Dunsmuir 10 Years Later

The context, aims, and aftermath of Dunsmuir

The Hon. Michel Bastarache CC QC

At the outset, I should express my gratitude to Professors Daly and Sirota for the invitation to contribute to this remarkable project, including such a superb array of leading lawyers, scholars, and judges. I have encountered the challenges of administrative law for most of my professional life in various capacities, but the sheer diversity of diagnoses and prescriptions, from such a wide range of contributors with such disparate views and organizing premises, has been eye-opening. By my count, there have been calls to revive the patent unreasonableness standard and to eliminate standards of review entirely; calls to greatly expand and tightly limit deference; calls to jettison presumptive categories and calls for more categorization; calls for greater attention to theory and more steely-eyed pragmatism; calls to hew more closely to Dunsmuir and to cast it aside more or less entirely; and much else besides that.

Depending on how you look at it, Dunsmuir is a decision so poor that all can agree went wrong in every conceivable direction, even if they agree on nothing else; or it may be that by synthesizing previous decisions and providing useful guideposts, it managed to secure some modest measure of progress. That ultimate reckoning is a task I will leave to others. I can only say that the contributors have been imaginative, original, astute and perceptive, and reading them all together provides invaluable insight into the subject, for which I am personally grateful and from which I think others can benefit greatly.

Obviously, I have my own views on Dunsmuir and the cases that followed it, and will share a few of them. But my focus in this response is not to defend Dunsmuir from its many critics, but to hopefully provide some insight into what we were trying to achieve, the thinking that went into it, how the unique role of a Supreme Court judge manifested itself in the decision. I intend this not as an apologia, although it may seem that way sometimes; rather, I hope that a better idea of our processes and thinking might help inform and provide some context around the many insights contained in the contributions, and be of some value to students of administrative law, of which I remain myself. I offer these observations in that spirit.

Institutional Constraints

I will begin with the paradox within which Supreme Court judges operate: that we are at once enormously powerful and tightly constrained. Acting at the apex of a system of laws, and guarded by judicial independence, there are few options categorically off the table, at least in terms of developing the common law, of which administrative law is one part. At the same time, we are subject to a broad range of effective constraints, including those imposed by precedent, the autonomy of colleagues, the cases that come before us, and the arguments as framed and argued by the parties. The degree to which a judge feels constrained by any of these factors will vary depending on the judge and the case; I can only speak of my own views, and the extent to which these considerations informed my contribution to Dunsmuir.

From my perspective, it is rarely possible for judges, even Supreme Court judges, to rewrite the law from scratch, however much we may like to do so. We are neither scholars at liberty to develop innovative solutions entirely anew, nor a law reform commission. And while we have the luxury of time that many judges in trial courts do not, we still need to decide a good many cases each year. We do not have the opportunity to focus exclusively on a particular problem or agonize over a judgment for too long, nor can we address an area of law in every conceivable respect in a single judgment. As our individual records might indicate, we are only too human.

Moreover, to the extent we can provide solutions to particular problems, we must not only attempt to find solutions that are conceptually sound, but also practically workable. We realize that it is not helpful to create overly abstract standards, however theoretically pleasing, that judges cannot apply and litigants cannot understand. Especially in an endeavour as diverse as administrative law, which touches on so many aspects of the modern state, the importance of ensuring our judgments are practical and accessible is not to be underestimated.

Perhaps most importantly, Supreme Court judges do not operate alone. We operate within a framework defined by our predecessors, by the need to obtain consensus with our contemporary colleagues, and by the knowledge that there will be subsequent judges who will soon take the reins.

Therefore, in a case like Dunsmuir, we must not only attempt to provide guidance to lower courts, but also create a workable framework that is consistent with and synthesizes the wisdom of generations of judges who came before us. To borrow from Ronald Dworkin’s terminology, we must attempt to both “justify” the system of judicial review by placing it in its best light, and make sure our solution “fits” reasonably well with our past and current practices. We can move the law, but incrementally ― we cannot knock everything down and start from scratch, however much that may be our personal preference.

And when we attempt to move the law, we must do so in a way that satisfies at least four of our colleagues. I recall experiencing this difficulty early in my Supreme Court career, when I first tried to obtain support for a less daring change in Pushpanathan. Of course, it is always possible for a Supreme Court judge to set out his or her own personal vision of the perfect solution, but that is not always the way you make real progress. (I should not be taken to be diminishing the value of a strong and principled, if lonely, judgment; my Dunsmuir co-author’s concurring reasons in CUPE, of course, identified many of the concerns that led to Dunsmuir itself.)

The difficulty, of course, is seeking to reconcile considerations that may pull in different directions in the context of a particular case that needs to be decided. An innate sense of justice and view of a theoretically sound approach to a particular issue pulls one way; the equally firmly held views of colleagues may pull in another; the gravitational force of precedent may pull in a third; and the concern with ensuring not only conceptual coherence but practical workability may pull another way still. In this reality, compromise is unavoidable.

I will confess I often found managing this task challenging, as I think most Supreme Court judges do. And it was especially challenging in a case like Dunsmuir, involving an attempt not only to craft reasons that will have some lasting impact, but which touched on such an enormous range of circumstances. As difficult and controversial as many issues that reach the Supreme Court can be, they often only affect a small subset of the population or a narrow area of the law; changes to judicial review of the scale contemplated in Dunsmuir affect a good part of the Supreme Court’s docket, hundreds if not thousands of lower court decisions every year, and at least at the margins, the day-to-day interactions between members of the public and government.

In this institutional setting, you realize your limitations pretty quickly, and do your best to work within them. I turn now to our attempt to manage this reality in Dunsmuir, and the problems we were trying to solve.

Our Objective in Dunsmuir

When Justice Lebel and I wrote the decision in Dunsmuir, we were not naïve enough to think it would be the last word on judicial review. We were not trying to resolve all of the insuperable theoretical disagreements or irreconcilable precedents in this vast legal universe, which often go to the heart of public law theory and modern governance. We were ambitious, but not that ambitious.

Instead, we were trying to bring as large a reform as we could to deal with what we saw as immediate and, we hoped, manageable problems. Those problems have been described many times, but I will say a word on some of the considerations that motivated us to think that we should try to do more than simply resolve the case before us.

First, from a practical perspective, we recognized that judges would routinely spend as much or more time addressing which of the three standards of review properly applied as they did on the legality of decisions under review. As Justice Binnie observed in his concurring reasons in Dunsmuir, the courts had become “unduly burdened with law office metaphysics” (at para 122). While there were paradigmatic cases where the standard of review would be clear, such as labour arbitrators interpreting a collective agreement, the proliferation of administrative actors and bodies and the variety of issues that may come before them often made it difficult to determine what standard should be applied. We hoped to make that process easier, at least some of the time.

Second, the distinction between reviewing for ‘reasonableness’ and ‘patent reasonableness’, in our view, had no principled foundation. As mentioned in Dunsmuir, we considered that “it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough”, and that it was “inconsistent with the rule of law to retain an irrational decision” (at para 42).

The primary difficulty, of course, was to determine when deference should be applied. One of our goals was to try to eliminate the need to undertake a full pragmatic and functional approach in every case. To that end, we attempted to provide principled and workable “guideposts”, while recognizing that we cannot provide more certainty than that.

We did not think that we could eliminate the pragmatic and functional factors entirely, however, simply because we realized the sheer breadth and diversity of the administrative state, and the ability of governments to come up with new and inventive ways of enforcing laws, delivering services, and carrying out social policies. Thus, if the standard of review had not been clearly identified in the past in relation to the particular body and type of decision, the court would still be able to consult the newly renamed standard of review factors.

It is true that the factors were not new, and did not lead to a clear or undisputable result in every case, but we saw no reason to abandon them. We believed, like many of our colleagues before us, that the standard of review factors – the presence of a privative clause, the purpose of the tribunal or other decision maker, the nature of the question at issue and the expertise of the tribunal – were the type of considerations that properly informed the question of how our courts should determine the appropriate degree of deference. Given the nature of the case itself, our analysis was prepared with adjudicative tribunals in mind; more attention would be paid to other actors in the administrative state in another context. But our hope at the time was that new decisions could fill that void, and that the retention of the standard of review factors gave the courts the tools to do so.

Having eliminated the patent unreasonableness standard, we were left with an obvious problem: what does “reasonableness” mean? One struggles to think of a concept as integral to so many areas of the law, and as stubbornly resistant to definition, as the idea of “reasonableness”. We recognized that we were unable to resolve that quandary in a way that could apply with precision to all of the varied circumstances that the courts would face, and therefore made no attempt to do so. What we did try to do was, again, to provide some guidelines or touchstones that fit with our understanding of the term as it had been applied in this context.

With our focus being on adjudicative tribunals, we were particularly concerned with their reasoning and decision making processes, to ensure that they demonstrate justification, transparency and intelligibility. But in our view, that did not exhaust the court’s supervisory task; we believed that one also must consider the outcome, and ensure that it was defensible in respect of the facts and the law. In this way, we attempted to reconcile and provide at least some structure to the types of decisions that the courts had, throughout modern history, determined were ‘unreasonable’. Our hope was that with the two flexible foundations for reasonableness review in hand, that subsequent cases would have the tools they needed to reach justice in individual cases, and develop the law accordingly.

Our objective in Dunsmuir was to create a framework for greater clarity moving forward, which both justified the use of judicial review, fit it into the framework of the cases that came before, and provided at least some workable guidance moving forward to be filled in and supplemented by future decisions. This provides a convenient segue into my next and final topic: the post-Dunsmuir cases.


As just mentioned, our hope in Dunsmuir was to make some progress in both simplifying the standard of review analysis, and providing some workable guideposts and grounding for judicial review moving forward. It was an attempt to take stock of all the disparate and idiosyncratic decisions over the previous decades, and to synthesize it into a workable model. The success of such a project depends not only on the (always limited) abilities and foresight of authors, but also on the existence of other judges who agree with the project, both in terms of the foundational principles set out in Dunsmuir, and their application in particular cases.

Needless to say, such a consensus has been hard to achieve. I mentioned earlier that there have been cases decided since Dunsmuir that I would have decided differently, sometimes quite drastically. I will give a few examples.

In my view, in order for the Dunsmuir understanding of reasonableness to apply, there must be reasons and a rationale behind a decision. Unfortunately, this was set aside in Newfoundland and Labrador Nurses, and in Bernard v Canada (Attorney General) (2014) SCC 13. I also believe that legislative intent is still relevant, with the privative clause providing a strong suggestion that deference applies (see Dunsmuir, at para 52), and a right of appeal indicating otherwise. That is why, in my view, it is not acceptable to collapse appeal and judicial review, contrary to what was held in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. Professor Daly mentions that the leave requirement for an appeal and the differentiation between questions of law and questions of fact reveal an intention to have the question addressed by the courts. I agree.

In the Sageunay case, the court found that the presumption of deference had been rebutted; but I do not think there is or should be a legal presumption. The presumption of deference came from Alberta Teachers. As I understand Dunsmuir ― a necessary qualification, because I know my co-author signed on to the reasons in Alberta Teachers! ― we insisted on a contextual approach with general guideposts, which is inconsistent with a presumption of deference across the board. We simply said that, generally, reasonableness would apply in some circumstances (at para 54). We certainly did not say that correctness would no longer apply except in the case of four categories of decisions; the so-called correctness categories were examples of cases where correctness was obviously required. Beyond those categories, context would determine when correctness would be applied, and expertise would play a key role in those determinations. I might add that we did not say that expertise would be presumed, as some subsequent cases have held; in my opinion, deference had to be earned and justified in the context (at para 49). Deference is imperative for “processes and determinations that draw on particular expertise and experiences”, but not for all questions of law, merely because the question is raised by a decision-maker’s home statute. As Justice Slatter of the Alberta Court of Appeal put it, “these signposts were never intended to be hard and fast categories, and the standard of review analysis remains sensitive to the statutory and factual context.” Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City) 2015 ABCA 85 at para 23.

It also seems to me that some of the decisions that followed Dunsmuir were not based on a consistent principled approach, whether it be that in Dunsmuir or another; it seems clear to me that, in at least some cases, the Court wanted to expedite affairs that had dragged on for too long, and in the process, lost sight of the need for consistency (see Bernard, Canadian Human Rights Commission).

Indeed, I think there have been too many decisions that have cut against what we were trying to achieve in Dunsmuir, or at least have proceeded on an understanding of administrative law to which I do not personally subscribe. I did not expect the court to give leave soon after Dunsmuir to so many applicants; I thought it would give lower courts time to experiment so that future necessary changes could be better identified. I personally regret that the court tried to adjust the Dunsmuir approach so soon, and that it made decisions that were, in my view, inconsistent with Dunsmuir, while purporting to apply it. In my view, this created unnecessary confusion.

Suffice to say that there have been many decisions made since Dunsmuir that I would not have personally made. Differences of opinion are to be expected. I respect that. To a certain extent, this reflects the complexity of the subject, the wide variety of cases that may come before the Court, and the difficulty of creating a comprehensive solution that will suit every judge and work for every case in a field such as this. Whether the more significant departures reflect the limits and errors of the authors of Dunsmuir, a misapplication of it by subsequent judges, or a deeper disagreement with the project itself, I cannot say. The reality is that I cannot force others to follow the understanding of Dunsmuir that I would want them to follow, much less to resolve its unanswered questions and unavoidable ambiguities as I would want them resolved. And while that can be frustrating at times, it might ultimately be for the best.

That is because our common law system of judging depends on forging a consensus that persists over time, and proceeds on the assumption that the wisdom of judges collectively, acting incrementally, are better than a single judge dictating law for all time. While each individual judge is fallible and each judgment is flawed in the eyes of some, we must have faith in the collective abilities of the judiciary to work through and get us ever closer to where we should be. Like democracy as a system of government, I believe this widely dispersed, common law system is the worst possible process for judicial law making, except for all the others.

It is for this reason that while some might regret that our decision in Dunsmuir was incomplete or left important questions unanswered, I do not. I understand those who express this regret but can only say that it is not possible to produce such comprehensive and definitive answers to such monumental questions. All that we could do, in our short time on the Court, is to attempt to provide a theoretically sound and practical framework for the application of judicial review, and then to try to apply those principles in subsequent cases, to the best of our ability. I will leave it to others to judge our success in that project – the reviews appear to be mixed – and to the courts to do all that they can to improve upon that project moving forward. I have faith that they will do so to the best of their ability, as we attempted to do with ours.

Why’d You Do This?

Giving Parliament more time on assisted suicide, the Supreme Court fails to explain itself

On Friday, the Supreme Court issued its ruling on the federal government’s request for an extension of the suspension of the declaration of unconstitutionality of the Criminal Code’s provisions that have the effect of making assisted suicide unlawful in all circumstances. The ruling, Carter v. Canada (Attorney General), 2016 SCC 4 (which I suppose will be known as Carter II, to distinguish it from the merits decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331) extends the suspension for another four months ― instead of the six requested by the government. Emmett Macfarlane has a scathing op-ed in the Globe and Mail, arguing, convincingly in my view, that the Supreme Court’s decision is unprincipled and illogical. I have nothing much to add to prof. Macfarlane’s comments regarding the substance of the decision. I do, however, want to say something about procedure and form.

The Supreme Court’s decision-making process was hurried. The oral argument took place last Monday, and the decision came out on the Friday afternoon. Why the rush? The original suspension of the declaration of unconstitutionality had three more weeks to run. It is nice of the Court not to wait until the last possible moment ― but did it have to issue its decision with less than an hour’s notice on a Friday afternoon? I won’t speculate as to the reasons why the Court did this, but whole business looks a bit shambolic.

As for form, my complaint is that the Supreme Court provides no justification for its conclusions. The Court agrees, unanimously, to extend the suspension of the declaration of unconstitutionality, but the sum total of its explanation is this:

In this case, the length of the interruption of work on a legislative response to the Court’s decision due to a federal election constitutes [an extraordinary] circumstance. Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months. [2]

The invocation of an election as effectively a time-stopper for calculating the delay Parliament has to respond to the Court’s ruling is unprecedented ― and unexplained. Why did the Court never mention the matter earlier? And how much sense does it make to think that a day on which Parliament was not able to sit to consider a response to the Court’s ruling must necessarily be recouped later on? After all, it’s not as if Parliament had spent every day on which it would have been able to do so actually doing it!

Beyond that, the Court simply ignored the issues that were debated at oral argument (about which I wrote here). There was, for instance, a good deal of discussion about whether a comprehensive legislative framework dealing with assisted suicide is necessary to avoid creating paralyzing uncertainty for the medical profession and other stakeholders. The Court says nothing at all about this in its opinion. Nor does the Court even mention another issue that got a good deal of attention on Monday ― the role of the provinces in devising the regulatory framework for assisted suicide. And the Court keeps ignoring broader issues about when, if ever, suspended declarations of unconstitutionality are appropriate, and how much explanation should be given when they are granted. (Though if this ruling is anything to go by, the Court still believes that the answer to the latter question is “none whatsoever.”)

When I commented about the oral argument, I expressed the hope that the Supreme Court’s “ruling, whatever its conclusion, [would be] mindful of the issues that it will inevitably raise and that go well beyond just this case.” My hope was not fulfilled. Prof. Macfarlane says that the Supreme Court “needs to reconsider its use of suspended declarations.” I have in the past been more willing than some others to defend the Court’s use of this remedial device. But if the Supreme Court cannot exercise this power it has granted itself in the way any judicial power ought to be exercised ― that is, in a transparent and rule-bound fashion ― then it should renounce it altogether.

What They Said

It is usually understood that judges must give reasons for their decisions. But does it matter if the reasons a judge gives are largely lifted from the submissions of one of the parties? That was the question that the Supreme Court of Canada confronted in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, delivered on Friday. The Court’s answer is that while it’s not “good practice” for judges to adopt a party’s submissions wholesale, that is not enough for an appellate court to set the decision aside.

The trial decision at issue is 368 paragraphs long, of which 321 were taken directly from the plaintiffs’ submissions. As the Supreme Court put it, “[t]his raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions” (par. 10). The Court described this concern as procedural, because it has to do with the fairness of the decision-making process, rather than with the substantive correctness of the outcome or the sufficiency of the reasons given to support it. The test to be applied in deciding whether a concern with the fairness of a court’s decision-making warrants setting aside the allegedly unfair decision is whether

a reasonable observer, having regard to all relevant matters … would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently. (Par. 13)

However, in applying this test, courts must bear in mind “the presumption of judicial integrity,” which “carries considerable weight” (par. 20) and can only be rebutted by “cogent evidence” (par. 22). Without more, the Supreme Court holds, the fact that a judge incorporated a party’s submissions into his or her reasons is not enough to rebut the presumption, because it does not show that the judge failed to consider the case and come to his or her own conclusions about the issues it presents.

The Court says that “judicial copying” (par. 30) is not a bad thing in itself. Reasons for judgment should not be assessed by the same criteria as works of literature or scholarship. They do not normally aim for originality. For that reason, a judge’s failure to acknowledge the fact of copying or mention his or her sources does not matter ― the judge is not actually claiming that the work of others is somehow his own original creation. The Court quotes, approvingly, an article by Simon Stern arguing that lack of originality is, if anything, a virtue rather than a vice of judicial writing:

[t]he bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law.

While it is best not to abuse the privilege of being unoriginal, and judges should try to explain their decisions in their own words, failure to do so does not demonstrate that judge did not actually consider and decide the case.

In the case at bar, the trial judge actually wrote some paragraphs of his own, and did not accept all of the claims of the party whose submissions made up the bulk of his reasons. This shows, the Supreme Court holds, that he did not fail to consider the case, and this the presumption of integrity has not been rebutted. (The Court then goes on to hold that a number of the judge’s conclusions were the result of palpable and overriding error, and reverses them ― but that is, in theory at least, a different story that doesn’t interest me here.)

I have mixed feelings about this decision.

On the one hand, the Court is right that originality of ideas and writing is not something judges normally aim for (it might be a trait of great judges, but there is an important difference between what makes a judge great, and what is required in ordinary adjudication, as I have argued here). So some copying and some failure to acknowledge sources is arguably not a big deal (though I still think that judges should avoid such practices). And of course it is difficult to draw the line between what is acceptable and what is not, so I can sympathize with the Supreme Court wanting to discourage litigation on this issue, which would create a mess of appellate decisions and drive up the costs of litigation for parties, thus further impeding access to justice. (I suspect, at least, that such considerations must have been on the judges’ minds, though the Court does not explicitly discuss them.)

On the other hand, the decision means that judges who delegate the writing of their decisions to law clerks ― or who use the parties as their law clerks, as the trial judge here seems to have done ― can go on with no fear of appellate correction. Yet our judicial system relies on the articulation by judges of the reasons for their decision to help judges maintain the attitude of impartial decision-makers open to persuasion, as I have explained here. Shortcuts that allow judges to escape the burden of stating their reasons for decision can compromise this attitude. They might also lead to substantively poor  decision-making. Indeed, this may well have happened in this case ― it is not often that trial decisions are overturned, even in part, for “palpable and overriding error” in the assessment of evidence.

On balance, the Supreme Court is probably still right, because the law is not a very good tool for deciding when judges have strayed far enough from what is “good practice” in reason-giving for their decisions to be set aside. But judges themselves ought not to take this decision as an endorsement of their taking short-cuts. Their position imposes on them duties that go beyond the requirements of the letter of the law. The “presumption of integrity” of which the Supreme Court makes so much can only exist if judges are mindful of these duties. “What they said” is not enough.