays that cannot be saved and reproduced. This latter category of displays was known by Parliament when it crafted these provisions, but it is conspicuously absent from the provisions themselves.

Miller JA, having disposed of these arguments, then clearly contrasts his approach to Gillese JA’s:

[171] What the Crown is left with is the proposition that a reauthoring of the provision would better achieve s.162.1’s purpose….But where Parliament chooses specific means to achieve its ends, the court is not permitted to choose different means any more than it would be permitted to choose different ends. The interpretive question is not what best promotes the section’s purpose, such that courts can modify the text to best bring about that result, but rather how Parliament chose to promote its purpose

[172] …Although the Crown’s argument is framed in ascertaining the conventional, ordinary meaning of language, it is actually an argument about what meaning ought to be imposed on s.162.1, so as to best achieve the purposes of this section.

These paragraphs are remarkable because they clearly set up the difference between Gillese JA’s approach and Miller JA’s approach; the difference between a methodologically pragmatic approach, and an approach that roots ends in means, purpose in text. For Gillese JA, one of her five reasons for accepting the Crown argument pertained to the fact that the defense’s offered interpretation would fail to achieve the agreed-upon purpose of the provisions. This sort of reasoning is only possible under a pragmatic approach, which permits courts to prioritize different interpretive tools as they see fit. The result is a Holy Trinity abomination: where purpose is the anchor for interpretation, and the text is massaged to achieve that purpose, in the court’s view.

Miller JA’s approach is better, if one follows the argument in this post. His approach clearly sees text as an interpretive “tool” that is prior to all the others, in the sense that it is (1) what the legislature enacted to achieve some goal (2) it, practically, is the best evidence we have of what the purpose of the legislation is. Under this formulation, it is not up to the courts to decide whether better means exist to achieve the purpose of the legislation. If this were the case, the point of interpretation would be to identify the meaning of purpose, rather than the meaning of language as evidence of intention. Miller JA explicitly assigns more weight to the text in cabining the purposive analysis.

The Walsh case illustrates the problem that pragmatism has created. While all agree on the point of interpretation, that agreement tends to break down when we begin to apply the tools we have to determine the meaning of the text. Methodological pragmatism offers no hope for solving this problem, because it fails to take a stand on which tools are best. The Stratas & Williams approach, and the approach offered by Miller JA in Walsh, envisions some ranking of the interpretive tools, with text playing a notable role. This approach is better. It moves us away from the endless flexibility of pragmatism, while still leaving the judge as the interpreter of the law.

Against Pure Pragmatism in Statutory Interpretation II: Evaluating Rizzo

Part II in a 3 part Double Aspect series

Please read Part I of this series before reading this post.

In the first post of this series, I set out to explain the concept of pragmatism in statutory interpretation, as explained by Ruth Sullivan. My contention was that Rizzo, arguably Canada’s seminal statutory interpretation judgment, is a pragmatic judgment. Relatedly, I argued. that a purely pragmatic approach to statutory interpretation, while providing interpreters with maximum flexibility, also fails in two potential ways: (1) it permits judges to assign weights to interpretive tools that may run counter to the point of statutory intepretation: to discern what this particular text means; and (2) it could lead to methodological unpredicability–a problem that I will outline in Part III of this series.

In this post, I will address why Rizzo is a fundamentally pragmatic judgment. It is pragmatic because it leaves open the possibility, particularly in the use of purpose, for text to be supplanted if other interpretive tools point in another direction. In other words, it does not make a claim that some interpretive tools are more appropriate than others in the abstract. In the pragmatic approach, it is up to the judge to assign the weights; rather than the methodological doctrine guiding this selection, the judges themselves have unbridled discretion to mould statutory interpretation methods to the case in front of them, based on factual contexts, contemporary values, or otherwise. As I will note in Part III, this sounds good in theory—but in practice is less than desirable.

Rizzo was a garden-variety statutory interpretation case, and I need not go deep into the facts to show what is at stake. Basically, the key question was whether employees of a now-bankrupt company could  claim termination and severance payments after bankruptcy [1]. The key problem was whether the relevant legislation permitted the benefits to accrue to the employees, even though their employment was terminated by bankruptcy rather than by normal means. The relevant provisions of the Bankruptcy Act and the Employment Standards Act, on a plain reading, seemed to prevent the employees from claiming these benefits if their employment was terminated by way of bankruptcy [23].

The Supreme Court chastised the Court of Appeal for falling into this plain meaning trap. To the Supreme Court, the Court of Appeal “…did not pay attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized” [23]. The Supreme Court endorsed this now-famous passage as the proper method of interpretation in Canada:

21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Using this approach, the Court reasoned that the provisions in questions needed to be interpreted with their objects in mind—specifically, the relevant provisions were designed to “protect employees” [25]. For example, section 40 of the Employment Standards Act, one of the provisions in question, “requires employers to give their employees reasonable notice of termination based upon length of service” [25]. Such a notice period (with termination pay where the employer does not adhere to the notice period), is designed to “provide employees with an opportunity to take preparatory measures and seek alternative employment” [25]. Ditto for the provisions governing severance pay [26].

The Court also relied on a number of other interpretive factors to reach the conclusion that the severance and termination pay provisions governed even in cases of bankruptcy.  Two are important here. First, the Court relied on the absurdity canon: where possible, interpretations of statutes that lead to “absurd results” should be avoided. Particularly, the Court, endorsing Sullivan, notes that “…a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile…” [27]. In this case, the fact that an employee could be terminated a day before the bankruptcy—and receive benefits—and another employee could be terminated after bankruptcy—and not receive benefits—was an absurdity that ran counter to the purpose of the statute to provide a cushion for terminated employees [30].  The Court also focused on legislative history, which it acknowledged can play a “limited role in the interpretation of legislation” [35].

All of this to say, Rizzo is, to my mind, a pragmatic judgment for statutory interpretation. This is because, when it endorses the classic Driedger formula at paragraph 21, it does not venture further to show which of the interpretive tools it relies on are to be given the most weight in interpretation; and accordingly, Rizzo could lead to courts assigning weights to interpretive tools that could distort the process of interpretation. For example, the Rizzo Court does not say—as later Supreme Court cases do—that purpose cannot supplant text in interpretation (Placer Dome, at para 23). In other words, when courts source purpose, text is given more weight in interpretation because it is the anchor for purpose (see, for example, the Court’s analysis in Telus v Wellman, at paras 79, 82-83). This can be seen as the Court saying that text is assigned the most weight in interpretation, and that purpose is parasitic on text. When sourced in this way, then, there is no reason to assume that there will ever be a conflict between purpose and text, because purpose is merely one way to understand text. But Rizzo does not say this, instead suggesting that in some cases, purpose can supplant text.

This is the product of pragmatism. Taken on its own, Rizzo’s endorsement of Driedger permits “…each judge [to take advantage] of the full range of interpretive resources available….and deploys those resources appropriately given the particularities of the case” (see here). The possibility for highly abstract purposes to, in appropriate cases, subvert text is a function of the failure of Rizzo to assign clear weights to the interpretive tools in a way that reflects Canada’s fundamental constitutional principles, including the task of courts to discover what the text of statutes mean. I should note, though, that this is not a bug of pragmatism to its adherents; rather, it is a feature. The pragmatists conclude that text should have no special role in interpretation if other factors push against giving effect to text. As I will point out in my next post, this liberates judges to an unacceptable extent when measured in relation to the basic task of interpretation.