Our Government

Some implications from Jody Wilson-Raybould’s testimony

 

I hesitated to write a post on the bombshell testimony of former Attorney General Jody Wilson-Raybould. The facts are constantly evolving, much of it involves politics rather than law, and though we have benefitted from cogent legal commentary on the relevant legal principles, I should let that commentary stand rather than contribute my (underdeveloped) two cents on it. That said, I want to highlight an obvious but important institutional fact that arises out of this imbroglio, but that is somewhat orthogonal to the context of the Attorney General’s control over prosecutions. Madison might have been right to say that if men were angels, no government would be necessary; but it appears that governments can’t save us from the devil, either.

Much of the story of the 20th century was a victory of progressivism—by which I mean the school of thought that emphasizes “civil service” values, and technocratic government—over legalism. Roughly speaking, it was this underlying philosophy that occasioned a mass transfer of power from legislatures to the executive in Canada and the United States. Then, a further subdelegation occurred from the executive to experts, policy-makers, and tribunals within the executive branch. In theory, the incentive structure this set up was a trade-off of control for lower-cost, expert decision-making. Legislatures could not attend to the small, minute details of “post-roads,” for example, so they delegated that power to the executive and its agents to solve. The legislature lost control over the issue, but in return received better public policy decision-making, with a dash of independence to boot. The whole idea was to enable non-partisan decision-making at a lower cost that permitted better public policy.

While some still champion this rather mythical description of how politics and government work, a more hard-nosed reality emerges from the Jody Wilson-Raybould affair, putting aside the important principle of prosecutorial independence. We see a cabal of people in Ottawa—unelected, unaccountable—carrying the balance of power. These people, ostensibly surrogates of the Prime Minister, say that they do not want to talk about legalities. They want to line up op-eds in newspapers to provide cover fire for their humdrum attitude toward law. They don’t like certain laws if they were not adopted by a Parliament in which their party controlled the majority of the seats.  They do all of this, apparently, to save their electoral prospects. In other words, it appears that some of the most powerful people in the country, in the Prime Minister’s office, are driven by the incentive of electioneering rather than the law.

This might be like calling the sky blue. Obviously politicians want to be elected. But so much of our system—and the philosophy of progressivism that informs attitudes of deference towards legislatures and administrative actors—runs on the idea that there are these islands of expertise and independence in a system otherwise tainted by politics. But with the rise of the PMO, the mass delegation of legislative power to Ministers, and the concomitant rise of influence of those like Michael Wernick in the Privy Council Office, experts are always subordinate to politics.

What’s more we have to be realistic about who we empower when we delegate power. Formally, of course, it’s the executive: but underneath the veil, it’s Gerry Butts, or whoever is next in line. The whole project of independent decision-making, even parts of the project that are protected by constitutional principles, is always up for grabs in a system in which the primary incentive is electoral success driven by apparatchiks.

Some might draw the opposite inference from the whole affair. After all, Jody Wilson-Raybould emerges as a champion of the Rule of Law. She successfully stood up to pressure from the Prime Minister and his subordinates. But one person is a thin reed on which to rest our hopes for good institutions. The regularity of scandals in Canadian politics is just a symptom of the broader reality that the incentives structure of the system—perhaps of every political system—is towards a greater concentration of power at the expense of other ideas: independent decision-making, expert decision-making, even the Constitution or the laws. If Jody Wilson-Raybould was a victim of those incentives here, perhaps we should rethink the mass delegation of powers to those—like members of the Ontario Human Rights Tribunal—who have no constitutional principles to protect them.

There is a lot of nuance to the entire affair because of the role of the Attorney General in the Westminster parliamentary system. I cannot speak to the doctrine governing that issue. But it is enough for me to say that there are no angels, not even in government. The SNC-Lavalin affair might make us rethink the extent to which we entrust governmental actors with power, even with the best intentions.

The Supreme Court’s Unreasonable Reasons Doctrine in Admin Law

Why Newfoundland Nurses should be overturned and a recent FCA case adopted as a new starting point.

In Sharif v Canada (Attorney General), 2018 FCA 205, the Federal Court of Appeal (per Stratas JA) was faced with the herculean task of trying to do the impossible: review nothing. Indeed, that is what is asked by the Supreme Court when it says that courts should supplement the reasons of decision-makers. Sharif is the latest in a growing list of cases that demonstrate the fallacy of the Court’s approach. There are two reasons why Sharif’s reasoning demonstrates the flaws with the Court’s doctrine of supplementing reasons: supplementing reasons skewers itself on the Supreme Court’s own concept of deference; and a doctrine of supplementation creates perverse incentives for decision-makers.

First, to Sharif. The Chair of the Warkworth Institution Disciplinary Court convicted Mr. Sharif of “fight[ing] with, assault[ing] or threaten[ing] to assault” another person under the Corrections and Conditional Release Act [CCRA]. In making the decision, the Chair only made a few factual findings: (1) he attempted to keep his meal tray out of a correctional officer’s reach; (2) this conduct invited physical contact either by Mr. Sharif or by the officer [17].

Fatally, Stratas JA noted that the Chair did not analyze the provision of the CCRA under which he convicted Sharif—and that led him to obviously (but implicitly) conclude that Sharif’s action of keeping his meal tray away from the officer was “figh[ting] with, assault[ing] or threaten[ing] to assault.” But to Stratas JA, this “[fell] short of affirmative action or aggression with physical consequence” [23], the condition required under the CCRA. The Chair’s reasons did not contain a finding of aggressive conduct [25].

At this point, the Supreme Court of Canada’s conclusion in Newfoundland Nurses enters the fray. The Court there confirmed Dunsmuir’s selective citation of an academic article, reasoning that judicial review courts may provide reasons that were not but “could be” offered by the decision-maker. Courts should “supplement [reasons] before [they] seek to subvert them” [12] by looking to the record; additionally, inadequacy of reasons is not a standalone basis for review [14]. To the Court (through Justice Abella), this doctrine was consistent with Dunsmuir’s requirements of “justification, transparency, and intelligibility” [13].

Justice Stratas declined to supplement the Chair’s non-existent reasons, even though he looked to the record as instructed by Newfoundland Nurses. In fact, he concluded that, looking to the record, the Chair “declined to find that Mr. Sharif’s conduct was aggressive” [27]. Applying Newfoundland Nurses, and doing anything more to determine whether the ultimate outcome was reasonable, would amount to  “impersonation” of the decision-maker (Bonnybrook, at para 91 per Stratas JA in dissent—but with no quarrel from the majority). To Justice Stratas, doing so would usurp the role of the decision-maker, or otherwise speculate as to what the decision-maker thought about the relevant legal analysis. Here, the reasoning was plainly deficient. The Court could not conduct judicial review.

Having concluded this, Justice Stratas refused to take Newfoundland Nurses any further. In effect, he concluded that the lack of reasoning was a standalone basis for review. And he was right to do so. This is where Newfoundland Nurses goes wrong and Sharif should be followed. Reasons are a window into a decision. The decision-maker has been delegated power to make decisions; and the reasons offered are important for the court to determine the legality of a decision. If decision-makers are incentivized to provide inadequate reasons, but courts cannot intervene on those decisions, the administrative state is evasive of review. A court ginning up supplementary reasons only exacerbates this concern by providing cover for bad and inexpert decision-making.  Sharif raises this concern on two fronts, and I would take the reasoning in the decision further to bar all supplementation.

As Justice Stratas notes in the decision, supplementing decisions can be fundamentally corrosive of the separation of powers between the judiciary and the legislature. The task on judicial review is to police the boundaries of the administrative state (Wall, at para 13), with the appropriate degree of deference indicated by the legislature.   It is not giving “respectful attention” (Dunsmuir, at para 48) to the reasons the decision-maker offered if the court is, as Newfoundland Nurses instructs, permitted to recreate a decision from the record that the decision-maker did not make. The Justice Abellas of the world forget that reasonableness is a standard of review. If a decision-maker offers nothing, how can a court review—or even give deference—to something that does not exist? It is profoundly disrespectful of the (supposedly expert) delegated decision-maker to impose a court’s own reasoning, but it creates a situation where that disrespect begets insulation. By saving the administrative state from its own poor reasoning, courts will end up reviewing its own reasons, not the decision-makers. And decision-makers will use their delegated authority to make decisions that courts cannot review on the merits.

But the downstream effect of this doctrine of deference is likely also corrosive. A decision-maker under Newfoundland Nurses can provide one line of reasons knowing that courts can look to the record to supplement the decision. But this is not judicial review in any meaningful sense. The job of a judicial review court is to review a decision, not conduct documentary discovery.  A bare record is a necessary but insufficient condition for meaningful review. Reasons—addressing the main legal issues and engaging with the core interpretive difficulties—are vital. When a court supplements a decision, decision-makers can relax, knowing that the margin for error is quite wide. And in cases where the decision-maker has some control over compiling the record, the doctrine incentivizes the piling of documentary evidence into the record, without having to engage with the difficult legal questions, knowing that courts could–somewhere–find a justification.

In this sense, for a lawful administrative state, it is not enough that the outcome of a decision be supported by the record. The administrative decision-maker–the merits-decider–must herself support that outcome with reasons springing from her own pen. A court on judicial review must take those reasons for what they are, not create incentives for a free-riding administrator to depend on an expert court to cover for legal mistakes. This is all the more important where important liberties are at stake.

Sharif pushes back on these perverse incentives by demanding more. It asks decision-makers to explicitly set out the basis of the decision, and justifies the revocation of the lifeline granted to them by Newfoundland Nurses. It restores a modicum of respect for Parliament’s choices. Newfoundland Nurses should be rejected. Sharif is a good start as a replacement.