Moving Dunsmuir past Dunsmuir

Democratic accountability for privative clauses, and its consequences for the standard of review analysis

Martin Olszynski, University of Calgary

Near the end of last year, and spurred on by yet another judgment challenging adherence to the Dunsmuir framework (Garneau Community League v Edmonton (City), 2017 ABCA 374 (CanLII), I posted a blog on the University of Calgary Faculty of Law’s ABlawg proposing a reversal of Dunsmuir’s presumption of reasonableness with respect to questions of law. Building on the constitutionalization of judicial review (Crevier v Attorney General of Quebec 1981 CanLII 30 (SCC); Dunsmuir v. New Brunswick 2008 SCC 9 at paras 27 – 32), I suggested that any presumptions ought to reflect the courts’ core competency of interpreting and applying law, which is to say a presumption of correctness review. In a nod to functionalists, however, I also suggested that this presumption should be rebuttable by the presence of a privative clause – nothing more, nothing less:

Simply put, the starting point should be that the courts, by virtue of their training, independence, and impartiality, have the upper hand in the interpretation of the law. Recognizing the realities of the modern administrative state, however, this presumption can and should be rebuttable for certain questions of law by virtue of explicit legislative provisions (i.e. privative clauses and restrictive rights of appeal). Importantly, just as the Supreme Court in Crevier held that legislatures could not oust judicial review entirely, so too certain questions of law will always be subject to correctness review – these would be the current Dunsmuir correctness categories… For all other questions of law, however, the presence of a privative clause would trigger deferential review.

Without repeating the entire argument here, one of the main concerns driving my suggested approach is that the concept of “implied expertise” as a basis for deference is simply too contradictory to be sustainable in the long run. Instead, courts should defer out of respect for the explicit decisions made by legislatures in the form of privative clauses or restrictive rights of appeal, decisions for which legislatures may subsequently be held accountable. Privative clauses, I argued, are a big deal – or at least they could be, depending on the context. Using the examples of labour and employment law on the one hand and environmental law on the other, I suggested that the need for some kind of privative clause in the former context seemed fairly obvious (with its tripartite boards and relatively heavy hearing loads) but less so in the case of the latter, where it was governments’ poor record of taking environmental considerations into account that was the impetus for such laws in the first place.

The following week, Professor Leonid Sirota posted a thoughtful reply on his Double Aspect blog. I think its fair to say that he was sympathetic to my argument, but he also expressed some doubt as to whether legislative re-arrangements of the separation of powers could really be the stuff of democratic accountability:

… Professor Olszynski argues that accountability works by pointing to his own criticism of the application of a privative clause in an environmental law case, and contrasting it with the fact “that few labour or employment lawyers would argue against privative clauses in that context”. With respect, the possibility of academic criticism does not make for democratic accountability; nor does acceptance by a relevant expert community… How many voters have ever heard of privative clauses, never mind being able to articulate any thoughts on their desirability? To believe that legislatures can, let alone will, be held accountable for eliminating the courts’ role in legal interpretation unwisely, or even abusively, requires more optimism than I could ever muster.

Tough but mostly fair. Professor Sirota is right to point out that a singular – and self-serving – reference to my own academic commentary is a poor proxy for public concern.  As it turns out, however, privative clauses have actually managed to capture both attention and opposition from time to time, as my colleague Professor Shaun Fluker recently discovered in the course of his research into statutory rights of appeals. Professor Fluker cites three reports (the 1957 Franks Report to the Parliament of Great Britain on the workings of statutory tribunals, the 1965 Clement Report to the Legislative Assembly of Alberta, and the 2012 Report of the Law Reform Commission of Saskatchewan) that indicate clear skepticism – if not outright hostility – towards privative clauses. The following passage from the Clement Report is particularly relevant:

The Committee is unanimously and firmly of the view that in every case there should be a right of appeal to the Supreme Court of Alberta on a question of jurisdiction and a question of law. No legitimate reason can be put forward why a tribunal to whom the Legislature has delegated certain defined authority should be permitted with impunity to transgress the bounds of the jurisdiction that it was intended it should exercise. Similarly, there should be no excuse for a tribunal misapplying the law, or ignoring law, to which all citizens of the Province are subject, in favour of its own views as to what should be applicable to the persons that are affected by its decisions… By this stroke there would be cut away the privative clauses still remaining in some statutes whereby the Legislature seeks to protect its tribunals from the disciplines of the Rule of Law… (at 74-75).

I can’t say whether such concerns have had any measureable impact on the presence or absence of privative clauses, but I don’t know that I have to. Democratic accountability is probably rarely – if ever – a perfect mechanism; there are often numerous competing issues that affect voter behavior. Assuming – without deciding – that the foregoing reports at least render plausible the potential for democratic accountability, there are two further issues in my proposal that require sorting out.

In my original post, I suggested that the presence of a privative clause should trigger deference for certain questions of law (excluding Dunsmuir’s four correctness categories). This, however, assumes that all such clauses are the same, which of course is not the case: there are “weak” and “strong” privative clauses; there are clauses that require leave from a court subject to its discretion, and there are those that impose a test such as requiring the identification of a question of law of some importance (as was the case in Garneau, supra). I am inclined to think that such clauses should be interpreted in the normal way, with a view towards legislative intent (essentially Rothstein J.’s approach in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII) beginning at para 69). Thus, clauses that impose an “important question of law” test would most likely trigger correctness (as suggested by the concurring judgments in Garneau). Bearing in mind Dunsmuir’s concern with both the legality and rationality of decision-making, I am also inclined to suggest that there should be a limit with respect to the extent to which privative clauses can preclude any review of administrative fact-finding whatsoever, but this proposal requires further thought.

The second issue, or challenge, would be to develop a normative framework to guide discussions, whether in the House of Commons or before a Parliamentary committee, about whether and in what form a privative clause may be appropriate in a given context. The structure of the administrative decision-maker, the nature of its workload, and the presence or absence of procedural safeguards in its decision-making are some of the factors that are likely to be useful here.

In the meantime and in conclusion, I am pleased to report that the federal government did recently introduce new environmental assessment legislation and it does not contain any privative clauses.

Squaring the Public Law Circle

Canadian administrative lawyers keep trying to reconcile parliamentary sovereignty and the Rule of Law; they shouldn’t bother

Ancient Greeks wondered whether it was possible to construct a square of the same area as a given circle using only a compass and a ruler ― to square the circle. The problem occupied some great minds of that age and of the subsequent ones, even Napoleon apparently. It took well over two millennia until it was shown to be impossible to solve. Public law has its own quadrature problem, posed by A.V. Dicey (the first edition of whose Introduction to the Study of the Law of the Constitution came out just a couple of years after the demonstration of the impossibility of squaring the circle): it consists in fitting together, albeit by means of verbal rather than geometrical contortionism, parliamentary sovereignty and the Rule of Law.

Dicey and many others since him have mostly been preoccupied by this problem in the context of fundamental individual rights, and their protection from a legislature unconstrained by a supreme law constitution. Canada eventually abandoned this attempt ― or rather cut back on it significantly, since some rights, such as that to property, remain unprotected by the Canadian Charter of Rights and Freedoms. But, to an extent that Dicey did not imagine and that is arguably without parallel in the rest of the Commonwealth, we have re-deployed our intellectual energies merely to a different application of the same problem, this one in administrative law. We are struggling to reconcile parliamentary sovereignty, which suggests giving effect to legislative attempts to insulate administrative decision-makers from judicial review, and the Rule of Law, which, as Dicey himself suggested, requires courts of justice to apply the law. We are not succeeding.

It is not for lack of trying. The majority opinion in the supposedly still-leading case on judicial review of administrative action,  Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, recognized that

[j]udicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. [27]

Dunsmuir and the subsequent cases that have fucked up beyond all recognition refined the framework that it laid down attempted to resolve this tension and to make sure that, as a Russian saying has it, the wolves are sated, and the sheep unharmed. Scholarly commentary has worked, I think, in the same direction.

The most recent example is a thoughtful post on ABlawg by Martin Olszynski. Professor Olszynski seeks to recover what he sees as Dunsmuir’s promise of reconciling parliamentary sovereignty and the Rule of Law. He proposes to achieve this by making

two inter-related changes to the Dunsmuir framework … The first change would be to reverse the presumption of reasonableness on questions of law to a presumption of correctness, which can then be rebutted for the large majority of such questions through the presence of a privative clause (this approach would be similar to that proposed by Justice Deschamps in Dunsmuir). The second related change would be to abandon the overly broad and fundamentally contradictory concept of “expertise” as a basis for deference and to replace it with the potential for democratic accountability, which ultimately is the basis for legislative supremacy.

Although the judiciary has the “training, independence, and impartiality” to claim “the upper hand in the interpretation of the law”, it ought to yield this upper hand to  legislative statements that call for deference to administrative decision-makers. Legislatures “must be respected – because they are democratically elected and accountable”. Provided they make themselves sufficiently clear by enacting “privative clauses” (provisions that typically seek to out judicial review of administrative decisions or to strictly limit it), legislatures can be made to answer for any decision to remove legal interpretation from the purview of the courts. When the legislation includes a privative clause, a reviewing court should, therefore, defer, but not otherwise ― and especially on the pretense that an administrative decision-maker is an expert by virtue of its very existence.

I agree with Professor Olszynski’s criticism of the role that the idea of administrative expertise has come to play in Canadian administrative law (which I have not fully summarized ― you really should read it). Last year I wondered here whether “the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it”, and I elaborate on my worries about “expertise” in a paper I recently presented at the TransJus Institute of the University of Barcelona. I also agree that courts should not be shrinking violets when it comes to legal interpretation. It’s their job, and it’s the think that they’re supposed to be good at. If legislatures decide to scrap some of the administrative bodies they have set up (a guy can dream, right?), the courts will have to apply the legislation these bodies are now responsible for. They ought to be able to do that.

But I am skeptical of Professor Olszynski’s suggestion that the presumption that questions of law must be addressed by courts should, in the name of democratic accountability, by rebutted by privative clauses. Indeed, I think that the idea of democratic accountability is not readily applicable in this context. Professor Olszynski argues that accountability works by pointing to his own criticism of the application of a privative clause in an environmental law case, and contrasting it with the fact “that few labour or employment lawyers would argue against privative clauses in that context”. With respect, the possibility of academic criticism does not make for democratic accountability; nor does acceptance by a relevant expert community (if indeed “labour and employment lawyers” are the relevant expert community in relation to labour law ― what about economists, for instance?) make for democratic legitimacy. How many voters have ever heard of privative clauses, never mind being able to articulate any thoughts on their desirability? To believe that legislatures can, let alone will, be held accountable for eliminating the courts’ role in legal interpretation unwisely, or even abusively, requires more optimism than I could ever muster.

I am inclined to think ― though my thoughts on administrative law are still tentative ― that in determining the standard of review we should not attempt to reconcile the Rule of Law and legislative supremacy. The reconciliation is never meant to be real in any case. The Rule of Law is, ultimately, the dominant value, because even those who claim that they want to respect legislative will refuse to give effect even to the clearest privative clauses. To take a statutory provision that says “no judicial review” to mean “deferential judicial review” is not to accede to the legislature’s desires, but to impose one’s own principles ― including the principle of the Rule of Law ― on it.

And there is nothing wrong with this. The Rule of Law, as the Justice Rand observed ― in the context of a lawless exercise of administrative power ― in Roncarelli v Duplessis, [1959] SCR 121 at 142, is “a fundamental postulate of our con­stitutional structure”. It is a constitutional principle that can, as the Supreme Court recognized in Reference re Secession of Quebec, [1998] 2 SCR 217, result in “substantive limitations upon government action” ― including, relevantly to us here, in government action aiming at reducing the courts’ powers of judicial review. By contrast, as the Secession Reference also recognized, democracy ― whether direct democracy, which was at issue in that opinion, or representative democracy, and whether accountable or otherwise ― must be confined by constitutional limitations. The Court wrote “that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy”. [72] But that’s not quite right. The Charter imposed additional restrictions on legislatures, but it did not “transform” the constitutional system, which was already one of “constitutional supremacy” under the Constitution Act, 1867.

To the extent that it is required by the Rule of Law principle, judicial review of administrative action, including correctness review on questions of law, is a constitutional requirement. This extent is the question that Canadian administrative lawyers and judges should be addressing. Virtually everyone, I think, agrees that the Rule of Law requires correctness review in at least some cases. My own inclination is to say that it requires correctness review often, and perhaps always. I might be wrong about that, but if I am, this is because I misunderstand the Rule of Law, not because I fail to account for Parliamentary sovereignty and to give effect to (modified versions of) privative clauses. There is simply no need to bring parliamentary sovereignty into the standard of review equation, thereby making it unsolvable. Unlike in mathematics, the impossibility of squaring the public law circle cannot be conclusively demonstrated (though even in mathematics the demonstration apparently did not stop enthusiasts from trying). But the futility of well over a century’s worth of attempts should, I submit, be a warning to us all.

Accounts of Accountability

It’s important to keep politicians accountable. But what follows for regulation of money in politics?

Freedom of expression is necessary, among other things, to foster political accountability in a democracy. On that much we can surely all agree. But what follows from the link between the freedom of political discussion and our interest in holding our elected representatives to account? Specifically, when it comes to regulating money in politics, should a healthy concern with maintaining accountability cause us to favour more restrictions, or fewer? The answer to that question is, to say the least, not obvious, as a comparison between two judicial opinions linking democratic accountability and freedom of expression but coming to opposite conclusion shows.

In McCutcheon v Federal Election Commission, 134 S Ct 1434 (2014), the majority of the U.S. Supreme Court struck down limits on the total amount of money an individual is allowed to donate to candidates at an election. (The limit on the amount that can be given to an individual candidate was not at issue.) In dissent, Justice Breyer drew on the value of accountability to justify the limitation of the role of money in politics. He noted that “political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” (1467) The protection of the freedom of expression, he continued, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (1467; emphasis in the original) According to Justice Breyer, the undue influence of substantial pecuniary contributions to politicians, which he characterized as

[c]orruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. (1467)

In other words, to keep politicians accountable to the voters, it is necessary to limit the influence of money on them, and in this particular case to uphold the constitutionality of limits on donations.

Compare this with the opinion of Australian High Court’s Chief Justice Mason in the case of Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106. At issue were provisions eliminating the ability of both political parties and candidates and of “third parties” to pay for electoral advertisements in broadcast media. (Parties represented in Parliament were given some free time for their advertisements.) Chief Justice Mason also extolled the virtues of democratic accountability and emphasized the link between the actions of the governors and the opinions of the governed:

the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government. [37]

Democratic accountability thus required that the freedom of expression be protected (even in the absence of an explicit guarantee in the constitutional text):

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. … Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. … Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. [38]

So far, so similar to Justice Breyer. But from this, Chief Justice Mason went on to reason that the restrictions on electoral advertising at issue could not stand, because they were incompatible with the freedom of political communication, and thus undermined democratic accountability. More money in politics, not less, was the way to keep politicians accountable to the people.

Now, contrasting these two opinions in this way is oversimplifying things. The issues in McCutcheon and in Australian Capital Television were somewhat different. The former concerned the giving of money to politicians; the letter, spending both by politicians and by civil society actors. Although both come within the general category of “money in politics” concerns, it is possible to think that one but not the other can be strictly regulated. Besides, to some extent at least, both McCutcheon and Australian Capital Television were about means, not just ends. It is possible that, confronted with different regulations, both Justice Breyer and Chief Justice Mason would have reached different conclusions by reasoning from the same values.

That said, we know that the same faction of the U.S. Supreme Court that dissented in McCutcheon was also favourable to restrictions on electoral speech by (at least some) members of the civil society in Citizens United v Federal Election Commission, 558 US 310 (2010). And while there might be a point at which Justice Breyer would have balked at the limitation of permissible financial contributions to politicians, it is not clear where that point lies. Conversely, although Chief Justice Mason suggested that a less restrictive set of regulations might have been compatible with the freedom of political communication, existing regulatory schemes, such as Canada’s or New Zealand’s, would likely not have made the cut, and I struggle to imagine one that would. The disagreement is not only, and I suspect not mainly, about means. It is driven to a substantial extent by conflicting interpretations of the value of accountability.

I’ll leave to another post (maybe, sometime) a discussion of who, if anyone, of Justice Breyer and Chief Justice Mason is right. My point here is rather that appeals to values, and even to generally accepted truths (such as the importance of free political expression to democratic accountability) are unlikely to settle the difficult disputes that arise in the law of democracy. The values may be shared at a sufficiently high level of abstraction, yet understood so differently as to lead those who hold them to starkly different conclusions.

Accountability Ersatz

The Court Challenges Program shows accountable government is no substitute for a small government

Over at TheCourt.ca, Nicholas Hay offers a qualified and nuanced defence of the Court Challenges Program, which recently relaunched by the federal government. I have criticized the Program here and elsewhere, as have others ― for example the National Post’s editorial board (which mentions some of my arguments). Mr. Hay responds to one of my criticisms by arguing that the Program would benefit “an expansion to include all Charter rights” ― but this only meets my concern that it plays favourites with the constitution half-way, if there, because it would still be objectionable for the government to indicate that it values the enforcement of Charter rights more than that of the federal division of powers. In any case, in this post, I will not re-argue that. Rather, I’ll make a different point, which isn’t only about the Court Challenges Program alone, but which Mr. Hay’s argument brings to mind.

Mr. Hay argues that “the very crux of the Program is government accountability”. To allow, and even to help, citizens challenge unconstitutional government action means making the government answer for its decisions. Unfortunately, Mr. Hay adds, the Program risks being implemented in a way that pays insufficient heed to concerns about accountability within its own functioning. He argues that there is a “need for an enhanced, accountable selection process that will appoint disinterested members” to the expert panels that choose the cases the Program will fund. In addition “the Program should be open to regular review by the Auditor General, and the files should be open to the public under the Access to Information Act”. And when it comes to making the actual decisions about which cases to support, “the Program needs a robust method of allocating subsidies, and tighter spending rules, to ensure support for those truly in need, regardless of what side of the issue they’re on”.

It is hard to disagree with these recommendations, if one accepts the premise of the Program’s existence. But they show, I think, an additional reason for why that premise is worth challenging. Mr. Hay’s argument is, in effect, that the Program, a necessary or at least a most useful form of government accountability, generates demands for further accountability mechanisms in order to secure its own legitimacy. The watchers must be watched. And then, those who watch the watchers must, presumably, be watched in their turn. It’s not enough for an “accountable selection process” for the Program’s expert panels to exist: someone needs to keep an eye on what results it produces. It’s not enough for the Program’s expenses to be audited: someone needs to read the reports. It’s not enough for the Program to be subject to the Access to Information Act: someone needs to put in those requests. Of course this isn’t a flaw of the Program as such, or of Mr. Hay’s proposals to improve it. The same goes for any government accountability mechanism. And, you might think, accountability all around is good; we want as much accountability as we can get, don’t we?

But there can be too much of a good thing. Who will have the time to dig into the reports on the selection of expert panels, the Auditor General’s reports, and the further reports on the selection of cases the Court Challenges Program funds? The Program is a tiny sliver of the federal government’s total spending; most people are probably unaware of its existence; even those who, like journalists, are aware of it have bigger fish to fry. More accountability mechanisms means more things to keep an eye on, more work, more resources consumed. And the time and resources of the relatively few people or organizations with the expertise to keep an eye on the Program may well be better spent on doing other things. At some point, the margin accountability returns on additional accountability mechanisms are likely to become nil or even negative.

My point is not that we should reject Mr. Hay’s proposals for improving the accountability of the Court Challenges Program. It is, rather, that we should be skeptical of the  Program itself, and of any other mechanism that creates the need for an accountability ratchet that is likely to become counterproductive if not self-destructive. Accountability mechanisms that are part of government are still part of government, and they deserve as much skepticism as any other part of government. Their multiplication, like the growth of any other sector of government operations, creates potential for abuse, and makes government more difficult to oversee and to control. Sometimes, like other government functions, accountability mechanisms are necessary and beneficial. But it is always useful to ask ourselves whether any given one really is, and perhaps even to start with a presumption, albeit a rebuttable presumption, against government intervention. The reasons I once outlined for having such a presumption in the case of government provision of goods and services mostly apply to accountability mechanisms too.

If you have borne with me this far, you probably want to ask: isn’t this whole argument counter-intuitive to the point of absurdity? Mustn’t the government be held to account, whatever the problems attempts to do so engender? Given the government’s scope and power, aren’t accountability mechanisms a necessary safeguard against abuse? But here’s the thing: I don’t think we should accept the government’s scope and power as a given. The fewer things government does, the fewer issues there are to hold it accountable on, and the more readily external accountability mechanisms ― whether the media or citizens suing the government on their own, without its assistance ― are able to deal with it. Instead of having a Court Challenges Program to hold government to account when it legislates, and then additional accountability safeguards to make sure the Program works as intended, how about we have a government that legislates less, and thus is in less need of being held to account? As Ilya Somin says, smaller government is smarter. Or, as one might also say, an accountable government is no substitute for a small government. It is, at best, an ersatz.