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!”

Not So Great Expectations

Whatever his other merits and demerits, Conrad Black has made some noticeable contributions to the development of the law of justiciability in Canada. The latest came this week, in the form of a judgment of the Federal Court of Canada, in Black v. Advisory Council for the Order of Canada, 2012 FC 1234.

The first had come in Black v. Canada (Prime Minister), (2001) 54 OR (3d) 215  (ON CA), in which Mr. Black, as he then was, tried to challenge the advice that Jean Chrétien, then Prime Minister of Canada, give to the Queen regarding Mr. Black’s possible appointment to a peerage in the United Kingdom. The Court of Appeal for Ontario held that the matter was not justiciable.

Now, decade, a peerage, and a couple of criminal convictions later, Lord Black is trying to dissuade the Advisory Council for the Order of Canada from recommending the termination of his appointment to the Order due to his criminal convictions in the United States. Having notified Lord Black that it was considering making such a recommendation to the Governor General (who makes all the final decisions regarding the appointment to and termination from the Order), the Council invited him to make submissions on the matter, in writing. Lord Black, however, demanded an oral hearing, arguing that it was necessary to let him explain why his convictions were unjust, and thus not grounds for terminating his appointment. The Council refused, and Lord Black applied for judicial review of the refusal.

The first question facing Justice de Montigny was whether the application for judicial review was premature. Normally, a court will not review an interlocutory decision of an administrative tribunal―such as whether to allow a person to make written or oral submissions. These decisions can be reviewed as part of the review of the tribunal’s final decision. However, this case is exceptional: the Council’s final recommendation is not a “decision” at all, and so is not subject to review for that reason, while the Governor General’s eventual decision to withdraw an honour such as an appointment to the Order of Canada is discretionary and probably non-reviewable, so that there is no juncture at which the Council’s decision not to give Lord Black the opportunity to make oral submissions could be reviewed. The time to review it is now or never.

If, that is, it is the sort of decision that can be reviewed by courts at all―if it is justiciable. The decision to grant an honour is certainly not. It is made in the exercise of the royal prerogative over honours―a discretion belonging to the monarch (though in most cases exercised on the advice of others political actors, such as the Prime Minister or the Cabinet). That in itself does not make it non-justiciable. The question is rather whether it is purely discretionary and political, or concerns rights or legitimate expectations. The grant of an honour does not. It is inherently subjective and motivated by moral and political considerations rather than legal ones; it is a matter of discretion, not right or entitlement. And, says Justice de Montigny, so is the decision to withdraw an honour. Lord Black could have no expectation of remaining an Officer of the Order of Canada forever; indeed, the Order has an explicit policy stating that the Council will review the membership of those who have been found guilty of a criminal offence. However, the policy also lays down a specific procedure for such a review. And that, says Justice de Montigny, is what makes this case justiciable. Lord Black could have no legitimate expectations as to the substance of the review of his membership, but he could have such an expectation about the procedure that would be followed. (This is also the difference between this case and the 2001 one: there, there was no predetermined procedure for the Prime Minister to follow.)

The trouble for Lord Black is that the review procedure prescribed by the Council’s policy affords the person concerned an opportunity to make written, but not oral submissions. An oral hearing is possible, but not required. Therefore there can be no legitimate expectation that one will be held. Nor is there anything wrong with that, says Justice de Montigny, either as a general matter, or in Lord Black’s specific case. Generally speaking, a hearing is not required to make an administrative procedure fair, even one that can have very grave consequences, such as a person’s deportation from Canada. Hearings are generally required only in proceedings where credibility is at stake. Lord Black claimed that this was his case because what is really at issue is his innocence of the misdeeds of which he was found guilty by American courts. Not so, says Justice de Montigny. His reasons on this point are a little confusing, because he says both that the Council cannot second-guess the decisions of the U.S. Courts and that

if, as [Lord Black] submits, he was treated unfairly in the American justice system, there is nothing preventing him from making that argument in writing.  …  He has provided the Council with a copy of his book on the subject of his convictions which runs to more than 500 pages.

In any event, the fairness of the U.S. criminal proceedings does not depend on Lord Black’s credibility.

In the end, then, Lord Black was no luckier than 11 years ago. But maybe he can console himself with the fact that this time, his claim was, at least, found to be justiciable.

Operation Dismantle at the Olympics

Citizens concerned that the deployment of a weapons system in their place of residence will expose them to an increased risk of a devastating attack turn to the courts to try to block the deployment. They fail. To a Canadian constitutional law junkie, that’s the short story of Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. But that is also the story, on which the BBC reports, of a group of London residents who tried to challenge the decision by the British defence ministry to install a missile system on the roof of their apartment building as part of the security deployment for the upcoming Olympics. The High Court rejected their claim yesterday in Harrow Community Support Ltd v The Secretary of State for Defence, [2012] EWHC 1921 (Admin). But although the two cases can, I think, be fairly summarized in much the same way, there are substantial differences in the courts’ reasoning.

Operation Dismantle was an attempt by a coalition of civil society groups to block the testing of American cruise missiles in Canada on the ground that it increased the likelihood of nuclear war and thereby contravened Canadians’ right to the security of the person, protected by section 7 of the Charter. The Supreme Court had “no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter” (455) – and that the judiciary could verify compliance with this duty even of a cabinet decision having to do with foreign policy (459).

However, the Court held “that the causal link between the actions of the Canadian government [in allowing the missile test to go forward], and the alleged violation of appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action” (447). Chief Justice Dickson insisted that judicial “remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof” (456). The problem for the appellants was that given the inherent uncertainty of international relations, “it is simply not possible for a court, even with the best available evidence, to do more than speculate upon” (454) the consequences of the decision to allow missile tests. And as subsequent decisions of the Supreme Court show, the same can be true of other governmental decisions in the realm of foreign policy. Thus the actual consequences of the Supreme Court’s holding that “disputes of a political or foreign policy nature may be properly cognizable by the courts” (459) are rather less far-reaching than they might first seem to be. A sweeping assertion of judicial power is combined with a very cautious approach to its exercise.

The decision of the High Court might seem to be, in a sense, the opposite. Justice Cave-Haddon professes extreme caution, asserting that “[m]ilitary operational deployments for reasons of national security are matters for which the Government is answerable to Parliament and not – absent bad faith or acting outside the limits of the discretion – the Courts” (par. 27). And yet he makes – on the strength of a fairly scanty record quickly put together for an application heard on an expedited basis – detailed findings of fact, including a finding regarding degree to which the installation of the missile system makes the claimants’ apartment block more likely to be a terrorist target. Unfortunately for claimants, this degree is, in the judge’s view, nil. The claimants lose, but – purportedly – on the merits, rather than because their claim is inherently incapable of prof.

The reason for my skepticism as to whether this really is a decision on the merits is that the judge appears to have accepted with no reservations the government’s testimony, and in particular that of the general responsible for the military’s Olympics security deployment. Now it is not clear whether, or how seriously, the claimants challenged that evidence. But what seems clear enough is that much of it was opinion (about the missiles’ necessity, safety, etc.), not fact capable of proof in court. And even if we treat such testimony as expert evidence, what chance would the claimants have had to challenge it even if they had tried? A high-ranked military officer is, after all, presumably the best expert on such questions, and a court would be naturally inclined to defer to him.

Perhaps it is better simply to admit, as our Supreme Court did in Operation Dismantle, that the allegations of claimants in such cases are not capable of proof. Or to hold, as both the English High Court and our Supreme Court ostensibly did not,  that such cases are, quite simply, not justiciable.

En Français S.V.P./In English Please

In 2008, the Township of Russel, just outside Ottawa, passed a by-law requiring any new commercial sign to be bilingual. An angry activist and a shopkeeper challenged the validity of the by-law. The Court of Appeal for Ontario has rejected their challenge, in Galganov v. Russel (Township), 2012 ONCA 409, released last Friday.

Before getting to the challenge itself, the court addressed the preliminary issue of Howard Galganov’s standing to bring it. Mr. Galganov neither lives nor carries on a business in the township, and is not personally affected by the by-law. At common law, he does not have standing. But subs. 273(1) of Ontario’s Municipal Act, S.O. 2001 c. 25, provides that an illegal by-law can be quashed on application of “any person”. That’s great, says the court, but “any person” isn’t just any person. “The words ‘any person’ in s. 273(1) of the Act mean ‘any person who has standing under the common law relating to standing'” (par. 15). The old presumption that legislation will not be intepreted to depart from the common law unless clear language indicates that it does still has some life in it.

Be that as it may, another applicant, Jean-Serge Brisson, has a shop in the township, which carries a unilingual French sign, so there is no question about his standing to challenge the by-law. His first claim was that the by-law was ultra vires the township, essentially because the Municipal Act does not include an explicit grant of power over language to municipalities. The court rejected that submission, saying that these days, grants of powers to municipalities are broad and general, and there is no need to look for such a specific authorization as Mr. Brisson claimed was necessary, and holding that the by-law at issue was authorized by par. 11(2)(5) of the Municipal Act, which provides municipalities with the power to make by-laws “respecting the … [e]conomic, social and environmental well-being of the municipality.” Mr. Brisson argued

that, instead of promoting the economic or social well-being of the municipality, the By-law detracts from it.  This argument is based on the supposition that a commercial establishment with a bilingual exterior sign signals that it will be able to serve customers in both languages.  If a commercial unilingual English establishment is compelled to post an exterior bilingual sign, customers will be misled and upset if they cannot be served in French (par. 33).

The court gave this claim short shrift, on the ground that it was not supported by evidence; indeed, there was expert evidence to the contrary. Actually, one can question whether it is the court’s role to venture on such an inquiry at all. No court would question whether an act of Parliament really tended to promote the “Peace, Order, and good Government of Canada” – it is enough that Parliament thinks it does. However, Parliament is sovereign within the competence defined by division of powers provisions of the Constitution Act, 1867, and subject to the Charter. A municipality only exercises limited delegated powers, so courts are justified in ascertaining whether municipal by-laws are within the bounds of the delegation. The problem here is that delegation is so vast that its terms cannot be policed without the courts’ inquiring into the wisdom of the legislation, which is something courts are not very good at, and ought to be (though perhaps they are not) uncomfortable with doing.

Mr. Brisson’s second claim was that the by-law was unconstitutional because it contravened the Charter‘s protection of freedom of expression. Following the Supreme Court’s decision in Ford v. Québec, [1988] 2 S.C.R. 712, which struck down Québec’s prohibition on commercial signs in languages other than French, the court accepted that the by-law did infringe freedom of expression as guaranteed by s. 2(b) of the Charter. However, it held that the by-law was saved by s. 1 of the Charter. Its objective, “the promotion of the equality of status of both French and English,” is pressing and substantial, and it is rationally connected to the objective. As usual, the real question is that of proportionality. Apparently, Mr. Brisson’s main argument on this point was that the by-law prevented people from having signs in a language other than French or English. But the by-law does no such thing, the court points out. “Persons engaged in commerce can use any language of their choice along with French and English (par. 80). Indeed it is rather shocking that much Mr. Brisson and his lawyers placed much reliance on this claim.

The court went on to add that “in the past, Brisson has chosen to express himself only in English; he now chooses to express himself only in French on his exterior sign while continuing to employ English in other aspects of his business. To require him to employ English on his sign in addition to French is a minimal impairment of his right to freedom of expression” (par. 83). That, it seems to me, is bad reasoning. What does it matter that Mr. Brisson chose to express himself in English in the past, if now he wants to express himself in French only? The court seems to be questioning his good faith, or to be contradicting its own holding that his freedom of expression has been infringed. But that is not its role. It has nothing to do with answering the question that the case actually raises: does forcing shopkeepers to express themselves in French and English, whether they want to or not, the least restrictive means open to the township of achieving its pressing and substantial objective of promoting the equality of status between French and English. The court’s judgment, in my view, does not actually answer that question.

A Reasonable Opinion

The Supreme Court delivered an interesting decision in Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, yesterday. On the surface, it is a rather dull, or at least purely technical, case about the proper method of assessing the value of land occupied by a historical monument. But it has much broader implications, because it is a useful reminder of the way in which courts ought to approach discretionary decision-making by the government, something of which the government of the day is very fond.

The case concerns the application of Payment in Lieu of Taxes Act, which authorizes the Minister of Public Works and Government Services to make “payments in lieu of [municipal] taxes” to municipalities in which federal property is situated. Federal property is constitutionally exempt from provincial (and hence municipal) taxation, but as a matter of fairness, Parliament authorizes payments to municipalities that are meant to replace municipal taxes that would otherwise be levied on most federal property. Nonetheless, the statute confers a great deal of discretion on the Minister: he decides whether to make payments; the amount of the payment is calculated using the taxation rate which would be applicable “in the Minister’s opinion” if the property were taxable; and the value to which this rate is applied is also one which “in the Minister’s opinion” would be assessed if the property were taxable.

 Justice Cromwell, writing for a unanimous Court, summarizes the case very effectively at par. 5:

The Minister … decided that a national historic site is effectively valueless if it does not support economically beneficial uses. He therefore concluded that roughly 40 acres of the [Halifax] Citadel site are worth ten dollars. This conclusion, in my view, is unreasonable for two reasons. First, the property value is to be the value which, in the Minister’s opinion, the local assessment authority would apply to the property … However, in valuing the property the Minister adopted an approach which the record discloses no example of a Canadian assessment authority using, and which significantly differs from the approaches that the record suggests assessment authorities in provinces across the country do use.  The Minister’s opinion that the value he arrived at “would be attributable by an assessment authority” has no basis in and is contrary to the evidence.  Second, the Minister’s decision is inconsistent with the Act’s purpose.  The Act permits payments for national historic sites. To decide that these sites have no value for taxation purposes except to the extent that they could support commercial uses negates the very purpose of their inclusion in the PILT scheme.  For these two reasons the Minister’s decision was unreasonable.

So, the Supreme Court reminds us – and, more importantly, the federal government, – the exercise of discretionary powers is judicially reviewable, and even though the standard of review is reasonableness, it is a meaningful review. The phrase “in the Minister’s opinion” which Parliament uses seems to confer a very wide discretion on the Minister. But this discretion has to be exercised on the basis of evidence and in a logical way. The Minister cannot act on a whim or just because a certain decision suits him better than its contrary. Nor can he act in a way that frustrates the purpose of the legislation he is applying.

None of this is exactly new – these themes go back at least to Justice Rand’s judgment in Roncarelli v. Duplessis, [1959] S.C.R. 121, for example his famous statement that “[i]n public regulation … there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator” (p. 140). But the reminder is timely. Recent federal legislation has taken to delegating considerable powers to the executive, and also, it seems, to trying to insulate executive action from review, by adding discretion-conferring catchphrases such as “in the Minister’s opinion” to already-existing grants of discretionary power. As the Supreme Court’s latest decision shows, however, delegation and conferral of apparent discretion does not free the executive to do whatever it pleases.