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.

 

McCaw: Declarations of Invalidity in the ONSC

Can one ONSC judge bind another?

In R v McCaw, 2018 ONSC 3464, the Ontario Superior Court decided that constitutional declarations of invalidity are binding on other judges of the Ontario Superior Court. The case concerned s.33.1 of the Criminal Code, under which Parliament narrowed the common law defence of extreme intoxication set out in  Daviault, denying it in general intent casesIn McCaw, the Court was faced with conflicting authority: previous Ontario Superior Court decisions declared that s.33.1 of the Criminal Code infringed ss.7 and 11(d) of the Charter, and that the infringement could not be saved by s.1. But these previous cases had all considered the issue anew, rather than considering it finally decided. McCaw centred on the effect of these previous cases: was s.33.1 unconstitutional for the purposes of this case? The court said yes, considering itself bound.

I do not propose to get into the facts of the case or any criminal law substance, except for the specific remedies question of one superior court judge binding another through a constitutional declaration of invalidity (inspired by discussions on Twitter!) Putting aside whether the Supreme Court’s remedies doctrine is sound, McCaw represents a faithful application of it, particularly the Court’s strong-form interpretation of s.52 of the Constitution Act, 1982. Section 52 has been  interpreted to provide the courts power to issue declarations of invalidity, but textually provides that laws are of no force or effect to the extent of their inconsistency with the Constitution.

First, the McCaw court’s holding that it was bound by the previous ONSC authority on point is consistent with the operation of constitutional remedies—particularly declarations of invalidity. In Hislop, the Supreme Court confirmed that in most cases, courts granting constitutional declarations are operating in a “Blackstonian paradigm” (on this, see Dan Guttmann’s illuminating article). In the ordinary course, courts seek to resolve past wrongs. A typical case involves Party A claiming against Party B for Event C, which occurred in the past. A court discovers the law that applied to that past event. In the constitutional context, the Blackstonian paradigm essentially tells us that a law declared unconstitutional by a court was always unconstitutional, from the time of its enactment (Hislop, at para 83). And the Supreme Court confirmed this idea: a judicial declaration does not cause a legislative provision to be unconstitutional—rather, s.52(1) as a remedial authority dictates what is and isn’t constitutional (see Martin, at para 28). The judicial declaration is simply a recognition that s.52 always regarded the impugned provision as unconstitutional. This has particular effect in benefits cases, where claimants previously denied can claim retroactively.

At the same time, a declaration of invalidity also operates prospectively (Hislop, at para 82). For obvious reasons, the government cannot pursue causes of action under an unconstitutional statute after the judicial recognition that the statute is unconstitutional; nor can a court (itself subject to law) deny a defence to a claimant if it is unconstitutional to do so. So, if what the Supreme Court says is true, once a statute is recognized as unconstitutional, it is systemically unlawful reaching backwards and forwards. After the declaration, subsequent courts dealing with causes of action arising before or after the declaration are bound by s.52, which now views the provision as unconstitutional.

The timing question is central. If s.33.1 was always unconstitutional, and continues to be, a later judge dealing with a case is bound temporally. If a cause of action arose before the declaration (but the case is heard after), a claimant should have access to the common law defence (to the extent s.33.1 abridges it). If a cause of action arose after the declaration, the claimant should also have access to the defence because the declaration applies s.52 prospectively. Section 52 therefore has independent meaning.

I’m alive to the criticism: isn’t it wrong for one s.96 judge to bind another (or the hundreds of other) s.96 judges? In some specific remedial situations, this is true. But in those situations, we are talking only about the typical Party A vs Party B case, where the validity of a law is not impugned. Accordingly, the only remedy sought is personal. But if we are talking about the specific context of s.52, things are more complicated because of a second feature of s.52—its systemic application with virtually no exceptions, as opposed to personal remedies under s.24(1) of the Charter. This is a strong distinction drawn by the Supreme Court. As it confirmed in Martin, the unconstitutionality of a law is dealt with by s.52(1) independently. Section 52(1) confers no discretion on judges, and once a judge declares a law unconstitutional, s.52 operates to effectively remove it from the statute books completely (Ferguson, at para 65). If we accept this authority, we should view the McCaw problem not as one judge binding another judge in a typical horizontal stare decisis sense (or even a weaker judicial comity sense), but s.52 itself binding other judges. This is perfectly consistent with the hierarchy of laws, under which the Constitution binds all state actors. If this is true, one judge cannot later get out of the declaration of invalidity by simply reasoning around it. Similarly, the remedy for the Crown is to appeal the declaration, not collaterally attack it in a later proceeding.

Take the counterfactual and think about it in the context of the Supreme Court’s doctrine. If a subsequent Ontario Superior Court judge could conclude that s.33.1 is constitutional, even if a previous judge found it unconstitutional, the principle that no one should be subject to unconstitutional laws could be abridged. A subsequent judge could, in effect, conclude that a law is constitutional on certain facts—even though it has been previously found unconstitutional. But this is directly contrary to the Supreme Court’s own authority, which holds that a law rendered unconstitutional by s.52 is just that: unconstitutional. It cannot be patched up later on a case-by-case basis, and it is sufficient for the law to have an unconstitutional effect on one person to be unconstitutional in law (particularly under s.7). Put differently, if a law is unconstitutional in one regard, it is unconstitutional in all regards, past and present (subject to specific doctrines such as qualified immunity). The fortune or misfortune of drawing a later case and a later judge is, unfortunately, not sufficient to oust s.52.

There is room to criticize this strong-form interpretation of s.52. I don’t know if it necessary follows from the text of s.52 that a law unconstitutional in one regard is unconstitutional in all regards–for example, that we cannot have meaningful
“as-applied” remedies, as the Americans do. Section 52 simply says that unconstitutional laws are invalid to the extent of their inconsistency with the Constitution. Here, in the interstices of “extent of inconsistency,” is where the debate occurs. This phraseology justifies our understandings of remedies like severance and reading-in, but these are statutory remedies that apply to all persons equally. It seems to be a different order of business altogether for Judge B to disregard Judge A’s (operating in the same court) finding of unconstitutionality, unless we want to change what we mean by an “unconstitutional” law. Could it be that a law is unconstitutional to one person and not another?

There are many open questions here, some of which I hope are addressed by the Court of Appeal for Ontario. But all this to say, I do not see McCaw as flatly wrong on the current understanding of constitutional remedies.

Rendering Unto the Judiciary

Justice Martineau’s recent article on judicial courage

In a recent piece published in the Western Journal of Legal Studies, Justice Martineau of the Federal Court puts forward a concept of “judicial courage” as a descriptive and normative claim about what judges do in a democracy. Judicial courage, to Justice Martineau, is an ideal that stands in contrast to judicial “conservatism” under which law is the complete answer to most or all cases [2]. To Justice Martineau, law is a necessary but insufficient condition for the flourishing of justice and democratic institutions. Instead, we also need a shared ethic or commitment towards a culture of constitutionalism, which judges help along by displaying “courage” in particular cases. Justice Martineau is drawn by a “liberal” version of the judiciary, imbued with moral authority rather than simple legal authority.

While Justice Martineau’s piece demonstrates a clear reflection of the issues at stake and his status as an eminent legal thinker, allow me to be skeptical of his core claim, as I read it: that courage can be a helpful descriptive and normative organizing principle. To me, judicial “courage” is far too subjective, and could ultimately give rise to unconstrained faith and power in a judiciary unbound by doctrine. There would need to be some limiting principle and definition to the ideal of “courage” to ensure that judges exercise it in proper cases.

This is not to say that the problem Justice Martineau addresses in his piece is unimportant. The piece uses the concept of judicial courage as an answer to a perennial problem: how do we deal with internal threats to the legal system from those sworn to uphold it? To Justice Martineau, courts are central in preventing the rise of these sorts of actors

I have no difficulty in endorsing his point of view. Judges have a duty to act responsibly. Detractors of “judicial activism” dismiss elitist thinking—particularly as it is opined by unelected members of the judiciary. People should put their faith in Congress or Parliament, who know better. But their optimistic reliance on the positive side of political virtue and wisdom ignores the transformative action of fortuna when power has become corrupted or concentrated in the hands of a sociopath. This can happen in any democracy [31].

My concern is the faith this puts in courts to almost always do the right thing. Just because the legislative branch can be manipulated does not mean that the judiciary cannot be, or that strong-form judicial review is necessarily the best remedy. As Vermeule argues, much of constitutional law can be construed as a form of risk management. Part of the risk of constitutional design is the risk posed by imperfect humans. For example, in designing the American constitution, some of the Federalist framers began from the presupposition that “enlightened statesmen will not always be at the helm” of the system (The Federalist Papers, No. 10). To Hamilton, in fact, “No popular Government was ever without its Catalines & its Caesars. These are its true enemies.” Constitutionalism must start from the premise that there will be bad actors in the system, like a Caesar or Hitler, who might seek to use internal democratic channels to subvert the rights of others. This observation extends equally to the judiciary.

The Americans responded to this problem by adopting a strict separation of powers, in which no one branch could accumulate all power. The judiciary is obviously included in that system of limited government, restrained just as much as the legislature and executive. Why should we bank on such a system? Ex ante, the separation of powers is the best organizing principle on which to base a Constitution. A bill of rights will only be a “parchment guarantee” if any actor in the system can accumulate all the power. Before doing anything in a constitutional democracy, we’d want to insure against this risk.

We should be careful about tinkering with this machinery. For that reason, in a system of separation of powers, there should be good reasons for one branch to step into the territory of the others. Hamilton alluded to this possibility when he said that in cases of a weak government, it may need to “overstep the bounds” (on this point, see Vermeule’s recent paper) in cases of emergency. But the same goes for the judiciary. Extraordinary constitutional circumstances should exist before an unelected judicial branch interferes with the elected process if the separation of powers is a main organizing principle–and if we care about guarding against the risk of overreach.

And this is the rub of the matter. If it is “courageous” for courts to interfere with democratically-elected mandates that may be unfair, it is perhaps even more courageous for courts to stay their hand and let the democratic process unfold in service to the separation of powers. Which is true in a given situation should be subject to clear rules that guard against judicial overreach and limit the role of the judiciary to real instances of constitutional concern. But we are so far from this reality in Canada. I need not go over the Supreme Court’s sins in this regard, but the Court has failed to apply a consistent set of rules governing its judicial review function; sometimes tacitly accepting originalism, sometimes trotting out the living tree, all the while relaxing its approach to precedent.

To this comes Justice Martineau’s objection. A wholly rules-bound judiciary is likely to allow grave democratic injustices to stand. Hitler, after all, was a product of a democracy. Justice Abella has gone as far as to eschew the rule of law, instead proposing a “rule of justice.” To Justice Abella, the rule of law is “annoying” because it sanctioned the Holocaust, segregation, and other democratic evils. On her account (and Justice Martineau’s) courts always pursue justice, whereas the legislature will only do so if “justice” coincides with its own political interest

Direct democracy alone is an insufficient condition for a good society, if only for practical reasons. In fact, courts play an integral role in a properly separated system. This system, to Justice Martineau, must be vindicated by a culture of constitutionalism, in which the people agree to be bound by law [13]. The American framers agreed. But the real question is who should foster this belief. Justice Abella and Justice Martineau seem to think it is the role of courts to encourage this culture of constitutionalism; and even more, they seem to think that courts are uniquely suited to do so.

At risk of sacrilege, I think this puts too much faith in humans–the very risk the separation of powers guards against. To trust that the judiciary will always display “courage,” properly calibrated to the legal rule under consideration, is unrealistic. Judges will make mistakes, sometimes grievously so. This is a clear risk that is managed by the separation of powers. To be sure, the risks posed by legislative or executive abuse are different than those posed by courts, but they are no less concerning. Executive or legislative recalcitrance will be obvious, but judicial overreach is less so.

Instead, putting too much faith in the judiciary and expanding judicial power is much like eating chocolate cake. The cake is good at the moment, but later on it takes its toll. A court making up its own law will vindicate particular groups in the moment. But over the long term, a court unmoored by clear rules, directed only by “courage” or “justice,” could slowly eat away at the separation of powers and the role of elected legislatures until the culture of constitutionalism sought by Justice Martineau is really just a culture of court worship. Under this culture, courts take an expanded role, and citizens look to the courts to vindicate their particular versions of the good.

I fear we have come to this point in Canada. One need only look at the recent retirement of Chief Justice McLachlin as an example. Veneration of the Court is a veritable academic pastime, and too many view the judges as celebrities rather than fallible humans with a restricted role in the separation of powers. This is an implication of Justice Martineau’s invocation of “courage.” Without guiding rules, courage could mean many things to many different people. It could end up being a dangerous theory of judicial review that further politicizes and expands the role of courts.

In our system, there is no doubt that we need courageous judges, but what courage means in a system of separated powers is a complicated question. Without accounting for institutional realities, courage lacks definition as a descriptive and normative idea. Rather than putting our faith in judges, all should insist that actors within the political system stay true to their defined roles. Accordingly, for courage to be a helpful concept rather than a vessel for judges to fill with their own worldview, we’d need to develop clear doctrinal parameters on the concept.

Quis Custodiet?

If judges are the guardians of our constitutional values, they need to be guarded too, as Chief Justice McLachlin’s example shows

There has been no shortage of panegyrics on the occasion of Beverley McLachlin’s retirement. Richard Albert‘s is particularly interesting to me, though, because it is largely based on the former Chief Justice’s extra-judicial output, mostly speeches, and I once toyed with the idea of writing a piece based on such materials myself. (Disclosure: Professor Albert and I are working on an edited collection project together.) Indeed, I have critiqued individual speeches that Chief Justice McLachlin has given on a couple of occasions (here and here).

These explanations of how the former Chief Justice saw her role are significant ― if not always informative, as I will also suggest below ― yet bound to attract less interest, and less critical attention, than her judgments. Professor Albert’s paper is thus a useful contribution to our understanding of the former Chief Justice ― even if we dissent from its tone and disagree with its assessment of its subject, as I do. This is all the more so since the papers on which Professor Albert draws are not as easily accessible as one might wish. The Supreme Court’s website offers only a selection of the former Chief Justice’s speeches (which includes neither of those I have commented on, for instance), and virtually nothing from any for her colleagues, or even her successor.

According to Professor Albert, the former Chief Justice has been a towering figure in early 21st-century Canada. Prime Ministers and Governors General came and went, but the Chief Justice remained, rising almost to the stature “of Conscience-in-Chief
that Americans have sometimes seen fulfilled by their presidents”. (7) You might think it’s a bit too much for a person who writes thrillers, not treatises, in her spare time, but Professor Albert is unrelenting in his praise:

Chief Justice McLachlin … has made Canada a better, fairer and more equal place, and our Constitution the envy of the world. She leaves an equally important legacy as an expositor and guardian of our constitutional values. (1)

As mentioned above, Professor Albert draws on the for Chief Justice’s extra-judicial pronouncements to make his case. In my view, however, the light he shines on her exposes a rather unflattering image.

The earliest speech Professor Albert describes concerned “The Role of Judges in Modern Society“. It is part of that role, the former Chief Justice said, to “be sensitive to a broad range of social concerns” and to “be in touch with the society in which [judges] work, understanding its values and its tensions” ― while at the same time “attain[ing] a level of detachment” from their personal views “which enables [them] to make decisions which are in the broader interests of society”. In another speech discussed by Professor Albert, this one on “Defining Moments: The Canadian Constitution“, Chief Justice McLachlin added that “as a nation’s values and expectations change over time, so its constitution is applied in a way that reflects those changes”.

The idea that judges must maintain a connection of some kind to “their” society is, of course, reminiscent of the discussion of the role of “social values” in l’Affaire Nadon, a.k.a.  Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 ― delivered just five weeks after the “Defining Moments” speech. In his article “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?”, Peter McCormick suggested that Chief Justice McLachlin likely wrote the majority opinion in that reference, and thanks to Professor Albert’s investigation of her extra-judicial pronouncements we arguably have additional evidence in support of this suggestion. What we lack, either in l’Affaire Nadon or in the “Defining Moments” speech, is an explanation of the mechanisms by which judges are to maintain sensitivity to social concerns or understand social values, let alone make decisions in the broader interests of society.

This is impotant. Never mind the normative question of whether deciding in the broader interests of society is in fact the judges’ job. (It’s not.) Ought implies can, and the suggestion that the judges can do these things is implausible and betrays an arrogance that is quite incompatible with maintaining “an attitude of ‘active humility'” for which Chief Justice McLachlin also called in the same speech. The matter of the “social values” that Québec judges on the Supreme Court of Canada purportedly channel is illustrative. The joint dissent by Justices Lebel, Wagner, and Gascon in the gun registry litigation, Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, referred to an alleged consensus in Québec in favour of the (now-defunct) long-gun registry ― yet as I noted here, polls showed that this consensus only existed among the media and political elite, but not among the general population.

Judicial inability to channel social values not only calls into question particular opinions, such as the majority in l’Affaire Nadon or the gun registry dissent, but undermines the foundations of the Supreme Court’s professed (though not always followed) approach to interpreting the constitution. Professor Albert, referring to the former Chief Justice’s insistence that the Canadian constitution is “applied in a way that reflects … changes” in social values, writes that

[t]his raises a telling contrast with the United States, whose revolutionary traditions have invited dramatic reorientations in law and society. Our evolutionary model would certainly not embrace Thomas Jefferson’s famous suggestion that each American generation should discard the existing constitution, break legal continuity with the prior regime, and author its own new constitution according to the values of the time. (12)

This may be true at a wholesale level ― though of course the Americans have been no more keen on Jefferson’s suggestion for constitutional replacement than Canadians, which suggests that we are not all that different from one another. But of course the idea that the constitution can be applied ― by judges ― to reflect social change even in the absence of actual amendment amounts to a discarding of constitutional provisions in detail. Legal continuity is not shattered all at once, but weakened hairline fracture by hairline fracture, one constitutional benediction at a time.

Professor Albert asks “by what means are judges to determine how and when the country’s values have changed or are in a period of evolution from old to new?” Yet having dismissed constitutional amendment as a guide due to its difficulty, he simply accepts that “[j]udges … must themselves drive the evolution of the Constitution”. (13) Professor Albert suggests that the former Chief Justice thought so too; for her “judges must be guided by society but not directed by it”. (13) Indeed, it is the judges who must help direct society towards greater justice ― and specifically towards the “just society” promised by Pierre Trudeau. Professor Albert notes that Chief Justice McLachlin referred to this slogan in a speech she gave in 2007. She returned to the subject in 2016 (both speeches, coincidentally or not, were given to the same audience, the Empire Club of Canada; I suppose they are big fans of Pierre Trudeau there). Commenting on the latter speech, I wrote that it is “quite inappropriate for a judge to take up what was, for better or for worse, a partisan slogan and try to make it into a constitutional ideal”. I worried that this gave “grist for the mill of those who already think that the Charter, and the courts that enforce it, are essentially Liberal self-entrenchment devices.” My views on this haven’t changed, and my worries are only strengthened now that I realize that theme was not a one-off.

Another theme that Professor Albert highlights is the former Chief Justice’s professed commitment to “diversity” ” in speech, thought, origin and orientation, to name a few” (18-19). In another speech Professor Albert quotes, Chief Justice McLachlin insisted that her Court “focused not on ‘seek[ing] to erase difference, nor [sought] to impose conformity’ but to make it possible for ‘each group … to maintain its distinctions'”. (21) I’m afraid that Chief Justice McLachlin’s belief in diversity of thought and in allowing groups to maintain their distinctions will be news, and not very credible news at that, to Trinity Western University, whose law school the former Chief Justice voted to allow law societies to can, lest accrediting it be seen as a stamp of approval for Trinity Western’s (discriminatory) beliefs. But then, extra-judicially saying one thing and judicially doing another one was something of a theme for the person who joined an opinion disparaging “the amorphous underlying principles of our Constitution” only months before jetting off to New Zealand to deliver a noted lecture encouraging judges to invalidate legislation for inconsistency with such principles, declared for the occasion to be tantamount to natural law. And in yet another lecture to which Professor Albert refers, Chief Justice McLachlin stressed that “the law … requires lawyers to take unpopular stands, judges to make unpopular decisions”. (20) Yet for all that she was willing to take on the Prime Minister when occasion called for it, how willing was the former Chief Justice to take a stand that would have been truly unpopular among the bien-pensant intelligentsia? Her change of heart on hate speech criminalisation ― which she opposed early in her career, but eventually accepted ―, and of course her opinion in Trinity Western, are not exactly evidence in her favour here.

Professor Albert has, it will be obvious, a very high opinion of Chief Justice McLachlin. He writes that “the key ingredient … to the success of Canada’s modern Constitution—and the reason why it is so admired abroad—has been how the Supreme Court has interpreted, elaborated and defended it”. (23) To my mind, though, his paper illustrates and explains not so much the successes as the failures of the Supreme Court and of its departing Chief: their rashness in choosing to deal in values rather than in law alone; their arrogance in disregarding legal constraints; their lack of principle and courage. If this is what other countries admire, let them. Canada deserves better.

If, like Professor Albert, I believed that judges can serve as the guardians of our constitutional values, I would not hold up Chief Justice McLachlin as the epitome of that role. But, for my part, I think we ought to heed Learned Hand’s famous warning:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.

The successes, and even the failures, of individual judges in the defence of our constitutional values are, ultimately, less significant than our own. It is our job to uphold these values, including against our public officials ― even the Chief Justice of Canada.

Taming the Administrative State

Two books in the administrative law literature

In the spirit of the upcoming review of Dunsmuir by the Supreme Court, I’ve read two important books about administrative state skepticism in the United States: Phillip Hamburger’s The Administrative Threat; and Joseph Postell’s Bureaucracy in America: The Administrative State’s Challenge to Constitutional GovernmentBoth books address the constitutionality and necessity of the “administrative state,” and I see some of these conclusions transferring to the Canadian context. What follows is my tortured look at the problems of constitutionality and necessity with a Canadian twist.

Hamburger’s short, pithy text is a condensed version of his other important work, Is Administrative Law Unlawful? The Administrative Threat starts from an historical perspective and builds a sustained response to the administrative state. Hamburger analogizes modern administrative power to the English prerogative power. This prerogative power was famously abused, it was absolute, and it operated outside of the law—it was, according to Hamburger, “extralegal.” To Hamburger, the Star Chamber is the quintessential example of such power.

Hamburger argues that the US Constitution from the beginning barred such prerogative power, repackaged in “administrative” terms. Articles I (legislative power exclusively in the Congress) and III of the US Constitution (judicial power exclusively in the courts), block “irregular” or “extralegal” power, according to Hamburger. When decision-makers create binding rules, they operate outside of the constitutional structure. The worry is more pronounced when decision-makers combine rule-making (legislative), adjudicative (judicial), and investigatory (executive) functions. From a separation of powers perspective, we should be  concerned about such power concentrated in the hands of bureaucrats.

On the other hand, Postell’s book attempts to place the administrative state and its challenges in the context of American constitutional history. Postell argues that “administrative state skepticism,” far from being a new, radical movement, is entrenched in the idea of American constitutionalism. Similarly, to Postell, modern administrative law insufficiently addresses the threat of the administrative threat and its combined executive, judicial, and legislative power. Postell’s review of history demonstrates how Americans have dealt with the threat of administrative power, if imperfectly.

What do these books have to say to Canadians? The books basically assault (1) the constitutionality of the administrative state and deference to it and (2) the necessity of the administrative state. These arguments can transfer, if uneasily, to Canadian law. It’s worth mooting them out to see where they go, if we view a generalized notion of the separation of powers as a worthy organizing principle of the legal system.

Canada’s separation of powers is in part rooted in the judicature provisions of the Constitution Act, 1867. Section 96 protects the role of superior courts of inherent jurisdiction. Parliament cannot divest these courts of their core powers, while non-core powers can be divested if they were not exercised exclusively by superior courts in 1867, or if they were but the broad policy context of the decision-maker transforms the decision-maker’s function (Reference Re NS Tenancies Act).

It could be tempting in the Canadian context to say, as Hamburger does in the American, that the vesting of power in administrative tribunals somehow deprives the constitutionally protected courts of their powers of adjudication and interpretation of law. At first blush, there is no case for this in Canada, because the “core” of s.96 powers is drawn narrowly, and clearly law adjudication and application is not part of that core. For example, the Federal Court is a statutory court created under s.101 of the Constitution Act, 1867.  The Supreme Court itself is a mere “s.101 court.” Yet both courts clearly have the power to interpret and apply law, and that power does not derogate in any meaningful way from the power of s.96 courts to do the same. If the logic follows, therefore, there is no constitutional problem with similarly constituting administrative tribunals.

But this is an unsatisfying conclusion, because there is a meaningful distinction between s.101 courts, for example, and administrative decision-makers. Most importantly, the former can stand in review of the latter (ie) the Federal Court to the Refugee Appeal Division. And there are certain principles that thelcourts must uphold–judicial independence, the Rule of Law, the list goes on. In upholding those principles in cases, the courts must interpret and apply law against the delegated decision-maker. One has a supervisory function over the other, a constitutional role recognized as a part of the Rule of Law. On this question, the distinction is not between s. 96 courts and all other decision-makers, but rather between supervisory courts and other statutory creations.

So, even if interpretation and application of law is not a core function of courts, it is a function on judicial review conducted by courts. This function of law  interpretation and application is something quintessentially judicial. The transfer of these powers to statutory institutions, created by the government that adopts the laws under interpretation, seems to remove something from the uniformity required by the Rule of Law and implicit in ss. 96 and 101. Law that is interpreted by a thousand statutory creations cannot be a uniform law interpreted and enforced across the legal system by courts with a constitutional connection. If this is a constitutional problem, it would require a recognition that s.101 courts (and perhaps other supervisory courts) have some higher constitutional purpose alongside s.96 courts. Such an argument is not new,  and in my view, it is implicit in the Rule of Law, the requirements of judicial review, and legal uniformity. Delegation (read: divestment) of the powers of s.96 and 101 courts would, on this account, raise constitutional concerns.

This is a rough-and-ready attack on delegation, but it is admittedly not where the debate currently is in Canada.  Instead,  Professor Glover recently asserted that the administrative state could be constitutionally mandated.  But the same concerns I’ve noted above are relevant here. Apart from whether the administrative state is constitutional in the first place, the effect of constitutionally entrenching the administrative state (whatever that term means) would be the establishment of at least some adjudicative bodies alongside s.96 courts. Yet the Supreme Court has said that legislatures and Parliament cannot, in effect, constitute s.96 courts (see McEvoy, at 719). More importantly, it would be an odd constitutional mandate that requires the legislature to maintain an aspect of the Constitution through ordinary legislation, putting it in the realm of majority control. This is the opposite of what a Constitution is about–putting certain matters beyond the reach of the majority.

If we accept that there may be constitutional concerns with delegation, deference to that delegation should similarly raise problems. As Hamburger notes, deference has a little explained practical effect. When courts defer to administrative decision-makers in Canada, they effectively impose an onus on claimants to rebut a presumption of legality. Government lawyers have the upper hand—the decisions of their own statutory creations are what they defend. This raises a question of doctrinal independence, though emphatically not independence in the traditional, judicial sense. On questions of law, as Dunsmuir notes, a core function of s.96 courts (which extends to all judicial review courts) is the enforcement of that law against administrative decision-makers.  But deference to the administrative state dilutes that enforcement function, sacrificing it at the altar of expertise, while giving the government an upperhand. The concern here is that the decision under review is viewed as presumptively legal when there is no reason to presume it so.

This raises the necessity question, and whether administrative law and its doctrines can save us from the constitutional worries associated with the administrative state. Or perhaps there is another option. The books raise the prospect that we may not need the administrative state if we embrace certain constitutional principles.

To Postell, the administrate state is broken, and we do not need it in its current form. More importantly, administrative law can’t save us. As I have written before, and as Postell demonstrates, the tools of delegation and deference are used as quintessentially political tools. From the New Deal to the conservative counter-revolution, deference evolved as a way for governments to impress on courts their political will—their desire to limit the supervisory function of courts. These tools have operated at the same time as the administrative state has grown, an insatiable beast eating up more basically adjudicative and legislative functions.

Yet, the answer is not necessarily a strict politics-administration dichotomy. Instead, Postell puts forward the idea of a “constitutional administration,” where representation and republican protections are the organizing principles of the administrative state, rather than rule by experts.  Postell points out that contrary to scholarly “consensus,” antebellum America was not a place of robber-barons and laissez-faire, but instead a place where this constitutional administration flourished. There was an administrative state, and much of it operated at the state and local governments, subject to strict judicial review. At the national level, a stricter separation of powers governed, based on principles of non-delegation of legislative powers and strong-form judicial review. These forms of regulation, though based on simple principles rather than variable forms of expertise, accomplished the policy goals of the era.

In contrast, modern administrative state sympathizers argue that complex problems require complex solutions and that an expert administrative state is required to efficiently manage public policy. First, one has to seriously query whether the administrative state any longer accomplishes this goal, if it ever did. Expertise is not empirically demonstrated by administrative state defenders. And not all administrative tribunals are “flexible” (whatever that means), quick, and cost-effective, like the Court seemed to think in Edmonton East .As an example, the wait time for a refugee hearing before the Immigration and Refugee Board is currently 20 months.

More fundamentally, and as Richard Epstein points out, a complex society does not necessarily require complex rules in a complex bureaucracy. Simple legal rules based around the common law can transform and adapt to exigencies of modern society while similarly protecting individual liberty. Further, much of the administrative state is executive action that could be completed by the executive itself, as Hamburger notes. If the legislature stays in its lane by adopting clear rules, and the executive completes its executive functions, the combination of powers in the administrative state is avoided.

None of this should be construed as a full acceptance of either Hamburger or Postell’s thesis in the Canadian context. A simpler system of administrative law based on republican principles is not doable in Canada. But both authors give us something to think about. It might be worthwhile thinking about taming the administrative state.