Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

* * *

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

Whatever

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consistency and Complexity in Judicial Review

In a (somewhat) recent post commenting on Justice Brown’s appointment to the Supreme Court, Paul Daly wrote about “an interesting paradox” in the world of judicial review of decisions by the “political branches” of government: “[t]hose [who] would defer to Parliament would not defer to the executive.” The “conservatives” who are skeptical of judicial review of legislation, especially on Charter grounds, rally under “the Diceyan banner” ― which is also “a flag of hostility to the administrative state” ― and thus don’t like courts to defer to the decisions of administrative agencies and tribunals. This is indeed an interesting observation, but perhaps not, I would suggest, a paradox. Or, if it is indeed a paradox, then “conservatives” are not the only people who hold paradoxical beliefs about the proper relationships between the courts and the other branches of government.

Consider what people other than “conservatives” or Diceyans think of judicial review. Start with the view that is dominant in the Canadian legal community, including on the Supreme Court, which we might call “progressive.” (Actually, I’m not sure that either it or the “conservative” view described by prof. Daly should be described by such politically charged labels, but let’s put that worry to one side, while keeping in mind that it is legal ideologies we are talking about, not those of democratic politics.) The progressive view favours robust judicial review of legislation, and in particular robust judicial enforcement of the Canadian Charter of Rights and Freedoms. It also, however, favours judicial deference to administrative decision-makers. If the conservative view is paradoxical, so is the progressive view ― it’s just that its paradox goes in the opposite direction.

There is also a third view, which we might call “classical liberal” or “libertarian,” that rejects judicial deference both to legislatures and to administrative decision-makers. On this view, the Rule of Law means that, to conscript Chief Justice Marshall’s famous words, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Whatever the legislature thinks the constitution means, and whatever the executive branch thinks a statute (or the constitution) means, the judges may not substitute those opinions for their own. This view is not very, or even at all, popular in Canada, but it does have some adherents. To put my own cards on the table, it is the one I am most sympathetic to, among the broad categories I am describing.

Finally, we could imagine a position that favours deference both to legislatures and to administrative decision-makers. To be honest, I am not sure that it has any actual adherents, though my ignorance should not be taken as evidence of their absence. I am also not quite sure what to call this view. Actually, “progressive” might be a better label for this position than for the current mainstream one I describe above, because deference-across-the-board is probably closer to the views of the original progressives of a century ago, but I suppose that using it in this way now might be confusing.

With apologies for my non-existent graphics skills, here is how the above categories look in table form:

Deference to:

Legislatures

Yes

No

Administrative Agencies or Tribunals

Yes

?

Progressives

No

Conservatives

Libertarians

Both the conservative and the progressive positions seem to involve a paradox, if deference to one “political branch” but not the other is a paradox. The libertarian position, by contrast, has the virtue of consistency, as does the (hypothetical?) deferential position.

But, as I suggested above, I am not sure that the conservative and progressive positions can be fairly characterized as paradoxical, no matter how tempting it is for me to criticize them. It is, surely, at least plausible to believe that judges, being unelected and unaccountable, should defer to the constitutional judgments of elected legislators, but that the same argument for deference does not apply to unelected, and often virtually unaccountable, bureaucrats. It is also plausible to believe that judges should defer to expert administrators, but not to the bunch of amateurs or even bigots that make up a legislature. Of course, I tend to think that the better view is that courts should not defer either to administrators or to legislators, because both face various perverse incentives and neither is really willing and able to abide by the Rule of Law. But I don’t think that either the conservative or the progressive position can be dismissed out of hand as merely illogical.

And then, there’s the fact that both of these views are actually much more complex than I have made them out to be ― and that even their supporters sometimes acknowledge. The conservative view may favour robust judicial review of decisions made by the executive branch, but perhaps not in some areas, such as those that have to do with national security. The progressive view, even more clearly, leaves important areas of legislative action out of the scope of robust (or indeed any) judicial review ― notably anything that has to do with economic policy and regulation, and property rights (although, in a further inconsistency, some of those who hold this view are committed to defending the economic rights of organized labour). Indeed, it is arguably even possible to sympathize with the libertarian position on judicial review and yet argue that in some types of cases, courts should be more deferential than in others; or at least I have taken this position, though perhaps I’m just a faint-hearted libertarian.

I think prof. Daly is right to remind us about the links that exist between the two sorts of judicial review ― that of legislation and that of administrative decisions ― and to invite us to think about whether our approach to them makes sense when we consider them together, and not only in isolation. As we engage in this reflection, we might want to attain a certain level of coherence in our views on democracy, the Rule of Law, and institutional competence. But the legislature and the executive might not stand in the same relation to these principles; indeed, the same branch might interact with them very differently depending on the issue at hand. Thus it is no surprise, and no paradox, that internally coherent legal ideologies would countenance apparent inconsistencies in the levels of deference courts should afford different decision-makers.

Adequate Alternatives

Last week, the Supreme Court issued an interesting decision which, although apparently only concerned with judicial review (of the administrative law sort) and the respective jurisdiction of the Federal and superior courts, also tells us something about the role of the courts more generally. The case, Strickland v. Canada (Attorney General), 2015 SCC 37, was an appeal from decisions by the Federal Court and the Federal Court of Appeal not to hear an application for judicial review of the legality of the Federal Child Support Guidelines, which the applicants said did not comply with the requirements set out in their enabling legislation. The Supreme Court unanimously dismissed the appeal, and held that the federal courts were right to decline to exercise their undoubted jurisdiction to review the Guidelines’ legality.

Both federal courts concluded that provincial superior courts would be better placed to consider such a challenge, within the context of a case where the Guidelines would be applicable. Such cases, and family law matters more generally, are the preserve of the provincial courts. Federal courts have very little say in family law, and lack the expertise in this area. The interests of justice, they thought, would be better served by having a more expert court consider the issue.

The first question which the Supreme Court addressed was whether it was indeed the case that a provincial superior court could consider a challenge to the Guidelines’ legality. Section 18 of the Federal Courts Act, after all, gives the federal courts exclusive jurisdiction to review the actions of the federal administration, including the regulations it issues, such as the Guidelines. However, Justice Cromwell, for the majority, concluded that “[a] provincial superior court can hear and determine a challenge to the legality of the Guidelines where that determination is a necessary step in disposing of support proceedings properly before it.” [15] He pointed out that the Court already held, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, that superior courts could exercise their jurisdiction to award damages against the federal Crown without the federal courts having first considered the legality of the Crown’s conduct in the context of an application for judicial review. This decision, Justice Cromwell said, “support[ed] the principle that the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts.” [22] Thus if a litigant who is seeking or opposing a child support order wants to challenge the legality of the Guidelines in a case before a superior court, he or she may do so.

Given this conclusion, the second question for the Supreme Court was whether the federal courts were right to decide that such a challenge would be a better vehicle for considering the legality of the Guidelines then an application for a declaration made to the federal courts. The courts’ power to review the legality of the decisions of governments (as well as some other organizations) is discretionary, meaning that in some circumstances, the court will decline to exercise it. This is particularly so, Justice Cromwell pointed out, when the remedy sought is a declaration. As Justice Cromwell further pointed out, “[o]ne of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative,” [40] which “need not be the claimant’s preferred remedy or identical to that which the claimant seeks by way of judicial review.” [59] In this case, the question was whether challenging the legality of the Guidelines before the provincial superior courts was such an alternative, an issue that must decided by looking at all the circumstances of the particular case, including “the purposes and policy considerations underpinning the legislative scheme in issue.” [44]

The appellants claimed that going to the Superior Courts was not an adequate alternative for them. They did not want to (re)litigate their child-support cases ― they only sought to have the Guidelines themselves declared illegal, and thus had no reason for turning to the superior courts. But unlike litigants asserting a private right, the “appellants do not have a right to have the Federal Court rule on the legality of the Guidelines,” [48] and the Court was entitled to refuse to do so. In making that decision, it could not

simply look at the alleged advantages of judicial review from the appellants’ perspective so that they can make their point, but also must engage with the more fundamental questions of how judicial review interacts with the operation of the Guidelines in family law litigation in the provincial courts. [50]

In this regard,

it would be curious, to say the least, if the legality of a central aspect of [the family law] regime were to be finally decided by the federal courts, which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters. [51]

Finally, a ruling by the federal courts that the Guidelines are illegal would not prevent a “proliferation of litigation.” For one thing, it “would not be binding on any provincial superior court.” [53] For another, “[i]t would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases.” [53] There would be other consequences, too, with which only the superior courts could deal.

Ultimately, says Justice Cromwell. family law expertise is required to adequately decide of the challenge to the Guidelines’ legality. It is provincial superior courts that deal with the issues on which the disposition of such a challenge would depend, and have a sense of the Guidelines’ real-life operation and effects. Even if they cannot grant the precise remedies sought by the appellants, it is they who should hear their claims.

* * *

I think this is the right decision. It reminds me of Bilodeau c. Canada (Ministre de la Justice), 2009 QCCA 746. Mr. Bilodeau sought to have Québec’s courts review a decision of the federal Justice Minister refusing to review his criminal conviction, which he claimed was a mistake. The majority of the Québec Court of Appeal sided with the government, holding that a decision of the federal administration could only be reviewed by the Federal Court. But Justice Duval Hesler (as she then was, and for whom I did some research as a part-time clerk) dissented, arguing (among other things) that “it is desirable that a court engaged this [judicial] review know, understand, and be in the habit of applying the relevant principles” [106] of law. Stickland does not overrule Bilodeau, since it does not affect the majority’s conclusion that the Mr. Bilodeau’s application was not “properly before” the provincial courts at all, but I am happy to see the now-Chief Justice’s logic vindicated.

In a way, however, Justice Cromwell’s reasons are actually unsatisfactory. Perhaps this is too much to ask of a judicial opinion as opposed to an academic study, but I wish he had explored the parallel between the issue he was facing and that of public interest standing ― on which he is, after all, the Supreme Court’s resident expert, having authored its opinion in the leading case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. As Justice Cromwell explained, the claim in Strickland was for a “public law remedy.” The appellants were not looking for anything for themselves, at least not immediately. Their situation was somewhat different from the usual public interest litigants, because their legal rights would have been affected by an invalidation of the Guidelines, but their claim was arguably more similar to public interest one than to a traditional private action.

Under the Downtown Eastside framework, courts will grant a litigant who does not have a personal stake in the dispute public interest standing to contest the legality (and often the constitutionality) of government action if they consider the claim to be a “reasonable and effective” vehicle for having the issue determined. The standing inquiry is, of course, concerned with the claimants, because there is a suspicion that, lacking a personal stake in the dispute, they will not pursue their case effectively, and might interfere with the rights and autonomy of persons who do have such a stake. Accordingly, courts ask themselves whether would-be public interest litigants are genuinely concerned about the issues they are raising, and whether they will be able to litigate them in such a way as to enlighten the courts, and possibly to bring to bear evidence and arguments that would not be available to other parties. But courts are also concerned with using their proverbially scarce resources effectively, as well as with ensuring that an adversarial debate will take place. And, although not fully determinative, the existence of alternative effective means of addressing the issue will clearly be of considerable importance.

It seems to me that the concerns that were weighing on Justice Cromwell’s mind in Strickland are not very different. Ultimately, the issue is whether the case, as framed by the appellants, was a reasonable and effective vehicle for addressing the issue it presented. To be sure, unlike in public interest standing cases, Justice Cromwell (as well as the courts below) worry not about the proposed parties’ capacity to pursue the case, but about the proposed adjudicators’ ability to resolve it. The alternative whose existence might justify refusing the claim to proceed is not the possibility that other litigants could make the same arguments (possibly) before the same court, but that (possibly) the same litigants could make the same arguments before a different court. But these are two aspects of the same problem.

Especially with public interest litigation, which raises complex and often fact-intensive issues ― and has the potential to do so in a relative factual vacuum ― courts are concerned about being able to settle disputes effectively. This may be difficult to do because the parties fail to provide enough information or because the court itself lacks the necessary expertise. For better or worse, Canadian courts aren’t exactly shy about exercising their jurisdiction even in such difficult cases. But it is reassuring to see that, when an alternative recourse susceptible of making for better-informed adjudication exists, they can still insist on it being taken.

Splitting a Baby

There came a Catholic school and a minister of education unto the Supreme Court, and stood before it. And the school said, “Oh my Lords and my Ladies, I am a private Catholic school, and am delivered of a programme for teaching a class on Ethics and Religious Culture through the prism of my Catholic faith. And when I besought the minister for leave to do so, he would not let me, though my programme be equivalent to the one he requires.” And the minister said, “Nay, but thy programme is no wise equivalent to the required one, for that programme is secular and objective, and thine religious.” Thus they spoke before the Court. Then the Court said (having deliberated a year, and with three of the seven judges present disagreeing), “Fetch me a sword.” And they brought a sword (a metaphorical one) before the Court. And the Court said, in Loyola High School v. Quebec (Attorney General), 2015 SCC 12: “Divide the programme in two, and give half to the one, and half to the other.”

More specifically, the majority (consisting of Justice Abella, who wrote the judgment, and Justices Lebel, Cromwell, and Karakatsanis) holds that while Loyola cannot be forced to teach its students about Catholicism from the rigorously secular and neutral perspective favoured by the minister, it can be required to teach the “ethics” element of the class from such a perspective. (Loyola itself does not object to adopting this posture for teaching students about other religions.) The majority orders the Minister to reconsider the denial of an exemption necessary for Loyola to teach the class according to its own programme rather than the one imposed by the Minister in light of its reasons.

This case was widely expected to produce a clear statement about the nature and extent of the religious rights of organizations under the Charter, since Loyola is a (non-profit) corporation. However, Justice Abella’s reasons seem to punt on that question, invoking instead “the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education.” [32] Loyola was entitled to seek judicial review of the Minister’s decision, and in doing so to argue that the Minister failed to respect the rights of others.

Because the case arose by way of judicial review of an administrative decision, Justice Abella takes the approach developed in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, according to which the administrative decision must reflect a reasonable balancing of “the Charter protections — values and rights — at stake in their decisions with the relevant statutory mandate” [Loyola, 35]. But reasonableness, here, “requires proportionality” [38] and, indeed, is the exact counterpart of the (last two stages of) the “Oakes test” applied to determine the constitutionality of statutes.

Applying this framework, Justice Abella begins by pointing out that the statutory scheme under which the Minister operates makes provision for exemptions which must be granted to programmes “equivalent” to those designed by the government. This possibility would be meaningless, she observes, if “equivalent” were understood as “identical.” Besides, “[t]he exemption exists in a regulatory scheme that anticipates and sanctions the existence of private denominational schools,” [54] and, therefore,

a reasonable interpretation of the process for granting exemptions from the mandatory curriculum would leave at least some room for the religious character of those schools. [54]

In effectively requiring Loyola to teach the entire class, including the parts dealing with the Catholic religion itself, from a secular and neutral perspective, the Minister failed to make allowance for its denominational character. That decision

amounts to requiring a Catholic institution to speak about Catholicism in terms defined by the state rather than by its own understanding of Catholicism. [63]

Justice Abella finds that it would be possible to let the school teach its pupils about Catholicism in accordance with its own understanding of its faith without compromising the ministerial objectives for the Ethics and Religious Culture class. The Minister’s decision is, to that extent, unreasonable, because it not restrict religious rights as little as possible.

By contrast, Justice Abella finds that so long as Loyola is allowed to teach the Catholic religion and ethics from the Catholic perspective, it can be required to teach the remainder of the “ethics” part of the course “objectively.” While this may be “a delicate exercise” in the context of a denominational school, and “Loyola must be allowed some flexibility as it navigates these difficult moments,” [73] the requirement that it do so is not an infringement of anyone’s religious freedom, and does not compromise the school’s religious identity. Indeed, the requirement of objectivity is very important, lest

other religions … be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism. [75]

It is all about “how the discussion is framed” ― Catholicism’s “own ethical framework” must be a “significant participant rather than [a] hegemonic tutor.” [76]

The concurrence (a judgment by the Chief Justice and Justice Moldaver, with the agreement of Justice Rothstein) disagrees on with the majority about this, arguing that the teaching of ethics is inextricably linked to that of religions and, in particular, that the teaching of ethics generally cannot be neatly separated from the teaching of the Catholic perspective on ethics, as the majority’s conclusion would require. An attempt do so “poses serious practical difficulties and represents a significant infringement on how Loyola transmits an understanding of the Catholic faith.” [156]

On its way to this conclusion, the concurrence also takes a very different approach from the majority. For one thing, it squarely addresses the issue of institutional religious freedom, suggesting that corporations are entitled to assert this right “if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.” [100] And for another, the concurrence does not even pretend to apply Doré and its deferential standard of review, saying that

[t]he Charter requirement that limits on rights be reasonable and demonstrably justified may be expressed in different ways in different contexts, but the basic constitutional requirement remains the same. [113]

On this last point, I agree with the concurrence. The pretense of deference under Doré is useless if there really is no difference between “reasonableness” and “proportionality” as the majority suggests. Actually, I think that, contrary to what the majority suggests, there ought to be a difference. While it is true that the Supreme Court has often relaxed the Oakes test, allowing the government to infringe rights not by the “least restrictive means” possible but by one of a spectrum of “reasonable alternatives,” it has also repeatedly suggested that such a relaxation is not appropriate in all circumstances. And in cases where there is a real difference between “reasonableness” and proportionality” ― deferring to a government’s interpretation of Charter rights intended to constrain it is outright pernicious.

What I like less about the concurrence reasons is the way in which it limits the scope of organizations’ rights to religious freedom and, specifically, the requirement it proposes that only those organizations “constituted primarily for religious purposes” be entitled to assert this right. The concurrence does not explain why other organizations, including for-profit ones, should not be allowed to do so, at least if they can show that “their operation accords with” religious principles. The question was not before the Court in this case, and there was no need to answer it at all.

Whether the majority was right to evade the issue of the religious rights of even primarily religious organizations, I am not sure. Admittedly it is difficult to imagine situations where such an organization would not be able to assert the claims of at least some of the members of its “community,” as Loyola was in this case, so perhaps it is, indeed, unnecessary to answer that theoretically vexing question. But there is something to be said for theoretical clarity, at least on matters well and truly before the Court.

As for the outcome, I also agree with the concurrence. I find the majority’s belief that Loyola can plausibly separate the religious teaching of Catholic ethics and the “neutral” teaching of other ethics difficult to countenance. I am also perplexed by the majority’s professed concern at the “risk” that Loyola’s students won’t see other religions as “differently legitimate.” Of course they won’t. Religions are not politically correct. They don’t talk about people being “differently spiritually abled.” They talk of prophets, believers, and heretics. If you cannot accept that, you cannot accept religious freedom at all. Still, it could have been worse.

Perhaps it will yet be. The majority, and indeed the concurrence, repeatedly emphasize the fact that Québec’s legislation specifically provides for exemptions for classes “equivalent” to those required by the government, and that the government’s stated objectives for the Ethics and Religious Culture course can be achieved by classes taught, in whole or in part, from a religious perspective. But what if the provision for exemption is removed, or the objectives re-written ― a bit like Parliament criminalized (half of) prostitution after the Court seemed to make its legality a key factor in its analysis in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, where it struck down the prostitution-related provisions of the Criminal Code. As it happens, the King James Bible describes the women who came to seek the judgment of Solomon as “harlots.” I do not mean to suggest anything of the sort about either Loyola or the Minister of education, but this case might have an eerie air of Bedford about it.

All in all, then a rather unsatisfactory decision, and not a very well argued one. The majority’s reasons, in particular, are full of equivocation. Not only is the outcome a dubious compromise, but almost every step of the analysis is a fudge. Do organizations have religious liberty rights of their own? We’ll tell you later. The applicable test is “reasonableness,” but it’s no different from “proportionality.” Exemptions must be granted, but perhaps only if the law allows for exemptions in the first place. Schools must be allowed flexibility in structuring their classes, but here’s how to do it. The problem with splitting so many babies in half is that one risks looking more like Herod than Solomon.

UPDATE: Over at Administrative Law Matters, Paul Daly weighs in, mostly on Loyola‘s treatment of the relationship between constitutional and administrative law. Speaking of Justice Abella’s “application of the reasonableness standard, it is difficult to discern how it is more deferential than, or analytically distinct from, proportionality.” It is indeed. Shauna Van Praagh also makes some important observations in the Globe, although I’m skeptical about her proposal to “make the Loyola judgment part of the ERC curriculum in all its variations.” The judgment, for the reasons I set out above, does not strike me as a pedagogical model.

A Heap of Trouble

It’s just one decision, and in all likelihood a legally correct one at that ― and yet, precisely because it is likely correct, it illustrates any number of things that are wrong in Canadian law: Thibault c. Da Costa, 2014 QCCA 2437. The case arose out of disciplinary proceedings instituted by the syndic of the Chambre de la sécurité financière, a self-regulation body for Québec’s financial advisers, against the respondent, who at the time was one of its members. The disciplinary committee of the Chambre, which heard them in the first instance, found that the respondent had “swindled” [15; translation mine here and throughout] eight of his clients, and convicted him on 27 counts, imposing fines.

The issue was that the amount of the fines on some of these counts was greater than the maximum authorized by law at the time the respondent committed his offences ― but between the time he committed them and the time the Committee issued its decision, both the minimum and the maximum fines authorized had been substantially increased. The Court of Québec, on appeal, reduced the amounts, concluding that the Committee had applied the new rules retroactively. The syndic appealed and, in a decision written by Justice Thibault, the Court of Appeal restored the Committee’s decision.

The first issue for the Court was the standard of review. Justice Thibault concluded that “although the question at issue concerns a general principle of law,” [26] namely the applicability of a non-retroactivity, as a principle of statutory interpretation, to the amounts of fines which can be imposed by the Committee, the Committee’s decision was entitled to deference. The matter concerned the interpretation of the statute the Committee is entrusted with applying, and “is also related to the efficiency of discipline of the members of the Chambre.” [27]

Here’s the first problem this case illustrates. In 1610, in Dr. Bonham’s Case, Chief Justice Coke was troubled by a professional disciplinary body empowered to be accuser and judge in cases of alleged malpractice. In 2015, few Canadian lawyers are so troubled (and why would they be, since their own professional bodies benefit from the same privilege?), and instead we choose to defer to such bodies’ decisions. But I, for one, find this disturbing. There might be a case for deference, perhaps even on questions of law, to impartial administrative adjudicators ― labour arbitrators come to mind. But the Supreme Court’s one-size-fits-all approach to deference makes no distinction between their decisions and those of disciplinary bodies which violate Chief Justice Coke’s injunction that nemo debet esse judex in propria causa. (In fairness, pursuant to the Chambre’s enabling statute, the Committee is presided by a lawyer who is independent of the Chambre, and who in turn appoints lawyers one of whom must preside every panel of the Committee. However, if I understand the statute correctly the two other member of the panels are chosen from among the Chambre’s members.)

Then again, in this case at least, none of this really matters. Si vous chassez le naturel, il revient au galop. After concluding that reasonableness is the applicable standard of review, and in contrast to her brief reasons on the amounts of fines imposed, Justice Thibault exhibits no sign not only of deferring to, but even of considering the Committee’s decision on the issue of retroactivity. Perhaps because there really isn’t much to defer to ― all that the Committee had to say on this subject was that it “consider[ed] the increase of fines … to be effective immediately.”

Turning to the substantive question of whether the committee could, in fact, apply the increased fines to acts committed before the increase, following a rather abstruse discussion of the distinction between retroactivity and retrospectivity, which I will not summarize (for those interested, Karim Renno, has posted the relevant excerpts over at À bon droit; those looking for a theoretical perspective can do worse than starting with Jeremy Waldron’s article called “Retroactive Law: How Dodgy Was Duynhoven“), Justice Thibault concludes that a sanction can be increased “retrospectively,” i.e. after the facts to which it is applied have occurred, so long as its purpose is not punishment but the protection of the public. Having examined the relevant precedents, Justice Thibault finds that the fines that can be assessed by the Committee, like most other sanctions imposed by disciplinary bodies, are indeed concerned with protecting the public, and do not carry the “true penal consequences” that would make them into punishments. The fact that these fines are based, in part, on the prejudice caused does not overcome the overall protective purpose of the Chambre’s enabling statute:

The more the actions committed are prejudicial to the public, the more the sanction must be important in order to guarantee its deterrent effect on the individual subject to the fine or on the other members of the profession. [38]

The fine thus aims at both specific and general deterrence, but it is not punitive ― on preventive and disciplinary.

Once again, Justice Thibault’s conclusion makes perfect sense in light of the precedents she cites (some of which found that fines of up to a million dollars per offence were not punishment, and thus could be imposed retrospectively) ― and that’s precisely the problem. Does it really make sense to say that a fine is not a punishment? A prohibition on exercising a profession in the future might be described as preventive more than punitive, though I’m not even sure about that, but a fine? At least a part of the trouble here might be, as in the standard of review issue, that courts too easily accept the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role. But there is something else going on as well.

Canadian courts are, in my view, much too comfortable with retroactive application of the law. Although retroactivity might be a good thing in a few cases, one of which I described here, it is generally disturbing. Applying a different law than that which was in force at the time the actions to which is being applied were committed is unfair. It undermines the law’s role as a guide to behaviour, and may end up, as prof. Waldron explains in the above-mentioned article, discrediting the law as a whole. Yet Canadian courts tend to turn a blind eye to these concerns. The Supreme Court, for instance, has allowed legislatures to make a tort out of commercial behaviour that was perfectly lawful when it occurred. In comparison, mere “retrospectivity,” a change to the extent of the sanction attached to an action after that action is committed, as was done here, seems pretty innocent.

This is probably a trite thing to say, but the law should be mindful of the context in which it operates, of the realities to which it applies, and of the consequences which it dictates. When it doesn’t, it risks ending up in a heap of trouble. The Court of Appeal’s ruling ― legally correct, but oblivious to the real nature of the body whose decision it reviews and of the sanction which it upholds ― illustrates this sad truth.

You’re Fired!

Earlier this month, the Saskatchewan Court of Appeal issued a decision which, if legally predictable, offers us a useful opportunity to think about some serious questions in Canadian administrative law. At issue in Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, was the constitutionality of s. 20 of Saskatchewan’s Interpretation Act, 1995, which allows a newly elected government to dismiss from office members of boards, commissions, and other administrative agencies (except those appointment can only be terminated by the legislative assembly).

One of the agencies whose members are thus subject to summary dismissal by a newly installed cabinet is the province’s Labour Relations Board. In 2007, an incoming government dismissed its chairperson and vice-chairpersons, appointing in their stead persons with whose ideological leanings it was more comfortable. A number of trade unions challenged the dismissal on administrative law grounds, but that challenge failed. They then challenged the constitutionality of s. 20, alleging that it breached the constitutional principle of judicial independence.

The Court of Appeal unanimously rejected this argument. The question, it found, was settled by the Supreme Court’s decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, which held that the principle of judicial independence did not apply to administrative tribunals, except insofar as their decisions concerned rights protected by sections 7 or 11(d) of the Canadian Charter of Rights and Freedoms. For all other tribunals ― the majority of them, and in particular all those that deal with citizens’ economic interests, which s. 7 of the Charter does not protect ― legislatures are free to define and limit the extent of their independence. There is a “fundamental distinction between courts and administrative tribunals” (par. 51), the principle of judicial independence applying only to the former.

The unions argued that Ocean Port did not apply, because the administrative body it concerned, a liquor control agency, was of a policy-making character, whereas the Labour Relations Board’s functions were quasi-judicial. That was true, the Court of Appeal found, but not enough to make a difference, because the Supreme Court had not limited the scope of its holding in Ocean Port to administrative tribunals with policy-making functions. Nor did the Supreme Court’s subsequent decisions temper the distinction it had drawn in Ocean Port between courts and administrative tribunals.

This seems the right answer as a matter of law as it is. Whether the law should be this way is a different question. In the immediate context of this case, s. 20 makes all members of administrative tribunals, including those adjudicating disputes that would, if the tribunal did not exist, be settled by judges of ordinary courts, political appointees subject to dismissal by an incoming government for no better reason than ideological disagreement. This is, so far as I know, a very unusual provision in Canadian law. But it is not unusual for administrative tribunals to enjoy very limited independence from the government.

In Ocean Port, the Supreme Court suggests that this is as it should be.

Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. …

Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.  However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.  (Par. 23-24)

Perhaps so. But the Supreme Court’s other decisions make it clear that courts must defer to an administrative tribunal’s interpretation of law, except on legal questions considered “of central importance for the legal system” (a category that notably includes constitutional questions). This means that legal questions might be settled beyond the reach of judicial review by tribunals not only lacking all the (admittedly generous) trappings of judicial independence granted to courts, but indeed existing for the purpose of implementing government policy. In other realms, courts very much enjoy drawing a sharp line between law and policy and insisting that the two fields must be kept separate. (The Québec Court of Appeal’s recent gun registry decision, Canada (Procureur général) c. Québec (Procureur général), 2013 QCCA 1138, which I summarized here, is a fine example of that sort of rhetoric.) But in administrative law, the combination of a refusal to extend a constitutional requirement of adjudicative independence to administrative tribunals and the emphasis on deference to such tribunals’ decisions even on legal questions blurs that line into invisibility.

I can think of a couple of explanations for why this might be the case. One is practical: there is, as the courts are fond of saying, a “spectrum” of administrative tribunals, ranging from the entirely quasi-judicial to the obviously policy-making. Between these two extremes, distinguishing between the two categories to decide which tribunals should be granted independence would be very difficult, causing no end of litigation, an outcome courts are ― rightly ― keen to avoid. But if distinguishing between quasi-judicial and policy-oriented tribunals is impracticable, refusing to defer to tribunals’ interpretations of law ― and especially to the decisions of tribunals that lack independence ― is not.

The other explanation might (I am really just speculating here) be due to a common, but, in my view, unfortunate, understanding of the rationale for judicial independence. Both courts and scholars often emphasize the role of judicial independence in constitutional litigation, where the rights of citizens or the powers of governments are at stake. This emphasis, I am afraid, tends to make people forget that it is no less important in “ordinary” than in constitutional litigation that decisions be made according to law rather then anyone’s policy preferences. As it is, it is thought that review of constitutional decisions independent courts is enough.

It isn’t. Don’t count on the Supreme Court to change its approach though. And unless it does, courts will have to defer to administrative tribunals to whom governments can, if the tribunals’ decisions are not to their liking, say “you’re fired!”