R v King: Creative Remedies

On September 19, 2019, certain new amendments to the Criminal Code took effect. Those amendments, among other things, repealed s. 634 of the Criminal Code, which enshrined the statutory right to peremptory challenges of potential jurors (as opposed to challenges for cause). The bill in question replaced s.634 with a new provision that allowed expanded powers for a judge to stand aside certain jurors. In R v King, Justice Goodman considered the constitutionality of this repeal-and-replace.  The applicant had made arguments that “the repeal of s.634 of the Criminal Code…violates his right to a fair trial pursuant to ss.7, 11(d), and 11(f) of the [Charter]” [2]. The judge ultimately accepted these arguments, concluding that the repeal provision was unconstitutional. When it came to s.1, Justice Goodman did not conduct a full Oakes test analysis, given the Crown’s concession that “it would be a difficult task to sustain any argument under s.1” in the circumstances of a s.11 or s.7 breach. [257-258].

I am not a criminal law expert, and so the nuances of peremptory challenges are beyond me. And while the constitutional analysis in the case is interesting, other, brighter minds will analyze it. For me, the really interesting part of this case is the remedy. That is what I will focus on in this post.

After concluding that the repeal was unconstitutional, Justice Goodman had to craft an appropriate remedy. He was faced with arguments on the issue. At first, Justice Goodman recognized that under a “plain reading” of s.52 of the Constitution Act, 1982, “[i]t is recognized that a declaration of invalidity will create a legislative vacuum or frustrate Parliament’s clear legislative intent” [262]. He went on to note that, according to his take on principles of remedies law, “courts should not drastically alter the nature of the statutory scheme through  a s.52(1) remedy” [263]. But in the face of this potential “vacuum,” the Crown submitted that “resort must be made to my inherent jurisdiction at common law to control the challenge process,” without the assistance of the former s.634 of the Criminal Code [265]. In other words, with no statutory guidance, the challenge process would devolve to the inherent jurisdiction of the courts, “to ensure that jury selection takes place in a fair and efficient manner such that an impartial jury is selected” [265].

But Goodman J did not accept this proposition, instead deciding that he could issue a s.52 declaration of invalidity that restored the law to the s.634 state:

However, if I accede to the Crown’s submissions, there is a real risk that individuals will be subjected to a jury selection that is unconstitutional. That is inconsistent with Charter values and the principles established in Schachter.

Accordingly, the declaration shall have immediate effect. Pursuant to s.52(1) of the Constitution Act, 1982, the repeal of s.634 is of no force and effect.

It is trite to state that there is no right without a corresponding remedy. The remedy here is to apply or adapt the previous s.634 of the Criminal Code as it existed prior to the enactment of s.269 of the Act. While not “reading-in” per se, (as the former section remains unaltered), the ultimate effect is the same.

In my view, there are a few problems with this sort of reasoning.

First, it is inconsistent with the way the Supreme Court has held declarations of invalidity to work (characterizing what the judge did here as a severance-sort of remedy). Striking down a legislative provision does not leave any discretion in a reviewing court when it comes to the particular time in which a declaration takes effect (with the notable exception of a suspended declaration of invalidity). Starting from first principles, a s.52 remedy works in two temporal directions. Prospectively, a declaration of invalidity “declares that, henceforth, the unconstitutional law cannot be enforced,” but it also “operate[s] retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law” (Hislop, at para 82). Put differently, “[w]hen the Court is declaring the law as it has existed” then a retroactive remedy of this sort is appropriate (Hislop, at para 93). The remedy therefore operates as if the law never existed in the first place: “Thus, in principle, such a provision is invalid from the moment it is enacted…” (Martin, at para 28). More generally, s.52 “confers no discretion on judges” (see Ferguson, at para 35 in the context of constitutional exemptions).

Nothing in these precedents permit a judge to apply a retroactive declaration of invalidity (whether of a whole statute or by severing an offending part, as in this case) at the time frame he or she chooses. This is because when severance occurs, it reaches back to the time the statute was enacted, but it does no more. Thus, it is impossible to conclude that s.634 could somehow reappear, with the declaration taking effect before the replacement of s.634, because a declaration of invalidity does not bring back into force previous versions of a law–even when the law is a repeal. It merely strikes the replacement provision; in this case, new provisions governing the powers of the judge. For this reason, it is impossible to say that issuing a declaration of invalidity can be timed to bring s.634 back into force, because s.634 no longer exists under the repeal-and-replacement law. A different system exists. The judge should have dealt with the logical conclusion of striking down: under the right approach, there would be no peremptory challenge provision in the Criminal Code, and it would indeed be up to individual judges to craft the jury selection process to be consistent with constitutional rights until Parliament stepped in.

This leads to another problem with this decision: it is hard to see what the Court is actually doing, because much of its remedial analysis is unclear. This is true in a few ways. First, the Court failed to conduct the analysis that the Supreme Court  set out in its seminal Schachter case. For example, in Schachter, at 717 the Court was explicit about the approach judges should take in fashioning remedies under s.52:

Once s.52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? Third, should the declaration of invalidity be temporary suspended?

Here, the judge did not define the extent of the inconsistency, which is usually set by looking to the branch of the Oakes test that the law failed (Schachter, 718). But as noted above, the judge did not conduct a s.1 analysis here. This meant that the extent of the inconsistency with s.7 and s.11 was left undefined, and the remedy chosen did not necessarily fit the violation.

Further, it is unclear what the remedy the judge actually imposed. He seemed to analogize it to a form of “reading-in.” But he paid no mind to the law governing reading-in, and thus imposed a remedy that was profoundly violative of Parliament’s purpose in the repeal provision. For example, in the companion case of R v Muse, the Court cited the Minister of Justice’s take on the purpose of the legislation:

Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition…[t]o bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury…I am confident that the reforms will make the jury selection process, more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.”

Taken this way, it was a clear goal of the legislative provision(s) in issue to remove peremptory challenges and strengthen the existing powers of the judge to control the jury selection process. But the judge in King gave no mind to this legislative purpose. He basically read the old s.634 into the legislation. But reading-in, according to Schachter, can only make sense where it would further a legislative objective or constitute a lesser interference with that objective in a way that does not “constitute an unacceptance intrusion into the legislative domain” (Schachter, at 718). Here, the judge read-in s.634 which was clearly designed to be repealed by the new legislation, and the judge stepped into the shoes of Parliament to craft what he thought was an appropriate legislative scheme (the old s.634). This is not respectful of the purpose of the repeal-and-replace.

One might respond that, with analogy to the law on suspended remedies, the judge actually decided that merely striking the provisions would create a “legislative vacuum.” That vacuum was solved by reading in s.634. And the court would have some support in simply declining to issue a declaration of invalidity: see Mahe, at 392 “…the result of a declaration of invalidity would be to create a legislative vacuum. This result would not help the position of the appellants.” One could extend the reasoning here. But it is not clear that the abolition of peremptory challenges will not help the applicant. And even if it would help the applicant, the judge did not engage with the requisite analysis to make that conclusion. Instead, he relied on the nebulous notion of “Charter values” to assist his crafting of a remedy. It also is not clear that a legislative vacuum would be undesirable in this sense: judges would have the inherent power to craft the challenge process.

As is evident, there is much wrong with this decision. But at any rate, the issue of peremptory challenges has divided courts across the country. It will be interesting to see what happens on appeal.

A Funny Thing Happened on the Way to the Pipeline…

The Rule of Law need not be exclusively the rule of courts. But in order for a society to be governed by the Rule of Law, even those who advocate a “thick” conception of the Rule of Law say that we need an impartial system of courts (see Tom Bingham, “The Rule of Law”; and relatedly, Trial Lawyers, at para 38). Concomitantly, the Rule of Law is not simply Rule by Law; I posit that the Rule of Law also requires a culture of respect for the law by those engaging in the court system. What happens when litigants try to, in service of their own goals, get around orders of a court?

A saga in the Federal Court of Appeal is showing the results. The Trans-Mountain expansion project is a controversial pipeline expansion project that has caused a great deal of consternation among environmental and Aboriginal groups. A number of these groups challenged the legality of the government’s decision to approve the expansion project in the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 [Raincoast Conservation I],the Court granted leave to some of these groups to launch a judicial review of the Governor in Council’s approval only on certain issues; other groups were denied leave altogether. The order in Raincoast Conservation I was clear.

And yet, some groups sought to get around the order. Namely, Tsleil-Waututh First Nation tried to raise issues that were not included in the “permissible issues” that Raincoast Conservation I allowed. Tsleil-Waututh explained that it was attempting to appeal Raincoast Conservation I (on restricted issues) to the Federal Court of Appeal, even though the decision in Raincoast Conservation I was rendered by a judge of that same court (Stratas JA). In Ignace v Canada (Attorney General), 2019 FCA 239, Stratas JA held that appeals cannot be made from the Federal Court of Appeal to the Federal Court of Appeal, because there was no statutory mechanism to allow for such appeals.

But Raincoast attempted to appeal Raincoast Conservation I (on denial of leave) in the face of Ignace, to the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 259 [Raincoast Conservation II], the Court (sitting in a panel of three) rebuffed Raincoast’s attempt to basically relitigate issues already decided by the Court.

The Court rested its conclusions on three main premises. First, the appellants argued that the Federal Court of Appeal, as a statutory court, has all the powers necessarily implied in order to exercise its jurisdiction. This, said the appellants, entitled the Federal Court of Appeal (a statutory court) to hear an appeal from itself. But the Court rejected this somewhat bizarre assertion, holding that the Federal Court of Appeal, as a statutory court, would have to be vested with “some statutory language to support an implication that this Court can somehow hear an appeal from itself…” [8]. There was no such language. Second, the Court chastised the appellants for attempting to bring its own policy views into the appeal [10-12]. Namely,

 In their representations, the appellants set out policy views, some of which they unsuccessfully asserted in Raincoast Conservation, above, and urge them again upon us, perhaps in the hope that we might depart from Ignace. They want the National Energy Board’s environmental reports to be brought to court immediately by way of judicial review rather than waiting for the Governor in Council’s overall decision on approval. They want the standards in the Species at Risk Act, S.C. 2002, c. 29 and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 to foreclose the Governor in Council from approving a project, rather than to be just factors the Governor in Council weighs in its public interest decision. They want to appeal from this Court to this Court because the Supreme Court seldom grants leave to appeal. They want the decision of a single judge “in a case of this importance” to be fully reviewable, not “immunized from appeal”.

To the Court, none of these policy views “are the policies Parliament has chosen to implement in its law. We must apply Parliament’s law, not the personal policy views urged by the parties or our own personal views…” [11]. As the Court said, “[t]he policy choices expressed by Parliament in its 2012 law no doubt frustrate the appellants and others. But they should express their frustration in at the ballot box or by other lawful and democratic means—not by relitigating points already decided” [16].

Finally, the Court sensibly tied all of this to the Rule of Law:

I appreciate that the appellants and others are passionate about their causes and dedicated to them. But passion and dedication can never justify disrespect for the rule of law. The rule of law requires those seeking the judgment of the Court to accept the judgment of the Court even when it is not to their liking.

The Court, for these reasons, terminated the appeal.

Why does any of this matter? I think there are a number of reasons why the Court’s order here is important. For one, it is an important statement about creative arguments that attempt to add-on to powers that are statutory in nature. Indeed, it is true that the Supreme Court has said that statutory actors such as the Federal Courts require certain powers “beyond the express language of its enabling statute” to perform its intended functions: see Bell Canada, [1989] 1 SCR 1722. This is just common sense. Courts require certain implied powers to manage process, for example. But this does not entitle the appellants in this case to say that a right of appeal—a statutory creation—exists where it clearly and simply does not in the relevant statutes. To make this argument invites courts to supplement clear statutory omissions with whatever the Court might feel is right and proper. This is an unwelcome twist on the basic hierarchy of laws—especially since the Supreme Court has held that a right of appeal is purely a matter of parliamentary will (Kourtessis, at 69: “Appeals are solely creatures of statute”), not a constitutional requirement of the Rule of Law: see Medovarski, at para 47.

Second, the Court sensibly rebuffed arguments by the appellants that would, in essence, replace Parliament’s law governing pipeline approvals with an alternative system. Such a system would permit, among other things, (1) early challenges to environmental reports, rather than the current system, which only permits judicial review of the Governor-in-Council’s final decision to approve; and (2) the introduction of standards set out in other statutes as mandatory considerations that could “foreclose the Governor-in-Council from approving a project” [10]. These might all be good ideas. But all of these proposals run counter to the law Parliament chose to instantiate the approval process for pipelines. The remedy for the appellants is not a collateral attack on Parliament’s process, but the ballot box, where they can vote in people who wish to make their preferred policy proposal a reality.

One could argue that the Federal Court of Appeal’s own jurisprudence permits the appellants’ preferred approach. In Alberta Wilderness, the Court apparently held that environmental reports “should be seen as an essential statutory preliminary step required by the Canadian Environmental Assessment Act.” More to the point, Tsleil Waututh 2018 apparently held (according to the linked ablawg post cited above) (at para 189) that a reference in Gitxaala Nation (paras 119-127) that environmental reports cannot be judicially reviewed was misconceived.

With respect, Stratas JA dealt with this matter in Ignace, at para 36. The fact that the appellants were trying to relitigate this point speaks to the issue overriding this entire saga: a respect for orders of the court duly issued. But even on the merits, this argument is somewhat misconceived. Reading Tsleil-Waututh 2018 in whole and in context, it seems that the Court, relying on Gitxaala, ultimately concluded that “the report of the Joint Review Panel constituted a set of recommendations to the Governor in Council that lacked any independent legal or practical effect. It followed that judicial review did not lie from it” (Tsleil Waututh 2018, at para 180). And this would find accord with basic administrative law principles, to the effect that only final decisions of administrative authorities are judicially reviewable (Budlakoti, at paras 56 et seq in the context of the doctrine of exhaustion).

Finally, a note on the Rule of Law. One might argue—quite ambitiously–that attempting to relitigate an order of a Court is justified by the policy proposals that a particular litigant seeks to advance. The weight of this argument is dependent, indeed, on how much one identifies the Rule of Law with the rule of courts. To some, court orders may not represent the totality of the Rule of Law. But a system of the Rule of Law is dependent on the respect owed to neutral arbiters of the law and their orders. Those neutral arbiters, in a system of courts, are components of the Rule of Law. They should be owed respect.

That said, we can and should criticize court decisions that we find undesirable. But as litigants acting in the system, there are defined ways to legally change the effect of a decision: by appeal, rather than relitigation.

 

R v Poulin: Charter Interpretation in the Spotlight

Introduction

Section 11 (i) of the Charter guarantees the right to offenders “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” Ambiguity ripples through this provision. Most notably, does the provision (a) denote a comparison of the lesser sentence at two relevant times (commission and sentencing) or (b) does it denote a broader look at all the changes in various sentencing provisions, as part of a consideration of variations between the time of the commission of the offence and the sentence? This latter approach could permit an offender to be entitled to a lesser sentence than the relevant ones in force at either the time of commission or the time of sentencing.

This was the issue faced in R v Poulin: does the former approach, called the “binary approach,” apply, or does the latter approach, called the “global approach” apply? Mr. Poulin sought a right to a conditional sentence, which was not in force at the time of the commission of his offence or at the time of sentencing. The conditional sentence, however, entered into force as a form of sentence in 1996 [10]. A global approach would permit Mr. Poulin to access a conditional sentence, because it was in force for a period of time between commission and sentence. A binary approach would not permit Mr. Poulin to access the sentence, because it was in force neither at the time of commission or the time of sentence (I note that there was a mootness issue raised in the case, which I do not address here).

Decision

The majority, written by Martin J, ultimately chose the binary approach. Despite the fact that the global approach is preferred among lower courts, Martin J wrote that “[r]ather than identifying the principles or purposes underlying s.11(i), [the lower courts] have simply concluded that s.11(i) should be given the interpretation most generous to the accused, which they have called the liberal interpretation” [55]. Rather, to Martin J, one must approach s.11(i) from a purposive perspective, as instructed by the Supreme Court in its seminal Charter cases: see Big M, Hunter v Southam [54].

A purposive approach to Charter interpretation, as noted by Martin J, should not be conflated with a generous interpretation [53-54]. Charter rights must be “interpreted liberally within the limits that their purposes allow”[54]. Purpose is found by looking at the language of a particular Charter provision [64], and the original context at the time of its enactment [72]; in other words, the language of the right in its “historic and philosophic” context: Big M Drug Mart, at para 117.

Conducting this analysis, Martin J found that the language of s.11(i) favoured the binary approach. In support of a global interpretation, the respondents relied on the language of s.11(i), which says that the offender is entitled to the lesser of two sentences if the sentence has been varied between the time of commission and sentence. To the respondents, “between” denotes an interval of time, not a measurement of two distinct periods of time. But Martin J ultimately concluded that this intervallic interpretation did not suggest a global interpretation: (“between” “only tells us that s.11(i) concerns itself with the situation where the punishment has been ‘varied between’ the time of the offence and the time of sentencing’” [67]). Rather, to her, the word “lesser” in the provision “evokes the comparison of two options” [68]. This language bounded the purpose of s.11(i) to a binary interpretation. What’s more, reviewing the context of s.11(i) at the time of its enactment, Martin J concluded that there “was nothing to inspire a global s.11(i) right at the time of its drafting and enactment,” in part because “none of the [international] enactments embraced one…” [72].

Martin J then noted that, even after this textual and contextual analysis, “[w]hat remains to be seen is whether the purposes of s.11(i) support a global interpretation of s.11(i), or whether there is any purposive basis to read s.11(i) globally…s.11(i) could still receive [a global] interpretation it its purposes justified it” [85]. Specifically, Poulin submitted that “a binary interpretation of s.11(i) would result in unfairness…where two offenders who committed the same crime at the same time are sentenced at different times, when different sentencing regimes are in force” [87]. Martin J rebuffed this argument by making three points: (1) relative punishments are “linked to the offender and the proceedings against him” and thus “are tethered to two points in time that bear a deep connection to the offender’s conduct and criminality” [90]; (2) a global approach would not ensure identical results for two offenders in the circumstances Poulin describes [95]; and (3) a global approach would disproportionately benefit those offenders who have a long period of time between commission and sentence, because it would allow the offender to pick and choose the lesser punishment [97]. What’s more, importantly, a global right would resurrect punishments “which Parliament has, by repealing or amending them, expressly rejected…” [100].

The dissent, penned by Karakatsanis J, disagreed. To her, the text of s.11(i) suggests a “continuum between the time of commission and the time of sentencing” [148]. Also, “lesser” does not denote a solely binary interpretation [149]. The consequence of this binary “technical” interpretation, to Karakatsanis J, “is contrary to this Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights” [151]. Put this way, “there is no principled argument that would justify such a limitation…” [153]. Karakatsanis J’s point is due, in part, to the reliance interests that an offender has in choosing a particular course of action, central to the idea of the Rule of Law [152]. All of the choices an offender has to make in the criminal process, to Karakatsanis J, should not be made on the basis of two artificial points in that process [153]. Instead, the entire continuum of possible options should serve to benefit the offender.

Analysis

In my view, the majority clearly had the better argument in this case. This is true for a number of reasons.

First, as a matter of criminal law, it seems odd to me that an offender can pick and choose the lesser sentence that was in force (if only briefly) in between the time of offence and the time of sentence. Yet this is the upshot of the global interpretive approach to s.11(i). As Martin J notes, the time of commission and the time of sentence are not two “artificial points” for a particular offender, as Karakatsanis J opined. Rather, they are points that are intimately connected to a particular offender and his crimes. When an offender chooses to commit a crime, he chooses with the backdrop of the existing law behind him. When an offender is sentenced, it would be truly unfair to subject her to a greater sentence than the one she risked at the time of offence; but one can hardly call it unfair to limit the potential sentencing options to those in force when the offender made the relevant choice and when he is about to be given the sentence. Indeed, this is what is textually prescribed by s.11(i). Karakatsanis J would respond that other choices–such as the choice to instruct counsel, and the choice to accept a plea agreement–are relevant on this spectrum. But as Martin J said, the right to s.11(i) does not speak to all of these choices. Rather, the text mentions the time of the offence and the time of sentence, and so “there is no principled basis to grant an offender… the benefit of a punishment which has no connection to his offending conduct or to society’s view of his conduct at the time the court is called upon to pass sentence” [90].

Secondly, Martin J is completely right to note that there are powerful Rule of Law reasons to reject a global approach, insomuch as that approach revives sentences that the people, through Parliament, rejected. Section 11(i) is a constitutional right that basically incorporates by reference Parliament’s choices. It would be an odd consequence of a global approach that Parliament’s choices—which have since been repealed—should give effect to a particular constitutional provision. This would have the effect of subjecting someone to a law—perhaps a favourable one, true—that is no longer on the books. Yet this is contrary to a basic premise of the Rule of Law, which undergirds s.11(i) as a fundamental purpose.

Thirdly, the majority’s purposive analysis is far more convincing than the dissent’s, in both general terms and in its assessment of text. The majority is absolutely correct to draw a distinction between a “purposive” approach to interpretation and a “generous” approach to interpretation. These do not mean the same thing. As Professor Hogg noted long ago, a purposive approach will tend to narrow a right to clearly defined purposes. In this sense, it would be odd to speak of a purposive approach operating concurrently with a generous approach—except to the extent, as Martin J notes, that one can interpret particularly rights generously within their purposes. But this strikes me as dancing on the head of a pin. More likely, a purposive approach will narrow a right to defined purposes. This makes the dissent’s focus on “generous” and “purposive” interpretation somewhat nonsensical.

The majority, sensibly, first looked to the text to set the boundaries on the right. This is a preferable approach to reasoning backwards from putative purposes, and then using those purposes to denote the meaning of text. Starting with the text makes sense because it is the meaning of the text that is under consideration. We move on to deriving purposes from that text, not the other way around. And on this front, the majority’s textual analysis is preferable to the dissent’s. The dissent relied only on dictionary meanings to discern the meaning of the text. But this is a thin reed on which to rest the meaning of text which arose not in a dictionary, but in the context of constitutional debates among human beings. Rather, the majority focused on the common usage and understanding of the word “lesser,” as real human beings use it:

Whereas comparative terms ending in “est” or “st” single out one thing from the others, comparative terms ending in “er” contrast one thing with another. For instance, we speak of the “better” of two options and the “best” of multiple, the “higher” of two heights and the “highest” of multiple, the “faster” of two speeds and “fastest” of multiple, to give only a few examples. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11 (i) uses the binary language “the lesser punishment”.

This is more persuasive than dusting off a dictionary and using that as a sole or determinative basis on which to discern text. While dictionary meanings can shed light on text, common usage should be a key concern of textual interpretation, where dictionary and common meaning differ.

Conclusion

This case raises lots of interesting issues, both relating to the Constitution and to criminal law. Ultimately, I think the majority had the better of the argument.

Can the Administrative Process Achieve Social Justice?

Can administrative law achieve any ideal of social justice? The answer is perhaps yes. But there is nothing built-in the system to encourage this result. For that reason, deference to administrators because of the political aims they might pursue is a week reed on which to rest a more general case for deference.

This much was made clear to me when I read a recent piece by perhaps the most revered administrative law scholar in Canadian history, John Willis. Celebrated in the academy, Willis is best known for his piece on administrative law functionalism (John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53), laying out his view of administrative law as a body of law that should charitable to the aims and expertise of administrators—fundamentally, in their good-will as holders of the public trust, and in their ability to deliver impartial, efficient justice relative to the courts. The idea was that courts should defer to administrators for this reason. Willis was at heart a social democrat, as noted in this paper sketching an intellectual history of administrative law in Canada. The underlying philosophy was a belief in government, in contrast to a belief in judges, who were said to stultify the development of the social welfare state in favour of the common law. Indeed, Willis self-described himself as a “government man.”

The administrative law functionalists were politically-minded people, advancing a political agenda against the common law judges. But their argument for deference was also admittedly political. Says  Michael Taggart (at 257):

These left-leaning scholars were deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and the powerful, and defeating the purposes of statutes intended to further the interests of the workers, the homeless, and the least well-off in society.

One might see, here, a commitment to social justice broadly conceived. But the functionalists, and the way they taught us to think about administrative law, had significant blindspots, in an ideological sense. Not all causes were equally represented in their social justice mindset. Read, for example, this quote by Willis in his “Administrative Law in Retrospect” at 227, in which Willis decries growing trends to subject the administrative process to norms of transparency and accountability:

I am thinking particularly of a number of currently fashionable cults and the damage they may do to effective government if they are allowed to infiltrate too deeply into the procedural part of administrative law: the cult of ‘the individual’ and claims by prisoners in penitentiaries, complaining of their treatment there or applying for parole, to a formal ‘right to be heard’; the cult of ‘openness’ and claims by the press to the right to dig into confidential government files; the cult of ‘participatory democracy’ and claims by ‘concerned’ busybodies to the right to be allowed to take court proceedings to curb, say, alleged illegal pollution or alleged dereliction of duty by the police.

One need not belabour the point; to the extent Willis is representative of a functionalist mindset, the commitment to social justice only went as far as required to protect the prerogatives of government. This is an empty form of social justice, one more attuned to the preservation of government as a functioning institution than the use of government to achieve outcomes that improve social welfare. This might be a legitimate aim, though one should wonder why courts should have any involvement in propping up modern government. But let’s not pretend it is an ideal vision of social justice.

What’s more, the vision ended up being remarkably short-sighted. Nowadays, the administrative state is most problematic in areas which affect the least well-off, including those that Willis slagged in his article: prisoners, those suffering from pollution, immigrants and refugees, and social assistance recipients. How can a broader theory of delegation to administrators, based on the relative conservatism of courts, miss out on all of these people?

This illustrates a broader point, about which the real functionalist motivations shed light. Delegation to administrators, no matter the substantive or pragmatic justifications for it, is about power. Whether it is a delegation of legislative power, an executive power of appointment, or otherwise—delegation is about a transfer of a power from one entity to another. In this case, it is a transfer of power from one branch of government to another—most notably from the legislative to the executive. The power of the executive branch is aggrandized by delegated power. The functionalists, at least Willis, understood this, By trying to fend off pesky “prisoners” and “busybodies,” the functionalists directed their attention as much to courts as to litigants seeking to challenge executive action in courts. The effect of their doing so was the preservation of administrative power.

As I’ve previously written, the upshot of this is that power can be wielded in either direction. Executive power in particular can be put towards social welfare ends. But power is inherently neutral, and is shaped by the person wielding it. Administrative power, just as much as it can be used for social welfare ends, can also be used to stymie social welfare goals. This much the administrative law functionalists teach us.

Much Ado About Context: A Note in Anticipation of Vavilov et al

A short post today about the role of “context” in administrative law. Many speak about “context” in the law of judicial review as if it is some inherent element of the law. In Khosa, Justice Binnie, for example, noted that in applying the reasonableness standard of review, the standard “takes its colour from the context” (Khosa, at para 59). But nowhere did Justice Binnie describe what context matters, or how it matters. In Dunsmuir itself, Bastarache and LeBel JJ said that “[t]he analysis must be contextual in applying the standard of review (Dunsmuir, at para 46). They said this in the context of discussing the “pragmatic and functional” factors that still, nominally, exist under the Dunsmuir framework. Whatever these quotes actually mean, the role of context in the law of judicial review is a distinct school of thought worthy of its own blog post (see Dean R Knight’s Vigilance and Restraint in the Common Law of Judicial Review for more discussion of contextual approaches to the law of judicial review).

Nonetheless, I am always puzzled by generic calls to “context.” Floating on a sea of “context” does nothing to guide litigants or judges in applying the law. What is required are simple, clear rules that are attuned to the fact that decision-makers arise in different statutory contexts, that can guide the parties and judges involved in applications for judicial review (for a contrary view about the search for simplicity in the law of judicial review, see Justice Cromwell’s “What I Think I Have Learned About Administrative Law” in the CJALP).

How can one have simple rules that adequately capture the vast array of decision-makers? This is, I think, the core dilemma facing the Supreme Court in the Vavilov case and perhaps in the law of judicial review more generally. For me, the key in enshrining the role of context is to look to the varied statutory contexts in which administrative decisions are made. Clearly, when speaking about context, we cannot mean that the standard of review analysis must encapsulate how decision-makers empirically act on a day-to-day basis. That is, courts cannot afford more or less deference based on how administrators actually act in the context of their day-to-day jobs. This would be an information-intensive exercise that judicial review courts are, obviously, ill-equipped to handle. So we need some proxy for context that takes into account the varying ways in which administrative decision-makers exercise their powers.

Of course, administrative decision-makers live in a world where their powers are “themselves confined” by statutes (Dunsmuir, at para 29). This means that administrative powers are delegated in the context of broader statutory schemes that set out when, how, and under what circumstances delegated powers are to be exercised. For example, are administrative decisions covered by a strong privative clause, impliedly signalling that Parliament wanted to limit judicial oversight? This is a sign, perhaps, that deference should be afforded. Has Parliament set out a list of factors that a decision-maker must consider (see Farwaha, at para 91)? This means that the decision-maker must consider these factors, not ones extraneous to the legislation—all things equal, this is a sign that the court must only consider whether the decision-maker considered these factors. Every statute is different, and each statute will affect the way in which courts review particular exercises of delegated power.

Practically, this means that what we require are meta-rules for courts to apply in analyzing statutes in service of deciding and applying on a standard of review—in other words, we need rules for deciding what statutory context matters. Luckily, we have those meta-rules: the rules of statutory interpretation. The Supreme Court has recognized that the principles of statutory interpretation are key in discerning the scope–and therefore the intensity of review–of delegated power (Bibeault, at para 120; also recognizing the difficulty of the task). And this is the key: if statutory context is the best evidence we have of what the legislature meant when it delegated power to a decision-maker, then the rules of statutory interpretation are all we need to discern how much deference is owed a particular decision-maker.

What is to be avoided, on this line of thought, is the Supreme Court’s generic approach that institutes a rule that clearly ignores statutory context. The presumption of deference on home statute interpretation increasingly applies without viewing any statutory context (see my post on CHRC, for example). And as I wrote earlier, the Court rarely pays attention to implicit signals from the legislature, through statutory rights of appeal and other legislative mechanisms (though the Court did so admirably in Tervita and Rogers). This seems contrary to the whole search for legislative “intent” that characterizes this area of the law.

If context is truly to mean context, then the Supreme Court should pay attention to the varied statutory contexts in which administrative decision-making occurs, by giving effect to the legislature’s meaning.

Upcoming Talks

Following in my co-blogger Leonid Sirota’s footsteps, I am posting a list of the talks I am giving across Canada this fall. My list is much shorter than Leonid’s, but if you are at any of these events, please feel free to come say hello. As Leonid says, it is always great to meet readers of the blog in person:

September 19: University of Saskatchewan College of Law, 11:30-1pm, “The Extreme Intoxication Defence” with Professor Sarah Burningham. I will discuss my recent paper on the McCaw case and declarations of invalidity in superior courts.

September 20: Canadian Law and Economics Association Annual Conference, University of Toronto Faculty of Law, 12:00pm: “An Economic Theory of Immunization in the Canadian Law of Judicial Review.” My paper deals with the problem of immunization adverted to in a number of Federal Court of Appeal decisions, and advances an informational explanation for the causes of immunization.

More information on the conference here. 

October 18: Université de Montréal (Symposium of the Journal of Commonwealth Law): “The Political Problem with Human Rights Tribunals,” a discussion of the norm of independence in administrative decision-making and the tension between political accountability and independence.

Hope to see you at one of these events!

Ignoring Legislative Intent: Deference in Quebec and s.96

The constitutionality of a regime of deference is not something much explored in the wider context of Canadian administrative law. But in Quebec, the question is a live one because of particular statutory and judicial arrangements. The Quebec Court of Appeal just released a case [the Reference] that dealt with the question head on: does a statutory court’s statutory review of administrative decision-makers become unconstitutional if that court is required to apply principles of deference?

In this post, I first review the set-up of the Court of Quebec and its relationship with various statutes that nourish it with appellate review power. Then I address the controversy surrounding the way the Court is arranged. I argue that deference in these circumstances is, indeed, unconstitutional based on first principles. It deprives the Superior Court of Quebec of a core element of its jurisdiction—its ability to review, without impediment, inferior tribunals. But I argue that there is a way around the constitutional problem. Courts should begin to recognize, and give full effect, to statutory rights of appeal as elements of legislative intent. Doing so largely eliminates deference questions and is more aligned with the task of judicial review: to discover what the legislature means when it delegates power.

The Court of Quebec, Established Law, and the Quebec Court of Appeal’s Conclusion

The Court of Quebec is a statutory court. It has been given, through a number of statutes, appellate review jurisdiction over a number of administrative tribunals in the province of Quebec. This is a key point that I will return to later: appellate, statutory review jurisdiction should be fundamentally different from an application for judicial review.

In the reference before the Court of Appeal, the chief justices of the Superior Court challenged eight separate legislative schemes that provide for appeals to the Court of Quebec. Their challenge was based on s.96 of the Constitution Act 1867, which, among other things, guarantees a core jurisdiction for the superior courts of the provinces. The challenge concerned not the establishment of a statutory court/tribunal per se (which has typified the jurisprudence around s.96), but the requirement imposed doctrinally that the Court of Quebec must apply principles of judicial deference when they review the decisions—via statutory appeal—of administrative decision-makers.

Administrative law buffs might immediately recoil at the argument, because the Supreme Court has long made clear that judicial review principles apply regardless of whether a case comes to the court via an application for judicial review or statutory rights of appeal (see Dr. Q, at para 20; Saguenay, at para 38). The Court has even held, with respect to the Court of Quebec, that it is required to apply principles of judicial deference (Proprio Direct, at paras 19-21). But recall that this argument is constitutional in nature—that the status of the Court of Quebec, coupled with the requirement of deference, runs afoul of the protections afforded in s.96 of the Constitution Act, 1867 for superior courts. This is a unique argument because it is both the jurisprudential requirement of deference and the Court of Quebec’s statutory status which, together, create an alleged unconstitutional effect.

The Quebec Court of Appeal, though, rejected this argument in whole. It held (1) that the Court of Quebec must apply common law principles, with Dunsmuir standards of review as the governing tests (see para 280); and (2) although there was a transfer of authority to the Court of Quebec that, at first glance, usurps the Superior Court’s s.96 role, this was insufficient to cause a s.96 problem, because “…all of these legislative schemes maintain the Superior Court’s superintending and reforming power” (324). In other words, there was no privative clause ousting the Superior Court’s power on “jurisdiction,” even if the Court of Quebec was to apply deferential principles of review. Since what was envisioned was not an exclusive transfer of jurisdiction (as exemplified in the s.96 cases, see MacMillan Bloedel), there was no constitutional problem.

Avoiding the Constitutional Problem: Statutory Rights of Appeal

In my view, and putting aside for the moment the constitutional concerns, whether the Quebec Court of Appeal got this right is dependent on how one characterizes a statutory right of appeal. If a statutory right of appeal is characterized as a legislative signal for a reviewing court—even a statutory court like the Court of Quebec— to simply apply the ordinary principles applicable on appeal, what basis is there for a court to apply the principles of deference? It is only by accepting that the common law principles of judicial review override clear statutory signals that we get into this problem of constitutionality, at least in the context of this case.

As noted above, though, the Court has been content to permit uniformity in the way courts review administrative decision-makers, through the application of the typical common law tests. In a variety of contexts, the Court has either treated statutory rights of appeal as non-determinative (see Pezim, at 591 and Southam, at para 54) or has specifically said that the common law principles of judicial deference apply, even in the face of a clear legislative regime governing a statutory court (Khosa, at para 25).

While the Quebec Court of Appeal rightly followed this jurisprudence, it seems to me completely wrong in principle. Under no circumstances should common law principles of judicial review apply if the legislature has specified, in the relevant statutes, a right of appeal to a statutory “court of justice” (see para 363). This is because a statutory right of appeal is an implicit legislative signal that, on questions of law, the statutory court should simply intervene in a lower administrative decision as it sees fit. Statutory rights of appeal stand for this proposition unless they contain some wording that would imply deference, or unless there are other signals in the statute, like a privative clause.  Forcing these courts to apply common law principles of judicial review ignores this implicit legislative signal.

What’s more, the theoretical underpinnings of the Supreme Court’s maintenance of the common law rule are wanting. The basic point is that the very act of delegation to (apparently) “specialized” and “expert” administrative tribunals justifies deference. But there are two problems with this justification. On one hand, it is completely unjustified to impute a legislative intent of deference to the legislature when it merely delegates power. The reasons why a legislature delegates power are many, but there is no evidence to assume that it does so because it wants the decision-maker to receive deference. Why should courts assume so? Secondly, the across-the-board expertise presumption is not necessarily empirical true. In this sense, it is a classic overbroad rule.

This conclusion was forcefully expressed by Rothstein J in Khosa. In that context, the Supreme Court majority held that the ordinary principles of judicial review apply when the Federal Court reviews decisions of federal decision-makers. But the Court gave no effect to the Federal Courts Act, which establishes certain grounds of review that could also be said to imply standards of review (see s.18.1(4)). Rothstein J noted that “a common law standard of review analysis is not necessary where the legislature has provided for standards of review” (Khosa, at para 99).  Instead, where the legislature has done so,  the common law idea of deference melts away. It is for the legislature to evaluate expertise, and include a privative clause, if it sees fit to mandate deference; it is not for the court to simply override legislative language in service of some court-created ideal of deference.

Rothstein J’s position is on better footing. Rather than buying into the expertise presumption, and the subversion of the relationship between common and statutory law that it creates, his position expresses support for the typical relationship between these two types of law; statutory law takes priority over the common law. It is for the legislature to prescribe the relevant standard of review. And in the context of the Court of Quebec—at least the relevant statutes in the case—the legislature has. Of the eight statutes at play in the Quebec case, all of them contain a statutory right of appeal. Some even contain language specifying that “The Court can confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in first instance (see para 217; s.175 of the Professional Code). This is strong, “correctness”-type language.  Even in absence of such language, a statutory right of appeal ousts the common law rule of deference, and removes any constitutional doubt from the issue. In each case of a statutory right of appeal, it is a sign that deference should not be the modus operandi.

Addressing the Constitutional Problem: The Core of Judicial Review

But, whether or not my preferred position is adopted, there could still be cases where deference arises—either by legislative language or judicially imposed doctrines. In such a case, was the Quebec Court of Appeal right to hold that there is no constitutional problem with deference?

In my view, it was not. The starting point is the Supreme Court’s comment in MacMillan Bloedel that it is not permissible for the legislature to remove any “core” powers of the superior courts in the provinces (MacMillan Bloedel, at para 37). As the Court noted, “ [d]estroying part of the core jurisdiction would be tantamount to abolishing the superior courts of general jurisdiction.” Therefore, even abolishing part of the core jurisdiction is tantamount to destroying it all, according to the Supreme Court. This conclusion was cited by the Quebec Court of Appeal (at para 46).

What is protected in the core jurisdiction? For our purposes, as the Quebec Court of Appeal noted, “the exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial public bodies” is part of the core (at para 45, citing MacMillan Blodel at paras 34 and 35). This is an aspect of the core jurisdiction which can never be removed—even in part. Yet the effect of asking the Court of Quebec to apply deference is to dilute this reviewing function. As Professor Daly notes in his “Les appels administratifs au Canada” (2015) 93 Canadian Bar Review 71:

This power of the Superior Court to correct certain types of illegalities committed by inferior tribunals in the exercise of their jurisdiction was an integral part of the Court’s supervisory authority as it existed in 1867; it is therefore clear that such control power cannot be validly transferred by the Legislature from the Superior Court to a court that is not comprised within the enumeration contained in s. 96 of the B.N.A. Act.

Attorney General (Que.) et al. v. Farrah [1978] 2 SCR 638 at p. 654. See similarly Séminaire de Chicoutimi v. City of Chicoutimi, 1972 CanLII 153 (SCC), [1973] S.C.R. 681.

The requirement of deference significantly dilutes this role, to the point where the core power of the superior court is imperiled. This is because of a “double deference” problem, as Professor Daly argues. The Court of Quebec will apply deference to the administrative tribunal’s legal findings. Then, the Superior Court will defer to the Court of Quebec. When the Superior Court defers, though, it simply asks whether the Court of Quebec’s decisions is reasonable or not. It does not get a first instance glimpse of the legality of the decision. This double deference problem significantly limits, if not fundamentally changes, the task of the Superior Court.

The Court in the Reference responds to this problem by saying that:

[W]hen the Superior Court hears an application for judicial review of a judgment of the Court of Quebec, it must begin by focusing on the administrative decision in order to first determine whether the Court of Quebec identified the appropriate standard (which, in Superior Court, is a question of law subject to the correctness standard, and then determine whether it applied the standard properly. Thus, strictly speaking, the judgment of the Court of Quebec is set to one side and the impugned administrative decision is the one under review.

This might solve the double deference problem, but it creates a whole other issue: it deprives the Court of Quebec of the appellate jurisdiction that the legislature intended it to have (see Professor Daly’s post here). Now, the Court of Quebec’s ruling is set aside. Here again is another example of courts failing to respect legislative intent.

This is a less-than-ideal solution to the constitutional problem of double-deference.

Conclusion

This is a complex case, and my views are necessarily tentative. But I think, in the first place, that the constitutional problem can be avoided in many cases by simply giving effect to the appellate jurisdiction that the legislature granted to the Court of Quebec. In cases where the problem does arise, I think the Quebec Court of Appeal’s solution to the problem is less than ideal, because it again ignores legislative intent.