Doré Revisited: A Response to Professor Daly

Over on Administrative Law Matters, Professor Paul Daly argues that Doré  actually “emerges strengthened” from Vavilov. Professor Daly’s post responds to my own paper (The Conceptual Gap Between Doré and Vavilov) and post, where I argue the opposite. In this post, I would like to respond critically to Professor Daly’s interesting and provocative arguments. I first recap my position on the matter. Then, I review Professor Daly’s arguments, and respond in turn. In whole, I remain convinced that Doré is inconsistent with Vavilov. Specifically, I disagree with Professor Daly that the presumption of reasonableness applies to Charter issues arising in the scope of administrative jurisdiction. Moreover, I disagree that Vavilov’s articulation of reasonableness review is functionally similar to Doré’s. As it turns out, these disagreements matter for the continued propriety of Doré post-Vavilov.

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As I wrote in both my paper and post on the matter, there are key tensions between Vavilov and Doré  that deserve some attention.

These tensions arise with respect to both selecting and applying the standard of review. On the selection front, Doré  reasonableness is based on a functionalist idea, where the expertise of decision-makers in deciding constitutional matters is presumed (see Doré , at para 46). This justified the selection of a reasonableness standard of review when an administrative decision is challenged as unconstitutional—even though a correctness standard applies when a statute under which an administrator may operate is challenged (see Vavilov, at para 57).   However, Vavilov resiled from this presumptive stance on ordinary questions of law, instead rooting the presumption of reasonableness review on the fact of delegation, not expertise (see Vavilov, at para 30). This, to my mind, illustrates an inconsistency: why would a court presume expertise on constitutional matters, but not on ordinary legal interpretation (the stuff of Vavilov)?

On the application front, I argued that Vavilov probably introduced stricter reasonableness review than the sort of reasonableness review envisioned in Doré and later represented in its progeny (for example, TWU). This is because there are aspects of Vavilov that are more formalist: for example, the focus on the statute as the “most salient aspect” of the legal context relevant to judicial review (Vavilov, at para 108). Transposed into the Doré  context, this might mean that decision-makers should focus on the existing constitutional text instead of abstract values. I also admitted in my paper that Vavilov isn’t just one thing—there is a focus on developing a “culture of justification” in administrative decision-making (see Vavilov, at para 2; The Conceptual Gap, at 13-14). But even this is inconsistent with Doré , which said very little about the sorts of reasons required in a constitutional context; in fact, no guidance was given in Doré  at all, except to say that decision-makers should balance “the Charter values with the statutory objectives” (Doré , at para 55). Contrast this with Vavilov’s detailed approach to reasons-giving, and we see not only an inconsistency, but a schism.

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Not so fast, says Professor Daly. For him, when it comes to both selecting and applying the standard of review, there are no great tensions between Vavilov and Doré.  Indeed, for Professor Daly, “…Doré  emerges strengthened from Vavilov, not weakened.” This is because “…the excision of expertise from the process of selecting the standard of review means that the presumption of reasonableness review certainly applies to Charter issues.” Vavilov indeed does draw a distinction between “merits” review, under which reasonableness presumptively applies, and issues of procedural fairness (see Vavilov, at para 23). If this is the case, expertise no longer matters one way or another to determining the standard of review. Professor Daly further argues that the exercise of discretion implicating constitutional matters is different than pure challenges to statutes under the Charter. In the latter case, uniformity is required, on Vavilov’s own terms. But in the former case: “…answers can legitimately vary as between different regulatory regimes: for example, what is a proportionate restraint on freedom of expression in the workplace may not be proportionate in a municipal election campaign…”

When it comes to applying the standard of review, Professor Daly notes that “[t]here is nothing formalist about the detailed articulation of reasonableness in Part III of Vavilov” (though he goes on to concede that “[s]ome components of Vavilovian reasonableness review can fairly be described as formalist or Diceyan”). He concludes that “[a]dministrative decision-makers can continue to contribute to our collective understanding of the Charter in its application to particular regulatory settings.”

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While I will note areas of agreement, I must strenuously disagree with much of what Professor Daly says about Doré in light of Vavilov, when it comes to selecting the standard of review. The core disagreement between our positions lies in how far each of us would extend the presumption of reasonableness. For Professor Daly, the presumption applies to Doré -type issues. But for me, the presumption of reasonableness outlined in Vavilov must necessarily exclude Doré -type issues. This is for two reasons. First, the presumption, rooted in legislative intent, cannot apply to Charter issues—the legislature cannot intend anything with respect to the depth of scrutiny used by a reviewing court on constitutional matters. Second, the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts.

Let’s begin with the first argument by reviewing the conceptual basis for the presumption of reasonableness. As the Court notes in Vavilov, the presumption of reasonableness review is based on the “very fact that the legislature has chosen to delegate authority…” (Vavilov, at para 30). In other words, “[t]he presumption of reasonableness review…is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts” (Vavilov, at para 33). Legislative intent guides the presumption of reasonableness review, at least on ordinary questions of law. The fiction being deployed here is that the legislature intended deference when it delegated authority to an administrative decision-maker.

While it might be defensible to suggest that a legislature intends deference when it delegates (though such a suggestion itself requires a leap of logic that some might find implausible), it is another thing altogether to impute to the legislature an intent to defer on constitutional matters. This is because  legislatures cannot meaningfully alter the depth of constitutional scrutiny afforded its own enactments by courts. Such alteration would strike at the core of powers exercised by judicial review court. Specifically, the Supreme Court has held that legislatures do not have the ability to “limit judicial review of constitutionality” (see Amax Potash Ltd Etc v The Government of Saskatchewan, [1977] 2 SCR 576, which was rendered in the context of a division of powers case, but with comments equally applicable to Charter issues). Vavilov alludes to this limitation more specifically. It says that legislatures can only specify the standard of review “within the limits imposed by the rule of law” (Vavilov, at para 35). The Rule of Law includes “constitutional questions” which include challenges to statutes on division of powers and Charter grounds. On these questions, correctness rules the day, and the legislature’s intent is of no moment.

Is the same true for exercises of administrative discretion implicating the Charter? It should be, because the legislature cannot do indirectly what it cannot do directly. The legislature should not be able to escape the full scrutiny of the courts under the Constitution simply by delegating. An adjunct to this principle was set out in Eldridge, at para 42, in the context of Charter applicability. There, La Forest J, relying on his decision in McKinney, noted that legislatures should not be able to evade Charter responsibility by simply delegating power. While this decision was rendered in terms of Charter applicability, the same principle applies to questions of standard of review. The level of scrutiny applied by the Court should not differ depending on whether the legislature decides to delegate. Put differently, courts should not impute to the legislature an intent to alter the status quo ante of correctness review simply through the act of delegation.

Put this way, if we cannot speak of a legislative intent to defer on constitutional matters regarding statutes, the same is true on matters arising in administrative jurisdiction. Applying the Vavilov presumption to these questions would mean that we can implicitly conclude that the legislature intended deference on these constitutional matters. But for the reasons above, if we apply the same rules to administrative discretion implicating the Charter, then we cannot speak of a legislative intent on these matters either. Put simply: the legislature is constitutionally incapable of possessing an intent when it comes to the standard of review courts apply on constitutional questions, no matter the context in which the questions arise.

This leaves an important question: if the Vavilov presumption does not apply to Dore-type issues, where do these issues fit in the Vavilov framework? In my view, Doré -type questions involve the Rule of Law, warranting correctness review, as described in Vavilov. While Professor Daly notes that challenges to administrative discretion may admit of more than one answer, one must remember that we are speaking of the Constitution’s protections, not of the ability of administrators to have more lee-way in the context of their regulatory regimes. These issues are still constitutional questions that require a uniform interpretation by the courts, even if the issues arise in challenges to administrative discretion. In fact, the power of judicial review exercised in constitutional and administrative contexts derives from the same source. As Justice Beetz noted in Syndicat des employes de production du Quebec:

              Furthermore, I do not see why different rules would be applied in this regard depending on whether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91  and 92  of the Constitution Act, 1867  an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians (at 443-444).

Putting aside the old administrative law language of “jurisdiction” and the fact that we currently accept reasonableness review on the merits, there is an overall point here the bears repeating: even if a constitutional issue arises in administrative proceedings, it is the same power of judicial review that is exercised by a court when it reviews statutes for their constitutionality. The role of the courts should be the same in each context: as guardians of the Constitution, courts must render uniform interpretations of the Charter, even in cases of administrative discretion.

Relatedly, there is also an important perspective to consider here: that of the holder of the right. How does one explain to her that her right means something different because an administrator made the decision? How does a Court conclude that the Constitution’s meaning could potentially be different—not for reasons of text, precedent, or structure—but because the procedural trappings of a case happen, fortuitously, to be different? Administrative exigency is no excuse—or at least, not a good one—to limit one’s Charter rights.  (see, for more on the arbitrariness of Doré, Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or Inconstancy?” in Lorne Sossin & Colleen Flood, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2012) at 431).

Professor Daly might respond that the Constitution could mean different things in regulatory contexts.  But this point seems to view the matter from the wrong perspective. The question is not what makes the most sense for administrators given the different contexts that they render decisions. The question, instead, is whether there is some principled reason, besides administrative exigency, for a lower standard of scrutiny to be deployed when reviewing administrative decisions under the Charter. As I’ve written before, doctrine should not “require the weakening of constitutional norms to suit the prerogative of administrative decision-making.”

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With my remaining space, I’d like to turn to the issue of applying the reasonableness standard. Here, I agree with much of what Professor Daly says. As he notes, and as I argue in my paper, there are tensions in Vavilov’s articulation of reasonableness review (see the Conceptual Gap, at 15). I acknowledge, specifically, that aspects of Vavilov reasonableness may have a Diceyan quality to them, while other parts of Vavilov are more designed to encourage space for decision-makers to justify their decisions to the public (Vavilov, at para 14). Other aspects of Vavilov are not formalist at all—for example, the recognition that administrative justice need not look like judicial justice (Vavilov, at para 92). On this, I think there is agreement.

But this does not change the fact that there are aspects of Vavilovian review that are decidedly formalist, and which conflict with Doré on its own terms. Recall that the governing statutory scheme will be the most salient aspect of the legal context relevant to judicial review (Vavilov, at para 108), with the principles of statutory interpretation acting as necessary constraints on decision-makers. As noted above, if we transposed this requirement into the constitutional context, we would expect the Constitution—specifically, its text—to be even more fundamental than statutes, to the extent that decision-makers must always consider the Charter within their scope of discretion (Doré , at para 35; Slaight Communications, at 1077-1078). As I note in my paper:

Recall that Vavilov, in the context of legislative interpretation by administrators, asked decision-makers to focus on a number of “constraints” that would determine whether a particular decision is reasonable or not. Some of these constraints are particularly relevant to the constitutional context. For example, in the context of assessing the reasonableness of a decisionmaker’s constitutional conclusions, Vavilov’s focus on the “governing statutory scheme” could easily simply be rebranded as the governing constitutional text; precedent, in both contexts, would be relevant; and the principles of statutory interpretation emphasized in Vavilov could become the principles of constitutional interpretation in the Doré context. Additionally, the Court could impose explicit reasoning requirements on all of these constraints; where they are in play, decision-makers should reason in relation to them, just as the Court asked decision-makers to reason respecting the Vavilov constraints (The Conceptual Gap, at 26).

And more specifically, the exercise of discretion under the Charter still requires justification. This was not alluded to in Doré, and yet Vavilov centres the entire edifice of reasonableness review on this principle. Justification, for example, requires the consideration of “…the perspective of the individual or party over whom authority is being exercised” (Vavilov, at para 133). Where rights and interests are stake, one must assume that the standard must be something more than being “alive” to the Charter issues at stake, as the majority concluded in TWU. While I acknowledge that TWU was a law society case, where reasons take on a different character, I must note the dissent’s point of view in TWU. Arguably, the dissent’s comment is more in line with what Vavilov requires:

While the Benchers may not have had a duty to provide formal reasons…the rationale for deference under Doré —expertise in applying the Charter to a specific set of facts…–requires more engagement and consideration from an administrative decision-maker than simply being “alive to the issues,” whatever that may mean… (TWU, at para 294).

In sum, I continue to believe, despite Professor Daly’s strong arguments, that Doré  is vulnerable to attack after Vavilov. While I would be prepared to make arguments that attack Doré  head-on, there is value in comparing Vavilov to Doré. Far from emerging strengthened, I continue to hold the view that Doré requires assimilation to the Vavilov framework. But I part ways with Professor Daly on precisely how this is done.

New Paper on Doré and Vavilov

Frequent readers of this blog will know that I have written here on the subject of the propriety of Doré post-Vavilov. As many of you know, I do not believe that Doré can stand in light of Vavilov. I have now outlined more extensively why that is is, in a paper that will appear in the Dalhousie Law Journal later this year. Here is the abstract:

This paper argues that, without substantial doctrinal amendment, there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review: first, a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and second, the imposition of a “culture of justification” for administrative decision-makers, in which decision-makers are asked to justify their decisions to receive deference. On the other hand, Doré is motivated by a pure functionalist understanding of administrative law, in which the expertise of the decision-maker in deciding constitutional matters is emphasized. While not total opposites, the theories are also not entirely complementary, such that they lead to different doctrinal prescriptions. The paper explores the doctrinal gap, and suggests two ways in which it might be bridged. First, Doré might be recalibrated to bifurcate the standard of review analysis, so that decisions implicating the scope of Charter rights is reviewed on a correctness standard, while the proportionality/application stage is reviewed on a reasonableness standard. Second, Vavilov’s justificatory standards might be imported into the Doré context to bridge the gap.

The paper can be accessed here. 

 

Expertise in Pandemic Life

 

With the COVID-19 pandemic in full swing, many (for example, Phil Lagasse) have written about the role of experts in public life. The controversy seems to centre around a few points of contention: (1) the degree to which quintessentially political decisions should depend on expert guidance (2) the degree to which the public can and should criticize experts in the midst of a public health dilemma; and (3) the degree to which politicians should or do use experts as the public face of political initiatives.

COVID-19 is an apt phenomenon through which to analyze the role of experts in public life. The pandemic is a health crisis at its core, which invites the contribution of public health officials, doctors, and other experts. At the same time, the health crisis is interwoven with decisions of a political nature: what sorts of programs will best ameliorate the economic strife that many are facing, when and how to “re-open” the economy, and what are the rules that should govern how people interact with one another during the pandemic? In turn, those questions raise this one: what is the proper province of the experts?

Finding this line is no easy task.  But there are, at the very least, a number of important considerations we should keep in mind as we try to find the proper approach to dealing with expertise in public life.

First, we should remember that speaking generally of expertise can belie the complications associated with applying expertise to particular problems. That is, we have to be clear about what sort of expertise we are speaking about. Expertise in public health or epidemiology is not expertise in public policy or program delivery and evaluation. We are familiar with this phenomenon in the law of judicial review. For some time, the Supreme Court presumed that administrative decision-makers in government were “experts” on all matters that came before them (see Edmonton East). But this was always a logically faulty assumption. There was never any evidence offered that experts in government policy—for example, in deciding whether someone is eligible for a certain benefit—ever translated into, say, legal expertise in interpreting statutes or the Constitution. So we must be clear about what sort of “expertise” we are speaking of when we judge the role of experts. Usually, it is not expertise in all things; but rather, it is expertise in some narrow, technical area. And so long as the expert remains confined to that specialized area, there is no reason to worry about over-extending expertise as a concept.

This is not to undermine the importance of expertise in technical areas. Expertise in epidemiology, it turns out, is incredibly important at this time. But once we have narrowed down the scope of an expert’s particular knowledge, it becomes incumbent on the expert to demonstrate that her expertise somehow translates into some other field.

Secondly, and relatedly, using experts to make judgments that affect all of society could lead to certain pathologies. I am often reminded, these days, of Harold Laski’s famous piece “The Limitations of the Expert” (see also Professor Daly’s post here). In the piece, Laski outlines a number of pathologies associated with expertise, all of which are relevant today. For one, experts, even in their own fields, may “tend to neglect all evidence which does not come from those who belong to their own ranks” [4]. More generally, in relation to other fields, experts cannot claim finality for their views because “[e]very expert’s conclusion is a philosophy of the second best until it has been examined in terms of a scheme of values not special to the subject matter of which he is an exponent” [6].  That is, expertise itself in a technical area cannot be the sole means by which social problems are solved, particularly problems that are evasive of empirical analysis. Sometimes—most times—political judgment about social values or norms is required to round out an expert’s rather narrow or technical focus.

Deeper pathologies that affect the fundamental values of our constitutional order may run together with expertise. In an interesting study of the nature of expertise in decision-making, Sidney Shapiro argues: “A central reason why critical inquiry over expert decisions is necessary is that the expert rarely factors democratic liberal values into her decisions. Expertise tends to be narrowly focused and highly specialized, and the expert does not make her judgments in light of democratic liberal values” [1013].  Put differently, experts can tend to focus on their own narrow area of expertise without considering broader social norms or legal values. Health officials may suggest a particular response that maximizes health outcomes, but that does not take into account other constitutional or legal values. The two are not necessarily co-extensive, given the constitutional challenges that exist in respect of the COVID-19 response.

Third, the public has a role in evaluating the evidence, justifications, and reasoning underlying expert decisions. As Shapiro aptly notes, some “[d]ecisions within government institutions often occur within the shadows, concealed from public view” [1015]. This reality has two takeaways. First, experts should not be considered to be cloistered servants away from public scrutiny. If experts are indeed central to decision-making, those responsible for decisions should offer the public a chance to scrutinize the assumptions and reasoning underlying particular decisions. This is all a function of the theory, endorsed in Vavilov, of a “culture of justification” for administrative decision-makers in which the legitimacy of a particular decision depends on the way in which it is justified to the public. Secondly, to this end, the public should not shy away from criticizing the approach of experts when it does not jibe with common sense or experience. The public can legitimately ask, through their representatives, whether the World Health Organization adequately discharged its mandate in protecting the public; whether politicians were right to not close the border at the outset, based on expert judgment; and whether Dr. Theresa Tam’s about-face on masks was justified. These are all areas in which the public can play a role.

Finally, overreliance or trust in experts risks deflecting political responsibility.  This is a point made by Lagasse in his piece. In our system, the COVID response will be judged in political terms by the electorate at the next election(s). But if politicians stand behind experts, allowing them full rein to craft policy (and/or take responsibility for it), there is a risk that this responsibility can be deflected onto the experts. This is a worry that should be constantly guarded against. As Laski notes, experts should be on tap, but not on top. Putting them on top—allowing them to lead the charge, rather than take an assisting role in the public health crisis—undermines democratic accountability.

These are some rough-and-ready considerations to keep in mind as we think through the role of experts in this public health crisis.

 

 

 

The Life and Times of Patent Unreasonableness

Post-Vavilov, can a legislature freely specify the standard of review? The answer seems obvious. Legislation overrides the common law, so as the Vavilov majority states, “…where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35).

In most cases, this clear language of the Court will be dispositive. Clearly, where the legislature specifies a standard of review (as opposed to a ground of review—see Khosa), it must be given effect. However, there are niche issues to consider. For example, what about standards of review that have defined statutory or common law meanings? Such a term, for example, is the patent unreasonableness standard, a standard of review that typified the “pragmatic and functional” era in administrative law, and that was put to bed in Dunsmuir. Patent unreasonableness still has some play in the BC Administrative Tribunals Act and in the Ontario Human Rights Code (s.45.8) in relation to decisions by the Ontario Human Rights Tribunal. How affected is the patent unreasonableness standard by Vavilov?

In this post, I want to explore the status of patent unreasonableness post-Vavilov. First, I want to suggest that patent unreasonableness, as a statutory standard of review, is a distinct standard that should be respected post-Vavilov as an instantiation of legislative intent, absent constitutional constraints. I then turn to ask whether such constraints are present, either because of Vavilov or otherwise. As I will note, there are constitutional issues with patent unreasonableness on questions of law that can be framed in various ways. I conclude by noting that patent unreasonableness may be an unconstitutional standard of review.

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Patent unreasonableness, as a standard of review, originally had a common law meaning, as set out in CUPE v New Brunswick (see Dunsmuir, at para 35). In addition to the standards of review of reasonableness simpliciter and correctness, patent unreasonableness was the most deferential standard of review. Patent unreasonableness refers to the “immediacy” or “obviousness” of the defect in a decision-maker’s decision (see Southam, at para 57; Dunsmuir, at para 37). In order for a decision to be found patently unreasonable, the decision must be immediate and obvious (this reminds me of the old ground of an “error on the face of the record). This is the distinguishing factor between the previous distinction between “reasonableness simpliciter” and “patent unreasonableness.”

In Dunsmuir, of course, the Court did away with this distinction, deciding that patent unreasonableness was no longer an available standard of review. The Court reasoned (1) that the distinction between patent unreasonableness and reasonableness was largely illusory (Dunsmuir, at para 41) and (2) that patent unreasonableness might require a a court to accept a decision that is irrational, simply because the error isn’t clear enough—this presents Rule of Law issues (see Dunsmuir, at para 42).

That said, patent unreasonableness as a statutory standard of review remains in some contexts. The BC Administrative Tribunals Act, for example, prescribes a standard of patent unreasonableness where the statute contains a privative clause (section 58(1)). In Ontario, the Human Rights Code, as noted above, prescribes a standard of patent unreasonableness—though the Ontario courts have interpreted this provision as only requiring reasonableness review, in light of Dunsmuir (see Shaw v Phipps ONCA, at para 10). The Supreme Court has held that the standard of patent unreasonableness in this context has a distinct meaning, “but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (Khosa, at para 19).

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The first issue with patent unreasonableness raises the question of how far the common law analysis set out in Vavilov can go to alter the standard of patent unreasonableness, given the comments in Khosa. BC courts have split on the issue. As I have blogged about before, in College of New Caledonia, the Court concluded that “Vavilov has not changed the law with respect to the meaning of patent unreasonableness under [the BC ATA]” (College of New Caledonia, at para 33). Meanwhile, in Guevara v Louie, the BCSC concluded that Vavilov’s comments on the reasonableness standard “also apply to a review of reasons on the standard of patent unreasonableness” because common law jurisprudence may impact what constitutes a patently unreasonable decision (Guevara v Louie, at para 48).

Generally, I am of the view that patent unreasonableness as a standard, if prescribed by the relevant legislature, must remain as distinct as possible. This is because the selection of patent unreasonableness—either as defined by the legislature explicitly or by the common law, as incorporated by legislation—is a distinct choice by the legislature that should be respect. The legislature clearly could not have intended that patent unreasonableness would be modified by Vavilov. So, as much as possible—in order to respect legislative choice—patent unreasonableness should be considered a distinct legislative standard.

Of course, this does not rule out the influence of the common law. In the BC ATA, patent unreasonableness is largely defined by grounds that resemble abuse of discretion—here, the common law cannot play much of a role, because patent unreasonableness has been defined clearly by the legislature. But in the Ontario Human Rights Code, patent unreasonableness is not defined. Here, the common law definition of patent unreasonableness—as it existed at the time of enactment—can supplement the legislative term. In such cases, the benchmark for patent unreasonableness may draw limited inspiration from Vavilov. But to say that Vavilov turns patent unreasonableness into a wholly different standard is a different matter altogether; one that, to my mind, disrespects the legislative choice to enact a more deferential standard of review. To my mind, College of New Caledonia gets this basically correct.

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If patent unreasonableness is a distinctive standard, then the question becomes: is it a constitutional standard of review on questions of law? To be sure, issues regarding the constitutionality of various standards of review are not often explored in Canadian administrative law. In Quebec, however, the constitutionality of the Court of Quebec applying deferential standards of review is an issue that will be heard by the Supreme Court of Canada soon. This indicates that the constitutionality of particular standards—especially those prescribed in legislation—might be an important issue going forward. In my view, there are two such potential constitutional issues with the patent unreasonableness standard. First, the Rule of Law—as conceived in Vavilov—could be a fetter on the legislature’s choice to prescribe a patent unreasonableness standard of review. Second, s.96 could itself found a challenge to the patent unreasonableness standard. In whole, I find this latter challenge more convincing.

First, Vavilov’s comments on the Rule of Law present a challenge to the imposition of a patent unreasonableness standard on questions of law. Recall that, in Dunsmuir, the Court (in a throwaway line, mind you) reasoned that patent unreasonableness presents rule of law issues, because it could shelter otherwise illegal decisions from review. Indeed, as noted above, the Ontario courts have taken these concerns to heart. They have read the “patent unreasonableness” standard in the Human Rights Code as merely demanding “reasonableness” review (see Intercounty Tennis Association, at para 45). In Intercounty Tennis Association, the Court relied on Vavilov’s Rule of Law comments (at para 43, saying that the legislature’s standard of review choice must be respected “within the limits imposed by the rule of law”) to reach this conclusion:

[44] As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.

I am sympathetic to these Rule of Law concerns. But there is a preliminary question that must first be answered: does the Rule of Law have substantive force, such that it can bind the choice of legislatures within its limits?

Of course, the Court has previously held that the Rule of Law cannot be used to attack the content of legislation (Imperial Tobacco, at para 59). But as Leonid Sirota notes, there might be valid reasons to distinguish Imperial Tobacco. And at the very least, Vavilov’s comments on the Rule of Law, particularly the comment that legislatures can specify the standard of review within the limits imposed by the Rule of Law, seem to suggest that the Rule of Law, as a principle, will set the boundaries for the standards the legislation can choose.

The other way to view the issue is that Vavilov merely spoke to the common law standard of review analysis. That is, the Rule of Law, within the common law analysis, can impact the court’s choice of a standard of review. But once the legislature legislates, the common law analysis—including the comments on the Rule of Law—cease to apply.

I must admit that, at first, I was drawn by this common law angle. But how does one square the Court’s comments, then, about the limits imposed by the Rule of Law? I can’t seem to reconcile these comments, to be frank. They seem to suggest that the Rule of Law will impose limits on the legislature’s selection of the relevant standard of review. Given that this is likely the case, it would seem to suggest that the Rule of Law does have substantive content, contrary to Imperial Tobacco.

I think a preferable interpretation, rather than relying on a potentially limitless unwritten constitutional principle, is one rooted in s.96 of the Constitution Act, 1867. That is, s.96 has developed such that the role of the superior courts in policing the boundaries of administrative action is constitutionally guaranteed, especially on questions of law: see Crevier. Patent unreasonableness, as a statutory standard, is one that impacts this supervisory function of the superior courts—it requires a court, having identified an error, to measure whether it is “obvious” enough to warrant intervention. This means that certain errors—even material ones—will be allowed to stand . In Quebec, this issue is currently being litigated with respect to the Court of Quebec and the potential requirement of “double deference’”—which has the effect of sheltering illegal decisions from review. This clearly impacts the reviewing function of the Court. In this respect, patent unreasonableness could be unconstitutional because it requires courts to simply ignore errors that otherwise arise.

In light of this conclusion, the question then arises: what do courts do with this when faced with a ptent unreasonableness standard? One could imagine two scenarios. First, one can take the Ontario court’s position, which is to say, a position rooted in constitutional avoidance: read patent unreasonableness to simply mean something else. Another option is to simply strike the legislation prescribing patent unreasonableness, either pursuant to the Rule of Law or under s.96. I think constitutional avoidance in this context is not a sound idea, because as I said earlier, patent unreasonableness can have a distinct meaning if set out in statute (like the BC ATA) and otherwise draws inspiration from the common law definition of patent unreasonableness. This takes “avoidance” too far—avoidance is typically only feasible when a term is ambiguous and there are two plausible meanings one could take of the view. But here, patent unreasonableness is, to my mind, not necessarily ambiguous—though its contours may be hazy.

In my view, we must deal with any constitutional problem faced by patent unreasonableness head on. In my view–and holding my tongue as much as possible in light of the Quebec case on deference–the patent unreasonableness standard has the potential to shelter material errors of administrative actors from judicial scrutiny. This, on an understanding of s.96, is unconstitutional.

Put differently, I think the best way to approach the patent unreasonableness standard, post-Vavilov, is to simply conclude that it is unconstitutional because it minimizes and restricts the reviewing role of the courts. I do not expect anyone to actually pick up this argument—but I think it is a fair point to make in light of that standard. Overall, though, the question of patent unreasonableness will continue to grip courts in jurisdictions where the standard is relevant. This post is designed to provide a toolbox of arguments as litigants and courts deal with this question.

The Common Good Administrative State

The Internet has been captivated by Professor Adrian Vermeule’s provocative essay in The Atlantic on so-called “common good constitutionalism” (CGC). CGC could be describes as part of a larger theory that co-blogger Leonid Sirota calls “right-wing collectivism,” which “blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism.” CGC picks up the mantle in the legal realm, with Vermeule suggesting that “substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read in the majestic generalities and ambiguities of the written Constitution” should be the starting point for interpretation. These substantive principles include

…respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

CGC is clearly distinguishable from other political and legal theories of interpretation. It does not ally itself with originalism, in that originalism is not expressly designed to promote certain substantive political aims. On the other hand, CGC does not take freedom of the individual as the dominant good in a polity, as libertarians might. Instead, CGC intends to promote substantive conservative ideals in constitutional law.

This is a rough-and-ready description of CGC, and for those who want a more in-depth description of the theory’s substantive ends, Leonid Sirota has written a post on CGC here, and others have written well-justified critiques of Vermeule’s position. My goal in writing today is to suggest some implications of CGC for administrative law and the delegation of power to administrative agencies. I do not think that a state or court that sets out to accomplish what Vermeule suggests would be able to avoid delegating power to agencies—this Vermeule seems to acknowledge. The question is whether such delegation is desirable, and whether the conservative adherents of Vermeule’s theory would themselves accept an ever-growing administrative (rather than democratic) behemoth.

I first describe what Vermeule says about the administrative state in his controversial piece and a related piece. Then I address some implications of CGC for administrative law and delegation. My view is that CGC depends–crucially–on the administrative state to effectuate its aims. But there is no guarantee that the administrative state can be wielded to achieve those goals.

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Vermeule spends the majority of his time talking about the ends associated with his CGC, and rightly so: these are controversial aims that run against orthodox opinion and established authority. However, he does devote some time to discussing how his CGC will affect the “structure and distribution of authority within government.” It is worth quoting the entirety of what Vermeule says about administrative agencies and bureaucracy; clearly, these institutions form the means to Vermeule’s ends:

As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.

This is the entirety of what Vermeule says about bureaucracy in his piece, but there is a lot of meaning packed in these words. The last link in Vermeule’s comments links to another piece he wrote in which he discusses the ability of the administrative state to actively promote religion. In this piece, Vermeule suggests that “specialization” in administrative agencies is neither here nor there on religion, because “specialization is an intrinsically neutral institutional technology.” Vermeule says, on this basis:

So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication.

[…]

Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.

For Vermeule, then, the picture seems to be of an administrative state actively advancing a certain discretionary agenda, perhaps unconstrained by constitutional or legal arguments that might confine that discretion, with the gargantuan task of promoting “solidarity and subsidiarity.” Unfortunately, no matter whether such a state is desirable, I do not find such a state practical in any sense of the term.

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Consider, first, the supposition that the bureaucracy would be “strong” in itself, acting under a “strong” Presidency. This comment seems to recall the unitary executive theory, under which “whatever authority the executive has must be controlled by the President.” This includes bureaucratic agencies operating under the President. These sorts of agencies can be contrasted with independent agencies, typically styled as such because their heads are removable by the President only for cause (though see Vermeule’s piece here). On the unitary executive theory, bureaucrats fall under the control of the President, exercising his constitutionally-delegated Article II authority.

At first blush, the unitary executive theory might appear to be a normatively desirable way to control bureaucrats. After all, Article II is clear that it is the President who holds the executive power, and so any exercise of that power must be controlled by the President. This theory has infiltrated the Supreme Court of the United States’ cases, particularly the so-called “Peek-a-boo” case (PCAOB v Free Enterprise Fund).

But practically, I have always been skeptical that the unitary executive theory is any more than a constitutional ideal rather than a practical, empirical fact. That is, it is somewhat of a legal fiction. The President of course cannot control every executive agent. And this is where Vermeule’s use of the administrative state as an instrument of CGC will falter. The political science and public choice literature is rife with theories of bureaucratic “drift,” under which agency members might “drift” from the statutory authorization giving them power. The same type of executive drift is possible from the perspective of the President; where preferences diverge between career staff and bureaucrats may have ideas of their own. After all, “…agencies (often have different goals than politicians or different judgments about how best to achieve those goals.” (see Jacob Gerson’s piece here). In the United States, for example, Jennifer Nou has written about civil servant disobedience, an increasingly prominent phenomenon during the Trump era. What is the Vermeulian plan for a disruptive civil service, with its own preferences, and its own agenda? In other words, do we think a strong bureaucracy will fall in line to CGC?

For example, one form of contestation might arise when a CGC President wants to promote “subsidiarity.” What incentive is there for a national administrative agency to embrace the principle of subsidiarity in the exercise of its legal functions? This seems to be a situation where there could be a classic preference divergence, where in the halls of power there is probably an incentive to arrogate more and more power to federal authorities over local authorities.

The upshot of Vermeulian CGC is that it would, I suspect, necessitate a mass amount of delegation to administrative agencies (though Vermeule does not expressly say this). Keeping in mind that Congress already has a difficult time in deciding how to monitor its delegations of power, and given that the pace and breadth of delegation seems to grow year over year, I have no faith that a CGC-based state would be able to control the mass delegation it plans. And it is worthwhile to question whether more delegation to administrative agencies is at all desirable.

These concepts are not new, and are fairly simple to understand. But they represent general rules about how the bureaucracy operates. There is no guarantee that a strong bureaucracy, as Vermeule wants it to be, will be a faithful agent for the President.

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But let’s assume that such a unity of identity and purpose is achievable—the administrative state, under this understanding, could become a tool for CGC and its programs. But this illustrates the problem with administrative power, based on it is upon contested notions of expertise and the “science of administration”: these tools can be easily co-opted and turned against CGC. On this account, the administrative state could be a self-defeating enterprise for CGC.

It is interesting, at least to me, that Vermeule calls the administrative state a neutral “institutional technology.” This might be strictly true, but it harkens back to an era when we spoke of ideas of strictly neutral expertise, or of the administrative state’s neutral status as a collection of good-faith individuals working towards the public good. One of the notions inculcated by the administrative law functionalists of a previous generation (like Wilson, Landis, and Goodnow) was the idea that administrative technology should be kept independent from the travails of politics. On this account, the administrative state might be described as a neutral technology.

But as I have written before (and as Vermeule seems to tacitly acknowledge), there is nothing technological or neutral about the administrative state. As mentioned above, agents within the state may have their own goals. But more importantly, if delegation is the so-called “engine” of the administrative state, then the currency we are really speaking about in administrative law is power. Power is what administrative agents act on when they create rules and make decisions. Courts are primarily concerned with whether these rules and decisions fall within the scope of the enabling power, and/or whether the power exercised by delegated officials is justified. Power, then, is given by the legislature to the delegated actor, and it is that power we should be concerned with.

Vermeule accepts that this power can be used to advance religious goals, or perhaps goals centred around the constitutional aims of CGC. But it is just as likely that this power can be co-opted by bureaucrats, courts, or politicians or judges of a different stripe, to advance an exact opposite version of the “common good.” As I wrote before:

Progressives have spent more than a generation asking courts to stay out of the business of administration, especially because of their supposed conservative and market-based political philosophy. This largely worked. The administrative state is now entrenched in many common law countries. But administrative power knows no ideology. Its only ideology is power, in a raw sense. That power—being judicial, legislative, and executive power merged—can be wielded by those with anti-progressive goals, or more dangerously, by those with authoritarian tendencies who seek to “throw things into confusion that he may ride the storm and direct the whirlwind.”

The number of times this has happened in administrative law history are too many to count: but consider the use of administrative agencies by FDR to advance the New Deal, and then the capture of these agencies some 50 years later by President Reagan to advance his deregulatory agenda. Recall that Chevron deference was introduced during the Reagan era, and served to assist the Reagan administration’s environmental agenda. The administrative state’s allyship with power makes it a dangerous tool that can be used for partisan or political ends that CGCers would find abhorrent. 

This is not, in itself, a bad thing. In fact, it subjects the administrative state—to the extent permissible with preference divergence—to the democratic accountability of elected officials. But let’s not pretend that the administrative state can be a neutral technology that always and everywhere can be transformed to CGC ends.

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If the administrative state is fundamentally about power, then we should be careful about its exercise. This is the traditional way we view power in constitutional law and administrative law. For example, judicial review in Canada is concerned with surveillance of lower decision-makers in order to ensure precise conformity to their enabling statutes (see Wall, at para 13; Vavilov, at paras 108-110). The same is true in the United States. CGC, then, turns the typical discussion of judicial review of administrative action on its head. Instead of discussing how best to control administrative decision-makers through doctrine, CGC seems to harken back to an old era of administrative law theory, where there is an implicit trust in administrative decision-makers to simply do the right thing. For the reasons I’ve noted above, it is unlikely that this will ever be the case. But as co-blogger Leonid Sirota points out, there is a downfall to assuming that power can simply be trusted to a massive administrative state, advancing the “common good” (whatever that turns out to be defined as):

From this recognition there should proceed, as I repeatedly insisted my post on the corrupting effects of power, to a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

Much administrative law is best conceived in this light. We are talking, after all, about the law which governs administrators—the judicial and legal controls that we apply to ensure the legality of state power. The worry is even greater in administrative law contexts, because Parliament can easily escape the strictures of judicial control by delegating power away. Judicial review, on this front, is concerned with managing the risks associated with delegated power, and the discussion should be the best doctrine to effectuate that concern. But CGC seems to unleash the administrative state, putting trust in the bureaucracy to achieve its aims. This, to my mind, is a classic mistake.

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Of course, I cannot address all of the implications of CGC in this (relatively) short post. I have tried to focus on a few implications for the world of administrative law. The metes and bounds of CGC will, hopefully, be fleshed out in further academic debate and discussion. For now, though, I am skeptical that the mass delegation of power that CGC will likely entail to the administrative state will be worth the risks associated with that delegation.

 

 

 

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

This post is written by Thomas Falcone

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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

 

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

Stupid. But Constitutional.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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