Squaring the Public Law Circle

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law in La-La-Land

The post-truth jurisprudence of Canadian administrative law

Last month, the Supreme Court issued a decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, which deals with the evergreen issue of determining the standard on which a court must review the decision of an administrative tribunal. I wasn’t able to comment on this case at the time, because 240 exam papers landed in my office a couple of days thereafter, but I would like to return to it now, because in my view the majority opinion shows quite clearly what a fantastical creature Canadian administrative law has become.

Justice Karakatsanis, writing for the majority, describes the circumstances of the dispute as follows:

Alberta residents may dispute their municipal property assessment before a local assessment review board. When one Edmonton taxpayer did so, the assessment review board decided to increase the assessment the taxpayer had disputed. [1]

The question is whether the board in question had the authority to increase ― or could only decrease or refuse to change ― the assessment disputed before it. The board obviously concluded that it did, but did not explain the decision ― admittedly because the taxpayer did not deny that it had the requisite authority. It is only on a subsequent appeal to the courts that it did so. How, then, must the board’s tacit, unexplained, decision be treated? Is it entitled to judicial deference, or can the courts simply substitute their own view of the matter?

* * *

Defer, says the majority. In the Supreme Court’s administrative law jurisprudence, deference is the presumptive stance, including on questions of law such as the one at issue.

This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [22]

Only when the question at issue falls within one of a few exceptional categories is the “presumption of deference” rebutted. In the majority’s view, none apply here. In particular, the fact that the legislation involved specifically provides for an appeal from the administrative decision on a question of law, as was the case here, does not matter. The administrative law framework, with its presumption of reasonableness, is to be applied regardless.

As Justice Karakatsanis notes, this framework acknowledges that “[t]he presumption of reasonableness may be rebutted if the context indicates the legislature intended the standard of review to be correctness” [32]. The dissenting judges would have found that this is the case here, because the board’s expertise lies not in the interpretation of its enabling legislation, which is at issue here, but rather in property valuation, which is not. Justice Karakatsanis is unmoved by this:

Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer. … [A]s with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution. [33]

Having concluded that she must defer to the board’s decision, Justice Karakatsanis then face the question of how to defer to a decision that is entirely unexplained. After all, as the still-leading (although perhaps increasingly from behind) case on reviewing administrative decisions,  held, “reasonableness ‘is … concerned with the existence of justification, transparency and intelligibility within the decision-making process'” [36; citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]. But not to worry: in that same case, the Supreme Court went on to say it is enough to consider the reasons that could have been given for the decision, even though they were not, and to defer to them. This is what Justice Karakatsanis does, for 20 paragraphs. She concludes that board’s decision was reasonable.

* * *

If this is not post-truth jurisprudence, it’s pretty close. The Oxford English Dictionary, which recently chose “post-truth” as its word of the year, says that it describes “circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”. The Supreme Court’s vision of administrative law might not be the product of appeals to emotion, but there is certainly a great deal of personal belief unburdened by a reckoning with objective facts there.

Start with the claim that the presumption of deference is all about respecting legislative intent to grant decision-making authority to administrative tribunals rather than courts. If the Court really cared about legislative intent, wouldn’t it ask itself what the purpose of providing a statutory right of appeal on questions of law, as the legislature had done in this case, is? The majority does no such thing. It is content to affirm the irrelevance of either the text or the purpose of such provisions and holds that even if the statute says “appeal”, the courts must read “judicial review” and defer. Yet as the dissent cogently points out, the statutory text is pretty clear that the legislature wanted some questions of law (those deemed important enough by a judge) to be resolved by the courts. For all its show of deference to the legislature, the majority only cares about its own views about how administrative law should operate.

Next, consider the claim that the administrative decision-maker’s expertise entitles it to judicial deference. The majority does not discuss the expertise of the board whose decision is at issue here. It does not meaningfully respond to the dissent’s argument that the board has no particular expertise on the question before the Court. It is content to state an airy generality: the very existence of a specialized tribunal is enough to make it an expert. Why? It seems almost as if the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it. Here’s news for the Court: that’s not true. The dissent’s take on this issue is, once again, more realistic:

an administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional. [83]

As mentioned above, the dissent would have found that the question at issue here was not within the scope of the board’s expertise. The majority, once again, is uninterested in facts or, as the dissent also notes, in legislative intent (which in some case may well be to create a decision-maker without legal expertise), and ignores them the better to apply its beliefs about the proper relationships between courts and administrative decision-makers.

And all that for what? Not to actually defer to the supposedly expert board’s reasoning ― but to make up a reasoning that the board may or may not have come up with on its own, and defer to that. As Paul Daly put it (aptly, it goes without saying),

Karakatsanis J. points to multiple features of the elaborate statutory scheme that might be said to support the alternative interpretation and explains how each of them is nonetheless consistent with the Board’s interpretation (if one can call it that), much of which is supported by reference to a decision made by another body that “formerly” had appellate jurisdiction from the Board [44]. This, frankly, is quite bizarre. Who knows what the Board would have said if these points had been made to it? Indeed, who knows what the Board will say in future cases when these points are made to it? (Paragraph break removed)

It’s as if Justice Karakatsanis were playing chess with herself, and contriving to have one side deliberately lose to the other. This, admittedly, is not a post-truth reasoning. It is outright fiction.

* * *

As you can probably guess, I do not like any of it one bit. Perhaps this is not a very educated feeling. I have not thought about administrative law as much as prof. Daly, for instance, or many others. (I do have plans to get more serious about it, but it’s a medium- or even a long-term project.) I hope, however, that there may be some value in even an uneducated person stating the view that the emperor has no clothes, and that his proceeding any further in this state is offensive to public decency. What is more difficult for an uneducated mind is to say what dress the emperor ought to put on. Prof. Daly argues

that the only way to move the law forward within the existing framework without starting again from scratch is to apply reasonableness review across the board, with the important caveat … that the range of reasonable outcomes will be narrower in cases featuring an appeal clause.

I cannot comment on this suggestion, beyond saying that I am, in my uneducated state, extremely uneasy with deferential review of administrative decisions on questions of law. I will say, though, that I’m not at all sure that starting again from scratch is not the right thing to do, or even the only possible thing to do.

A Voice of Moderation?

Thoughts on the Chief Justice’s Speech on “Democracy and the Judiciary”

Her court might not be very busy ― it had decided only 19 cases this year through May 31, the lowest number this century ― but Chief Justice McLachlin certainly is. Another Friday, another speech. After the one she gave at the Université de Montréal‘s symposium on Supreme Courts and the Common Law, there was one given on June 3 at the Empire Club of Canada. I criticized the Chief Justice’s remarks at the Université de Montréal over at the CBA National Magazine’s blog, because to me they suggested a misunderstanding of and a lack of belief in the common law, and indeed the Rule of Law itself. The Empire Club speech, in which the Chief Justice outlined her views of the history, current role, and future challenges of what she called “the third branch of Canadian governance [sic] – the judiciary” at times struck a different tone. Yet it too contained its share of historical mistakes, and ultimately was less of a statement of judicial moderation than it was perhaps supposed to be.

One interesting, and arguably telling, historical inaccuracy occurred in the Chief Justice’s description of the history of judicial independence. The Chief Justice traced this constitutional principle to the thought of

jurists like Lord Coke, who maintained that the task of judges was to apply the law as they saw it, not to do the King’s bidding. These jurists took the view that to do justice between the parties in the cases that came before them, judges must not only be impartial, but be seen to be impartial. And for impartiality, actual and perceived, they must have guarantees of independence, notably, fixed terms of appointment, fixed salary and security of tenure.

There is some truth here. Coke did value adjudicative impartiality ― indeed, as Fabien Gélinas has pointed out (at 12), it was Coke who popularized, and perhaps even coined, the maxim “nemo iudex in causa sua.” And, in Prohibitions del Roy, Coke took the position that judges had to decide cases according to law, and that the King, not being learned in the law, could not adjudicate. But it would have come as news ― though perhaps welcome news ― to Coke that judges must have guaranteed tenure. He was, after all, dismissed from judicial office after one run-in too many with James I, and that king’s son and grandchildren were also quite adept at dismissing recalcitrant judges. Judicial independence and security of tenure did not become part of the English constitution until the Act of Settlement, 1701. Importantly, as Peter Cane explained at the Supreme Courts and the Common Law symposium, it was part of a bargain of sorts whereby courts, as well as the Crown, submitted to Parliament and acknowledged its sovereignty. It may well be that the Chief Justice is just a little unclear about 17th-century constitutional history ― but it is still noteworthy that she is unclear in a way that elevates the role of jurists and judges, and obscures that of Parliament.

The Chief Justice’s take on Canadian legal history is also curious. She claims, for instance, that “[f]or eighty years after Confederation, Canada’s legal system functioned as a shadow replica of England’s legal system,” in that “England’s laws became Canada’s laws.” This is an exaggeration. The Canadian judicial system was never quite a replica of the English one (there being no distinct courts of equity, for instance) (UPDATE: See Jan Jakob’s comments below), and the Colonial Laws Validity Act, 1865 made clear that British legislation did not apply in Canada and in other colonies unless it was specifically intended to. The Chief Justice also seems to suggest that the Supreme Court was an afterthought for the fathers of confederation, saying that “befitting its secondary status, [it] wasn’t created until 1875.” Yet the majority opinion in l’Affaire Nadon, which the Chief Justce co-signed, points out that the issue was in fact considered, although “[a]t the time of Confederation, Quebec was reluctant to accede to the creation of a Supreme Court because of its concern that the Court would be incapable of adequately dealing with questions of the Quebec civil law,” [50] and that Sir John A. Macdonald “introduced bills for the establishment of the Supreme Court in 1869 and again in 1870 in the House of Commons.” [79] The Chief Justice seems to take a rather dismissive view of the early days of Canada’s early legal system in order to extol the modern Supreme Court. This rhetorical move is similar to the one she made in her Université de Montréal speech, in which she contrasted the supposed reasoning styles of pre-20th-century and modern common law judges. Yet in both cases, the contrasts are less stark, and the continuity between old and new is more important, than the Chief Justice lets on.

Another statement of the Chief Justice that is worth discussing is her assertion that the fact that “[i]n the lead-up to 1982, the government of the day took as its goal the creation of a ‘just society'” was a “major change[] to the Canadian legal system.” For one thing, the Chief Justice’s chronology might be a bit off again ― Pierre Trudeau first ran on the “just society” slogan in 1968. (In 1972, a heckler asked him where it was. Trudeau retorted that he should ask Jesus Christ, who’d promised it first.) More importantly though, I do not  understand how a political statement by the government of the day can amount to a “major change to the … legal system.” The Chief Justice seems to be saying that Trudeau’s articulation of the just society is some sort of benchmark by which to assess the progress of our polity, but even assuming that that is true ― and a great many people would disagree ― I still don’t see how benchmark is a legal one. Of course, to some extent Trudeau’s ideas are reflected in the Canadian Charter of Rights and Freedoms ― but the Charter was never meant to provide a complete code of social justice, and the courts’ duty is to apply the Charter as it has been enacted, and not to expand it forever until the day the just society arrives.

It also seems to me quite inappropriate for a judge to take up what was, for better or for worse, a partisan slogan and try to make it into a constitutional ideal. By doing so, the Chief Justice only gives grist for the mill of those who already think that the Charter, and the courts that enforce it, are essentially Liberal self-entrenchment devices. As I wrote in a Policy Options Perspectives post a few months ago, it is dangerous to associate a part of our constitution with a political party ― and that party’s changing fortunes. When these fortunes sag, the constitution must retain its exalted position as the protection of our rights. I urged impartial observers to keep that in mind and avoid associating the Charter with the Liberal party. I had no idea that the Chief Justice of Canada, of all people, would need the same reminder.

While the Chief Justice’s take on Canadian legal history stresses the Supreme Court’s independence and importance, and perhaps stakes out for it a role as an engine of social progress, her other comments seem intended to show that the Court is actually a modest institution aware of its place in the constitutional structure. Along with other institutions, says the Chief Justice, the Court must strive “to maintain the proper constitutional balance between the judiciary and the legislative and executive branches of governance.” It is “Parliament and the provincial legislatures,” not the courts it seems, that “are pre-eminently suited to” “make law” ― quite a contrast to the Chief Justice’s enthusiasm, in the Université de Montréal speech, for judicial development of the law. Moreover, when reviewing the constitutionality of legislation,

courts … must approach the laws adopted by Parliament and the legislatures with due deference for their preeminent law-making role and their ability to arrive at optimal solutions through debate and research. Such deference is particularly important on complex social and economic issues.

Similarly, when reviewing administrative decisions, “the courts show appropriate deference for the expertise and mandate of administrative actors and agencies.”

What to make of this description of a modest judicial role, which seems to stand in tension with the Chief Justice’s claims regarding the exalted standing of the courts ― and her rather ambitious remarks made a week previously? Perhaps the modesty is a sham, or a sop to the particular sensitivities of last week’s audience (though I don’t know what these sensitivities are). But it seems to me that there is more to it than that. The Supreme Court really does believe in and practice deference to both legislatures and the executive when reviewing their decisions ― although it does so inconsistently.

Sometimes it is bold, as when it strikes down laws that try to limit the government’s expenditures on courts on the basis of little more than constitutional principles. Sometimes it is meek, as when it insists that it will not require administrative decision-makers to apply the law correctly, never mind the facts. And it is not always easy to anticipate which it is going to be in a given case ― or even to tell which it is in an already-issued opinion. (I’m thinking, for instance, of Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, of which I could never tell whether it was a capitulation disguised as a threat, or a threat disguised as a capitulation.)

Perhaps the Chief Justice believes in a sort of departmentalism-lite, whereby each branch of government is presumptively entitled to make its own legal and constitutional determinations but, unlike with real departmentalism, the courts keep the last word if they think that the other branches are really wrong. Such a doctrine might reconcile the exaltation of the Supreme Court, and a belief in the judges’ right to do as they please with judicially-articulated doctrines, with the insistence on deference to the other branches of government. (It would also fill the empty cell in the little table of attitudes to judicil review that I offered here, to sit alongside “conservative” or Diceyan, “progressive,” and “classical liberal” or “libertarian” approaches.) Never mind whether such a doctrine is good or justified. (I don’t think it is.) The Supreme Court is, again, too inconsistent to claim its mantle.

Maybe there is some other way to make sense of the Chief Justice’s speeches. In any case, it is worth saying that the seeming inconsistency of her positions is in itself a source of discretionary if not arbitrary power. Benjamin Oliphant and I have described the same phenomenon in the realm of constitutional interpretation in our work on originalism: the Supreme Court fails to adhere to any interpretive methodology with much consistency, and thereby maintains a roster of alternative approaches on which it can draw at its convenience, while avoiding scrutiny and criticism for deviating from previously-articulated principles. Whether or not they are intended to achieve this, the Chief Justice’s  speeches present a number of different conceptions of the Supreme Court and its role, which allows it to strike whatever pose it deems appropriate in any given case. This may be to the advantage ― the short-term advantage, anyway ― of the institution that Chief Justice McLachlin leads, but this advantage is gained at the expense of principle, transparency, and ultimately the Rule of Law itself.

A Cost/Benefit Analysis of Judicial Review

I want to come back to the issue of judicial review ― both of legislation and of administrative decisions ― and deference, about which I wrote earlier this week. In that post, I suggested that our views on deference in judicial review are a function of our deeper beliefs on such principles as democracy and the Rule of Law, as well as on the institutional competence of the various branches of government, and that a coherent set of such beliefs could produce superficially inconsistent views about the degree of deference appropriate in various sorts of judicial review. I would like to expand on that idea, or perhaps just to restate it, in a way that I find helpful to clarify things: by means of a cost/benefit analysis.

Note that the following is likely to be boring, trivial, unoriginal, or simply stupid. It will certainly be exceedingly long. It’s an attempt to think some things through, out loud, and to invite constructive comments from those bold or kind enough to read it. (“This is rubbish” can be a constructive comment in this instance.) The claims I will make are tentative, and the terminology I use even more so. And I’m not sure what, if anything, follows even if everything I say here is right. This may well be a purely intellectual exercise. You’ve been warned!

* * *

To state what should be ― but, I suspect, isn’t always ― obvious, judicial review is costly. Every legal procedure (and indeed any human activity) has costs of course, but judicial review is more costly than other forms of litigation, in a number of ways. Perhaps most fundamentally, all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested (though of course the parties may choose to forgo the benefit of an authoritative determination and settle their dispute by themselves, or turn to arbitration instead). But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined, either by the legislature or by an administrative decision-maker. Judicial review is an attempt at overturning an already-existing authoritative determination. We could live without it ― and we do live without it in some areas. Judicial review has other unique costs too, to which I will return shortly.

The costs of judicial review fall into two general categories. I will refer to the first one as that of operational costs. The operational costs of judicial review mostly result from the diversion of resources ― people, their time and energy, and money ― to judicial review from more socially useful operations. (These more useful operations range from the practice of the sorts of law that is actually necessary to determine or to change the legal position of persons to the flipping of burgers, or anything in between.)

The operational costs of judicial review are of two types. Direct operational costs include of the resources actually expended on the litigation of constitutional and administrative cases ― the time of the lawyers who argue these cases and of the judges who decide them (instead of deciding other cases), the clients’ costs, etc. These costs also include the uncertainty about the validity of legal decisions, and thus about the legal position of persons, that persists while a case is being litigated. Indirect operational costs consist of the resources that are expended due to the existence of judicial review, but not on judicial review as such ― for example, the time that I spend on writing this post, and the time you expend on reading it, which might have been spent on more socially productive (if not more enjoyable!) activities if judicial review did not exist.

The other general category of costs of judicial review arises from the courts’ decisions; I will call them the decisional costs. One significant source of such costs is the democratic loss that occurs, most obviously, when courts invalidate legislation enacted by elected representatives of the people, and perhaps also when they invalidate decisions made by administrators whom these elected representatives entrusted with the making of such decisions ― though whether judicial review of administrative action really undemocratic is debatable. A somewhat different source of decisional costs of judicial review is overenforcement: the invalidation of statutes that are not actually unconstitutional or administrative decisions that are not actually ultra vires (or unconstitutional). The converse of overenforcement is arguably the over-legitimation of those statutes or decisions that are not invalidated. Legislators and administrators can see  and present their decisions being upheld as a sign of approval, an imprimatur, even though these decisions may still be not only unwise, but even morally wrong.

We can think of other decisional costs of judicial review as well, but these are more speculative. One example is the indifference to constitutional issues that judicial review is sometimes said to foster among politicians (who simply rely on courts to tell them whether what they do is constitutional). I suspect, as I explained here, that politicians do no better in those areas where judicial review is not available. Another cost of judicial review, according to some, is the erosion of precedent caused by constitutional adjudication. This argument, in my view, is interesting but overstated. Yet another possible but speculative cost is simply judicial self-aggrandizement.

Note, by the way, that almost all of the costs of judicial review are generated in much the same way by review of legislation and that of administrative decisions. It is only those I describe in the previous paragraph that seem to be unique to the constitutional context, and I’m not even quite sure that they are. And of course they might not be real costs to begin with.

* * *

Of course, judicial review has a number of benefits too. The one common to all forms of judicial review is the enforcement of the Rule of Law, in the core sense that “government in all  its actions is bound by rules fixed and announced beforehand” (F.A. Hayek, The Road to Serfdom, Ch. 6). These rules include both the constitution, which binds the actions of the legislature as well as of the executive, and statutes and common law rules that bind the action of the administration. At least so long as the laws and administrative decisions invalidated on judicial review are unconstitutional or illegal more often than not, judicial review increases the government’s overall compliance with the Rule of Law.

Other benefits are specific to the various substantive categories of judicial review. Rights-based judicial review (whether of legislation or of administrative decisions) increases the legal system’s respect for individual and minority rights; federalism-based judicial review increases protects federalism (and thus democracy); review of administrative decisions for procedural fairness serves to protect the procedural aspects of the Rule of Law. Judicial review of legislation is also sometimes said to serve a sort of communicative function, educating the people about the constitutional values and commitments of their polity, but I am very skeptical about such claims.

* * *

So how do these benefits compare to the costs of judicial review? Well, as I suggested last week, your answer to this question probably depends on the sort of judicial review we are talking about, because your assessment of both the costs and the benefits of judicial review probably varies depending on the circumstances ― and your legal culture and ideology.

On the cost side, you might think that some forms of judicial review, for example those involving complicated facts, have unacceptably high operational costs. Or you might think that some forms of judicial review are more likely than others to result in over-enforcement. For example, if you accept the post-New Deal consensus view of the “Lochner era” in American constitutional history, you think that overenforcement is likely to happen when courts review laws dealing with economic regulation and social policy. If you tend to view administrative decision-makers as experts and judges as amateurs, you are probably worried about overenforcement resulting from judicial review of administrative decisions. There are, of course, many more examples. And of course your assessment of the costs of judicial review depends on how you interpret and value democracy. If, like Ronald Dworkin, you think that rights-based judicial review is an integral part of a democratic political structure, you won’t view this type of review as having democratic costs; if, like Jeremy Waldron, you value decision-making by elected legislatures very strongly, your estimate of the democratic costs of all judicial review of legislation will be very high.

Your assessment of the benefits of judicial review similarly depends on your interpretation of the various principles judicial review protects, and the importance you attach to them. If you think that the Rule of Law requires legal rules to have a single meaning, and that it further requires courts, rather than decision-makers influenced by politics, to have the last word about this meaning, you will think that judicial review has considerable benefits. If you think that the Rule of Law can accommodate multiple meanings of legal rules, then judicial review is less valuable, quite apart from any concerns about overenforcement. Similarly, if you don’t think that federalism is an important constitutional principle, you will be skeptical of the value of federalism-based judicial review, even if you are not worried about it resulting in overenforcement and are unconcerned about its democratic costs. Again, there are of course many more examples.

How to balance the costs and benefits of judicial review is, of course, a difficult question. People are bound to disagree about it. They might disagree about the balancing even if they generally agree about things like the institutional competence of courts (and the attendant risks of overenforcement) and the interpretation of constitutional principles. But of course people also disagree about each of these things. The existence of widespread agreement about judicial review is almost puzzling ― but it is actually an illustration of legal ideologies at work. An ideology tells its adherents both how to interpret the relevant principles and which values to assign to them, and thus obviates the need for individual balancing ― and prevents disagreement.

The bottom line, despite these complications, is clear: if you think that, for a given type of case, the benefits of judicial review are greater than the costs, you favour judicial review. Otherwise, you want the courts to stay away.

* * *

So how does deference factor into this analysis? It seems to me that deference, whether total or partial, serves to reduce both the costs and the benefits of judicial review. Deferential review is less costly than the non-deferential kind, though the reductions are not equal among the different forms of costs. Clearly, the decisional costs of judicial review go down as the degree of reference to legislatures or administrative decision makers goes up, since overenforcement becomes less likely, and deferential review is less undemocratic. Direct operational costs of deferential review should be lower too, at least in theory, because fewer cases will be brought when potential litigants know they are less likely to succeed due to a higher threshold for judicial intervention. In practice, it may well be the case that litigants will be undaunted at the prospect of a court that defers to government. Certainly the standard of review is not the only consideration that determines whether a litigant will turn to the courts. Indirect operational costs are not reduced by deference at all. Note, by the way, that it is possible that the very existence of a variety of standards of review introduces operational costs of its own, both direct and indirect, as litigants spend their time debating the amount of deference that should apply in their cases.

Deference also reduces the benefits of judicial review. Insofar as judicial review serves to uphold the Rule of Law, individual rights, federalism, procedural fairness, or whatever other substantive value, deferential review presumably accomplishes these objectives less well than aggressive review. Of course, one can think that, in a given area, courts are actually less good than legislatures or administrative decision-makers at upholding these values ― but then you should oppose judicial review in that area, and not merely argue for more deferential review.

Deferential review is thus a compromise. It is less effective, but also cheaper than the non-deferential sort. Importantly, however, there is no reason to believe that costs and benefits will be reduced by the same amount for a type of cases. Conceivably, costs will sometimes go down by a lot whereas the reduction in benefits will be more limited. This will not matter in those cases where the resulting balance of benefits minus costs will still be negative, making judicial review a bad idea. In other cases, however, deferential review will be preferable to the alternatives of either non-review or non-deferential review. Deferential review might also be attractive in those situations where the costs of non-deferential review are seen as intolerably high in an absolute sense, regardless of the benefits they can bring about. Deference can bring the costs down to an acceptable level, even if the benefits go down by as much or more.

* * *

Well, there you are. I said this would boring and long, and so it was. I’ll have more exciting stuff, starting with a review of the federal government’s argument in Aniz Alani’s Senate vacancies case, later this week.

Absence of Evidence…

Last week, the Alberta Court of Appeal delivered an interesting decision rejecting a constitutional challenge to the province’s prohibition on private health insurance brought by way of an application. In Allen v Alberta, 2015 ABCA 277, the Court held unanimously that the applicant hadn’t provided a sufficient evidentiary basis for his challenge, and that it should have been brought by way of an action and adjudicated after a full trial. This might have been the correct result, but the route the Justice Slatter, the author of the leading opinion, took to get there is in many ways disturbing. It illustrates, I think, some worrying tendencies in Canadian constitutional law generally, and also the difficulties which challenges to the government’s healthcare monopoly specifically will face.

* * *

In a way, the case is a very simple, and also a very Canadian, one. The applicant had suffered a back injury playing hockey, and even as his pain was getting worse and worse, he was put on a two-year long waiting list for an operation. The pain was too much, and he finally decided to undergo surgery in the United States, at his own (very considerable) expense. And thereafter, he went to court, seeking a declaration that the provision of the Alberta Healthcare Insurance Act that barred private health insurance from covering healthcare services provided by the public insurance plan was contrary to s. 7 of the Canadian Charter of Rights and Freedoms.

The argument was that the government monopoly on health insurance resulted in people having to wait a long time for healthcare, and to suffer as a result, thus breaching the “security of the person” guarantee of s. 7. To support his claim, the applicant submitted “a number of medical reports and proof of expenses he had incurred,” [7] and relied on the Supreme Court’s decision in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, which declared a similar restriction on private health insurance contrary to Québec’s Charter of Human Rights and Freedoms.

For the Court, this was not good enough. After a heartfelt paean to the Canadian healthcare system, Justice Slatter went on to discuss “the importance of using appropriate procedures, and having a proper evidentiary record, when reviewing statutes for constitutionality.” [19] Constitutional cases, in his view, are not just ordinary cases:

Cases in which the appointed judiciary override the will of the democratically elected legislatures fall into a special category. Our constitution and the parliamentary system of government recognize the “supremacy of Parliament”. The presence, however, of an entrenched constitution now provides an important exception to that principle; statutes that are clearly inconsistent with the constitution are of no force or effect. [20]

For this reason, it is important that “the proper procedural safeguards [be] observed.” [21] While the citizen must have an opportunity to challenge the constitutionality of a statute, “fair[ness] to the legislature” means that the government must be able to defend it, and “fair[ness] to the court” requires that it have “a reasonable record on which to exercise this important component of its jurisdiction.” [21] The record here is not sufficient. There is a “presumption … that constitutional cases will be decided on a full evidentiary record, including, where appropriate, the evidence of expert witnesses.” [23] Evidence is especially important in constitutional cases because a declaration of unconstitutionality must, pursuant to s. 52 of the Constitution Act, 1982 determine the “extent of the inconsistency” between the impugned statute and the constitution, and “[t]he only way to know what is that “extent”, is to have a full evidentiary record with complete factual conclusions about it.” [26]

* * *

Justice Martin, in a rather terse concurrence, agrees with this reasoning, and would go no further. While Justice Slatter continues, to discuss Chaoulli and the applicant’s claim that it effectively settles the case, I will pause here and comment on this part of his reasons. As I said above, the conclusion that more evidence was required in this case may well have been correct. To be sure, it seems unlikely that the causal relationships between the prohibition on private health insurance and the existence of lengthy waiting lists established in Chaoulli are somehow not present in this case. A legislature that proceeded on the assumption that there was such a relationship would be acting rationally. But it is at least arguable that a court needs more than an assumption, no matter how plausible. It needs evidence. Allison Orr Larsen’s warnings about the dangers of “factual precedents” are apposite in the Canadian context. It may well be that a fuller record, including expert reports would have been necessary here, though I’m not sure I understand Justice Slatter’s insistence on the need for a trial to dispose of this case, as opposed to an application proceeding on a more developed record.

That said, if Justice Slatter is right, his conclusion ought to be disquieting. It confirms the worry that Sonia Lawrence expressed in the wake of the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and that I have been dwelling on ever since, that mounting a constitutional challenge to a statute may be becoming prohibitively complex and expensive. Marni Soupcoff, of the Canadian Constitution Foundation, which is mounting a challenge of its own to government healthcare monopoly, makes this case in a compelling op-ed in the National Post. Constitutional litigation is at danger of becoming the preserve of (relatively) well-funded public interest litigation outfits (such as the CCF). The Charter was supposed to be “the people’s package” of constitutional reform, but the people risk being prevented from bringing Charter cases by the requirement that such cases be supported by expert reports and proceed by way of trial rather than a less expensive procedure. Justice Slatter’s claim that there exists a “presumption” to this effect is particularly worrisome ― all the more so since he provides no indication as to how this presumption might be rebutted.

I want to comment on a couple of other points in the part of his reasons I have been discussing. The first one has to do with the nature of judicial review of legislation and the courts’ role in constitutional cases, on which Justice Slatter expounds in the excerpt of par. 20 quoted above. That passage contains a number of serious mistakes. For one thing, the constitution does not “recognize the ‘supremacy of Parliament'” ― those words appear nowhere in the Constitution Acts, and while Parliamentary sovereignty is arguably one of the constitution’s underlying principles, it is subject to the limits imposed by constitutional text and other such principles. For another, it is wrong to speak of an entrenched constitution that limits Parliamentary sovereignty as something new, something that only “now” exists. Canada has always had an entrenched constitution, and Canadian courts have always invalidated Canadian laws inconsistent with it, although the legal rationale for this practice did indeed change in 1982, from the supremacy of Imperial law to the supremacy of the (Canadian) constitution. Last but not least, Justice Slatter misrepresents the courts’ role on judicial review when he says that “statutes that are clearly inconsistent with the constitution are of no force or effect” ― there no such “clear inconsistency” requirement either in s. 52 of the Constitution Act, 1982 or in the Supreme Court’s jurisprudence. Constitutional cases, like all civil cases, are decided on an ordinary “balance of probabilities” standard.

The other point that I found disturbing is Justice Slatter’s unabashed celebration of the Canadian healthcare system, of which he says that it

is perceived by many as the crowning achievement of Canadian social policy. The majority of Canadians support the public funding of health care and oppose attempts to shrink or compromise the system. At the same time, many Canadians criticize the system; they would like it to be even better than it is. [14]

Justice Slatter also praises the Canadian healthcare system as “an example of co-operative federalism in action,” though the Canada Health Act, which threatens provinces with the loss of their federal healthcare transfers if they do not comply with its conditions, seems like a rather dubious example of “co-operation.” In any event, Justice Slatter is apparently oblivious to the irony of making unsupported empirical claims in an opinion that dismisses a constitutional challenge for want of evidence. But in the absence of support for these claims, it is somewhat difficult to avoid the suspicion that Justice Slatter is attributing his own views to the indistinct “majority” of which he speaks. After reading these lines, I would rather that he (and indeed his colleagues) not sit in judgment on a constitutional challenge that would, in effect, be an “attempt to … compromise the system,” to change it radically and not merely to make it “even better than it is.”

These two points together lead me to an additional observation. Justice Slatter’s approach is clearly very deferential to legislative choices. That would make him a “conservative” on the definitions that have been floating around of late, for example in some of Sean Fine’s “Tory judges” articles. But, as I’ve said before, “there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers.” This case shows that this is indeed so. If anything, it shows that judges may be able to adopt a strategically deferential posture in order to achieve “progressive” results just as easily as to achieve “conservative” ones.

* * *

I will comment on just one passage from the remainder of Justice Slatter’s reasons. Justice Slatter observes that constitutions, including the Charter, are written in broad terms and

say nothing about the difficult social issues that come before the courts … Controlling this vague language falls to the courts, and an absence of institutional self-restraint by the judiciary makes the problem worse, not better. The Supreme Court has recast the phrase “principles of fundamental justice” with even less precise terms like overbreadth, disproportionality and arbitrariness, none of which have been comprehensively defined. It is, unfortunately, sometimes difficult to discern the difference between these concepts and a simple disagreement by the judiciary with the public policy decisions of democratically elected officials.

The text of s. 7 signals that the drafters of the Charter never intended it to be applied to the review of social and economic policies. … As Prof. [Peter] Hogg has pointed out, the intention of the framers of the Charter to restrict judicial review to procedural matters has been “totally disregarded by the Supreme Court of Canada” with dramatic consequences. [31-32]

I’m not sure I’ve ever seen a Canadian court reverse-benchslap the Supreme Court in this way. Justice Slatter’s attack is pretty vicious, and in my view largely uncalled for.

It is true that s. 7 was not intended to be applied in the way it does, but it is, to say the least, not obvious that “original intent” is an appropriate criterion for interpreting it. Even if, contrary to the Supreme Court of Canada, one is inclined to be originalist, an “original public meaning” interpretation might support the Supreme Court’s conclusion, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that “fundamental justice” is not a matter of procedure only. Anyway, it seems to me that it is a bit late to re-litigate that particular issue.

Beyond that, I don’t think it’s at all fair to reproach the Supreme Court for invoking principles such as overbreadth, disproportionality and arbitrariness in applying s. 7. They are, surely, not more open-ended than the expression “principles of fundamental justice.” The Court has tried, in cases such as Bedford and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, to give them a relatively specific meaning, and in my view has been at least somewhat successful in this endeavour. Justice Slatter’s dismissal of this jurisprudence as “a simple disagreement by the judiciary with the public policy decisions of democratically elected officials” looks not unlike the expression of a simple disagreement by one judge with the constitutional policy decisions of his hierarchical superiors.

* * *

In a sense, this decision is just sound and fury, signifying nothing ― except, of course, that the applicant spent a significant amount of time and money on a litigation that proved fruitless. As Justice Watson rightly observes in his concurrence, “[d]ismissal of a declaration on the grounds that it was not made out in the pleadings and evidence is not the same thing as saying that an action properly pleaded, fairly proceeded with, and backed by sufficient evidence would be impossible.” [60] Perhaps the CCF will succeed in its own efforts to bring such an action. Yet the Court’s mistakes and dubious assertions about its role (about which I might have more to say separately) are cause for worrying, and the possibility that it is right about the high evidentiary threshold that a constitutional challenge must get over before even being considered on the merits is, if anything, even more distressing.

Consistency and Complexity in Judicial Review

In a (somewhat) recent post commenting on Justice Brown’s appointment to the Supreme Court, Paul Daly wrote about “an interesting paradox” in the world of judicial review of decisions by the “political branches” of government: “[t]hose [who] would defer to Parliament would not defer to the executive.” The “conservatives” who are skeptical of judicial review of legislation, especially on Charter grounds, rally under “the Diceyan banner” ― which is also “a flag of hostility to the administrative state” ― and thus don’t like courts to defer to the decisions of administrative agencies and tribunals. This is indeed an interesting observation, but perhaps not, I would suggest, a paradox. Or, if it is indeed a paradox, then “conservatives” are not the only people who hold paradoxical beliefs about the proper relationships between the courts and the other branches of government.

Consider what people other than “conservatives” or Diceyans think of judicial review. Start with the view that is dominant in the Canadian legal community, including on the Supreme Court, which we might call “progressive.” (Actually, I’m not sure that either it or the “conservative” view described by prof. Daly should be described by such politically charged labels, but let’s put that worry to one side, while keeping in mind that it is legal ideologies we are talking about, not those of democratic politics.) The progressive view favours robust judicial review of legislation, and in particular robust judicial enforcement of the Canadian Charter of Rights and Freedoms. It also, however, favours judicial deference to administrative decision-makers. If the conservative view is paradoxical, so is the progressive view ― it’s just that its paradox goes in the opposite direction.

There is also a third view, which we might call “classical liberal” or “libertarian,” that rejects judicial deference both to legislatures and to administrative decision-makers. On this view, the Rule of Law means that, to conscript Chief Justice Marshall’s famous words, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Whatever the legislature thinks the constitution means, and whatever the executive branch thinks a statute (or the constitution) means, the judges may not substitute those opinions for their own. This view is not very, or even at all, popular in Canada, but it does have some adherents. To put my own cards on the table, it is the one I am most sympathetic to, among the broad categories I am describing.

Finally, we could imagine a position that favours deference both to legislatures and to administrative decision-makers. To be honest, I am not sure that it has any actual adherents, though my ignorance should not be taken as evidence of their absence. I am also not quite sure what to call this view. Actually, “progressive” might be a better label for this position than for the current mainstream one I describe above, because deference-across-the-board is probably closer to the views of the original progressives of a century ago, but I suppose that using it in this way now might be confusing.

With apologies for my non-existent graphics skills, here is how the above categories look in table form:

Deference to:

Legislatures

Yes

No

Administrative Agencies or Tribunals

Yes

?

Progressives

No

Conservatives

Libertarians

Both the conservative and the progressive positions seem to involve a paradox, if deference to one “political branch” but not the other is a paradox. The libertarian position, by contrast, has the virtue of consistency, as does the (hypothetical?) deferential position.

But, as I suggested above, I am not sure that the conservative and progressive positions can be fairly characterized as paradoxical, no matter how tempting it is for me to criticize them. It is, surely, at least plausible to believe that judges, being unelected and unaccountable, should defer to the constitutional judgments of elected legislators, but that the same argument for deference does not apply to unelected, and often virtually unaccountable, bureaucrats. It is also plausible to believe that judges should defer to expert administrators, but not to the bunch of amateurs or even bigots that make up a legislature. Of course, I tend to think that the better view is that courts should not defer either to administrators or to legislators, because both face various perverse incentives and neither is really willing and able to abide by the Rule of Law. But I don’t think that either the conservative or the progressive position can be dismissed out of hand as merely illogical.

And then, there’s the fact that both of these views are actually much more complex than I have made them out to be ― and that even their supporters sometimes acknowledge. The conservative view may favour robust judicial review of decisions made by the executive branch, but perhaps not in some areas, such as those that have to do with national security. The progressive view, even more clearly, leaves important areas of legislative action out of the scope of robust (or indeed any) judicial review ― notably anything that has to do with economic policy and regulation, and property rights (although, in a further inconsistency, some of those who hold this view are committed to defending the economic rights of organized labour). Indeed, it is arguably even possible to sympathize with the libertarian position on judicial review and yet argue that in some types of cases, courts should be more deferential than in others; or at least I have taken this position, though perhaps I’m just a faint-hearted libertarian.

I think prof. Daly is right to remind us about the links that exist between the two sorts of judicial review ― that of legislation and that of administrative decisions ― and to invite us to think about whether our approach to them makes sense when we consider them together, and not only in isolation. As we engage in this reflection, we might want to attain a certain level of coherence in our views on democracy, the Rule of Law, and institutional competence. But the legislature and the executive might not stand in the same relation to these principles; indeed, the same branch might interact with them very differently depending on the issue at hand. Thus it is no surprise, and no paradox, that internally coherent legal ideologies would countenance apparent inconsistencies in the levels of deference courts should afford different decision-makers.

Contesting Expertise in Prison and at Large

I wrote on Thursday about a very interesting article by Lisa Kerr, “Contesting Expertise in Prison Law,” which argues that courts should be less deferential to prison administrators and should take facts, especially social science evidence about the real-life operation of prisons and the lives of prisoners into account, as well as that lawyers need to provide judges with such facts. As promised in that post, I would like to offer a (friendly) critique of Ms. Kerr’s article, trying to put the trend of deference which she decries, as well as the strategy of enlisting social science evidence to counter this trend, which she advocates, in their broader context.

The lack of this broader context is the one thing I didn’t quite like about Ms. Kerr’s article. Although it is not an entirely fair reproach to make to a piece that is 50 pages long without being prolix, I still think that considering it might have been useful, for it would have shown that the problems that the article describes ― excessive judicial deference to supposedly expert administrators, and failure to consider the evidence of the real-life effects of these administrators’ decisions ― are not unique to the prison law context.

Start with deference. Some ― uncertain ― measure of deference is, rightly or wrongly, a standard feature of most Charter litigation. Perhaps it wasn’t supposed to be like that. In a passage from R. v. Oakes, [1986] 1 S.C.R. 103, which now seems to have been largely forgotten, Chief Justice Dickson wrote that

any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms ― rights and freedoms which are part of the supreme law of Canada.

Contrast this with, say, Chief Justice McLachlin’s statement of the general approach to s. 1 in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, according to which

[s]ection 1 of the Charter does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be “reasonable” and “demonstrably justified”. [37]

And then, there’s the trend towards generalized deference to administrative decision-makers, including of course correctional authorities, including increasingly in Charter cases. Contrast, again, the words of Justice Charron, writing for the majority in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, rejecting an

approach could well reduce the fundamental rights and freedoms guaranteed by the Canadian Charter to mere administrative law principles, [16]

and the Court’s unanimous decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, which held that administrative decisions were not subject to the Oakes test at all, further that discretionary, individualized decisions (although not decisions as to the constitutionality of a law) were to be reviewed for their compliance with “Charter values” on a standard of reasonableness, not correctness.

Now this trend need not be an insuperable obstacle for the attempt to make courts rein in prison administrators. In Hutterian Brethren, the Chief Justice pointed out that courts will generally defer more to “a  complex regulatory response to a social problem” than to “a penal statute directly threatening the liberty of the accused.” [37] One of the reasons Ms. Kerr’s article is important is that it shows that many decisions of the prison authorities belong less in the former category than courts may tend to suppose, and more in the latter. Indeed, Ms. Kerr suggests that using expert evidence can help the prisoners’ lawyers make these decisions appear less complex, and more penal, than judges, who are not familiar with the prison environment, are inclined to believe. This is a most interesting ― and somewhat subversive ― suggestion.

Unfortunately, it may not be easy to get lawyers to adopt it, and judges to go along. Lawyers’ and judges’ reluctance to deal in facts is also a tendency that affects much more than prison law. Richard Posner bemoans it in his recent book of Reflections on Judging ― which is why I described Ms. Kerr’s article as “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” Indeed, Judge Posner specifically notes that “[f]ew federal judges, or for that matter prosecutors and defense attorneys, are familiar with … studies” dealing with the economics of imprisonment and alternative forms of punishment, including the costs and benefits to society and offenders. (68) But that is just one example, one complaint in a litany. Judge Posner makes a compelling argument that “[w]e need evidence-­based law across the board, just as we need evidence-­based medicine across the board,” (62) but his book offers no easy paths to get there. As he points out, judges tend to share

a professional mind-set that often includes — along with impartiality, conscientiousness, and other traditional attributes of a good judge — lack of curiosity, a feeling of intimidation by science and technology, and a lack of interest in obtaining an empirical rather than merely intuitive grounding for one’s beliefs. These attitudes communicate themselves to the bar , [creating] an unfortunate feedback effect because of the dependence of judges on lawyers in our adversarial legal system. (92-93)

This is the problem Ms. Kerr’s argument is up against and, to repeat, it is not unique to prison law. What is more, as Judge Posner points out, the two trends of deference to administrative decision-makers and reluctance to engage with complex facts are related. “[W]hen they don’t understand the activity from which a case before them has arisen,” (85-86) he writes, judges often seek to avoid deciding it themselves. One way to do that it is to let it

be answered by administrative agencies to which judges defer on the often fictitious ground that the agencies have “expertise,” even if their adjudicators are poorly trained, horribly overworked, highly politicized, or all these things at once. (86)

These trends can be overcome. Ms. Kerr holds up the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, which granted all prisoners their voting rights under s. 3 of the Charter, as a hopeful example and model. Yet as Michael Pal’s study of the role of social science evidence in the Supreme Court’s law of democracy cases shows, its rejection of deference is unusual not only in the prisoners’ rights jurisprudence but also in that on democratic rights and freedoms. This jurisprudence, not coincidentally, is also largely characterized by judicial unwillingness to engage with relevant facts and social science evidence. “[L]ogic, reason and some social science evidence” are enough, the Supreme Court’s majority said in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33, at par. 78, even as it blithely ignored the dissent’s warnings about the speech-stifling real-life effects of the provisions of the Canada Elections Act whose constitutionality it was upholding. The fight for evidence-based law will have to be fought on all fronts ― in prisons and outside.

For this reason, Ms. Kerr’s article’s showing how a sufficiently well-prepared case may be able to overcome these obstacles is perhaps even more important than she lets on. Of course, there are other examples too. In the area of the law of democracy (and in the United States), Judge’s Posner’s recent opinion ― albeit one dissenting from denial of rehearing en banc ― in Frank v. Walker, a voter-ID case is another. (It is also proof that even individual judges can be made to change their mind when presented with compelling evidence.) The Supreme Court’s recent decisions regarding the rights of injection drug users and sex workers, to which Ms. Kerr refers, are two more. They are, just like the recent prisoners’ rights cases Ms. Kerr extols, part of what Kerri Froc described as an “empirical turn in Charter jurisprudence,” on which I have been writing quite a bit here.

The “empirical turn” creates many problems, not the least of which is the length and expense (quite apart from the difficulty) of putting together a compelling record. In Sonia Lawrence’s words,

these aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece. It’s a long road to justice this way around, folks.

Ms. Kerr’s article is a reminder that it might also be the only road there is. And a suggestion as to how to travel it that little bit faster.