Keeping Out or Stepping In?

When should the courts intervene in internal disputes of voluntary associations?

This is my first post since February. Apologies. Things haven’t been great, and might not improve for some time, but I do hope that, at least starting in July, I will be posting more regularly.

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22, the Supreme Court considered the scope of the courts’ power to interfere with the decision-making of an unincorporated private association. The dispute involved a congregation and some of its members, whom its authorities excommunicated, apparently without having given them much of a hearing.

Justice Rowe provides a neat summary of his judgment for the unanimous Court:

[C]ourts can only intervene in the affairs of a voluntary association to vindicate a legal right, such as a right in property or contract. Membership in a voluntary association is not automatically contractual. Even a written constitution does not suffice. Membership is contractual only where the conditions for contract formation are met, including an objective intention to create legal relations. Such an intention is more likely to exist where property or employment are at stake. It is less likely to exist in religious contexts, where individuals may intend for their mutual obligations to be spiritually but not legally binding. A voluntary association will be constituted by a web of contracts among the members only where the conditions for contract formation are met. [49]

The idea that courts will only intervene in the face of an alleged violation of a legal right follows from the Supreme Court’s earlier decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, [2018] 1 SCR 750. The rules of contract formation, including the requirement that parties intend to create legal relations, and not merely socially or spiritually binding ones, are longstanding. Here, they lead Justice Rowe to find that

there is nothing that can be characterized as an objective intention to make an offer on the part of [the congregation or its leadership], and nothing that can be characterized as an objective intention to accept on the part of any of the [excommunicated members], or vice versa. [52]

But a strict application of these rules, combined with (or perhaps resulting in) the position that even a self-proclaimed constitution of the association is not necessarily a binding contract, means that the courts will keep out of the internal disputes of voluntary associations ― especially, but not only, religious ones.


People whose opinion means more than mine have been critical of this. Over at Administrative Law Matters, Paul Daly writes

the sledghammer employed in Aga obliterates any judicial enforcement of any terms in a voluntary association’s “Constitution”, even terms relating to the basic procedures for removing individuals from the organization. When read with WallAga represents a significant judicial retreat. So much for the ‘supervisory’ jurisdiction.

Again, Professor Daly’s opinion on such issues is more important than mine. But here’s a note of doubt.

I’m not sure why we should be sorry about the judicial retreat, if that’s what Aga and Wall are. The Supreme Court is clear that when employment or property (or access to resources necessary to earn a living, as in some earlier cases involving expulsions from communes of coreligionists) are at stake, the courts still should intervene. What they are retreating from are disputes about membership or leadership of voluntary associations. But should they be involved in such disputes?

I would venture ― tentatively ― that it is sensible enough to think that they should not. As Justice Rowe explains

The law concerning the formation of contractual relations embodies practical wisdom. Many informal agreements that people undertake do not result in a contract. There are, for example, mutual undertakings between friends … or between members of a household … In neither of these examples do the parties (reasonably understood) intend to be subject to adjudication as to the performance of their commitments or to the imposition of remedies such as damages or specific performance. [21]-[22] (paragraph break omitted)

These rules aren’t only about practical wisdom though. They’re also about autonomy. As Justice Rowe himself says, they allow people who don’t want the law to step into their relationships to keep it at a distance. Arguably, unincorporated voluntary associations often are places where people exercise this kind of autonomy from the legal system. Not always, to be sure. But at least as a matter of presumption and default position, there is something to be said for Justice Rowe’s (and the Supreme Court’s) approach.

At the very least, this is a matter on which reasonable people might disagree, and on which compromise solutions may be available. Professor Daly notes that provincial legislation in British Columbia and Québec enables courts to intervene in the affairs of voluntary associations, including, in the case of Québec’s Code of Civil Procedure, of “groups not endowed with juridical personality”. Perhaps this is a defensible choice, albeit one less respectful of people’s autonomy. But it’s not necessarily the only defensible choice.

In fact, there is a difference between the Québec and British Columbia statutes to which Professor Daly refers. The latter only applies to “societies” which (as it makes clear) must be deliberately incorporated by their members. If people come together and form a voluntary association without incorporating, the default regime articulated in Aga will still apply. The position in New Zealand is similar: the Judicial Review Procedure Act 2016 defines “statutory power“, which is normally subject to judicial review, as, in relevant part, “a power or right … conferred by or under … the constitution or other instrument of incorporation, rules, or bylaws of any body corporate”. A constitution or bylaws of an unincorporated association do not count.

This may be a sensible distinction to draw: a group that goes to the trouble of formalizing its operations by incorporating, and obtains the benefits of incorporation, they submit to closer scrutiny by the courts. Otherwise, they will mostly be left to their own devices, except where legal relationships such as employment or ownership are involved, or where the association takes on some regulatory or quasi-regulatory role. In New Zealand, Electoral Commission v Cameron [1997] NZCA 301; [1997] 2 NZLR 421, involving the Advertising Standards Complaints Board which, although not incorporated, effectively regulated what advertisements could and could not be distributed by the media is an example.

In fact, Professor Daly’s position may not be all that dissimilar. He asks: “What is the point of setting out procedures, rights and obligations in a document made available to members when those procedures, rights and obligations can be discarded at will?” I’m not sure how strong this objection is in Aga (where the members of the congregation, even seemingly high-ranking ones, seem not to have been aware of the relevant documents for years). But Professor Daly’s point, if I understand correctly, is that choices about the degree of formality with which an association organizes itself are important. That makes intuitive sense. But I’m not sure that the line should be drawn at the creation of a “constitution” rather than at incorporation. The latter may be a more formal, and a more easily identifiable, step, and so perhaps a better marker for the courts to refer to.

Note, by the way, that my argument here is not about religious associations in particular. There are, indeed, good reasons for the secular courts to be especially wary of intervening in their disputes, because they are likely to implicate theological considerations. But this is only a specific application of the broader principle of autonomy that is implicated when the law chooses one approach or another to judicial intervention in the private sphere. Other kinds of associations may also have reasons for wanting to keep their workings informal and outside the state’s reach.


And, to repeat, perhaps they shouldn’t be allowed to do that. Perhaps the more interventionist position chosen by the Québec legislature is the wiser one. As I have already said, my views here are tentative. But I think that a debate about first principles ― about whether it is in fact right for the state to assume the role of a supervisor over the internal doings on voluntary associations ― is worth having. By tilting the default position towards non-interventionism and so putting the onus on legislatures to introduce a different set of rules, the Supreme Court’s decision in Aga may spur something like this debate.

For What It’s Worth

University of Toronto professor Richard Stacey recently released an article in the University of Toronto Law Journal (paywalled, which is truly unfortunate), arguing that (among other things) the Supreme Court of Canada’s decision in  Vavilov “affirm[s]” the Supreme Court’s controversial decision in Doré  (340; see also 351). To be specific, Stacey says (340-341):

Read together, and building on a rich body of Canadian case law that came before,  Vavilov and Doré  definitively mark a culture shift way from an outcomes-oriented conception of judicial review toward one that engenders a culture of justification…

…in a culture of justification built on a robust conception of reasonableness, constitutional law and administrative law come together in a unified system of public law.

Stacey also makes a number of other arguments, including: (1) the culture of justification apparently endorsed in the same way in  Vavilov and Doré necessarily and logically excludes correctness review (see pg 349) and (2) so-called “Charter values” act as “justificatory resources” that together bind a unified system of public law, bringing  Vavilov and Doré  together (357 et seq). That is the core of Stacey’s argument: the so-called “unity of public law” thesis draws together a requirement that administrative decisions be justified.

Stacey’s argument is interesting, but ultimately unpersuasive. For one, it treads well-worn territory of “administrative constitutionalism” and “the unity of public law,” theories that—as I will argue—are actually undermined by  Vavilov’s formalism. While  Vavilov does put a focus on justification, Stacey’s article does not deal with the parts of  Vavilov that clearly work against his thesis: the dispatch of expertise as a factor governing the standard of review; and the retention of correctness review based on Rule of Law considerations, among other things. Secondly, Stacey’s article does not engage with key scholarship on this issue post- Vavilov that could both strengthen and undermine his case. Finally, Stacey attaches too much determinacy to Charter values, ethereal things that even their most ardent supporters must agree are relatively indeterminate: perhaps not of this world.

***

Stacey sets out his argument on the first issue (the marriage between Doré  and  Vavilov) boldly: “The foundation of both cases is the same, and both judgments ultimately embrace the same conception of reasonableness” [351]. Stacey cites the Alsaloussi case out of the Federal Court, where the Court relied on  Vavilov in a Doré -type case to give guidance “on what a reasonable decision looks like” [351]. To Stacey, this case—and the theory—reinforces “how the two judgments help to draw administrative and constitutional law together in a single, unified system of law” [352].

As I have outlined previously, I do not see how this is the case, even on the terms of the reasonableness standard. Doré  was positively unclear about what administrators should do when faced with a Charter claim, beyond saying that an administrative decision-maker “balances the Charter values with the statutory objectives” (Doré , at para 55 et seq). The only question for a judicial review court is whether “in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré , at para 57). But, unlike the Oakes test, and unlike  Vavilov’s list of constraints, the Doré -line of cases do not provide any guidance on how courts should conduct the proportionality analysis.  Vavilov provides a far more robust and detailed schema of reasonableness than Doré  does, and so to equate these cases on this front is ultimately unpersuasive. The similarity on the reasonableness front—if it exists—is cosmetic at best.

Stacey also does not address why  Vavilov’s comments on constitutional issues do not demand a correctness standard in the Doré  context. As a reminder, the Court in  Vavilov—while expressly excepting Doré  from the scope of the comments for now (see para 55)—said that “[t]he constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard” ( Vavilov, at para 56).  As I have said before, this should logically include Charter issues. But Stacey does not address this point, nor does he address important literature attacking administrative constitutionalism as a general theory (see Leonid Sirota’s paper here).

Moreover, Stacey does not address other post- Vavilov commentary that could actually strengthen his point. For example, Paul Daly argues that all issues going to the merits in  Vavilov are, on its own terms, subject to the reasonableness standard. I have my issues with this argument, but I think it is far more persuasive in support of Stacey’s argument than the evidence Stacey actually offers–in part because it takes Vavilov on it’s own terms.

Relatedly, Stacey argues that a joint-reading of  Vavilov and Doré  renders the correctness standard irrelevant (349). Yet this is not convincing to me. As I have argued, and as Professor Daly argues to a similar extent,  Vavilov is not just one thing, easily explained with reference to a catchphrase like “culture of justification.” There are various currents of administrative law thought coursing through the decision.  Vavilov’s comments on the Rule of Law, for example, are relatively formalistic, focusing on the role of the courts as the guardian of the Constitution. On the other hand, other parts of  Vavilov clearly draw from the justificatory school of administrative law thought, championed by scholars like David Dyzenhaus. As I have argued in previous work, these schools of thought can be complementary, but  Vavilov is clearly a product of pragmatic agreement, even if guided by principle to some extent. Professor Stacey does not address this reality when he excludes correctness from the standard of review equation, without as much as addressing the counter-arguments clearly presented in Vavilov. Indeed, if one follows  Vavilov’s formalistic side, correctness review still has a valuable—and formally required—role in Canadian administrative law.

Finally, I should draw attention to Stacey’s argument on Charter values. Much has been written on Charter values, and I need not reprise that literature to make my objection: Stacey’s focus on Charter values as justificatory resources is only useful if the set of justificatory resources is relatively bounded and determinate. While we cannot expect perfect or near-perfect determinacy in law, and moral reasoning with regards to rights-claims is inevitable, this does not logically entail an embrace of Charter values. The problem is that Charter values are endlessly indeterminate—they are not necessarily bounded by the text of the guarantees they are supposed to represent, and some Charter values could conceivably not be found in the text. Enterprising courts and litigants could pitch a value at high level of generality, leading to needlessly subjective moralizing about rights in a way untethered to the doctrine of various constitutional guarantees. Since there is no clear agreement on (1) how to determine what Charter values are relevant; (2) how Charter values are different than Charter rights; and (3) on how administrators are supposed to understand Charter values as distinct from Charter rights, this set of justificatory resources is not at all helpful to courts or litigants.

Tying together Stacey’s article is a common claim: “…I see no distinction between administrative and constitutional law in the first place” (357). Of course, this is a common (one might say orthodox) position. And yet it ignores an important function of constitutional law in relation to the administrative state—the Constitution (written and unwritten) is a limitation or constraint on government action (see  Vavilov, at 56). The hierarchy of laws exists for a reason, and under that hierarchy administrative discretion is parasitic on a statutory grant, which itself is subject to Charter scrutiny. There is no real, formal equality between administrative law and constitutional law: the Constitution is supreme, and it shapes and constrains government power. It does not liberate administrative discretion.

All told, Professor Stacey’s article contributes to the growing post- Vavilov literature. Unfortunately, I do not find it convincing.  Nonetheless, the Supreme Court will eventually deal with Doré  post- Vavilov. And until then, my opinion is worth as much as the page it’s written on, for what it’s worth.

Overcoming Justice Abella’s Admin Law Legacy

On the occasion of her retirement, what can we learn from Justice Abella’s administrative law generation?

All good things must come to an end, and such is the case with the careers of our Supreme Court judges. On July 1, 2021, Justice Rosalie Abella will retire. Justice Abella has been a lighting rod—for good and bad reasons—throughout her tenure on the bench. There is no doubt that she, having been a Supreme Court judge since 2004, has left her mark on various areas of Canadian law. Others will analyze Justice Abella’s legacy in those areas.

In this post, I hope to provide an assessment of Justice Abella’s legacy in the world of administrative law. For a generation, Justice Abella (even before she was on the Supreme Court–see her decision in Rasanen) was a leading Canadian administrative law thinker with skills of persuasion. While Justice Abella’s thinking on administrative law was broadly representative of the judicial and academic zeitgeist of the period starting with CUPE , time and experience have shown limitations in this thinking, and the Court has rightly begun to rollback the “innovations” of this period. The problems are two-fold: (1) Justice Abella’s notion of deference is largely based on illusory assumptions about administrative expertise; (2) Justice Abella’s notion of deference makes too much of the position of administrative actors as “partners” in the law-making enterprise, especially on constitutional questions.

I will start by outlining Justice Abella’s general theory of administrative law, as represented in extrajudicial writing and some select opinions. I will then flesh out my criticisms of Justice Abella’s administrative law legacy, showing how and why the Court was justified in Vavilov in resiling from some of the commitments demonstrated by Justice Abella through her opinions and the Court’s pre-Vavilov case law. In short, Justice Abella’s lack of skepticism about government power—particularly administrative power—simply does not register as credible in the 21st century. To develop a doctrine of deference that is attuned to the diffuse nature of administrative power, the Court must continue to overcome the administrative law commitments of Justice Abella’s generation.

***

I have written many times about the dominant mode of administrative law thinking in Canada, culminating in the jurisprudential watershed moment of CUPE. Justice Abella fits neatly in this generational movement. The so-called functionalists (people like Justice Abella, John Willis, Harry Arthurs) were high on administrative power for two overlapping reasons. First, they saw the conservative common law courts stymying administrative decision-making, which was the means used by legislatures to implement social justice policy (see, particularly, the work of Harry Arthurs). Second, they assumed that administrative actors were more expert in the administrations of their statutory schemes than courts (see , again, Arthurs). This was best represented in the Supreme Court’s Dunsmuir decision, when the Court adopted the famous quote from David Mullan, suggesting that deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: see Dunsmuir, at para 49.   The net result of these two commitments is an ardent belief that administrators can render decisions, using their own techniques, that make sense of the law—and that courts should respect those decisions. For Justice Abella, then, the “Rule of Law”—which typically justified the subjection of administrative power to the law—is a formalistic legal principle that unnecessarily pits judicial power against administrative exigency. Instead, as Justice Abella says in a co-written piece with Teagan Markin, the law should inculcate a “mutually respectful relationship between the courts and administrative decision-makers” one that prizes the “legitimacy” and “authority” of administrative actors (Abella & Markin, at 272) as a “constitutional participant” (Abella & Markin, at 298).

With these commitments in mind, the Court developed a theory of deference that did just that. In the high-water mark era for epistemic deference, the Court confirmed that expertise was the most important factor influencing the selection of the standard of review (Southam, at para 50). In Dunsmuir, as noted above, respecting the institutional choice to delegate to experts was seen as a valid reason for courts to defer to administrative actors.

Justice Abella’s functionalist mindset was clearly represented in her opinions. Three are relevant. First is her decision in Newfoundland Nurses. That case—which Vavilov implicitly overruled (see Vavilov, at para 96)—permitted courts to “supplement” decisions that were otherwise deficient in their reasons (Nfld Nurses, at para 12). What was required under Nfld Nurses was a “respectful attention to the reasons offered or which could be offered…” (Nfld Nurses, at para 11 citing Dyzenhaus). The upshot of this is that courts could not quash decisions simply on the basis of the quality of the reasons alone (Nfld Nurses, at para 14) because of considerations of specialization and expertise (Nfld Nurses, at para 13). Here, we see the translation of administrative law theory into administrative law doctrine. Because Justice Abella is concerned about the legitimacy of the administrative state and undue judicial interference, she would rather courts partner with administrative decision-makers in supplementing decisions rather than subverting them.

A second example, and perhaps the most important one, is Justice Abella’s opinion for a unanimous court in Doré. Doré is important because it demonstrates the two strands of Justice Abella’s administrative law thought: pluralism and expertise. Doré basically held that when administrative decision-makers make decisions that engage constitutional rights, their decisions are entitled to deference if they represent a proportionate balancing between the relevant Charter right and the statutory objective at play (Doré, at para 57). For Justice Abella, though, Doré was more than just a technical framework. For her, Doré was “deference theory at work” (Abella & Markin, at 299) because it showed, finally, that “administrative bodies have then authority and expertise to interpret apply…legal constraints…” (299). Even on constitutional matters, typically jealously guarded by the judiciary, this was true. Indeed, it was because of the supposed (though unproven) expertise of decision-makers on constitutional questions arising in their ambit that deference was justified (Doré, at para 47).  Here, the various strands of functionalism are in full force, yielding a rather major shift in doctrine: courts must defer to administrators on constitutional matters.

Finally, Abella and Karakatsanis JJ’s opinion in Vavilov is perfectly representative of the sort of administrative law thinking that, as I will note, may be on its way out. In Vavilov, the Court implemented a number of changes to judicial review doctrine in Canada. One of these changes was a downgrading of expertise as a reflexive or presumptive deference factor (see Vavilov, at para 30). Now, there would be no assumption that “expertise” leads to deference—expertise would need to be proven through robust reasons (Vavilov, at para 31).  Additionally, the Court also clarified that in certain circumstances, the Rule of Law—as an apparently standalone, unwritten principle— would dictate that a standard of review of correctness should apply (Vavilov, at para 53 et seq). In these regards, and as I have written in other work, Vavilov  (at least in part) represents a more formalistic template of administrative law theory than what preceded it (796). For Abella and Karakatsanis JJ, this was the problem: to them, Vavilov was a “encomium for correctness and a eulogy for deference” (Vavilov, at para 201). Why? Because gone was expertise as a presumptive reason for deference, with the substitution of a “court-centric conception of the rule of law rooted in Dicey’s 19th century philosophy” (Vavilov, at para 240).

With these three cases taken together, Justice Abella’s views on administrative law can be sketched out. She often demonstrates an abiding trust in administrative decision-makers and their expertise over legal—and even constitutional—matters. This leads to a positioning of the administrative state as a partner in law-making and interpretation. Deference, put this way, is a recognition by a judicial actor of this apparently constitutional role of administrators. While this appears to be Justice Abella’s view on administrative law, it is worth noting that the Court as a whole seemed to largely accept this understanding of the relationship between courts and administrators.

***

Having set out the gist of Justice Abella’s general conception of administrative law, I now wish to show three problems with this understanding. To the extent the Court, in Vavilov, has walked back this understanding of administrative law, it should be celebrated. And while Justice Abella’s Doré opinion remains on the books, there are good reasons to think that it, too, will and should be overturned.

  1. Expertise

The first issue with Justice Abella’s view of administrative law, demonstrated throughout her tenure, is its problematic assumption of expertise. As demonstrated through the Supreme Court’s pre-Vavilov case law, and in Justice Abella’s opinions, “expertise” was a woefully underdeveloped doctrinal concept that carried with it great power. Its invocation—especially in relation to well-established decision-makers like labour boards—ensconced those decision-makers with a juridical and psychological immunity from judicial scrutiny. But the Court never explained what “expertise” meant, how it could be recognized by courts, and why a presumption of expertise (as hardened in Edmonton East) was at all empirically justified.

In fact, many issues with expertise arise that Justice Abella and others never addressed. The first and obvious issue is that “expertise” on legal matters may simply not always exist as an empirical matter. The Vavilov majority recognized this reality when it stated that if expertise is simply assumed in all cases, it cannot be a doctrinal concept that meaningfully assists a court in determining whether a particular decision-maker is actually expert (Vavilov, at para 27 ). But more importantly, the presence of expertise is based on an empirical assumption: administrators, operating within the confines of their legal schemes, can best transfer their policy expertise to the world of interpretation; their expertise can inform their understanding of their own statutory scheme, and as a result, courts should defer. But this is based on a number of unproven assumptions: (1) that particular decision-makers have relevant policy expertise; (2) that relevant policy expertise is easily transferrable to skills required to interpret statutes; (3) that relevant policy expertise will necessarily shed light on what particular legislative terms mean. Without answers to these questions, it is simply speculation to suggest that administrators possess expertise that would assist them in interpreting the law.

The assumption is even stranger when one considers constitutional questions. If courts are to defer to administrative consideration of the Constitution, a few more assumptions need to be added to the mix. It must be assumed that relevant policy expertise=relevant legal expertise=relevant constitutional expertise. While the Constitution is law, it is a sui generis law that contains its own meanings, purposes, and interpretive techniques. Absent some compelling reason to think otherwise, it is mind-boggling to simply assume that line decision-makers will reliably and expertly contribute to the meaning of the Constitution.

Secondly, the obsession with expertise in the case law and in Justice Abella’s opinions fails to recognize the dark side of expertise. The administrative state is gargantuan, and it does not only include benevolent, public-minded people applying their “neutral” expertise in authentic ways. Expertise can also cut the other way: it can lead to a decision-maker taking a myopic view of constitutional values, or otherwise subordinating constitutional or other general legal principles to the narrow exigencies of what is required by administrative “expertise” (see for example, Kerr, at 260).  Interestingly, Kerr writes in the prison context, where there is a professional environment that systematically values control over the exercise of constitutional rights–and where concerns about assumptions of expertise are grave, indeed (see the factum of the Queen’s Prison Law Clinic in Vavilov). A lack of familiarity with constitutional norms, and a professional environment that may not inhere respect for those norms, does not inspire confidence. Indeed, the Doré framework—which places constitutional “values” and statutory objectives on the same playing field, despite the hierarchy of laws—will underpower rights because it fails to accord priority to constitutional rights over administrative objectives (see the dissent of Brown and Cote JJ in TWU, at para 206).

Finally, Justice Abella’s deployment of the “expertise” label may have led her to undervalue the importance of reasoning in determining the legality of administrative decision-makers. Doré is an example of this undervaluing. In Doré, Justice Abella did not provide any detail on the standards to be used in determining whether an administrator’s reasoning met constitutional standards. It was enough  that administrator to “balance” (whatever that means) rights and objectives; indeed, in some cases, the administrator need only be “alive” to the Charter issues (TWU, at para 56). As I will note below, this is an empty theory of deference. It tends towards abdication based on faith in expertise rather than respectful deference. Relying on expertise as a faith-based reason for deference should not exclude the requirement for proper reasoning, as Vavilov confirms.

Now, the fact that administrators may not have expertise may not be fatal for Justice Abella. In her Vavilov opinion with Karakatsanis J, the judges note that internal administrative training could be a fix (see Vavilov, at para 283) rather than authorizing “more incursions into the administrative system by generalist judges who lack the expertise necessary to implement these sensitive mandates (Vavilov, at para 283). This is a nice thought, but it is a bit like allowing the fox to guard the henhouse. There is no reason to assume, without more, that administrators will undergo training sufficient to understand the Constitution, for example. Even if there was, internal training is clearly no substitute for judicial review by generalist judges. It is the very fact that judges are generalist that makes them well-suited to ensure that general legal concerns—like the Constitution—find expression in discrete administrative regimes, with their own internal pressures. And as a matter of law, judicial review must exist. In an ideal world, we would expect administrators to structure their discretion through robust legal training, and we would expect courts to act as a backstop.

2. Pluralism

A second theme seen throughout Justice Abella’s opinions is a focus on legal pluralism. As noted above, the idea is that administrators should be seen as valid contributors to the meaning of the law and Constitution—and thus, courts should not take a supervisory or command-and-control position vis-à-vis the administrative state.

Now, it should be noted that this theme presents two distinct questions. First is whether administrators should have the power to render binding interpretations of law and the Constitution. This normative point, however interesting, is somewhat moot, in part because of the success of Justice Abella’s administrative law theory over the years. Administrators, as a matter of law, do have the power to render binding interpretations of law & the Constitution, if they are delegated the power to do so (see Martin & Conway). In my view, the ability of administrators to do so is legitimate and legal. On ordinary questions of law, the legislature has validly delegated power to administrators to decide these questions in many cases. This legislative choice must be respected absent constitutional objection. On constitutional questions, the issue is trickier, but I can certainly concede that administrators should be able to render interpretations of constitutional law as a function of their subjection to constitutional norms. In other words, if the Constitution is seen as binding on all state actors (as it should be), then it is inevitable that administrators will need to deal with the Constitution. When they do so, they are determining whether the bounds of the Constitution hem in their decision-making power. This calculation is essential if administrative actors are to be bound by the law and the Constitution.

So far as this goes, the administrative state can contribute to the meaning of law. But not too much should be made of this statement. That is because, as a matter of fact and law, administrators and judges are not on an equal playing field. Judicial review necessarily implies a relationship where one body (the court) has the authority and power to correct and surveil another body (the administrator). As a matter of law, that supervisory jurisdiction must remain (see Crevier), and it may even need to occur at a certain stringency on certain questions. As a result, there can never be a perfect equality between administrators and courts, as Justice Abella suggested.

In this way, Vavilov is a drastic improvement over what preceded it. Vavilov clearly states that administrators can and do contribute to the meaning of law, even if judicial justice does not resemble administrative justice (see Vavilov, at para 92). As far as it goes, this is an accurate descriptive statement that acknowledges the current state of Canadian administrative law. But Vavilov does not counsel abdication to administrative power. It instead insists on stringent reasoning requirements, particularly as regards the law (see Vavilov, at para 108 et seq) with only a small margin for error (Vavilov, at para 122). By doing so, it ensures that courts have standards by which they can assess administrative exercises of power, without unduly trenching on jurisdiction delegated to an actor besides the courts.

What we see here is a difference between deference as rooted in the supervisory role of the courts and deference rooted in some external appreciation of the administrative state. In our constitutional system, it is simply the reality that there must be judicial review. The way courts review administrative action puts them in a supervisory position over delegated power. This hierarchy is inescapable. Courts can–and have–developed doctrines of deference based on notions of legislative supremacy. But that doctrine of deference is quite different than one based on expertise. In the former case, deference is plausibly rooted in a exercise of constitutional power by a coordinate branch of government. Deference is not justified by a court assuming–without more–that a decision-maker could come to a “better” decision than the court. As a side note, all of this makes the last piece of Justice Abella’s administrative law legacy–Doré –vulnerable. As I wrote in this paper, the downgrading of expertise as a reflexive reason for deference and the role of the Rule of Law in anchoring the standard of review (correctness on constitutional questions) at least raise the question of Doré ‘s long-term health.

Justice Abella, in her recent co-authored article, argues that such assertions on the basis of formal constitutional materials provide no answer to her conception of administrative law. She and her co-author note that the Secession Reference, which gave a place of priority to unwritten principles of constitutional interpretation, “acknowledges the political nature of law and embraces the idea that although the government is of course constrained by legality, legality is itself a political question capable of sustaining several answers” (295). To the authors, the Secession Reference ushers in a new era that demonstrates that all institutions can take part in the making of law, lending new legitimacy to the administrative state. So, an argument as I have made on the basis of the Constitution–to the authors–is a non-starter.

Needless to say, I find this retort particularly unconvincing for a number of reasons. First, whether law is “political” or not is besides the point. While law is the product of politics, interpretive pluralism should not be taken as an excuse to simply favour the decision-makers that form the political valence we may prefer. It is the legislature’s political choices–not the court’s–that are relevant in determining the space for deference.

Secondly, Vavilov throws a ton of cold water on Justice Abella’s understanding of the Secession Reference. The Secession Reference endorses the Rule of Law as an unwritten principle of constitutional law that can give rise to substantive obligations. To the Court in its various cases, the Rule of Law is understood in a formal sense, as having to do with the subjection of government power to rules in a system of positive laws (see Secession Reference, at para 71). This is a largely formal understanding of the Rule of Law. As an analogue to this understanding, the Court has held that the Rule of Law and s.96 Constitution Act, 1867 together protect the role of the superior courts in conducting judicial review (see, again, Crevier) and protecting core superior court powers (see MacMillan Bloedel). This formal understanding of the Rule of Law was extended in Vavilov. The Court held that legislatures were not free to set up the administrative state as theu wished: legislatures could only specify the standard of review “within the limits imposed by the Rule of Law” (Vavilov, at para 35).

This understanding of the Rule of Law as an unwritten principle, and its relationship to administrative pluralism, should not be understated. Under this understanding, the Rule of Law protects not only the existence of judicial review, but it prevents legislatures from insulating administrative actors from curial scrutiny at a certain intensity on certain questions. The fact that the Rule of Law and s.96 are understood in this way serve to make a point: it would be unconstitutional, in fact, for legislatures to make administrators perfectly equal to superior courts, in a legal sense. The role of superior courts is protected constitutionally, in part, because of its importance in maintaining the Rule of Law. This invites a hierarchical relationship between courts and administrative decision-makers.

All told, the retirement of Justice Abella will be a landmark moment for the Court in many ways. And given Justice Abella’s popularity in the legal community, I have no doubt her retirement will be appropriately marked. But, as lawyers, the retirement of a prominent judge presents us an opportunity to review the body of her work. In the world of administrative law, Vavilov represents the first major effort to overcome Justice Abella’s persuasive legacy. This is welcome.

No matter what, I wish Justice Abella well on her retirement.

Ontario’s COVID-19 Discretion Tragedy

Ontarians watched with a mix of horror and confusion on Friday as Premier Ford and medical officials announced what could only be described as drastic measures to, apparently, curb the spread of COVID-19 and its related variants. While the government has flip flopped on these measures since, and it is unclear if further changes are coming, these measures would have (and as I will point out, probably still do) significantly empower the police to enforce Ontario’s stay-at-home (SAH). These measures raise a whole host of enforcement concerns, ones that should worry all Ontarians.

In this post, I briefly review the state of affairs as they stand. I then make two general comments about the recent measures. First, the measures demonstrate why discretion is presumptively risky, even if a modern system of government requires it to function. Second, the measures demonstrate why a relatively thin version of the Rule of Law is a necessary but insufficient condition for a society that respects civil liberties. Instead, the Ontario example shows that a populace concerned with legality will sometimes act as a better check on discretionary power than the courts. This is a highly desirable feature of a society built around the Rule of Law.

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On April 7, the Ontario government announced enhanced measures “in response to the rapid increase in COVID-19 transmission, the threat on the province’s hospital system capacity, and the increasing risks posed to the public by the COVID-19 variants.” The so-called SAH applied province-wide, and required “everyone to remain at home except for essential purposes, such as going to the grocery store or pharmacy, accessing health care services (including getting vaccinated), for outdoor exercise, or for work that cannot be done remotely.” The SAH also had some measures dealing with retail opening and staffing.

The province upped the ante last Friday, when it announced enhanced measures adopted in relation to the SAH to fight COVID. There were a few iterations of these measures, and the timeline is somewhat confusing, but below is my attempt to summarize the happenings (I do not include, here, any information about the interprovincial travel measures or the so-called “playground” measures:

  • On Friday, the provincial government gave police the power to require any individual not at home, on the street or in their cars, to provide the reason that they’re out and provide their home address. Put differently, the police had the power under this order to stop anyone randomly.  This rather surprising delegation of power, when it was announced by the Premier and medical officials, was not cabined by any limiting principle; ie, to many of us on Friday, it did not appear that the police even required “reasonable and probable grounds,” a constitutional standard, to stop anyone.
  • In response to the announcement, various police forces across the province intimated that they would not enforce the new rules, to the extent that they required random vehicle or individual stops (see ex: Waterloo Regional Police). The Ontario Provincial Police, however, seemed to suggest it would enforce the random stops (see here).
  • On Saturday, the relevant text of the regulation was released (as an amendment to O. Reg. 8/21 (ENFORCEMENT OF COVID-19 MEASURES). The amended regulation, at s. 2.1, specifically gave the police the power to require information from an individual “not in a place of residence.” This information included an address, as well as “the purpose for not being at their residence, unless the individual is in an outdoor or common area of their residence.”
  • On Saturday evening, Solicitor General Sylvia Jones announced that officers would no longer be able to stop any pedestrian or driver to ask why they’re out or to request their home address. The new regulation makes two important changes:
    • The range of information the police could collect in a stop in which they have reasonable grounds was seemingly expanded by the regulation (adding date of birth, for example).

As of moment of publication, this is where we stand. I turn now to analyzing this series of events in the two frames I have set out (1) discretion and (2) the Rule of Law.

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Modern government is built on discretion. The insight here is simple. Legislatures cannot make all the laws they need to make to cover all policy or legal problems that exist in a modern society. As such, legislatures in Canada have chosen to take advantage of the supposed expertise of administrative actors, delegating power to make and enforce laws. They have also, relatedly, delegated power to Cabinet to adopt law quickly through regulation. The finely wrought legislative process will not always be reactive or quick enough to deal with problems, and so delegation is a way to create a more responsive body of law.

This is the positive side of the story.  But as KC Davis famously argued in his text Discretionary Justice: “…every truth extolling discretion may be matched by a truth about its dangers. Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder” (25). While it is important that a modern system of government can individualize justice, as Davis put it, there are costs to doing so.

The costs can be minimized, but often aren’t. Legislatures in Canada often delegate power to various recipients in the broadest fashion possible, and they generally do not fulsomely analyze the content of regulations adopted, after the fact. There are the famous “public interest” delegations that are legion in the statute books, for example. These delegations cannot be broader, in part because they ask the recipient of the delegation to decide themselves whether the public interest is met by a particular exercise of discretion.

Now, there is not a strict dichotomy between “rule” and “discretion,” but rather discretion starts where rules “run out”: “The problem is not merely to choose between rule and discretion, but…to find the optimum point on the rule-to-discretion scale” (15).  Davis’ idea of “structured discretion” is relevant here. To Davis, “[t]he purpose of structuring is to control the manner of the exercise of discretionary power within the boundaries” [97].  While Davis’ discussion is focused on the American rule-making context, the idea is equally relevant to us: legislatures and administrators themselves can choose, in certain circumstances, to confine their discretion through targeted delegations, policies and guidance documents, and precedents. This does happen: one might look at Ontario’s Emergency Management Act, particularly section 7.0.2, to see how a delegation can be cabined, even weakly (delegation to make orders in a declared emergency).

The problem with discretion, however, is that the systemic incentives tend towards permitting wide discretion that can be abused. Legislatures that are delegating because they cannot make laws themselves are probably not inclined to truly structure discretion: the Ontario emergency legislation is an example. Administrators, police officers, and other actors have no real incentive themselves to exercise their discretion within the bounds of law (except a political one, which I will note below). In fact, the institutional pressures of their own administrative settings may encourage ad hoc reasoning and decision-making, relying on broad delegated authority, in order to accomplish what they see as their policy goals. This is all hypothetical, of course, but the point is that when any government official is exercising delegated power, there is no real reason for them to exercise discretion properly (whatever that means in context), and especially so where the possibility of ex post judicial review is unlikely, or the strength of that review will be highly deferential.

In certain administrative contexts, abused discretion (in the notional sense, not the legal sense) carries grave consequences. Expropriation of land is an example. The police are another example. Police carry any number of discretionary powers, and police are constantly up against the rights and dignity of individuals. Recent events illustrate that police discretion—to detain someone, to arrest them, even to shoot them—can be easily abused based on irrelevant characteristics, such as race or class stereotypes. We have seen this story too many times to say that discretion is some inherently benevolent legal concept.

This is what made Ontario’s original order so surprising. A system of random stops is positively unstructured discretion. While, in normal circumstances, the delegation of legislative power cannot be constitutionally impeached, the legislature does not have the power to delegate a power to administrators or police to breach the Constitution: see Vavilov, at para 53. In this case, this unstructured discretion is likely unconstitutional (see here), even if it is validly delegated. This isn’t surprising: the discretion is so broad that the possibility of unconstitutional implementation is too great to bear.

Some might say it is a vindication of the police that many decided not to enforce the order. But this is simply not enough, for two reasons. First, not all police chose this path: as I mentioned above, the OPP had every intention, it seemed, of enforcing the original order as written. Secondly, the point is that there is no legal incentive (except the political one I mention below) that mandated the police to opt out of enforcing these measures. In the strictest positivist perspective, actually, until a court has rendered the delegated power or a government act unconstitutional, the law must be enforced. But as I will note below, there are other controls for potentially unlawful government conduct.

Additionally, one might think that the refined regulation is better. After all, it does seem to incorporate some “structuring” language: it includes the “reasonable and probable ground” language. This may insulate it from constitutional scrutiny, but that does not mean that the discretion is proper from a public governance standpoint (rather than a strictly legal one). This is barely structured discretion (much like the emergencies legislation). As Nader Hasan points out, on close reading of the regulation, it does appear that the police can stop people that they subjectively believe have violated certain rules, and then obtain any information they wish. The regulation compels an answer if the police can clear the “reasonable cause” threshold, which they likely could in most cases, given that if one is outside, they may be about to attend a prohibited public gathering, or about to return home from one. This could then lead to other information gathered about potential criminal activity that otherwise could not be obtained but for the pretense of the “COVID stop.” Because it is up to the police themselves to form the reasonable suspicion, there are many potentially irrelevant factors that could infect the discretion.

This is not to say that all police will always abuse their discretion. Many police officers perform their roles honourably, and I bet many officers did not want or ask for the powers that were granted to them. But, nonetheless, the Ontario example demonstrates the problem with discretion. There is no incentive for legislatures or the Cabinet to heavily structure discretion. In this case, the government obviously decided that an unfettered police power would best accomplish its goals. As citizens, we should be worried that this was the government’s first choice—not only because it is unconstitutional, but because of the potential error rate and abuse.

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Finally, I want to say a few words about what this saga tells us about the Rule of Law.

There is a vibrant, old debate about what the Rule of Law accomplishes. Historically, some have said the Rule of Law is the rule of courts (Dicey is often said to represent this view: see Justice Abella & Teagan Markin’s recent piece). Others have suggested that the Rule of Law is much broader, encompassing substantive guarantees (see Lord Bingham’s book). Without taking a side in this debate, there is a subsidiary question: whose responsibility is it to preserve the Rule of Law?

Clearly, the courts play a vital role in preserving the Rule of Law. This is a point that requires no citation. We need a system of adversarial courts, and such a system is probably constitutionally prescribed. Moreover, we need a system of courts to police the boundaries of discretionary action. Courts ensure that administrative action falls within the bounds of the law, and in Canada, this is where the bulk of control over the administrative state occurs. Most reasonable people agree that we need this system of courts.

But these courts are only a necessary condition for legality to flourish. More is needed. Most notably, as Dicey notes (and as Mark Walters explores in his work), a Rule of Law society cannot depend on formal legality as the only requirement. What is required is a society of individuals who embody a “spirit of legality.” People need to jealously, but within reason, guard their constitutional rights that are protected in positive law. But they also need to see the Constitution as a floor rather than a ceiling. Troublesome discretionary acts can be perfectly constitutional but be undesirable because they increase the error rate of enforcement or liberate government actors to an unacceptable degree. What is required is a vigilant population, especially in an emergency situation where civil liberties might be the first legal rights to fall by the wayside.

Many people, on this front, acted appropriately in calling out the Ford government for its adoption of the first tranche of measures on Friday. It was this mass outcry, I think, that forced the government into walking back its original measures. This public outcry was essential. There was little chance (apart from an injunction) that any litigant would be able to stop the enforcement of these measures in time. In this case, it was a concerned population that forced the government to change its laws. One should never underestimate the power of political controls in hemming in potentially unconstitutional government conduct. Any society that says it is bound by the Rule of Law will be incomplete if it does not encourage vigilance and skepticism regarding government acts.

This is not to say that the balance has been appropriately struck throughout the pandemic. I’m not sure, from a policy perspective, if the SAH had the desired effect, for example–despite the cost it exacted in civil liberties. But we have to celebrate wins when they happen. Such is life.

An Oddity in Strom

In October, the Saskatchewan Court of Appeal released its much-anticipated decision in Strom. Strom raised a number of important issues: “ “at the intersection between professional regulation, Ms. Strom’s private life, and the s.2(b) Charter guarantee of freedom of expression in the age of social media.”  

Strom was a registered nurse. Her grandfather tragically passed at a long-term care facility. Strom took to Facebook to criticize the care her grandfather received at the facility. The facility’s employees reported the comments to the Saskatchewan Registered Nurses’ Association (SRNA). The SRNA charged Strom with professional misconduct, and the SRNA Discipline Committee found her guilty.

The Court ultimately overturned the Discipline Committee’s decision. For many reasons that I cannot explore here, I think this is the right decision, in law and in principle. But one aspect of the decision is of particular interest to me: the Court’s standard of review discussion as it related to the freedom of expression arguments raised by Strom.

Of course, in such a case, the framework that governs the standard of review analysis is Doré. Doré holds that the standard of review when a court reviews an administrative decision is reasonableness (Doré, at para 7). Doré also introduces a proportionality framework for assessing whether a decision-maker has struck a reasonable balance between the Charter right at hand and the statutory objective. Post-Vavilov, it is at least an open question about whether Doré is still good law. This is because Vavilov reaffirms that, when litigants challenge a law under the Constitution, the standard of review is correctness (Vavilov, at para 56). I, for one, have questioned why it is that different standards of review should apply, especially since the Court in Vavilov recognized that  legislatures cannot “…alter the constitutional limits of executive power by delegating authority to an administrative body” (Vavilov, at para 56).

Enter Strom.  In that case, both parties agreed that the standard of review is correctness on the Charter issue (Strom, at para 133). The Court also agreed, but only because the case came to court via a statutory right of appeal, and under Vavilov, statutory rights of appeal invite the appellate standards of review (correctness on questions of law, palpable and overriding error on questions of fact/mixed fact and law) (see Strom, at para 133). The Court noted, though, the following, at para 133:

It is not necessary to consider the question left unanswered by Vavilov, at paragraph 57; that is, what is the standard of review when the issue of whether an administrative decision has unjustifiably limited Charter rights is raised on judicial review, rather than on appeal?

This, in itself, is not really problematic. Given the fact that, for now, Doré lives another day, it would not be appropriate for an appellate court to apply the correctness standard to Doré-type situations. It is defensible—and proper—to simply classify a constitutional issue as a question of law that falls under the scope of an appeal right. And at the end of the day, it does not matter much for a results perspective, because the standard will be correctness either way.

However, in choosing the correctness standard, the Court then did something that is difficult to understand. It said the following, at para 140:

What, then, is an appellate court’s task when reviewing whether the decision of an administrative body unjustifiably infringed a Charter right? In substance, that task is summarily described in Doré at paragraph 6, despite the fact that the standard of review is correctness. The Court’s task is to determine whether the decision-maker disproportionately limited the Charter right or struck an appropriate balance between the Charter right and statutory objectives.

The Court went on to describe the question raised by the case, at para 166:

The question as to whether it has imposed excessive limits is the proportionality question. Here, it is whether the Discipline Committee advanced its statutory objective in a manner that is proportionate to the impact on Ms. Strom’s right to freedom of expression. One aspect of that question is whether the impact on her freedom of speech in her private life was minimal or serious.

The Court then went on to apply the Doré framework, though made reference to some parts of the Oakes test (see para 153).

This strikes me as an oddity. Let’s take what the Court describes its task to be. When courts apply the correctness standard, courts focus on “the conclusion the court itself would have reached in the administrative decision maker’s place” (Vavilov, at para 15). The proportionality analysis advanced in Doré, however, seems to have deference built-in to it. While Doré notes that the Oakes test and the Doré framework “exercise the same justificatory muscles,” (Doré, at para 5), Doré deference asks courts to give some weight to the statutory objective being advanced by the decision-maker. This was, indeed, a bone of contention for the dissent of Brown and Côté JJ in Trinity Western. But when a court conducts correctness review, at least in theory, the court should not give any weight to what the decision-maker’s reasons are for making

That said, there are no perfect Platonic forms in law. It is true that Oakes itself has developed to contemplate deference in its application. And it is also true that courts, post-Vavilov, have applied what I call “light correctness review” (see Planet Energy, at para 31), where a certain amount of weight is given to the decision-maker’s “…interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.” This could be seen as a sort of Skidmore-like deference, under which courts give non-binding weight to an administrative interpretation.

That said, the inherently deferential idea of Doré review seems inconsistent with a stringent application of the correctness standard. This, to me, is a theoretical oddity, even if its effect is blunted on the edges.

Neutrality in Legal Interpretation

Nowadays, it is unfashionable to say that legal rules, particularly rules of interpretation, should be “neutral.” Quite the opposite: now it is more fashionable to say that results in cases depend on the “politics” of a court on a particular day. Against this modern trend, not so long ago, it was Herbert Wechsler in his famous article “Towards Neutral Principles of Constitutional Law” who first advanced the idea of neutral principles. He wrote that, because courts must not act as a “naked power organ,” they must be “entirely principled” (Wechsler, at 19). They are principled when they rest their decisions “on reasons with respect to all the issues in the cases, reasons that in their generality and their neutrality transcend any immediate result that is involved” (Wechsler, at 19). The goal of these so-called “neutral principles” was to avoid “ad hoc evaluation” which Wechsler called “the deepest problem of our constitutionalism” (Wechsler, at 12). While Wechsler did not put it this way, I think textualism—particularly in statute law—is the closest thing to neutrality we have, and should be defended as such.

Wechsler’s idea of neutral principles, and textualism itself, are subject to much controversy. But, in my view, it is without a doubt that a deep problem in Canadian law remains “ad hoc evaluation,” otherwise known as “results-oriented reasoning.” Some judges are starting to recognize this. In constitutional law, Justices Brown and Rowe in the recent s.15 Fraser case noted that “substantive equality”—while a laudable doctrinal goal—has been ill-defined in the cases, and “has become an open-ended and undisciplined rhetorical device by which courts may privilege, without making explicit, their own policy preferences” (Fraser, at para 146). The same potential problem attends statutory interpretation, where results-oriented reasoning is possible (Entertainment Software Association, at para 76), and administrative law, where Vavilov was concerned with provides a rules-based framework for the application of deference. All of this is positive, because it provides a guide for judges in applying rules, ensuring that the reasoning process is transparent, bound, and fair to the parties.

But, in many ways, neutrality as a principle in our law is under attack. A common adage has become “law=politics,” and this broad, simple statement has elided the nuances that must apply when we speak of interpretation. This is true on both sides of the “political aisle” (a reference I make not out of any desire to do so, but out of necessity). Some who believe in notions of living constitutionalism or unbounded purposivism would tie the meaning of law to whatever a particular political community thinks in the current day, ostensibly because the current day is more enlightened than days past. In some ways this might be true as a factual matter (putting aside questions of legitimacy). But, as we are learning in real time, we have no guarantee that the present will be any more enlightened than the past.  Still others now advance a novel idea of “common good constitutionalism,” under which the meaning of constitutional text—whatever it is—must align with a “robust, substantively conservative approach to constitutional law and interpretation.” The goal is a “substantive moral constitutionalism…not enslaved to the original meaning of the Constitution.” These views have something in common: they purport to view the interpretation of law as a means to an end, reading in to legal texts contentious, political values that may or may not be actually reflected in the laws themselves.

The attack on neutrality from these camps—that span the spectrum—follow a familiar path, at least implicitly. They reason from an end. In other words, the argument assumes that some end is coextensive with moral justice, whatever that is. It assumes that the end is a good thing. It then says that the law should encompass that end because it is good.

Legal interpretation should not work this way. Laws, whether statutes or Constitutions, embody certain value choices and purposes. They have an internal meaning, quite apart from what other people want a particular law to mean. In this way, it is true that law is a purposive activity, in that law does pursue some end. But, as is well known, law is not co-extensive with justice, nor is it helpful to the interpretation of laws to say they pursue the “common good” or some other bromide. Even if one could come to some stable definition of such terms (a tall task indeed) that could guide the task of legal interpretation, it isn’t clear that all of the goals associated with some external philosophy are co-extensive with the law as adopted.   Laws do pursue purposes, but they do not do so at all costs—they often pursue limited or specific goals that are evident only when one reads the text (see the debate in West Fraser between the opinions of McLachlin CJC and Côté J on this point). This is why purpose is usually best sourced in text, not in some external philosophy.

If we accept that law is indeed a purposive endeavour, and that the words used by legislatures and drafters are the means by which purposes are enacted, then textualism is a defensible way of discovering those purposes. Textualism is simply the idea that we must read text to discover all that it fairly encompasses. Textualism is really a family of tools that we can use to discover that text. There are the linguistic canons—ejusdem generis, and the like—that are generally based on the way humans tend to speak in ordinary terms. There are contextual canons, such as the rule that statutes must be interpreted holistically. There are substantive canons of construction (which I will get to later). And there are other tools, like purpose, which can guide textualist interpretation so long as it is sourced properly. Unlike other theories of “interpretation,” these tools are designed to find the meaning of the law from within, rather than imposing some meaning on it without.

I can think of at least three (and probably more) objections to the point I am making here. First, one might say that textualism and its family of tools are not themselves neutral. For example, some of the substantive canons of construction might be said to be imbued with presuppositions about the ways laws must be interpreted. For example, there is the rule that statutes altering the common law require a clear statement in order to do so.  This is not a value-neutral tool, it could be said, because it makes it difficult for statutes to override what one might call a generally “conservative” common law. I do see the merit of this argument, which is why I (and some other textualists) may wish to assign a lesser role to substantive canons. Indeed, since I believe in legislative sovereignty, the legislature should be able to change the common law without a clear statement. Of course, these canons could be justified on other grounds that I do not have space to explore here. For example, they could be justified as a matter of precedent, or as a matter of “stabilizing” the law.

Second, one might trot out the familiar canard that textualism as a general matter leads to “conservative” outcomes. To put this argument in its most favourable light, one might say that textualism leads to cramped interpretations of statutes, robbing them of their majestic generalities that could serve to achieve certain political aims. It’s worth noting three responses to this position. First, the “cramped interpretation” argument tends to conflate strict constructionism and textualism. Indeed, textualism may sometimes lead to “broad” interpretation of statutes if text and purpose, working synthetically, lead to that conclusion. A great recent example is the Bostock decision from the United States Supreme Court, which I wrote about here. There, textualism led to a result that was actually more protective of certain rights.  Second, the use of political labels to describe legal doctrines is a pernicious trend that must come to an end. Even if these labels were actually stable in meaning, and not themselves tools of cultural warfare, it is unfair to assume that any one legal theory is always something. I understand the need to box everything, these days, into neat categories. But sometimes, law can mean many different things. And tools used to interpret those laws, as much as possible, should remain apart from the political aims those laws wish to pursue.

Third, it might be said that true neutrality is not of this world. That is, it could be argued that a Solomonic law is impossible, and no matter what, the act of interpretation is a fundamentally human activity that will be imbued with traditionally human biases. I accept this point. Because judges are humans, no system of rules will always remove the human aspect of judging, nor should it. The best we can do is design a system of rules, in mind of the tradeoffs, that limits the pernicious forms of biases and political reasoning that could infect the law. We won’t always get it right, but we should not take the nihilistic view that the entire enterprise of law as something separate from politics is not worth pursuing.

Finally, one might argue that law is inextricably political. It is cooked up in legislatures made up of thoroughly political individuals, with agendas. It is enforced by people who have biases of their own. I also accept this point. But this argument, to me, runs up against two major problems that limit its force. First, while the making of law may be a political activity, that does not mean that the rules we use for interpretation should be. Not at all. In fact, one might say that the rules of interpretation should be used to discover the meaning of the law, whatever political result it encompasses. Second, there is a major is/ought problem here. Just because the making of law is political does not mean we should not be concerned with a system of rules designed to limit biases that might infect the judging process. All people, regardless of ideology, should find this goal laudable.

I close with this. I understand that we live in sclerotic times in which there are passionate political views on many sides. There is a natural tendency to impose those views into law. We lose something when this happens. While perhaps not a sufficient condition for legitimacy, it is central to the Rule of Law that laws be promulgated and interpreted in a fair way. Generality, as Wechsler notes, is one guarantee of fairness. If we give up on generality and neutrality in interpretation, then we must admit that judges are simply political actors, agents of politicians, without any need for independence. It is self-evident that this is undesirable.

Linguistic Nihilism

One common line of attack against textualism—the idea that “the words of a governing text are of paramount concern, and what they convey, in their context, is what the text means (Scalia & Garner, at 56)—is that language is never clear, or put differently, hopelessly vague or ambiguous. Put this way, the task of interpretation based on text is a fool’s game. Inevitably, so the argument goes, courts will need to resort to extraneous purposes, “values,” social science evidence, pre or post-enactment legislative history, or consequential analysis to impose meaning on text that cannot be interpreted.

I cannot agree with this argument. For one, the extraneous sources marshalled by anti-textualists bristle with probative problems, and so are not reliable indicators of legislative meaning themselves. More importantly, an “anything goes” approach to interpretation offers no guidance to judges who must, in tough cases, actually interpret the law in predictable way. In this post, I will explore these arguments. My point is that a sort of linguistic nihilism that characterizes anti-textualist arguments is not conclusive, but merely invites further debate about the relative role of text and other terms.

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Putting aside frivolous arguments one often hears about textualism (ie: “it supports a conservative agenda” or “it is the plain meaning approach”), one clear criticism of textualism is that interpretation is not self-executing. Jorge Gracia, for example, writes:

…texts are always given in a certain language that obeys rules and whose signs denote and connote more or less established meanings. In addition, the audience cannot help but bring to the text its own cultural, psychological, and conceptual context. Indeed, the understanding of the meaning of a text can be carried out only by bringing something to the text that is not already there…

Gracia, A Theory of Textuality: The Logic and Epistemology, at 28

Sullivan calls this situation the “pervasive indeterminacy of language” (see here, at 206). Put this way, as Sullivan notes, it is impossible to interpret text in its linguistic context:

It is not possible for judges  who interpret a provision of the Criminal Code or the Income Tax Act to wipe out the beliefs, values and expectations that they bring to their reading. They cannot erase their knowledge of law or the subject of legislation. They cannot case aside legal culture, with its respect for common law and evolving constitutional values…Like any other readers, if they want to make sense of a text, judges must rely on the context that they themselves bring to the text (see 208).

This form of linguistic nihilism is highly attractive. So goes the argument, if texts cannot be interpreted on their own, judges should and must bring their own personal biases and values to the text, as a desirable or inevitable result of the unclear text. And if that’s the case, we should adopt another type of interpretive record—perhaps one that centres what a judge in a particular case thinks the equities ought to be.

**

This argument aside, I find it hard to accept. First, the tools that are inevitably supposed to resolve these ambiguities or vagueness themselves are ambiguous and vague; so it is hard to hold them up as paragons of clarity against hopelessly clear text.

Let’s consider, first, the tools often advanced by non-textualists that are supposed to bring clarity to the interpretive exercise. Purpose is one such tool. In Canadian statutory interpretation, purpose and context must be sourced in every case, even when the text is admittedly clear on first blush (ATCO, at para 48). Put together, text, context, and purpose must be read together harmoniously (Canada Trustco, at para 47). But sometimes, purpose is offered by anti-textualists as an “out” from ambiguity or vagueness in the text itself. The problem is that sourcing purpose is not self-executing either. Purpose can be stated at various levels of abstraction (see here, and in general, Hillier). In other words, purpose can be the most abstract purpose of the statute possible (say, to achieve justice, as Max Radin once said); or it could be the minute details of particular provisions. There can be many purposes in a statute, stated in opposite terms (see Rafilovich for an example of this). Choosing purposes in these cases can be just as difficult as figuring out what words mean. This is especially so because the Supreme Court has never really provided guidance on the interaction between text and purpose, instead simply stating that these things must be read “harmoniously.” What this means in distinct cases is unclear. This is why it is best to source purpose with reference to text itself (see here).

Legislative history also presents well-known problems. One might advance the case that a Minister, when introducing a bill, speaks to the bill and gives his view of the bill’s purpose. Others may say differently. In some cases, legislative history can be probative. But in many cases, legislative history is not useful at all. For one, and this is true in both Canada and the US, we are bound by laws; not by the intentions of draftspeople. What a Minister thinks is enacted in text does not necessarily equate to what is actually enacted (see my post here on the US case of Bostock). There may be many reasons why bills were drafted the way they were in particular cases, but it is not probative to think legislative history (which can be manipulated) should be some cure-all for textual ambiguity or vagueness.

Finally, one might say that it is inevitable and desirable for judges to bring their own personal values and experiences to judging and interpreting statutes. This is a common refrain these days. To some extent, I agree with those who say that such value-based judging is inevitable. Judges are human beings, and are not robots. We cannot expect them to put aside all implicit value judgments in all cases. But one of the purposes of law, and of the rules of interpretation, is to ensure that decisions are reasoned according to a uniform set of rules applicable across the mass of cases. We have to limit idiosyncratic reasoning to the extent we can/ If we give up on defining with clarity such rules—in order to liberate judges and their own personal views—we no longer have a system of interpretation defined by law. Rather, we have a system of consequences, where judges reach the results they like based on the cases in front of them. This might sound like a nice idea to some, but in the long run, it is an unpredictable way to solve legal disputes.

**

If all of the tools of interpretation, including text, are imperfect, what is an interpreter to do? One classic answer to this problem is what I call the “anything goes” approach. Sullivan seems to say that this is what the Supreme Court actually does in its statutory interpretation cases (see here, at 183-184). While I question this orthodox view in light of certain cases, I take Sullivan’s description to be indicative of a normative argument. If the Supreme Court cannot settle on one theory of interpretation, perhaps it is best to settle on multiple theories. Maybe, in some cases, legislative history is extremely probative, and it takes precedence over text. Maybe, in some cases, purpose carries more weight than text. This is a sort of pragmatic approach that allows judges to use the tools of interpretation in response to the facts of particular cases.

This is attractive because it does not put blinders on the interpreter. It also introduces “nuance” and “context” to the interpretation exercise. All of this sounds good. But in reality, I am not sure that the “anything goes” approach, where judges assign weight on various tools in various cases, is all that helpful. I will put aside the normative objections—for example, the idea that text is adopted by the legislature or its delegates and legislative history is not—and instead focus on the pragmatic problems. Good judicial decisions depend on good judicial reasoning. Good judicial reasoning is more likely to occur if it depends less on a particular judge’s writing prowess and more on sourcing that reasoning from precedential and well-practiced rules. But there is no external, universal rule to guide the particular weights that judges should assign to various tools of interpretation, and even further, what factors will guide the assignment of weights. At the same time, some people might argue that rules that are too stringent will stymie the human aspect of judging.

In my view, an answer to this was provided by Justice Stratas in a recent paper co-authored with his clerk, David Williams. The piece offers an interesting and well-reasoned way of ordering tools of interpretation. For Stratas & Williams,  there are certain “green light” “yellow light” and “red light” tools in statutory interpretation. Green light tools include text and context, as well as purpose when it is sourced in text. Yellow light tools are ones that must be used with caution—for example, legislative history and social science evidence. Red light tools are ones that should never be used—for example, personal policy preferences.

I think this is a sound way of viewing the statutory interpretation problem. The text is naturally the starting point, since text is what is adopted by the legislature or its delegates, and is often the best evidence of what the legislature meant. Context is necessary as a pragmatic tool to understand text. Purpose can be probative as well, if sourced in text.

Sometimes, as I mentioned above, legislative history can be helpful. But it  must be used with caution. The same goes with social science evidence, which might be helpful if it illustrates the consequences of different interpretations, and roots those consequences back to internal statutory tools like text or purpose. But again, social science evidence cannot be used to contradict clear text.

Finally, I cannot imagine a world in which a judge’s personal views on what legislation should mean should be at all probative. Hence, it is a red light tool.

In this framework, judges are not asked to, on a case-by-case basis, assign weights to the tools that the judge thinks is most helpful. Instead, the tools are ranked according to their probative value. This setup has the benefit of rigidity, in that it does assign objective weight to the factors before interpretation begins. At the same time, it keeps the door open to using various tools that could deal with textual ambiguity or vagueness.

The point is that textualism cannot be said to be implausible simply because it takes some work to squeeze meaning out of text. The alternatives are not any better. If we can arrange text at the hierarchy of a list of other tools, that may be a solid way forward.

What Needs to Be Said

Sometimes people say things that need to be said. These things may make us uncomfortable. They may force us to look in the mirror. They may ask us to really sit and think about our conduct. We might not like to hear these things, but they might start a discussion. Or maybe they will force us to change our ways.

Enter Stratas JA in Canada v Kattenburg, 2020 FCA 164. Here, Stratas JA says what needs to be said. In the decision, Stratas JA shines a light on two increasing tendencies in Canadian law: (1) the tendency of some intervenors, contrary to governing jurisprudence, to insert international law or policy preferences in the interpretation of legislation, particularly in the discernment of legislative purpose and (2) the tendency for some judges, in extra-judicial speeches or otherwise, to weigh in on matters of public policy, typically left to the political branches. Stratas JA has launched an important conversation that we should embrace, tough as it is.

International Law and Statutory Interpretation

Let me start with the basic facts of the case. The Canadian Food Inspection Agency decided that certain wine imported to Canada from the West Bank are “products of Israel” (see the Federal Court’s decision in 2019 FC 1003 at para 3). The judicial review, among other issues, concerned whether the wine could be labelled as “products of Israel.” That’s it. Under ordinary administrative law principles, the court will assess whether the decision of the CFIA is reasonable. A typical legal task.

Here’s where it gets hairy. Sometimes, international law can enter the act of legal interpretation. If you want to know more about how this is the case, see my post on Stratas JA’s decision in Entertainment Software. The point is that international law can only be relevant to the interpretation of Canadian law where it is incorporated in domestic law explicitly, or where there is some ambiguity. Parliament remains sovereign because it controls the international law it adopts; indeed, “[s]ometimes it is clear…that the purpose of a legislative provision is to implement some or all of  an international law instrument” (Kattenburg, at para 25) (see Gib Van Ert, here, for some nuance on this). Other times, there is ambiguity that permits the consideration of international law (Kattenburg, at para 25). But other times, probably most times, international law plays no role in the interpretation of legislation, where there is no indication that the governing law explicitly or by implication incorporates international law. That was the case here.

Yet many of the intervenors in this case were motivated to bootstrap international law into the authentic interpretation of legislation. For many, the argument was that the Israeli occupation of the West Bank is illegal under international law principles. This was despite the fact that nothing in the governing law was designed “to address state occupation of territories and, in particular, Israel’s occupation of the West Bank” (Kattenburg, at para 20). To make this point, some of the interveners attempted to further bootstrap the record with “hyperlinks to find reports, opinions, news articles and informal articles to buttress their claims about the content of international law and the illegality of Israel’s occupation of the West Bank” (Kattenburg, at para 32).

There are many problems with what’s going on here, and Justice Stratas rightly rejected the efforts to make the case about the West Bank issue rather than the reasonableness of a regulatory decision. First, at the level of fundamental principle, judicial review of administrative action is about policing the boundaries of the administrative state, at the level of a particular regulatory decision. Some times these decisions can have major consequences, for the party subject to the decision or for the legal system on the whole. But the focus is not the at-large determination of major issues like the Israeli-Palestinian conflict. The focus is on the decision under review. And so the attempts by the moving parties to buttress the record, to force the Court’s hand into saying something, anything, about the Israeli-Palestinian conflict is inappropriate, to say the least. Justice Stratas rightly, and humbly, rejected the call to enter this fraught political territory.

Another problem is the attempt to use international law to guide, where it is inappropriate to do so, the ascertainment of legislative purpose. When courts interpret statutes, they do not do so with the aims of achieving a result that the judge thinks is “just,” “right,” or even “fair.” The goal is to interpret statutes authentically, so that we can plausibly determine what the legislature meant when it used certain words in enacting a law. Contrary to fashionable legal realism, courts and decision-makers must do their best not to reverse engineer a desired outcome through interpretation (see Vavilov, at para 121, but also see the litany of Federal Court of Appeal and Supreme Court cases on this point). Here, the intervenors clearly tried to use international law to reach a desired policy outcome. But all of the intervenors, piled up together, shouldn’t be able to encourage courts to engage in this pure policy reasoning. Indeed, as Justice Stratas notes, “[s]o much of their loose policy talk, untethered to proven facts and settled doctrine, can seep into reasons for judgment, leading to inaccuracies with real-life consequences” (Kattenburg, at para 44). And to the extent that doing so is contrary to established Supreme Court precedent, Justice Stratas was right to call out this pernicious behaviour.

None of this is to suggest that intervenors do not play an important role in Canadian law. None of this is to suggest that international law cannot, in appropriate circumstances, play a role in the interpretation of legislation. But a new Canadian textualism is emerging that rebuffs policy reasoning and at-large international law arguments. All for the better.

The Role of the Courts

In Kattenburg, Justice Stratas also made a number of comments that, I think, needed to be said about the activities of some Canadian judges. Here is the gist of his comments:

[45]  As for judges, some give the impression that they decide cases based on their own personal preferences, politics and ideologies, whether they be liberal, conservative or whatever. Increasingly, they wander into the public square and give virtue signalling and populism a go. They write op-eds, deliver speeches and give interviews, extolling constitutional rights as absolutes that can never be outweighed by pressing public interest concerns and embracing people, groups and causes that line up with their personal view of what is “just”, “right” and “fair”. They do these things even though cases are under reserve and other cases are coming to them.

This comment raises the important question of the difference between the legal world and the political world. It has become increasingly common to hear that law=politics. In some sense, this is true. Law is the product of political deliberation. And because judges are only humans, there is always a risk that a judge’s experiences and personal views may guide the interpretation of legislation. No legal system can reduce this risk to zero, and perhaps it is unwise to do so.

But this is a completely different proposition from the normative question: should the political views of judges affect the interpretation of laws or judicial review of administration action? Obviously the answer is no. So, in legislative interpretation, we create a series of rules to guide legal interpretation. We ask courts and decision-makers to focus on text, context, and purpose—authentically. In other words, while law is the product of politics, that fact does not give judges the right to interpret laws as they wish.

There are a number of examples of prominent judges who have, extrajudicially, blurred the lines between law and politics. At least two judges of the Supreme Court have suggested that their job is to decide what is best for Canadians, for example (see Justice Moldaver here and then-Chief Justice McLachlin here). This is a real misapprehension of the judicial role. Judges aren’t tasked with making the best normative decisions for Canadians. That is Parliament’s job. Of course, the problem is that politics can be slow and frustrating. But that is no reason to bypass the legislature for a quick judicial resolution.

Another example, but by far not the only one, is Justice Abella. Justice Abella frequently enters the public fray to provide her views on certain legal issues. Quite separate from the content of these interjections, it is typically not the role of a Supreme Court judge to write popular columns, putting their thumbs on the scale of pressing public issues that might make their way to the Court. It is one thing to set out one’s view of the law in reasons for decision. We can agree or disagree on that reasoning, in the legal academy. It is another to take to the streets, as a judge, and participate in the political process by setting out one’s view of the law—whatever it is–in the context of popular publications. On a related note, in fact, this is not just an affliction of judges that might be considered “progressive.” As I wrote here, in the United States, conservatives are increasingly looking at the courts as an instrument of power, rather than as neutral and objective arbiters of the law.

I could go on and on. The point is that Justice Stratas is on to something in Kattenburg. The comments come as we see, increasingly, the veneration of judges as heros, who are celebrated when they enter the political fray by many in the bar. RBG on the left, with the action figures and paraphenalia. Scalia on the right, to a somewhat lesser extent. In Canada, the “stanning” of judges like Justice Abella as if they were celebrities. Judges are just “lawyers who happen to hold a judicial commission” (Kattenburg, at para 41). When put that way, it seems remarkably odd that we celebrate certain judges the way we do. We should celebrate judges for applying the law and following precedent to the best of their ability. We should refrain from celebrating the results of cases over the reasoning. And judges, themselves, should generally stay out of political debates. Indeed, lawyers are just lawyers, and law school confers no special insight on issues of moral or political weight, compared to the rest of the population.

Sad for some lawyers to hear, I am sure. But it needed to be said.

On John Willis and the Pesky Politics of Administrative Law

John Willis was and is considered one of Canada’s most important administrative law academics. As a student of administrative law and the law of judicial review, one cannot skip Willis’ classic works, like his books “The Parliamentary Powers of English Government Departments” and “Canadian Boards at Work”—and his caustic papers, including his attack on the McRuer Report and his famous “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional.” Especially in this latter piece, Willis sets out his comprehensive functional theory of the law of judicial review—that theory holds that courts, with a typically “conservative” orientation, could never understand the difficulties of governments that, post-New Deal, were concerned with social welfare. Accordingly, courts should butt out, in service of the expertise, efficiency, and progressive orientation of administrative decision-makers.

While Willis should obviously be commended and respected as an eminent scholar of administrative law, there is a core problem at the centre of Willis’ thought that should stand as a warning for us in the modern era. Willis fundamentally viewed administrative law as a project of politics. As R. Blake Brown notes in this article, and as Willis himself always argued, the law of judicial review (and administrative law more broadly) was not about legal principles or controls on the administrative state, but was rather designed to limit the interference that legalist, conservative courts could wrought on tribunals pursuing the social good in an expert way. But this sort of thinking runs into two fundamental problems: (1) it ignores the fact that, strategically, administrative power can and has been used to fulfill the policy aims of governments who do not have any designs on social welfare goals—this was a clear blind-spot in Willis’ own work, one that led him to over-trust government; and (2) normatively, as recent Supreme Court and Federal Court of Appeal jurisprudence tells us, there is a meaningful difference between law and politics when it comes to the interpretation and application of laws governing judicial review. Granting deference based on the supposed underlying political motivations of particular decision-makers undermines this separation.

Let’s start by reviewing Willis’ functionalism. Willis self-described himself as a “government man,” and “what actually happens man.” By this he meant he was less concerned about the legal principles of a 19th century constitution, but rather was concerned with the making of “effective government” (see “Administrative Law in Retrospect” at 227). Functionalism crafted doctrine to align with the way government operates and the programs government is responsible for implementing. At the time of Willis’ writing, the struggle for government was the implementation of social welfare programs, closely associated with the New Deal. Delegation to administrative tribunals was one of the ways that these programs were implemented. A functional approach, then, would respect the legislative choice to delegate

In my view, deference to administrative tribunals in the functionalist mould was supported by a number of presuppositions about administrative decision-making, but the most important one for our purposes was what I call the “political” presupposition. Deference on the functionalist account was justified because of the apparent political valence of the decision-makers under review and what they were designed to achieve. Says Michael Taggart (at 257), describing the functionalists of the era:

These left-leaning scholars were deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and the powerful, and defeating the purposes of statutes intended to further the interests of the workers, the homeless, and the least well-off in society.

Deference on functionalist grounds was therefore a reactionary force, one that was a political project designed to fight back against the supposedly conservative orientation of the courts, that used legal principles to stunt the social welfare programs of governments.

Willis himself clearly fell in this category. A social democrat, Willis railed against any sort of thinking that would interfere with the prerogatives of government, undertaking social programs. He viewed government as fundamentally changing in light of the New Deal:

The State had changed its character, had ceased to be soldier and policeman, and was rapidly becoming protector and nurse…Again the right of the community bulk larger than the rights of the individual (See Parliamentary Powers at 13 and 51).

Risk described Willis’ functionalism as such:

Willis’ thinking about law and government can best be summarized by dividing it into three parts. The first is his observations and attitudes about government and its institutions….He perceive the nature and extent of the expansion of government, and its implications for the structure and functions of the legal institutions. He perceived a changing relation between the individual and the community, and how legislative policies were expanding the claims of the community against the individual, and circumscribing common law ideals….He had a great faith in experts, and he believed the courts should give liberal scope to the agencies on review (see Risk, at 545).

The political appreciation of administrative tribunals as representing the needs and wishes of the “community” was a constant thread through Willis’ scholarship advocating for a judicial “hands-off” approach to decision-makers like labour boards.

So, what are the problems with such an approach? To my mind, there are two. First, Willis’ political approach to deference fails on its own terms: it fails, on any complete account, to actually reach an ideal of social justice. This is because deference itself has no political valence, and can be easily used to vindicate decisions of administrators that run counter to social justice. And secondly, on principle, a political approach to deference runs counter to our positive law and to the good reasons for it.

Let’s first tackle the issue of social justice and its connection to doctrines of deference. As I’ve written time and time again, using deference as a means to reward the  decision-makers we like –because we ascribe to them some political ideal—is an unprincipled and politically naïve way to view the law. Let’s start with the latter contention. Willis’ supposition seems to be that courts themselves cannot be trusted to uphold the purposes of ameliorative legislation because of their conservative orientation. But it is not axiomatically true—and in fact, it seems bizarre—to suggest that deference will always serve to advance social welfare principles. It does no such thing.

The development of the administrative state is simple proof of this. When Willis was writing, he made the near-sighted appreciation that deference supported the administrative state as it existed at that time. At that time, observers were mostly concerned with labour tribunals, who were seen as consummate experts in their craft. But Willis either did not predict that deference would and could also have to attach to tribunals he did not appreciate under his social welfare rubric. That is, and I have said before, there are other aspects of the administrative state that do not map so neatly onto any past or modern description of social justice. Prisons, an area of interest for me, come to mind—perhaps the place where administrative discretion, at least prior to the CCRA, was most unbounded. Another example, that of immigration decision-making,  also comes to mind. What, beyond brash politics, justifies treating these tribunals any differently?  If one believes in deference, how can one say that prisons are any less deserving of deference than any other decision-maker?

This does not strike me as a consistent approach based on social justice. Later in Willis’ career, this thought must have occurred to him. That is because, in his “Administrative Law in Retrospect,” Willis addressed the question of a number “fashionable cults” which, to him, were negatively affecting the prerogatives of government:

This is very interesting coming from someone who is committed to social justice. How could it be consistent, if one accepts some political justification for deference based on social justice, for Willis to deny prisoners a right to be heard? Why are prisoners less good, in Willis’ eyes, than unions before a labour board? Willis’ myopic conception of social justice was profoundly underinclusive, even on its own terms.

Another explanation of this oddity is that Willis was not committed to social justice at all. Rather, it is very likely and possible that Willis was indeed a “government man” in the most literal sense of the term. Any action that could offend a government prerogative, in his eyes, was abhorrent. So the “cult of the individual,” and prisoners, all serve to run against government, even if government offends social justice. But this stands inconsistently with the idea of social justice. Social justice, on any cohesive account, is not about empowering government for the sake of government. The problem is that government can act in ways that contradict the theory of social justice

The above point challenges Willis on his own social justice terms, but there is an external, doctrinal reason to be wary of Willis’ approach to deference. It is indeed true that the fight for deference in Canada is overlayed by considerations of politics. After all, the laws delegating power to decision-makers—or laws that work to limit the scope of power for these decision-makers—are passed against the backdrop of a legislature that is a partisan organ. But that is a separate matter altogether from the actual legal justifications for deference, which like the interpretation of statutes, should be a separate concern from politics. Luckily, our law recognizes this fact clearly, and does so for good reasons. Vavilov, for example, does not base deference on any good-faith presumptions about the expertise of decision-makers. Now, the very fact that the legislature delegated power—any power—to any decision-maker is a fact worthy of deference. The tool of delegation as the grounds of deference has the benefit of being agnostic as to how one can judge, politically, particular tribunals. And Vavilov itself (at paras 120-121) cautions against reverse-engineering doctrine to suit a desired outcome. Clearly, Willis’ political approach to doctrine (and the arguably political approach of the common law courts) run afoul of our current law, which erects a clear separation between deference as a doctrine and the political results of a deferential approach. Justice Stratas in the Federal Court of Appeal has made a similar point in the context of statutory interpretation and judicial review: see Williams, at para 48; Cheema, at para 74; and Hillier, at para 33.

While that is the state of the positive law, it is the positive law for a good normative reason. It is orthodox today in the academy that law cannot be meaningfully separated from politics. It is even true that some say that any attempt to do so is necessarily “reactionary” or “conservative.” But this contention does not take account of the different parts of law-making and interpretation, and the very purpose of law itself. As I mentioned above, it is of course true that laws reflect the political consensus of the legislature at the time they are passed. It would be wrong and overbroad to suggest that the making of law is or should be divorced from the political process: indeed, it is the function of our legislatures to make laws that, at least in theory, are undergirded by the support of a majority. However, this is a completely separate act from the interpretation of laws. Laws, in order to be consistent with at least one aspect of the Rule of Law, must be general rather than specific; and when a judge interprets a law, she does so to give the meaning to the text, context, and purpose of the law that is enacted on the page (even purpose, as I discuss here, is usually and ultimately guided by text). The task of interpretation of laws should not be governed by consideration of politics; of what this or that judge thinks of this or that tribunal. Should it be the case that judges grant deference because of their political views, we will go along way towards undermining our separation of powers between courts and legislatures, imperfect as it is in Canada.

Of course, it is impossible to say that politics will never enter the interpretive activity. But that is a different question altogether than how doctrine is constructed. Ideally, the way we theorize deference and interpretation should not be based on political musings; rather, theory should be based on the foundational principles of our legal order, including the choice of a legislature to delegate power and the core interpretive function of the courts. It might be orthodox to suggest otherwise these days, but in my view, the very purpose of law in the law of judicial review is to enforce the limits that legislatures themselves provide—no matter how wide or loose they are—on administrative decision-makers. It should not be the role of the courts, as Justice Stratas so eloquently says in the above-cited decisions, for courts to pick winners and losers based on politics.

Back to Willis. John Willis’ contributions to Canadian administrative law will live for the ages. But his approach to the law of judicial review should not be celebrated wholesale. Willis’ cardinal mistake was falling victim to the game started by the “conservative” common law courts. If it is true that those courts struck administrative decisions because they did not appreciate the social welfare function of those agencies, that runs counter to our governing law and the good reasons for it. But today, Willis is still celebrated; the common law courts are not. I think it is fair and appropriate to draw attention to the blindspots in Willis’ theory: his myopia regarding what he thought was “social justice”; and the specious attempt to import deference based on some political justification.

Vavilov in the Prisons

By now, Vavilov—the case in which the Supreme Court re-jigged Canada’s standard of review framework—has received sustained attention, including from yours truly. Over at Administrative Law Matters, Professor Daly has a running post outlining how Vavilov has been applied in some particular interesting cases. And on SSRN, Jamie Chai Yun Liew has an excellent article on the implications of Vavilov for marginalized persons.  Vavilov has had and will continue to have implications for particular areas of law.

My concern in this post is the way Vavilov is being applied, at least in a few cases, in an important area of administrative decision-making: the carceral state. Indeed, it is not often that prisons are mentioned as distinct areas of administrative decision-making. This is, perhaps, because the administrative state is often identified closely with the “welfare state”—a benevolent set of tribunals and decision-makers maximizing benefits for vulnerable people. This is best represented in the deification of labour tribunals as the quintessential administrative decision-maker: expert, oriented towards the public good, efficient, and cheap.

But the prisons are not some separate and apart actor in terms of administrative law. Prison decision-makers operate on delegated power, just as labour and human rights tribunals do. Prisons have become increasingly bureaucratized over time (see Malcolm Feeley and Edward Rubin’s classic text here), and with that bureaucratization has come the potential for the traditional pitfalls associated with administrative decision-making. Indeed, as I will point out in the context of a particular case, “expertise” in the prison context means something very different—it often means expertise in using punitive measures to “manage” “difficult” prisoners.  Coupled with the intersecting disadvantages of prisoners, and the level of control prison administrators—presumably without legal training—hold over those same prisoners, the risk of unlawful or unconstitutional decisions affecting the statutory or constitutional rights of prisoners multiplies. Indeed, prisons were once referred to as “lawless agencies” for good reason—they form, like immigration decision-makers, an intimate part of the administrative state as we know it.

Hence it is important to study the way in which judicial review doctrine works in the carceral state. Indeed, one would expect that Vavilov’s focus on justification might actually make a difference in the prisons, where decisions have historically been made without the close scrutiny of courts. The following two cases illustrate the divergent ways in which, at least in these two cases, Vavilov is faring against the behemothic carceral state. In one of the cases, the court takes a deferential posture based on “expertise,” arguably undermining the justificatory promise of Vavilov. In the other, the court subjects the prison decision to the scrutiny required by Vavilov’s justificatory standard.

Bromby v Warden of William Head Institution, 2020 BCSC 1119

Bromby is serving an indeterminate life sentence for first-degree murder. He was involuntarily transferred from a minimum security institution to a medium security institution in 2019. He objected to this transfer, “[r]aising concerns about the sufficiency of disclosure” in relation to the transfer [2]. Despite this objection, the transfer was approved by the Warden of the minimum security facility. However, Bromby raised a habeas corpus claim, and was successful on that claim. He was transferred back to the minimum security institution.

However, immediately following this decision, the minimum security facility initiated an “emergency involuntary transfer” based on an increase of his security classification score. The final decision to transfer Bromby from minimum to medium security was eventually made by the warden, and was delivered orally to Bromby—but he was not provided written reasons for this decision  in a timely manner, contrary to the Corrections and Conditional Release Regulations [4]. Bromby argued that “the transfer on an emergency basis was unreasonable as he did not pose a threat to the security of the penitentiary or the safety of the inmates or any other person” [5].

In response to this claim, the Warden trotted out an old standard of prison decision-making: the rather specious appeal to “micromanagement” and “expertise.” As the respondent submitted:

  1.    It is not the role of reviewing courts to micromanage prisons even where they feel that intervention measures other than a transfer might have been taken in addressing inmate behaviour. While the applicant may have preferred for other actions to be taken to attempt to manage his risk, deference is owed to the Warden’s assessment that the applicant was unmanageable within Mission (Minimum) Institution.

. . .

  1.    The Decision was . . . reasonable . . . based on the facts and legal constraints before the Warden. The decision of the Warden, a prison administrator familiar with the complexities of Mission (Minimum) Institution and the security classification of inmates, should be provided with deference to decide that the applicant was presently incapable of management within an open perimeter environment. The thorough explanations provided and thoughtful insight as to the specific interventions that the applicant can work towards in becoming a minimum security inmate reflect the Warden’s significant expertise in identifying and managing offender risk. Accordingly, a high degree of deference is owed to the Warden in his decision.

 

The Court largely accepted this line of thinking:

However, it is the January 2020 Decision that I must assess for reasonableness and determine whether it falls within the range of possible acceptable outcomes which are defensible on the facts and the law. I find that the decision does. That is because the warden is entitled to deference in the decision‑making process. The decision of the warden, a prison administrator familiar with the complexities of Mission Institution and the security classification of inmates, set out the basis for why it was that Mr. Bromby presented as being incapable of management within an open‑perimeter environment [63].

There are two general problems with this line of thinking.

First, I confess that I don’t understand how this line of thinking is at all consistent with Vavilov. Vavilov did away the presumption of expertise for administrative decision-making, instead focusing on “demonstrated expertise” (Vavilov, at para 93). It is true that this demonstrated expertise “may reveal to a reviewing court that an  outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime…” (Vavilov, at para 93). This does, fairly, give some latitude for prison decision-makers such as the Warden in this case to apply their knowledge of a particular situation to a dispute. But in this case there is no interrogation of the demonstrated expertise of the Warden. That is, the court does not determine whether the supposed expertise of the Warden was actually demonstrated in the reasons. The fact that, in the court’s view, “[t]he record establishes that the warden turned his mind to all of the relevant considerations…” [65] is not enough to warrant an acceptance of pre-Vavilov law on expertise. This has particular resonance in the prison context, where expertise has often been assumed without demonstration (see Lisa Kerr’s wonderful article here).

I acknowledge that it is genuinely difficult to demonstrate, in the prison context, what actually constitutes “expertise.” Vavilov opens the door to the operational realities of prisons—including issues of security—factoring into a decision. But there is no critical assessment here by the court of how the Warden’s expertise featured into this decision. This seems to be what Vavilov prescribes, and it arguably should factor into any assessment of reasonableness, particularly where the consequences are dire for the individual (Vavilov, at para 133).

Moreover, it is important to recognize that “expertise,” as a general proposition, and especially in the carceral state, can refer to many different things. Simply stating, as the court does in Bromby, that wardens have expertise masks the real question: in what? As Lisa Kerr notes in another outstanding article, at 259, expertise can cut both ways, especially where constitutional rights are at stake. Expertise could be a veneer for stereotyping or discrimination, as I note below.  This is an important normative reason to deny administrative decision-makers a presumption of expertise, which Vavilov explicitly rejects—but which has, based on Bromby, perhaps not filtered down to the carceral state.

Finally, I must acknowledge the old trope about “micromanagement” of prisons, trotted out by the respondent in Bromby. Judicial review is, it is true, not about micromanagement of administrative decision-making. It is about policing the boundaries of statutory schemes designed to cabin administrative activity; it is a traditionally legal and doctrinal activity. As Kerr again aptly acknowledges:

The organization dynamics of prisons tend to resist constitutional constraints, due to the political powerlessness of inmates and the structural isolation of corrections from the community. The status of the inmate is defined in relation to managerial goals, rather than in relation to an externally defined moral norm, and prison managers tend to focus on their vision of scientific management rather than the larger legal order. Amid these institutional tendencies, only the judiciary has the inclination and ability to impose a regular and comprehensive legal framework. The judiciary is a necessary play in prison legality, rather than a necessarily amateur outsider at risk of “micromanagement.” The spirit of habeas corpus, with its strict emphasis on legality and access to justice, so as to challenge deprivations imposed on the physical body, has always had this in mind.

This is fundamentally important. Judicial review is a check against the seductive force of administrative exigency, in which people might be assimilated based on stereotypes or useful organizing tools rather than as individuals. Yet prisons, at the same time, must acknowledge the rights (statutory and constitutional) of prisoners—this is acknowledged in CSC’s enabling legislation.  Ensuring that these rights are upheld is the function of judicial review, which should not be reduced to some afterthought when evaluating the panoply of control mechanisms at the hands of prison decision-makers.

Johnston v Canada (Atorney General), 2020 FC 352

Contrast the previous case with Johnston out of the Federal Court. Johnston involved an inmate at Kent Institution. As a federal inmate, Johnston received payments from Correctional Service Canada “at a modest daily rate” [1]. However, CSC began withholding 100% of Johnston’s modest pay. This is because he had not paid a costs order in favour of the Attorney General. As such, Johnston filed a judicial review of the decision to make the a 100% reduction in his inmate payments.

The Court concluded that, though the relevant statutory scheme gave the CSC the legal authority to make deductions, “it was unreasonable for the CSC to withhold all of the applicant’s income without considering the purpose and principles that govern CSC and without considering the impact the deductions would have on the applicant” [4].

The problem in this case was marred by issues with the record. As the Court noted, the only record of decision was an email chain originating in the CSC. That email chain revealed that there was no “explanation or justification for making deductions from the applicant’s inmate income” apart from the obvious costs order [14]. Specifically, the record did not say “anything about…why the amount of the deduction was set at 100 percent of the applicant’s inmate income” [15].

While Vavilov does note that reasons are not required in every case (Vavilov, at para 77), reflecting well-known law, the case does note that “where reasons are provided but they fail to provide a transparent and intelligible justification…the decision will be unreasonable” (Vavilov, at para 136). This is precisely what happened here. In addition to failing to disclose why the 100% figure was chosen, the CSC failed to consider the vulnerability of the person who had has income reduced. This is directly contrary to Vavilov (see Vavilov, at paras 133 et seq).  The Vavilov majority puts the point eloquently at para 135:

[135]                     Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law.

The CSC’s conduct in this regard was sorely lacking in terms of the justificatory standard set out in Vavilov—probably more so than Bromby. When a court cannot glean a reasonable justification from the record and reasons—in this case, a generally worded email—the risk increases that the administrative action was arbitrary. The risk increases that, in this particular case, the number of 100% was plucked from the air, without any discernible reason. When we multiply this arbitrariness with the existing vulnerability of prisoners, we have a recipe for administrative disaster.

The point is not that prisoners, because of their vulnerability, must win every judicial review. Doctrine must be applied without fear or favour. But the doctrine includes the consideration of the circumstances of vulnerable persons, and the importance of a decision to those persons, raising the justificatory bar in those cases (see, for this point, Sharif, at para 9). Again, this is not a trump card, but it is an important consideration for administrative decision-makers. It is not something to discard in favour of administrative exigency.

Justification plays a useful role here. It forces the prison, which is by design isolated from the rest of the community, to articulate the reasons for decisions in a way that is understandable to the people within prisons, as well as to the external legal system. Justification is the window by which we can look into the morass of prison decisions, policies, and directives that bear on the actual lives of real people within the carceral state. The tendency in prisons is, likely, to reject these external checks.

That makes those checks all the more important.