R v King: Creative Remedies

On September 19, 2019, certain new amendments to the Criminal Code took effect. Those amendments, among other things, repealed s. 634 of the Criminal Code, which enshrined the statutory right to peremptory challenges of potential jurors (as opposed to challenges for cause). The bill in question replaced s.634 with a new provision that allowed expanded powers for a judge to stand aside certain jurors. In R v King, Justice Goodman considered the constitutionality of this repeal-and-replace.  The applicant had made arguments that “the repeal of s.634 of the Criminal Code…violates his right to a fair trial pursuant to ss.7, 11(d), and 11(f) of the [Charter]” [2]. The judge ultimately accepted these arguments, concluding that the repeal provision was unconstitutional. When it came to s.1, Justice Goodman did not conduct a full Oakes test analysis, given the Crown’s concession that “it would be a difficult task to sustain any argument under s.1” in the circumstances of a s.11 or s.7 breach. [257-258].

I am not a criminal law expert, and so the nuances of peremptory challenges are beyond me. And while the constitutional analysis in the case is interesting, other, brighter minds will analyze it. For me, the really interesting part of this case is the remedy. That is what I will focus on in this post.

After concluding that the repeal was unconstitutional, Justice Goodman had to craft an appropriate remedy. He was faced with arguments on the issue. At first, Justice Goodman recognized that under a “plain reading” of s.52 of the Constitution Act, 1982, “[i]t is recognized that a declaration of invalidity will create a legislative vacuum or frustrate Parliament’s clear legislative intent” [262]. He went on to note that, according to his take on principles of remedies law, “courts should not drastically alter the nature of the statutory scheme through  a s.52(1) remedy” [263]. But in the face of this potential “vacuum,” the Crown submitted that “resort must be made to my inherent jurisdiction at common law to control the challenge process,” without the assistance of the former s.634 of the Criminal Code [265]. In other words, with no statutory guidance, the challenge process would devolve to the inherent jurisdiction of the courts, “to ensure that jury selection takes place in a fair and efficient manner such that an impartial jury is selected” [265].

But Goodman J did not accept this proposition, instead deciding that he could issue a s.52 declaration of invalidity that restored the law to the s.634 state:

However, if I accede to the Crown’s submissions, there is a real risk that individuals will be subjected to a jury selection that is unconstitutional. That is inconsistent with Charter values and the principles established in Schachter.

Accordingly, the declaration shall have immediate effect. Pursuant to s.52(1) of the Constitution Act, 1982, the repeal of s.634 is of no force and effect.

It is trite to state that there is no right without a corresponding remedy. The remedy here is to apply or adapt the previous s.634 of the Criminal Code as it existed prior to the enactment of s.269 of the Act. While not “reading-in” per se, (as the former section remains unaltered), the ultimate effect is the same.

In my view, there are a few problems with this sort of reasoning.

First, it is inconsistent with the way the Supreme Court has held declarations of invalidity to work (characterizing what the judge did here as a severance-sort of remedy). Striking down a legislative provision does not leave any discretion in a reviewing court when it comes to the particular time in which a declaration takes effect (with the notable exception of a suspended declaration of invalidity). Starting from first principles, a s.52 remedy works in two temporal directions. Prospectively, a declaration of invalidity “declares that, henceforth, the unconstitutional law cannot be enforced,” but it also “operate[s] retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law” (Hislop, at para 82). Put differently, “[w]hen the Court is declaring the law as it has existed” then a retroactive remedy of this sort is appropriate (Hislop, at para 93). The remedy therefore operates as if the law never existed in the first place: “Thus, in principle, such a provision is invalid from the moment it is enacted…” (Martin, at para 28). More generally, s.52 “confers no discretion on judges” (see Ferguson, at para 35 in the context of constitutional exemptions).

Nothing in these precedents permit a judge to apply a retroactive declaration of invalidity (whether of a whole statute or by severing an offending part, as in this case) at the time frame he or she chooses. This is because when severance occurs, it reaches back to the time the statute was enacted, but it does no more. Thus, it is impossible to conclude that s.634 could somehow reappear, with the declaration taking effect before the replacement of s.634, because a declaration of invalidity does not bring back into force previous versions of a law–even when the law is a repeal. It merely strikes the replacement provision; in this case, new provisions governing the powers of the judge. For this reason, it is impossible to say that issuing a declaration of invalidity can be timed to bring s.634 back into force, because s.634 no longer exists under the repeal-and-replacement law. A different system exists. The judge should have dealt with the logical conclusion of striking down: under the right approach, there would be no peremptory challenge provision in the Criminal Code, and it would indeed be up to individual judges to craft the jury selection process to be consistent with constitutional rights until Parliament stepped in.

This leads to another problem with this decision: it is hard to see what the Court is actually doing, because much of its remedial analysis is unclear. This is true in a few ways. First, the Court failed to conduct the analysis that the Supreme Court  set out in its seminal Schachter case. For example, in Schachter, at 717 the Court was explicit about the approach judges should take in fashioning remedies under s.52:

Once s.52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? Third, should the declaration of invalidity be temporary suspended?

Here, the judge did not define the extent of the inconsistency, which is usually set by looking to the branch of the Oakes test that the law failed (Schachter, 718). But as noted above, the judge did not conduct a s.1 analysis here. This meant that the extent of the inconsistency with s.7 and s.11 was left undefined, and the remedy chosen did not necessarily fit the violation.

Further, it is unclear what the remedy the judge actually imposed. He seemed to analogize it to a form of “reading-in.” But he paid no mind to the law governing reading-in, and thus imposed a remedy that was profoundly violative of Parliament’s purpose in the repeal provision. For example, in the companion case of R v Muse, the Court cited the Minister of Justice’s take on the purpose of the legislation:

Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition…[t]o bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury…I am confident that the reforms will make the jury selection process, more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.”

Taken this way, it was a clear goal of the legislative provision(s) in issue to remove peremptory challenges and strengthen the existing powers of the judge to control the jury selection process. But the judge in King gave no mind to this legislative purpose. He basically read the old s.634 into the legislation. But reading-in, according to Schachter, can only make sense where it would further a legislative objective or constitute a lesser interference with that objective in a way that does not “constitute an unacceptance intrusion into the legislative domain” (Schachter, at 718). Here, the judge read-in s.634 which was clearly designed to be repealed by the new legislation, and the judge stepped into the shoes of Parliament to craft what he thought was an appropriate legislative scheme (the old s.634). This is not respectful of the purpose of the repeal-and-replace.

One might respond that, with analogy to the law on suspended remedies, the judge actually decided that merely striking the provisions would create a “legislative vacuum.” That vacuum was solved by reading in s.634. And the court would have some support in simply declining to issue a declaration of invalidity: see Mahe, at 392 “…the result of a declaration of invalidity would be to create a legislative vacuum. This result would not help the position of the appellants.” One could extend the reasoning here. But it is not clear that the abolition of peremptory challenges will not help the applicant. And even if it would help the applicant, the judge did not engage with the requisite analysis to make that conclusion. Instead, he relied on the nebulous notion of “Charter values” to assist his crafting of a remedy. It also is not clear that a legislative vacuum would be undesirable in this sense: judges would have the inherent power to craft the challenge process.

As is evident, there is much wrong with this decision. But at any rate, the issue of peremptory challenges has divided courts across the country. It will be interesting to see what happens on appeal.

Heresy!

The UK Supreme Court’s decision in “the Case of Prorogations” and the political constitution

I wrote last week about the UK Supreme Court’s decision in R (Miller) v Prime Minister, [2019] UKSC 41 (Miller (No 2)), which unanimously held that the Prime Minister’s advice that the Queen prorogue Parliament for five weeks was unlawful, and the prorogation itself, therefore invalid. There was, however, one aspect of Miller (No 2) that I did not discuss in any detail: that of the Court’s treatment of the “political constitution”, and the distinction between those constitutional rules that are part of constitutional law and those that are not. In this post, I want to come back to this issue.

It is useful to begin with the orthodox view of the political constitution, articulated by scholars such as A.V. Dicey and courts in cases like Re: Resolution to amend the Constitution, [1981] 1 SCR 753 (Patriation Reference) and R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller (No. 1)). On the orthodox view, only some constitutional rules ― statutes and common law rules, such as those circumscribing the scope of the royal prerogative and, in part, of Parliamentary privilege ― are part of constitutional law. Other rules, known as constitutional conventions, are not constitutional law and the courts will not enforce them, although they can sometimes take note of them in resolving properly legal issues.

In the Patriation Reference, the Supreme Court of Canada suggests a number of reasons for distinguishing convention and law. First, the majority opinion on the conventional question insists that “unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves.” (880) The majority opinion on the legal question makes the same point, and adds that “[t]he very nature of a convention, as political in inception and as depending on a consistent course of political recognition … is inconsistent with its legal enforcement”. (774-75) In Miller (No 1) the majority of the UK Supreme Court put it more pithily: “[j]udges”, it said, “are neither the parents nor the guardians of political conventions”. [146]

Second, and relatedly, the Patriation Reference suggests that it would be inappropriate to enforce conventions, given their questionable pedigree. “What is desirable as a political limitation ”, it says, “does not translate into a legal limitation, without expression in imperative constitutional text or statute”. (784) Third, the majority opinion on the conventional question argues that the courts lack remedies to compel compliance with conventions. Fourth and last, the same opinion notes that conventions conflict with legal rules, and courts are bound to apply the latter. Others have also argued that conventions are too shrouded in uncertainty―that both their very existence and their implications for specific situations are too doubtful―for them to function as meaningful legal rules.

Miller (No 2)  doesn’t explicitly engage with any of this. But by the time the UK Lady Hale and Lord Reed are done with the case, not much of the old orthodoxy is left standing. They not only regularly advert to conventions (which courts can do on the orthodox view), but seem to assimilate the exercise of conventional and legal powers, and arguably provide a way for judicial enforcement of conventions, in disregard of the traditional distinction between conventions and law. This might be a good thing, but I am uneasy at the way it is accomplished.


The tone is set early on. At the beginning of the judgment, Lady Hale and Lord Reed explain what a prorogation is, and contrast it with a dissolution of Parliament. Following the latter, they note, “[t]he Government remains in office but there are conventional constraints on what it can do during that period”. [4] There is no particular need to mention these “conventional restraints”, even for the sake of the descriptive point the Court is making (which is itself unnecessary, although perhaps helpful, to explaining the decision in the case at bar). A more orthodox court would probably have avoided mentioning conventions here. Not this one.

More relevantly to the case, Lady Hale and Lord Reed say that they “know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister”. [15] They go on to further explain that

the power to order the prorogation of Parliament is … exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. [30]

The double negative allows the judgment to ostensibly “express no view on” [30] whether Her Majesty was indeed “obliged by constitutional convention” to accept the Prime Minister’s advice, but the fig leaf is quickly blown away. The Court proceeds to assess the lawfulness of the Prime Minister’s advice, which makes little sense unless one assumes that Her Majesty had to follow it. If the advice was in reality what it is in name, why would the Court be looking into it? This is further confirmed by the Court’s approach to the remedy. The applicants’ lawyers, implicitly adopting a more orthodox position, only sought “a declaration that the advice given to Her Majesty was unlawful”. [62] But the Court goes further, and says that this advice “led to the Order in Council [pursuant to which the prorogation was carried out] which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed.” [69] Led to? Founded on? This, I am tempted to say, is an imitation fig leaf, not even the real thing. What Lady Hale and Lord Reed mean ― the only way they reasoning makes sense ― is that the advice required the order in council to be made; that it was legally determinative, not just factually causative.

Consider: If I write a letter to Boris Johnson with a devious master plan for executing no-deal Brexit, and he follows it to the letter, my letter, which will actually be advice, in the sense of a suggestion, will not be the subject of court proceedings. The relevant choices will still be the Prime Minister’s, and, should their legality be called into question, my intervention will be no more than a part of the factual background, if that, even though it would be fair to describe it as “leading to” the Prime Minister’s actions, which would be “founded on” it. Of course, my position vis-à-vis the Prime Minister is different, in a constitutionally significant way, from the Prime Minister’s vis-à-vis the Queen. But, on the orthodox view, this would significant as a matter only of political, not legal, constitutionalism. The Supreme Court sees things differently. To repeat, Lady Hale and Lord Reed’s approach only makes sense if the Prime Minister’s advice is binding on Her Majesty, so that there is no daylight between his ostensibly conventional role and the exercise of the Crown’s legal powers.

Perhaps one might argue that the UK Supreme Court’s treatment of conventions is orthodox because it is only a necessary step towards resolving a properly legal question as to the scope of the prerogative power of prorogation. The Court, on this view, does not do what the Diceyan dogma tells us is impossible: enforce a convention. But is that so? And if it is so in this case, what about others in which the Court’s reasoning might be applied? (As discussed last week, the Court claims that Miller (No 2) is a “one off”. That remains to be seen.)

It is crucial, I think, to Lady Hale and Lord Reed’s reasoning that they are able to confidently assert that, while “Parliament does not remain permanently in session … [i]n modern practice, Parliament is normally prorogued for only a short time”. [45] They rely, moreover, on a statement by a former Prime Minister to the effect that nothing more is necessary. And they conclude that constitutional principles (specifically, Parliamentary sovereignty and executive accountability) mean departures from modern practice would require justification. Without explicitly undertaking an analysis in terms of the Jennings test adopted by the Supreme Court of Canada in the Patriation Reference, Lady Hale and Lord Reed come close to showing that the relevant constitutional actors seem to be following a rule, that they feel bound by the rule (or at least that they have no reason not to follow it), and that there are reasons, in the shape of important constitutional principles, for this rule ― in other words, that, according to the Jennings test, there exists a convention. Only, in effect, Miller (No. 2) very nearly transmutes this “modern practice” into law. (Very nearly, because in principle it is still open to a Prime Minister to justify departure from the practice.)

And beyond what has or has not happened in this particular case, I think the reasoning deployed by Lady Hale and Lord Reed can serve as a blueprint for judicial enforcement of conventions in the future. In a nutshell, what Miller (No 2) says is that the exercise of the royal prerogative is subject to implicit limits imposed by constitutional principles, and that the location of these limits ― which can be inferred, in part at least, from “modern practice” ― is a justiciable question. So consider, for example, the convention requiring the sovereign to assent to legislation passed by the House of Commons and the House of Lords (or only the House of Commons legislating pursuant to the Parliament Act 1949). Courts couldn’t enforce that convention and either require the sovereign to assent or treat a bill passed by the Commons and the Lords as law without her assent, right? Well, they could say that the power to withhold assent is subject to implicit limits imposed by the democratic principle, such that any departures from the modern ― or, this case, centuries-old practice of not withholding assent ― must be justified, and… voilà!


As readers may know, I am a longtime skeptic of the Diceyan orthodoxy on the separation between conventions and law. I think that the courts should have regarded conventions as common law rules en devenir and enforced them if and when necessary, subject however to justiciability concerns ― for example when the conventional rule is vague and/or its application in a given case involves political judgment. So the outcome of Miller (No 2) is not all bad, from that perspective.

And its reasoning makes the arguments invoked in support of the orthodoxy that much more difficult to sustain. The emphasis that Lady Hale and Lord Reed put on the development of the common law constitutional rules in cases such as the Case of Proclamations shows that the disclaimers of the creative role of the judiciary and protestations about its inability to translate “what is desirable as a political limitation” into legal rule always proved too much. Similarly, their confident treatment of the question of the remedy and of the evidentiary issues shows that concerns about the courts’ ability to engage with conventional issues have been greatly exaggerated.

That said, I have my reservations about the approach the Miller (No 2) court takes. For one thing, I wish Lady Hale and Lord Reed had been more transparent about what they were doing. Miller (No 1), where the UK Supreme Court reiterated the orthodox view that a convention could not be judicially enforced ― even a convention enshrined in statute! ― was only decided a couple of years ago. Miller (No 2) is almost a complete U-turn from its namesake, yet we have little explanation about why the ladies and lords were for turning. Here as on other issues, the suspicion of results-oriented reasoning must weigh heavily on the Court. More substantively, Lady Hale and Lord Reed may be overconfident in the courts’ ability to dispose of the factual questions that may arise when the courts enter the realm of politics. As noted above, I think that these questions will sometimes ― though by no means always ― be difficult enough that non-justiciability is a real concern. The reasoning in Miller (No 2) does not acknowledge this, and in my view this is a mistake.


Miller (No 2) thus seems to be a very significant, albeit unacknowledged, development in the UK Supreme Court’s understanding of the nature of the constitution, and specifically of what used to be thought of as its political, non-legal component. Without saying so, the Court is, perhaps, in the process of correcting the mistake made by scholars and judges who saw a sharp separation between law and politics when, at the heart of the UK’s constitution, none existed. Views on the nature and status of conventions that were just recently said to be quite heretical now appear to have prevailed.

If anything, the pendulum may have swung too far in the other direction. The Court hasn’t thought through the implications of its reasoning. Perhaps this is just how the common law develops: case by case, without the courts fully understanding the consequences of one decision for those that will follow. In that sense, Miller (No. 2) might not be an innovation at all. The system works, perhaps, but it is not always a pretty sight.

Mulling over Miller

Some thoughts on the UK Supreme Court’s decision in “the case of prorogations”

It’s been a while already, but I would like to say a few things about the UK Supreme Court’s decision that Prime Minister Boris Johnson’s advice, last moth, that the Queen prorogue the Westminster Parliament for five weeks was unlawful, and that the prorogation is a nullity. The unanimous decision by Lady Hale and Lord Reed, R (Miller) v Prime Minister, [2019] UKSC 41 (Miller (No 2)) breaks new and, in my view, shaky constitutional ground. It is an understandable response to what Lord Sumption has accurately described as Mr. Johnson’s “constitutional vandalism”. But, while understandable, I am not persuaded that it is right.

I should note, of course, that I am no great expert on UK constitutional law. Many people who are have written about Miller (No 2) already, but, due to my recent travels and speaking engagements, I haven’t been able to keep up with the torrent of commentary. Anyway, the principles at stake are similar to those that apply in Canada and New Zealand, and I wanted to produce a record of my own thoughts regarding Lady Hale and Lord Reed’s reasoning. Add salt to taste. I will also add a note on the applicability to this decision to Canada, where of course the ability of a Prime Minister to procure the prorogation of Parliament for political purposes is something that has already been done, and could be attempted in the future.


The substantive issue in Miller (No 2) was whether the Prime Minister’s advice that the Queen prorogue Parliament for a five-week period was unlawful, either because it interfered with the constitutional principles of Parliamentary sovereignty and government accountability to Parliament, or because it had an improper purpose. But as a preliminary matter the Court had to decide whether the matter was justiciable at all. If it found that it was, and that the prorogation was unlawful, it also had to consider the appropriate remedy.

The argument against justiciability was that the substantive issues were subject to political accountability rather than judicial scrutiny and that there were, in any case, no legal criteria by which the lawfulness of advice to prorogue Parliament could be determined. For the judiciary to step into this controversy would offend against the separation of powers. But the Court rejected this contention. The fact that the decision it was asked to review was made by a political actor, had political resonance, and was potentially subject to political accountability did not, without more, mean that courts should refrain from reviewing its legality. As for the separation of powers, it would only be enhanced “by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions”. [34]

The power to prorogue Parliament is based in the Royal prerogative; that is to say, it is a power of the monarch that is recognized by the common law (rather than having a statutory foundation). The common law also outlines the limits of prerogative powers. Doubts about justiciability, the Court says, can legitimately arise if the dispute concerns the lawfulness of the exercise of a prerogative power within its proper limits. However, there is no question that it is the courts’ role to draw the limits in the first place. The dispute here, the Court says, involves just this sort of line drawing.

How are the limits of a prerogative power to be ascertained? Unlike with a statutory power, there is no text to guide the court. However, the scope of any prerogative power “has to be compatible with common law principles”, including “the fundamental principles of our constitutional law”, [38] which, despite the fact that the UK’s constitution is not codified and consists of “common law, statutes, conventions and practice”, “are enforceable by the courts in the same way as other legal principles”. [39]

Two such principles help circumscribe the scope of the power to prorogue Parliament: Parliamentary sovereignty, and the accountability of government to Parliament. The former means not only “that laws
enacted by the Crown in Parliament are the supreme form of law in our legal system” [41] but also that the executive cannot get int the way of Parliament “exercis[ing] its legislative authority” [42] as it would be in the absence of limits on the power of prorogation. While prospect of unlimited prorogation may be hypothetical and subject to “practical constraints”, [43] its very existence would be incompatible Parliamentary sovereignty, and therefore intolerable. The same goes for the accountability of the Ministry to Parliament,

through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. [46]

This accountability serves to ensure that “citizens are protected from the arbitrary exercise of executive power”, [46] but it too would be undermined by long-term prorogations.

It follows then that, while a short period of prorogation is acceptable as not interfering with Parliament’s legislative power or its scrutiny of the executive, the longer Parliament stands prorogued, the more these principles are put at risk. There is no bright-line limit between what is and what is not lawful. Rather,

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. [50]

Whether a given prorogation has this effect, and whether, if so, a justification has been provided for it, are questions of fact of “no
greater difficulty than many other questions of fact which are routinely decided by the courts”. [51] The court must decide these questions “with sensitivity to the responsibilities and experience of the Prime Minister, and with a corresponding degree of caution”, [51] but it can and must decide them. In this case, the Court finds that the length of the prorogation will interfere with Parliamentary sovereignty and the accountability of government, and that the justifications advanced on behalf of the Prime Minister are unpersuasive. Its decision on the latter point is influenced by the evidence given by a former Prime Minister, Sir John Major.

The Court must, then, decide on the remedy. The applicant would have been content with a declaration to the effect that the Prime Minister’s advice to prorogue Parliament was unlawful, but the Court goes further. Having rejected the contention that the prorogation is part of “proceedings in Parliament” whose validity the courts are precluded from reviewing by Article 9 of the Bill of Rights 1688, it finds, that the Order in Council signed by the Queen to require the prorogation,

being founded on unlawful advice, was likewise unlawful, null and
of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. [69]

The prorogation never happened.


As noted above, one can understand why the Supreme Court decided the way it did. Indeed, the reasoning of Lady Hale and Lord Reed has a certain elegance to it, and I think it is fair to say that a constitution in which the power to prorogue Parliament cannot be abused for partisan or political purposes is preferable to one where it can be. It would indeed be shocking if the Prime Minister were to attempt proroguing Parliament for years on end. As Canadians will recall, it is equally shocking when the Prime Minister uses a prorogation to avoid being held to account by Parliament. The question, though, is whether the United Kingdom actually had such a constitution, prior to the Supreme Court’s decision in Miller (No 2).

Canadians, of course, will be interested in what our constitution has to say on this. Let me begin with that. Unlike the United Kingdom’s, Canada’s constitution is partially codified and entrenched. As it happens, this entrenched constitution includes a specific provision that speaks to the possibility of indefinite prorogations: section 5 of the Canadian Charter of Rights and Freedoms provides that “[t]here shall be a sitting of Parliament and of each legislature at least once every twelve months”. An attempt to prorogue Parliament, or a legislature, for more than a year would be flatly unconstitutional, and a court ought to be able to recognize this and, pursuant to section 24(1) of the Charter, provide any “such remedy as the court considers appropriate and just in the circumstances”.

But what about abusive attempts to prorogue Parliament for periods of time shorter than a year? In my view, the Charter settles this matter differently than the common law constitution of the United Kingdom. Instead of a standard of justification, as under the latter, the Charter sets out a bright-line rule, and it would be inappropriate for the courts to re-write the constitution that we actually have in order to improve it on a pattern suggested, decades after its enactment, in a jurisdiction whose own constitutional landscape is, on this point, somewhat different from ours. The Supreme Court of Canada rejected an attempt to invoke constitutional principles to add to the Charter’s proscription on retroactive criminal law in British Columbia v Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 SCR 473, and it should follow the same logic in rejecting an attempt to import Miller (No. 2) into Canadian law.

This is not to say that the one-year line drawn by the Charter‘s framers is especially satisfactory. Certainly shorter prorogations can be abusive, as we saw in 2008. Perhaps our constitution could be improved by an amendment to section 5 of the Charter, just as it would in my view be improved by an expanded proscription against retroactive legislation. But of course such an amendment is not for the courts to effect. And, as I will now suggest, it is not obvious that such an amendment ought simply to codify the Miller (No. 2) decision.

Indeed it is not clear that the authors of Miller (No. 2) viewed it as a model for anything else that would follow. At the outset, the insist that the case “arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a ‘one off'”. [1] It is worth pointing out that this is an unusual statement for a court to make, and it should, I think, ring some alarm bells. (Consider another instance where a court said something similar: Bush v Gore, 531 US 98 (2000) where the per curiam majority opinion noted that its “consideration is limited to the present circumstances”. (109))

At the very least, one suspects that, despite its confident assertions about its ability to resolve factual claims about the necessity for a prorogation, the Court probably hopes that it will not have to do so again. And, perhaps even more fundamentally, the Court may well realize that it has not really articulated a principle against which to judge the lawfulness of prorogations so much as asserted the power to do so on a case-by-case basis. The Court gets away with it by shifting the burden of proof onto the Prime Minister, who is asked to justify his request for a prorogation instead of the applicants having to actually show that it was flawed in some legally cognizable way (as opposed to “merely” stinking to high heaven). Mr. Johnson was not prepared to discharge the burden. His successors, presumably, will not make the same mistake.

Seen in this light, Miller (No. 2) looks less as a re-assertion of constitutional principle in the face of a band of governing vandals, and more like a power grab. The vandals, admittedly, are real, so the power grab is for a good cause, but it’s a power grab all the same. This impression is only reinforced by the way in which the Court re-framed the issue from the legitimacy of a particular (albeit disturbing in the extreme) exercise of an undoubted prerogative power (namely, that of proroguing power) to that of the scope the prerogative. The cases on which the Supreme Court purports to rely sought to preserve a space for the exercise of prerogative powers that would not be amenable to judicial review, being too bound up with issues of policy and politics. Miller (No. 2) does not repudiate these cases, but it suggests a way around them: it is enough to say that, correctly understood, the issue concerns the scope of a prerogative power rather than the lawfulness of its exercise within its acknowledged scope.

If the prerogative of dissolution had not been abolished in the UK, this trick could have been applied to engage the courts in reviewing its exercise. (Of course, this prerogative has been preserved in Canada, even in jurisdictions that have adopted purportedly fixed election dates; this is an additional consideration that ought to give pause to Canadian courts urged to import the Miller (No. 2) reasoning here.) The same goes for the prerogative of mercy and the prerogative powers in relation to foreign affairs or war. In fairness to the Supreme Court, I doubt that it really wants to go there. If urged to embark on this sort of review, it can still say that, this time, the issues do not go to the scope of the prerogative. But that only highlights the fact that the reasoning in Miller (No. 2) is results-oriented. A one-off indeed. I don’t think this is the stuff of great constitutional law.

There are at least a couple of additional issues worth addressing about Miller (No. 2), one of which I will make here, and the other in a separate post. The former is that the Supreme Court’s conception of Parliamentary sovereignty is, in my view, something of a departure from how this concept has been understood until now. The orthodox view is that it referred to the supremacy of the law enacted by the existing Parliament over any other law ― common law, regulations, and even statutes enacted by Parliaments past. In recent decades, this view has been somewhat tempered by a growing acceptance Parliaments dictating the “fanner and form” ― but not the content ― of future statutes. Of course Parliamentary sovereignty in this orthodox sense is not at all affected by prorogation. But the Supreme Court expands this principle, by saying that it requires that there be no obstacles, or at least no obstacles created by the executive, in the way of a Parliament that might legislate, as opposed to one that already has.

I wonder how much the Court has thought this through. There is a tension between this understanding of sovereignty and the few that Parliament can complicate the life of its successors by enacting “manner and form” requirements. There is an even stronger tension between this view and the musings of some judges (Lady Hale among them!) about the possibility that Parliamentary sovereignty isn’t quite absolute, and that there might be some laws that Parliament cannot enact (or rather, that Courts would be justified in not giving effect to some laws). Again, future courts might resolve this tension by saying that the expanded version of Parliamentary sovereignty is a single-purpose idea meant to control the executive and not the other branches of government. But I wonder whether, in trying to stave of off the absolutist claims of the executive, the Supreme Court hasn’t provided intellectual ammunition for similar claims by Parliament.

The other way in which Miller (No. 2) departs from past, and indeed very recent, understandings of how the UK constitution (and other constitutions derived from it) works, which I will not address in detail here, has to do with the distinction between the legal and the political constitution. This distinction was a sharp one, or so we were told told by writers such as A.V. Dicey and courts in cases like Re: Resolution to amend the Constitution, [1981] 1 SCR 753 (Patriation Reference) and R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller (No. 1)). Statutes and common law rules were legal and legally enforceable rules; constitutional conventions, political and not legally enforceable. In Miller (No. 2) the lines between these types of constitutional rules are are blurred. This might not be all bad, but I will defer this to a separate post, which I will try to write in a not-too-distant future.


To repeat yet again, I am not criticizing the reasoning in Miller (No. 2) because I approve of, or even regard as at all defensible morally, the actions of the Prime Minister that led to it. The Supreme Court acted out of genuine and perfectly understandable concern with gross abuse of power, for which it found no redress in the orthodox legal toolkit, and so took unorthodox measures. As H.L.A. Hart wrote long ago, in cases where constitutional fundamentals are at stake, courts can reshape them and so transform our understandings of what law even is; “all that succeeds”, he observed, “is success”. Clearly, the UK Supreme Court has been successful. And perhaps that’s all that history will remember.

But the price of present success is, at best, considerable uncertainty about the future. Will the reasoning in Miller (No. 2) ever be followed, and if so, to what end? Will it serve to involve the courts in review of deeply political decisions about foreign affairs, war, and peace? Will the expansion of the understanding of Parliamentary sovereignty rebound it ways we may yet regret? Again, I wonder how much the Supreme Court ― pressed for time as it was, and apparently hoping to deliver a “one off” decision ― has really pondered all this. We, at any rate, have the leisure ― and the need ― to reflect on what it has done.

A Funny Thing Happened on the Way to the Pipeline…

The Rule of Law need not be exclusively the rule of courts. But in order for a society to be governed by the Rule of Law, even those who advocate a “thick” conception of the Rule of Law say that we need an impartial system of courts (see Tom Bingham, “The Rule of Law”; and relatedly, Trial Lawyers, at para 38). Concomitantly, the Rule of Law is not simply Rule by Law; I posit that the Rule of Law also requires a culture of respect for the law by those engaging in the court system. What happens when litigants try to, in service of their own goals, get around orders of a court?

A saga in the Federal Court of Appeal is showing the results. The Trans-Mountain expansion project is a controversial pipeline expansion project that has caused a great deal of consternation among environmental and Aboriginal groups. A number of these groups challenged the legality of the government’s decision to approve the expansion project in the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 [Raincoast Conservation I],the Court granted leave to some of these groups to launch a judicial review of the Governor in Council’s approval only on certain issues; other groups were denied leave altogether. The order in Raincoast Conservation I was clear.

And yet, some groups sought to get around the order. Namely, Tsleil-Waututh First Nation tried to raise issues that were not included in the “permissible issues” that Raincoast Conservation I allowed. Tsleil-Waututh explained that it was attempting to appeal Raincoast Conservation I (on restricted issues) to the Federal Court of Appeal, even though the decision in Raincoast Conservation I was rendered by a judge of that same court (Stratas JA). In Ignace v Canada (Attorney General), 2019 FCA 239, Stratas JA held that appeals cannot be made from the Federal Court of Appeal to the Federal Court of Appeal, because there was no statutory mechanism to allow for such appeals.

But Raincoast attempted to appeal Raincoast Conservation I (on denial of leave) in the face of Ignace, to the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 259 [Raincoast Conservation II], the Court (sitting in a panel of three) rebuffed Raincoast’s attempt to basically relitigate issues already decided by the Court.

The Court rested its conclusions on three main premises. First, the appellants argued that the Federal Court of Appeal, as a statutory court, has all the powers necessarily implied in order to exercise its jurisdiction. This, said the appellants, entitled the Federal Court of Appeal (a statutory court) to hear an appeal from itself. But the Court rejected this somewhat bizarre assertion, holding that the Federal Court of Appeal, as a statutory court, would have to be vested with “some statutory language to support an implication that this Court can somehow hear an appeal from itself…” [8]. There was no such language. Second, the Court chastised the appellants for attempting to bring its own policy views into the appeal [10-12]. Namely,

 In their representations, the appellants set out policy views, some of which they unsuccessfully asserted in Raincoast Conservation, above, and urge them again upon us, perhaps in the hope that we might depart from Ignace. They want the National Energy Board’s environmental reports to be brought to court immediately by way of judicial review rather than waiting for the Governor in Council’s overall decision on approval. They want the standards in the Species at Risk Act, S.C. 2002, c. 29 and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 to foreclose the Governor in Council from approving a project, rather than to be just factors the Governor in Council weighs in its public interest decision. They want to appeal from this Court to this Court because the Supreme Court seldom grants leave to appeal. They want the decision of a single judge “in a case of this importance” to be fully reviewable, not “immunized from appeal”.

To the Court, none of these policy views “are the policies Parliament has chosen to implement in its law. We must apply Parliament’s law, not the personal policy views urged by the parties or our own personal views…” [11]. As the Court said, “[t]he policy choices expressed by Parliament in its 2012 law no doubt frustrate the appellants and others. But they should express their frustration in at the ballot box or by other lawful and democratic means—not by relitigating points already decided” [16].

Finally, the Court sensibly tied all of this to the Rule of Law:

I appreciate that the appellants and others are passionate about their causes and dedicated to them. But passion and dedication can never justify disrespect for the rule of law. The rule of law requires those seeking the judgment of the Court to accept the judgment of the Court even when it is not to their liking.

The Court, for these reasons, terminated the appeal.

Why does any of this matter? I think there are a number of reasons why the Court’s order here is important. For one, it is an important statement about creative arguments that attempt to add-on to powers that are statutory in nature. Indeed, it is true that the Supreme Court has said that statutory actors such as the Federal Courts require certain powers “beyond the express language of its enabling statute” to perform its intended functions: see Bell Canada, [1989] 1 SCR 1722. This is just common sense. Courts require certain implied powers to manage process, for example. But this does not entitle the appellants in this case to say that a right of appeal—a statutory creation—exists where it clearly and simply does not in the relevant statutes. To make this argument invites courts to supplement clear statutory omissions with whatever the Court might feel is right and proper. This is an unwelcome twist on the basic hierarchy of laws—especially since the Supreme Court has held that a right of appeal is purely a matter of parliamentary will (Kourtessis, at 69: “Appeals are solely creatures of statute”), not a constitutional requirement of the Rule of Law: see Medovarski, at para 47.

Second, the Court sensibly rebuffed arguments by the appellants that would, in essence, replace Parliament’s law governing pipeline approvals with an alternative system. Such a system would permit, among other things, (1) early challenges to environmental reports, rather than the current system, which only permits judicial review of the Governor-in-Council’s final decision to approve; and (2) the introduction of standards set out in other statutes as mandatory considerations that could “foreclose the Governor-in-Council from approving a project” [10]. These might all be good ideas. But all of these proposals run counter to the law Parliament chose to instantiate the approval process for pipelines. The remedy for the appellants is not a collateral attack on Parliament’s process, but the ballot box, where they can vote in people who wish to make their preferred policy proposal a reality.

One could argue that the Federal Court of Appeal’s own jurisprudence permits the appellants’ preferred approach. In Alberta Wilderness, the Court apparently held that environmental reports “should be seen as an essential statutory preliminary step required by the Canadian Environmental Assessment Act.” More to the point, Tsleil Waututh 2018 apparently held (according to the linked ablawg post cited above) (at para 189) that a reference in Gitxaala Nation (paras 119-127) that environmental reports cannot be judicially reviewed was misconceived.

With respect, Stratas JA dealt with this matter in Ignace, at para 36. The fact that the appellants were trying to relitigate this point speaks to the issue overriding this entire saga: a respect for orders of the court duly issued. But even on the merits, this argument is somewhat misconceived. Reading Tsleil-Waututh 2018 in whole and in context, it seems that the Court, relying on Gitxaala, ultimately concluded that “the report of the Joint Review Panel constituted a set of recommendations to the Governor in Council that lacked any independent legal or practical effect. It followed that judicial review did not lie from it” (Tsleil Waututh 2018, at para 180). And this would find accord with basic administrative law principles, to the effect that only final decisions of administrative authorities are judicially reviewable (Budlakoti, at paras 56 et seq in the context of the doctrine of exhaustion).

Finally, a note on the Rule of Law. One might argue—quite ambitiously–that attempting to relitigate an order of a Court is justified by the policy proposals that a particular litigant seeks to advance. The weight of this argument is dependent, indeed, on how much one identifies the Rule of Law with the rule of courts. To some, court orders may not represent the totality of the Rule of Law. But a system of the Rule of Law is dependent on the respect owed to neutral arbiters of the law and their orders. Those neutral arbiters, in a system of courts, are components of the Rule of Law. They should be owed respect.

That said, we can and should criticize court decisions that we find undesirable. But as litigants acting in the system, there are defined ways to legally change the effect of a decision: by appeal, rather than relitigation.

 

R v Poulin: Charter Interpretation in the Spotlight

Introduction

Section 11 (i) of the Charter guarantees the right to offenders “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” Ambiguity ripples through this provision. Most notably, does the provision (a) denote a comparison of the lesser sentence at two relevant times (commission and sentencing) or (b) does it denote a broader look at all the changes in various sentencing provisions, as part of a consideration of variations between the time of the commission of the offence and the sentence? This latter approach could permit an offender to be entitled to a lesser sentence than the relevant ones in force at either the time of commission or the time of sentencing.

This was the issue faced in R v Poulin: does the former approach, called the “binary approach,” apply, or does the latter approach, called the “global approach” apply? Mr. Poulin sought a right to a conditional sentence, which was not in force at the time of the commission of his offence or at the time of sentencing. The conditional sentence, however, entered into force as a form of sentence in 1996 [10]. A global approach would permit Mr. Poulin to access a conditional sentence, because it was in force for a period of time between commission and sentence. A binary approach would not permit Mr. Poulin to access the sentence, because it was in force neither at the time of commission or the time of sentence (I note that there was a mootness issue raised in the case, which I do not address here).

Decision

The majority, written by Martin J, ultimately chose the binary approach. Despite the fact that the global approach is preferred among lower courts, Martin J wrote that “[r]ather than identifying the principles or purposes underlying s.11(i), [the lower courts] have simply concluded that s.11(i) should be given the interpretation most generous to the accused, which they have called the liberal interpretation” [55]. Rather, to Martin J, one must approach s.11(i) from a purposive perspective, as instructed by the Supreme Court in its seminal Charter cases: see Big M, Hunter v Southam [54].

A purposive approach to Charter interpretation, as noted by Martin J, should not be conflated with a generous interpretation [53-54]. Charter rights must be “interpreted liberally within the limits that their purposes allow”[54]. Purpose is found by looking at the language of a particular Charter provision [64], and the original context at the time of its enactment [72]; in other words, the language of the right in its “historic and philosophic” context: Big M Drug Mart, at para 117.

Conducting this analysis, Martin J found that the language of s.11(i) favoured the binary approach. In support of a global interpretation, the respondents relied on the language of s.11(i), which says that the offender is entitled to the lesser of two sentences if the sentence has been varied between the time of commission and sentence. To the respondents, “between” denotes an interval of time, not a measurement of two distinct periods of time. But Martin J ultimately concluded that this intervallic interpretation did not suggest a global interpretation: (“between” “only tells us that s.11(i) concerns itself with the situation where the punishment has been ‘varied between’ the time of the offence and the time of sentencing’” [67]). Rather, to her, the word “lesser” in the provision “evokes the comparison of two options” [68]. This language bounded the purpose of s.11(i) to a binary interpretation. What’s more, reviewing the context of s.11(i) at the time of its enactment, Martin J concluded that there “was nothing to inspire a global s.11(i) right at the time of its drafting and enactment,” in part because “none of the [international] enactments embraced one…” [72].

Martin J then noted that, even after this textual and contextual analysis, “[w]hat remains to be seen is whether the purposes of s.11(i) support a global interpretation of s.11(i), or whether there is any purposive basis to read s.11(i) globally…s.11(i) could still receive [a global] interpretation it its purposes justified it” [85]. Specifically, Poulin submitted that “a binary interpretation of s.11(i) would result in unfairness…where two offenders who committed the same crime at the same time are sentenced at different times, when different sentencing regimes are in force” [87]. Martin J rebuffed this argument by making three points: (1) relative punishments are “linked to the offender and the proceedings against him” and thus “are tethered to two points in time that bear a deep connection to the offender’s conduct and criminality” [90]; (2) a global approach would not ensure identical results for two offenders in the circumstances Poulin describes [95]; and (3) a global approach would disproportionately benefit those offenders who have a long period of time between commission and sentence, because it would allow the offender to pick and choose the lesser punishment [97]. What’s more, importantly, a global right would resurrect punishments “which Parliament has, by repealing or amending them, expressly rejected…” [100].

The dissent, penned by Karakatsanis J, disagreed. To her, the text of s.11(i) suggests a “continuum between the time of commission and the time of sentencing” [148]. Also, “lesser” does not denote a solely binary interpretation [149]. The consequence of this binary “technical” interpretation, to Karakatsanis J, “is contrary to this Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights” [151]. Put this way, “there is no principled argument that would justify such a limitation…” [153]. Karakatsanis J’s point is due, in part, to the reliance interests that an offender has in choosing a particular course of action, central to the idea of the Rule of Law [152]. All of the choices an offender has to make in the criminal process, to Karakatsanis J, should not be made on the basis of two artificial points in that process [153]. Instead, the entire continuum of possible options should serve to benefit the offender.

Analysis

In my view, the majority clearly had the better argument in this case. This is true for a number of reasons.

First, as a matter of criminal law, it seems odd to me that an offender can pick and choose the lesser sentence that was in force (if only briefly) in between the time of offence and the time of sentence. Yet this is the upshot of the global interpretive approach to s.11(i). As Martin J notes, the time of commission and the time of sentence are not two “artificial points” for a particular offender, as Karakatsanis J opined. Rather, they are points that are intimately connected to a particular offender and his crimes. When an offender chooses to commit a crime, he chooses with the backdrop of the existing law behind him. When an offender is sentenced, it would be truly unfair to subject her to a greater sentence than the one she risked at the time of offence; but one can hardly call it unfair to limit the potential sentencing options to those in force when the offender made the relevant choice and when he is about to be given the sentence. Indeed, this is what is textually prescribed by s.11(i). Karakatsanis J would respond that other choices–such as the choice to instruct counsel, and the choice to accept a plea agreement–are relevant on this spectrum. But as Martin J said, the right to s.11(i) does not speak to all of these choices. Rather, the text mentions the time of the offence and the time of sentence, and so “there is no principled basis to grant an offender… the benefit of a punishment which has no connection to his offending conduct or to society’s view of his conduct at the time the court is called upon to pass sentence” [90].

Secondly, Martin J is completely right to note that there are powerful Rule of Law reasons to reject a global approach, insomuch as that approach revives sentences that the people, through Parliament, rejected. Section 11(i) is a constitutional right that basically incorporates by reference Parliament’s choices. It would be an odd consequence of a global approach that Parliament’s choices—which have since been repealed—should give effect to a particular constitutional provision. This would have the effect of subjecting someone to a law—perhaps a favourable one, true—that is no longer on the books. Yet this is contrary to a basic premise of the Rule of Law, which undergirds s.11(i) as a fundamental purpose.

Thirdly, the majority’s purposive analysis is far more convincing than the dissent’s, in both general terms and in its assessment of text. The majority is absolutely correct to draw a distinction between a “purposive” approach to interpretation and a “generous” approach to interpretation. These do not mean the same thing. As Professor Hogg noted long ago, a purposive approach will tend to narrow a right to clearly defined purposes. In this sense, it would be odd to speak of a purposive approach operating concurrently with a generous approach—except to the extent, as Martin J notes, that one can interpret particularly rights generously within their purposes. But this strikes me as dancing on the head of a pin. More likely, a purposive approach will narrow a right to defined purposes. This makes the dissent’s focus on “generous” and “purposive” interpretation somewhat nonsensical.

The majority, sensibly, first looked to the text to set the boundaries on the right. This is a preferable approach to reasoning backwards from putative purposes, and then using those purposes to denote the meaning of text. Starting with the text makes sense because it is the meaning of the text that is under consideration. We move on to deriving purposes from that text, not the other way around. And on this front, the majority’s textual analysis is preferable to the dissent’s. The dissent relied only on dictionary meanings to discern the meaning of the text. But this is a thin reed on which to rest the meaning of text which arose not in a dictionary, but in the context of constitutional debates among human beings. Rather, the majority focused on the common usage and understanding of the word “lesser,” as real human beings use it:

Whereas comparative terms ending in “est” or “st” single out one thing from the others, comparative terms ending in “er” contrast one thing with another. For instance, we speak of the “better” of two options and the “best” of multiple, the “higher” of two heights and the “highest” of multiple, the “faster” of two speeds and “fastest” of multiple, to give only a few examples. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11 (i) uses the binary language “the lesser punishment”.

This is more persuasive than dusting off a dictionary and using that as a sole or determinative basis on which to discern text. While dictionary meanings can shed light on text, common usage should be a key concern of textual interpretation, where dictionary and common meaning differ.

Conclusion

This case raises lots of interesting issues, both relating to the Constitution and to criminal law. Ultimately, I think the majority had the better of the argument.

Ignoring Legislative Intent: Deference in Quebec and s.96

The constitutionality of a regime of deference is not something much explored in the wider context of Canadian administrative law. But in Quebec, the question is a live one because of particular statutory and judicial arrangements. The Quebec Court of Appeal just released a case [the Reference] that dealt with the question head on: does a statutory court’s statutory review of administrative decision-makers become unconstitutional if that court is required to apply principles of deference?

In this post, I first review the set-up of the Court of Quebec and its relationship with various statutes that nourish it with appellate review power. Then I address the controversy surrounding the way the Court is arranged. I argue that deference in these circumstances is, indeed, unconstitutional based on first principles. It deprives the Superior Court of Quebec of a core element of its jurisdiction—its ability to review, without impediment, inferior tribunals. But I argue that there is a way around the constitutional problem. Courts should begin to recognize, and give full effect, to statutory rights of appeal as elements of legislative intent. Doing so largely eliminates deference questions and is more aligned with the task of judicial review: to discover what the legislature means when it delegates power.

The Court of Quebec, Established Law, and the Quebec Court of Appeal’s Conclusion

The Court of Quebec is a statutory court. It has been given, through a number of statutes, appellate review jurisdiction over a number of administrative tribunals in the province of Quebec. This is a key point that I will return to later: appellate, statutory review jurisdiction should be fundamentally different from an application for judicial review.

In the reference before the Court of Appeal, the chief justices of the Superior Court challenged eight separate legislative schemes that provide for appeals to the Court of Quebec. Their challenge was based on s.96 of the Constitution Act 1867, which, among other things, guarantees a core jurisdiction for the superior courts of the provinces. The challenge concerned not the establishment of a statutory court/tribunal per se (which has typified the jurisprudence around s.96), but the requirement imposed doctrinally that the Court of Quebec must apply principles of judicial deference when they review the decisions—via statutory appeal—of administrative decision-makers.

Administrative law buffs might immediately recoil at the argument, because the Supreme Court has long made clear that judicial review principles apply regardless of whether a case comes to the court via an application for judicial review or statutory rights of appeal (see Dr. Q, at para 20; Saguenay, at para 38). The Court has even held, with respect to the Court of Quebec, that it is required to apply principles of judicial deference (Proprio Direct, at paras 19-21). But recall that this argument is constitutional in nature—that the status of the Court of Quebec, coupled with the requirement of deference, runs afoul of the protections afforded in s.96 of the Constitution Act, 1867 for superior courts. This is a unique argument because it is both the jurisprudential requirement of deference and the Court of Quebec’s statutory status which, together, create an alleged unconstitutional effect.

The Quebec Court of Appeal, though, rejected this argument in whole. It held (1) that the Court of Quebec must apply common law principles, with Dunsmuir standards of review as the governing tests (see para 280); and (2) although there was a transfer of authority to the Court of Quebec that, at first glance, usurps the Superior Court’s s.96 role, this was insufficient to cause a s.96 problem, because “…all of these legislative schemes maintain the Superior Court’s superintending and reforming power” (324). In other words, there was no privative clause ousting the Superior Court’s power on “jurisdiction,” even if the Court of Quebec was to apply deferential principles of review. Since what was envisioned was not an exclusive transfer of jurisdiction (as exemplified in the s.96 cases, see MacMillan Bloedel), there was no constitutional problem.

Avoiding the Constitutional Problem: Statutory Rights of Appeal

In my view, and putting aside for the moment the constitutional concerns, whether the Quebec Court of Appeal got this right is dependent on how one characterizes a statutory right of appeal. If a statutory right of appeal is characterized as a legislative signal for a reviewing court—even a statutory court like the Court of Quebec— to simply apply the ordinary principles applicable on appeal, what basis is there for a court to apply the principles of deference? It is only by accepting that the common law principles of judicial review override clear statutory signals that we get into this problem of constitutionality, at least in the context of this case.

As noted above, though, the Court has been content to permit uniformity in the way courts review administrative decision-makers, through the application of the typical common law tests. In a variety of contexts, the Court has either treated statutory rights of appeal as non-determinative (see Pezim, at 591 and Southam, at para 54) or has specifically said that the common law principles of judicial deference apply, even in the face of a clear legislative regime governing a statutory court (Khosa, at para 25).

While the Quebec Court of Appeal rightly followed this jurisprudence, it seems to me completely wrong in principle. Under no circumstances should common law principles of judicial review apply if the legislature has specified, in the relevant statutes, a right of appeal to a statutory “court of justice” (see para 363). This is because a statutory right of appeal is an implicit legislative signal that, on questions of law, the statutory court should simply intervene in a lower administrative decision as it sees fit. Statutory rights of appeal stand for this proposition unless they contain some wording that would imply deference, or unless there are other signals in the statute, like a privative clause.  Forcing these courts to apply common law principles of judicial review ignores this implicit legislative signal.

What’s more, the theoretical underpinnings of the Supreme Court’s maintenance of the common law rule are wanting. The basic point is that the very act of delegation to (apparently) “specialized” and “expert” administrative tribunals justifies deference. But there are two problems with this justification. On one hand, it is completely unjustified to impute a legislative intent of deference to the legislature when it merely delegates power. The reasons why a legislature delegates power are many, but there is no evidence to assume that it does so because it wants the decision-maker to receive deference. Why should courts assume so? Secondly, the across-the-board expertise presumption is not necessarily empirical true. In this sense, it is a classic overbroad rule.

This conclusion was forcefully expressed by Rothstein J in Khosa. In that context, the Supreme Court majority held that the ordinary principles of judicial review apply when the Federal Court reviews decisions of federal decision-makers. But the Court gave no effect to the Federal Courts Act, which establishes certain grounds of review that could also be said to imply standards of review (see s.18.1(4)). Rothstein J noted that “a common law standard of review analysis is not necessary where the legislature has provided for standards of review” (Khosa, at para 99).  Instead, where the legislature has done so,  the common law idea of deference melts away. It is for the legislature to evaluate expertise, and include a privative clause, if it sees fit to mandate deference; it is not for the court to simply override legislative language in service of some court-created ideal of deference.

Rothstein J’s position is on better footing. Rather than buying into the expertise presumption, and the subversion of the relationship between common and statutory law that it creates, his position expresses support for the typical relationship between these two types of law; statutory law takes priority over the common law. It is for the legislature to prescribe the relevant standard of review. And in the context of the Court of Quebec—at least the relevant statutes in the case—the legislature has. Of the eight statutes at play in the Quebec case, all of them contain a statutory right of appeal. Some even contain language specifying that “The Court can confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in first instance (see para 217; s.175 of the Professional Code). This is strong, “correctness”-type language.  Even in absence of such language, a statutory right of appeal ousts the common law rule of deference, and removes any constitutional doubt from the issue. In each case of a statutory right of appeal, it is a sign that deference should not be the modus operandi.

Addressing the Constitutional Problem: The Core of Judicial Review

But, whether or not my preferred position is adopted, there could still be cases where deference arises—either by legislative language or judicially imposed doctrines. In such a case, was the Quebec Court of Appeal right to hold that there is no constitutional problem with deference?

In my view, it was not. The starting point is the Supreme Court’s comment in MacMillan Bloedel that it is not permissible for the legislature to remove any “core” powers of the superior courts in the provinces (MacMillan Bloedel, at para 37). As the Court noted, “ [d]estroying part of the core jurisdiction would be tantamount to abolishing the superior courts of general jurisdiction.” Therefore, even abolishing part of the core jurisdiction is tantamount to destroying it all, according to the Supreme Court. This conclusion was cited by the Quebec Court of Appeal (at para 46).

What is protected in the core jurisdiction? For our purposes, as the Quebec Court of Appeal noted, “the exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial public bodies” is part of the core (at para 45, citing MacMillan Blodel at paras 34 and 35). This is an aspect of the core jurisdiction which can never be removed—even in part. Yet the effect of asking the Court of Quebec to apply deference is to dilute this reviewing function. As Professor Daly notes in his “Les appels administratifs au Canada” (2015) 93 Canadian Bar Review 71:

This power of the Superior Court to correct certain types of illegalities committed by inferior tribunals in the exercise of their jurisdiction was an integral part of the Court’s supervisory authority as it existed in 1867; it is therefore clear that such control power cannot be validly transferred by the Legislature from the Superior Court to a court that is not comprised within the enumeration contained in s. 96 of the B.N.A. Act.

Attorney General (Que.) et al. v. Farrah [1978] 2 SCR 638 at p. 654. See similarly Séminaire de Chicoutimi v. City of Chicoutimi, 1972 CanLII 153 (SCC), [1973] S.C.R. 681.

The requirement of deference significantly dilutes this role, to the point where the core power of the superior court is imperiled. This is because of a “double deference” problem, as Professor Daly argues. The Court of Quebec will apply deference to the administrative tribunal’s legal findings. Then, the Superior Court will defer to the Court of Quebec. When the Superior Court defers, though, it simply asks whether the Court of Quebec’s decisions is reasonable or not. It does not get a first instance glimpse of the legality of the decision. This double deference problem significantly limits, if not fundamentally changes, the task of the Superior Court.

The Court in the Reference responds to this problem by saying that:

[W]hen the Superior Court hears an application for judicial review of a judgment of the Court of Quebec, it must begin by focusing on the administrative decision in order to first determine whether the Court of Quebec identified the appropriate standard (which, in Superior Court, is a question of law subject to the correctness standard, and then determine whether it applied the standard properly. Thus, strictly speaking, the judgment of the Court of Quebec is set to one side and the impugned administrative decision is the one under review.

This might solve the double deference problem, but it creates a whole other issue: it deprives the Court of Quebec of the appellate jurisdiction that the legislature intended it to have (see Professor Daly’s post here). Now, the Court of Quebec’s ruling is set aside. Here again is another example of courts failing to respect legislative intent.

This is a less-than-ideal solution to the constitutional problem of double-deference.

Conclusion

This is a complex case, and my views are necessarily tentative. But I think, in the first place, that the constitutional problem can be avoided in many cases by simply giving effect to the appellate jurisdiction that the legislature granted to the Court of Quebec. In cases where the problem does arise, I think the Quebec Court of Appeal’s solution to the problem is less than ideal, because it again ignores legislative intent.

The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”. 

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.