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.

Fighting Expertise with Expertise

Lisa Kerr, a brilliant colleague of mine at the JSD programme at NYU and soon-to-be professor at Queen’s, has recently published a fascinating article called “Contesting Expertise in Prison Law,” explaining the practical and normative importance of expertise and evidence in prisoners’ rights adjudication. I am no doubt biased, but I think it deserves to be read and thought about, both for its importance to its specific topic, and for what it can tell us about some much broader trends in Canadian law. This post is mostly a summary of the article. I will offer a critique, focusing on its relationship with these broader trends, in a separate one (hopefully tomorrow or this weekend).

Ms. Kerr’s argument, in a nutshell, is 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. Armed with facts and expert opinion, Courts can and should stop being unduly deferential to prison administrations, which tend to cloak their imposition of unnecessarily harsh conditions on prisoners in claims of expertise. “Prisons,” Ms. Kerr writes, “do not need to be viewed as mysterious places by courts, nor as places where necessarily amateur outside intervention could trigger unknown dangers.” (74)

Looking at both Canada and the United States, Ms. Kerr traces the rise and decline of judicial willingness to intervene to protect the rights of prisoners. For a long time, she notes, inmates were effectively regarded as having lost all rights. Prisons were places where the ordinary law, including constitutional law, did not run. But beginning in the 1960s in the United States, and the 1970s in Canada, courts started intervening and imposing constitutional constraints on prison authorities. Yet the movement was reversed in the United States, with courts adopting increasingly deferential approaches to the claims by prison authorities that this or that repressive measure was necessary to ensure prison security or otherwise advance “legitimate penological goals.” (A welcome counterexample, too recent to have made it into Ms. Kerr’s article, is the U.S. Supreme Court’s unanimous decision this week in Holt v. Hobbs, rejecting the claims Arkansas Department of Corrections’ claim that allowing a devout Muslim inmate to wear, for religious reasons, a half-inch beard would be too dangerous.) In Canada, although one might have expected the coming into force of the Charter to spur the courts to accept prisoner claims, their “hands-off” instincts have proven remarkably resilient. Both lower courts and, on occasion, the Supreme Court have been disinclined to look into the issues of sentence administration, and preferred to treat prisons as separate universes properly subject to their own rules.

Yet there have been hopeful signs, Ms. Kerr notes. Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519), which held that prisoners could not be disenfranchised, was one case where their constitutional rights were granted the same significance as those of other citizens. And, more recently, challenges supported by sophisticated evidentiary records have succeeded, at trial level, in thwarting the prison administrators’ repressive instincts. The presence in the record of social science evidence can make it clear ― and indeed force prison authorities to acknowledge ― that the impugned decisions were made without any real justification or even thought going into the process, and that alternative, less repressive, courses of action are available. Probably the most important theoretical point Ms. Kerr makes is that

[t]he question of evidence has, in fact, been the critical dimension for claimants who experience chronic marginalization and popular resentment. This is at least partially because the evidentiary record is the means by which counsel can insist that constitutional adjudication not mirror conjecture and stereotyping from the wider culture. (76; emphasis mine.)

The practical takeaway follows immediately, and inexorably:

Counsel for prisoner claimants should continue to focus on the issue of expert evidence, notwithstanding the difficulties of doing so, and should be aware that there is an extraordinary range of expertise and literature that could bear upon future Charter claims.(76)

It is a bit ironic, of course: if you want to contest expertise (that of prison authorities), you have to counter it with more expertise (that of social scientists or even, for that matter, that “former prison administrators, and administrators from other jurisdictions” (74)). And since the government is, as Ms. Kerr acknowledges, itself well-positioned to collect and present expert evidence, it could potentially play that game too. But the end point is not tto stick it to the government ― it’s to make prisons a more human place (and, by way of consequence, those who eventually come out of them better, or at least less-worse, people!). If the government starts winning cases on the basis that its policies are actually in keeping with at least a reasonable take on the best expertise that exists in the realm of prison administration, rather than simply because courts reflexively defer to the administrators, Ms. Kerr will have succeeded, and we all will be better off.

A Heap of Trouble

It’s just one decision, and in all likelihood a legally correct one at that ― and yet, precisely because it is likely correct, it illustrates any number of things that are wrong in Canadian law: Thibault c. Da Costa, 2014 QCCA 2437. The case arose out of disciplinary proceedings instituted by the syndic of the Chambre de la sécurité financière, a self-regulation body for Québec’s financial advisers, against the respondent, who at the time was one of its members. The disciplinary committee of the Chambre, which heard them in the first instance, found that the respondent had “swindled” [15; translation mine here and throughout] eight of his clients, and convicted him on 27 counts, imposing fines.

The issue was that the amount of the fines on some of these counts was greater than the maximum authorized by law at the time the respondent committed his offences ― but between the time he committed them and the time the Committee issued its decision, both the minimum and the maximum fines authorized had been substantially increased. The Court of Québec, on appeal, reduced the amounts, concluding that the Committee had applied the new rules retroactively. The syndic appealed and, in a decision written by Justice Thibault, the Court of Appeal restored the Committee’s decision.

The first issue for the Court was the standard of review. Justice Thibault concluded that “although the question at issue concerns a general principle of law,” [26] namely the applicability of a non-retroactivity, as a principle of statutory interpretation, to the amounts of fines which can be imposed by the Committee, the Committee’s decision was entitled to deference. The matter concerned the interpretation of the statute the Committee is entrusted with applying, and “is also related to the efficiency of discipline of the members of the Chambre.” [27]

Here’s the first problem this case illustrates. In 1610, in Dr. Bonham’s Case, Chief Justice Coke was troubled by a professional disciplinary body empowered to be accuser and judge in cases of alleged malpractice. In 2015, few Canadian lawyers are so troubled (and why would they be, since their own professional bodies benefit from the same privilege?), and instead we choose to defer to such bodies’ decisions. But I, for one, find this disturbing. There might be a case for deference, perhaps even on questions of law, to impartial administrative adjudicators ― labour arbitrators come to mind. But the Supreme Court’s one-size-fits-all approach to deference makes no distinction between their decisions and those of disciplinary bodies which violate Chief Justice Coke’s injunction that nemo debet esse judex in propria causa. (In fairness, pursuant to the Chambre’s enabling statute, the Committee is presided by a lawyer who is independent of the Chambre, and who in turn appoints lawyers one of whom must preside every panel of the Committee. However, if I understand the statute correctly the two other member of the panels are chosen from among the Chambre’s members.)

Then again, in this case at least, none of this really matters. Si vous chassez le naturel, il revient au galop. After concluding that reasonableness is the applicable standard of review, and in contrast to her brief reasons on the amounts of fines imposed, Justice Thibault exhibits no sign not only of deferring to, but even of considering the Committee’s decision on the issue of retroactivity. Perhaps because there really isn’t much to defer to ― all that the Committee had to say on this subject was that it “consider[ed] the increase of fines … to be effective immediately.”

Turning to the substantive question of whether the committee could, in fact, apply the increased fines to acts committed before the increase, following a rather abstruse discussion of the distinction between retroactivity and retrospectivity, which I will not summarize (for those interested, Karim Renno, has posted the relevant excerpts over at À bon droit; those looking for a theoretical perspective can do worse than starting with Jeremy Waldron’s article called “Retroactive Law: How Dodgy Was Duynhoven“), Justice Thibault concludes that a sanction can be increased “retrospectively,” i.e. after the facts to which it is applied have occurred, so long as its purpose is not punishment but the protection of the public. Having examined the relevant precedents, Justice Thibault finds that the fines that can be assessed by the Committee, like most other sanctions imposed by disciplinary bodies, are indeed concerned with protecting the public, and do not carry the “true penal consequences” that would make them into punishments. The fact that these fines are based, in part, on the prejudice caused does not overcome the overall protective purpose of the Chambre’s enabling statute:

The more the actions committed are prejudicial to the public, the more the sanction must be important in order to guarantee its deterrent effect on the individual subject to the fine or on the other members of the profession. [38]

The fine thus aims at both specific and general deterrence, but it is not punitive ― on preventive and disciplinary.

Once again, Justice Thibault’s conclusion makes perfect sense in light of the precedents she cites (some of which found that fines of up to a million dollars per offence were not punishment, and thus could be imposed retrospectively) ― and that’s precisely the problem. Does it really make sense to say that a fine is not a punishment? A prohibition on exercising a profession in the future might be described as preventive more than punitive, though I’m not even sure about that, but a fine? At least a part of the trouble here might be, as in the standard of review issue, that courts too easily accept the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role. But there is something else going on as well.

Canadian courts are, in my view, much too comfortable with retroactive application of the law. Although retroactivity might be a good thing in a few cases, one of which I described here, it is generally disturbing. Applying a different law than that which was in force at the time the actions to which is being applied were committed is unfair. It undermines the law’s role as a guide to behaviour, and may end up, as prof. Waldron explains in the above-mentioned article, discrediting the law as a whole. Yet Canadian courts tend to turn a blind eye to these concerns. The Supreme Court, for instance, has allowed legislatures to make a tort out of commercial behaviour that was perfectly lawful when it occurred. In comparison, mere “retrospectivity,” a change to the extent of the sanction attached to an action after that action is committed, as was done here, seems pretty innocent.

This is probably a trite thing to say, but the law should be mindful of the context in which it operates, of the realities to which it applies, and of the consequences which it dictates. When it doesn’t, it risks ending up in a heap of trouble. The Court of Appeal’s ruling ― legally correct, but oblivious to the real nature of the body whose decision it reviews and of the sanction which it upholds ― illustrates this sad truth.

You’re Fired!

Earlier this month, the Saskatchewan Court of Appeal issued a decision which, if legally predictable, offers us a useful opportunity to think about some serious questions in Canadian administrative law. At issue in Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, was the constitutionality of s. 20 of Saskatchewan’s Interpretation Act, 1995, which allows a newly elected government to dismiss from office members of boards, commissions, and other administrative agencies (except those appointment can only be terminated by the legislative assembly).

One of the agencies whose members are thus subject to summary dismissal by a newly installed cabinet is the province’s Labour Relations Board. In 2007, an incoming government dismissed its chairperson and vice-chairpersons, appointing in their stead persons with whose ideological leanings it was more comfortable. A number of trade unions challenged the dismissal on administrative law grounds, but that challenge failed. They then challenged the constitutionality of s. 20, alleging that it breached the constitutional principle of judicial independence.

The Court of Appeal unanimously rejected this argument. The question, it found, was settled by the Supreme Court’s decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, which held that the principle of judicial independence did not apply to administrative tribunals, except insofar as their decisions concerned rights protected by sections 7 or 11(d) of the Canadian Charter of Rights and Freedoms. For all other tribunals ― the majority of them, and in particular all those that deal with citizens’ economic interests, which s. 7 of the Charter does not protect ― legislatures are free to define and limit the extent of their independence. There is a “fundamental distinction between courts and administrative tribunals” (par. 51), the principle of judicial independence applying only to the former.

The unions argued that Ocean Port did not apply, because the administrative body it concerned, a liquor control agency, was of a policy-making character, whereas the Labour Relations Board’s functions were quasi-judicial. That was true, the Court of Appeal found, but not enough to make a difference, because the Supreme Court had not limited the scope of its holding in Ocean Port to administrative tribunals with policy-making functions. Nor did the Supreme Court’s subsequent decisions temper the distinction it had drawn in Ocean Port between courts and administrative tribunals.

This seems the right answer as a matter of law as it is. Whether the law should be this way is a different question. In the immediate context of this case, s. 20 makes all members of administrative tribunals, including those adjudicating disputes that would, if the tribunal did not exist, be settled by judges of ordinary courts, political appointees subject to dismissal by an incoming government for no better reason than ideological disagreement. This is, so far as I know, a very unusual provision in Canadian law. But it is not unusual for administrative tribunals to enjoy very limited independence from the government.

In Ocean Port, the Supreme Court suggests that this is as it should be.

Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. …

Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.  However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.  (Par. 23-24)

Perhaps so. But the Supreme Court’s other decisions make it clear that courts must defer to an administrative tribunal’s interpretation of law, except on legal questions considered “of central importance for the legal system” (a category that notably includes constitutional questions). This means that legal questions might be settled beyond the reach of judicial review by tribunals not only lacking all the (admittedly generous) trappings of judicial independence granted to courts, but indeed existing for the purpose of implementing government policy. In other realms, courts very much enjoy drawing a sharp line between law and policy and insisting that the two fields must be kept separate. (The Québec Court of Appeal’s recent gun registry decision, Canada (Procureur général) c. Québec (Procureur général), 2013 QCCA 1138, which I summarized here, is a fine example of that sort of rhetoric.) But in administrative law, the combination of a refusal to extend a constitutional requirement of adjudicative independence to administrative tribunals and the emphasis on deference to such tribunals’ decisions even on legal questions blurs that line into invisibility.

I can think of a couple of explanations for why this might be the case. One is practical: there is, as the courts are fond of saying, a “spectrum” of administrative tribunals, ranging from the entirely quasi-judicial to the obviously policy-making. Between these two extremes, distinguishing between the two categories to decide which tribunals should be granted independence would be very difficult, causing no end of litigation, an outcome courts are ― rightly ― keen to avoid. But if distinguishing between quasi-judicial and policy-oriented tribunals is impracticable, refusing to defer to tribunals’ interpretations of law ― and especially to the decisions of tribunals that lack independence ― is not.

The other explanation might (I am really just speculating here) be due to a common, but, in my view, unfortunate, understanding of the rationale for judicial independence. Both courts and scholars often emphasize the role of judicial independence in constitutional litigation, where the rights of citizens or the powers of governments are at stake. This emphasis, I am afraid, tends to make people forget that it is no less important in “ordinary” than in constitutional litigation that decisions be made according to law rather then anyone’s policy preferences. As it is, it is thought that review of constitutional decisions independent courts is enough.

It isn’t. Don’t count on the Supreme Court to change its approach though. And unless it does, courts will have to defer to administrative tribunals to whom governments can, if the tribunals’ decisions are not to their liking, say “you’re fired!”