Doré’s Demise?

What do the Supreme Court’s latest decisions mean for judicial review of administrative decisions that implicate the Charter?

In my last post, I wrote about the religious freedom issues addressed in the Supreme Court’s recent decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa, this time to address a different issue that has, so far as I know, attracted relatively little attention: that of the standard of review of the Minister’s decision. On this point, the majority opinion (by the Chief Justice and Justice Rowe) and the concurrence (by Justice Moldaver) illustrate the ongoing failure of the Rule of Law in the Supreme Court’s jurisprudence.

Let’s start with a bit of history. In Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, Justice Abella, for writing for the unanimous Supreme Court, articulated a framework “for reviewing discretionary administrative decisions that implicate Charter values”. [34] Such review would be deferential, conducted on a reasonableness standard, much like judicial review of most other legal issues, in recognition of administrative decision-makers’ expertise. This approach has been heavily criticized, not least by Paul Daly and Maxime St-Hilaire, but the Court has never overtly resiled from it. However, the application of Doré has been uneven, to say the least.

In Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, the majority opinion, written by Justice Abella, applied the Doré framework. However, as both Paul Daly and yours truly have suggested, there is little to choose between the way it does so and a more traditional proportionality analysis. Meanwhile, a partial concurrence by the Chief Justice and Justice Moldaver eschewed the Doré approach altogether. Just days later, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, a majority of the Supreme Court took yet another approach, holding that the relationship between the freedom of religion, religious neutrality, and prayer by government officials was a question of central importance to the legal system and therefore reviewable on a correctness standard. Justice Gascon, writing for the majority, did offer an explanation for why this case was different, though one that Paul Daly criticized as confused and confusing. Justice Abella was also unimpressed; she concurred, but would have reviewed the decision of Québec’s Human Rights Tribunal on a reasonableness standard. Neither she nor Justice Gascon even mentioned Doré.

Back, now, to Ktunaxa. Again, the majority opinion does not so much as mention Doré. What is more, it does not even raise, never mind address, the issue of the standard of review. After describing the background and the history of the case, and outlining the Ktunaxa’s religious freedom claim, it proceeds to discuss the Charter right to freedom of religion and to address and reject the claim, without referring, much less deferring, to the Minister’s decision at all. It is worth noting that the Supreme Court’s next decision, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, is the same in this regard. One of the issues raised there was whether a policy requiring government lawyers to be available, several weeks a year, to handle urgent matters outside of regular working hours was an infringement of their right to liberty under section 7 of the Charter. A labour arbitrator said that it was, but the Court (unanimous on this point) easily rejected that view, again without addressing either the question of the standard of review or the administrative decision-maker’s reasoning (though the majority did discuss it at length on the other issue in the case, which concerned the interpretation of a collective agreement).

Justice Moldaver’s concurrence in Ktunaxa is also worth mentioning here. He too starts out with his own discussion of the scope of religious freedom under the Charter, criticizes the majority’s view on it, and insists that the Minister’s decision was a prima facie infringement of that right. And then, Justice Moldaver turns to… the Doré framework (citing the majority opinion in Loyola for the proposition that it is “the applicable framework for assessing whether the Minister reasonably exercised his statutory discretion in accordance with the … Charter“. [136] Justice Moldaver explains why he thinks the Minister considered the Ktunaxa’s religious rights, and why his decision proportionately balanced these rights with the applicable statutory objective, paying fairly close attention to the minister’s reasoning.

So what is going on? Prof. Daly seems to think that not much is, but I’m not so sure. Without telling anyone, the Supreme Court might have killed off, or at least curtailed, Doré. Ktunaxa and Justice Counsel seem to suggest that, at least at the stage of defining the scope of a Charter right, Doré is not the applicable framework, and indeed no deference, or even attention, is due to an administrative decision-maker’s reasoning. Now, I’m no fan of Doré, and would be glad to know it’s dead and buried ― but if the Supreme Court has decided to get rid of it, that seems like a pretty big deal, and it should have told us. As things stand, for all we know, the Court might re-embrace Doré in the next case and pretend that Ktunaxa and Justice Counsel never happened, just as in those cases it seems to pretend that Doré, or at least Saguenay, never happened.

Moreover, there is an intermediate possibility, suggested by Justice Moldaver’s concurrence in Ktunaxa ― though of course we have no idea what the majority of the Court thinks about it, since it does not comment on this, or indeed any other, aspect of Justice Moldaver’s reasons. Perhaps, while the definition of Charter rights, as opposed to the justifiability of infringements under section 1, is a matter for the courts, while the justifiability of infringements is still to be reviewed by applying the Doré framework, perhaps as modified, if modified it was, in Loyola. This is not a crazy approach (which isn’t to say that I like even this diluted version of Doré). One could argue that the scope of Charter rights is necessarily a question of central importance to the legal system on which administrative decision-makers, even otherwise expert ones like labour arbitrators, are not in a privileged position vis-à-vis the courts, while whether a particular restriction to a right is permissible is an issue that is both less important and more bound up with a particular decision-maker’s expertise.

Crazy or not, I don’t think this approach is what Doré stands for. As I read it, Doré meant to move away from the two-stage Charter review with prima facie infringement and justification, in favour of a less structured, more global assessment. This is presumably why Justice Abella persistently spoke of Charter “values” instead of rights. Besides, at least one of the cases that Justice Abella invoked as supporting the proposition that discretionary administrative decisions engaging these “values” had to be reviewed on a reasonableness standard was a section 7 case, and in such cases the important questions typically (although, as we now know, not quite always) have to do with the definition of the right, not with its limitation under section 1. There just isn’t any indication in Doré that Justice Abella or her colleagues meant to confine it to the more limited role that it plays in Justice Moldaver’s Ktunaxa concurrence.

At the very least, then, the Supreme Court may have substantially modified Doré. Perhaps it has decided not to follow it anymore. But, to repeat, the Court has not told us so. This is problematic. Indeed, I think the Court is guilty of a serious Rule of Law failure. The Rule of Law requires law to be stable ― though not unchanging, to be sure ― yet the law on the standard of review of administrative decisions involving the Charter has now changed at least three, maybe four (depending on how to count Loyola) times in less than six years. The Rule of Law also requires, I think, that the fact of legal change be transparent (this is a function of the generally recognized requirement that law must be public). This is not always easy to ensure in the case of law being articulated and re-articulated by courts in the process of adjudication, but at least when a court knows that it is disregarding a relevant precedent or changing its approach to a type of case, it ought to be able to say so. The Supreme Court did so in Saguenay ― but not in Ktunaxa and Justice Counsel.

Or, look at this another way. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court famously spoke of the importance of “the existence of justification, transparency and intelligibility within the decision-making process”. [47] That was by way of defining the notion of reasonableness in administrative law (itself a requirement of the Rule of Law), but you’d think that the courts should at least be held to as high a standard as administrative tribunals. Well, I’d say that it’s not easy to see much by way of justification, transparency, or intelligibility within the process by which the Supreme Court determines the standard of review of administrative decisions involving the Charter these days.

One last point. Justice Stratas links the doctrinal uncertainty that bedevils Canadian administrative law with turnover on the Supreme Court. I’m sure that this is a part of the story ― but Ktunaxa suggests that it is only a part. It’s not just that judges retire and are replaced by others who don’t agree with them. They don’t even stick to one approach while they are on the Court. Justice Abella wrote Doré and defended deferential review in Saguenay, but she signed on to the majority opinion arguably ignoring it in Ktunaxa. Justice Moldaver co-wrote the partial concurrence in Loyola that effectively rejected Doré, but in Ktunaxa he enthusiastically applied it, albeit not in full. (To be sure, there is something to be said for a judge who accepts having been outvoted on a particular issue and falls in line with the majority. But given the overall uncertainty of the law in this area, it might not be the best place to demonstrate one’s team spirit.) Given this individual inconstancy, it is no surprise that the Supreme Court as a whole is lurching from one approach to another without anything to stop it.

Given the lack of clarity from the Supreme Court about what exactly it was doing to standard of review analysis in Ktunaxa and Justice Counsel, we will have to wait to find out whether these case are just aberrations or the start of a new trend. It is at least possible, however, that they mean that Doré is, in whole or in part, no longer good law. I’d offer three cheers for that result, but must instead lament the lack of clarity and transparency with which it has ― unless it has not ― been reached.

Lawless Society of Upper Canada

The LSUC’s attempt to make lawyers “promote diversity and inclusion” is lawless and incompatible with a free society

The Law Society of Upper Canada (soon to be renamed something less historic), prepares to require its members ― of whom I am one ― to supply it with

individual Statement[s] of Principles that acknowledge[] [our] obligation to promote equality, diversity and inclusion generally, and in [our] behaviour towards colleagues, employees, clients and the public.

Bruce Pardy has written an excellent op-ed in the National Post to denounce this imposition as an essentially totalitarian attempt at thought control by the legal profession’s governing body. (He and Jared Brown also discussed the issue with Jordan Peterson; I am not fully on board with some of the things said in that conversation, but it is worth listening to.) While prof. Pardy’s op-ed makes the essential points, I will canvass a couple of further issues on this blog. In this post I will discuss the scope of the Law Society’s demand and what seems to me be the lack of legal justification behind it. I will have at least one other post to address the freedom of expression and freedom of conscience issues the demand raises, and probably another one about some broader concerns regarding the regulation of the legal profession.

The first point I want to make here is that it is important to be clear about just how far the purported obligation that the Law Society wants us to acknowledge extends. (I say “purported” because, as I shall presently explain, the obligation is, for the moment, a fictional one.) It is not merely a requirement that we act consistently with the values of equality, diversity, and inclusion insofar as they are embodied in legislation in force for the time being. No “statement of principles” would be necessary to accomplish that. The idea is to make us go beyond what the law actually requires. Yet in a free society people cannot be forced to do things that the law does not require, still less to hold or uphold beliefs.

People in free societies disagree ― including about the value and, even more so, about the scope and implication, of things like equality and inclusion. (Just compare human rights legislation in different jurisdictions. The differences between these laws are testimony to disagreements that can arise even among those who accept the general principle of such laws.) These disagreements are resolved for the time being by the enactment of legislation, and it is antithetical to the Rule of Law to demand that people who might not share the values, or the version of the values, that underpin the legislation in force for the time being act on those values beyond what the legislation actually requires.

Worse yet, the purported obligation is said to exist not only in the course of our practice of law (and any “behaviour towards colleagues, employees, clients and the public” that we engage in qua lawyers), but also “generally”. The fact that, as the Law Society’s “FAQ” repeatedly state, the obligation is said to fall not only on those engaged in legal practice but on all licensed lawyers, including, for instance, those who are retired, reinforces the natural reading of the obligation as covering aspects of our lives that go beyond the practice (and business) of law ― perhaps our every waking moment. This, once again, is utterly at odds with the idea that the demands that a free society makes on its members are limited, and typically do not extend into a certain private sphere, except of course to restrain actions that would actually violate the rights of others.

In concrete terms, I take it that, according to the Law Society, I have a duty to devote my scholarship to the promotion of equality, diversity, and inclusion. Certainly any topics or argument deemed, by the Law Society, to be antithetical to these ideas, would be verboten. Perhaps I must devote my personal life, and not only my professional activity, to the promotion of the Law Society’s preferred ideals. There is, after all, no natural limit to the generality of the word “generally”. Will the Law Society police my Twitter and Facebook accounts to see if they are sufficiently egalitarian, diverse, and inclusive?

The second point I want to make here is that it is not clear what the source of the Ontario lawyers’ purported “obligation to promote equality, diversity, and inclusion” even is. So far as I can tell, neither the By-Laws of the Law Society nor the Rules of Professional Conduct impose one. The closest they come to doing so is in commentary to Rule 2.1-1, which provides that “[a] lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity”. The commentary states that

[a] lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.

Of course, the Commentary is not the Rule. But, in any case, “recognizing diversity”, “protecting human dignity”, and respecting the law ― all in the course of practice of law ― are much lesser obligations than promoting diversity and inclusion, and not only in one’s practice but generally.

Now, the “five strategies to break down barriers faced by racialized lawyers and paralegals” adopted by the Law Society from one of which the demand for a “Statement of Principles” derives, also say that

The Law Society will review and amend, where appropriate, the Rules of Professional Conduct … and Commentaries to reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal … profession[].

But even if the Law Society “will review and amend” the relevant rules, it does not seem to have done so yet. Thus, quite apart from any substantive issues with the Law Society’s demands, the fact is that the governing body of Ontario’s legal profession is demanding that lawyers “acknowledge” obligations that do not yet exist in law. Since the Law Society is now considering its rebranding options, may I suggest the Franz Kafka Appreciation Society?

But there is more. Even if, or when, the Law Society wants to amend its Rules of Professional Conduct to actually impose an generalized obligation to “promote principles of equality, diversity and inclusion”, it is not clear that will have the authority to do so. The Law Society Act, as it now stands, provides that

[i]t is a function of the Society to ensure that all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide. (Section 4.1(a))

It adds that

[s]tandards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. (Section 4.2.5)

It is not clear to me that the imposition of an obligation to promote certain values, be they ever so laudable, and especially of an obligation that extends beyond the practice of law or the provision of legal services are within the Law Society’s lawful powers under this legislation. The standards of professional conduct that the Law Society is authorized to impose have to be “appropriate” for the provision of legal services (and “should be proportionate” to the objective of regulating the provision of legal services). Admittedly, “appropriate” is a capacious word, and the deferential approach of Canadian courts to reviewing administrative decision-making means that it might take a lot of persuasion to get a court to hold that policing a lawyer’s beliefs and actions unrelated to the actual practice of law is not an “appropriate” way of regulating the provision of legal services. Still, I for one have a hard time seeing how it is appropriate for a professional regulatory body to transform itself into a committee for the promotion of virtue and the prevention of vice and, should it eventually come to litigation, it might be worth trying to raise this argument, in addition to those based on the Canadian Charter of Rights and Freedoms, which I will discuss in the next post.

In any case, quite apart from what the courts may or may not do, the Law Society, if anyone, shouldn’t be trying to strain the limits of its statutory powers. The Law Society Act provides that it “has a duty to maintain and advance … the rule of law” (s 4.2.1), which among other things requires public authorities to act within their lawful powers ― not to test their boundaries. The Rule of Law also prevents public authorities from imposing on those subject to their coercive powers obligations that do not exist in law. On many views, at least, the point of these strictures is to preserve a sphere of autonomy within which individuals can act without being supervised or hassled by the authorities. The Law Society’s attempt to make those subject to its regulations into the torchbearers for its favoured values is at odds with these commitments, which one would hope most lawyers would adhere to even apart from their statutory recognition. One can only hope that the profession will resist its regulators, who have sacrificed their longstanding principles in a quest to make everyone embrace newer and supposedly more progressive ones.

UPDATE: Annamaria Enenajor insists that I was wrong to claim that the Law Society is  demanding that we “supply it” with copies of the “Statement of Principles” that it wants us to produce. I take the point that the Law Society’s explanation does not actually say that we must supply it with our statements. I find the idea that we merely need to tell the Law Society that we have created the statements it demands, without proving that this is so, more than a little odd, which is why it hadn’t occurred to me originally, but it could well be correct. That said, I do not think that whether or not the Law Society wants to see our statements changes anything to the analysis.

All about Administrative Law

Justice Stratas’ remarkable endeavour to improve our understanding of administrative law

Justice Stratas recently posted a most remarkable document on SSRN. Called “The Canadian Law of Judicial Review: Some Doctrine and Cases“, it is nothing less than a comprehensive overview of the concepts, principles, and rules of administrative law in an accessible format, for the reference of judges, lawyers, scholars, and students. While Justice Stratas cautions that it “is not meant to be complete” (1), and notes ― with perhaps just a little optimism ― that it “can be read from beginning to end in one short sitting” (7), the wealth of information it contains is really astonishing.

Here is how Justice Stratas himself describes what he is doing:

 It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review.

Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available).

The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers’ understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

(SSRN abstract; some paragraph breaks removed)

Justice Stratas’ work (I am not sure how to describe it ― it is neither an article nor a case- or textbook; in a way, it is perhaps a super-blog-post; more on that shortly) is of course an outstanding service to the legal profession writ large. But it is also, I think, a challenge to us, or indeed several challenges at once.

For one thing, as he did in his lecture on “The Decline of Legal Doctrine” last year, which I commented on here, Justice Stratas calls upon us to devote ourselves to shoring up this weakened edifice. As he notes in his introduction, in order to treat litigants fairly, judges must apply

ideas and concepts binding upon them, a body of doctrine. … If decisions are made because of an individual judge’s sense of fairness or justice, the appearance, if not the reality, is that the decision sprung from personal or political beliefs of an unelected person. (4)

Here, Justice Stratas now says, is a restatement of the ideas and concepts that structure administrative law. One challenge for us simply to help him with it: “contributions of case law, articles, comments and input will improve this document and are most welcome”. (9) But there is a broader challenge here too, especially to those of us in academia. If a sitting judge is able to produce such a statement in a notoriously tricky and unsettled area of the law, why haven’t we done something similar in others?

Now, of course there treatises and textbooks in many areas of the law, and part of what prompted Justice Stratas to put together his document, which is based on PowerPoint presentations he uses to speak on administrative law, is the dearth of “new, up-to-date texts on administrative law, perhaps reflecting its currently unsettled nature. Who dares write about a landscape that is shifting so much?” (6) But Justice Stratas challenges us on the form as much as on the substance. He forces us to think about the media we use to present legal doctrine, even we do write about it.

Justice Stratas points out that

[b]ack in the day of published law reports, knowledgeable editors, skilled in the area, could pick out the cases that matter. These days, however, most lawyers work online, not from the law reports, encounter the flood of cases and somehow have to separate the wheat from the chaff. Alas, most don’t have criteria in mind to do that. (5)

Meanwhile, loose-leaf services, though informative as to particular cases, might tend to “encourage us to think of administrative law as a bunch of particular rules that govern particular topics”, (6) without thinking about underlying concepts and their inter-relationships. (Justice Stratas’ concerns here echo those of Jeremy Waldron, whose work emphasizes the “systematicity” of law, and seeks to push back against treating it as just a collection of unrelated rules and commands.)

And then, of course, there is a concern about access to justice, or to law anyway. In an age in which, on the one hand, many litigants represent themselves, and on the other, those who take interest in Canadian administrative law are sometimes half a world away from a Canadian law library, and also in an area in which the resources even of many practising lawyers are likely to be limited (I’m thinking, for instance, of the immigration bar), it would arguably not be enough to point people to books even if very good ones existed. Justice Stratas writes that

[t]he law should be accessible to all: other judges, counsel, academics, law students, parties and self-represented litigants. Online publication and availability for free encourages this. Hence this document and the location where I have posted it. (6)

If we accept the doctrinal mission with which Justice Stratas wants to invest us, we must think about the form of our work as well as its content. I’m not sure that we must quite imitate Justice Stratas. His document has some advantages. It is relatively easy to access, concise, and convenient in its abundant use of hyperlinks. But I think that a website having the same content would be even easier to access than a document one must download from SSRN, and easier to navigate than a pdf through which one must scroll. Needless to say, I am not criticizing Justice Stratas. Again, we owe him greatly, and I, at least, would probably not have started thinking about this without his nudge. But if can improve on his first attempt in this regard, then we should.

Last year, I wrote about about a symposium at McGill about the “Responsibility of Doctrine”. Musing on the English/common law and French/civilian senses of the word doctrine/doctrine, I concluded that if these ongoing conversations about the law “are to flourish in the 21st century, they will need to remain open to new forms, and … it will not do to ignore these new forms simply because they are unfamiliar.” Justice Stratas makes a remarkable contribution to legal doctrine, in both of its senses, in an unfamiliar form. I hope that the legal community will pay all the more attention to it for this reason.

H/t: Patrick Baud

Why Bother about the Charter?

The Supreme Court divides on whether one might claim Charter damages against an administrative tribunal

Last week, the Supreme Court issued its first decision of 2017, Ernst v. Alberta Energy Regulator, 2017 SCC 1. One can only hope that it is not a trendsetter. The decisions raises more questions than it answers. The Court is split 4-1-4, with the different opinions at odds about which questions it is necessary or even appropriate to answer, and there is no holding on the most important of these, which was whether damages for breach of the Canadian Charter of Rights and Freedoms could ever be awarded against an administrative tribunal. As Jennifer Koshan notes over at ABlawg, “[t]he Ernst decision is challenging to read”, and “[i]t is also challenging to identify the precedential value of the case.”

The case arose out of allegations that the Alberta Energy Regulator (an administrative tribunal) attempted to silence Ms. Ernst in retaliation for her criticism. She claimed that the Regulator demanded that she no longer take disagreements with it to the media, and refused to consider her submissions to it on the same terms as it did those of other members of the public in retaliation for her failure to comply, and thereby breached her freedom of expression, contrary to paragraph 2(b) of the Charter. As a remedy for this breach, Ms. Ernst sought an award of damages, arguing that it was an “appropriate and just” remedy under subsection 24(1) of the Charter.

The Regulator sought to have her claim in damages struck as devoid of any chance of success, invoking a statutory immunity clause that barred suits for “any act or thing done purportedly in pursuance of” the Regulator’s legislative mandate, “or a decision, order or direction”. Ms. Ernst, however, argued that the constitution prevented this provision from denying her the ability to bring Charter claims.

* * *

As just mentioned, there are three sets of reasons ― and no majority. As prof. Koshan helpfully explains, there are

three key issues, although not all of the justices agreed that these issues were worthy of consideration, nor did they agree on the order in which they should be considered:

  1. Whether it was plain and obvious that [the immunity clause] barred Ernst’s Charter claim;
  2. Whether it was plain and obvious that Charter damages were not an appropriate and just remedy in Ernst’s claim against the [Regulator]; and
  3. Whether Ernst’s failure to provide notice of a constitutional challenge to s 43 was fatal to her claim.

In what the Court designates as “reasons for judgment”, Justice Cromwell, with the agreement of Justices Karakatsanis, Wagner, and Gagnon, finds that Charter damages will not be an appropriate and just remedy, in this case or indeed, it seems, in just about any conceivable case against an administrative tribunal, meaning that the immunity clause is constitutional ― and, assuming, as Justice Cromwell does, that it bars Ms. Ernst’s claim ―the claim must be dismissed. (I would quibble here with prof. Koshan’s otherwise insightful post: she writes that Justice Cromwell “held that [the immunity clause] did, on its face, bar Ernst’s claim for damages”. It seems to me that this somewhat mischaracterizes Justice Cromwell’s reasons, which do not amount to a holding on this point. But as prof. Koshan says, it is difficult to understand what the Court actually decides.)

Justice Abella, who concurs in the result, would instead have dismissed Ms. Ernst claim for failure to provide notice of her constitutional challenge to the immunity clause. She she also suggests, however, without deciding, that Justice Cromwell is likely right about the appropriateness of Charter damages against administrative tribunals. Meanwhile, the Chief Justice and Justices Moldaver and Brown, with whose joint opinion Justice Côté agrees, dissent on the basis that it is not plain and obvious that the immunity clause bars Ms. Ernst’s claim or that Charter damages are an appropriate and just remedy.

The three opinions trade surly accusations of procedural impropriety, implicit or explicit. Justice Cromwell accuses the dissent of having decided that the immunity clause did not plainly bar Ms. Ernst’s claim even though the Court heard no argument on this point, because Ms. Ernst herself had conceded it. The dissent responds that the issue is too important for the court to simply proceed on the assumption that the concession is right. For her part, Justice Abella implies that Justice Cromwell should not have addressed the constitutional question at all ― and, remarkably, Justice Cromwell does not even attempt to respond to this accusation (though he repeatedly refers to the obiter part of Justice Abella’s reasons!).

* * *

Prof. Koshan has summarized the three sets of reasons in detail; there is no need for me to do so again. In the remainder of this post, I want to focus on the question, which goes ostensibly unanswered in a 4-4 tie vote (Justice Abella abstaining), of whether Charter damages can be an appropriate and just remedy against an administrative tribunal. Justice Cromwell emphasizes the “need for balance with respect to the choice of remedies” for Charter breaches. [25] It is hard to be against “balance”, of course, but the question is how that balance is to be struck.

For Justice Cromwell, damages should not be too widely available. He gives two reasons for denying them in this case. First, if Ms. Ernst was wronged, she had an adequate alternative remedy in the form of an application for judicial review. It is her own fault that she did not make one. Had she done so, a court could have set aside the Regulator’s unconstitutional decisions. Indeed, “judicial review would in all likelihood provide vindication in a much more timely manner than an action for damages” ― if it had been initiated “promptly”, anyway. [36] Second, allowing claims for Charter damages to be brought against administrative tribunals would interfere with “good governance” by “chilling” their exercise of “responsibilities of a policy-making and adjudicative nature.” [42] Defending against damages actions is time- and money-consuming and distracting, and tribunals will be tempted to act “defensively” to avoid having to do so. Justice Cromwell adds that “allowing Charter damages claims to be brought … has the potential to distort the appeal and review process”, [54] and undermine the finality of administrative decisions. Moreover, the rule barring such claims needs to be categorical, since case-by-case consideration of whether a given claim might amount to an “appropriate and just” remedy would defeat its purposes.

The dissent disagrees with this; indeed, it is aghast at the prospect of a blanket immunity from Charter claims for administrative tribunals. Whether an application for judicial review ― which cannot lead to an award of damages ― would be an adequate alternative remedy is too early to say. As for concerns about good governance, courts should recall that “Charter compliance is itself” such a concern, indeed “a foundational” one. [169] While damages awards will likely not be “appropriate and just” “where the state actor has breached a Charter right while performing an adjudicative function”, [171] there is no need to expand immunity from such awards for non-adjudicative actions, especially when, as is alleged to be the case here, the actions at issue are “punitive”. At most, “certain state actors are subject to qualified immunities”, [176] such that it is only possible to claim damages against them for abuse of power or actions outside of their functions. In other words, there is no need for a blanket rule precluding case-by-case consideration, as Justice Cromwell suggests.

For my part, I do not think that Justice Cromwell’s arguments in favour immunizing administrative tribunals are persuasive. I thus sympathize with the dissent, Indeed, I wonder whether even it may go too far in favour of immunity of adjudicative decision-makers. In New Zealand, the Supreme Court’s holding in Attorney-General v Chapman [2011] NZSC 110, that damages for the breach of the New Zealand Bill of Rights Act 1990 are not available when the breach results from actions of the judiciary has been criticized, including by the two dissenting judges, who pointed out that while a personal immunity for judges is necessary to prevent the sort of ill-effects that worry Justice Cromwell, it is not so clear that the state should also benefit from this immunity.

Be that as it may, I think that the dissent is right to be skeptical of the need for an immunity for decisions that are not of an adjudicative character. Of course defending Charter damages claims may be a distraction and a drain on an administrative tribunal’s resources. But that’s true for any government entity that could be subject to such damages. On Justice Cromwell’s logic, we might as well abolish this remedy (admittedly already underdeveloped and moribund as it is). And as for the worry that administrative decision-makers may suffer a “chilling effect” ― that is as much a feature as it is a bug. If we care about the constitution, shouldn’t we want government entities to worry about acting unconstitutionally, instead of being concerned that they will? Perhaps there is a level of concern that would be excessive. But are we anywhere near it? It is, as the dissent points out, for the government to prove that good governance considerations preclude Charter damages awards; Justice Cromwell’s reasons show no evidence of such proof having been produced (unsurprisingly at such a preliminary stage in the litigation).

Finally, a word on a precedent that Justice Cromwell dismisses, it seems to me, rather too quickly. In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585 and companion cases, the Court held that a litigant who want to bring a private law damages claim against the government did not have to first pursue a judicial review claim to have the decision from which the claim purportedly arose quashed. Justice Cromwell notes that “[t]he Court did not comment on the appropriateness of a Charter damages award against a quasi-judicial board.” [40] That’s true so far as it goes. But the principle underlying the TeleZone decision was that litigants are entitled to seek compensation for losses caused by the government, and so to pursue a damages action, without having the underlying decision set aside, because judicial review and damages claims are of a different nature. TeleZone does not dispose of Ernst, not least because it involved private law rather than Charter damages claims, and it is possible that the function of Charter damages is at least somewhat different, making judicial review a closer substitute. I am skeptical about that, but need to think more about this. In any case, it is too bad that Justice Cromwell seemingly does not trouble himself with this question (and also that the dissent does not raise it).

* * *

In the event, Ernst only flags the issue of potential liability of administrative decision-makers for Charter breaches. It does not dispose of it. This is as well, because the decision is not going to be a Supreme Court classic. But it is worrying all the same. If it turns out that administrative decision-makers cannot be held to account for Charter breaches except by way of judicial review (and holding them to account through that means is a tricky business in light of the Supreme Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395!), then one will have to wonder whether they will bother thinking about their Charter obligations at all.

Law in La-La-Land

The post-truth jurisprudence of Canadian administrative law

Last month, the Supreme Court issued a decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, which deals with the evergreen issue of determining the standard on which a court must review the decision of an administrative tribunal. I wasn’t able to comment on this case at the time, because 240 exam papers landed in my office a couple of days thereafter, but I would like to return to it now, because in my view the majority opinion shows quite clearly what a fantastical creature Canadian administrative law has become.

Justice Karakatsanis, writing for the majority, describes the circumstances of the dispute as follows:

Alberta residents may dispute their municipal property assessment before a local assessment review board. When one Edmonton taxpayer did so, the assessment review board decided to increase the assessment the taxpayer had disputed. [1]

The question is whether the board in question had the authority to increase ― or could only decrease or refuse to change ― the assessment disputed before it. The board obviously concluded that it did, but did not explain the decision ― admittedly because the taxpayer did not deny that it had the requisite authority. It is only on a subsequent appeal to the courts that it did so. How, then, must the board’s tacit, unexplained, decision be treated? Is it entitled to judicial deference, or can the courts simply substitute their own view of the matter?

* * *

Defer, says the majority. In the Supreme Court’s administrative law jurisprudence, deference is the presumptive stance, including on questions of law such as the one at issue.

This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [22]

Only when the question at issue falls within one of a few exceptional categories is the “presumption of deference” rebutted. In the majority’s view, none apply here. In particular, the fact that the legislation involved specifically provides for an appeal from the administrative decision on a question of law, as was the case here, does not matter. The administrative law framework, with its presumption of reasonableness, is to be applied regardless.

As Justice Karakatsanis notes, this framework acknowledges that “[t]he presumption of reasonableness may be rebutted if the context indicates the legislature intended the standard of review to be correctness” [32]. The dissenting judges would have found that this is the case here, because the board’s expertise lies not in the interpretation of its enabling legislation, which is at issue here, but rather in property valuation, which is not. Justice Karakatsanis is unmoved by this:

Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer. … [A]s with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution. [33]

Having concluded that she must defer to the board’s decision, Justice Karakatsanis then face the question of how to defer to a decision that is entirely unexplained. After all, as the still-leading (although perhaps increasingly from behind) case on reviewing administrative decisions,  held, “reasonableness ‘is … concerned with the existence of justification, transparency and intelligibility within the decision-making process'” [36; citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]. But not to worry: in that same case, the Supreme Court went on to say it is enough to consider the reasons that could have been given for the decision, even though they were not, and to defer to them. This is what Justice Karakatsanis does, for 20 paragraphs. She concludes that board’s decision was reasonable.

* * *

If this is not post-truth jurisprudence, it’s pretty close. The Oxford English Dictionary, which recently chose “post-truth” as its word of the year, says that it describes “circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”. The Supreme Court’s vision of administrative law might not be the product of appeals to emotion, but there is certainly a great deal of personal belief unburdened by a reckoning with objective facts there.

Start with the claim that the presumption of deference is all about respecting legislative intent to grant decision-making authority to administrative tribunals rather than courts. If the Court really cared about legislative intent, wouldn’t it ask itself what the purpose of providing a statutory right of appeal on questions of law, as the legislature had done in this case, is? The majority does no such thing. It is content to affirm the irrelevance of either the text or the purpose of such provisions and holds that even if the statute says “appeal”, the courts must read “judicial review” and defer. Yet as the dissent cogently points out, the statutory text is pretty clear that the legislature wanted some questions of law (those deemed important enough by a judge) to be resolved by the courts. For all its show of deference to the legislature, the majority only cares about its own views about how administrative law should operate.

Next, consider the claim that the administrative decision-maker’s expertise entitles it to judicial deference. The majority does not discuss the expertise of the board whose decision is at issue here. It does not meaningfully respond to the dissent’s argument that the board has no particular expertise on the question before the Court. It is content to state an airy generality: the very existence of a specialized tribunal is enough to make it an expert. Why? It seems almost as if the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it. Here’s news for the Court: that’s not true. The dissent’s take on this issue is, once again, more realistic:

an administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional. [83]

As mentioned above, the dissent would have found that the question at issue here was not within the scope of the board’s expertise. The majority, once again, is uninterested in facts or, as the dissent also notes, in legislative intent (which in some case may well be to create a decision-maker without legal expertise), and ignores them the better to apply its beliefs about the proper relationships between courts and administrative decision-makers.

And all that for what? Not to actually defer to the supposedly expert board’s reasoning ― but to make up a reasoning that the board may or may not have come up with on its own, and defer to that. As Paul Daly put it (aptly, it goes without saying),

Karakatsanis J. points to multiple features of the elaborate statutory scheme that might be said to support the alternative interpretation and explains how each of them is nonetheless consistent with the Board’s interpretation (if one can call it that), much of which is supported by reference to a decision made by another body that “formerly” had appellate jurisdiction from the Board [44]. This, frankly, is quite bizarre. Who knows what the Board would have said if these points had been made to it? Indeed, who knows what the Board will say in future cases when these points are made to it? (Paragraph break removed)

It’s as if Justice Karakatsanis were playing chess with herself, and contriving to have one side deliberately lose to the other. This, admittedly, is not a post-truth reasoning. It is outright fiction.

* * *

As you can probably guess, I do not like any of it one bit. Perhaps this is not a very educated feeling. I have not thought about administrative law as much as prof. Daly, for instance, or many others. (I do have plans to get more serious about it, but it’s a medium- or even a long-term project.) I hope, however, that there may be some value in even an uneducated person stating the view that the emperor has no clothes, and that his proceeding any further in this state is offensive to public decency. What is more difficult for an uneducated mind is to say what dress the emperor ought to put on. Prof. Daly argues

that the only way to move the law forward within the existing framework without starting again from scratch is to apply reasonableness review across the board, with the important caveat … that the range of reasonable outcomes will be narrower in cases featuring an appeal clause.

I cannot comment on this suggestion, beyond saying that I am, in my uneducated state, extremely uneasy with deferential review of administrative decisions on questions of law. I will say, though, that I’m not at all sure that starting again from scratch is not the right thing to do, or even the only possible thing to do.

Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

Last week, at the Canadian Constitution Foundation’s Law and Freedom 2016 conference, Justice David Stratas of the Federal Court of Appeal delivered a fascinating lecture called “The Decline of Legal Doctrine.” I highly recommend it. I won’t summarize it beyond saying that Justice Stratas’ thesis is that judges, lawyers, and academics are all guilty of a lack of interest in legal doctrine and tend to see the law as largely result oriented, which diminishes the legitimacy of judicial decision-making and risks leaving us at the mercy of dangerous prevailing opinions should crisis strike. There is simply too much there, and it is too important, for a summary to be useful. I will share a few reflections of my own below. Here it is.

Before I get to my comments, I want to say that I am, of course, very flattered at being mentioned as one of the exceptions to the general lack of interest in legal doctrine. Indeed, I am flattered that Justice Stratas should read my blog at all. I hope, however, that my gratitude for Justice Stratas’ kind words does not bias my views of his lecture.

* * *

Here they are, in a somewhat disjointed form. With one exception, they concern things that Justice Stratas did not say, and which I would love to hear him say more, at some future point, rather than things he did say with which I disagree. They are, in other words, intended not as criticisms, but as questions.

1. Let me start with the word “doctrine” itself. Maybe it’s just me, but I find it a slippery one ― it’s one of those words that lawyers love to use that can mean different things in different contexts, perhaps depending on whether we use them with a definite or an indefinite article, or no article at all, while assuming that everyone knows what we are talking about. A non-lawyer in the audience asked Justice Stratas what the difference between legal “theory” and legal “doctrine” was, but only got a definition of “theory” in response. As best I can though, legal doctrine (no article) is the set of rules and principles that can be derived or inferred from judicial decisions.

Here’s an interesting twist though: later in the Q&A, Justice Stratas spoke of the various types of judges and said that “doctrinal” judges are those who “understand the rules but want to know more about how to use them and these are perhaps reformist people that might want to tweak or modify the rules.” I think that this connection, in practice if not as a matter of definition, between an interest in the rules and their underlying principles on the one hand, and an interest in tweaking them on the other, might be, if not slightly paradoxical, then at least in tension with the need for doctrinal stability of which Justice Stratas spoke so passionately. Does doctrine bear the seeds of its own destruction?

2. Justice Stratas argues that we need stable, coherent, legal doctrine to which lawyers and judges alike are committed because we might not always live in “benign times,” and in a moment of crisis we will be better off if judges decide controversial cases on the basis of stable legal doctrine rather than of what they feel is right or fair in those ominous circumstances. Crises rarely make for clear, even-handed thinking. Legal doctrine is, in other words, a form of pre-commitment that will save us from the siren calls of rights-crushing emergency.

I would like to think that this is true. But is it? Can we think of situations where doctrine has played such a role? And indeed, why do we think that a commitment to legality will be less likely to falter in a time of crisis than a commitment to justice? That, after all, is the underlying premise of the claim that doctrine will save us even if the judges’ sense of right and wrong is swayed by momentary considerations. Again, I would like this to be true, but I wonder if we have reasons to think it is, other than our desire for it to be.

3. Justice Stratas argued that we must devote ourselves to stabilizing legal doctrine, to settling public law doctrine in a comprehensive way ― and that we must do it right away. Tomorrow will be too late. At present, public law is too unsettled ― precedents can be reversed with little apparent explanation, or simply ignored without being reversed. (An aside: one area which Justice Stratas specifically mentioned as illustrating this trend is the courts’ relationship to empirical evidence, and the rule ― which he tied to the Supreme Court’s recent assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, but which actually goes a little further back, to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ― that appellate courts should defer to a trial judge’s findings with respect to such evidence. Some of the points he made in criticizing this rule seem to echo ideas I have expressed on this blog, especially here, so I was very glad to learn that Justice Stratas shares these concerns.)

Here’s a question though. If we accept, as I think we should, the mission that Justice Stratas wants us to undertake, what is our departure point? Do we simply take the current state of the law as a given and stop messing with it, on the assumption that it is more important that things be settled than that they be settled right? Or should we, in order to build on solid foundations, go back to first principles to some extent ― at the risk of reversing some more precedents? Are there other potential pitfalls to deciding from first principles? Justice Stratas praised the Supreme Court of the 1980s for its “painstaking,” “scholarly,” and “balanced” approach to Charter cases, in which it had to build doctrine from the ground up ― but I wonder if that is not idealizing things somewhat.

4. Justice Stratas argues that a doctrine-focused approach to judicial decision-making, even in cases of first impression or those involving conflicting lines of authority, can be free from politics, and that the judges’ personal views matter less than people tend to suppose. That is true, as I’ve often said, if we understand politics in a partisan sense or, as Justice Stratas might have meant it, as synonymous with results-oriented reasoning. However, as I’ve also often said, I think that politics, in a much broader sense of ideas about how the state and society as a whole should be organized does matter to judicial decision-making. Justice Stratas speaks of developing legal doctrines in ways that “make sense” ― but it seems to me that legal doctrines make sense in light, among other things, of certain values that they reflect or serve, and that these values can be described as political, in a broad sense.

This is perhaps the only point on which I disagree with Justice Stratas. Though it might be a disagreement about words more than about the underlying realities, I think that the words matter. I worry that complete denials of the political aspects of adjudication come across as overdone, and as a result do not actually help the courts establish their legitimacy.

5. That said, Justice Stratas was right to criticize those ― whether academics, lawyers, students, or journalists ― who think of judicial decisions purely in terms of results and their political implications, real or supposed. (He compared such commentary to “essentially an open-line radio-show comment put in an educated way using highfalutin legal language.”) He was also right to lament judicial decisions that leave room for such interpretations, in particular through their failure to adequately explain, in terms of legal doctrine, the outcomes that they reach.

I wonder, though, what can be done about this very real problem. I’m afraid that judges focusing on the doctrine and explaining their decisions will not be enough. For instance, I don’t think that the Supreme Court’s recent jurisprudence in the area of language rights is half bad, in terms of engaging with doctrinal issues. Yet in December’s Policy Options, a couple of political scientists published a tendentious take-down of this jurisprudence looking at it entirely through the lens of results (which happened to go against language-rights claimants) and, as I have argued in a Policy Options blog post, blithely ignoring the law in the process. In other words, people are liable to misrepresent the courts’ work as results-oriented even when any fair reading of the decisions in question shows that it is not. Dan Kahan et al. wrote about this problem in a fascinating study (about which I blogged for the National Magazine) that found that while legal reasoning tends to be based on legal, rather than (narrowly) political considerations, “our system of justice lacks reliable practices for communicating courts’ neutral resolution of divisive matters.” Lawyers should, no doubt, try to push back against tendentious and uninformed criticisms of the judiciary (though as I have also argued they should do so without misrepresenting all criticism as tendentious or as endangering the Rule of Law!). But is that enough?

* * *

Well, this is more than enough for me. Again, I express my gratitude to Justice Stratas for a fascinating lecture and for his kind words, and I hope that he comes back to this topic in the future. The above questions and quibble notwithstanding, Justice Stratas is right that we need to take legal doctrine seriously, and we owe him for reminding us of this.

Whatever

On Thursday, the Supreme Court handed down its decision in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, an immigration law case. Paul Daly expertly discusses takes apart the majority opinion from the administrative law perspective. For my part, I will deal with the substance of the decision. While I’m not an immigration law aficionado, I do have some practical knowledge of it, having clerked at the Federal Court for a year. So I’ll comment from the perspective of someone formerly (and briefly) “in the trenches,” someone who actually had to deal with cases of this sort on a regular basis.

The issue in Kanthasamy was the standard to be applied by the bureaucrats reviewing (on behalf of the Minister of Citizenship and Immigration) applications for exemptions from the requirements of the Citizenship and Refugee Protection Act on the basis of “humanitarian and compassionate considerations.” In practice, most of these applications are made by people whose applications for asylum are unsuccessful and who seek to be granted permanent residence in order to avoid deportation. Mr. Kanthasamy was in this situation too. The test that had long been applied by the administrative decision-makers, and also by the Federal Court on judicial review, was drawn from a set of Guidelines issued by the government. Under this test, there existed “humanitarian and compassionate grounds” for allowing a person to stay in Canada if deportation would result in “unusual and undeserved or disproportionate hardship” to that person or to another directly affected one.

The Supreme Court was unanimous in holding that this was not the right approach. There was no unanimity, however, about what the right approach was. The five-judge majority, in an opinion by Justice Abella, insisted that the decision-maker must

focus[] … on the equitable underlying purpose of the humanitarian and compassionate relief application process. [They must] see[] the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but … not treat them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion. …

They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted [by statute]. [31-32]

It is necessary to look at all the circumstances, and not to become fixated on specific words, treating them as discrete criteria.

For its part, the two-judge dissent, in an opinion by Justice Moldaver, emphasized the exceptional nature of “humanitarian and compassionate” applications, which must not become “a separate, freestanding immigration process, something Parliament clearly did not intend.” [85] The correct approach to the examination of such applications “must balance the dual characteristics of stringency and flexibility.” [96] A test that does this is:

whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted. [101; emphasis in the original]

Justice Moldaver insists that “The ‘simply unacceptable’ test … should not be seen as wordsmithing,” [104] and assures us that will be readily applied because “[i]t uses concepts that are well-understood and regularly applied in Canadian law,” [ibid.] notably in the contexts of extradition proceedings and the doctrine of abuse of process in criminal law. By contrast, in the opinion of Justice Moldaver,

the test that [Justice Abella] proposes is amorphous. It does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test. Relief could be granted in cases which arouse strong feelings of sympathy in an individual decision maker, but which do not reach the stringent standard that the hardship test demands. [107]

“Amorphous” is, indeed, a polite way of putting it. My reaction on first reading the majority opinion was that it said nothing at all, and that I must have missed something. Having read the dissent, and re-read the majority opinion before writing this post, I have come to the conclusion that I did not miss anything, and that the majority does, indeed, abjectly fail to provide any guidance to both the administrative decision-makers and to the Federal Court, where their decisions are reviewed (if they are reviewed at all), usually without any further right of appeal. Indeed, the majority opinion is even worse than just a failure to provide guidance: it takes away what little guidance there was, saying that it was not good enough ― and replaces it with nothing.

But would the dissent’s “simply unacceptable” test have been any better? I doubt it. Justice Moldaver’s proposed measure of “simple unacceptability” is “broad consensus that exceptional relief should be granted.” Whose consensus is this? And how is a bureaucrat, or a judge of the federal court, supposed to ascertain its existence? These are silly questions of course. Acceptability and consensus, just like “community standards” and other tests of this sort, are just rhetorical devices. There exists a broad consensus if a judge ― or a bureaucrat ― thinks that there ought to exist a broad consensus, and that’s that.

Justice Moldaver says that the “simply unacceptable” test is similar to those that are applied in other areas of the law. But, while true, this assertion misses the crucial point that the people who will actually be applying this test ― i.e. bureaucrats and Citizenship and Immigration Canada ― are not familiar with those areas of the law. They are, as Prof. Daly points out, not even lawyers. Indeed, even the judges of the Federal Court, who will be reviewing the bureaucrats’ decisions ― on the deferential “resonableness” standard ― are not familiar with these areas of the law, which are related to the criminal law context, though to be sure, the Federal Court does occasionally deal with abuse of process claims. The Supreme Court recently acknowledged the limits of the Federal Court’s subject-matter expertise, in Strickland v. Canada (Attorney General), 2015 SCC 37, which I blogged about here. In that case the issue was the Federal Court’s suitability to deal with family law issues, but the problem is similar in the criminal law and extradition contexts.

In short, both the majority and the dissent approach the case in a manner that is largely divorced from the reality in which it was decided and, more importantly, in which similar cases will be decided in the future. Neither provides helpful guidance to the decision-makers who are going to deal with these cases as part of their regular routine. (It might not be a coincidence that the only judge with the experience of such cases, Justice Rothstein, was not on the panel that decided Kanthasamy. With his retirement, the shortage of relevant practical experience on the Court is now permanent.) The judges act like generals who visit a distant and, on the whole, not terribly important position once in a blue moon, point in the direction of something on the horizon, and depart, self-satisfied. The local commanders might try to figure out what it is that the generals wanted, the soldiers might be impressed with confident tone and eloquent gestures, but there are unlikely to be substantial changes on the front line as a result of this visit.

As a result, I’m not at all convinced that the result of the majority’s decision will be that too many “humanitarian and compassionate” applications will be granted, as Justice Moldaver fears ― or for that matter that more will be, as Justice Abella presumably wants. (By the way, neither judge, I suspect, knows how many are actually granted now. Certainly we at the Federal Court had no idea. Since the decision is, ostensibly, the Minister’s, he or she cannot apply for judicial review of a decision granting an application, so the courts never see them.) Left to their own devices ― freed from the constraints of the Guidelines and protected by a deferential standard of review ― the bureaucrats who deal with the applications might even become less, rather than more, likely to grant the applications. After all, in my admittedly limited experience, they do not exactly share Justice Abella’s sensitivities and inclinations. More likely, however, they will just shrug off the Supreme Court’s latest pronouncement. And really, that’s pretty much what it deserves.