Law in La-La-Land

The post-truth jurisprudence of Canadian administrative law

Last month, the Supreme Court issued a decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, which deals with the evergreen issue of determining the standard on which a court must review the decision of an administrative tribunal. I wasn’t able to comment on this case at the time, because 240 exam papers landed in my office a couple of days thereafter, but I would like to return to it now, because in my view the majority opinion shows quite clearly what a fantastical creature Canadian administrative law has become.

Justice Karakatsanis, writing for the majority, describes the circumstances of the dispute as follows:

Alberta residents may dispute their municipal property assessment before a local assessment review board. When one Edmonton taxpayer did so, the assessment review board decided to increase the assessment the taxpayer had disputed. [1]

The question is whether the board in question had the authority to increase ― or could only decrease or refuse to change ― the assessment disputed before it. The board obviously concluded that it did, but did not explain the decision ― admittedly because the taxpayer did not deny that it had the requisite authority. It is only on a subsequent appeal to the courts that it did so. How, then, must the board’s tacit, unexplained, decision be treated? Is it entitled to judicial deference, or can the courts simply substitute their own view of the matter?

* * *

Defer, says the majority. In the Supreme Court’s administrative law jurisprudence, deference is the presumptive stance, including on questions of law such as the one at issue.

This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [22]

Only when the question at issue falls within one of a few exceptional categories is the “presumption of deference” rebutted. In the majority’s view, none apply here. In particular, the fact that the legislation involved specifically provides for an appeal from the administrative decision on a question of law, as was the case here, does not matter. The administrative law framework, with its presumption of reasonableness, is to be applied regardless.

As Justice Karakatsanis notes, this framework acknowledges that “[t]he presumption of reasonableness may be rebutted if the context indicates the legislature intended the standard of review to be correctness” [32]. The dissenting judges would have found that this is the case here, because the board’s expertise lies not in the interpretation of its enabling legislation, which is at issue here, but rather in property valuation, which is not. Justice Karakatsanis is unmoved by this:

Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer. … [A]s with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution. [33]

Having concluded that she must defer to the board’s decision, Justice Karakatsanis then face the question of how to defer to a decision that is entirely unexplained. After all, as the still-leading (although perhaps increasingly from behind) case on reviewing administrative decisions,  held, “reasonableness ‘is … concerned with the existence of justification, transparency and intelligibility within the decision-making process'” [36; citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]. But not to worry: in that same case, the Supreme Court went on to say it is enough to consider the reasons that could have been given for the decision, even though they were not, and to defer to them. This is what Justice Karakatsanis does, for 20 paragraphs. She concludes that board’s decision was reasonable.

* * *

If this is not post-truth jurisprudence, it’s pretty close. The Oxford English Dictionary, which recently chose “post-truth” as its word of the year, says that it describes “circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”. The Supreme Court’s vision of administrative law might not be the product of appeals to emotion, but there is certainly a great deal of personal belief unburdened by a reckoning with objective facts there.

Start with the claim that the presumption of deference is all about respecting legislative intent to grant decision-making authority to administrative tribunals rather than courts. If the Court really cared about legislative intent, wouldn’t it ask itself what the purpose of providing a statutory right of appeal on questions of law, as the legislature had done in this case, is? The majority does no such thing. It is content to affirm the irrelevance of either the text or the purpose of such provisions and holds that even if the statute says “appeal”, the courts must read “judicial review” and defer. Yet as the dissent cogently points out, the statutory text is pretty clear that the legislature wanted some questions of law (those deemed important enough by a judge) to be resolved by the courts. For all its show of deference to the legislature, the majority only cares about its own views about how administrative law should operate.

Next, consider the claim that the administrative decision-maker’s expertise entitles it to judicial deference. The majority does not discuss the expertise of the board whose decision is at issue here. It does not meaningfully respond to the dissent’s argument that the board has no particular expertise on the question before the Court. It is content to state an airy generality: the very existence of a specialized tribunal is enough to make it an expert. Why? It seems almost as if the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it. Here’s news for the Court: that’s not true. The dissent’s take on this issue is, once again, more realistic:

an administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional. [83]

As mentioned above, the dissent would have found that the question at issue here was not within the scope of the board’s expertise. The majority, once again, is uninterested in facts or, as the dissent also notes, in legislative intent (which in some case may well be to create a decision-maker without legal expertise), and ignores them the better to apply its beliefs about the proper relationships between courts and administrative decision-makers.

And all that for what? Not to actually defer to the supposedly expert board’s reasoning ― but to make up a reasoning that the board may or may not have come up with on its own, and defer to that. As Paul Daly put it (aptly, it goes without saying),

Karakatsanis J. points to multiple features of the elaborate statutory scheme that might be said to support the alternative interpretation and explains how each of them is nonetheless consistent with the Board’s interpretation (if one can call it that), much of which is supported by reference to a decision made by another body that “formerly” had appellate jurisdiction from the Board [44]. This, frankly, is quite bizarre. Who knows what the Board would have said if these points had been made to it? Indeed, who knows what the Board will say in future cases when these points are made to it? (Paragraph break removed)

It’s as if Justice Karakatsanis were playing chess with herself, and contriving to have one side deliberately lose to the other. This, admittedly, is not a post-truth reasoning. It is outright fiction.

* * *

As you can probably guess, I do not like any of it one bit. Perhaps this is not a very educated feeling. I have not thought about administrative law as much as prof. Daly, for instance, or many others. (I do have plans to get more serious about it, but it’s a medium- or even a long-term project.) I hope, however, that there may be some value in even an uneducated person stating the view that the emperor has no clothes, and that his proceeding any further in this state is offensive to public decency. What is more difficult for an uneducated mind is to say what dress the emperor ought to put on. Prof. Daly argues

that the only way to move the law forward within the existing framework without starting again from scratch is to apply reasonableness review across the board, with the important caveat … that the range of reasonable outcomes will be narrower in cases featuring an appeal clause.

I cannot comment on this suggestion, beyond saying that I am, in my uneducated state, extremely uneasy with deferential review of administrative decisions on questions of law. I will say, though, that I’m not at all sure that starting again from scratch is not the right thing to do, or even the only possible thing to do.

Keeping Time, Time, Time

The Supreme Court changes the meaning of the right to be tried within a reasonable time

A couple of weeks ago, the Supreme Court issued a very important, and fairly radical, decision on the “right … to be tried within a reasonable time,” which paragraph 11(b) of the Canadian Charter of Rights and Freedoms grants to “any person charged with an offence.” In R. v. Jordan, 2016 SCC 27, a divided Court overturned precedent and introduced presumptive caps on the amount of time that can elapse before a trial no longer takes place “within a reasonable time.” This decision raises significant questions about the judicial role, especially in the face of inaction by other branches of government.

Mr. Jordan, along with a number of others, had been charged with multiple drug offences. His trial concluded a little over four years later, two months of which he spent in prison, and the rest under restrictive bail conditions. The trial judge found that while Mr. Jordan was responsible for four months of that delay, the prosecution was responsible for two more, while the rest ― more than two and a half years ― “was attributable to institutional delay” [15]. However neither the trial judge nor the Court of Appeal accepted Mr. Jordan’s argument that the delay was an infringement of his rights under par. 11(b) of the Charter.  This was notably so because Mr. Jordan was facing other charges and serving a separate sentence, with conditions more or less equivalent to those of his bail, while waiting for his trial, meaning that his liberty would have been restricted even without the delay in this case.

* * *

The majority opinion, co-written by Justices Moldaver, Karakatsanis, and Brown, with whom Justices Abella and Côté concur, treats Mr. Jordan’s case as symptomatic of “a culture of delay and complacency towards it” [29]. The existing rules for the application of par. 11(b), which involved assessing the reasonableness of the delay in a given case in light of its length, causes, and impact on the accused are too complicated and vague, causing “its application [to be] highly unpredictable” [32] and subjective. A focus on the prejudice the delay causes to the accused misses some of the less tangible harms delay produces, not least those to the administration of justice as a whole, and devalues the right to a speedy trial. Finally, the existing rules are “designed not to prevent delay, but only to redress (or not redress) it” [35]. The “culture of delay” must change,

[a]nd, along with other participants in the justice system, this Court has a role to play in changing [it] and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. [45]

The way in which the majority wants to play that role is by changing the applicable rules. As mentioned at the outset, the majority opinion introduces

ceiling[s] beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry), [46]

excluding any delay for caused or waived by the defence. The Crown can still show that exceptional circumstances outside of its control have arisen and that they explain ― and excuse ― a case taking longer than these timeframes, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but to do so they will need to demonstrate not only that the delay is “markedly” greater than reasonable, but also that they diligently sought to have the case heard sooner. (This test is reminiscent of that which Justice Moldaver applied in the Court’s recent decision in R. v. Vassel, 2016 SCC 26.)

The majority justified its decision by asserting that

[a] presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. [50]

In the majority’s view, its approach is simpler than the existing rules, and eliminates the undue focus on prejudice to the accused. The majority acknowledges that even the ceilings it imposes are “a long time to wait for justice,” but insists that they “reflect[] the realities we currently face,” [57] ― as reflected, it seems, in “a qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts” [106] ― while cautioning that the Court “may have to revisit these numbers and the considerations that inform them in the future.” [57] Ultimately, the majority hopes that its approach “will help facilitate a much-needed shift in culture,” [112] including

by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such. [117]

In its conclusion, the majority adds that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.” [140]

Applying its approach (including a transitional framework for cases already in the system prior to its ruling) to the facts of Mr. Jordan’s case, the majority finds that the delays that afflicted it were unreasonable. In the process, it castigates the Crown for not having had a plan for bringing the matter to trial expeditiously, and for doing “too little, too late” when it became aware of the problem.

* * *

The Chief Justice and Justices Cromwell, Wagner, and Gascon do not disagree with this conclusion. They too are of the view that the delay in this case was unreasonable. However, Justice Cromwell’s concurring opinion is sharply critical of the majority’s approach to par. 11(b), which it calls “both unwarranted and unwise.” [254] While it accepts that some revisions to the current framework are in order, it rejects the imposition of fixed ceilings on acceptable delays.

Drew Yewchuk summarizes the concurrence’s approach and exposes some difficulties with it in a post at ABlawg. Here I will briefly sum up Justice Cromwell’s critique of the majority opinion. Justice Cromwell argues that the majority’s approach will not be as simple to apply as the majority hopes, because “[t]he complexity inherent in determining unreasonable delay has been moved into deciding whether to ‘rebut’ the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.” [254]

As a matter of principle, the reasonableness of pre-trial delay “cannot be captured by a number; the ceilings substitute a right for ‘trial under the ceiling[s]’ … for the constitutional right to be tried within a reasonable time.” [147] Indeed,

The proposed judicially created “ceilings” largely uncouple the right to be tried within a reasonable time from the concept of reasonableness which is the core of the right. The bedrock constitutional requirement of reasonableness in each particular case is replaced with a fixed ceiling and is thus converted into a requirement to comply with a judicially legislated metric. This is inconsistent with the purpose of the right, which after all, is to guarantee trial within a reasonable time. Reducing “reasonableness” to a judicially created ceiling, which applies regardless of context, does not achieve this purpose. [263]

No foreign jurisdiction imposes numerical guidelines for speedy trials either. As for the majority’s approach to cases where trial is completed with the 18- or 30-month limit, it is “a judicially created diminishment of a constitutional right, and one for which there is no justification.” [264]

Each case must be decided separately, based on its own circumstances ― including, to some (limited) extent the prejudice to the accused, as well as society’s interest in the prosecution. The creation of definite ceilings is a legislative task, and it should be accomplished, if at all, by legislation. Besides, there is no evidence to support the majority’s approach, and it was neither put forward by any of the parties nor “the subject of adversarial debate.” [147] Nor was the majority’s assessment of the jurisprudence subject to scrutiny by the parties. The impact of its decision is unknown, but “[f]or the vast majority of cases, the ceilings are so high that they risk being meaningless,” thus “feed[ing] … rather than eliminat[ing]” [276] the culture of delay that the majority is concerned about, while for a small but significant minority, the ceilings risk proving too rigid, leading to stays being entered in the most important prosecutions.  

* * *

There are many questions to be asked about this case. They concern the constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. Since this post is already very long, I will only briefly address the first one here, and put off the other three to a separate discussion, which I hope will follow… in a reasonable time.

What I mean by the constitutionality of the majority’s decision is its consistency with the Charter’s text. The concurrence effectively argues that the constitutional text requires treating reasonableness as a standard and prohibits translating it into a bright-line rule. (Notice, though, that Justice Cromwell doesn’t quite put the point in this way: he says that the majority’s approach is inconsistent with “purpose of the right” ― consistently with the Supreme Court’s tendency to treat constitutional text as secondary, at best, to the “purposes” it is deemed to implement.) The majority, it seems to me does not make much of an effort to address this argument.

I am not sure who is right, to be honest. The idea of reasonableness does indeed normally refer to a standard, not a rule. But ― precisely for that reason ― the constitutional text that entrenches this standard calls for judicial elaboration or, as modern originalists would say, construction. In other words, the constitutional text itself does not give answers to the questions that arise in the course of adjudication. It must be supplemented by judicially-developed doctrines. The question is whether the courts can make numerical rules part of their doctrines. (And it really is only part; the majority is probably right to say that the concurrence somewhat overstates the degree to which the test a numerical one.) Or is it simply inconsistent with the meaning “reasonableness”? Again, I am not sure, but I do not think that the matter is as clear as the concurrence suggests. The fact that reasonableness requirements have not been construed in this way so far, in Canada or abroad, is significant, but hardly dispositive. It really is too bad that the majority does not address this issue.

In my view, however, the concurrence is pretty clearly right that the majority’s approach to cases that fall below its ceilings is a departure from constitution text. The text provides a right “to be tried within a reasonable time” ― not a right “to be tried within a time that is not markedly unreasonable provided that one has been diligent.” Presumably the majority introduce these additional requirements in order to incentivize defence counsel to contribute to the cultural change which it seeks. But while understandable, this motivation cannot justify an obvious inconsistency with the constitutional text.

That said, the issues of whether there can and ought to be a “ceiling” above which the burden of proof shifts to the Crown, and just what ought to happen below that ceiling, are distinct. It may be that the majority is right about the first even if it is wrong about the second.

All right. That’s quite unreasonable already ― for now.

A Heap of Trouble

It’s just one decision, and in all likelihood a legally correct one at that ― and yet, precisely because it is likely correct, it illustrates any number of things that are wrong in Canadian law: Thibault c. Da Costa, 2014 QCCA 2437. The case arose out of disciplinary proceedings instituted by the syndic of the Chambre de la sécurité financière, a self-regulation body for Québec’s financial advisers, against the respondent, who at the time was one of its members. The disciplinary committee of the Chambre, which heard them in the first instance, found that the respondent had “swindled” [15; translation mine here and throughout] eight of his clients, and convicted him on 27 counts, imposing fines.

The issue was that the amount of the fines on some of these counts was greater than the maximum authorized by law at the time the respondent committed his offences ― but between the time he committed them and the time the Committee issued its decision, both the minimum and the maximum fines authorized had been substantially increased. The Court of Québec, on appeal, reduced the amounts, concluding that the Committee had applied the new rules retroactively. The syndic appealed and, in a decision written by Justice Thibault, the Court of Appeal restored the Committee’s decision.

The first issue for the Court was the standard of review. Justice Thibault concluded that “although the question at issue concerns a general principle of law,” [26] namely the applicability of a non-retroactivity, as a principle of statutory interpretation, to the amounts of fines which can be imposed by the Committee, the Committee’s decision was entitled to deference. The matter concerned the interpretation of the statute the Committee is entrusted with applying, and “is also related to the efficiency of discipline of the members of the Chambre.” [27]

Here’s the first problem this case illustrates. In 1610, in Dr. Bonham’s Case, Chief Justice Coke was troubled by a professional disciplinary body empowered to be accuser and judge in cases of alleged malpractice. In 2015, few Canadian lawyers are so troubled (and why would they be, since their own professional bodies benefit from the same privilege?), and instead we choose to defer to such bodies’ decisions. But I, for one, find this disturbing. There might be a case for deference, perhaps even on questions of law, to impartial administrative adjudicators ― labour arbitrators come to mind. But the Supreme Court’s one-size-fits-all approach to deference makes no distinction between their decisions and those of disciplinary bodies which violate Chief Justice Coke’s injunction that nemo debet esse judex in propria causa. (In fairness, pursuant to the Chambre’s enabling statute, the Committee is presided by a lawyer who is independent of the Chambre, and who in turn appoints lawyers one of whom must preside every panel of the Committee. However, if I understand the statute correctly the two other member of the panels are chosen from among the Chambre’s members.)

Then again, in this case at least, none of this really matters. Si vous chassez le naturel, il revient au galop. After concluding that reasonableness is the applicable standard of review, and in contrast to her brief reasons on the amounts of fines imposed, Justice Thibault exhibits no sign not only of deferring to, but even of considering the Committee’s decision on the issue of retroactivity. Perhaps because there really isn’t much to defer to ― all that the Committee had to say on this subject was that it “consider[ed] the increase of fines … to be effective immediately.”

Turning to the substantive question of whether the committee could, in fact, apply the increased fines to acts committed before the increase, following a rather abstruse discussion of the distinction between retroactivity and retrospectivity, which I will not summarize (for those interested, Karim Renno, has posted the relevant excerpts over at À bon droit; those looking for a theoretical perspective can do worse than starting with Jeremy Waldron’s article called “Retroactive Law: How Dodgy Was Duynhoven“), Justice Thibault concludes that a sanction can be increased “retrospectively,” i.e. after the facts to which it is applied have occurred, so long as its purpose is not punishment but the protection of the public. Having examined the relevant precedents, Justice Thibault finds that the fines that can be assessed by the Committee, like most other sanctions imposed by disciplinary bodies, are indeed concerned with protecting the public, and do not carry the “true penal consequences” that would make them into punishments. The fact that these fines are based, in part, on the prejudice caused does not overcome the overall protective purpose of the Chambre’s enabling statute:

The more the actions committed are prejudicial to the public, the more the sanction must be important in order to guarantee its deterrent effect on the individual subject to the fine or on the other members of the profession. [38]

The fine thus aims at both specific and general deterrence, but it is not punitive ― on preventive and disciplinary.

Once again, Justice Thibault’s conclusion makes perfect sense in light of the precedents she cites (some of which found that fines of up to a million dollars per offence were not punishment, and thus could be imposed retrospectively) ― and that’s precisely the problem. Does it really make sense to say that a fine is not a punishment? A prohibition on exercising a profession in the future might be described as preventive more than punitive, though I’m not even sure about that, but a fine? At least a part of the trouble here might be, as in the standard of review issue, that courts too easily accept the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role. But there is something else going on as well.

Canadian courts are, in my view, much too comfortable with retroactive application of the law. Although retroactivity might be a good thing in a few cases, one of which I described here, it is generally disturbing. Applying a different law than that which was in force at the time the actions to which is being applied were committed is unfair. It undermines the law’s role as a guide to behaviour, and may end up, as prof. Waldron explains in the above-mentioned article, discrediting the law as a whole. Yet Canadian courts tend to turn a blind eye to these concerns. The Supreme Court, for instance, has allowed legislatures to make a tort out of commercial behaviour that was perfectly lawful when it occurred. In comparison, mere “retrospectivity,” a change to the extent of the sanction attached to an action after that action is committed, as was done here, seems pretty innocent.

This is probably a trite thing to say, but the law should be mindful of the context in which it operates, of the realities to which it applies, and of the consequences which it dictates. When it doesn’t, it risks ending up in a heap of trouble. The Court of Appeal’s ruling ― legally correct, but oblivious to the real nature of the body whose decision it reviews and of the sanction which it upholds ― illustrates this sad truth.