administrative constitutionalism

The Metastasis of Charter Vibes…Again

**A version of this appeared in my newsletter, the Sunday Evening Administrative Review**

For the two years or so that I have been doing this newsletter, the story has been a good one. Vavilov settled the law of judicial review to such a considerable extent that I found myself optimistic about the state of things. However, this NWT case—and to a lesser extent, Mason v Canada (Citizenship and Immigration), 2023 SCC 21—cause me worry about the future of Canadian administrative law (see Issue #108). I wrote about this NWT case as representing the “Metastasis of Charter Vibes”—the idea that a “Charter value” can impose a legal duty even where the Charter right does not. This creates a two-track Constitution, where the “true” Constitution of Values applies where the Charter of Rights—apparently only a pale reflection of these values— does not. This is not our constitutional settlement. This theoretical distortion leads to some practical issues, ones that suggest that we may be heading back into a world where the Supreme Court’s administrative law jurisprudence says one thing but does another, with methods “evolving” alongside the composition of the Court. It is unfortunate that this case provides us little justification for the newest “evolution.”

Problems in Principle

Let me start with the problems in principle with this case. The oddity is the particular context of s.23, which is unique in the Canadian constitutional landscape. Not only does s.23 impose positive obligations on the state to provide certain citizens with minority language education, but it is also a right that is collective in scope [1-3]. Despite these features, s.23 is also precisely defined in the text, as the NWTCA pointed out [NWTCA Decision, at para 57]. Section 23 “was carefully crafted to give a narrow bundle of rights to a defined sub-population of Canada” [NWTCA Decision, at para 57].

Not so, for the Supreme Court. Côté J ultimately concludes that, even though this case involves non rights-holders under s.23, there is still a positive obligation on a decision-maker to consider Charter values—this is so “not only where an administrative decision directly infringes Charter rights but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights” [64]. Decision-makers must meaningfully grapple with relevant Charter values, reflected in the governing statutory scheme, the parties’ submissions, or “because of the link between the value and the matter under consideration” [66]. More on this in a minute. For now, one need not plead a Charter right, or demonstrate that a right has been infringed according to the typical tests that are associated with each Charter right—in this case, doing so would be no help, since the case involved non-rights holders. Instead, showing that a Charter value is engaged is enough to impose an obligation on decision-makers to consider the value.

What we have, then, is an actionable Charter value that transcends the Charter’s written (and as I will point out, purposively understood) limitations. True, it is not actionable in the sense that it requires a decision-maker to render a decision consistent with the true meaning of the Charter value. Rather, it is a procedural duty, one that imposes a requirement of consideration on the decision-maker.

Even so, this is a significant move, one that was not evident—except in passing remarks—in its previous cases. Saying, as the Court did in Loyola, that the Doré framework attaches to Charter rights and values tells us nothing about the relationship between the two, and certainly does not imply that a Charter value can impose obligations on the state when the Charter right does not. This is especially so when, in the Supreme Court’s previous cases, Charter values and Charter rights seemed one in the same. In Trinity Western, for example, the majority (applying the Doré framework) simply applies the traditional Charter test associated with s.2(a). But in this NWT case, the Charter value imposes an obligation where the Charter right does not.

Nor is it enough to equate this obligation with a purposive approach to constitutional interpretation. Côté J notes that, because “Charter values are inseparable from Charter rights” (a claim that this case actually undermines considerably) “[t]he choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision-making process of the various branches of government” [75]. One can be mistaken for thinking, on this account, that Charter values are just an analogue to a purposive interpretation, especially where—as here—the Court seems to equate the purposes of s.23 with its values, which the Minister was obligated to consider.

But this is not purposive interpretation as we typically understand it. How does one square this case with the Court’s commitment to purposive interpretation as reflected in Quebec (Attorney General) v 9147-0732 Quebec Inc, 2020 SCC 32 and Toronto (City) v Ontario (Attorney General), 2021 SCC 34? Of course, the NWT case is not a case of Charter interpretation per se, but it does raise the prospect of what interests the Constitution prioritizes. In these cases, the Court wisely held that the text of the Charter contains the legal norm that courts must implement; purpose is an aid to interpretation: “A purposive interpretation of Charter rights must begin with, and be rooted in, the text” (City of Toronto, at para 14). The new, hopped-up version of Charter values endorsed in the NWT case implies instead that the value (or the purpose, or the “protection,” or…) is the legal norm that courts must implement, and the text is just a pale reflection of the true Constitution.

This was not written in the stars. Vavilov could have been integrated differently. We could have started with the basic proposition, accepted by Rowe J (who did not sit in the NWT case), McLachlin CJC, and Brown and Côté JJ in Trinity Western: “[w]hen courts review administrative decisions for compliance with the Charter, Charter rights must be the focus of the inquiry—not Charter values” (TWU, at para 166, per Rowe J). Like purposes, this account allows Charter values to play a “supporting role in the adjudication of Charter claims” (TWU, at para 170) but “[a]n analysis based on Charter values should not eclipse or supplant the analysis of whether Charter rights have been infringed” (TWU, at para 175). As I have previously written, using this orthodox starting point still allows us to integrate Vavilov, particularly the focus on more robust reasonableness review, but it does so on the starting point of well-defined Charter rights. Unfortunately, Côté J does not refer to any of the contrary views in Trinity Western, nor the critics of Charter values in the lower courts, nor virtually any counter-arguments of any kind.

That makes this decision all the more difficult to understand. It might be said that the holding in this case is minimalistic, only imposing a duty of consideration. But this does not change the fact that this duty is being imposed where the Charter right imposes no such duty. The coming-apart of “values” and “rights” is a significant move, one for which we are owed a better account.

Practical Problems

I want to point out two practical problems that this decision creates. The first is an ill-defined “relevancy” requirement for the consideration of Charter values and the parties’ arguments. The second is reweighing.

Readers who have looked at the case will note that—maybe—the problems in principle can be remedied by the Court’s apparent integration of Vavilov into the world of Doré . Paul Daly outlines what this framework looks like here, but for our purposes, what is required is the following (1) A demonstration that a decision-maker considered a relevant Charter value [66]; (2) once engaged, a proportionality analysis nourished by Vavilov, in which the decision must show that the decision-maker adequately considered the Charter values with reference to then impact on the individual [68]. Notably, however, there are two important deviations from Vavilov’s reasonableness standard. First, and remarkably, it may be a requirement for decision-makers to consider Charter values even where not argued [66, for example in cases where there is a “link between the value and the matter under consideration].” Second, unlike under Vavilov, courts are entitled to reweigh the weight put on Charter values by decision-makers, which Côté J suggests is “a necessary consequence of the robust analysis required by Doré ” [72].

I cannot help but comment on the oddity of seeing Côté J reinforce the robustness of Doré when in Trinity Western she, along with Brown J, refuted the majority’s same claim with the pithy “[b]ut saying so does not make it so” (TWU, at para 304). And, of course, one might think it is good to see more robust reasonableness review in this context—this is a possibility that I explored, happily, in early work after Vavilov. But as I pointed out above, the way this review has been specified leaves much to be desired.

Consider first the “relevancy” requirement. Côté J calls on Vavilov to outline the three situations in which a Charter value will be relevant, imposing a requirement on a decision-maker. It is to the benefit of enterprising parties—especially under the “link between the value and the matter” branch—to claim broad Charter values (which may or may not be rooted in the purposes of a provision) to impose a requirement on decision-makers where the Charter right otherwise does not apply, under the typical Charter infringement tests. In this case the “link” appeared clear, but it isn’t necessarily so, and I suspect that parties will make much of this. In other words, I do not believe this is something that will be obvious to decision-makers, courts, and parties.

Relatedly, when listing the situations in which a Charter value will be “relevant,” only one of those situations involve cases where the parties’ raised Charter values in their submissions. By implication, this means that there may be an obligation to consider Charter values when a claimant (a) does not have the benefit of the right; and (b) the claimant does not argue a Charter value. This leads to several problems. First, it means that a decision-maker will need to, of her own volition, identify whether a Charter value is present (linked) to the matter, and assign it the appropriate weight, even if not argued. While decision-makers should be held to the letter of the Constitution, it is another thing to assign them a responsibility that is not easily identifiable. Second, this “robustness” seems in tension with other basic requirements of the law of judicial review. The courts have always insisted that, even in administrative contexts, Charter arguments should generally be raised at first instance to permit the development of an adequate record: see Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at paras 44-45; Mackay v Manitoba, [1989] 2 SCR 357. This case suggests that this longstanding requirement does not apply to discretionary decisions, which leads to another problem: it appears that parties will be able to raise Charter values on judicial review, even if not argued at first instance—or at least that such a practice is now not viewed with inherent suspicion. Considering the difficulties lower courts have already had with this issue, I suspect things will now become more complex (see e.g. McCarthy v Whitefish Lake First Nation #128, 2023 FC 220, Issue #78).

Oddly, this is the exact same scenario the Supreme Court invited in its recent Mason case. As I pointed out, there, an international law issue was not argued at first instance, but the decision-maker’s failure to consider it made the decision unreasonable. Now, we have the same issue with Charter values. The Supreme Court in Vavilov settled on reasonableness as the presumptive standard of review, but in both Mason and this case it eats away at the operation of that standard. Courts shouldn’t conduct de novo review just because the court believes the issue is important enough. I can only quote Côté J at para 172 in Mason: “My colleague views the IAD’s “fail[ure] to address the legal constraints imposed by international law” as unreasonable…With respect, I would have concerns, given the emphasis in Vavilov on a “reasons first” approach, with finding a decision to be “unreasonable” based on arguments that were not put before the administrative decision maker and that do not apply to the individuals actually before that decision maker.”

Finally, consider the problem of reweighing. Courts will be invited to reweigh the weight put on a Charter value where a decision-maker considers it at first instance. This isn’t much in terms of reasonableness review. This creates a new distinction between reasonableness in constitutional cases and reasonableness in all other cases.

Conclusion

What are we left with? Many of us saw Doré as both principally and practically flawed. This case suggests that these flaws are here to stay. But perhaps we are even worse off. We now have a legally-enforceable Charter values framework that applies where the Charter right does not, and where a party does not argue it. If this is a function of s.23’s unique status in the constitutional framework, that is one thing, but I will be surprised if the problems are kept to this world. There are quite likely knock-on practical effects that courts may have to work through. The metastasis continues unabated.

Deferring to Discriminators

The US Supreme Court explains why courts should not defer to officials when it comes to rights issues

Deference to administrative decision-makers who limit constitutional rights is, to put it mildly, a controversial issue in Canadian law. It is mandated by the Supreme Court’s precedents, notably Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. It was challenged by the amicus curiae but not touched in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. Both co-blogger Mark Mancini and I have criticized it sharply. Some comments in the opinions in the recent decision of the US Supreme Court in Students for Fair Admissions v President and Fellows of the Harvard College are worth considering in thinking about it.

The issue in the case was the constitutionality and legality of the use of racial categories as a factor ― in some cases a very important factor ― in admissions to public or publicly-funded universities. The applicants claimed that it amounted to unconstitutional and illegal discrimination. Harvard insisted that that this was necessary in order to achieve sufficient diversity in its student body. The US Supreme Court had previously held that an “educational judgment that such diversity is essential to [a university’s] educational mission is one to which we defer”. (Grutter v Bollinger, 539 U.S. 306 at 328 (2003))

The majority in Students for Fair Admissions was not sold on the idea. As Chief Justice Roberts put it, “[u]niversities may define their missions as they see fit. The Constitution defines ours.” (26) Far from deferring to universities on whether racial classification is necessary, “[c]ourts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review”. (26) Consistently with the general trends of US constitutional law, the courts must verify compliance with the constitution for themselves.

Justice Thomas’s concurring opinion is more instructive, however. He argues that “it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination”. (27) He points out that the courts

would not offer such deference in any other context. In employment discrimination lawsuits … for example, courts require only a minimal prima facie showing by a complainant before shifting the burden onto the shoulders of the alleged discriminator employer. …

This judicial skepticism is vital. History has repeatedly shown that purportedly benign discrimination may be pernicious, and discriminators may go to great lengths to hide and perpetuate their unlawful conduct”. (27-28)

I think this is very relevant to Canadians, even though the actual questions addressed in Students for Fair Admissions would be dealt with quite differently under Canadian law in light of s 15(2) of the Canadian Charter of Rights and Freedoms.

Canadian law does sometimes require courts “to defer to the views of an alleged discriminator”. One example that comes to mind is the “maths is racist” decision of Ontario’s Divisional Court, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386. The claim there was that a test that aspiring teachers were required to pass discriminated against non-white candidates in some mysterious way. In deciding whether the alleged discrimination was justified, the Court accepted that it had to defer “to the legislature’s choices”. [132] Whether the Court actually deferred is, admittedly, another matter. As I wrote here, I think it did not. I also argued that the court’s whole approach was misconceived ― it wasn’t a legislative choice but an administrative policy that was under review. But that doesn’t matter for my purposes here because if the Court had followed what I think was the required method and applied Doré, it would have had to defer as well. Either way, it was or would have been deference “to the views of an alleged discriminator”.

I honestly struggle to see why that would be right. I am sure many of my readers do not think much of Students for Fair Admissions and/or of Justice Thomas’s concurrence in particular. But whatever you make of the main issue in that case, what objection is there to this specific point? When the government or one of its instrumentalities is alleged to engage in discrimination, why should its views on the matter carry more weight than those of the people who say they are its victims ― or of independent and impartial judges?

Of course the point generalizes. It’s not just about discrimination. There is no more reason for the courts to defer to alleged censors or religious bigots than to alleged discriminators. “Judicial scepticism” is necessary in the face of allegedly benign restrictions on free expression, religious liberty, and any other right, just as it is, as Justice Thomas rightly says, in the face of allegedly benign discrimination. Insofar as it says otherwise, our law of judicial review is misbegotten and in dire need of reform.

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!