When Judicial Disagreement Doesn’t Matter

What does it mean for an appellate court’s decision to be unanimous?

By Peter McCormick

To begin with the obvious: common law appellate court decisions include two major elements.  The first is the outcome – crudely, who won? – that takes the dichotomous form of“appeal allowed” or “appeal denied”.  The second is the reasons for judgment, that take the form of a legal essay, sometimes of extended length, explaining why that outcome is the appropriate one and how it is grounded in existing law.  Put more formally: an appeal court decision responds to two imperatives, the first being to provide a definitive resolution to a specific legal dispute, and the second being to provide the reasons for that outcome in such a way as to provide useful guidance to lower courts and future litigants.

From this it follows that there are two different types of judicial disagreement. A member of the panel may disagree with the outcome, saying that their colleagues got the winner wrong – we call this type of disagreement a“dissent”.  Or they can agree with the outcome but disagree, or at least not completely agree, with the reasons given to explain and justify that outcome – in Canadian usage we call this a “separate concurrence”.

Dissents have drawn a voluminous literature, both empirical and normative, to such an extent that even a preliminary list would take several pages. When the focus of discussion shifts from the consideration of a specific example to a more general level, the usual complaint is that dissent rates are too high – judges (or perhaps just some judges) are too ready to pursue their own vision of the law rather than contributing to and reinforcing a more solid institutional position.  Separate concurrences, on the other hand, are very much the forgotten poor cousin of judicial disagreement; to the best of my knowledge, there have only ever been two articles in Canadian law journals exploring the practice of separate concurrence and evaluating its contribution to the law.[1]

With respect to dissent, Jeremy Gans, in a recent piece in Inside Story and referring specifically to the High Court of Australia, has taken the highly intriguing position of flipping the “too many dissents”argument.   Quite the contrary, he complains that it is possible – and, for the current High Court, an actual achievement – to have dissent rates that are low to the point of dysfunction, so much so that it reflects badly on the Court’s performance. His “Great Assenters” title is deliberately and pointedly ironic; at a certain point, he does not think that “assent” is great at all.

This looks like a fascinating conversation that I would love to join – perhaps by suggesting a “proper” (or at least“normal”) level of judicial dissent that as a yardstick against which “too high” and “too low” can be more precisely measured, such that the reasons (commendable or otherwise) for departures from that norm can be identified.  But my enthusiasm was derailed by the second paragraph, which casually told me “All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons).”  Our own Supreme Court has exactly the same attitude toward “disagreement on the reasons”, keeping its statistics on how many of its judgments were “unanimous as to outcome” but not seeing any necessity of taking the further step of telling us how many of those were also “univocal” (which is to say: unanimous as to reasons as well).

The clear implication of both Gans’s comment and the Supreme Court statistical reporting is that only disagreement as to the outcome really matters; differences as to the reasons are not really worth noticing – not even if they involve fundamental differences expressed at considerable length, not even if they are joined by several other judges, not even if the consequence is that there is no statement of “outcome plus reasons”statement that is supported by a majority.  To be sure, disagreeing about the outcome is much more dramatic, with greater potential for news headlines and editorial commentary aiming scathing criticism at either the majority or the minority.  It conjures visions – sometimes rebuttable but often compelling – of innocent people sent to prison or guilty people freed, of honest people victimized without remedy, of perfectly valid laws rendered null and void or bad laws upheld.  Separate concurrences are less dramatic and often harder to explain, a judicial equivalent of “insiders’ baseball.”

With all due respect to both Prof. Gans andthe Supreme Court of Canada, I think their focus on “unanimous as to outcome”is a profound mistake.  Putting the pointas starkly as possible: the outcome really matters only to the immediate parties, but the reasons matter to everybody. This is because it is the reasons, not the outcome, that constitute the precedent that constrains the immediate court and instructs the lower courts.   Since there are only two possible outcomes (allow or dismiss), how can they carry any precedential message at all?  The real point about dissent is not that the judges disagreed on the outcome but that they disagreed about the content and meaning and application of the relevant law; generally speaking, to disagree with the outcome is ipso facto to disagree with the reasoning that led to the outcome, so it is easy to conflate the two.[2] But “disagreeing on the content, meaning and application of the law” is precisely what separate concurrences are aboutas well, in ways that may be less dramatic but are often as profound and as potentially impactful as many dissents.  As Scalia once said, a judgment that gets the reasons wrong gets everything wrong that it is the function of an appeal court decision to provide;[3]it follows that minority reasons identifying that species of error are just as functional, and just as important, as minority reasons that challenge the outcome as well.

To step back for a moment: there are essentially three different kinds of separate concurrence. The first is what we might call the “just one more thing” concurrence,which expresses agreement with the majority but wants to add one additional related thought about the law that the writer could not persuade their colleagues in the majority to sign on to. The second is what we might call the “one less thing” concurrence, which expresses general agreement with the majority but specifically excludes one or more elements of the majority reasons; depending how significant those elements are, and how many other judges sign on to it, this can sometimes have real implications.  But the third kind, and as it turns out (at least in Canadian practice) the most common of the three, is the “by another route” concurrence, which opens with some variant of the apparently innocuous statement “I reach the same conclusion, but for different reasons.”  This is not innocuous at all;it is as serious as judicial disagreement gets, so much so that McLachlin J. (as she then was) once described herself as “respectfully dissenting” from the majority even though she was at the time agreeing that the immediate appeal should be dismissed (in R v Potvin [1993] 2 SCR 880).  Although she seems to have repented from this terminology, I remain convinced that she was on to something.

The distinctions I am making are highlighted by two important developments on the Supreme Court of Canada.  The first is a consistent practice dating back several decades that distinguishes between unanimous (or majority, or plurality) judgments and minority(dissenting or separately concurring) reasons;this replaced the earlier practice whereby any set of reasons delivered by a judge was referred to as a “judgment”.  The term “dissenting judgment” has become an oxymoron when applied to the current Court, although it was used by the Court itself before the late 1960s and still is appropriate for jurisdictions (such as the Ontario Court of Appeal) where the parallel labeling practice has not been adopted.  The second is a decision-delivery process that highlights the judgment (or at least the initial attempt at a judgment) by systematically framing other sets of reasons as responses (“I have read the reasons”).[4]  The joint impact of these two developments is to flag the significance of non-dissent disagreement in a very transparent way,although it is only making more visible implications that apply even in the absence of such explicit signals.

When and why and how does this matter?  To simplify the context, let us take the most dramatic position and assume a nine-judge panel that has divided 5-4 on the outcome and then 4-1 on the reasons.  We have an outcome, but what do we do about the reasons for judgment?   Is there a plurality judgment, and if so which set of reasons earns the label?  Or is there no “judgment” at all?

That depends on the nature of the disagreement between the various fragments of the majority.  If the solo judge is writing reasons of the“one more thing” variety, then we have a separate concurrence that has explicitly lined itself up with and behind the four-judge reasons in such a way as to make those reasons the judgment.  If those reasons are of the “one less thing” variety, then it may well have displaced the other reasons to become the judgment itself (because the “rule” as to which fragment of a divided majority is the judgment is not “largest fragment” but“narrowest legal grounds” – for an example, see Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791).  But if the disagreement is of the “by another route” variety, then there may well be no “judgment” at all, which is to say that there is no majority position on the law that explains the outcome in way that clearly establishes precedent.  For the Supreme Court of Canada, this only happens about once a year, but the point is that it does happen – the most recent examples are Haaretz.com v Goldhar, 2018 SCC 28 and Centrale des Syndicats du Québec v Quebec (Attorney General), 2018 SCC 18. Or consider the even more recent case of Mikisew Cree First Nation v Canada, 2018 SCC 40, which was unanimous as to outcome but with four different sets of reasons, all of comparable length but none attracting more than three signatures on a nine-judge panel; the decision is either unanimous, or 7-2, or 5-4, depending which of the major issues attracts your attention.  Gans’s “great assenters” label hardly seems appropriate.

But my concerns apply more broadly than these dramatic and unusual developments.  More generally we might say that behind every dissent, especially one that draws multiple signatures, lurks a disagreement deep enough that it might one day grow into a dramatic explicit abandonment of the majority’s jurisprudential position – like the reversal of the 1987 Labor Trilogy (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313PSAC v Canada [1987] 1 SCR 424RWDSU v Saskatchewan [1987] 1 SCR 460) twenty years later in B.C. Health Services (Health Services and Support-Facilities Subsector Bargaining Association v British Columbia, 2007 SCC 27, [2007] 2 SCR 391) on the status of collective bargaining under the Charter’s guarantee of freedom of association, or Carter’s 2015 repudiation (Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331) of the 1993 Rodriguez decision (Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519) on the constitutional status of the ban on assisted suicide.  By a similar logic, behind every separate concurrence (but especially those of the “different route” variety, and especially those joined by several other judges) lies the potential for a less visibly dramatic but comparably significant evolution, perhaps to the extent of having the separate concurrence gradually displace the one-time majority incitation frequency (which again is something which has happened more than once).

Differences over reasons matter because reasons are what judicial decisions are all about; the evolution of the reasons explaining outcomes is what brings about much of the incremental change in the law.  This makes it a serious mistake to assume that some judicial disagreement is necessarily less important simply because it does not involve disagreeing on the outcome as well as on the reasons that justify that outcome.   When is it that judicial disagreement doesn’t matter?  Only when we are so shortsighted as to ignore it.


[1] I admit that I wrote both of them: see Peter McCormick, “The Choral Court: Separate Concurrences on the McLachlin Court 2000-2004Ottawa Law Review, Vol. 37 (2005-6); and Peter McCormick, “Standing Apart: Separate Concurrence and the Supreme Court of Canada 1984-2006McGill Law Journal Vol. 53 (2008).

[2] That said, I think it is not impossible for judges to disagree on the outcome without disagreeing on the central legal issues and their precedential implications; my leading candidates would be R v Therens, [1985] 1 SCR 613 and Andrews v Law Society of British Columbia [1989] 1 SCR 143, the point being that for both of them the major precedential finding on the constitutional issue is made and explained in the dissenting reasons.

[3] Antonin Scalia, “The Dissenting Opinion” 1994 Journal of Supreme Court History p.33

[4] Peter McCormick, “Structures of Judgment: How the Modern SupremeCourt of Canada Organizes Its Reasons” Dalhousie Law Journal, Vol. 32 (2009)

Criticizing the Supreme Court

Why we should vigorously dissent when the occasion presents itself.

What is the generally accepted scope of criticism for the Canadian judiciary?

This question was brought into stark relief last week, with a post from co-blogger Leonid Sirota and a similar post from me criticizing, in no uncertain terms, Justice Abella’s recent comments about the role of the Supreme Court in Canadian society. Leonid received criticism for his post, with others positing that there should be a presumption of good-faith when criticizing the judiciary.

It strikes me that the general reaction, while itself in good faith, ignores the nature of judicial decision-making in modern day Canada. The so-called “countermajoritarian difficulty” is, to some, a non-starter for discussion in Canada, because Parliament and the provinces (read: Canadians) themselves gave the strong-form power of judicial review to the courts in the 1982 constitutional negotiations. Within this argument is an admission that the court’s role—itself a product of democratic consensus—cannot usefully be criticized on democratic grounds. It is reflective, according to Justice Abella, of a broad consensus among Canadians that the court should be advancing values and principles that at one point were the responsibility of the legislature.

So be it. But with great power comes great responsibility. And if we are to accept a role for courts in legislating, then courts should be subject to the very same criticism that is leveled at politicians of all stripes. If courts are ruling on matters central to who we are as Canadians, and if they are doing so because we gave them that power through democratic channels, we should be responsible for monitoring our choice. In that sense, the judiciary’s great power should be checked by watchful criticism just as Parliament’s judgment is criticized.

The response to this is predictable, and it is raised by Justice Abella: the difference between the judiciary and the legislatures in our system is so important that it is given constitutional protection. Judicial independence is a cherished principle because it allows the courts full scope to check majoritarian passions, which is sometimes necessary in a society based on constitutionalism and the Rule of Law. In this sense, we should not undermine judicial independence through robust criticism of the judiciary, lest it invite enterprising Trumpian politicians to rail against the courts and reduce the public’s trust in these hallowed institutions.

The conflation between judicial independence and criticism is quite unfortunate. Judicial independence is indeed an important constitutional requirement, one that should be preserved. But judicial independence should not stop us from criticizing the judiciary when it goes too far, in light of other constitutional principles—including the separation of powers. Parliament is supreme within constitutional boundaries, but this does not stop any one of us from vigorously criticizing parliamentarians, even with invective language. Even lawyers, defenders of the institutional integrity of law, do this on Twitter from time to time when talking about Justin Trudeau, Doug Ford, Jim Watson, etc etc.

If one views the court as carrying immense power, it is natural to err on the side of promoting vigorous, powerful dissent rather than muddy agreement or assumptions of good-faith. We can always assume good-faith, but that gets us nowhere near the substantive justifications for a court decision, nor does it allow us to criticize a particular judge’s thought process and reasoning. Something may be in good-faith but totally and completely contrary to fundamental law; or it may be the result of several logical fallacies, or an oversized view of the judicial role unsupported by our history or traditions. It may be inevitable that we have to mention a judge’s name in criticizing her thought process, and if judges are public figures, they should expect nothing less. In this sense, short of the marginal cases where one lobs horrible insults, the judge and her worldview are inseparable from the things she says and the public pronouncements she makes.

In other words, if a judge of a particular court views her job as deciding value judgments, that same judge cannot then hide behind judicial independence as a protection against vigorous criticism. The Charter did not entrench courts. It entrenched a Constitution, the basis of which derives from popular support represented by legislatures. We, including those in the legal profession, have the right and the responsibility to vigorously criticize judges. If a line is to be drawn, it should be drawn inclusive of this important principle. In the same vein, in a society where judges carry great power, histrionics and celebration of those same judges should be avoided, much in the same way that we view politicians with a hint of distrust. This is not a malevolent consequence of our system, but it should be the natural reaction of human beings who have delegated broad powers to others to govern them.

Delusions of Grandeur

Justice Abella sets out a vision of the Supreme Court as arbiter of national values

I didn’t realize that writing op-eds for the media was part of the judicial job description, but apparently it is. There was of course Brett Kavanaugh’s instantly-notorious op-ed in the Wall Street Journal. And, ten days ago, Justice Abella followed in now-Justice Kavanaugh’s footsteps, with an op-ed of her own, in the Globe and Mail. The op-ed is an adaptation from a speech given on the occasion of the 70th anniversary of the Supreme Court of Israel; but Justice Abella, presumably, thinks that it deserves a Canadian audience as well as an Israeli one.

Why that ought to be the case, I am not quite sure. Part of the op-ed is meaningless twaddle: we have, Justice Abella tells us, of instance, a “national justice context” that is “democratically vibrant and principled”. Part is rank hypocrisy: the Supreme Court’s “only mandate is to protect the rule of law”, says the person who has devoted many a talk to criticizing the very idea of the Rule of Law and arguing that it had to be replaced by something called the rule of justice. Part is rotten grammar: “human rights is [sic] essential to the health of the whole political spectrum” (emphasis removed). But all of it is a self-assured presentation of a role for the judiciary that has nothing to do with the Rule of Law, and this bears commenting on.

Justice Abella begins by proclaiming that the Canadian Charter of Rights and Freedoms sets out “a uniquely Canadian justice vision, a vision that took the status quo as the beginning of the conversation, not the answer”. One might be tempted to think that this is a reference to section 33 of the Charter (which, for all its flaws, is indeed “uniquely Canadian”), or at least to some version of the “dialogue theory”, according to which courts and legislatures both participate in the elaboration of constitutional rights. But this would be a mistake. Justice Abella likes her judges “bold”, and her legislatures obedient. The “conversation” to which she refers only involves the members of the Supreme Court.

And while she begins by seemingly conceding that “[t]he Charter both represented and created shared and unifying national values”, Justice Abella then argues that it is the Supreme Court that has developed “a robust new justice consensus for Canada”. It is the Supreme Court that serves as “the final adjudicator of which contested values in a society should triumph”. (Wait… didn’t the Charter already represent and create shared values? How come these values are, after all, contested?) Fortunately, says Justice Abella, the Canadian public and its elected representatives have fallen into line and followed the Supreme Court’s moral leadership: “[c]riticisms and questions were of course raised, but usually with civility.” If Canada is committed to “pluralism and diversity”, rather than “obliteration of the identities that define us”, that’s because “[a]ll this came from the Supreme Court”, and its teachings were accepted by both “the public” and “the legislatures”.

Hence the empowerment of the Supreme Court, coupled with its independence, is all to the good. “[D]emocracy, Justice Abella insists, “is strengthened in direct proportion to the strength of rights protection and an independent judiciary”. Indeed, the very “humanity” of a country would be imperiled by attacks on judicial power. Hence Justice Abella’s plea in defence of the Supreme Court of Israel, delivered, she says, in her capacity not only “as a judge”, but also “as a citizen of the world”. (I assume Justice Abella has not been shy about criticizing the feebleness of the judiciary in countries like Russia and China, too, though I don’t think she has published op-eds about them. Perhaps she has even criticized the backward ways of the United Kingdom, Australia, and New Zealand, which haven’t seen it fit to remit the adjudication of contested values in their societies to the courts, though I can recall no op-eds on that subject either.)

I have no firm views about whether Canadian judges should go around the world lecturing other countries about how to organize their constitutional arrangements, whether in their capacities as citizens of the world or as public officials. (How many ordinary citizens of the world are, after all, invited to give pompous speeches, and allowed 1200 words of op-ed space in a national newspaper to bring them to hoi polloi?) I do, however, have some thoughts on the substance of Justice Abella’s views regarding the role of the Supreme Court in Canada’s constitutional structure. Co-blogger Mark Mancini has already presented his, but my take is somewhat different, so I hope the readers will forgive a measure of repetition.

Mark stresses the fact that, if the Supreme Court is to be the arbiter of national values, it is not at all clear why it should be staffed by judges—that is to say, by former lawyers, who are not trained for or especially good at this task. Why not economists and philosophers instead? Mark writes that

if courts make abstract, political, and resource-intensive value judgments for the society on the whole…—if we have sold the legislature down the river—then they should at least be good at it.

And if the courts are not, after all, to be replaced by philosophical-economic colloquia, that’s probably because what we really want is for judges to stick to law.

I largely agree with this, but there is an additional move in Justice Abella’s argument that Mark does not address: the claim that adjudication by the independent Supreme Court is somehow democratic and that, indeed, democracy is strengthened the more powerful the court is. I think it is a crucial argument. After all, legislatures, which Mark doesn’t want to “sell down the river”, are also staffed by people who tend to have no particular expertise in either economics or philosophy, and who are subject to all manner of perverse incentives to boot. Why should they be making value judgments for society? The generally accepted (which isn’t necessarily to say correct) answer is, because they are democratic institutions. That’s why Justice Abella wants to claim the democratic mantle for the institution that she extols (as do others who make similar arguments).

How successful is the claim? In my view, not very successful at all. It starts from the premise that there is more to democracy than elections. Let us grant that. Still, there are important question that need answering. What is this “more” that a polity ought to have, beyond periodic elections, to be counted as democratic? Jeremy Waldron would mention things like separation of powers, meaningful bicameralism, and “legislative due process”, rather than judicial review of legislation. Justice Abella doesn’t even consider these possibilities, and thus does not explain why they are not sufficient. She thus does little to justify judicial review of legislation at all, let alone the robust, value-defining version that she favours. Others would add federalism and federalism-based judicial review, but not necessarily the rights-enforcing variety.  And even granting the insufficiency of structural devices to foster and protect genuine democracy, one can doubt whether it is this form of judicial review that we should favour. Aren’t more limited versions, along the lines of John Hart Ely’s “representation reinforcement” or the Carolene Products footnote 4‘s special protection for “discrete and insular minorities”) sufficient? Justice Abella has no answer to this objection either.

Instead, Justice Abella is content to assert that more judicial power is better, including for democracy. Surely, this isn’t necessarily so. Justice Abella herself, and most Canadian lawyers, would likely be horrified at the idea of judicial review enforcing property rights and freedom of contract against democratic majorities. They would insist, as Justice Holmes did in his dissent in Lochner v New York, 198 US 45 (1905), that “a constitution is not intended to embody a particular economic theory … It is made for people of fundamentally differing views”. (75-76) (The only exception to this, of course, concerns labour unions; fundamentally different views regarding their role in the economy have been read out of the Canadian constitution by the Supreme Court, led by Justice Abella.) On reflection, everyone—including Justice Abella—would agree that the protection of rights by an independent judiciary is not, in fact, always good. At the very least, it matters which rights are protected—and if it is the judiciary that effectively decides this, then it matters how it uses its power to do so.

This brings me to Justice Abella’s most remarkable claim—that it is indeed the Supreme Court that defines not just our constitutional rights, but Canadian values more generally. Mark characterizes this is “judicial supremacy”, but I prefer using this term to mean unyielding judicial control over constitutional meaning (the way Professor Waldron does here, for example). Justice Abella’s ambition is not so limited; she is not content to decide what our supreme law means; she wants to be the ultimate authority on what Canadians believe in. This is shocking stuff. In a free society, there can be no such authority, whether in the Supreme Court or elsewhere. In a free society, one cannot point to the constitution and say, Thatcher-style, “this is what we believe”. Citizens in a free society disagree, including about fundamental values. A constitution is only a judgment, albeit one reached by a super-majority—not, mind you, an actual consensus—about which of these values will be translated into legal constraints that will be imposed on the government until the constitution is amended. The courts’ job is to interpret these legal constraints, as they interpret other law; it is not to dictate “which contested values in a society should triumph”.

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority. It is unfortunate that a person so utterly misguided holds an office with as much power and prestige as that of a Supreme Court judge. Still, as important as this office is, it is less significant than Justice Abella imagines. We remain free to reject the values the Supreme Court would have us subscribe to. When these values amount to uncritical polite deference to philosopher-kings in ermine-collared robes, we have very good reason to do so.

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.

Vavilov: Doing the Administrative State’s Dirty Work

Over the next few weeks, I will be taking some time in this space to summarize the submissions in the upcoming Dunsmuir review: the cases of Vavilov and Bell/NFL. Today I will focus on Vavilov, and the proposals offered by both the Appellant (the Government of Canada) and the Respondent (Vavilov) for the standard of review of administrative action. As I’ll explain, on balance, the Respondent’s formulation is most consistent with the fundamental function of judicial review.

I should note at the outset that I am the Vice-President of the Advocates for the Rule of Law group, which is intervening at the Court in the Vavilov and Bell/NFL appeals. My comments below should be read as only my view on the merits of the parties’ submissions.

Facts

In many ways, Vavilov is a perfect case to test the merits of Dunsmuir. It is a case of pure legislative interpretation. Under the Citizenship Act, persons generally born on Canadian soil receive Canadian citizenship (under the principle of jus soli embedded in s.3(1)(a) of the Citizenship Act). There are, however, exceptions contained in s.3(2)(a), (b), and (c) of the Citizenship Act:

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

The Vavilov case turns on s.3(2). Vavilov was born in Canada to Russian parents who were spies for the Russian government. The parents lived in Canada under assumed identities. But for Vavilov, he was always Canadian. He did not have any suspicion that his parents were covert agents.

In 2010, while living in the US with his family, the FBI arrested his parents. This was the first time that Vavilov was made aware of his parents’ identities. Subsequently, the Registrar of Citizenship cancelled Vavilov’s citizenship, on the conclusion that s.3(2) of the Citizenship Act applies. To the Registrar, since Vavilov’s parents were not citizens or lawfully admitted to Canada, and because they were “employees of a foreign government” under s.3(2)(a), Vavilov was not entitled to citizenship.

The Federal Court of Appeal disagreed with the Registrar’s conclusion. On the standard of review, the Court noted that this is a case where the margin of appreciation was exceedingly narrow for the Registrar, for three reasons: (1) the interests of the individual affected were elevated in this case; (2) the Supreme Court had conducted searching review of immigration matters in its recent cases and; (3) the reasons were inadequate.

On the merits, the Court concluded that the words “…employee in Canada of a foreign government” must be read ejusdem generis with the words preceding it. According to the Court, the common theme underpinning the s.3(2)(a) category was the concept of diplomatic privileges and immunities. Section 3(2)(a) was designed to apply only “to those employees who benefit from diplomatic privileges and immunities” [45]. This conclusion was supported by the context of the provision. Sections 3(2) (c), for example, referred to privileges and immunities granted to persons referred to in s.3(2)(a), indicating a legislative intention that persons in s.3(2)(a) are only those with privileges and immunities. International law also supported this conclusion—the Citizenship Act “borrows many of the same phrases that the Vienna Convention on Diplomatic Relations uses in the context of diplomatic immunity” [74]. Under the Vienna Convention, certain employees of a foreign government have immunity, specifically persons connected with the diplomatic mission. Persons not associated with the diplomatic staff are outside of the Convention, and to the extent that Convention is adopted into Canadian law, Vavilov’s parents were therefore outside the Citizenship Act exception to jus soli citizenship [58].

For our purposes, the Federal Court of Appeal’s concerns also extended to the process of reasoning by the Registrar. The Court noted that “[O]n the central statutory interpretation issue before us, the Registrar said nothing” [38]. The Registrar, as is common in administrative law, apparently relied on a report prepared by an analyst. But that report “contains only one brief paragraph on the statutory interpretation issue, and a very limited one at that” [39]. The Court was concerned that the decision was immunized from review, because it could not be sure that the central statutory interpretation issue was even considered.

The Government’s Submissions

With the facts of the case in the backdrop, the Government began its submissions by outlining its proposal for revisions to the standard of review framework set out in Dunsmuir. The government set out its proposal clearly in the first paragraph of its factum:

The standard of review should be deferential, subject only to limited exceptions where the foundational democratic principle and the rule of law make it clear that the courts must have the final word.

The motivation behind this proposal is the mere fact that the legislature granted authority to an administrative body [49]. To the government, delegation=deference.

So, we have a rule (rather than a presumption) of deference for even more matters than Dunsmuir and its progeny prescribed. Notably, no longer do we have the correctness categories of true jurisdictional questions or the category of questions of central importance to the legal system and beyond the expertise of the decision-maker.  This general category of deference applies not only to the result reached by the decision-maker but its process of reasoning. For the government, administrative decision-makers under the ambit of government should not be expected to undertake the type of statutory interpretation analysis that courts undertake [4]. And, the decision-makers should not be expected to make explicit findings on matters of statutory interpretation [60].

The only exceptions to this general rule of deference are constitutional questions (where a law is challenged before a decision-maker on constitutional grounds) and on issues of procedural fairness.

On the merits, the government argues that there was a cogent basis for the Registrar’s decision. The government highlighted that in previous versions of the Citizenship Act, there was a requirement embedded in the citizenship exception that representatives or employees of foreign governments have official accreditation, or any connection to a diplomatic mission [84]. That requirement no longer exists, and the Registrar pointed this out, concluding that the wording in s.3(2)(a) was meant to encompass additional individuals beyond just those with immunities and privileges. Since the decision-maker canvassed this legislative change, some case law bearing on the problem, and other factors, the government argues that this is a sufficient basis to uphold the legality of the decision on its deferential standard.

It appears, for the government, that this alone is enough on its prescribed intensity of review. The government argues that if there are “additional relevant interpretive factors which the administrative decision-maker did not consider, a court may examine such factors in order to discover whether the administrative decision-maker’s interpretation can be sustained” [89]. These “additional relevant interpretive factors” are the text, context, and purpose of the statute that the Registrar was tasked with interpreting. On an interpretation of these factors, the government argues that the decision is legal.

Vavilov’s Submissions

The Respondent’s proposed standard of review framework is from a different world than the government’s. He proposes a two-part framework. First, so-called “discretionary decisions” are reviewed for reasonableness. Second, questions of law are reviewed on a correctness standard. On this second prong, the Respondent concedes that the view of the decision-makers on the “purpose and policy of its own statutes will continue to deserve respect” [59]. However, courts will still have to review the administrative decision-makers’ view of its enabling statute, independently.

The Respondent also, instructively, responds to the government’s proposed standard of review framework. He first notes that while deference to administrative decision-makers presumes trust on the part of these decision-makers, “It is worth recalling that some of the most regretted episodes in Canadian history were the work of federal statutory decision-makers exercising delegated authority” [33]. And, the Respondent also notes that the government’s submission was basically an attempt to insulate its statutory decision-makers from review. Under the government’s formulation, for example, expertise is also always presumed—“no matter how limited the statutory discretion that Parliament gave to the decision-maker or how insubstantial their real expertise” [53]. Particularly on this front, the Respondent notes that the Registrar under cross-examination said that she was “not a lawyer” and therefore did not know the legal “significance” of words in the provision [102].

On the merits, the Respondent argues that the Federal Court of Appeal’s interpretation was right, particularly noting that the Registrar/analyst interpretation did not address the legislative context of s.3(2), particularly s.3(2)(c).

Analysis

In my view, the Respondent accurately describes the implications of the government’s view. Particularly, the Respondent’s proposal is better than the government’s on a number of fronts if we view the matter from the basis of the fundamental function of judicial review—quite aside from any constitutional mandate for superior courts to police the boundaries of the administrative state.

First, most of Canadian administrative law doctrine is premised around the idea that the administrative state is a collection of virtuous experts creating good public policy and fairly adjudicating disputes. But the Respondent points out that this is far from the case. In fact, the state’s statutory creations have been perhaps the greatest purveyor of discriminatory treatment in the history of Canadian society. Far from being “flexible and expert,” (Edmonton East, at para 22) sometimes administrative decision-makers have been unfair, discriminatory, and even racist: particularly, the examples cited by the Respondent of the deportation of Japanese Canadians and the experience of Aboriginal peoples with residential schools are apposite. This is not to say that government agencies today have designs to discrimination. But it does mean that government agencies can make irrational decisions—particularly ones that are inconsistent with enabling law or the facts and record before it.

So, contrary to current scripture, it is not unreasonable that some would question the lawfulness of state action at the outset. And this is where the idea of a going-in rule of deference loses its force. The government wishes to create a system where state action is presumably lawful; where the mere fact of delegation speaks to the degree of deference owed by courts to a decision-maker. But on simple logical terms, a decision of a government to delegate to a satellite decision-maker says nothing about the degree of deference owed to that decision-maker by courts. Governments delegate to administrative decision-makers for a whole host of reasons: (1) the legislature does not want to spend the time setting up a complex regulatory scheme ex ante; (2) the legislature doesn’t care about the intricacies of the particular issue at hand, and wants someone else to deal with them; (3) the government legitimately feels that it does not have expertise in a particular matter; (4) the government does not want to make politically-charged decisions and wants to foist the political heat on someone else. More reasons abound. But the very fact of delegation says nothing about how courts should view that delegation, given that the reasons motivating delegation are so variable.

Quite the opposite from the traditional story, the potential for legislatures to shirk responsibility for important matters may invite scrutiny by courts. Delegation creates a form of distance between legislatures and decision-makers that makes it difficult for courts to conduct review. The idea is that a law passed by the legislature sets a standard—and decision-makers, relying on their own practices or ideas of what is right, and the informational asymmetry that they enjoy, can “drift” from the text of the law by which they are bound. This principal-agent problem invites, rather than counsels against, the scrutiny of courts.

On this front, the government’s standard of review proposal makes it more difficult for courts to determine whether a decision-maker is acting lawfully. Perhaps the most pernicious of the proposals is the idea that courts should presume deference on implied interpretations of law. One of the most common rationales for deference, put forward by the government above, is the idea that Parliament’s decision to vest power in an administrative decision-maker in the first place is legally significant. Even if we accept this logically deficient rationale, deferring to “implied” interpretations of law raises the prospect that the court is deferring to nothing. This is because it will be difficult for courts to determine whether the interpretive difficulty faced by the decision-maker was even addressed, let alone in a substantive way, if there is only an “implied determination.” Not to mention, of course, that if Parliament delegated to a decision-maker the power to make a decision, we should expect that a decision be made, not merely “implied.”

This is even more so where there are multiple analytical paths to a particular result. It may be easy in some cases for courts to draw a direct line to a particular analytical path from a result—in such cases, it may be easy to say what sort of interpretation is “implied” (putting aside the objection that it is the job of the decision-maker to positively pronounce on the matters it has been entrusted with by the legislature). But in most cases, if it is truly the case (as most argue) that statutes can fairly bear more than one meaning, then the reasoning employed to get to a certain result is quite important on judicial review. Where the decision-maker has multiple options, and has failed to pronounce on its reasoning, the court is left in the unenviable position of having to guess. In all cases, the quality of the reasoning adopted by the decision-maker—whether it addressed the text, context, and purpose of the statute, which cabins its discretion (McLean, at para 38)—is key. For the government to claim that these are mere “additional interpretive factors” is simply incorrect when it is the quality of the reasoning that determines whether a particular interpretation is lawful.

Vavilov shows why the government’s proposal is so flawed on both of these fronts. Even though we always presume expertise by decision-makers, the decision-maker in Vavilov basically admitted that she had no idea about the central interpretive difficulty in the case. She said she did not understand the terms of legal significance. The result she reached evinced this lack of understanding; she failed to take account of the whole of s.3(2) of the Citizenship Act and barely pronounced on the key interpretive difficulties. Yet, the text, context, and purpose of statutes are key to determining the range of reasonable outcomes available to the decision-maker. So, it is not true to say hers was a decision that fell within a range of reasonable outcomes, as Justice Gleason at the Federal Court of Appeal did in dissent. Quite the contrary, her decision was flawed precisely because her reasoning was flawed and wanting. It was unclear whether she took a proper analytical path to her decision. And yet, the government asks courts, on a hope and a prayer, to defer to this sort of reasoning merely because it is implied.

As Justice Stratas said in Bonnybrook, it is not the job of courts on judicial review to impersonate the decision-maker and fill in the gaps in deficient decisions. Yet the government’s proposal asks courts to do just that. Putting aside the constitutional objections to this posture, it fundamentally misconceives what courts are supposed to do on judicial review. Judicial review is designed to ensure decision-makers act rationally and according to law.

Courts cannot be conscripted into service by the administrative state to do its dirty work.

 

 

The Joke’s On Us

Canadians ought to care about who gets on the Supreme Court

Over the Thanksgiving weekend, the Beaverton ― Canada’s version of the Borowitz report ― ran a piece called Canadians thankful they can’t name single Canadian Supreme Court Justice. Remarkably enough, a number of lawyers in my social media feeds shared it ― with apparent approval. And of course a more reputable outlet published a rather similar story in all seriousness just a few months ago. I suppose one ought to be grateful that Canada has so far avoided the sordid spectacle of American “confirmation battles” generally, and that over the appointment of Brett Kavanaugh in particular. The ability of the Canadian governments to simply get their preferred candidates on the bench is, on the whole, a good thing. But it doesn’t follow that it is of no consequences who the judges of the Supreme Court are.

The Beaverton, parroting the national myth (aren’t they, like, suppose to make fun of things?), claims that “many Canadians were happy their court was quietly and deliberately applying the constitution”. This is, to use a technical term, bollocks. Just this year, the Supreme Court read the guarantee of free trade out of the constitution in R v Comeau, 2018 SCC 15; proclaimed, in defiance of fundamental principle, that administrative agencies can enjoy “plenary”, “unrestricted powers” in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (at [10] and [11]); and gutted religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32. This is not a court “quietly applying the constitution”; this is a court re-writing the constitution as its suits its fancy. Nor is this some sort of new development. Back in 2015, Grégoire Webber wrote that

Over the past year, the people of Canada have undertaken an important remaking of our constitution. We have given constitutional status to the Supreme Court, created a constitutional right to strike, and created a constitutional right to assisted death, among other changes. …

How have we done so? … We have … appealed to that straightforward constitutional amendment process called the Supreme Court of Canada.

Now, both in West Fraser and Trinity Western, and in some of the cases to which Professor Webber refers ― notably Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245, which “gave benediction” to the right to strike ― the Supreme Court was not unanimous in its rewriting or shredding of the constitution. There were fierce, and compelling, dissents. While no Supreme Court judge has taken a very consistent position in opposition to the Court’s majority view of its powers of constitutional amendment ― the Court was unanimous in Comeau, for instance ― some have been more forceful than others in resisting the trend. Justice Côté, in particular, has been a strong voice in favour of upholding the Rule of Law by opposing the empowerment of lawless administrative decision-makers.

And so it matters that there is only one Justice Côté on the Supreme Court; and that even with Justices Rowe and, especially, Brown, who sometimes join her in whole or in part, she is far from commanding a majority of the Court. It matters whether or not you agree with me that Justice Côté tends to be right (she isn’t always) and that most of her colleagues tend to be wrong. If you think that the majority of the Court is generally correct, and that Justice Côté and others who resist its assertions of judicial and administrative power are wrong, it also matters that there not be more Justices Côté, or even Justices Brown or Rowe. Indeed, the enthusiasts of judicial power in Canada understand this very well, which is why some were sufficiently upset when Justice Brown was appointed to the Supreme Court to demand that the Court prevent politicians from choosing judges in the future.

Smug self-satisfaction is, of course, Canada’ national disease, and self-congratulation at not being Americans is a widespread complication. Canadian lawyers are as susceptible to these things as their other compatriots. But we should know better. We should realize that Canadian judges are no more oracles than their American colleagues ― indeed, unlike some American judges, they don’t even pretend otherwise; witness Justice Abella’s repeated rejections of the Rule of Law as even an ideal to aspire to. We should understand that the Supreme Court’s relative anonymity, which it is only too happy to foster with “by the court opinions”, is part of what allows it to exercise powers with which, as even the Beaverton inadvertently suggests, many Canadians would not, in fact, be especially comfortable. If we cannot figure this out, the joke really is on us.

Anglin: Administrative Lawmaking

How administrators could make law in the dark of night.

In Anglin v Chief Electoral Officer, 2018 ABCA 296, the Alberta Court of Appeal dealt with a hidden issue in administrative law: to what extent are administrative decision-makers required to follow guidelines specifically contemplated by legislation?

In Anglin, the Chief Electoral Officer of Alberta imposed a $250 fine for breaching the Election Act. Anglin had typographical problems: “the sponsorship information on his election signs was printed in a font size smaller than that required by the Guidelines established under the Act, and was not sufficiently legible.” Anglin argued that the guidelines established by the Chief Electoral Officer do not constitute law and cannot form part of the governing statute, and as such a breach of the guidelines is not a contravention. To Anglin, there was no legal authority to impose an administrative penalty for breach of the Act [3].

The legislative context was dispositive to the Court. Under s.134 of the Election Act, candidates must ensure that ads comply with certain requirements “…in accordance with the guidelines of the Chief Electoral Officer” (s.134(2)). Under s. 134(3), the Chief Electoral Officer is required to “establish guidelines respecting the requirements referred to in (2)” which deals with sponsorship information. The specific guidelines adopted in this case prescribed a legibility requirement along with a minimum font size.

Based on this “clear” language [9], the Court concluded that the statute itself incorporates the Chief Electoral Officer’s guidelines, and that the legislature “has the power to delegate and the guidelines, like other forms of subordinate or delegated legislation are all forms of law.” This delegation, to the Court, “is incidental to legislative sovereignty.”

The Court’s reasoning raises significant problems from a democratic perspective, even though it is likely consistent with governing authority; my problem is with that governing authority itself. The making of guidelines and soft law, taken too far and unrestricted by legislatures or courts, can do an end-run around the democratic channels of adopting law, susceptible as those channels are to citizen input.

We have a few rules, insufficient as they are, to control this risk. For example, a decision-maker cannot bind herself to non-binding guidelines to the exclusion of governing law; this would be a “fettering of discretion” (see Thamotharem, at para 62).  Despite express statutory authority to issue guidelines, those guidelines may not “have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them” (Thamotharem, at para 66). At the same time, for example, guidelines issued by the Human Rights Commission have been held to have the full force of law, even if they are formulated solely by the Commission (see Bell, at para 56).

The image of a spectrum is helpful here. As noted in Thamotharem, we could have guidelines that are issued without any statutory authority whatsoever—these guidelines are still, in the traditional account, useful for guiding the administrator’s decision and providing a foundation for reviewing its legality. At the other end, we could have guidelines that are adopted according to specific delegated authority, and which must be followed as if they were law; the Anglin case is a good example. In the middle, we could have a broad legislative authorization that allows an agency to simply issue guidelines without any indication as to whether they must be followed or not.

From a fundamental democratic perspective, all forms of guidelines issued in any of these ways are trouble for different reasons. If the guidelines in the first case are applied as if they were law, we have a classic fettering problem. If the guidelines in the third case are applied as if they were law, the people subject to the guidelines have no say over binding law to which they are subject. Perhaps one could argue that these democratic issues could be excused because (1) the legislature has the undisputed authority, short of constitutional constraints, to prescribe the level of procedure required for internal agency workings and (2) perhaps this is the price of a more efficient government. But the problem remains.

One might say that the Anglin case, from a democratic perspective, is not problematic at all; after all, here the legislature has said itself what is supposed to happen. But in reality, the situation is more serious. In every case, the legislature has approved the Chief Electoral Commissioner’s making of guidelines, and his power to apply them as if they were law formulated and adopted by the legislature. And from a public administration perspective, this is completely understandable. Why would the legislature want to expend the cost of conducting a deep dive into the font sizes required on a sign? This is, on the traditional account, clearly a matter for “expert” administrators.

But if we view the problem from first principles, the legislature has in effect delegated the actual power of making the law to the Chief Electoral Officer. And if we accept that such guidelines are “hard law,” then we must accept that the law could be passed in the dark of night, because administrative agencies control how and when these guidelines (read: laws) are adopted. The answer that the legislature authorized the delegation puts form before substance. The question is whether the legislature should be able to delegate the power to the Chief Electoral Officer in the first place, given that this law will not be adopted in the ordinary course of the normal legislative process.

The context of font sizes is a bad example for this argument because it is relatively unimportant. But if we allow this form of delegation writ large, extremely broad delegations of law-making authority would be permitted. A statute could simply have one line, saying “The Administrator of [whatever agency] is entitled to make Guidelines which have the force of law.” Because there is no restriction on the power to make laws in substance, these guidelines would bind as if they were law under the current authority.

The US has some experience with this phenomenon, with its nondelegation doctrine. In practice, United States courts rarely interfere with broad delegations. But at least they have a doctrine—that a delegation must be accompanied by an “intelligible principle” to guide agencies. Here, there is no such controlling doctrine.

A restriction on Anglin-type delegations would actually likely attack very few delegations and interfere minimally with good government. The delegation problem does not arise as strongly—(ie) as a strict form of delegation in substance—in a case where the legislature authorizes the agency to make guidelines to structure its discretion. Without knowing for sure, I’d imagine this is a more common form of delegation. But where the legislature simply allows an administrator to make law itself, this seems to be a bridge too far.