Chevron on 2

The illogic of the Supreme Court of Canada’s approach to deference to administrative interpretations of law

Readers with some salsa experience will probably know that, while most of the world dances it “on 1”, in New York it is danced “on 2”. The steps and moves are more or less the same, but the sequence is different. Another dance that can be varied in this way, as we learn from the Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, is the notorious Chevron two-step. As with salsa, one can prefer one style or the other. But, for what it’s worth, I find Vavilov’s “on 2” version of Chevron to be rather offbeat.


In Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984), the US Supeme Court explained how courts were to review administrative decision-makers’ interpretations of what in Canada are sometimes called their “home statutes”:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. (842-43; footnotes omitted)

The first step, in other words, is to determine whether the statute is so vague or ambiguous as to require an exercise of interpretive discretion by the administrative decision-maker. The second step, taken if―and only if―the statute does call for such an exercise of discretion, is to review the administrative interpretation for reasonableness, and defer to it if it is not unreasonable.

There are some exceptions to this two-step analysis. For one thing, under United States v Mead Corp, 533 US 218 (2001), courts ask whether the administrative agency was meant to conclusively determine questions of law in the first place. This is sometimes known as “Chevron step zero”. For another, following FDA v Brown & Williamson Tobacco Corp, 529 US 120 (2000), certain questions are seen as too important for their determination to have been delegated to administrative agencies implicitly; nothing short of explicit Congressional command will trigger deference. But, at least where the administrative decision-maker is seen as authorized to make legal determinations, Chevron dictates ― for now anyway ― the normal approach.

Or, if you prefer seeing and hearing instead of reading, here’s how NYU students explained it a few years ago:


Now, compare this to the Vavilov framework. It begins with a fairly close equivalent to “Chevron step zero”. In cases where the legislature wanted the courts, and not administrative tribunals, to decide legal questions, whether by explicitly providing for correctness review or by creating an appeal from from the tribunal to a court, the courts must not defer. Nor will there be deference on (some) constitutional questions and “general questions of law that are ‘of central importance to the legal system as a whole'” [58, quoting Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [62]]. This is somewhat analogous to the “important questions” exception in the United States, although Canadian “questions of central importance” may well be different from the American “important questions”. (I don’t think, for instance, that under Vavilov it is enough for a question to be “of deep economic and political significance [and] central to [a] statutory scheme”: King v Burwell (2015) (internal quotation omitted).)

But then, Chevron‘s two main steps are reversed. Subject to the legislative assignment and central questions exceptions applying, Vavilov says courts are to defer to administrative interpretations of law:

Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. [24]

This is, more or less, Chevron‘s step two. At this stage, no factor other than the existence of the administrative decision-maker, the absence of a legislative indication that courts must nevertheless be involved, and the non-centrality of the question at issue are relevant.

But then, Vavilov seems to suggest that, once it embarks on reasonableness review, the court needs to examine the statute at issue more closely ― to engage what co-blogger Mark Mancini has described as a “legal ‘hard look’ review”, including to determine whether there is actually the sort of ambiguity that, under Chevron, justifies deference to the administrative interpretation. Vavilov stresses that “while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply ‘with the rationale and purview of the statutory scheme under which it is adopted'” [108, quoting Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 SCR 5, [15]] and, further, “with any more specific constraints imposed by the governing legislative scheme”. [108] Crucially, Vavilov insists that

If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language … it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. … [C]ertain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. [110]

This, by my lights, is Chevron‘s step one. In some cases, the Supreme Court says, the legislature leaves the administrative decision-maker with the latitude to choose among competing possible interpretations. But not always. To quote Chevron again, “[i]f the intent of [the legislature] is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of [the legislature]”.

I should note that this might not be the only way to read Vavilov. Paul Daly, for example, is quite skeptical of “intrusive reasonableness review” that would occur if courts take too seriously the admonition about there being, sometimes, only one interpretation of administrative decision-maker’s grant of authority. But, as Mark shows, this is certainly a plausible, and at least arguably the better reading of Vavilov. I may return to the debate between these readings in a future post. For now, I will assume that the one outlined above is at least a real possibility.


As already mentioned, this reversal of the “Chevron two-step” makes no sense to me. I find it odd to say that reviewing courts must start from the position that “respect for [the] institutional design choices made by the legislature” in setting up administrative tribunals “requires a reviewing court to adopt a posture of restraint on review”, [24] but then insist that respect for legislative choices also requires the courts to be vigilant in case these choices leave only one permissible interpretation. The view, endorsed in Dunsmuir, that deferential judicial review reflects the inherent vagueness of legal language, was empirically wrong (and indeed implausible, as I argued here), but coherent. The recognition in Vavilov that statutory language is sometimes precise and can have a definitive meaning is welcome, but it is logically incompatible with an insistence on deference and judicial restraint.

If the Vavilov court had wanted to limit deference to cases of genuine interpretive uncertainty, it ought to have followed Chevron in clearly asking courts, first, to identify such cases, and then, and only then, to defer. That, of course, runs the risk of deference being relatively rare ― a risk highlighted by Justice Scalia in a lecture on “Judicial Deference to Administrative Interpretations of Law“:

One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt. (521; emphasis in the original)

Conversely, if the Vavilov court was serious about deference-across-the-board being required as a matter of respect for legislative choice, it should have doubled down on the earlier view that statutory language inherently fails to determine legal disputes. This, in my view, would have been madness, but there would have been method in’t.

The trouble is that, as I said in my original comment on Vavilov, the majority opinion is a fudge. Collectively, the seven judges who signed it probably could not agree on what it was that they wanted, other than a compromise, and so did not want anything in particular. And so we get a judgment that, in a space of three short sentences, requires judicial review to embody “the principle of judicial restraint” while being “robust”, [13] and insists on deference while stressing that there may well be only one reasonable opinion to defer to.


Different people, and different legal cultures, will find their own ways to dance to the same tune of judicial resignation before the administrative state. Perhaps we should regard their different solutions as mere curiosities, objects of wonder but not judgment. But I don’t find this new Canadian hit, Chevron on 2, especially elegant or exciting. Not that I am a devotee of the on 1 original; but its steps at least come in a logical sequence. The on 2 version demands, as it were, that judges step forward and backward at the same time, and, with all due respect to the Canadian judiciary, I am not sure that it ― or, anyone else, for that matter ― is quite capable of such intricate footwork. Toes will be crushed, and partners disappointed if not injured, before someone realizes that the music needs, at long last, to stop.

Day 12: Mark Mancini

Here are my three favourite dissents at the Supreme Court of Canada. All of my dissents are united by a focus on the Rule of Law and constitutionalism, traditionally understood. In other words, they prioritize constitutional text over abstract values; and they focus particularly on the hierarchy of laws under which the Constitution>statutes>the common law. These might be considered “boring” themes on which to base my dissents, but to my mind, these structural arrangements are fundamental to law in Canada. These dissents focus on the majority’s subversion or misapplication of these fundamental structural constraints.

The TWU decision was one of the most anticipated Supreme Court decisions in 2018. My favourite aspect of this dissent, penned by Brown and Côté JJ, was the rigorous attack on Doré/Loyola as an organizing framework to analyze the constitutional claims in TWU. The dissent admirably showed why these cases are inconsistent with the Rule of Law and constitutionalism.

The Doré/Loyola approach to assessing the constitutionality of decisions engaging Charter rights asks decision-makers to balance Charter values engaged on particular facts with statutory objectives arising in a statutory framework. Courts are supposed to defer to the decision-maker’s balancing of values and objectives. But the slippery nature of Doré/Loyola has been subject to widespread criticism (see my particular criticisms here). Brown and Côté JJ also pointed out the widespread problems with the Doré/Loyola framework: see para 302. But the majority largely ignored these problems, and the suggestion by interveners that Doré/Loyola were unworkable. In a laughably weak paragraph, the majority simply stated that Doré and Loyola are binding precedents [59], without any attempt to justify the approach from first principles.

Brown and Côté JJ’s dissenting opinion admirably dealt with the problems with the Doré/Loyola framework head on. First, the dissent stated that there is no pressing justification for a separate analytical track when speaking of administrative decisions, particularly because the traditional Oakes test is “already context-specific” [302]. Second, the dissent noted that Doré and Loyola permit statutory objectives to trump Charter rights—but such a situation is completely unjustified from the perspective of the Rule of Law and constitutionalism, under which the Constitution trumps potentially unconstitutional statutory objectives, subject only to reasonable limits under s.1—not statutory objectives writ large [305]. Finally, the majority’s navel-gazing with regards to Charter values received the dissent’s ire: these values—as opposed to Charter rights—do not receive constitutional protection [307], and should not because they are not law. Since they are “unsourced,” they can be “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so” [308].

Brown and Côté JJ’s dissenting reasons sound in the Rule of Law and constitutionalism. Under Doré, as Brown and Côté JJ note, the traditional hierarchy of laws is perverted. The use of statutory objectives to moor the analysis means that rights can be infringed insofar as a decision limiting those rights is consistent with an enabling statute. This reverses how we typically understand constitutionalism. Under a system based on the Constitution, once a decision is found to limit a constitutional right, that decision is void insofar as it infringes the Constitution—statutes cannot save a decision that infringe the Constitution [305]. True, infringements of Charter rights can be justified under the Oakes test. But it is not only every statutory objective and means that are worthy of the Oakes imprimatur. Yet under Doré, “Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute” [305].

More seriously, the use of Charter values allows for potential judicial expansion of rights beyond the text of the Constitution—that which is enacted by the people through democratic processes. As Brown and Côté JJ persuasively note, “values” lack doctrinal rigour, permitting judges to define rights as they see fit. This perverts the relationship that courts should have to constitutional text. The relationship is that of an interpreter, not a creator. Constitutionalism is as much about control on elected representatives as it is on courts, who are supposed to faithfully elucidate the existing Constitution, not create a new one.

At issue in the SFL case was a prohibition on striking interfered with s.2(d) of the Charter, protecting the freedom of association. The majority (Abella J) concluded that s.2(d) incorporated a right to strike, despite the fact that the Court had previously held that the right to strike is not constitutionally entrenched in Canada. While there had been changes in the s.2(d) jurisprudence in the intervening years, those changes, in my view, fell far short of endorsing a free-standing right to strike.

Yet the majority did so, powered by the reasoning that “It seems to me to be the time to [the right to strike] constitutional benediction.” This reasoning—a weak, unsupported assertion of judicial power—was the target of Rothstein and Wagner JJ’s partial dissent.

The dissent in SFL focused on two problems with the majority’s acceptance of a right to strike. First, it noted that constitutionalizing a right to strike upsets the prerogatives of the legislature and the executive, the branches constitutionality assigned to “balance competing tensions in making policy decisions” [115]. As the dissent posits, “Governments, not courts, are charged with adapting legislation to changing circumstances in order to achieve a balance between the interests of employers, employees, and the public” [120]. But secondly, to the dissent, the majority’s approach was inconsistent with existing precedent of the Court, undermining certainty in the law [137, 139].

Rothstein and Wagner JJ’s dissent is so powerful because it resists the judicial usurpation (“benediction”) evident in the majority reasons. It asserts that the text of the Constitution, not judicial predilections or results-oriented reasoning, should be the starting point of constitutional analysis. It refers to the importance of precedent as the bedrock of the legal system; precedent which the majority overrules for no convincing reason. It asserts that the court cannot usurp the power of the legislature in an area traditionally assigned to political channels. These are reminders that courts should keep in mind in the era of Charter adjudication.

Dissents are sometimes valuable because they have the potential to tell the future. Sometimes it takes a long time for a dissent to find majority support. But in Edmonton East, at least part of Brown and Côté JJ’s dissent received majority support in the Supreme Court’s recent administrative law re-do, Vavilov.

The controversy in Edmonton East centred around the selection of the standard of review. The majority (Karakatsanis J) ultimately concluded that a presumption of reasonableness review should govern, based on existing precedent. That presumption was justified by (1) the legislative choice to delegate in the first place [22] and (2) expertise, which “inheres in a tribunal itself as an institution…” [33] and (3) access to justice [22]. But Karakatsanis J, in her reasons, actually ended up strengthening the presumption of reasonableness, by rejecting the idea that a contextual analysis should not often rebut the presumption of reasonableness [35], and the idea that statutory rights of appeal cannot rebut the presumption of reasonableness [28].

Brown and Côté JJ took significant issue with all of this. In their view, the existence of a statutory right of appeal on certain questions of law and jurisdiction led to the conclusion in this case that correctness was the applicable standard [78]. To Brown and Cote JJ, statutory rights of appeal could be a signal that the legislature intended more intrusive review [73]. And the dissent was also reticent about the majority’s broad claims of expertise [83].

Brown and Côté JJ’s dissent is justified in principle. The selection of the standard of review is a matter of determining what the legislature meant when it delegated power to a decision-maker. This is because administrative actors are vested with powers only so far as statute provides, and it is for the legislature to prescribe the degree of deference courts must afford decision-makers [85]. This means that courts must carefully parse the delegation of authority to decision-makers, and the statutory context, to determine the degree of deference owed: statutory rights of appeal play a role in this task, as they signal that legislatures intended courts to interfere with a lower administrative decision as it would in any normal appeal. And expertise is not a good justification for a broad-based presumption of expertise, because legislatures may sometimes delegate to a non-expert decision-maker, and a decision-maker might not be expert on all the questions that come before it [85].

All of this, as noted above, was recognized by the Court’s recent opinion in Vavilov. Statutory rights of appeal now serve as valid legislative signals that correctness applies, on questions of law. Expertise is no longer a valid consideration in determining the standard of review. Brown and Côté JJ foretold the future, then, in their Edmonton East dissent.

Not Good Enough

The Supreme Court re-writes the law of judicial review in Canada, but not nearly well enough.

In a return to its sometime tradition of releasing high-profile decisions in the run-up to Christmas, the Supreme Court yesterday rendered its long-awaited judgment in the Great Administrative Law Do-Over, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. Co-blogger Mark Mancini has already written about it, but while his post is very good, I disagree with him, and with the Court’s majority, on a number of fundamental issues. Hence the need for this post. In my view, while well-intentioned and an improvement on the status quo, the majority opinion (jointly authored, ostensibly, by the Chief Justice and Justices Moldaver, Gascon, Brown, Côté, Rowe, and Martin) rests on weak theoretical foundations, and is open to future manipulation by courts that do not share its spirit or find it inconvenient in a given case.


The majority holds that when the courts review decisions made by decision-makers in the executive branch of government and other bodies acting pursuant to authority delegated by statute (for example municipal institutions, professional regulators, etc), there is “a presumption that reasonableness is the applicable standard in all cases. Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law.” [10] (The presumption also doesn’t apply for issues having to do with the fairness of the procedure followed by the decision-maker.) The majority explains that “[r]easonableness review … finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers”, [13] but nevertheless goes on to point to a number of “constraints” on administrative decision-makers that such review must enforce, thus ensuring, in the majority’s view, that they do not exceed the bounds of the authority delegated to them.

The presumption of reasonableness applies to most questions of law that administrative decision-makers must resolve. According to the majority, this is because

[w]here a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. [24]

Conversely, however, a legislature might in fact have “prescribed that a court is to have a role in reviewing” administrative decisions, either by legislating a specific standard of review or by providing a statutory right of appeal from these decisions (rather than relying on the background constitutional requirement that judicial review of administrative decisions be available). In such cases, its prescription is to be obeyed. The standard of review on appeal from an administrative decision is to be the same as on appeal from the decision of a court, which means that, on questions of law, decisions are reviewed for correctness, rather than reasonableness.

The other cases where the correctness standard will be applied are those where it is required by the principle of the Rule of Law, which according to the majority are questions of constitutional validity, “general questions of law of central importance to the legal system as a whole”, and questions of jurisdictional conflict between two administrative decision-makers. The first category remains as it was prior to Vavilov. In particular, the majority pointedly refuses to comment on the implications of its decision for the line of cases originating in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which have urged deference to administrative decisions applying the Canadian Charter of Rights and Freedoms to particular disputes (as opposed to the validity of legislative provisions). By contrast, the second category expands, because it was previously supposed to limited to cases outside the administrative decision-maker’s expertise. Here and elsewhere, the majority rejects the role of expertise in determining the standard of review. (More on this below.) The majority also holds, however, that the Rule of Law does not require jurisdictional questions to be reviewed on a correctness standard.

With reasonableness thus asserted as the presumptive and dominant standard of review, the majority goes on to explain what it means. In cases where reasons are given by the administrative decision-maker, these become the focus of the analysis, which must be concerned not only with the outcome the decision-maker reached, but also with the reasoning process that led to it. The reasons must be read in context, however (notably “in light of the record” [96]). At this stage, contextual elements excised from the initial standard of review analysis, such as expertise, re-appear. While the majority insists that “reasonableness remains a single standard”, [89] of review, it also seeks to

account[] for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. [90]

In any case, however, the majority emphasizes the importance of the justification for the administrative decision being apparent from the reasons (and perhaps record) that support it. The justification cannot simply be added later, on judicial review.

The majority suggests that there are two main ways in which an administrative decision can be so flawed as to deserve to be qualified as unreasonable: “a failure of rationality internal to the reasoning process”, or “a decision … in some respect untenable in light of the relevant factual and legal constraints that bear on it”. [101] The first category points to requirements of logic and coherence. The second, to the principle that “[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers”. [105] These include, but are not limited to,

the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. [106]

Without fully summarizing the majority’s explanations of these points, I will note that it insists that administrative interpretations of law must not be permitted to “disregard or rewrite the law as enacted by Parliament and the provincial legislatures”. [108] The discretion permitted by these laws might be narrow in some cases and broad in others, but never unlimited: “[r]easonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it”. [109] Moreover, administrative decision-makers, no less than courts, are required to follow the “modern principle of statutory interpretation”, because

[t]hose who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. [118]

At the same time, the majority insists that reasonableness review on questions of law remains deferential; indeed it is no different from review “reviewing questions of fact, discretion or policy”, [115] and one should not expect “administrative decision makers … to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable”. [113] Even “questions relating to the scope of a decision maker’s authority may support more than one interpretation”, [110] although this will not always be so.


To repeat, I do not share the widespread view that the majority opinion represents a great achievement for Canadian administrative law. To me, it is a dubious compromise that can and likely will be applied in contradictory ways. Justice Stratas has compared Canadian administrative law to “a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan”. (1) The latest structure is built on theoretical sand, and I would not bet on its long-term stability.

Most fundamentally, the majority’s justification for doubling down on the “presumption of reasonableness” that emerged over that last decade is weak. As I explained here, in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Court had articulated three rationales for deference: legislative intent, the expertise of administrative decision-makers, and the absence of determinable answers to legal questions. The Vavilov majority explicitly repudiates expertise as a justification for judicial deference, and renounces the (always implausible) claim that legal questions always lack determinate answers that courts can discover. It is left with, and doubles down on, legislative intent.

But its understanding of legislative intent is essentially made up. There is no actual evidence that legislatures intend the courts to defer to administrative decision-makers, at least in the absence of privative clauses which often purport to oust judicial review completely, and to which Canadian courts have long refused to give full effect, treating them instead as signals for deference. The majority doesn’t even discuss privative clauses, or any other indications (short of enacting standards of review by statute) that a legislature actually intended the courts to defer, including on questions of law. It just assumes it knows what the legislatures want. Yet legislatures might delegate powers to administrative tribunals for any number of reasons, ranging from a confidence in their technical expertise, to a desire to politicize a particular area of the law, to rank protectionism. It’s far from obvious to me that all of these entail a presumption of deference. Besides, although it commendably chooses to give way to legislative intent in holding that statutory appeals must be treated as, well, appeals, the majority doesn’t quite give up on imposing its own view of statutory language, insisting that section 18.1 of the Federal Courts Act is nothing more than a procedural provision that tells the courts nothing about the standard of review. This perpetuates the misbegotten holding of Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, which Mark quite understandably listed as one of the worst decisions of the last half-century.

It would be much better to start with non-deferential correctness review as a default, and put the onus on the legislatures to indicate otherwise, ideally by legislation specifically addressing the standard of review or, perhaps, by privative clauses. That’s assuming that such indications are even constitutional, of course. I am yet to be persuaded that this assumption is warranted. I’m not persuaded of the contrary either, but I have my doubts. As I have explained here, Joseph Raz’s analysis of the Rule of Law seems to imply that administrative decision-making must be founded on correct application of stable legal rules by officials and, in order to ensure such correct application, review of their decisions by independent courts. In Vavilov, the majority (rightly, I think) implies that the principle of the Rule of Law can override legislative intent. That’s why constitutional and other centrally important questions trigger correctness review, whatever a legislature’s wishes. But the majority does not give nearly enough consideration to what the Rule of Law requires in the context of judicial review of administrative decisions.

In particular, while pretty much everyone from Justices Abella and Karakatsanis in the concurrence to Mark in his post cheers the abolition of the category of jurisdictional questions, I find it puzzling. Jurisdictional questions are supposed to be hard to identify and therefore a source of unnecessary confusion. Yet the truth is, everyone knows that such questions exist. The Vavilov majority itself mentions “questions relating to the scope of a decision maker’s authority”, [110] which is a plain-language definition of jurisdiction. In the companion case, Bell Canada v Canada (Attorney General), 2019 SCC 66, there was a statutory appeal right “on a question of law or a question of jurisdiction”. The concern really seems to be not so much that questions of jurisdiction are elusive and mysterious, but that, properly understood, this category is much broader than most people are comfortable with. It arguably includes most question of law. But that’s not a reason for pretending such questions don’t exist. If anything, it’s another reason for making correctness the default, if not the sole, standard of review on questions of law. The Rule of Law cannot permit the administrative state to expand its power just because courts shy away from the task of policing its boundaries.

The majority thinks it can address the concerns about the expansion of administrative power to which its embrace of reasonableness review gives rise by providing guidance on what such review requires. And there are genuinely commendable statements there, as Mark has observed. It is good that the majority recognizes, as some recent cases such as West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635 did not, that the powers or discretion of administrative decision-makers cannot be unlimited. It is good that it recognizes, contrary to Dunsmuir, that questions of law can, at least in many cases, be given definitive answers. And it is good that the majority instructs courts to be skeptical of the gaps in administrative decision-makers’ reasons, instead of filling them with “reasons that could be given” in support of their decisions.

I must admit, though, that I am puzzled by the attempt to square this recognition with the insistence on reasonableness review. Back in Dunsmuir, the Supreme Court said

[t]hat Reasonableness is a deferential standard animated by the principle that … certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. [47]

And of course in Vavilov itself the majority speaks of reasonableness being grounded in judicial restraint, which points to the same understanding of this concept. To me, talk of reasonableness review with only one reasonable outcome is blank prose. But perhaps that’s just an idiosyncratic understanding that I have.

More seriously, in addition to their conceptual problems, I think the reasons of the Vavilov majority contain a number of contradictions that undermine their attempt, if that’s what it is, to confine the excesses of the administrative state. For example, for all its insistence on a “robust” reasonableness review, the majority starts from the position that it is grounded in judicial restraint. Quite apart from my doubts about the usefulness of the term “judicial restraint”, I struggle to see how a standard of review can be robust and restrained at the same time. Or consider the majority’s warning that “[a]dministrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge” and that “‘[a]dministrative justice’ will not always look like ‘judicial justice'”. [92] This seems to contradict the majority’s acknowledgment, elsewhere in its reasons, that the Rule of Law is undermined when the outcome of a legal dispute depends on the identity of the person resolving it.

Perhaps most fundamentally, the insistence that administrative decision-makers cannot “arrogate powers to themselves that they were never intended to have” [109] is not easily reconciled with the refusal to impose correctness review on jurisdictional questions. The majority holds that, subject to a requirement of justification, “a decision maker’s interpretation of its statutory grant of authority is generally entitled to deference”. [109] To my mind, this means that the administrative state is still the arbiter of its own authority, whenever a legislature fails to use sufficiently precise language ― or where a court thinks that a legislature has so failed.

Much will depend, then, on which strand of the somewhat schizophrenic majority opinion future judges decide to implement when they follow Vavilov. This is, I suppose, the price to pay for cobbling together a seven-judge majority (and getting all seven to not only agree but also sign on to this majority’s reasons), but I’m not sure that the result was worth it.


No doubt, Vavilov is an improvement over the status quo ante. Some of the wildest excesses of judicial deference to the administrative state, for example the refusal to give effect to statutory appeal provisions and the practice of making up reasons not actually given by administrative decision-makers the better to defer to them have been condemned. Some of the theoretical problems of the previous jurisprudence, notably its reliance on a fictional account of administrative expertise, have been overcome.

At the same time, the future is still difficult to predict. For one thing, Vavilov leaves some questions unanswered. For example, its guidance on questions of central importance, a seemingly expanded category of correctness review, doesn’t amount to much more than “you know it when you see it”. Perhaps more importantly, there is contradictory language in the majority opinion that can be pressed in the service of more or less deferential review, and it remains to be seen what future courts will do with it.

And, fundamentally, Vavilov is still unsatisfactory because, like the pre-existing administrative law jurisprudence, it is built on foundations that mix a fictional account of legislative intent with a tendency to favour, if not as much as before, the power of the administrative state at the expense of the judiciary. The responsibility of the courts, which are independent and whose sole commitment is supposed to be to law, not policy-making, to say what the law is is an essential safeguard for freedom and the Rule of Law. By perpetuating judicial abdication, covered up as “restraint” and deference”, in the face of the administrative state, Vavilov fails to live up to the judiciary’s constitutional role.

Can the Administrative Process Achieve Social Justice?

Can administrative law achieve any ideal of social justice? The answer is perhaps yes. But there is nothing built-in the system to encourage this result. For that reason, deference to administrators because of the political aims they might pursue is a week reed on which to rest a more general case for deference.

This much was made clear to me when I read a recent piece by perhaps the most revered administrative law scholar in Canadian history, John Willis. Celebrated in the academy, Willis is best known for his piece on administrative law functionalism (John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53), laying out his view of administrative law as a body of law that should charitable to the aims and expertise of administrators—fundamentally, in their good-will as holders of the public trust, and in their ability to deliver impartial, efficient justice relative to the courts. The idea was that courts should defer to administrators for this reason. Willis was at heart a social democrat, as noted in this paper sketching an intellectual history of administrative law in Canada. The underlying philosophy was a belief in government, in contrast to a belief in judges, who were said to stultify the development of the social welfare state in favour of the common law. Indeed, Willis self-described himself as a “government man.”

The administrative law functionalists were politically-minded people, advancing a political agenda against the common law judges. But their argument for deference was also admittedly political. Says  Michael Taggart (at 257):

These left-leaning scholars were deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and the powerful, and defeating the purposes of statutes intended to further the interests of the workers, the homeless, and the least well-off in society.

One might see, here, a commitment to social justice broadly conceived. But the functionalists, and the way they taught us to think about administrative law, had significant blindspots, in an ideological sense. Not all causes were equally represented in their social justice mindset. Read, for example, this quote by Willis in his “Administrative Law in Retrospect” at 227, in which Willis decries growing trends to subject the administrative process to norms of transparency and accountability:

I am thinking particularly of a number of currently fashionable cults and the damage they may do to effective government if they are allowed to infiltrate too deeply into the procedural part of administrative law: the cult of ‘the individual’ and claims by prisoners in penitentiaries, complaining of their treatment there or applying for parole, to a formal ‘right to be heard’; the cult of ‘openness’ and claims by the press to the right to dig into confidential government files; the cult of ‘participatory democracy’ and claims by ‘concerned’ busybodies to the right to be allowed to take court proceedings to curb, say, alleged illegal pollution or alleged dereliction of duty by the police.

One need not belabour the point; to the extent Willis is representative of a functionalist mindset, the commitment to social justice only went as far as required to protect the prerogatives of government. This is an empty form of social justice, one more attuned to the preservation of government as a functioning institution than the use of government to achieve outcomes that improve social welfare. This might be a legitimate aim, though one should wonder why courts should have any involvement in propping up modern government. But let’s not pretend it is an ideal vision of social justice.

What’s more, the vision ended up being remarkably short-sighted. Nowadays, the administrative state is most problematic in areas which affect the least well-off, including those that Willis slagged in his article: prisoners, those suffering from pollution, immigrants and refugees, and social assistance recipients. How can a broader theory of delegation to administrators, based on the relative conservatism of courts, miss out on all of these people?

This illustrates a broader point, about which the real functionalist motivations shed light. Delegation to administrators, no matter the substantive or pragmatic justifications for it, is about power. Whether it is a delegation of legislative power, an executive power of appointment, or otherwise—delegation is about a transfer of a power from one entity to another. In this case, it is a transfer of power from one branch of government to another—most notably from the legislative to the executive. The power of the executive branch is aggrandized by delegated power. The functionalists, at least Willis, understood this, By trying to fend off pesky “prisoners” and “busybodies,” the functionalists directed their attention as much to courts as to litigants seeking to challenge executive action in courts. The effect of their doing so was the preservation of administrative power.

As I’ve previously written, the upshot of this is that power can be wielded in either direction. Executive power in particular can be put towards social welfare ends. But power is inherently neutral, and is shaped by the person wielding it. Administrative power, just as much as it can be used for social welfare ends, can also be used to stymie social welfare goals. This much the administrative law functionalists teach us.

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.

The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”. 

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.

Madison and Canadian Constitutional Law

Because we are in the slow days of summer, and I have a bit more time on my hands than I would usually have, I picked up a copy of Richard Matthews’ 1995 book, If Men Were Angels: James Madison & the Heartless Empire of Reason. Immediately, one’s Canadian eyes might begin to glaze over. Why should one care about an American Founding Father, specifically one that is somewhat more obscure in the common eye than Thomas Jefferson or Alexander Hamilton? To my mind, Madison raises a number of implications for contemporary debates in Canada about the nature of our government and the interpretation of our Constitution. In this post, I’d like to address two of those implications. First is the idea of deference to legislatures, and how Madison’s views serve as lighting rods for debate on the relative institutional capacities of courts and legislatures. Secondly, and more controversially, is the idea of to whom the Constitution “belongs” and whether it matters for the interpretive approach one adopts in relation to the Constitution.

First, a bit of background about the book and its subject. Matthews paints a picture of Madison as a “quintessential liberal,” who continues to, today, impact the way Americans view their government. Madison, who was a chief architect of the Constitution’s structural provisions and the Bill of Rights, is often placed on a lower rung than Thomas Jefferson in the hierarchy of American founders. And yet, for Matthews, it is Madison who has come to typify modern American government and life. This reality lies, for Matthews, in a quintessential difference in Madisonian and Jeffersonian politics. Matthews paints Madison, at heart, as a Hobbesian; or perhaps a Malthus. Either way, Madison does not view political life as a teleological good as the ancients did. Rather, political life is nasty, brutish, and short; and humanity leans inexorably towards degeneration. Madison is a political skeptic. To him, left to their own devices, humans will inevitably turn on one another, no matter how good or virtuous they might be. Hence, democracy had to be tempered because “had every Athenian Citizen been a Socrates, every Athenian assembly would still have been a mob (see The Federalist Papers, No. 55). For Matthews, “[f]rom Madison’s view of the individual, democracy was a fool’s illusion; in the long run, little could be done, beyond playing for time, to forestall the decline or to improve the human condition” [51] because “passion never fails to wrest the scepter from reason” (The Federalist Papers, No.50).

Madison’s prescription for this natural state of affairs was republican constitutionalism. If the human condition could not be improved, and if virtue could not be instilled, the least one could do is preserve a peaceful status quo. For Hobbes, the method to do this was the Leviathan. But for Madison, the separation of powers was the preferred prescription. By making “ambition counteract ambition” through the mutual jealousy of the branches of government, the worst vices of humanity could be tempered. And, by making a republic that extended over a large geographic area rather than a classic Athenian demos, the risk of factionalism decreased.

On the other hand, Jefferson’s political philosophy reveals a different sort of view of the human condition and political organization. For Jefferson, politics is a constitutive act of citizenship, in which the people constantly reinvent their laws to suit their circumstances. Hence Jefferson’s frequently-cited admonition that “[t]he tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” And Jefferson operationalized this reality: he believed that the Constitution and the laws should renew every generation, so that the dead do not bind the living in their constant fulfillment of democratic, civic republicanism. Jefferson obviously viewed humans as far less fallible than Madison did.

Matthews views the matter differently than Madison, adopting a Jeffersonian position on the matter. For Matthews, “Madison’s liberal dream has, as he knew it would, turned into a nightmare for an increasing number of marginalized Americans” [279]. And this rings somewhat true: even more so than in 1995, the ability of people to connect over the Internet and to peddle in fake news and “deep fakes” has made it much easier to bypass republic protections and create mob rule.

This political theorizing seems far off from the world of Canadian law, and so how does any of it apply? As I noted above, I think there are real reasons why Madison’s thinking, Jefferson’s philosophy, and Matthews’ book all have something to say about contemporary debates in our own institutions. Take first the question of judicial deference to legislatures. In Canada, courts will defer to legislatures on constitutional questions under the Oakes test. If one adopts the Madisonian position, why is there any reason to defer to legislators? The question rings powerfully in the context of Canadian law, where there is a more closely-tied legislature and executive, and where the executive is responsible to the legislature. In such a case, there are no separation of powers protections to prevent the worst human vices. Couldn’t the legislature or executive simply channel mob rule?

There is some evidence of this, as co-blogger Leonid Sirota and I wrote about here in reference to the SNC-Lavalin affair. The example shows that humans—of which politicians are a special class—will not act properly when the incentives aren’t right. The lure of winning an election and doing whatever it takes to do so might be too great a Madisonian evil. After all, it was Justin Trudeau’s justification in the SNC-Lavalin affair that “jobs” were the driving force behind his attempted interference in the prosecution of SNC-Lavalin. This leaves us wondering whether there is any reason for courts to defer to legislatures controlled by calculating executives.

But one must take the situation as it is. In this sense, Hart and Sacks and the legal process school had something right: institutional competency matters. And while legislatures are apt to turn into ineffectual mobs (look at the US Congress and the issue of gun control), or to focus on their own electoral futures, we are talking here about deference to legislatures on constitutional questions. Constitutional questions are more questions of policy-resolution than legal interpretation in the modern day. Of course, this is not normatively desirable or necessary. But it is the state of the world. And if that is the case, legislatures should have a legitimate say—if not a final one, because that responsibility is the judiciary’s—in how issues of policy are resolved. This says nothing of the fact that the people are the ultimate control on government, and for that reason, are always the best control on legislatures appealing to the worst of us.

Finally, I want to say a note about Jefferson’s living constitutionalism. Madison, I think, provides a response that is still apt today:

Would not a Government so often revised become too mutable to retain those prejudices in its favour which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age?

Madison advances a valid epistemological reason for refusing to throw away the past, one I find convincing instinctively. But there is an additional reason why the principle of constitutionalism means that we cannot escape the past. As Hayek notes, the distinctive American contribution to the Rule of Law was the addition of the principle of constitutionalism, explained by Madison as the idea that the Constitution is supreme over ordinary law; that it is “fundamental.” The choice to make supreme certain elements of law is an intentional one, taken by a people after the expense of extensive political capital and energy. It is a sacred act. When it comes to bills of rights, the choice to make certain rights and freedoms beyond the reach of ordinary legislation is a deliberate choice to remove from the sphere of political debate those rights and freedoms. That, too, is a sacred act. The reason why the Constitution cannot be automatically renewed every generation—short of the amending procedure—is that to do so would disrespect the original choice to remove certain, important rights from the sphere of debate. This is an important formal act that should be presumptively respected because it represents the democratic choice of the people at a select time. That choice, absent the amending procedure, should not be abridged by an extralegal “renewal” of the Constitution; especially by courts. This, of course, is slightly different than saying that the people made the choices they did for good reasons.

I could write more, but this post is long enough. It is enough to say that Madison’s politics do view humans as inherently flawed, and these flaws reverberate through all of our institutions. It is fundamentally a question, though, of asking with respect to a particular legal question who is worse. Sometimes courts are best suited to deal with issues, but other times they are decidedly not.