Taming the Administrative State

Two books in the administrative law literature

In the spirit of the upcoming review of Dunsmuir by the Supreme Court, I’ve read two important books about administrative state skepticism in the United States: Phillip Hamburger’s The Administrative Threat; and Joseph Postell’s Bureaucracy in America: The Administrative State’s Challenge to Constitutional GovernmentBoth books address the constitutionality and necessity of the “administrative state,” and I see some of these conclusions transferring to the Canadian context. What follows is my tortured look at the problems of constitutionality and necessity with a Canadian twist.

Hamburger’s short, pithy text is a condensed version of his other important work, Is Administrative Law Unlawful? The Administrative Threat starts from an historical perspective and builds a sustained response to the administrative state. Hamburger analogizes modern administrative power to the English prerogative power. This prerogative power was famously abused, it was absolute, and it operated outside of the law—it was, according to Hamburger, “extralegal.” To Hamburger, the Star Chamber is the quintessential example of such power.

Hamburger argues that the US Constitution from the beginning barred such prerogative power, repackaged in “administrative” terms. Articles I (legislative power exclusively in the Congress) and III of the US Constitution (judicial power exclusively in the courts), block “irregular” or “extralegal” power, according to Hamburger. When decision-makers create binding rules, they operate outside of the constitutional structure. The worry is more pronounced when decision-makers combine rule-making (legislative), adjudicative (judicial), and investigatory (executive) functions. From a separation of powers perspective, we should be  concerned about such power concentrated in the hands of bureaucrats.

On the other hand, Postell’s book attempts to place the administrative state and its challenges in the context of American constitutional history. Postell argues that “administrative state skepticism,” far from being a new, radical movement, is entrenched in the idea of American constitutionalism. Similarly, to Postell, modern administrative law insufficiently addresses the threat of the administrative threat and its combined executive, judicial, and legislative power. Postell’s review of history demonstrates how Americans have dealt with the threat of administrative power, if imperfectly.

What do these books have to say to Canadians? The books basically assault (1) the constitutionality of the administrative state and deference to it and (2) the necessity of the administrative state. These arguments can transfer, if uneasily, to Canadian law. It’s worth mooting them out to see where they go, if we view a generalized notion of the separation of powers as a worthy organizing principle of the legal system.

Canada’s separation of powers is in part rooted in the judicature provisions of the Constitution Act, 1867. Section 96 protects the role of superior courts of inherent jurisdiction. Parliament cannot divest these courts of their core powers, while non-core powers can be divested if they were not exercised exclusively by superior courts in 1867, or if they were but the broad policy context of the decision-maker transforms the decision-maker’s function (Reference Re NS Tenancies Act).

It could be tempting in the Canadian context to say, as Hamburger does in the American, that the vesting of power in administrative tribunals somehow deprives the constitutionally protected courts of their powers of adjudication and interpretation of law. At first blush, there is no case for this in Canada, because the “core” of s.96 powers is drawn narrowly, and clearly law adjudication and application is not part of that core. For example, the Federal Court is a statutory court created under s.101 of the Constitution Act, 1867.  The Supreme Court itself is a mere “s.101 court.” Yet both courts clearly have the power to interpret and apply law, and that power does not derogate in any meaningful way from the power of s.96 courts to do the same. If the logic follows, therefore, there is no constitutional problem with similarly constituting administrative tribunals.

But this is an unsatisfying conclusion, because there is a meaningful distinction between s.101 courts, for example, and administrative decision-makers. Most importantly, the former can stand in review of the latter (ie) the Federal Court to the Refugee Appeal Division. And there are certain principles that thelcourts must uphold–judicial independence, the Rule of Law, the list goes on. In upholding those principles in cases, the courts must interpret and apply law against the delegated decision-maker. One has a supervisory function over the other, a constitutional role recognized as a part of the Rule of Law. On this question, the distinction is not between s. 96 courts and all other decision-makers, but rather between supervisory courts and other statutory creations.

So, even if interpretation and application of law is not a core function of courts, it is a function on judicial review conducted by courts. This function of law  interpretation and application is something quintessentially judicial. The transfer of these powers to statutory institutions, created by the government that adopts the laws under interpretation, seems to remove something from the uniformity required by the Rule of Law and implicit in ss. 96 and 101. Law that is interpreted by a thousand statutory creations cannot be a uniform law interpreted and enforced across the legal system by courts with a constitutional connection. If this is a constitutional problem, it would require a recognition that s.101 courts (and perhaps other supervisory courts) have some higher constitutional purpose alongside s.96 courts. Such an argument is not new,  and in my view, it is implicit in the Rule of Law, the requirements of judicial review, and legal uniformity. Delegation (read: divestment) of the powers of s.96 and 101 courts would, on this account, raise constitutional concerns.

This is a rough-and-ready attack on delegation, but it is admittedly not where the debate currently is in Canada.  Instead,  Professor Glover recently asserted that the administrative state could be constitutionally mandated.  But the same concerns I’ve noted above are relevant here. Apart from whether the administrative state is constitutional in the first place, the effect of constitutionally entrenching the administrative state (whatever that term means) would be the establishment of at least some adjudicative bodies alongside s.96 courts. Yet the Supreme Court has said that legislatures and Parliament cannot, in effect, constitute s.96 courts (see McEvoy, at 719). More importantly, it would be an odd constitutional mandate that requires the legislature to maintain an aspect of the Constitution through ordinary legislation, putting it in the realm of majority control. This is the opposite of what a Constitution is about–putting certain matters beyond the reach of the majority.

If we accept that there may be constitutional concerns with delegation, deference to that delegation should similarly raise problems. As Hamburger notes, deference has a little explained practical effect. When courts defer to administrative decision-makers in Canada, they effectively impose an onus on claimants to rebut a presumption of legality. Government lawyers have the upper hand—the decisions of their own statutory creations are what they defend. This raises a question of doctrinal independence, though emphatically not independence in the traditional, judicial sense. On questions of law, as Dunsmuir notes, a core function of s.96 courts (which extends to all judicial review courts) is the enforcement of that law against administrative decision-makers.  But deference to the administrative state dilutes that enforcement function, sacrificing it at the altar of expertise, while giving the government an upperhand. The concern here is that the decision under review is viewed as presumptively legal when there is no reason to presume it so.

This raises the necessity question, and whether administrative law and its doctrines can save us from the constitutional worries associated with the administrative state. Or perhaps there is another option. The books raise the prospect that we may not need the administrative state if we embrace certain constitutional principles.

To Postell, the administrate state is broken, and we do not need it in its current form. More importantly, administrative law can’t save us. As I have written before, and as Postell demonstrates, the tools of delegation and deference are used as quintessentially political tools. From the New Deal to the conservative counter-revolution, deference evolved as a way for governments to impress on courts their political will—their desire to limit the supervisory function of courts. These tools have operated at the same time as the administrative state has grown, an insatiable beast eating up more basically adjudicative and legislative functions.

Yet, the answer is not necessarily a strict politics-administration dichotomy. Instead, Postell puts forward the idea of a “constitutional administration,” where representation and republican protections are the organizing principles of the administrative state, rather than rule by experts.  Postell points out that contrary to scholarly “consensus,” antebellum America was not a place of robber-barons and laissez-faire, but instead a place where this constitutional administration flourished. There was an administrative state, and much of it operated at the state and local governments, subject to strict judicial review. At the national level, a stricter separation of powers governed, based on principles of non-delegation of legislative powers and strong-form judicial review. These forms of regulation, though based on simple principles rather than variable forms of expertise, accomplished the policy goals of the era.

In contrast, modern administrative state sympathizers argue that complex problems require complex solutions and that an expert administrative state is required to efficiently manage public policy. First, one has to seriously query whether the administrative state any longer accomplishes this goal, if it ever did. Expertise is not empirically demonstrated by administrative state defenders. And not all administrative tribunals are “flexible” (whatever that means), quick, and cost-effective, like the Court seemed to think in Edmonton East .As an example, the wait time for a refugee hearing before the Immigration and Refugee Board is currently 20 months.

More fundamentally, and as Richard Epstein points out, a complex society does not necessarily require complex rules in a complex bureaucracy. Simple legal rules based around the common law can transform and adapt to exigencies of modern society while similarly protecting individual liberty. Further, much of the administrative state is executive action that could be completed by the executive itself, as Hamburger notes. If the legislature stays in its lane by adopting clear rules, and the executive completes its executive functions, the combination of powers in the administrative state is avoided.

None of this should be construed as a full acceptance of either Hamburger or Postell’s thesis in the Canadian context. A simpler system of administrative law based on republican principles is not doable in Canada. But both authors give us something to think about. It might be worthwhile thinking about taming the administrative state.

CHRC: The Presumption of Reasonableness and the Rule of Law

Worries about the upcoming review of Dunsmuir

The Supreme Court of Canada released a number of decisions in the last few months on standard of review. Many of these decisions are probably noise rather than signal, in the language of Professor Daly. One, however, sheds some light on an important issue before the SCC’s revisit of Dunsmuir: CHRC v Canada (Attorney General), 2018 SCC 31 [CHRC]. What is the role of legislative context in rebutting the presumption of reasonableness?

CHRC says there is no role. This is inconsistent with the Court’s own cases, and doctrinally, it subverts the role of courts in seeking legislative intent to determine the standard of review. This is another milestone in the Court’s tortured administrative law jurisprudence, and it brings no hope for the upcoming review of Dunsmuir.


CHRC involved two human rights complaints before the Canadian Human Rights Tribunal [CHRT]. These complaints centred around the Department of Indian and Northern Affairs’ previous practice of “enfranchisement.” Under this practice, the government stripped individuals of their Indian Act status and denied the children of these people from registering as status Indians—for example, a child born to a status Indian mother who married a non-status man. In response to this discriminatory policy, Parliament enacted remedial provisions which enabled persons affected by the policy to re-register under the Indian Act.  Further reforms granted registration eligibility to children affected by the enfranchisement policy.

The two complaints were centred around the amended registration provisions in the Indian Act, which need not be exhaustively described—in essence, the claimants argued that the remedial provisions were insufficient because they permitted continued discrimination on the basis of enumerated grounds [1].  The claimants framed their challenge under s.5 of the Canadian Human Rights Act [CHRA], and alleged that the Department of Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services.

Both complaints were dismissed on the basis that the claimants’ challenges were legislative challenges to the status registration requirements under the Indian Act. The CHRA confers remedial authority to the CHRT to render conflicting legislation inoperable, but a remedy could only be granted in circumstances where a discriminatory practice has first been established [56]. But the CHRT concluded that “legislation per se” was not a discriminatory practice in the provision of services, and for that reason, the complainants’ cases could not constitute a discriminatory practice.


The Supreme Court majority decision was written by Justice Gascon. To the majority, the CHRT was “called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA” [30]. As a result, the Court reasoned that this was an issue of home statute interpretation inviting the presumptive standard of reasonableness.

The majority next considered whether the presumption was rebutted, concluding that the case did not fall into any of the categories for correctness review established in Dunsmuir. It then turned to the so-called “contextual approach” to determine whether it rebutted the presumption of reasonableness review. That “approach” was essentially a carry-over from the pragmatic and functional era, consisting of four factors which could indicate a different standard of review than the one indicated by the presumption: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; (4) the expertise of the tribunal.

The majority noted that a presumption of reasonableness is designed to “prevent litigants from undertaking a full standard of review analysis in every case” [45]. Context, then, should play a “subordinate role”, and should be “applied sparingly” [46]. Putting context in its place, to the majority, would forego the uncertainty and debate over the standard of review.

The majority emphatically disagreed with the opinion written in CHRC by Cote and Rowe JJ, which noted that correctness would apply wherever the “contextual factors listed in Dunsmuir point towards correctness as the appropriate standard” [73]. Instead, the majority noted that where the presumption of reasonableness applies, an adoption of a contextual approach would “undermine the certainty this Court has sought to establish in the past decade” [47]. The majority concluded that “…dissatisfaction with the current state of the law is no reason to ignore our precedents following Dunsmuir” [47]. On the facts, the majority nonetheless applied the contextual analysis and concluded that the presumption of reasonableness was not rebutted.

In a concurring opinion, Rowe and Cote JJ disagreed with the majority’s obiter comments on the contextual approach. They reasoned that the approach to standard of review set out in Dunsmuir is “manifestly contextual in nature” [78]. To Rowe and Cote JJ, a contextual analysis must be undertaken where the categories inviting correctness review do not apply.  On the facts of the case, Rowe and Cote JJ would have found the presumption of reasonableness rebutted because of an absence of a privative clause and the potential for conflicting lines of authority because the CHRT does not interpret the CHRA in a discrete administrative regime [90]. Brown J concurred on similar grounds.


In my view, the two concurrences clearly had the better of the argument here. First, the majority’s approach continues a hard-line approach to the presumption of reasonableness that is inconsistent with Dunsmuir and post-Dunsmuir cases. Second, a presumption of reasonableness that is never rebutted is contrary to the concept of judicial review.

It is unusual—in the strongest sense of the term—that the majority rooted its endorsement of the presumption of reasonableness in terms of precedent. It noted, for example, that resort to the contextual approach would “undermine the certainty this Court has sought to establish in the past decade.” This is an unexpected remark. The Court has done much in the last decade on administrative law, but establishing certainty is not on the list. Putting aside all of the other issues—which are many—the problem of context provides a good example of the Court’s odd inability to apply its own precedents.

Legislative context is integral to determining the standard of review because legislatures, not courts, can set the standard of review. Dunsmuir recognized this when it held that “[T]he analysis must be contextual” [64].  This is about as clear as it gets for the Supreme Court in administrative law.  As Justice Bastarache, one of the authors of Dunsmuir said in the recent Dunsmuir Decade series, none of the categories inviting a particular standard of review—including the presumption of reasonableness—were meant to be set in stone. Dunsmuir only said that deference would “usually result” when a decision-maker interprets its home statute [54].

And this is how the Court applied the presumption of reasonableness in subsequent cases. There are a number of cases in which the Court looked to context to determine whether the presumption was rebutted; by my count, at least the following: Entertainment Software Association v SOCAN, 2012 SCC 34; Rogers v SOCAN, 2012 SCC 35; Marine Services International v Ryan Estate, 2013 SCC 44; McLean v British Columbia (Securities Commission), 2013 SCC 67; Tervita Corp v Canada (Commissioner of Competition), 2015 SCC 3; Mouvement Iaique Quebecois v Saguenay, 2015 SCC 16; CBC v SODRAC, 2015 SCC 57; Edmonton (City) v Edmonton East (Capilano) Shopping Centres, 2016 SCC 47 (though noting Justice Karakatsanis’ skeptical remarks regarding the contextual approach); Barreau de Quebec v Quebec (Attorney General), 2017 SCC 56; Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4; Groia v Law Society of Upper Canada, 2018 SCC 27.

I repeat these cases for dramatic effect. It is an example of the Supreme Court saying one thing and doing another—something some judges of the court recognized was a risk in administrative law in Kanthasamy [112]. In CHRC, there is no explanation for why context should be abandoned, especially in light of all of these precedents and Dunsmuir’s clear, unequivocal statement.  Shouldn’t certainty be one of the underlying goals of doctrinal reform, particularly in this troubled area? Changing approaches year-to-year does not provide any guidance to courts and litigants.

Quite aside from the lack of consistency in the Court’s standard of review framework, a presumption-only approach also frustrates the search for legislative intent. “Legislative context” as Justice Brown noted in CHRC is really just a proxy for determining legislative intent. When one speaks of “legislative context,” one means statutory indicators that set the standard of review implicitly: statutory rights of appeal, signs of concurrent jurisdiction, privative clauses, statutory indications of purpose, and the like. Or, perhaps there is explicit legislative guidance on the standard of review. It was always understood that these signs of legislative intent should bind courts; this is just an implication of the hierarchy of laws, under which courts must respect law absent constitutional objection.

The presumption-only approach in CHRC raises profound challenges to the task of courts on judicial review to determine legislative intent. The challenge can be framed in the classic “rules vs standards” debate in law and economics terms. The “rules versus standards” debate probably impacts every area of law, because laws and doctrine can be framed as either hard-and-fast “rules” or flexible “standards.” Rules have certain benefits—cost savings are achieved because the rule applies to the mass of legal situations, and there is no need to conduct a case-by-case investigation. But rules can be overbroad—if they are not appropriately tailored, they can apply in situations where the underlying justifications for the rule do not exist.

The presumption of home statute interpretation can be viewed as an overbroad rule, because on the happening of a certain event (home statute interpretation), the content of the law is defined (deference). It is rooted in the justifications of expertise and legislative intent.  But because the CHRC approach tells lower courts not to look to context, we simply never know if the legislature intended a standard of review other than the one indicated by the presumption. The presumption could apply in cases where the legislature did not intend reasonableness, even though the Dunsmuir factors (which could be understood as standards) implicitly set a different standard of review.

Not to put the point too strongly, but if this is the case, what is the point of a standard of review analysis? Couldn’t we create some sort of computer program in which cases are filed and the standard of review is selected by the computer? The point of the Dunsmuir factors is individual tailoring—they are designed to be applied by courts in cases where a statutory indication of legislative intent is evident. This requires some human appreciation of what an enabling statute implicitly sets the standard of review to be. But if judges simply say “reasonableness” all the time, the role of courts on judicial review is reduced to rote copying of a paragraph saying that deference applies, even where it should not.

This goes to the point of judicial review. The role of the courts on judicial review, as noted in Bibeault, is so important that it is given constitutional protection [126]. That role, rooted in the Rule of Law, is to authentically determine what the legislature intended the standard of review to be. When the Court binds itself to its own presumption–simply an evidentiary device–it subordinates its constitutional role to the police the boundaries of the administrative state.

The systemic costs of the CHRC approach are  exacted in the Rule of Law and against the constitutional role of the Court. As Leonid once wrote, judicial review can be understood as a cost-benefit analysis. While the costs saved through the presumption may be high, the potential costs of imposing the wrong standard of review could lead to more administrative decisions being upheld than what the legislature intended. The effect is case-by-case, an administrative state turned loose, increasingly unmoored by law. CHRC sanctions this unleashing of the administrative state.

This is not to say that the reasonableness review urged by CHRC is inconsistent with the Rule of Law (though I think there is a case to be made on that front). But expanding the class of cases in which reasonableness should and does apply, when that expansion is not mandated by law, presents a serious challenge to the Rule of Law and the role of courts in enforcing it.

CHRC worries me on this front. It demonstrates that the Court is not looking to the underlying constitutional precepts of judicial review. It does not seem to have seriously considered the costs to its approach. Nor is it even attempting to distinguish its own precedents in creating its new approach. Observers should worry about where the Court’s mind is going in advance of its planned review of Dunsmuir.

SCC Skepticism

In a recent piece in Maclean’s, Adam Goldenberg explains why the Supreme Court of Canada (SCC) does not suffer from the same partisan interest the Supreme Court of the United States (SCOTUS) does. He lists three main reasons: (1) the nature of partisanship in the US; (2) the American conservative movement’s incubator for legal talent; and (3) American political parties galvanizing support on the strength of controversial court rulings. I accept all of these reasons and invite those interested to read Goldenberg’s piece.

But one more should be added, without which the story is incomplete: American citizens know where law is made.  They realize (even without knowing the legalities) that winning a constitutional debate in court wins the democratic debate for all time.  The matter is put beyond the reach of the regular democratic process. Canadians should be more critical of this reality in our own country.

Two forces have led us to this point. The first is both Canada and the US courts do not shy away from deciding controversial issues. In Canada, Bedford and Carter dealt with prostitution and assisted dying, respectively. In the United States, Obergefell dealt with same sex marriage. The fact that courts often delve into these issues (or, as defenders of the courts would say, are forced into these issues by the nature of an entrenched bill of rights) makes them a lightning rod for political attention.

At the same time, opinion polls in the United States show that Americans have record low confidence in their political institutions, and Canadians are no different. Confidence in government is at all-time lows. We see this in the context of Aboriginal law, where Aboriginal groups have moved to the courts as the primary vehicle by which they can vindicate their rights. One can surmise that they have done so because of the historical ineptitude of the Government of Canada.

These forces together understandably cause citizens to make a choice. Recalcitrant politicians and a lack of confidence in institutions? The slog of convincing one’s fellow citizens? Or, a sweeping court declaration which forces legislatures to respond?

In the US, citizens largely made the latter choice to resolve their plights. Justice Antonin Scalia remarked in Planned Parenthood v Casey that the SCOTUS, rather than legislatures, were increasingly subject to intense political pressure by both sides of hot-button issues—in that case, abortion. The letters, comments, and protestors directed to the SCOTUS, not the legislatures, was an odd sight to Justice Scalia, who viewed the development skeptically. To Justice Scalia’s mind, because the American people “are not fools,” they recognized that the SCOTUS had become the leading institution where these value-laden issues were decided.

While Goldenberg notes that much of this political attention focuses on what the original meaning of the US Bill of Rights means in modern America, I think this overstates the case. The political attention is just that, naked politics, not shrouded in any legality. Many people want the court to achieve their explicitly political ends.  As for originalism, originalists have not held a majority of the US Supreme Court, at least in the last twenty years. Justice Scalia himself was known as a fiery dissenter. For example, under the 8th amendment (cruel and unusual punishment), the SCOTUS developed a profoundly non-originalist test—the so-called “evolving standards of decency” approach. While Justice Kagan’s point that we are all originalists now may be true, it is not true that originalism has been a wholly successful legal project in the United States.

No matter what one thinks of originalism, it provides a limiting principle on otherwise free doctrinal reign. But because it has not been embraced consistently in the US, and no other real principle has come forward, the political parties have latched on to the SCOTUS nomination process as a means to vindicate their particular versions of the good. Since the Bork confirmation hearings, both parties in the US have used the process because they know its consequences. They know that getting the “right” people on the Court will do far more to change laws than simply electing people to the legislature. We see this sort of discussion now with the retirement of Justice Anthony Kennedy, and the ludicrous proposal of “court-packing” to block a Republican nomination.

The Americans have gone too far, and Goldenberg rightly decries this development. But one has to ask whether it is all that bad given the stakes. People understandably want a say in the laws that govern them. If the SCOTUS takes a bigger piece of the pie of the law-making process, then citizens should have the right and the responsibility to campaign on “the court” as an issue.

In reality, Canada’s SCC is just as central in the Canadian polity as the SCOTUS is in the American. Despite the Court’s recent ruling in Comeau, the test to revisit previous precedents is fairly relaxed, and so litigants understandably invite the SCC to do so. This approach invites members of the Court to decide when, according to them, a particular precedent no longer jibes with modern times.  Whatever the strength of the Court’s stated commitment to living constitutionalism, it generally supports its “ideological sex appeal,”   viewing its role as deciding what is best for Canadian society. As Leonid pointed out in a previous post, the SCC has an ideology, but it is probably not evident to most.

A good example is the SCC’s opinion in Saskatchewan Federation of Labour. There, the SCC majority spoke of giving “benediction” to the right to strike. The full quote by the SCC majority is instructive: “[T]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction” [3]. In this example, it was the SCC that decided that now, rather than some past time, was the right time to expand a constitutional right, forever removing it from the realm of democratic debate. This is a political conclusion at heart, more an assessment of what modern times demand rather than what the law does.

And so, it is understandable that political groups should want to have a role in moving the Dworkinian Hercules. But as Goldenberg points out, Canadians have not latched on to these developments as a political matter. In fact, many of the criticisms I’ve advanced to the Saskatchewan Federation of Labour case are common in the US, but less common in Canada. Canadians seem to be  sluggish in response to these tendencies in our own SCC. I can’t speak to why this is; but perhaps it is true to say, as the National Post did, that Canadians are simply “different” than Americans—more trusting of government institutions.

In light of the stakes, Canadians could learn from Americans in taking an active, critical interest in what the SCC does. While I do not advocate a full-blown American approach to judicial nominations, there are various ways Canadians should respond to this phenomenon. Justice Scalia’s prescription was a rigorous application of original meaning originalism, which he thought was the antidote to the excesses of living constitutionalism. I am partial to this approach, but I need not argue this point to make the following assertion: Canadians should first fully reckon with what the SCC is actually doing, whether one thinks its good or bad. If the SCC makes law, as so many legal realists believe, we should hold them to the same standards we hold legislatures. We should, in short,  become Supreme Court skeptics, rather than fawning admirers of our nation’s highest jurists.

This is a distinctly second-order response to the issue, but the most realistic one in the intellectual and legal climate in which we find ourselves.  Canadian academics certainly engage vigorously with SCC decisions, but the extent to which this filters into the larger society (or the extent to which it is representative of all potential critiques) is an open question. We should be concerned with fostering a healthy skepticism of the SCC, similar to the skepticism we hold for legislatures.

This means fostering an open climate of academic, cultural, and political discussion about the SCC, and viewing judges as humans, rather than celebrities—no more capable of coming to conclusions about the nature of human rights than any Joe or Jane Six-Pack. This is a more radical proposition than one might think; consider Leonid’s comments in his recent post about New Zealand’s anti-court criticism bill.

This could also involve a more open nomination process. I saw nothing particularly wrong with the selection process of Justice Marshall Rothstein. His “confirmation” hearings, while in reality non-binding, at least gave those interested a look into the mind of a man who would serve on the SCC. We can have these hearings without devolving into an American three-act-play, or a challenge to the independence of the institution. The fact that Justice Rothstein’s hearing was a model of decorum is an example of this working well.

Goldenberg’s piece underlines the problems with the American approach, but I think it paints far too rosy a picture of our courts.  The Americans understand the consequences of their system and are taking part in it. Canadians, as Goldenberg seems to admit, do not. This is not a fact of which we should be proud.



Trinity Western: Is this the price of good doctrine?


In Trinity Western, the Court confirmed (to undoubted cries of agony) that its approach to judicial review of administrative decisions implicating Charter rights, set out in Doré, is nominally still good law. But in application, the Court significantly changed Doré.  It applied the typical tests developed in the context of constitutional challenges to legislation, not the new approach set out in Doré. One is forced to ask whether the ambitious Doré project worked out, or if it is one more example of the Supreme Court saying one thing and doing the opposite.

As a refresher, Doré held that the typical “two-step” approach to Charter adjudication does not apply in the case of an administrative decision engaging Charter rights. The typical approach, to the Court, was an awkward fit to the varied context of administrative decision-making [6]. Instead, the Court’s new approach started from the unassailable proposition that all administrative decision-makers are bound by law, most notably the Charter. Because administrative decisions are “always required to consider fundamental values” under the Charter, [35] a decision-maker is supposed to balance “Charter values with the statutory objectives” [55].  This was its answer to what courts should do when administrative decisions “implicate” Charter values [34].

On judicial review, the question was whether the balance was proportionate, nothing more or less. In effect, the Court merged administrative and constitutional review. But importantly, Doré said nothing else on when a Charter value arises, who has the burden of demonstrating the application of a Charter value on the facts, or what test a court applies to determine when a Charter value is engaged.

Specifically, the Court did not say that the tests which apply to Charter challenges of legislation apply in the context of administrative discretion. For example, Doré did not consider whether the typical test for s.2(b) of the Charter (the right at issue in Doré) applied on the facts.  While this may be because the test for freedom of expression is quite permissive, I think there is something else at play. The Court did not explain how a claimed Charter value becomes constitutionally cognizable in the context of a case. In fact, arguably, the application of the typical Charter breach tests would be contrary to the Doré project; the Court expressly said that its “more flexible administrative approach” was “more consistent with the nature of discretionary decision-making” and its varied contexts [37]. The application of court-made tests would be contrary to the supposed “deeply democratic” nature of Doré, which embraced a diffused form of constitutional decision-making, rejecting the idea that courts should undertake a de novo review of constitutional values on judicial review [51].

In the Court’s next case, Loyola, it introduced a new requirement.  Loyola concluded that the first question in the case of a constitutional challenge to the exercise of discretion is “whether the decision engages the Charter by limiting its protections” [39]. This first step was a prerequisite to a consideration of whether the statutory objectives and Charter rights were proportionately balanced by the decision-maker.  But this “preliminary question” was not alluded to in Doré. In other words, the Doré Court did not make it a prerequisite to determine whether a right was “limited.” Doré used the term “implicated.”

This might be semantic, but I tend to think otherwise. There is a qualitative difference between a right being “limited” and a right being “implicated.” The former implies a prima facie assessment of merit—an analysis of whether there is some element of disproportionality. On the other hand, rights can be implicated without a finding of a limitation requiring justification. In fact, the Court put the question in Doré as which approach to apply when “a party argues that Charter values are implicated on judicial review” [52] (my emphasis). Implication seems to simply mean an argument.

In a likely attempt to make this distinction clearer, lower courts after Loyola added a new bug: the application of the tests typically used by courts to analyze constitutional challenges to legislation.  In many ways, this is an understandable extension on the Loyola limitation requirement; these tests provide some doctrinal method by which to determine if a right is limited requiring justification.

Take E.T. v Hamilton-Wentworth District School Board. The context was a freedom of religion claim against the decision of a school board. The typical test to determine a freedom of religion infringement under s.2(a) provides that: (1) the claimant must demonstrate that he has a sincere religious belief (2) the claimant must show that the impugned law interferes with these beliefs in a manner that is more than trivial and insubstantial (see Hutterian Brethren, at para 32). The Court of Appeal for Ontario concluded that while the claimant made out a sincere religious belief (the subjective component of the test), the claimant failed to satisfy that the infringement at play interfered with that sincere belief [33]. Justice Sharpe concluded that “[a]s I have found no interference with the appellant’s freedom of religion that would engage the protection of s.2(a), it is unnecessary for me to consider whether, under the Doré/Loyola framework” the decision was reasonable [35]. While Lauwers and Miller JJA concurred in result with respect to the first part of the framework, they dissented in the reasoning, pointing out a number of challenges with the Supreme Court’s framework–and actually declining to apply the second step of the framework at all. But they did not dissent on the bifurcated nature of the analysis, and at any rate, the comments on the framework were likely obiter. For the record, E.T. does not stand alone.

In Trinity Western, the Court conducted the same analysis as in E.T. It first cited the two-step test for freedom of religion claims [63], and then concluded that “[i]f, based on this test, s.2(a) is not engaged, there is nothing to balance.”

E.T. and Trinity Western basically introduce the typical bifurcated Charter analysis which applies to legislation to the judicial review context. A right must be engaged/infringed before moving to the s.1 justification analysis.  But this was not what Doré prescribed. It seemed to introduce a more holistic exercise, based around proportionality. In this way, Trinity Western seems like something qualitatively different than the balancing test employed in Doré—even if it does not embrace Oakes fully. In fact, it seems closer to Multani, a decision invoking the typical Charter tests applied to legislative challenges. That case predated Doré, and was roundly criticized by the Court.

All in all, this is good news for critics of Doré, but not for the predictability of the law on the whole. Doré was a dog of a decision, and much has been written criticizing it.  I have previously attacked Doré because it undermined the purposive approach to constitutional interpretation, and the symbiotic relationship between the tests developed in particular Charter provisions and the Oakes test. In fact, this was a feature of Rowe J’s opinion in Trinity Western. Other critics abound.

Perhaps this is an example of the law working itself pure.  Doré was unworkable, so lower courts (and the Supreme Court itself), simply relied on the existing tools of constitutional interpretation. This avoids many of the problems with Doré pointed to by critics, including the indeterminacy of a Charter “value” and what constitutes appropriate “balancing” under the Doré test.  The development also introduces a screening device for Charter claims. While all decision-makers have a requirement to consider Charter arguments, there should be no requirement to conduct a proportionality analysis in every case where a litigant invokes the Charter, because the Charter simply may not arise on the facts. In short, the approach puts the focus back on specific Charter rights and their purposes.

At the same time, Doré was supposed to solidify a completely revised relationship between administrative law and the Charter [30]. It was supposed to be a reflection of the anti-Diceyan approach to administrative law, allowing administrative decision-makers to “infuse” Charter values in the context of their statutory context and expertise [29]. Judicial review courts were not supposed to impose their understandings of constitutional law, their own tests, on administrative decision-makers.

I see this as yet another example where the Court has failed to clearly instruct lower courts and litigants. This is its modus operandi in administrative law. It fails to pick a lane and stay in it, and accordingly, it routinely says one thing and does another. Doré is no different—it counsels a merger of constitutional and administrative law, yet in practice it retains the classic approach it derided in Doré.  Lower courts are, understandably, relying on the analysis with which they are more familiar. A half-hearted balancing approach which is unclear on what must be balanced is unhelpful.

I am firmly on the side of letting Doré die. Its problems are evident, and the reliance interests are minimal—especially given the movement in lower courts and Trinity Western. But whatever the Court does with the case, it should do so convincingly. Doré is (almost) dead, but it comes at the cost of predictability. Is this the price of good doctrine in Canada?


A Respectful Dissent From the Khadr Consensus: Ward Revisited

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, “the restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe.” This is doubly true respecting violations of rights and freedoms.

Despite these difficulties, most observers have made near-conclusive and wide-ranging claims about damages in the context of the Khadr case. For example, Prime Minister Justin Trudeau has argued that $10.5M is the invariable cost, in this case, of a Charter of Rights and Freedoms violation. Prof. Audrey Macklin similarly argued that the settlement is justified because the Government of Canada’s actions were “morally reprehensible”; and what’s more, a damages award at trial would have “dwarfed” the settlement figures. Prof Craig Martin simply argues that a restoration of “Canadian values” justifies the Khadr settlement. Other examples abound.

Whether the settlement and its quantum are justified in comparison to a damages award at trial is a fraught question. There are no easy answers provided by the law of constitutional damages. Yet the observers above reason from political premises about the importance of the Charter to Khadr’s “human rights” to wholly justify the settlement, without considering the legal justifications and difficulties associated with awarding Charter damages in this case. Indeed, much of the analysis has not engaged with Ward v Vancouver (City), in which the Supreme Court of Canada discussed the legal considerations directly relevant to Khadr.  In this post, I use the Ward analysis to critique two of the main claims used to support the settlement and its quantum: (1) that a sizeable settlement is appropriate based on the circumstances (2) quantum: that a damages award at trial would have “dwarfed” the settlement figures. Instead, it is just as likely that a damages award may not have reached $10.5M at all.

As we shall see, uncertainty is the watchword. That is what the law, not politics, prescribes–and why I dissent from the orthodoxy on this issue.

I will start with the former claim.  Let’s begin with what is true. The Charter must apply for a damages award to be available. Contrary to Conservative MP Erin O’Toole, the Charter does apply extraterritorially in this case. While there is a complex set of cases on Charter application abroad (see the recent episode of The Docket for a solid analysis), the Supreme Court held in Khadr 2010 that the Charter applied. That is now a decided legal point. The fact that Khadr could be characterized as a jihadist is also irrelevant for the purposes of Charter application—constitutional rights exist to afford protection  to those who the majority may not consider worthy of protection.

But it is not enough for the supporters of the settlement to draw a direct line from a Charter violation to the settlement. In Ward, the Supreme Court held that a complex analysis is required after a Charter breach is found in order to determine whether damages are an “appropriate and just remedy,” as per the text of s.24(1) of the Charter. The Court outlined the functional justifications for a Charter damages remedy which a claimant must trigger in order for damages to be appropriate: the remedy must compensate, deter future unconstitutional government action, or vindicate Charter rights.

It follows that whether a Charter damages remedy qua settlement is “appropriate” writ large is the wrong question. Instead, we must ask what the functional justification for the Khadr settlement is in the context of Ward. The settlement could be justified from different perspectives. This is a question of legal policy.

Compensation and vindication in this case are near-impossible to achieve. Though separate justifications, both vindication and compensation seek to resolve the intangible loss associated with a Charter violation. Millions of dollars will not put Khadr in the position he would have been in but-for the narrow Charter breaches, because his loss (the violation of Charter rights) cannot be measured. It will differ from judge to judge, court to court. It is true in the private law context (see Andrews) that courts routinely award for intangible, non-pecuniary loss.   It is also true that damages in the private law context are primarily justified by the Supreme Court on a compensatory basis: Blackwater v Plint, para 81. Much of this thinking informed the reasoning in Ward, where the Court held that the difficulty of measuring a harm should not be a bar to the availability of constitutional damages.  But both private and public law recognize the limitations of compensation for immeasurables by controlling for mass recovery in such circumstances.  For example, Andrews introduced a cap for non-pecuniary loss. On the other hand, Ward holds that even if a functional justification is identified, “good governance” concerns may militate against the award of Charter damages. If one cannot conclude that damages would properly compensate Khadr’s loss, Ward provides appropriate guidance, at para 53: “Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant’s needs and may be inappropriate or unjust…” In other words, we should not throw good money after bad, even to vindicate Charter rights in an abstract sense. This does not mean  that the law should not compensate when it is difficult—private law is fundamentally about compensation in such circumstances. It simply means that, especially in the Khadr case with no pecuniary loss, compensation may be a weaker justification than the alternatives—especially when the law itself recognizes the limitations.

Deterrence is a more promising function in this particular case. Law and economics theory tells us that the goal of damages-as-deterrent seeks to affect the incentives of future defendants by forcing them to internalize the costs of their tortious actions. Opponents claim that deterrence theory requires defendants to be perfectly rational economic actors, and that the empirical evidence is weak to support such a claim. However, as Professor Norman Siebrasse essentially claims in one of a series of blog posts, perfection is not of this world.  Damages fail on the deterrence rationale only if a defendant is perfectly irrational. If a defendant has some regard to consequences, deterrence theory can provide an explanation and justification for damages, including Charter damages where the compensatory rationale is exceedingly weak. This is because the possibility of liability affects, in some regard, the choices presented to a defendant in a given circumstance.

On this argument, the Khadr settlement might be justified on a deterrence basis. While government actors may not be cost-conscious, they are creatures of politics. They seek to avoid Khadr-type news cycles which obsess over multi-million dollar awards. Government actors may avoid violation of constitutional norms simply because it is in their interest to do so, having regard to the settlement consequences. Awards based on deterrence, for example, might be likely in respect of discriminatory police conduct based on race. The recent Elmardy case at the Ontario Divisional Court demonstrates how the Ward analysis is used to affect the incentives of future governments on a deterrence rationale, especially given the newsworthy nature of such police misconduct (see also Gabriella Jamieson’s recent analysis of Ward in the context of race, and the importance of deterrence).

In short, whether the Khadr settlement is justified is a question of legal policy. Different theories of public law damages can provide different perspectives. As of now, however, no proponent of the settlement has engaged with deterrence theory in a fulsome way. In other words, simply reasoning from abstract principles of “human rights” does not justify Charter damages as a legal matter, and provides no answers as to the suitability of the Khadr settlement or Charter damages.

The second point, on quantum, is one which admits of no easy answers. Yet most observers do not seem to question the Prime Minister’s assertion that the litigation of Khadr’s suit would have cost the government up to $40M. For at least two reasons, this is an impossible prediction to make or accept. Even if awarded, a damages award consisting of Charter damages might not have reached even $10.5M. I should note that I do not address liability in tort respecting quantum. While that is a relevant consideration, I am responding primarily to the commentators who have focused their analysis on the Charter breaches and damages flowing from same. Much of the uncertainty respecting Charter damages applies to the relationship between common law and constitutional damages, at any rate.

First, there is a paucity of Charter damages case law with which to analogize and compare the Khadr settlement in order to make these conclusions. Ward holds that quantum is governed in deterrence and vindication cases (such as Khadr) by a number of factors, including precedent and the seriousness of the breach: see paras 51-52. Since 2010, when Ward was decided, only a handful of cases have awarded Charter damages awards in the millions. Henry involved a case of wrongful imprisonment for a period of around 27 years. The BC Supreme Court awarded $7.5M in Charter damages, designed to vindicate Henry’s rights; an additional $530 000 was awarded for pecuniary loss. In BCTF v British Columbia, a trial court awarded $2M for bad-faith legislation—a rarity in constitutional remedies. Finally, in Conseil scolaire francophone de la Colombie-Brittanique v British Columbia, the BC Supreme Court awarded $6M in Charter damages for the underfunding of a minority education transportation system. The facts, quantum of damages, and justifications for the remedy in each of these cases diverge wildly—making it difficult to draw any legal conclusions or precedential value for the Khadr case.

Moreover, few Charter damages awards since Ward have come close to $10.5M, with most cases awarding nominal damages. This is true even of recent solitary confinement cases which might be analogized to Khadr. In Ogiamien, Justice Gray held that $85 000 would compensate for the losses of two plaintiffs who suffered under conditions which “outraged standards of decency.” In that case, the court found that the conditions violated protections against cruel and unusual punishment contained in s.12 of the Charter. If that amount of money satisfied the judge’s “outrage” in that case, it might very well satisfy any outrage in Khadr. This goes to the basic premise—compensation will be in the eye of the beholder, a trial judge. Reasonably, there is enough for a judge to conclude that $10.5M is not justified because of the limited breach.

This connects to the second point: because damages require an imaginative judiciary, and because there is little case law on the matter, much depends on how a trial judge would have analyzed the facts and the evidence respecting the “seriousness of the breach.” Michael Spratt argues that the breach was quite serious, given Khadr’s youth and circumstances. But Professor Macklin characterizes Khadr 2010, which found the breaches, as a “narrow” ruling, simply based on questioning and interrogation—no cruel and unusual punishment as in Ogiamien, torture, or otherwise (though, as noted above, Macklin supports the settlement). However a judge would resolve this debate will tell the tale. There is enough doubt, though, to question confident predictions of any “dwarfing”–and to support the opposite conclusion.

This is an unsatisfying conclusion. But there is no problem in stating what the law and the facts dictate: one cannot claim in any probabilistic sense that the damages award at trial would have “dwarfed” the settlement figure. There are simply too many variables to make that conclusion—there is at least some reasonable doubt.


At the end of the day, while the Charter protects the fundamental rights of those like Khadr, that does not mean that a violation of a particular right leads inexorably to any particular remedy. It does not mean that compensation follows, or that it is justified from a legal policy perspective. Much nuance has been left out of the public comments on the Khadr settlement. Many have found it appropriate to simply say that a damages award, no matter the quantum, is justified because of the violation of Khadr’s rights. That may be a sound political argument. But the law requires more. It would be appropriate to see observers engage with the legal justifications for Charter damages rather than political justifications. Moreover, it would be helpful for analysts to recognize the limitations of the law in predicting the ceiling on an award of Charter damages. Engaging on those terms will improve the state of constitutional remedies and provide more convincing analysis.