The “Return” of “Textualism” at the SCC[?]

Under the so-called “modern approach” to statutory interpretation, courts are instructed to take into account the text, context, and purpose of a statute. But perhaps because the “text, context, and purpose” recital is so commonplace, other difficult interpretive questions are masked under its patina. For example, which takes priority—text or purpose? The Supreme Court has said that clear text is dominant in the interpretive process (see Placer Dome, at para 21; Canada Trustco, at para 10), but at the same time, the Court has often adverted to the role of purpose in interpretation, to the extent that purpose or policy considerations could override clear text (see the opinion of then-Chief Justice McLachlin in West Fraser Mills, at paras 40, 43). And, even if one could work out what the proper relationship is between text and purpose ,there is no guidance from the Court about what purpose, at what level of abstraction, should be relevant in the analysis. I have written about these issues before.

Luckily, the Supreme Court has provided some guidance to answering these questions in Telus Communications v Wellman, 2019 SCC 19. While the approach advanced in the case is not strictly textualist, it does represent the important idea that text dominates in the interpretive process, and that overall policy goals should not be permitted to override that text. While the Supreme Court is a laggard to these important conclusions (see the opinions of Stratas JA in Williams, Cheema, and Hillier), they come better late than never.

Facts

The case involved an important question of statutory interpretation under Ontario’s Arbitration Act and Consumer Protection Act. Wellman filed a class action against Telus, consisting of both “consumers and non-consumers” [2]. The action alleged that Telus “engaged in an undisclosed practice of ‘rounding up’ calls to the next minute such that customers were overcharged…” [2]. All of the contracts binding the class provided that any claims “arising out of or in relation to the contract, apart from the collection of accounts by Telus, shall be determined through mediation, and failing that, arbitration” [3].

The problem for Wellman et al, though, was that not all of the members of the class were “consumers.” Under the Consumer Protection Act, the arbitration clauses in the contracts are invalid, because “it would otherwise prevent class members who qualify as ‘consumers’ from commencing or joining a class action of the kind commenced by Mr. Wellman” [4]. The Consumer Protection Act “shields consumers from a stay of proceedings under the Arbitration Act” [4]. Telus conceded this point as regards the consumers. But there were non-consumer, business customers included in the class. The core question was whether they could escape the effect of a stay sought by Telus.

Wellman said that, under the Arbitration Act, s.7(5), the court had discretion to refuse Telus’ request for a stay against the business customers, so that the business customers could continue in the class. Section 7(5) says the following:

7 (5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

Telus, though, fundamentally disputed this claim, arguing that under other provisions of the Arbitration Act, exceptions are set out that are exhaustive of all the legislative exceptions in the Arbitration Act scheme. Accordingly, to Telus, the Consumer Protection Act does not apply to the business consumers, and instead, the business claims should be stayed under the Arbitration Act [7].

Analysis in the Case

Moldaver J wrote for the majority, accepting Telus’ argument. After citing the general modern approach to statutory interpretation of text, context, and purpose, he first grounded his view of the statute in its purpose. One of the principles of the Arbitration Act, appearing in the legislative history, was the need to ensure that parties “abide by their agreements,” and that the law was designed to enshrine this idea [50]. Subsequent cases in courts across the country, to Moldaver J, accepted this idea [54].

Turning to the text, specifically s.7(1) of the Arbitration Act, Moldaver J wrote that it established a general rule: “where a party to an arbitration agreement commences a proceeding in respect of a matter dealt with in the agreement….the court “shall,” on the motion of another party to the agreement, stay the court proceeding in favour of arbitration” [63]. This is, obviously, a mandatory statutory rule. Wellman, though, argued that s.7(5) excerpted above is an “independent, standalone” exception to s.7(1) [74]. This provision, which permits a “partial stay”—meaning that the court has a discretion to stay some of the claims for arbitration—is available if certain statutory preconditions are met and if the court exercises its discretion in favour of the stay. Wellman argued that s.7(5) could be read so that the court “may refuse to stay” the business customers’ claims. But Moldaver J rejected this proposition, focusing on the text of s.7(5) in its statutory context. The text of s.7(5) says nothing about a court “refusing to grant a stay,” and to him: “…where the legislature intended to authorize the court to refuse a stay, it did so through the words ‘may refuse to stay’” [73]. Those words did not appear in s.7(5). And, with this text and context in mind, Moldaver J turned to purpose: allowing Wellman’s argument would “reduce the degree of certainty and predictability associated with arbitration agreements,” permitting the business customers to escape the effect of a stay [76].

Wellman also relied on certain policy considerations to support his preferred interpretation of the text [77]. One of these was a general principle of “access to justice,” which “[removes] barriers to seeking relief in court” [77]. But there were two problems with importing this idea as a decisive principle for the case: (1) a rarefied idea of access to justice should not “be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make the provision say something it does not…the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts…[i]t is not the role of this Court to re-write legislation [79]; and (2) the Ontario regime pursues access to justice by “shielding consumers from potentially harsh results of enforcing arbitration agreements…” by exempting consumers “and only consumers” from “otherwise freely negotiated agreements” [80]. This is in conjunction with the Arbitration Act’s pursuit of the overall principle that parties should abide by their agreements. Access to justice, as a general idea, should not “be permitted to overwhelm the other important objectives pursued by the Arbitration Act…” [83].

While I do not have space to recount the minority opinion of Abella and Karakatsanis JJ, I want to note a particularly fiery charge that they chose to level at Moldaver J: “The majority’s approach, with respect, in effect represents the return of textualism. The words have been permitted to dominate and extinguish the contextual policy objectives of both the Arbitration Act and the Class Proceedings Act [citations omitted]…” [109]. To the minority, the “overall purpose” of the Arbitration Act “was to promote access to justice” [137].

Evaluation

I want to say three things about this case. First, the minority’s charge of “textualism” against Moldaver J is inaccurate and sloppy; (2) Moldaver J’s approach, while not textualism, represents a defensible “textually constrained purposivism,” that guards against a court aggrandizing to itself the power to “read-in” language to a statute; (3) both of the opinions show why relying on legislative history is such a fraught enterprise.

Consider first the minority’s textualism charge. I can only imagine that Abella and Karakatsanis JJ were trying to make a rhetorical point, because I cannot believe that they—learned judges of our Supreme Court—could so misunderstand an entire school of interpretive thought. Textualism is directly opposite to “purposivism,” which is primarily concerned with the ends a statute pursues. To the textualist, purpose is encompassed in the means the statute pursues. It is not concerned with an overall statement of purpose, per se: consider Scalia J’s opinion in MCI and WVUH v Casey, and also Judge Easterbrook’s article, “Statutes’ Domains.”

But Moldaver J’s opinion does not just focus on means. It considers the ends of the Arbitration Act, including the overall “purpose” of respecting the agreement reached by parties in their contracts. Moldaver J’s approach is much more realistic than the minority’s approach, which chooses the “access to justice” purpose as the “overall purpose”—with no justification other than, apparently, judicial fiat. Moldaver J’s approach recognizes that there are other purposes of the statute at play. This is not textualism.

That said, Moldaver J’s approach does recognize that purposes do not exist in the abstract. They must be tied to statutory means. What is relevant is not the court’s appreciation of what access to justice means, but what the legislature thinks it means, and the words the legislature used to represent that idea. And that legislative instantiation is existent in the Arbitration Act and Consumer Protection Act, working in pari materia. As Moldaver J noted, the Ontario regime is focused on permitting access to justice for “consumers,” by allowing them to pursue claims in court. When we are talking about business customers, though, the legislation does not speak in abstract terms about access to justice writ large–the Arbitration Act has defined means to grant a partial stay, not means to refuse to grant a stay. It pursues the goal with limited means, in conjunction with other fairly discernible statutory purposes. Abella and Karakatsanis JJ—poets, apparently—say that “a provision must be assessed in all its textures — language, purpose, effect — to prevent the suffocation of its meaning by a technical literal reading of the words” [130]. But here, poetry suffocated prose, because the language of the statute works in symbiosis with purpose. Purpose does not override text. And in this respect, to my knowledge, it is not hornbook law that the Canadian approach is “intentionalist,” as Abella and Karakatsanis JJ say [107], understood in the sense that intentions should override text. Intentionalism would mean taking a psychologist’s armchair and determining what a legislator meant to say; not what was said.

This makes sense from a democratic perspective. Legislators, in their heads, may think of purposes when they enact laws. These purposes may range from “the public good,” on one hand, to minute, technical considerations on the other. Because a court cannot discern which purpose ended up becoming law, we have to think about what the best evidence of the law could be in the circumstances. Usually, text is that best evidence. While it is not always definitive and clear—because language is not always definitive and clear—it is better than unexpressed intentions or abstract, tangential purposes.

I want to raise a final note about the use of legislative history. Both sides of the case relied on different aspects of the legislative history to support their particular interpretation. Because various statements existing in the legislative history are not ranked by importance, it is difficult for any court or observer to put more or less weight on various statements. So, like Judge Leventhal once said, legislative history is like looking over a crowd and picking out your friends. A judge predisposed to one interpretation will use legislative history to support his own view of the matter. If we are going to allow legislative history to be a valid part of statutory interpretation, it should only be relied on with severe caution, as an afterthought, and with the idea that its probative value is exceedingly low.

Notwithstanding the quibble about legislative history, Moldaver J’s opinion is worthy of note because it finally recognizes that judges, under the guise of judicially divined “purposes,” cannot override a contextual interpretation of the text. The text is what the legislature enacted. It should govern.

The Diceyan Trope

Metaphors, labels, and particular phrases seem to be a constant theme running through Canadian law. In virtually every area of public law, the Supreme Court deploys clever labels and metaphors to convey ideas that are bundled with certain inferences or assumptions about the ideas themselves. The most famous, perhaps, is the living tree model of constitutional interpretation, which is so ingrained that it has taken academic articles to dislodge its place in the constitutional zeitgeist. Other examples abound.

On one hand, these linguistic devices are useful shorthand. Rather than explaining complex concepts, they allow the Court and others to quickly express a complicated idea in a way that lawyers and academics can understand. On the other hand, they shortcircuit critical analysis of the ideas they represent. Rather than acting as useful stand-ins for complex ideas, I fear that they have become broadside representations of certain way of viewing Canadian law; concepts that, through frequent usage, have become immovable stones that represent closely-held positions.

Perhaps this is most evident with one of the most widely-deployed tropes: the attack on one of the dark lords of administrative law, A.V. Dicey.

I confess that the inspiration for this post was Justice Abella’s recent speech in New Zealand, in which she, as usual, attacked the “Diceyan” conception of administrative law. Lest one should think this is an isolated incident, this Diceyan label also infected the Vavilov and Bell/NFL hearings at the Supreme Court, when one intervener argued that other Commonwealth jurisdictions have gotten by without a standard of review analysis, and a judge retorted that this is because they are trapped in a Diceyan mode of law. As Audrey Macklin explains respecting this exchange, “[The] insinuation behind this remark is that these benighted commonwealth judges are trapped in some nineteenth century intellectual dungeon.”

I fear that this insinuation is the one meant by Justice Abella. Bundled within the Diceyan attack is a number of presuppositions. As far as I can tell, the attack on Diceyanism is an arrow in the quiver of those judges and scholars who were inculcated in the New Deal and Keynesian era of technocracy, expertise, and social policy.  Often called administrative law “functionalists,” (people like John Willis and Harry Arthurs) the functionalists worried about Diceyan administrative law as a way to fill-in conservative ideals under the rule of law rubric. To their minds, cases like CUPE [1978] best recognize the social policy aims of tribunals and their technocratic expertise.

I’ve written before about why these arguments are ill-fitted to the modern administrative state.  Administrative decision-makers now no longer operate in a narrow field of social policy, but also inhabit the most repressive areas of the state: prisons and border officers, for example. Technocratic expertise is one thing, but legal expertise is quite another, and decision-makers are now tasked more than ever with deciding complex legal problems for which they are not necessarily trained. Put differently, there is no reason to believe that an expert in subject-matter A will necessarily have expertise in legal area B. Nor is there any reason to believe that the expert will be able to explain her conclusions in language that permits accountability through judicial review–this is the problem of immunization to which the Federal Court of Appeal is increasingly drawing attention.  The assumptions underlying the functionalist view, if they ever existed, no longer exist as a general matter.

In fact, there is much about Dicey to be admired. The first consideration, though, is determining what Dicey actually meant. While functionalists try to paint Diceyan as a rank anti-administrativist, there is some nuance to his position. Dicey was comparing with a particular style of administrative law—“droit administratif”—which Dicey thought was alien to English legal principles. Particularly, he believed that a separate body of law governed relationships between citizens and the state, as opposed to citizens and other citizens. State actors were not subject to scrutiny by the ordinary courts, but rather special administrative courts. The concern for Dicey wasn’t the exercise of delegated power—he actually allowed for the exercise of legislative powers by delegated actors in the English context, entities like municipal bodies. Instead, it was the worry that different rules might privilege state actors. This concern still worries us today.

But administrative law as we now know it is not about granting rights and privileges to state actors (putting aside ideas of qualified immunity). State actors are subject to the ordinary jurisdiction of the courts. The only doctrine that dilutes this oversight is self-imposed: doctrines of deference that courts created themselves to grant delegated actors “policy space.” No matter, while administrative law as we know it arose subsequent to Dicey, Dicey is probably not as radical as his opponents make him out to be.

What’s more, Dicey’s fundamental principles remain relevant today. His explanation of the rule of law contained within it the seeds of a more substantive approach, one of “legality” underlying all exercises of public power. This is still a useful and important concept, particularly as we consider how best to control discretion exercised by administrative actors. There is nothing in Dicey’s principle of legality that implies a necessarily conservative orientation. All it insists is that courts have an important, perhaps exclusive, role to play in policing the boundaries of the administrative state.  And unless we are willing to attack the independence of judges by insinuating that their policy preferences infect their judicial duty, maybe we should not be so worried about courts like the functionalists were.

More broadly, Dicey did attempt to wrestle with the distinction between parliamentary sovereignty and the rule of law, as I outline here. This is a concept that continues to bedevil us today in discussions about standard of review, and the extent to which Parliament’s law should oust the ability of the courts to review decisions on a de novo basis. As Mark Walters aptly noted in his contribution to the Dunsmuir Decade symposium:

Dicey made some mistakes and the punishment for his sins seems to be that his name is forever associated with that flawed “Diceyan” understanding of public law. However, some of the most difficult and underappreciated passages in his famous book, Law of the Constitution, come in the course of an attempt to explain how judges may resolve the tension between the rule of law and parliamentary sovereignty—passages which make little sense unless we assume that the “spirit of legality” that he says shapes all legal meaning is a substantive ideal that justifies and legitimates the exercise of governmental powers

This Diceyan concept—identified by Walters—is still centrally important today. But it has been forgotten, in part due to the negative inference drawn by those who label particular proposals as “Diceyan.”

This is not to say that these arguments are altogether immune from attack. For example, it is controversial to say that courts should have an exclusive role to play in the rule of law. In the modern era, a focus on courts also tends to crowd out discussion about the best controls on administrative discretion that exist: those imposed by Parliament itself.  I also think that Diceyanism can be used to justify an all-out, Phillip Hamburger-style attack on the existence of the administrative state writ large. For some, this is a good thing. But for others, there may be reason to think Diceyanism is open to abuse.

My point here is not to say that Dicey was right or wrong–clearly, like most humans, he was a bit of both. Either way, to my mind, it is not a foregone conclusion that Diceyan administrative law is a wholly improper theory of the administrative state. Like most theories, Diceyan administrative law contains important principles that should animate future research directions, but it is not a cure-all. Invoking the Diceyan trope does little to further intelligent debate about what administrative law should look like in the 21st century.

Lost Virtue

Joseph Raz revisits the subject of the virtue of the Rule of Law

Joseph Raz recently posted on SSRN a short essay call “The Law’s Own Virtue“, based on remarks he delivered on the occasion of receiving the Tang Prize. The essay revisits themes explored in Professor Raz’s famous article on “The Rule of Law and Its Virtue”, defending the same view that the Rule of Law does not mean the rule of good law, and that its requirements on the exercise of public power are formal and procedural, but not substantive. It is a view that I share, for what that’s worth. But there is an aspect of Professor Raz’s argument which is new, at least in comparison with his classic article, and which strikes me as deeply disturbing.

Professor Raz now makes the intention of government actors central to his discussion of the Rule of Law. He starts from the proposition that “one, commonly agreed, aim of the [Rule of Law] is to avoid arbitrary government”. (5) This is where the focus on the reasons for government action enter the picture, as Professor Raz defines “[a]rbitrary government [as] the use of power that is indifferent to the proper reasons for which power should be used”. (5) Government power should be used “to follow and to apply the law”; (6) If it is used with this intention, the Rule of Law is being complied with. It follows that

not every failure of the government to be guided by the law is a breach of the [Rule of Law]. For the most part such failure is due to mistakes and incompetence. Even the most conscientious and qualified government is liable to fail in such ways. (6)

Intention is also relevant when assessing (from the Rule of Law standpoint) the exercise of interpretive and discretionary powers, and indeed the rule-making powers. When making or interpreting law under the Rule of Law, governments must “not … promote their own interest, but that of  … the governed … includ[ing] their moral interests”. (8) Beyond that, however,

[d]etermining what ends to pursue in the exercise of discretionary powers, or in the interpretation of the law, is the stuff of ordinary politics, and the [Rule of Law] does not review the success of politics. (6)

Professor Raz sums his argument as follows:

Based in the main on only two premises, that governments may act only in the interests of the governed, and that honest mistakes about what that is, and what it entails are the stuff of ordinary politics, and honest mistakes about this do not violate the rule of law, I concluded that the virtue of the rule of law lies in tending to secure that the government acts with the manifest intention of serving the interests of the governed. (15)

Professor Raz’s original view of the virtue of law was that it was indifferent to governmental purposes. Compliance with the Rule of Law, he famously wrote, is like the sharpness of a knife: a quality that can be used in the service of bad ends, as well as good ones. The test for such compliance had to do with the form of laws (notably their clarity, openness, and stability) and with respect for legal procedures (the independence of courts, the executive complying with the law that authorizes it to act, and so on). An ill-intentioned, self-serving or abusive government could comply with the Rule of Law; a well-intentioned but incompetent one, not necessarily.

This view is reversed in Professor Raz’s return to the subject and, as noted above, I do not think that his change of heart is for the better. I think it is dangerous and counter-productive to judge governments by intention, both as a general matter and specifically when it comes to assessing their compliance with the Rule of Law. Moreover, even if intention were a relevant consideration, the pursuit of the “interest of the governed” seems a particularly unhelpful standard by which to judge governments.

Generally speaking, I think we would do well to embrace Lord Acton’s distrust of “[t]hose who judge morality by the intention [and] have been less shocked at the crimes of power … than at those committed by men resisting oppression”. The time elapsed since Acton’s death should only have reinforced this attitude. And it is especially relevant to the issue of the Rule of Law. Governments themselves don’t allow people to get away with law-breaking by pleading “mistakes and incompetence”. If you are caught speeding, telling the cop that you’re just a mediocre driver and, while desirous of complying with the traffic code, sometimes forget to check how fast you are going isn’t going to get you too far, I suspect. So why should you have any patience with similar claims by a government? Lon Fuller, in particular, emphasized the reciprocity that the Rule of Law fosters in the relationship between government and citizen: as the quid pro quo for the citizen’s law-abidingness, the government ensures that the law allows the citizen to plan his or her life. Under Professor Raz’s approach, this reciprocity can break down. The citizen is still asked to obey, but the government only to intend to do so.

Of course, Fuller, as well Professor Raz in “The Rule of Law and Its Virtue”, recognized that compliance with the Rule of Law is (usually) a matter of degree. A certain level of compliance is necessary; beyond that, the question becomes one of excellence, and perhaps even excess. But I don’t think that this is Professor Raz’s point in “The Law’s Own Virtue”. If “manifest intention” to act in the appropriate way is the relevant standard, then even fairly egregious failures, so long as they are due to good faith incompetence, perhaps even honest carelessness, will be excused, and not only a government’s inability to reach excellence.

Consider an example that I have previously discussed here as a Rule of Law failure: the Canadian law on the standard of review in administrative law. The Supreme Court changes the rules all the time, sometimes announcing that it does so and sometimes not; it often fails to follow the rules it has itself announced; its deferential approach is not impartial between the citizen and the government and allows erroneous legal interpretations arrived at by decision-makers who are not independent of the government to become the law. For all that, I am happy to suppose that the Supreme Court judges intend to follow the law, except in those cases where they (not inappropriately) reconsider their precedents, and that to the extent they are engaged in (re-)making the law, they think they act in the best interest of Canadians. The vexing inability to come up with and follow a truly legal framework is, at least for the most part, the fruit of plentiful mistakes and abundant incompetence. But so what? That doesn’t change the fact that where citizens (not to mention other judges) ought to find law, they find muddle. The Supreme Court’s pronouncements provide no useful guidance, and thus appear arbitrary, even if they do not meet Professor Raz’s narrow definition of arbitrariness. 

This example also points to another troubling claim in Professor Raz’s discussion: that legal interpretation is equivalent to an exercise of discretionary powers and must be assessed as “the stuff of ordinary politics”, not a Rule of Law issue. As not only John Marshall but also the Professor Raz of “The Rule of Law and Its Virtue” recognized, the province and duty of the judiciary to say what the law is. This is significant, because the courts are not engaged in “ordinary”—which I think must mean partisan and self-interested—politics when interpreting or even developing the law. Their performance in doing so cannot be judged politically, either as a normative matter (because political criteria are the wrong ones to apply to judicial decisions) or as a descriptive one (because the courts, being unelected and independent, are not subject to political judgment anyway). Of course, a political judgment in the shape of legislation or constitutional amendment overturning a judicial decision is possible; perhaps this is what Professor Raz means. But such legislation is fairly rare, and constitutional amendment still more so. In the ordinary course of things, the only judgment that we can pass on the judiciary’s exercise of interpretive and creative powers is a moral one, and it must be based on Rule of Law-related criteria, not political ones.

Finally, in any case, I think that “the interest of the governed” is not a standard by which the actions of any institution of government can usefully be assessed. “The governed” are not a homogeneous undifferentiated mass. The are individuals, organizations, and groups. Their interests differ, and sometimes—indeed, quite often—clash. Government action that is in the interest of some will run counter to the interest of others. The more things some people get governments to do, the more toes these governments must step on to accomplish these things (whether these toes’ owners are aware of being trampled on or, as often is the case, not). Now, perhaps the idea is that any plausible-seeming conception of the public interest will do, so long as the government is not blatantly oppressive and self-serving. Yet not only is it doubtful that even this test can eliminate controversy but, more importantly, it is quite meaningless. Protectionist legislation that blatantly favours, say, producers over consumers, or indeed government over citizens, can be dressed up in some public-spirited guise, and intelligent people will fall for this trickery, be they the judges of the Supreme Court in R v Comeau, 2018 SCC 15, or Sir William Blackstone, who wrote that

the statute of king Charles II which prescribes … a dress for the dead, who are all ordered to be buried in woollen … is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation.

The Rule of Law, I submit, is not only not the rule of good law, but also not the rule of well-intentioned law. The purposes of public institutions that create, interpret, and apply the law, or exercise discretionary powers granted by law, are not relevant to assessing their compliance with the Rule of Law. Innocent incompetence can lead to Rule of Law failures, while a self-interested government, for example one preoccupied with lining the pockets of its supporters and winning the next election, however worthy of condemnation, may well abuse its power in a manner that is consistent with the Rule of Law. Professor Raz’s classic article on the virtue of the Rule of Law remains an essential reference point for those of us who are interested in the subject. His return to the topic, sadly, will not be one.

The Supreme Court’s Unreasonable Reasons Doctrine in Admin Law

Why Newfoundland Nurses should be overturned and a recent FCA case adopted as a new starting point.

In Sharif v Canada (Attorney General), 2018 FCA 205, the Federal Court of Appeal (per Stratas JA) was faced with the herculean task of trying to do the impossible: review nothing. Indeed, that is what is asked by the Supreme Court when it says that courts should supplement the reasons of decision-makers. Sharif is the latest in a growing list of cases that demonstrate the fallacy of the Court’s approach. There are two reasons why Sharif’s reasoning demonstrates the flaws with the Court’s doctrine of supplementing reasons: supplementing reasons skewers itself on the Supreme Court’s own concept of deference; and a doctrine of supplementation creates perverse incentives for decision-makers.

First, to Sharif. The Chair of the Warkworth Institution Disciplinary Court convicted Mr. Sharif of “fight[ing] with, assault[ing] or threaten[ing] to assault” another person under the Corrections and Conditional Release Act [CCRA]. In making the decision, the Chair only made a few factual findings: (1) he attempted to keep his meal tray out of a correctional officer’s reach; (2) this conduct invited physical contact either by Mr. Sharif or by the officer [17].

Fatally, Stratas JA noted that the Chair did not analyze the provision of the CCRA under which he convicted Sharif—and that led him to obviously (but implicitly) conclude that Sharif’s action of keeping his meal tray away from the officer was “figh[ting] with, assault[ing] or threaten[ing] to assault.” But to Stratas JA, this “[fell] short of affirmative action or aggression with physical consequence” [23], the condition required under the CCRA. The Chair’s reasons did not contain a finding of aggressive conduct [25].

At this point, the Supreme Court of Canada’s conclusion in Newfoundland Nurses enters the fray. The Court there confirmed Dunsmuir’s selective citation of an academic article, reasoning that judicial review courts may provide reasons that were not but “could be” offered by the decision-maker. Courts should “supplement [reasons] before [they] seek to subvert them” [12] by looking to the record; additionally, inadequacy of reasons is not a standalone basis for review [14]. To the Court (through Justice Abella), this doctrine was consistent with Dunsmuir’s requirements of “justification, transparency, and intelligibility” [13].

Justice Stratas declined to supplement the Chair’s non-existent reasons, even though he looked to the record as instructed by Newfoundland Nurses. In fact, he concluded that, looking to the record, the Chair “declined to find that Mr. Sharif’s conduct was aggressive” [27]. Applying Newfoundland Nurses, and doing anything more to determine whether the ultimate outcome was reasonable, would amount to  “impersonation” of the decision-maker (Bonnybrook, at para 91 per Stratas JA in dissent—but with no quarrel from the majority). To Justice Stratas, doing so would usurp the role of the decision-maker, or otherwise speculate as to what the decision-maker thought about the relevant legal analysis. Here, the reasoning was plainly deficient. The Court could not conduct judicial review.

Having concluded this, Justice Stratas refused to take Newfoundland Nurses any further. In effect, he concluded that the lack of reasoning was a standalone basis for review. And he was right to do so. This is where Newfoundland Nurses goes wrong and Sharif should be followed. Reasons are a window into a decision. The decision-maker has been delegated power to make decisions; and the reasons offered are important for the court to determine the legality of a decision. If decision-makers are incentivized to provide inadequate reasons, but courts cannot intervene on those decisions, the administrative state is evasive of review. A court ginning up supplementary reasons only exacerbates this concern by providing cover for bad and inexpert decision-making.  Sharif raises this concern on two fronts, and I would take the reasoning in the decision further to bar all supplementation.

As Justice Stratas notes in the decision, supplementing decisions can be fundamentally corrosive of the separation of powers between the judiciary and the legislature. The task on judicial review is to police the boundaries of the administrative state (Wall, at para 13), with the appropriate degree of deference indicated by the legislature.   It is not giving “respectful attention” (Dunsmuir, at para 48) to the reasons the decision-maker offered if the court is, as Newfoundland Nurses instructs, permitted to recreate a decision from the record that the decision-maker did not make. The Justice Abellas of the world forget that reasonableness is a standard of review. If a decision-maker offers nothing, how can a court review—or even give deference—to something that does not exist? It is profoundly disrespectful of the (supposedly expert) delegated decision-maker to impose a court’s own reasoning, but it creates a situation where that disrespect begets insulation. By saving the administrative state from its own poor reasoning, courts will end up reviewing its own reasons, not the decision-makers. And decision-makers will use their delegated authority to make decisions that courts cannot review on the merits.

But the downstream effect of this doctrine of deference is likely also corrosive. A decision-maker under Newfoundland Nurses can provide one line of reasons knowing that courts can look to the record to supplement the decision. But this is not judicial review in any meaningful sense. The job of a judicial review court is to review a decision, not conduct documentary discovery.  A bare record is a necessary but insufficient condition for meaningful review. Reasons—addressing the main legal issues and engaging with the core interpretive difficulties—are vital. When a court supplements a decision, decision-makers can relax, knowing that the margin for error is quite wide. And in cases where the decision-maker has some control over compiling the record, the doctrine incentivizes the piling of documentary evidence into the record, without having to engage with the difficult legal questions, knowing that courts could–somewhere–find a justification.

In this sense, for a lawful administrative state, it is not enough that the outcome of a decision be supported by the record. The administrative decision-maker–the merits-decider–must herself support that outcome with reasons springing from her own pen. A court on judicial review must take those reasons for what they are, not create incentives for a free-riding administrator to depend on an expert court to cover for legal mistakes. This is all the more important where important liberties are at stake.

Sharif pushes back on these perverse incentives by demanding more. It asks decision-makers to explicitly set out the basis of the decision, and justifies the revocation of the lifeline granted to them by Newfoundland Nurses. It restores a modicum of respect for Parliament’s choices. Newfoundland Nurses should be rejected. Sharif is a good start as a replacement.

 

Judicial Supremacy Defrocked

Justice Abella’s recent speech should remind us that courts are fallible.

In a recent speech reprinted in the Globe and Mail, Justice Abella of the Supreme Court again offered a robust defense of the judicial role and the profoundly benevolent impact of the Supreme Court in Canadian constitutional history:

Integration based on difference, equality based on inclusion despite difference and compassion based on respect and fairness: These are the principles that now form the moral core of Canadian national values…the values that make our national justice context democratically vibrant and principled…[a]ll this came from the Supreme Court.

She goes further:

A Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph. In a polarized society, it is especially crucial to have an institution whose only mandate is to protect the rule of law.

On one hand, it is good to see that Justice Abella no longer finds the Rule of Law annoying. But on the other hand, her comments should give us pause. She presents a vision of a Supreme Court that decides what Canadian values are, and then imposes them on the society generally. We should first call this for what it is: judicial supremacy, in which rights are not recognized as much as they are created out of whole cloth at the discretion of the Supreme Court. Abella J seems to accept this in Saskatchewan Federation of Labour, where she “gives benediction” to a right to strike. “Benediction” is defined as “the utterance or bestowing of a blessing, especially at the end of a religious service.” True to form, the Supreme Court is the high priest, bestowing us with rights as only a supreme institution can.

Glibness aside,  I do not mean to use the term “judicial supremacy” in a bombastic way, but rather in a technical legal sense. I mean it in the sense that Justice Abella clearly views the role of the Supreme Court as having the last word on constitutional matters. But her view goes even further: she thinks that the Supreme Court is a freestanding arbiter that is institutionally capable of rending final judgments on contests between values for the society on the whole.

I’m not sure this is normatively justifiable or whether it’s even a structural or textual feature of the Canadian Constitution. The legislature still has an important role to play in vetting laws for their constitutionality and making important value judgments that may impact constitutional rights—in most cases, the legislatures are probably better at this than courts. But this is a bigger fish to fry. Assuming for my purposes that Justice Abella’s description of what courts do and should do is accurate, maybe this state of affairs could be justifiable on the basis that courts are comparatively better at making the sorts of value judgments that arise in constitutional matters. If Justice Abella’s framing is true, so the argument goes, the essence of constitutional adjudication is value judgment; courts adjudicate constitutions, and therefore courts, over time, will be expert in value judgments.

But no one has ever presented evidence that this is empirically true, and I am not sure anyone ever could. Justice Abella herself recognized this in Doré, when she developed a doctrine of deference premised on the concept that courts are worse at constitutional decision-making than administrative decision-makers. In fact, courts are not institutionally suited to balance the sort of polycentric considerations that go into difficult and resource-laden value judgments. And judges are trained in the law, which on many modern accounts, is not even the purpose of law school. There are good reasons to doubt the ability of the courts to even begin to understand the weight of the task at hand.

If we are to have judicial supremacy, and judicial supremacy is fundamentally about final value judgments, I am not sure why we solely appoint legal practitioners to the Supreme Court. I only half-joke when I say that we could populate the court with people trained in the different perspectives through which value judgments could and should be made. Economic reasoning, for example, could be extremely helpful here. As Lon Fuller said, there is a point at which we could trade-off certain values in favour of others. We should attempt to develop theories by which we can anticipate and calculate the costs of adopting one right over another; or the reliance interests associated with this precedent over that one. What’s more, philosophy could be helpful. Moral and normative reasoning about how people should live is clearly within the interest of Justice Abella when she judges cases.

I think that the Justice Abellas of the world who argue that law is simply about “balancing values” are caught between a rock and a hard place. On one hand, if they make that argument, they should accept that law has no claim to empire over adjudication. Adjudication is not what is taught in training for lawyers; and there are people who are better qualified to assess the different tradeoffs of values and the practical impact those changes have. But if they reject this proposition, then they must accept that there is a locus of “law” somewhere to be found in adjudication. It follows that we should train lawyers and judges to first, do no harm; determine the meaning of constitutional terms according to objective standards.  Values may be instantiated in the law, but one must first interpret that law to determine those values. It shouldn’t be the case that judges enter legal inquiries with an idea of the values they seek to advance.

The task of judging was supposed to be defined by “passive virtues,” with courts possessing neither force, nor will—only judgment (The Federalist, No. 81). Justice Abella evidently believes in a vision of courts that are not only supreme but confidently so. Judgment has turned into arrogant finality that decides not only the narrow constitutional issue before the court, but the larger value judgment which is settled for all time.  There is no democratic recourse to the ever-expanding domain of constitutional empire if courts make abstract, political, and resource-intensive value judgments for the society on the whole.  If courts are going to do this—if we have sold the legislature down the river—then they should at least be good at it.

Sed Lex?

Thoughts on Ilya Somin’s defence of non-enforcement of the law

In a recent Volokh Conspiracy post, Ilya Somin argues against the common view that laws ought to be enforced and obeyed regardless of their moral flaws. On this view, the existence of a law is warrant enough to inflict punishment on anyone who breaks it. Professor Somin cites the case of Tammie Hedges, a woman from North Carolina who looked after two dozen pets whose owners could not take them with them when fleeing the recent hurricane and, for her troubles, has been arrested and charged with 12 counts of practising veterinary medicine without a license.

Professor Somin argues

that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges … . But the same principles apply far more broadly.

Professor Somin refers to the historical example of the legislation that required fugitive slaves to be returned to their “owners”, pointing out that “[t]oday, we praise … antislavery activists who” broke them, “and condemn government officials who tried to prosecute” these activists. And, in our own time, Professor Somin cites immigration and anti-drug laws as examples of legislation whose enforcement deserves condemnation, not praise.

I have a great deal of sympathy for the position Professor Somin advances, but I think that things are a bit more complicated than he lets on. Professor Somin recognizes that “there is room for reasonable disagreement about which laws are justifiable to enforce”, but does not consider the implications of such disagreement beyond saying that “[i]n a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical ‘enforce the law’ approach to political morality”. Accepting that this is so does not really make the question of when it is possible to excuse or justify non-enforcement ― and of who is supposed to be making such judgments ― go away.

Consider the subject of my last post: the prospect of enforcement by Québec’s Chief Electoral Officer of legislation that effectively bans interventions in election campaigns by civil society actors, except if a “periodical” or a “radio or television station” agrees to carry it free of charge, as part of its news or editorial content, against an environmentalist NGO, Équiterre. Équiterre’s offence is that it has had the temerity of posting, on its own website, a questionnaire detailing the policies of the main provincial parties on various environmental issues, and expressing approval or disapproval of these positions. I argue, in my post, that Québec’s legislation outlawing such perfectly justifiable attempts to influence public opinion is draconian, and that it should be repealed and/or challenged in court and declared unconstitutional. Yet I also say that the Chief Electoral Officer is justified in enforcing the law until, in one way or another, it is law no longer. I made the same argument in a very similar situation four years ago, during the last provincial election campaign, and criticized the Chief Electoral Officer for backtracking on the basis of what I thought was a tortured interpretation of the applicable legislation.

On Professor Somin’s view, I am probably wrong. I think that the law at issue is morally unjustified. Why should I want the authorities to enforce it and put the people who quite rightly object to it to the trouble, expense, and uncertainty of litigating against it or lobbying for its repeal? If the Chief Electoral Officer declines enforcing an unjust law, shouldn’t I be happy? The reason I’m not has to do with the interaction between law and reasonable disagreement.

I have strong views about the injustice (and unconstitutionality) of Québec’s legislation, but others do not share them. The leader of Québec’s Green Party, for instance, has denounced what he sees as “meddling” by Équiterre and other environmentalist groups in elections, claiming “these groups have chosen to exclude the Green Party of Québec from their analysis”, and that this “exclusion … is a political act that undermines our credibility among the voters in the midst of an election campaign”. This nicely captures the policy of Québec’s legislation (and its federal analogue too, albeit that the latter is less draconian): achieving fair competition among political parties, at the expense of everyone else’s liberty. Plenty of people support this policy, at least in the abstract (though many get queasy when they discover that it can actually be applied to people and groups with whom they sympathize).

As I said in my recent talk on the Trinity Western cases at the Centre for Constitutional Studies, in a pluralistic society we constantly disagree about values and justice, and the law for the time being is the one thing we have in common. I take Professor Somin’s point that law is not like the rules of a club that we have knowingly joined and are free to leave; its claims to our assent are incomparably weaker. Still, we do benefit from the existence of this common reference point, which allows us to maintain a well functioning community despite our sometimes radical disagreements.

Consider, for example, one of Professor Somin’s example: immigration laws. I happen to agree with him that they are unjust in preventing persons “fleeing violence and oppression” ― includig economic oppression that typically doesn’t give rise to an entitlement to refugee protection ― from obtaining safety. Sadly, plenty of people think that the problem with existing immigration laws is the opposite: they still allow some people to come to Canada or the United States. If these people take it upon themselves to remedy what they see as injustice ― say by preventing prospective refugee claimants from reaching a border, or by hacking into a government computer system to destroy would-be immigrants’ applications ― how would we feel about that? We want, I think, to be able to say more than “your sense of justice is wrong”, and get into a shouting match about whether we or they are right. Pointing to the law is the best we can do ― but we can only do it if we too are law-abiding. The point, of course, is not that the existing immigration law is, substantively, a sort of half-way house between the wishes of open borders types and wall-builders; it’s that, to repeat, it is a common reference point that exists independently of our subjective views about justice.

Now, it is essential that opportunities to revise the law exist, and highly desirable that some of involve counter-majoritarian procedures, such as judicial review of legislation. The rules that provide these opportunities are valuable ― indeed, probably more so than any substantive laws by themselves ― and worth supporting. When people disobey the law instead of using these procedures, they undermine not only the law that they are actually disobeying, but the whole system of law as the means of provisional resolution of our disagreements with our fellow citizens, as well as the normal procedures for revising this settlement from time to time.

This is especially so when the people at issue are not ordinary citizens, but the very persons charged with implementing the law. Professor Somin does not really address this distinction, but I think it is important. Civil disobedience by a citizen (or a business) can be admirable, but I am very skeptical indeed of civil disobedience by officials. Unlike citizens, officials who decline to enforce the law, if they do it consistently, can effectively change the law ― even though in most cases they are not authorized to do so. This subversion of the normal procedures for changing the law, whether democratic or judicial, risks doing more harm in the long run than it does immediate good.

But of course it is just as, and perhaps more, likely, that the disregard of a law by official charged with enforcing it will not consistent and even-handed. Sympathetic law-breakers ― sympathetic, that is, either in the eyes of the officials themselves, or in those of the public, like Équiterre ― will get a pass, while others will not. How many of Équiterre’s defenders would take the same position of the Chief Electoral Officer went after a right-wing think-tank? Non-enforcement of the law is likely to be arbitrary, and that too is a long-term evil that has to be weighed against any short-term benefits it may have in particular cases.

Now, of course there are extreme cases. Slavery is one. In a very different way, of course, the story of Tammie Hedges is another ― extreme in its senselessness if not in its savagery. As I said at the outset, I am sympathetic to Professor Somin’s view that law does not have an automatic claim to obedience ― certainly not from citizens, and perhaps not even from officials, though I think that it is often the case that an official ought to resign from his or her position rather than subvert the law by selective non-enforcement. The trouble is that any line one draws between extreme cases is likely to be subjective and blurry. I don’t have a good way of dealing with this problem, which probably takes away from whatever force my objections to Professor Somin’s position might otherwise have had. Still, I wanted to explain my disquiet in the face of what strikes as a far-reaching argument against the authority of law. “The law is harsh, but it’s the law” can indeed be a callous and highly objectionable position. And yet, the law has a value of its own that appeals to justice are liable to disregard, and it’s a value that I would like to hold on to, even though I too think that many of our laws, considered individually, are seriously unjust.

10 Things I Dislike About Administrative Law

A perspective from a skeptic

Inspired by Leonid’s post on the Constitution, I’ve decided to list the 10 things I dislike about administrative law in Canada in advance of the planned revisit of Dunsmuir.

One’s personal list of problems with administrative law will inevitably reflect one’s views of what administrative law is and should be, and indeed, what law is and should be. Reasonable people will disagree on this, but perhaps we could agree on two fundamental starting points (even if we disagree on their interaction). First is the idea that absent constitutional objection, legislative delegation to administrative decision-makers should be respected, and courts should give effect to legislative language using the ordinary tools of statutory interpretation (set out in cases like Rizzo, Canada Trustco). Second is the Rule of Law; courts must survey the statutory boundaries of inferior tribunals to determine (1) the level of deference owed and (2) whether the decision is legal. On this account, administrative law can be understood as a form of control over the diffused form of decision-making the administrative state has wrought.

As I hope to show (quite tentatively, I might add), the Supreme Court has moved away from these first principles, often at the expense of the Rule of Law. The main point of the Supreme Court’s administrative law doctrine is an acceptance of deference to the “unrestricted” power of administrative decision-makers (see West Fraser, at para 11). By limiting the circumstances in which courts can review the propriety of the administrative state, the Court has “read in” a doctrine of deference that may not be prescribed by the enabling statute or the role of courts to enforce constitutional precepts as “guardians of the Constitution” (Hunter v Southam). The Court has constructed its own administrative law rules to operationalize its vision of deference.

  1. Selecting the standard of review

The standard of review is the obsession of Canadian administrative lawyers. The Supreme Court has fed this obsession by creating an overly complex standard of review analysis that is tenuously connected to the overall principles of the Rule of Law and legislative supremacy. The sine qua non of the analysis is a presumption of reasonableness on issues of home statute interpretation that is virtually irrebuttable (see Edmonton East, at para 22). This presumption is the imposition of judicial preference on a statute that may not agree with that preference, contrary to the hierarchy of laws. It is profoundly inconsistent with the idea that courts must enforce the law as they find it (see Justice Brown’s comments in CHRC on this front). At the same time, the Court has failed to explain or justify the relationship between the presumption, the categories inviting correctness review, and other legislative factors. Lower courts understandably struggle with this superstructure that might work in Supreme Court chambers but do not work in the context of judicial review.

I prefer a doctrine that puts the onus to defer on legislatures. Otherwise, the default position (especially on questions of law) should be de novo review by courts–consistent with their constitutionally defined supervisory jurisdiction (see point 7). If legislatures want to constrain decision-makers, they will prescribe—for example—a “statutory recipe” that the decision-maker must follow (Farwaha, at para 91; Boogaard, at paras 43-44). If not, on certain matters, the legislature may use open-textured language, directing the decision-maker to act “in the public interest” for example. The former will force a more searching standard of review, the latter a lesser one. The point is that we no longer need the labels of “reasonableness” or “correctness.” After all, administrative law is very simply a specialized branch of statutory interpretation (Bibeault, at para 120), recognizing the fundamental fact that the administrative state is statutory in nature.

  1. Applying the standard of review of “reasonableness” on questions of law

To the parties, whether a decision is reasonable (or, I prefer to say, simply “legal” ) is the central question on judicial review. But the Supreme Court has not explained what constitutes a “reasonable” decision, particularly when it comes to determinations on questions of law. It simply says that reasonableness takes the colour of the context (Khosa, at para 59) with the range of outcomes expanding or contracting based on the “context”. All of this is metaphorical and unhelpful to litigants and lower courts.

At one level, we can question whether the decision-maker’s interpretive process for determining the content of the law is “reasonable”—does the decision-maker engage with the text, context, and purpose of the statute? This may impose a “lawyerly” methodology on decision-makers, inconsistent with a commitment to legal pluralism that nominally defines the Supreme Court’s deference doctrine.

That being so, I think we should expect decision-makers to articulate their decisions in ways cognizable to the rest of the legal system, if we value uniformity in the way these decision-makers deal with disputes. But I think this is a pipe dream. We can’t expect, for example, all “line decision-makers” to understand the finer points of statutory interpretation. All we might expect is that a decision is actually made by a decision-maker with cogent reasons so that courts can evaluate it. When faced with an administrative decision, say, interpreting an enabling statute, a court simply has to decide whether the decision fits within the statute. Courts apply the ordinary tools of statutory interpretation to do this. I say more about this process here, but suffice it to say that whether a decision “fits” with an enabling statute can be answered by asking whether the decision renders a result at odds with the purpose of the statute (properly construed); whether the decision is precluded by other parts of the statute; and whether the text of the statute precludes the interpretation undertaken by the decision-maker. This is not far from what the Newfoundland Court of Appeal did in Allen, a commendable decision.

  1. Expertise

Courts assume that expertise is, at the very least, a practical reason for deference—legislatures delegate to decision-makers because of their expertise. In fact, expertise is a key reason undergirding the Supreme Court’s presumption of reasonableness on questions of home statute interpretation. But there is never an investigation into whether this expertise exists in reality, nor is there ever an explanation of the sort of expertise that would be relevant to trigger deference. The Court assumes that “…expertise is something that inheres in a tribunal [which tribunal?] itself as an institution” (Edmonton East, at para 33).

Putting aside this mysterious statement, if expertise is a good practical reason for deference, the Court should move away from the general assumptions and explain in each case (1) the relevant sort of expertise required to trigger deference and (2) whether there is any statutory evidence that such expertise exists in practice. As I have written before, this was the general approach used by the Supreme Court in the pragmatic and functional era (Pushpanathan is a good example). Why this approach is no longer appropriate is a puzzle.

  1. Lack of academic and judicial focus on agency procedures and policies

In law schools, administrative law almost exclusively is taught as the law of judicial review. Little attention is paid to the bowels of administrative law—the different sorts of decision-makers in the “administrative state,” their policies and procedures, the effect of “guidelines” (binding or non-binding) on individual litigants, and the profound democratic challenge posed by the adoption of policy guidelines imposed without the consent or consultation of the people subject to the guidelines. While Lorne Sossin has done some important work in this regard, academics would do well to examine and further define the taxonomy of potential internal policies that could impact individual litigants, and the extent to which they could deviate from the statutory grant given to the decision-maker.

  1. Jurisdictional Questions

The perennial unicorn of administrative law, the concept of the jurisdictional question continues to haunt the law of judicial review. These are (largely hypothetical) questions on which a decision-maker is afforded no deference, because they go to the authority of the decision-maker to respond to the case in front of it at all.

In CHRC, the majority of the Court rightly noted that the concept of the jurisdictional question is quite indistinguishable from other questions of law a decision-maker is asked to address. Dissenters on the Supreme Court (particularly in CHRC and its predecessor, Guerin) think that the concept of jurisdictional questions is important to the role of courts on judicial review to enforce the Rule of Law. Essentially, to the dissenters, the Rule of Law requires correctness review because deferring to administrative decision-makers on their own jurisdictional limits allows the “fox in the henhouse”—virtually unreviewable administrative authority over legal limits.

But as Justice Stratas noted in a recent Access Copyright case (and before him, as Justice Scalia of the Supreme Court of the US noted in City of Arlington,), a judicial review court interpreting an enabling statute on any legal question inevitably deals with the issue of its limits to enter the inquiry in the first place. These issues are all matters of legislative interpretation. As Justice Scalia noted in City of Arlington “The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.”

The jurisdictional questions doctrine only makes sense if the Rule of Law mandates more searching review for questions of jurisdiction opposed to all other legal questions—assuming that a clear division can be drawn between these questions. But when it comes to administrative law, there is no meaningful distinction between legal questions and questions of jurisdiction—authority to make a decision in either category rests wholly on the statutory grant given to the decision-maker. As Justice Scalia noted in City of Arlington, a better descriptor for the concept is simply “statutory authority.” On this account, jurisdiction is not a concept that adds anything of substance.

  1. Charter Values

The religion of deference has even extended to constitutional issues. Truth be told, more ink has been spilled on the idea of Charter values than I think is necessary. Others have written about the doctrinal problems with Charter values as originally understood in Doré. These problems were exhaustively explored in Rowe J’s judgment in the Trinity Western case, and I need not revisit them here.

I will simply say that the benefits of Charter values that were promised by the Court’s judgment in Doré have yet to come to fruition. As I wrote here, the Supreme Court (and lower courts) cite Doré without applying its key holdings, basically applying the same tests associated with legislative challenges and particular Charter provisions than the “Charter values” (whatever they are) themselves. Even defenders of Charter values acknowledge that they have been applied inconsistently.

One wonders if there is any promise to the use of Charter values, or whether these values are unknowable, useless, and unhelpful in judicial review. To my mind, it is for the defenders of Charter values to move beyond the abstractions and lay out how—exactly—Charter values are fundamentally different from Charter rights, warranting a different analysis and relaxed standard of review.

  1. There are unexplored constitutional issues with aspects of administrative law

Section 96 of the Constitution Act, 1867 has been interpreted as the foundation of the power attributed by the Constitution to courts of inherent jurisdiction. The test described in Residential Tenancies (NS) determines whether or not a particular judicial power can be transferred by Parliament and legislatures to statutory tribunals. But there is separately a “core” of s.96 powers that cannot be transferred (MacMillan Bloedel, at para 15) to statutory tribunals.

To my mind, the supervisory jurisdiction of superior courts over inferior tribunals—on questions of law, specifically— is included in this core of superior court jurisdiction (MacMillan Bloedel, at paras 34-35).The concept of a core is a useful connection to the original purpose of s.96 courts to provide uniform interpretation of law.

Professor Daly has written on this issue, particularly on the issue of transferring judicial review functions to intermediate statutory tribunals. But I think more work should be done to square the constitutionality of the administrative state with the supervisory jurisdiction of superior courts. For example, full privative clauses could be unconstitutional if they block the supervisory jurisdiction of superior courts–on all questions of law, not just “jurisdictional” issues as noted in Crevier. I also would not concede that deference doctrines on questions of law—which dilute the supervisory function—are consistent with the role of superior courts. The list goes on, and it’s a list that could be explored with reference to the original meaning of s.96.

  1. The Supreme Court’s reasons doctrine

The Supreme Court tells us that we should pay attention to the “reasons that could be offered” by an administrative decision-maker before concluding that reasons are insufficient, warranting review (Dunsmuir, at para 48). This doctrinal innovation was based on a line taken from an academic article that did not speak to the mechanics of judicial review.

While the Supreme Court walked back this development in Delta Air Lines, it still remains the case that courts can supplement the reasons of decision-makers. This is problematic on a number of fronts. First, it was the legislature that delegated the decision-maker the power to make “justifiable, transparent, and intelligible” decisions. That power was not vested in the courts. Second, it is profoundly inconsistent with a notion of deliberative deference for a court to gin up reasons for a decision that the decision-maker may not have provided. Third, by abiding a culture of unjustified decision-making in the administrative state, the Court incentivizes decision-makers to limit the provision of reasons in their decisions, basically immunizing their decisions from meaningful review (see the discussion in Tsleil-Waututh Nation). But because the Court has stated that insufficiency of reasons is not a standalone basis for allowing a judicial review (Newfoundland Nurses, at para 14), a judicial review court is left in the unenviable position of having to defer to a potentially unjustified decision.

If a decision is unreasonable because of a lack of justification, it should be remitted. It is the remedial stage of the judicial review in which the court determines whether the decision can be maintained, looking to the record, for example (see Lemus, at para 33). Otherwise, courts may inadvertently allow unjustified decision-making.

  1. Deference to implied interpretations of law

The same comments I made in (8) apply here. Agraira holds, for example, that courts can defer to determinations of law that are “necessarily implied” within an ultimate decision (at para 48). Relying again on the magic line from the academic article, the Court concluded that it could consider the reasons that could be offered in support of a decision. But in Agraira itself, the Court noted that it could not “determine with finality the actual reasoning of the Minister.” I fail to see how a judicial review court, in those circumstances, can determine whether the reasoning and outcome fit within a range of reasonable outcomes.

  1. The standard of appellate review

This is a technical but important point. On an appeal of a judicial review court’s determinations, the Supreme Court insists that appellate courts should apply the judicial review standards of review–reasonableness and correctness–rather than the typical standards of appellate review set out in Housen. The appellate court is to “step into the shoes” of the lower court to determine whether that court selected and applied the proper standard of review (Agraira, at para 46). The effect of this is the same review, twice, of an administrative decision.

There are a number of problems with this. The first rests in the distinction between a first instance judicial review court and an appellate review court. If, as I posit above, judicial review is fundamentally a task of statutory interpretation (on both standard of review and the merits), then the appellate court is looking at particular legal issues raised in that interpretation by an appellant. This is fundamentally no different than the typical fare of appellate courts in most instances; determining whether a lower court interpretation of law is correct according to Housen.

Also, it makes little sense for an appellate court to redo a first instance court’s interpretation of a statute for reasons of judicial economy. Further, judicial review is supposed to be a summary procedure. Even at the appellate level, this should hold true.