L’ordre et le rêve

Le contrôle judiciaire après Dunsmuir

The Hon. Louis LeBel CC

Le texte n’appartient plus à son auteur; ce lieu commun de la critique littéraire s’applique particulièrement bien à l’œuvre judiciaire. Une fois déposé, le jugement s’incorpore dans un patrimoine commun, le droit ou le système juridique d’un état ou d’une communauté politique. Il tombera souvent dans le silence.

Parfois il connaîtra une notoriété, peut-être temporaire. Loué ou critiqué, il aura connu le sort que Voltaire au 18e siècle souhaitait à son œuvre, « que l’on en parle en bien, que l’on en parle en mal, pourvu qu’on en parle! » La lecture des contributions communiquées sur les blogues des professeurs Daly et Sirota confirme que tel a été le sort de l’arrêt Dunsmuir depuis 10 ans.

Cependant, puisque cet arrêt n’appartient plus à ceux qui l’ont rendu, il ne me semblerait pas approprié de m’engager dans une défense et illustration de ses mérites. Toutefois, je n’entends pas, même en ces temps de carême, me vêtir d’un sac de toile, répandre des cendres sur ma tête et commencer d’amères pénitences pour obtenir le pardon de la communauté juridique canadienne.

À l’occasion de ces 10 ans, je préfère partager quelques réflexions sur le contrôle judiciaire tel qu’on le connaît au Canada et sur la conception que l’on s’en fait. Le sujet m’a intéressé, bon gré mal gré, au cours de ma vie professionnelle comme avocat puis comme juge. Je pense d’ailleurs avoir plaidé mon premier dossier de contrôle judiciaire en 1964. Jusqu’à ce que je devienne juge, les affaires de contrôle judiciaire sont demeurées constamment une partie de mon horizon intellectuel. Il m’est arrivé aussi de donner quelques cours sur le sujet.

Puis comme juge à la Cour d’appel du Québec puis à la Cour suprême du Canada, les problèmes de contrôle judiciaire ont constitué une part substantielle de mon activité. Si ma mémoire est fidèle, vers 1996, les affaires de contrôle judiciaire représentaient environ 20 % du rôle civil de la division d’appel de Montréal. Cependant, si j’ai aimé le droit administratif, je n’ai jamais salivé à l’idée de plaider ou d’entendre une affaire de contrôle judiciaire. Je ne me souviens pas d’être parti entendre Dunsmuir en clamant le matin mon bonheur à mon épouse.

J’admets le fait de la popularité et l’abondance des activités de contrôle judiciaire. Je les ai considérées souvent comme des problèmes intéressants de procédure civile et de droit administratif. Elles représentaient une part complexe des tentatives d’aménagement du droit administratif ainsi que l’organisation des rapports entre les composantes d’un état démocratique moderne et des relations entre les groupes de toute nature qui forment la société civile.

J’ai donc vécu comme praticien et comme juge plusieurs systèmes de contrôle judiciaire et l’émergence de paradigmes divers gouvernant ceux-ci. Rien ne fut parfait et l’expérimentation s’est continuée. Après d’autres, j’ai apporté une contribution dont la nature fait elle-même l’objet de commentaires à l’occasion de cet anniversaire.

Il m’est arrivé de percevoir dans le fonctionnement du système de contrôle judiciaire un obstacle de l’accès à la justice ou à son efficacité dans les domaines relevant du droit administratif. Que l’on revienne à la case zéro après 15 ou 20 ans de débats judiciaires ne m’est jamais apparu comme une solution admissible, comme je reconnais volontiers l’avoir dit au cours d’une audience de la Cour Suprême, ainsi que le soulignait Me Gall dans sa contribution. Je demeure aussi inconfortable devant des systèmes qui, superposant des procédures de contrôle judiciaires à des régimes d’appel administratif créent une demi douzaine de paliers de juridiction. En réalité, mon intérêt pour le contrôle judiciaire correspond sans doute à celui du chirurgien devant un cancer du pancréas complexe.

Néanmoins, la question du contrôle judiciaire demeure présente et doit être traitée dans un système juridique comme celui d’un pays comme le Canada. Celui-ci reste soumis à la règle de droit comme la Cour suprême le rappelait dans le Renvoi sur la sécession de Québec[1]. Les structures constitutionnelles mises en place par la Constitution de 1867, notamment quant au rôle des Cours supérieures, rendent la question incontournable. Dans ce contexte, le contrôle judiciaire représente un mécanisme nécessaire pour assurer le respect d’un ordonnancement juridique fondamental. Cependant, il doit s’insérer dans la vie d’un état démocratique moderne dont les fonctions de réglementation sociales et économiques ont connu une forte expansion, bien que celle-ci n’ait jamais fait l’unanimité. Il s’inscrit dans les mécanismes d’un droit public, constitutionnel et administratif qui pénètre profondément toute la vie de la société canadienne.

Cette forme de contrôle de l’activité administrative implique nécessairement des conceptions diverses du rôle des tribunaux supérieurs et des mécanismes de formation du droit dans la société contemporaine. Il soulève aussi des interrogations fondamentales sur la nature du droit et des processus de sa formation de celui-ci, y compris au sujet de la nature et de la mise en œuvre des méthodes d’interprétation.

Des commentaires recueillis sur les blogues des professeurs Daly et Sirota, ressortent deux tendances fondamentales. L’une voit dans le contrôle judiciaire une méthode destinée à assurer l’ordre dans le système juridique canadien particulièrement à l’égard des questions de droit. Pour elle, le contrôle judiciaire, à la limite, ne se distinguerait guère de l’appel. Il laisserait sans doute la décision sur le fait au décideur administratif mais exigerait que la plupart des questions de droit soient réglées selon un test d’exactitude défini par les tribunaux supérieurs. Aussi, de fortes réserves se manifestent à l’égard d’une approche déférente qui permettrait aux tribunaux administratifs de définir leur conception de la conformité aux normes fondamentales comme la Charte canadienne des droits et libertés ou, au Québec, la Charte des droits et liberté de la personne[2].

Au fond, cette première tendance vise à l’unification des règles de droit et de leur mise en œuvre par le choix d’une norme d’intervention fondamentalement similaire à celle de l’appel civil ou pénal.

L’autre tendance découle d’une opinion toujours essentielle dans l’aménagement du système de contrôle judiciaire canadien, celle du juge Dickson, plus tard juge en chef dans l’arrêt Syndicat canadien de la Fonction publique, section locale 963 c. Société des alcools du Nouveau‑Brunswick[3]. Comme le note fort à propos la professeure Valois dans sa contribution à ce groupe d’études, elle étend clairement le droit du contrôle judiciaire au mérite de la décision administrative en la soumettant à une norme de rationalité au lieu de limiter l’intervention du tribunal supérieur à la définition de sa compétence et à l’examen des conditions dans lesquelles la décision a été rendue.

Cependant, cette extension s’accompagnait de la reconnaissance d’une forme de déférence en faveur du décideur administratif, même sur un grand nombre de questions de droit. Elle acceptait qu’il existe des dossiers où les choix interprétatifs de décideur administratif primeraient en dépit de désaccords potentiels avec l’opinion de la cour de contrôle. En ce sens, cette orientation qui s’est retrouvée dans des formes diverses d’aménagement du contrôle judiciaire depuis ce jugement, comporte une reconnaissance implicite qu’un système de droit laisse place à une marge de pluralisme juridique. Le droit n’est pas nécessairement univoque et une des fonctions d’un organisme administratif peut consister dans le développement de ses propres orientations juridiques. Un jugement, l’arrêt Domtar[4] admettait d’ailleurs cette possibilité en rejetant même les inconsistances des décisions d’un tribunal administratif comme justification à elle seule d’un exercice du pouvoir de contrôle judiciaire.

L’aménagement du contrôle judiciaire dans cette seconde tendance s’est réalisé, comme on le sait, sous des formes très diverses. La construction de l’œuvre se continuera inévitablement. Cependant, elle a reconnu l’existence d’une autonomie partielle des tribunaux administratifs, certainement sur le fait, mais aussi sur le droit au cours de tous les débats sur les méthodes de contrôle judiciaire.

Le débat incessant sur les normes de contrôle judicaire a d’ailleurs occulté en partie le développement du droit administratif comme tel. La focalisation sur les normes de contrôle et les problèmes d’accès à celui-ci a conduit parfois à négliger que le droit administratif se développait au niveau des juridictions inférieures qui régissent largement la vie quotidienne des membres de la société[5]. On oublierait parfois, à lire notamment une partie de la doctrine de droit administratif, que celui-ci ne se limite pas au contrôle judiciaire. Pourtant, l’examen d’une œuvre récente comme la 7e édition du traité de droit administratif du professeur Patrice Garant[6], confirme la diversité et l’ampleur du droit administratif. Cependant, le contrôle judiciaire tend à absorber toute l’attention. Parfois, sa conception exprime le rêve de la formation d’un ordre stable et de règles d’application quasi-automatiques, dispensant de l’exercice d’un jugement prudentiel. Cette approche oublie les exigences de la vie d’une société et l’importance de l’expérimentation juridique. Elle néglige aussi la nature du droit de l’interprétation juridique qui opère parfois comme mécanisme de création et non seulement, comme une technique mécanique de dégagement d’un sens caché d’un texte.

Le droit ne s’accomplit jamais définitivement. Des problèmes continuent à se poser. Je pense, par exemple, à l’intégration des questions d’équité procédurale dans le système de contrôle judiciaire. On peut aussi s’interroger sur la question des limites du système actuel de contrôle judiciaire et de sa capacité de s’adapter aux fonctions administratives autres que celles d’adjudication. Comment fixer les limites de ce contrôle et ses modes d’exercices particulièrement à l’égard de l’application des normes fondamentales par exemple dans le cas des fonctions de décision individuelle et de réglementation de l’administration publique.

L’essence du contrôle judiciaire correspond à des objectifs simples à définir : maintenir un ordre juridique stable sur des questions de droit fondamentales et assurer le respect d’un processus décisionnel rationnel et juste dans l’administration publique. La réalisation de ces objectifs demeure difficile surtout lorsque le contrôle judiciaire est trop souvent employé pour prolonger des débats devant la justice ou obtenir une seconde chance de modifier une décision prise en réalité dans les marges de la raison et de l’équité procédurale.

L’une des beautés du droit se retrouve dans la nécessité de faire appel à l’imagination au-delà des tentatives ou des espoirs de s’endormir dans un cadre formel immuable. Le présent débat sur les normes de contrôle témoigne de cette tentation et de ce défi. Il s’agit d’apprendre à contrôler le contrôle judiciaire.



[1]
Renvoi relatif à la sécession de Québec, [1998] 2 R.C.S. 217.

[2] RLRQ, c. C-12.

[3] S.C.F.P. c. Société des Alcools du N.-B., [1979] 2 R.C.S. 227.

[4] Domtar Inc. c. Québec Commission d’appel en matière de lesion professionnelles, [1993] 2 R.C.S. 786.

[5] Voir: par exemple, P. Noreau, F. Houle, M. Valois, P. Issalys, La justice administrative : entre indépendance et responsabilité – Jalons pour la création d’un régime commun des décideurs administratifs indépendants, Éditions Yvon Blais, Cowansville 2014.

[6] P. Garant, Droit administratif, 7e édition, Éditions Yvon Blais, Cowansville 2018.

Did Dunsmuir Simplify the Standard of Review?

An empirical assessment

Robert Danay, Justice Canada and UBC

(The author’s views do not necessarily reflect those of the Department of Canada or the Government of Canada)

While the Supreme Court issued three sets of reasons in Dunsmuir v New Brunswick,[i] all members of the Court agreed that the system governing the standard of review in administrative law had become too complex and was in need of simplification. Mr. Justice Binnie offered perhaps the most compelling reason to support this reform: access to justice.

The existing system, Binnie J argued, inflated the time and legal resources required to adjudicate what is supposed to be a quick and inexpensive way of challenging governmental decisions. As he persuasively put it (at para. 133) “[e]very hour of a lawyer’s preparation and court time devoted to unproductive ‘lawyer’s talk’ poses a significant cost to the applicant.…A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome.” As a decade has now passed since these words were penned, it behooves us to ask: did the Court in Dunsmuir succeed in reducing the legal resources devoted by litigants to debating the standard of review? As readers of Paul Daly’s Administrative Law Matters blog may already know, my preferred approach to answering such questions is through empirical analysis.[ii] This case is no exception.

As described in greater detail below, after reviewing a sample of 120 factums filed by litigants before and after Dunsmuir was decided, it would appear that the Supreme Court may not have been successful in reducing the legal resources devoted by parties to mooting the standard of review. This suggests that – as Madam Justice Abella recently argued in Wilson v. Atomic Energy of Canada Ltd.[iii] – significant new doctrinal changes may be needed in order to fully realize the goal of simplifying the standard of review for litigants and lower courts.

Methodology

Using WestlawNext Canada’s database of factums extracted from court files,[iv] I collected factums from judicial review applications and statutory appeals in the Ontario Divisional Court and the Federal Courts. With each jurisdiction, I collected the 30 factums in the database that were filed in the period immediately preceding the release of Dunsmuir (going back as far as July of 2006) as well as the most recent 30 factums found in the database (these span the period from September of 2013 to December of 2016).

As a rough measure of the extent to which parties spent legal resources on mooting the standard of review, I tabulated the number of paragraphs in each factum devoted to that issue as well as the proportion of the total paragraphs in each factum on the standard of review. Comparing the average of both figures from before and after Dunsmuir affords a crude assessment of whether the goal of simplifying the standard of review for litigants was successful.

With regard to the Ontario Divisional Court, the 60 factums that I examined concerned judicial review applications or statutory appeals of a variety of different administrative decision-makers, the most common being the Director of the Financial Services Commission of Ontario, a municipality, the Human Rights Tribunal of Ontario or the Environmental Review Tribunal. The 60 factums in the dataset that were filed in the Federal Courts primarily concerned a variety of intellectual property-related decision-makers such as the Registrar of Trade-marks and the Commissioner of Patents as well as the Canadian Human Rights Tribunal and adjudicators dealing with federal labour relations matters.

Results: No Apparent Reduction in Legal Argument on Standard of Review

The results of this empirical analysis suggest that the Court in Dunsmuir may not have been successful in reducing the legal resources that parties were required to spend in order to address the standard of review

With regard to factums filed in the Ontario Divisional Court, the average number of paragraphs dealing with the standard of review increased from 8.5 paragraphs per factum before Dunsmuir to 10.4 paragraphs more recently, representing an increase of 22%. Similarly, the average share of factums devoted to debating the standard of review increased after Dunsmuir, from 14.2% in 2006-08 to 16.5% in 2013-15, which represents an increase of 16%.

Danay1

The data from the Federal Courts exhibit a similar trend. The average number of paragraphs dealing with the standard of review increased from 2.6 paragraphs per factum before Dunsmuir to 3.4 paragraphs more recently, an almost 31% increase. On the other hand, the overall percentage of factums devoted to the standard of review in the Federal Courts remained unchanged at 6%.

Danay2

While this limited study has some obvious methodological limitations,[v] it does seem to suggest that the changes made by the Supreme Court to the standard of review in Dunsmuir have not reduced the extent to which parties must devote resources to arguing the standard of review.

Conclusion: Vindication for Madam Justice Abella?

The data reviewed above provide some support for the provocative position taken by Abella J in Wilson. In that case Abella J decried as “insupportable” the fact that a substantial portion of the parties’ factums in that case and the decisions of the lower courts were occupied with what the applicable standard of review should be. This, she suggested (at para 20), required the Court to “think about whether this obstacle course is necessary or whether there is a principled way to simplify the path to reviewing the merits.”

Madam Justice Abella’s proposed solution was to adopt a single reasonableness standard of review.[vi] While none of her colleagues were willing to endorse this proposal, Abella J conceded (at para. 19) that “[t]here are undoubtedly many models that would help simplify the standard of review labyrinth we currently find ourselves in.” If simplification in the name of access to justice remains a priority, members of the Court will need to explore and adopt such a model in the coming years. If they do, then that new model will be ripe for further empirical assessment when it is ultimately applied by litigants and lower courts.



[i]
[2008] 1 SCR 190 [Dunsmuir].

[ii] See Robert Danay, “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66 UTLJ 555 [Danay, Quantifying Dunsmuir].

[iii] [2016] 1 SCR 77 [Wilson].

[iv] WestlawNext indicates on its website that this database “includes facta extracted from the court files of significant court cases in every Canadian Common Law jurisdiction.” These documents are selected from cases that fall into 12 different subject areas including “Canadian Cases on Employment Law,” “Canadian Environmental Law Reports,” “Intellectual Property Cases” and “Municipal and Planning Law Reports.”

[v] Aside from the fact that the dataset of factums is not truly random, I have not sought to control for potentially confounding factors using a multiple regression analysis. For an explanation of why I tend to reject doing so see Danay, Quantifying Dunsmuir, supra note 2 at 576.

[vi] Ibid. at paras. 28-37.

Polyphony

How different constitutional orders respond to attempts at denying citizens access to adjudication

The UK Supreme Court recently delivered a judgment that will, I think, be of interest to those Canadian readers who have not yet heard of it. That is because the case, R (Unison) v Lord Chancellor [2017] UKSC 51, arises out of circumstances that are fundamentally similar to those of the Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. Trial Lawyers, which I summarized here, concerned a challenged to the fees that litigants had to pay for each day they argued their cases in the (trial) Supreme Court of British Columbia. Unison involved fees imposed on litigants who took their cases to tribunals charged with the resolution of employment law disputes. But the ways in which the courts addressed the legal issues highlights the differences both between the respective constitutional frameworks of Canada and the UK, and between the courts’ understandings of their roles within these frameworks.

In Trial Lawyers the majority addressed the constitutionality of hearing fees, concluding that, if they are set so high as to prevent people accessing superior courts, they would contravene section 96 of the Constitution Act, 1867, which had previously been held to protect the “core” jurisdiction of the courts to which it refers. While the Chief Justice’s opinion, for the majority, also addressed the principle of the Rule of Law, it invoked this principle only as additional support for its conclusions ― Justice Rothstein’s accusations to the contrary notwithstanding. Only Justice Cromwell, in his concurrence, proposed deciding the case on administrative law grounds, and would have held that since the hearing fees were imposed by delegated legislate made pursuant to a statute that preserved the common law right of access to courts, they could not validly interfere with this right. Yet interfere with it they did, and they were therefore invalid for that reason.

By contrast, Unison was decided on administrative law grounds ― and the principle of the Rule of Law was central to the UK Supreme Court’s reasoning. Having concluded that, as a matter of empirical fact (on which more below), the fees at issue deter substantial numbers of people from pursuing their claims, the Court asked itself whether “the text of” the statute pursuant to which the fees were imposed by the executive, “but also the constitutional principles which underlie the text, and the principles of statutory interpretation which give effect to those principles”  [65] provided authority for setting the fees at their  current level. The relevant principles included, in particular, “the constitutional right of access to justice: that is to say, access to the courts (and tribunals …)”, [65] which in turn is an aspect of the Rule of Law. They also included the idea that rights granted by a statute cannot be nullified by delegated  legislation purportedly authorized by a different statute.

The Court began with what Mark Elliott, on his excellent Public Law for Everyone blog, described as

a primer — albeit a very powerful one — on what the rule of law means … . Indeed, it is difficult to escape the conclusion that the Court felt it necessary to drive home some very fundamental propositions — ones that should not really need to be driven home — because the Government’s position indicated ignorance of or contempt for them.

As part of this “primer”, the Court emphasized that

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. … In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other. [65]

In the course of adjudicating disputes, courts both ascertain important legal principles and provides the assurance that “[p]eople and businesses … will be able to enforce their rights if they have to do so, and … that if they fail to meet their obligations, there is likely to be a remedy against them.” [71] For this assurance to be effective, “people and businesses” must be able to take their disputes to courts or tribunals, if need be.

Given the importance of access to courts and tribunals, “any hindrance or impediment by the executive requires clear authorisation by Parliament”, [78] and the authorization will only be taken to extend so far as the achievement of its purposes requires. As Parliament did not clear empower the executive to levy fees that would prevent litigants from accessing tribunals, and as the fees at issue had precisely that effect, they must be held not to have been authorized by the statute under whose purported authority they were imposed. In addition, they “must be regarded as rendering … nugatory” [104] the rights which the tribunals are supposed to enforce, thought in the Court’s view this point this point overlapped with the Rule of Law one.

It is tempting for people used to constitutional frameworks where legislation can be invalidated for inconsistency with the supreme law to look down on a decision based on administrative law grounds, which can be overridden by legislation. Indeed, even prof. Elliott writes that “for all that the case represents a striking and robust reaffirmation of fundamental constitutional principles, it also hints at — or least raises questions about — the limits of those principles” ― within the UK constitutional context, that is. After all, if the UK executive insists on collecting prohibitive tribunal fees, it can (try to) get Parliament to enact them into statute, or explicitly allow fees to be set at levels that will result in impeded access. If the UK Parliament does either of these things, there can probably be no challenge to its decision within the UK’s internal legal order, subject to courts taking up the occasional musings of some judges about limits to Parliamentary sovereignty ― an unlikely, and at least arguably an undesirable prospect. (Prof. Elliott, mixing metaphors somewhat, describes as a “nuclear option”, and says that “we will cross this bridge if we ever come to it, while fervently hoping that we never do”.) It is better, we might be tempted to say, for courts to have at their disposal the more powerful weapons that an entrenched constitution, like that of Canada, can provide.

But, while there is a good deal of truth to this view, it is not the whole truth. Prof. Elliott suggests that

in some constitutional orders … administrative orders incompatible with the right of access to justice would be unlawful — because the constitution would withhold the authority to legislate in breach of such a fundamental right.

But things might not be so simple. Prof. Elliott does not say what “constitutional orders” he has in mind, but at least in the Canadian constitutional order, it is by no means clear that the constitution withholds the right to legislate in breach of the right of access to justice. In commenting on Trial Lawyers here, I said that not only does the reasoning of the majority opinion in Trial Lawyers “rest on shaky foundations” whose weaknesses are brutally exposed by Justice Rothstein’s dissent, but they “leave some important questions” ― questions about the limits of the constitutional principles that it applies ― “unanswered”. In particular, it is very doubtful that the right of access to superior courts constiutionalized in Trial Lawyers extends to provincial court and to administrative tribunals  (which is to say, to the sort of decision-maker at issue in Unison!), to which section 96 of the Constitution Act, 1867, on which that decision ostensibly rests, does not apply.

The legitimacy of judicial interventions to uphold fundamental constitutional principles can be questioned not only in constitutional systems that acknowledge Parliamentary sovereignty, but also in those that allow for judicial review of legislation ― if not in principle, then in (almost) any given case. The best answer to such questions is, of course, the existence of a clear constitutional provision in which the intervention at issue  can fairly be rested. In the absence of such constitutional authority, judges are apt to grasp at textual straws, and, at the risk of also mixing metaphors, we know that a house built of straw can easily be blown away. In short, the existence of an entrenched constitution does not always make for very solid decision-making.

Indeed, Unison has at least one substantial advantage over Trial Lawyers. Its discussion of the Rule of Law principle is relatively extensive and forthright. The UK Supreme Court makes no apologies about the Rule of Law being central to its decision. The majority opinion in Trial Lawyers, however, approached the Rule of Law somewhat gingerly, and insisted that it is not the main basis for its decision ― though this was not enough to mollify Justice Rothstein, who claimed that

[i]n using an unwritten principle to support expanding the ambit of s. 96 to such an extent the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text. [93]

For my own part, I have argued here that Trial Lawyers should, and could, have been decided on the basis of the Rule of Law principle ― though my argument was a version of the “no making rights nugatory” one that the Unison Court only briefly addressed. Perhaps the Supreme Court of Canada did not address it only because it was not put it by the parties. (The cases on which it rests in the Canadian context are not well known, I suspect.) Perhaps it would have found this argument unconvincing in any event. But I suspect that the Trial Lawyers majority would have hesitated to enlist this argument even if it were convinced by it, due to the sort of concern to which Justice Rothstein appealed (unpersuasively in my view). As Jeremy Waldron observed in “The Core of the Case against Judicial Review”, constitutional adjudication under an entrenched text is liable to pay more attention to the text than to fundamental principle. In my view, this is not always a bad thing ― but it is, admittedly, not always a good one either.

Before concluding, let me note another point of contrast between Trial Lawyers and Unison: their respective treatment of empirical data. The majority opinion in Trial Lawyers is a fairly abstract one, in the sense that its focus is very much on the legal issues. It only briefly alludes to the personal circumstances of the original plaintiff in the case, pointing out that she was “not an ‘impoverished’ person in the ordinary sense of the word” (which made her ineligible for an exemption from the fees at issue). In Unison, meanwhile, statistics and data-based hypothetical scenarios intended to expose the effect of the fees at issue take up an important place in the judgment. The Court reviewed in considerable detail the nature of the disputes to which the fees at issue applied, with the aim of showing that most of them involved parties of limited means seeking to recover small amounts (or, in some cases, to obtain non-pecuniary remedies), as well as the financial effects of these fees on economically vulnerable litigants. The Court linked the precipitous drop in the number of disputes heard to the deterrent effect of excessive, and rarely recoverable, fees, providing the factual underpinning for its legal reasoning. Later on, it also discussed the fees’ failure to raise much revenue, concluding that “it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated”. [100] In that way, Unison is similar to cases that are part of what I have been discussing here, using Kerri Froc’s label, as the  “empirical turn” in Canadian constitutional law ― while Trial Lawyers was not.

Despite originating in fairly similar circumstances, then, Trial Lawyers and Unison are quite different decisions. Each has its own logic and responds to its own concerns. But it is also true that they are both parts in delivering a unified message: that of the common law courts’ endorsement, sometimes ringing and sometimes more muted, of the value of access by the citizens to the adjudication of rights claims. Beyond the differences of strictly legal issues and methods, there is a single theme: that, as a matter of political morality, a state that purports to respect and even to create rights must not prevent citizens from asserting them.

All about Administrative Law

Justice Stratas’ remarkable endeavour to improve our understanding of administrative law

Justice Stratas recently posted a most remarkable document on SSRN. Called “The Canadian Law of Judicial Review: Some Doctrine and Cases“, it is nothing less than a comprehensive overview of the concepts, principles, and rules of administrative law in an accessible format, for the reference of judges, lawyers, scholars, and students. While Justice Stratas cautions that it “is not meant to be complete” (1), and notes ― with perhaps just a little optimism ― that it “can be read from beginning to end in one short sitting” (7), the wealth of information it contains is really astonishing.

Here is how Justice Stratas himself describes what he is doing:

 It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review.

Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available).

The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers’ understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

(SSRN abstract; some paragraph breaks removed)

Justice Stratas’ work (I am not sure how to describe it ― it is neither an article nor a case- or textbook; in a way, it is perhaps a super-blog-post; more on that shortly) is of course an outstanding service to the legal profession writ large. But it is also, I think, a challenge to us, or indeed several challenges at once.

For one thing, as he did in his lecture on “The Decline of Legal Doctrine” last year, which I commented on here, Justice Stratas calls upon us to devote ourselves to shoring up this weakened edifice. As he notes in his introduction, in order to treat litigants fairly, judges must apply

ideas and concepts binding upon them, a body of doctrine. … If decisions are made because of an individual judge’s sense of fairness or justice, the appearance, if not the reality, is that the decision sprung from personal or political beliefs of an unelected person. (4)

Here, Justice Stratas now says, is a restatement of the ideas and concepts that structure administrative law. One challenge for us simply to help him with it: “contributions of case law, articles, comments and input will improve this document and are most welcome”. (9) But there is a broader challenge here too, especially to those of us in academia. If a sitting judge is able to produce such a statement in a notoriously tricky and unsettled area of the law, why haven’t we done something similar in others?

Now, of course there treatises and textbooks in many areas of the law, and part of what prompted Justice Stratas to put together his document, which is based on PowerPoint presentations he uses to speak on administrative law, is the dearth of “new, up-to-date texts on administrative law, perhaps reflecting its currently unsettled nature. Who dares write about a landscape that is shifting so much?” (6) But Justice Stratas challenges us on the form as much as on the substance. He forces us to think about the media we use to present legal doctrine, even we do write about it.

Justice Stratas points out that

[b]ack in the day of published law reports, knowledgeable editors, skilled in the area, could pick out the cases that matter. These days, however, most lawyers work online, not from the law reports, encounter the flood of cases and somehow have to separate the wheat from the chaff. Alas, most don’t have criteria in mind to do that. (5)

Meanwhile, loose-leaf services, though informative as to particular cases, might tend to “encourage us to think of administrative law as a bunch of particular rules that govern particular topics”, (6) without thinking about underlying concepts and their inter-relationships. (Justice Stratas’ concerns here echo those of Jeremy Waldron, whose work emphasizes the “systematicity” of law, and seeks to push back against treating it as just a collection of unrelated rules and commands.)

And then, of course, there is a concern about access to justice, or to law anyway. In an age in which, on the one hand, many litigants represent themselves, and on the other, those who take interest in Canadian administrative law are sometimes half a world away from a Canadian law library, and also in an area in which the resources even of many practising lawyers are likely to be limited (I’m thinking, for instance, of the immigration bar), it would arguably not be enough to point people to books even if very good ones existed. Justice Stratas writes that

[t]he law should be accessible to all: other judges, counsel, academics, law students, parties and self-represented litigants. Online publication and availability for free encourages this. Hence this document and the location where I have posted it. (6)

If we accept the doctrinal mission with which Justice Stratas wants to invest us, we must think about the form of our work as well as its content. I’m not sure that we must quite imitate Justice Stratas. His document has some advantages. It is relatively easy to access, concise, and convenient in its abundant use of hyperlinks. But I think that a website having the same content would be even easier to access than a document one must download from SSRN, and easier to navigate than a pdf through which one must scroll. Needless to say, I am not criticizing Justice Stratas. Again, we owe him greatly, and I, at least, would probably not have started thinking about this without his nudge. But if can improve on his first attempt in this regard, then we should.

Last year, I wrote about about a symposium at McGill about the “Responsibility of Doctrine”. Musing on the English/common law and French/civilian senses of the word doctrine/doctrine, I concluded that if these ongoing conversations about the law “are to flourish in the 21st century, they will need to remain open to new forms, and … it will not do to ignore these new forms simply because they are unfamiliar.” Justice Stratas makes a remarkable contribution to legal doctrine, in both of its senses, in an unfamiliar form. I hope that the legal community will pay all the more attention to it for this reason.

H/t: Patrick Baud

Permanent Problems

The law’s ideals and problems have not changed too much in 400 years

I have only now read Francis Bacon’s essay “Of Judicature.” Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway ― I suspect that they haven’t heard much of Coke in the science faculties, where Bacon is regarded as “the father of the scientific method.” Still, his essay is fascinating, because it shows just how little the law’s aspirations and failings have changed in the 400-odd years since it was published.

Bacon’s essay is essentially a collection of advice to judges about how to discharge their office. A good deal of it could still be repeated today. My point, in drawing attention to it, is not to say that all of this advice is good, at least in an unqualified form. It is, first and foremost, to remind the reader of the remarkable historical continuity which, for better and for worse, characterizes the law as a field of human activity.  Here are a few of Bacon’s recommendations, with some accompanying thoughts or comments of my own.

* * *

Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.

Sounds familiar, doesn’t it? If and when there is at last a confirmation hearing for the next judge of the Supreme Court of the United States, you will hear this exhortation repeated ad nauseam; you might even hear it if there is any sort of public hearing involving the next judge of the Supreme Court of Canada. John Finnis quoted Bacon’s appeal in his very interesting recent lecture on “Judicial Power: Past, Present and Future” (whence I learned about Bacon’s essay). But the very fact that this limitation on the judicial role has for so long, and so often, been reiterated should alert us to the habitual futility of the appeal. The Supreme Court’s equivocation over  whether it discovers or makes up the legal rules which it articulates for the first time seems to the suggest that the ideal of the law-saying judge has some appeal to those already holding judicial office ― but not as much as Bacon would have liked.

[W]hen there appeareth on either side an high hand, violent prosecution, cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.

This is also a familiar idea in 2016. Richard Posner, to give but one ― perhaps unexpected ― example has been very vocal about the need for active judicial intervention “to make inequality equal” by correcting the disparities of resources between parties to litigation, whether in his judgments or in a recent extra-judicial indictment of “What Is Obviously Wrong with the [American] Federal Judiciary, Yet Eminently Curable” (see 190-91). There are situations, it is worth noting, where judges might be making things worse, not better. I have been arguing for a while now that this may be happening in constitutional law, as judges increasingly expect expert evidence to support Charter challenges, and thus increase the inherent disparity of resources between citizens and government. (In a recent post over at The Court, Lillianne Cadieux-Shaw seems to share this concern.)

Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge … to prevent information by questions, — though pertinent. 

There has been much discussion of this point following the recent death of Justice Scalia. He was a famously active interrogator of the lawyers who appeared before the US Supreme Court. Surviving him is his colleague Justice Stephen Breyer, whose solliloquies questions occupying entire pages in the oral argument transcript Josh Blackman lovingly (?) documents. By contrast, Justice Clarence Thomas, of the same court, had spent a decade without asking a single question until finally doing so recently. Justice Thomas, one supposes, would agree with Bacon. Those who derided him for his self-imposed silence presumably would not.

[T]hose, that engage courts in quarrels of jurisdiction, … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.

Here at least, I agree with Bacon wholeheartedly. Those who, in the pursuit of their own ― these days usually political ― agenda, seek to draw the courts beyond their proper remit are not the courts’ friends, though they may present themselves as such. I have said as much in response to a call for the Supreme Court to decree, by judicial fiat, the “depoliticization” of judicial appointments. I wish I’d known the phrase parasiti curiae then, but I will make sure to use it on the next appropriate occasion.

Judges ought above all to remember the conclusion of the Roman Twelve Tables; Salus populi suprema lex.

Perhaps the most obvious example of Canadian judges applying Bacon’s prescription is the Supreme Court’s opinion in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, where the Court sought to avoid “chaos” that its finding of unconstitutionality of Manitoba’s entire statute book by the expedient of suspending this finding’s effect. But beyond such exceptional situations, Bacon’s advice gets tricky fast. For one thing, the Latin salus is ambiguous. It can mean “health,” “safety,” or “welfare” ― making salus populi not one single objective, but a complicated programme. Still it is often said that judges ought to have regard for the public safety (“the Constitution is not a suicide pact”) or even welfare ― Judge Posner being a foremost advocate for the latter position. But isn’t there a tension between making public welfare into supreme law, and renouncing judicial legal innovation? Bacon says, “let no man weakly conceive, that just laws and true policy have any antipathy,” but even if true, this point doesn’t really address the issue of the judicial role. And Bacon’s concrete recommendations for achieving the salus populi ― frequent consultations between the three branches of government, and a demand that judges “be lions, but yet lions under the throne” would run afoul of our views on judicial independence, which are quite different from his.

* * *

In the essay I mention above, prof. Finnis writes that “[t]he problems about the nature and reach of judicial power, about which Bacon and Coke disagreed, are with us today in forms much shifted in occasion and location but still recognizably the same.” That is because they are “permanent problems, capable it seems of only provisional rather than permanent solutions.” (3) The relevance of Bacon’s prescriptions, and the fact that they would be contested now as they were contested when given (and again, except as specified above, I do not fully agree with them), suggests that prof. Finnis is right about that.

Absence of Evidence…

Last week, the Alberta Court of Appeal delivered an interesting decision rejecting a constitutional challenge to the province’s prohibition on private health insurance brought by way of an application. In Allen v Alberta, 2015 ABCA 277, the Court held unanimously that the applicant hadn’t provided a sufficient evidentiary basis for his challenge, and that it should have been brought by way of an action and adjudicated after a full trial. This might have been the correct result, but the route the Justice Slatter, the author of the leading opinion, took to get there is in many ways disturbing. It illustrates, I think, some worrying tendencies in Canadian constitutional law generally, and also the difficulties which challenges to the government’s healthcare monopoly specifically will face.

* * *

In a way, the case is a very simple, and also a very Canadian, one. The applicant had suffered a back injury playing hockey, and even as his pain was getting worse and worse, he was put on a two-year long waiting list for an operation. The pain was too much, and he finally decided to undergo surgery in the United States, at his own (very considerable) expense. And thereafter, he went to court, seeking a declaration that the provision of the Alberta Healthcare Insurance Act that barred private health insurance from covering healthcare services provided by the public insurance plan was contrary to s. 7 of the Canadian Charter of Rights and Freedoms.

The argument was that the government monopoly on health insurance resulted in people having to wait a long time for healthcare, and to suffer as a result, thus breaching the “security of the person” guarantee of s. 7. To support his claim, the applicant submitted “a number of medical reports and proof of expenses he had incurred,” [7] and relied on the Supreme Court’s decision in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, which declared a similar restriction on private health insurance contrary to Québec’s Charter of Human Rights and Freedoms.

For the Court, this was not good enough. After a heartfelt paean to the Canadian healthcare system, Justice Slatter went on to discuss “the importance of using appropriate procedures, and having a proper evidentiary record, when reviewing statutes for constitutionality.” [19] Constitutional cases, in his view, are not just ordinary cases:

Cases in which the appointed judiciary override the will of the democratically elected legislatures fall into a special category. Our constitution and the parliamentary system of government recognize the “supremacy of Parliament”. The presence, however, of an entrenched constitution now provides an important exception to that principle; statutes that are clearly inconsistent with the constitution are of no force or effect. [20]

For this reason, it is important that “the proper procedural safeguards [be] observed.” [21] While the citizen must have an opportunity to challenge the constitutionality of a statute, “fair[ness] to the legislature” means that the government must be able to defend it, and “fair[ness] to the court” requires that it have “a reasonable record on which to exercise this important component of its jurisdiction.” [21] The record here is not sufficient. There is a “presumption … that constitutional cases will be decided on a full evidentiary record, including, where appropriate, the evidence of expert witnesses.” [23] Evidence is especially important in constitutional cases because a declaration of unconstitutionality must, pursuant to s. 52 of the Constitution Act, 1982 determine the “extent of the inconsistency” between the impugned statute and the constitution, and “[t]he only way to know what is that “extent”, is to have a full evidentiary record with complete factual conclusions about it.” [26]

* * *

Justice Martin, in a rather terse concurrence, agrees with this reasoning, and would go no further. While Justice Slatter continues, to discuss Chaoulli and the applicant’s claim that it effectively settles the case, I will pause here and comment on this part of his reasons. As I said above, the conclusion that more evidence was required in this case may well have been correct. To be sure, it seems unlikely that the causal relationships between the prohibition on private health insurance and the existence of lengthy waiting lists established in Chaoulli are somehow not present in this case. A legislature that proceeded on the assumption that there was such a relationship would be acting rationally. But it is at least arguable that a court needs more than an assumption, no matter how plausible. It needs evidence. Allison Orr Larsen’s warnings about the dangers of “factual precedents” are apposite in the Canadian context. It may well be that a fuller record, including expert reports would have been necessary here, though I’m not sure I understand Justice Slatter’s insistence on the need for a trial to dispose of this case, as opposed to an application proceeding on a more developed record.

That said, if Justice Slatter is right, his conclusion ought to be disquieting. It confirms the worry that Sonia Lawrence expressed in the wake of the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and that I have been dwelling on ever since, that mounting a constitutional challenge to a statute may be becoming prohibitively complex and expensive. Marni Soupcoff, of the Canadian Constitution Foundation, which is mounting a challenge of its own to government healthcare monopoly, makes this case in a compelling op-ed in the National Post. Constitutional litigation is at danger of becoming the preserve of (relatively) well-funded public interest litigation outfits (such as the CCF). The Charter was supposed to be “the people’s package” of constitutional reform, but the people risk being prevented from bringing Charter cases by the requirement that such cases be supported by expert reports and proceed by way of trial rather than a less expensive procedure. Justice Slatter’s claim that there exists a “presumption” to this effect is particularly worrisome ― all the more so since he provides no indication as to how this presumption might be rebutted.

I want to comment on a couple of other points in the part of his reasons I have been discussing. The first one has to do with the nature of judicial review of legislation and the courts’ role in constitutional cases, on which Justice Slatter expounds in the excerpt of par. 20 quoted above. That passage contains a number of serious mistakes. For one thing, the constitution does not “recognize the ‘supremacy of Parliament'” ― those words appear nowhere in the Constitution Acts, and while Parliamentary sovereignty is arguably one of the constitution’s underlying principles, it is subject to the limits imposed by constitutional text and other such principles. For another, it is wrong to speak of an entrenched constitution that limits Parliamentary sovereignty as something new, something that only “now” exists. Canada has always had an entrenched constitution, and Canadian courts have always invalidated Canadian laws inconsistent with it, although the legal rationale for this practice did indeed change in 1982, from the supremacy of Imperial law to the supremacy of the (Canadian) constitution. Last but not least, Justice Slatter misrepresents the courts’ role on judicial review when he says that “statutes that are clearly inconsistent with the constitution are of no force or effect” ― there no such “clear inconsistency” requirement either in s. 52 of the Constitution Act, 1982 or in the Supreme Court’s jurisprudence. Constitutional cases, like all civil cases, are decided on an ordinary “balance of probabilities” standard.

The other point that I found disturbing is Justice Slatter’s unabashed celebration of the Canadian healthcare system, of which he says that it

is perceived by many as the crowning achievement of Canadian social policy. The majority of Canadians support the public funding of health care and oppose attempts to shrink or compromise the system. At the same time, many Canadians criticize the system; they would like it to be even better than it is. [14]

Justice Slatter also praises the Canadian healthcare system as “an example of co-operative federalism in action,” though the Canada Health Act, which threatens provinces with the loss of their federal healthcare transfers if they do not comply with its conditions, seems like a rather dubious example of “co-operation.” In any event, Justice Slatter is apparently oblivious to the irony of making unsupported empirical claims in an opinion that dismisses a constitutional challenge for want of evidence. But in the absence of support for these claims, it is somewhat difficult to avoid the suspicion that Justice Slatter is attributing his own views to the indistinct “majority” of which he speaks. After reading these lines, I would rather that he (and indeed his colleagues) not sit in judgment on a constitutional challenge that would, in effect, be an “attempt to … compromise the system,” to change it radically and not merely to make it “even better than it is.”

These two points together lead me to an additional observation. Justice Slatter’s approach is clearly very deferential to legislative choices. That would make him a “conservative” on the definitions that have been floating around of late, for example in some of Sean Fine’s “Tory judges” articles. But, as I’ve said before, “there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers.” This case shows that this is indeed so. If anything, it shows that judges may be able to adopt a strategically deferential posture in order to achieve “progressive” results just as easily as to achieve “conservative” ones.

* * *

I will comment on just one passage from the remainder of Justice Slatter’s reasons. Justice Slatter observes that constitutions, including the Charter, are written in broad terms and

say nothing about the difficult social issues that come before the courts … Controlling this vague language falls to the courts, and an absence of institutional self-restraint by the judiciary makes the problem worse, not better. The Supreme Court has recast the phrase “principles of fundamental justice” with even less precise terms like overbreadth, disproportionality and arbitrariness, none of which have been comprehensively defined. It is, unfortunately, sometimes difficult to discern the difference between these concepts and a simple disagreement by the judiciary with the public policy decisions of democratically elected officials.

The text of s. 7 signals that the drafters of the Charter never intended it to be applied to the review of social and economic policies. … As Prof. [Peter] Hogg has pointed out, the intention of the framers of the Charter to restrict judicial review to procedural matters has been “totally disregarded by the Supreme Court of Canada” with dramatic consequences. [31-32]

I’m not sure I’ve ever seen a Canadian court reverse-benchslap the Supreme Court in this way. Justice Slatter’s attack is pretty vicious, and in my view largely uncalled for.

It is true that s. 7 was not intended to be applied in the way it does, but it is, to say the least, not obvious that “original intent” is an appropriate criterion for interpreting it. Even if, contrary to the Supreme Court of Canada, one is inclined to be originalist, an “original public meaning” interpretation might support the Supreme Court’s conclusion, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that “fundamental justice” is not a matter of procedure only. Anyway, it seems to me that it is a bit late to re-litigate that particular issue.

Beyond that, I don’t think it’s at all fair to reproach the Supreme Court for invoking principles such as overbreadth, disproportionality and arbitrariness in applying s. 7. They are, surely, not more open-ended than the expression “principles of fundamental justice.” The Court has tried, in cases such as Bedford and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, to give them a relatively specific meaning, and in my view has been at least somewhat successful in this endeavour. Justice Slatter’s dismissal of this jurisprudence as “a simple disagreement by the judiciary with the public policy decisions of democratically elected officials” looks not unlike the expression of a simple disagreement by one judge with the constitutional policy decisions of his hierarchical superiors.

* * *

In a sense, this decision is just sound and fury, signifying nothing ― except, of course, that the applicant spent a significant amount of time and money on a litigation that proved fruitless. As Justice Watson rightly observes in his concurrence, “[d]ismissal of a declaration on the grounds that it was not made out in the pleadings and evidence is not the same thing as saying that an action properly pleaded, fairly proceeded with, and backed by sufficient evidence would be impossible.” [60] Perhaps the CCF will succeed in its own efforts to bring such an action. Yet the Court’s mistakes and dubious assertions about its role (about which I might have more to say separately) are cause for worrying, and the possibility that it is right about the high evidentiary threshold that a constitutional challenge must get over before even being considered on the merits is, if anything, even more distressing.

Public Interest in Litigation

I have already mentioned the lawsuit by Aniz Alani, who is trying to have the courts declare that the Prime Minister must advise the Governor General to appoint Senators, which the Prime Minster is refusing to do. The government has filed a motion to strike his application, which will be heard about a month from now. In this post, I want to address not the substance of his case, but on the way in which Mr. Alani has let the public follow the case, which I think is an example to follow not only for other public interest litigants, but also for the government itself.

In addition to using Twitter to publicize his challenge, Mr. Alani has created a sober but eminently usable website that explains his case, provides background information and updates and, perhaps most  importantly (at least from the perspective of law nerd), makes Mr. Alani’s submissions and supporting materials publicly available. Other litigants had made steps in that direction before but, to my knowledge, not as comprehensively or as well. For example, the Canadians Voting Abroad website about the challenge to the provisions of the Canada Elections Act disenfranchising Canadian expatriates after five years abroad looks like it was designed in the 1990s and, more importantly, is missing some crucial documents, such as the factums submitted to the Court of Appeal. (I should note that, technically, this case is not public interest litigation, since the applicants are asserting that their own rights are being infringed. However, they are quite clearly presenting themselves as acting on behalf of others, and not only on their own.)

And others still have done nothing at all. The Barreau du Québec, for example, seems to have no information about its challenge to constitutionality of the mandatory minimum sentences enacted in recent years. (This is all the more paradoxical since the Barreau does have an exhaustive list of its public positions outside the courtroom ― letters to ministers, submissions to Parliamentary commissions, and the like.) Rocco Galati, the scourge of s. 101 courts and their former judges, appears not to have a website at all, while that of his compagnons d’armes at the Constitutional Rights Centre Inc. is bereft of any information.

The reason I am writing about this is that while ordinary litigants, who go to court to assert or defend their own legal rights and interests, are perfectly entitled not to care about what the public knows about their cases, it seems to me that public interest litigants, who ostensibly pursue matters not on their own behalf but on that of the public at large or at least of some section of the public, are, in my view, in a different position. The public, it seems to me, has a right to know what it is that those purport to represent it are up to. And this right is, if anything, even stronger in the case of those representatives who have appointed themselves to that position.

As the Supreme Court has progressively liberalized public interest standing, public interest litigants have grown into a great, yet (almost?) entirely unaccountable force in the Canadian legal, and even political, system. As Mr. Galati’s example shows, and as Mr. Alani’s might yet show, they have the ability to upset the plans and policies of elected officials, and impose considerable change ― for good or ill ― on the institutions of government. Surely, this force owes the rest of us an account of its actions. Public interest litigants say, often quite rightly, that they act to uphold the Rule of Law. But one of the values of the Rule of Law is transparency. Mr. Alani is setting an example in this regard, and others should follow him.

Those “others” include, by the way, a type of outfit that is not usually thought of as a “public interest litigant,” but which in a very real sense is exactly that: the federal Department of Justice and its provincial counterparts (which I will refer to as the DOJs). The DOJs represent (a certain understanding of) the public interest by definition. They act in our collective names. They are given the right to intervene in constitutional cases. And so they too ought to tell the public what they are up to, at least in constitutional cases, and perhaps in others too. Obviously, many of their cases are of limited relevance to the public. I’m not sure exactly where the lines should be drawn, with what exceptions, and so on. I’d love to hear suggestions. But the general point, I hope, is clear enough. Insofar as governments are litigating public interest matters, they too should ensure that those members of the public who are indeed interested are able to learn more about what is being argued on their behalf and in their name.