Judicial Supremacy Defrocked

Justice Abella’s recent speech should remind us that courts are fallible.

In a recent speech reprinted in the Globe and Mail, Justice Abella of the Supreme Court again offered a robust defense of the judicial role and the profoundly benevolent impact of the Supreme Court in Canadian constitutional history:

Integration based on difference, equality based on inclusion despite difference and compassion based on respect and fairness: These are the principles that now form the moral core of Canadian national values…the values that make our national justice context democratically vibrant and principled…[a]ll this came from the Supreme Court.

She goes further:

A Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph. In a polarized society, it is especially crucial to have an institution whose only mandate is to protect the rule of law.

On one hand, it is good to see that Justice Abella no longer finds the Rule of Law annoying. But on the other hand, her comments should give us pause. She presents a vision of a Supreme Court that decides what Canadian values are, and then imposes them on the society generally. We should first call this for what it is: judicial supremacy, in which rights are not recognized as much as they are created out of whole cloth at the discretion of the Supreme Court. Abella J seems to accept this in Saskatchewan Federation of Labour, where she “gives benediction” to a right to strike. “Benediction” is defined as “the utterance or bestowing of a blessing, especially at the end of a religious service.” True to form, the Supreme Court is the high priest, bestowing us with rights as only a supreme institution can.

Glibness aside,  I do not mean to use the term “judicial supremacy” in a bombastic way, but rather in a technical legal sense. I mean it in the sense that Justice Abella clearly views the role of the Supreme Court as having the last word on constitutional matters. But her view goes even further: she thinks that the Supreme Court is a freestanding arbiter that is institutionally capable of rending final judgments on contests between values for the society on the whole.

I’m not sure this is normatively justifiable or whether it’s even a structural or textual feature of the Canadian Constitution. The legislature still has an important role to play in vetting laws for their constitutionality and making important value judgments that may impact constitutional rights—in most cases, the legislatures are probably better at this than courts. But this is a bigger fish to fry. Assuming for my purposes that Justice Abella’s description of what courts do and should do is accurate, maybe this state of affairs could be justifiable on the basis that courts are comparatively better at making the sorts of value judgments that arise in constitutional matters. If Justice Abella’s framing is true, so the argument goes, the essence of constitutional adjudication is value judgment; courts adjudicate constitutions, and therefore courts, over time, will be expert in value judgments.

But no one has ever presented evidence that this is empirically true, and I am not sure anyone ever could. Justice Abella herself recognized this in Doré, when she developed a doctrine of deference premised on the concept that courts are worse at constitutional decision-making than administrative decision-makers. In fact, courts are not institutionally suited to balance the sort of polycentric considerations that go into difficult and resource-laden value judgments. And judges are trained in the law, which on many modern accounts, is not even the purpose of law school. There are good reasons to doubt the ability of the courts to even begin to understand the weight of the task at hand.

If we are to have judicial supremacy, and judicial supremacy is fundamentally about final value judgments, I am not sure why we solely appoint legal practitioners to the Supreme Court. I only half-joke when I say that we could populate the court with people trained in the different perspectives through which value judgments could and should be made. Economic reasoning, for example, could be extremely helpful here. As Lon Fuller said, there is a point at which we could trade-off certain values in favour of others. We should attempt to develop theories by which we can anticipate and calculate the costs of adopting one right over another; or the reliance interests associated with this precedent over that one. What’s more, philosophy could be helpful. Moral and normative reasoning about how people should live is clearly within the interest of Justice Abella when she judges cases.

I think that the Justice Abellas of the world who argue that law is simply about “balancing values” are caught between a rock and a hard place. On one hand, if they make that argument, they should accept that law has no claim to empire over adjudication. Adjudication is not what is taught in training for lawyers; and there are people who are better qualified to assess the different tradeoffs of values and the practical impact those changes have. But if they reject this proposition, then they must accept that there is a locus of “law” somewhere to be found in adjudication. It follows that we should train lawyers and judges to first, do no harm; determine the meaning of constitutional terms according to objective standards.  Values may be instantiated in the law, but one must first interpret that law to determine those values. It shouldn’t be the case that judges enter legal inquiries with an idea of the values they seek to advance.

The task of judging was supposed to be defined by “passive virtues,” with courts possessing neither force, nor will—only judgment (The Federalist, No. 81). Justice Abella evidently believes in a vision of courts that are not only supreme but confidently so. Judgment has turned into arrogant finality that decides not only the narrow constitutional issue before the court, but the larger value judgment which is settled for all time.  There is no democratic recourse to the ever-expanding domain of constitutional empire if courts make abstract, political, and resource-intensive value judgments for the society on the whole.  If courts are going to do this—if we have sold the legislature down the river—then they should at least be good at it.

Bell/NFL: The Second Dunsmuir Redux Case

Two weeks ago, I summarized and analyzed the arguments in Vavilov, one of the Dunsmuir redux cases that will be heard at the Supreme Court in December. I’ll now do the same for the second case, Bell/NFL, which similarly focuses on an important conceptual difficulty in the law of judicial review: the presence and implications of a category of “jurisdictional questions.”

This case concerned an interpretation of the Canadian Radio-television and Telecommunications Commission [CRTC] of its own statute and regulations. The Appellants, Bell and NFL, claim that the interpretation raises a jurisdictional issue; the Respondent government resists this claim, arguing that the concept of jurisdictional questions inviting a different standard of review should be jettisoned. For reasons I’ve explained before, I do not think jurisdiction is a helpful category in the law of judicial review. All administrative law is confined to statute, and so whether an issue is “jurisdictional” or not is simply a function of an enabling statute.

The interpretive difficulty

The interpretive difficulty in Bell/NFL centres around the broadcast of the Super Bowl in Canada. For many years, the Super Bowl had been broadcast in Canada under the “simultaneous substitution regime,” set out in the regulations [Sim Sub Regulations] under the Broadcasting Act. Under the simultaneous substitution regime, a Canadian television station is required (unless the CRTC determines otherwise) to substitute a Canadian feed for a non-Canadian programming service—the result being that Canadians watching the Super Bowl see Canadian commercials whether they watch the Super Bowl on a Canadian or American channel (see Sim Sub Regulations, s.4(1))). The CRTC, under the Sim Sub Regulations, can apply an exception to the simultaneous substitution requirements if the “deletion and substitution are not in the public interest” (s. 4(3)). The CRTC can make this decision under s.18(3) of the Broadcasting Act, which allows it to make any decision “within its jurisdiction” if it is satisfied it is the public interest.

In this case, after consultations, the CRTC decided that the simultaneous substitution of Canadian content would no longer be in the public interest.  The key provision is s.9(1)(h) of the Broadcasting Act, under which the CRTC is entitled to require a licensee to “carry…programming services specified by the Commission.” Under this provision, the CRTC decided that it had jurisdiction under s.9(1)(h) to apply the exception to the simultaneous substitution regime in the public interest.

At the Federal Court of Appeal (a direct statutory appeal), Bell and the NFL argued that the CRTC “only has jurisdiction to make orders and regulations regarding programming services and does not have jurisdiction to single out an individual ‘program’” [15]. While the Broadcasting Act does not define programming services, the appellants argued that other provisions in the statute used the term “programming services” to refer to television channels. So, since the Super Bowl is a single show, the CRTC did not have “jurisdiction” under s.9(1)(h) to make the order it did.

The Federal Court of Appeal decided otherwise. First, the Court concluded that the standard of review is reasonableness, but rejected the “margin of appreciation approach” that the Court adopted in Vavilov [9].  It ultimately decided that the term “programming services” is contextual in nature; it could mean a single “program” (ie) the Super Bowl in certain circumstances [19]. A number of factors supported this conclusion: (1) previous interpretations of the CRTC held that the term was contextual [16]; the Sim Sub Regulations adopted the definition of “programming services” under the Broadcasting Distribution Regulations, which defined a “programming service” to mean a singular program [17]; while the legislative history demonstrated that “programming services” was used in reference to television channels, it was not determinative, and there was no evidence that the legislature intended to exclude a singular program from the term “programming services.” All of this meant that the CRTC’s decision was reasonable.

While there were other issues in this case, this core issue is the one that is most relevant to current debates in administrative law and judicial review.

The Parties’ Submissions on Standard of Review

Bell and NFL filed a factum each before the Supreme Court; Bell’s focused on the standard of review, while the NFL’s focused on the application of the standard of review to the issues in the case.

Bell’s factum reads as an attack on the administrative state. In the opening paragraphs of the factum, Bell notes that s. 9(1)(h) is juxtaposed with s.26(2) of the Broadcasting Act, which gives the power to Cabinet to require the broadcast of “any program.” This, to Bell, was the only provision of the statute that permitted the targeting of an individual program. This made sense—the Cabinet is “a democratically accountable body” [5]. And Bell does not pull punches, calling the CRTC’s exercise of power “Orwellian,” “conferring upon itself the ability to dictate the particular television programs that broadcasters distribute…” [5].

This assault on administrative power informs Bell’s standard of review proposal. To Bell, it is “inconceivable” that Parliament would have wanted the CRTC to have the last word on its own “jurisdiction” on this matter. To prevent this reality, Bell argues that a separate category of “jurisdictional questions” inviting correctness review is required. At risk are three principles: legislative supremacy, the separation of powers, and the rule of law [paras 42, 45, and 63-69]. When the fundamental question concerned “executive accountability to legal authority,” it would undermine the intent of the legislature to allow its creation to run beyond its statutory limits; the separation of powers is at risk if the executive could “decide for itself what powers were delegated to it by the legislature” [47]; and if the CRTC could single out a program when the statute expressly left that task to Parliament, the rule of law is impacted [69].

Without correctness review on “jurisdictional questions,” Bell alleges that we have an administrative state untethered to statute, making law as it goes along. And for Bell, even if the presumption of reasonableness was applicable, other statutory signals rebutted the presumption, including a statutory right of appeal [87-88].

The government, in its submissions, reiterated the focus on a general standard of deference for all administrative decision-makers that it set out in its Vavilov submissions and that I addressed in my previous post. It argues that the category of jurisdictional questions should be eliminated [34], and that the mere fact of delegation creates a presumption of deference [48]. To the government, there should be no search for other implicit signals of legislative intent to rebut this presumption.

Analysis

The Bell/NFL case gives the Supreme Court an opportunity to review its approach to that unicorn of judicial review, “jurisdictional questions.” In a forthcoming paper entitled “Two Myths of Administrative Law,” one of the myths I tackle is the idea of jurisdictional questions. In my view, both Bell and the government get this issue wrong. A category of jurisdictional questions (but not necessarily the concept of “jurisdiction”) is not helpful to the task of determining the standard of review; but neither is an always-applicable presumption of deference, which the government seems to believe necessarily follows from the rejection of the category of jurisdictional questions.

Starting at the beginning, Dunsmuir defined a true question of jurisdiction as one that concerned the decision-maker’s authority to make the inquiry in the first place [59]. This is, to be clear, is a very narrow sort of jurisdiction that can be distinguished from a pre-CUPE notion of jurisdiction. Under pre-CUPE law, every decision of an administrative decision-maker that runs afoul of its statutory boundaries could be considered as beyond its jurisdiction. Dunsmuir rejected this broad notion of jurisdiction.

But the Court has struggled with this conceptually difficult category. In subsequent cases, it has rolled back its application. In Halifax, it did away with the notion of “preliminary” or “entry” jurisdictional questions. In Alberta Teachers, a majority of the Court remarked that the category served little purpose. In CHRC, it reaffirmed the idea that a category of jurisdictional questions is unhelpful. Some spirited dissenters argue that the category is necessary, as Bell argues, to ensure that administrative decision-makers stay within their lawful boundaries (see also dissents in Guerin and CHRC).

I can understand the worry of the Court’s dissenters and Bell about the need to keep the administrative state in check. The real question is if meaningful checks and balances can be applied to a decision-maker by a judicial review court in absence of this category. To my mind, the answer is yes—but not under the current presumption of reasonableness, nor the extended version sought by the government in this litigation.

How is this so? In CHRC, the majority cited the City of Arlington case at the Supreme Court of the United States, per Scalia J. In that decision, a majority of the United States’ apex court rejected the idea that jurisdictional questions deserve a special, more intensive review than other questions of law. At the root of the argument for the category of jurisdictional questions, Scalia J reasons, is a misapprehension of the notion of “jurisdiction” in administrative law. For example, in Canada, s.96 courts have “inherent jurisdiction” that is constitutionally significant. This power to hear and decide cases is fundamentally different from the idea of administrative law jurisdiction—the jurisdiction of s.96 courts is constitutionally entrenched, whereas the jurisdiction of administrative decision-makers is defined by their statutes. This fundamental concept was described by the Court in Ocean Port, at para 23, with respect to independence. Constitutional guarantees of independence do not transfer over to an administrative decision-maker, even if they are requirements in the context of superior courts. While we would jealously guard constitutional independence, independence in the administrative context is completely different—it can be traded away.

The same is true of “jurisdiction.” In administrative law, the idea of “jurisdiction” is purely statutory. The power of a tribunal to hear and decide cases is circumscribed by statute, unlike in the s.96 context; so are the remedies that the decision-maker can grant, and whether a particular claimant can even have standing to challenge a particular decision. Whether the tribunal can act at all on a particular matter is a matter of statute. At the most extreme end, whether we have an administrative state to even review is a matter of statute. In a sense, everything and nothing is jurisdictional (Nolan, at para 33) because a decision-maker has no independent reserve of powers on which to rely outside the statute.

If one supports the idea that the level of deference owed to a decision-maker is a function of statute (which the Supreme Court does), then there is no reason to apply a different standard of review over questions going to the tribunal’s power to hear and decide cases, as opposed to its power, say, to grant a certain remedy. If a tribunal hears a case it is not statutorily empowered to hear, it is as much an affront to legislative supremacy and the rule of law as if the tribunal granted non-pecuniary damages when its enabling statute gave it no authority to do so. Both are instances in which the decision-maker has assumed power it has not been specifically assigned—and at heart, this is Bell’s fundamental concern with the CRTC’s action here. Nothing turns on the label of “jurisdiction.”

While the Court’s invocation of City of Arlington in CHRC supports the government, the Court doesn’t cite City of Arlington for its other, parallel proposition; that it is the job of courts to intensively police the boundaries of the administrative state, no matter the standard of review. For Scalia J, every case turns on the vigorous enforcement of statutory boundaries, not the artificial imposition of a particular category. And this is where Bell’s submissions are preferable to the government’s.  Under the government’s formulation of deference without an investigation of statutory signals, it is possible that a decision-maker could have (essentially) the last word on its statutory boundaries. This is not only problematic when we speak of the decision-maker’s power to hear and decide cases; it is a problem in every permutation of decision-making that could abridge the enabling statute. A judicial review court must review, and in our system of laws, this means determining whether there is any daylight between potentially correct interpretations of statutory language and what the decision-maker did in a particular case.

This case provides an example of how this could work in practice. In any given case, there should be two inquiries: (1) is the decision barred by the text, context, and purpose of the statute? (2) is the process of reasoning sound with respect to these principles of statutory interpretation?

On the first question, whether the term “programming services” can refer to the Super Bowl is a question of law. That means that a court reviews the text, context, and purpose of the statute—and the “open-textured” language therein—to determine the level of deference owed and whether the substantive result is legal. Here, the text is undefined in the statute, and is reasonably open-textured, meaning it could support more than one option. Sometimes, the tools of statutory interpretation require this result—there may be more than one answer. The context supports the CRTC’s interpretation and the breadth of options; the definition of programming services in the Sim Sub Regulations supports the CRTC’s decision. While I am alive to the concern that the Cabinet may have the power under s.26(2) to specify particular programs, that power seems to be of a different nature—based on the “urgency” of the program specified.  And even though a statutory right of appeal is present in the legislative context, that does not change the legality of the CRTC’s reasoning on the specific interpretive difficulty. Finally, the CRTC’s decision does not run counter to any of the Broadcasting Act’s purposes.

If I had my druthers, this is how we would deal with questions of law. There would be no presumption of “reasonableness.” Any deference is inherent in the language, the context, and the purpose of the statute. Here, the CRTC’s decision is not reasonable, or correct, but legal—it is supported by the tools of statutory interpretation and its process of reasoning is adequate (this point was not central). Nothing more or less.

Jurisdictional metaphysics, while interesting, is the province of lawyers. Bell/NFL provides an opportunity for the Court to get out of the game.

The Supreme Court’s Hubris in Mikisew Cree Nation v Canada

In Mikisew Cree Nation, the Supreme Court dealt with a novel argument: does the duty to consult [DTC] attach to legislative action? The Court, rightly, answered no, holding unanimously that the Federal Court had no jurisdiction under the Federal Courts Act over a judicial review brought against Parliament’s law-making power. But the Court split into four sets of reasons on the substantive matter of whether the DTC applies to legislative action. While rejecting the challenge in this case, Karakatsanis J in the lead opinion left the door open to these sorts of challenges in the future. For the reasons I’ll explain below, I think this is a profoundly unprincipled way of reasoning about the issue—first, because it is an attempt to expand judicial power in violation of the separation of powers, and second, because it undermines the national certainty the Supreme Court is designed to provide.

The facts of the case are simple. In 2012, two omnibus bills affecting environmental protections were introduced and passed in Parliament, receiving Royal Assent. The Mikisew, with proven Aboriginal rights under Treaty 8, alleged that the Crown had the DTC them on these legislative changes to the environmental protection regime—arguing that it affected their constitutionally-protected rights. The Federal Court agreed with the Mikisew, holding that they were entitled to notice of the parts of the bills that would affect their interest, as well as an opportunity to make submissions. The Federal Court of Appeal reversed, concluding that the Federal Court had no jurisdiction over the matter.

The first opinion in the Supreme Court was written by Karakatsanis J. On the issue of jurisdiction, Karakatsanis J held that the Federal Courts Act only contemplates judicial review of Crown actors (defined as Her Majesty in right of Canada in s.2(1) of the Federal Courts Act) or federal boards, commissions, or other tribunals. On the first count, Karakatsanis J concluded that Her Majesty in right of Canada refers only to Crown actors in their executive, rather than legislative, capacity [15-16]. As well, the Crown is not a “board, commission, or other tribunal” as defined in ss. 2(1) and 2(2) of the Federal Courts Act.

This is enough to dispose of the case. But Karakatsanis J went on to address the merits, concluding that the DTC, which applies to “Crown conduct,” can only apply to executive action—not the actions of Ministers introducing legislation (acting in their legislative capacity). While Karakatsanis J acknowledged the “overlap” between executive and legislative functions in Westminster systems, here what was challenged was a direct exercise of legislative power under the Part IV of the Constitution Act, 1867 [33]. This challenge, to her mind, implicated the separation of powers, parliamentary sovereignty, and parliamentary privilege [35-37]. But Karakatsanis J did not close the door to the challengers completely. She first noted that “the Crown’s honour may well require judicial intervention where legislative may adversely affect—but does not necessarily infringe—Aboriginal or treaty rights” [3]. She then concluded her reasons by saying that “other protections may well be recognized in future cases” [52].

Abella J, concurring on the jurisdiction point, nonetheless wrote separately to say that the Court’s aboriginal law jurisprudence, specifically pertaining to the honour of the Crown, compelled a result that the DTC applied to Parliament. To her mind there was no “doctrinal or conceptual justification which would preclude a [DTC] in the legislative context” [81]. The “formal label applied to the type of action that the government takes…”, to Abella J, has no impact on the sanctity of rights protected in s.35 of the Constitution Act, 1982—whether that action is legislative or executive. Abella J would introduce a requirement that legislatures consider whether their chosen legislative process affecting Aboriginal rights “…accords with the special relationship between the Crown and Indigenous peoples of Canada” [93].

Brown J also wrote separately, while concurring on the jurisdictional point, to attack Karakatsanis J’s mixed message on the DTC in a legislative context. To him, Karakatsanis J’s reluctance to close the door completely on the issue would “throw this area of the law into significant uncertainty” [104]. To Brown J, “…the entire law-making process—from initial policy development to and including royal assent—is an exercise of legislative power which is immune from judicial interference” [117]. This is because, while the separation of powers in Canada is not rigid, this does not mean that the roles of the legislative and executive branches are “indistinguishable for the purposes of judicial review” [119]. The history of parliamentary sovereignty—for example, the hard-fought adoption of the Bill of Rights of 1688—compelled the conclusion that “…parliamentary and judicial functions have been clearly separated from Crown control” [128]. And so, Karakatsanis J’s opinion was “searching for a problem to solve (while at the same time declining to solve it)” [135]. This situation would invite courts to, potentially in the future, take a greater supervisory role over the legislative process in a way that is at odds with the separation of powers [135, 142].

Finally, Rowe J also wrote separately, outlining mainly the practical problems with an approach invited by Karakatsanis J. Specifically, what types of legislation would trigger the DTC? Who would need to be consulted? And at what stage in the legislative process would consultation take place? [165].

***

There is much in this decision worth noting, but I want to focus on Karakatsanis J’s problematic reasons and their implications for the separation of powers and the Supreme Court’s general method of deciding cases.

Each of the opinions decided the case on the question of jurisdiction. That is, the Federal Court had no judicial review jurisdiction over the decision of a legislature—not a Crown actor per se nor a federal “board, commission, or other tribunal.” This should have decisive, and Karakatsanis J should have gone only so far as to explain that finding—particularly for the purposes, for example, of preventing forum-shopping whereby a new claimant could bring relief against the Crown in a provincial superior court and make the same arguments (s.17 of the Federal Courts Act contemplates a system of concurrency where claims can be brought against the Crown in provincial or federal court so long as statute does not say otherwise). Obviously, the jurisdictional finding in this case dovetails with a finding that legislation is not “Crown conduct.”

In consideration of this, Karakatsanis J should have ended her comments at the finding that the court had no jurisdiction because the enactment of legislation is not “Crown conduct.” For her to go further and leave the door open to future legislative challenges based on the honour of the Crown–which also undergirds the DTC– is severely flawed for two reasons: (1) it is not prescribed by the structure of the Constitution, nor would it be a good policy idea and (2) it introduces uncertainty.

Brown J is right to point out the contradictory nature of Karakatsanis J’s opinion. On one hand, she writes that parliamentary sovereignty, the separation of powers, and parliamentary privilege preclude the challengers’ preferred outcome. This is all correct for the reasons outlined by Brown J and Rowe J. But then, in service to unknown goals, she decides that these principles can be violated just a bit—that in a future case, they could be compromised to permit the sort of challenges sought by the claimants here where rights are adversely affected by “the Crown” in enacting legislation even when the legislation itself is constitutional (see Karakatsanis J’s reasons at paras 3, 25, 44 and 52). This means, to Karakatsanis J, that the separation of powers/parliamentary sovereignty are negotiable in a manner uncontemplated by the Constitution. Her guiding light seems to be the hobby-horse of changing circumstances; some future time when the separation of powers and parliamentary sovereignty will give way to allow these sorts of challenges.

Query why these principles preclude challenges based on a failure to abide by the DTC now, while in the future, they could allow challenges based on an “adverse effect” on Aboriginal rights. The same principles apply. Under the current doctrine, in order for a DTC violation to occur, asserted Aboriginal rights must be “adversely affected” (Rio Tinto, at para 31).  But Karakatsanis J now purports to say that a DTC violation and adverse effect are two different things–and that the principles of parliamentary sovereignty and the separation of powers could allow an independent claim based on the latter in the future. The honour of the Crown is not a free-standing right to challenge legislation, and most importantly, no matter the legal label, the Crown does not enact legislation. 

Notwithstanding this unprincipled distinction drawn by Karakatsanis J regarding the DTC, it is completely unclear why the constitutional principles relied on by Karakatsanis J would operate to, in the future, allow an “adverse effect” challenge based on the amorphous “honour of the Crown.” While the separation of powers and parliamentary sovereignty are principles that are necessarily variable in our constitutional monarchy, that variation is included in the structure, not as a product of the times. For example, Karakatsanis J herself notes that the Cabinet and the legislature operate in some ways as a piece—this is a basic feature of Westminster government. But as Brown J noted, the separation of powers does not expand and contract to permit something tomorrow that isn’t allowed today; in this case, a constitutional challenge that is fundamentally unknown to the legal system. Karakatsanis J frames the requirements of the separation of powers and legislative sovereignty in language that calls to mind a standard (see Brown J’s reasons at para 103). But these principles are rules that bind the actors in the constitutional system. They are only open to negotiation to the extent the Constitution prescribes that negotiation.

The target for Karakatsanis J—and more honestly, Abella J—seems to be the sphere of authority granted by the Constitution Act, 1867 to the legislature. Karakatsanis J seems to want to, slowly but surely, increase judicial oversight over that sphere and erode what the Constitution expressly contemplates. This is wrong simply because it is not prescribed by any constitutional text or principle. While the honour of the Crown is a constitutional principle, it is unclear why that principle is ill-served as applied to legislation by the existing Sparrow justification framework. In other words, why does the honour of the Crown compel the requirement of some new cause of action in violation of the very same principles relied on by Karakatsanis J?

The beneficiary of such a duty would not be Aboriginal peoples, but the judiciary. Its existence would expand judicial power beyond deciding cases towards ongoing supervision of the legislative process. This seems to be a legal fact wholly lost on the Supreme Court. It seeks to enlarge its power and process beyond its constating statue (the Supreme Court is simply a statutory court, no matter the pains it takes to say otherwise) and beyond the constitutional division and separation of powers. Judicial oversight of legislative acts could create distorted inefficiencies in our system of government that achieve no ends—in this case, I have doubts it would achieve the ends of reconciliation sought by the Court.

For some, this would be enough to counsel against the idea. But Karakatsanis J and Abella J seem to believe that this is required as a matter of policy. It seems, to them, that courts are able to vindicate the rights of Aboriginal peoples by monitoring the legislative process, and in fact, should in order to promote “reconciliation.” Even on this count, they fail. First, reconciliation would be an admirable goal if anyone, especially the Supreme Court, could adequately define what it means. But at any rate, the Supreme Court itself has recognized that its august halls are not suited to the promotion of Aboriginal rights (Clyde River, at para 24—an opinion jointly penned by Karakatsanis J). And this seems just logical. Why are nine patrician judges any better able to define reconciliation? Why should Aboriginal peoples have to spend years and thousands of dollars trying to define to these same nine judges what reconciliation is? This would be enough to question the wisdom of an approach advocated by Karakatsanis J and Abella J, but of course, there are also the practical concerns raised by Rowe J.

A final broader point about the Supreme Court’s method of deciding cases. Part of the reason for the Supreme Court’s existence is its ability to settle law. In fact, the Supreme Court was founded under s.101 of the Constitution Act, 1867 “for the better Administration of the Laws of Canada.” It does nothing of the kind when it leaves open the door just a crack to an argument that it otherwise rebuffed. This seems to be a repeat habit for the Court. In Gosselin, the Court did the same thing regarding positive rights under s.7 of the Charter. In Wilson, Justice Abella wrote separately to argue for a new standard of review framework in absence of arguments on that front, and despite acknowledging that a future case would have to deal with the issue. And for now, the separation of powers and legislative sovereignty preclude DTC-like legislative challenges—but not forever.

This method of deciding cases wholly undermines certainty. As Brown J notes, it invites enterprising litigants and judges to argue that this case—their case—is the one that was contemplated by the Court or a judge of the Court in Gosselin, or Wilson, or Mikisew. Courts should decide cases. If they seek to depart from precedent in the future, they should be able to do, according to generally recognized and principled criteria. But the Court shouldn’t write its own precedents with the express understanding that they will be overturned.

In a way, all of this expresses the Supreme Court’s hubris. It’s hard to believe that the Court would want to download onto the lower courts a general duty to supervise legislative action, especially when it would be structurally incompatible with the Constitution, practically difficult, and likely unsuccessful as a way to vindicate Aboriginal rights. What we should seek to avoid is a jurocracy, as Herbert Weschler once put it. But, with the door open to a some sort of DTC in the legislative context, we are well on our way.

Vavilov: Doing the Administrative State’s Dirty Work

Over the next few weeks, I will be taking some time in this space to summarize the submissions in the upcoming Dunsmuir review: the cases of Vavilov and Bell/NFL. Today I will focus on Vavilov, and the proposals offered by both the Appellant (the Government of Canada) and the Respondent (Vavilov) for the standard of review of administrative action. As I’ll explain, on balance, the Respondent’s formulation is most consistent with the fundamental function of judicial review.

I should note at the outset that I am the Vice-President of the Advocates for the Rule of Law group, which is intervening at the Court in the Vavilov and Bell/NFL appeals. My comments below should be read as only my view on the merits of the parties’ submissions.

Facts

In many ways, Vavilov is a perfect case to test the merits of Dunsmuir. It is a case of pure legislative interpretation. Under the Citizenship Act, persons generally born on Canadian soil receive Canadian citizenship (under the principle of jus soli embedded in s.3(1)(a) of the Citizenship Act). There are, however, exceptions contained in s.3(2)(a), (b), and (c) of the Citizenship Act:

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

The Vavilov case turns on s.3(2). Vavilov was born in Canada to Russian parents who were spies for the Russian government. The parents lived in Canada under assumed identities. But for Vavilov, he was always Canadian. He did not have any suspicion that his parents were covert agents.

In 2010, while living in the US with his family, the FBI arrested his parents. This was the first time that Vavilov was made aware of his parents’ identities. Subsequently, the Registrar of Citizenship cancelled Vavilov’s citizenship, on the conclusion that s.3(2) of the Citizenship Act applies. To the Registrar, since Vavilov’s parents were not citizens or lawfully admitted to Canada, and because they were “employees of a foreign government” under s.3(2)(a), Vavilov was not entitled to citizenship.

The Federal Court of Appeal disagreed with the Registrar’s conclusion. On the standard of review, the Court noted that this is a case where the margin of appreciation was exceedingly narrow for the Registrar, for three reasons: (1) the interests of the individual affected were elevated in this case; (2) the Supreme Court had conducted searching review of immigration matters in its recent cases and; (3) the reasons were inadequate.

On the merits, the Court concluded that the words “…employee in Canada of a foreign government” must be read ejusdem generis with the words preceding it. According to the Court, the common theme underpinning the s.3(2)(a) category was the concept of diplomatic privileges and immunities. Section 3(2)(a) was designed to apply only “to those employees who benefit from diplomatic privileges and immunities” [45]. This conclusion was supported by the context of the provision. Sections 3(2) (c), for example, referred to privileges and immunities granted to persons referred to in s.3(2)(a), indicating a legislative intention that persons in s.3(2)(a) are only those with privileges and immunities. International law also supported this conclusion—the Citizenship Act “borrows many of the same phrases that the Vienna Convention on Diplomatic Relations uses in the context of diplomatic immunity” [74]. Under the Vienna Convention, certain employees of a foreign government have immunity, specifically persons connected with the diplomatic mission. Persons not associated with the diplomatic staff are outside of the Convention, and to the extent that Convention is adopted into Canadian law, Vavilov’s parents were therefore outside the Citizenship Act exception to jus soli citizenship [58].

For our purposes, the Federal Court of Appeal’s concerns also extended to the process of reasoning by the Registrar. The Court noted that “[O]n the central statutory interpretation issue before us, the Registrar said nothing” [38]. The Registrar, as is common in administrative law, apparently relied on a report prepared by an analyst. But that report “contains only one brief paragraph on the statutory interpretation issue, and a very limited one at that” [39]. The Court was concerned that the decision was immunized from review, because it could not be sure that the central statutory interpretation issue was even considered.

The Government’s Submissions

With the facts of the case in the backdrop, the Government began its submissions by outlining its proposal for revisions to the standard of review framework set out in Dunsmuir. The government set out its proposal clearly in the first paragraph of its factum:

The standard of review should be deferential, subject only to limited exceptions where the foundational democratic principle and the rule of law make it clear that the courts must have the final word.

The motivation behind this proposal is the mere fact that the legislature granted authority to an administrative body [49]. To the government, delegation=deference.

So, we have a rule (rather than a presumption) of deference for even more matters than Dunsmuir and its progeny prescribed. Notably, no longer do we have the correctness categories of true jurisdictional questions or the category of questions of central importance to the legal system and beyond the expertise of the decision-maker.  This general category of deference applies not only to the result reached by the decision-maker but its process of reasoning. For the government, administrative decision-makers under the ambit of government should not be expected to undertake the type of statutory interpretation analysis that courts undertake [4]. And, the decision-makers should not be expected to make explicit findings on matters of statutory interpretation [60].

The only exceptions to this general rule of deference are constitutional questions (where a law is challenged before a decision-maker on constitutional grounds) and on issues of procedural fairness.

On the merits, the government argues that there was a cogent basis for the Registrar’s decision. The government highlighted that in previous versions of the Citizenship Act, there was a requirement embedded in the citizenship exception that representatives or employees of foreign governments have official accreditation, or any connection to a diplomatic mission [84]. That requirement no longer exists, and the Registrar pointed this out, concluding that the wording in s.3(2)(a) was meant to encompass additional individuals beyond just those with immunities and privileges. Since the decision-maker canvassed this legislative change, some case law bearing on the problem, and other factors, the government argues that this is a sufficient basis to uphold the legality of the decision on its deferential standard.

It appears, for the government, that this alone is enough on its prescribed intensity of review. The government argues that if there are “additional relevant interpretive factors which the administrative decision-maker did not consider, a court may examine such factors in order to discover whether the administrative decision-maker’s interpretation can be sustained” [89]. These “additional relevant interpretive factors” are the text, context, and purpose of the statute that the Registrar was tasked with interpreting. On an interpretation of these factors, the government argues that the decision is legal.

Vavilov’s Submissions

The Respondent’s proposed standard of review framework is from a different world than the government’s. He proposes a two-part framework. First, so-called “discretionary decisions” are reviewed for reasonableness. Second, questions of law are reviewed on a correctness standard. On this second prong, the Respondent concedes that the view of the decision-makers on the “purpose and policy of its own statutes will continue to deserve respect” [59]. However, courts will still have to review the administrative decision-makers’ view of its enabling statute, independently.

The Respondent also, instructively, responds to the government’s proposed standard of review framework. He first notes that while deference to administrative decision-makers presumes trust on the part of these decision-makers, “It is worth recalling that some of the most regretted episodes in Canadian history were the work of federal statutory decision-makers exercising delegated authority” [33]. And, the Respondent also notes that the government’s submission was basically an attempt to insulate its statutory decision-makers from review. Under the government’s formulation, for example, expertise is also always presumed—“no matter how limited the statutory discretion that Parliament gave to the decision-maker or how insubstantial their real expertise” [53]. Particularly on this front, the Respondent notes that the Registrar under cross-examination said that she was “not a lawyer” and therefore did not know the legal “significance” of words in the provision [102].

On the merits, the Respondent argues that the Federal Court of Appeal’s interpretation was right, particularly noting that the Registrar/analyst interpretation did not address the legislative context of s.3(2), particularly s.3(2)(c).

Analysis

In my view, the Respondent accurately describes the implications of the government’s view. Particularly, the Respondent’s proposal is better than the government’s on a number of fronts if we view the matter from the basis of the fundamental function of judicial review—quite aside from any constitutional mandate for superior courts to police the boundaries of the administrative state.

First, most of Canadian administrative law doctrine is premised around the idea that the administrative state is a collection of virtuous experts creating good public policy and fairly adjudicating disputes. But the Respondent points out that this is far from the case. In fact, the state’s statutory creations have been perhaps the greatest purveyor of discriminatory treatment in the history of Canadian society. Far from being “flexible and expert,” (Edmonton East, at para 22) sometimes administrative decision-makers have been unfair, discriminatory, and even racist: particularly, the examples cited by the Respondent of the deportation of Japanese Canadians and the experience of Aboriginal peoples with residential schools are apposite. This is not to say that government agencies today have designs to discrimination. But it does mean that government agencies can make irrational decisions—particularly ones that are inconsistent with enabling law or the facts and record before it.

So, contrary to current scripture, it is not unreasonable that some would question the lawfulness of state action at the outset. And this is where the idea of a going-in rule of deference loses its force. The government wishes to create a system where state action is presumably lawful; where the mere fact of delegation speaks to the degree of deference owed by courts to a decision-maker. But on simple logical terms, a decision of a government to delegate to a satellite decision-maker says nothing about the degree of deference owed to that decision-maker by courts. Governments delegate to administrative decision-makers for a whole host of reasons: (1) the legislature does not want to spend the time setting up a complex regulatory scheme ex ante; (2) the legislature doesn’t care about the intricacies of the particular issue at hand, and wants someone else to deal with them; (3) the government legitimately feels that it does not have expertise in a particular matter; (4) the government does not want to make politically-charged decisions and wants to foist the political heat on someone else. More reasons abound. But the very fact of delegation says nothing about how courts should view that delegation, given that the reasons motivating delegation are so variable.

Quite the opposite from the traditional story, the potential for legislatures to shirk responsibility for important matters may invite scrutiny by courts. Delegation creates a form of distance between legislatures and decision-makers that makes it difficult for courts to conduct review. The idea is that a law passed by the legislature sets a standard—and decision-makers, relying on their own practices or ideas of what is right, and the informational asymmetry that they enjoy, can “drift” from the text of the law by which they are bound. This principal-agent problem invites, rather than counsels against, the scrutiny of courts.

On this front, the government’s standard of review proposal makes it more difficult for courts to determine whether a decision-maker is acting lawfully. Perhaps the most pernicious of the proposals is the idea that courts should presume deference on implied interpretations of law. One of the most common rationales for deference, put forward by the government above, is the idea that Parliament’s decision to vest power in an administrative decision-maker in the first place is legally significant. Even if we accept this logically deficient rationale, deferring to “implied” interpretations of law raises the prospect that the court is deferring to nothing. This is because it will be difficult for courts to determine whether the interpretive difficulty faced by the decision-maker was even addressed, let alone in a substantive way, if there is only an “implied determination.” Not to mention, of course, that if Parliament delegated to a decision-maker the power to make a decision, we should expect that a decision be made, not merely “implied.”

This is even more so where there are multiple analytical paths to a particular result. It may be easy in some cases for courts to draw a direct line to a particular analytical path from a result—in such cases, it may be easy to say what sort of interpretation is “implied” (putting aside the objection that it is the job of the decision-maker to positively pronounce on the matters it has been entrusted with by the legislature). But in most cases, if it is truly the case (as most argue) that statutes can fairly bear more than one meaning, then the reasoning employed to get to a certain result is quite important on judicial review. Where the decision-maker has multiple options, and has failed to pronounce on its reasoning, the court is left in the unenviable position of having to guess. In all cases, the quality of the reasoning adopted by the decision-maker—whether it addressed the text, context, and purpose of the statute, which cabins its discretion (McLean, at para 38)—is key. For the government to claim that these are mere “additional interpretive factors” is simply incorrect when it is the quality of the reasoning that determines whether a particular interpretation is lawful.

Vavilov shows why the government’s proposal is so flawed on both of these fronts. Even though we always presume expertise by decision-makers, the decision-maker in Vavilov basically admitted that she had no idea about the central interpretive difficulty in the case. She said she did not understand the terms of legal significance. The result she reached evinced this lack of understanding; she failed to take account of the whole of s.3(2) of the Citizenship Act and barely pronounced on the key interpretive difficulties. Yet, the text, context, and purpose of statutes are key to determining the range of reasonable outcomes available to the decision-maker. So, it is not true to say hers was a decision that fell within a range of reasonable outcomes, as Justice Gleason at the Federal Court of Appeal did in dissent. Quite the contrary, her decision was flawed precisely because her reasoning was flawed and wanting. It was unclear whether she took a proper analytical path to her decision. And yet, the government asks courts, on a hope and a prayer, to defer to this sort of reasoning merely because it is implied.

As Justice Stratas said in Bonnybrook, it is not the job of courts on judicial review to impersonate the decision-maker and fill in the gaps in deficient decisions. Yet the government’s proposal asks courts to do just that. Putting aside the constitutional objections to this posture, it fundamentally misconceives what courts are supposed to do on judicial review. Judicial review is designed to ensure decision-makers act rationally and according to law.

Courts cannot be conscripted into service by the administrative state to do its dirty work.

 

 

Anglin: Administrative Lawmaking

How administrators could make law in the dark of night.

In Anglin v Chief Electoral Officer, 2018 ABCA 296, the Alberta Court of Appeal dealt with a hidden issue in administrative law: to what extent are administrative decision-makers required to follow guidelines specifically contemplated by legislation?

In Anglin, the Chief Electoral Officer of Alberta imposed a $250 fine for breaching the Election Act. Anglin had typographical problems: “the sponsorship information on his election signs was printed in a font size smaller than that required by the Guidelines established under the Act, and was not sufficiently legible.” Anglin argued that the guidelines established by the Chief Electoral Officer do not constitute law and cannot form part of the governing statute, and as such a breach of the guidelines is not a contravention. To Anglin, there was no legal authority to impose an administrative penalty for breach of the Act [3].

The legislative context was dispositive to the Court. Under s.134 of the Election Act, candidates must ensure that ads comply with certain requirements “…in accordance with the guidelines of the Chief Electoral Officer” (s.134(2)). Under s. 134(3), the Chief Electoral Officer is required to “establish guidelines respecting the requirements referred to in (2)” which deals with sponsorship information. The specific guidelines adopted in this case prescribed a legibility requirement along with a minimum font size.

Based on this “clear” language [9], the Court concluded that the statute itself incorporates the Chief Electoral Officer’s guidelines, and that the legislature “has the power to delegate and the guidelines, like other forms of subordinate or delegated legislation are all forms of law.” This delegation, to the Court, “is incidental to legislative sovereignty.”

The Court’s reasoning raises significant problems from a democratic perspective, even though it is likely consistent with governing authority; my problem is with that governing authority itself. The making of guidelines and soft law, taken too far and unrestricted by legislatures or courts, can do an end-run around the democratic channels of adopting law, susceptible as those channels are to citizen input.

We have a few rules, insufficient as they are, to control this risk. For example, a decision-maker cannot bind herself to non-binding guidelines to the exclusion of governing law; this would be a “fettering of discretion” (see Thamotharem, at para 62).  Despite express statutory authority to issue guidelines, those guidelines may not “have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them” (Thamotharem, at para 66). At the same time, for example, guidelines issued by the Human Rights Commission have been held to have the full force of law, even if they are formulated solely by the Commission (see Bell, at para 56).

The image of a spectrum is helpful here. As noted in Thamotharem, we could have guidelines that are issued without any statutory authority whatsoever—these guidelines are still, in the traditional account, useful for guiding the administrator’s decision and providing a foundation for reviewing its legality. At the other end, we could have guidelines that are adopted according to specific delegated authority, and which must be followed as if they were law; the Anglin case is a good example. In the middle, we could have a broad legislative authorization that allows an agency to simply issue guidelines without any indication as to whether they must be followed or not.

From a fundamental democratic perspective, all forms of guidelines issued in any of these ways are trouble for different reasons. If the guidelines in the first case are applied as if they were law, we have a classic fettering problem. If the guidelines in the third case are applied as if they were law, the people subject to the guidelines have no say over binding law to which they are subject. Perhaps one could argue that these democratic issues could be excused because (1) the legislature has the undisputed authority, short of constitutional constraints, to prescribe the level of procedure required for internal agency workings and (2) perhaps this is the price of a more efficient government. But the problem remains.

One might say that the Anglin case, from a democratic perspective, is not problematic at all; after all, here the legislature has said itself what is supposed to happen. But in reality, the situation is more serious. In every case, the legislature has approved the Chief Electoral Commissioner’s making of guidelines, and his power to apply them as if they were law formulated and adopted by the legislature. And from a public administration perspective, this is completely understandable. Why would the legislature want to expend the cost of conducting a deep dive into the font sizes required on a sign? This is, on the traditional account, clearly a matter for “expert” administrators.

But if we view the problem from first principles, the legislature has in effect delegated the actual power of making the law to the Chief Electoral Officer. And if we accept that such guidelines are “hard law,” then we must accept that the law could be passed in the dark of night, because administrative agencies control how and when these guidelines (read: laws) are adopted. The answer that the legislature authorized the delegation puts form before substance. The question is whether the legislature should be able to delegate the power to the Chief Electoral Officer in the first place, given that this law will not be adopted in the ordinary course of the normal legislative process.

The context of font sizes is a bad example for this argument because it is relatively unimportant. But if we allow this form of delegation writ large, extremely broad delegations of law-making authority would be permitted. A statute could simply have one line, saying “The Administrator of [whatever agency] is entitled to make Guidelines which have the force of law.” Because there is no restriction on the power to make laws in substance, these guidelines would bind as if they were law under the current authority.

The US has some experience with this phenomenon, with its nondelegation doctrine. In practice, United States courts rarely interfere with broad delegations. But at least they have a doctrine—that a delegation must be accompanied by an “intelligible principle” to guide agencies. Here, there is no such controlling doctrine.

A restriction on Anglin-type delegations would actually likely attack very few delegations and interfere minimally with good government. The delegation problem does not arise as strongly—(ie) as a strict form of delegation in substance—in a case where the legislature authorizes the agency to make guidelines to structure its discretion. Without knowing for sure, I’d imagine this is a more common form of delegation. But where the legislature simply allows an administrator to make law itself, this seems to be a bridge too far.

 

Sunstein and Vermeule on Fuller: A View from Canada

What would Lon Fuller think about Canada’s standard of review framework?

In a fascinating article, Cass Sunstein and Adrian Vermeule explore the concept of a Fullerian administrative law. Their main argument:

Our largest suggestion is that a Fullerian approach, emphasizing the morality of administrative law, helps to unify a disparate array of judge-made doctrines and perhaps even the field as a whole. We also contend that a Fullerian approach puts contemporary criticisms of the administrative state in their best light and allows the sharpest critics to be their best selves[…]We suggest that most sympathetically understood, the critics are tracking Fuller’s fundamental principles. As we understand these critics, they are seeking to prevent a miscarriage of the legal system by ensuring that the administrative state respects the internal morality of law, at least as an aspirational matter.

The authors posit that doctrines of administrative law—the non-delegation doctrine, the presumption against retroactivity, and the rule that agency rules and decisions should be consistent with each other—can all be understood as expression of Fuller’s principles of morality of law, even if they lack connection to traditional legal sources.

This all seems very intuitive. Some of Fuller’s explanation of what counts as law—for example, a basic convergence between the law as applied and the law on the books—can be clearly applied to administrative agencies that render its own decisions in conflict with its enabling statute. Fuller’s assertion that anything counting as law must be general, promulgated in advance, and understandable evidences a clear preference for strong ex ante rules over ex post standards—and a system of predictable rules is certainly part of most conceptions of the Rule of Law. His admonition that laws should remain constant through time also implicitly disparages administrative adjudication without any external or internal guiding law or policy.

Overall, Fuller’s definition of law as a system of rules to guide action offer important insights about Canadian administrative law. There are parts of Canadian administrative law that can be seen as inconsistent with this fundamental precept. Take the entire standard of review debacle. No matter what one thinks the particular solution is to the Gordian knot, the current state of affairs fails on two of Fuller’s grounds. Most importantly, it provides no guidance to litigants or players in the system. Counsel have to predict by rumour and speculation what standard of review will be selected in a given case—and more importantly, how it will be selected.

Just as serious is the Supreme Court’s tendency to shift the parameters of the debate from case to case. Dunsmuir was decided in 2008. Since then, the following doctrinal changes were introduced by the Court: (1) a presumption of reasonableness review on questions of law was created with a tenuous connection to the original framework set out in Dunsmuir (Alberta Teachers); (2) legislative signals designed to rebut that presumption were accepted (Tervita) and then rejected (Edmonton East, CHRC) as a methodological matter; (3) the Court accepted that an agency can make implied determinations of law (Agraira), taking another case (Alberta Teachers) out of context and adopting a doctrine that stands in tension with Dunsmuir’s admonition that decisions must be “justified, transparent, and intelligible; (4) The Court accepted that “reasonableness takes the colour of the context” (Khosa), but then rejected the idea that reasonableness has many variations, holding that it consists of one standard of review (Wilson), but it is unclear whether that comment overrules Khosa and other cases (for example, Catalyst); (5) It adopted a framework for constitutional review of agency discretion (Doré), then silently rejected it in subsequent cases (Ktunaxa), and lower courts fail to adopt it with consistency; (6) the Court reasoned that courts can supplement the reasons for decisions using the “reasons that could be offered” in cases of deficient agency reasoning (Newfoundland Nurses), then backed off that assertion (Alberta Teachers), only qualifying that reasons cannot be replaced by a decision-maker on judicial review (Delta Airlines). I could go on, but need not.

Incremental development in common law doctrine is necessary and desirable. But what the Supreme Court has done with administrative law is far from incremental. The result is the lack of clear rules as to when particular standards of review are triggered. This creates distortions in the system, with courts intervening when they should not and deferring when they otherwise should not. If this weren’t enough, the Court has failed in a number of cases to adequately explain the shifts in methodology and doctrine. An example of this is the Doré question, where the Court failed to explain its shift in approach in subsequent cases, but another less common example is the tension on the reasons doctrine between Newfoundland Nurses and Alberta Teachers, released a day apart. What the Court has established is a largely ruleless wasteland that Fuller would likely regard with suspicion.

But perhaps the most objectionable part of the Supreme Court’s administrative law doctrine is the Court’s tendency to say one thing and do another. Specifically, take the Court’s tendency to engage in disguised correctness review. Fuller would have abhorred this state of affairs, representing a divergence between the law as applied and the law on the books. The tendency to engage in disguised correctness review leaves open questions as to what the Court is actually doing. Is the Court selecting the standard of review it is forced to by law, but actually applying the standard it thinks should apply? On what basis is it making this selection? One hopes the decision is not made according to freestanding policy views or the Court’s own implicit opinions about particular decision-makers. The point is that we cannot be sure.

As the authors note, Fuller’s principles are not ironclad. Fuller himself recognized that his idea of law can be recognized as a sliding scale, with one end being the minimum morality necessary to constitute law, and on the other hand, an aspirational legal system. How we achieve the balance is fundamentally a matter of tradeoffs. As the authors argue, there is an optimal point in the design between ex ante rules and ex post standards—a point where agencies are sufficiently restricted by ex ante rules with the necessary flexibility and discretion to operate ex post. Fuller’s preference for binding rules imposes a whole host of costs at the outset. For example, for the Supreme Court to construct a standard of review rule entails great cost at the outset, because it will have to design a rule that is properly tailored to the circumstances. Costs may also incur because the rule will either be overbroad or underbroad (take my discussion of the presumption of reasonableness here). A more flexible standard entails costs of its own—but at some point along the line, Fuller’s preference for rules can be sacrificed for other goods, in order to avoid the relevant costs.

But, as I said above, there must be some baseline of rules in a legal system. Administrative prerogative and uncontrolled judicial discretion should be controlled in some way, even in light of the costs of doing so. This really just glosses the surface, but Sunstein and Vermeule are (in my humble view) onto something. From a perspective of strategy, those who are uncomfortable with the administrative state are unlikely to convince true believers that it is unconstitutional writ large, or even that deference is problematic. But individuals from different perspectives can agree that Fuller’s morality principles provide a minimum baseline for the construction of doctrine. We should ask the Court to construct clear rules that can be easily applied; or at least develop more flexible standards that are triggered in clear circumstances.

The Dead Intent of the Framers

The tragedy of Doug Ford looks less like a tragedy after all, with the Court of Appeal for Ontario staying the decision of Justice Belobaba that ruled Ford’s planned council cut unconstitutional. The use of the notwithstanding clause is off the table, for now. But it would be hasty to move on too quickly. How academics and lawyers spoke about the planned use of the notwithstanding clause provides a window into how we justify and critique the use of state power.

For example, some 80 law school faculty across Canada came out against the Ford government’s planned invocation  of s.33 of the Charter of Rights and Freedoms in an open letter. The faculty, relying on a strong-form version of originalism (original intent, long outdated as a form of originalist reasoning), argue that Premier Ford transgressed the intention of the Charter’s framers:

The framers of the Constitution included the notwithstanding clause as a compromise to achieve consensus. But, they firmly believed that the notwithstanding clause would only be used in exceptional circumstances. This has indeed been the case since the Charter’s enactment in 1982.

If the excerpt above seems an insignificant part of the letter, the faculty use the original intent of the (yet undefined framers) to define a political norm that governs the frequency of use of the notwithstanding clause.

In 36 years, the notwithstanding clause has rarely been used. Liberal governments, NDP governments and Conservative governments at the federal and provincial levels have all been extremely reluctant to use the notwithstanding clause. Faced with judicial decisions declaring legislation unconstitutional, governments in Canada have sought alternative ways of bringing their laws into compliance with the Charter. This is precisely what the framers of the Constitution had hoped and predicted. The notwithstanding clause was only to be used in the most exceptional circumstances.

The faculty, to their credit, do not attack the legality of Ford’s planned use of the notwithstanding clause. So long as the form requirements are met, the notwithstanding clause can be invoked. Rather, they seek to define, using framers’ intent, the political boundaries that should govern this extraordinary power.

At first blush, I agree that the invocation of the notwithstanding clause should be subject to political norms and should be critically examined by citizens. There should be a justification of the use of the notwithstanding clause. This is different from the sort of legal restriction on statutory decision-making explained in Roncarelli v Duplessis. In an administrative law sense, state power is subject to the law, and the exercise of powers contemplated by statute are controlled by that statute.  That analogy is ill-fitting for a power unrooted to statute that exists in the text of Constitution itself. Nonetheless, one can meaningfully argue that a political norm of justification should accompany the use of the override. As I’ve said in this space before, Premier Ford has failed on this score.

The interesting part of the faculty letter, though, is not the substantive argument. Rather, it is the analytical footpath. The faculty seek to call up the live hands of Jean Chretien et al who “framed” the Charter to support their point of view. In fact, Chretien, former Ontario Attorney General  Roy McMurtry, and former Saskatchewan Premier Roy Romanow (the individuals who bartered the notwithstanding clause into the Charter through the famous Kitchen Accord) have come out to say that  the notwithstanding clause should only be used “in exceptional situations, and only as a last resort.”

It is surprising that a fairly large contingent of the Canada law professoriate endorse the proposition that the intent of the framers should mean anything in this case. Others have written about the problems with original intent originalism—determining the class of relevant “framers,” determining how to mediate between different intents among these “framers,” determining the level of generality at which intent is expressed, and the list goes on. These practical problems underline a broader theoretical problem–why, in a normative sense, should the views of Jean Chretien et al bind us today? How can we be assured that these “framers” are speaking on behalf of the meaning adopted by Parliament and the legislatures?

Even if we should accept that this intent leads to the acceptance of the relevant political norms, there is no evidence offered in the letter that other potential “framers” of the Charter shared the view of Chretien, Romanow, and McMurtry as to the use of the notwithstanding clause. For example, Brian Peckford (former Premier of Newfoundland who apparently presented the proposal of the provinces to Prime Minister Trudeau), wrote a piece arguing that Premier Ford’s use of the notwithstanding clause was perfectly appropriate. He made no mention of any understanding or political commitment on the part of any other Premiers or parties as to the expected use of the notwithstanding clause. In this sense, the framers’ intent means nothing; it is dead in terms of helping to interpret even the political norms surrounding the use of the notwithstanding clause.

This is a dangerous form of originalist reasoning adopted by the faculty, and should be used sparingly with appropriate caution. It is open to abuse. Lawrence Solum argues that theories of originalism have two features (1) fixation and (2) constraint. That is, the meaning of a constitutional provision is fixed at the time of framing; and in terms of original meaning originalism, the original public meaning of the constitutional text constrains the constitutional practice of courts. To my mind, the sort of originalism relied on by the faculty fails to both fixate and constrain constitutional meaning, precisely because there is at least an open question as to the expected legal and political practice of the notwithstanding clause. There is even a question as to who should fit into the relevant class of framers, and who should not. In this sense, the form of originalist reasoning invited by the faculty is not, in substance, different from living tree constitutionalism—unfixed and unconstrained. It is an invitation to dress up the desired political outcomes of its proponents with the imprimatur of a legal doctrine.

Putting aside the faculty focus on political norms, if framers’ intent is accepted as an appropriate doctrinal model, the debate in courts will focus on which particular framers support one side of a case or another. Will some lawyers introduce affidavit evidence from Jean Chretien? Another side, Brian Peckford? Rather than focusing on the meaning of words in their context—their original meaning—framers’ intent will incentivize lawyers to spin historical tales, told through the intent of those whose view may not actually represent the state of the law.

That said, we shouldn’t bristle at the opening provided by the faculty. There is, perhaps for the first time, a willingness to accept forms of originalism. If the faculty intended to fix the constitutional political practice of the notwithstanding clause at the time of framing, that intent is better vindicated by original meaning (to the extent it can be discerned) precisely because it fixes and constrains. Of course, a rational person would rather bet on a system of rules that prevents political hijacking of legal interpretation, because political power can be wielded in any direction. A safer gamble—a better methodology—is a form of doctrine less amenable to political reasoning. Given the faculty acceptance of some model along these lines, I look forward to seeing how a focus on fixation and constraint can influence other areas of the Charter.

Toronto v Ontario: A Remedy Seeking a Right

Constitutional politics and the notwithstanding clause

Yesterday, Justice Belobaba of the Ontario Superior Court released his decision on the Ford government’s plan (“Bill 5”) to cut Toronto City Council in half, deciding that it infringed the s.2(b) Charter right to freedom of expression. In response, Ford announced his government would reconvene the legislature and pass a bill to invoke the so-called “notwithstanding” clause of the Charter, under which Charter rights can be “overridden” (though this word isn’t used in the text) for a period of five years.

It was an eventful day all around, and there were many comments from people more qualified than I to speak on freedom of expression, the notwithstanding clause, and the interaction between the two. I will, however, comment on two points in this sordid saga: (1) the conflation of s.2(b) and s.3 of the Charter in Justice Belobaba’s decision; (2) the notwithstanding clause

Freedom of Expression in the Electoral Context

First, to the decision. Justice Belobaba began the analysis by properly noting that the question was “not whether Bill 5 is unfair. The question is whether the enactment is unconstitutional” [7]. But just as quickly, Justice Belobaba ultimately concluded that the province had “clearly crossed the line” [9] because (1) Bill 5 was enacted in the middle of an election campaign and (2) it doubled the population size of wards in the city, breaching a voter’s right to “effective representation” [20]. On the timing issue, Justice Belobaba concluded that the freedom of expression right was impacted because of “confusion” and “uncertainty” owing to Bill 5 [30]. The ultimate conclusion was that “…the candidate’s ability to effectively communicate his or her political message to the relevant voters” was impacted by Bill 5.

While I won’t dwell on the point, this seems a stretch. Section 2(b) is broad and the Supreme Court rightly affirms the particular importance of political speech (see Libman, at para 31). But it doesn’t guarantee a right to expression in perfect circumstances—nor does it proscribe government conduct that could make political speech “ineffective.” The fundamental question under s.2 is whether a government law “limits” speech. There is a distinction between effectiveness of speech and freedom of speech; the latter is a necessary condition, the former is not. If courts begin to delve into the messy business of striking down government laws that merely affect the effectiveness of speech, the Charter could end up restricting the marketplace of ideas in ways that are typically repugnant to a liberal order. Practically, it also means that in some cases the court will need to determine whether a law renders speech “ineffective,” which would require some fairly metaphysical evidentiary standards, not to mention a voyage into the content of the speech. It is even more difficult to prove an infringement in cases where, as here, the purported restriction speaks only to the environment (confusion and uncertainty) in which candidates campaign, not to legal restrictions on the political campaigns and voters themselves, such as in the typical s.2(b) electoral cases: BC FIPA, Thomson Newspapers, Libman.

I’m more concerned with the second finding in the decision—the essential application of s.3 of the Charter concerning voting rights in a case where it does not apply. Section 3 textually reads that it applies to voting for federal and provincial representatives. Under the purposive approach to constitutional interpretation, the purpose of s.3 is to guarantee “effective representation” (Reference Re Prov Electoral Boundaries) in these fora. Mathematical parity is not the test, but what constitutes effective representation appears to be a fraught question. But in this case, against the backdrop of one affidavit, Justice Belobaba concluded that the expressive right to vote for effective representation had been breached because the ward population size had been doubled [51, 60]. This is fundamentally the language of s.3, not s.2(b). Justice Belobaba, to his credit, is alive to this concern. He ultimately concludes that voting is a form of expression rendered ineffective by Bill 5, and whether or not it is rooted in s.3, it can be transposed to the s.2(b) context [43 et seq]. But here again we get into the business of effectiveness—especially what constitutes an effective vote. The language is striking, calling to mind a category mistake; should we be in the business of assigning value to votes based on resulting effectiveness?

Regardless, s.2(b) and s.3 are distinct Charter guarantees. They have distinct purposes, with “effective representation” being the purpose of s.3. While these purposes may sometimes overlap, it seems to me that the purposive approach to Charter interpretation has to insist on some analytical distinction between the rights to be of any use. If rights are to be interpreted in their “historic, political, and philosophic” context, surely that purposive context changes with the right in question. This has particular implications for the relationship between Charter rights and s.1 of the Charter. As Peter Hogg notes in his important article, how we construe Charter rights at the infringement stage has implications for the s.1 stage. If a right is construed broadly at the first stage (the purpose is construed broadly), then we leave s.1 for more work to do. Similarly, a right that is characterized with a narrow purpose may leave less work for s.1. This is a rough-and-ready purposive analysis, but it means that regularly mixing and matching Charter rights can have consequences for the evidence required to prove a Charter breach, the evidence required to sustain one, and the intensity of review that courts apply to particular infringements.

There is also the obvious problem here of essentially applying a Charter guarantee where it doesn’t apply to municipalities (despite Justice Belobaba’s comments regarding Haig, I think he fundamentally imported s.3). I call this “constitutional substitution.” It means that a court, seeking to vindicate a result that seems unfair or unjust in the abstract, massages a chosen constitutional right that will best achieve that result. It is perhaps an uncommon phenomenon, but it is present in this decision—s.3 does not apply, s.2(b) does. While I’m alive to the idea that the s.2(b) electoral cases could implicate s.3, those cases dealt with different legislative schemes that, again, directly impacted/limited the ability of participants in the political system to participate (ie) through financial restrictions.

I don’t mean to advocate for a “watertight compartments” approach to Charter rights, in part because I think the reality of constitutional facts makes this difficult. That said, as Mike Pal very aptly noted, we have no real doctrinal means to deal with overlap of constitutional rights as opposed to the reconciliation of rights. We should start from the premise that the Charter lists distinct guarantees that the Supreme Court has insisted should be interpreted with distinct purposes. From there, we deal with the hard cases that arise where rights overlap, such as in the case of s.2(b) and s.3. And this isn’t the only area of the Constitution where rights can overlap—the recent Ktunaxa ruling demonstrates a contested area between the freedom of religion guarantee and Aboriginal rights under s.35. While each overlap may have to be resolved differently, some unified principles would be helpful.

Brief Comments on the Notwithstanding Clause

I can’t do much to add to the already booming discussion on the notwithstanding clause. I for one accept its legitimacy as part of the constitutional order, in part because of the evidence that it formed a part of the pact leading to the Charter, adopted itself by our elected representatives and because one part of the Constitution cannot be breached by another. The notwithstanding clause is a power that can be used by elected officials assuming they follow the form requirements set out in the Ford case (no relation).

I will venture two points. First, simply because the notwithstanding clause is legitimate itself doesn’t mean that it can’t be misused illegitimately. The exercise of state power—even a constitutionally entrenched power—does not operate in a vacuum. We should expect a duty of good-faith in a constitutional democracy to attach to the use of such powers; put differently, and without entering the foray into constitutional conventions, we should expect elected officials to abide by constitutional norms as they are defined.

Part of this norm, given the atrophied s.33, should be a public justification for the use of the extraordinary override. The populist justification put forward by Premier Ford is lacking for this reason. No one says that the seminal Ford case compels Premier Ford to do anything but pass a properly formed bill. But in a deliberative, representative democracy, we should expect leaders to justify their use of extraordinary state power, especially as it applies to the override of constitutional rights, themselves adopted by legislative actors. As James Madison wrote in the Federalist No. 10, we expect in a representative democracy that our leaders will not appeal to factions (as in a direct democracy) but to the highest ideals of the legal order.

A second point about the notwithstanding clause, especially on constitutional substitution. The effect of Justice Belobaba’s ruling is to open the door to the use of the notwithstanding clause on s.3 of the Charter, the essence of his legal findings. Yet this is doubly prohibited by the Constitution. As I say above, s.3 only applies to Parliament and the legislatures and at any rate cannot be overridden by the notwithstanding clause. Though Justice Belobaba framed his findings under s.2(b), his ultimate conclusion was framed in the right to effective representation that would be infringed by having councilors who cannot respond to voter complaints [57]. He was most concerned with being able “to cast a vote that can result in meaningful and effective representation” [59]. This is in substance a finding under s.3. Yet by framing the finding under s.2(b), Justice Belobaba opens the door both to the application of s.3 to municipalities and to the use of the notwithstanding clause against, in essence, a s.3 finding. If we accept that the right to effective representation is infringed, we should worry about the notwithstanding clause’s use here.

Vote ‘em out

I offer these comments tentatively, largely because we are in unchartered waters. At the same time, two final points. First, I disagree with those who say this is a constitutional crisis. Constitutions are meant to be durable, to withstand pressure by those seeking to break constitutional norms, or even the inadvertent pressure of complacence. In some ways (putting aside the constitutional substitution concern) this is a textbook case of the court issuing a ruling and the government responding.

Second, I think the best way to understand Justice Belobaba’s ruling is to conclude that he saw a wrong, fashioned a remedy, and hooked it to a right. On most accounts, though the duty of procedural fairness does not attach to acts of the legislature, there was something unfair about the way in which Bill 5 was introduced and the context of the Premier’s contentious relationship with Toronto Council. Most likely this was an arbitrary decision by the Premier. In the face of this unfairness, Justice Belobaba found a way to get around the problem of s.3 by applying s.2(b) and by stretching the meaning of s.2(b) itself. I do not see this as a proper response to legislative unfairness. The best responses are for PC MPPs to oust Ford, or for the voters to do so.

10 Things I Dislike About Administrative Law

A perspective from a skeptic

Inspired by Leonid’s post on the Constitution, I’ve decided to list the 10 things I dislike about administrative law in Canada in advance of the planned revisit of Dunsmuir.

One’s personal list of problems with administrative law will inevitably reflect one’s views of what administrative law is and should be, and indeed, what law is and should be. Reasonable people will disagree on this, but perhaps we could agree on two fundamental starting points (even if we disagree on their interaction). First is the idea that absent constitutional objection, legislative delegation to administrative decision-makers should be respected, and courts should give effect to legislative language using the ordinary tools of statutory interpretation (set out in cases like Rizzo, Canada Trustco). Second is the Rule of Law; courts must survey the statutory boundaries of inferior tribunals to determine (1) the level of deference owed and (2) whether the decision is legal. On this account, administrative law can be understood as a form of control over the diffused form of decision-making the administrative state has wrought.

As I hope to show (quite tentatively, I might add), the Supreme Court has moved away from these first principles, often at the expense of the Rule of Law. The main point of the Supreme Court’s administrative law doctrine is an acceptance of deference to the “unrestricted” power of administrative decision-makers (see West Fraser, at para 11). By limiting the circumstances in which courts can review the propriety of the administrative state, the Court has “read in” a doctrine of deference that may not be prescribed by the enabling statute or the role of courts to enforce constitutional precepts as “guardians of the Constitution” (Hunter v Southam). The Court has constructed its own administrative law rules to operationalize its vision of deference.

  1. Selecting the standard of review

The standard of review is the obsession of Canadian administrative lawyers. The Supreme Court has fed this obsession by creating an overly complex standard of review analysis that is tenuously connected to the overall principles of the Rule of Law and legislative supremacy. The sine qua non of the analysis is a presumption of reasonableness on issues of home statute interpretation that is virtually irrebuttable (see Edmonton East, at para 22). This presumption is the imposition of judicial preference on a statute that may not agree with that preference, contrary to the hierarchy of laws. It is profoundly inconsistent with the idea that courts must enforce the law as they find it (see Justice Brown’s comments in CHRC on this front). At the same time, the Court has failed to explain or justify the relationship between the presumption, the categories inviting correctness review, and other legislative factors. Lower courts understandably struggle with this superstructure that might work in Supreme Court chambers but do not work in the context of judicial review.

I prefer a doctrine that puts the onus to defer on legislatures. Otherwise, the default position (especially on questions of law) should be de novo review by courts–consistent with their constitutionally defined supervisory jurisdiction (see point 7). If legislatures want to constrain decision-makers, they will prescribe—for example—a “statutory recipe” that the decision-maker must follow (Farwaha, at para 91; Boogaard, at paras 43-44). If not, on certain matters, the legislature may use open-textured language, directing the decision-maker to act “in the public interest” for example. The former will force a more searching standard of review, the latter a lesser one. The point is that we no longer need the labels of “reasonableness” or “correctness.” After all, administrative law is very simply a specialized branch of statutory interpretation (Bibeault, at para 120), recognizing the fundamental fact that the administrative state is statutory in nature.

  1. Applying the standard of review of “reasonableness” on questions of law

To the parties, whether a decision is reasonable (or, I prefer to say, simply “legal” ) is the central question on judicial review. But the Supreme Court has not explained what constitutes a “reasonable” decision, particularly when it comes to determinations on questions of law. It simply says that reasonableness takes the colour of the context (Khosa, at para 59) with the range of outcomes expanding or contracting based on the “context”. All of this is metaphorical and unhelpful to litigants and lower courts.

At one level, we can question whether the decision-maker’s interpretive process for determining the content of the law is “reasonable”—does the decision-maker engage with the text, context, and purpose of the statute? This may impose a “lawyerly” methodology on decision-makers, inconsistent with a commitment to legal pluralism that nominally defines the Supreme Court’s deference doctrine.

That being so, I think we should expect decision-makers to articulate their decisions in ways cognizable to the rest of the legal system, if we value uniformity in the way these decision-makers deal with disputes. But I think this is a pipe dream. We can’t expect, for example, all “line decision-makers” to understand the finer points of statutory interpretation. All we might expect is that a decision is actually made by a decision-maker with cogent reasons so that courts can evaluate it. When faced with an administrative decision, say, interpreting an enabling statute, a court simply has to decide whether the decision fits within the statute. Courts apply the ordinary tools of statutory interpretation to do this. I say more about this process here, but suffice it to say that whether a decision “fits” with an enabling statute can be answered by asking whether the decision renders a result at odds with the purpose of the statute (properly construed); whether the decision is precluded by other parts of the statute; and whether the text of the statute precludes the interpretation undertaken by the decision-maker. This is not far from what the Newfoundland Court of Appeal did in Allen, a commendable decision.

  1. Expertise

Courts assume that expertise is, at the very least, a practical reason for deference—legislatures delegate to decision-makers because of their expertise. In fact, expertise is a key reason undergirding the Supreme Court’s presumption of reasonableness on questions of home statute interpretation. But there is never an investigation into whether this expertise exists in reality, nor is there ever an explanation of the sort of expertise that would be relevant to trigger deference. The Court assumes that “…expertise is something that inheres in a tribunal [which tribunal?] itself as an institution” (Edmonton East, at para 33).

Putting aside this mysterious statement, if expertise is a good practical reason for deference, the Court should move away from the general assumptions and explain in each case (1) the relevant sort of expertise required to trigger deference and (2) whether there is any statutory evidence that such expertise exists in practice. As I have written before, this was the general approach used by the Supreme Court in the pragmatic and functional era (Pushpanathan is a good example). Why this approach is no longer appropriate is a puzzle.

  1. Lack of academic and judicial focus on agency procedures and policies

In law schools, administrative law almost exclusively is taught as the law of judicial review. Little attention is paid to the bowels of administrative law—the different sorts of decision-makers in the “administrative state,” their policies and procedures, the effect of “guidelines” (binding or non-binding) on individual litigants, and the profound democratic challenge posed by the adoption of policy guidelines imposed without the consent or consultation of the people subject to the guidelines. While Lorne Sossin has done some important work in this regard, academics would do well to examine and further define the taxonomy of potential internal policies that could impact individual litigants, and the extent to which they could deviate from the statutory grant given to the decision-maker.

  1. Jurisdictional Questions

The perennial unicorn of administrative law, the concept of the jurisdictional question continues to haunt the law of judicial review. These are (largely hypothetical) questions on which a decision-maker is afforded no deference, because they go to the authority of the decision-maker to respond to the case in front of it at all.

In CHRC, the majority of the Court rightly noted that the concept of the jurisdictional question is quite indistinguishable from other questions of law a decision-maker is asked to address. Dissenters on the Supreme Court (particularly in CHRC and its predecessor, Guerin) think that the concept of jurisdictional questions is important to the role of courts on judicial review to enforce the Rule of Law. Essentially, to the dissenters, the Rule of Law requires correctness review because deferring to administrative decision-makers on their own jurisdictional limits allows the “fox in the henhouse”—virtually unreviewable administrative authority over legal limits.

But as Justice Stratas noted in a recent Access Copyright case (and before him, as Justice Scalia of the Supreme Court of the US noted in City of Arlington,), a judicial review court interpreting an enabling statute on any legal question inevitably deals with the issue of its limits to enter the inquiry in the first place. These issues are all matters of legislative interpretation. As Justice Scalia noted in City of Arlington “The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.”

The jurisdictional questions doctrine only makes sense if the Rule of Law mandates more searching review for questions of jurisdiction opposed to all other legal questions—assuming that a clear division can be drawn between these questions. But when it comes to administrative law, there is no meaningful distinction between legal questions and questions of jurisdiction—authority to make a decision in either category rests wholly on the statutory grant given to the decision-maker. As Justice Scalia noted in City of Arlington, a better descriptor for the concept is simply “statutory authority.” On this account, jurisdiction is not a concept that adds anything of substance.

  1. Charter Values

The religion of deference has even extended to constitutional issues. Truth be told, more ink has been spilled on the idea of Charter values than I think is necessary. Others have written about the doctrinal problems with Charter values as originally understood in Doré. These problems were exhaustively explored in Rowe J’s judgment in the Trinity Western case, and I need not revisit them here.

I will simply say that the benefits of Charter values that were promised by the Court’s judgment in Doré have yet to come to fruition. As I wrote here, the Supreme Court (and lower courts) cite Doré without applying its key holdings, basically applying the same tests associated with legislative challenges and particular Charter provisions than the “Charter values” (whatever they are) themselves. Even defenders of Charter values acknowledge that they have been applied inconsistently.

One wonders if there is any promise to the use of Charter values, or whether these values are unknowable, useless, and unhelpful in judicial review. To my mind, it is for the defenders of Charter values to move beyond the abstractions and lay out how—exactly—Charter values are fundamentally different from Charter rights, warranting a different analysis and relaxed standard of review.

  1. There are unexplored constitutional issues with aspects of administrative law

Section 96 of the Constitution Act, 1867 has been interpreted as the foundation of the power attributed by the Constitution to courts of inherent jurisdiction. The test described in Residential Tenancies (NS) determines whether or not a particular judicial power can be transferred by Parliament and legislatures to statutory tribunals. But there is separately a “core” of s.96 powers that cannot be transferred (MacMillan Bloedel, at para 15) to statutory tribunals.

To my mind, the supervisory jurisdiction of superior courts over inferior tribunals—on questions of law, specifically— is included in this core of superior court jurisdiction (MacMillan Bloedel, at paras 34-35).The concept of a core is a useful connection to the original purpose of s.96 courts to provide uniform interpretation of law.

Professor Daly has written on this issue, particularly on the issue of transferring judicial review functions to intermediate statutory tribunals. But I think more work should be done to square the constitutionality of the administrative state with the supervisory jurisdiction of superior courts. For example, full privative clauses could be unconstitutional if they block the supervisory jurisdiction of superior courts–on all questions of law, not just “jurisdictional” issues as noted in Crevier. I also would not concede that deference doctrines on questions of law—which dilute the supervisory function—are consistent with the role of superior courts. The list goes on, and it’s a list that could be explored with reference to the original meaning of s.96.

  1. The Supreme Court’s reasons doctrine

The Supreme Court tells us that we should pay attention to the “reasons that could be offered” by an administrative decision-maker before concluding that reasons are insufficient, warranting review (Dunsmuir, at para 48). This doctrinal innovation was based on a line taken from an academic article that did not speak to the mechanics of judicial review.

While the Supreme Court walked back this development in Delta Air Lines, it still remains the case that courts can supplement the reasons of decision-makers. This is problematic on a number of fronts. First, it was the legislature that delegated the decision-maker the power to make “justifiable, transparent, and intelligible” decisions. That power was not vested in the courts. Second, it is profoundly inconsistent with a notion of deliberative deference for a court to gin up reasons for a decision that the decision-maker may not have provided. Third, by abiding a culture of unjustified decision-making in the administrative state, the Court incentivizes decision-makers to limit the provision of reasons in their decisions, basically immunizing their decisions from meaningful review (see the discussion in Tsleil-Waututh Nation). But because the Court has stated that insufficiency of reasons is not a standalone basis for allowing a judicial review (Newfoundland Nurses, at para 14), a judicial review court is left in the unenviable position of having to defer to a potentially unjustified decision.

If a decision is unreasonable because of a lack of justification, it should be remitted. It is the remedial stage of the judicial review in which the court determines whether the decision can be maintained, looking to the record, for example (see Lemus, at para 33). Otherwise, courts may inadvertently allow unjustified decision-making.

  1. Deference to implied interpretations of law

The same comments I made in (8) apply here. Agraira holds, for example, that courts can defer to determinations of law that are “necessarily implied” within an ultimate decision (at para 48). Relying again on the magic line from the academic article, the Court concluded that it could consider the reasons that could be offered in support of a decision. But in Agraira itself, the Court noted that it could not “determine with finality the actual reasoning of the Minister.” I fail to see how a judicial review court, in those circumstances, can determine whether the reasoning and outcome fit within a range of reasonable outcomes.

  1. The standard of appellate review

This is a technical but important point. On an appeal of a judicial review court’s determinations, the Supreme Court insists that appellate courts should apply the judicial review standards of review–reasonableness and correctness–rather than the typical standards of appellate review set out in Housen. The appellate court is to “step into the shoes” of the lower court to determine whether that court selected and applied the proper standard of review (Agraira, at para 46). The effect of this is the same review, twice, of an administrative decision.

There are a number of problems with this. The first rests in the distinction between a first instance judicial review court and an appellate review court. If, as I posit above, judicial review is fundamentally a task of statutory interpretation (on both standard of review and the merits), then the appellate court is looking at particular legal issues raised in that interpretation by an appellant. This is fundamentally no different than the typical fare of appellate courts in most instances; determining whether a lower court interpretation of law is correct according to Housen.

Also, it makes little sense for an appellate court to redo a first instance court’s interpretation of a statute for reasons of judicial economy. Further, judicial review is supposed to be a summary procedure. Even at the appellate level, this should hold true.

Girouard v CJC: An Administrative State Coup?

The administrative state is not a constitutional mandate

A few weeks ago in this space, I mooted the arguments that could stand against the constitutionality of the administrative state. I alluded to an argument—percolating in Canada—that the administrative state could be mandated by the Constitution. I wrote this piece in a fully hypothetical mindset. But I forgot about a case in the Federal Court, Girouard v Canadian Judicial Council, in which the Canadian Judicial Council [the CJC] essentially attempted to constitutionalize its status as a statutory administrative tribunal by making it beyond judicial review. The Federal Court thankfully rebuffed the argument.

First, the brief facts. The CJC is a statutory body that has authority to review the conduct of federally appointed superior court judges. The CJC is made up of 39 members—chief justices, associate chief justices, and other senior judges—and is chaired by Chief Justice Wagner.

When a complaint is made against a member of the judiciary, the CJC has authority to investigate. It could do so through an Inquiry Committee [IC]. According to the Judges Act, which governs the CJC, the CJC may appoint an IC consisting of its membership or members of the bar of a province having at least ten years standing (s. 63(3)). After the inquiry has been completed, the CJC will report the conclusions and make recommendations to the responsible Minister (s.65).

Two inquiries were completed in the case of Justice Girouard, a judge of the Quebec Superior Court. In 2012, Justice Girouard was caught on a video that allegedly showed him involved in a drug deal. The CJC was asked to review Justice Girouard’s conduct. The first inquiry rejected the allegations against Justice Girouard, but raised concerns about the credibility and reliability of the facts reported by Justice Girouard. The CJC accepted the conclusion of the IC. In 2016, the Minister and Minister of Justice of Quebec filed a joint CJC complaint regarding Justice Girouard’s lack of credibility during the first IC. A second IC was convened, which found that Justice Girouard was not forthcoming during the first inquiry process. The CJC accepted that conclusion in its recommendation report to the Minister. In the main judicial review, Justice Girouard challenged the IC report to the CJC and the CJC report to the Minister, among other decisions.

The case here was a motion to strike brought by the CJC, which essentially argued that the CJC was a superior court, and not a federal board, commission or tribunal subject to judicial review under the Federal Courts Act. To the CJC, the Judges Act expressly notes that the CJC is “deemed” to be a superior court. Apart from the Judges Act, the CJC also argued that judicial independence as a constitutional principle compels the conclusion that the Federal Court has no authority to review the CJC, composed as it is of s.96 judges. The Federal Court rejected these arguments, concluding that the CJC is a statutory federal body subject to judicial review under the Federal Courts Act. Relatedly, the Federal Court concluded that the CJC does not possess the traditional indicators of a superior court, despite the fact that its membership is drawn from the ranks of s.96 judges.

The legal arguments presented by the CJC, to my mind, are problematic on three fronts: the implication of the CJC’s argument runs into problems at the level of fundamental principle; second, on specific legal points; and third, on the context in which this decision was made.

The first issue: if we accept the CJC’s argument, we can conclude that at least some of the administrative state is constitutionalized, simply because a s.96 judge (acting non-judicially) is on the committee. This is because the CJC argues that it is superior court, unreviewable without a right of appeal, despite being a body created by Parliament. Specifically, the CJC argues that the Federal Court cannot review the CJC because it does not fall into the definition of a federal board, commission, or tribunal in the Federal Courts Act. According to the CJC, this seems to be for two reasons: (1) because, properly interpreted, the definition does not encompass s.96 courts and (2) a principle of judicial independence precludes the Federal Court from exercising review over s.96 judges.

Both arguments run into what I call the fundamental principle of all administrative law: its statutory character, open to amendment or rescission at any time by the legislature. Tomorrow, for example, Parliament could remove the Immigration and Refugee Board, because the Constitution does not require the maintenance of a body to process refugee applications. We would revert to a pre-administrative law world, in which the executive (the responsible Minister) would process humanitarian and compassionate applications, for example. Put differently, and except in defined circumstances (such as those in Vriend, where Parliament has already spoken on a matter), the Constitution does not ordinarily require a legislature to positively act, much less to establish a robust administrative state. If the CJC is not open to judicial review under the ordinary channels, its actions are insulated from review, taking on a constitutional character. In the ordinary course, we would reject this argument—both on principle and because the Supreme Court has said that Parliament cannot establish s.96 courts (Crevier).

Why does this matter? While the CJC did not expressly argue this, its argument implites that the CJC can be put beyond review. An administrative actor created by statute should never be put beyond review, new-fangled theories of “constitutional structure” and administrative law constitutionalism notwithstanding. In constitutional democracies, government power must be subject to law. This means a neutral arbiter must determine if government properly exercised power according to law–the Rule of Law, at the very least, encompasses this principle of legality. If an administrative decision-maker, no matter the rank of its members or their august titles, is put beyond review, we approach a government by executive fiat and prerogative, not a government of laws adopted lawfully.

I see this case as an extreme example of the modern trend of administrative law: towards more regulation and more administrative decision-makers that have court-imposed “unlimited” powers (see West Fraser, at para 11). Once we accept even one instance of such a decision-maker, vested by statute, we have to conclude that no court can speak ill of that “unlimited” decision-maker. Obviously this has profound effect on the Rule of Law, individual liberties, and due process. Take this case–dissenting members of the CJC were concerned that certain anglophone members of the CJC could not evaluate the entire record, which was in French. This implicates the fairness of the process for Justice Girouard. A purpose of judicial review is to ensure this basic fairness, but if we make administrative decision-makers beyond reproach, we sit them alongside the basic law of the land–the Constitution. And of course, legislative bodies acting alone cannot establish new constitutional provisions.

The only wrinkle in the Girouard case is the membership of the CJC—in part, s.96 judges. A principle of judicial independence does require some separation between the judicial branch and the other branches of government. Resting on this, the CJC argued that s.96 judges—whenever acting in any capacity—exercise powers as a member of a court of inherent jurisdiction. But the CJC is established not as a loose confederacy of s.96 judges acting in a judicial, adjudicative role, deciding individual cases and applying the law. This is the hallmark of the judicial function (see Residential Tenancies at 743). Rather, it is established as a statutory investigatory institution, vested with powers only so far as the statute allows. The CJC has no other inherent power—no constitutional power to vindicate a right with a remedy—and has no supervisory jurisdiction, other powers typical of a superior court. It is acting only as a sort of self-governing professional body for judges, according to the terms of the statute. In absence of any exercise of a judicial function, and given the statutory basis of the CJC, there’s no reason to believe that the CJC should be constitutionalized as a s.96 court simply because, in another capacity, members of the CJC exercise judicial functions–notwithstanding the specific facts of the Supreme Court’s comments in Ranville (distinguished by the Federal Court).

In fact, the implication of the converse is absurd. The CJC stands and falls as a whole–as an institution. As I note above, the CJC ICs, for which the CJC sought immunity from review, is in part made up of s.96 judges. But the ICs can also include members of the bar of 10 years standing. The CJC’s argument implies that this does not matter so long as there are s.96 judges on the IC, the IC and the CJC together exercise s.96 functions, acting as members of a court of inherent jurisdiction. This sets up an interesting set of incentives. In order to make statutory bodies immune from review, Parliament could set administrative decision-makers composed in part by s.96 judges—perhaps composed of just one s.96 judge among other lawyers. On the CJC argument, this body would be beyond review without a right of appeal. Parliament could use the Constitution to game the fundamental principle of administrative law.

The real question is whether judicial review by the Federal Court infringes the judicial independence of a s.96 judge. Judicial independence has some textual mooring (ss. 96-100 of the Constitution Act, 1867 and s.11(d) of the Charter), but it is an “unwritten constitutional principle,” which guarantees “administrative independence, financial security, and security of tenure” (Provincial Judges Reference, at para 118). The CJC says that security of tenure is at stake, as removal of a judge requires an impartial process. The Court in the Provincial Judges Reference said something similar regarding financial security, but I am not sure the same result is compelled in these circumstances. It is not as of the Federal Court is some government administrative body that could allow the executive to interfere in the workings of the CJC—thus breaking the wall that should be set up between judiciary and executive. The Federal Court is itself independent. In the ordinary course, again, constitutional principles do not compel a particular legislative process or system. It simply requires a reality; that judges and executive/legislatures be separate.

Finer legal points also work against the CJC (though I note the CJC’s very sophisticated statutory analysis-see the factum below). The CJC argued that it is not subject to review in the Federal Court because the Federal Courts Act expressly excludes s.96 judges—and the power of the CJC is rooted not in a federal law (the Judges Act) but in a constitutional principle. The CJC says that if the Judges Act were removed tomorrow, the authority of the judiciary to investigate other judiciary members would remain. Again, on this I recoil instinctively. The CJC makes decisions as an institution—this the CJC recognizes. That institution, separate from its individual members, is created by statute. The Judges Act is one statutory manifestation that implements the principle of judicial independence, but is not the only one and perhaps not even the best one.

The CJC also points to s.63 of the Judges Act, which says that the CJC is deemed to be a “superior court.” In written argument, the CJC spends a lot of time discussing this deeming provision. I’m alive to the idea in statutory interpretation that a deeming provision creates a virtually irrebuttable legal fiction, but an unconstitutional statutory provision (deeming or no) cannot stand. An attempt by Parliament, through a deeming provision, to establish a s.96 court runs into constitutional problems on federalism grounds and on the Crevier grounds noted above. Even if this was not so, the particular deeming provision in this case is similar to ones that exist in other statutes. For example, the Canadian Transportation Agency similarly has “…all the powers, rights and privileges that are vested in a superior court” (Canadian Transportation Act, s.25). Yet no one argues that this provision alone grants the Canadian Transportation Agency the power to act as a superior court beyond powers pertaining to the procedures of the Court.

Finally, the context of the decision indicates that the CJC is aware of its statutory character. As noted by Paul Warchuk, the CJC tried once—the right way—to amend the Judges Act to make itself immune from review. A few years ago, the Minister of Justice sought recommendations on how to amend the Judges Act. The CJC recommended at that time that it be put beyond the ordinary judicial review procedure, subject only to an appeal to a statutory appeal body.

The CJC failed in these efforts, which basically mirror its submissions in Girouard. But implicit in this attempt is a recognition by the CJC that it is a statutory body subject to review by the Federal Courts system like any other federal body. After all, Federal Court judges are superior court judges (see s.4 of the Federal Courts Act, which establishes the Federal Court as a “superior court of record”). I’m not sure what changed between this recognition of its status and the Girouard case.

Overall, while counsel for the CJC argued the best case it could and ably so (whatever my opinion is worth), I’m less inclined to support the argument because of its implication: a further extension of the administrative state into unknown terrain. The coup failed this time, but as I’ve written elsewhere, the administrative state is a fickle bedfellow.

NB: To be fair, I’ve attached the CJC’s submissions below. Thanks to Alyssa Tomkins, counsel for the CJC, for sending them over.

Mémoire CCM