Looking past Dunsmuir: Beginning Afresh

Imagining stable and generally acceptable administrative law doctrine

The Hon. Justice David W. Stratas,
Federal Court of Appeal

The views expressed in this post are the author’s own and are offered for education and discussion purposes only.


In my first article for the Dunsmuir Decade series, “A Decade of Dunsmuir: Please No More,” I suggested that Dunsmuir should no longer be followed. But what should take its place?

To some extent, I have already explored this: D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency,” (2016), 42 Queen’s L.J. 27 (available online here).

To create a reliable, stable law of substantive review, we need to: (i) identify settled doctrine and well-accepted principles; (ii) deduce the operational rules from them, and (iii) take into account relevant, widely accepted judicial policies. 

Identification of settled doctrine and well-accepted principles

This step builds the solid and stable foundation upon which one can deduce operational rules to regulate this area of law.

As explained in my first article, operational rules developed in this way have every prospect of widespread acceptance, permanence and consistency of application. On the other hand, operational rules constructed out of judges’ personal views and say-so are not likely to survive the next set of judges on the court.

For too long in this area of law, judges have set out operational rules based on their own personal views of the proper relationship between the judiciary and administrative decision-makers and their own freestanding opinions—not well-settled doctrine and well-accepted principles of a longstanding and durable nature.

As we shall see, the settled doctrine and well-accepted principles that underlay this area of law aren’t just longstanding and durable. They are fundamental constitutional principles as well.  This adds force to the operational rules logically deduced from them. 

Some doctrine and well-accepted principles

Fortunately, settled doctrine and well-accepted principles are not hard to find. Dunsmuir did some of the work for us (at paras. 27-31).

Dunsmuir told us that two principles lie at the heart of judicial review and animate it: legislative supremacy and the rule of law.

The U.K. Supreme Court recently affirmed this same idea: Michalak v General Medical Council, [2017] UKSC 71; and see commentary here.

Legislative supremacy suggests that laws passed by legislators must be obeyed. The rule of law suggests that administrators must comply with certain time-honoured standards concerning decision-making processes and substantive outcomes.

The principles of legislative supremacy and the rule of law sometimes can pull reviewing courts in different directions: in some cases, the former tells us that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides (e.g., where the legislation contains a privative clause), but the latter tells us that courts can interfere if certain decision-making standards are not met. Sometimes these principles work in harmony (e.g., where the legislation allows for a full right of appeal).

There is a corollary of these two principles. The corollary also has constitutional force. Our law has a fundamental ordering, one so well-accepted that if any judges do not accept it, they ought to quit and run for public office instead. The principle? Unless valid constitutional concerns are present, laws passed by the legislators bind all, including judges: Imperial Tobacco. Judge-made law must work within the parameters supplied by legislation and cannot oust legislation: see the general discussion in D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 9-14 and 77.

Another principle also springs from the principle of legislative supremacy. But for clarity it is best identified as a separate principle. Where the legislator has vested decision-making power in an administrator and judicial review lies to a reviewing court, administrators and reviewing courts have two different, exclusive roles. Administrators are the merits-deciders and reviewing courts are the reviewers: see discussion in cases such as Access Copyright  at paras. 17-20; Bernard at paras. 17-19; Gusto TV at para. 11; Robbins at para. 17; Tsleil-Waututh at paras. 85 and 87. Each, bound by law, must stick to its role.

A fourth principle is the nature of the separation of powers. Like legislative supremacy and the rule of law, this too is a constitutional principle: Judges’ Reference; Babcock at para. 54.

How does separation of powers play out? In our system of government, government decisions can be placed on a spectrum.  At one end are legislators and their decisions to make laws. Then there are decisions by others, sometimes legislative in nature, on truly political matters or tough political questions about who gets what privilege or grant; in consideration here are political determinations and the government’s view, sometimes ideological, of what is best for all. A little further over are decisions, sometimes legislative in nature, on broad policy matters. Even a little further over are decisions on broad policy matters where some of the policies are informed by laws on the books. Further over are decisions based on a mix of policy matters, legal considerations such as the interpretation of legislation and the adjudication of rights and legal entitlements. Even further over are matters even more in the realm of fact-finding and legal adjudication, devoid of policy content. And then there are decisions pretty much indistinguishable from the matters courts typically handle, matters firmly in the realm of fact-finding, ascertainment of the law and application of the law to the facts, with a view to settling rights and legal entitlements without regard to policy considerations. And then, finally, at the other end of the spectrum there are courts adjudicating rights and entitlements.

Logically, at the legislative end of the spectrum, one would expect that courts would be reluctant to interfere. And absent constitutional concerns, they can’t on the grounds of justiciability. But go a little further in and we find administrators whose decisions are justiciable but who decide matters in a way that is quite alien to what courts do. Way at the other end, just before we reach the courts, one would expect that administrators such as these could be policed quite closely by courts; they are deciding matters and deciding in a way that is pretty much indistinguishable from what courts do.

Put bluntly, at one end, the matters being decided are not in the ken of the court or in its wheelhouse. And at the other, they most certainly are. This has obvious relevance to the intensity to which courts should review various administrative decisions. 

Deducing operational rules from the doctrine and principles: an introduction

Before deducing operational rules from the doctrine and principles, we must consider what sort of operational rules we ought to have in this area of law.

The consideration of this, below, draws upon a more complicated and vigorous debate in the United States concerning the desirability of rules, standards and principles to regulate subject-matters: those interested in pursuing this further can begin, e.g., here and here, and this is just the tip of a large iceberg.

For our purposes here and to keep things simple, I will posit that operational rules can come in two types: rigid and tangible rules and looser, more conceptual, flexible rules.

An example of the former is the test for an interlocutory stay or injunction: RJR-Macdonald. There, one must satisfy three rigid, tangible requirements.

An example of the latter is the test in negligence for determining whether a defendant has fallen below the standard of care expected of persons in the defendant’s position. To the extent that definition of the concept is required, the definition develops as cases are decided over time and it is discovered through good common law method. This is not an area where judges are shackled by a multi-branch test with rigid, tangible requirements that must be met. In the end, judges know the concept and they are trusted to apply it to the cases before them.

In the area of standard of review—determining the extent to which reviewing courts should interfere with an administrators’ decision—what’s best?

A scheme where there are a set number of categories—say, just two—with tangible rules about when each applies? And no flexibility within the categories to adjust the intensity of review? Just two intensities of review, and no others?

Or a more flexible, conceptual, non-categorical approach, one where we recognize that there is a spectrum of intensities of review that vary according to the context?

In the area of appellate review under Housen, the binary categories of review (correctness or palpable and overriding error) depending on whether the appellate court is dealing with questions of law, mixed fact and law, or pure fact makes sense because the context is relatively static. But the substantive review of administrators’ decisions must be different. A more flexible, conceptual, non-categorical approach makes sense because, as explained in the discussion of the separation of powers, above, the administrative context varies so sharply.

The contributions to the Dunsmuir Decade series suggest that most of our leaders in administrative law support a greater reliance on context for determining the extent to which reviewing courts should interfere with administrators’ decisions. I have found no wholesale endorsements of the presumptions set out in Dunsmuir. In academic papers, three of our most well-regarded and knowledgeable administrative law scholars agree that a more contextual approach is apt: P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness”; L. Sossin, “The Complexity of Coherence: Justice LeBel’s Administrative Law” and G. Heckman, “Substantive Review in Appellate Courts Since Dunsmuir” (2010), 47 Osgoode Hall L.J. 751 at 778-79.

Judicial policies

In designing operational rules to govern this area of law, universally-accepted judicial policies about how legal proceedings should unfold—not the just the say-so’s and on-the-spot opinions of a particular constellation of judges at a particular moment about social and political values—should play a role. Where the doctrine and principles suggest a number of possible operational rules, the one that best advances these policies should be chosen.

The sorts of judicial policies I am thinking about are access to justice, judicial economy and minimization of litigation expense, as explained in leading decisions such as Hryniak, Danyluk and Housen.

And related to this are insights gleaned from a greater appreciation of the nature of administrative law and the values that animate it, values that judges in this area of law need to draw upon in exercising their discretions: see P. Daly, “Administrative Law: A Values-Based Approach” in J. Bell et al (eds.), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford, Hart Publishing, 2015); and see how administrative law values were deployed to shape operational rules in Tsleil-Waututh, Wilson (F.C.A.) at para. 30, and Bernard.

In considering judicial policies, care must be taken not to elevate any one consideration too far and create operational rules that no longer reflect settled doctrine and well-accepted principles.

For example, minimization of litigation expense might cause some impulsively to advocate for operational rules that are hard-and-fast and simple to apply; some contributors to the Dunsmuir Decade series seem all too ready to go there, for the sake of simplicity.

But simple, one-size-fits-all approaches are at odds with the broad and varied nature of administrators, their decisions and their mandates. Nor are they rooted in settled doctrine and well-accepted principles and, thus, they lack persuasive force and permanency.

The result? Injustice is seen, judges start to chafe, they construct ad hoc exceptions upon exceptions to address the injustice, the longed-for simplicity is lost and, ultimately the operational rules, lacking persuasive force and permanency, join the graveyard of failed approaches over the last few decades.

We’ve seen this all-too-many times. The approach Dunsmuir replaced was called “pragmatic and functional.” It was replaced because it turned out to be neither pragmatic nor functional. The desire in Dunsmuir was about greater simplicity. So how did that work out?

Rigid, inflexible rules aimed at simplicity can be a siren song leading to disaster. And do not underestimate for a moment the simplicity that can emerge from clearly stated operational rules of a conceptual nature founded on definite, well-understood, longstanding doctrine and principles. 

Some possible deductions

What can be deduced from all of the foregoing?

1. Let’s begin with the idea that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides. Let’s combine this with the idea that laws passed by legislators bind all, even courts.

This suggests that reviewing courts must take note of what legislators have said in their legislation. In short, legislative interpretation must be a key part of the exercise of judicial review. In terms of when a reviewing court may intervene, what did the legislature intend?  (By the way, Dunsmuir said this at paras. 30-31, but Dunsmuir’s presumptions and contextual factors and cases post-Dunsmuir have largely ignored this.)

We interpret legislation—discover its authentic meaning—by examining its text, context and purpose: Rizzo and Rizzo; Bell ExpressVu; Canada Trustco. The focus is on what the legislators—the people with the exclusive right to make laws under ss. 91 and 92 of the Constitution Act, 1867—enacted, not what we would like to see enacted. We must do this neutrally and dispassionately without injecting into the analysis our own preconceptions about the extent to which courts should interfere with administrators’ decisions, our opinions about what is best for Canadians or our own musings about what we personally think is sensible and practical: Williams at paras. 41-52; Cheema at paras. 76-80.

This is something courts are very experienced in doing.

Implications can follow. While legislative text may permit a full appeal, this does not mean that a reviewing court may interfere whenever it wants. The legislation, properly interpreted, may suggest that restraint by the reviewing court is in fact warranted.

Where a securities commission makes a decision relying upon a complicated, relatively non-legal, policy-based understanding of the securities industry, did the legislature really intend that courts can interfere with the decision whenever they want to? When the legislation says that an administrator operating in a field that is outside of the ken of the courts can grant a licence when “it is of the opinion that it is in the public interest,” isn’t the legislator really saying that it is for the administrator to decide what is in the public interest with a minimum of interference?

2. Next, the rule of law.

Legislative text can bar an appeal or a review, for example by way of a clause called a “privative clause”. But that does not mean that a reviewing court can never interfere. As explained above, as a matter of legislative interpretation, the legislation, properly interpreted, may suggest that interference by the court in limited circumstances is warranted.

And even if the legislation truly bars appeals in all circumstances, the rule of law allows courts to interfere nonetheless: Crevier; Dunsmuir at para. 31.

But rule of law concerns vary in size and shape. Cases show that the courts’ sensitivity to rule of law concerns is accentuated by decisions that have significant impact on the individual. The more drastic the measure upon an individual, the more likely the court will be vigilant and ensure that the administrator has complied with basic and fundamental substantive and procedural standards of decision-making.

All are subject to law. No one can be a law unto themselves. All must be accountable to the public they serve. Accountability is a particularly important concern for administrators who are emanations of executive government, i.e., part of government as a whole.

Thus, administrators cannot be immunized from meaningful review by reviewing courts nor can they conduct themselves in a way that shields their decisions from review: Crevier, above; and see discussion in Tsleil-Waututh. This has implications for the giving of reasons: administrators must explain themselves sufficiently in order to be accountable to the public and they must say enough to make review possible.

3. In developing and identifying operational rules, courts should respect the third principle—that of the separate roles of the administrator as merits-decider and the reviewing court as reviewer. Operational rules cannot place the reviewing court in the position of merits-decider. This must shape some of our operational rules—e.g., rules concerning the admissibility of evidence in reviewing courts and the role that reviewing courts should play in coming up with reasons that the administrator should have given.

4. Let’s recap some of the above. Legislative interpretation is case specific. As mentioned above, the rule of law assumes greater or lesser prominence depending on the nature of the case. Different types of administrators have different types of decisions. And administrators occupy different positions in the spectrum of administrative decision-makers, at one end completely different from courts and what they do and at the other end virtually the same.

This suggests that the extent to which a court can interfere with an administrative decision must be a qualitative, conceptual assessment that results in a sliding scale.

It follows from the foregoing that the determination of the extent to which reviewing courts should interfere with an administrators’ decision—the intensity of review—is like a dimmer switch, not an on-off switch. Slotting cases into rigid single-standard categories like correctness and reasonableness is inapt.

A few words about a longstanding, uniquely Canadian predilection

For decades now, Canada has dealt with the intensity of review by constructing artificial categories of review and forcing judges to ram their cases into them. We also seem to venerate a superstructure of arcane rules decreeing what goes into what category. Chaos and constant revision is the result.

So we’ve suffered through categorizations into jurisdictional error and non-jurisdictional error, legislative, administrative, quasi-judicial and judicial decisions, categories of correctness, reasonableness and patent unreasonableness and, now, categories of correctness and reasonableness.

Consider for a moment what’s more likely to be true: as a result of Dunsmuir, Canada has found the magic elixir, the idea of two inflexible, single-standard categories of review, and everyone else in the world is silly not to do the same, or Canada is an outlier that stubbornly clings to an idea that everyone else has rejected for good reason?

And what’s the point of all the gymnastics and the spilling of so much ink on whether the standard of review is correctness or reasonableness—and then just doing correctness anyway?

And, with apologies to the majority in Edmonton East, what is wrong with contextual approaches anyway? What I advocate (see below) is not unlike the contextual approach of Baker for determining the level of procedural fairness owed. And Baker has brought relative calm to the law of procedural fairness. A contextual approach can do so here as well. The test for negligence is a contextual approach and no one is calling that law a never-ending construction site; it is reasonably settled in 99.9% of the cases it regulates. Over time, case-by-case, the common law gives a good measure of certainty and predictability.

Some suggested operational rules

From the foregoing, I suggest the following operational rules for this area of law. They are supported by settled doctrine, well-accepted principle and judicial policy. Because of that, if they are adopted, have every chance of widespread acceptance and permanence.

1. The intensity of review must be on a sliding scale that varies according to the terms of the legislation, the breadth of the discretion granted, the prominence of rule of law considerations (including the drastic nature of the decision upon the individual), the nature of the decision-maker and the nature of the decision. Administrators have varying margins of appreciation or ranges of what is acceptable depending on these circumstances.

Avoid rigid tests on this. Let reviewing courts stir all these factors into a pot and decide on the intensity, allowing them to express it in general but still helpful terms. Examples: Farwaha; Boogaard; Mills; Re:Sound; Delios; Abraham; Almon Equipment; Erasmo; Walchuk; Emerson Milling; and see P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” and D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-73. Of these, perhaps Boogaard contains the most comprehensive analysis and weighing of factors that can affect the intensity of review.

Indeed, some of these bear a remarkable resemblance to cases in other Westminster jurisdictions whose law is not as chaotic as ours: see, e.g., Wolf v Minister of Immigration, [2004] NZAR 414 (N.Z.H.C.); AI (Somalia) (“the lawfulness of the exercise of powers by a body that is unusually constituted must be judged against its nature and functions, powers and duties and environment in relation to those of other bodies”); Rotherham Metropolitan Borough Council v Secretary of State for Business Innovation and Skills, [2015] UKSC 6; R. v. Secretary of State for the Home Department, [2014] UKSC 60. This suggests that the Canadian cases, above, are on to something useful.

And let’s be honest: cases decided under the reasonableness standard do exhibit variable intensities of review. We see fussy review, not-so-fussy review, and correctness review.  This operational rule reflects what judges, cognizant of the relevant factors, are inclined to do anyway.

Under the approach I suggest, the strong, judge-made presumption of reasonableness adopted by the majority in Edmonton East would disappear, with legislative interpretation playing a greater role in the analysis amongst other factors.

Overall, this would result in more correctness review. Legislative regimes where there is no privative clause (often with a full right of appeal) and other legislative indicators of correctness review will often lead to correctness review; on the other hand, the assignment of power to administrators in specialized areas to grant to withhold licences or approvals based on public interest criteria will often lead to a more deferential review. A good discussion of this is here. The dissenters in Edmonton East are far closer to the approach I suggest.

A return to the old, discarded approach of correctness review for “jurisdictional questions,” recently advocated by a minority of the Supreme Court in Guérin, should be rejected for all the good reasons offered both long ago (see N.B. Liquor at p. 233) and recently (Halifax); and see the compelling majority reasons of the U.S. Supreme Court in Arlington.

“Correctness review for jurisdictional questions” is an example of the siren song of simplicity I spoke of above, one that leads to unprincipled word games and arbitrariness. Under my suggested approach, matters that the Guérin minority considers to be “jurisdictional” and that the administrator “must get right” are going to be matters of legislative interpretation that admit of few interpretive options, i.e., matters on which there the administrator will have little or no margin of appreciation. The Guérin minority could easily live with the operational rule I propose here; and it would be better and offer more permanence because it is based on settled doctrine and well-accepted principles.

2. Make more tangible and rigorous the assessment whether a decision passes muster under deferential standards of review. Identify specific circumstances that can take a decision outside the range of acceptability and defensibility. The cases cited under point 1, above, all do this. Examples include: disobedience with constraining legislation such as legislative recipes that must be followed (Almon Equipment and Emerson Milling); disobedience with mandatory principles such as procedural fairness, constitutional standards, other fundamental standards such as the need for reconciliation with Indigenous peoples and First Nations (Canadian Human Rights Commission); disobedience with court cases that are directly on point and cannot be distinguished on the facts or policy (Abraham; Emerson Milling). For a good approach to deferential review of administrators’ legislative interpretations, see Allen. For more, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-63.

Certain indicia or badges of reasonableness and unreasonableness can be identified from the case law. These can provide reviewing courts with useful illustrations: Delios at para. 27; Farwaha at para. 100; Re:Sound at paras. 59-61; Boogaard at para. 81; Forest Ethics at para. 69; and for a more complete list of badges, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 63-66.  This promotes certainty which facilitates access to justice by fostering predictability of result.

3. End de novo appeals to appellate courts. Judicial economy, access to justice and minimization of expense require this. Absent legal error, first instance reviewing courts deserve deference to their heavily fact-based assessments of the intensity of review. In other words, repeal Agraira and import Housen to govern appellate review.

4. Reviewing courts must stick to their role and not delve in the merits. Their job is to ensure that administrators required by legislators to grapple with a problem have in fact grappled with it. They are not to do the administrator’s job. Therefore, it is no part of the reviewing court’s function to redraft, correct or supplement administrators’ reasons for decision. Neither is it their role to detect error on the administrator’s part and then cooper up the outcome reached by the administrator—an outcome that an administrator might not have reached had it known of its error.

5. A corollary of the relative roles of reviewing courts and administrators is that administrators’ reasons must be sufficient to permit review and to fulfil their obligations of public accountability. A standard similar to that proposed in earlier, lower-court cases on adequacy of administrators’ reasons is designed to meet those objectives and, thus, is more doctrinally sound. Note that these cases sit comfortably with this recent U.K. Supreme Court decision on point.

6. The evidentiary and procedural law of judicial review must reflect the contrasting roles of reviewing courts as reviewers and administrators as merits-deciders. To a large extent, this is happening in the Federal Court of Appeal: see Access Copyright at paras. 17-20, Bernard at paras. 17-19, Gusto TV at para. 11, Robbins at para. 17, Tsleil-Waututh at paras. 85 and 87; and see cases from other jurisdictions referred to in these cases.

7. Judicial economy and efficiency require reviewing courts to take more seriously their remedial discretion. Although a decision is liable to be set aside and sent back for redetermination, that needn’t happen: MiningWatch Canada; Mobil Oil. Circumstances may suggest otherwise. Would any purpose be served in sending the matter back? Realistically speaking, is there only one correct or acceptable result and so there is no point in sending it back? Does chronic or severe maladministration by the administrator mean that the matter should not be sent back but rather should be determined, exceptionally, by the reviewing court? Are there important practical reasons why it should not be sent back? If it is sent back, can the reviewing court, while respectful of the administrator as the merits-decider, still offer guidance by giving fulsome reasons or imposing terms. See generally D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 102-109.

Deduced logically from settled doctrine and well-accepted principle and leavened by contemporary judicial policy, these operational rules will have real staying-power. They give us the best chance of finally ending the tumult and chaos that has afflicted this area of law for decades.

Personal comments

I am one of the last contributors to the Dunsmuir Decade series. On behalf of all of the contributors and on behalf of the administrative law community I would like to offer my personal congratulations and thanks to Professor Daly and Professor Sirota.

I congratulate them both for organizing and carrying out this Dunsmuir Decade series. Collectively, the articles are most illuminating. They have assisted the Bar, academia and the judiciary in understanding the latest issues in the law of substantive review of administrators’ decisions. We are all better for this.

Their blogs, Administrative Law Matters and Double Aspect, are such a service to the legal community. They keep us acquainted with important and interesting developments in administrative law and more generally in public law. To get such prompt insights on the latest legal developments from two cutting-edge experts is a real privilege. Even when we disagree with them, they cause us to reflect, question our preconceived notions, and think about what is correct. Because of the generous work of Professor Daly and Professor Sirota, often many of us end up in a better place in our own work.

Congratulations and thanks!

All about Administrative Law

Justice Stratas’ remarkable endeavour to improve our understanding of administrative law

Justice Stratas recently posted a most remarkable document on SSRN. Called “The Canadian Law of Judicial Review: Some Doctrine and Cases“, it is nothing less than a comprehensive overview of the concepts, principles, and rules of administrative law in an accessible format, for the reference of judges, lawyers, scholars, and students. While Justice Stratas cautions that it “is not meant to be complete” (1), and notes ― with perhaps just a little optimism ― that it “can be read from beginning to end in one short sitting” (7), the wealth of information it contains is really astonishing.

Here is how Justice Stratas himself describes what he is doing:

 It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review.

Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available).

The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers’ understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

(SSRN abstract; some paragraph breaks removed)

Justice Stratas’ work (I am not sure how to describe it ― it is neither an article nor a case- or textbook; in a way, it is perhaps a super-blog-post; more on that shortly) is of course an outstanding service to the legal profession writ large. But it is also, I think, a challenge to us, or indeed several challenges at once.

For one thing, as he did in his lecture on “The Decline of Legal Doctrine” last year, which I commented on here, Justice Stratas calls upon us to devote ourselves to shoring up this weakened edifice. As he notes in his introduction, in order to treat litigants fairly, judges must apply

ideas and concepts binding upon them, a body of doctrine. … If decisions are made because of an individual judge’s sense of fairness or justice, the appearance, if not the reality, is that the decision sprung from personal or political beliefs of an unelected person. (4)

Here, Justice Stratas now says, is a restatement of the ideas and concepts that structure administrative law. One challenge for us simply to help him with it: “contributions of case law, articles, comments and input will improve this document and are most welcome”. (9) But there is a broader challenge here too, especially to those of us in academia. If a sitting judge is able to produce such a statement in a notoriously tricky and unsettled area of the law, why haven’t we done something similar in others?

Now, of course there treatises and textbooks in many areas of the law, and part of what prompted Justice Stratas to put together his document, which is based on PowerPoint presentations he uses to speak on administrative law, is the dearth of “new, up-to-date texts on administrative law, perhaps reflecting its currently unsettled nature. Who dares write about a landscape that is shifting so much?” (6) But Justice Stratas challenges us on the form as much as on the substance. He forces us to think about the media we use to present legal doctrine, even we do write about it.

Justice Stratas points out that

[b]ack in the day of published law reports, knowledgeable editors, skilled in the area, could pick out the cases that matter. These days, however, most lawyers work online, not from the law reports, encounter the flood of cases and somehow have to separate the wheat from the chaff. Alas, most don’t have criteria in mind to do that. (5)

Meanwhile, loose-leaf services, though informative as to particular cases, might tend to “encourage us to think of administrative law as a bunch of particular rules that govern particular topics”, (6) without thinking about underlying concepts and their inter-relationships. (Justice Stratas’ concerns here echo those of Jeremy Waldron, whose work emphasizes the “systematicity” of law, and seeks to push back against treating it as just a collection of unrelated rules and commands.)

And then, of course, there is a concern about access to justice, or to law anyway. In an age in which, on the one hand, many litigants represent themselves, and on the other, those who take interest in Canadian administrative law are sometimes half a world away from a Canadian law library, and also in an area in which the resources even of many practising lawyers are likely to be limited (I’m thinking, for instance, of the immigration bar), it would arguably not be enough to point people to books even if very good ones existed. Justice Stratas writes that

[t]he law should be accessible to all: other judges, counsel, academics, law students, parties and self-represented litigants. Online publication and availability for free encourages this. Hence this document and the location where I have posted it. (6)

If we accept the doctrinal mission with which Justice Stratas wants to invest us, we must think about the form of our work as well as its content. I’m not sure that we must quite imitate Justice Stratas. His document has some advantages. It is relatively easy to access, concise, and convenient in its abundant use of hyperlinks. But I think that a website having the same content would be even easier to access than a document one must download from SSRN, and easier to navigate than a pdf through which one must scroll. Needless to say, I am not criticizing Justice Stratas. Again, we owe him greatly, and I, at least, would probably not have started thinking about this without his nudge. But if can improve on his first attempt in this regard, then we should.

Last year, I wrote about about a symposium at McGill about the “Responsibility of Doctrine”. Musing on the English/common law and French/civilian senses of the word doctrine/doctrine, I concluded that if these ongoing conversations about the law “are to flourish in the 21st century, they will need to remain open to new forms, and … it will not do to ignore these new forms simply because they are unfamiliar.” Justice Stratas makes a remarkable contribution to legal doctrine, in both of its senses, in an unfamiliar form. I hope that the legal community will pay all the more attention to it for this reason.

H/t: Patrick Baud

(La) Doctrine

What do legal doctrine and la doctrine have to do with each other?

I was at the colloquium that McGill’s Crépeau Centre held on Friday for its 40th anniversary on the topic of “The Responsibility of Doctrine.” It was quite interesting, if a little uncanny for someone who, despite my McGill professors’ best efforts, never found the civil law quite congenial. Without going into anything like a detailed comment on the proceedings, I would like to offer the following meditation on a subject that the panellists did not actually discuss but which I think their presentations illuminated nicely: the complicated relationship between the civilian (and mostly French) and the common law (and thus mostly English) senses of the word “doctrine.”

The civilians’ doctrine is (roughly, because the actual definition is debated) the set of writings, learned but not necessarily academic, that synthesize, explain, analyze, and possibly criticize the state of the law. The common lawyers’ doctrine, according my own tentative definition, is the set of rules and principles that can be derived or inferred from judicial decisions. The two words do not mean the same thing, then. They are, linguists or translators would say, “false friends.” But are they really friends at all? Or, conversely, are they actually false?

Some civilians deny that there even is such a thing as la doctrine in the common law world. And, for their part, they have no word that would be equivalent to the common lawyers’ doctrine, and perhaps they have little use for such a word, given the opacity of the traditional civilian judicial decisions, and the subordinate status of la jurisprudence as a source of law. If so, then la doctrine and doctrine can hardly be friends at all; indeed, it is almost as if “never the twain shall meet.”

But this seems too quick. As Derek McKee pointed out, it’s not so clear that there is no doctrine in the common law world. (Peter Hogg’s Constitutional Law of Canada seems an obvious example, for instance.) Sébastien Grammond, for his part, said that even judicial opinions, or at least some them, could be regarded as part of la doctrine, insofar as they serve the same function of stating and explaining the law. This cannot happen in the single-page decisions of the French courts, but does happen here. (And perhaps, conversely, the more common-law-like decisions of the courts that apply Québec’s civil law can also produce doctrine in the common law sense.)

That said, the differences between the common and the civil law systems are relevant to the relationship between doctrine and doctrine. The respective roles of the different branches of the legal profession, especially the judicial and the academic ― and their publishing habits or obligations ― mean that the participants in and the form of doctrine and doctrine differ. Judges are in theory ― and subject to prof. Grammond’s above-mentioned comments ― excluded from la doctrine. They are, by contrast, the most significant contributors to doctrine. La doctrine develops, first and foremost, in books and articles. (There was much interesting discussion, especially by Élise Charpentier, about the fluctuating respective fortunes of these two media.) Doctrine grows in the pages of law reports as well as law reviews and law books ― although Justice David Stratas has recently argued that it is in danger of being drowned out by the siren songs of result-oriented reasoning, in public law fields anyway.

However, these differences are less important than what doctrine and doctrine have in common. The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. (This point was, I think, most clearly made by Aurore Benadiba.) And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture that I link to above, or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes (and some, notably prof. Grammond, have argued that the responsibility runs beyond the legal profession itself). So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. I am trying my best to answer the call. And so I will conclude with an observation that was entirely ignored in Friday’s presentations ― except prof. Grammond’s.

The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. What I’m trying to say is not, of course, that anyone should read or comment on what I write (though it’s nice when that happens). It’s that if doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.

Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

Last week, at the Canadian Constitution Foundation’s Law and Freedom 2016 conference, Justice David Stratas of the Federal Court of Appeal delivered a fascinating lecture called “The Decline of Legal Doctrine.” I highly recommend it. I won’t summarize it beyond saying that Justice Stratas’ thesis is that judges, lawyers, and academics are all guilty of a lack of interest in legal doctrine and tend to see the law as largely result oriented, which diminishes the legitimacy of judicial decision-making and risks leaving us at the mercy of dangerous prevailing opinions should crisis strike. There is simply too much there, and it is too important, for a summary to be useful. I will share a few reflections of my own below. Here it is.

Before I get to my comments, I want to say that I am, of course, very flattered at being mentioned as one of the exceptions to the general lack of interest in legal doctrine. Indeed, I am flattered that Justice Stratas should read my blog at all. I hope, however, that my gratitude for Justice Stratas’ kind words does not bias my views of his lecture.

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Here they are, in a somewhat disjointed form. With one exception, they concern things that Justice Stratas did not say, and which I would love to hear him say more, at some future point, rather than things he did say with which I disagree. They are, in other words, intended not as criticisms, but as questions.

1. Let me start with the word “doctrine” itself. Maybe it’s just me, but I find it a slippery one ― it’s one of those words that lawyers love to use that can mean different things in different contexts, perhaps depending on whether we use them with a definite or an indefinite article, or no article at all, while assuming that everyone knows what we are talking about. A non-lawyer in the audience asked Justice Stratas what the difference between legal “theory” and legal “doctrine” was, but only got a definition of “theory” in response. As best I can though, legal doctrine (no article) is the set of rules and principles that can be derived or inferred from judicial decisions.

Here’s an interesting twist though: later in the Q&A, Justice Stratas spoke of the various types of judges and said that “doctrinal” judges are those who “understand the rules but want to know more about how to use them and these are perhaps reformist people that might want to tweak or modify the rules.” I think that this connection, in practice if not as a matter of definition, between an interest in the rules and their underlying principles on the one hand, and an interest in tweaking them on the other, might be, if not slightly paradoxical, then at least in tension with the need for doctrinal stability of which Justice Stratas spoke so passionately. Does doctrine bear the seeds of its own destruction?

2. Justice Stratas argues that we need stable, coherent, legal doctrine to which lawyers and judges alike are committed because we might not always live in “benign times,” and in a moment of crisis we will be better off if judges decide controversial cases on the basis of stable legal doctrine rather than of what they feel is right or fair in those ominous circumstances. Crises rarely make for clear, even-handed thinking. Legal doctrine is, in other words, a form of pre-commitment that will save us from the siren calls of rights-crushing emergency.

I would like to think that this is true. But is it? Can we think of situations where doctrine has played such a role? And indeed, why do we think that a commitment to legality will be less likely to falter in a time of crisis than a commitment to justice? That, after all, is the underlying premise of the claim that doctrine will save us even if the judges’ sense of right and wrong is swayed by momentary considerations. Again, I would like this to be true, but I wonder if we have reasons to think it is, other than our desire for it to be.

3. Justice Stratas argued that we must devote ourselves to stabilizing legal doctrine, to settling public law doctrine in a comprehensive way ― and that we must do it right away. Tomorrow will be too late. At present, public law is too unsettled ― precedents can be reversed with little apparent explanation, or simply ignored without being reversed. (An aside: one area which Justice Stratas specifically mentioned as illustrating this trend is the courts’ relationship to empirical evidence, and the rule ― which he tied to the Supreme Court’s recent assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, but which actually goes a little further back, to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ― that appellate courts should defer to a trial judge’s findings with respect to such evidence. Some of the points he made in criticizing this rule seem to echo ideas I have expressed on this blog, especially here, so I was very glad to learn that Justice Stratas shares these concerns.)

Here’s a question though. If we accept, as I think we should, the mission that Justice Stratas wants us to undertake, what is our departure point? Do we simply take the current state of the law as a given and stop messing with it, on the assumption that it is more important that things be settled than that they be settled right? Or should we, in order to build on solid foundations, go back to first principles to some extent ― at the risk of reversing some more precedents? Are there other potential pitfalls to deciding from first principles? Justice Stratas praised the Supreme Court of the 1980s for its “painstaking,” “scholarly,” and “balanced” approach to Charter cases, in which it had to build doctrine from the ground up ― but I wonder if that is not idealizing things somewhat.

4. Justice Stratas argues that a doctrine-focused approach to judicial decision-making, even in cases of first impression or those involving conflicting lines of authority, can be free from politics, and that the judges’ personal views matter less than people tend to suppose. That is true, as I’ve often said, if we understand politics in a partisan sense or, as Justice Stratas might have meant it, as synonymous with results-oriented reasoning. However, as I’ve also often said, I think that politics, in a much broader sense of ideas about how the state and society as a whole should be organized does matter to judicial decision-making. Justice Stratas speaks of developing legal doctrines in ways that “make sense” ― but it seems to me that legal doctrines make sense in light, among other things, of certain values that they reflect or serve, and that these values can be described as political, in a broad sense.

This is perhaps the only point on which I disagree with Justice Stratas. Though it might be a disagreement about words more than about the underlying realities, I think that the words matter. I worry that complete denials of the political aspects of adjudication come across as overdone, and as a result do not actually help the courts establish their legitimacy.

5. That said, Justice Stratas was right to criticize those ― whether academics, lawyers, students, or journalists ― who think of judicial decisions purely in terms of results and their political implications, real or supposed. (He compared such commentary to “essentially an open-line radio-show comment put in an educated way using highfalutin legal language.”) He was also right to lament judicial decisions that leave room for such interpretations, in particular through their failure to adequately explain, in terms of legal doctrine, the outcomes that they reach.

I wonder, though, what can be done about this very real problem. I’m afraid that judges focusing on the doctrine and explaining their decisions will not be enough. For instance, I don’t think that the Supreme Court’s recent jurisprudence in the area of language rights is half bad, in terms of engaging with doctrinal issues. Yet in December’s Policy Options, a couple of political scientists published a tendentious take-down of this jurisprudence looking at it entirely through the lens of results (which happened to go against language-rights claimants) and, as I have argued in a Policy Options blog post, blithely ignoring the law in the process. In other words, people are liable to misrepresent the courts’ work as results-oriented even when any fair reading of the decisions in question shows that it is not. Dan Kahan et al. wrote about this problem in a fascinating study (about which I blogged for the National Magazine) that found that while legal reasoning tends to be based on legal, rather than (narrowly) political considerations, “our system of justice lacks reliable practices for communicating courts’ neutral resolution of divisive matters.” Lawyers should, no doubt, try to push back against tendentious and uninformed criticisms of the judiciary (though as I have also argued they should do so without misrepresenting all criticism as tendentious or as endangering the Rule of Law!). But is that enough?

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Well, this is more than enough for me. Again, I express my gratitude to Justice Stratas for a fascinating lecture and for his kind words, and I hope that he comes back to this topic in the future. The above questions and quibble notwithstanding, Justice Stratas is right that we need to take legal doctrine seriously, and we owe him for reminding us of this.