The Supreme Court v the Rule of Law

In ruling against Trinity Western’s fundamentalist law school, the Supreme Court unleashes the administrative state

The Supreme Court’s decisions in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 are a disaster for Canadian law. By a 7-2 majority, the Court upheld the decision of the Law Societies to deny accreditation to a concededly academically adequate law school on the sole ground that its students and faculty would have been required to sign up to a religiously-inspired “Covenant” and, inter alia, promise to abstain from sex outside of a heterosexual marriage for the duration of their studies ― a requirement that disproportionately affects gay and lesbian students and was therefore widely regarded as discriminatory, though it was not illegal under applicable anti-discrimination law. The Supreme Court’s decision and reasoning subvert the Rule of Law and nullify the constitutional protection for religious freedom.

The Trinity Western cases presented two sets of issues. First, there was the administrative law questions of whether the law societies were even entitled to consider  the “Covenant” in deciding whether to accredit it and, in the British Columbia case, whether a referendum of the law society’s members was an appropriate way of deciding whether to accredit Trinity Western. (The British Columbia decision is the one where the reasoning of all the judges is set out in full, and that’s the one I will refer to below, unless otherwise specified.) Second, there were the constitutional law questions of the framework to apply to review of the compliance of administrative decisions with the Canadian Charter of Rights and Freedoms and, substantively, of whether the law societies’ decision infringed the Charter and whether this infringement was justified. In this post, I focus on the administrative law issues, and add a few words on the applicable review framework. I will write about the religious freedom issues separately.

On the issue of the law societies’ entitlement to consider the covenant, as on the outcome, the Court splits 7-2. The majority reasons are ostensibly jointly authored by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon; the Chief Justice and Justice Rowe concur. They hold that the law societies were within their rights to deny accreditation to Trinity Western based on the “Covenant”. Justices Brown and Côté jointly dissent. The majority holds that the referendum was a permissible procedure for deciding on the Trinity Western accreditation. Justice Rowe disagrees, although his comment on this point is in obiter. The dissent also thinks the referendum procedure was not appropriate. As for the review framework, the majority purports to apply the one set out Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and (modified in) Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613. The Chief Justice and Justice Rowe, however, propose substantial modifications of this  framework, while the dissenters call for it to be reconsidered.

* * *

The majority (with the agreement of the Chief Justice and Justice Rowe) considers that the law societies had the power to consider Trinity Western’s “Covenant” and its discriminatory effects because of their alleged statutory mandate to regulate the legal profession “in the public interest”. The British Columbia legislation, for instance, provides that “[i]t is the object and duty of the society to uphold and protect the public interest in the administration of justice by”, among other things, “preserving and protecting the rights and freedoms of all persons”. This “overarching statutory object … is stated in the broadest possible terms”, [33] and the majority decides that in upholding the public interest and rights and freedoms the law societies were entitled to take into account “inequitable barriers on entry to the school” [39] created by the “Covenant”, as well as unspecified “potential harm to the LGBTQ community”. [44] Moreover, the majority thinks that since the “shared values” of the Canadian Charter of Rights and Freedoms “are accepted principles of constitutional interpretation”, [41]

it should be beyond dispute that administrative bodies other than human rights tribunals may consider fundamental shared values, such as equality, when making decisions within their sphere of authority — and may look to instruments such as the Charter or human rights legislation as sources of these values, even when not directly applying these instruments. [46]

To be sure, since neither law society provided reasons for its decision, it is not quite clear whether the decisions were actually made on this basis. But, since the Supreme Court has for some time now insisted that reasons that could have been given by administrative decision-maker can support its decision just as well as those that actually were, this is of no consequence.

The dissenters beg to differ. Constitutional values are irrelevant “to the interpretation of the [law society]’s statutory mandate,” and “it is [its] enabling statute, and not ‘shared values’, which delimits [law society’s] sphere of authority”. [270] That statute allows the law society to regulate itself, “‘lawyers, law firms, articled students and applicants’ [but]does not extend to the governance of law schools, which lie outside its statutory authority”. [273] As a result, the effects of the “Covenant” on which the majority relies are irrelevant considerations; in trying to forestall them, a law society acts for an improper purpose, since ― as Justice Rand famously observed in Roncarelli v Duplessis, [1959] SCR 121 ―,

there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption (140; cited at [275]; emphasis Brown and Côté JJ’s)

The perspective in which the law societies’ enabling statutes are intended to operate is a focus on the fitness of individual lawyers for legal practice, and denying accreditation to a law school whose graduates are not expected to be individually unfit is inconsistent with this perspective. As for the broad statement of purpose on which the majority relies, it provides no authority for a law society

to exercise its statutory powers for a purpose lying outside the scope of its mandate under the guise of “preserving and protecting the rights and freedoms of all persons”. For example, the [Law Society] could not take measures to promote rights and freedoms by engaging in the regulation of the courts or bar associations, even though such measures might well impact “the public interest in the administration of justice”. …

 It is the scope of the [law society’s] statutory authority that defines how it may carry out its public interest mandate, not the other way around. [286-87]

The law societies are not empowered to regulate student selection by law schools in the name of whatever they conceive as the public interest; if they were, they could (and perhaps would have to) regulate other aspects of the law schools’ policies that can have an impact on access to and diversity within the legal profession ― even, say, tuition fees. This simply isn’t the law societies’ job under their enabling legislation.

On this as on other points, I agree with the dissent ― which is probably the best opinion to come out of the Supreme Court in a long while, though it tragically falls three votes short of becoming the law. The majority’s approach is not altogether surprising. Indeed, it exemplifies tendencies illustrated by other cases, such the making up of reasons where the administrative decision-maker gave none, the better to “defer” to them. I once described judges engaged in this practice as playing chess with themselves and contriving to lose. More significantly, the Trinity Western cases resemble the recent decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, in that, as in that case, the majority seizes on a broad statement of purpose and disregards statutory language that more carefully circumscribes the powers to be exercised by an administrative decision-maker, expanding its competence so that it has virtually no limits. I described this aspect of West Fraser here, and stressed the importance of the “perspective in which a statute is intended to operate”, complete with the Rand quotation, here.

What is perhaps an innovation, albeit one that follows the same perverse logic of courts enabling regulators where legislators did not, is allowing the administrative decision-maker to effectively enforce (under the euphemism of “looking to”) laws that it is no part of their statutory mandate to enforce, supposedly because these laws represent “shared values”. The framers of these laws ― both the Charter and the British Columbia Human Rights Act ― made a conscious decision that they would not bind private entities generally, or religious institutions such as Trinity Western specifically, respectively. No matter ― the majority thinks that administrative decision-makers can apply them regardless.

It is for this reason that, in my view, the Trinity Western cases subvert the Rule of Law. They fly in the face of the idea that, as the Supreme Court still recognized not that long ago ― in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 ―,  “all exercises of public authority must find their source in law”, and that it is the courts’ job to “supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority”. [28] According to the majority, public authority can be exercised without positive legal mandate, indeed in disregard of legislative attempts to (admittedly loosely) define such a mandate, on the basis of allegedly “shared values”. One cannot help but think of the more unsavoury totalitarian regimes, where “bourgeois legality” was made to give way to “revolutionary class consciousness” or similar enormities. That these “shared values” are said to derive from the Charter, which limits the power of government and, indeed, expressly provides in section 31 that “[n]othing in [it] extends the legislative powers of any body or authority”, only adds insult to injury.

As the dissent rightly points out, on the majority’s view law societies have a roving commission to weed out injustice. They could regulate not only “courts or bar associations” but also police forces, self-represented litigants, or anyone else who comes into contact with the administration of justice. Their regulation of lawyers can extend to the lawyers’ private lives, and very thoughts ― which is what what the Law Society of Ontario is already attempting with its requirement that lawyers undertake to promote “equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”. Granting a regulatory body this amount of power unfettered by any guidance more precise than the notion of the public interest is inimical to the spirit of a free society.

* * *

On the question of whether the Law Society of British Columbia was entitled to hold a referendum on whether to accredit Trinity Western, the majority notes that there are not statutory limits on the ability of its governors, the Benchers, to “elect to be bound to implement the results of a referendum of members”. [49] The fact that the constitutionally protected rights were at stake does not change anything. The Chief Justice does not say anything explicitly about this, but I take it that she agrees with the majority.

Justice Rowe, however, has a different view of the matter. While he agrees that the Benchers are generally free to call and choose to be bound by the results of a referendum, he thinks that the case is altered where the Charter is involved. As I will explain in my next post, Justice Rowe (alone among his colleagues) thinks that this is not the case here. Were it otherwise, however, a referendum would not suffice to discharge the Law Society’s “responsibilities under the Charter. Is not one of the purposes of the Charter to protect against the tyranny of the majority?” [256] Majority opinion is not a sufficient basis on which constitutional rights can be restricted.

The dissent is similarly unimpressed. It notes that the majority’s basis for upholding the Law Society’s decision ― that it reflects a proportionate balancing of the Law Society’s objectives and the relevant constitutional rights ― presupposes “expertise in applying the Charter to a specific set of facts”, and requires “engagement and consideration from an administrative decision-maker”. [294] Once they decided to simply accept the outcome of a referendum of members, the Benchers did not exercise their expertise, or engage with and consider the issues; rather, they “abdicated their duty as administrative decision-makers by deferring to a popular vote”, [298] and their decision should be quashed on that basis.

The dissent is right that a referendum is simply incompatible with the framework for reviewing administrative decisions employed by the majority. It makes no sense to demand, as the majority does, that judicial review of administrative decisions effectively made by non-experts who do not deliberate be deferential on the basis of administrative expertise and deliberation.

But that, of course, does not address the real question, which is whether judicial review that implicates constitutional issues should be deferential at all. If the courts do not abdicate their responsibility to ensure that administrative decision-makers comply with the constitution, then whether these decision-makers abdicate their duty by deferring to a popular vote matters rather less. Justice Rowe cannot be right that a majoritarian procedure is, in itself, anathema as soon as the Charter is concerned. Of course the Charter is supposed to protect against the tyranny of the majority ― but it does so by empowering courts to review the decisions of majoritarian institutions, whether law societies, municipal councils, or legislatures, and not by preventing such institutions from deciding matters that might affect constitutional rights.

* * *

How, then, should the courts go about reviewing administrative decisions that implicate the Charter? I will not say much about this issue, because I do not think that the Trinity Western cases tell us much. As noted above, the claims to apply the Doré/Loyola approach of upholding administrative decisions if the achieve a “reasonable” or “proportionate” balancing of statutory objectives against the infringements of Charter rights. Both the concurring judges and the dissenters want to modify this framework and make less deferential.

This sounds like an interesting debate, but I’m not sure it is worth having, because I am not sure that the majority is speaking in good faith. For one thing, as the dissent points out, the majority is not really deferring to balancing achieved by the law societies, since neither gave reasons for its decision. For another,  the majority’s insistence that “Doré and Loyola are binding precedents of this Court” [59] is laughable. I mean this literally ― I laughed out loud when I read this. Even if we pretend that most precedents of the Supreme Court are binding on it, rather than being subject to tacit evasion and quiet undermining, as they increasingly are these days, Doré and Loyola do not belong to this category. As I’ve noted here, and as the dissent also points out (at [303]), the Supreme Court’s recent decisions in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)2017 SCC 54 (CanLII), [2017] 2 SCR 386 and Association of Justice Counsel v. Canada (Attorney General)2017 SCC 55[2017] 2 SC 456, do not follow the Doré/Loyola approach. It is perhaps worth observing that all the members of the Trinity Western majorities except Justice Moldaver were also in the majority in both of these decisions.

The issue of how the courts should review administrative applications, or implicit applications, or failures to apply, the Charter is highly consequential. It is all the more so since the Supreme Court is letting the administrative state loose, unmoored from legislative constraint and judicial supervision on administrative law grounds. But while the suggestions of the concurring and dissenting judges in this regard are worth considering, this is not the place to do so. For the purposes of understanding Trinity Western, I think it enough to say that the Doré/Loyola approach suited the majority’s rhetorical needs, and therefore was used.

* * *

From the standpoint of administrative law and of constitutional control over the administrative state, the Trinity Western cases are a catastrophe. The Supreme Court subverts the Rule of Law by giving administrative decision-makers virtually unlimited powers, unfettered by statutory restrictions, and reinforced by the hopeless vague concept of “shared values” that allow these decision-makers to impose their views on those subject to their power quite apart from any legal authorization. As I will argue next, the Trinity Western decisions are also distressing because of their evisceration of religious freedom. However, the administrative law aspect of these cases might be an even more toxic legacy, because it cannot be confined to a single constitutional right that is an unfortunate victim of the culture war. The administrative state is pervasive, and the Supreme Court’s refusal to keep it under control will make victims on all sides of that narrower, if more salient, conflict.

It’s a Dog!

The majority’s pro-regulatory beliefs help make West Fraser a dog of a decision

In previous posts, I have summarized the Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, upholding the validity of a regulation of the British Columbia Workers’ Compensation Board imposing safety-related obligations on owners of forestry workplaces, and the legality of a penalty imposed on such an owner under a statutory provision authorizing penalties against employers who do not comply with regulations, and discussed some of the administrative law issues to which this decision gives rise. As previously noted, however, West Fraser is interesting not just for what it can tell us about the finer points of judicial review, but also for what it implicitly says about the Supreme Court’s relationship to the administrative state.

In its overall orientation as well as in some details, the majority opinion, written by Chief Justice McLachlin with the agreement of five colleagues, is reminiscent of R v Comeau, 2018 SCC 15 (further confirmation, perhaps, of the Chief Justice’s likely authorship of that ostensibly per curiam decision). It’s not just that the deferential approach to judicial review is, in practice, in Canada, almost necessarily a pro-regulatory position, though that’s part of the story. It’s also that, on the Chief Justice’s view of statutory interpretation, a statute’s pro-regulatory purpose is to be amplified, while whatever constraints on its pro-regulatory orientation the statute might contain are to be played down. And, most fundamentally, the Chief Justice tells us that regulation is good, and the more of it there is, the better.

As discussed in more detail in my previous posts, the Chief Justice’s approach to both issues in West Fraser is deferential ― or so the Chief Justice says. In reality, I have argued, she engages in disguised correctness review and agrees with the administrative decision-maker. But, in principle at least, it’s the deferential approach that’s binding on future courts. Conceptually, deference might be neutral as between pro- and anti-regulatory outlooks. In the United States, famously, Chevron USA v Natural Resources Defense Council, 467 US 837 (1984), which required a deferential approach to administrative interpretations of legislation, arose out of efforts at deregulation by the Reagan administration. Even so, it seems likely that administrative decisions that reduce the scope or onerousness of regulation are less likely to be challenged, so that in practice a deferential court will be a pro-regulatory court even if it has no particular desire to be one. And, of course, the prospects of serious regulatory roll-back in Canada seem rather remote.

But there is more. Whatever abstract theory might suggest, Canadian deference theorists are unabashedly in the pro-regulatory camp. David Dyzenhaus’s famous chapter on “The Politics of Deference: Judicial Review and Democracy”, from which the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, plucked the phrase “deference as respect”, [48] urged the courts to defer to administrative decision ― because its author thought that administrative regulation was normatively desirable, notably in that it advances the cause of equality. (Professor Dyzenhaus went so far as to argue that non-deferential review of the decisions of human rights tribunals by independent courts was a “setback[] to the constitutional commitment to equality between Canadians”, (297) as if the courts were not ultimately responsible for upholding this constitutional commitment.) But for Professor Dyzenhaus, deference was a one-way ratchet: if, peradventure, “judges find themselves confronted with administrative determinations of law that flow from” deregulatory impulses, “they should not be embarrassed to ask how those determinations advance the cause of equality” (306) ― and  so to intervene if they do not. Much more recently, in her contribution to the “Dunsmuir Decade” symposium, Kate Glover proposed a novel theory according to which judicial deference to administrative decision-makers is now a constitutional requirement. Professor Glover did so in an attempt to prepare the administrative state’s defences against a (purely hypothetical, as she rightly notes) siege by deregulating anti-administrativists. This should, I think, be a warning to anyone who hopes that deferential courts would in fact be neutral as between more regulation or less.

Statutory interpretation, no less than (rhetorical) deference, is marshalled in support of regulatory expansion by the Chief Justice. She stresses that the Workers Compensation Act, the statute at issue, “is meant to promote workplace safety in the broadest sense”, [18] and discounts the more specific purpose statements that seem to suggest that this purpose is not to be pursued by whatever means necessary. Focusing on them is “formalistic” and “inconsistent with a purposive interpretation of the scheme”. [18] (To be honest, I don’t know what “formalistic” is supposed to mean here. But it’s bad, bad, bad.) When it comes to the issue of whether the statute authorized the imposition of penalties seemingly reserved for “employers” on firms that were, in the context of the events in relation to which the penalty was being imposed, “owners” but not “employers”, the Chief Justice once again favours an interpretation “more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] This interpretation, as I argued in my last post, is strained to the point of rendering the statutory language meaningless. However, what mattered to the Chief Justice is that reading the statute to mean what it said “would undermine [its] goals”, while the strained interpretation “would further the goals of the statute and the scheme built upon it”. [40] In short the statutory purpose, understood in the most pro-regulatory way possible, must be given effect ― other purposes and text itself be damned.

Now, in fairness, to the Chief Justice, she arguably is dealing with a real interpretive difficulty. Probably all, certainly most statutes involve compromises between a number of values or purposes. The Workers Compensation Act promotes workplace safety, of course, but it also accommodates a measure of free enterprise. It could, after all, have imposed  even more invasive regulation that might have done even more for workplace safety ― but the legislature chose to only go so far towards that purpose, because going further might have undermined other purposes that it also valued. Or, to take another example, human rights legislation doubtless aims at achieving equality in society ― but the limits on its scope, for example the fact that it is typically not applicable to personal, non-economic relationships, suggests that it respects a measure of personal liberty ― implicitly anyway. The problem, though, is that if the legislature enacts a provision that specifies the purpose of a statute, it is likely to present  some, perhaps just one, of the values that the statute actually accommodates, as the purpose it seeks to realize, and omit the others. This might be done for political reasons ― it might not look good to tell workers, or voters, “we’re protecting you, but only some, since protecting you more would actually put a bunch of you out of work”. Perhaps more forgivably, this might also be because, relatively to the previous state of the law, the statute does move things in the direction of more protection, so characterizing that as its main purpose is not unfair. But, either way, the legislature is misleading those who read and try to understand the statute ― above all the courts ― by giving them a distorted view of its objectives.

What are the courts to do when the legislature does this? I think they should do what Justice Côté did in West Fraser ― read the whole statute and give effect to its terms, not letting the (one-sided) purpose section override the substantive provisions. By choosing to focus on the purpose indication (and to read it selectively to emphasize its pro-regulatory aspects), the Chief Justice once again implicitly privileges regulation. For the same political reasons I refer to above, it seems likely that the legislatures will systematically overstate the significance of their regulatory purposes, and understate whatever countervailing values might also be animating them. So, a judge who overvalues statutory statements of purpose at the expense  of the text will tend to produce pro-regulatory outcomes even  without setting out to do so. But I doubt that the Chief Justice is such a judge.

In fact, her reasons in West Fraser suggest that the Chief Justice’s basic disposition is in favour of regulation ― the more of it the better. She is comfortable with a legislative mandate to an administrative agency “to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”, [10] going so far as to characterize this as an “unrestricted delegation of power”. [11] Though admittedly it is unlikely that the Chief Justice means this adjective literally, it is remarkable that she appears untroubled by the idea of an unrestricted regulatory mission. Later, when discussing the issue of the penalty, the Chief Justice writes that “[t]he general scheme of the [Workers Compensation Act] is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety” [43] by way of justifying holding the ones responsible for violations of obligations the statute only seems to impose on the others. As in the area of what used to be known as division of powers, “cooperation” comes to mean the accumulation of regulatory mandates ― and is seen as a good thing. The Chief Justice’s shows her attitude towards such mandates most clearly when she makes a point of observing that the regulation challenged in West Fraser was adopted

in response to a concern in the province about the growing rate of workplace fatalities in the forestry sector … provid[ing] a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently. [20]

It is important that something be done about social problems, and whatever is done about them by regulators ― presumed,  conclusively, to be experts ― must therefore be good. There is only a step, if that, from here to what Sir Humphrey Appleby described as “the politician’s logic”, and what later became known as “the politician’s syllogism“. Something must be done; this is something; therefore this must be done. The Chief Justice has, on the occasion of her already-happened-but-still-impending retirement, and indeed before, been much praised for her statecraft. In West Fraser, she reminds one of The Right Honourable Jim Hacker, MP.

Of course, by criticizing the Chief Justice’s pro-regulatory views ― and those of the other judges in the West Fraser majority ― I do not mean that judges ought to become the flag-carriers of deregulation. They should be neutral and, within constitutional bounds, give effect to the legislation that Mr. Hacker’s colleagues, in their wisdom, enact. Much of this legislation will delegate considerable regulatory powers to administrative agencies. That’s too bad, so far as I am concerned, but this a policy view, not a constitutional argument. However, judges should not, in the name of doing something, be trying to give the regulators freer rein than legislators intended. In Yes, Prime Minister, just before Sir Humphrey formulates the politician’s syllogism, his mentor, the wily Sir Arnold Robinson, exposes its logic by proposing a different one with the same logical structure: “all cats have four legs; my dog has four legs…” “Therefore,” concludes Sir Humphrey, “my dog is a cat.” Well no. And so West Fraser is a dog of a decision.

 

Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.

L’ordre et le rêve

Le contrôle judiciaire après Dunsmuir

The Hon. Louis LeBel CC

Le texte n’appartient plus à son auteur; ce lieu commun de la critique littéraire s’applique particulièrement bien à l’œuvre judiciaire. Une fois déposé, le jugement s’incorpore dans un patrimoine commun, le droit ou le système juridique d’un état ou d’une communauté politique. Il tombera souvent dans le silence.

Parfois il connaîtra une notoriété, peut-être temporaire. Loué ou critiqué, il aura connu le sort que Voltaire au 18e siècle souhaitait à son œuvre, « que l’on en parle en bien, que l’on en parle en mal, pourvu qu’on en parle! » La lecture des contributions communiquées sur les blogues des professeurs Daly et Sirota confirme que tel a été le sort de l’arrêt Dunsmuir depuis 10 ans.

Cependant, puisque cet arrêt n’appartient plus à ceux qui l’ont rendu, il ne me semblerait pas approprié de m’engager dans une défense et illustration de ses mérites. Toutefois, je n’entends pas, même en ces temps de carême, me vêtir d’un sac de toile, répandre des cendres sur ma tête et commencer d’amères pénitences pour obtenir le pardon de la communauté juridique canadienne.

À l’occasion de ces 10 ans, je préfère partager quelques réflexions sur le contrôle judiciaire tel qu’on le connaît au Canada et sur la conception que l’on s’en fait. Le sujet m’a intéressé, bon gré mal gré, au cours de ma vie professionnelle comme avocat puis comme juge. Je pense d’ailleurs avoir plaidé mon premier dossier de contrôle judiciaire en 1964. Jusqu’à ce que je devienne juge, les affaires de contrôle judiciaire sont demeurées constamment une partie de mon horizon intellectuel. Il m’est arrivé aussi de donner quelques cours sur le sujet.

Puis comme juge à la Cour d’appel du Québec puis à la Cour suprême du Canada, les problèmes de contrôle judiciaire ont constitué une part substantielle de mon activité. Si ma mémoire est fidèle, vers 1996, les affaires de contrôle judiciaire représentaient environ 20 % du rôle civil de la division d’appel de Montréal. Cependant, si j’ai aimé le droit administratif, je n’ai jamais salivé à l’idée de plaider ou d’entendre une affaire de contrôle judiciaire. Je ne me souviens pas d’être parti entendre Dunsmuir en clamant le matin mon bonheur à mon épouse.

J’admets le fait de la popularité et l’abondance des activités de contrôle judiciaire. Je les ai considérées souvent comme des problèmes intéressants de procédure civile et de droit administratif. Elles représentaient une part complexe des tentatives d’aménagement du droit administratif ainsi que l’organisation des rapports entre les composantes d’un état démocratique moderne et des relations entre les groupes de toute nature qui forment la société civile.

J’ai donc vécu comme praticien et comme juge plusieurs systèmes de contrôle judiciaire et l’émergence de paradigmes divers gouvernant ceux-ci. Rien ne fut parfait et l’expérimentation s’est continuée. Après d’autres, j’ai apporté une contribution dont la nature fait elle-même l’objet de commentaires à l’occasion de cet anniversaire.

Il m’est arrivé de percevoir dans le fonctionnement du système de contrôle judiciaire un obstacle de l’accès à la justice ou à son efficacité dans les domaines relevant du droit administratif. Que l’on revienne à la case zéro après 15 ou 20 ans de débats judiciaires ne m’est jamais apparu comme une solution admissible, comme je reconnais volontiers l’avoir dit au cours d’une audience de la Cour Suprême, ainsi que le soulignait Me Gall dans sa contribution. Je demeure aussi inconfortable devant des systèmes qui, superposant des procédures de contrôle judiciaires à des régimes d’appel administratif créent une demi douzaine de paliers de juridiction. En réalité, mon intérêt pour le contrôle judiciaire correspond sans doute à celui du chirurgien devant un cancer du pancréas complexe.

Néanmoins, la question du contrôle judiciaire demeure présente et doit être traitée dans un système juridique comme celui d’un pays comme le Canada. Celui-ci reste soumis à la règle de droit comme la Cour suprême le rappelait dans le Renvoi sur la sécession de Québec[1]. Les structures constitutionnelles mises en place par la Constitution de 1867, notamment quant au rôle des Cours supérieures, rendent la question incontournable. Dans ce contexte, le contrôle judiciaire représente un mécanisme nécessaire pour assurer le respect d’un ordonnancement juridique fondamental. Cependant, il doit s’insérer dans la vie d’un état démocratique moderne dont les fonctions de réglementation sociales et économiques ont connu une forte expansion, bien que celle-ci n’ait jamais fait l’unanimité. Il s’inscrit dans les mécanismes d’un droit public, constitutionnel et administratif qui pénètre profondément toute la vie de la société canadienne.

Cette forme de contrôle de l’activité administrative implique nécessairement des conceptions diverses du rôle des tribunaux supérieurs et des mécanismes de formation du droit dans la société contemporaine. Il soulève aussi des interrogations fondamentales sur la nature du droit et des processus de sa formation de celui-ci, y compris au sujet de la nature et de la mise en œuvre des méthodes d’interprétation.

Des commentaires recueillis sur les blogues des professeurs Daly et Sirota, ressortent deux tendances fondamentales. L’une voit dans le contrôle judiciaire une méthode destinée à assurer l’ordre dans le système juridique canadien particulièrement à l’égard des questions de droit. Pour elle, le contrôle judiciaire, à la limite, ne se distinguerait guère de l’appel. Il laisserait sans doute la décision sur le fait au décideur administratif mais exigerait que la plupart des questions de droit soient réglées selon un test d’exactitude défini par les tribunaux supérieurs. Aussi, de fortes réserves se manifestent à l’égard d’une approche déférente qui permettrait aux tribunaux administratifs de définir leur conception de la conformité aux normes fondamentales comme la Charte canadienne des droits et libertés ou, au Québec, la Charte des droits et liberté de la personne[2].

Au fond, cette première tendance vise à l’unification des règles de droit et de leur mise en œuvre par le choix d’une norme d’intervention fondamentalement similaire à celle de l’appel civil ou pénal.

L’autre tendance découle d’une opinion toujours essentielle dans l’aménagement du système de contrôle judiciaire canadien, celle du juge Dickson, plus tard juge en chef dans l’arrêt Syndicat canadien de la Fonction publique, section locale 963 c. Société des alcools du Nouveau‑Brunswick[3]. Comme le note fort à propos la professeure Valois dans sa contribution à ce groupe d’études, elle étend clairement le droit du contrôle judiciaire au mérite de la décision administrative en la soumettant à une norme de rationalité au lieu de limiter l’intervention du tribunal supérieur à la définition de sa compétence et à l’examen des conditions dans lesquelles la décision a été rendue.

Cependant, cette extension s’accompagnait de la reconnaissance d’une forme de déférence en faveur du décideur administratif, même sur un grand nombre de questions de droit. Elle acceptait qu’il existe des dossiers où les choix interprétatifs de décideur administratif primeraient en dépit de désaccords potentiels avec l’opinion de la cour de contrôle. En ce sens, cette orientation qui s’est retrouvée dans des formes diverses d’aménagement du contrôle judiciaire depuis ce jugement, comporte une reconnaissance implicite qu’un système de droit laisse place à une marge de pluralisme juridique. Le droit n’est pas nécessairement univoque et une des fonctions d’un organisme administratif peut consister dans le développement de ses propres orientations juridiques. Un jugement, l’arrêt Domtar[4] admettait d’ailleurs cette possibilité en rejetant même les inconsistances des décisions d’un tribunal administratif comme justification à elle seule d’un exercice du pouvoir de contrôle judiciaire.

L’aménagement du contrôle judiciaire dans cette seconde tendance s’est réalisé, comme on le sait, sous des formes très diverses. La construction de l’œuvre se continuera inévitablement. Cependant, elle a reconnu l’existence d’une autonomie partielle des tribunaux administratifs, certainement sur le fait, mais aussi sur le droit au cours de tous les débats sur les méthodes de contrôle judiciaire.

Le débat incessant sur les normes de contrôle judicaire a d’ailleurs occulté en partie le développement du droit administratif comme tel. La focalisation sur les normes de contrôle et les problèmes d’accès à celui-ci a conduit parfois à négliger que le droit administratif se développait au niveau des juridictions inférieures qui régissent largement la vie quotidienne des membres de la société[5]. On oublierait parfois, à lire notamment une partie de la doctrine de droit administratif, que celui-ci ne se limite pas au contrôle judiciaire. Pourtant, l’examen d’une œuvre récente comme la 7e édition du traité de droit administratif du professeur Patrice Garant[6], confirme la diversité et l’ampleur du droit administratif. Cependant, le contrôle judiciaire tend à absorber toute l’attention. Parfois, sa conception exprime le rêve de la formation d’un ordre stable et de règles d’application quasi-automatiques, dispensant de l’exercice d’un jugement prudentiel. Cette approche oublie les exigences de la vie d’une société et l’importance de l’expérimentation juridique. Elle néglige aussi la nature du droit de l’interprétation juridique qui opère parfois comme mécanisme de création et non seulement, comme une technique mécanique de dégagement d’un sens caché d’un texte.

Le droit ne s’accomplit jamais définitivement. Des problèmes continuent à se poser. Je pense, par exemple, à l’intégration des questions d’équité procédurale dans le système de contrôle judiciaire. On peut aussi s’interroger sur la question des limites du système actuel de contrôle judiciaire et de sa capacité de s’adapter aux fonctions administratives autres que celles d’adjudication. Comment fixer les limites de ce contrôle et ses modes d’exercices particulièrement à l’égard de l’application des normes fondamentales par exemple dans le cas des fonctions de décision individuelle et de réglementation de l’administration publique.

L’essence du contrôle judiciaire correspond à des objectifs simples à définir : maintenir un ordre juridique stable sur des questions de droit fondamentales et assurer le respect d’un processus décisionnel rationnel et juste dans l’administration publique. La réalisation de ces objectifs demeure difficile surtout lorsque le contrôle judiciaire est trop souvent employé pour prolonger des débats devant la justice ou obtenir une seconde chance de modifier une décision prise en réalité dans les marges de la raison et de l’équité procédurale.

L’une des beautés du droit se retrouve dans la nécessité de faire appel à l’imagination au-delà des tentatives ou des espoirs de s’endormir dans un cadre formel immuable. Le présent débat sur les normes de contrôle témoigne de cette tentation et de ce défi. Il s’agit d’apprendre à contrôler le contrôle judiciaire.



[1]
Renvoi relatif à la sécession de Québec, [1998] 2 R.C.S. 217.

[2] RLRQ, c. C-12.

[3] S.C.F.P. c. Société des Alcools du N.-B., [1979] 2 R.C.S. 227.

[4] Domtar Inc. c. Québec Commission d’appel en matière de lesion professionnelles, [1993] 2 R.C.S. 786.

[5] Voir: par exemple, P. Noreau, F. Houle, M. Valois, P. Issalys, La justice administrative : entre indépendance et responsabilité – Jalons pour la création d’un régime commun des décideurs administratifs indépendants, Éditions Yvon Blais, Cowansville 2014.

[6] P. Garant, Droit administratif, 7e édition, Éditions Yvon Blais, Cowansville 2018.

The Paradox of Simplicity

Dunsmuir failed to simplify administrative law; the framework that replaces it must account for the administrative state’s complexity

In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court sought to bring clarity and (relative) simplicity to the law of judicial review of administrative decisions, which as it acknowledged with some understatement “ha[d] not been without practical and theoretical difficulties, [or] free of criticism”. [39] But subsequent decisions, digesting, developing, and departing from Dunsmuir, revealed the futility of its promise of simplifying the law of judicial review in Canada. Practical and theoretical difficulties, and criticism, still abound ― at least when it comes to review of administrative decisions on questions of law. The law on this issue, as other contributions to this symposium note, is in a parlous state. The Supreme Court’s decisions fail to provide guidance to litigants and to lower courts. They are difficult to understand, unrealistic, and appear to do something very different from what they say they do. A fundamental re-assessment, of a magnitude at least equal to that of Dunsmuir, seems to be inevitable.

In my view, one reason why Dunsmuir failed to simplify and clarify the law of judicial review once and for all is the weakness and incoherence of the justifications it provided for judicial deference to administrative decisions. In this post, I review these justifications and argue that none of them can account for the broad scope of deference that Dunsmuir and subsequent cases mandate. Any attempt to reformulate the law of judicial review in the future must acknowledge the weakness of the available explanations for deference, and can only require courts to defer to administrative decision-makers in narrow circumstances where such deference would be well and truly justified.

* * *

Dunsmuir proclaimed that “determining the applicable standard of review is accomplished by establishing legislative intent”. [30] If courts were sometimes, or often, to defer to administrative decision-makers’ interpretations of law, that was because legislatures wanted them to do so. “The existence of a privative or preclusive clause”, [52] providing that an administrative decision was not to be interfered with by the judiciary, was the indication par excellence of the enacting legislature’s desire to commit the determination of issues arising out of the operation of a statutory scheme to a tribunal rather than a court.

But Dunsmuir itself and subsequent cases undermined what the simplicity of a hypothetical regime where privative clauses trigger deference ― and their absence, logically, leads to non-deferential review. For one thing, as Dunsmuir acknowledged, to the extent that they purport to oust judicial review completely, privative clauses cannot be given their full effect, because under the constitution “neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies”. [52] But even putting this constitutional limitation to one side, under the Dunsmuir framework a privative clause is not the only signal of deference. Indeed, according to Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, even a provision creating a right of appeal on a question of law, which seems like an explicit indication that a legislature does not want courts to defer to administrative decisions, is not enough to oust a “presumption of deference”, which thus takes on a life of its own, unmoored from legislative intention.

Another reason for judicial deference to administrative decisions, according to Dunsmuir, is that “certain questions that come before administrative tribunals” ― including questions of law ― “do not lend themselves to one specific, particular result”. [47] The multiplicity of possible answers to the questions facing administrative decision-makers combined with the need to “respect … the legislative choices to leave some matters” [49] to their arbitrament to justify deference.

The problem here is that there is little reason to think that the sets of questions of law that “do not lend themselves to one specific particular results” and of questions on which deference is required under the Dunsmuir framework (or the Dunsmuir framework as modified by subsequent Supreme Court decisions) are identical. Dunsmuir called for deference “where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” [54] or related common law rules. Yet 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. A legislature may wish to set up an administrative tribunal for any number of reasons that have nothing to do with the existence or not of clear answers to interpretive questions: cost-effectiveness, accessibility, the need to execute a law (and not just adjudicate disputes), even patronage.

Finally, Dunsmuir insisted that courts need to defer to administrative decision-makers out of “respect … for the processes and determinations that draw on particular expertise and experiences”. [49] Since then, as the dissenting opinion in Edmonton East noted, “the notion of ‘expertise’ has become a catch-all trigger for deferential review”, [82] even though “this presumption of expertise has rarely been given much explanation or content in our jurisprudence”. [83] Meanwhile, the majority opinion suggested that expertise was independent of the qualifications or functions of administrative decision-makers. The very existence of a specialized tribunal made it an expert.

Perhaps the popularity of the presumption of expertise is due to the Supreme Court’s realization that the other justifications for deference are unpersuasive. Perhaps it is a convenient means to disclaim responsibility for decisions taken elsewhere (similarly, for instance, to the Supreme Court’s insistence, starting in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, on deference to first-instance judges’ findings of legislative fact). Other contributors to this symposium challenge the notion of administrative expertise as a foundation for deference in greater detail. Suffice it for me to say that, just like legislative intent and the impossibility of a definitive answer, expertise is often a judicial fiction and thus an unconvincing justification for deference.

All this is not to say that there are no cases in which deferential review on a reasonableness standard would not have been intended by a legislature setting up an administrative tribunal, or in which there is indeed a multiplicity or a range of plausible answers to legal questions, or in which the administrative tribunal is (more) expert (than the reviewing court). My point, rather, is that, at a minimum, these justifications do not support deference across the board when administrative decision-makers are interpreting their “home statutes”, which Dunsmuir, and especially cases like Edmonton East require. Indeed, these justifications can operate at cross-purposes, as when the legislature authorizes appeals on questions of law from the decisions of expert tribunals, or when administrative decisions are insulated by privative clauses from review of their answers to questions which do in fact “lend themselves to a specific result”. The Supreme Court’s jurisprudence suggests that all these conflicts must be resolved in favour of deference, but it does not provide any explanation for why this is the case.

* * *

The Supreme Court, presumably, can see these difficulties as plainly as its critics. They might account for at least some of the frequency with which ostensibly deferential review exhibits no sign of deference at all ― another issue that other contributions to this symposium highlight. The only way forward, in my view, is for the Court to allow its explanations to match its decisions, and abandon the pursuit, or the pretense, of across-the-board deference. If deference is ever appropriate, it can only be justified with reference to the circumstances of particular cases. This is not the place for a full exploration of the circumstances in which courts ought to defer to administrative decision-makers on questions of law, if indeed there be any. I will, however, venture a few observations.

First, it should not be presumed that deference is due to all the decisions of a particular administrative tribunal or type of tribunal, or to tribunals interpreting a type of statute. As the dissent in Edmonton East pointed out, a single tribunal may be called upon to decide different types of issues, some of which implicate its expertise or involve policy considerations, while others do not. In particular, even if deference is appropriate to tribunal decisions fleshing out the meaning of vague terms such as “just”, or “reasonable”, or “in the public interest”, it does not follow that it would be called for when the same tribunals answer questions about, say, the relationship between provisions of a statute (even their “home” statute) or two related statutes. The former type of question calls upon the tribunals’ specialized knowledge of the standards of justice or reasonableness, or the requirements of the public interest in the field they regulate. The latter is concerned with more general legal skills which courts possess no less, and often more, than tribunals.

Further, even when dealing with a type of question answers to which would normally attract deference, administrative decision-makers are sometimes so constrained by judicial precedent that their decision-making is not meaningfully different from that of a trial court striving to apply appellate authority. The decision that led to in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3 is a good example, as the relevant analysis concerned the scope of the jurisprudence of the Québec Court of Appeal. In similar circumstances, a trial court’s conclusions would not be entitled to any deference on appeal. Why should the administrative decision-maker’s? Assertions to the effect that judicial review and appellate review are not identical are not convincing in those cases where the nature of the decision under review is such that they practically are.

Finally, and more substantively, it is important to 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 (or at least the conditions of their detention, which the Supreme Court recognizes as a liberty interest) can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law. Is it enough to tell them, as Dunsmuir effectively does, that it is sufficient that the interpretation that causes them to lose these rights or benefits be justified, transparent, and intelligible?

* * *

Dunsmuir sought to simplify Canadian administrative law by setting out a unified analytical framework based on “the structure and characteristics of the system of judicial review as a whole”. [33] As part of this process, it set out a number of justifications that were supposed to support a wide-ranging policy of judicial deference to administrative interpretations of law. Well-intentioned as it was, the attempt did not succeed. The justifications advanced in Dunsmuir cannot justify deference in many cases where the Supreme Court said it is due. The weakness of, and occasional conflicts among, the justifications for deference advanced in Dunsmuir have fostered renewed confusion in the law of judicial review.

It is important that this confusion be eliminated. Canadian administrative law is reaching a point where it can scarcely be called law at all, such is its inability to provide guidance to those who must apply it or predict how it will be applied. Yet ― perhaps paradoxically ― the way to clarity passes not through the application of a single all-encompassing principle, but through greater attention to the circumstances of individual cases. As these circumstances vary, so must the applicable rules. It is Dunsmuir’s attempt to deny or at least avoid this complexity that is responsible for its failure.

Charter Rights and Charter-Lite

How not to resolve the tension between the principles of constitutional and administrative law, and how to actually do it

Audrey Macklin, University of Toronto

The Supreme Court’s 2012 decision in Doré signaled the apparent victory of Team Administrative Law over Team Charter: discretionary decisions engaging Charter rights — dubbed ‘Charter values’ for this purpose — would henceforth be decided according to principles of administrative law applicable to discretion rather than constitutional principles applicable to rights infringement. This meant that judges called upon to review exercises of discretion that impaired Charter rights/values would defer to the administrative decision maker’s determination, and only set it aside if it was ‘unreasonable’.  Although Dunsmuir indicated that constitutional issues would attract a stricter standard of review (correctness), Doré subordinated the constitutional dimension of a decision to its discretionary form in order to winnow down one of the few remaining bases for non-deferential review. The reassurance offered by Team Administrative Law was that judicial deference in administrative law is not so different from elements of judicial deference built into the Oakes test. According to the Court,

while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality.

Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a ‘margin of appreciation’, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.[1]

I dispute the Court’s attempt to plot administrative and constitutional review on the same axis. First, the replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play.  Secondly, the methodology proposed in Doré purports to marry a simplified proportionality analysis with Dunsmuir’s deferential reasonableness review. In my view, this jurisprudential mash-up respects neither the primacy nor priority of Charter rights and produces instead a Charter-lite approach to review of discretion. Curial deference toward the outcomes it produces exacerbates the dilution of rights protection. It also creates negative incentives for governance and the rule of law by making the executive less accountable for Charter breaches committed via discretion than by operation of a legal norm.

For present purposes, I will highlight the second and third defect of Doré, the proportionality analysis. The normative primacy of Charter rights means that a proportionality analysis in the context of rights adjudication is not neutral as between rights and freedoms protected by the Charter and other interests, entitlements or ‘values’.  To denominate an interest as a right is to recognize its distinctive importance. A Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement[2].   Doré’s re-labelling of Charter right as Charter ‘value’ obscures this implication of rights recognition.  More significantly,  the simplified proportionality analysis commended by the Court simply requires decision makers to identify the Charter ‘value’ in play and then ‘balance’ it against competing objectives. In effect, it suppresses the normative primacy of a Charter right. This demotion is not rescued by remedial italics. Exhorting decision makers to engage in what Abella J. called  ‘a robust proportionality analysis consistent with administrative law principles’ does not assist, precisely because it does not reckon with the relevant administrative law principles.

The standard of review in Doré is reasonableness.  A failure to accord sufficient importance to a Charter right (or value) is a question of weight, and the Court’s statement of administrative law principles for over fifteen years have emphatically insisted that deferential review of discretion precludes reweighing the factors relevant to the exercise of discretion. Doré does not depart from this admonition against re-weighing. So if an administrative decision maker undervalues the importance of protecting Charter values/rights against fulfillment of the statutory objectives that are the daily preoccupation of that decision maker, deferential review will have nothing to say. (That is, if the court actually defers; claiming to apply a standard of reasonableness while actually reviewing on a standard of correctness can avoid unpalatable outcomes but only at the cost of introducing other pathologies.)

A Charter right, once established, also asserts normative priority. A rights bearing individual need not justify the exercise of a Charter right; rather, the state must justify infringing it, and the state’s burden is a heavy one.  These requirements flow from the intrinsic weightiness of rights. The stages of the test are designed to ensure that limiting a right serves important objectives, actually advances those objectives, and limits the right no more than required to achieve the objective. Only after clearing each of those hurdles does one arrive at the ultimate balancing of the last step, in which the failure to accord sufficient weight to the Charter right may yet yield the conclusion that the government has not discharged its burden.

The confounding feature of discretion, of course, is that it presupposes that the person has no right to a particular outcome (indeed, the outcome may, in this technical sense, be a ‘privilege’), but insofar as the Charter is implicated in the decision, the individual should be regarded as a rights bearer.

While Doré does instruct decision makers to assess the necessity of limiting the Charter protection in order to achieve statutory objectives, the Court provides no practical advice about how to do that. On its face, it encourages a mere balancing of the Charter as one factor among others. Perhaps the Court in Doré intends to convey the normative primacy and priority of the Charter and all that is entailed when it enjoins decision-makers to ‘remain conscious of the fundamental importance of Charter values in the analysis’[3].   If so, it should say so more explicitly, because it would be subverting its own problematic jurisprudence on re-weighing.

Another entry point into the disjuncture between administrative and constitutional review is the judicial posture toward ministerial decisions. It exposes a fundamental tension between the democratic impulse that underwrites deference and the counter-majoritarian dimension of constitutional rights adjudication. Judges are entrusted with adjudicating the Charter not only because of their legal expertise, but also because of their independence from government. Some Charter cases engage questions of redistribution that resist straightforward classification as state infringement of individual right, but many Charter challenges do conform to type. The judiciary’s real and perceived detachment from the legislature and the executive matters to the legitimacy of rights adjudication when government actors are alleged to have breached the constitutional rights of individuals subject to their authority. Yet, standard of review jurisprudence currently justifies deference by reference to democratic delegation.  Quasi-judicial tribunals who enjoy a measure of relative independence enjoy no more or less deference than front line bureaucrats and possibly less than ministers of the crown. The independence of the administrative decision maker from government does not matter to deference.

But in Charter litigation, proximity to the political branch of government pulls in the opposite direction – decisions by elected officials (legislators) are distrusted precisely because they might be inclined to trade off individual rights for political gain through appealing to majoritarian interests. In other words, democratic legitimacy, political acumen and access to expert staff may incline courts to display particular deference to Ministers in judicial review of discretion, but this translates awkwardly into a rationale for deference where the Charter is at issue. The fact that an administrative decision maker is also high-ranking elected official is not a reason to defer to the balance he or she strikes between protection of individual rights and advancement of other public objectives (statutory or otherwise). It may even be a reason not to defer.

The foregoing does not suggest that decision makers with authority to interpret law should not consider the Charter when exercising discretion.  Their valuable ‘field expertise’ may enhance the fact finding process, the elaboration of the statutory scheme  and the richness of the evidentiary foundation. Some individual decision makers may also produce legally sophisticated and cogent Charter analyses. Many will not, either for lack of ability, time, resources or independence, or some combination thereof. There is simply no basis for a presumption that a decision maker’s ‘field expertise’, which may contribute constructively to some aspects of a Charter analysis, equips the decision maker to manage all aspects of a Charter analysis. On judicial review, judges should certainly pay respectful attention to the reasons given by decision makers exercising Charter-impacting discretion. Sometimes the reasons may be persuasive, and a judge should be as open to benefiting from a rigorous and compelling set of reasons in the same way he or she is open to persuasion from high quality submissions by counsel, analyses by law clerks, or opinions of fellow judges.

In other words, the arguments in favour of Charter jurisdiction do not explain why deference is owed to their Charter outcomes. Nor do arguments about why courts should defer to the exercise of discretion on non-Charter matters automatically extend to those aspects of discretion that implicate the Charter. Yet Doré commits both of these errors.  The slippage is exacerbated by the fact that Court in Doré equips administrative decision makers with a Charter-lite methodology that is approximate, vague and incomplete, starting with its problematic invocation of Charter values, to its account of proportionality.

Lower courts and various Supreme Court judges have already revealed diffidence toward Doré, either by subjecting it to critique or effectively ignoring it. Going forward, I propose that a constructive approach to review of discretion engaging Charter rights should contain the following elements: First, a Charter right is a Charter right, regardless of whether it is infringed by operation of law or discretion; conclusory labelling it a ‘value’ obscures rather than clarifies.

Secondly, a Charter right weighs more than other interests, and the graver the impact of the violation, the more it weighs. Thirdly, the independence of the decision maker from political influence matters. Proximity between the decision-maker and the legislator provides no reason to defer to a balancing of individual Charter rights against majoritarian interests.

Fourthly, where no or inadequate reasons are provided for the exercise of discretion that infringes a Charter right, curial deference neither requires nor authorizes retrofitting reasons to support the result reached by the administrative decision-maker.

Finally, the extent to which the discretion in structured and guided through constitutionally valid legislation, regulation or ‘soft law’ matters. Where the exercise of discretion will routinely and predictably limit Charter rights (e.g. in civil or criminal commitment, parole, immigration detention, child apprehension, extradition, etc.), legislators can and should stipulate the purposes for which the discretion is granted, and identify the factors relevant to the exercise of discretion.  If these provisions withstand an ordinary Charter challenge (including the Oakes test), then the individual exercise of discretion within those demarcated constitutional boundaries should benefit from greater deference than exercises of broad, general and unstructured discretion.  Legislators and administrative agencies should be encouraged to structure discretion.  It advances the rule of law goal of publicity. But if the legislator declines to structure the discretion, courts should not reward opacity by undertaking to generate the best optimal justification for the outcome, just as they should not reward the absence of [adequate] reasons by generating better ones.[4]

Whether these considerations travel under the rubric of reasonableness, correctness, proportionality or Oakes, or some other label matters less than that they receive proper and explicit attention. After Multani, David Mullan correctly (and reasonably) concluded that there is ‘room for deference to the discretionary judgments of statutory authorities exercising powers that have the potential to affect Charter  rights and  freedoms’, but in order to prevent devaluation of those rights and freedoms ‘there should be recognition  that the framework within which deference operates will often, perhaps invariably need  to be different than in the case of judicial  review of administrative action that does not affect Charter rights and  freedoms’.[5] Justice McLachlin (as she then was) correctly observed that many more people have their rights determined by administrative decision makers than by courts. The quality of Charter protection they receive should not depend on who makes the determination.



[1]
Doré, at paras. 56, 57.

[2] Lord Bingham recognized this in the UK context: R (Daly) v. Secretary of State for the Home Department, [2001] UKHL 26.

[3] Doré, at para 54.

[4] Ideally, this should incentivize legislators to be more transparent in structuring and defining the scope of discretion in legislation.  For a thoughtful elaboration of this idea, see Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 Supreme Court Law Review (2d) 247.

[5] “Administrative Tribunals and.Judicial Review of Charter Issues After Multani” (2006–07) 21 N.J.C.L. 127 at 149.

Doré’s Demise?

What do the Supreme Court’s latest decisions mean for judicial review of administrative decisions that implicate the Charter?

In my last post, I wrote about the religious freedom issues addressed in the Supreme Court’s recent decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa, this time to address a different issue that has, so far as I know, attracted relatively little attention: that of the standard of review of the Minister’s decision. On this point, the majority opinion (by the Chief Justice and Justice Rowe) and the concurrence (by Justice Moldaver) illustrate the ongoing failure of the Rule of Law in the Supreme Court’s jurisprudence.

Let’s start with a bit of history. In Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, Justice Abella, for writing for the unanimous Supreme Court, articulated a framework “for reviewing discretionary administrative decisions that implicate Charter values”. [34] Such review would be deferential, conducted on a reasonableness standard, much like judicial review of most other legal issues, in recognition of administrative decision-makers’ expertise. This approach has been heavily criticized, not least by Paul Daly and Maxime St-Hilaire, but the Court has never overtly resiled from it. However, the application of Doré has been uneven, to say the least.

In Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, the majority opinion, written by Justice Abella, applied the Doré framework. However, as both Paul Daly and yours truly have suggested, there is little to choose between the way it does so and a more traditional proportionality analysis. Meanwhile, a partial concurrence by the Chief Justice and Justice Moldaver eschewed the Doré approach altogether. Just days later, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, a majority of the Supreme Court took yet another approach, holding that the relationship between the freedom of religion, religious neutrality, and prayer by government officials was a question of central importance to the legal system and therefore reviewable on a correctness standard. Justice Gascon, writing for the majority, did offer an explanation for why this case was different, though one that Paul Daly criticized as confused and confusing. Justice Abella was also unimpressed; she concurred, but would have reviewed the decision of Québec’s Human Rights Tribunal on a reasonableness standard. Neither she nor Justice Gascon even mentioned Doré.

Back, now, to Ktunaxa. Again, the majority opinion does not so much as mention Doré. What is more, it does not even raise, never mind address, the issue of the standard of review. After describing the background and the history of the case, and outlining the Ktunaxa’s religious freedom claim, it proceeds to discuss the Charter right to freedom of religion and to address and reject the claim, without referring, much less deferring, to the Minister’s decision at all. It is worth noting that the Supreme Court’s next decision, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, is the same in this regard. One of the issues raised there was whether a policy requiring government lawyers to be available, several weeks a year, to handle urgent matters outside of regular working hours was an infringement of their right to liberty under section 7 of the Charter. A labour arbitrator said that it was, but the Court (unanimous on this point) easily rejected that view, again without addressing either the question of the standard of review or the administrative decision-maker’s reasoning (though the majority did discuss it at length on the other issue in the case, which concerned the interpretation of a collective agreement).

Justice Moldaver’s concurrence in Ktunaxa is also worth mentioning here. He too starts out with his own discussion of the scope of religious freedom under the Charter, criticizes the majority’s view on it, and insists that the Minister’s decision was a prima facie infringement of that right. And then, Justice Moldaver turns to… the Doré framework (citing the majority opinion in Loyola for the proposition that it is “the applicable framework for assessing whether the Minister reasonably exercised his statutory discretion in accordance with the … Charter“. [136] Justice Moldaver explains why he thinks the Minister considered the Ktunaxa’s religious rights, and why his decision proportionately balanced these rights with the applicable statutory objective, paying fairly close attention to the minister’s reasoning.

So what is going on? Prof. Daly seems to think that not much is, but I’m not so sure. Without telling anyone, the Supreme Court might have killed off, or at least curtailed, Doré. Ktunaxa and Justice Counsel seem to suggest that, at least at the stage of defining the scope of a Charter right, Doré is not the applicable framework, and indeed no deference, or even attention, is due to an administrative decision-maker’s reasoning. Now, I’m no fan of Doré, and would be glad to know it’s dead and buried ― but if the Supreme Court has decided to get rid of it, that seems like a pretty big deal, and it should have told us. As things stand, for all we know, the Court might re-embrace Doré in the next case and pretend that Ktunaxa and Justice Counsel never happened, just as in those cases it seems to pretend that Doré, or at least Saguenay, never happened.

Moreover, there is an intermediate possibility, suggested by Justice Moldaver’s concurrence in Ktunaxa ― though of course we have no idea what the majority of the Court thinks about it, since it does not comment on this, or indeed any other, aspect of Justice Moldaver’s reasons. Perhaps, while the definition of Charter rights, as opposed to the justifiability of infringements under section 1, is a matter for the courts, while the justifiability of infringements is still to be reviewed by applying the Doré framework, perhaps as modified, if modified it was, in Loyola. This is not a crazy approach (which isn’t to say that I like even this diluted version of Doré). One could argue that the scope of Charter rights is necessarily a question of central importance to the legal system on which administrative decision-makers, even otherwise expert ones like labour arbitrators, are not in a privileged position vis-à-vis the courts, while whether a particular restriction to a right is permissible is an issue that is both less important and more bound up with a particular decision-maker’s expertise.

Crazy or not, I don’t think this approach is what Doré stands for. As I read it, Doré meant to move away from the two-stage Charter review with prima facie infringement and justification, in favour of a less structured, more global assessment. This is presumably why Justice Abella persistently spoke of Charter “values” instead of rights. Besides, at least one of the cases that Justice Abella invoked as supporting the proposition that discretionary administrative decisions engaging these “values” had to be reviewed on a reasonableness standard was a section 7 case, and in such cases the important questions typically (although, as we now know, not quite always) have to do with the definition of the right, not with its limitation under section 1. There just isn’t any indication in Doré that Justice Abella or her colleagues meant to confine it to the more limited role that it plays in Justice Moldaver’s Ktunaxa concurrence.

At the very least, then, the Supreme Court may have substantially modified Doré. Perhaps it has decided not to follow it anymore. But, to repeat, the Court has not told us so. This is problematic. Indeed, I think the Court is guilty of a serious Rule of Law failure. The Rule of Law requires law to be stable ― though not unchanging, to be sure ― yet the law on the standard of review of administrative decisions involving the Charter has now changed at least three, maybe four (depending on how to count Loyola) times in less than six years. The Rule of Law also requires, I think, that the fact of legal change be transparent (this is a function of the generally recognized requirement that law must be public). This is not always easy to ensure in the case of law being articulated and re-articulated by courts in the process of adjudication, but at least when a court knows that it is disregarding a relevant precedent or changing its approach to a type of case, it ought to be able to say so. The Supreme Court did so in Saguenay ― but not in Ktunaxa and Justice Counsel.

Or, look at this another way. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court famously spoke of the importance of “the existence of justification, transparency and intelligibility within the decision-making process”. [47] That was by way of defining the notion of reasonableness in administrative law (itself a requirement of the Rule of Law), but you’d think that the courts should at least be held to as high a standard as administrative tribunals. Well, I’d say that it’s not easy to see much by way of justification, transparency, or intelligibility within the process by which the Supreme Court determines the standard of review of administrative decisions involving the Charter these days.

One last point. Justice Stratas links the doctrinal uncertainty that bedevils Canadian administrative law with turnover on the Supreme Court. I’m sure that this is a part of the story ― but Ktunaxa suggests that it is only a part. It’s not just that judges retire and are replaced by others who don’t agree with them. They don’t even stick to one approach while they are on the Court. Justice Abella wrote Doré and defended deferential review in Saguenay, but she signed on to the majority opinion arguably ignoring it in Ktunaxa. Justice Moldaver co-wrote the partial concurrence in Loyola that effectively rejected Doré, but in Ktunaxa he enthusiastically applied it, albeit not in full. (To be sure, there is something to be said for a judge who accepts having been outvoted on a particular issue and falls in line with the majority. But given the overall uncertainty of the law in this area, it might not be the best place to demonstrate one’s team spirit.) Given this individual inconstancy, it is no surprise that the Supreme Court as a whole is lurching from one approach to another without anything to stop it.

Given the lack of clarity from the Supreme Court about what exactly it was doing to standard of review analysis in Ktunaxa and Justice Counsel, we will have to wait to find out whether these case are just aberrations or the start of a new trend. It is at least possible, however, that they mean that Doré is, in whole or in part, no longer good law. I’d offer three cheers for that result, but must instead lament the lack of clarity and transparency with which it has ― unless it has not ― been reached.