Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.

Misplaced Zeal

The Law Society of Ontario’s “Statement of Principles” cannot be defended as advocacy for the Law Society

In a post at Slaw, Alice Woolley argues that lawyers’ state of mind, and in particular their personal commitment to the causes they are asked to represent, should not factor into an assessment of whether they are acting ethically ― and further, that this logic applies not only to lawyers’ representation of clients, but also to their compliance with other obligations requiring them to take particular positions, such as the Law Society of Ontario’s “statement of principles” policy. Though no legal ethicist myself, I am inclined to agree with Professor Woolley general point that a lawyer’s advocacy need not be anchored in a personal commitment to a cause ― but only so far as advocacy on behalf clients is concerned. Advocacy outside the context of legal representation, where the lawyer is acting on someone else’s behalf, is a different matter. Professor Woolley’s conflation of these two context is, in my respectful view, a serious mistake.

Professor Woolley gives the examples of hypothetical lawyers who undertake to represent clients for reasons that have nothing to do with a personal commitment to their causes. They want to get paid and cannot think of a better way to make their living (or at least, as good a living as the practice of law allows them), and care little for the justice of their clients’ cases. They are, however, competent and hardworking, and successful as a result. These lawyers, Professor Woolley argues, are not truly “zealous” advocates ― they feel no particular zeal ― but it would be wrong to think of them as unethical. “Lawyers’ ethics”, she insists, “are about acting as required by their role and professionalism, not personal belief or commitment.”

That seems right to me. A system of professional ethics that required lawyers to wholeheartedly embrace their clients’ cases would be both unattractive and impracticable. Many clients would have to be unrepresented, because no lawyer would agree with them, while professional regulators would have to become inquisitors to find out how lawyers well and truly felt. Note, though, that so far as the Model Code of Professional Conduct of the Federation of Law Societies is concerned, the idea that representation must be “zealous” is only a gloss, and as Professor Woolley shows an unfortunate gloss, on the actual rule, which rather requires it to be “resolute”. (5.1-1) Professor Woolley argues that her hypothetical halfhearted lawyers are not “resolute”, but I’m not sure about that. To the extent that they work hard and diligently pursue whatever recourse is open to their clients, without regard to their own feelings about them, I would not describe them as lacking in resolve, though this is a point about semantics and I don’t think much turns on it.

Be that as it may, as Professor Woolley suggested I might, I think that the position of lawyers who are not engaged in advocacy on behalf of clients is different from that of those who are. Lawyers arguing clients’ cases are widely understood not to be presenting their own views; conflations of the lawyers’ positions with the clients’ are routinely criticized by lawyers and others ― for example when judges or politicians with experience as criminal defence lawyers are (mis)represented as approving of the crimes of which their former clients were accused (and in many cases guilty). Acting as an advocate for a client, a lawyer is a mouthpiece, a hired gun; the rules of professional ethics not only do not require him or her to inject personal approval into the representation, but positively forbid injecting disapproval.

Outside the special context of client representation, however, these understandings and rules do not apply. Indeed, the Model Code‘s the requirement of resolute advocacy applies specifically in that context: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law” (emphasis mine). The rule does not speak to the lawyer acting as an individual, a citizen, with something of his or her own to say. When expounding and advocating for their own views, lawyers are, it seems to me, held to the same expectations of integrity as other people. If a lawyer gives a talk at a bar association event on the importance of access to justice, yet charges exorbitantly high fees and never undertakes any pro bono work, that lawyer deserves to be condemned as a hypocrite ― even though such a condemnation would be quite inappropriate in response to the same lawyer’s invocation of access to justice in argument on behalf of a client. The same goes for advocacy of any other ideal or value, including of course those referred to in the “statement of principles” policy ― equality, diversity, and inclusion. A lawyer advocating for these things without actually believing in them is a hypocrite whom right-thinking members of society are entitled to condemn.

I’m not sure whether Professor Woolley actually disagrees with this view, in the abstract. Yet she thinks that it is inapplicable to the situation of the Ontario lawyers whom the Law Society wants “to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public”. That’s because “the Statement of Principles is not about lawyers doing things on their own behalf, but rather on the profession’s.” In effect, by requiring us to produce this statement, the Law Society has enlisted us all as advocates for its own views, so that the norms of advocacy, of client-representation, apply.

Now, I do not think that the Law Society itself understands its policy in this way. When the “statement of principles” was first introduced, the Law Society explained that “[t]he intention” behind it “is to demonstrate a personal valuing of equality, diversity, and inclusion” (emphasis mine). Subsequently, it backtracked on this and claimed that requiring lawyers to “promote equality, diversity, and inclusion” “does not create any obligation to profess any belief or to seek to persuade anyone about anything”. If the former view of the “statement of principles” ― contradicted but never withdrawn from the Law Society’s website ― still holds, then, contrary to what Professor Wolley says, it is very much “about lawyers doing things on their own behalf”, albeit at the regulator’s behest. If the subsequent view is correct ― though I find it implausible, and the Law Society itself refused to make it the basis of a settlement of the challenge to the “statement of principles” brought by Ryan Alford and the Canadian Constitution Foundation ― , then lawyers are not asked to be advocates either on their own behalf or on the Law Society’s.

But suppose that the Law Society is, in fact, seeking to enlist the lawyers subject to its regulatory power as advocates for its own views, as Professor Woolley thinks. This would be a startling proposition. Unlike in any other case of representation, lawyers do not consent to this “retainer”. Unlike with any other client, they are not given a choice to decline representation if they find the client or the cause unacceptable, or simply beyond their availability or ability. Nor are they permitted to withdraw. They are, in a word, conscripted, coerced to act for the Law Society on pain, for most of them, of losing their livelihood. All the arguments against conscription, both deontological (it is simply wrong for one person to use other persons for his or her own purposes in this way) and consequentialist (conscripts are unlikely to provide good service), apply.

And why exactly is this conscription necessary? The Law Society is sufficiently well-heeled, what with charging over $1200 a year to members like me who are not even practising law, and double that to those who are, not to need pro bono representation. Lawyers are not even required to provide free representation to those who desperately need and, thanks in part to the Law Society’s cartelization of the legal services market, cannot afford it. Why is it entitled to something those in more need lack? Why does it need thousands upon thousands of (free) lawyers ― more than any client in the history of the universe ever had?

Moreover, there appears to be no limiting principle to the idea that the Law Society is entitled to conscript lawyers to represent it. If it can force us to advance its views and objectives with respect to “equality, diversity, and inclusion”, why not on other issues? If the Law Society comes to the view ― perhaps a not unreasonable view ― that its interests would be better served by the government of Ontario being formed by a given political party, can it mandate lawyers “promote” this party’s electoral fortunes? Can the Law Society, instead of hiring consenting lawyers ― and, presumably, paying them ― to defend its policies against Professor Alford and the CCF simply command some to work for it nolens volens? This would, to repeat, be a startling view ― and, to repeat also and give the devil its due, the Law Society itself does not take a position that commits it to advancing it ― but it seems to follow from Professor Woolley’s argument that there us “no regulatory impropriety in requiring” lawyers to advance particular views and values “to pursue the profession’s objectives”.

Professor Woolley is right that whether a lawyer’s heart is in his or her work for a client, or merely his or her brain and sitzfleisch, is irrelevant. But this is not true of the lawyer’s expression of his or her own views, where a lawyer is no more permitted to be hypocritical than any other person. Opposition to the Law Society’s “statement of principles” requirement proceeds in part from a sense that accepting it would require commitment to “equality, diversity, and inclusion” regardless of whether one adheres to these values (and arguably, more specifically, to how they are understood by the Law Society) ― and therefore, in many cases, hypocrisy. Professor Woolley claims that this is not so, because the requirement has nothing to do with personal belief, and is in effect a forced retainer of every licensed legal practitioner by the Law Society. Yet the Law Society does not think so. A power to conscript its members in this fashion would be an extraordinary one, and is quite unjustified in a free society. I see no reason to believe that it exists. Professor Woolley’s zeal in defending the Law Society is misplaced.

Dunsmuir 10 Years Later

The context, aims, and aftermath of Dunsmuir

The Hon. Michel Bastarache CC QC

At the outset, I should express my gratitude to Professors Daly and Sirota for the invitation to contribute to this remarkable project, including such a superb array of leading lawyers, scholars, and judges. I have encountered the challenges of administrative law for most of my professional life in various capacities, but the sheer diversity of diagnoses and prescriptions, from such a wide range of contributors with such disparate views and organizing premises, has been eye-opening. By my count, there have been calls to revive the patent unreasonableness standard and to eliminate standards of review entirely; calls to greatly expand and tightly limit deference; calls to jettison presumptive categories and calls for more categorization; calls for greater attention to theory and more steely-eyed pragmatism; calls to hew more closely to Dunsmuir and to cast it aside more or less entirely; and much else besides that.

Depending on how you look at it, Dunsmuir is a decision so poor that all can agree went wrong in every conceivable direction, even if they agree on nothing else; or it may be that by synthesizing previous decisions and providing useful guideposts, it managed to secure some modest measure of progress. That ultimate reckoning is a task I will leave to others. I can only say that the contributors have been imaginative, original, astute and perceptive, and reading them all together provides invaluable insight into the subject, for which I am personally grateful and from which I think others can benefit greatly.

Obviously, I have my own views on Dunsmuir and the cases that followed it, and will share a few of them. But my focus in this response is not to defend Dunsmuir from its many critics, but to hopefully provide some insight into what we were trying to achieve, the thinking that went into it, how the unique role of a Supreme Court judge manifested itself in the decision. I intend this not as an apologia, although it may seem that way sometimes; rather, I hope that a better idea of our processes and thinking might help inform and provide some context around the many insights contained in the contributions, and be of some value to students of administrative law, of which I remain myself. I offer these observations in that spirit.

Institutional Constraints

I will begin with the paradox within which Supreme Court judges operate: that we are at once enormously powerful and tightly constrained. Acting at the apex of a system of laws, and guarded by judicial independence, there are few options categorically off the table, at least in terms of developing the common law, of which administrative law is one part. At the same time, we are subject to a broad range of effective constraints, including those imposed by precedent, the autonomy of colleagues, the cases that come before us, and the arguments as framed and argued by the parties. The degree to which a judge feels constrained by any of these factors will vary depending on the judge and the case; I can only speak of my own views, and the extent to which these considerations informed my contribution to Dunsmuir.

From my perspective, it is rarely possible for judges, even Supreme Court judges, to rewrite the law from scratch, however much we may like to do so. We are neither scholars at liberty to develop innovative solutions entirely anew, nor a law reform commission. And while we have the luxury of time that many judges in trial courts do not, we still need to decide a good many cases each year. We do not have the opportunity to focus exclusively on a particular problem or agonize over a judgment for too long, nor can we address an area of law in every conceivable respect in a single judgment. As our individual records might indicate, we are only too human.

Moreover, to the extent we can provide solutions to particular problems, we must not only attempt to find solutions that are conceptually sound, but also practically workable. We realize that it is not helpful to create overly abstract standards, however theoretically pleasing, that judges cannot apply and litigants cannot understand. Especially in an endeavour as diverse as administrative law, which touches on so many aspects of the modern state, the importance of ensuring our judgments are practical and accessible is not to be underestimated.

Perhaps most importantly, Supreme Court judges do not operate alone. We operate within a framework defined by our predecessors, by the need to obtain consensus with our contemporary colleagues, and by the knowledge that there will be subsequent judges who will soon take the reins.

Therefore, in a case like Dunsmuir, we must not only attempt to provide guidance to lower courts, but also create a workable framework that is consistent with and synthesizes the wisdom of generations of judges who came before us. To borrow from Ronald Dworkin’s terminology, we must attempt to both “justify” the system of judicial review by placing it in its best light, and make sure our solution “fits” reasonably well with our past and current practices. We can move the law, but incrementally ― we cannot knock everything down and start from scratch, however much that may be our personal preference.

And when we attempt to move the law, we must do so in a way that satisfies at least four of our colleagues. I recall experiencing this difficulty early in my Supreme Court career, when I first tried to obtain support for a less daring change in Pushpanathan. Of course, it is always possible for a Supreme Court judge to set out his or her own personal vision of the perfect solution, but that is not always the way you make real progress. (I should not be taken to be diminishing the value of a strong and principled, if lonely, judgment; my Dunsmuir co-author’s concurring reasons in CUPE, of course, identified many of the concerns that led to Dunsmuir itself.)

The difficulty, of course, is seeking to reconcile considerations that may pull in different directions in the context of a particular case that needs to be decided. An innate sense of justice and view of a theoretically sound approach to a particular issue pulls one way; the equally firmly held views of colleagues may pull in another; the gravitational force of precedent may pull in a third; and the concern with ensuring not only conceptual coherence but practical workability may pull another way still. In this reality, compromise is unavoidable.

I will confess I often found managing this task challenging, as I think most Supreme Court judges do. And it was especially challenging in a case like Dunsmuir, involving an attempt not only to craft reasons that will have some lasting impact, but which touched on such an enormous range of circumstances. As difficult and controversial as many issues that reach the Supreme Court can be, they often only affect a small subset of the population or a narrow area of the law; changes to judicial review of the scale contemplated in Dunsmuir affect a good part of the Supreme Court’s docket, hundreds if not thousands of lower court decisions every year, and at least at the margins, the day-to-day interactions between members of the public and government.

In this institutional setting, you realize your limitations pretty quickly, and do your best to work within them. I turn now to our attempt to manage this reality in Dunsmuir, and the problems we were trying to solve.

Our Objective in Dunsmuir

When Justice Lebel and I wrote the decision in Dunsmuir, we were not naïve enough to think it would be the last word on judicial review. We were not trying to resolve all of the insuperable theoretical disagreements or irreconcilable precedents in this vast legal universe, which often go to the heart of public law theory and modern governance. We were ambitious, but not that ambitious.

Instead, we were trying to bring as large a reform as we could to deal with what we saw as immediate and, we hoped, manageable problems. Those problems have been described many times, but I will say a word on some of the considerations that motivated us to think that we should try to do more than simply resolve the case before us.

First, from a practical perspective, we recognized that judges would routinely spend as much or more time addressing which of the three standards of review properly applied as they did on the legality of decisions under review. As Justice Binnie observed in his concurring reasons in Dunsmuir, the courts had become “unduly burdened with law office metaphysics” (at para 122). While there were paradigmatic cases where the standard of review would be clear, such as labour arbitrators interpreting a collective agreement, the proliferation of administrative actors and bodies and the variety of issues that may come before them often made it difficult to determine what standard should be applied. We hoped to make that process easier, at least some of the time.

Second, the distinction between reviewing for ‘reasonableness’ and ‘patent reasonableness’, in our view, had no principled foundation. As mentioned in Dunsmuir, we considered that “it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough”, and that it was “inconsistent with the rule of law to retain an irrational decision” (at para 42).

The primary difficulty, of course, was to determine when deference should be applied. One of our goals was to try to eliminate the need to undertake a full pragmatic and functional approach in every case. To that end, we attempted to provide principled and workable “guideposts”, while recognizing that we cannot provide more certainty than that.

We did not think that we could eliminate the pragmatic and functional factors entirely, however, simply because we realized the sheer breadth and diversity of the administrative state, and the ability of governments to come up with new and inventive ways of enforcing laws, delivering services, and carrying out social policies. Thus, if the standard of review had not been clearly identified in the past in relation to the particular body and type of decision, the court would still be able to consult the newly renamed standard of review factors.

It is true that the factors were not new, and did not lead to a clear or undisputable result in every case, but we saw no reason to abandon them. We believed, like many of our colleagues before us, that the standard of review factors – the presence of a privative clause, the purpose of the tribunal or other decision maker, the nature of the question at issue and the expertise of the tribunal – were the type of considerations that properly informed the question of how our courts should determine the appropriate degree of deference. Given the nature of the case itself, our analysis was prepared with adjudicative tribunals in mind; more attention would be paid to other actors in the administrative state in another context. But our hope at the time was that new decisions could fill that void, and that the retention of the standard of review factors gave the courts the tools to do so.

Having eliminated the patent unreasonableness standard, we were left with an obvious problem: what does “reasonableness” mean? One struggles to think of a concept as integral to so many areas of the law, and as stubbornly resistant to definition, as the idea of “reasonableness”. We recognized that we were unable to resolve that quandary in a way that could apply with precision to all of the varied circumstances that the courts would face, and therefore made no attempt to do so. What we did try to do was, again, to provide some guidelines or touchstones that fit with our understanding of the term as it had been applied in this context.

With our focus being on adjudicative tribunals, we were particularly concerned with their reasoning and decision making processes, to ensure that they demonstrate justification, transparency and intelligibility. But in our view, that did not exhaust the court’s supervisory task; we believed that one also must consider the outcome, and ensure that it was defensible in respect of the facts and the law. In this way, we attempted to reconcile and provide at least some structure to the types of decisions that the courts had, throughout modern history, determined were ‘unreasonable’. Our hope was that with the two flexible foundations for reasonableness review in hand, that subsequent cases would have the tools they needed to reach justice in individual cases, and develop the law accordingly.

Our objective in Dunsmuir was to create a framework for greater clarity moving forward, which both justified the use of judicial review, fit it into the framework of the cases that came before, and provided at least some workable guidance moving forward to be filled in and supplemented by future decisions. This provides a convenient segue into my next and final topic: the post-Dunsmuir cases.

Post-Dunsmuir

As just mentioned, our hope in Dunsmuir was to make some progress in both simplifying the standard of review analysis, and providing some workable guideposts and grounding for judicial review moving forward. It was an attempt to take stock of all the disparate and idiosyncratic decisions over the previous decades, and to synthesize it into a workable model. The success of such a project depends not only on the (always limited) abilities and foresight of authors, but also on the existence of other judges who agree with the project, both in terms of the foundational principles set out in Dunsmuir, and their application in particular cases.

Needless to say, such a consensus has been hard to achieve. I mentioned earlier that there have been cases decided since Dunsmuir that I would have decided differently, sometimes quite drastically. I will give a few examples.

In my view, in order for the Dunsmuir understanding of reasonableness to apply, there must be reasons and a rationale behind a decision. Unfortunately, this was set aside in Newfoundland and Labrador Nurses, and in Bernard v Canada (Attorney General) (2014) SCC 13. I also believe that legislative intent is still relevant, with the privative clause providing a strong suggestion that deference applies (see Dunsmuir, at para 52), and a right of appeal indicating otherwise. That is why, in my view, it is not acceptable to collapse appeal and judicial review, contrary to what was held in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. Professor Daly mentions that the leave requirement for an appeal and the differentiation between questions of law and questions of fact reveal an intention to have the question addressed by the courts. I agree.

In the Sageunay case, the court found that the presumption of deference had been rebutted; but I do not think there is or should be a legal presumption. The presumption of deference came from Alberta Teachers. As I understand Dunsmuir ― a necessary qualification, because I know my co-author signed on to the reasons in Alberta Teachers! ― we insisted on a contextual approach with general guideposts, which is inconsistent with a presumption of deference across the board. We simply said that, generally, reasonableness would apply in some circumstances (at para 54). We certainly did not say that correctness would no longer apply except in the case of four categories of decisions; the so-called correctness categories were examples of cases where correctness was obviously required. Beyond those categories, context would determine when correctness would be applied, and expertise would play a key role in those determinations. I might add that we did not say that expertise would be presumed, as some subsequent cases have held; in my opinion, deference had to be earned and justified in the context (at para 49). Deference is imperative for “processes and determinations that draw on particular expertise and experiences”, but not for all questions of law, merely because the question is raised by a decision-maker’s home statute. As Justice Slatter of the Alberta Court of Appeal put it, “these signposts were never intended to be hard and fast categories, and the standard of review analysis remains sensitive to the statutory and factual context.” Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City) 2015 ABCA 85 at para 23.

It also seems to me that some of the decisions that followed Dunsmuir were not based on a consistent principled approach, whether it be that in Dunsmuir or another; it seems clear to me that, in at least some cases, the Court wanted to expedite affairs that had dragged on for too long, and in the process, lost sight of the need for consistency (see Bernard, Canadian Human Rights Commission).

Indeed, I think there have been too many decisions that have cut against what we were trying to achieve in Dunsmuir, or at least have proceeded on an understanding of administrative law to which I do not personally subscribe. I did not expect the court to give leave soon after Dunsmuir to so many applicants; I thought it would give lower courts time to experiment so that future necessary changes could be better identified. I personally regret that the court tried to adjust the Dunsmuir approach so soon, and that it made decisions that were, in my view, inconsistent with Dunsmuir, while purporting to apply it. In my view, this created unnecessary confusion.

Suffice to say that there have been many decisions made since Dunsmuir that I would not have personally made. Differences of opinion are to be expected. I respect that. To a certain extent, this reflects the complexity of the subject, the wide variety of cases that may come before the Court, and the difficulty of creating a comprehensive solution that will suit every judge and work for every case in a field such as this. Whether the more significant departures reflect the limits and errors of the authors of Dunsmuir, a misapplication of it by subsequent judges, or a deeper disagreement with the project itself, I cannot say. The reality is that I cannot force others to follow the understanding of Dunsmuir that I would want them to follow, much less to resolve its unanswered questions and unavoidable ambiguities as I would want them resolved. And while that can be frustrating at times, it might ultimately be for the best.

That is because our common law system of judging depends on forging a consensus that persists over time, and proceeds on the assumption that the wisdom of judges collectively, acting incrementally, are better than a single judge dictating law for all time. While each individual judge is fallible and each judgment is flawed in the eyes of some, we must have faith in the collective abilities of the judiciary to work through and get us ever closer to where we should be. Like democracy as a system of government, I believe this widely dispersed, common law system is the worst possible process for judicial law making, except for all the others.

It is for this reason that while some might regret that our decision in Dunsmuir was incomplete or left important questions unanswered, I do not. I understand those who express this regret but can only say that it is not possible to produce such comprehensive and definitive answers to such monumental questions. All that we could do, in our short time on the Court, is to attempt to provide a theoretically sound and practical framework for the application of judicial review, and then to try to apply those principles in subsequent cases, to the best of our ability. I will leave it to others to judge our success in that project – the reviews appear to be mixed – and to the courts to do all that they can to improve upon that project moving forward. I have faith that they will do so to the best of their ability, as we attempted to do with ours.

Did Dunsmuir Simplify the Standard of Review?

An empirical assessment

Robert Danay, Justice Canada and UBC

(The author’s views do not necessarily reflect those of the Department of Canada or the Government of Canada)

While the Supreme Court issued three sets of reasons in Dunsmuir v New Brunswick,[i] all members of the Court agreed that the system governing the standard of review in administrative law had become too complex and was in need of simplification. Mr. Justice Binnie offered perhaps the most compelling reason to support this reform: access to justice.

The existing system, Binnie J argued, inflated the time and legal resources required to adjudicate what is supposed to be a quick and inexpensive way of challenging governmental decisions. As he persuasively put it (at para. 133) “[e]very hour of a lawyer’s preparation and court time devoted to unproductive ‘lawyer’s talk’ poses a significant cost to the applicant.…A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome.” As a decade has now passed since these words were penned, it behooves us to ask: did the Court in Dunsmuir succeed in reducing the legal resources devoted by litigants to debating the standard of review? As readers of Paul Daly’s Administrative Law Matters blog may already know, my preferred approach to answering such questions is through empirical analysis.[ii] This case is no exception.

As described in greater detail below, after reviewing a sample of 120 factums filed by litigants before and after Dunsmuir was decided, it would appear that the Supreme Court may not have been successful in reducing the legal resources devoted by parties to mooting the standard of review. This suggests that – as Madam Justice Abella recently argued in Wilson v. Atomic Energy of Canada Ltd.[iii] – significant new doctrinal changes may be needed in order to fully realize the goal of simplifying the standard of review for litigants and lower courts.

Methodology

Using WestlawNext Canada’s database of factums extracted from court files,[iv] I collected factums from judicial review applications and statutory appeals in the Ontario Divisional Court and the Federal Courts. With each jurisdiction, I collected the 30 factums in the database that were filed in the period immediately preceding the release of Dunsmuir (going back as far as July of 2006) as well as the most recent 30 factums found in the database (these span the period from September of 2013 to December of 2016).

As a rough measure of the extent to which parties spent legal resources on mooting the standard of review, I tabulated the number of paragraphs in each factum devoted to that issue as well as the proportion of the total paragraphs in each factum on the standard of review. Comparing the average of both figures from before and after Dunsmuir affords a crude assessment of whether the goal of simplifying the standard of review for litigants was successful.

With regard to the Ontario Divisional Court, the 60 factums that I examined concerned judicial review applications or statutory appeals of a variety of different administrative decision-makers, the most common being the Director of the Financial Services Commission of Ontario, a municipality, the Human Rights Tribunal of Ontario or the Environmental Review Tribunal. The 60 factums in the dataset that were filed in the Federal Courts primarily concerned a variety of intellectual property-related decision-makers such as the Registrar of Trade-marks and the Commissioner of Patents as well as the Canadian Human Rights Tribunal and adjudicators dealing with federal labour relations matters.

Results: No Apparent Reduction in Legal Argument on Standard of Review

The results of this empirical analysis suggest that the Court in Dunsmuir may not have been successful in reducing the legal resources that parties were required to spend in order to address the standard of review

With regard to factums filed in the Ontario Divisional Court, the average number of paragraphs dealing with the standard of review increased from 8.5 paragraphs per factum before Dunsmuir to 10.4 paragraphs more recently, representing an increase of 22%. Similarly, the average share of factums devoted to debating the standard of review increased after Dunsmuir, from 14.2% in 2006-08 to 16.5% in 2013-15, which represents an increase of 16%.

Danay1

The data from the Federal Courts exhibit a similar trend. The average number of paragraphs dealing with the standard of review increased from 2.6 paragraphs per factum before Dunsmuir to 3.4 paragraphs more recently, an almost 31% increase. On the other hand, the overall percentage of factums devoted to the standard of review in the Federal Courts remained unchanged at 6%.

Danay2

While this limited study has some obvious methodological limitations,[v] it does seem to suggest that the changes made by the Supreme Court to the standard of review in Dunsmuir have not reduced the extent to which parties must devote resources to arguing the standard of review.

Conclusion: Vindication for Madam Justice Abella?

The data reviewed above provide some support for the provocative position taken by Abella J in Wilson. In that case Abella J decried as “insupportable” the fact that a substantial portion of the parties’ factums in that case and the decisions of the lower courts were occupied with what the applicable standard of review should be. This, she suggested (at para 20), required the Court to “think about whether this obstacle course is necessary or whether there is a principled way to simplify the path to reviewing the merits.”

Madam Justice Abella’s proposed solution was to adopt a single reasonableness standard of review.[vi] While none of her colleagues were willing to endorse this proposal, Abella J conceded (at para. 19) that “[t]here are undoubtedly many models that would help simplify the standard of review labyrinth we currently find ourselves in.” If simplification in the name of access to justice remains a priority, members of the Court will need to explore and adopt such a model in the coming years. If they do, then that new model will be ripe for further empirical assessment when it is ultimately applied by litigants and lower courts.



[i]
[2008] 1 SCR 190 [Dunsmuir].

[ii] See Robert Danay, “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66 UTLJ 555 [Danay, Quantifying Dunsmuir].

[iii] [2016] 1 SCR 77 [Wilson].

[iv] WestlawNext indicates on its website that this database “includes facta extracted from the court files of significant court cases in every Canadian Common Law jurisdiction.” These documents are selected from cases that fall into 12 different subject areas including “Canadian Cases on Employment Law,” “Canadian Environmental Law Reports,” “Intellectual Property Cases” and “Municipal and Planning Law Reports.”

[v] Aside from the fact that the dataset of factums is not truly random, I have not sought to control for potentially confounding factors using a multiple regression analysis. For an explanation of why I tend to reject doing so see Danay, Quantifying Dunsmuir, supra note 2 at 576.

[vi] Ibid. at paras. 28-37.

Profession of Power

A critique of Bob Tarantino’s celebration of the legal profession

In a new post over at his blog, bad platitude, Bob Tarantino continues his defence of the Law Society of Upper Canada’s right to exact ideological conformity from its members. His focus is on Jonathan Kay’s National Post op-ed that tied the Law Society’s demands to a belief  in the “myth that lawyers comprise a moral vanguard within society, with sacred duties that extend beyond the daily humdrum of litigating divorces and drafting contracts”. Mr. Tarantino concedes that Mr. Kay “correctly diagnoses … the profession’s seemingly inherent vainglory” ― and proceeds to defend thinking of law as a profession, not “‘just’ an occupation” in a way that demonstrates just how vainglorious this profession can be.

Before getting to the point, I pause to note Mr. Tarantino’s rather remarkable appeal to the forces of the market in an implicit attempt to justify the Law Society’s right to force lawyers to come up with, or at least copy-and-paste, “Statements of Principle” acknowledging a purported obligation to promote equality and diversity. Contra Mr. Kay, Mr. Tarantino observes that some clients ― he mentions Facebook ― want lawyers to take these things seriously. Mr. Tarantino also insists that he has “the right to decide not to spend [his] money at businesses that espouse views [he] find[s] unpalatable, and even to enthusiastically encourage others to avoid spending their money there”. Very well ― though at least some human rights statutes (including those of Quebec and New Zealand) include political opinion among the list of prohibited grounds of discrimination, which suggests that even enlightened individuals like Mr. Tarantino might disagree with some instances or applications of such legislation. But how exactly does Mr. Tarantino justify the coercion of lawyers whose clients are not as enlightened as he or Facebook, or indeed those lawyers who do not have any clients? At best, this is not a free-market argument, but a paternalistic one. The Law Society knows better.

On now to Mr. Tarantino’s main argument, which is that “it is precisely in law’s status as a profession and as a locus of power in society that the importance of collective value-setting arises”.  A profession, says Mr. Tarantino, is distinguished by involving the application of “a body of specialized knowledge and subordination of the practitioner’s interests in favour of three ‘others’: the client, the profession, and the public”. Lawyers, even more than the members of other professions, wield power over “our society and over the affairs of their clients, and if they adopted a self-interested ethic, a sort of syndicalism, they could quickly become a manifest danger to the rest of society”. For this reason, it is essential to make lawyers “virtuous” ― “so that their power is channeled in favour of others”. This is what both the Law Society’s latest demands and the oath lawyers are required to swear upon entering the profession (to which these demands bear a close resemblance, as I have noted here) are supposed to accomplish. Mr. Tarantino adds that it is very important that these exercises in “collective identity-formation” are “voluntary”; that they “do not find their origins in the government [but] arise from lawyers themselves.” He sees the legal profession as “in some ways just a big club … that gets to set its own rules about membership”, and there is nothing “illegitimate” about that, is there?

It is as if the last 250 years of history and political thought had not happened. As if it were possible to believe, after Smith and Madison ― not to mention Robespierre ― that public good is achieved by virtuous agents rather than by competition and ambition counteracting ambition. As if it were possible to claim, regardless of Constant and Berlin, that rules that a majority imposes on a minority not really an imposition and an interference with liberty. As if it were possible to maintain, despite Friedman and public choice theory, that a state-backed monopoly is not self-interested and syndicalist, working to exclude competition and raise prices for its services. Or, if Mr. Tarantino does not actually believe that such things are generally true, he must then suppose that lawyers, of all, people, are uniquely immune to the fallibility of other human beings. This is the sort of presumption, as self-serving as it is vainglorious, that Mr. Kay rightly decried.

Moreover, Mr. Tarantino’s argument involves a rhetorical sleight of hand. The lawyers’ power, of which he makes so much, is mostly not collective, as he suggests, but individual. It is not the legal profession acting as a united whole that drafts statutes, prosecutes alleged criminals, adjudicates disputes in administrative tribunals, or handles the personal and financial affairs of vulnerable clients. It is individual lawyers or, at most, firms. In any litigation, there are two sides ― normally, though admittedly not always, each with its own lawyer. When lawyers draft or apply rules that bind citizens, other lawyers are ready to challenge these rules or their application. If a lawyer mishandles a client’s case, another can be retained ― including to sue the first. (This is not to make light of the possibility and cost of mistakes or incompetence, of course. Still, the point is that a mistaken or even incompetent lawyer does not represent the profession as a whole.) The one circumstance when lawyers do act collectively is when they act through the Law Society. When the Law Society exacts compliance with its demands, that is the profession exercising power ― backed up by the armed force of the state. That is where we really ought to worry about power being exercised unethically. And in my view ― though perhaps not in Mr. Tarantino’s ― the exercise of power to impose ideological conformity on those subject to it is unethical and indeed oppressive.

Unlike many other defenders of the Law Society, Mr. Tarantino has the merit of not trying to minimize the seriousness of what is going on. His first post contained a forthright admission that the Law Society’s demands amount to a values test for membership in the legal profession. His latest doubles down on this admission, and makes clear that it the Law Society’s actions rest on a conception of public power that is paternalistic, confident both of its own moral superiority and of its ability to make others virtuous, and takes no notice of disagreement or dissent. Those who do not like how this power is exercised can simply get out and leave the legal profession ― and find some other way of making a living. Many of those who support the Law Society seem to be surprised by the force of the opposition which its latest demands have provoked. Perhaps, thanks to Mr. Tarantino’s posts, they can understand better.

Which Principles? What Politicization?

A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada

In a blog post over at Advocates for the Rule of Law (and in a previous version at À qui de droit), my friend and sometime guest Maxime St-Hilaire argues that

The greatest challenge facing the Supreme Court of Canada is the risk of its politicization, understood … as a form of adjudicative practice that is not governed by legal rules, legal principles, or other legal norms and that does not restrict itself to deciding justiciable questions.

Whether or not “politicization” is the best possible label for this sort of adjudication, and whether or not it is the greatest challenge facing the Supreme Court ― both plausible but debatable propositions ― I agree that the danger Prof. St-Hilaire identifies is a serious one. It is a challenge, moreover, not only for the Court, or even the judiciary as a whole, but for the legal profession, which is too readily supportive of adjudication that does not abide by the requirements of the Rule of Law.

However, precisely because this is a very serious issue, it is important to be careful in circumscribing it ― not to accuse the Supreme Court of being “political” or disregarding the Rule of Law when it is not. And here, I part company with Prof. St-Hilaire to some extent. Some of the specific instances of politicization that he identifies are indeed examples of the Court failing to act judicially or to uphold the law. Others, in my view, are not.

I agree with Prof. St-Hilaire’s criticism of the Supreme Court’s theoretical embrace of living constitutionalism in theory ― and its practical embrace of interpretive eclecticism with few if any principles to constrain cherry-picking interpretive approaches. If, in other jurisdictions, there is such a thing as a “law of interpretation” (to borrow the title of a recent article by William Baude and Stephen E Sachs), constitutional interpretation in Canada seems to be largely lawless, as most recently highlighted by Benjamin Oliphant. Indeed, I would go further than Prof. St-Hilaire (if I understand him correctly), and argue that judges ought to be originalists in order to uphold the principles of the Rule of Law and constitutionalism, because, as Jeffrey Pojanowski argues,

if one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms.

I share Prof. St-Hilaire’s unease at the Supreme Court’s often unprincipled practice of suspending declarations of invalidity of legislation. While I once argued that this device had some redeeming virtues, the Court’s failure to articulate and apply coherent principles for deploying it nullifies these virtues. As things currently stand, the Court’s approach to suspended declarations of unconstitutionality is yet another manifestation of the sort of uncabined discretion that is antithetical to the Rule of Law.

I also agree with Prof. St-Hilaire that the Supreme Court’s approach to review of allegedly unconstitutional administrative decisions under the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 is a “denial of constitutional justice”. (That said, it is worth noting that the Court’s application of this framework is a mess, and it might matter less than the Court itself suggests ― though is a Rule of Law problem in its own right.) And I agree with Prof. St-Hilaire’s criticisms of the Court’s approach to s 15 of the Canadian Charter (including because it is flatly inconsistent with its original meaning, as Justice Binnie, among others, openly recognized).

Now on to some of my disagreements with Prof. St-Hilaire. Some of them we have already canvassed at some length. I remain of the view (previously expressed here) that judges can, in appropriate cases, criticize the legitimacy of their colleagues’ adjudicative techniques. Indeed, I am puzzled by prof. St-Hilaire’s insistence on the contrary. Can a judge who agrees with his critique of the Supreme Court not say so? I also remain of the view, that courts can, subject to usual rules on justiciability, pronounce on constitutional conventions, which are not essentially different from legal rules. I most recently expressed and explained this view in a post here criticizing the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, and in this short article for a special issue of the Supreme Court Law Review.

New, to this space at least, is my disagreement with Prof. St-Hilaire on the scope of the doctrine of res judicata and the force of stare decisis. Prof. St-Hilaire accuses the Supreme Court of “conflating the two principles”, and of playing fast and loose with both. In his view, stare decisis is about “the general/indirect jurisprudential authority of judicial reasons”, while res judicata concerns “the particular/direct authority of judicial decisions per se, and taken separately”. When the Supreme Court upheld the constitutionality of the criminalisation of assisted suicide in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, that rendered the matter res judicata, and should have prevented the courts, including the Supreme Court itself, from revisiting the matter, as they eventually did in Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331. More broadly, the Supreme Court has been too cavalier with precedent, in particular in the area of labour law.

I agree with Prof. St-Hilaire that the Supreme Court has in some cases ― especially those concerning the purported constitutional rights of labour unions ― disregarded precedent without any compelling reason to do so. For reasons best explained, I think, by Jeremy Waldron, a fairly robust version of stare decisis is an important component of the Rule of Law. However, in my view, prof. St-Hilaire takes this point much too far. For my part, I am content to accept the Supreme Court’s explanation in Canada (Attorney General) v Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 SCR 477 that “res judicata … require[s] that the dispute be between the same parties”, as well as on the same issue, while stare decisis is the broader ― and more flexible ― principle that applies “when the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata“. [25] This is not merely a terminological dispute. The point is that courts should be able to reverse their own decisions, albeit with the greatest circumspection.

Without fully defending my views, I would argue that the criteria set out in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 are a sound guideline, provided that they are rigorously applied (which they were not in the labour union cases). Precedent, the Court held,

may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [42]

I think this is right, because while the stability of the law, its diachronic coherence, is very important, the law’s consistency at any given time point, its ability to remain a “seamless web”, or synchronic coherence, is important too, and also a requirement of the Rule of Law. These two dimensions of legal coherence are in tension, and sometimes in conflict, and I think it is a mistake to say, as I take it Prof. St-Hilaire does, that diachronic coherence must always prevail. Perhaps more controversially, I am inclined to think that there is also a case to be made for the proposition that the Rule of Law can accommodate, if it does not positively require, departures from precedent that serve to make the law make sense in light of changed circumstances and evidence. The ideas of non-arbitrariness and congruence between the law on the books and its real-world application at least point in that direction, though the argument would be worth developing in more detail.

I will end where Prof. St-Hilaire begins: with judicial appointments. (Of course, the process of appointment is not part of adjudication. But it makes sense to consider it in a discussion of the danger of the politicization of the Supreme Court, even though it doesn’t fit within Prof. St-Hilaire’s definition of that term.) Prof. St-Hilaire criticizes the inclusion of “parliamentary consultation” in the appointment process, and I agree with him to that extent. However, I do not share the main thrust of his comments, which is that we need to move “from more political criteria to increasingly professional criteria in the selection of” Supreme Court judges. Political control over judicial appointments is an important check on the power of the courts, as well as an indispensable means to inject some much needed ideological diversity into the judiciary. The current judiciary and legal profession are too homogeneous ― in their thinking, not (only) their skin colour ― for a “professional” appointments process to produce a judiciary that does not all believe the same pieties (including pieties about living constitutionalism and other things that Prof. St-Hilaire criticizes!). That said, since politicians should have the responsibility for judicial appointments, it is also politicians who should be held accountable for them. As Adam Dodek has suggested, the Justice Minister who should appear before Parliament to explain the government’s choice of Supreme Court judges ― but not (and here, I take it, I part company with prof. Dodek) the new judges themselves.

I share Prof. St-Hilaire’s view that “the Supreme Court must choose principle over politicization”. I am looking forward to the Runnymede Society’s forthcoming conference at which this call will no doubt be much reiterated ― including by yours truly. That said, though it reflects a nice sentiment, an appeal to principle over politics does not tell us very much. It leaves open both the question of what principles one should adopt, and of counts as objectionable politicization rather than mere good faith error. Prof. St-Hilaire and I disagree about that to some extent, as I have endeavoured to show. The debate must, and will, continue, and we should have no illusions about settling it with high-minded slogans.

Chicane de cours, bis

La querelle constitutionnelle entre la Cour supérieure et le gouvernement du Québec mérite le sérieux, pas la dérision

Plus d’un mois après qu’on en eut appris l’existence, la requête des  juges de la Cour supérieure visant à faire déclarer inconstitutionnelles les compétences exclusives sur les poursuites civiles de 10 000$ à 85 000$ et sur le contrôle judiciaire de certains tribunaux administratifs assignées par le législateur québécois à la Cour du Québec commence à faire parler d’elle. La fin de semaine dernière, Yves Boisvert y est allé d’une chronique vitupératrice dans La Presse et Robert Dutrisac, d’un éditorial un peu plus sobre, mais tout aussi indigné et un peu parano de surcroît, dans Le Devoir. Au-delà des erreurs juridiques qu’elles contiennent, ces élucubrations sont surtout remarquables par le peu de cas qu’elles font de la constitution et leur empressement à blâmer une seule partie dans une dispute où l’autre mérite tout autant, sinon davantage, comme je l’expliquais déjà lorsque les procédures ont été amorcées, d’être condamnée.

M. Boisvert compare la requête des juges de la Cour supérieure à celle du « gars qui a réclamé 67 millions à son nettoyeur pour avoir perdu son pantalon ». Il reconnaît pourtant ― au 17e paragraphe sur les 24 que compte son chef-d’oeuvre ― que « [t]echniquement, l’argument est sérieux ». Cependant, il n’en a cure, de ces détails techniques. Que la Cour supérieure, censément tribunal de droit commun, se trouve presque sans dossiers civils dans plusieurs régions du Québec n’est qu’un « “problème” » ― avec des guillemets. Que l’enjeu soit « discuté depuis des années par des experts et par des juges » (c’est au moins une décennie, comme je l’indiquais dans mon premier billet sur le sujet), c’est apparemment sans importance. Tout ça ne serait qu’ « [u]ne façon comme une autre de célébrer le 150e anniversaire de la Constitution », voire même de « ramener à 1867 » notre système judiciaire. Et que le gouvernement du Québec ait été au courant de tout ça, pressé par les juges d’éviter une confrontation inconvenante dans leur propre cour, et n’ait pas pris éviter l’apparence de conflit en renvoyant la cause devant la Cour d’appel est bien normal, puisqu’il ne saurait être question de « faciliter ce débat oiseux ».

M. Dutrisac, lui, écrit que le « Québec […] détient la compétence exclusive de l’administration de la justice », et que puisque « la Cour du Québec […] en mène plus large que les autres cours provinciales[,] en matière de justice, le Québec est en quelque sorte une société distincte ». Il soutient que la requête des juges serait un « coup de force » visant à « remettre le Québec à sa place en matière de justice, dans un esprit de soumission constitutionnelle ».

Autant M. Boisvert que M. Dutrisac s’insurgent face à la décision des juges de lancer ces procédures alors que le système de justice s’ajuste encore aux exigences en matière de délais édictées par la Cour suprême dans l’arrêt R c Jordan, 2016 CSC 27, [2016] 1 RCS 631. Cependant, leurs arguments à l’effet que tout le débat sur la limites de la compétence de la Cour du Québec serait « oiseux » sinon une sinistre tentative d’éradiquer la différence québécoise en matière de justice s’appliquerait tout autant en l’absence de ces ajustements. Il est vrai que, si les juges de la Cour supérieure ont gain de cause, d’importants changements devront être faits au système de justice. Or, ces changements auraient dérangé peu importe quand il aurait fallu les faire, et plus on attend, plus ils seront dérangeants le moment venu.

Car, comme M. Boisvert finit bien par l’admettre, l’argument des juges est sérieux. La constitution, n’en déplaise aux journalistes, n’est pas qu’un détail technique ou une curiosité intellectuelle. C’est encore moins un instrument de « soumission » pour le Québec. Le respect de la constitution c’est la condition même de légitimité de l’État québécois, comme de l’État canadien, bien sûr, ou de n’importe quel autre. Quand l’État déclare, par sa conduite (y compris sa législation) ou les paroles ou le silence de ses représentants, que le respect de la constitution l’indiffère, il y renonce, du moins en partie. Et il lance un avertissement à ses citoyens : hier, ce n’était que le partage des compétences en matière du système judiciaire que l’État québécois négligeait ; aujourd’hui, c’est aussi l’indépendance de la magistrature, à laquelle il a le devoir de contribuer, et qu’il aurait dû préserver en renvoyant cette question du partage des compétences à la Cour d’appel ; qu’est-ce que ce sera demain? En reconnaissant ses obligations constitutionnelles, l’État ne fait pas preuve de soumission (envers qui, au juste, M. Dutrisac?), mais bien de respect envers ceux et celles qu’il est censé servir ; ou, si tant est qu’il s’agit de soumission, c’est de cette soumission que les juristes médiévaux imposaient déjà aux rois d’Angleterre, en disant que Rex non debet esse sub homine, sed sub Deo et lege ― le Roi ne doit point être le sujet d’un autre homme, mais de Dieu et de la loi.

Je mentionnais plus haut les erreurs juridiques de MM. Boisvert et Dutrisac. Elles sont plutôt flagrantes ― et diamétralement opposées. Le premier dit que « [l]a Constitution de 1867 réserve au fédéral le pouvoir de créer les cours de droit commun »; le second, que le « Québec […] détient la compétence exclusive de l’administration de la justice ». Les deux ont tort. Le fédéral ne crée pas les tribunaux de droit commun, même s’il nomme leurs juges. Toutefois, la compétences des provinces en matière d’administration de la justice, même si elle est décrite comme exclusive à l’article 92(14) de la Loi constitutionnelle de 1867, est limitée par ce pouvoir de nomination du fédéral, et par les restrictions supplémentaires que la jurisprudence a dérivées de ce pouvoir. Ce schéma constitutionnel est (délibérément) complexe, mais il est troublant que l’on veuille dénigrer les efforts visant à le préserver sans même en comprendre le fonctionnement.

Pour sa part, M. Dutrisac exagère aussi le caractère unique du Québec en matière de la compétence de la cour provinciale. Comme je le mentionnais dans mon premier billet, cette compétence va jusqu’au seuil de 50 000$ en Alberta. C’est certes moins qu’au Québec, mais l’ordre de grandeur est le même, et démontre bien que le Québec est, ici encore, moins « distinct » du reste du pays que les nationalistes ne le prétendent, et que la requête des juges de la Cour supérieure n’est pas une attaque contre la spécificité québécoise, mais soulève au contraire des questions d’un vif intérêt pour le pays tout entier.

Et c’est pourquoi je reviens à ma suggestion, formulée le mois dernier, que le gouvernement fédéral devrait intervenir dans le débat en formulant un renvoi à la Cour suprême pour le trancher. L’enjeu est d’importance nationale, sa résolution ne nécessite pas l’établissement d’une trame factuelle, et le fédéral aussi a une responsabilité de préserver les apparences d’impartialité de la magistrature. Puisque le gouvernement du Québec ne veut pas faire sa part, et que même les journalistes québécois semblent disposés à louer son attitude et à ne condamner que les juges, le fédéral, qui peut agir, doit le faire.