The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

Is Deference Possible Here?

The Supreme Court’s latest administrative law decision shows why disguised correctness is the default standard of review

In Groia v Law Society of Upper Canada, 2018 SCC 27, decided last week, the Supreme Court of Canada once again fractured over the approach to take to the judicial review of an administrative decision ― and, once again, the majority chose correctness review disguised as reasonableness as its methodology. The substantive issue in Groia was whether the Law Society was entitled to discipline a lawyer for advocacy that took “the form of personal attacks, sarcastic outbursts and allegations of professional impropriety, grinding the trial to a near standstill”. [12] I have no articulate views on this, except a general sense that the fewer powers law societies have, and the more circumscribed these powers are, the better. But I do want to comment on the administrative law aspects of the decision.

* * *

As Justice Moldaver, writing for the majority, describes its decision, the Law Society’s

Appeal Panel grappled with the issue of when in-court incivility amounts to professional misconduct under the Law Society’s codes of conduct in force at the relevant time. It reasoned that incivility “capture[s] a range of unprofessional communications” and ultimately settled on a multifactorial, context-specific approach for assessing a lawyer’s behaviour. [36; references omitted]

The Panel then applied this test to Mr. Groia’s case. The issue for the Supreme Court is twofold: first, it must review the approach devised by the Panel; second, the Panel’s application of this approach. However, although all distinguish the two questions they must answer, the majority, Justice Côté, who concurs, and Justices Karakatsanis, Gascon, and Rowe, who jointly dissent, all consider that the Panel’s decision on both must be reviewed on the same standard. The majority and the dissent opt for reasonableness, though they apply it differently. Justice Côté goes for correctness.

As Justice Moldaver notes, the Supreme Court’s earlier decisions “establish that law society misconduct findings and sanctions are reviewed for reasonableness”. [43] This is because both the elaboration of the applicable analytical framework and its application “involve the interpretation of the Law Society’s home statute” ― or, as in this case, rules enacted under this statute ― “and the exercise of discretion”. [45] While the question of “the permissible scope of [lawyers’] in-court behaviour is arguably of central importance to the legal system as a whole”, [51] it is not “outside the Law Society’s expertise”. [51] Indeed, “Law Society disciplinary panels are composed, in part, of other lawyers”. [52] Justice Moldaver also rejects the claim, advanced by a dissenting judge at the Court of Appeal for Ontario and accepted by Justice Côté, that sanctions for lawyers’ behaviour in the courtroom are different in that imposing them risks trenching on judicial independence. In Justice Moldaver’s view, this is simply not so: “a trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court”. [55]

Having established reasonableness as the standard of review, Justice Moldaver considers the arguments advanced against the framework developed by the Panel in detail. I will not describe his reasons, partly because I have little to say on their substance, and partly because this part of them alone runs for almost 60 paragraphs. What matters for my present purposes is this: on each point and sub-point, after reviewing the Panel’s decision in at most a single paragraph, Justice Moldaver gives extensive explanations of what the Panel’s decision means, and why it is appropriate. Though these explanations are occasionally couched in the language of reasonableness, there is no doubt that Justice Moldaver provides his own views on the approach to judging alleged incivility by lawyers, instead of merely ratifying the Panel’s.

As for the application of the framework to Mr. Groia’s conduct, Justice Moldaver concludes that the Panel’s  decision was unreasonable. In Justice Moldaver’s view ― explained over the course of over 30 paragraphs ―, the Panel failed to apply the test it had itself articulated, and to take into account the factors that, on its own stated approach, ought to have mattered. For Justice Moldaver, “there is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility”. [125] (Now, here’s a question: would it be good if someone could reverse the Supreme Court’s decisions when they don’t follow the Court’s stated approach?)

As already noted, Justice Côté is of the view that the applicable standard of review is correctness, because lawyers’ in-court behaviour must be subject to the ultimate control of the judiciary. She insists that

An inquiry by a law society into a lawyer’s in-court conduct risks intruding on the judge’s function of managing the trial process and his authority to sanction improper behaviour. It does so by casting a shadow over court proceedings — in effect, chilling potential speech and advocacy through the threat of ex post punishment, even where the trial judge offered the lawyer no indication that his or her conduct crossed the line. And it permits an administrative body to second-guess the boundaries of permissible advocacy in a courtroom that is ultimately supervised by an independent and impartial judge. [168]

Justice Côté agrees with Justice Moldaver on the application of the test for misconduct, and thus concurs in the result.

The dissenters, by contrast, agree with Justice Moldaver that the standard of review is reasonableness, and also that the Panel’s approach was reasonable. However, they disagree with the way Justice Moldaver applied this standard, accusing him of

fundamentally misstat[ing] the Appeal Panel’s approach to professional misconduct, and reweigh[ing] the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes this Court’s judgment for that of the legislature’s chosen decision maker. [177]

The dissent faults Justice Moldaver with being insufficiently deferential to the Panel. “[D]eference”, they write, “recognizes that delegated authorities will have greater expertise in matters under their scope of authority”, [178] and when the applicable standard of review is reasonableness, it “is not optional”. [179] In particular, “deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable”, or from “supplement[ing] the decision maker’s reasoning for the purpose of undermining it”. [180]

The dissenters “consider that Justice Moldaver reformulates” [188] the framework articulated by the Panel. As a result, they disagree with Justice Moldaver’s application of this framework too: “[i]t is not a respectful reading of the … Panel’s reasons to articulate a novel test … then fault the Panel for failing to apply it”. [199] The Panel’s decision is intelligible and defensible, and this is not a case where only one outcome could be reasonable. Indeed, such cases will be anomalies, because

[t]he existence of reasonableness review is, rather, premised on the fact that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result”. [215, quoting Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]

The dissent then describes ― at some length, and with limited reference to the Panel’s decision ― what it expects to be the pernicious consequences of the majority’s decision. The majority, the dissent fears, “sends the wrong message to those who look to this Court for guidance”. [227]

* * *

Therein, it seems to me, lies the rub. People look to the Supreme Court for guidance ― not for mere affirmation that an administrative decision-maker’s reasons were good enough and that in any event there is no right answer to the question they addressed. The whole point of having what the Constitution Act, 1867 foreshadows as a “general court of appeal for Canada” is that such an institution can explain what the law is. If such a court does not say what the law is, but only indicates that an administrative decision is within the bounds of what the law will tolerate ― without explaining where these bounds actually are ― then it is not doing its job.

It is no surprise, then, that Justice Moldaver’s reasons show little sign of deference to the Panel. What lawyers across Canada are interested in is what the Supreme Court itself thinks about their standards of conduct ― not in whether it thinks that the opinion of a single provincial disciplinary body on this subject was “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [Dunsmuir, [47]]  Indeed, the dissenters, for all the bitterness with which they chide Justice Moldaver for his failure to defer, and despite their own ostentatious display of deference, cannot help but enter the debate with their own comments about the appropriate standards of civility. If the question the Court is deciding is indeed one of central importance to the legal system, as Justice Moldaver concludes (and the dissent specifically agrees with this part of his reasons), this is entirely comprehensible.

Hence the question that, with apologies to Ronald Dworkin, I ask in this post’s title. Earlier this year, I wondered whether “the Court is growing disenchanted with deference to administrative decision-makers’ decisions on questions of law”, and perhaps even trying to kill off reasonableness review without telling anyone. The cases decided since then only provide more evidence for the proposition that the default standard of review in Canadian administrative law is disguised correctness, not reasonableness as the Supreme Court would have us believe. But perhaps the Supreme Court has a defence of  necessity to the charge of attempted murder. No court in its position could do otherwise.

Yet even if this be so, the Rule of Law issues I raised earlier do not go away. Law should be clear, and the fact of its change, transparent. The law of judicial review applied by the Supreme Court is opaque and hidden. And there is a further issue to think about: is it permissible for an apex court to apply a different law than the one it instructs other courts to apply, just because of its position within the legal system? It is, to say the least, not obvious that this is so ― which presumably is precisely why the Supreme Court engages in so much obfuscation. Once again, I conclude that it would be better ― more transparent, more conducive to the coherence of our legal system ― for the Supreme Court to (openly and publicly) abandon reasonableness review on questions of law in most or in all cases.

* * *

Groia illustrates a couple of additional problems with reasonableness review, as theorized and practised by the Supreme Court. On a theoretical level, it exposes the deficiencies in the Court’s justifications for deference, which I have already discussed at some length. Justice Moldaver explains that, while of central importance, the issue of lawyers’ behaviour is within the expertise of law society adjudicators. Indeed these adjudicators are themselves lawyers! But what, one would like to ask Justice Moldaver, are judges? Aren’t they lawyers too, and aren’t they, in principle (though, granted, not necessarily in practice) more eminent lawyers than those who sit on law society tribunals? As the dissenting opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, co-written by Justice Brown ― who joined Justice Moldaver’s majority opinion in Groia ―, and joined by Justice Moldaver himself, pointed out, “expertise is a relative concept. It is not absolute.” [84] Sometimes administrative decision-makers are more expert than courts, which might be at least a practical reason for deference ― though not a legal one, as Mark Mancini’s contribution to the Dunsmuir Decade symposium pointed out. But this justification is implausible here.

For their part, the dissenters appeal to a different justification for deference: “reasonableness review is premised” on the existence a multiplicity of possible answers to questions to which it applies. Yet, as I noted in the posted linked to in the previous paragraph, deference is the presumptive standard of review for any question concerning the interpretation of administrative decision-maker’s “home statute”, and

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible.

Indeed, the dissent’s reasoning is circular: reasonableness “is premised” on there being multiple possible answers, and since reasonableness applies, it follows that the question under review must have multiple answers.

The practical concern with reasonableness review that Groia illustrates has to do with the supplementation of an administrative decision-maker’s reasons by a reviewing court. The dissent says that Justice Moldaver is wrong to do this to “undermine” the Panel’s review. Yet one of its author’s, Justice Karakatsanis wrote, and another, Justice Gascon, joined, the majority judgment in Edmonton East, which did not so much supplement as outright made up the administrative decision in order to uphold it. Both of these positions ― no supplementation to undermine, any amount of supplementation to uphold ― seem consistent with the Supreme Court’s jurisprudence. But they are quite inconsistent with one another.

A clarification: what I’ve said above primarily concerns the first issue in Groia, that of the applicable framework. On the second one, the application of that framework, without entering into the substance of the debate between majority and dissent, and subject to my comments regarding the supplementation of reasons, I think that reasonableness is the appropriate standard of review. To me, Justice Côté’s concerns about judicial independence seem misplaced, for the reasons given by Justice Moldaver. Besides, while this case did not turn on a credibility issue, other, similar ones may well do so. How are courts supposed to engage in correctness review on that? It seems to me that the two issues in Groia should have been addressed on different standards of review. But no opinion takes that approach.

* * *

Groia provides further confirmation, if any were yet needed, that the Canadian law (if it may be called law at all) of judicial review of administrative action is in a dire state. Its theoretical foundations, which have long been weak, are being eroded decision by decision; its practical construction is falling apart. Perhaps these concerns are soon bound to be a thing of the past, as the Supreme Court’s coming review of the Dunsmuir framework simplifies what is abstruse, clarifies what is opaque, and cuts through what is impenetrable. Perhaps. But considering the confusion and the acrimony that seem to be the most remarkable features of the Court’s latest administrative law pronouncements, I suggest that you should not hold your breath.

NOTE: As some readers have pointed out, I had initially mixed up Justices Karakatsanis and Côté at one point. Correction made, and apologies!

FURTHER NOTE: It wasn’t just at one point. More corrections made.

The Dark Art of Deference

Dubious assumptions of expertise on home statute interpretation

Mark Mancini, Clerk at the Federal Court of Canada

The views expressed in this post are the author’s own and do not reflect, in any way, the views of the Federal Court of Canada.

The 10th anniversary of Dunsmuir presents an opportunity to revisit perhaps its most controversial aspect: the seeds it planted for a presumption of deference on home statute interpretation. As Professor Daly notes, the presumption is a “black hole” which engulfs questions of statutory interpretation in administrative law: Paul Daly, “Unreasonable Interpretations of Law” in Judicial Deference to Administrative Tribunals in Canada at 235-36. To the Supreme Court, the presumption exists because  “expertise …inheres in a tribunal itself as an institution” (Edmonton East, at para 33).

In this contribution, I will engage with what I call the “dark art of deference” that Dunsmuir entrenched: the seamless transfer that courts make from expertise in policy to expertise in other matters, including statutory interpretation (Edmonton East, at para 83). The mere fact of membership in a shadowy guild of expertise does not a legal expert make.

Here, I aim to: (1) demonstrate that expertise writ large does not provide a sound justification for deference on questions of law, unless incorporated into the decision-maker’s enabling statute and (2) relatedly, argue that deference is not prescribed by extralegal justifications such as expertise, but only by statutory language, which determines the leeway a court should afford to a decision-maker. The presumption of deference, which could run against statutory language, should be abandoned.

My comments start from three propositions which are rooted in constitutional theory: (1) absent constitutional objection, legislation binds; (2) administrative decision-makers enabled by statute can only go so far as their home statute allows (3) it is a court’s job, on any standard of review, to enforce those boundaries; in American terminology, to “say what the law is” (Marbury v Madison; Edmonton East, at para 21).

***

As early as the seminal case of CUPE v NB Liquor, “expertise” has been used to justify deference on questions of home statute interpretation. Yet beyond this general proposition, Canadian administrative law history “reveals…that little work has been done to pinpoint exactly what the concept of expertise means…”: Laverne Jacobs and Thomas Kuttner: “The Expert Tribunal.” Perhaps as a result, the problems associated with expertise as a basis for deference have not been extensively explored.

Most basically, expertise may be a valid practical justification for deference, but it is hardly doctrinally valid. To treat a decision-maker’s decision as binding on the basis of expertise abdicates the role of courts in enforcing statutory boundaries. While the court still nominally retains this power under the presumption of reasonableness, the presumption is virtually irrebuttable.  As Justice Scalia once wrote:

If I had been sitting on the Supreme Court when Learned Hand was still alive, it would similarly have been, as a practical matter, desirable for me to accept his views in all of cases under review, on the basis that he is a lot wiser than I, and more likely to get it right. But that would hardly have been theoretically valid. Even if Hand would have been de facto superior, I would have been ex officio so. So also with judicial acceptance of the agencies’ views…

This criticism, compelling as it is, has not been so for Canadian courts, with Edmonton East as proof positive. Courts on judicial review do view expertise as a valid doctrinal reason for deference, and are willing to put aside their own interpretation of a statute in favour of a decision-maker’s. This could be defensible, at least practically, if courts deferred on the basis of expertise which existed empirically. But in the post-Dunsmuir world, courts do not investigate expertise empirically before determining whether the presumption of deference applies. The presumption, though justified by expertise, can exist despite it. Yet as Professor (now Premier) MacLachlan says, if expertise is to support a presumption of deference, interrogation of a decision-maker’s expertise cannot be avoided indefinitely.

In the “pragmatic and functional era” which predated Dunsmuir, the courts did not avoid the question of expertise in determining the standard of review. Even though privative clauses were given less emphasis as clear statutory signals (see Pezim and the discussion in Khosa, at para 87), there was still a focus on determining relative expertise. For example, in Pasiechnyk, the Court was faced with a question of home statute interpretation. The Court considered the composition, tenure, and powers of the Saskatchewan Workers’ Compensation Board before holding that the decision-maker was expert on the matter before it. In Pushpanathan, at para 33, the Court noted that “expertise must be understood as a relative, not an absolute concept” and reasoned that courts must conduct an analysis in each case to compare its expertise to the decision-maker’s on the matter before it.

Contrast Edmonton East, where there was an assumption of the decision-maker’s expertise, but no actual analysis. Professor Sirota calls this “post-truth jurisprudence” and justifiably so—the dissent noted that the decision-maker did not have expertise in matters of statutory interpretation, and noted that expertise acted as an unjustified “catch-all” for deference (Edmonton East, at paras 82-83).

The Edmonton East dissent points out the problem with an automatic presumption of deference.  The role of courts on judicial review, to have the last word on the statutory boundaries of administrative decision-makers, is limited to reviewing whether the presumption is rebutted. Unfortunately, Dunsmuir, let alone Edmonton East, gave little guidance on when the fortified presumption of home statute interpretation could be rebutted: see Justice Cromwell’s reasons in Alberta Teachers. If legislative intent is the “polar star” of judicial review (CUPE v Ontario (Minister of Labour), at para 149), the search for that intent is attenuated by a game of categorical whack-a-mole with the correctness categories set out in Dunsmuir.

A presumption could be a useful legal device if it were true that most administrative decision-makers were expert in matters of statutory interpretation. Perhaps, it could be argued, decision-makers develop “field sensitivity” in legal decision-making even if they are not expert at the outset.  As Professor Green notes, a presumption along these lines could save judicial review courts the transaction costs associated with conducting an exhaustive review of the expertise of decision-makers in every case.

But such a presumption is only useful if (1) the facts supporting its existence are generally, empirically true; (2) courts themselves actually conduct the analysis to determine whether the presumption is rooted in fact, as in the Pushpanathan analysis (assuming that something like “field sensitivity” could be measured empirically) and (3) there is clear guidance on how to rebut the presumption. None of these exist with the current presumption of reasonableness.

***

What is the alternative if expertise writ large is simply a bad proxy for deference in the post Dunsmuir world? The answer is that expertise could be a justification for deference, but it must be based in a statute which recognizes it with respect to the precise legal issue before the court. Professor Martin Olszynski argues that the court should adopt a presumption of correctness for home statute interpretation, based on the principle of legislative supremacy. I agree that legislative supremacy is a better justification for deference than an unsupported concept of expertise, but the simple fact that a decision-maker has been delegated statutory power is not enough to justify deference, and it is not enough to demonstrate that a decision-maker is expert. What matters is what the legislature says about the merits of the matter before the court, including whether the enabling statute codifies any indication of expertise on that matter.

The Supreme Court does not accept this position. In Khosa, at para 25 the Court noted that the mere fact of  delegation to a decision-maker justifies deference on the basis of generalized expertise. But this is imprecise. Simply because the legislature delegates power to a decision-maker says nothing about how intensely a court should review that exercise of power and it says nothing about the expertise of the delegated decision-maker. Any logical leap from the mere fact of delegation to deference is a legal fiction. As Professor Vermeule notes in his splendid book Law’s Abnegation: “The delegation fiction is modern administrative law’s equivalent of the fiction that the Queen-in-Parliament still rules England—although she is bound always to act on the advice of her ‘ministers’ ” (30).

While the legal fact of delegation is irrelevant to deference, the terms of the delegation itself are relevant. This is because a legislature may speak in capacious terms, setting out requirements for expertise in a decision-maker and justifying a wide scope of options for a decision-maker. It may also speak in narrow terms, implying the opposite. In other words, the legislature can mandate deference through language, and the court on judicial review can recognize this deference, and apply that range to the decision taken by the decision-maker. This is nothing more or less than statutory interpretation by the judicial review court; and there is no need for a complex standard of review analysis to determine the intensity of review. The Supreme Court in McLean recognized as much: sometimes, statutory language will only permit one reasonable outcome. But in other situations, where the court finds that there are multiple permissible outcomes available, a decision within the range will be legal.

This approach is consistent with the role of courts on judicial review to have a final say on the law. It is also consistent with the notion of deference “itself a principle of modern statutory interpretation” (McLean, at para 40), because a court will not interfere with an administrative decision unless the principles of statutory interpretation honestly say so. This is demonstrated on the facts of McLean. The Court upheld the interpretation of the British Columbia Securities Commission’s home statute because it fell within the range of alternatives which the statutory language could bear. On the interpretation undertaken by the Court of the text, context, and purpose of the statute, a number of reasonable options were available to the Commission, and it chose one. This meant its decision was reasonable.

The McLean approach moves us away from imputed expertise in the post-Dunsmuir world to a real analysis of the intent of the legislature. Under this analysis, there is no need for an abstracted notion of expertise justifying a lawerly presumption of deference; nor is there a need for the labels of “reasonableness” or “correctness.” There is only a need for a court to defer where there is some indication in language to do so, including a statutory indication of expertise.

This is similar to the approach to judicial review of agency determinations of law in the United States under Chevron. Under Chevron, unlike Canada’s current standard of review framework, there is no specific analysis to determine the standard of review. For all its warts, Chevron at least avoids the protracted standard of review analysis, with its attendant standards, presumptions, categories, and factors which are confusing for the most learned of administrative lawyers. Its focus is properly on the enabling statute.

In fact, Dunsmuir and its progeny complicate the fact that judicial review on questions of law is fundamentally about statutory interpretation, nothing more or less. While there may be some trepidation associated with using the principles of statutory interpretation to discern whether deference is due, this is unavoidable. If administrative decision-makers are set up by statute, we cannot avoid an analysis of the decision-maker’s statutory powers, and the principles of statutory interpretation are the best we have. The key point is that the principles should not be used to determine if the statute is ambiguous or not, à la Chevron—they should be used to determine whether the statute’s language is sufficiently “open textured” to justify deference.

To come full circle, how does this approach square with the problem of expertise? In Edmonton East, the Court listed a number of justifications for a presumption of deference, including “access to justice” and expertise. These justifications exist outside of the statutory context, in the abstract. They are not necessarily tethered to the scope of the delegation afforded to the decision-maker. However, if statutory language is the focus, expertise can be a supporting justification for deference if represented in statutory language. The problem with the current presumption of deference is that it is based on expertise which may or may not be represented in statute.

Dunsmuir, 10 years on, has instantiated the dark arts of deference into the fabric of the Canadian law of judicial review in a manner untethered to statute. This is not a welcome development. Expertise should not be a “free standing” justification for deference (Khosa, at para 84). Perhaps it is time to pull back the curtain on the dark arts and drill down to the root of the law of judicial review: statutory interpretation.

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.

What the Judge Googled for Breakfast

A recent decision of an American appellate court provides a vivid illustration of the complexity of the issues surrounding the courts’ treatment of scientific information that I have been blogging about here. The case is a prisoner’s suit against the medical staff at his prison, alleging that their refusal to let him take medication against reflux oesophagitis prior to his meals ― rather than on a schedule seemingly arbitrarily determined by them, or indeed at all ― amounted to cruel and unusual treatment. In Rowe v. Gibson, a divided panel of the federal Court of Appeals for the 7th Circuit dismissed the defendants’ motion for summary judgment in their favour. The main opinion, by Judge Richard Posner, is most interesting for its liberal citation to online sources not in the record ― and for addressing directly the objection’s to this practice.

* * *

The defendant doctor, who apparently doubled as an expert witness (despite not being specialized in the sort of medical problems the plaintiff was suffering from), claimed that it did not matter when the plaintiff took his medications. Indeed, at some point shortly after the plaintiff sued, he came to the conclusion that it did not matter whether the plaintiff took his medications at all, and so refused to prescribe them ― though he relented a month later, as a “courtesy” to the plaintiff. (A particularly gruesome detail: the prison authorities consistently stressed that the plaintiff was free to buy the medications from the commissary, if he wanted to take them on his own schedule ― but he didn’t have even a fraction of the money this would have required, and wouldn’t have been allowed to buy more than a few days’ supply per month anyway.) And since the plaintiff did not supply an expert opinion of his own, the doctor’s stood uncontradicted ― until Judge Posner took to the internet.

What Judge Posner found there, crucially, is that the doctor’s assertions about the effectiveness of the medication at issue were flatly contradicted by the information provided by the drug companies manufacturing the medication, as well as other sources of medical information. The defendants’ expert suddenly looked incompetent, self-interested, or both. There was, after all, a genuine issue for trial.

But was it appropriate for Judge Posner to start looking for the medical information that the plaintiff did not provide him with? The judge makes no apologies: “When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.” (13) This is particularly so when there is little relevant information in the record, and when it is only used to establish the existence of a genuine issue for trial, not to determine the outcome of the case.

And there is more. After a rather bizarre reference to the Magna Carta, Judge Posner asks:

Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? (14)

And further:

[T]o credit [the doctor’s] evidence … just because [the plaintiff] didn’t present his own expert witness would make no sense—for how could [he] find such an expert and persuade him to testify? He could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed “verifying medical evidence” to support his claim. The district judge denied both requests. (15)

In short:

It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. (16)

Besides:

[H]ow could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure? (17; emphasis in the original)

(Sorry for the block quotations, by the way. With Judge Posner, the temptation irresistible.)

Judge Posner adds that the trial court should consider appointing a lawyer for the plaintiff and a neutral expert when it hears this case ― though he does not order it, and acknowledges that the budgets both of the court and of the defendants (who might be made to pay for it all) are limited.

Judge Hamilton, dissenting in part, is not impressed with Judge Posner’s approach to this case. For him, it is “an unprecedented departure from the proper role of an appellate court [that] runs contrary to long-established law and raises a host of practical problems.” (29) He faults Judge Posner for “hav[ing] created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” (37) Although Judge Hamilton acknowledges that “[w]hen a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable,” (39) he thinks that Judge Posner’s remedy is worse than the disease. For one thing, it “turns the court from a neutral decision-maker into an advocate for one side.” (40) For another, it is not clear when or how the courts are supposed to supplement the parties’ research with their own. Judges, says judge Hamilton ― relying on an old, but on-point, quotation from Judge Posner himself ― lack the resources for acting as their own experts, and should not try.

There is still more to the opinions, including a brief concurrence arguing that the internet research is not as central to the majority opinion as it might seem, and an “appendix” by Judge Poser responding to Judge Hamilton’s critique. If you want more excerpts, Josh Blackman’s has got them. For my part, I close with a few comments.

* * *

A few months ago, I blogged about a very interesting paper by Lisa Kerr about challenging the prison authorities’ assertions of expertise in order to secure prisoners’ rights. It was, I said, “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.” The reason for the epithet was that Judge Posner has long been an ardent advocate for more fact-heavy litigation.

But as I also said in a (friendly) critique of prof. Kerr’s argument, one problem with such appeals for more evidence, especially expert evidence, is that it can be very hard to come by, especially in “ordinary” cases rather than those that are designed and litigated by specialized public-interest advocacy organizations. (I also took up this point here.) Rowe is the epitome of such “ordinary” cases, because it was brought not by a prisoners-rights advocate, of the sort to whom prof. Kerr’s article is first and foremost addressed, but by a self-represented prisoner who, as Judge Posner notes, is no position to take prof. Kerr’s and Judge Posner’s advice, sound though it is in theory.

Is it right, then, for courts to effectively substitute themselves for the missing experts in such cases? Or are the dangers of partiality and unreliability too high? I’m not sure that partiality is as serious an issue as Judge Hamilton makes it out to be. In this case, neither party presented anything like solid scientific evidence. Was Judge Posner taking the plaintiff’s side when he started googling for it? I’m not convinced. Besides, for better or worse, it is already the case that judges (and their clerks) might be going the extra mile, or at least putting in the extra hour, to find plausible legal arguments in the self-represented parties’ submissions. If this is a problem ― and I’m not convinced that it is, though perhaps I’m just trying to wish away the sins of my clerkship ― it is by no means unique to scientific issues.

Reliability is a bigger worry, for me anyway. Judge Posner himself has long pointed out that most judges aren’t very good at doing science, or social science. In his “Appendix” he points at errors in Judge Hamilton’s reading of the scientific evidence in Rowe. He may well be right. But if a thoughtful appellate judge can so easily err, is it a good idea to entrust judges with this responsibility? Not every judge has Posnerian talents (and his own scientific endeavours have sometimes been criticized too).

At the same time, we have to weigh the risk of unreliability against that of manifest injustice. Judge Posner has a point when he says that the adversarial process may not be functioning when the parties’ resources are as unbalanced as they are in this case. The judges who end up “helping” self-represented litigants in one way or another, are all aware of this point, as indeed is Judge Hamilton. Is the solution in some sort of reform that would explicitly set out the rules for the judges to follow? Judge Hamilton is right that Judge Posner’s approach offers no real guidance to either litigants or judges. But perhaps the trouble is that we are still very far from having figured out what these rules should look like. And perhaps, then, it is better to let the cases develop, to let the judges argue it out, before rushing to either reaffirm the traditional rules or formulate new ones.

Legal realists said, derisively, that the law depends on what the judge who declares it ate for breakfast. That would be troubling, if true. And it seems troubling, too, that the outcomes of cases should be dictated by what the judge googled (at breakfast or any other time). But if the realists were right, the solution surely was not to prevent judges from having breakfast. A hungry judge isn’t obviously better than a satiated one. Similarly a judge who meticulously follows a diet of neutral ignorance might not be better than one sated on Google.

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.