The Canadian Legal Mandarinate

Why we ran the 12 Days of Christmas symposium

On behalf of Leonid and I, I’d like to thank all of our readers for their interest in our recent 12 Days of Christmas symposium, which featured contributions from scholars on their five least favourite Supreme Court cases of the last fifty years. What started as a festive and fun holiday feature has made, I think, a much broader point: rather than glowing coverage of what the Supreme Court does, there is an audience and a need for more biting, critical commentary in Canadian law.

I say this because a not-infrequent response to our symposium asked why we needed to be so pessimistic. Why not ask people for their favourite Supreme Court cases? Doesn’t the world need more positivity?

Maybe it does, but I’m not sure there is a lack of it towards the Supreme Court in Canadian law. Of course, I don’t have empirical evidence to show that Canadian scholars are too deferential towards the Supreme Court and its judges. But it is interesting why our symposium struck a chord in the first place.   Over on profsblawg, Paul Horwitz explains why this might be. Horwitz received his law degree in Canada (University of Toronto), and notes that he practiced and published there as well. It’s worth reproducing a large part of what he said about his impressions of Canadian legal academic culture. It isn’t good:

 

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers.

[…]

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal–faculty-run and peer-reviewed, as most of them are–and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

[…]

If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country’s “national values.”

This a powerful anecdotal account of how Canadians tend to react to those in judicial authority, and in response to those who do engage in critical analysis. Speaking for myself, I am unsurprised by Horwitz’s comments after writing this post on the reaction to Justice Abella’s comments about the role of the Supreme Court as the definitive font of authority on “Canadian values.” Many argued that Leonid and I went too far by drawing particular attention to Justice Abella’s specific comments. Others suggested that we should always tread carefully when criticizing judges, that we should always presume good-faith, and that we should speak about decisions and institutions rather than personalities.

As I’ve said before, if judges are going to assume the mantle of constitutional guardians, we all have the right (and the duty) to monitor their decisions. Given the heightened role that court has arrogated to itself, I see no quarrel with concerning ourselves with what the judges think and say, as well. But this isn’t strictly the point. Instead, it is enough to say that we already do a lot of celebrating of judges and judicial decisions in Canada. There was, of course, the rather drawn-out farewell tour for Chief Justice McLachlin, with growing tributes and nary a peep about her judicial missteps. Academic articles were written celebrating her as the “expositor of our constitutional values.” Justice Abella has also received her fair share of celebration, among academics and the bar alike. I think there is probably an interesting correlation between this judicial idolatry and the rather depressing statistics on ideological uniformity in law schools, but I need not explore that connection here.

I view the 12 Days Symposium as a product of supply and demand principles. If we take Horwitz seriously, and my own experience is consistent with his, then we have an abundant supply of “positive,” more deferential legal commentary in Canada. What is missing, and what our 12 Days contributors arguably provided, was a breaking point from the consensus. And judging from our readership and the spirit of the contributions, I think there is a real demand for this sort of work in Canadian legal academic circles.  Of course, I think this is broadly consistent with the entire premise of Double Aspect to begin with.

To be fair, a lot legal scholarship can’t and shouldn’t be put into the “positive” or “negative” column. Some work is empirical, and that work is in low supply in Canada, at least when it comes to public law. Robert Danay has done us a great service, in this respect, with his empirical work on Dunsmuir. But there is a decidedly normative bent to Canadian legal scholarship, and to that extent, there is such a thing as critical work.  Though I cannot purport to speak from great experience (and so I qualify my statements to a large degree), I view legal scholarship is something like calling balls and strikes. Sometimes, the Court gets it right, and we try to highlight that on Double Aspect when we can. Others do so too. But there is a distinct lack of critical commentary, and our contributors supplied the demand.

This answers the question of why we chose not to run a symposium focusing on the Supreme Court’s best cases—this is already out there if you look hard enough. And it’s also the reason why, speaking for myself, there is no need for an endless veneer of deference towards the judiciary. I can’t speak from experience to definitively conclude that there is a Canadian legal mandarinate. But I can say that there appears to be reticence about criticizing decisions and judges.

Day Ten: Mark Mancini

We at Double Aspect are very excited to host this important symposium. As I’ve written before, I think it is necessary for observers to turn a critical eye to the Supreme Court’s cases. Those of us interested in doing so should not shirk behind the ceremony of the bench.

Here is my list of the 5-worst Supreme Court cases of the last generation. My North Star is the separation of powers between the courts and the political branches, and the division of powers between the provinces and the federal government. These fundamental protections are necessary for any constitutional democracy, and are logically prior to any bill of rights, which are simply mere “parchment barriers.” These cases, in their own way, undermine these important structural protections.

  1. Doré v Barreau du Quebec, 2012 SCC 12

Doré has received criticism on so many levels, but my concern is the separation of powers problem it creates. It sacrifices the supervisory function of courts for the sake of the Court’s fascination with a pop-psychology sort of “expertise.”

Doré rests on the assumption that technical policy expertise in the decision-maker’s ambit transfers seamlessly to constitutional matters arising in that ambit [46-47]. This assumption is academic at best, and completely wrong at worst. It rests on the mistaken view that we can fuse together questions of law and “policy” in one mishmash of questions that administrative decision-makers can address relying on one well of policy expertise. But this is not the way human knowledge and information works. Agencies can be viewed as information processors, and when processing information, they also prioritize it. Unless decision-makers receive constitutional training (like lawyers), they could undervalue the importance of certain relevant facts applicable to constitutional problems.

The effect of this myth of expertise is the dilution of a court’s recognized supervisory role over constitutional matters (see Hunter v Southam). No one denies that a challenge to a government law is analyzed on a correctness standard. Of course, the Oakes test contemplates deference (Doré, at para 57). But deference to a legislature—a recognized constitutional actor—is functionally different than deference to a quango. We defer to legislatures for good reasons (for example, because a question is inherently political, best amenable to resolution by legislatures), whereas the reasons for deference to administrators on constitutional matters are weak and unproven.

  1. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Though this list appears in no particular order, Newfoundland Nurses is my pick for the worst case of the last 50 years. Thinly reasoned but consequentially harmful to the institutional roles of Parliament and the courts, Newfoundland Nurses extended a sentence in Dunsmuir (which itself grabbed a theoretical prescription from an academic article) that courts should defer to reasons that “could be offered” by decision-makers [12-13].

Newfoundland Nurses responds to the classic “insulation” problem in judicial review: the decision-maker has not offered enough information for the court to be sure that relevant issues were addressed. Understandably, courts cannot undertake the constitutional supervisory function of judicial review if they cannot determine the basis for the decision. Newfoundland Nurses tells us that courts, in the name of deference, should not strike a decision on this basis alone.

But it is no answer to this problem for courts to create reasons for the decision-maker. After all, Parliament delegated power to administrative decision-makers, not the court, to decide particular cases (see here, and Stratas JA’s reasons in Bonnybrook). The legislature’s delegation, absent constitutional objection, should be respected by courts. But when courts attempt to cooper up decisions that are otherwise left wanting, they disrespect Parliament’s delegation, and they end up reviewing a “decision” of the court’s creation, rather than the one actually rendered.

Ironically, Newfoundland Nurses instantiates a rule of deference that isn’t really deferential. On one hand, courts—in the name of respect for legislative intent and the unhelpful metaphysical idea of a “culture of justification”—defer to administrative decision-makers. On the other, courts build up defective reasons to save decisions.

  1. Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12

The Federal Courts Act provides grounds of review which tell courts when they could allow judicial review. The question in Khosa was whether these grounds of review superceded the common law judicial review analysis set out in Dunsmuir, and relatedly, what the position of a court is on judicial review in absence of statutory direction.

While Justice Binnie for the majority began his analysis by noting that Parliament need not specifically direct deference for it to be applied, Justice Rothstein (in concurrence on result) had the better of the argument by reasoning that a free-standing idea of expertise amounts to a court-amendment of duly enacted legislation. The reason is this: Parliament could repeal or reorganize various administrative decision-makers at any time. It follows that the legal justification of the administrative state is statutory law. How a decision-maker is reviewed is also a function of statute. Therefore, a court cannot subvert statutory language in service to its own policy goals, in this case, some ethereal “judicially determined expertise” [96].

Regarding the Federal Courts Act, for Justice Binnie, questions of home statute interpretation are reviewed on a reasonableness standard, regardless of legislative guidance [44]. This allowed him to conclude that the grounds of review specified in the Federal Courts Act were largely silent on the standard of review, permitting deference. But because there is no reason to presume deference in absence of statutory language, Justice Rothstein was clearly right to conclude that most of the grounds in the Federal Courts Act set the standard of review as correctness [72]. While the common law Dunsmuir framework can inform the review of federal decision-makers, it should not resist the Federal Courts Act.

  1. General Motors v City National Leasing, [1989] 1 SCR 641

The Supreme Court interprets Canada’s division of powers to permit overlap between the orders of government, in the name of “cooperative federalism” (Securities Reference II, at para 18). Modern regulation is said to require nothing less. General Motors is perhaps the best example of the folly of this assumption from the perspective of the exclusive division of powers.

General Motors concerns the case of a statutory provision that facially intrudes on the other order of government’s jurisdiction, but that are included in an otherwise valid statute. Since the days of the Privy Council, it was recognized that such provisions were not constitutionally problematic if they were necessarily incidental to the broader legislative scheme. Slowly but surely, courts diluted this strict test, next permitting only a “rational, functional connection” between the provision and the scheme (Papp; Zelensky). General Motors is the cherry on top. It creates a shifting standard—depending on the severity of the intrusion of the provision, a more or less strict test would apply—sometimes the rational-functional test, sometimes the necessarily incidental test. [669].

But this shifting standard does not match onto the division of powers. As Asher Honickman persuasively argues, the division of powers was not originally understood to permit overlap, and instead was meant to be an exclusive distribution of powers. This means General Motors goes wrong in two ways: first, it sometimes permits a “rational, functional test,” which permits a great deal of overlap. A necessarily incidental test, while also permitting some overlap, only does so to enable the enacting government to legislate to the full extent of its power; without the impugned provision, the rest of the statute would fall. Second, General Motors purports to measure the “seriousness” of an intrusion. Not only does this encourage judicial navel-gazing, but one can’t get a little bit pregnant. The exclusive division of powers prevents intrusion by one order of government on the other, no matter its “seriousness,” except in the narrow case of necessity.

  1. Re Residential Tenancies Act, [1981] 1 SCR 714

Residential Tenancies sets out the test for when provinces (or the federal government) want to divest courts of adjudicative power in favour of statutory tribunals. A divestment of this kind implicates s.96 of the Constitution Act, 1867, which has been interpreted to protect the judicial function of the superior courts from provincial abrogation (see Crevier, at 237). Even though a power may have been considered judicial in 1867, provincial legislatures can attach judicial functions to a tribunal within a “broader institutional framework” [733-734].

From a separation of powers perspective, Residential Tenancies incentivizes governments to regulate broadly order to enable the attachment of a purely judicial function to a tangentially related legislative scheme. This erodes the power of courts, and incentivizes mass delegation to any tribunal that can be characterized as promoting the “collective good.” This amorphous term enables Parliament and the legislatures to “regulate away” the judicial functions contemplated by the historical understanding of s.96, subverting the hierarchy of laws.

On the division of powers of side, broad provincial delegation eats away at the function of uniformity that is achieved by s.96. A federal power of appointment is designed to vest a power to create uniformity, while still respecting provinces (see MacMillan Bloedel, at para 15). But if provinces can eat away at judicial functions originally understood as being a matter of federal control, the uniformity function slowly ebbs.

Day Eight: Andrew Bernstein

Partner in Torys LLP litigation group specializing in public law, IP, and appellate practice

I was delighted to be invited [1] to participate in Double Aspect’s Twelve Days of Christmas “Worst Supreme Court of Canada cases 1967-2017,” with a group of knowledgeable scholars, pundits and practitioners.[2] I was even more delighted to be able to submit my entry near the end, as I was in Oaxaca, Mexico when the invitation arrived. However, going near the end has its downsides. Many of my most staunchly disliked cases (Doré anyone?) have already been called out by others. Although there is no strict rule against “concurrences,” I see the point of the blog as being to entertain and educate, not just vent. As a result, with one exception, I have largely resisted the urge to go all Smokey Robinson and “Second that Emotion” at the top of my lungs.[3] I therefore am trying a kind of experiment, which is to create a loose etymology of the different kinds of “bad decisions” we find from the Supreme Court and choosing cases that I see as an example of each type.

1. “The dud with the thud”: Chaoulli v Quebec, 2005 SCC 35, [2005] 1 SCR 791

The Supreme Court has been Canada’s highest Court for over 70 years. But sometimes you read one of its decisions and think “can’t someone appeal this?” because it’s simply wrong and everyone knows it the instant it’s released. Chaoulli v. Quebec was about a doctor and a patient who teamed up to argue that Quebec’s prohibition on the private sale or purchase of health services that are covered by its provincial health insurance plan is contrary to the Canadian Charter of Rights and Freedoms or Quebec’s Charter of Human Rights and Freedoms. A seven-judge panel split three ways: three judges held it was contrary to both Canada’s and Quebec’s Charter, three judges held it was not, and one held it was simply contrary to Quebec’s. So while technically the majority did not rule that the ability to purchase medical treatment on the private market is a s. 7 right, that notion got a serious plurality, and their opinion ultimately prevailed.

This is a bad decision on a number of bases, but like most bad s. 7 decisions, it comes down to the analysis of “principles of fundamental justice.” Unlike some of my co-authors on this blog, I’m not inherently opposed to the idea of substantive principles of fundamental justice, but this case is a good example of how they can go wrong. Essentially, the Court held that it is a principle of fundamental justice that laws not be “arbitrary.” It then (selectively) reviewed the evidence, some of which suggested that allowing patients to purchase private health insurance would help “relieve the burden” on the public system, and concluded that since many other social democracies have dual public and private medical care, it would be arbitrary to deprive Canadians (or at least Quebecers) of the same option.

There is so much wrong with this analysis that it could be its own blog post. However, I only have a fifth of a post to dedicate to it, so I will simply set out the following ideas (1) “arbitrariness” is not always in the eye of the beholder, but it certainly was here; (2) the fact that Canada does things differently than other countries does not make it arbitrary; and (3) judges almost always go wrong when they try to substitute their views of how to make social policy for the views of legislators or administrators. Could the majority here seriously think that no one had ever thought that a private system might “relieve the burden” from the public system and that’s why it did not happen? Or is it possible that the people charged with making health care policy recognized that perhaps pulling supply out of the public system to service private patients would do more harm than alleviating some of the demand?

Fortunately, this decision has gone nowhere, which is why I have categorized it as a “dud with a thud.” It has been apparent from the time it was released that this decision was destined to be a one-off. The judicial system as a whole has many tools in its arsenal (ignoring, distinguishing, declaring that “times have changed” and not following) to ensure that an off-day of four members of the Supreme Court does not turn into a permanent deformation of our constitutional democracy. Although there were numerous prophecies of doom,[4] Chaoulli did not mark the end of The End of the World As We Know It, we feel fine, and if the day comes when we don’t, we can be safe in the knowledge that the Canadian Medicare is still very robust.

2.  The precedent that makes life difficult when times change: R v Edwards, [1996] 1 SCR 128

A disclaimer: I am not a criminal lawyer. A second disclaimer: I am NOT a criminal lawyer. A third disclaimer: I ran this idea by my father-in-law who is a leader of the criminal bar (Martin medal, Law Society Medal, the whole enchilada) and he thinks I am by and large wrong. But the “standing threshold” for s. 8 cases has always troubled me. I have kept this opinion mostly to myself because, as a non-criminal lawyer, no one actually cared what I thought about s. 8. But in the last few years I have started doing some privacy law as part of my civil and public law practice (this will come up again below – I’m not just self-promoting). So suddenly I have some (modest) qualification to talk about s. 8 and so I’m taking it and running with it.

In one of its very first Charter cases, Hunter v. Southam, the Court reasoned that since only unreasonable searches and seizures were unconstitutional, then a party complaining about the search or seizure has to have a reasonable expectation of privacy in the space that was unlawfully searched. This makes sense in some contexts: if you abandon incriminating evidence somewhere that anyone (including the police) could find it, it’s hard to see how any search could be “unreasonable.” However, this is almost never how this rule operates in practice. Rather, the facts of Edwards are much more typical: the accused leaves his drugs in his girlfriend’s apartment. The police search the apartment without a warrant. The accused challenges the search on the basis of s. 8, and the court says “you don’t have a reasonable expectation of privacy in the apartment, so you don’t have standing to bring a s. 8 challenge.” It is clear from the discussion in Edwards that this law is taken almost in its entirety from similar U.S. case law on the fourth amendment, which (as Justice LaForest pointed out in his concurring reasons) appear to be largely the product of Burger and Rehnquist Court backlash against Warren Court precedents.

One of the smartest provisions of the Charter was s. 24(2), which provides remedial flexibility for evidence obtained contrary to its prohibitions. Undoubtedly influenced by the mixed experience of the exclusionary rule in the United States, the drafters of the Charter included this section to set out a specific threshold: evidence obtained in violation of the Charter can be excluded only when its admission would bring the administration of justice into disrepute. In light of this key difference, it would make sense to consider the accused’s expectation of privacy in the weighing of the various factors that dictate whether the evidence will ultimately be admitted rather than a threshold question that asks whether the accused even has access to the Charter right in the first place.

If the subsequent law to Edwards showed that notwithstanding these difficulties, the standing threshold was workable and coherent, I might have been persuaded to omit this case in favour of a few that did not make the cut (Wells v. Newfoundland? The Securities Act Reference? Bueller?[5]). But unfortunately Edwards has led to many difficulties, which have only gotten worse in the era of searches for data on devices rather than drugs or weapons stuffed between sofa pillows. How does one establish an expectation of privacy in communications that are made through several different servers? What happens when A allows the police to search her laptop and finds B’s files? Who has a reasonable expectation of privacy on what device? What about the cloud? The three or four people who saw the 2014 box office flop Sex Tape knows “no one understands the cloud!”[6] and if you have ever had the experience of trying to explain difficult technology to the Supreme Court, you know that they are no exception.

In sum, artificially forcing all these issues into the “reasonable expectation of privacy” analysis distorts the prohibition against unreasonable searches and seizures into a prohibition against invasion of “reasonable” expectations of privacy. This could have all been avoided by simply asking whether a search was unreasonable, and skipping the step that asks “who has standing to raise it?” And while this has made for some robust debates during Friday night dinner at my in-laws’, my matzo ball soup would go down a lot easier without the standing threshold for s. 8.

3.  The bad decision as post-modern art: Reference re: Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457

I am a big fan of modern and post-modern art, and am fortunate enough to practice at a firm with a lovely collection. But all of the works are not to everyone’s taste. There is a very prominent painting with three red stripes about which numerous people have remarked “my kid could do that!”[7] There are a series of coloured dots arranged in three rows that I think are beautiful, but some find too splashy. But the piece that gets the most negative attention is a large (about 3M by 2M) painting of a (full) green garbage bag that is prominently displayed near our reception desk. When a smart-ass opposing counsel inevitably asks “why do you have a painting of a garbage bag in your conference room space? Does it reflect the quality of your legal work?” my usual response is “some people just don’t understand modern art!”

Of course, my mock indignation disguises the fact that some modern and post-modern art is extremely difficult to comprehend. While the garbage bag does not necessarily fall into that category, the Reference re: Assisted Human Reproduction Act very well might. It is an incredibly important decision. It is the modern (or perhaps post-modern?) authority on the scope of Parliament’s criminal law power. However, because of the unfortunate nature of the decision (three sets of reasons, numerous different impugned sections, little clear consensus on any issues, difficult to tell what the majority is), applying it is extremely difficult. Its 289 paragraphs almost seem like a Dadaist plot to frustrate and amuse, and to properly understand it, you need a Mondrian-style colour-coded chart.

I’m all for lawyers thinking about art, even when I don’t understand it. I think it challenges us to think beyond our own lawyerly logical syllogisms, and makes us more interesting people. Over the years I have even begun to enjoy the garbage bag. But I think that, when it comes to crucial points of constitutional law, what we need is clear guidance, not post-modernism, even if the chart it generates is surprisingly attractive.

4.  The “Sequel that made the first one worse”: Hill v Scientology, [1995] 2 SCR 1150

Have you ever seen the movie Weekend at Bernie’s? It’s a slapstick comedy involving two guys carrying around the body of their dead employer over the course of a weekend. The running gag is that they put “Bernie” in sunglasses and clothes and prop him up like he is still alive. If you saw this movie, you probably laughed pretty hard and enjoyed yourself. But if you had the misfortune of seeing the sequel (Weekend at Bernie’s II), not only did you probably you hate it, it might have caused you to re-think whether the first one was, in fact, good. Because, in truth, watching two hapless dudes walking around with a body is funny the first time, but the second time its just dumb.

Some cases are like the Weekend at Bernie’s movies. The original seems fun, until you see the sequel and realize that the original was actually a mess. Of course this raises a philosophical question: is it the sequel or the original that belongs on the “worst cases” list? While I ruminated on this subject for a while, I ultimately selected the sequel because not only was it, itself bad, but it ruined a perfectly good one too. As a result, when it comes to the Supreme Court’s decision in certain circumstances to apply Charter values instead of Charter rights, I believe it is the sequel, not the original, that deserves our antipathy.

Charter values is one of the most controversial concepts in Canadian constitutional law. The concept comes from R.W.D.S.U v. Dolphin Delivery, [1986] 2 SCR 573, which, at the time it was released, seemed more-or-less innocuous. At an employer’s request, a judge had entered an injunction against a union engaged in secondary picketing. The injunction itself was challenged as a violation of freedom of expression on the basis of common-law rules, and the Court held that the Charter does not typically apply to private litigation between private parties. While it could certainly be argued that this was not the correct analysis, the fact that what was being challenged was a judicial decision to grant discretionary relief rather than the law that underlies it likely obscured the correct issue. However, the part of this case that “lives in infamy” among constitutional lawyers is Justice McIntyre’s off-the-cuff remark suggesting that whether the Charter applies in this context “is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative” (emphasis added). Neither Justice McIntyre nor any of his colleagues use the phrase “Charter values,” and none of them suggest that the application of “Charter values” would be a suitable substitute for a full-fledged infringement and justification analysis when a common law rule is being impugned.

As a result, it’s hard to criticize Dolphin for its introduction of Charter values into the discourse. Justice McIntyre was entirely right to say that when Canadian governments chose to enact a constitution setting out our most fundamental legal values, the judge-made common law should evolve to be consistent with those values. And Charter values is not always a harmful concept. I would go so far as to say that they can be applied in a way that’s both useful and appropriate, such as in R v Salituro [1991] 3 SCR 654, in which the Court made a modest change to an evidentiary rule that does not on its face infringe any Charter rights but seemed out-of-date and arbitrary.

Unfortunately, about a decade after the Dolphins were delivered, the chickens came home to roost, in the form of “the sequel,” Hill v. Scientology. Hill focused on whether the tort of defamation is consistent with the Charter guarantee of freedom of expression.[8]

The common law of defamation (essentially creating civil liability for uttering words that could harm a reputation) contains many rules that impose significant limits on expression. Once a defendant is proven to have uttered defamatory words (i.e., words that have the tendency to lower the reputation of the plaintiff(s) in his, her or their community), falsity and general damages are presumed. This means that the onus lies on the defendant to prove that defamatory words are actually true. Moreover, defamation is a strict liability tort – whether someone acted in good faith or with due diligence is irrelevant. Together, these rules have a significant chilling effect on speech, since the cost of defending a defamation trial alone can be ruinous, not to mention the possibility for significant damages.

The United States Supreme Court long ago modified the common law rules to make defamation harder to establish, and defences easier to make out. In the Hill case, Scientology argued that the Supreme Court should carefully scrutinize the common law of defamation to ensure that its rules were consistent with s. 2(b). However, the Court did not really even consider the issue. While one could have hoped for an analysis that carefully looks at the various metes and bounds of the tort of defamation, its various defences, and considers whether their effect on expression can be reasonably justified, this is nowhere to be found in the decision. Instead, Cory J. goes to great lengths reject the notion that a private litigant can challenge the common law at all, stating (at para. 95):

The party challenging the common law cannot allege that the common law violates ‘a Charter tight because, quite simply, Charter, rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), °either by creating new causes of action, or by subjecting all court orders to Charter scrutiny.

Justice Cory goes on to say that if the common law is the alleged problem, then only a Charter values, not a “infringement and justification” analysis should be applied (at para. 97):

When the common law is in conflict with Charter  values, how should the competing principles be balanced?  In my view, a traditional s. 1  framework for justification is not appropriate.  It must be remembered that the Charter  “challenge” in a case involving private litigants does not allege the violation of a Charter  right.  It addresses a conflict between principles.  Therefore, the balancing must be more flexible than the traditional s. 1  analysis undertaken in cases involving governmental action cases.  Charter  values, framed in general terms, should be weighed against the principles which underlie the common law.  The Charter  values will then provide the guidelines for any modification to the common law which the court feels is necessary.

It is easy to show why this analysis is wrong-headed. Imagine a piece of legislation that makes the practice of any religion other than Protestantism in public a civil cause of action, permitting anyone offended by others’ practice to sue for civil damages. It should be clear that a defendant to this lawsuit can (and should) argue that the law that creates this cause of action infringes s. 2(a), and therefore should not be enforced. So why should the analysis be different when the law is a common law rather than a statutory rule, and freedom of expression rather than freedom of religion is infringed? And why in particular should a defendant have to rely on the willingness of the court to amend the common law in accordance with Charter values, rather than subject it to the cold hard scrutiny of questions like pressing and substantial purpose, rational connection and minimal impairment that is required in a s. 1 analysis? Justice Cory’s reliance on s. 32(1) is likely the source of the problem: the “state action” here is not the legislative or the executive branches, but rather the rules created and enforced by the judicial branch (of government). And if you don’t think that they are a part of “government action,” try ignoring one of their orders and see what happens.[9]

While the law of defamation has subsequently been modestly updated to insert a defence of “responsible communication” to alleviate some concern about its chilling effects on expression, it still contains some very expression-unfriendly elements, such as the reverse onus to prove truth, or the presumption of damages. Moreover, the recent emergence of common law privacy torts raises similar, and perhaps even more troubling, questions for freedom of expression. How long will it be before a public figure claims that publishing information about his or her extramarital relationships constitutes an “intrusion upon seclusion” or “publication of private facts?” And will the courts actually examine these torts for their adverse effects on expression through the microscope of an Oakes analysis, or are we forever destined to use the much less potent magnifying glass of Charter values when it comes to the common law?

Finally, using Charter values as a substitute for s. 1 analysis has spread well beyond the application of common law rules by common law judges. Most controversially, the Supreme Court in Doré essentially endorsed a type of “Charter values” approach instead of a s. 1 analysis when considering whether administrative orders and decisions are contrary to the Charter. Doré has been covered in several of the previous days’ works as one of the Court’s worst decisions in the modern era. And while I appreciate that they are not at least formally bound by precedent, I would point out that at least the movie studios had the good sense not to make Weekend at Bernie’s III: Bernie’s Back!

5.  The “Case that causes a small but not trivial constitutional crisis”: Reference Re: Supreme Court Act, 2014 SCC 21, [2014] 1 SCR 433

While I generally avoided repeating cases discussed by others, I cannot resist mentioning my least favourite Supreme Court decision of the modern era, the Reference Re: Supreme Court Act. The reason is simple: it is entirely untoward to have the Supreme Court exercise a veto, even a legalistic veto, over its own composition. Rather, the institutional integrity of courts in general, and the Supreme Court in particular, requires that it accept whomever the executive selects for it. And doing so in a way that essentially constitutionalizes itself and its composition makes it particularly unattractive.

Others have pointed to the difficulties with the strained statutory interpretation that the Court relied on to bar a well-respected member of the Federal Court of Appeal (Justice Marc Nadon) from being appointed to the Supreme Court. It makes no sense that someone who was a long-time practitioner in Quebec, and who was qualified to be appointed to the Federal Court because he was a long-standing member of the Barreau du Québec could not qualify as a Quebec judge under the Supreme Court Act because he was neither a “current” member of the Quebec bar or Quebec bench. However, the real problem, in my respectful opinion, is the constitutional analysis. In particular, the Court found that it was not open to Parliament to amend the Supreme Court Act to allow a former member of the Quebec bar to be appointed to the Court. In so doing, the Court essentially constitutionalizes itself, stating “the existence of an impartial and authoritative judicial arbiter is a necessary corollary of the enactment of the supremacy clause …. As such, the Supreme Court of Canada is a foundational premise of the Constitution.”

This analysis raises some important questions, which need to be asked but cannot be answered here:

  • Why does the constitutional need for a judiciary to enforce the constitution require a second-level court of appeal such as the Supreme Court?
  • Is there a constitutional requirement to have statutory appeals?
  • If the existence of a Supreme Court to determine constitutional questions is a constitutional necessity, why does the Court have the right to decline to hear these questions? Isn’t the corollary to the constitutional “right” to a Supreme Court the “right” to have that Court hear all constitutional questions?
  • If the Court is right that Parliament can make small “maintenance” type changes to the Supreme Court Act, why doesn’t that include allowing former lawyers (now Federal Court judges) to be seated? Some extremely well-respected Supreme Court jurists come from the Federal Courts from Ontario (Iacobucci) or the West (Rothstein). Why can’t they come from Quebec?
  • Is the existence of the Supreme Court a matter of constitutional law or constitutional convention? If it is the former, where can we find it in the Constitution Act and why was the Supreme Court Act excluded from the list of statutes that are declared to be part of the Constitution of Canada? If it is the latter, why is the Court suddenly enforcing conventions after saying in the Patriation Reference and the Seccession Reference that conventions are not enforceable?

These questions have no answer because, of course, the constitutionalization of the Supreme Court Act by the Supreme Court cannot be explained by legal logic, constitutional history or text. Rather, the judges appeared to have a collectively negative reaction to the appointment of Justice Nadon to their ranks and distorted the meaning of the constitution to prevent it.

The subsequent public dispute between the Prime Minister and the Chief Justice was largely the PM’s fault. In a constitutional structure with a de facto separation of powers, it is entirely inappropriate for the head of the executive to criticize the judiciary (and, it should be said, vice-versa), and throwing a public fit because a court decision does not go your way is particularly unbecoming. But one can sympathize with the PM’s reaction, because the same separation of powers that should have prevented him from making his misgivings public also specifically allocates the appointment of Supreme Court justices to him, not the Court.

I noticed in editing this last section that it was less light-hearted and devoid of pop culture references. This suggests to me that I still can’t find my sense of humour when it comes to this case. This is unfortunate because a sense of humour is an important quality in a litigator. Perhaps this suggests a 2019 New Year’s Resolution for me: time to for me to get over it! For the rest of you, I wish the best for the new year and hope that your living tree grows strong, but not through the window of your living room.

[1] I sort of invited myself. I mean I dropped a HUGE hint that I’d like to participate and then Double Aspect was kind enough to invite me.

[2] I refuse to say who is who.

[3] I have not resisted the urge to sprinkle this post with a random assortment of pop culture references from the 80s and 90s, however.

[4] Typically more common of the political right than the political left when it comes to Canadian judicial decisions, although this can change over time, as it did in the U.S.

[5] Bueller is not a case. So don’t go looking for it on Canlii.

[6] Perhaps next year we could do the worst 5 Cameron Diaz movies?

[7] They are wrong.

[8] I should say that the one and only “rule” that Double Aspect gave me was that the decisions I choose cannot have been overturned. It is arguable that Hill was, if not overturned, at least severely modified by the Court’s subsequent defamation decision in Grant v. Torstar (2009 SCC 61). However, Grant did not in any way modify Hill’s approach to how to apply the Charter to a common law rule, and in fact essentially applied it. So on the basis of that self-made exception, I am including Hill on my list.

[9] Don’t do that.

R v Boudreault: Parliament’s Cross to Bear

The rule of law does not countenance the frequent use of suspended declarations.

In R v Boudreault, 2018 SCC 58 the Supreme Court of Canada (per Martin J) struck down s.737 of the Criminal Code, which requires an offender who is found guilty, is discharged, or pleads guilty to an offence under the Criminal Code or the Controlled Drugs and Substances Act to pay a “mandatory victim surcharge.” The Court found that the surcharge constituted “cruel and unusual punishment” under s.12 of the Charter, because the victim surcharge was levied on offenders regardless of “the inability to pay, the likelihood that they will face a repeated deprivation of liberty for committal hearings, or the indefinite nature of the punishment” [45]. The Court struck down the law with immediate effect.

The substantive merits of the case are not my concern, and others have summarized them. But I can’t resist dipping my toe in the water. The test developed under s.12 of the Charter of “gross disproportionality” applied to “reasonable hypothetical scenarios” has always troubled me. Gross disproportionality is not necessarily co-equal with “cruel and unusual” punishment, the latter being a legal term of art that also appears in older constitutions, like the United States’ (8th Amendment). Issues of application arise, too: it is one thing for a criminal sentence to be grossly disproportionate, but it strikes me as odd to say that a victim surcharge, parasitic on the conviction assessed against the individual, is “grossly disproportionate” or even “punishment.” The offender is simply being asked to bear some of the costs of her criminal conduct.

But, though I disagree with the substantive outcome, I take the s.12 violation as a given—instead, I think the more interesting part of the case is the decision on remedies. I see Boudreault as a small step towards peeling back the force of the suspended declaration of invalidity, which has, in recent years, been the constitutional remedy adopted by the court on the say-so of the government. This state of affairs corrodes the important organizing principle of Canada’s constitutional remedies law: the rule of law itself.

How does the rule of law situate itself in the doctrine? The remedial authority for striking down laws is s.52 of the Constitution Act, 1982. That provision simply declares that the Constitution is supreme—and so it follows that laws contrary to the Constitution are invalid. A law that is unconstitutional is no law at all, and no court or government official should apply or enforce laws that are unconstitutional.

Section 52 does not say anything about “suspended declarations,” yet they have become the go-to remedy for the Court in constitutional cases. Because the Constitution should be interpreted consistently, any justification for suspended declarations should similarly be found in the rule of law itself. But this has not been the way for the Court, which often suspends declarations without much of a thought. For example, suspended declarations were endorsed in both Bedford (prostitution laws rendered unconstitutional) and Carter (criminal prohibitions on assisted dying rendered unconstitutional). In the former case, there was barely any comment on the matter from the Court. It noted that, “[w]hether immediate invalidity would pose a danger to the public or imperil the rule of law… may be subject to debate” [167]. A mere two paragraphs later, the Court concluded that, “considering all the interests at stake” the declaration should be suspended [169]. In the latter case, the Court’s analysis was similarly brief: “We would suspend the declaration of invalidity for 12 months” [128]. What’s more, the government couldn’t meet the deadline imposed by the Court, and actually received an extension of the suspension. In these cases, the suspended declarations seemed the declaration of rote when the Court was faced with a certain type of high-profile case.

This era of the suspended declarations stands uneasily with a generation previous. The first case in which the suspended declaration was used was the Manitoba Language Reference. There, the Court found Manitoba’s failure to publish laws in both official languages to be unconstitutional; accordingly, all of Manitoba’s laws were constitutionally invalid. But the Court recognized that an immediate declaration of invalidity, reaching forwards and backwards, would invalidate all laws and acts taken under those laws in the province of Manitoba, creating a “legal vacuum” [753]. The Court framed this concern in terms of the rule of law. By declaring the statutes invalid, an element of the rule of law would be sacrificed, the part that “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order” [749]. And because the rule of law required the maintenance of this order of laws, an immediate declaration according to s.52 would undermine it.

Slowly but surely, the Court extended (or, arguably, replaced) this rule of law justification for suspended declarations. In Schachter, the Court listed three situations in which a suspended declaration would “be warranted”: the rule of law justification in Manitoba Language Reference, where striking down the legislation would “pose a danger to the public”; and where striking down legislation could deprive “deserving persons” of benefits.

So, the situation can be mapped in three general phases–simplified, of course: (1) Manitoba Language Reference, where the rule of law provided the exception to an immediate declaration (2) Schachter guidelines and (3) the Bedford/Carter era, where neither the rule of law or the Schachter guidelines figure prominently in the Court’s analysis. Bedford/Carter are in this respect a far cry from the Manitoba Language Reference. But in Boudreault, the Court seemed willing to at least lurch backwards toward Schachter. It ultimately concluded that “[t]he respondents have not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law” [98]. To the extent that the Court actually ties back its conclusion on suspension to the Schachter guidelines, it seems willing to move away from the idea that a declaration should be suspending merely on the government’s submission. The Court characterized the Schachter guidelines as a a “high bar” [98]. And the Court, promisingly, framed its reason for hesitance in the language of the rule of law: “…in my opinion, a suspended declaration in this case would simply cause more offenders to be subject to cruel and unusual punishment” [98].

So, Boudreault can be seen in two ways. It can be seen as a throwback to a more disciplined application of the Schachter guidelines, which would be a welcome and easy doctrinal change. At the very least, the Schachter guidelines are predictable and are related (if only tangentially) to the rule of law. Or, for those of us who are more positive, Boudreault can be seen as justifying a more robust doctrine of constitutional remedies based on the rule of law, where suspensions are confined to narrow circumstance; the government is forced to deal with constitutional violations and plan for the eventuality that certain laws may be more susceptible to a successful challenge.

Any such courageous doctrinal change should start from the perspective of the rule of law. For example, it strikes me that the third Schachter category—deprivation of benefits—does not create a situation impacting the rule of law at all, and so should not justify a suspended declaration. Situations involving public safety could impact the rule of law, but the bar would have to be exceptionally high. In democratic societies of order, only the most massively disruptive situations of public safety would imperil the rule of law and justify the further imposition of unconstitutional laws. This would be a rarely used category.

Similarly, an allowance for suspensions on rule of law grounds would similarly be narrow. I can envision marginal situations like the Manitoba Language Reference, where a significant portion of the laws on the books are declared invalid, depriving a jurisdiction of a positive order of laws; or where a particularly important law governing some central set of legal relations is declared invalid (an example escapes me). Even this latter suggestion is perhaps a bridge too far, because any law could be “important.” Nonetheless, this rule of law justification would be narrowly confined, significantly more so than the Court’s existing doctrine

Those who favour suspensions might retort that, both institutionally and constitutionally, legislatures are owed deference in remedying constitutional violations. But to my mind, deference does not attach to this point of the constitutional analysis. It is one thing to defer to a government’s laws when determining whether they violate particular constitutional rights. To strike down a government law is not something that should be taken lightly, given the classic countermajoritarian difficulty—this is why stable and principled doctrine is so important. But once the law has been struck down by a court, it is wholly the legislature’s job to solve the constitutional problem. Absent some overriding rule of law concern, it is usually not (and shouldn’t be) the job of courts to patch up laws or give governments an assist through suspensions. After all, Parliament legislates. When it errs, Parliament must fix its mistake. This is its cross to bear.

In this sense, Boudreault is a refreshing change in tenor for a Court that has generally afforded deference through suspensions. One hopes it’s a renewed look to the rule of law.

Statutory Interpretation in Admin Law and the Supreme Court’s Trilogy

Over on Professor Daly’s blog Administrative Law Matters, Professor Audrey Macklin wrote what I would characterize as a confessional: an admission that the law of judicial review in Canada may be beyond repair. What Prof. Macklin proposes, in light of this realization, is a renewed focus on the principles of statutory interpretation, rather than a myopic focus on standard of review categories—a parochical Canadian invention. Prof. Macklin specifically argues that our disagreements should focus on “what ought to count in statutory interpretation, why it ought to count, and how it ought to count.” For Professor Macklin, external considerations such as access to justice and international law should inform statutory interpretation.

I agree with Professor Macklin—to an extent. I see Macklin as making two claims: (1) the rules of statutory interpretation should be used to replace the rigid categories of standard of review and (2) that the rules of statutory interpretation can be massaged to take account of “normative, policy, operational, and other considerations.” The first contention, I think, is desirable. The second, I worry, will lead to more uncertainty, asking judicial review courts to do more than they are designed to do.

Let’s take (1) first. On this front, Professor Macklin finds agreement with many existing allies. Advocates for the Rule of Law, in its submissions before the Court in Vavilov and Bell/NFL, basically made this very point. With submissions expertly argued by Adam Goldenberg, ARL asserted that the Court, in its attempts to simplify the standard of review, had actually made things worse. Instead, ARL argued that the “established tools of statutory interpretation” should be used in a three-step framework to determine the level of deference. First, courts should look to judicial constating legislation to determine the level of deference; explicit direction that exists, for example, in the Federal Courts Act (which, it should be said, was ignored by the Court in Khosa). Second, the decision-maker’s home statute may contain explicit or implicit legislative direction on the standard of review. A statutory provision allowing a decision-maker to grant licences “in the public interest,” if supported by relevant context and purpose, should allow more deference. Finally, courts should look to the specific textual provision under which the decision-maker made her decision. If not contradicted by context, (say, a statutory right of appeal), broad language in this respect should also mean deference.

This strikes me as a good way to proceed. I make similar arguments in a paper to be released in the Western Journal of Legal Studies in January, “Two Myths of Administrative Law.” There, I assert that toying around with presumptions, categories, and even standard of review labels (reasonableness and correctness), should not be the sum of Canadian administrative law. These legal devices should be scrapped, the focus should be on the principles of statutory interpretation, and signals of deference—for example, expertise—should only come into consideration where they exist in statutory text, context, and purpose. I don’t see Professor Macklin as disagreeing with any of this.

At the same time, Professor Macklin takes a first crack at defining the work the principles of statutory interpretation could do in judicial review. She claims that so-called “operational considerations” that influenced the Supreme Court in Alberta Teachers—such as efficiency—also mean that courts should take into account principles of access to justice and international law in statutory interpretation. To Professor Macklin, courts should take “all the arguments” seriously in a given case.

This, I think, is where Professor Macklin’s proposal introduces more uncertainty than it actually solves, and runs afoul of the very basis of the law of judicial review. Her extension seems to extend the task of statutory interpretation beyond its traditional realm of discovering the meaning of the legislature. Instead, she would make statutory interpretation a normative exercise, one that seeks to render an interpretation that best accords with any number of “external” considerations.

But if we are starting from scratch in developing doctrine for the law of judicial review, we should do so in light of that very fact: it is the law of judicial review with which we are concerned. Judicial review is not a free-standing inquiry into the legality of particular government decisions. When governments delegate away power to make decisions, it does so on a narrow basis—to decide which of Party A and B receives Licence X; to decide whether A’s zoning application is legal. This is the run-of-the-mill judicial review case. When courts review these decisions, they are usually bound to the record the decision-maker considered on review. The courts do not move beyond that record, which maps onto the scope of delegative power afforded to the decision-maker. As a result, and by design, the ancient writ of certiorari and the modern act of judicial review are first and foremost designed to “ensure the legality of state decision-making” (Wall, at para 13). Courts are equipped to make those decisions by rules of the record that mandate the production of all information considered by the decision-maker under its statutory mandate. In this respect, judicial review proceedings are designed to be quick and cost-effective.

There are two upshots of this ordering. First are the considerations that should inform the exercise of judicial review. In the Two Myths paper, I argue that such external considerations lack the imprimatur of legislative approval. In other words, they do not exist in the world with which judicial review is concerned. If judicial review is considered primarily with the supervision of state actors—what I call its “policing function”—then it must hew closely to the four corners of a statute. Anything beyond that is a concern for legislative actors, who are legitimately empowered to address broad, systemic concerns such as access to justice because of their particular institutional competencies. Any other positive policy entitlements—a right to access to justice, considerations of normative justice—are second to the immediate statutory context of a decision-maker’s decision in judicial review. That is not to say that these considerations are irrelevant. But they are distinctly second to the goal of a quick determination of legality “on the record.”

But there is a bigger practical concern here, beyond the issue of separation of powers. To my mind, Macklin asks judicial review courts to do more than they are designed to do, from a perspective of information. By using the principles of statutory interpretation to gaze beyond the four corners of a statute and into other complex, external considerations, judicial review becomes more of a legislative act rather than a pure adjudicative one. In this sense, the benefit of the principles of statutory interpretation—that they, as Macklin notes, put us on the same terrain—is lost. For example, what does a presumption in favour of access to justice mean in the context of particular cases? In absence of real information on what would facilitate access to justice in the context of a defined legislative scheme, how do courts make informed decisions on the matter? Even if they could, doesn’t this complicate the narrow and efficient basis of judicial review?

It is no answer to these problems to say, as Macklin does, that courts are informed by policy considerations when they rely, for example, on presumptions in favour of contract or liberty. These presumptions are of a different sort than the type advocated for by Macklin, at least in the context of access to justice. Most notably, they are negative in nature. But there are particular issues that distinguish these traditional presumptions from the sort of rule Macklin seeks to formulate. For example, in terms of contract, the presumption is justified as a policy matter from the perspective of information. Courts, for good reason, assume that parties enter bargains on the basis of mutual gains, which in turn enable social welfare gains. Courts (and legislatures) lack the information necessary to overturn the parties’ agreement and instead impose their own understanding of what would be an efficient outcome; transaction costs of doing so are high because the court lacks information. Macklin’s presumption (in favour of access to justice) is of a different sort; it asks judicial review courts to consider or act in areas where there is a distinct informational deficiency, at least in the context of particular judicial review cases.

The problem of information is not a practical concern that exists in the ether. It is directly related to the roles of various players in our democratic structure. Courts on judicial review are empowered to redress public law grievances caused by organs of the state; no more or less. As a result, they are given the information required to do so on the basis of the record. The realm of legislative action, on the other hand, is broader—and so legislatures are empowered with more information and more resources. None of this is a coincidence.

People might use a laundry list of adjectives to describe my preferred approach: “cramped,” “formalistic,” “Diceyan.” None of this, of course, is an answer. The bottom line: the law of judicial review, and the principles of statutory interpretation, cannot encompass all, or even most, of what we consider good and virtuous in the world. They can only accomplish their narrow but infinitely important goal. Any renovation to the law of judicial review that uses the principles of statutory interpretation cannot forget this.

The Administrative Law “Trilogy”: The Stare Decisis Trap

This post originally appeared on Advocates for the Rule of Law.

This week, the Supreme Court of Canada finally heard the consolidated appeals in Bell/NFL and Vavilov. ARL, expertly represented by Adam Goldenberg, put forward our submissions on the matter, which focus on a return to the basis of the law of judicial review: its statutory character.

During the hearings, one particular line of questioning posed a problem for this argument, which asks the Court to critically analyze all of its precedents, even those pre-Dunsmuir. Justice Moldaver, for example, suggested that one of the parties’ submissions in Bell/NFL would “take us back 30 years.” That comment was made as if it was undesirable to look to the foundations of the law of judicial review. Justice Gascon chided the same counsel for framing his submissions as a “minor adjustment,” suggesting that it was, in fact, a major overhaul. Again, the comment was stated as a decisive fact, acting as a criticism of the merits of the legal position.

This line of thinking, to my mind, is odd for at least two reasons.

First, when the Court granted leave to these cases and consolidated them, it invited a critical appraisal of its standard of review cases since Dunsmuir. Like all of the common law, Dunsmuir is a product of what came before it. Dunsmuir, for example, incorporates CUPE’s generally deferential posture without doing away with the pragmatic and functional factors outlined in Pushpanathan, Pezim, and Southam. The Court’s invitation of a critical appraisal should be taken seriously.

The line of questioning invited by Justices Gascon and Moldaver does not inspire confidence that the Court is serious about a full-blown reappraisal of Dunsmuir and what it contains. It may very well be that the line of questioning was aimed at protecting Dunsmuir from assault, on the grounds that it is not only good law, but workable and constitutionally acceptable law. But I heard no such robust defence of Dunsmuir, and it would be difficult to sustain one given the widespread discord it and its progeny have caused in the lower courts and among the academic community. To my mind, if the Court invited review of Dunsmuir, it should review. Weak appeals to stare decisis are not helpful.

On that note, the line of questioning is odd for a second reason: this seems like the perfect case, rare in the common law system, to tear down the precedent and critically interrogate first principles. I am alive to the concern this raises about reliance interests, certainty in the law, and the other virtues of a strong stare decisis rule. But the law of judicial review in Canada is so derelict of principle and unworkable that the reliance costs on it must be minimal. The costs of advice under the regime are already high, because (1) it undergoes constant change and (2) it is difficult for a lawyer to say to a client, with any acceptable probability, what the outcome of a case would be.

Given the already-high costs imposed by a strict rule of stare decisis in this case, it is a good opportunity to go back to first principles and create a modern law of judicial review. The key touchstones should be consistency with constitutional precepts and workability. But there is a challenge: reassessing the law of judicial review may invite a re-assessment of the foundational principles laid down in CUPE.

CUPE was about a labour board in a commercial context. Today, the administrative state is a much different beast. The same rule of deference formulated in light of the expertise and position of a labour board in the 1970s cannot be applied to the decision of an immigration official to deport someone in 2018. The positions of the immigration officer and the labour board are so vastly different that a law formulated in light of the former, 40 years ago, is difficult to apply to the latter today.

The challenge is for judges on the Supreme Court who were born and bred in the Keynesian 70s to accept another model of judicial review. CUPE is a sort of foil for this bygone era. The conception of administrative law, at that time, was its potential for redistributive social justice, and nowhere was the terrain more fraught than in the economics of labour. Deference to these sorts of decision-makers could be justified as a tool to empower them in the face of conservative judges. But today, administrative law is called on to do much more. Now, there is a worry (Vavilov is an example), of an administrative state that directly impacts the most personal individual rights. Administrative decision-makers can make life-altering decisions that bring to bear the most repressive arms of the state against vulnerable people. This has nothing to do with redistributive goals, the labour movement, or any other social goal. As such, it is difficult to apply the social-justice rationale of deference to these decision-makers.

The new administrative law, conceived as a sort of control on satellite decision-makers, must be attuned to the new administrative state. Accordingly, the judges should not keep themselves to any strict rule of stare decisis. They should review the interaction of any proposed framework with the intricacies of the modern administrative state. Anything less would be a wasted chance.

Lowering Expectations: The Supreme Court’s Standard of Review Cases

Why, sadly, Canada’s administrative law community should probably lower its expectations.

Next week, the Supreme Court of Canada will finally conduct its once-per-decade review of the standard of judicial review. In Vavilov, and Bell/NFL, the Court will hear about a number of issues: the standard of review on questions of law, the role of reasons in administrative law, and the role of so-called “jurisdictional questions,” among others. Many administrative law aficionados will pay close attention to next week’s hearings. I have outlined my proposals for how the Court should handle these cases and judicial review more generally (here, here, and here). But no matter what one thinks about the merits of the law of the judicial review in Canada, I do not think the Court will do anything in these appeals that will affect, in any substantive way, the standard of review.

I take as a given “Daly’s law”: that is, the idea that “the more excited administrative law aficionados are beforehand, the more disappointed they will be afterwards.” Evidence helps us with this conclusion. Most recently, many administrative law watchers had high hopes for the Court’s Tran case last year. Tran was an appeal from a Federal Court of Appeal decision, where the FCA expressly noted the difficulty of applying the Supreme Court’s standard of review precedents on questions of law. But Tran frustrated our expectations by simply saying that its result would be the same under any standard of review.

I do not think we will get a Tran-type conclusion in the Vavilov and Bell/NFL cases; I expect a bit more than that given the Court’s express request for submissions on the standard of review. But I do not think that the Court will do anything exciting or substantive in these appeals. And so, I think we should all temper our expectations.

The Court is notoriously divided on administrative law in general, and the divisions are deep and intractable on foundational questions. This makes it difficult to hope that the Court will come up with a workable and constitutionally justifiable doctrine. For example, the Trinity Western case, while focused on matters outside the direct scope of these appeals, demonstrated the fault lines in how the Court views issues of judicial review. The Court has also divided on the specific issue of jurisdictional questions: see Guerin and CHRC. In those cases, the dissenters viewed the category of jurisdictional questions as fundamental to the Rule of Law. On those terms, it’s difficult to assume there is much wiggle room for the dissenters on the category. What’s more, the Court has divided on the factors that rebut the presumption of reasonableness review. In Groia, Justice Côté would have found that the presumption of reasonableness review was rebutted by the fact that “the impugned conduct occurred in a courtroom…” [166]. This factor was previously unknown to the standard of review framework, and indicates the breadth of considerations that at least one judge is thinking about on the issues. Other cases demonstrate more fundamental problems. In West Fraser, then-Chief Justice McLachlin (with the agreement of five other judges) claimed that the decision-maker in that case was the recipient of the delegation received unrestricted powers because of an “unrestricted” delegation, and so was (presumably) owed unrestricted deference. This is a bold statement that is strikingly at odds with a fundamental concept of administrative law in Roncarelli: there is no such thing as untrammeled discretion. Naturally, dissenting judges found that the enabling statute actually did confine the decision-maker at issue in West Fraser.

The problem transcends administrative law and affects broader issues that define the parameters of the debate. In Mikisew Cree, the Court split over the circumstances in which the duty to consult attached to legislative action. Two judges (Abella and Martin JJ) would have found that the legislative process was “Crown conduct” subject to the duty, despite the fact that in the Westminster tradition, the entire law-making process is immune from judicial scrutiny. Here, we have a deep disagreement about the very nature of the Parliamentary system, one which foreshadows the more specific administrative law problems.

Further, the problems that the Court has to face are broad, and that state of affairs lowers the probability of any workable agreement. The problems range from how courts should select the standard of review (the status of the presumption of reasonableness; the status of the jurisdictional questions category; the role of constitutional questions) to how the courts should apply the standard of review (what is the role of the principles of statutory interpretation?; should courts supplement reasons?). There is no reason to think the Court will create a precedent on any one of these issues, let alone all of them. Yet each of them is vitally important and deeply contested.

The factional stasis at the Supreme Court is a real shame, because now more than ever there is an academic and judicial movement that has converged on the idea that at least some reform of the law of judicial review, even at the margins, is highly desirable. Very few people are happy with judicial review in Canada. This is an important opportunity to fundamentally question the foundations of judicial review in Canada, to create a workable framework that deals with the developing Canadian administrative state.

So, if I had my way, I would take the opportunity and start from scratch. I once believed, naively, that the Dunsmuir framework was workable. A lot of people think, with good reason, that only the extensions on Dunsmuir that have caused the most academic consternation—the presumption of deference introduced in Alberta Teachers and entrenched in Edmonton East; the completely unjustified “supplementation of reasons” doctrine that the Court created out of whole cloth in Newfoundland Nurses. Of course, these doctrinal innovations have made the law unworkable. But Dunsmuir itself is a problem because it creates a sort of centrifugal force with which the Court must contend. Its categories and factors will remain, even if Edmonton East, Newfoundland Nurses, and Alberta Teachers are expressly overturned. The categories and factors are intractable precisely because there is no sense of the relationship between them on first impression. They are not necessarily connected to what I have before called the fundamental premise of administrative law: its statutory character. It would be better for the long-run doctrinal clarity of the standard of review framework if the Court began its analysis from this fundamental premise, while critically questioning whether these categories and factors are necessary at all.

But because the Court cannot even find agreement on more mundane points, it pains me to predict that Dunsmuir will remain largely unscathed. That prospect disappoints me given the opportunity the Court has created for itself. But if nothing else, administrative law scholars will have another decade of work.