You Read It Here First

The Supreme Court holds that the Charter does not protect corporations against cruel and unusual punishment

Can corporations avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “any cruel and unusual treatment or punishment”? In Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 the Supreme Court unanimously holds that it cannot. The question excited some debate, both for its own sake and also for its implications for constitutional interpretation more broadly, in the wake of the Québec Court of Appeal’s decision in this case, 9147-0732 Québec inc c Directeur des poursuites criminelles et pénales, 2019 QCCA 373. I argued against the position of the Court of Appeal’s majority and in favour of the one now adopted by the Supreme Court (here and then here); others, however, disagreed.

The narrow issue of the scope of section 12 is now decided, at least as a matter of positive law. But the splits among the Supreme Court’s judges and the ambiguities of the majority opinion delivered by Justices Brown and Rowe (with the agreement of the Chief Justice and Justices Moldaver and Côté) mean that the broader question of how Canadian courts should interpret the constitution remains unsettled. Although both the majority and Justice Abella, who concurs (with Justices Karakatsanis and Martin) claim for themselves the mantle of purposivism, the majority moves in a textualist direction, even as it denies doing so, while the concurrence defends an approach under which the constitution means whatever the Supreme Court thinks it should mean, though it does not quite admit it. Justice Kasirer, meanwhile, concurs in the result and pointedly refuses to step into his colleagues’ interpretive debate.

In this post, I summarize the opinions. I will follow up with comments, mostly on constitutional interpretation, in a separate post tomorrow. Benjamin Oliphant will also have comments in the coming days, dealing with both constitutional interpretation generally and the use of international law in particular.


The respondent (we’re not actually going to refer to it ― or to the case as a whole ― by the number, are we? what are supposed to call this case though?) was charged with having undertaken some construction work without the requisite license. It argued that the fine it would have to pay would be excessive, and thus in violation of section 12 of the Charter. All three judgments made short work of this view. All commended the dissenting reasons of Justice Chamberland at the Court of Appeal and, like him, all pointed to the fact that cruelty referred to the infliction of suffering in body or mind, of which human beings were capable, and legal persons were not. Justice Kasirer’s concurrence, which limits itself to making these points, is all of five paragraphs long.

But, for whatever reason, the other eight judges do not think this is enough. They debate the general principles of constitutional interpretation, focusing on two main issues: first, the primacy, or lack thereof, of the constitutional text; and second, the role of international materials. The subject of this debate is unusual for a Supreme Court of Canada decision: constitutional interpretation is seldom addressed at such length even in cases that actually turn on it, which this one doesn’t really. So is the debate’s vehemence. The perennial talk of the differences between the mean, originalism-debating US Supreme Court and its kinder, gentler Canadian counterpart was always overwrought, but it feels especially out of place now.

Another oddity of the debate between the majority opinion and that of Justice Abella is that the former seems to have been written entirely in response to the latter. It is a rare majority opinion that is introduced by a disclaimer that “[d]espite our agreement in the result, we find it necessary to write separately”. [3] I wonder whether the decision was originally assigned to Justice Abella, but some judges (starting presumably with Justices Brown and Rowe), being dissatisfied with her treatment of the interpretive issues, wrote separately, and ended up peeling off others, forming a new majority. Be that as it may, it is perhaps useful to start with Justice Abella’s reasons, since the majority responds to them more than the other way around.

Justice Abella describes her interpretive approach as “contextual” and “purposive”. The text has no special role to play in determining the Charter’s import: “examining the text of the Charter is only the beginning of the interpretive exercise, an exercise which is fundamentally different from interpreting a statute”, [71] and “elevating the plain text” of the Charter’s provisions “to a factor of special significance” is a mistake. [72] Due to its often “vague, open-ended language … [t]he text of those provisions may … be of comparatively limited assistance in interpreting their scope”. [74] Indeed, attaching too much importance to constitutional text

could unduly constrain the scope of those rights, or even yield two irreconcilable conclusions leading, for example, to the interpretive triumph of the presence of a comma in expanding gun-owners’ rights under the Second Amendment of the United States Constitution in District of Columbia v Heller, 554 US 570 (2008) [75]

Insisting on the primacy of the plain text of Charter rights” also undermines the constitution’s ability of to develop and “creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold”. [76] Finally, “[a] textualist approach would also make Canadian constitutional law more insular”, [78] by which Justice Abella means both less inclined to consider foreign authority and less attractive as a reference point to foreign jurists.

Rather, purpose has to be inferred from a variety of contextual indicia, there being no “rigid hierarchy among these interpretative guides”, [80] although elsewhere Justice Abella suggests that “the principles and values underlying the enactment of the Charter provision are the primary interpretive tools”. [70] Justice Abella refers to dictionary definitions of the word “cruel”, the textual context of section 12 (notably the fact that almost no other “legal rights” protected by the Charter have been held to extend to corporations), and the historical context of its enactment (with respect to which Justice Abella briefly refers to the Bill of Rights 1688, the comments of some judges in  Furman v Georgia, 408 US 238 (1972), and the Canadian Bill of Rights).

Justice Abella also refers, copiously, to contemporary interpretations of section 12’s equivalents in foreign and international instruments. This is justified, she argues, by the fact that “Canada’s rights protections emerged from the same chrysalis of outrage” about Nazi crimes “as other countries around the world”. [98] It also ensures that Canada maintains a “leading voice internationally in constitutional adjudication”. [106] Unlike the majority, she wants to avoid creating a “hierarchical sliding scale of persuasiveness” [104] among these sources and “thereby transform[] the Court’s usual panoramic search for global wisdom into a series of compartmentalized barriers”. [61] Textual differences among these sources do not matter, because “a common meaning can be ascribed to their various formulations”. [108] These sources include international treaties, both those to which Canada is a and those to which it is not (like the American Convention on Human Rights), as well as the interpretations of these treaties by the relevant adjudicative bodies, as well as the jurisprudence of foreign domestic courts.

All these sources tend to the same conclusion:

In line with the global consensus, [section 12’s] purpose is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. … Since it cannot be said that corporations have an interest that falls within the purpose of the guarantee, they do not fall within s. 12’s scope. [135-36]

The majority, as already noted, strongly disagrees with Justice Abella’s approach. Like Justice Abella, Justices Brown and Rowe purport to interpret the Charter in a purposive manner. However, they accuse Justice Abella of “minimizing the primordial significance assigned by this Court’s jurisprudence to constitutional text in undertaking purposive interpretation”. [4] They insist that

within the purposive approach, the analysis must begin by considering the text of the provision … because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text”. [8-9; emphasis in the original]

They add that “[g]iving primacy to the text” [10] is also the way to avoid framing the purpose of a provision too narrowly or too broadly.

Justices Brown and Rowe reject the charge that they are favouring a narrowly textualist approach. What Aharon Barak’s described, in his Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, as “new textualism”, a “‘system [which] holds that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment’ and in which ‘[r]eference to the history of the text’s creation . . . is not allowed’” [12], is “not remotely consistent with [the approach] which we apply and which our law demands”. [12]

Analyzing section 12, Justices Brown and Rowe first note that “the words ‘cruel and unusual treatment or punishment’ refer to human pain and suffering, both physical and mental”. [14; emphasis in the original] They mostly endorse Justice Abella’s historical analysis, although they “add that an examination of s. 12’s historical origins shows that the Charter took a different path from its predecessors”, [16] going back to Magna Carta, because “the right not to be denied reasonable bail without just cause was carved off from the right to be free from cruel and unusual punishment, and placed in s. 11(e) of the Charter”, while “[e]ven more significantly, the protection against ‘excessive fines’ was not retained at all”. [16] All “this is highly significant, if not determinative: excessive fines (which a corporation can sustain), without more, are not unconstitutional”. [17]

Readers may have seen these arguments before: in part, of course, in Justice Chamberland’s dissent at the Court of Appeal, but the reference to both Magna Carta and to section 11(e) of the Charter first appeared right here, in my comment on the Court of Appeal’s decision. Here’s what I wrote:

The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained. These drafting choices ought to matter. In particular, the Charter’s text means that excessive fines are not, without more, unconstitutional. (Paragraph break removed, emphasis added)

I’ll let the reader judge how likely the similarity ― not only of ideas, of course, but of the way in which they are presented and even of the words used, especially the passage quoted above from paragraph 17 and the italicized sentence from my post ― is to be coincidental.

Justices Brown and Rowe then move on to discussing the use of international materials. This discussion, though, is still relevant to a more general consideration of constitutional interpretation. It begin with an assertion that “[a]s a constitutional document that was ‘made in Canada’ … the Charter and its provisions are primarily interpreted with regards to Canadian law and history”. [20] International and foreign materials can “support or confirm an interpretation arrived at through the Big M Drug Mart approach”, but not “to define the scope of Charter rights”. [28] Different types of instruments should also be treated differently: those that are binding on Canada are entitled to a presumption that the Charter is consistent with them; others are not. The date on which the international instruments came into being matters too:

International instruments that pre‑date the Charter can clearly form part of the historical context of a Charter right and illuminate the way it was framed. Here, whether Canada is or is not a party to such instruments is less important … As for instruments that post‑date the Charter, … [i]t can readily be seen that an instrument that post‑dates the Charter and that does not bind Canada carries much less interpretive weight than one that binds Canada and/or contributed to the development of the Charter. [41-42]

Foreign judicial decisions, meanwhile, must be invoked with “[p]articular caution” [43] and subject to an explanation as to the “way they are instructive, how they are being used, or why the particular sources are being relied on”. [44]


I am happy to see such extensive debate of constitutional interpretation taking place at the Supreme Court, though like Justice Kasirer I am a bit mystified by the reasons why it took place in this case. As co-blogger Mark Mancini and I argued just recently, Canadian law will benefit from more and better conversations about constitutional interpretation. A discussion of the use of international and comparative materials is also welcome, though again I wonder if this was the case in which it had to happen.

At the same time, by way of a preview of my next post, I will say that the treatment of constitutional interpretation in this case is not altogether satisfactory. To be sure, the majority opinion is a step in the right direction, as the contrast with Justice Abella’s concurrence makes clear. Yet although a substantive improvement on the alternative, this opinion engages in some misdirection and perpetuates the confusion that all too often characterize discussions of constitutional interpretation in Canada.

Entertainment Assoc, 2020 FCA 100: A New Canadian Textualism

In Entertainment Software Assoc v Society of Composers, 2020 FCA 100, Stratas JA (for the Court) made a number of interesting comments about statutory interpretation in the administrative state and the role of international law in the interpretive activity. In this post, I review these comments, and agree with them wholeheartedly. This case is an important add-on to a growing list of cases in the Federal Court of Appeal and the Supreme Court (Williams, Cheema, Hillier, Placer Dome, Telus v Wellman, Rafilovich) that advocate a certain form of text-based purposivism, which rejects abstract purposes and extraneous principles of international law in favour of specific text. As I will note, these cases all indicate a trend: a promising move towards statutory interpretation approaches that are governed by text, not the policy preferences of administrators or the wishes of unelected judges. While the courts most certainly would not put it in these terms, this is a new, reborn form of textualism in Canadian law that incorporates purpose but makes it a servant to text. In this sense, it is most certainly not the plain-meaning rule, but also not pure purposivism.

I note that there are important aspects of this decision that I will address in a later post, including on the standard of review analysis.

Facts

SOCAN administers the right to “communicate” musical works on behalf of copyright owners [1]. It filed with the Copyright Board proposed tariffs for the communication to the public of works through an online music service. After SOCAN filed its proposed tariffs, the Copyright Act was amended to include the so-called “making available provision.” This provision defines “communication of a work…to the public” as including “making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and time individually chosen by that member of the public” [3] (s.2.4(1.1) of the Copyright Act). The question: does the making available of a work on an online server for later downloading constitute “an event for which a tariff was payable”? [4]

A Supreme Court case was on point. In 2012 SCC 34, the Court held that the “transmission over the Internet of a musical work that results in a download of that work is not a communication by telecommunication” [5], meaning that SOCAN could not collect royalties . The argument the Board was faced was that the introduction of s.2.4(1.1) made the Supreme Court’s decision “irrelevant” [6]. The Board agreed [8], concluding that s.2.4(1.1) of the Copyright Act is a deeming provision that makes the making available of a work on a server an act that is a communication to the public, and is therefore an act that triggers a tariff entitlement. The Board’s conclusion meant that it split the process into two separate tariff triggering events: (1) “the making available” and (2) a subsequent download or transmission on the Internet. In support of its reasoning, the Board concluded that the contrary position would “not comply with Canada’s international obligations” as set out in Article 8 of the WIPO Copyright Treaty (the Treaty) [9].

Statutory Interpretation

The Board’s interpretation attempted to transgress the limits on its discretion by references to international law and abstract, imputed legislative purposes. The new Canadian textualism, as espoused by Stratas JA, rejects this approach.

Let’s start at the highest level of abstraction. The rules of statutory interpretation particular to administrative decision-makers must be read in harmony with the Supreme Court’s (and Federal Court of Appeal’s) statutory interpretation precedents, particularly recent precedents. Those precedents prize two things as part of the new Canadian textualism. First, as Stratas JA held in this case, results-oriented reasoning is prohibited: see Williams, at para 48; Cheema, at para 74; Hillier, at para 33; and Vavilov at paras 120-121 re “reverse-engineering” a desired outcome. Interpretation must be conducted according to text, context, and purpose, and extraneous policy or substantive considerations should not enter the analysis. Second, and importantly, courts cannot let purpose suffocate the text, no matter how nice the purposes sound. That is, purposes cannot be stated at such a high level of abstraction that the purpose expands the meaning of the text beyond its natural meaning (see Wilson (FCA), at para 86, rev’d not on this point: “…we cannot drive Parliament’s language….higher than what genuine interpretation—an examination of text, context, and purpose—can bear”; see also Cheema, at paras 74-75).

Examples of this abound. In Hillier, at para 36, the Court rejected abstract purposes of “administrative efficiency, adjudicative economy, and conservation of scarce administrative resources.” Instead, the provision in question was limited to a purpose more reflected in the legislative text (Hillier, at para 35). Lest one think this is just a predilection of the Federal Court of Appeal, the Supreme Court endorsed this approach in Telus v Wellman, where the Court said the following, at para 83:

Hence, while there can be no doubt as to the important of promoting access to justice…this objective cannot, absent express direction from the legislature, be permitted to overwhelm the other important objectives pursued by the Arbitration Act.

In that case, the Court chose purposes actually reflected in the text of the Arbitration Act (another Supreme Court case, Rafilovich, holds the same thing, as I wrote about here). And these cases are consistent with older Supreme Court cases, which constrain purpose: see Placer Dome, at para 23: purpose cannot be used to “supplant” clear language.

Put together, the text, context, and purpose of legislative provisions must be dealt with authentically, but purpose should be constrained to “fit” the scope of the legislative text. This is a simple application of the rule that “Most often the purpose of legislation is established simply by reading the words of the legislation” (see Sullivan, Statutory Interpretation, at 193). Under these precedents, text is inferred from purpose; purpose is not a free-standing licence to override text. This is an important corrective to a potential use of the purposive approach that does away with legislative text, in support of some realist approach to statutory interpretation.

While Vavilov does not reference these precedents (including Telus or Rafilovich), it does invoke the traditional requirement that administrative decision-makers must deal with the text, context, and purpose of legislation (Vavilov, at para 120, 121) with only limited opportunity for error (Vavilov, at para 122). In dealing with the text, context, and purpose, the Supreme Court’s precedents mean that text will often be the dominant consideration. Vavilov endorses this idea, at para 120: where the tools of interpretation lead to a clear answer, that interpreted text will govern. Under this approach, administrative decision-makers are governed by statute, limited by the boundaries on their authority. They cannot transgress these boundaries, and cannot use tools of interpretation that do so.

In the Entertainment Assoc case, the Board seemed to attempt to transgress the boundaries of its authority. The Board’s chosen materials for the interpretive exercise were stated, according to the Court, at a high level of generality (see paras 53-54). For example, the Board focused on the preamble to the Copyright Modernization Act to divine a rather abstract interpretation that supported its view on international law (paras 53-54). It also invoked government statements, but the Court rightly noted that these statements construed s.2.4(1.1) as a “narrow, limited-purpose provision” [56], not as an all-encompassing provision that permitted the collection of tariffs in both instances. The use of these materials was used by the Board to herald a different, broader interpretation than what the text and context of the provision indicated. This is the problem that Telus v Wellman and Rafilovich guard against.

What is the upshot of all this? Entertainment Assoc is justified from first principles and with regards to precedent. On first principles, it restrains the role of purpose and extraneous considerations, which might not be derived from text. On precedent, it is supported by Telus v Wellman and Rafilovich, and is clearly consistent with other Federal Court of Appeal precedents. Slowly, but surely, we are reaching a sensible approach to statutory interpretation.

International Law

The Board spent the majority of its time focusing its interpretation on the Treaty. Indeed, according to the Court, the Board spent scant time on the actual interpretation of the governing statute, instead taking a particular article of the Treaty, interpreting it, and then making “subsection s.2.4(1.1) conform with that interpretation” [70]. Specifically, the Board used article 8 of the Treaty to “provide protection for the act of making a work available by telecommunication even where there was no transmission to the public” [70].

This approach, as the Court notes [75-88], is profoundly violative of the hierarchy of laws (see, for more on the hierarchy, Tennant). Section 52 of the Constitution Act, 1982 is clear: the Constitution is the supreme law of Canada. As the Court eloquently notes, under that Constitution, a division of powers exists which grants exclusive law-making rights to the provinces and the federal government. Of course, so long as powers are not abdicated, they can be delegated to domestic administrative decision-makers. Under this framework, the Constitution binds legislative actors, but within constitutional limits, the legislature is sovereign. This is basic, but as we shall see, easily forgotten stuff.

International law made by “unelected functionaries abroad who draft and settle upon international instruments” should not subvert the hierarchy of laws [79]. The only way that international law treaties can actually become a part of our law is through the process of domestic adoption of international law in a proper legislative instrument [80]. Parliament can adopt international law in whole in or in part; can change the content of international law as it is adopted in domestic legislation; or otherwise choose not to adopt international law in domestic legislation. In this way, Parliament remains sovereign because it controls the international law it adopts. This is the status quo ante, and should not be dispatched with simply because one party, academic, or lawyer likes the substantive content of particular international law instruments.

International law instruments, as the Court notes, can affect the interpretive activity in distinct but narrow ways. Of course, “[s]ometimes the text of a legislative provision explicitly adopts the international instrument wholesale” [82]. Here, international law must form the basis of the interpretation. In other situations, it might be clear that legislation, under the ordinary techniques of interpretation is “clear enough,” such that international law cannot form a part of the interpretive activity. The importance of this conclusion is that if legislative text is clear, it should oust an extraneous international law instrument, due to the hierarchy of laws described above. If legislation is unclear, and international law “may have influenced its purpose or context” [83], international law could enter the interpretive task. The clearness of the legislative text, on first principles, should be the anchor that governs whether international law properly enters the interpretive task because, again, the legislature must proactively legislate into existence international law instruments under orthodox principles (see Sullivan, Statutory Interpretation, at 314, which contemplates an initial assessment of ambiguity: “If a legislative provision is considered unambiguous, it must be applied as written even though it may be inconsistent with international law.”

The Supreme Court’s “presumption of conformity” with international law could be marshalled to support the subversion of the hierarchy of laws, and to give international law a foothold in legislative text, even where the text is clear (see Gib van Ert’s piece here). So goes the argument, legislative sovereignty can be maintained by requiring that legislatures pro-actively and clearly oust international law; in this way, no ambiguity is required, and international law enters the interpretive activity in an all-encompassing way. This is the reverse from what the Court in Entertainment Assoc held, where international law can enter the interpretive activity if it has been clearly incorporated, or if the domestic law is otherwise ambiguous and international law is relevant. Under the argument advanced by van Ert and others, the international law presumption, then, is the tail wagging the domestic legislation dog.

From first principles, this understanding of the presumption of conformity is inconsistent with fundamental, orthodox legal principles. International law should be assimilated to domestic law, not the other way around. We usually don’t speak of legislation as being a “negative-option” in which Parliament must proactively and explicitly legislate away court-created presumptions linked to laws made elsewhere. Of course, it is true that Parliament often legislates against the backdrop of the common law, as developed by courts and led by the Supreme Court in appropriate cases. But in these cases, Parliament is in the driver’s seat, and there is no doubt that Parliament can oust the common law, probably by necessarily implication, a lesser standard than what the presumption of conformity requires: see Hillier, at para 37-38, and also generally how the Federal Court of Appeal prizes legislative action over judge-made rules. The common law rules made by judges are different than a presumption linked to the content of law made by another actor in another state, that purports to bind legislative actors in Canada who hold exclusive law-making power. Expecting this positive law to be supreme over domestic law, so that Parliament must do away with it, turns the international law instrument into the driving force of interpretation. This is quite different than the common law, which is domestic law, and which can be ousted by necessary implication.

Presumptions have a specific and technical meaning in law. Contrary to the Supreme Court’s recent treatment of presumptions (for example, its presumption of reasonableness pre-Vavilov), presumptions are not irrebuttable tools that can be used to subvert duly-enacted legislation out of service to some court-created concept. As the Court notes, the Supreme Court’s presumption “does not permit those interpreting domestic legislation to leap to the conclusion, without analysis, that its authentic meaning is the same as some international law” [91]; see also Hillier, at para 38 “…judge-made rules do not empower judicial and administrative decision-makers to ignore or bend the authentic meaning of legislation discovered through the accepted approach to interpretation.” It goes without saying, then, those who favour international law cannot use it as a way to subvert the authentic meaning of text, even if it is text that these proponents of international law would rather not have. Trite as it is, the remedy for this problem is to vote, not to consult the grand poohbahs of international law.

What Does All of This Mean?

There is a unified theme to all of Entertainment Assoc that indicates new directions in law in this country. As noted above, there is a growing list of cases in the Federal Courts and the Supreme Court that, on matters of statutory interpretation, favours clear legislative text over abstract purposes; and in this case, extraneous international law. We all know that text, context, and purpose are the ordinary tools of interpretation; and that this approach is seen by many (including in older cases of the Supreme Court: see West Fraser) to eschew an approach focused on text. What we are seeing in these cases is an attempt to recalibrate the worst excesses of a purposive or contextual approach: the perhaps irresistible temptation for administrators to use purpose or extraneous tools to oust legislative text in order to expand the boundaries of jurisdiction. Down the years, this sort of approach could slur the meaning of the words adopted by the legislature.

Fundamentally, what drives this tendency is a pernicious form of legal realism that has little confidence in the meaning of words. Of course, sometimes the worst ideas have a kernel of truth in them: sometimes it takes work to extract meaning from legislative language. It is not a self-executing task, to be sure. But the answer is not to rely on extraneous policy preferences or results-oriented reasoning, which a liberal use of broad purposes can invite.

It is no answer to this trend to simply state that the new approach in the Federal Court of Appeal and the Supreme Court is the ghost of “plain-meaning” “Diceyanism” or “formalism.” As I have written before:

In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

Indeed, if I read these cases correctly, formalism is a good thing. It means that we are sticking to the form in which laws must be promulgated and interpreted. If courts believe in the legislative work product, they will spend more time authentically applying the proper tools of interpretation to discern the meaning of the relevant text. Under this approach, legislative text is the driver of interpretation, and most of the time, an authentic application of the tools of interpretation can lead to the meaning of the words enacted by the legislature.

It is important to note that this new Canadian textualism is still Canadian in the sense that purpose forms a part of the interpretive exercise. None of the cases cited throughout this post say otherwise. However, purpose must be reflected in text, not created out of whole-cloth. That is the new Canadian textualism.

While it is too soon to state what the result of this new movement will be, it is notable that the cases are piling up in favour of a certain approach. This is not a coincidence. It indicates that the Supreme Court, and the Federal Court of Appeal, have moved beyond the mere invocation of “text, context, and purpose” in favour of the text actually adopted by the legislature. These cases clarify that the purposive approach is not a licence for policy reasoning above and beyond what the text says. As Justice Stratas notes in Hillier, at para 33: “Those we elect and, within legislative limits, their delegatees…alone may take their free standing policy preferences and make them bind by passing legislation.”

Under this approach, doubt is thrown on abstract policy preferences, purposes with no reference in legislation, international law instruments not clearly incorporated in legislation, and other ways of subverting legislative text. Good riddance.

See the following posts on the new Canadian textualism:

“Clear Enough”

Romancing the Law

The “Return” of “Textualism” at the SCC [?]

Rafilovich: A Textualist (or Quasi-Textualist) Turn?

Is This Correct?

Should deference be denied to administrative interpretations of laws that implement international human rights?

Gerald Heckman and Amar Khoday have recently posted on SSRN a forthcoming article, due to be published in the Dalhousie Law Review, called “Once More Unto The Breach: Confronting The Standard of Review (Again) and the Imperative of Correctness Review When Interpreting the Scope of Refugee Protection”. As the title suggests, Professors Heckman and Khoday advocate that correctness, rather than reasonableness, be standard used to review questions of law relating to the interpretation of the provision of the Immigration and Refugee Protection Act (IRPA) relative to refugees, especially sections 96-98, which implement in Canadian law the requirements of international treaties on the rights of refugees and persons in danger of being subject to torture. Long-time readers of this blog will not be surprised to hear that I welcome this pushback against the dogma of reasonableness review. Despite this, I have serious reservations about the argument made by Professors Heckman and Khoday. If its implications are pursued to their logical conclusion, they may swallow the law of judicial review whole. This may not be a bad result, but I would rather that it were brought about differently.

Professors Heckman and Khoday begin by reviewing the existing cases on the standard of review in the refugee protection context. They find that

the Federal Court and Federal Court of Appeal are now reviewing decisions involving administrative decision-makers’ interpretation of provisions of the IRPA that implement the basic human rights conferred by international conventions on a reasonableness standard because in their view, the presumption of reasonableness review of these decision-makers’ interpretations of their home statute has not been rebutted. (9-10)

They also note, however, that the Supreme Court, when it has ventured into the immigration and refugee law area, has often conducted searching review, albeit sometimes under the label of reasonableness, which in principle calls for judicial deference to administrative decision-makers. The Federal Court of Appeal too has sometimes remarked that, while the reasonableness standard applies, the range of reasonable outcomes in this area may be very limited, so that there is little to choose from between reasonableness and correctness.

Professors Heckman and Khoday disagree. They are concerned that deferential review opens the door to inconsistent decisions behind upheld as reasonable. In their opinion, this is intolerable: “[t]he scope of universal protections” embodied in IRPA’s provisions “cannot depend on whether a refugee claimant has the good fortune of having her claim decided by an adjudicator who happens to subscribe to” a view of those provisions that is favourable to her case instead of a different “yet equally reasonable alternative interpretation”. (22) And while “disguised correctness review” would help avoid this problem, it is not principled or transparent.

Intead, Professors Heckman and Khoday insist that

a non-deferential approach to judicial review is required for questions of law arising from administrative decision-makers’ interpretation of statutory provisions that serve to implement human rights conferred in international conventions that bind Canada (11)

After all, non-deferential correctness review is still supposed to be applied to questions of central importance to the legal system ― and, according to Professors Heckman and Khoday, the interpretation of statutory provisions that give effect to Canada’s commitments under international human rights law belong to this category. This is both because of the importance of the substantive interests at stake for refugee claimants and because, due to their “proclaimed universality”, “basic international human rights” must receive a uniform interpretation. (13) Indeed, “[t]he provisions of an international convention defining the scope of basic human rights protections can only have one true meaning”. (22)

Professors Heckman and Khoday add that there is a multitude of decision-makers who may be involved in deciding questions involving the interpretation of the IRPA‘s refugee-related provisions; that most of them are not legally-trained; and that Parliament itself has recognized, in section 74(d) of the IRPA, the existence of “serious question[s] of general importance” in this area. These reasons too suggest that courts should see to it that the IRPA‘s provisions receive a uniform, and legally correct, interpretation. And, they argue, if the Supreme Court will not do so, then Parliament should intervene and legislate correctness review for questions of law arising out of the application of the IRPA‘s refugee-protection provisions.


One way to read Professors Heckman and Khoday’s article is as a recognition of the dark, repressive side of the administrative state. Contrary to a certain progressive mythology, in whose thrall we still live, as co-blogger Mark Mancini recently observed here, the administrative state doesn’t only consist of benevolent and beneficent technocrats, rainbows, and unicorns. As I wrote in my contribution to last year’s Dunsmuir Decade symposium, we must

recall what is at stake in judicial review of administrative decisions. Proponents of deference often think of it as a means of protecting the decisions of an administrative state devoted to economic regulation in the name of social justice, or at least of enlightened technocracy. But there is much more to the administrative state economic than labour boards or arbitrators, whose decisions supply a disproportionate share of material for the Supreme Court’s administrative law decisions. The law of judicial review of administrative action applies also to the review of correctional authorities, professional licensing bodies, immigration officers, human rights tribunals, even universities and municipalities, and much else besides. People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law. 

I asked, then, whether “[i]s it enough to tell” people whom the state is about to deprive of these important rights or interests, that this deprivation rests on a legal interpretation that is “justified, transparent, and intelligible” ― but doesn’t have to be correct. Professors Heckman and Khoday say that, at least as to refugee claimants, the answer is “no”. I certainly make no objection to that, and I would welcome similar blows being aimed at as many of the other heads of the administrative hydra as possible. If anything, I think it is too bad that Professors Heckman and Khoday don’t say much about this broader context.

Now, of course there is nothing wrong with an article such as theirs concentrating on the inadequacy of deferential review in just one area. But the trouble with the approach taken by Professors Heckman and Khoday is that, although they do not say so, it reaches very far indeed. If the fact that a Canadian law implements some supposedly important right under international law must mean that this law has “one true meaning” that must be ascertained and enforced by the courts, then reasonableness review of administrative decisions is an endangered species, perhaps critically so.

It’s not just the bureaucrats who administer refugee law and the human rights tribunals, which Professors Heckman and Khoday briefly mention, who will lose the benefit of deference. It’s the correctional authorities, since Article 10 of the International Covenant on Civil and Political Rights (ICCPR) provides that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” and, further, that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. It’s labour boards of all sorts, since the right to join labour unions is protected by Article 23 of the Universal Declaration of Human Rights, as well as provisions of both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR); the latter specifically protects the right to strike, too. It’s employment tribunals and arguably various professional licensing bodies, too, since Article 23 also protects “the right to work [and] to free choice of employment”, and the ICESCR includes provisions to the same effect. It’s various social security tribunals, since Article 11 of the ICESCR protects “the right of everyone to an adequate standard of living”. It might be the CRTC, since Article 19 of the ICCPR protects “the right to freedom of expression … includ[ing] freedom to seek, receive and impart information and ideas … through any … media of his choice”. It will even be the Patent and Copyright Offices, since Article 27(2) of the Universal Declaration stipulates that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.

This list is not at all intended as exhaustive ― I’ve put it together after quickly skimming just the three major international human rights documents. There are many others, and they contain rights galore, any number of them reflected, in one way or another, in Canadian law. (I should, perhaps, make it clear that I do not mean to suggest that we should have all the “rights” purportedly recognized in these documents. Some of them, such as the “rights” of organized labour, are pernicious nonsense. But the point is that international law recognizes these things as important rights, and Canada subscribes to this view, however unfortunate this may appear to me personally.)

Of course not all legislation giving effect to these rights draws the connection as explicitly as the IRPA does in the case of its refugee protection provisions. But that shouldn’t matter, I think. Whether Parliament legislates in order to give effect, more or less transparently, to pre-existing international commitments, or the Crown subscribes such commitments on the strength of pre-existing legislation, the issue for Canadian administrative tribunals, and for Canadian courts reviewing these tribunals’ decisions, is how Canadian legislation is to be interpreted (if possible, consistently with Canada’s international obligations). So, to repeat, if follow the approach proposed by Professors Heckman and Khoday, we might have to get rid of deferential judicial review, if not across the board, then at least in many of the cases where it currently applies.

As an outcome, this would not be half bad. My own inclination would be to get rid of deference (almost) everywhere. A recognition that legislation has correct meanings that can and must be established by courts (even though this is, admittedly, not always easy) is most welcome, as I noted here. But if we are to come to this recognition, I would rather that we do in a different way than that suggested by Professors Heckman and Khoday. The existence ― or otherwise ― of legally ascertainable meanings is not, surely, a function of whether a statute reflects or even incorporates an international treaty. If legislative texts can have no meanings, then it’s not clear why treaties would escape this sorry fate; if they can, then treaties are not unique.


Canadian administrative law must change, and change radically, for reasons that have nothing to do with Canada’s commitments under international law ― though it may well be the case that such radical change will make it possible for Canada better to fulfill these commitments. That said, Professors Heckman and Khoday provide a practical illustration of one of the downsides of the status quo. More than this, they help undermine the prevailing assumption of the goodness of the administrative state and the judiciary’s deference to it. For these reasons, theirs is a welcome, if not an entirely compelling, contribution to the standard of review discussion in Canada; it is reasonable, one is tempted to say, if not altogether correct.