Unholy Trinity

Introducing a new article that makes the case against judicial deference to administrative applications of constitutional law

Readers may recall my unhappiness when the Supreme Court decided the companion cases in which the Trinity Western University challenged the denials of accreditation to its proposed law school by the law societies in British Columbia and Ontario, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 SCR 453. I argued that “[t]he Supreme Court’s decision and reasoning subvert the Rule of Law and nullify the constitutional protection for religious freedom“.

One salient feature of these cases was the Supreme Court’s (re-)embrace of its earlier decisions in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, which urged judicial deference to administrative decision-makers who applied (or indeed simply ought to have borne in mind) the Canadian Charter of Rights and Freedoms. The Trinity Western cases emphasize this deference, as well as various other aspects of the Canadian judiciary’s surrender of its interpretive authority over the law, which has now been partially walked back in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

At the kind invitation of Matthew Harrington in his capacity as editor of the Journal of Commonwealth Law, I have put my thoughts on this aspect of the Trinity Western cases and generally on the misbegotten idea of judicial deference to administrative applications of constitutional law into article form. The piece, “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”, is now available from the Journal’s website and my SSRN. Here is the abstract:

The jurisprudence of the Supreme Court of Canada that follows Doré v Barreau du Québec involves administrative decision-makers as key actors in the implementation of the Canadian Charter of Rights and Freedoms. The Supreme Court emphasizes their expertise in implementing constitutional rights and “Charter values” in the context of the regulatory regimes they are charged with enforcing, and holds that this expertise entitles administrative tribunals to deference when they make decisions that affect the rights the Charter protects or the values that underpin these rights. This article argues that the Supreme Court is wrong to endorse this deferential approach, sometimes described as “administrative constitutionalism”.

It does so by examining the Supreme Court’s decisions in the companion cases that upheld the denial of accreditation by the law societies of British Columbia and Ontario to a proposed fundamentalist Christian law school (the Trinity Western Cases). After reviewing both academic defences of “administrative constitutionalism” and Supreme Court’s previous engagement with it, the article shows that the Trinity Western Cases illustrate the failure of “administrative constitutionalism” to live up to the main arguments made by its supporters. This failure is not accidental, but consistent with significant trends in Canadian administrative law. The article then goes on to consider the implications of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov for the future of “administrative constitutionalism” in Canada, arguing that Vavilov undermines the theoretical foundations of “administrative constitutionalism” or, at a minimum, will change the way it is implemented. The article concludes with an argument that, in addition to not delivering on the promises made on its behalf, “administrative constitutionalism” is also contrary to the Rule of Law. “Administrative constitutionalism” is second-rate constitutionalism in practice, and wrong in principle. The sooner it is recognized for the misguided idea that it is and abandoned, the stronger our actual constitution and the rights it protects will be.

The issue of whether, or at least to what extent and on what conditions, courts should continue to defer to administrative applications of the Charter is very much a live one in the aftermath of Vavilov. Lower courts have ask themselves how to apply Doré in light of Vavilov’s guidance on reasonableness review, and my article makes some suggestions which might be useful in this regard. And the Supreme Court itself, having punted on deference in Charter cases for now, will have to revisit the issue, presumably once Doré‘s author and staunch defender, Justice Abella, retires next year. I would like to think that my paper ― and the somewhat less uncompromising one by co-blogger Mark Mancini, which is set to appear in the Dalhousie Law Journal ― can contribute to the arguments that those challenging Doré will make on that occasion. I’ll be happy to speak to anyone making such arguments. Doré must go, and the delusion of “administrative constitutionalism” and the injustice of the Trinity Western cases must go with it.

Upcoming Canadian Talks

Save the dates!

In a couple of weeks, I will be hopping on to a 13-hour transpacific flight and heading to Canada to give a series of talks. Here are the dates and topics. I don’t have all the details about the exact time and location yet, so if you are based at or near one of the host institutions, keep an eye out ― or get in touch with me or my hosts closer to the day.

  • September 26, University of Victoria, Faculty of Law (Runnymede Society): “The Road to Serfdom, 75 Years On”. I take it that this will be inaugural Runnymede event at UVic, and I am very honoured to be part of it.
  • September 30, Université de Sherbrooke, Faculty of Law: « Route de la Servitude: fermée pour travaux (de démolition)… depuis 75 ans ». This will be the French version of the UVic talk; I’m afraid I’m a bit puzzled by the title, but I didn’t to choose it.
  • October 2, University of Toronto, Faculty of Law (Runnymede Society): “An Election Is No Time to Discuss Serious Issues. Really?” This will be discussion of the regulation of civil society participation in election campaigns, which has been much in the news in recent weeks.
  • October 4, University of Waterloo (Freedom of Expression in Canada Workshop): “A Conscience- and Integrity-Based Approach to Compelled Speech”. The workshop is being organized by Emmett Macfarlane, who has just told it is full… but there is apparently a waitlist. My paper builds, of course, on what I have had to say about things like the citizenship oath, the Law Society of Ontario’s “statement of principles”, and Ontario’s anti-carbon-tax stickers.
  • October 9, Université du Québec à Montréal, Département des sciences juridiques: « Les élections sont-elles une occasion de se taire? ». This will be the French version of the Toronto talk, with a discussion of the Québec legislation thrown in.
  • October 11-12, Ottawa (Workshop on the Royal Prerogative): “The Royal Prerogative in New Zealand”. This is the first meeting of a group put together by Philippe Lagassé to carry out a SSHRC-funded research project on the prerogative in Canada, the UK, Australia, and New Zealand. Professor Lagassé also tells me the workshop is “pretty much full”. Are you seeing a theme here? Yep, I’ve managed to get myself invited to really cool workshops.
  • October 16, McGill University, Faculty of Law (Runnymede Society): a discussion with Paul Daly on administrative law. If the Supreme Court co-operates, we will, of course, discuss the Vavilov and Bell/NFL cases, in which the Court may, or may not, completely change the Canadian law of judicial review. If the decisions are not released, it will be a more general conversation. Either way, I am looking forward to
  • October 18, Université de Montréal (Symposium of the Journal of Commonwealth Law): “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”. I will be presenting a paper arguing that the Supreme Court’s disgraceful decision in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case illustrate the problems that plague “administrative constitutionalism” ― the view that administrative decision-makers’ decisions bearing on constitutional rights are entitled to judicial deference.

I am grateful to the people who have invited me and/or organized these events. (A special shout-out to my co-blogger and president of the Runnymede Society, Mark Mancini!) If you are able to make it to one (or more) of the talks, please say hello. It is always a pleasure to meet some of my readers in person. See you soon!