Swan Upping

A medieval ritual as a metaphor for British constitutional history

Every summer, barring a plague, an age-old ritual takes places on the Thames: the Royal Swan Upping. Led by the Royal Swan Marker, “[t]he Royal Swan Uppers, who wear the scarlet uniform of Her Majesty The Queen, travel in traditional rowing skiffs together with Swan Uppers from the Vintners’ and Dyers’ livery companies”. Truth be told, the skiffs are mostly towed by a boat with an engine, but the whole thing does look pretty grand. I know, because I went to see it yesterday.

The Swan Upping arrives at Sonning Bridge: July 20, 2022

Scarlet uniform: check. Royal flag: check. Awesome swan flag on the towing boat: also check. Even Galadriel would be proud, I think. (And, come to think of it, I’m wondering if the Swan Upping has helped inspire Professor Tolkien.)

The reason I’m writing about it here, though, is that there is a fascinating legal-historical and indeed constitutional dimension to the Swan Upping story. As Katy Barnett explains in a most instructive post over at Legal History Miscellany the reason for the glorious scarlet uniforms’ presence is that her majesty has a special relationship, one might say, with the mute swans of the Thames:

[t]he ancient origins of the monarch’s ownership of swans are shrouded in mystery. The first mention of mute swans being a ‘royal bird’ comes from Gerald of Wales (‘Giraldus Cambrensis’) in the late 12th century. It is generally deemed part of the royal prerogative by custom, then entrenched in case law and statute. (Footnote omitted)

The office of the Royal Swan Marker goes back (at least?) to the 14th century:

In 1361, Thomas de Russham was given responsibility by the king for “the supervision and custody of all our swans as well as in the water of the Thames as elsewhere within our Kingdom.” Thereafter, the king had an officer who was  Master of the King’s Game of Swans (also known as the Royal Swan-herd, Royal Swannerd, or Royal Swan-master).

The Swan Uppers, now doing their own rowing: Sonning, July 20, 2022

In the Middle Ages, the scarlet uniforms were not just for show: swan ownership was tied up with social hierarchy:

In 1482 and 1483, Edward IV’s Act for Swans was passed to prevent unlawful keeping of swans by “Yeomen and Husbandmen, and other persons of little Reputation”. Accordingly, the only people who could have swan marks or own swans were noble and rich people

And “only the monarch could claim unmarked mute swans”. This is what the Royal Swan Upping was:

[p]eople would catch the swans, record the ownership of the birds and their offspring, and place markings upon the beaks of the birds. It seems that the marks were achieved by inscription with a knife or by branding. The swan-master was to meticulously maintain the marks in an ‘upping book’. 

Nowadays, of course, the whole process is much more humane, and its point is no longer to ensure the steady supply of swans for royal Christmas feasts as in the Plantegenets’ and Tudors’ times. As the Royal Swan Marker explains,

Swan Upping plays an important role in the conservation of the mute swan and involves The Queen’s Swan Warden collecting data, assessing the health of young cygnets and examining them for any injuries. Cygnets are extremely vulnerable at this early stage in their development and Swan Upping affords an opportunity to help both adults and cygnets that might otherwise go untreated.

In this way, the process really is emblematic of the British constitution: its origins are in medieval royal absolutism, later reinforced and partly taken over by statute, and eventually re-thought for a more caring and democratic age, with the scarlet uniforms more or less intact. So it only makes sense that I went to see it, and that I blog about it!

End of a Swan Upping day’s work: Sonning, July 20, 2022

F-Words

Some words and arguments to avoid in law school exams

This post is the first in what I plan on making a short series dealing with some things that bother me while marking public law exams. I once wrote a post along these lines, but happily at Reading its very basic advice is not as necessary as it was where I used to teach. Do refer to it for 101-level stuff. And please also refer to Mark Elliott’s excellent and helpful post, over at Public Law for Everyone, on the importance of making an argument in an essay question (or indeed a longer-format essay). That would be the 201 module.

This, by contrast, is going to be “issues in” course. What this means, really, is a course in the professor’s pet peeves. Of course, different people have different ones, and these might only be mine. But I do hope that they are of some use, both to colleagues and to students, and I hope that they will make for some entertainment if nothing else. After all, the first lesson concerns f-words! No, no that f-word. There are others, including four-letter ones. The one I’ll mostly focus on is “fair”. But first, let me say something about “floodgates”.

Floodgates arguments generally suggest that A’s claim against B should not be entertained by a court, because if it is, other similar claims will be brought ― the floodgates of litigation will open ― and the courts will be deluged with more cases than they can handle. I don’t think that floodgates arguments are often successful in real life. If A’s claim against B is without legal basis or factual merit, it can be rejected, and the rejection ought to serve as a deterrent to analogous future claims. To invoke the floodgates argument is to implicitly concede that, at the least, there may be something to A’s claim. But having made that concession, an advocate and especially a court will find it awkward to peremptorily refuse doing justice for no other reason than to economise resources. If many analogous claims ― all possibly meritorious ― are out there, the injustice of refusing to consider them is only compounded.

As a result, floodgates arguments are rarely persuasive in student work either. Truth be told, they are often the mark of a weak script. It is sometimes difficult not to suspect that the student could think of nothing better, simply remembered this catchy name, and went with a floodgates argument for lack of an alternative. Perhaps even a weak argument, at least if it is used accurately, is better than none at all, though one might want to consider whether making an inherently feeble argument does not harm one’s cause by exposing the defects of one’s position. (This is certainly true of the “kitchen sink approach”; not only do many bad arguments not add up to a good one, but they make it clear that one hasn’t understood which arguments are worth making.) Anyway, if you are choosing among a floodgates argument and a different one, always go for the other idea, whatever it might be. I would suggest making it a rule to simply banish this particular f-word from your vocabulary. It is a crutch, and not relying on it will only help you by forcing you to think a bit harder and more creatively.

My beef with the other f-word, fair (or its derivative fairness), is much the same: it is a crutch makes students think they’ve made a satisfactory case when they haven’t. But the explanation is perhaps a little more complicated in this case, or at least harder to believe. Unlike the floodgates of litigation, fairness is not a fancy-sounding technical concept, but one that we appeal to all the time. Unfortunately, that is part of the problem. Nobody wants to be against fairness, of course. But we should all be wary when someone ― including, I am afraid, a student in an exam answer ― seeks to persuade us by making opposition emotionally difficult rather than logically impossible. We should also be wary of making such arguments ― ideally, out of respect for our readers but, failing that, out of a self-interested concern not to arouse their suspicion that we might be trying to trick them.

More substantively though, fairness ― despite its intuitive appeal ― is also an elusive notion. Just what it means in any given context is often unclear. Now, sometimes ― and in our daily life, often enough ― we have a good, and, importantly, shared, sense of what fairness requires. If you insisted on choosing where to go for dinner with your friend last time, it is fair to let the friend choose now. If you were late to the pub, it is fair to buy your friends a drink. And so on. The trouble is that shared understandings of what is fair run out quickly in the kind of situations that law school exams, and indeed a great deal of law ― perhaps especially, though by no means only ― public law in the real world deal with.

Does fairness mean that people should be subject to human rights constraints or allowed freedom from them? Does it require government to seek parliamentary approval for a given course of action? Does it mean officials need to comply with rash, perhaps untenable promises to members of the public? Students ― and not only students, to be, ahem, fair ― may think that there are answers to such questions. But there are usually people on both sides of them. If you find one in an exam paper, you can be very confident indeed that there are serious arguments on both sides. And people on both sides probably think that their answer is fair. This suggests that no real concept of fairness is doing the work of compelling an answer one way or another. At best, people rely on intuitions about what is fair. At worst, they are actively covering up their true motivations under the specious rhetoric of fairness. (To be clear, I don’t suppose students do this often, if at all.)

Of course, these questions must have answers, if only provisional ones, and there are reasons why the answers are or ought to be one way rather than another. But fairness is not such a reason. There are other considerations involved. Some have to do with specific constitutional principles such as individual liberty, government accountability, the Rule of Law, the sovereignty of Parliament, or what have you. Others are policy arguments (including the dreaded floodgates, though to repeat it is a particularly weak one). Usually, more than one reason bears on a given answer. Relevant considerations sometimes complement one another, and sometimes pull in different directions. But it is their summing up, untidy and unsatisfactory as it sometimes is, that actually answers difficult questions, rather than appeals to fair play.

As with “floodgates”, I think that students should banish the other f-word from their exam-writing vocabulary. If you feel the itch to use it ― and, given its ubiquity, that is understandable ― you should ask yourself why you think that this course of action, or this approach to the problem, or this rule, is or would be fair. And then, give that explanation, in as much detail as you have room for, instead of speaking of fairness. Again, this will force you to think harder ― but it will also make for better results, because you will be discussing actual principles and policy arguments instead of hoping that the marker shares your intuitions, or at least understands them ― and neither is a given.


Whatever their differences in detail, marking grids at every law school I have known as either a student or a lecturer reward, first, understanding of the subject and then, to get really high marks, critical thinking and creativity. Clichés and stock arguments add little to a demonstration of competence, and actively get in the way of showchasing originality. The less you rely on them, the better off you are likely to be.

The Post-Vavilov Supreme Court and Administrative Law

Reason for optimism?

After the Supreme Court’s recent decisions in Abrametz and ESA (both of which are summarized and analyzed in my newsletter here and here, respectively), there is much to say.  But I just want to quickly identify one emerging trend: the centrifugal force of the principles in Vavilov in areas of administrative law not immediately in its contemplation. For reasons I hope to outline in future work, I think this trend is positive, because the sweeping and comprehensive approach in Vavilov provides a set of plausibly, administrable rules that reduces the amount of time spent on finding the standard of review, among other things. This is a good thing because the law of judicial review shouldn’t be overly complex. It is designed to be quick, on the record, and facilitative for individuals challenging government action. Labyrinthine doctrine stifles that purpose.

 For now, though, I only write to highlight a few examples of this trend I identify:

  • In Abrametz, the question of the standard of review for procedural fairness issues arising in a statutory right of appeal was at issue. For a majority of eight, Rowe J applied Vavilov’s holding on rights of appeal (the appellate, not judicial, standards apply) to the issue of delay (Abrametz, at para 27). This was despite the majority’s acknowledgement that this “proposition was stated in the context of substantive review.” This was also despite the fact that the orthodox view is that correctness applies to issues of procedural fairness (set out in cases like Khela). As I outlined in my newsletter, I think this move is justifiable, and it may raise questions about assimilating all issues of procedural fairness to Vavilov’s rules and standards. This is not an argument I can explore here, but it has been mooted in the courts (e.g. Maritime Broadcasting, at para 50). That said, one will likely find a resolute voice in favour of hard-line correctness review on all issues of procedural fairness: see Côté J’s dissent in Abrametz. And the move made in Abrametz regarding rights of appeal is a much easier hill to climb than a full-on application of Vavilov to issues of procedural fairness.

  • In ESA, the question was whether the laws like the Copyright Act that confer jurisdiction over the same questions to courts and the Copyright Board invite the correctness standard. In Rogers, a previous Supreme Court case, the Court recognized this as an appropriate circumstance to deviate from a reasonableness standard. For a seven judge majority, Rowe J again approached the problem by asking how Vavilov altered the Rogers standard (ESA, at paras 24-25). This was because—as I argue—Vavilov “simplified the law” (ESA, at para 24) and “overtook the prior jurisprudence” (Vavilov, at para 14). Analyzing the problem from the perspective of Vavilov’s principles of legislative/institutional design and the rule of law, Rowe J recognized the Rogers exception as an additional category that would attract correctness review. It is “analogous” to a statutory right of appeal (ESA, at para 32) and inconsistencies could arise between judicial and administrative interpretation, undermining the consistency and systemic clarity required by Vavilov’s idea of the rule of law (and, I argue, the Supreme Court’s other precedents). Karakatsanis J and Martin J said the majority’s conclusion “undermines Vavilov’s promise of certainty and predictability” (ESA, at para 117) because despite the fact that Vavilov “obviously considered” cases like Rogers, it did not choose to recognize it as an example of a case requiring correctness review (ESA, at paras 117, 124). In fact, if anything, it implicitly (but not “inadvertently”) overruled it (ESA, at para 125). While I do not agree with the concurrence’s worry about the majority’s decision, I note that the concurrence, too, sees Vavilov as a simplifying, cohering mechanism—it just reads Vavilov differently (in my view, much too narrowly—see Vavilov at para 70, which focuses on the application of its principles in future cases).

These Supreme Court examples only serve to buttress trends in the lower courts. In Portnov, for example, Stratas JA in the Federal Court of Appeal held that the bespoke standard of review analysis for regulations set out in Katz should be foreclosed and assimilated to Vavilov’s reasonableness standard (Portnov, at paras 24-28). And even beyond the grounds of substantive or procedural review,  Boivin JA in Ermineskin Cree Nation merged considerations of judicial discretion and cost-expediency in the question of whether a case was moot; in so doing, it tied an important consideration underlying Vavilov’s discussion of remedies on judicial review to the preliminary issue of mootness (see Ermineskin Cree Nation, at para 41; Air Canada, at para 14). What’s more, there is debate in the lower courts, and even at the Supreme Court, about the standard of review on arbitral appeals: whether the standard is reasonableness or the appellate standards, as prescribed by Vavilov (see here).

In all of these examples, we see Vavilov potentially doing a lot of conceptual work.  Not only are its principles affecting substantive review (ESA), but also preliminary objections to judicial review (mootness), and further, even in domains not necessarily within the Vavilov Court’s express contemplation (Abrametz). Nonetheless, it appears as if a number of judges on the Court are viewing Vavilov not only as a good encapsulation of accepted administrative law values (primarily, institutional design and the rule of law, but also discretion and cost-effectiveness), but a plausible set of operational rules deduced from those values.

For my own reasons, I think the overall effort in Vavilov was sound. In theory, there are some imperfections in Vavilov. I’d much prefer, for my part, a Chevron-like approach to judicial review of administrative action, which doesn’t start from a presumption of deference, but which asks courts to interpret whether the statutory language can support “more than one answer” in the first place. Nonetheless, I can live with Vavilov because it is a clear rule with clear exceptions, and we get something like Chevron  on questions of law when we apply the reasonableness standard (though this does not solve the fundamental issue: see Leonid Sirota here). The presumption of reasonableness is rooted in a plausible, though imperfect, conception of legislative delegation (again, I have my own fundamental objections to it—delegation does not necessarily equal deference). But the “wrongness” of the presumption, in my view, is mitigated by sound exceptions to its application in cases where there is a clear contrary signal “subtracting” from the specific delegation (rights of appeal, concurrent jurisdiction); where the question at issue transcends the legislative delegation (constitutional questions, for example); or perhaps even when it is unclear the delegation extends to the decision-maker at all (see here). And as I say, even on questions where reasonableness applies, we get an approach that takes into account administrative legal errors, statutory language, and which forces more extensive justification to facilitate judicial review on the reasonableness standard.

We live in an imperfect world, and in my view, this old trope extends with even more force to the law of judicial review. So at the end of the day, imperfections in the theory and doctrine do not undermine the workability that Vavilov has achieved. Because selecting the standard of review is categorical, theoretical imperfections aside, the process is much simpler. As I say above, certainty and predictability in the law of judicial review should be built-in, so that citizens can understand how to challenge government action. What I think Vavilov has done is settle the fundamentals, allowing development around the edges, while providing a sound starting point for that development. For this reason, I agree with the overall trend: courts should look to Vavilov’s principles to infuse, to a greater or lesser degree, the doctrine of judicial review where relevant.

Some Major Questions About Major Questions

In West Virginia v EPA, the Supreme Court of the United States, wielding the “major questions doctrine” found that the EPA did not have the statutory authority to adopt regulations implementing the Clean Power Plan, initially proposed by the Obama administration in 2015.  In this post, I describe why I think this decision was ultimately misguided, how the major questions doctrine might be recast, and why some of the dissent’s concerns are themselves misguided. In short, while I share concerns about agency opportunism, I do not think this judicial creation is the solution.

Under the Clean Air Act, the EPA has broad authority to establish regulatory “standards of performance” in relation to certain categories of pollutants. These include the adoption of the “best system of emission reduction,” taking into account various factors, that the EPA administrator “determines has been adequately demonstrated.” Under this provision, the EPA adopted a “generation-shifting” system rather than a plant-by-plant regulation system; in other words, it decided that the “best system of emission reduction” included generation-shifting. A generation-shifting approach, as I understand it—such as cap-and-trade, or investment in alternative sources—is a different sort of regulation because it purports to operate on a system-wide basis, rather than on an individual source basis. The EPA’s regulatory choice thus cut rather broadly to attack emissions across different sectors. There is much more detail in the opinions that I am leaving out for the sake of brevity.

The majority opinion (Roberts CJ) concluded that this was a “major question,” meaning there was “every reason to hesitate” before concluding that Congress meant to confer this authority on the EPA (20, see also Brown & Williamson, at 159-160). In order to draw this conclusion, Congress would need to include special authorization, or a so-called “clear statement.” In “major questions” cases, the majority tells us that “both separation of powers principles and a practical understanding of legislative intent” make it reluctant to find that the EPA’s stated authority here was buried in “vague” provisions like s.111(d) (19); here we see some concern about agency opportunism and attempts to expand statutory authority. The Court tells us that it has, as a matter of course, deployed the major questions doctrine in extraordinary cases where the agency asserts broad authority of economic and political significance (17). Put simply, as the majority frames it, the major questions doctrine is like a substantive canon of construction: the Court proceeds on its own assumption that Congress would not have wanted the EPA to have this authority, absent an explicit statement otherwise.

In dissent, Kagan J attacked the majority’s use of the major questions doctrine. Chiding the doctrine as a “get-out-of-text-free card” (28), Kagan J reasoned that the statute here was broad, but not vague (8). The breadth of the statute was by design. While this was so, Kagan J noted that the grant was also constrained: in concluding what the best system of emission reduction is, the EPA must consider “costs and non-air impacts” while making sure that the best system has been “adequately demonstrated” [7].

For Kagan J, the invocation of the major questions doctrine elided this delegation of power. She reasoned that the “doctrine,” such as it is, had only been deployed as part and parcel of ordinary statutory interpretation, determining the scope of delegated power conferred on an agency: “the text of a broad delegation, like any other statute, should be read in context, and with a modicum of common sense” [13]. Kagan J was concerned that the use of this special rule short-circuited the Court’s duty to actually determine what the statutory provisions meant, and whether the EPA’s regulation fit within the provision. Kagan J goes on to wax poetic about the importance of expertise and the administrative state (I’ve registered my opposition to these particular, age-old arguments before, and renew them to some degree below).

That said, I see a few problems with the majority’s recast of the major questions doctrine:

  • Despite the majority’s protestations otherwise, there has been a shift in the way the major questions doctrine works. Scholars, as I read them, tend to disagree about which cases mark the turning point, but I think it is fair to say that WV v EPA is the capstone. As I understood it, the doctrine was previously attached to Chevron deference. If a question was a “major question,” it was a reason to deny deference to the agency’s asserted interpretation; not a presumptive rule against ordinary agency action in certain, ill-defined “major” areas. But now the doctrine has taken on a life of its own; gone is Chevron. The lineage of this change does not suggest that it is justified.

 In Brown & Williamson, for example, the Court conducted a normal statutory analysis as prescribed under Chevron Step 1, and concluded that “Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products” (Brown & Williamson, 126, 132). It was only after this exhaustive analysis that the Court additionally concluded that, given Congress’ structured and deliberate scheme for tobacco regulation, the FDA could not likely have been given the authority to regulate tobacco products (Brown & Williamson, 159-160). This was not a standalone, substantive canon of construction; it was a tool of judicial common sense, an insight drawn from the application of the tools of interpretation, to determine that a statute precluded the agency’s view. Second, in Utility Air, the majority (Scalia J) questioned whether the agency’s construction could be reasonable under Chevron Step 2, given its “claim to extravagant statutory power” (Utility Air, at 20). Here, the “major questions” concern operates as a sort of defeasible outer limit that limits the range of reasonable options at Chevron Step 2. Even in King v Burwell, the Court used the major questions exceptions as a means to an end: to conclude that it should conduct an independent assessment of the statute in that case. In all of these cases, the major questions doctrine was operating more as an “add-in,” or “tie-breaker”: see, relatedly, fn 3 of the concurring opinion of Gorsuch J.

So, quite aside from the sotto voce overturning of these, weaker versions of the major questions doctrine, the consequences of moving from a deference rule (a rule changing the intensity of review, but not changing the legislature’s delegation process) to a delegation rule (a rule denying a power to delegate straightforwardly on an ill-defined set of questions at all)  is not small, and there are two. First, because the Court only offers a set of mushy guidelines for what constitutes a “major question” on which Congress will require an explicit statement, Congress may be left wondering how and when it must make itself “clear.” Second, on principle, Congress regrettably must—according to the Court’s standards—make itself clear. This was not required under Chevron. As Kagan J notes, the major questions doctrine—as deployed by the Court in WVA v EPA—basically shortcircuited this statutory analysis. Instead, rather than determining whether the statute supported the EPA’s reading, the Court was rather results-oriented: because the issue is big, even normal statutory authorization should not count, even though the EPA’s view was plausible (and certainly not vague—as Kagan J says, the issue here is breadth). It is plausible, as the majority suggests, that Congress did authorize this power in the text of its law. But this authorization was not explored, or otherwise, was inexplicably not enough.

  • Gorsuch J, in a concurring opinion, attempted to avoid this conclusion by stating that substantive canons of construction are accepted tools of interpretation. Indeed they are. But one should evaluate the lineage and triggers for these substantive presumptions, and at any rate, all should agree they should be used with caution and rooted in consistent doctrine and principle. Otherwise, they can be manipulable “get out of text free” cards. For this reason, many of the substantive canons are rooted in clear constitutional concerns: for example, some of the presumptions concerning federalism.

What is the constitutional basis of this form of the major questions doctrine?  One candidate might be the same pool of principles that grounds the non-delegation doctrine. But I think it is hard to justify this doctrine as some extension or analogue to the non-delegation doctrine (cf Cass Sunstein) in the mould of the Benzene Case. Undoubtedly, one can conceive of some important similarities—the Court has sometimes gestured to an asserted power as being too broad to justify Chevron deference. But, again, in all the cases, the problem was simply that Congress had foreclosed such extravagant regulation. Instead, the non-delegation doctrine, as a constitutional doctrine, is primarily concerned with the scope of delegated power. Courts seek an intelligible principle to determine whether the power is adequately guided. The idea is that, absent a guiding, legislative principle, an agency is exercising legislative power unconstitutionally, in a manner contrary to Article I.

While there are powerful historical arguments against the non-delegation doctrine that I am not equipped to evaluate, I take it as a given that it is alive and well, and that it—at least in some part—aims at preserving legislative power and control over administrative decision-making. Nonetheless, the new major questions doctrine deployed by the Court in WV v EPA is not, at least primarily, concerned with the breadth of delegated power per se. As Kagan J recounts, the delegation of power to the EPA in this case is, indeed, broad, but it is not beyond the pale. The EPA does have some meaningful constraints built-in to the statute, and such constraints likely save the delegation from any challenge on non-delegation grounds. The major questions doctrine, then, isn’t so concerned with the breadth of delegated power as much as the significance of the issue at hand. But issue significance does not necessarily equal broad delegated power; in other words, we can have broad delegated power in unimportant areas, which could plausibly raise non-delegation concerns, or we can have narrow delegations in important areas, which would raise major questions concerns. These doctrines are aiming at different things. As John Manning so eloquently said: “If the point of the nondelegation doctrine is to ensure that Congress makes important statutory policy, a strategy that requires the judiciary, in effect, to rewrite the terms of a duly enacted statute cannot be said to serve the interests of that doctrine.”

In whole, the result of this doctrinal shift is a complication of the basic task of the law of judicial review, and an arguable corruption of the legislation delegating the power at issue. The law of judicial review is designed to be an adjunct branch of statutory interpretation, to determine the scope of powers granted to an administrator. Whether Chevron has one or two steps, this is the core of the thing. With this new major questions doctrine, the law of judicial review is somewhat different. Less important is the text of the laws delegating power. More important is whether the court thinks the issue over which the power is delegated is “important” or “big” enough. This abstracts away from the core question on judicial review: does the agency have this asserted power to conduct this action, no matter how big the problem  may be?

II.

With these concerns in mind, I think it might be useful to consider how Canada deals with questions of this sort, because I think the doctrine aims at some of the same concerns as the major questions doctrine while avoiding some of the potential pitfalls, as I see them.

 In Canada, our going-in presumption is reasonableness review (for an apt description of why Canada gets this backwards in relation to the United States, see Leonid Sirota). This presumption can be rebutted, in which case the court reserves to itself the right to pronounce on the legal issue without any deference. One of the circumstances in which the presumption can be rebutted is in cases involving “general questions of central importance to the legal system as a whole” (see Vavilov, at para 58 et seq). This category has much in common with the gist behind the “major questions” category, but there are important differences. First, the justification for the central questions category in Canada is not concern about delegated power; rather, it is designed to protect the role of the judiciary as the most important external check on administrative power. Issues that are considered centrally important must be answered consistently by courts, because they engage the rule of law, over which the judiciary is the primary guardian. Notably, however, in defining a central question, the courts are careful not to unduly eat away at the legislature’s right to delegate power. As the Supreme Court says, “the mere fact that a dispute is ‘of wider public concern’ is not sufficient for a question to fall into this category—nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue” (Vavilov, at para 61).

And so the questions recognized by the court concern the stability of the legal system, issues that transcend an administrator’s particular statutory grant of authority. These issues have typically concerned constitutional or quasi-constitutional issues. For example, in University of Calgary, the question was whether a decision of an administrator that a statute permits solicitor-client privilege to be set aside. The Court refused to defer in this case, because solicitor client privilege has a constitutional dimension, and the “question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is a question that has potentially wide implications on other statutes” (University of Calgary, at para 20).

Why is this doctrine preferable, at least on these points, to the major questions doctrine, as deployed in WV v EPA? For one, the Canadian version expressly forecloses the possibility that an issue’s importance factors into the analysis. Many issues can be characterized as important; this is the challenge of the law of judicial review, to channel and sometimes restrict administrative power over these important areas of public life. Second, the benefit of a rule restricting deference is that it can be justified with reference to fundamental tenets of the law of judicial review. There are good rule of law reasons, pertaining to the judicial duty to pronounce the law, to carve away deference in cases where an agency attempts to exert power in a way that may transcend its own statute, or engage quasi-constitutional norms. Legislatures should not be impliedly granted the power to, by delegation, carve away the core powers of judicial review. And so,  uniformity of the administrative justice system requires not percolation, but correct answers. This approach also answers for the problem of agency opportunism: an agency that seeks to manipulate its own powers in order to affect these broader areas of legal importance should be met with a resolute judiciary. Nonetheless, the category is pared down not to every conceivable important issue, but to core concerns of the judiciary that implicate the rule of law. With these more narrow justifications, I would venture that the Canadian law of judicial review—only on this score—may be more stable than the American.

III.

In the meantime, I do not expect nor suggest that American courts should look to Canada for guidance. Even still, I do not think that the US situation is as dire as the dissent and some commentators suggest. As Kristin Hickman notes, Congress can rectify the ruling in WV v EPA tomorrow (even if it should not have to): it can simply legislate a clear statement. To be clear, this is an additional, probably unjustified hurdle. But the ball is in Congress’ court.  And, as I have argued before, non-delegation limits on administration will not hobble administration, and may actually incentivize better deliberation and guidance.  Further, administrative government is vast, and few regulations are challenged such that this case will make a difference on a wider scale. These are the practical realities that limit this new major questions doctrine, but I admit there may be more I am simply missing or misunderstanding

Nonetheless, as far as it goes, the new major questions doctrine that matured in WV v EPA is unwelcome from my perspective. Unlike the non-delegation doctrine, it cannot easily be traced to the same constitutional concerns, and it is isn’t immediately clear to me that “clear statements” will really provoke much deliberation. The doctrine appears to be a wholly judicial creation; it complicates the law of judicial review, puts a hurdle up for Congress, and finds no real animating purpose, beyond nods to concerns already covered by the existing non-delegation doctrine. I stress, as I did above, that I too worry about “bureaucratic domination,” drift, etc. But these are concerns that are best kept in check by a legislature and by consistent and principled application of the law of judicial review. Creating an amorphous thumb on the scale, in this manner, is an ill-fit.

Nothing Doing

A brief rebuttal to responses to my last post on inappropriate criticism of the US Supreme Court’s abortion decision

My post yesterday, which took issue with what I see as disturbingly political criticism of the US Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization has attracted a number of responses, and it might be worth offering a quick rebuttal to the negative ones. As with yesterday’s post, the aim is not to dunk on individuals, but to address what I see as trends.

Response #1: But there are American professors, to say nothing of the dissenting judges in Dobbs, who have criticized the decision!

Sure. And insofar as their criticism is based on constitutional argument, that’s great. But that doesn’t absolve the people who choose to criticise based on political rather than legal claims.

Response #2: Dobbs breaks the rules of stare decisis!

If most criticism of Dobbs by Canadian and other lawyers, law professors, and organizations were actually focused on its treatment of precedent, I would not have written yesterday’s post. But it just doesn’t. I have seen professors share cartoons of majority judges as Taliban.

I would also note that there is, at the very least, a danger of inconsistency when people put too much of an emphasis on arguments from precedent. To be sure, arguments about inconsistency or even hypocrisy aren’t as interesting as people sometimes think, because they don’t answer the question of when the inconsistent or hypocritical person is actually right. But from the standpoint of personal integrity the issue is worth keeping in mind. And so, how many of those Canadian readers who defend the US Supreme Court’s previous abortion decisions on this basis were as critical of the Supreme Court’s of Canada reversal of precedent on, say, assisted suicide as they are of Dobbs? How many would have been as critical if the 2016 election had gone just that little bit differently and a left-leaning US Supreme Court had reversed Citizens United v Federal Election Commission, 558 US 310 (2010)?

Speaking of electoral outcomes and judicial appointments:

Response #3: The Dobbs majority judges were appointed by politicians who wanted to secure just this result!

So they were. But so what? A judicial decision stands or falls on its legal correctness. If it is correct, it doesn’t matter why the judge who made it was appointed. Ditto if it is wrong, of course. The issue of inconsistency or double standards is really worth thinking about here. The Justices appointed by Franklin Roosevelt were meant to uphold the New Deal policies, and did so. Earl Warren was a former politician, appointed by Dwight Eisenhower for crassly political reasons, so far as I understand. Are the decisions of the New Deal and Warren courts illegitimate for that reason alone? Nobody thinks that. Some were right, and some were wrong, and to say which were which we need to make a legal argument. So it is with Dobbs.

It’s also worth pointing out that the judges who dissented in Dobbs were also appointed with their views on this issue top of mind, and that their votes not only on this point but on almost every other are more closely aligned than those of their right-leaning colleagues. Yet somehow their votes are not dismissed as hackery for that reason.

And, before Canadians get self-righteous about just how political American judicial appointments are, they should recall that appointments to the Supreme Court are no less political, if perhaps less transparently political, here. So far as I’m concerned, that’s fine. If you take a different view, that’s fine too. But if you only proclaim this view in response to a decision you particularly dislike, I won’t take you too seriously.

And this brings me to

Response #4: But Dobbs is just different because it’s too important!

And, alternatively

Response #5: All constitutional decisions about rights are political anyway!

Thanks for making my point. You think that sometimes (#4), or indeed always (#5), constitutional adjudication is a political, not a legal, endeavour. This is a plausible view, but it is inconsistent with accusing the Dobbs majority of hackery ― they merely take the different side of a contentious political issue. And you should be advocating for the abolition of judicial review, à la Jeremy Waldron, because there’s no justification for having political decisions made by a small committee of unelected lawyers. As I pointed out yesterday, Dobbs is actually a step in the right direction from that perspective. If people were to take the Waldronian position openly, I’d debate them on the merits and be content. But when they insist on having judicial review of legislation, but only provided it goes just the way they like, I am upset and alarmed.

Who’s Afraid of the Rule of Law?

Many critics of the US Supreme Court’s decision on abortion rights themselves embrace a purely political view of adjudication

Since the US Supreme Court released its decision in Dobbs v Jackson Women’s Health Organization, which overruled precedents finding a right to abortion in the US Constitution, there has been a great deal of public anguish and anger, not only in the United States but elsewhere too. In this post, I want to say something about non-American, and especially Canadian, responses. I won’t “bring receipts” ― that is, I won’t be linking to tweets, articles, etc. Partly, that’s because there are too many for any sort of representative survey. But mostly, because I will be very critical and don’t mean to target anyone in particular. The reason for writing this post is that I think I’m seeing broad and disturbing trends, not to dunk on individuals. If you think I’m describing things that aren’t there, well, I hope you’re right. But I doubt you are.

Let me note that this criticism does not mean that I am convinced Dobbs was correctly decided. I do not know enough about the original meaning of the 14th Amendment to the US Constitution to say whether it was. And to a large extent, this will be my point: one has to know the law before saying that judicial decision was wrong, let alone implying that it was political or indeed corrupt, as many have done. And the non-American critics of Dobbs (many American ones too, to be sure) don’t know enough and seemingly don’t care. I can understand ― though by no means approve of ― this when the people involved are politicians or other non-lawyers. But it distresses me when the same comments are made or shared by lawyers, professors, and bar associations.

Before I get to why that matters, a quick word on a genre of reaction to Dobbs that has, I think, been especially common in the UK. The decision, we are told, shows how bad it is to have the courts deciding matters of great social concern; or indeed it proves that judicial review of legislation is a misbegotten arrangement. Respectfully, this makes no sense. Dobbs holds that there is no constitutional right to an abortion. This means that the legality of abortion will, for the foreseeable future, be decided by democratically elected legislatures, probably at the State level, though I take it that there have been noises about Congress intervening on one or the other side of the issue. (I don’t know enough to say whether that would be constitutional, but I have my doubts). And that’s exactly what the critics of judicial review and judicial power want ― legislators rather than courts settling rights issues. Dobbs gives them, on this issue, what they say they are after. It cannot logically prove that judicial review is bad ― if anything, it shows that judicial review can be sensitive to their concerns. (This blog’s readers will know, of course, these are concerns I mostly do not share.)

But the most common type of reaction to Dobbs holds that it is a manifestly wrong decision made by partisan hacks and/or (more likely “and”) misogynists, and one that shows that the US Supreme Court isn’t a real court and that it will, wittingly or not, destroy the rule of law. I think that, putting these claims in the best possible light, to the critics it is simply inconceivable that in this day and age the constitution of an enlightened state committed to the Rule of Law would not protect a woman’s right to choose an abortion. Hence, a judicial decision holding that the US Constitution does not protect this right is egregiously wrong and either bigoted or partisan or both.

But the premise is quite obviously misguided. Take Australia, which, like Canada before 1982, has (virtually) no national protections for individual rights. If somehow a case arguing that there is an implied right to an abortion similar to the implied freedom of political communication that Australian courts have in fact inferred from the Commonwealth Constitution made its way to the High Court, and the High Court rejected the claim, would the critics of Dobbs be saying that its judges are bigots and hacks? Perhaps they would, and this is a rather scary thought ― it would mean that to avoid being tarred as a bigot and hack a judge would need to be willing to quite clearly make things up. More likely, though, they would not. The idea that an existing constitution “in a free and democratic society”, to borrow the Canadian Charter‘s language, does not protect abortion rights is not unintelligible.

Ah, but Australia is different, they might say. It actually lacks a national bill of rights, and the United States obviously don’t. That’s true so far as it goes, but you might think that the response to that is a given bill of rights may or may not protect a given right, even an important and widely recognized one. The Charter, for instance, doesn’t protect property rights. Whether a given bill of rights protects a given right is a question of law, to be authoritatively answered by the courts responsible for applying that bill of rights and, not authoritatively but importantly, by anyone with a sufficient knowledge and understanding of the constitution in question.

A judicial decision holding that a given constitution doesn’t protect a given right, such as Dobbs, can result from two causes. (1) The court may be wrong. It may be just wrong in the way that courts staffed by human beings are sometimes wrong, or it may even be captured by hacks or bigots. Or (2), it may be the case that the constitution actually fails to protect the right in question. Then the constitution may then be defective; it may stand in urgent need of amendment, and be subject to criticism until that takes place. But, for its part, the court faithfully applying this constitution would be blameless.

The critics of Dobbs are convinced that it falls into category (1). But they make no argument to exclude the alternative (2). Such an argument would need to parse the relevant provisions of the US Constitution in accordance with some plausible interpretive methodology. And not only do the Canadian and other non-American critics of Dobbs not articulate such an argument; they are ― and I say this with respect, if only because I am in the same position as they ― not qualified to do it. (That’s obviously not because you have to be American to be so qualified, but because you do need to study the relevant materials.) Without an argument for why Dobbs is wrong as a matter of US constitutional law, criticism of the US Supreme Court’s majority is at least as unfair and unjustified as any of, say, Stephen Harper’s attacks on the Supreme Court of Canada or the British government’s on the Supreme Court of the United Kingdom.

Why are we seeing such criticism? And why do I care, anyway? The answer to both question is the same: I strongly suspect that a great many people, including, most regrettably, lawyers (including those of the academic and journalistic varieties) are themselves taking an entirely political approach to law. It does not matter to them that they do not know enough US constitutional doctrine and history to articulate a plausible interpretation of the relevant provisions, or that many of them might not even know what these provisions are. At best, they think that a constitution is sufficiently interpreted by reference to purely moral considerations. At worst, that one need not bother with anything resembling interpretation and that only the rightness of the outcome matters to how we think about judicial decisions. But there is little daylight between these two views.

And this bothers me to no end, because I doubt that the people ― the lawyers ― who take such an approach to opining on the US constitution would take a different one to the constitutions of Canada or of the UK. If you think that the US Constitution is all about morality or the vibe of the thing, there is no reason why you wouldn’t think that about any other. To my mind, this, rather than the decision in Dobbs ― which may, for all I know, be quite wrong ― is tantamount to a rejection of the Rule of Law. I understand that people are upset about Dobbs. If some country commissioned me to write a constitution and to just do what I thought was right, I would include abortion rights, and property rights, and many other rights besides. But that doesn’t mean that any existing constitution protects my pet list of rights and liberties. If you cannot accept that any existing constitution might also not protect yours, you don’t believe in law. Sorry.

The Cake Bill

The flaws in the UK government’s two-faced Bill of Rights Bill

The UK government has introduced its Bill of Rights Bill: a long, if not exactly eagerly, awaited replacement for the Human Rights Act 1998, which gives effect to the European Convention on Human Rights in UK law. The Bill will limit the ability of the UK courts to enforce rights protections in the UK in various ways, some of them arguably defensible ― at least in the abstract ― and many not defensible at all. In this, I offer my initial thoughts on some of the Bill’s most salient aspects. My overarching theme will be that the government is trying to have its cake ― or rather, several different cakes ― and eat it ― or them ― too.

It may be worth briefly noting where I’m coming from on this. I think that I am more sympathetic to the concerns with judicial overreach in the implementation of the Convention and the Human Rights Act 1998 than many, perhaps most, UK public law academics. Moreover, I have no particular attachment to the Convention and especially the European Court of Human Rights, whose judgments consistently strike me as unimpressive or worse. At the same time, as readers of this blog will know, I do strongly favour protections for individual rights vigorously enforced by an independent judiciary. So if the point of human rights law reform were for the UK to go its own way and even leave the Convention so as to reject the Strasbourg Court’s mistakes, while making robust arrangements to secure rights, I would be quite happy.

But that is not at all what it is proposed. It would be an exaggeration to say that the Bill embraces the worst of both worlds ― the Convention/Strasbourg world and that of UK parliamentary sovereignty ― but it blends them in a way that strikes me as remarkably inelegant and unattractive.


For all the talk of a “British bill of rights” over the years, the Bill of Rights Bill remains closely tethered to the Convention. It (largely) eschews any definition of rights, and in clause 2 tamely incorporates by reference the substantive provisions of the Convention (which are also set out in a Schedule), just as the Human Rights Act had done. It also refers to various other definitions and provisions of the Convention. Perhaps this was the path of least resistance, but if the idea was to produce a statement of the UK’s own commitment to rights, this is a missed opportunity. Perhaps, on the contrary, the government wanted to signal that rights are simply alien to the UK’s legal system. That would be a deplorable distortion of the (admittedly complex) historical and constitutional truth. Either way, this is an example of the government trying to have it both ways: both distancing the UK legal system from that of the Convention and the Strasbourg court, but also remaining bound to it.

The main apparent exception to this refusal to articulate a distinct list of rights concerns clause 4 of the Bill, which refers to “the right to freedom of speech”. The Convention itself refers, instead, to the freedom of expression. But this distinction is mostly for show. Subclause 2 clarifies that “‘the right to freedom of speech’ means the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).” Again, the Bill is acting like Very Grownup child who will not stray out of mommy’s sight.

More importantly, clause 4 is mostly just for show substantively. Its first subclause says that “a court must give great weight to the importance of protecting” free speech. Put to one side the question of what this even means, and whether courts now fail to “give great weight” to the freedom of speech. This hardly matters, because subclause 3 excludes most conceivable use cases from the scope of clause 4’s application. Freedom of speech is not to be given great weight in deciding “any question [regarding] a provision of primary or subordinate legislation that creates a criminal offence”, or questions about contractual or professional duties of confidentiality, or immigration, citizenship, and national security cases. Just that! What’s left? So far as I can tell, defamation and privacy issues (and note that clause 22 of the Bill puts a thumb on the scale against pre-trial restraints on publication ― though it does not prevent them entirely). It’s not nothing, I suppose, but a provision that grandly announces the importance of an English-sounding freedom of speech (rather than the dastardly Latinate “expression”) only to clarify that it applies only to fairly narrow categories of cases is another example of the Bill’s two-facedness.

I turn now to a different aspect of the Bill, the one to which I have at least a modicum of sympathy: its interpretive provision, clause 3. The Bill does away with one of the contentious elements of the Human Rights Act, section 3 (coincidentally), which provided that “[s]o far as it is possible to do so … legislation must be read and given effect in a way which is compatible with the Convention rights”. Courts took that pretty far, holding at one point that even unnatural readings of statutory provisions were “possible”, provided they did not mess with the main thrust of the legislation at issue. Where primary legislation was concerned, such re-interpretation was the only remedy that could do an applicant some tangible good, and moreover it avoided the need to declare legislation incompatible with convention rights. But by my own lights it was inappropriate nonetheless, and I am not sorry to see it go. I wish the UK allowed the courts to disapply legislation incompatible with rights, but I don’t think that judicial re-writing is an appropriate substitute for such a remedy (see e.g. here).

I also appreciate the Bill’s gesture at textualism and perhaps even an originalism of sorts with its requirement, in clause 3(2)(a) that courts interpreting a Convention right “must have particular regard to [its] text … and in interpreting the text may have regard to the preparatory work of the Convention”. As an abstract matter, this is the right approach to interpretation. More on whether it makes sense in the context of UK human rights law presently. First, let me note that the Bill doesn’t actually embrace originalism, because it also allows the court to “have regard to the development under the common law of any right that is similar to the Convention right”. Contrast this with the Supreme Court of Canada’s rightful scepticism of jurisprudential developments post-dating the framing of the Charter in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 (on which see here).

Anyway, the trouble is that this provision is another show of rigour and independence that will do no one much good. To the extent that the courts will follow it and adopt readings of Convention rights that are tethered to the text and “that diverg[e] from Strasbourg jurisprudence” as contemplated by clause 3(3)(b), they simply ensure that the Strasbourg court will find that the UK has violated its Convention obligations as interpreted by Strasbourg itself. It will be a pain in the neck for claimants, and it might allow the government to rage at those unconscionable European judges ― indeed, it is hard not to wonder whether this, as much as anything else, is really the point ― but that’s about it. The UK cannot unilaterally change the way the Convention is interpreted, even if its proposed interpretive methodology is better than the one endorsed by the European Court of Human Rights, and it cannot escape its Convention obligations by proclaiming that Strasbourg jurisprudence is no part of UK law.

Other interpretive provisions aren’t even well-intentioned. Clause 3(3)(a) makes adjudication of Convention rights into a one-way-ratchet by providing that courts “may not adopt an interpretation of [a] right that expands the protection conferred by the right unless the court has no reasonable doubt that” Strasbourg would do the same. While I understand discomfort with the idea that rights can be ― seemingly ― forever expanding by judicial fiat, this is unambiguously bad, though not unambiguously much else. The Bill doesn’t explain what it means by “expand” ― notably, what is the baseline? The existing Strasbourg jurisprudence? The original meaning? The original expected applications? Just what is “the protection” that must not be expanded? Does a new factual scenario count? And, fundamentally, whatever this all means, why is that (by implication) restricting the scope of a right is permitted but expanding it is not? If rights are in some sense fixed, they must be fixed against restriction as well as expansion; indeed, this is an important argument for originalism (see e.g. here), though not the most important one.

Another largely arbitrary limitation on the way rights are to be interpreted and applied is clause 5, which prohibits interpretations of Convention rights that would impose “positive obligation[s]” on public authorities ― i.e. simply require them “to do any act”. (The prohibition is categorical for the future cases, while existing interpretations that would fall afoul of it can only be retained on some stringent conditions.) Now, here too, I have some sympathy for the underlying motivations: so far as I can tell, the Strasbourg court can be fairly cavalier with demands that authorities do this or that, and its conception of the limits of the judicial role is different from that which you will find in common law jurisdictions. The Convention itself protects primarily what are known as negative rights ― that is, “freedoms from” rather than “rights to”. But understandable motivations aren’t enough.

The lines drawn by the Bill are too rigid. While it can be a useful guideline, the distinction between positive and negative rights is not nearly as clear-cut as the Bill’s drafters seem to assume. Sometimes, this is a textual evidence. Take Article 3 of the First Protocol to the Convention, by which the UK “undertake[s] to hold free elections at reasonable intervals by secret ballot”. This is manifestly a commitment to “do acts”, lots and lots of them, and if the UK should fail to live up to it, I don’t understand how a court ― let alone a court having “particular regard to the text” can decline to order the government to get on with it. Once again, Strasbourg, here we come. But this is only the most obvious example. Even a seemingly purely “negative” right, say to be free from a random arrest by a rogue police officer, can have a positive corollary ― namely, to be promptly released if so arrested. Does the government really think a UK court should not be able to infer such a right (assuming it has not already been inferred ― sorry, I am far from being fully caught up on Convention jurisprudence) from Article 5 of the Convention? Meanwhile, the Bill doesn’t address what might actually be a more disturbing aspect of Strasbourg’s positive obligations jurisprudence: the indirect imposition of such obligations on private parties, who are thus burdened with duties the Convention quite clearly didn’t intend to impose on them.

I finally turn to the last issue I want to discuss at some length: the Bill’s attempt to force courts to defer to Parliament. Specifically, clause 7 provides that, when determining whether a statutory provision is incompatible with a Convention right and, in the course of doing so, “decid[ing] whether the effect of the provision … strikes an appropriate balance between different policy aims [or] different Convention rights, or … the Convention rights of different persons … [t]he court must regard Parliament as having decided … that the Act” does strike such a balance. The Court is, further, to “give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament”. One problem with this is that it is all quite vague. Indeed, perhaps all this bluster means nothing at all. A court may well stipulate that Parliament decided that its law was fine and dandy and conclude that the greatest possible weight to give to this decision is precisely zero. On its face, the clause doesn’t actually preclude that.

But of course that’s not the interpretation the government will be hoping for. So let’s try taking this clause more seriously. So taken, clause 7(2)(a), which deems Parliament to have appropriately balanced all the rights and policy considerations involved is reminiscent of the late and unlamented “presumption of expertise” in Canadian administrative law, whereby courts were required (albeit by judicial precedent, not an Act of Parliament) to pretend that administrative decision-makers were experts regardless of whether the decision-maker in question had demonstrated any expertise bearing on the issue or could be plausibly expected ever to do so. I have called this “post-truth jurisprudence“, and I regard clause 7(2)(a) as a specimen of similarly post-truth legislation. It demands that the courts accept for a fact something that will by no means always be true. Many rights issues are unanticipated ― indeed, they arise precisely because they were not thought of when the legislation was being drafted. To the extent that, as the Bill’s drafters want us to believe, Parliament does take rights seriously, it will usually redress the issues it can anticipate before enacting legislation. It is no calumny against Parliament, however, to say that it cannot foresee all the problems that can arise. If anything, the calumny is to insist that whatever problems do occur, Parliament must have intended them to.

And then, there’s the matter of the assertion in Clause 7(2)(b) that decisions about balancing rights, or rights and policies, “are properly made by Parliament” “in a parliamentary democracy”. The “parliamentary democracy” bit is either a red herring or a misnomer. There are parliamentary democracies with robust judicial review of legislation ― Germany and India come to mind. What the Bill really means, but doesn’t quite want to say, is something like “a constitution based on parliamentary sovereignty”. Indeed, clause 7(2)(b) is reminiscent of the language in the preamble of Québec’s anti-religious dress code statute, which proclaims that “in accordance with the principle of parliamentary sovereignty, it is incumbent on the Parliament of Québec to determine the principles according to which and manner in which relations between the State and religions are to be governed in Québec”, by way of foreshadowing exclusion of judicial supervision of this law’s compliance with constitutional rights. I cannot help but suspect that the UK government is deliberately less forthright than its Québec counterpart because, yet again, it is trying to have its cake and eat it too. It wants to make courts to rubber-stamp parliamentary legislation instead of passing their own judgment on its compliance with rights, but it doesn’t want to admit that it is undermining the (already weak-form, and often quite deferential!) judicial review that UK courts have been engaging in. It might even be hoping to trade on the respect the European Court of Human Rights has developed for UK courts over the years to persuade the Strasbourg judges that legislation they rubber-stamped was really alright. I doubt it will work very well.


There would be a lot more to say. Much ― really, a shocking part ― of the Bill is devoted to nipping various claims in the immigration and refugee context in the bud. Some ― though less ― also tries to stick it to prisoners. I don’t like that one bit. As the most intelligent and principled opponent of judicial review of legislation, Jeremy Waldron, has come to recognise, if anyone has a claim to the assistance of the courts in order to defend their rights, it is precisely these groups, often unpopular and politically voiceless. Instead of being granted special solicitude, they are disgracefully singled out for special burdens. That said, in various smaller ways the Bill gets in the way of other rights claimants too.

But this is already a long post, and it should be clear enough that, in its present form, the Bill is not much good. To repeat, I’m no great fan of the Human Rights Act that it is meant to replace. That law’s weaknesses are mostly baked in for as long as the UK remains party to the Convention, but perhaps some of them could have been ameliorated. Instead of trying to do that, the government came up with a set of proposals that will, if enacted, make everything worse. Quite radically worse for some people, and less radically, but just enough to be noticeable, for everyone else. And for what? Chest-thumping now, and lost cases at Strasbourg later. Even a sovereign legislature in a parliamentary democracy can only ever say that it will have its cake and eat it too; it cannot actually do it.

Undignified

The Supreme Court holds that life imprisonment without parole is unconstitutional. Its reasons are unconvincing.

In R v Bissonnette, 2022 SCC 23, the Supreme Court unanimously finds unconstitutional the provision of the Criminal Code that, in effect, allowed persons found guilty of multiple murders to be sentenced to life imprisonment without parole. The Court holds that the denial of a chance at release to all those on whom such sentences are imposed makes their imposition cruel and unusual, regardless of the nature of the crimes leading to it, and so contrary to section 12 of the Canadian Charter of Rights and Freedoms. In my view, the Supreme Court is wrong.

The case concerns a man who, executing a premeditated plan, entered a mosque “and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers. In less than two minutes, he caused the death of six innocent people” [11] and injured others. The prosecution sought to have him sentenced to serve the mandatory periods of parole ineligibility for each of the murders consecutively, amounting to a total of 150 years. But the Superior Court and the Court of Appeal both found that doing so would be unconstitutional. The former re-wrote the law to impose a 40-years ineligibility period. The latter simply struck it down and imposed the default sentence for a first-degree murder, life imprisonment and parole ineligibility for 25 years.


Writing for the Court, the Chief Justice draws on its recent decisions in Quebec (Attorney General) v 9147‑0732 Québec inc, 2020 SCC 32 and Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, to hold that section 12 of the Charter protects human dignity, which “evokes the idea that every person has intrinsic worth and is therefore entitled to respect”. [59] A punishment may contravene section 12 in two distinct ways. The more familiar one, which is involved in cases on mandatory minimum sentences that make up the bulk of section 12 jurisprudence, involves punishment that is grossly disproportionate to the particular offence for which it is imposed. To decide whether a given punishment is contrary to section 12 on this basis, the court must consider the offence. But there is a separate and logically prior category of section 12 breaches. It concerns punishments that are “intrinsically incompatible with human dignity”. [60] Here, the question of disproportionality does not arise at all; the punishment is simply not one that may imposed, no matter the offence. This category is “narrow” [64] but its contents “will necessarily evolve” along with “society’s standards of decency”. [65]

A punishment that belongs to this category “could never be imposed in a manner consonant with human dignity in the Canadian criminal context” because it “is, by its very nature, degrading or dehumanizing”, taking into account its “effects on all offenders on whom it is imposed”. [67] The Chief Justice adds that “the courts must be cautious and deferential” [70] before concluding that a punishment chosen by Parliament is of such a nature. However, once they reach this conclusion, because the imposition of such punishment is categorically forbidden, it can no more be discretionary than automatic, and it will not be mitigated by the existence of a prerogative power of mercy.

With this framework in mind, the Chief Justice considers whether effective life imprisonment without parole, which is what a parole ineligibility period of 50, let alone 75 or more years amounts to, falls into the category of punishments that “degrading or dehumanizing” by nature. In his view it is. There seem to be two somewhat distinct though no doubt mutually supportive reasons why this is so. On the one hand, such a punishment denies the important of rehabilitation as a part of the sentencing process. On the other, it is especially harsh on those subject to it.

On the issue of rehabilitation, the Chief Justice argues that life imprisonment without parole is incompatible with human dignity because “it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation”. [81] Rehabilitation is inextricably linked to human dignity, and “negat[ing] the objective of rehabilitation from the time of sentencing” “shakes the very foundations of Canadian criminal law”. [84] Even if rehabilitation seems unlikely, “[o]ffenders who are by chance able to rehabilitate themselves must have access to a sentence review mechanism after having served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. [85] Rehabilitation can take the back seat to denunciation and deterrence, but not left by the wayside, as it were. The Chief Justice adds that “the objectives of denunciation and deterrence … lose all of their functional value” after a point, “especially when the sentence far exceeds human life expectancy”, which “does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system”. [94]

As for the harshness of life sentences without parole, the Chief Justice quotes descriptions of this sort of punishment as tantamount to a death sentence and writes that “[o]nce behind prison walls, the offender is doomed to remain there until death regardless of any efforts at rehabilitation, despite the devastating effects that this causes”, [82] such as “the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world”, [97] which can even lead some to suicide. But the Chief Justice is clear that this does not foreclose each and every sentence that would have the effect of “dooming” the offender to remain in prison until death: “an elderly offender who is convicted of first degree murder will … have little or no hope of getting out of prison”. [86] This is nonetheless acceptable “since it is within the purview of Parliament to sanction the most heinous crime with a sentence that sufficiently denounces the gravity of the offence”. [86] What matters is that the existing 25-year parole ineligibility period does not “depriv[e] every offender of any possibility of parole from the outset”. [86]

The Chief Justice then considers comparative materials, reviewing the laws and some case law from a number of countries, as well as some international jurisdictions. I will not say much about this to avoid overburdening this post, though the Chief Justice’s comments about the way in which such materials can and cannot be used, which echo those of the majority in Québec Inc, are worth considering. I will note, however, that the most pertinent comparative source of them all, the sentencing judgment in the New Zealand case of  R v Tarrant, [2020] NZHC 2192, about which I have written here, is simply ignored. This isn’t entirely the Chief Justice’s fault, since, so far as I can tell, the factums for the prosecution and the Attorneys-General of Canada, Québec, and Ontario also fail to mention it. Yet I find the omission striking, and culpable on the part of both the lawyers and the Supreme Court.

Finally, having found a breach of section 12 of the Charter, and in the absence of any attempt by the government to justify it, the Chief Justice considers the remedy to grant. I will not address this issue here, but stay tuned ― there will be more on it on the blog in the days or weeks ahead.


The Chief Justice’s opinion does not persuade me. For one thing, it sits uneasily with precedent. The Chief Justice duly quotes his predecessor’s judgment for the unanimous Supreme Court in R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180, to the effect that sentencing principles, “do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s 12 of the Charter“. [71] This includes both the principle of proportionality and “other sentencing principles and objectives” [Bissonnette, 53] That would seem to include rehabilitation, which the Chief Justice enumerated in the discussion sentencing principles that precedes this passage. And yet it follows from the rest of his judgment that rehabilitation is in fact constitutionally protected. It has a special relationship with human dignity, and cannot be excluded, contrary to the suggestion in Safarzadeh-Markhali, which, however, is not overruled or indeed even discussed at this point in the Chief Justice’s reasons. This is a muddle, which is not helped by the Chief Justice’s disclaimer of any “intent … to have the objective of rehabilitation prevail over all the others”. [88] If rehabilitation, alone among the sentencing objectives and principles ― even proportionality ― is constitutionally entrenched, then it is indeed put on a different plane.

The Chief Justice might think that his disclaimer holds up because, as we have seen, he insists that rehabilitation only needs to be available to those offenders who have “served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. But he does not consider whether ― and, despite his professed commitment to deference, does not consider that Parliament may have concluded that ― in some cases, “no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the offenders] to account for the harm [they] have done to the community [or] denounce [their] crimes”. [Tarrant, 179] If that is so, then the same reasons that prevent rehabilitation from, say, abridging the sentences of elderly murders ought to prevent it from standing in the way of life imprisonment without parole. But it does so stand, because of its alleged special connection with dignity.  

Note that dignity itself is a judicial add-on to section 12 of the Charter; it’s no apparent part of the provision. As Maxime St-Hilaire and I pointed out in our comment on the first instance judgment in this case

the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up ― recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] 

Something, I suppose, has changed, though the Chief Justice no more bothers to tell us why Kapp was wrong than he does explaining his apparent departure from Safarzadeh-Markhali. And note, moreover, that the alleged violation of human dignity that results from life imprisonment without parole is also the fruit of a judicial say-so. The Chief Justice asserts that such a sentence amounts to denial of an offender’s capacity to rehabilitate him- or herself. But it is at least just as ― in my view more ― plausible to see it as Justice Mander did in Tarrant: as expressing the view that nothing less will adequately denounce the crime. The offender may repent it; he or she may become a saint; but still denunciation will demand nothing less than continuing imprisonment. This is not am implausible view ― again, a thoughtful judgment of the New Zealand High Court has taken it ― and the Chief Justice never confronts, let alone refutes, it.

Even if you disagree with me on this, it remains the case that the Chief Justice’s reasons suffer from a serious logical flaw on their own dignitarian terms. Again, he accepts that some, perhaps a not inconsiderable number of, people will be imprisoned without any realistic prospect of being able to apply for parole, as a consequence of their age at sentencing and the duration of a fit sentence (or indeed a mandatory ― but constitutional ― one). He claims that this acceptable because such a sentence “does not exceed constitutional limits by depriving every offender of any possibility of parole from the outset”. [86; emphasis added] But that’s not how human dignity works. Dignity, if it means anything at all, is personal. Elsewhere, the Chief Justice shows he understands this, for instance when he writes that “rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society”. [83; emphasis added] In other words, because we are separate and distinct individuals, your dignity is not upheld if I’m being treated in accordance with dignitarian requirements. Yet that is exactly what the Chief Justice’s approach presupposes. Because some people get a chance at parole, those who don’t are treated with dignity. It’s a dodge, and a very clumsy one.

Finally, although I do not think that the court’s role is “to weigh fundamental values in our society”, [2] I agree that the courts do not operate in a moral vacuum. Yet they should not seek to fill this vacuum with what Professor St-Hilaire, in our comment on the Court of Appeal’s decision in this case, and I have described as “abstract, and ultimately soulless, humanitarianism”. Sadly, this is exactly what the Supreme Court is doing here. It is striking that almost nothing about the crime that led to this case, beyond describing it as an “unspeakable horror” [1] behind which were “hatred, racism, ignorance and Islamophobia”. [10] Perhaps I being unfair here, but to me this sounds like empty slogans or, to repeat, soulless humanitarianism. By contrast, the Chief Justice’s description of the suffering of those condemned to life imprisonment without parole, which I partly quote above, is specific and vivid. I do not suppose that the Chief Justice is really more moved by this suffering than by that of the victims of the offender here. But, in his otherwise commendable determination to reject vengeance and uphold the rights of the justly reviled, he writes as if he were.


To be clear, rejecting pure vengeance as the basis of sentencing policy is right. So is the empowering the courts to check Parliament’s excesses in this realm. The politicians calling for the section 12 of the Charter to be overridden at the next opportunity are wrong, because they are opening the door to abuse and casual disregard of the rights it protects. But that does not mean that the Supreme Court is necessarily right when it protects these rights, and it isn’t right here. Bissonnette is legally muddled, logically flawed, and morally blinkered. It is not a dignified judicial performance.

Mischief and the Chief

The Chief Justice has thoughts on the Supreme Court and the political climate

Yesterday, Radio-Canada/CBC ran an article by Daniel Leblanc that discussed Chief Justice Richard Wagner’s concerns about the standing of the Supreme Court and the judiciary more broadly, and his ideas for fostering public acceptance of and confidence in their work. This made quite a bit of noise on Twitter, and I jumped in too. A reader has encouraged me to turn those thoughts into a post, and I thought that would indeed be a good idea, so here goes.

Mr. Leblanc’s article starts with a discussion of the leak of a draft opinion in Dobbs v Jackson Women’s Health Organization, the US Supreme Court’s pending abortion case. This prompts the Chief Justice to say that “[i]t takes years and years to get people to trust institutions, and it takes a single event to destroy that trust”. The Chief Justice is worried. According to Mr. Leblanc, he “said recent global political events — like the Jan. 6, 2021 insurrection attempt in Washington, D.C. — should serve as a warning to Canadians” that our institutions, notably judicial independence, are at risk. The Chief Justice is also concerned that people are misinformed, notably in that they import fragmentary knowledge of American law into their thinking about Canada’s legal system.

To gain public trust, the Chief Justice has embarked the Supreme Court on a campaign to become more accessible. This includes a social media presence, publishing “plain English” versions of opinions, and sittings outside Ottawa. Mr. Leblanc describes the Chief Justice as saying “he knows he’s taking a risk by communicating more openly and frequently with the public and by taking the court outside of Ottawa. He said he still believes doing nothing would be riskier.”

Mr. Leblanc also turns to other people, notably Vanessa MacDonnell, to second the Chief Justice’s concerns. According to him, Professor MacDonnell “said Conservatives in the United Kingdom have criticized judges’ power to interpret the Human Rights Act, adding it’s part of a pattern of ‘political attacks’ against the courts in that country”. Attacks on judicial independence in Hungary and Poland are mentioned too, presumably at Professor MacDonnell’s behest, though this isn’t quite clear. Moreover, “Canadian institutions aren’t immune from attack either, MacDonnell said. The controversy over Conservative Party leadership candidate Pierre Poilievre’s vow to fire the Bank of Canada governor has dominated that leadership race”. Meanwhile, Senator Claude Carignan argues that “the Supreme Court is right to want to establish, through a certain communication plan, that there are differences with” its American counter part, and that it is “not there to represent a movement of right or left, or of red or blue, but … to judge the merits of the judgment according to current laws”.

So, some thoughts. To begin with, the Chief Justice deserves praise for thinking about making his court’s role and jurisprudence more accessible. Courts wield public power, and people should be able to know what they do with it. Indeed, I don’t know that anyone else thinks differently. The Chief Justice really needn’t pose as doing something “stunning and brave” with his transparency efforts; it looks a bit pathetic. But that doesn’t mean that the efforts themselves are to be denigrated.

That said, one shouldn’t expect too much from them. To the extent that people don’t understand what the Supreme Court is getting up to, I really think it’s more because of a lack of interest or effort than any failures on the Court’s part. The major cases are reported on, tolerably well, by the media. There is CanLII Connects, which hosts summaries and comments on all sorts of cases, written by students, professors, and practitioners. There are blogs like this one. There are podcasts. There are lots of people out there, in other words, who work hard to explain what Canadian courts, and especially the Supreme Court, are doing. Don’t get me wrong: I’m not saying the Supreme Court shouldn’t bother. It might do some good in this regard. But, again, when people are uninformed or misinformed ― and many are ― I don’t think it’s because of a lack of accessible information. In 2022, ignorance is usually wilful.

And I will criticize the Chief Justice for one part of his outreach programme: the roadshows. I fail to see how hearings outside Ottawa are anything other than taxpayer-funded junkets. Most people haven’t the time, let alone interest, to sit through arguments, be it in Ottawa or elsewhere. I’ve sat in on a couple of Québec Court of Appeal cases, some years ago, but I was a grad student would have done anything if that meant not writing my thesis ― not the Chief Justice’s target audience, I suspect. For more productively employed people, having a hearing in their city once in a blue moon is just not going to do anything. And of course anyone already can conveniently watch the Supreme Court on CPAC. This, by the way, is really a point on which the Supreme Court of Canada is better than that of the United States.

Speaking of those Americans, though, if one is concerned about the excessive influence of American thinking and American culture on Canada’s legal system, as the Chief Justice apparently is, one probably shouldn’t invoke American news as justifications for doing anything in Canada, as the Chief Justice definitely does. Again, some of his initiatives at least are worthwhile, but they are so on their Canadian merits, not because of anything that has occurred south of the border. Of course, the Chief Justice isn’t the only one trying to have this both ways. The Prime Minister, for instance, seems pretty keen to capitalize on American news to push ever more gun restrictions ― which he successfully deployed as a wedge issue in the last election campaign. In other words, the importation of American concerns of questionable relevance is something Canadians of all sorts, and not just the dark forces supposedly gnawing away at our institutions’ foundations, do, and Mr. Leblanc would, I think, have done well to note this.

Now, let’s consider these dark forces a bit more. Specifically, I don’t think that the discussion of populist attacks on courts in Mr. Leblanc’s article is all that helpful. I’m no expert on Poland and Hungary, but I take it that some Very Bad Things really have happened there, as part of broader programmes to dismantle institutional checks and balances and constraints on government power. To say that anything of the sort is about to happen in Canada, or could succeed if attempted, strikes me as a stretch. The analogy between the courts and the Bank of Canada doesn’t quite work, since the latter lacks constitutional protections for its independence. But perhaps I am mistaken about this.

What I am pretty sure about, however, is that it is quite wrong to equate the “attacks” on the judiciary in the UK with those in Hungary and Poland. To be sure, there have been some dangerously vile attacks in parts of the media, some years ago. I have written about this here. And it may well be that the government did not defend the courts as strongly as it should have at the time. But so far as government policy, let alone legislation, is concerned, it simply isn’t fair to say that the courts have been “attacked”. There is debate about just what their powers with respect to judicial review should be for instance, and it may well be that some of the proposals in this regard are at odds with the best understanding of the Rule of Law. But nobody is suggesting anything so radical as, say, requiring UK courts to defer to civil servants on questions of law, so I’m not sure that Canadians, in particular, should be too critical about this.

The specific issue example to which Professor MacDonnell refers is even more clearly a nothingburger. It has to do with the interpretation not of the Human Rights Act 1998, but of other legislation, which the Act says “[s]o far as it is possible to do so … must be read and given effect in a way which is compatible with the” European Convention on Human Rights. As readers will know, I happen to favour very robust judicial review of legislation ― more so than what exists under the Canadian Charter of Rights and Freedoms, let alone the UK’s Human Rights Act. But I’m inclined to think that UK courts have gone rather beyond the limits of what is fairly “possible” in exercising their interpretive duty. They certainly have gone further than New Zealand courts applying a similar provision. Whether or not constraining them in this regard is the right thing to do on balance, there is nothing illegitimate or worrying about it.

It is important to remember that, precisely for the reason the Chief Justice is right to work on the Supreme Court’s transparency ― that is, because the court is an institution exercising public power on the citizens’ behalf ― the Court can also be subject to legitimate public criticism. Again, criticism can be overdone; it can be quite wrong. But on the whole it’s probably better for public institutions to be criticized too much than not enough. And the courts’ powers, just like those of other government institutions, can and sometimes should be curtailed. Each proposal should be debated on the merits. Many are wrong-headed, as for instance the calls to use the Charter “notwithstanding clause”. But they are not wrong just by virtue of being directed at the courts.

Meanwhile, Canadians who are concerned about public perceptions of the judiciary should probably worry a bit ― quite a bit ― more about the actions of our own judges, rather than foreign governments, let alone journalists. Sitting judges to some extent ― as when, for instance, they decide to give “constitutional benediction” to made up rights instead of “judg[ing] the merits of the judgment according to current laws”, as Senator Carignan puts it. But even more, as co-blogger Mark Mancini has pointed out, former judges who compromise the perception of their political neutrality and lend their stature and credibility to serve the wishes of governments at home and abroad:

In short, I think that the Supreme Court is trying some useful, if likely not very important things to become a more transparent institution, which is a good thing on the whole. But it is not saving democracy or the Rule of Law in the process. One should certainly be vigilant about threats to the constitution, but one should not dream them up just for the sake of thinking oneself especially courageous or important. One should also be wary of grand transnational narratives, and be mindful of the very real imperfections in one’s own backyard before worrying about everything that’s going on in the world.

Immigration and Refugee Decision-Making: The Vavilov Effect?

It has been a while since I’ve blogged. The last few months have been—in a word—chaotic. I’m hoping to blog more regularly going forward now that some of these things have settled

One of the areas where administrative law really comes to life is in immigration decision-making, particularly front-line decision-making like visa decisions or humanitarian and compassionate decisions [H&C]. This is where the pressures, incentives, and moral worldview of “street-level bureaucrats” in particular contexts can tell us about how decisions affecting all-too-real rights and interests are made. The area, though, presents all sorts of challenges for those studying the law of judicial review.

First, immigration visa decision-making is also just one particular iteration of a broader reality: the inexplicable diversity of administrative decision-making. That diversity leaves monist accounts of the administrative state wanting. Expertise—advanced by the Progressive school as a core reason for delegation and deference—presents a different empirical reality in these contexts. In other words, this is not the labour board or the human rights tribunal where we might have more confidence in the “expert” nature of the decision-maker. In this context, not only is “expertise” not to be assumed, but what it means on the frontlines escapes easy definition.

Second, emerging democratic theories view the administrative state either as a place to facilitate and channel democratic deliberation or a place to encourage contestation (agonism). These theories are deeply insightful and may have resonance in other areas. But in some of these immigration and refugee cases, it is hard to say that there is anything substantively democratic happening. The only democratic argument is entirely formal: the delegation of power to officials to make decisions. This delegation of power must be respected, but the chances for contestation or facilitation seem far off.

Other features of front-line immigration visa decision-making present problems from the perspective of the law of judicial review. Notwithstanding what I say below, it was typically the case that visa decisions did not—and still, do not—require extensive reasons: Persaud v Canada (Citizenship and Immigration), 2021 FC 1252 at para 8. And in theory, this remains true post-Vavilov. What’s more, there was, and remains, a presumption that decision-makers considered all the evidence before her: Cepeda-Gutierrez v Canada, 1998 CanLII 8667. 

The combination of these rules, to my mind, creates an important tradeoff. On one hand, given the backlogs in this area of administrative decision-making, we may think that officers should not spend time writing extensive reasons. On the other hand, a paucity of reasons or an adequate record that “immunizes” decisions from effective review presents problems from the perspective of legality, but more directly, to the individuals who wish to seek judicial relief: see Canada (Citizenship and Immigration), v Canadian Council for Refugees, 2021 FCA 72 at para 102.

There should be some balance struck here. Post-Vavilov, courts in some cases are beginning to strike this balance. They have done so in favour of more substantive reasoning that addresses the legal and factual stakes to the party affected by a decision. In other words, in these cases, the courts are not abiding boilerplate and rote recitation of the facts. Nonetheless, they are not expecting long, involved reasons in every case, and they need not be perfect: the reasons can be short, but should be directed to the actual stakes facing the individual. In my view, this decisively moves the balance towards the ideal of legality, understood in this case as enhancing the role of the courts to ensure compliance with administrative law.

Here are some examples of what I am describing:

  1.  Singh v Canada (Citizenship and Immigration), 2022 FC 692

Here, Justice Diner describes well the post-Vavilov position on reasons:

[22] Visa officers are certainly entitled to deference, but only where their findings have at least a modicum of justification. That was entirely absent here. In the age of Vavilov, the Court cannot defer to reasoning missing from the Decision, or fill in that reasoning for administrative decision-maker. Lacking justification, the matter will be returned for redetermination

2. Rijhwani v Canada (Citizenship and Immigration), 2022 FC 549

This was a denial of a permanent residence application where the applicant plead H&C grounds. The applicant specifically pointed to establishment and hardship as supporting her application. The Officer did not address these factors in detail. The Court says, at para 17: “It is particularly important that when there are few factors raised—in this case only hardship and establishment—that the Officer addresses the rationale clearly for each.”

This did not occur here. Noting, at para 10,  that “brevity cannot excuse inadequacy” the Court takes issue with the “two significant errors…in under a page of reasons” that characterized this decision.

3. Gill v Canada (Citizenship and Immigration), 2021 FC 1441

Gill was found inadmissible to Canada for five years by a visa officer because of misrepresentation; he failed to disclose an unsuccessful tourist visa application to the United States. Gill advanced the argument that his “misrepresentation” was actually an innocent mistake. He argued that the officer did not reasonably explain why he rejected the “innocent mistake” argument.

Specifically, the officer in this case apparently took—word-for-word—reasons that were given by a separate officer in another case that was reviewed in the Federal Court. Speaking of the Cepeda-Gutierrez presumption, the Court said, at para 34:

I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.

The Court did note, however, that templates can be useful tools in high volume-decision-making [33].

I do not present these cases to make an empirical claim about what any number of courts are doing post-Vavilov. This is impossible to do without closer study. But I can say that there are many more of these cases, and I recommend you consult my weekly newsletter if you are interested in reading more. In the meantime, I think we can draw some conclusions from these cases:

  1. There is something to be said for a signal sent by a judicial review court to administrators about what they should expect. Prior to Vavilov, decision-makers may have expected strong presumptions of deference and courts claiming that inadequate reasons did not provide a standalone basis for review. Now, decision-makers may expect a closer look if their decisions are reviewed, particularly in this front-line context. One hopes that this incentivizes structural solutions within administrative bodies. This should not be hard to expect from Immigration, Refugees, and Citizenship Canada, which houses Canada’s largest administrative decision-maker.
  2. No one should take this to mean that reasons need to be extensive in every case. But it should be taken to mean that boilerplate is presumptively problematic. This is because boilerplate, by its nature, does not respond to the individual stakes raised by many of the decisions in the immigration realm. This is, in part, the thinking behind the Vavilovian constraints. If the constraints bind differently in different cases—if Vavilov is truly contextual—then boilerplate is a non-starter because it will generally fail to account for the context of various decisions.
  3. Nor is this emerging line of cases overly onerous for administrative decision-makers or front-line officers. Again, the reasons need not be perfect, need not look like a judicial decision, and need not be extensive. But they must address the actual legal and factual issues at play. If a decision-maker cannot do this, then one should wonder why they were delegated power in the first place.

At any rate, this is an area that I hope receives more attention going forward.