Adequate Alternatives

Last week, the Supreme Court issued an interesting decision which, although apparently only concerned with judicial review (of the administrative law sort) and the respective jurisdiction of the Federal and superior courts, also tells us something about the role of the courts more generally. The case, Strickland v. Canada (Attorney General), 2015 SCC 37, was an appeal from decisions by the Federal Court and the Federal Court of Appeal not to hear an application for judicial review of the legality of the Federal Child Support Guidelines, which the applicants said did not comply with the requirements set out in their enabling legislation. The Supreme Court unanimously dismissed the appeal, and held that the federal courts were right to decline to exercise their undoubted jurisdiction to review the Guidelines’ legality.

Both federal courts concluded that provincial superior courts would be better placed to consider such a challenge, within the context of a case where the Guidelines would be applicable. Such cases, and family law matters more generally, are the preserve of the provincial courts. Federal courts have very little say in family law, and lack the expertise in this area. The interests of justice, they thought, would be better served by having a more expert court consider the issue.

The first question which the Supreme Court addressed was whether it was indeed the case that a provincial superior court could consider a challenge to the Guidelines’ legality. Section 18 of the Federal Courts Act, after all, gives the federal courts exclusive jurisdiction to review the actions of the federal administration, including the regulations it issues, such as the Guidelines. However, Justice Cromwell, for the majority, concluded that “[a] provincial superior court can hear and determine a challenge to the legality of the Guidelines where that determination is a necessary step in disposing of support proceedings properly before it.” [15] He pointed out that the Court already held, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, that superior courts could exercise their jurisdiction to award damages against the federal Crown without the federal courts having first considered the legality of the Crown’s conduct in the context of an application for judicial review. This decision, Justice Cromwell said, “support[ed] the principle that the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts.” [22] Thus if a litigant who is seeking or opposing a child support order wants to challenge the legality of the Guidelines in a case before a superior court, he or she may do so.

Given this conclusion, the second question for the Supreme Court was whether the federal courts were right to decide that such a challenge would be a better vehicle for considering the legality of the Guidelines then an application for a declaration made to the federal courts. The courts’ power to review the legality of the decisions of governments (as well as some other organizations) is discretionary, meaning that in some circumstances, the court will decline to exercise it. This is particularly so, Justice Cromwell pointed out, when the remedy sought is a declaration. As Justice Cromwell further pointed out, “[o]ne of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative,” [40] which “need not be the claimant’s preferred remedy or identical to that which the claimant seeks by way of judicial review.” [59] In this case, the question was whether challenging the legality of the Guidelines before the provincial superior courts was such an alternative, an issue that must decided by looking at all the circumstances of the particular case, including “the purposes and policy considerations underpinning the legislative scheme in issue.” [44]

The appellants claimed that going to the Superior Courts was not an adequate alternative for them. They did not want to (re)litigate their child-support cases ― they only sought to have the Guidelines themselves declared illegal, and thus had no reason for turning to the superior courts. But unlike litigants asserting a private right, the “appellants do not have a right to have the Federal Court rule on the legality of the Guidelines,” [48] and the Court was entitled to refuse to do so. In making that decision, it could not

simply look at the alleged advantages of judicial review from the appellants’ perspective so that they can make their point, but also must engage with the more fundamental questions of how judicial review interacts with the operation of the Guidelines in family law litigation in the provincial courts. [50]

In this regard,

it would be curious, to say the least, if the legality of a central aspect of [the family law] regime were to be finally decided by the federal courts, which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters. [51]

Finally, a ruling by the federal courts that the Guidelines are illegal would not prevent a “proliferation of litigation.” For one thing, it “would not be binding on any provincial superior court.” [53] For another, “[i]t would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases.” [53] There would be other consequences, too, with which only the superior courts could deal.

Ultimately, says Justice Cromwell. family law expertise is required to adequately decide of the challenge to the Guidelines’ legality. It is provincial superior courts that deal with the issues on which the disposition of such a challenge would depend, and have a sense of the Guidelines’ real-life operation and effects. Even if they cannot grant the precise remedies sought by the appellants, it is they who should hear their claims.

* * *

I think this is the right decision. It reminds me of Bilodeau c. Canada (Ministre de la Justice), 2009 QCCA 746. Mr. Bilodeau sought to have Québec’s courts review a decision of the federal Justice Minister refusing to review his criminal conviction, which he claimed was a mistake. The majority of the Québec Court of Appeal sided with the government, holding that a decision of the federal administration could only be reviewed by the Federal Court. But Justice Duval Hesler (as she then was, and for whom I did some research as a part-time clerk) dissented, arguing (among other things) that “it is desirable that a court engaged this [judicial] review know, understand, and be in the habit of applying the relevant principles” [106] of law. Stickland does not overrule Bilodeau, since it does not affect the majority’s conclusion that the Mr. Bilodeau’s application was not “properly before” the provincial courts at all, but I am happy to see the now-Chief Justice’s logic vindicated.

In a way, however, Justice Cromwell’s reasons are actually unsatisfactory. Perhaps this is too much to ask of a judicial opinion as opposed to an academic study, but I wish he had explored the parallel between the issue he was facing and that of public interest standing ― on which he is, after all, the Supreme Court’s resident expert, having authored its opinion in the leading case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. As Justice Cromwell explained, the claim in Strickland was for a “public law remedy.” The appellants were not looking for anything for themselves, at least not immediately. Their situation was somewhat different from the usual public interest litigants, because their legal rights would have been affected by an invalidation of the Guidelines, but their claim was arguably more similar to public interest one than to a traditional private action.

Under the Downtown Eastside framework, courts will grant a litigant who does not have a personal stake in the dispute public interest standing to contest the legality (and often the constitutionality) of government action if they consider the claim to be a “reasonable and effective” vehicle for having the issue determined. The standing inquiry is, of course, concerned with the claimants, because there is a suspicion that, lacking a personal stake in the dispute, they will not pursue their case effectively, and might interfere with the rights and autonomy of persons who do have such a stake. Accordingly, courts ask themselves whether would-be public interest litigants are genuinely concerned about the issues they are raising, and whether they will be able to litigate them in such a way as to enlighten the courts, and possibly to bring to bear evidence and arguments that would not be available to other parties. But courts are also concerned with using their proverbially scarce resources effectively, as well as with ensuring that an adversarial debate will take place. And, although not fully determinative, the existence of alternative effective means of addressing the issue will clearly be of considerable importance.

It seems to me that the concerns that were weighing on Justice Cromwell’s mind in Strickland are not very different. Ultimately, the issue is whether the case, as framed by the appellants, was a reasonable and effective vehicle for addressing the issue it presented. To be sure, unlike in public interest standing cases, Justice Cromwell (as well as the courts below) worry not about the proposed parties’ capacity to pursue the case, but about the proposed adjudicators’ ability to resolve it. The alternative whose existence might justify refusing the claim to proceed is not the possibility that other litigants could make the same arguments (possibly) before the same court, but that (possibly) the same litigants could make the same arguments before a different court. But these are two aspects of the same problem.

Especially with public interest litigation, which raises complex and often fact-intensive issues ― and has the potential to do so in a relative factual vacuum ― courts are concerned about being able to settle disputes effectively. This may be difficult to do because the parties fail to provide enough information or because the court itself lacks the necessary expertise. For better or worse, Canadian courts aren’t exactly shy about exercising their jurisdiction even in such difficult cases. But it is reassuring to see that, when an alternative recourse susceptible of making for better-informed adjudication exists, they can still insist on it being taken.

Public Interest in Litigation

I have already mentioned the lawsuit by Aniz Alani, who is trying to have the courts declare that the Prime Minister must advise the Governor General to appoint Senators, which the Prime Minster is refusing to do. The government has filed a motion to strike his application, which will be heard about a month from now. In this post, I want to address not the substance of his case, but on the way in which Mr. Alani has let the public follow the case, which I think is an example to follow not only for other public interest litigants, but also for the government itself.

In addition to using Twitter to publicize his challenge, Mr. Alani has created a sober but eminently usable website that explains his case, provides background information and updates and, perhaps most  importantly (at least from the perspective of law nerd), makes Mr. Alani’s submissions and supporting materials publicly available. Other litigants had made steps in that direction before but, to my knowledge, not as comprehensively or as well. For example, the Canadians Voting Abroad website about the challenge to the provisions of the Canada Elections Act disenfranchising Canadian expatriates after five years abroad looks like it was designed in the 1990s and, more importantly, is missing some crucial documents, such as the factums submitted to the Court of Appeal. (I should note that, technically, this case is not public interest litigation, since the applicants are asserting that their own rights are being infringed. However, they are quite clearly presenting themselves as acting on behalf of others, and not only on their own.)

And others still have done nothing at all. The Barreau du Québec, for example, seems to have no information about its challenge to constitutionality of the mandatory minimum sentences enacted in recent years. (This is all the more paradoxical since the Barreau does have an exhaustive list of its public positions outside the courtroom ― letters to ministers, submissions to Parliamentary commissions, and the like.) Rocco Galati, the scourge of s. 101 courts and their former judges, appears not to have a website at all, while that of his compagnons d’armes at the Constitutional Rights Centre Inc. is bereft of any information.

The reason I am writing about this is that while ordinary litigants, who go to court to assert or defend their own legal rights and interests, are perfectly entitled not to care about what the public knows about their cases, it seems to me that public interest litigants, who ostensibly pursue matters not on their own behalf but on that of the public at large or at least of some section of the public, are, in my view, in a different position. The public, it seems to me, has a right to know what it is that those purport to represent it are up to. And this right is, if anything, even stronger in the case of those representatives who have appointed themselves to that position.

As the Supreme Court has progressively liberalized public interest standing, public interest litigants have grown into a great, yet (almost?) entirely unaccountable force in the Canadian legal, and even political, system. As Mr. Galati’s example shows, and as Mr. Alani’s might yet show, they have the ability to upset the plans and policies of elected officials, and impose considerable change ― for good or ill ― on the institutions of government. Surely, this force owes the rest of us an account of its actions. Public interest litigants say, often quite rightly, that they act to uphold the Rule of Law. But one of the values of the Rule of Law is transparency. Mr. Alani is setting an example in this regard, and others should follow him.

Those “others” include, by the way, a type of outfit that is not usually thought of as a “public interest litigant,” but which in a very real sense is exactly that: the federal Department of Justice and its provincial counterparts (which I will refer to as the DOJs). The DOJs represent (a certain understanding of) the public interest by definition. They act in our collective names. They are given the right to intervene in constitutional cases. And so they too ought to tell the public what they are up to, at least in constitutional cases, and perhaps in others too. Obviously, many of their cases are of limited relevance to the public. I’m not sure exactly where the lines should be drawn, with what exceptions, and so on. I’d love to hear suggestions. But the general point, I hope, is clear enough. Insofar as governments are litigating public interest matters, they too should ensure that those members of the public who are indeed interested are able to learn more about what is being argued on their behalf and in their name.