courts – Double Aspect

Shapes and Sizes

Public lawyers (and public law students) should think about government size―and shape

I am currently in the process of making slides for the early lectures in the constitutional law course I am due to deliver in the next month or so. One of them, for a lecture on the basic concepts of the UK constitution, looks like this:

Slide explaining government size in the United Kingdom

With this slide, I want to make three points that I thought are worth sharing here too. One is obvious, but not sufficiently thought of in public law. One was actually something of a revelation to me. And one is connected to my recent post on the “good government trilemma” ― the unpleasant trade-offs between democracy, government size, and accountability.

The obvious point is that government is very, very big. In the UK, it spent just over 40% of GDP in pre-pandemic years. The figure is substantially higher now. Another way to understand its size and complexity is the number of ministers, though in fairness the UK is something of an outlier here: it has as many ministers as New Zealand has MPs, opposition ones included. But the Canadian cabinet has almost 40 members nowadays ― and of course it does not need people to deal with provincial issues.

Although well-known (though perhaps not to first-year law students), I think this reality is worth highlighting in the context of a public law course. For one thing, it shows just how important public law is ― it would matter less in a nightwatchman state. As I hinted at in the “trilemma” post, if you think public lawyers are taking up too much space, one solution is to shrink government. But most people who want to ― metaphorically ― fist kill all the lawyers are not itching to ― metaphorically ― kill all the ministers and civil servants.

It is well known, too, that government is much bigger now than it used to be 100, let alone 150 years ago. Taxation and government spending as percentage of GDP is one convenient way of measuring this. Before the Great War, the UK government was spending 8-10% of GDP (except during the Boer War, when it was somewhat more than that) ― and that was a time when the Royal Navy was as big as its two nearest competitors combined. One could also describe the various areas of human activity that government regulates, as illustrated by the gaggles and flocks of ministers (though perhaps the better collective noun would be a meddling). This expansion, as opposed to the sheer magnitude of the end product, is often mentioned in administrative law, because writers on the subject, at least in North America, tend to think that it justifies the existence of a more-or-less unsupervised administrative state. It could, of course, just as well be taken as evidence of the administrative state’s malignancy. My point in the lecture will not be to take sides ― that’s not a lecturer’s role ― but this blog’s readers will know which way my sympathies lie.

Less well known ― indeed, something of a surprise to, though perhaps I am simply an ignoramus ― is that fact that by some measures government is now much less active than it used to be. Specifically, I mean the much-reduced number of statutes being enacted annually. My numbers, for the UK, come from a study by Chris Watson for the UK’s House of Commons Library, and those on the slide may be understating matters: in the last few years, the number of statutes enacted each year has fallen further, from the low 30s to the low 20s. (I’ve not put this on the slide because it might still be a temporary blip; but how long can something temporary last before it isn’t temporary)? It averaged about 100 if not more before WWII. Granted, these numbers don’t tell us everything; it may be that the complexity and/or length of statutes being enacted has increased, compensating for the lower numbers. But they are nonetheless suggestive. The volume of delegated legislation, by contrast, grew enormously from 1950, and indeed 1980, to the mid-1990s and stayed at that level until, it would seem, Brexit. It then fell off a cliff, relatively speaking, though there are no data for the period before 1950 ― I suspect it would have been substantially less at least until the Great War, and perhaps later.

This means that not only the size, but also the shape, if you will, of government has changed a lot over the last century. It is a great deal more executive-dominated than before. Parliament grants the executive enormous resources and vast delegated legislative powers, but it does not act as much as before for itself ― or rather, given the executive’s control of Parliamentary agenda, isn’t allowed to act. This too isn’t exactly a shocking discovery ― it is not really a discovery of any kind ―, but I think it needs to be kept mind when we assess claims about, for example, the judiciary’s real or alleged interference with Parliament, the important of the political constitution, and so on.

And this brings me to my third point, which follows from the trilemma I have previously discussed. It is that when we discuss public law, and especially when we discuss the changes that public law has undergone since, roughly, the 1960s ― both in the UK and in Canada (and New Zealand too). The judicial role has expanded a great deal in these jurisdictions, albeit in somewhat different ways. UK courts might be more intrusive vis-à-vis the executive; Canadian courts have been granted greater powers vis-à-vis Parliament. There is no question that, by the standards of 1950, let alone 1900, courts are more influential. But this development did not take place in a vacuum. It occurs, not coincidentally I would argue, in parallel with a vast expansion of government, and therefore of the government’s capacity for messing with people’s lives. To insist that the law used to control a government of the size and shape it has in 2022 should be as minimalistic as it was in 1872 or even 1922, or that Parliament can remain the primary if not the sole forum in which government is kept accountable as the government looked as it did in Dicey’s time is either mad or disingenuous.

This argument, by the way, does not in any way depend on thinking that government expansion, without more, is bad. Admittedly, I think it is ― I can say so here, though that will be beside the point in my lecture. But you can very well disagree with that, but still believe that an appropriately expanded government requires the kind of accountability and supervision that the courts have increasingly come to provide (in part thanks to their own efforts and in part because they were asked to do so). That said, I do wonder whether colleagues for whom the expansion of government over the last century is a welcome phenomenon might be less inclined to reflect on its implications, simply because they see it as natural, and it is human nature to think less about what one thinks of in this way. Small-government heretics have their uses in public law academia ― but then, I would say that, wouldn’t I?

Precedent and Respect

When ― if ever ― can lower courts criticise their hierarchical superiors?

When, if ever, should lower-court judges criticize decisions of the higher courts that bind them? Can they do it in their reasons, whether speaking for their court or only for themselves? Judicature has published a short but thoughtful exchange on these questions between Orin Kerr and Michael Dorf. In a nutshell, Professor Kerr argues that such criticism is (almost?) never appropriate in judicial opinions; it belongs in op-eds and scholarly articles. Professor Dorf, by contrast, sees a place for it, if only a limited one. My own instincts are on Professor Dorf’s side.

For Professor Kerr, judicial opinions “receive respect not because they’re wise or well-reasoned. Some opinions are, and some opinions aren’t. Rather, judicial opinions receive respect because they are legally operative documents issued by judges with the power to issue them”. (84) It follows that

When you write a judicial opinion, you should limit yourself to what you have formal authority to decide. You should explain why you voted as you did in the case before you, as every legal opinion does. But judges shouldn’t also use legal opinions to pontificate about other views they have outside of the case and outside their authority. (84)

Since it is not the job of lower court judges to criticize their higher-ups, and since such criticism is legally inoperative, it should be saved for other venues: “Keeping your exercises of formal authority separate from your views of legal questions outside that authority helps maintain the legitimacy of the authority you exercise.” (85)

This is especially so for those views which a judge held prior to or would hold irrespective of his or her judicial office. Perhaps there is a place for judges criticizing “a [binding] precedent … when the judge’s basis for that opinion is a special insight, gained only in a judicial capacity, into how the precedent is working”. (88) But even then, the lower court judge “can draw attention” to the problem “without taking a view on whether” the higher court should reverse itself. (87)

Meanwhile, Professor Dorf’s position is that judicial criticism of binding authority ― not just higher-court precedent but also legislation ― is appropriate in a wider range of circumstances. For him, it is important that “in a well-functioning judicial hierarchy, information flows both ways. Lower court judges have knowledge and views that can and should usefully inform judges on higher courts”. (85) If lower court judges “spot a defect — a rule that misfires or that ought to but does not contain an exception” (86), for example because “a statute or opinion of a higher court [is] be based on a seemingly reasonable premise that proves false in practice” (86) ―, they might try to finesse or work around that rule. But that’s not always possible, and not necessarily appropriate. Short of refusing to follow the law (and perhaps resigning to make the point), their only other option is to criticize it in an opinion applying it.

Professor Dorf agrees that this should not happen very often. Criticism on “moral” grounds should be especially rare. Yet since “law often incorporates moral judgments, there should be room for an occasional statement by lower court judges that the precedent they must apply is wrong and thus should be reconsidered”. (86) And, regardless of the reason for it, criticism can be offered in a statement of reasons; indeed “it is hardly obvious that doing so outside of the context of a concrete case is the least controversial way to do so”. (87)

For what it’s worth, my view is closer to Professor Dorf’s; in some ways, I might go further than him. Let me begin, though, with one point he raises without developing it, and which makes me uneasy.

It is judicial criticism of legislation. As I have argued before, I think courts (including apex courts) should mostly try to avoid giving their opinions on legislation, whether to praise or to criticize it. It is not their constitutional role ― except in a constitutional challenge to the legislation’s validity or application, and even then the courts ought to focus on legal issues. Commentary on legislation is, inevitably, bound up with policy issues that are outside of the courts’ purview, and it is just as inevitably at risk of being recycled by politicians themselves, at the risk of compromising the public’s perception of the courts’ impartiality. I think courts can comment on technical issues with legislation where it fails to provide sufficient guidance to the subject and to the courts themselves. But this is probably a narrower view of permissible criticism than Professor Dorf would allow.

That said, I think that lower-court criticism of higher courts’ jurisprudence is a different matter. Although the courts stand in a hierarchical relationship to one another, they are fundamentally engaged in the same enterprise of saying what the law is. In this exercise, as Justice Jackson famously put it, higher courts “are not final because [they] are infallible, but [they] are infallible only because [they] are final”. They can err, and I don’t think that it is constitutionally objectionable for their colleagues to say so ― provided, of course, that they still respect their subordinate role in the judicial hierarchy and apply binding precedent until it is overturned. (Of course, in the Canadian context, there is an exception even to this principle, set out by the Supreme Court in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. In my view that was a mistake.)

Sure, it’s probably a good idea for judges to be, well, judicious about when to speak out. Their main task is to decide disputes, not to be legal commentators. But I doubt there is really much danger of this happening. Lower-court judges are simply too busy to moonlight as opinionated bloggers. Conversely, though, I might actually be more uneasy with judicial commentary on the state of the law expressed either without reference to the problems it causes in a particular case or with reference to a past decision. I think it is a valuable principle that reasons for judgment ought to speak for themselves.

So when judges consider that the issue is important enough, and that it arises starkly enough in a case before them, I think they can ― and perhaps ought to ― take the opportunity to speak out. And I wouldn’t limit this to either cases of the binding precedent “misfiring”, or being based on a mistaken premise, or even particularly strong moral disagreement. I think that, just as importantly, it can be appropriate for a lower court judge to say that a higher court’s decision is legally wrong ― that it does not fit with other precedents or with the legal landscape as a whole. It is the Supreme Court’s job to sort out these conflicts and contradictions, which are to some degree inevitable in a dynamic legal system. But lower courts can contribute to the law working itself pure by pointing out impurities ― even when it is the higher court that caused them to exist.

Ultimately, I disagree with Professor Kerr’s view of judicial opinions. To repeat, he says that they “receive respect not because they’re wise or well-reasoned”, which they need not be, but “because they are legally operative documents issued by judges with the power to issue them”. I think this confuses respect and authority. A judgment’s binding authority is a product of the law alone. But the respect due to it is indeed a function of its reasoning. A poorly reasoned judgment is still binding on the parties, and its ratio sets a precedent that binds courts below that by which it was rendered. But it doesn’t follow that this judgment is automatically entitled to respect ― that it ought to be regarded as deserving to be part of the law. As a result, it is not improper for a court bound by that judgment to express reservations about it while still applying it: in doing so, the lower court defers to the higher court’s authority, but withholds the respect to which it is not entitled.

That’s my two cents, anyway. Again, the discussion between Professors Kerr and Dorf is worth your time.

Case Not Made

Unconvincing arguments against judicial enforcement of rights under the UK’s Human Rights Act 1998

Policy Exchange has recently posted a paper by Richard Ekins and John Larkin QC on “How and Why to Amend the Human Rights Act 1998“. Lord Sumption has written the foreword, picking up on themes explored in his Reith Lectures, which I have summarised and commented on here. There is much to disagree with in the paper, as well as some interesting ideas. Time permitting I might do a short series of posts on it. For now, I want to focus on one idea raised by Lord Sumption and addressed in a rather different way in the paper. The idea in question is that the UK’s Human Rights Act 1998, and so presumably any constitutional or statutory enactment that grants judges the authority to verify whether legislation and administrative decision-making complies with a set of enumerated individual rights, results in judges making decisions that are political rather than properly judicial.

Lord Sumption writes that the Act “treats broad areas of public policy as questions of law, and not as proper matters for political debate or democratic input”. (5) One example that seems to exercise him ― and that has exercised the UK’s political leaders for years ― is that of the franchise. He denounces the European Court of Human Rights for having rejected prisoner disenfranchisement despite its approbation by legislatures on the basis that “it was a question of law and not a matter for Parliament or any other forum for democratic input”. (5) For Lord Sumption, “the suggestion that the electoral franchise is not a matter in which the representatives of the general body of citizens have any say, seems startling”. (5)

But, more broadly, Lord Sumption argues that cases involving balancing between public policy objectives and individual rights ― which is a great many under the European Convention on Human Rights and the Human Rights Act and, in theory, all of them under the Canadian Charter of Rights and Freedoms ― are not fit for judicial resolution. Since policy-making means “a choice between competing considerations, and sometimes compromise between them … [i]t is necessarily a political question.” (6) Treating such choice “as a question of legal proportionality, requiring judges rather than elected representatives to assess the relative importance of the various values engaged before deciding which should prevail” (6) is, in his view, a fatal mistake.

As I have previously argued here in response to another distinguished, if less famous, judge, this argument is misconceived. Similarly to Lord Sumption, Chief Justice Joyal of the Manitoba Court of Queen’s Bench has expressed the worry that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

In response, I pointed out that, taken all the way, this leads one to Jeremy Waldron’s rejection of judicial review of legislation. Chief Justice Joyal did not, ostensibly, want to go all the way. Lord Sumption might ― indeed, he may well want to go beyond Professor Waldron, who specifically objects to strong-form judicial review, where courts can actually refuse to apply legislation, not so much the weak-form arrangement that the Human Rights Act 1998 put in place. But strongly argued though it is, this position is not all that compelling. As I wrote in response to Chief Justice Joyal,

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures … But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

Issues cannot be declared political ― or non-political, for that matter ― by stipulation. For instance, the extent of the franchise can meaningfully be addressed in the courts, as it has been under the European Convention and in Canada. It takes more than a bald assertion that this is truly a political matter, or the existence of public controversy, or the involvement of moral considerations, to show that courts should keep out of it or defer to political judgments that are, as often as not, driven by prejudice or self-interest. (As to the point about morality: courts make judgments influenced by morality when applying concepts such as reasonableness, negligence, or unconscionability. One can certainly be sceptical of the resulting jurisprudence, but it’s not plausible to claim that morality is something courts should always stay away from.)

Rather, for any given right that the designers of a constitutional order might consider, they should ask themselves whether, given their respective strengths and weaknesses, a given institution would do a better job of protecting ― better, that is, all things considered, including the downsides of allocating the task to this institution instead of a different one. Institutional considerations have to be front and centre in this analysis. Issues cannot be declared to be political or legal apart from a consideration of actual political and legal institutions that would be dealing with them. Lord Sumption only gestures at institutional factors, claiming that “judges lack the information, experience and democratic legitimacy to make … choices” involved in the proportionality analysis. Even here, the appeal to democratic legitimacy is largely question-begging. It’s not obvious that these choices need to be made democratically, as is evident from the fact that, in the absence of the Human Rights Act, many of them would be made by bureaucrats rather than Parliament.

Professor Ekins and Mr Larkin engage with the institutional issues to a greater extent. To be sure, they too assert that proportionality analysis

requires judges … to answer a series of political questions, about the legitimacy of the legislative objective, the suitability of the means adopted to that objective, and, especially, about the fairness of the balance to be struck between attaining that objective and the claimant’s interest. [33]

But they also say that these “are not questions that a court is well-placed by training or ethos to answer”. [33] They worry, too, “that courts will be drawn into political controversy, with litigation a rational means to enjoin the court to lend its authority to one’s cause”. [34] They also claim that the outcome of rights litigation often depends on the subjective and personal beliefs of the judges hearing the case (and hence on who happens to be on the relevant court and panel).

What should we make of this? To start, it’s important to note that, although Professor Eakins and Mr Larkin have very little to say about Parliament and the executive, deciding which institution should be given the role to uphold rights is necessarily a comparative exercise. It is not enough to point to the shortcomings of the courts, even if these are real enough. It is necessary to show that courts are worse than legislatures, ministers, and bureaucrats, either on a specific dimension where it is possible to compare them directly or on due to some concerns unique to them. With this in mind, I don’t think that Professor Ekins and Mr Larkin make a convincing case at all.

It is of course true that judges lack the “training” that might be helpful to answer the sort of questions that arise in the course of proportionality analysis. But what training have members of Parliament? What about Ministers? Are they trained to weigh up rights when they make policy? They are not, of course. As for ethos: for the high-minded rhetoric of the defenders of legislative articulation of rights, it is very far from obvious to me that politicians care about rights on a regular basis. They do sometimes, of course, especially if the rights of their constituents may be at issue. But their record is patchy at best, and does not suggest an ethos of weighing up rights and social needs in a rigorous fashion.

The most that Professor Ekins and Mr Larkin say on this is that, when it comes to delegated legislation, “Parliamentary scrutiny, including anticipation of political controversy, is an important discipline on ministers, even if secondary legislation is almost never rejected outright”. [48] We are, I suppose, to take this claim on faith. Meanwhile, Professor Ekins and Mr Larkin also note that there are “limits on parliamentary time” which, they say, combine with “scarcity of political capital” to “make[] it relatively difficult … for Parliament to legislate to correct judicial lawmaking” in relation to rights. [40] To their mind, this is a sign that “judicial lawmaking” needs to be curbed. But one can just as easily argue that limits on Parliament’s time and reluctance (or indeed inability) to spend political capital on decisions that will be unpopular even if right are a key reason for wanting judges to make decisions about rights, especially about the rights “discrete and insular minorities”, in the American parlance, and of especially unpopular groups such as criminal suspects and prisoners (a concern that Professor Waldron, for example, has come to acknowledge).

The concern about courts being drawn into politics is legitimate though it is all too often self-fulfilling, in the sense that it is commentators and politicians who share Professor Ekins’s and Mr Larkin’s views who generate much of the controversy. Still, it is fair to worry about the authority of the courts being undermined by their having to make decisions that are bound to be politically controversial. Then again, would the authority of the judiciary not be negatively affected by its having to blindly apply laws that disregard human rights? Besides, occasional flair-ups of criticism notwithstanding, in countries like the United States in Canada, where courts have been given the mandate to make decisions about rights long before the United Kingdom, their standing in the public opinion is much higher than that of legislatures. Indeed, there is an element of self-contradition in the arguments advanced by Professor Ekins and Mr Larkin: if the courts were really suffering from a legitimacy crisis due to all those controversial decisions the Human Rights Act foisted on them, why would Parliament need to expend scarce political capital on disagreeing with them? The authority of the courts, then, may benefit rather than suffer from their having jurisdiction over rights issues.

As for the alleged subjectivity of judicial decisions regarding rights: I think this too may be an issue. It may be more of an issue in the United Kingdom, where the Supreme Court (almost) never sits en banc, than in the United States and in Canada, whose supreme courts do (respectively always and, these days, usually). Then again, if this is acceptable in other cases, which can also divide the bench, sometimes closely, perhaps this is no more concerning where rights are involved. More importantly, though, the criticism of the courts, in the abstract, does not tell us much. In what sense is decision-making by Parliament, by ministers, or by officials not subjective? When it comes to Parliament and ministers, their inclinations and decisions will fluctuate depending on which party is in power. Precedent and legal doctrine constrain judicial decisions based on rights imperfectly. But if constraint and principle are valuable in such decision-making, then courts still do better than the other branches of government.

So neither Lord Sumption nor Professor Ekins and Mr Larkin have advanced particularly convincing arguments against having judges enforce individual rights. Rights issues are not inherently incapable of judicial enforcement, and the institutional arguments against having the judges deal with them are far from obvious. None of this fully addresses an argument along Waldronian lines, one that is purely about ineradicable disagreement and the fairness of resolving it via democratic procedures. But that argument only goes so far ― and, in particular, as Professor Waldron recognised, I think, it does not obviously apply to prevent courts from overriding decisions by the executive branch, which is what Professor Ekins and Mr Larkin want to do.

The Core of It: Quebec Reference and Section 96

At the end of June, the Supreme Court of Canada released its decision in the Court of Quebec case (what I call, unoriginally, the Quebec Reference). The main question in the case: does art. 35 of the Code of Civil Procedure, which grants the Court of Quebec exclusive jurisdiction over all civil disputes up to a value of less than $85000, abridge s.96 of the Constitution Act, 1867. Section 96, in general, protects the role of the superior courts. The Court (per Côté & Martin JJ) concluded that the $85 000 limit, combined with the broad, exclusive grant of power to the Court of Quebec over private law issues, did abridge s.96. Wagner CJ filed a partial dissent and Abella J filed a dissent.

This case contains elements that will both clarify and muck up the s.96 world. On one hand, the Court convincingly elucidates the importance of the rule of law, the core role of the superior courts, and the constitutional limits on legislative derogation of superior court powers. On the other hand, the Court introduces a new “modified” test to add to the s.96 mix, and does not do enough to clarify the circumstances in which this test can be invoked.

As a side note, the Court also briefly addressed the deference problem that was raised by the court below. I wrote about that issue here. The Court did the right thing and held that the issue was moot given Vavilov.

***

Section 96 is an odd constitutional provision, in part because the bare text does not correspond to the role that the provision now plays. Section 96 gained a “judicially-nourished luxuriance” which added substantive heft to what is, on first glance, just an appointment power vested in the federal government. Now, s.96 (along with other provisions) protect the role of the superior courts as “the centerpiece of the unitary judicial system” (Quebec Reference, at para 29). In administrative law, s.96 plays an important role. It prevents the legislature, in so many words, from divesting superior courts of so-called “core” powers in favour of administrative decision-makers.

Against this backdrop, Côté and Martin JJ began their opinion by looking to the historical context in which s.96 finds itself. As we know, constitutional provisions like s.96 cannot be understood by viewing them in temporal isolation. By now, it is obvious that constitutional provisions must, in part, be interpreted by looking into the historic context—say, the historical purpose—behind these provisions (see, most famously, Big M at 344; but more recently Comeau, at para 52). In this case, the “compromise reached at Confederation that is central to Canada’s judicial system, as well as the role and purpose of s.96” formed the bulk of the analysis [30].

The historical analysis, for Côté and Martin JJ, led to the conclusion that national unity and the rule of law were the “two key principles” on which the role of the superior courts is based (Quebec Reference, at para 42). Taken together, these principles guarantee “a nucleus” to the superior courts, and s.96 “forms a safeguard against erosion of the historic compromise” (Quebec Reference, at para 41). That compromise was the division of labour between superior courts in the province and the federal government, which holds an appointment power designed to “reinforce the national character of the Canadian judicial system” (Quebec Reference, at para 43).

As for the Rule of Law, the Court made some very important comments about the role of s.96. For Côté and Martin JJ, “[t]he rule of law is maintained through the separation of judicial, legislative, and executive functions” (Quebec Reference, at para 46). The superior courts play an important role because “the task of interpreting, applying and stating the law falls primarily to the judiciary” (Quebec Reference, at para 46). They are best positioned to guard the rule of law. In fact, even though the Court has sometimes spoken favourably about the role of provincial courts in guarding the rule of law, Côté and Martin JJ specifically noted that superior courts are the “primary” guardians of the rule of law.

What does all of this mean? The bottom line for the Court—and this is somewhat of a new formulation—was that s.96 protects against the creation of parallel or shadow courts that mirror the functions of s.96 courts (see paras 53 et seq). To this end, the court has historically developed two tests to prevent legislative derogation from s.96. First is the so-called Residential Tenancies test, determines whether a legislative grant “affects a jurisdiction that has historically been exercised by the superior courts” (Quebec Reference, at para 71). The second is the so-called “core jurisdiction” test, solidified in MacMillan Bloedel. Both have different functions in preventing the creation of parallel courts. The Residential Tenancies test protects the historic jurisdiction of the superior courts. It “was established at a time when…a modern administrative state was emerging in Canada” to which the Court was “sensitive” (Quebec Reference, at para 77). For the Court, a purpose of this test was to “avoid stifling institutional innovations designed to provide administrative rather than judicial solutions for social or political problems” while still protecting the historical jurisdiction (Quebec Reference, at para 77). The core jurisdiction test, on the other hand, serves as a backstop, even if a particular grant passes the Residential Tenancies test. While what the core of superior court powers is necessarily amorphous, some common things jump to mind: judicial review jurisdiction, and for our purposes, “general jurisdiction over private law matters” (Quebec Reference, at para 82). Here, the Court concluded that the superior courts’ core jurisdiction “…presupposes a broad subject-matter jurisdiction whose scope corresponds, at the very least, to the central division of private law…” (Quebec Reference, at para 83).

Typically, the courts have not fleshed out the sorts of factors to consider when determining where a core superior court power is affected by legislative derogation. In the Quebec Reference, Côté and Martin JJ endeavoured to provide guidance where the legislature has vested a court with provincially appointed judges a jurisdiction as broad as the one in the Quebec Reference (Quebec Reference, at para 88). The judges called the collection of these factors the “modified” core test (Quebec Reference, at para 79). These factors included:

The scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the monetary limits to which it is subject, whether there are mechanisms for appealing decisions rendered in the exercise of the jurisdiction, the impact on the caseload of the superior court of general jurisdiction, and whether there is an important societal objective. This list is not exhaustive. Other factors may be relevant in different contexts: one need only think, for example, of geographical limitations.

Given that the grant of power in this case was broad and exclusive—granting the Court of Quebec power over the entire law of obligations at the monetary limit (Quebec Reference, at para 99)—s.96 was abridged by the legislative grant.

A major question that the Court addresses in this case is the scope of its reasons. That is, does this modified “core” test and the factors it involves supplant the old “core jurisdiction” test?:

The multi‑factored analysis we are adopting here is not intended to replace the current law. The analysis under s. 96 continues to involve two tests. The first — the Residential Tenancies test— continues to apply to any transfer of historical jurisdiction of the superior courts to an administrative tribunal or to another statutory court. The second — the core jurisdiction test — continues to apply in order to determine whether a statutory provision has the effect of removing or impermissibly infringing on any of the attributes that form part of the core jurisdiction of the superior courts. Where a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts, the question whether the infringement on the core jurisdiction is permissible or impermissible should be answered having regard to the factors discussed above.

***

While Wagner CJC and Abella J’s opinions are interesting and contain information worth reading, I think there are good and bad elements of the majority’s opinion in this case.

First, the good. It is reassuring to see a “resounding endorsement” of the role of the superior courts in the Canadian constitutional order. Sounding in both national unity and the rule of law, the majority has—more than rhetorically—strengthened the “rampart” that s.96 erects against the creative reassignment of superior court powers (Quebec Reference, at para 145). Specifically, the Court’s comments on the Rule of Law are interesting and welcome. We see, here, a glowing endorsement of the role of the separation of powers in Canadian law, and the role of the Rule of Law in relation to the separation of powers. For a Court that has insisted there is no strict separation of powers in Canada, it is interesting to see that, whatever the content of the separation is, it does real analytical work in relation to s.96. Relatedly, it is reassuring to see the Court draw a direct separation between provincial courts and superior courts. Clearly, the latter have a greater constitutional footing than the former.

Another good piece of this decision: the synthesis of the case law around the prohibition of parallel courts. Section 96 has a somewhat tortured history, and it is defensible for the Court to distill the cases down to a simple proposition: legislatures cannot create parallel or shadow superior courts. In fact, this is the role s.96 has typically played in the constitutional order. Consider, for example, the controversy at issue in Farrah. There, a provincial legislature created a tribunal that had exclusive jurisdiction over questions of law, supported by privative clauses. As the Court noted in Crevier, the Farrah problem was the de facto creation of a s.96 court (Crevier, at 238). More examples abound, and so the Quebec Reference’s synthesis of this important point—the main goal of s.96—is important and helpful.

Now, on to the (potentially) bad: there will be an inevitable confusion that arises in the application of the modified core test the Court endorses. Professor Daly says that this approach is contextual, and meshes well with other aspects of Canadian public law. Contextual tests are not necessarily bad, but it is worthwhile to point out that what they provide in flexibility they trade away in certainty. In this context, a lack of certainty could arise in two ways. First, and in general, I wonder whether we need so many tests to govern s.96. As a reminder, we have three: the Residential Tenancies test, the core test, and the modified core test for cases like the Court of Quebec. The life of the law is experience, and so the Court in the Quebec Reference had to work with the tests that had been developed. That said, in a perfect world, I do think there is a way to simplify the test to determine whether s.96 has been abridged. In my view, most of the analytical work can be done by delineating the categories of “core” jurisdiction that have been recognized by the Court in the case law. While the Residential Tenancies test does play a historical function, ensuring that s.96 protects the jurisdiction of the superior courts at least as it was at Confederation, the core jurisdiction categories could also serve this function while providing more categorical guidance. This would, I admit, entail drawing rather broadly the content of the “core,” and this is what, in part, divided the various opinions in the Quebec Reference. On this account, the core would include substantive considerations (such as judicial review jurisdiction, private law jurisdiction, etc) rather than simply procedural powers concerning the management of inherent process (see Abella J’s characterization of core powers at para 301). There would have to be play in the joints, of course, to allow for institutional innovations resulting from the exercise of legislative sovereignty, particularized by s.92(14) of the Constitution Act, 1867; but I am candidly unsure why one test, grounded in the rule of law, which protects substantive and procedural powers of the superior courts is undesirable.

Relatedly, the modified core test is supposedly limited to cases involving courts, and the lead opinion emphatically says that it is not replacing the law when it uses this modified test (see para 144) . But as Paul Daly notes, it is an open question whether this modified test applies to administrative actors as well. While I am reticent, as I said above, about adopting yet another test to govern s.96, there is no principled reason why the tests developed should apply differently based on whether the derogation is in favour of a “court” or an administrative actor. The evil with which s.96 is concerned is the creation of shadow courts that functionally act as s.96 courts. Whether the recipient of this power is an administrative actor or some administrative actor, there is a chance that a shadow court could be created by the delegation of power mixed with the liberal use of privative clauses. Indeed, in Farrah and Crevier, the issue was the de facto creation of a s.96 court, even in the auspices of an administrative body. While the Court of Quebec is a unique judicial body in Canada, Professor Daly notes that broad delegations of power have been made to various tribunals across the country. Those broad delegations would, it seem, be captured by the Court’s modified test.

The Court seems to draw a distinction between administrative actors and courts, noting that the Residential Tenancies test was in part developed to accommodate the developing administrative state. While whatever test is adopted by the Court must be sensitive to the legislative choice to delegate, the functional reasons motivating that delegation cannot exceed constitutional limits; in other words, s.96 is the brake against unfettered legislative delegation that creates unaccountable shadow courts. No matter the desirability of an administrative state, legislative action is limited by s.96. And for that reason, there is no good reason why s.96 should be different in the context of administrative actors versus courts.

There is more in this decision, including the Court’s interpretive approach when it comes to s.96. For now, though, the Quebec Reference is an important jurisprudential statement about the role of s.96. No matter the difficulties that courts may have in applying the doctrine in this case, at the very least we have important statements about the role of s.96.

Activism v Constitution

The federal court rightly holds that the judiciary cannot control Canada’s climate policy

In a number of jurisdictions, environmental activists have turned to the courts in an ostensible attempt to force the implementation of policies they deem necessary to deal with climate change. Some of these lawsuits have succeeded to great fanfare, others not. Such litigation challenges not only constantly evolving public policy, but also longstanding principles of separation of powers. In the Federal Court’s decision in La Rose v Canada, 2020 FC 1008, the activists lose ― and separation of powers wins.

The activists challenged Canada’s public policy in relation to greenhouse gas emissions, notably insofar as it does not set sufficiently ambitious emission reduction targets, failed to meet the targets that were set, generally allowed emissions to rise, and “support[ed] the development, expansion and operation of industries and activities involving fossil fuels”. [8] All this, they said, “unjustifiably infringed their rights (and the rights of all children and youth in Canada, present and future, due to an asserted public interest standing) under sections 7 and 15 of the Charter” and amounted to a breach of the government’s “public trust obligations with respect to identified public resources”. [7] They sought a variety of declarations and orders, including “an order requiring the [government] to develop and implement an enforceable climate recovery plan that is consistent with Canada’s fair share of the global carbon budget plan”, [12] and asked that the court retain jurisdiction to supervise the implementation of this order.

The government sought to have the activists’ statement of claim struck on the basis that their demands were not justiciable or had no reasonable prospects of success. Justice Manson agrees. After, concluding that Charter claims, even novel ones, can be disposed of in the context of a motion to strike (an issue addressed in the most recent episode of the Runnymede Radio podcast, in which co-blogger Mark Mancini interviewed Gerard Kennedy), he holds that the Charter claims are not justiciable, while the “public trust” claim, although justiciable, has no reasonable prospect of success.

With respect to justiciability, “[t]he question to be decided is whether the Court has the institutional capacity and legitimacy to adjudicate the matter. Or, more generally, is the issue one that is appropriate for a Court to decide.” [29] The novelty of a claim, by itself, is not relevant, and the fact that a claim has a policy dimension is not a bar to justiciability. However, “[t]o engage the Court’s adjudicative functions, the question must be one that can be resolved by the application of law”. [34] The general direction of policy is a matter for governments and legislatures; “[p]olicy choices must be translated into law or state action in order to be amenable to Charter review and otherwise justiciable”. [38]

Justice Manson finds that the challenge here is impermissibly aimed at a general policy choices, “an overly broad and unquantifiable number of actions and inactions” by the government. [40] Indeed, nothing less than “the entirety of Canada’s policy response to climate change” is targeted, with the result that “assessments of Charter infringement cannot be connected to specific laws or state action”, breaking with the normal purpose of judicial review. [43] In effect, the activists seek to put the court in charge of Canada’s climate change policy. This is not the courts’ role, “no matter how critical climate change is and will be”. [48]

Justice Manson also criticizes the remedies sought by the activists. Declarations alone would amount to ineffective statements about the meaning of the Charter, or pronouncements about the effectiveness of public policy more appropriate to a commission of inquiry than a court. Meanwhile, judicial supervision of public policy is not appropriate, and would not, in any case, in itself redress the alleged breach of the plaintiffs’ Charter rights.

While this is not dispositive, Justice Manson also suggests that the Charter arguments would have no reasonable chance of success even if they were justiciable. In the case of the section 7 claim, this is because no one law or even specific set of laws is said to be rights-infringing. That said, in an obiter to the obiter, Justice Manson muses about the possibility of a positive-rights claim succeeding in a future case. As for the section 15 claim, “[i]t is unclear what impugned law creates the claimed distinction, whether on its face or in its impact”. [79]

As for the “public trust” claim, according to which the government has an obligation, sourced either in the common law or in unwritten constitutional principle, “to preserve and protect the integrity of inherently public resources so that the public is not deprived of the benefits they provide to all”, [81] Justice Manson finds that it is justiciable, but has no reasonable prospect of success. The “public trust” doctrine is not recognized in Canadian law; it is “extensive and without definable limit” [88]; nor can it be supported as a principle essential to the Canadian constitutional order. There is no point in allowing this claim to proceed to trial.

This is the right outcome. As Justice Manson points out, it simply isn’t the role of the courts to dictate policy in areas where choices must be made among a multitude of variables and any number of competing considerations are to be balanced. It is one one thing for the courts to say that public funds must be expended on a specific matter prioritized by the constitution. They have done so in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3 (which dealt with the construction of schools to which a linguistic minority was entitled under section 23 of the Charter) and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 (where the Supreme Court invalidated a regulation imposing “hearing fees” on litigants who sought to have their day in court, in contravention, the majority said, of s 96 of the Constitution Act, 1867). Even that wasn’t uncontroversial, though I think these outcomes are defensible. But it would be something else entirely for a court to improvise itself the arbiter of policy touching on a matter as all-encompassing as climate change. Perhaps there are shades of grey in this area, matters where it is not quite clear whether the issue is too complex for the courts to intervene, as some critiques of Trial Lawyers suggest. But this isn’t one of them.

What I wrote here after the Court of Appeal for Ontario struck a claim by a coalition of activists that Ontario’s and Canada’s housing policy violated sections 7 and 15 of the Charter in Tanudjaja v Canada (Attorney General), 2014 ONCA 852, 123 OR (3d) 161 (a case to which Justice Manson refers) remains relevant:

[T]here are good reasons for the courts to refuse to adjudicate, if not any and all social and economic rights claims, then at least … vast campaigns intended to reshape entire areas of government policy. There is the issue of competing priorities ― if not all claims on public support can be satisfied, which ones should be favoured? It’s not obvious, to say the least, that the answer to that question ought to be “those who got adjudicated first.” There is the issue of legitimacy of unelected judges having to order Parliament and legislatures to increase taxes. Charles I lost his head for trying to raise taxes without Parliamentary approval, and George III lost an empire for insisting that he had the right to tax without consent. It is, again, not obvious that judges would fare any better. There is the issue of federalism. … The federal government chooses to help the provinces discharge many of their constitutional responsibilities, and the provinces accept the money (and ask for more), but how a court could assign responsibilities between the two level of government ― something that takes sometimes difficult political negotiations ― is really beyond me.

There is, finally, the issue of the law’s inherent conservatism. If a court decides that social programme X is constitutionally required, then programme X cannot be got rid of even to be replaced by a more effective but differently organized programme. … At best, the government would have to turn to the courts and demonstrate that its proposed programme would be enough to discharge its constitutional obligations. But it could not really demonstrate this ― it would have to speculate, and it’s not clear that a court ought to be convinced by such speculation. (Paragraph break added)

All these concerns weigh on the attempts to litigate climate change policy. At least some plausible measures to reduce greenhouse gas outputs are antithetical to the promotion of economic growth, and it a complex question, a matter of economics and morality, but certainly not law ― and hence not for the courts to decide ― how these priorities are to be balanced. Carbon taxes (or cap-and-trade systems that amount to indirect taxation) are a key policy tool aimed at reducing greenhouse gas emissions, and it is not the courts’ place to impose such taxes without an electoral mandate. Federalism is, if anything, even more of a concern here than it was in Tanudjaja, because provincial governments ― which have an important part of policy responsibility in relation to both the environment and to the economy ― were not even before the court. Finally, climate change policy must necessarily be adjusted to the evolution of both the available science and the existing technologies. (Climate policy in a world of cheap solar electricity or, perhaps, fusion power, probably looks quite different from that of today.) Freezing a particular policy response developed in, say, 2021 in constitutional law sounds like a profoundly bad idea, as well one that is inconsistent with the judicial role.

Just to be clear: I’m not saying that these policies are bad. (I’m also not saying that they’re good.) The point is that the courts neither can nor would be justified in passing on their wisdom or even necessity. As Justice Manson says, the function of judicial review of legislation is to assess specific laws or government decisions against the legal rules and standards set out in the constitution. The task of supervising ongoing policy choices that the plaintiffs here were expecting the Federal Court to undertake is radically different.

It is a relief, then, Justice Manson avoids the temptation to “do something” just because “something must be done”, and accepts that the resolution of an important social issue is outside the scope of his office. That’s not to say that courts should avoid resolving important social issues just because they are important social issues. But nor should they assume that they, and the constitution which they enforce, must have something to say on such matters.

As Dwight Newman has written in a related if slightly different context,

[w]hile climate change policy is an immensely important area for governments, that context does not change the Constitution. Some might wish that it did … But the very nature of a constitution is that it must endure across various policy challenges of the day and not be bent to particular policy choices.

And recall, of course, Lord Atkin’s admonition in the Labour Conventions Reference: “While the ship of state now sails on larger ventures and into foreign waters she still retains the water-tight compartments which are an essential part of her original structure.” (684) Professor Newman and Lord Atkin were both addressing the federal division of powers between the Dominion and the provinces, but their point is no less applicable to the separation of powers among the various branches of government ― here, between the Federal Court and Parliament. We probably do not think enough about separation of powers in Canada, and when we do we too often reduce it to judicial independence. But the separation between the judiciary and the “political branches” must be water-tight both ways. There are ways in which Parliament and the executive cannot interfere with the courts. But there are also ways in which the courts must not interfere with Parliament and the executive. This principle holds no less true in waters warmed up and troubled by climate change.

One Does Not Simply

Ensuring access to justice isn’t simply a matter of the legal profession’s being more open to “experiments”

Justice Abella has published an op-ed (paywalled) in The Globe and Mail ― yes, another one. It’s being widely shared, with apparent approval, on Canadian law Twitter ― which may or may not reflect the sentiment of the profession more broadly. Justice Abella argues, in a nutshell, that the justice system is hidebound and in dire need of root-and-branch reform to be able to actually provide justice to ordinary litigants. Wanting to improve access to justice is, to be sure, a fine sentiment. However, Justice Abella’s analysis of the system’s problems ― which are real enough ― is remarkably simplistic, and she proposes no solution at all.

Justice Abella writes that the “public [has] been mad for a long, long time” about access to justice and, apparently taking the mad public’s side, wonders “why we still resolve civil disputes the way we did more than a century ago”. Her evidence for the claim that we do so is that in 1906 “Roscoe Pound criticized the civil justice system’s trials for being overly fixated on procedure, overly adversarial, too expensive, too long and too out of date”, and a claim that a an early 20th-century barrister “could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?”

Justice Abella attributes this situation to the fact that “the legal system … resist[s] experimenting with justice in order to find better ways to deliver it?” and keeps doing things the way it does for no other reason than “Because we’ve always done it this way”. Comprehensive reform ― not “incremental change” but “a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts” ― is necessary.

I have no courtroom experience, let alone ability to judge the public’s mood with any accuracy, so I cannot speak to the accuracy, if any, of what Justice Abella’s description of the justice system’s current state and of the popular reaction to it. I will reiterate that I do not believe that Supreme Court judges can, or should try to, channel “social values” or otherwise make themselves the purported spokespersons of the people. That’s not their job, and a good thing too, because they are supremely unqualified for it. But be that as it may, even if we grant, for argument’s sake, that Justice Abella’s descriptive claims are accurate, it is still the case that her analysis is devoid of all perspective. It considers the issue neither across time, nor in comparison with the state of affairs elsewhere in society. The resulting take is insular and unsound.

A historically informed view of the problem that Justice Abella discusses would have to acknowledge that it is very, very old. I’m no great historian, sadly, but as best I can tell access to justice and the remoteness of the courts from the common people were an issue going at least as far back as the English revolution in the 17th century. The expense and the incomprehensibility of legal proceedigns exercised Jeremy Bentham at the turn of the 19th. And then, as Justice Abella herself observes, they frustrated Roscoe pount in the early 20th, and any number of people in the 21st. People put forward various solutions too ― the puritans tried to establish courts outside London; Bentham was convinced that writing down the common law “into one great book (it need not be a very great one)” that would be “read through in churches, and put into boys’ hands, and made into exercises when they are at school” would do the trick. None of that worked.

One might of course conclude from this that the legal profession and the judiciary are, if anything, even worse than Justice Abella imagines. But isn’t the more plausible explanation for the persistence of access to justice problems that they are genuinely very difficult to solve, rather than that they are caused by laziness and obduracy? I will return to this issue shortly.

Before I do so, though, let me note that it’s simply not true that the rest of society has evolved beyond all recognition while the law has allegedly stood still. The work of academics and (perhaps even more so school teachers) looks much as it did not only 100, but 800 years ago. So does that of people in any number of other trades, if we put to one side the accumulation of technical knowledge, in the same way as Justice Abella puts to one side the evolution of substantive law. Even in medicine, to which Justice Abella appeals as an example of a forward-looking profession unafraid to “experiment with lives”, things are more complicated than she allows. The work of many specialist doctors has no doubt by transformed by all manner of gadgets. But what about that of general practitioners? Is it really so unrecognizable from a century ago?

The thing is, this is not because GPs, or chefs, or professors, are ― like lawyers ― hidebound and smug. Justice Abella simply implies that new and radically different is better, it is not clear why that should be. New can be better, but it need not be. If things are the way they are for some important reason, then ― so long as the reason is still present ― it is wise to keep them as they are, unless some weightier reason impels change.

And this brings me back to the question of why access to justice problems are genuinely difficult to solve. There is, in fact, a good ― although perhaps not a decisive ― reason for having those procedures whose existence so annoys Justice Abella. They are widely thought to promote more accurate decision-making, and they support the human dignity of the people who find themselves in front of the courts by giving them a chance to be heard and, no less importantly, to test and challenge the case that is being made against them. It is for these reasons that some or all of these procedures are required when people’s rights and obligations are being determined not by conventional courts, but by administrative decision-makers. Go back to 1906, and these tribunals often operated very differently, with no procedural safeguards to speak of. Yet this aroused criticism, and the critics prevailed; change came, partly through legislation and partly through decisions of the courts, widely celebrated now although they would have been anathema to the champions of experimentation and efficiency of the Progressive era.

In my last post I wrote about the trade-offs involved in designing administrative procedures. If procedure is good, there can be too much of a good thing. Additional procedural safeguards eventually yield little improvement in terms of more accurate or even more dignity-respecting adjudication, yet their cost, both to the taxpayer and to the parties, can become intolerable. Gerard Kennedy (whom I thank for his kind words about my post) has suggested that Justice Abella made just this point about trade-offs. But, respectfully, that’s not how I read her op-ed. There is no acknowledgment of trade-offs in Justice Abella’s argument; she does not recognize that there are reasons, beyond simple resistance to change and unwillingness to “experiment”, for the system being as it is. She blames the legal profession’s conservatism, and has no time for other considerations.

All that is not to say that there need be no reforms. My own preference, expressed since the earliest days of this blog, is for deregulating the legal profession. Justice Abella, I rather suspect, might not be on board with this particular experiment, but I would love to see it. Lack of competition is bound to make the legal system less innovative than it might be, so bringing about more of it is likely to ameliorate the problems Justice Abella is concerned about. But we should not delude ourselves about how much this, or any other, reform might accomplish. For one thing, so long as the state exists, the court system, if not the legal profession, is bound to remain a monopoly. Sure, alternative dispute resolution exists, but it is not suitable for resolving certain kinds of disputes. And, beyond that, those trade-offs, and the need for a system that provides substantive justice and procedural fairness, and not only expediency, is not going away.

Put to one side the question of whether a person who is sitting at the apex of the legal system, and has been for 16 years, who has been a judge for almost 45, who has accepted innumerable plaudits from the legal profession and academy, should really be criticizing the system as if she is not part of it. Leave it to moral philosophers. But we need not wait for their judgment to say that Justice Abella’s argument is driven by the conceit that solving the problems she identifies would be easy if only the system were less stuck in the past and more willing to try new approaches. The fact that she does not even begin to tell us what these approaches might be ― that she proposes no new idea, even one as daft as Bentham’s public readings of the not-very-great law book ― should be a hint: things aren’t as simple as she would like us to think.

There is a word for this tactic of setting up an alleged conflict of “the public” or “the people” against some obstructionist, and probably self-interested, elites standing in the way of change; of denying the difficult trade-offs that change would require; of claiming that a transformation of society, such that trade-offs can be dispensed with altogether, is around the corner if only the resolute leaders in communion with the enlightened people were in change. It’s a word that one would not have associated with Justice Abella, but one has to, given that this rhetoric is precisely what she deploys in this op-ed. The word is, of course, “populism”. In the previous op-ed, linked to at the beginning of my post, Justice Abella, denounced populism, arguing that “[m]any countries around the world … have made Faustian bargains, selling their democratic souls in exchange for populist approval.” This was, she wrote, “unconscionable.” But that was then, I suppose, and this is now.

Just as she does with the Rule of Law, alternatively disparaging and extolling it as suits the circumstances or the taste of her audience, Justice Abella can castigate populism or engage in it. One might think this is, indeed, unconscionable. But, perhaps, things are not so bad. As I wrote in commenting on that previous op-ed,

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority.

She might simply not understand what she is doing. I’m not sure about this, but she really might. Either way, July 1, 2021, when she must at last retire from the Supreme Court, cannot come soon enough.

Ignoring Legislative Intent: Deference in Quebec and s.96

The constitutionality of a regime of deference is not something much explored in the wider context of Canadian administrative law. But in Quebec, the question is a live one because of particular statutory and judicial arrangements. The Quebec Court of Appeal just released a case [the Reference] that dealt with the question head on: does a statutory court’s statutory review of administrative decision-makers become unconstitutional if that court is required to apply principles of deference?

In this post, I first review the set-up of the Court of Quebec and its relationship with various statutes that nourish it with appellate review power. Then I address the controversy surrounding the way the Court is arranged. I argue that deference in these circumstances is, indeed, unconstitutional based on first principles. It deprives the Superior Court of Quebec of a core element of its jurisdiction—its ability to review, without impediment, inferior tribunals. But I argue that there is a way around the constitutional problem. Courts should begin to recognize, and give full effect, to statutory rights of appeal as elements of legislative intent. Doing so largely eliminates deference questions and is more aligned with the task of judicial review: to discover what the legislature means when it delegates power.

The Court of Quebec, Established Law, and the Quebec Court of Appeal’s Conclusion

The Court of Quebec is a statutory court. It has been given, through a number of statutes, appellate review jurisdiction over a number of administrative tribunals in the province of Quebec. This is a key point that I will return to later: appellate, statutory review jurisdiction should be fundamentally different from an application for judicial review.

In the reference before the Court of Appeal, the chief justices of the Superior Court challenged eight separate legislative schemes that provide for appeals to the Court of Quebec. Their challenge was based on s.96 of the Constitution Act 1867, which, among other things, guarantees a core jurisdiction for the superior courts of the provinces. The challenge concerned not the establishment of a statutory court/tribunal per se (which has typified the jurisprudence around s.96), but the requirement imposed doctrinally that the Court of Quebec must apply principles of judicial deference when they review the decisions—via statutory appeal—of administrative decision-makers.

Administrative law buffs might immediately recoil at the argument, because the Supreme Court has long made clear that judicial review principles apply regardless of whether a case comes to the court via an application for judicial review or statutory rights of appeal (see Dr. Q, at para 20; Saguenay, at para 38). The Court has even held, with respect to the Court of Quebec, that it is required to apply principles of judicial deference (Proprio Direct, at paras 19-21). But recall that this argument is constitutional in nature—that the status of the Court of Quebec, coupled with the requirement of deference, runs afoul of the protections afforded in s.96 of the Constitution Act, 1867 for superior courts. This is a unique argument because it is both the jurisprudential requirement of deference and the Court of Quebec’s statutory status which, together, create an alleged unconstitutional effect.

The Quebec Court of Appeal, though, rejected this argument in whole. It held (1) that the Court of Quebec must apply common law principles, with Dunsmuir standards of review as the governing tests (see para 280); and (2) although there was a transfer of authority to the Court of Quebec that, at first glance, usurps the Superior Court’s s.96 role, this was insufficient to cause a s.96 problem, because “…all of these legislative schemes maintain the Superior Court’s superintending and reforming power” (324). In other words, there was no privative clause ousting the Superior Court’s power on “jurisdiction,” even if the Court of Quebec was to apply deferential principles of review. Since what was envisioned was not an exclusive transfer of jurisdiction (as exemplified in the s.96 cases, see MacMillan Bloedel), there was no constitutional problem.

Avoiding the Constitutional Problem: Statutory Rights of Appeal

In my view, and putting aside for the moment the constitutional concerns, whether the Quebec Court of Appeal got this right is dependent on how one characterizes a statutory right of appeal. If a statutory right of appeal is characterized as a legislative signal for a reviewing court—even a statutory court like the Court of Quebec— to simply apply the ordinary principles applicable on appeal, what basis is there for a court to apply the principles of deference? It is only by accepting that the common law principles of judicial review override clear statutory signals that we get into this problem of constitutionality, at least in the context of this case.

As noted above, though, the Court has been content to permit uniformity in the way courts review administrative decision-makers, through the application of the typical common law tests. In a variety of contexts, the Court has either treated statutory rights of appeal as non-determinative (see Pezim, at 591 and Southam, at para 54) or has specifically said that the common law principles of judicial deference apply, even in the face of a clear legislative regime governing a statutory court (Khosa, at para 25).

While the Quebec Court of Appeal rightly followed this jurisprudence, it seems to me completely wrong in principle. Under no circumstances should common law principles of judicial review apply if the legislature has specified, in the relevant statutes, a right of appeal to a statutory “court of justice” (see para 363). This is because a statutory right of appeal is an implicit legislative signal that, on questions of law, the statutory court should simply intervene in a lower administrative decision as it sees fit. Statutory rights of appeal stand for this proposition unless they contain some wording that would imply deference, or unless there are other signals in the statute, like a privative clause. Forcing these courts to apply common law principles of judicial review ignores this implicit legislative signal.

What’s more, the theoretical underpinnings of the Supreme Court’s maintenance of the common law rule are wanting. The basic point is that the very act of delegation to (apparently) “specialized” and “expert” administrative tribunals justifies deference. But there are two problems with this justification. On one hand, it is completely unjustified to impute a legislative intent of deference to the legislature when it merely delegates power. The reasons why a legislature delegates power are many, but there is no evidence to assume that it does so because it wants the decision-maker to receive deference. Why should courts assume so? Secondly, the across-the-board expertise presumption is not necessarily empirical true. In this sense, it is a classic overbroad rule.

This conclusion was forcefully expressed by Rothstein J in Khosa. In that context, the Supreme Court majority held that the ordinary principles of judicial review apply when the Federal Court reviews decisions of federal decision-makers. But the Court gave no effect to the Federal Courts Act, which establishes certain grounds of review that could also be said to imply standards of review (see s.18.1(4)). Rothstein J noted that “a common law standard of review analysis is not necessary where the legislature has provided for standards of review” (Khosa, at para 99). Instead, where the legislature has done so, the common law idea of deference melts away. It is for the legislature to evaluate expertise, and include a privative clause, if it sees fit to mandate deference; it is not for the court to simply override legislative language in service of some court-created ideal of deference.

Rothstein J’s position is on better footing. Rather than buying into the expertise presumption, and the subversion of the relationship between common and statutory law that it creates, his position expresses support for the typical relationship between these two types of law; statutory law takes priority over the common law. It is for the legislature to prescribe the relevant standard of review. And in the context of the Court of Quebec—at least the relevant statutes in the case—the legislature has. Of the eight statutes at play in the Quebec case, all of them contain a statutory right of appeal. Some even contain language specifying that “The Court can confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in first instance (see para 217; s.175 of the Professional Code). This is strong, “correctness”-type language. Even in absence of such language, a statutory right of appeal ousts the common law rule of deference, and removes any constitutional doubt from the issue. In each case of a statutory right of appeal, it is a sign that deference should not be the modus operandi.

Addressing the Constitutional Problem: The Core of Judicial Review

But, whether or not my preferred position is adopted, there could still be cases where deference arises—either by legislative language or judicially imposed doctrines. In such a case, was the Quebec Court of Appeal right to hold that there is no constitutional problem with deference?

In my view, it was not. The starting point is the Supreme Court’s comment in MacMillan Bloedel that it is not permissible for the legislature to remove any “core” powers of the superior courts in the provinces (MacMillan Bloedel, at para 37). As the Court noted, “ [d]estroying part of the core jurisdiction would be tantamount to abolishing the superior courts of general jurisdiction.” Therefore, even abolishing part of the core jurisdiction is tantamount to destroying it all, according to the Supreme Court. This conclusion was cited by the Quebec Court of Appeal (at para 46).

What is protected in the core jurisdiction? For our purposes, as the Quebec Court of Appeal noted, “the exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial public bodies” is part of the core (at para 45, citing MacMillan Blodel at paras 34 and 35). This is an aspect of the core jurisdiction which can never be removed—even in part. Yet the effect of asking the Court of Quebec to apply deference is to dilute this reviewing function. As Professor Daly notes in his “Les appels administratifs au Canada” (2015) 93 Canadian Bar Review 71:

This power of the Superior Court to correct certain types of illegalities committed by inferior tribunals in the exercise of their jurisdiction was an integral part of the Court’s supervisory authority as it existed in 1867; it is therefore clear that such control power cannot be validly transferred by the Legislature from the Superior Court to a court that is not comprised within the enumeration contained in s. 96 of the B.N.A. Act.

Attorney General (Que.) et al. v. Farrah [1978] 2 SCR 638 at p. 654. See similarly Séminaire de Chicoutimi v. City of Chicoutimi, 1972 CanLII 153 (SCC), [1973] S.C.R. 681.

The requirement of deference significantly dilutes this role, to the point where the core power of the superior court is imperiled. This is because of a “double deference” problem, as Professor Daly argues. The Court of Quebec will apply deference to the administrative tribunal’s legal findings. Then, the Superior Court will defer to the Court of Quebec. When the Superior Court defers, though, it simply asks whether the Court of Quebec’s decisions is reasonable or not. It does not get a first instance glimpse of the legality of the decision. This double deference problem significantly limits, if not fundamentally changes, the task of the Superior Court.

The Court in the Reference responds to this problem by saying that:

[W]hen the Superior Court hears an application for judicial review of a judgment of the Court of Quebec, it must begin by focusing on the administrative decision in order to first determine whether the Court of Quebec identified the appropriate standard (which, in Superior Court, is a question of law subject to the correctness standard, and then determine whether it applied the standard properly. Thus, strictly speaking, the judgment of the Court of Quebec is set to one side and the impugned administrative decision is the one under review.

This might solve the double deference problem, but it creates a whole other issue: it deprives the Court of Quebec of the appellate jurisdiction that the legislature intended it to have (see Professor Daly’s post here). Now, the Court of Quebec’s ruling is set aside. Here again is another example of courts failing to respect legislative intent.

This is a less-than-ideal solution to the constitutional problem of double-deference.

Conclusion

This is a complex case, and my views are necessarily tentative. But I think, in the first place, that the constitutional problem can be avoided in many cases by simply giving effect to the appellate jurisdiction that the legislature granted to the Court of Quebec. In cases where the problem does arise, I think the Quebec Court of Appeal’s solution to the problem is less than ideal, because it again ignores legislative intent.

End of a Scandal

An attempt to criminalize criticism of New Zeand’s judges is rejected by a parliamentary select committee

Last year, the New Zealand Parliament took up a bill to update and reform the law of contempt of court. A worthy endeavour, but one that was seriously flaw in at least one very important way, as I argued at the time: one of the ways in which the bill changed the law was that it not only codified but seriously expanded the common law offence of “scandalizing the court” ― that is, according to a classic definition in R v Gray, [1900] 2 QB 36, doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority”. (40)

Obviously, the common law offence, if understood broadly, might have applied to vast amounts of perfectly legitimate criticism, including of the sort that is this blog’s trademark, so the courts applied it sparingly and with an eye ― indeed both eyes ― towards preserving the freedom of expression in this context. Even so, the offence has been abolished by statute in the United Kingdom, and left in a zombie-like state in Canada following the decision of the Court of Appeal for Ontario in R v Kopyto, which held that, in its current form, the law of scandalising the court was not consistent with the Canadian Charter of Rights and Freedoms.

By contrast, the bill before the New Zealand Parliament would have expanded the offence, notably by criminalizing the expression of opinion ― including opinion honestly held on the basis of publicly known or fairly stated fact ― if that opinion could undermine public confidence in the independence, integrity, or impartiality of a judge or court. The bill would also have criminalized the true statements of fact having that tendency, unless the accused were able to prove their truth on a balance of probabilities ― thus trenching on the presumption of innocence. And, in addition to this, the bill would also have created enforcement powers that would have made it possible for the prosecutors to exact apologies and retractions from people merely suspected of having committed the “scanadalizing” offence.

In addition to blogging about this, I co-wrote (with Edward Willis) a submission to the Justice Committee of Parliament, which studied the bill. Dr. Willis and I were joined by a number of scholars from across New Zealand. We also presented our views to the Committee in person (we come in at ca. -1:04:07). Our submission recommended that the offence of “scandalizing the court” be abolished, but it also set out alternative provisions that could have ameliorated the worst abuses of the original bill, should the Committee have been inclined to preserve the offence. Of course, our submission was not the only one (though not all the submissions were directed at the issues that interested us).

The Committee delivered its unanimous report last week, and I am happy to say that the expanded offence and created in the original bill is now gone, as are, mostly, the novel enforcement mechanisms. The common law offence, as it now stands, remains, if I understand correctly. (Subclause 29(2) of the Bill provides that “[n]othing in [it] limits or affects any authority or power of a court … to punish any person for contempt of court in any circumstances to which [the Bill] does not apply”, which I think would encompass the contempt of “scandalizing the court”.) There is also a provision, a new Clause 25, allowing the High Court to order a person “to take down, or disable public access to” “a false statement about a Judge or court [such that] there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court”. An interim order can be made on a showing of an “arguable case”, but a final order requires the government to prove the falsity of the statement concerned on a balance of probabilities.

This is not perfect. It would have been better for the offence of “scandalizing the court” to have been abolished altogether. And while, in this second-best of all possible second-best worlds, take-down orders for information which has actually been shown to be false (with the burden of proof, albeit the civil one, being on the government) are not the biggest freedom of expression concern there is, I’m also not a fan of the low threshold for the making of interim orders. Still, much worse has been averted.

As Andrew Geddis ― one of the scholars who have joined Dr. Willis’ and my submission ― has put it,

the system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response.

The system has, indeed, worked remarkably well in this case, though when we say “the system”, we should also give credit to the individual members of the Justice Committee. We should also, however, recognize that this is a technical bill of a sort that neither triggers any strong partisan reactions nor makes for good political point-scoring. As Professor Geddis explains, the system isn’t working nearly well enough with the gun control legislation being currently rammed through the New Zealand Parliament; nor did it work especially well in the case of a recent bill to ban some offshore drilling, about which I have written elsewhere.

Professor Geddis also points out that, while the Justice Committee has recognized that it is wrong to punish people for expressing unpleasant opinions about the judiciary, or to make them apologize for it, the New Zealand House of Representatives still takes a different view where it is itself concerned:

Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And … it can require that they apologise to an MP and to the House itself for committing a contempt.

This power is still used from time to time ― and not just against MPs, but against members of the public too. So there is still some way to go before the evil of compelled apologies is banished from the land. But the Justice Committee has, at least, taken a stand against allowing it to fester.

And I would like to think that, in some small part, this is because I raised hell, and encouraged others to raise hell with me. And of course others still engaged in their own hell-raising activities with which I had nothing to do. Some people, it appears, are not fans of this blog’s rabble-rousing ways. That’s their right, of course. But if the rabble is of the right kind, it can help do great things. As Boris Vian told us, en protestant/quand il est encore temps/on peut finir/par obtenir/des ménagements ― by protesting while there is still time one could end up getting some concessions.

Rendering Unto the Judiciary

Justice Martineau’s recent article on judicial courage

In a recent piece published in the Western Journal of Legal Studies, Justice Martineau of the Federal Court puts forward a concept of “judicial courage” as a descriptive and normative claim about what judges do in a democracy. Judicial courage, to Justice Martineau, is an ideal that stands in contrast to judicial “conservatism” under which law is the complete answer to most or all cases [2]. To Justice Martineau, law is a necessary but insufficient condition for the flourishing of justice and democratic institutions. Instead, we also need a shared ethic or commitment towards a culture of constitutionalism, which judges help along by displaying “courage” in particular cases. Justice Martineau is drawn by a “liberal” version of the judiciary, imbued with moral authority rather than simple legal authority.

While Justice Martineau’s piece demonstrates a clear reflection of the issues at stake and his status as an eminent legal thinker, allow me to be skeptical of his core claim, as I read it: that courage can be a helpful descriptive and normative organizing principle. To me, judicial “courage” is far too subjective, and could ultimately give rise to unconstrained faith and power in a judiciary unbound by doctrine. There would need to be some limiting principle and definition to the ideal of “courage” to ensure that judges exercise it in proper cases.

This is not to say that the problem Justice Martineau addresses in his piece is unimportant. The piece uses the concept of judicial courage as an answer to a perennial problem: how do we deal with internal threats to the legal system from those sworn to uphold it? To Justice Martineau, courts are central in preventing the rise of these sorts of actors

I have no difficulty in endorsing his point of view. Judges have a duty to act responsibly. Detractors of “judicial activism” dismiss elitist thinking—particularly as it is opined by unelected members of the judiciary. People should put their faith in Congress or Parliament, who know better. But their optimistic reliance on the positive side of political virtue and wisdom ignores the transformative action of fortuna when power has become corrupted or concentrated in the hands of a sociopath. This can happen in any democracy [31].

My concern is the faith this puts in courts to almost always do the right thing. Just because the legislative branch can be manipulated does not mean that the judiciary cannot be, or that strong-form judicial review is necessarily the best remedy. As Vermeule argues, much of constitutional law can be construed as a form of risk management. Part of the risk of constitutional design is the risk posed by imperfect humans. For example, in designing the American constitution, some of the Federalist framers began from the presupposition that “enlightened statesmen will not always be at the helm” of the system (The Federalist Papers, No. 10). To Hamilton, in fact, “No popular Government was ever without its Catalines & its Caesars. These are its true enemies.” Constitutionalism must start from the premise that there will be bad actors in the system, like a Caesar or Hitler, who might seek to use internal democratic channels to subvert the rights of others. This observation extends equally to the judiciary.

The Americans responded to this problem by adopting a strict separation of powers, in which no one branch could accumulate all power. The judiciary is obviously included in that system of limited government, restrained just as much as the legislature and executive. Why should we bank on such a system? Ex ante, the separation of powers is the best organizing principle on which to base a Constitution. A bill of rights will only be a “parchment guarantee” if any actor in the system can accumulate all the power. Before doing anything in a constitutional democracy, we’d want to insure against this risk.

We should be careful about tinkering with this machinery. For that reason, in a system of separation of powers, there should be good reasons for one branch to step into the territory of the others. Hamilton alluded to this possibility when he said that in cases of a weak government, it may need to “overstep the bounds” (on this point, see Vermeule’s recent paper) in cases of emergency. But the same goes for the judiciary. Extraordinary constitutional circumstances should exist before an unelected judicial branch interferes with the elected process if the separation of powers is a main organizing principle–and if we care about guarding against the risk of overreach.

And this is the rub of the matter. If it is “courageous” for courts to interfere with democratically-elected mandates that may be unfair, it is perhaps even more courageous for courts to stay their hand and let the democratic process unfold in service to the separation of powers. Which is true in a given situation should be subject to clear rules that guard against judicial overreach and limit the role of the judiciary to real instances of constitutional concern. But we are so far from this reality in Canada. I need not go over the Supreme Court’s sins in this regard, but the Court has failed to apply a consistent set of rules governing its judicial review function; sometimes tacitly accepting originalism, sometimes trotting out the living tree, all the while relaxing its approach to precedent.

To this comes Justice Martineau’s objection. A wholly rules-bound judiciary is likely to allow grave democratic injustices to stand. Hitler, after all, was a product of a democracy. Justice Abella has gone as far as to eschew the rule of law, instead proposing a “rule of justice.” To Justice Abella, the rule of law is “annoying” because it sanctioned the Holocaust, segregation, and other democratic evils. On her account (and Justice Martineau’s) courts always pursue justice, whereas the legislature will only do so if “justice” coincides with its own political interest

Direct democracy alone is an insufficient condition for a good society, if only for practical reasons. In fact, courts play an integral role in a properly separated system. This system, to Justice Martineau, must be vindicated by a culture of constitutionalism, in which the people agree to be bound by law [13]. The American framers agreed. But the real question is who should foster this belief. Justice Abella and Justice Martineau seem to think it is the role of courts to encourage this culture of constitutionalism; and even more, they seem to think that courts are uniquely suited to do so.

At risk of sacrilege, I think this puts too much faith in humans–the very risk the separation of powers guards against. To trust that the judiciary will always display “courage,” properly calibrated to the legal rule under consideration, is unrealistic. Judges will make mistakes, sometimes grievously so. This is a clear risk that is managed by the separation of powers. To be sure, the risks posed by legislative or executive abuse are different than those posed by courts, but they are no less concerning. Executive or legislative recalcitrance will be obvious, but judicial overreach is less so.

Instead, putting too much faith in the judiciary and expanding judicial power is much like eating chocolate cake. The cake is good at the moment, but later on it takes its toll. A court making up its own law will vindicate particular groups in the moment. But over the long term, a court unmoored by clear rules, directed only by “courage” or “justice,” could slowly eat away at the separation of powers and the role of elected legislatures until the culture of constitutionalism sought by Justice Martineau is really just a culture of court worship. Under this culture, courts take an expanded role, and citizens look to the courts to vindicate their particular versions of the good.

I fear we have come to this point in Canada. One need only look at the recent retirement of Chief Justice McLachlin as an example. Veneration of the Court is a veritable academic pastime, and too many view the judges as celebrities rather than fallible humans with a restricted role in the separation of powers. This is an implication of Justice Martineau’s invocation of “courage.” Without guiding rules, courage could mean many things to many different people. It could end up being a dangerous theory of judicial review that further politicizes and expands the role of courts.

In our system, there is no doubt that we need courageous judges, but what courage means in a system of separated powers is a complicated question. Without accounting for institutional realities, courage lacks definition as a descriptive and normative idea. Rather than putting our faith in judges, all should insist that actors within the political system stay true to their defined roles. Accordingly, for courage to be a helpful concept rather than a vessel for judges to fill with their own worldview, we’d need to develop clear doctrinal parameters on the concept.

Scandalizing!

Read Edward Willis’ and my submission on legislation that would censor criticism of the judiciary

A few weeks ago, I wrote about a bill, currently before the New Zealand Parliament, which would codify ― and expand ― the law of contempt of court, in particular as it relates to criticism of the judiciary. (At common law, this is known as the offence of “scandalizinig the court”.) I argued that the offence the bill would create is overbroad, that the defences to it are insufficient, and that the bill, if enacted, would unjustifiably violate the freedom of expression, the freedom of conscience, and the presumption of innocence.

Well, for once, I thought that just ranting on my blog was not enough, so Edward Willis and I started to work on a submission to the Justice Select Committee, which will be studying the bill. We have been joined by my boss, Charles Rickett, my colleagues Warren Brookbanks and Vernon Rive, as well as Andrew Geddis and Eddie Clark, in arguing that, if the provisions related to criticism of the judiciary are not removed from the bill entirely, they need at least to be amended to be more compliant with fundamental constitutional principles and rights. In particular, we propose making the falsity of any statement punishable as contempt an element of the offence, to be proven beyond a reasonable doubt by the prosecution, rather than a defence to be proven the accused; introducing a defence of honest opinion; and removing the ability of the Solicitor General to request, or of the High Court to order, that a person correct, retract, or apologize for a statement that has not been proven to constitute contempt of court; indeed we are proposing getting rid of forced corrections and apologies entirely.

You can read our submission here. Working on it with Dr Willis has been great fun, and I’m very grateful to our co-signatories for their help and support.