The New Administrative Law

Part I of a two-part series: why we need to reconceptualize the administrative state and our reasons for deference.

**This is the first in a two-blog series of blog posts about re-theorizing administrative law. This first post is about why the traditional justifications for the administrative state and deference to administrative law are wanting. The next post will be about my prescription for a new doctrine of judicial review, based on new theoretical commitments**

By now, it is rote for observers of Canadian administrative law to say that the mechanics of the law of judicial review are in dire need of repair. The Supreme Court at least tentatively agrees; currently under reserve is a series of cases that could lead to renovations in the law. I have written before why I think the Court is unlikely to do anything of substance with these cases. Upon reflection, I am even more convinced that, even if the Court does something, virtually any solution it will come up with will only tinker at the edges of the problems in Canadian administrative law. This is because the whole body of law is in need of re-conceptualization and theoretical re-justification. The Court is unlikely to accomplish that task.

Why do I say this? The fundamental assumptions undergirding Canada’s administrative law have not been calibrated to the political or social realities of the 21st century. Specifically, the reasons marshalled for why we defer to administrative agencies are the same today as they were in the 1940s. This is baffling. The empirical realities of the administrative state, in the current day–connected to our traditional understandings of parliamentary sovereignty and the Rule of Law (not in conflict, as is commonly supposed)–should inform whether or not courts defer to agencies.

For the most part, Canadian administrative law continues to be stuck in the thrall of American Progressivism—by which I mean that school of thought, dominant in the New Deal era, that had at least two heads (as Richard Epstein notes here). First is the idea that power could be delegated to persons in the public service who would always act in good-faith, and be faithful agents for the pursuit of substantive goals associated with the New Deal and small-p progressive, leftist politics. Coupled in this first head was a skepticism surrounding courts, which were perceived as mired in the conservative common law. Second is the idea, championed by people like Woodrow Wilson, and going back even further to Max Weber, that administration was a science; and that the powers of the state could be wielded by experts in an efficient manner for the greater good. This was not only an American invention—in Canada, we had our own band of administrative law Progressives, including John Willis, W.P.M. Kennedy, J.A. Corry, and later on, Harry Arthurs (for a good account, see R. Blake Brown “The Canadian Legal Realists and Administrative Law Scholarship, 1930-1940” (2000) 9 Dalhousie Journal of Legal Studies 36).

If the assumptions supporting this Progressive administrative law were ever true, they are no longer true some 80 years on. Consider first the substantive goals of the administrative state. For W.P.M. Kennedy, administrative agencies were means to achieve important progressive substantive goals. Kennedy said:

New standards must be developed in all fields of human endeavor which will be in harmony with the new social philosophy of the age. Care of the sick, the poor, the aged, and the infirm, elimination of slums, control of industry in the interests of humanity, protection of children, universal education, development of natural resources for the benefit of all mankind, all demand attention.

(“Aspects of Administrative Law in Canada” (1934) 46 Juridicial Review 203 at 221)

John Willis, in his classic article “Administrative Law and the British North America Act,” also wrote that:

The years of depression since 1929 have induced legislatures to pass laws which are right out of line with traditional ways of thought and therefore distasteful both to the those guardians of the past, the lawyers, and to their wealthy clients who have, of course, been adversely affected by these laws.”

Harry Arthurs later wrote, in his attack on judges, that the “inexorable logic of the law” “produced results which seemed contrary to social justice, and sometimes, to common sense.”

But the substantive understanding of the administrative state as a purveyor of social justice is no longer true, and it is unclear if the assumptions ever were. Reading the Kennedy, Willis, and Arthurs quotes, one is surprised at their unbridled faith in government–particularly administrative agencies–to achieve herculean goals. The problems with this sort of thinking are endless. First, to the extent the administrative law Progressives attacked the common law, the criticisms were profoundly ahistorical. The common law was not, as Arthurs suggested “contrary…to common sense.” As Richard Epstein points out (and has over the course of his 50 year career), the common law rules were actually much more subtle and sophisticated than modern Progressives suppose. In areas of contract, tort, and property law, common law rules were used since the time of Roman law as simple rules of thumb for organizing contractual relations and demarcating property boundaries clearly (consider the first possession rule of property law—a simple rule that is actually derived from Roman law). They were used all this time for a reason. While tradition is the bête-noire of modern legal thought, there is at least a reason to think—however naively—that people organized different legal systems across time and geographic boundaries in common ways for a reason. Ignoring these features of the common law seems unfair, even if the common law must be adapted to new realities.

Now, in the 21st century, administrative agencies are armed with the most repressive powers of the state. We are no longer talking about expert labour boards, the darling of Canada’s Progressive administrative law theorists, and the body that dawned Canada’s modern administrative law doctrine. Now, prison wardens make decisions about the rights and interests of prisoners, some of the most vulnerable of us. The prison situation is especially concerning. So-called “administrative segregation” is a matter of judicial review, because it is an administrative decision—an exercise of discretion, which Kennedy supposed would be used to help the “sick, the poor, the aged, and the infirm.” Yet solitary confinement is, by most accounts, one of the most repressive and arbitrary forms of punishment to which one can be subject. All a matter of administrative law and judicial review.

This is why it is surprising to see Progressives continue to be skeptical about the role of courts. Administrative law progressives had and continue to have a rather obsessive focus on A.V. Dicey without realizing that Dicey’s account of administrative law accepted the idea of delegation, but was aimed at attacking a particular sort of “administrative law”—the droit administratif of France. Dicey was simply concerned with how best to control administrative power; the question is not whether delegation should exist, but how best to control it. Yet, so strong was the Progressive faith in government, that Harry Arthurs said that he “took to wondering out loud whether courts had any role to play in any field involving social conflict or controversy.”

In my view, Dicey was not the unrealistic one here. The Progressives, with their unbridled faith in the power of the state, put all of their eggs in a basket with no bottom. They ignored the experience and thinking of many of those who came before. Consider the wise thoughts of James Madison and many of the US framers, who were so skeptical of government action that they took pains to divide and separate the functions of government; government was necessary, because men are not angels, but it had to be limited and controlled. Adam Smith, in his Wealth of Nations, expressed a similar moral skepticism about perfect, good-faith government agents:

By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the publick good. It is an affectation, indeed, not very common among merchants and very few words need be employed in dissuading them from it (456).

This is not to say that government is either a force for good or evil; such characterizations are far too simplistic. I only aim to say that there is a strong moral tradition of skepticism that the Progressives simply did away with, without an understanding of the nature of delegated power: it can be used in either political direction. It is profoundly disturbing to suggest that courts should not have a role to play in policing the boundaries of the arms of the state concerned with prisons, for example.

The substantive goals did not stand alone. For Progressives, the chosen means for accomplishing these ends were the “alphabet soup” agencies of the New Deal. Indeed, John Willis famously wrote that administrative law must be viewed as a “functional” matter: “Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Functional” (1935) 1 UTLJ 53). For Willis, this was true on two levels. Administrative law had to be studied as a functional matter. That is, we had to know what happened in the administrative state to actually understand administrative law. This is undoubtedly true. But Willis went further, arguing that “Expertise, avoidance of delay, reduction of expense—these are the basic reasons for the modern practice of giving the power of decision in many areas to deciding authorities other than courts.” Adding to that list was a desire for independence for these decision-makers (see Brown, at 50).

So, there are three functional reasons for deference at play here: (1) expertise (2) efficiency and (3) independence. I can only touch on these briefly, but they do not stand up to scrutiny as reasons for an across the board presumption of deference.

I have written before about expertise. The question is not whether expertise exists in the administrative state. Clearly, it does, whether intrinsically or through the development of “field expertise.” The question is whether expertise inheres in an agency as an “institution,” as the Supreme Court suggests in Edmonton East, such that we should defer as a matter of course. On questions of law, it is far from true that we should be confident to impose a rule (rather than a standard) assuming that agencies have this sort of expertise. Consider the case of Vavilov, currently under reserve at the Supreme Court. The analyst report, which formed the decision of the Registrar of Citizenship in that case, said the following (as excerpted in the Parkdale Legal Services brief):

[The analyst] confirmed that she was not a lawyer, had never gone to law school, and perhaps taken one course in administrative law as part of her degree in political science. She also confirmed that she was a junior analyst, had not relied on any internal policy guidelines or any other documentation…and had found nothing in her search of archives…

This statement does not inspire confidence in the expertise of a decision-maker. And this is not just reserved to the Vavilov case. Parkdale Legal Services outlines a number of other decisions, in the immigration context, where a decision-maker evinced a lack of expertise. It is completely unrealistic to transform this thin reed into a strong-form doctrinal presumption.

On the question of efficiency, this is perhaps one of the areas where the administrative state has failed most. At the Immigration and Refugee Board, Canada’s largest tribunal, the wait time for a refugee hearing, for example, was two years long as of November 2018. At the Ontario Human Rights Tribunal, delay appears to be the watchword, due to alleged partisan interference in the appointments process. I could go on. But delay, and lack of resources, hobbles the ability of administrative justice to be a system of justice at all—even relative to courts.

And, what’s more, access to the administrative state—like the administrative state itself—is sometimes a matter of government generosity. Consider the recent cuts to legal aid in Ontario. Former Justice John Evans of the Federal Court of Appeal recently wrote an article in the Globe and Mail, focused on the fact that cuts to legal aid will hamper the ability of refugees to have a fair shot at justice. How can a system that causes such rash injustice be labelled an “efficient” system of administrative justice? If litigants do not have equal access to the system, is administrative justice at all a serious alternative to the courts?

And on independence, the story is no better. The Supreme Court of Canada itself has held, in Ocean Port, that administrative decision-makers are simply creatures of statute, controlled by the executive. Governments of all stripes have treated them as such. Consider the case in Saskatchewan, where an incoming government fired all the members of the labour board. Or, consider the recent delays in appointments to the Ontario Human Rights Tribunal, which in turn impact the independence and functionality of the Tribunal.

Of course, a few examples does not a theory make, but it should be cause for one to at least reconsider the foundational assumptions of administrative deference. My point here is not to say that the administrative state must be abolished because its organizing premises are frayed. It is instead to point out that if courts are to defer to administrative decision-makers, there should be good and existent reasons for deference. And, I need not prove that all of the traditional justifications for administrative power are no longer true. Even if they are only untrue by half, there is a need to reconceptualize what substantive and pragmatic justifications undergird the system of administrative law.

The problem, as I will explore in my second post, is that these policy reasons for deference have been transformed by courts into legal reasons for deference, without a concern for whether Parliament has actually, itself, done so. These reasons do not even have the benefit of being empirically true in every case, and yet they are treated as such when the SCC uses them to justify a strong presumption of deference.

The Supreme Court, in the upcoming trilogy, is institutionally unable to deal with theoretical problems of this magnitude. In reality, lawyers, judges of courts the country over, academics, and politicians should be the ones rethinking how our administrative state operates. We need a new theory of judicial deference.

Abellian “Law”

It is with an utter lack of surprise that I yet again fill the virtual pages of Double Aspect with thoughts on another of Justice Abella’s comments on the nature of judging. Both Leonid and I have continuously written about how Justice Abella frequently displays a judicial arrogance  that is inconsistent with the role of a judge in a constitutional democracy, both descriptively and normatively. I hesitate to write yet again on the same subject.

But I am moved to do so by the utter lack of accuracy in Justice Abella’s recent speech at Fordham University, where she described a bastardized version of the Canadian approach to constitutional and statutory interpretation. Here are the comments in a release from Fordham:

“Our judges don’t draw lines over whether to follow a linguistic word approach or an intentionalist approach,” she said. “We just look at how we think this provision should be interpreted in light of all the things you worry about: what did the legislature mean, what do the words say, what was the purpose of the statute, all of that.”

Justice Abella discussed the importance of the Edwards v Canada case, more commonly known as the Persons Case, which concluded that women were eligible to sit in the Senate of Canada. In the 1929 decision, Lord Sankey stated that the British North America Act is “a living tree capable of growth and expansion within its natural limits.” Justice Abella spoke about this idea, the living tree doctrine, as a basic guiding principle.

“[The living tree doctrine] is constitutional but it’s also philosophically foundational,” she said. “It’s how we approach not only the constitution but also our statutes. What is the fair, appropriate, and just meaning of the phrase? We read it in the most reasonable way possible.”

I need not repeat yet again, from the constitutional perspective, why Justice Abella’s comments are wrong as a normative matter respecting the living tree.  I want to concentrate on the seemingly more mundane matter of statutory interpretation, and Justice Abella’s statements that we apply a “living tree” methodology in that context. She is flat-out, embarrassingly wrong as a positive law matter; but as a normative matter, the view is dangerous.

On positive law grounds, it is completely untrue that courts in Canada apply a “living tree” approach to the interpretation of statutes as a matter of course. The Supreme Court has held, time and time again, that statutes should given the meaning they had at the time they were adopted. This was the definitive statement of Dickson J in Perka, at 264-265, citing authorities noting that “The words of a statute must be construed as they would have been the day after the statute was passed…” and “Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held.”  Most recently, as co-blogger Leonid Sirota stated on Twitter, this was the approach adopted by the Supreme Court in R v DLW  where the Court cited Perka, noting that while broad terms might be afforded a more flexible interpretation, the original meaning governed in that case. Justice Abella dissented. So, contrary to her belief,  the general rule is that the original meaning of a statute applies.

This makes sense. No matter what one thinks the strengths of living constitutionalism are in the constitutional context, the argument loses force in the statutory world.  At a formal level, constitutions are restrictions on the legislature, and one could argue that they are developed by the judicial branch through strong-form judicial review, in Canada. But statutes are clearly the product of the legislative branch (or their delegates). Judges have no warrant–at least since 1688–to legislate. At a functional level, it could be true that Constitutions are not easily amended, and so judges should develop their meaning to new facts. But that same argument is so clearly wrong in the statutory context, where statutes are passed and amended by legislatures all the time.

One might try to steel-man Justice Abella’s comments by relying on the comments in R v DLW and other general interpretive principles. It is true that “dynamic interpretation” is indeed a distinct method of interpretation, recognized in Canada: see Ruth Sullivan on the Construction of Statutes at 175 (2014). While it is true that the Court in R v DLW and other cases have noted that statutory terms can take on a “dynamic meaning,” this is far from the ordinary rule, generally only applicable in defined circumstances given defined statutory language: see Sullivan, at 177. And even if it was, the dynamic approach is not inconsistent with original meaning, and it does not support Justice Abella’s broad misunderstanding of textualism. One can speak of two types of original meaning:

  1. Situations in which statutory terms should be statically applied to the same situations that were in their contemplation at the time of enactment.
  2. Situations in which statutory terms are broad and must be applied to new facts as they arise.

 

Both of these situations are consistent with original meaning. In the first case, both meaning and application are largely frozen at the time of enactment. Sullivan says an interpretation of this sort is justified when “…new facts are functionally equivalent or analogous to facts that were within the ambit of the legislation when it first came into force” (Sullivan, at 179), for example. In the latter case, though, the legislature has spoken more broadly, and this is where a “dynamic” approach enters the fray. But this does not mean that the statute receives a new meaning according to some Abellian idea of an unbridled living tree: it just means that its contours are applied to new facts. We constrain the meaning–the scope of application– using text, context, and purpose. I always use the example of the Kyllo decision in the US, in which the Court endorsed the proposition that the 4th Amendment (protecting against searches and seizures) applied to infrared searches of the home. The scope of the 4th Amendment always protected the home, and it applied to the new facts of infrared searches.

The situation, then, is much more subtle and sophisticated than Justice Abella suggests, and the subtletly does not work in her favour.

Undeterred, she goes on to suggest that courts in Canada take an “anything goes” approach to statutory interpretation, seemingly rejecting textualism. This mistake is even more bizarre, considering the very recent decision in Telus v Wellman, which I wrote about here. Justice Abella, in her Fordham talk, suggests that courts do not draw lines between “textualism” and “intentionalism” in Canada. But she herself attempts to do so (wrongly) in her dissent, at para 107 of the decision:

The debate between those who are “textualists” and those who are “intentionalists” was resolved in Canada in 1998 when this Court decided that “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. We do not just look at the words.

Not only that, but the majority in decision in Wellman comes down on the side of text over abstract, judicially defined purposes. Justice Abella was in dissent–she did not win the argument, for very good reasons. So, again, Justice Abella finds herself claiming that the law is something when it is not.

Two normative conclusions can be drawn about Justice Abella’s odd talk at Fordham, one about the merits of what she says the law is and one about the role of a judge in Canada. Take the latter first. It would be one thing if what Justice Abella said was an honest, innocent mistake. But I find it that hard to believe in these circumstances. Wellman just happened, and Justice Abella lost the argument she now claims she won. Why a judge in our democracy would say this—especially to an international audience—is unclear. We should expect better

The merits of the suggestion that courts in Canada apply a living tree approach to statutes are also lacking. First, as Craig Forcese said on Twitter, the suggestion would amount to a complete reversal of the ordinary structure of our Constitution. The judicial function is, to state what I thought was the obvious, completely separate from the legislative. Justice Abella seems to have much in common with the old English judge who told an unfortunate lawyer trying to give his best interpretation of the statute: “Do not gloss the statute, for we know better than you, we made it.” We’ve moved far beyond these days, and it is odd for a “progressive” judge like Justice Abella to suggest we go back in that direction. Parliamentary sovereignty should stand for something.

The suggestion that judges should make up statutory meaning as they go along would have positively corrosive effects in many areas of law. Criminal law is an obvious example, but administrative law is another. Judges, rather than Parliament, would be the master of agencies if they could expand or narrow the scope of delegated power exercised by these agencies depending on the judges’ particular worldview. Not only does this stand inconsistently with the Court’s own professed idea of deference, it is dangerous to subvert Parliament’s laws in service of a judge’s ideology.

And this, I suppose, is the point. While I believe that Justice Abella means well, she reveals an unfortunate arrogance that crops up in speech after speech. For one, she claims the law is her opinion when it is not. Then, she takes on the mantle of judging what a statute should mean, given her own impressions of what it requires. It takes someone with much self-confidence to do this. Whether or not we should have confidence in her is quite another matter altogether. A Supreme Court judgeship is not enough, in a democracy, to give its holder the mantle of deciding what laws should mean or which laws should apply. Someone who believes so is better suited to be a politician than a judge.

 

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

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

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

Facts

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

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

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

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

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

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

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

Analysis in the Case

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

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

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

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

Evaluation

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

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

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

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

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

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

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

End of a Scandal

An attempt to criminalize criticism of New Zeand’s judges is rejected by a parliamentary select committee

Last year, the New Zealand Parliament took up a bill to update and reform the law of contempt of court. A worthy endeavour, but one that was seriously flaw in at least one very important way, as I argued at the time: one of the ways in which the bill changed the law was that it not only codified but seriously expanded the common law offence of “scandalizing the court” ― that is, according to a classic definition in R v Gray, [1900] 2 QB 36, doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority”. (40)

Obviously, the common law offence, if understood broadly, might have applied to vast amounts of perfectly legitimate criticism, including of the sort that is this blog’s trademark, so the courts applied it sparingly and with an eye ― indeed both eyes ― towards preserving the freedom of expression in this context. Even so, the offence has been abolished by statute in the United Kingdom, and left in a zombie-like state in Canada following the decision of the Court of Appeal for Ontario in R v Kopyto, which held that, in its current form, the law of scandalising the court was not consistent with the Canadian Charter of Rights and Freedoms.

By contrast, the bill before the New Zealand Parliament would have expanded the offence, notably by criminalizing the expression of opinion ― including opinion honestly held on the basis of publicly known or fairly stated fact ― if that opinion could undermine public confidence in the independence, integrity, or impartiality of a judge or court. The bill would also have criminalized the true statements of fact having that tendency, unless the accused were able to prove their truth on a balance of probabilities ― thus trenching on the presumption of innocence. And, in addition to this, the bill would also have created enforcement powers that would have made it possible for the prosecutors to exact apologies and retractions from people merely suspected of having committed the “scanadalizing” offence.

In addition to blogging about this, I co-wrote (with Edward Willis) a submission to the Justice Committee of Parliament, which studied the bill. Dr. Willis and I were joined by a number of scholars from across New Zealand. We also presented our views to the Committee in person (we come in at ca. -1:04:07). Our submission recommended that the offence of “scandalizing the court” be abolished, but it also set out alternative provisions that could have ameliorated the worst abuses of the original bill, should the Committee have been inclined to preserve the offence. Of course, our submission was not the only one (though not all the submissions were directed at the issues that interested us).

The Committee delivered its unanimous report last week, and I am happy to say that the expanded offence and created in the original bill is now gone, as are, mostly, the novel enforcement mechanisms. The common law offence, as it now stands, remains, if I understand correctly. (Subclause 29(2) of the Bill provides that “[n]othing in [it] limits or affects any authority or power of a court … to punish any person for contempt of court in any circumstances to which [the Bill] does not apply”, which I think would encompass the contempt of “scandalizing the court”.) There is also a provision, a new Clause 25, allowing the High Court to order a person “to take down, or disable public access to” “a false statement about a Judge or court [such that] there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court”. An interim order can be made on a showing of an “arguable case”, but a final order requires the government to prove the falsity of the statement concerned on a balance of probabilities.

This is not perfect. It would have been better for the offence of “scandalizing the court” to have been abolished altogether. And while, in this second-best of all possible second-best worlds, take-down orders for information which has actually been shown to be false (with the burden of proof, albeit the civil one, being on the government) are not the biggest freedom of expression concern there is, I’m also not a fan of the low threshold for the making of interim orders. Still, much worse has been averted.

As Andrew Geddis ― one of the scholars who have joined Dr. Willis’ and my submission ― has put it,

the system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response.

The system has, indeed, worked remarkably well in this case, though when we say “the system”, we should also give credit to the individual members of the Justice Committee. We should also, however, recognize that this is a technical bill of a sort that neither triggers any strong partisan reactions nor makes for good political point-scoring. As Professor Geddis explains, the system isn’t working nearly well enough with the gun control legislation being currently rammed through the New Zealand Parliament; nor did it work especially well in the case of a recent bill to ban some offshore drilling, about which I have written elsewhere.

Professor Geddis also points out that, while the Justice Committee has recognized that it is wrong to punish people for expressing unpleasant opinions about the judiciary, or to make them apologize for it, the New Zealand House of Representatives still takes a different view where it is itself concerned:

 Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And … it can require that they apologise to an MP and to the House itself for committing a contempt.

This power is still used from time to time ― and not just against MPs, but against members of the public too. So there is still some way to go before the evil of compelled apologies is banished from the land. But the Justice Committee has, at least, taken a stand against allowing it to fester.

And I would like to think that, in some small part, this is because I raised hell, and encouraged others to raise hell with me. And of course others still engaged in their own hell-raising activities with which I had nothing to do. Some people, it appears, are not fans of this blog’s rabble-rousing ways. That’s their right, of course. But if the rabble is of the right kind, it can help do great things. As Boris Vian told us, en protestant/quand il est encore temps/on peut finir/par obtenir/des ménagements ― by protesting while there is still time one could end up getting some concessions.

Lessening Us: The Supreme Court and SNC-Lavalin

The SNC-Lavalin episode gets worse, if that is possible.

In an apparent effort to distract from the SNC-Lavalin affair, a leak on Monday claimed that the rift between Prime Minister Justin Trudeau and former Attorney General Jody Wilson-Raybould began far before the term “deferred prosecution agreement” entered the public lexicon. Apparently, it all started when Wilson-Raybould recommended Manitoba Queen’s Bench Chief Justice Glenn Joyal to the Supreme Court of Canada. For those unaware, Chief Justice Joyal has, over the years, advanced a welcome antidote for the Charterphile Canadian legal community. His views are not extreme or inappropriate; rather, they are intelligent appreciations of the cultural and institutional changes that the Charter introduced. The fact that he was rejected out of hand for a Supreme Court appointment—and the fact the circumstances of his appointment have been leaked—are indictments of both Canada’s legal and political system.

The most important part of all of this is the morally repugnant way in which Chief Justice Joyal’s application for the bench was released by some unknown party. Originally, it was reported that Trudeau scuttled Wilson-Raybould’s recommendation because of his disagreement with Chief Justice Joyal’s views. Then, it was reported that Chief Justice Joyal actually withdrew his application, because his wife was suffering from metastatic breast cancer. The fact that this was leaked, and that Chief Justice Joyal’s personal life was implicated in the process, is a low for Canadian politics. No one should have to endure public scrutiny on a matter as personal–and tragic–as a cancer diagnosis.

What makes it even more tragic is that, as Chief Justice Joyal noted, his personal situation seems to be used as an agenda for the broader SNC-Lavalin controversy. The implication of all of this is that someone in the Prime Minister’s Office leaked the information to the press in order to show just how misguided Wilson-Raybould was as Attorney General. If there was any doubt, the episode shows just how far some politicos will go to undermine not only norms surrounding judicial appointments but also the personal lives of those in the way.

And, all of this for views that are not at all controversial and are important counterpoints to the ongoing debates about the Charter and its institutional features. A good example of Chief Justice Joyal’s welcome assessment of the major counter-majoritarian difficulty introduced by the Charter is his 2017 speech to the Law and Freedom Conference. The main theme of the speech outlined the consequences of the “judicial potency” that the Charter introduced, a feature that “was not anticipated back in 1982.” These consequences are ones that are not often discussed, are certainly true. For example, consider a few of the consequences Chief Justice Joyal noted:

  • The constitutional requirements imposed by the Charter do not “mesh” well with the legislative process, making it more difficult to make laws.
  • The Charter has moved important debates outside of the realm of the legislature and into the realm of courts.
  • This movement outside of the legislative realm creates “a public discourse dominated by the concept of ‘rights’,” one that is defined by “judicial formulations and tests.”
  • The political culture introduced by the Charter conflates constitutionality with policy wisdom, when there is no need to necessarily merge the two concepts.

Agree or disagree, these are all important consequences of the system of judicial review introduced by the Charter, and the way in which Canadian lawyers have reacted to that power of review. There is no doubt that the Canadian legal community largely suffers from “Charteritis,” (not my term–check out David Mossop’s 1985 article entited “Charteritis and Other Legal Diseases”). And for that reason, Chief Justice Joyal’s remarks in 2017 were a welcome appreciation of the symptoms of that disease.

But in the leak published on Monday, the nuance and force of Chief Justice Joyal’s conclusions were completely lost. Apparently, when Wilson-Raybould recommended Chief Justice Joyal to the bench, Prime Minister Justin Trudeau was concerned about the 2017 speech. Trudeau was apparently concerned that Joyal would be less willing to protect rights that have come from judicial interpretation of the Charter, including rights to abortion access and LGBTQ2 rights.

If this is true, this base understanding of Chief Justice Joyal’s legal views is completely wrong. There is nothing in his 2017 speech that would indicate a preference—one way or another—for any particular issue that would come before the Supreme Court, should he have been a judge. All of Chief Justice Joyal’s broader views are perfectly consistent with a respect for stare decisis and the cases that have entrenched rights, whether those cases were rightly or wrongly decided.

Chief Justice Joyal’s views have nothing to do with these issues, simply put. They merely stand for the idea that, in the age of the Charter, the legislatures have assumed a different role. This is simply an empirical fact. There are consequences to this. One is that, rather than dealing with issues through the cut-and-thrust of political debate, we have moved those debates into the courts, which are often ill-suited to deal with these sorts of problems. The issue of Aboriginal rights and title is a perfect example. Because of the recalcitrance of governments over generations, Aboriginal groups have, strategically, moved to the courts to vindicate their rights. But that does not mean that the judicial forum is a better place to do so. The Tsilqho’tin case is a good example of this—a case which took decades of time and untold resources to reach the Supreme Court. Even people who believe in the Charter, and in the judicial role that it introduced, should recognize that legislatures should still be important areas of public debate that should be equal constitutional actors in their own right, owed respect by the Supreme Court’s judges.

While it is perfectly appropriate for the Prime Minister to want to appoint people to the bench who reflect his view of the Constitution, those views should at least be informed and educated. Based on the media reporting so far, it appears that the Prime Minister was unwilling or unable to understand that one can have different approaches to Charter interpretation—or a less positive view of the broader implications of the Charter—and still have a respect for the document as a matter of constitutional law. Even if one thinks those views are wrong, this is no reason to misunderstand what Chief Justice Joyal’s views actually represent.

Taken together, this whole SNC-Lavalin episode continues to lessen us–our law and our politics.

Our Pythic Judges: SNC-Lavalin

In Ancient Greece, travelers from far and wide descended upon the Oracle at Delphi. Known collectively as the Pythia, these priestesses or women of Delphi, over generations, provided advice and counsel to anyone wishing to seek it. The Pythia were thought to channel the god Apollo. As the mythology of the Pythia grew, with kings and leaders of armies seeking counsel, no major decision was made before consulting the Pythia. 

We seem to be in a Pythic reality in Canada these days. All in the last month, we have been told that former Chief Justice McLachlin would investigate impropriety in the British Columbia legislature; that former Chief Justice McLachlin was also considered as a potential font of advice for Gerald Butts, the Prime Minister’s ne’er-do-well former Principal Secretary in the midst of the SNC-Lavalin scandal; and that former judges of the Supreme Court of Canada Justice Cromwell and Iacobucci were involved in the aftermath of the SNC-Lavalin case, representing former Attorney General Jody Wilson-Raybould and SNC-Lavalin, respectively.

This state of affairs attracted considerable commentary on Twitter, and I truly think it is a live question that should be debated in the Canadian legal community: what expectations should we have for retired Supreme Court judges (or judges generally)  in Canada?

One can think of two issues that this question invites: the ethical question and the democratic question. First, consider the ethics of the situation. No one denies that judges should be able, like all people, to have a productive and fulfilling post-retirement life. That could include work. After all, these judges have considerable talents that could be brought to bear in any number of situations. Work as a commercial arbitrator, counsel to a law firm—the opportunities are potentially endless.

On the other hand, there is a legitimate question whether judges should be doing certain kinds of work post-retirement. Judicial independence is not only about actual independence but the perception of independence. Though retired, it is certainly possible that a member of the public, objectively and reasonably looking at a particular former judge, could conclude that there is an independence problem if a former judge is using his or her talents in a way that impacts the perception of impartiality. There is at least an implicit recognition of this principle in the generous pensions we provide for those who have served Canada on the bench.

These principles are reflected in the scheme for mandatory retirement. The upshot of Canada’s mandatory age of retirement for judges is that, eventually, judges have to retire, even if they are not ready. In the United States, there is no mandatory retirement age such that judges—most recently Justice Antonin Scalia—sometime pass away while on the bench. There are benefits and drawbacks to the American approach. On one hand, when judges leave the United States Supreme Court, they are probably ready to truly retire, and there is less of a concern about independence. On the other hand, the Canadian approach “cycles” judges in and out of the system, and one might reasonably think that this cycling is for the better.

It’s hard to resolve this question, but I think it is probably best to err on the side of protecting the integrity of the judicial office. The role of the judiciary is too important in modern day Canada—perhaps more important than it should be, mind you—to risk even a perception of partiality. This does not mean that judges should be barred from work, far from it. It simply means we desperately need rules to govern the situation.

My larger concern is with the democratic side of the equation, and this is where modern-day retired judges seem to resemble the Pythia. I think it is unwise for questions about the law within the political branches to be referred to retired judges as if they are some standing committee to  resolve legal disputes in the abstract. This is not the role of the courts in the first place: courts require concrete facts connected to legal causes of action that are ripe for adjudication before they can weigh in. It should most certainly not be the role of retired judges, however eminent.

The effect of making a retired judge like former Chief Justice McLachlin or otherwise “an eminent Canadian jurist or panel of jurists” a first port of call in a case like SNC-Lavalin has corrosive pragmatic and legal effects. Consider the legal effect, first. Gerald Butts mentioned that the former Chief Justice was a potential option for advice, because of the fact that the law governing remediation agreements was new.  The goal was to consult the Pythic judges before the Attorney General would make a decision on SNC-Lavalin. This tendency—to punt the result to some advisory panel—erodes the role that the political branches of government should play in the interpretation and application of law, especially where the law is new. Novelty is no reason to punt the task of law-elaboration within the executive branch. Even if an advisory panel of retired judges was a legitimate idea—and it is not—questions like the ones posed in SNC-Lavalin are not easily amenable to judicial scrutiny. In this realm, the political branches of government should wear the responsibility and burden of making important decisions.

This is connected to the ultimate pragmatic effect of permitting this advisory practice to go unabated. As we know, Ministers of the Crown are politically accountable (or answerable, in other contexts) in the House of Commons for their actions. This concept of responsible government has the effect of providing a focal point for political accountability. But if a Minister, facing political heat, seeks to essentially delegate the power of making a tough decision to a retired judge, that delegation deflects democratic responsibility. Should other politicians disagree with whatever decision the judge renders and then the Minister adopts, the Minister can simply say that she followed the recommendation of the eminent retired judge. It is unlikely that those in the general public will wish to question the opinion of such an esteemed person, asked by the Minister to consider the situation and provide an answer. So, we have a diversion of political accountability, with a politically irresponsible judge essentially making tough decisions for a Minister. The incentive effect will be more of this advisory work sought by governments seeking to duck the hard decisions.

In a modern democracy, there is no Pythia to which we should appeal. Judges serve a defined and circumscribed role, and retired judges an even more circumscribed role. I do not think it is a best practice, except in certain situations, to ask judges to resolve politically difficult issues simply because the law on the issue is unsettled.

Romancing the Law

An ode to formalism and reflections on Runnymede’s Law and Freedom Conference

I had the pleasure of attending last weekend’s Runnymede Society conference in Toronto. As always, the conference was a welcome opportunity to meet with old friends and new, and to reflect on a number of pertinent issues in Canadian law.

Perhaps because of my own research interests in the last year, I was particularly interested in a theme that seemed to run throughout the conference: the degree of confidence that each of us has in law, particularly the statutory law. Justice Stratas’ talk with Asher Honickman highlighted that there are many in the legal community that, if not giving up on law, are questioning its relevance in a society that is now defined by greater calls for context, nuance, individualized application, and discretion.  The virtues of rules—the creation of economies of scale, the structuring of norms and expectations according to positive orders, the costs saved at the ex post application stage—are apparently counterweighed by the potential for overbroad application, rank injustice, and otherwise discriminatory treatment.

The degree to which we are worried about these vices, or encouraged by these virtues, is probably a function of our belief in legislatures and their work product. Even if legislatures do not get things “right,” there are good reasons to believe that what the legislature does is owed a wide degree of respect–because of the value of legislative compromises, the “finely-wrought” legislative procedure, and the representative nature of the legislature . Nowadays, though, a commitment to the law passed by the legislature is labelled pejoratively as “formalist.” In administrative law, offshoots of this belief are characterized, dismissively and without analysis, as “Diceyan” or an unwelcome throwback to the days of “ultra vires” (take a look at the oral argument in the Bell/NFL & Vavilov cases for many examples of this).  In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

The consequences of this argument-by-label should not be understated. Take the case of statutory interpretation. The Supreme Court of Canada tells us that we should interpret statutes purposively, but at the same time, that the text will play a dominant role in the process when it is clear (Canada Trustco, at para 10). This implies that purposes, while helpful to the interpretive process, should not dominate where the text is clearly pointing in another direction.

But a focus on statutory text—especially the contention that text can ever be clear—is often derided as inconsistent with the contingent and “ambiguous” nature of language. So the argument goes, text can never truly be “clear,” and so textualism falls away. But whether the text of a statute will contain answers to an interpretive difficulty is, in part, a function of the judge’s belief in the coherence and determinacy of law—in other words, her appreciation of the point at which “law runs out”. A judge inclined to believe that the tools of statutory interpretation can be used to come to a defensible answer on a matter will commit herself to that task, and will probably not consider legislative language “ambiguous” in its purposive context. For her, law will maybe never run out, or if it does, it will only do so in the extreme case of true ambiguity, where no discernible meaning cognizable to human understanding could be appreciated. A judge less committed to the determinacy of law will be more willing to introduce extraneous materials—legislative history, Charter values—in order to come to a meaning that makes sense to her. For her, the law may “run out” quite early. The risk here, of course, is the enlargement of the scope for judicial discretion. For those who believe in the general soundness of statutory law, this creates the potential for conflict with the generally-elected representative body.

This is not a hypothetical problem. In the United States, Chevron administrative law deference rests on the judge’s appreciation of statutory language. At step 1, courts are asked to apply the ordinary tools of statutory interpretation to determine if Congress spoke clearly on a particular matter. If so, that meaning binds the agency. If not, at step 2, if there is ambiguity in a statute, courts defer to a reasonable agency interpretation. As Justice Scalia said, a judge committed to the text at step 1 will rarely need to move to step 2. In this way, there would be less scope for agencies to exercise virtually unreviewable discretion. Those who believe that law runs out earlier will, ceterus paribus, be more willing to allow multiple decision-makers to come to very different decisions on a matter so long as those decisions are roughly justified by a statute.

The various points on the spectrum of “giving up on law” will be the product of many factors, including factors particular to cases before courts. But at some level, a belief that text can, or should, contain answers seems to undergird the entire process of determining the meaning of a statute. I think there are good reasons to hold the belief that what the legislature produces is generally sound for reasons that are particular to the legislative process and the law in question. To my mind, judges should be wary of letting text “run out,” in part because of what replaces it; more abstract, generally less clear “second-tier” sources of legislative meaning (Note: sometimes text will be truly unclear, and a statutory purpose can be clearly gleaned from the text. Our law sees no problem with this, and neither do I).

This is not to presuppose that legislatures always make sense in their enactments. The process of making law is not designed to be a perfect application of human rationality or even of expertise. Legislatures sometimes don’t make sense. But there are good reasons to respect the legislative process. Importantly, seemingly non-sensical legislative compromises, run through readings in Parliament and the committee process, are sometimes the product of concessions to minority groups, represented through their Members of Parliament. These legislative compromises are sometimes essential, and should be respected even if they do not make sense. Judge Easterbrook puts it well: “If this [an outcome of statutory interpretation] is unprincipled, it is the way of compromise. Law is a vector rather than an arrow. Especially when you see the hand of interest groups.”

If the legislative process is imperfect, so is the process of statutory interpretation. Statutory interpretation will not always yield easy answers, or even the ex ante “correct” answer. The tools of statutory interpretation are often contradictory, some say outmoded, and sometimes unwieldly. But as Judge Posner said in his book Reflections on Judging, the tools of statutory interpretation are designed to impose meaning. Used authentically and faithfully, with a concomitant belief in the legitimacy of the law passed by the legislature, they help courts come to a defensible conclusion on the meaning of a provision; one that is consonant with the universe of laws in the statute book, with the particular statute’s larger purposes, and the immediate context of a statute.

It worries me that some no longer belief in this process—in the formal quality of law as law, in the idea that when the legislature speaks, it does so for a reason. Similarly, I worry that the invitation for judges to rely on values and principles extraneous to a statute—for example, Charter values, legislative history, etc—to impose a meaning on a statute is based on wrongheaded idea that judicial discretion is somehow absolutely better than legislative power. I, for one, think that we should expect judges in a constitutional democracy to believe in the law passed by the legislature. This is not judicial acquiescence, but there is perhaps a value to formalism. Parliament, to be sure, does not always get everything right. But there is a benefit to formalism: the way in which Parliament passes laws is subject to a formal process, interposed with legislative study. The way we elect our leaders and the way Parliament operates is, in a way, formal. The law it creates should be owed respect by those sworn to uphold it.

The debate over rules versus standards or discretion is one that is rife throughout history. But presupposing the debate, I always thought, was a belief in law itself. For those of us at Runnymede this weekend, we were invited to question whether that belief exists any longer.