The Privilege of Public Employment

Is Dunsmuir’s treatment of public employees consistent with the principles it articulated?

Matthew Lewans, University of Alberta

The desire to clarify the parameters of judicial review looms large in Dunsmuir v New Brunswick. In their opening paragraph, Bastarache and LeBel JJ propose to reassess the law of judicial review, because it “has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance”. Fifty paragraphs later, they set out a simplified standard of review analysis. So at least from a methodological perspective, one might propose to assess whether and to what extent the decision renders the practice of judicial review more efficient. However, I want to evaluate Dunsmuir’s theoretical foundation as opposed to exploring whether it provides a more efficient framework for judicial review.

In order to do develop this theoretical critique, it is worth comparing Dunsmuir with other paradigmatic cases in the pantheon Canadian public law like Roncarelli v Duplessis (1959) and Nicholson v Haldimand-Norfolk Police Commissioners (1978). These cases are regarded as paradigmatic, because they articulate and defend fundamental principles of fair treatment and substantive review in an attempt to verify the legality of administrative law. This 20th century renaissance resulted in doctrinal reforms that echo Charles Reich’s argument that various forms of government largesse should not be considered mere “privileges” which can be revoked arbitrarily by state actors, but relevant material interests (which he provocatively dubbed “new property”) which warrant constitutional constraints on administrative action. Thus, in Roncarelli Rand J rejected the notion that the plaintiff’s liquor license was a mere privilege to be enjoyed at the pleasure of the Premier, but “a matter of vital importance” which was essential to Frank Roncarelli’s economic livelihood. A similar line of reasoning can be detected in celebrated decisions from other jurisdictions during the same period, most dramatically in Goldberg v Kelly (1970) when the United States Supreme Court held that welfare recipients were entitled to procedural due process under the 14th Amendment prior to the termination of their benefits.

Unsurprisingly, apex courts extended this same right to procedural fairness to public employees. Thus, in Ridge v Baldwin (1964) Lord Reid declared that the decision of the watch committee to dismiss chief constable Charles Ridge was “not a thing to be done lightly”, because it deprived him of his economic livelihood, damaged his professional reputation, and jeopardized his pension benefits as he was nearing the end of a 33-year career in the public service. Therefore, in Lord Reid’s opinion Ridge retained a legally protected interest in maintaining his employment, one which demanded a modicum of natural justice as in cases concerning property rights or the revocation of someone’s professional status. Therefore, he concluded that the governing principles were not to be drawn from the common law regarding “master and servant” nor cases regarding “offices at pleasure”, which would have enabled the watch committee to dismiss Ridge for any reason or no reason at all. Instead, he held that the decision was governed by “an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.”

Fifteen years later, Laskin CJ cited Ridge as authority for the proposition that a probationary officer was entitled to a hearing at common law. Because the consequences of the decision to terminate Arthur Nicholson’s employment were “serious”, Laskin CJ held that “the old common law rule, deriving much of its force from Crown law, that a person engaged as an officer holder at pleasure may be put out without reason or prior notice ought itself to be re-examined.” In 1980, William Wade lauded Ridge v Baldwin in his Hamlyn Lectures as a constitutional fundamental, saying that “the courts once again accept, as they had always done except in their period of amnesia, that part of their duty was to require public authorities to respect certain basic rules of fairness in exercising power over the citizen.”  

While the majority opinion in Dunsmuir pays tribute to fundamental principles, that commitment evaporates when it applies them to the facts at hand. When Bastarache and LeBel JJ declare that “[t]he function of judicial review is…to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes”, they echo the principle of legality as articulated in cases like Roncarelli, Goldberg v Kelly, Ridge v Baldwin, and Nicholson. It is this same commitment to fairness which led the Adjudicator to conclude that Dunsmuir, like Ridge and Nicholson, was entitled to a pre-termination hearing of some sort; and it was this same commitment to reasonable justification that led the Adjudicator to conclude that s 100.1(2) of the Public Service Labour Relations Act, which provided non-unionized public employees the right to file a “grievance with respect to discharge, suspension or financial penalty”, entitled him to inquire into the employer’s reasons for the dismissal.

Despite that affirmation, the majority opinion concludes that “in the specific context of dismissal from public employment, disputes should be viewed through the lens of contract law rather than public law.” More surprisingly, the Court held that even though the Adjudicator’s decision was entitled to deference, the decision was unreasonable because the adjudicator had interpreted the PSLRA as allowing him “to inquire into the reasons for discharge where the employer had the right not to provide or even have such reasons”. Therefore the Adjudicator’s decision, in the Court’s estimation, “was fundamentally inconsistent with the employment contract and, thus, fatally flawed.”

In short, the juxtaposition between the statements of principle at the outset of decision and the application of those principles to the facts makes Dunsmuir a peculiar case from a theoretical perspective. Despite affirming the role of fairness and reasonableness as safeguards against arbitrary administrative decisions, the decision resurrects the notion that public employment (at least for those who are not Crown ministers or judges) is a privilege which can be terminated for any reason or no reason at all so long as employees are provided with reasonable notice. To rephrase the famous analogy in Lord Greene’s opinion in Associated Provincial Picture Houses, Ltd v Wednesbury, the upshot seems to be that a public school board really can dismiss a red-haired school teacher just because she has red hair, so long as it supplies her with pro forma reasons for her dismissal and adequate severance. But to require a public employer to afford some sort of pre-termination hearing well… that’s just unreasonable.

Theorizing Administrative Law

Does Dunsmuir Have a Philosophy?

Mark Walters, McGill University

Canadian judges occasionally pause to reflect upon larger theoretical ideas that are normally only implicit in the reasons that they give. Dunsmuir was one of those occasions. Writing together for the majority of the Supreme Court of Canada, Justices Michel Bastarache and Louis LeBel prefaced their analysis of the issues in the case with a general statement about the constitutional foundations of judicial review in administrative law. Re-reading those passages today, they strike me as having a distinctively Diceyan tone. The two principles that Bastarache and LeBel JJ. identify at the foundation of judicial review, the rule of law and legislative supremacy, are the same principles that Dicey identified as the animating principles of constitutional law, and the responsibility that they ascribe to judges for resolving the “underlying tension” between the rule of law and legislative sovereignty tracks Dicey’s views of ordinary courts and administrative power closely (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, para. 27). In reading these passages I could not help imagining someone—Harry Arthurs came to mind—declaring that the Dunsmuir judgment began its life “with the dead hand of Dicey lying frozen on its neck” (my imaginary Arthurs would of course be borrowing this famous line from William Robson, “The Report of the Committee on Ministers’ Powers” (1932) 3:3 Political Quarterly 346, 351).

The paragraphs on theory in Dunsmuir contrast sharply with another judicial excursus on administrative law theory that is perhaps somewhat forgotten today. I have in mind Justice Bertha Wilson’s discussion of the rule of law in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324. At that time, Wilson J. had been worried that recent waving of the rule-of-law banner by some of her judicial colleagues signalled a weakening in their resolve to honour the spirit of the 1979 CUPE decision and its deferential approach to administrative decisions (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227). The story of administrative law in the common law tradition had been, she said, a tale of escape from Dicey and his dreaded followers (especially the dark lord, Lord Hewart) who employed the conceptual formalism of the rule of law and the associated idea of jurisdiction against administrative discretion to advance conservative ideas contrary to the modern welfare state. Wilson J. feared the return of rule-of-law conceptualism and expressed her preference for the “pragmatic and functional” approach to administrative powers which had begun to emerge in Canadian cases a few years before.

As it happened, the language of “pragmatic and functional” would reign supreme in Canada for some twenty years, defining the essence of administrative law for a generation of lawyers and law students. And then, just as quickly as it entered judicial discourse, it was gone. Its demise brings us back to Dunsmuir, for of course it was here that “pragmatic and functional” was unceremoniously dropped, its “name” deemed by Bastarache and LeBel JJ. as “unimportant” (para. 63).

But was there something more at stake than just a name? Comparing the theoretical excursuses from National Corn Growers and Dunsmuir helps us to see the outlines of the philosophical debates that lie just under the surface of judicial reasons in administrative law. The pragmatic and functional approach seemed to draw inspiration from what Martin Loughlin has called the “functionalist style in public law”, an eclectic approach to law that emerged amongst the first wave of anti-Diceyans in the 1930s combining faith in the transformative potential of the state with an instrumentalist and realist understanding of law that was deeply suspicious of the common law and its conceptual paraphernalia, especially the rule of law (see e.g., John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53). Functionalists wanted to clear away the old common law clutter that obstructed social policy experts and technocrats in government who were building a new and better society. As Ivor Jennings put it: “The “rule of law” is a rule of action for Whigs and may be ignored by others” (W. Ivor Jennings, The Law and the Constitution (1933), 256).

Perhaps, then, the rejection of “pragmatic and functional” in Dunsmuir was the rejection of a set of ideas and not just a name. There is arguably some evidence in Dunsmuir of a return to the sort of positivist or formalist understanding of law often associated with Dicey. The rule of law means, according to Bastarache and LeBel JJ., that public power is authorized by law, and the judicial review of statutory power involves simply defining the boundaries of jurisdiction by reference to the intent of the authorizing lawmaker (paras. 28, 29). As a rule about the formal statutory authorization for power the rule of law is thus simply and disappointingly rule by law. Many scholars think that Dicey’s rule of law was formalist and positivist in this very sense (e.g. Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467). The worry of Wilson and Arthurs (and the old functionalists too) is that a formalist rule of law is an empty and aimless rule waiting to be filled with judicial bias.

But if this theory of legality informs Dunsmuir, why would Bastarache and LeBel JJ. say that there is a “tension” between the rule of law and legislative sovereignty? If rule of law means legal authorization by legislation, there could never be tension between the two. And why would they describe the judicial job of upholding the rule of law as upholding not just “law” but “legality”, “reasonableness”, and “fairness” in administrative decision-making (para. 28)? Why would they say that defining the “jurisdiction” of a decision-maker involves a “standard of review analysis”, which was their new name for the old “pragmatic and functional” analysis (para. 29)? And, finally, why would they cite with approval the case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in which Justice Claire L’Heureux‑Dubé stated that administrative discretion must always be exercised in accordance with the boundaries imposed by statute and by the principles of the rule of law and the fundamental values of Canadian society?

The answer to these questions lies, I think, in appreciating the false dichotomy between formalism and functionalism. Dunsmuir and the many cases preceding and following it are best understood as part of an on-going interpretive project that seeks to fold together in a coherent way substantive values of legality within the complex arrangements for governance that have been created to address the realties of the modern (and post-modern) state. Formalism and functionalism both suffer from the mistaken view that law is merely a command issued by a lawmaker to others, a linear communication from state to subject; the two schools of thought differ only in terms of how judges should respond to the domains of administrative discretion created by these commands. My own view, however, is that law is better understood as a more circular discourse in which rules emanating from legislatures and administrators are interpreted in ways that can be justified in light of a unified and coherent vision of normative order that honours deeper values of political morality, including, of course, the value of legality and its unrelenting insistence that respecting equal human dignity means rejecting arbitrary power.

In the end, I think it is fair to say that the Dunsmuir theoretical excursus is Diceyan—but not in the formalist Diceyan image constructed by the functionalists. Dicey made some mistakes and the punishment for his sins seems to be that his name is forever associated with that flawed ‘Diceyan’ understanding of public law. However, some of the most difficult and underappreciated passages in his famous book, Law of the Constitution, come in the course of an attempt to explain how judges may resolve the tension between the rule of law and parliamentary sovereignty—passages which make little sense unless we assume that the “spirit of legality” that he says shapes all legal meaning is a substantive ideal that justifies and legitimates the exercise of governmental powers (A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan & Co., 1915), ch. 13). Because Dicey himself did not develop a theory of administrative discretion beyond these basic points, he cannot give us concrete answers on how administrative law, properly interpreted, should look today. However, if we step back from the details of Dunsmuir and think about the general approach taken by Bastarache and LeBel JJ., we can detect a classic interpretive effort to see how the formal and substantive values of legality and sovereignty may be reconciled in a principled and coherent yet also a pragmatic and functional way consistent with a ‘Diceyan’ spirit of legality. One could say that this is just ordinary legal reasoning. Perhaps. But because it is ordinary it is also the best kind of legal reasoning. If all that resulted from Dunsmuir was a deeper commitment to an administrative world in which the exercise of power must meet standards of “justification, transparency and intelligibility” to be lawful, then the decision should be counted as a great success.

Si l’histoire de la norme m’était contée

Évolution et circonvolutions du principe de déférence au Canada

Martine Valois, Université de Montréal

L’arrêt Dunsmuir marque la fin d’un long et sinueux parcours pour introduire un principe de déférence à l’égard des questions de droit tranchées par les autorités administratives. Dans son jugement, la Cour suprême du Canada consacre l’assise constitutionnelle du contrôle judiciaire qui vise à assurer non seulement la légalité et l’équité du processus administratif, mais également, la rationalité de la décision[1]. C’est donc par un curieux revirement de circonstances que la quête ardue pour l’application d’un mode d’emploi uniforme visant à freiner les ambitions interventionnistes des cours de justice a eu pour effet de légitimer le contrôle judiciaire du mérite des décisions administratives.

Mon ambition dans ce texte est de reconstituer les jalons du développement de la doctrine des normes de contrôle judiciaire dans un but bien précis. J’espère démontrer qu’en imposant un principe de retenue judiciaire à l’égard des conclusions de droit tirées par les autorités administratives, la Cour suprême du Canada a inscrit le contrôle du mérite des décisions administratives dans le droit administratif canadien. Lentement, mais sûrement, le pouvoir de surveillance et de contrôle de la légalité des actes de l’administration s’est transformé en pouvoir de surveillance et de contrôle du bien-fondé des décisions administratives.

Le contrôle judiciaire vise, depuis des siècles, la révision des décisions des tribunaux d’instance inférieure rendues en l’absence de compétence. Historiquement, le bref de certiorari est émis pour permettre aux cours royales d’examiner les dossiers des tribunaux inférieurs afin de s’assurer que ceux-ci demeurent à l’intérieur des limites de leur compétence[2]. Les limites au contrôle judiciaire existent depuis longtemps, car celui-ci s’attache à la compétence des tribunaux inférieurs, et non à la justesse de leurs décisions. Ainsi, en 1642, Sir Robert Heath écrivait dans Commins v. Masssam :

Suppose that the Commissioners do anything without or against their Commission, without doubt this is reformable and examinable here : But […] this Court cannot take notice whether their decrees are just or not: We are alone to examine their Jurisdiction of the case, not their Justice[3]. (En italique dans le texte).

Pour mettre en œuvre le contrôle judiciaire, il était nécessaire de démontrer une erreur de droit apparente à la lecture du dossier[4]. Au 13e siècle

questions of ‘scope of review’ and the ‘face of the record’ rule had arisen even before the writ of error was clearly distinguished from certiorari. They reappeared in the seventeenth-century growth of certiorari, and have caused trouble down to our day.

En droit canadien, l’erreur de droit apparente à la lecture du dossier donne ouverture au certiorari lorsqu’il n’y a pas de clause privative protégeant la décision du tribunal[5]. Concernant les interprétations juridiques des tribunaux, la jurisprudence établit une distinction entre les questions de droit qui touchent à la compétence, et les autres. Lorsque le tribunal interprète une disposition de sa loi constitutive qui lui donne compétence, la question de droit est dite « juridictionnelle »; l’intervention de la cour de révision est justifiée s’il y a désaccord avec l’interprétation du tribunal[6]. On reconnaît toutefois au tribunal administratif le droit à l’erreur lorsque celle-ci se situe à l’intérieur de sa compétence[7]. Le tribunal a « le privilège de se tromper dans les limites de sa compétence »[8]. En présence d’une clause privative, les questions de fait et de preuve, de même que la simple erreur de droit, sans incidence ou « coloration juridictionnelle » échappent ainsi au contrôle judiciaire[9]. Comme le rappelle le juge Estey, en matière de contrôle judiciaire, le rôle de la cour « n’est pas le même que celui d’une cour qui siège en appel », cette dernière ayant plus de latitude pour intervenir à l’égard de la décision du tribunal[10].

Dans deux jugements rendus en 1975 et 1979 respectivement, le juge Dickson remet en cause l’attitude interventionniste des cours de justice qui ont tendance à qualifier trop rapidement l’interprétation des termes de la loi constitutive par un tribunal comme étant une question de droit touchant à la compétence. La norme de la décision « manifestement déraisonnable » fait alors son entrée dans la jurisprudence canadienne[11].

En 1988, le juge Beetz prend le relais et impose aux cours de révision d’entreprendre une analyse dite « pragmatique et fonctionnelle » qui servira à déterminer si la question de droit tranchée par le tribunal est juridictionnelle[12]. Si, au terme de cette analyse, il est déterminé que la question relève de la compétence du tribunal, la simple erreur de droit ne donnera pas ouverture au contrôle judiciaire, car seule l’interprétation manifestement déraisonnable a pour effet d’entraîner un excès de compétence [13]. Par ailleurs, lorsque la question porte sur l’interprétation d’une disposition de la loi constitutive qui limite la compétence du tribunal, une simple erreur « fait perdre compétence et donne ouverture au contrôle judiciaire »[14].

En 1997, dans Southam, la Cour suprême crée la norme de la décision raisonnable simpliciter pour les affaires où la révision judiciaire s’exerce au moyen d’un appel de plein droit[15]. La consécration de l’ouverture du contrôle judiciaire au bien-fondé de la décision administrative est donnée par l’arrêt Baker qui établit que l’analyse pragmatique et fonctionnelle sert également à déterminer le degré de contrôle judiciaire des décisions hautement discrétionnaires rendues par une autorité administrative[16]. Enfin, en 2003, la Cour suprême décide que les normes de contrôle judiciaire s’appliquent même dans le cadre d’un appel de plein droit de la décision administrative[17].

À la suite de près d’une décennie de détours hasardeux pour imposer une démarche cohérente sur le choix de la norme de contrôle judiciaire, Dunsmuir relègue la norme raisonnable simpliciter aux oubliettes. Désormais, l’intensité du contrôle judiciaire de la décision administrative variera selon la nature de la question tranchée soumise à l’examen, mais aucune n’échappera au contrôle judiciaire. La révision du processus administratif sera assujettie soit à la norme correcte, soit à la norme raisonnable, mais la décision finale, elle, sera toujours soumise à la norme de la décision raisonnable, puisque c’est à cette étape ultime que le droit se mélange aux faits.

L’appel est devenu un contrôle judiciaire et le contrôle judiciaire est devenu un appel. And so the story goes…round and round in circles..

[1] Dunsmuir c. Nouveau‑Brunswick, [2008] 1 R.C.S. 190, paragr. 28.

[2] Groenvelt v. Burwell, (1699), 91 E.R. 1202.

[3] Edith G. HENDERSON, Foundations of English Administrative Law, Cambridge, Harvard University Press, 1963, p. 146.

[4] Id., p. 149. Douglas Aircraft Co. of Canada c. McConnell, [1980] 1 R.C.S. 245, p. 268, 275.

[5] Yellow Cab Ltd. c. Board of Industrial Relations et autres, [1980] 2 R.C.S. 761. La Cour trouve appui sur ce point dans le jugement de la Cour d’appel du Royaume-Uni dans R. v. Northumberland Compensation Appeal Tribunal; Ex p. Shaw, [1951] 1 K.B. 711.

[6] Bell c. Ontario Human Rights Commission, [1971] R.C.S. 756.

[7] Douglas Aircraft, supra, p. 277: « Un excès de compétence fondamental résultant d’une mauvaise interprétation de la loi constitutive est susceptible de révision en tant qu’excès de compétence puisqu’on ne peut étendre ou restreindre la compétence du conseil par une erreur dans l’interprétation de cette loi ».

[8] Douglas Aircraft, supra, p. 277.

[9] Douglais Aircarft, supra, p. 275; Syndicat des professeurs du collège de Lévis-Lauzon c. CEGEP de Lévis-Lauzon, [1985] 1 R.C.S. 596, p. 602; Syndicat des employés de production du Québec c. CCRT, [1984] 2 R.C.S. 412, 420.

[10] Douglais Aircarft, supra, p. 293. Voir également Harelkin c. Université de Regina, [1979] 2 R.C.S. 561.

[11] Union internationale des employés des services, local no 333 c. Nipawin District Staff Nurses Association, [1975] 1 R.C.S. 382 et Syndicat canadien de la Fonction publique, section locale 963 c. Société des alcools du Nouveau‑Brunswick, [1979] 2 R.C.S. 227

[12] U.E.S., Local 298 c. Bibeault, [1988] 2 RCS 1048.

[13] Id., paragr. 116, alinéa 1.

[14] Id., paragr. 116, alinéa 2.

[15] Canada (Directeur des enquêtes et recherches) c. Southam Inc., [1997] 1 R.C.S. 748.

[16] Baker c. Canada (Ministre de la Citoyenneté et de l’Immigration), [1999] 2 R.C.S. 817.

[17] Barreau du NouveauBrunswick c. Ryan, [2003] 1 R.C.S. 247.

RIP Reasonableness?

Does the Supreme Court’s latest administrative law decision mean it is no longer committed to deference to tribunals?

Last week, the Supreme Court issued its decision in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3, which may, or may not, be another sign that the Court’s love affair with deference to administrative decision-makers is coming to an end ― in practice if not yet in theory. I address the majority’s approach to deference in this post. Time permitting, I will, in a subsequent one, argue that if Justice Abella’s opinion is anything to go by, any hopes ― or fears ― that the end of deference would mean a return to judicial enforcement of the actual law are unwarranted.

Caron concerns the relationship between Québec’s workers’ compensation statute and its anti-discrimination law, colloquially known as the Québec Charter (and, I suspect, the relationship between similar statutes in other Canadian jurisdictions too, since this legislation tends to be fairly similar). The question was whether, in the context of an injured employee’s endeavour to return to work, the the duty to accommodate, long understood to be part of anti-discrimination law in the employment context, imposed obligations on an employer beyond those created by the workers’ compensation scheme. The administrative tribunal responsible for the application of the workers’ compensation legislation decided that it did not. The majority of the Supreme Court (as well as the courts below) disagreed.

When courts review a decision made by an administrative tribunal, they must begin by determining the “standard of review”. As Justice Stratas put it in his précis of Canadian administrative law, “how ‘fussy’ should the court be”? (33) Should the court insist that the tribunal’s decision be correct, or is it enough for the decision to be reasonable? Justice Abella, writing for a five-judge majority, is confident that “[t]his case is in classic reasonableness territory” because the tribunal “is interpreting the scope and application of its home statute”. [4] Classic, because under the framework articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, judges are indeed generally required to defer administrative decision-makers interpreting their enabling legislation. However, the concurring opinion, written by Justice Rowe (with the agreement of Justice Côté) disagrees, endorsing the Québec Court of Appeal’s view that the issue of whether the tribunal had to apply the Québec Charter both goes to the determining the bounds of the tribunal’s jurisdiction and is of central importance to the legal system as a whole ― both factors which Dunsmuir said triggered correctness review.

I have no firm opinion on which of these views is right under the current law. Suffice it to say that Justice Abella’s is at least plausible. After all, Dunsmuir said courts should defer to a tribunal’s interpretation not only of its “home” statute, but also to that of “statutes closely connected to its function, with which it will have particular familiarity”. [54] Arguably, the Québec Charter‘s anti-discrimination provisions are “closely connected” to the function of a workers’ compensation tribunal. It is too bad, however, that Justice Abella neither acknowledges nor engages with the concurrence’s view.

Be that as it may, the disagreement between majority and concurrence turns out to be quite irrelevant. Having declared in favour of reasonableness, Justice Abella never once shows a sign of actually deferring to the tribunal’s reasoning. Of course, even on a reasonableness standard, courts will sometimes overturn tribunals’ decisions. However, as defined in Dunsmuir ― which Justice Abella doesn’t actually cite ―

reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. … Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. [47], [49]

There is no “due consideration”, or any consideration, of the tribunal’s determination in Justice Abella’s reasons. She is uninterested in whether it justified its decision in a transparent and intelligible way. In fact, she does not even bother summarizing the tribunal’s opinion, as Justice Rowe does (and as is customary), let alone paying it any attention. Justice Abella proceeds with her own analysis of the applicable law, and never pauses to show why the tribunal’s different conclusion was not just mistaken but unreasonable. There is, in reality, no difference between the pretended “reasonableness” analysis like Justice Abella’s and avowedly non-deferential review like that undertaken by Justice Rowe. Justice Stratas calls this sort of thing “disguised correctness review”, but calling the disguise in this case flimsy is already giving it too much credit.

Now, one might ask just what proper reasonableness review, as described in Dunsmuir, would have involved in Caron. The administrative tribunal’s reasons on the point in issue (at [61]-[91]) are fastidious, but they consist in an analysis of the relevant judicial decisions. In effect, the tribunal functions as a lower court, and not as a specialized, expert decision-maker bringing a unique policy-informed perspective or “field sensitivity” to the issue before it. Even if one accepts that such factors can justify judicial deference to tribunals, it is not obvious why the Supreme Court would or should defer to a decision where they are absent.

So Justice Abella could have said that no deference is due when a tribunal’s expertise is not in play. Such a position would be defensible. Indeed, it would arguably be more consistent with the original Dunsmuir framework, which as I see was intended to be a flexible one, than the Supreme Court’s post-Dunsmuir decisions that elevated deference into dogma, notably Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293. In that case, the majority attributed expertise and pretended to defer to reasons not actually given by a tribunal that hadn’t even addressed the issue that the Supreme Court was deciding. I described that process as a judge “playing chess with herself, and contriving to have one side deliberately lose to the other”. But, as with Edmonton East, it seems to me that a position cannot be defensible unless it is actually defended. Justice Abella, to repeat, could have defended the position I have just outlined ― but she doesn’t, and we are left to wonder why exactly she approached Caron as she did (and not as she said she did).

Unexplained departures from previous pronouncements on standard of review are becoming a trend in the Supreme Court’s administrative law jurisprudence. This trend previously manifested itself in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54  and Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55. As I noted here, in neither of these cases did the Court adopt the approach to judicial review which its precedents seemed to dictate ― an approach that called for deference to adjudicative or discretionary administrative decisions involving the Canadian Charter of Rights and Freedoms. The Court simply undertook its own constitutional analysis, without explaining whether the previous framework was still good law, and if not, why, or to what extent.

This trend, if that’s what it is, is disturbing. As I wrote in my comment on Ktunaxa and Justice Counsel, I would be very happy to see the Supreme Court nix its deferential review of administrative decisions involving the Charter. I am inclined to think that getting rid of deference on most, perhaps on all, questions of law would be a good thing too. But if that’s what the Supreme Court wants to do, it must tell us, instead of saying one thing (or nothing at all) and doing another, which makes it possible for the seemingly disfavoured approaches to be used again, without litigants being able to predict when or why they will be. As I previously argued, the Court’s behaviour is problematic from the standpoint of the Rule of Law, because it makes the law unstable and obscures the fact of legal change, and fails the “justification, transparency, and intelligibility” test articulated in Dunsmuir, by which judicial decisions, no less (and perhaps more) than administrative ones, should be assessed.

Between Ktunaxa, Justice Counsel, and now Caron, it is tempting to conclude that the Court is growing disenchanted with deference to administrative decision-makers’ decisions on questions of law. Yet perhaps such a conclusion would be premature. We cannot know, with the court systematically failing to explain itself and even individual judges changing tack, unpredictably, from case to case. In Caron, that the Supreme Court actually engages in correctness review is clear enough, but why it does so, whether it still thinks that there is a place for reasonableness review, and if so, in what circumstances, is anybody’s guess. This uncertainty is problematic. If deference is indeed dead, the Supreme Court should ensure that it stays so, and doesn’t come back to eat the brains of Canadian lawyers and judges.

The Charter Conscription

The trouble with governments forcing citizens to advance their constitutional agendas

In his Policy Options post on the federal government’s denial of funding under the Canada Summer Jobs Programme to those who do not share its views on reproductive and equality rights, Brian Bird wrote that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”. As I have already noted here, I think this observation is fundamentally correct. But Mr. Bird’s metaphor doesn’t quite capture what is going on.

It is not just, or perhaps even so much, that the Canadian Charter of Rights and Freedoms is being used as a weapon against citizens. After all it is true that, as Jennifer Taylor pointed out in her defence of the government’s policy in the CBA National Magazine, anti-abortionists “are free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen”, though the space for advocacy is being narrowed ― a point to which I will return. But if the Charter is not yet being used to take away people’s rights (except when it really is, as in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038), it is already being help up as a banner under which increasing numbers of citizens must be conscripted to advance the government’s agenda of protecting some real or purported constitutional rights.

The federal government’s endeavour to enlist the recipients of Canada Summer Jobs funding in the service of productive Charter and “other” rights, and Charter values too, in the bargain, is not an isolated one. In Nova Scotia, Ontario, and British Columbia, law societies ― which are, though people apparently forget this, not private clubs but regulatory instrumentalities of the state ― have sought to ensure that law schools respect the equality rights of gays and lesbians by denying accreditation to one that conspicuously fails to do so. In Ontario, the law society is also demanding that all lawyers acknowledge an (inexistent) obligation to “promote equality, diversity and inclusion”.

In this context, the insistence of Ms. Taylor and what few other defenders the federal government has that “[t]he government shouldn’t be funding activism against constitutional rights when the Constitution is the supreme law of Canada” is rather selective. While the issue in the case of the Summer Jobs Programme is public funding, in other cases it is accreditation or licensing that cost the government nothing (or, in the case of lawyer licensing, is highly lucrative). Yet the government’s reasoning in these different cases is essentially the same. It seeks to ensure that individuals or groups subject to its control act consistently with its agenda, defined ― hypocritically, as I will presently argue ― as a constitution-protecting one. Whether the instrument, in each case, is a subsidy, a license, or some other regulatory tool, is beside the point ― certainly as a matter of political morality but also, I would suggest, as a matter of constitutional law.

Now, the professed adherence of those who would force others to advance their “constitutional” agenda to the Charter is, in my view, selective to the point of hypocrisy. I have already argued, here and elsewhere, that the federal government in particular is guilty of “playing favourites” with the constitution, as indeed are large parts of Canada’s legal community. Something similar is happening here too. For instance, the self-anointed defenders of the Charter ignore its section 32(1), which provides that the “Charter applies … to the Parliament and government of Canada … and … to the legislature and government of each province”. The Charter, by its own terms, does not apply to or bind private parties, and it is wrong to invoke it to justify the imposition of rights-protecting obligations on those on whom it was not intended to impose any.

And then, there is the fact while governments seem increasingly happy to impose their duty to uphold some Charter rights on others, they would do no such thing with other rights, which they deem less pressing or less in need of widespread compliance. For example, while Law Societies are much alarmed by the fact that a law school might discriminate on the basis of sexual orientation, nobody seems especially concerned by the fact that a different law school in the same province apparently conditions its hiring decisions on the prospective candidates’ commitment to social justice or “equity in scholarship” ― freedom of opinion, academic freedom, and the right not to be discriminated against on the basis of political belief be damned. The federal government doesn’t want to fund anti-abortionists, but would it object to funding, say, a women’s group working to dilute the presumption of innocence or other protections available to men accused of sexual assault? Or would deny benefits to a crime-victims’ group campaigning against the Supreme Court’s understanding of the right to be tried within a reasonable time?

These last two examples show, by the way, that, as much as we may love the Charter, the precise contours of its protections can and ought to be debated ― and that it’s not a given that the scope of what are currently recognized as Charter rights should never be restricted. Now, I hasten to add that I personally think that undermining the presumption of innocence would be disastrously wrong, and I’ve argued here that the Supreme Court’s decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, which imposed strict time limits on criminal trials, is more defensible than its numerous critics allowed. But these are my opinions, and I really don’t think that the government should seek to impose them on those who happen not to share them. Similarly, I do not think that the government should seek to impose the Supreme Court’s misguided opinions about the purported “rights” of trade unions on people like me. One can support the constitution while seeking to have it amended; one can certainly support the Charter while seeking to have some interpretations of it by the Supreme Court overturned; and, in any case, in a free society, no citizen ― as opposed to an office-holder ― is under no a duty to support the constitution at all.

But governments and their acolytes have no time for such complexity. They are convinced that anything less than enthusiastic universal support for whatever definition they happen to espouse of whatever rights they happen to prioritize is a threat to these rights and to the constitution as a whole. This is simply not so. To Ms. Taylor “[i]t seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students”, since funding anti-abortionists would threaten “the Charter rights of women, like the right to autonomy over their own bodies”. What should, instead be self-evident, though it manifestly isn’t, is that anti-abortion advocacy, whether federally funded or not, does not by itself impede anyone’s access to abortions. Unless governments themselves decide restrict access, this advocacy is so much hot air. Similarly, the creation of a homophobic law school out in British Columbia doesn’t reduce gays’ and lesbians’ access to any of the other law schools in Canada. And, needless to say, my or anyone else’s failure to “acknowledge” a purported obligation to “promote equality, diversity and inclusion” doesn’t take anything away from the rights that various persons or groups have under the equality-protecting provisions of the Charter or human rights legislation.

Yet in all these situations the existence of expression that contradicts rights claims (such as anti-abortionist propaganda) or indeed silence that is often unfairly interpreted to do so (such as failure to “acknowledge” whatever “obligations” the Law Society of Ontario invents) is deemed harmful. There is, in reality, no harm other than the hurt feelings of vocal factions ― whose membership is in no way coterminous with the groups on whose behalf they purport to speak. But if someone’s hurt feelings give the government the right to impose that person’s views on everyone else, there is nothing the government cannot do. Under the guise of an impassioned defence of the Charter, those who adhere to this logic of empowering government are actually working ― wittingly or not ― to remove constitutional barriers on its powers, so that the full weight of these powers can be brought to bear on ideological minorities.

Already, the room for dissent is shrinking. To repeat, Ms. Taylor points out that anti-abortionists remain “free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen” (emphasis mine). But, as the emphasized part of that sentence suggests, some spaces for public advocacy have already been closed off to them. In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734, the Alberta Court of Queen’s Bench upheld a city’s decision to ban anti-abortionist advertising, which was neither especially strongly worded nor particularly visually upsetting (though the website of the organization promoting was both), from its public buses. It was, I have argued here, a “disturbing if not perverse” decision, inconsistent with Supreme Court precedent; I further explained that its reliance on a specious argument to the effect that the people who might see the ads at issue were a “captive audience” was specious and unsupported by authority. But there it is ― and if the decision stands (there is, I take it, an ongoing appeal), governments will be allowed to ban the communication of anti-abortionist ― and otherwise obnoxious ― messages except perhaps to those who already agree with them. And of course, they will not need to stop at censorship. On the same logic that allows government to deny subsidies to organizations based on their views or agendas, it should be possible to deny them or their donors tax credits, which after all are just another form of subsidy, putting them at a distinct disadvantage when it comes to fundraising too. Nor need the government stop at interfering with the freedoms of ideologically-driven organizations. How about requiring anyone who wants to receive money from Employment Insurance or Old Age Security to submit an “attestation” similar to the one required of applicants to the Summer Jobs Programme? They too might use their money to advocate against abortion rights! There is nothing in Ms. Taylor’s ― or the federal government’s ― position that would prevent such an imposition.

The constitution binds the government. It limit its freedom of action. It does not, however, bind, constrain, or even command the unconditional support of citizens or the organizations that citizens form. The government cannot conscript citizens into a pro-constitutional task force; it cannot bind them to constitutional obligations in a way the constitution itself conspicuously does not. Citizens remain free peacefully to challenge the constitution in whole or in part, and to contest the way in which it has been interpreted by the courts. The government may not demand that citizens refrain from doing so, or induce them to refrain. The government, to be sure, need not encourage or subsidize contestation ― but only so long as it does not encourage or subsidize support either. If money is offered, it must be offered on equal terms to the holders of all views. And if this means that less money will be offered in various programmes, subsidies, and tax credits ― so much the better.

The Panglossian Peril

The dangers of naïve optimism in thinking about constitutional constraint

In a provocative paper recently posted on SSRN (and based on the HLA Hart Memorial Lecture delivered last year at Oxford), Frederick Schauer challenges a fairly common tendency to argue that apparent conflicts between rights and important interests, or among rights, are illusory, and that, properly understood, these rights and interests can be reconciled so as to avoid the conflict. Prof. Schauer calls this tendency “Panglossianism”, after the obstinately and obliviously optimistic character of Voltaire’s Candide, and argues that it makes for muddled thinking that will end up compromising the rights that Panglossians purport to value. Prof. Schauer makes important points, although I am not persuaded by his takeaway.

* * *

Professor Schauer wants us to recognize that we cannot have it all ― socially desirable policies fully implemented and rights fully protected at the same time. He laments

the common but nonetheless troubling tendency of many people to perceive (or distort) the empirical aspects of various interests in a manner that eliminates the conflict between them and other interests, or between those interests and the rights with which they may conflict. And although people sometimes thus perceive interests in ways that make rights appear cost-free, they also indulge in the equally common tendency to define rights in a way that similarly eliminates the constraints that rights sometimes impose on legitimate interests. (1-2)

To relate just one of the examples he uses, when it comes to prohibitions on hate speech, those who oppose them will often insist that hate speech is not especially harmful, or is not harmful in ways that anyone should really care about, so that upholding the right to freedom of expression has no real cost. Conversely, many of those who support the criminalization of hate speech invoke the mantra of “hate speech is not free speech”, similarly insisting that their preferred resolution of this issue is costless. “Panglossianism” can accordingly involve either a reading of the data (or speculation) about the effects of policies that minimizes their impact on rights, or a redefinition of rights or other constitutional rules that narrows them so as to ensure that a favoured policy is not precluded.

Professor Schauer argues that Panglossianism is a mechanism people deploy to deal with the threat of cognitive dissonance that people might experience if they acknowledge that their preferred policies and constitutional commitments are in tension, and even in conflict. It is easier to believe, and to say, that such conflicts are not real, or can easily avoided, than to deal with them, which would mean taking sides, recognizing that one is wrong about rights or that one’s preferred policy cannot be implemented.

Yet Panglossiansim is a problem, for two reasons. First, intellectual honesty requires us “to avoid attempting to see the empirical world through the rose-colored glasses of one’s own normative desires”. (18) And second, rights are safer if they are not justified on the basis of empirical claims that are either  weak to begin with, or at best “temporally or culturally contingent [so that] the right may turn out to be weakened or inapplicable under different empirical conditions”. (19) Rights are stronger if they are grounded in pure moral principle than if their continued existence depends on whether it is, or is not, relatively harmless. Indeed, if only harmless rights deserve protection, then not much is going to be protected at all. Professor Schauer warns that policy-makers (whether in the legislative or in the executive branch) can Panglossians too; they will tempted to insist that there is no conflict between their preferred policy and constitutional restrictions on their action. But

[u]nlike the rights-concerned Panglossian commentator or advocate who interprets – or distorts – the empirical data so as to eliminate a conflict between policies and rights, here the official is more likely to attempt to eliminate the conflict between policy preferences and constitutional constraints by understanding the constraints in a way that makes them inapplicable to the issue at hand. (22)

Panglossianism, Professor Schauer notes, can undermine not only rights protections, but all manner of intended constitutional rules. Resorting to it may be psychologically comforting, but it will weaken the very idea of constitutional constraints on governments’ pursuit of their preferred policies.

* * *

I think that Professor Schauer describes a real problem. It is indeed tempting to say that the enforcement of one’s favoured right does not compromise the attainment of valuable policy goals or the respect of other rights; it is similarly tempting to insist the implementation of one’s preferred policy conflicts with no real rights, properly understood. Debates about free speech are one area where this dynamic is especially visible, as Professor Schauer notes, but there are any number of others. It is arguable (which is not necessarily to say true) that the controversy over the federal government’s demand that religious groups “attest” to the compatibility between their “core mandate” and (some) Charter rights, about which I’ve written here, also involves Panglossian arguments on both sides.

And Professor Schauer is quite right to point out that Panglossianism can affect thinking about structural constitutional rules, and not just rights. Indeed, I would suggest that in Canadian constitutional law, Panglossianism is an especially strong danger in federalism jurisprudence. In Charter cases, section 1, which authorizes the imposition of “limits” to rights, channels the analysis into a more explicit consideration of the conflict between rights (which tend to be defined in broad and abstract terms) and policy reasons for restricting them. By contrast, the movement towards the erosion of the exclusivity of federal and provincial heads of power under the banner of “co-operative federalism” proceeds from the Supreme Court’s unwillingness to acknowledge the existence of conflict between what it sees as desirable policy and the federal division of powers. Federalism analysis simply makes no room for the acknowledgement of this conflict. This is not to say that we should change the way we approach it ― but we should beware the Panglossian dangers inherent in what we do.

Yet while I think that there is a great deal of truth to Professor Schauer’s diagnosis of the pathologies of Panglossianism, his prescriptions against it may not be especially salutary. Professor Schauer does not tell us much about how to assess what he sees as potentially-Panglossian claims about the effects of policies or the scope of rights. He warns against thinking, for instance, that not punishing hate speech is costless because such speech does not really cause any social evils. Fair enough ― those of us opposed to bans on hate speech on normative grounds will be tempted to downplay its effects. But what if it really doesn’t have any? Conversely, if hate speech really is socially harmful, that happens to align with the preferences of those who want to ban it. Both sides in this particular debate cannot, I think, be wrong at the same time. The mere fact that an empirical claim aligns with someone’s prior normative preferences cannot mean that the claim is wrong. The same applies to claims about the scope of rights (to the extent that these can be said to be correct or incorrect at all).

So while we should be wary of the dangers described by Professor Schauer, he has not convinced me to give up on empirical or otherwise contextualized thinking about rights in favour of a priori philosophizing. This is all the more so in the numerous cases that concern what might be described as marginal (possible) infringements of rights. Perhaps the hate speech question, which is about whether people can be prevented from saying certain things at all can be sufficiently resolved by an a priori insistence that such bans are never permissible. Note, though, that the argument wouldn’t work the other way: a case for banning hate speech can only be made if one is allowed to rely on empirical considerations (unless of course one takes the position that there is no right to free speech at all and anything can be banned). But what about, say, restrictions on financing political parties? Most people accept that at least some restrictions are acceptable (most people in North America, anyway; New Zealand has no limit on how much one can give, and seems to be doing just fine!); many ― most, I hope ― would also agree that some restrictions are too extreme and cannot be justified. The issue is where to draw the line, and where to err in doubt. I don’t think that we can give remotely interesting answers to these questions without knowing something about the current practices of political fundraising and the likely effects of raising or lowering the existing restrictions. Again, Professor Schauer’s warnings about Panglossianism are relevant, but his suggestion that we resolve our questions by reference to first principles alone is not helpful.

Now, Professor Schauer is right, of course, that any empirically contingent answers might be inapplicable under different circumstances. He might be overstating the extent to which this is a problem: I’m not sure, for instance, that cultural contingency of rights protections is objectionable; it’s not obvious that rights must be the same everywhere and at all times. However, to the extent that, within a legal order, rights are implemented through judicially articulated constitutional doctrine, this doctrine risks being destabilized if the empirical or normative premises on which it is based are challenged by the evolution of society and of what we know about it. How to deal with this risk of instability (and its converse, the risk of a static doctrine divorced from reality) is a difficult question, to which I have no very good answers. But I doubt that we can avoid trying to get at some answers, at least, if only mediocre (and contingent!) ones.

Thinking about constitutional rules and their relationship with policy is a difficult business. Professor Schauer is right to remind us that we are too often tempted to oversimplify it by pretending that contradictions between our normative commitments and policy preferences are less significant than they really are. Unfortunately, he doesn’t offer us much by way of useful advice for identifying the exact situations where our thinking is so sidetracked, and his suggestion that we think more about abstract principle than about the real-world effect of policy does not strike me as especially helpful. Nevertheless, Professor Schauer’s warning is an important one, and we should heed it even if we conclude that we must continue exposing ourselves to the dangers he highlights.

A “non-constitutional” take on the Canada Summer Jobs Program (by guest blogger Kathryn Chan)

The Trudeau government’s administration of the Canada Summer Jobs Program has attracted a great deal of criticism in recent weeks.  Controversy swirls around the “detestable attestation”, which requires groups that apply for program funding to attest that both the job [for which they plan to use the funding] and the group’s core mandate respect individual human rights in Canada.  The attestation specifies that these rights include “the values underlying the Canadian Charter of Rights and Freedoms” as well as reproductive rights and the right to be free from discrimination.

Underlying the poor drafting and poor communications, the issue is whether the Trudeau government either can or should require program applicants to sign an attestation that may conflict with their religious views. Commentators have expressed very strong opinions on the issue, with the weight of the legal commentary pivoting upon divergent views of the scope of the Charter’s equality and religious freedom provisions. Constitutional law principles are likely to be determinative of the question of whether the government can make signing the attestation a condition of its summer job funding. However, I suggest that as we consider whether government should use the attestation in this way, we also have regard to “non-constitutional” legal principles and debates.  In particular, I suggest we might gain a deeper understanding of the contest over the Canada Summer Jobs Program by considering the law’s approach to regulating charities, and the manner in which it navigates the tension between the respective spheres of individual project pursuit and collective project pursuit.

The majority of the organizations that object to the attestation are religious charities.  By virtue of the legal criteria of charitable status, we may assume that they are non-profit organizations constituted to advance the tenets of a religious faith, either directly (by spiritual teaching), or indirectly (by assisting the needy in accordance with their religious beliefs).   They must also operate “for the public benefit” within the meaning of the common law.  Provided that religious organizations meet these criteria, the common law has long held that they are entitled to the advantages of charitable status: perpetual duration, the protection of the Crown, and (since the early 20th century) a variety of tax benefits.  Religious and other charities are also subject to special burdens, including stringent duties with respect to the administration of charity property, and regulatory and reporting duties under the federal Income Tax Act.

The common law has always pursued two contradictory goals in defining and supervising the entities that are entitled to this special treatment.  The first is to enable benevolent property owners to improve the world in accordance with their own individual vision.  This goal – of protecting conditions of individual autonomy for the founders and administrators of charitable projects – is strongly associated with the private law sphere.  As Nigel Simmonds has explained, it expresses the deep value that liberal democracies place upon individual project pursuit – “the freedom of the individual to formulate and execute his or her own plans and projects without regard to the value or disvalue placed upon the content of those plans and projects by others”.

The common law’s second goal with respect to charities is in tension with the first – it is to set limits on the autonomy of those who found and administer charitable projects in order to ensure conformity with a more collective ideal of the good.  This is a goal strongly associated with the public law sphere. It expresses (again in Simmonds’ terms) the deep value that liberal democracies place upon collective project pursuit – “our collective freedom and responsibility to determine, through appropriate mechanisms, the broad structural features of our own society.”

One way that liberal democracies deal with their simultaneous valuation of individual and collective project pursuit is to delineate spaces where each of these forms of project pursuit dominates. For example, a person’s navigation of an intimate relationship is understood to be an individual project, where the law’s priority is generally that individuals be able to author their own life.  A government’s decision to impose a tax for the national defence, by contrast, is understood to be a collective project, which must be governed according to “public law values” such as fairness, equality and rationality.

The difficulty is that many projects sit somewhere along the expansive spectrum between the opposing poles of individual and collective project pursuit, making it difficult to determine whether autonomy or “public law values” should prevail.   Charitable projects, I have argued elsewhere, sit right in the middle of this spectrum, where the regulatory impulses of public law and private law bear down on them with comparable force. Religious charitable projects occupy an even more complex position on the spectrum, since their religious freedom is linked both to our collective project of rights protection and to individual and community autonomy.  Charity law has historically balanced the opposing impulses of public and private law with tools such as the definition of charity and the public benefit rule (see also Professor Adam Parachin’s work on these themes). Nevertheless, the equilibrium between these impulses changes over time.  And so a Catholic adoption agency that would, at one time, clearly have been considered an individual project, may come to be treated as a collective project in a world where government and charitable programs  are intertwined.

There are no easy answers to the question of when the government should stop treating projects as individual projects and start treating them as collective ones.  The question may arise with for-profit projects as well as not-for-profit ones. However, both ancient and recent history suggest that charities are particularly vulnerable to being ‘co-opted’ by government through funding or other mechanisms that nudge charities towards alignment with the government’s substantive goals. We should be wary of such alignment, I have argued elsewhere, religious freedom or not. First, such alignment or co-optation may threaten the voluntary spirit that typically characterizes charitable activity and has historically been understood to be its greatest strength.  Second, even where the alignment appears benign or well-intended, it risks becoming part of a broader pattern of the governmental stifling of dissent.  Finally, charities that cannot accept being aligned with the government’s agenda are likely to withdraw from their relationships with government, distancing themselves from the regulatory oversight that is designed to protect the public.

The debate over the Canada Summer Jobs grant program is unlikely to be easily resolved, and is almost certain to rear its head in other factual contexts.  Constitutional law principles may ultimately determine whether government can require applicants for funding programs to align with government policies in the manner of the attestation.  However, as government ponders how it should manage its relationship with religious organizations, it should also consider the centuries-old law of charities, and the principles it developed to regulate projects that were neither purely “individual” nor “collective”.