Rule of Law – Double Aspect

A Cheer for Administrative Law

Administrative law can only do so much to avert injustice―but what it can do still matters

I’d like to come back, however belatedly (sorry!) to an interesting post by Paul Daly at Administrative Law Matters. Professor Daly uses the example of Novak Djokovic’s ultimately unsuccessful challenge to the Australian government’s cancellation of his visa to illustrate “the value of administrative law”. He writes:

Immigration has traditionally been a prerogative of the executive, an island of unregulated discretion in the legal system. But over the last half century or so, courts around the common law world have landed on this island, wielding principles of procedural fairness and substantive reasonableness. Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa. Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power.

Professor Daly acknowledges that “[a]dministrative law is no panacea. Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving.” That’s true of course. Still, he concludes that Mr Djokovic’s case “is an important reminder of the value of administrative law in pushing ministers and others to justify their exercises of public power in reasoned terms”. This also is true. And one might even add that, in law as elsewhere, those who cannot afford the Cadillac will often benefit from the ability and willingness of others to shell out for one.

Yet despite this I think that Mr Djokovic’s case shows at least as much that administrative law is, at best, only a partial remedy to injustice. Granting the point that it can force officials to “engage in the reasoned exercise of public power” (which is often though not always true), it does comparatively little to ensure that the power is exercised justly, and nothing at all to ensure that its existence is just. The latter of course is not administrative law’s role. But it’s a point that we should not lose sight of if we choose to celebrate administrative law. In a just world, there would be a great deal less administrative law than we need in ours.

In our world, it is indeed an achievement that immigration decisions have to be reasoned and justified. After all, the founding father of Canadian administrative law scholarship evidently lamented the fact that, although the government “regards immigration as a privilege, not as a right, and wants to avoid having to disclose to a court its sources of information about the political colour of immigrants”, courts lack the good sense to see the point: “On the other side of the ideological fence, a court , with the sweating immigrant before it, sometimes sets aside a deportation order on very flimsy grounds, for instance, that it was made on a Sunday”. (John Willis, “Administrative Law in Canada” (1961) 39:2 Can B Rev 251 at 258) It’s good that we’ve moved that ideological fence some way towards decency.

But let’s not kid ourselves. We haven’t moved it very far. As Maria O’Sullivan explains in The Conversation, the reasons that ostensibly motivated the cancellation of Mr Djokovic’s visa were that his ― presumed ― opposition to vaccination against the present plague might encourage similar opposition among Australians and might undermine “social order”. Professor O’Sullivan points out that ministerial explanations were questionable on their own terms. But she also notes that, perhaps more importantly for the future, the precedent set in Mr Djokovic’s case means that people’s ability to come to Australia might be taken away on account of their actual or even perceived views being a hypothetical source of possible trouble in the opinion of a minister. What starts with an arrogant fool of a tennis player won’t stop there. Yet substantive Australian immigration law seems to allow for precisely this result, and administrative law offers no redress.

Redress will come, not any further development of administrative law, but from substantive law being such to prevent this sort of injustice. In this regard, it is telling that Professor Daly sets his reference point to 50 or 60 years ago, when immigration restrictions ― and the government’s willingness to treat immigration as a privilege to be granted or withheld on a political whim ― had become generally accepted. But let’s not stop 50 years ago; let’s go back another century. In 1872, English-speaking countries simply did not restrict immigration, though health measures and quarantines did exist. (Hence let me note: I’d have very little sympathy for Mr Djokovic if he had been barred from Australia due to not being vaccinated. But that’s very much not what has happened.) In North America, immigration controls were the product, first, of anti-Asian racism in the late 19th century, and then of more generalized xenophobia in the first decades of the 20th. On the other side of the pond, as David Cannadine writes in The Victorious Century, the closing of the UK’s borders at the turn of the 20th century was the result of bigotry against the Irish and, especially, of anti-Semitism. Australia too implemented and long held to an overtly racist immigration policy.

Of course, contemporary immigration law does not discriminate as overtly. But the idea that movement across borders is something that can be regulated in the first place comes from that evil and unjust source. And it still means that people can be stopped from doing the same (often stupid) things that we are allowed, even though they are in all particulars bar their failure to have been born in the right place or to the right parents the same as us, for no reason other than that failure. The old-school racism may be gone, but the xenophobia inherent in the idea of immigration restrictions remains. And it is not administrative law that will purge it, but the realisation that the closing of the borders 120, 140 years ago was an injustice, and that it must be ended.

Hence I will only give one cheer for administrative law. Not two, for administrative law is not meant to reform repressive substantive laws, and certainly not three, for it is powerless to mend injustice raised up to the rank of political philosophy. The trouble with cheering too loudly for administrative law is that this risks making us forget these deeper injustices; we might be content with bringing order and reason to what remains, at bottom, a logic of repression.

But my cheer for administrative law ― at least, for robust administrative law, which truly holds the administrative state to its legal and constitutional duties, rather than for the all-too-often diluted version that many administrative lawyers prefer ― will be a loud one. As E.P. Thompson famously said,

We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power.

Administrative law is an essential component of the Rule of Law, and so of the unqualified human good that Thompson had the wisdom to discern amid what he saw amid great substantive injustice. Hooray for it.

The Core of It: Quebec Reference and Section 96

At the end of June, the Supreme Court of Canada released its decision in the Court of Quebec case (what I call, unoriginally, the Quebec Reference). The main question in the case: does art. 35 of the Code of Civil Procedure, which grants the Court of Quebec exclusive jurisdiction over all civil disputes up to a value of less than $85000, abridge s.96 of the Constitution Act, 1867. Section 96, in general, protects the role of the superior courts. The Court (per Côté & Martin JJ) concluded that the $85 000 limit, combined with the broad, exclusive grant of power to the Court of Quebec over private law issues, did abridge s.96. Wagner CJ filed a partial dissent and Abella J filed a dissent.

This case contains elements that will both clarify and muck up the s.96 world. On one hand, the Court convincingly elucidates the importance of the rule of law, the core role of the superior courts, and the constitutional limits on legislative derogation of superior court powers. On the other hand, the Court introduces a new “modified” test to add to the s.96 mix, and does not do enough to clarify the circumstances in which this test can be invoked.

As a side note, the Court also briefly addressed the deference problem that was raised by the court below. I wrote about that issue here. The Court did the right thing and held that the issue was moot given Vavilov.

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Section 96 is an odd constitutional provision, in part because the bare text does not correspond to the role that the provision now plays. Section 96 gained a “judicially-nourished luxuriance” which added substantive heft to what is, on first glance, just an appointment power vested in the federal government. Now, s.96 (along with other provisions) protect the role of the superior courts as “the centerpiece of the unitary judicial system” (Quebec Reference, at para 29). In administrative law, s.96 plays an important role. It prevents the legislature, in so many words, from divesting superior courts of so-called “core” powers in favour of administrative decision-makers.

Against this backdrop, Côté and Martin JJ began their opinion by looking to the historical context in which s.96 finds itself. As we know, constitutional provisions like s.96 cannot be understood by viewing them in temporal isolation. By now, it is obvious that constitutional provisions must, in part, be interpreted by looking into the historic context—say, the historical purpose—behind these provisions (see, most famously, Big M at 344; but more recently Comeau, at para 52). In this case, the “compromise reached at Confederation that is central to Canada’s judicial system, as well as the role and purpose of s.96” formed the bulk of the analysis [30].

The historical analysis, for Côté and Martin JJ, led to the conclusion that national unity and the rule of law were the “two key principles” on which the role of the superior courts is based (Quebec Reference, at para 42). Taken together, these principles guarantee “a nucleus” to the superior courts, and s.96 “forms a safeguard against erosion of the historic compromise” (Quebec Reference, at para 41). That compromise was the division of labour between superior courts in the province and the federal government, which holds an appointment power designed to “reinforce the national character of the Canadian judicial system” (Quebec Reference, at para 43).

As for the Rule of Law, the Court made some very important comments about the role of s.96. For Côté and Martin JJ, “[t]he rule of law is maintained through the separation of judicial, legislative, and executive functions” (Quebec Reference, at para 46). The superior courts play an important role because “the task of interpreting, applying and stating the law falls primarily to the judiciary” (Quebec Reference, at para 46). They are best positioned to guard the rule of law. In fact, even though the Court has sometimes spoken favourably about the role of provincial courts in guarding the rule of law, Côté and Martin JJ specifically noted that superior courts are the “primary” guardians of the rule of law.

What does all of this mean? The bottom line for the Court—and this is somewhat of a new formulation—was that s.96 protects against the creation of parallel or shadow courts that mirror the functions of s.96 courts (see paras 53 et seq). To this end, the court has historically developed two tests to prevent legislative derogation from s.96. First is the so-called Residential Tenancies test, determines whether a legislative grant “affects a jurisdiction that has historically been exercised by the superior courts” (Quebec Reference, at para 71). The second is the so-called “core jurisdiction” test, solidified in MacMillan Bloedel. Both have different functions in preventing the creation of parallel courts. The Residential Tenancies test protects the historic jurisdiction of the superior courts. It “was established at a time when…a modern administrative state was emerging in Canada” to which the Court was “sensitive” (Quebec Reference, at para 77). For the Court, a purpose of this test was to “avoid stifling institutional innovations designed to provide administrative rather than judicial solutions for social or political problems” while still protecting the historical jurisdiction (Quebec Reference, at para 77). The core jurisdiction test, on the other hand, serves as a backstop, even if a particular grant passes the Residential Tenancies test. While what the core of superior court powers is necessarily amorphous, some common things jump to mind: judicial review jurisdiction, and for our purposes, “general jurisdiction over private law matters” (Quebec Reference, at para 82). Here, the Court concluded that the superior courts’ core jurisdiction “…presupposes a broad subject-matter jurisdiction whose scope corresponds, at the very least, to the central division of private law…” (Quebec Reference, at para 83).

Typically, the courts have not fleshed out the sorts of factors to consider when determining where a core superior court power is affected by legislative derogation. In the Quebec Reference, Côté and Martin JJ endeavoured to provide guidance where the legislature has vested a court with provincially appointed judges a jurisdiction as broad as the one in the Quebec Reference (Quebec Reference, at para 88). The judges called the collection of these factors the “modified” core test (Quebec Reference, at para 79). These factors included:

The scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the monetary limits to which it is subject, whether there are mechanisms for appealing decisions rendered in the exercise of the jurisdiction, the impact on the caseload of the superior court of general jurisdiction, and whether there is an important societal objective. This list is not exhaustive. Other factors may be relevant in different contexts: one need only think, for example, of geographical limitations.

Given that the grant of power in this case was broad and exclusive—granting the Court of Quebec power over the entire law of obligations at the monetary limit (Quebec Reference, at para 99)—s.96 was abridged by the legislative grant.

A major question that the Court addresses in this case is the scope of its reasons. That is, does this modified “core” test and the factors it involves supplant the old “core jurisdiction” test?:

The multi‑factored analysis we are adopting here is not intended to replace the current law. The analysis under s. 96 continues to involve two tests. The first — the Residential Tenancies test— continues to apply to any transfer of historical jurisdiction of the superior courts to an administrative tribunal or to another statutory court. The second — the core jurisdiction test — continues to apply in order to determine whether a statutory provision has the effect of removing or impermissibly infringing on any of the attributes that form part of the core jurisdiction of the superior courts. Where a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts, the question whether the infringement on the core jurisdiction is permissible or impermissible should be answered having regard to the factors discussed above.

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While Wagner CJC and Abella J’s opinions are interesting and contain information worth reading, I think there are good and bad elements of the majority’s opinion in this case.

First, the good. It is reassuring to see a “resounding endorsement” of the role of the superior courts in the Canadian constitutional order. Sounding in both national unity and the rule of law, the majority has—more than rhetorically—strengthened the “rampart” that s.96 erects against the creative reassignment of superior court powers (Quebec Reference, at para 145). Specifically, the Court’s comments on the Rule of Law are interesting and welcome. We see, here, a glowing endorsement of the role of the separation of powers in Canadian law, and the role of the Rule of Law in relation to the separation of powers. For a Court that has insisted there is no strict separation of powers in Canada, it is interesting to see that, whatever the content of the separation is, it does real analytical work in relation to s.96. Relatedly, it is reassuring to see the Court draw a direct separation between provincial courts and superior courts. Clearly, the latter have a greater constitutional footing than the former.

Another good piece of this decision: the synthesis of the case law around the prohibition of parallel courts. Section 96 has a somewhat tortured history, and it is defensible for the Court to distill the cases down to a simple proposition: legislatures cannot create parallel or shadow superior courts. In fact, this is the role s.96 has typically played in the constitutional order. Consider, for example, the controversy at issue in Farrah. There, a provincial legislature created a tribunal that had exclusive jurisdiction over questions of law, supported by privative clauses. As the Court noted in Crevier, the Farrah problem was the de facto creation of a s.96 court (Crevier, at 238). More examples abound, and so the Quebec Reference’s synthesis of this important point—the main goal of s.96—is important and helpful.

Now, on to the (potentially) bad: there will be an inevitable confusion that arises in the application of the modified core test the Court endorses. Professor Daly says that this approach is contextual, and meshes well with other aspects of Canadian public law. Contextual tests are not necessarily bad, but it is worthwhile to point out that what they provide in flexibility they trade away in certainty. In this context, a lack of certainty could arise in two ways. First, and in general, I wonder whether we need so many tests to govern s.96. As a reminder, we have three: the Residential Tenancies test, the core test, and the modified core test for cases like the Court of Quebec. The life of the law is experience, and so the Court in the Quebec Reference had to work with the tests that had been developed. That said, in a perfect world, I do think there is a way to simplify the test to determine whether s.96 has been abridged. In my view, most of the analytical work can be done by delineating the categories of “core” jurisdiction that have been recognized by the Court in the case law. While the Residential Tenancies test does play a historical function, ensuring that s.96 protects the jurisdiction of the superior courts at least as it was at Confederation, the core jurisdiction categories could also serve this function while providing more categorical guidance. This would, I admit, entail drawing rather broadly the content of the “core,” and this is what, in part, divided the various opinions in the Quebec Reference. On this account, the core would include substantive considerations (such as judicial review jurisdiction, private law jurisdiction, etc) rather than simply procedural powers concerning the management of inherent process (see Abella J’s characterization of core powers at para 301). There would have to be play in the joints, of course, to allow for institutional innovations resulting from the exercise of legislative sovereignty, particularized by s.92(14) of the Constitution Act, 1867; but I am candidly unsure why one test, grounded in the rule of law, which protects substantive and procedural powers of the superior courts is undesirable.

Relatedly, the modified core test is supposedly limited to cases involving courts, and the lead opinion emphatically says that it is not replacing the law when it uses this modified test (see para 144) . But as Paul Daly notes, it is an open question whether this modified test applies to administrative actors as well. While I am reticent, as I said above, about adopting yet another test to govern s.96, there is no principled reason why the tests developed should apply differently based on whether the derogation is in favour of a “court” or an administrative actor. The evil with which s.96 is concerned is the creation of shadow courts that functionally act as s.96 courts. Whether the recipient of this power is an administrative actor or some administrative actor, there is a chance that a shadow court could be created by the delegation of power mixed with the liberal use of privative clauses. Indeed, in Farrah and Crevier, the issue was the de facto creation of a s.96 court, even in the auspices of an administrative body. While the Court of Quebec is a unique judicial body in Canada, Professor Daly notes that broad delegations of power have been made to various tribunals across the country. Those broad delegations would, it seem, be captured by the Court’s modified test.

The Court seems to draw a distinction between administrative actors and courts, noting that the Residential Tenancies test was in part developed to accommodate the developing administrative state. While whatever test is adopted by the Court must be sensitive to the legislative choice to delegate, the functional reasons motivating that delegation cannot exceed constitutional limits; in other words, s.96 is the brake against unfettered legislative delegation that creates unaccountable shadow courts. No matter the desirability of an administrative state, legislative action is limited by s.96. And for that reason, there is no good reason why s.96 should be different in the context of administrative actors versus courts.

There is more in this decision, including the Court’s interpretive approach when it comes to s.96. For now, though, the Quebec Reference is an important jurisprudential statement about the role of s.96. No matter the difficulties that courts may have in applying the doctrine in this case, at the very least we have important statements about the role of s.96.

The Politics of Law

Is law truly just a function of politics? Should it be?

It is common in progressive circles (and, increasingly, in conservative circles, to some extent) to say that law=politics, or some variation thereof (law is always political, law is political, etc etc). The claim is usually offered without much in the way of qualification, and it appears to capture the many aspects of “law”; the creation of law, the implementation of law, and the interpretation of law.

In this post, I argue that this claim is either banally true or implausible because it merges law with politics in a way that our current system simply cannot support. To determine its veracity, the claim must be examined closely—in relation to the various ways that political considerations interact with law. A failure to do so infects the “law=politics” claim with a fatal imprecision.

I first outline the limited ways in which the claim is likely true. Then I shift gears to a normative argument: while the claim may be true in certain ways, it is not self-evident that it should be true across the legal system. In other words, there is good reason to accept that law may be “political” in certain ways; but it isn’t the case that it should be in all aspects of the law (its creation, implementation, and interpretation).

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Before jumping in, I should acknowledge some imprecision in terms here. The law=politics claim is often made bluntly, without defining what is meant by “politics” or “political.” It could mean, for example, that law is inevitably wrapped up in partisan politics. It could mean that law is not necessarily co-extensive with partisanship, but is correlated with political ideology more broadly. Or it could mean something very simple: law is “political” in the sense that people are “political,” meaning that law mediates disputes in a society where political disagreement is inevitable. It could also mean a combination of all three of these things, or more.

All of these claims could be descriptively true in various ways, in relation to different aspects of law-making, implementation, and interpretation. But a failure to distinguish between these various definitions of “politics” and “political” presents an immediate hurdle for those who claim, without qualification, that law is always political. As I will note throughout, these various claims to the political nature of law may be more or less true given the institutional context. It does not follow that every political consideration is always relevant to the law.

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Starting with the descriptive claim, it is clearly true that law can be political. The creation of law in the legislature is itself a political act. Laws are created to achieve certain aims; these aims can clearly be motivated by ideologies; and the content of law is not “neutral” as between political aims. Political parties make up the legislatures, and they vie for power in elections. In this case, and quite obviously, law is the product of political machinations. It follows that the creation of law itself can be motivated by wholly ideological reasons, quite aside from any claims to public reason or ideological neutrality. As I will note below, the notwithstanding clause is a good example of a situation where a legal power can be exercised for solely political reasons.

As well, the implementation of law by administrators, state officials, police, and others will not always be perfectly consistent with what the law says. Officials could operate on personal whim or policy preferences that are inconsistent with the policy preferences specified in the law. After all, state officials routinely fall below the standards set by the law and the Constitution—one only need to look at the number of constitutional challenges against state action that are successful in Canadian courts (though, of course, this may be due to stringent constitutional standards rather than routine malfeasance by state officials). Whether this is due to cognitive biases, outright hostility to legal norms, or mistaken application, laws can best be seen as ideals that state officials will sometimes fall below. This illustrates that state officials—at best—can only approximate legal norms. In administrative law, for example, the law of judicial review could be understood as an attempt to police the gap between the law on the books and the law as applied; to inch state officials towards following the law on the books, as much as possible.

Similarly, as a descriptive matter, the interpretation of law could be “political” or perhaps more aptly, “ideological.” Law is fundamentally a human business, and interpretation cannot be a perfect science, a simple application of axioms to words. Human beings have cognitive biases and judges are simply human beings. Notwithstanding the fact that judges sometimes speak as if they are neutral protectors of constitutional values, it is simply impossible to guarantee that law will always be interpreted authentically. To be clear, this tendency is likely true across the political spectrum—results-oriented interpretation can be common on the left or the right, and in each case, it is unavoidable that there will be results-oriented interpretation.

That said, we simply do not know the extent to which any of the above is even true in Canada. While it is plausible to suggest that judges and officials may have their judgments infected by ideology extraneous to the legal instrument under interpretation, this should not be overstated. Empirical research would be helpful in determining the extent of this phenomenon. For the most part, though, Canadian judges likely do their best to apply the law according to its terms. (NB: see Emmett Macfarlane’s work here, which tackles some of these issues. I’ve ordered the text).

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As a normative matter, let us assume that it is true that implementation and interpretation of law can be “political” or “ideological” or something of the sort. There are two options: we create rules, standards, and principles to limit the gap between the law as adopted and the law as applied; or we do not. The form of these rules, standards, and principles is unimportant for our purposes. For now, it is enough to say that there is a fork in the road. Either we choose to limit the political/ideological discretion of state actors—including judges—or we do not. The point here is that while there can never be perfectly “neutral” or “impartial” creation, implementation, and interpretation of law as a matter of fact, it is desirable—as a normative matter—to limit the role of pure ideology in certain areas of law, to the extent we can.

This is obviously not true in the context of law-creation. The public understandably, and quite likely, wants our laws to be the product of a democratically-elected legislature (to the extent our electoral system leads to fair democratic outcomes in the abstract). In this sense, people vote for representatives that share their priors or who they wish to see in the legislature. Those legislatures, composed as they are by political parties, will pass laws that reflect the majority will (again, to the extent the “majority will” is represented in our electoral system). Ideally, in legislative debates, we want all the cards on the table. We want our representatives to fully and frankly air their ideological differences, and we want the public to be able to judge which program of government is best. In this sense, it is undesirable as a normative matter to (somehow) limit the politics of law in the realm of legislation.

However, as a normative matter, the story changes dramatically when it comes to law implementation and interpretation. Our Supreme Court endorses the proposition, for example, that interpretation must be conducted in order to “discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome” (Vavilov, at para 121). Administrative decision-makers implementing law have only limited reserve to bring professional expertise to bear (Vavilov, at para 31); otherwise, they are creatures of statute, and are cabined by the terms of their statutes (Chrysler, at 410). Put differently, administrative actors implementing law have no independent reserve to make free-standing ideological determinations that are not incorporated into the law itself. A different way to put it: law is political in the legislatures, but when it is being interpreted or implemented, courts must discover the political choices embedded in the law itself.

The Court also endorses a law and politics distinction, as a constitutional matter, when it comes to judicial independence. It says that judicial independence is “the lifeblood of constitutionalism in democratic societies” (Ell, at para 45), which “flows as a consequence of the separation of powers” (Provincial Judges Reference, at para 130). Judges should not, at least as a positive matter, render decisions that are infected by ideology—because it is the legislature’s job to make judgment calls based on political considerations, economic tradeoffs, or otherwise.

I could go on with examples of how our Court—and our system—endorses a separation between law and politics. For what it’s worth, and no matter the descriptive reality, I believe there is wisdom in articulating limits to the free-standing ideological whims of administrators and judges. Of course, these limits will not be perfect, and they will not reverse the reality that implementation and interpretation will sometimes be driven by results. But the use of rules, standards, and principles to cabin these free-standing policy preferences can be useful in ensuring that state actors and judges justify their decisions according to certain, universal standards.

Two examples could be offered. First, in statutory interpretation, we have semantic canons, presumptions, and tools to try to determine the authentic meaning of law. These “off-the-rack” tools and presumptions are far from perfect, as Karl Llewelyn once pointed out. They can be contradictory, and they are not axiomatic laws of nature that lead inexorably to certain results. But we have these rules for a reason. We use them because we have made an ex ante judgment, over the years, that they will help interpreters reach the authentic meaning of legislation (or, if one is an intentionalist, the authentic intention of legislatures). We do not expect judges to distribute palm-tree justice when faced with a law. Instead, we expect judges to justify their interpretive result through the prism of these canons and presumptions, because they are semantically and substantively useful. We do this because there is a law and politics distinction between legislative work and judicial work, endemic to our Constitution.

Of course, there is a recognition that legal principles may themselves have a certain political valence. Presumptions of liberty, substantive equality, strict construction of taxation laws–all of these rules could be said to contain certain “political” suppositions. As I have written before, I am generally not supportive of certain substantive presumptions of interpretation that put a thumb on the scale. But as Leonid Sirota writes, some of these presumptions are plausibly connected to the legal system–in this sense, they are political, but they represent values that are endemic to the legal system as it stands. Substantive equality is similar. It can, at least plausibly, be traced to the text and purpose of s.15 of the Charter. These are principles that have some connection to our legal system; they are not representative of the whims of the particular interpreter in a particular case. At any rate, forcing interpreters to justify their decisions is useful in itself.

Secondly, Doug Ford’s recent decision to invoke the notwithstanding clause presents a good difference between the ways in which law can be political, and the ways in which it should not be. When a government invokes the notwithstanding clause, it is not necessarily an exercise of reason. It could be a blunt assertion of legislative power. Now, that assertion of power can be justified by any number of considerations. If some detractors are correct, for example, Ford’s use of the clause in this case could simply be designed to punish his opponents. Less likely, it could be a good-faith attempt by a legislature to come to a different definition of a rights-balance. Whatever it is, the use of the notwithstanding clause is an exercise of power that could be motivated by distinctly political aims. In this way, legislation is quite clearly political.

However, and even if naked political judgments are not justiciable once invoked under cover of the notwithstanding clause, the public may wish to articulate a different justificatory standard for the use of power that is legalistic in nature. As Geoff Sigalet & I wrote here, the public may wish to subject politicians who invoke the notwithstanding clause to a standard of justification—the politicians should offer legitimate, objective reasons for the invocation of the clause. Again, this is not a legal requirement. But as a matter of custom, it is a requirement that the public may wish to impose on politicians as a check on rank political judgments. By imposing such a standard, the public can disincentivize uses of the clause that are not backed by solid, legal reasons.

None of this is new. Indeed, Dicey argued that for the Rule of Law to flourish in any society, the society must contain a “spirit of legality” that is separate and apart from any limits imposed on power by courts themselves. This spirit of legality presupposes that there are some areas where the public should expect better than rank political and ideological judgments. Of course, the law & politics distinction is a matter of some controversy, and I cannot address every aspect of the distinction here. Suffice it to say: broad claims that “law is always political” cannot hold. Law is descriptively political in some ways. It does not follow that it should be in all cases. Quite the opposite, sometimes it is best for rules, standards, and principles to cabin the ideological capture of courts and others, as best they can. This will not be perfect, it will not always work, and it is not a mechanical process. But it’s worth trying.

Overcoming Justice Abella’s Admin Law Legacy

On the occasion of her retirement, what can we learn from Justice Abella’s administrative law generation?

All good things must come to an end, and such is the case with the careers of our Supreme Court judges. On July 1, 2021, Justice Rosalie Abella will retire. Justice Abella has been a lighting rod—for good and bad reasons—throughout her tenure on the bench. There is no doubt that she, having been a Supreme Court judge since 2004, has left her mark on various areas of Canadian law. Others will analyze Justice Abella’s legacy in those areas.

In this post, I hope to provide an assessment of Justice Abella’s legacy in the world of administrative law. For a generation, Justice Abella (even before she was on the Supreme Court–see her decision in Rasanen) was a leading Canadian administrative law thinker with skills of persuasion. While Justice Abella’s thinking on administrative law was broadly representative of the judicial and academic zeitgeist of the period starting with CUPE , time and experience have shown limitations in this thinking, and the Court has rightly begun to rollback the “innovations” of this period. The problems are two-fold: (1) Justice Abella’s notion of deference is largely based on illusory assumptions about administrative expertise; (2) Justice Abella’s notion of deference makes too much of the position of administrative actors as “partners” in the law-making enterprise, especially on constitutional questions.

I will start by outlining Justice Abella’s general theory of administrative law, as represented in extrajudicial writing and some select opinions. I will then flesh out my criticisms of Justice Abella’s administrative law legacy, showing how and why the Court was justified in Vavilov in resiling from some of the commitments demonstrated by Justice Abella through her opinions and the Court’s pre-Vavilov case law. In short, Justice Abella’s lack of skepticism about government power—particularly administrative power—simply does not register as credible in the 21^st century. To develop a doctrine of deference that is attuned to the diffuse nature of administrative power, the Court must continue to overcome the administrative law commitments of Justice Abella’s generation.

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I have written many times about the dominant mode of administrative law thinking in Canada, culminating in the jurisprudential watershed moment of CUPE. Justice Abella fits neatly in this generational movement. The so-called functionalists (people like Justice Abella, John Willis, Harry Arthurs) were high on administrative power for two overlapping reasons. First, they saw the conservative common law courts stymying administrative decision-making, which was the means used by legislatures to implement social justice policy (see, particularly, the work of Harry Arthurs). Second, they assumed that administrative actors were more expert in the administrations of their statutory schemes than courts (see , again, Arthurs). This was best represented in the Supreme Court’s Dunsmuir decision, when the Court adopted the famous quote from David Mullan, suggesting that deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: see Dunsmuir, at para 49. The net result of these two commitments is an ardent belief that administrators can render decisions, using their own techniques, that make sense of the law—and that courts should respect those decisions. For Justice Abella, then, the “Rule of Law”—which typically justified the subjection of administrative power to the law—is a formalistic legal principle that unnecessarily pits judicial power against administrative exigency. Instead, as Justice Abella says in a co-written piece with Teagan Markin, the law should inculcate a “mutually respectful relationship between the courts and administrative decision-makers” one that prizes the “legitimacy” and “authority” of administrative actors (Abella & Markin, at 272) as a “constitutional participant” (Abella & Markin, at 298).

With these commitments in mind, the Court developed a theory of deference that did just that. In the high-water mark era for epistemic deference, the Court confirmed that expertise was the most important factor influencing the selection of the standard of review (Southam, at para 50). In Dunsmuir, as noted above, respecting the institutional choice to delegate to experts was seen as a valid reason for courts to defer to administrative actors.

Justice Abella’s functionalist mindset was clearly represented in her opinions. Three are relevant. First is her decision in Newfoundland Nurses. That case—which Vavilov implicitly overruled (see Vavilov, at para 96)—permitted courts to “supplement” decisions that were otherwise deficient in their reasons (Nfld Nurses, at para 12). What was required under Nfld Nurses was a “respectful attention to the reasons offered or which could be offered…” (Nfld Nurses, at para 11 citing Dyzenhaus). The upshot of this is that courts could not quash decisions simply on the basis of the quality of the reasons alone (Nfld Nurses, at para 14) because of considerations of specialization and expertise (Nfld Nurses, at para 13). Here, we see the translation of administrative law theory into administrative law doctrine. Because Justice Abella is concerned about the legitimacy of the administrative state and undue judicial interference, she would rather courts partner with administrative decision-makers in supplementing decisions rather than subverting them.

A second example, and perhaps the most important one, is Justice Abella’s opinion for a unanimous court in Doré. Doré is important because it demonstrates the two strands of Justice Abella’s administrative law thought: pluralism and expertise. Doré basically held that when administrative decision-makers make decisions that engage constitutional rights, their decisions are entitled to deference if they represent a proportionate balancing between the relevant Charter right and the statutory objective at play (Doré, at para 57). For Justice Abella, though, Doré was more than just a technical framework. For her, Doré was “deference theory at work” (Abella & Markin, at 299) because it showed, finally, that “administrative bodies have then authority and expertise to interpret apply…legal constraints…” (299). Even on constitutional matters, typically jealously guarded by the judiciary, this was true. Indeed, it was because of the supposed (though unproven) expertise of decision-makers on constitutional questions arising in their ambit that deference was justified (Doré, at para 47). Here, the various strands of functionalism are in full force, yielding a rather major shift in doctrine: courts must defer to administrators on constitutional matters.

Finally, Abella and Karakatsanis JJ’s opinion in Vavilov is perfectly representative of the sort of administrative law thinking that, as I will note, may be on its way out. In Vavilov, the Court implemented a number of changes to judicial review doctrine in Canada. One of these changes was a downgrading of expertise as a reflexive or presumptive deference factor (see Vavilov, at para 30). Now, there would be no assumption that “expertise” leads to deference—expertise would need to be proven through robust reasons (Vavilov, at para 31). Additionally, the Court also clarified that in certain circumstances, the Rule of Law—as an apparently standalone, unwritten principle— would dictate that a standard of review of correctness should apply (Vavilov, at para 53 et seq). In these regards, and as I have written in other work, Vavilov (at least in part) represents a more formalistic template of administrative law theory than what preceded it (796). For Abella and Karakatsanis JJ, this was the problem: to them, Vavilov was a “encomium for correctness and a eulogy for deference” (Vavilov, at para 201). Why? Because gone was expertise as a presumptive reason for deference, with the substitution of a “court-centric conception of the rule of law rooted in Dicey’s 19^th century philosophy” (Vavilov, at para 240).

With these three cases taken together, Justice Abella’s views on administrative law can be sketched out. She often demonstrates an abiding trust in administrative decision-makers and their expertise over legal—and even constitutional—matters. This leads to a positioning of the administrative state as a partner in law-making and interpretation. Deference, put this way, is a recognition by a judicial actor of this apparently constitutional role of administrators. While this appears to be Justice Abella’s view on administrative law, it is worth noting that the Court as a whole seemed to largely accept this understanding of the relationship between courts and administrators.

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Having set out the gist of Justice Abella’s general conception of administrative law, I now wish to show three problems with this understanding. To the extent the Court, in Vavilov, has walked back this understanding of administrative law, it should be celebrated. And while Justice Abella’s Doré opinion remains on the books, there are good reasons to think that it, too, will and should be overturned.

Expertise

The first issue with Justice Abella’s view of administrative law, demonstrated throughout her tenure, is its problematic assumption of expertise. As demonstrated through the Supreme Court’s pre-Vavilov case law, and in Justice Abella’s opinions, “expertise” was a woefully underdeveloped doctrinal concept that carried with it great power. Its invocation—especially in relation to well-established decision-makers like labour boards—ensconced those decision-makers with a juridical and psychological immunity from judicial scrutiny. But the Court never explained what “expertise” meant, how it could be recognized by courts, and why a presumption of expertise (as hardened in Edmonton East) was at all empirically justified.

In fact, many issues with expertise arise that Justice Abella and others never addressed. The first and obvious issue is that “expertise” on legal matters may simply not always exist as an empirical matter. The Vavilov majority recognized this reality when it stated that if expertise is simply assumed in all cases, it cannot be a doctrinal concept that meaningfully assists a court in determining whether a particular decision-maker is actually expert (Vavilov, at para 27 ). But more importantly, the presence of expertise is based on an empirical assumption: administrators, operating within the confines of their legal schemes, can best transfer their policy expertise to the world of interpretation; their expertise can inform their understanding of their own statutory scheme, and as a result, courts should defer. But this is based on a number of unproven assumptions: (1) that particular decision-makers have relevant policy expertise; (2) that relevant policy expertise is easily transferrable to skills required to interpret statutes; (3) that relevant policy expertise will necessarily shed light on what particular legislative terms mean. Without answers to these questions, it is simply speculation to suggest that administrators possess expertise that would assist them in interpreting the law.

The assumption is even stranger when one considers constitutional questions. If courts are to defer to administrative consideration of the Constitution, a few more assumptions need to be added to the mix. It must be assumed that relevant policy expertise=relevant legal expertise=relevant constitutional expertise. While the Constitution is law, it is a sui generis law that contains its own meanings, purposes, and interpretive techniques. Absent some compelling reason to think otherwise, it is mind-boggling to simply assume that line decision-makers will reliably and expertly contribute to the meaning of the Constitution.

Secondly, the obsession with expertise in the case law and in Justice Abella’s opinions fails to recognize the dark side of expertise. The administrative state is gargantuan, and it does not only include benevolent, public-minded people applying their “neutral” expertise in authentic ways. Expertise can also cut the other way: it can lead to a decision-maker taking a myopic view of constitutional values, or otherwise subordinating constitutional or other general legal principles to the narrow exigencies of what is required by administrative “expertise” (see for example, Kerr, at 260). Interestingly, Kerr writes in the prison context, where there is a professional environment that systematically values control over the exercise of constitutional rights–and where concerns about assumptions of expertise are grave, indeed (see the factum of the Queen’s Prison Law Clinic in Vavilov). A lack of familiarity with constitutional norms, and a professional environment that may not inhere respect for those norms, does not inspire confidence. Indeed, the Doré framework—which places constitutional “values” and statutory objectives on the same playing field, despite the hierarchy of laws—will underpower rights because it fails to accord priority to constitutional rights over administrative objectives (see the dissent of Brown and Cote JJ in TWU, at para 206).

Finally, Justice Abella’s deployment of the “expertise” label may have led her to undervalue the importance of reasoning in determining the legality of administrative decision-makers. Doré is an example of this undervaluing. In Doré, Justice Abella did not provide any detail on the standards to be used in determining whether an administrator’s reasoning met constitutional standards. It was enough that administrator to “balance” (whatever that means) rights and objectives; indeed, in some cases, the administrator need only be “alive” to the Charter issues (TWU, at para 56). As I will note below, this is an empty theory of deference. It tends towards abdication based on faith in expertise rather than respectful deference. Relying on expertise as a faith-based reason for deference should not exclude the requirement for proper reasoning, as Vavilov confirms.

Now, the fact that administrators may not have expertise may not be fatal for Justice Abella. In her Vavilov opinion with Karakatsanis J, the judges note that internal administrative training could be a fix (see Vavilov, at para 283) rather than authorizing “more incursions into the administrative system by generalist judges who lack the expertise necessary to implement these sensitive mandates (Vavilov, at para 283). This is a nice thought, but it is a bit like allowing the fox to guard the henhouse. There is no reason to assume, without more, that administrators will undergo training sufficient to understand the Constitution, for example. Even if there was, internal training is clearly no substitute for judicial review by generalist judges. It is the very fact that judges are generalist that makes them well-suited to ensure that general legal concerns—like the Constitution—find expression in discrete administrative regimes, with their own internal pressures. And as a matter of law, judicial review must exist. In an ideal world, we would expect administrators to structure their discretion through robust legal training, and we would expect courts to act as a backstop.

2. Pluralism

A second theme seen throughout Justice Abella’s opinions is a focus on legal pluralism. As noted above, the idea is that administrators should be seen as valid contributors to the meaning of the law and Constitution—and thus, courts should not take a supervisory or command-and-control position vis-à-vis the administrative state.

Now, it should be noted that this theme presents two distinct questions. First is whether administrators should have the power to render binding interpretations of law and the Constitution. This normative point, however interesting, is somewhat moot, in part because of the success of Justice Abella’s administrative law theory over the years. Administrators, as a matter of law, do have the power to render binding interpretations of law & the Constitution, if they are delegated the power to do so (see Martin & Conway). In my view, the ability of administrators to do so is legitimate and legal. On ordinary questions of law, the legislature has validly delegated power to administrators to decide these questions in many cases. This legislative choice must be respected absent constitutional objection. On constitutional questions, the issue is trickier, but I can certainly concede that administrators should be able to render interpretations of constitutional law as a function of their subjection to constitutional norms. In other words, if the Constitution is seen as binding on all state actors (as it should be), then it is inevitable that administrators will need to deal with the Constitution. When they do so, they are determining whether the bounds of the Constitution hem in their decision-making power. This calculation is essential if administrative actors are to be bound by the law and the Constitution.

So far as this goes, the administrative state can contribute to the meaning of law. But not too much should be made of this statement. That is because, as a matter of fact and law, administrators and judges are not on an equal playing field. Judicial review necessarily implies a relationship where one body (the court) has the authority and power to correct and surveil another body (the administrator). As a matter of law, that supervisory jurisdiction must remain (see Crevier), and it may even need to occur at a certain stringency on certain questions. As a result, there can never be a perfect equality between administrators and courts, as Justice Abella suggested.

In this way, Vavilov is a drastic improvement over what preceded it. Vavilov clearly states that administrators can and do contribute to the meaning of law, even if judicial justice does not resemble administrative justice (see Vavilov, at para 92). As far as it goes, this is an accurate descriptive statement that acknowledges the current state of Canadian administrative law. But Vavilov does not counsel abdication to administrative power. It instead insists on stringent reasoning requirements, particularly as regards the law (see Vavilov, at para 108 et seq) with only a small margin for error (Vavilov, at para 122). By doing so, it ensures that courts have standards by which they can assess administrative exercises of power, without unduly trenching on jurisdiction delegated to an actor besides the courts.

What we see here is a difference between deference as rooted in the supervisory role of the courts and deference rooted in some external appreciation of the administrative state. In our constitutional system, it is simply the reality that there must be judicial review. The way courts review administrative action puts them in a supervisory position over delegated power. This hierarchy is inescapable. Courts can–and have–developed doctrines of deference based on notions of legislative supremacy. But that doctrine of deference is quite different than one based on expertise. In the former case, deference is plausibly rooted in a exercise of constitutional power by a coordinate branch of government. Deference is not justified by a court assuming–without more–that a decision-maker could come to a “better” decision than the court. As a side note, all of this makes the last piece of Justice Abella’s administrative law legacy–Doré –vulnerable. As I wrote in this paper, the downgrading of expertise as a reflexive reason for deference and the role of the Rule of Law in anchoring the standard of review (correctness on constitutional questions) at least raise the question of Doré ‘s long-term health.

Justice Abella, in her recent co-authored article, argues that such assertions on the basis of formal constitutional materials provide no answer to her conception of administrative law. She and her co-author note that the Secession Reference, which gave a place of priority to unwritten principles of constitutional interpretation, “acknowledges the political nature of law and embraces the idea that although the government is of course constrained by legality, legality is itself a political question capable of sustaining several answers” (295). To the authors, the Secession Reference ushers in a new era that demonstrates that all institutions can take part in the making of law, lending new legitimacy to the administrative state. So, an argument as I have made on the basis of the Constitution–to the authors–is a non-starter.

Needless to say, I find this retort particularly unconvincing for a number of reasons. First, whether law is “political” or not is besides the point. While law is the product of politics, interpretive pluralism should not be taken as an excuse to simply favour the decision-makers that form the political valence we may prefer. It is the legislature’s political choices–not the court’s–that are relevant in determining the space for deference.

Secondly, Vavilov throws a ton of cold water on Justice Abella’s understanding of the Secession Reference. The Secession Reference endorses the Rule of Law as an unwritten principle of constitutional law that can give rise to substantive obligations. To the Court in its various cases, the Rule of Law is understood in a formal sense, as having to do with the subjection of government power to rules in a system of positive laws (see Secession Reference, at para 71). This is a largely formal understanding of the Rule of Law. As an analogue to this understanding, the Court has held that the Rule of Law and s.96 Constitution Act, 1867 together protect the role of the superior courts in conducting judicial review (see, again, Crevier) and protecting core superior court powers (see MacMillan Bloedel). This formal understanding of the Rule of Law was extended in Vavilov. The Court held that legislatures were not free to set up the administrative state as theu wished: legislatures could only specify the standard of review “within the limits imposed by the Rule of Law” (Vavilov, at para 35).

This understanding of the Rule of Law as an unwritten principle, and its relationship to administrative pluralism, should not be understated. Under this understanding, the Rule of Law protects not only the existence of judicial review, but it prevents legislatures from insulating administrative actors from curial scrutiny at a certain intensity on certain questions. The fact that the Rule of Law and s.96 are understood in this way serve to make a point: it would be unconstitutional, in fact, for legislatures to make administrators perfectly equal to superior courts, in a legal sense. The role of superior courts is protected constitutionally, in part, because of its importance in maintaining the Rule of Law. This invites a hierarchical relationship between courts and administrative decision-makers.

All told, the retirement of Justice Abella will be a landmark moment for the Court in many ways. And given Justice Abella’s popularity in the legal community, I have no doubt her retirement will be appropriately marked. But, as lawyers, the retirement of a prominent judge presents us an opportunity to review the body of her work. In the world of administrative law, Vavilov represents the first major effort to overcome Justice Abella’s persuasive legacy. This is welcome.

No matter what, I wish Justice Abella well on her retirement.

Ontario’s COVID-19 Discretion Tragedy

Ontarians watched with a mix of horror and confusion on Friday as Premier Ford and medical officials announced what could only be described as drastic measures to, apparently, curb the spread of COVID-19 and its related variants. While the government has flip flopped on these measures since, and it is unclear if further changes are coming, these measures would have (and as I will point out, probably still do) significantly empower the police to enforce Ontario’s stay-at-home (SAH). These measures raise a whole host of enforcement concerns, ones that should worry all Ontarians.

In this post, I briefly review the state of affairs as they stand. I then make two general comments about the recent measures. First, the measures demonstrate why discretion is presumptively risky, even if a modern system of government requires it to function. Second, the measures demonstrate why a relatively thin version of the Rule of Law is a necessary but insufficient condition for a society that respects civil liberties. Instead, the Ontario example shows that a populace concerned with legality will sometimes act as a better check on discretionary power than the courts. This is a highly desirable feature of a society built around the Rule of Law.

***

On April 7, the Ontario government announced enhanced measures “in response to the rapid increase in COVID-19 transmission, the threat on the province’s hospital system capacity, and the increasing risks posed to the public by the COVID-19 variants.” The so-called SAH applied province-wide, and required “everyone to remain at home except for essential purposes, such as going to the grocery store or pharmacy, accessing health care services (including getting vaccinated), for outdoor exercise, or for work that cannot be done remotely.” The SAH also had some measures dealing with retail opening and staffing.

The province upped the ante last Friday, when it announced enhanced measures adopted in relation to the SAH to fight COVID. There were a few iterations of these measures, and the timeline is somewhat confusing, but below is my attempt to summarize the happenings (I do not include, here, any information about the interprovincial travel measures or the so-called “playground” measures:

On Friday, the provincial government gave police the power to require any individual not at home, on the street or in their cars, to provide the reason that they’re out and provide their home address. Put differently, the police had the power under this order to stop anyone randomly. This rather surprising delegation of power, when it was announced by the Premier and medical officials, was not cabined by any limiting principle; ie, to many of us on Friday, it did not appear that the police even required “reasonable and probable grounds,” a constitutional standard, to stop anyone.
In response to the announcement, various police forces across the province intimated that they would not enforce the new rules, to the extent that they required random vehicle or individual stops (see ex: Waterloo Regional Police). The Ontario Provincial Police, however, seemed to suggest it would enforce the random stops (see here).
On Saturday, the relevant text of the regulation was released (as an amendment to O. Reg. 8/21 (ENFORCEMENT OF COVID-19 MEASURES). The amended regulation, at s. 2.1, specifically gave the police the power to require information from an individual “not in a place of residence.” This information included an address, as well as “the purpose for not being at their residence, unless the individual is in an outdoor or common area of their residence.”
On Saturday evening, Solicitor General Sylvia Jones announced that officers would no longer be able to stop any pedestrian or driver to ask why they’re out or to request their home address. The new regulation makes two important changes:
- Under the new s.2(1), a police officer must have “reasonable and probable grounds” to believe that an individual has committed an offence under relevant COVID-19 orders (specifically relating to participation in public events or social gatherings).
- The range of information the police could collect in a stop in which they have reasonable grounds was seemingly expanded by the regulation (adding date of birth, for example).

As of moment of publication, this is where we stand. I turn now to analyzing this series of events in the two frames I have set out (1) discretion and (2) the Rule of Law.

Modern government is built on discretion. The insight here is simple. Legislatures cannot make all the laws they need to make to cover all policy or legal problems that exist in a modern society. As such, legislatures in Canada have chosen to take advantage of the supposed expertise of administrative actors, delegating power to make and enforce laws. They have also, relatedly, delegated power to Cabinet to adopt law quickly through regulation. The finely wrought legislative process will not always be reactive or quick enough to deal with problems, and so delegation is a way to create a more responsive body of law.

This is the positive side of the story. But as KC Davis famously argued in his text Discretionary Justice: “…every truth extolling discretion may be matched by a truth about its dangers. Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder” (25). While it is important that a modern system of government can individualize justice, as Davis put it, there are costs to doing so.

The costs can be minimized, but often aren’t. Legislatures in Canada often delegate power to various recipients in the broadest fashion possible, and they generally do not fulsomely analyze the content of regulations adopted, after the fact. There are the famous “public interest” delegations that are legion in the statute books, for example. These delegations cannot be broader, in part because they ask the recipient of the delegation to decide themselves whether the public interest is met by a particular exercise of discretion.

Now, there is not a strict dichotomy between “rule” and “discretion,” but rather discretion starts where rules “run out”: “The problem is not merely to choose between rule and discretion, but…to find the optimum point on the rule-to-discretion scale” (15). Davis’ idea of “structured discretion” is relevant here. To Davis, “[t]he purpose of structuring is to control the manner of the exercise of discretionary power within the boundaries” [97]. While Davis’ discussion is focused on the American rule-making context, the idea is equally relevant to us: legislatures and administrators themselves can choose, in certain circumstances, to confine their discretion through targeted delegations, policies and guidance documents, and precedents. This does happen: one might look at Ontario’s Emergency Management Act, particularly section 7.0.2, to see how a delegation can be cabined, even weakly (delegation to make orders in a declared emergency).

The problem with discretion, however, is that the systemic incentives tend towards permitting wide discretion that can be abused. Legislatures that are delegating because they cannot make laws themselves are probably not inclined to truly structure discretion: the Ontario emergency legislation is an example. Administrators, police officers, and other actors have no real incentive themselves to exercise their discretion within the bounds of law (except a political one, which I will note below). In fact, the institutional pressures of their own administrative settings may encourage ad hoc reasoning and decision-making, relying on broad delegated authority, in order to accomplish what they see as their policy goals. This is all hypothetical, of course, but the point is that when any government official is exercising delegated power, there is no real reason for them to exercise discretion properly (whatever that means in context), and especially so where the possibility of ex post judicial review is unlikely, or the strength of that review will be highly deferential.

In certain administrative contexts, abused discretion (in the notional sense, not the legal sense) carries grave consequences. Expropriation of land is an example. The police are another example. Police carry any number of discretionary powers, and police are constantly up against the rights and dignity of individuals. Recent events illustrate that police discretion—to detain someone, to arrest them, even to shoot them—can be easily abused based on irrelevant characteristics, such as race or class stereotypes. We have seen this story too many times to say that discretion is some inherently benevolent legal concept.

This is what made Ontario’s original order so surprising. A system of random stops is positively unstructured discretion. While, in normal circumstances, the delegation of legislative power cannot be constitutionally impeached, the legislature does not have the power to delegate a power to administrators or police to breach the Constitution: see Vavilov, at para 53. In this case, this unstructured discretion is likely unconstitutional (see here), even if it is validly delegated. This isn’t surprising: the discretion is so broad that the possibility of unconstitutional implementation is too great to bear.

Some might say it is a vindication of the police that many decided not to enforce the order. But this is simply not enough, for two reasons. First, not all police chose this path: as I mentioned above, the OPP had every intention, it seemed, of enforcing the original order as written. Secondly, the point is that there is no legal incentive (except the political one I mention below) that mandated the police to opt out of enforcing these measures. In the strictest positivist perspective, actually, until a court has rendered the delegated power or a government act unconstitutional, the law must be enforced. But as I will note below, there are other controls for potentially unlawful government conduct.

Additionally, one might think that the refined regulation is better. After all, it does seem to incorporate some “structuring” language: it includes the “reasonable and probable ground” language. This may insulate it from constitutional scrutiny, but that does not mean that the discretion is proper from a public governance standpoint (rather than a strictly legal one). This is barely structured discretion (much like the emergencies legislation). As Nader Hasan points out, on close reading of the regulation, it does appear that the police can stop people that they subjectively believe have violated certain rules, and then obtain any information they wish. The regulation compels an answer if the police can clear the “reasonable cause” threshold, which they likely could in most cases, given that if one is outside, they may be about to attend a prohibited public gathering, or about to return home from one. This could then lead to other information gathered about potential criminal activity that otherwise could not be obtained but for the pretense of the “COVID stop.” Because it is up to the police themselves to form the reasonable suspicion, there are many potentially irrelevant factors that could infect the discretion.

This is not to say that all police will always abuse their discretion. Many police officers perform their roles honourably, and I bet many officers did not want or ask for the powers that were granted to them. But, nonetheless, the Ontario example demonstrates the problem with discretion. There is no incentive for legislatures or the Cabinet to heavily structure discretion. In this case, the government obviously decided that an unfettered police power would best accomplish its goals. As citizens, we should be worried that this was the government’s first choice—not only because it is unconstitutional, but because of the potential error rate and abuse.

Finally, I want to say a few words about what this saga tells us about the Rule of Law.

There is a vibrant, old debate about what the Rule of Law accomplishes. Historically, some have said the Rule of Law is the rule of courts (Dicey is often said to represent this view: see Justice Abella & Teagan Markin’s recent piece). Others have suggested that the Rule of Law is much broader, encompassing substantive guarantees (see Lord Bingham’s book). Without taking a side in this debate, there is a subsidiary question: whose responsibility is it to preserve the Rule of Law?

Clearly, the courts play a vital role in preserving the Rule of Law. This is a point that requires no citation. We need a system of adversarial courts, and such a system is probably constitutionally prescribed. Moreover, we need a system of courts to police the boundaries of discretionary action. Courts ensure that administrative action falls within the bounds of the law, and in Canada, this is where the bulk of control over the administrative state occurs. Most reasonable people agree that we need this system of courts.

But these courts are only a necessary condition for legality to flourish. More is needed. Most notably, as Dicey notes (and as Mark Walters explores in his work), a Rule of Law society cannot depend on formal legality as the only requirement. What is required is a society of individuals who embody a “spirit of legality.” People need to jealously, but within reason, guard their constitutional rights that are protected in positive law. But they also need to see the Constitution as a floor rather than a ceiling. Troublesome discretionary acts can be perfectly constitutional but be undesirable because they increase the error rate of enforcement or liberate government actors to an unacceptable degree. What is required is a vigilant population, especially in an emergency situation where civil liberties might be the first legal rights to fall by the wayside.

Many people, on this front, acted appropriately in calling out the Ford government for its adoption of the first tranche of measures on Friday. It was this mass outcry, I think, that forced the government into walking back its original measures. This public outcry was essential. There was little chance (apart from an injunction) that any litigant would be able to stop the enforcement of these measures in time. In this case, it was a concerned population that forced the government to change its laws. One should never underestimate the power of political controls in hemming in potentially unconstitutional government conduct. Any society that says it is bound by the Rule of Law will be incomplete if it does not encourage vigilance and skepticism regarding government acts.

This is not to say that the balance has been appropriately struck throughout the pandemic. I’m not sure, from a policy perspective, if the SAH had the desired effect, for example–despite the cost it exacted in civil liberties. But we have to celebrate wins when they happen. Such is life.

Interpretation and the Value of Law

Why the interpretation of law must strive for objectivity, not pre-determined outcomes

This post is co-written with Mark Mancini

We write in defence of a simple proposition: there is a value in ordering relations among individuals in large communities through law, rather than through other modes of exercising authority, and this value is not reducible to the goodness―by whatever metric―of the content of the law. Of course, good law is better than bad law, but law as a form, as the institution that allows individuals, groups, and organizations to interact with one another in predictable ways while constraining what those with power can do to those without, is precious quite apart from its substantive merits.

Law is the only mediator we have in a pluralistic society where there is limited agreement on foundational moral values, and still less on the best ways of giving them effect. Law records such agreement as exists for the time being, while also exposing this record to critique and providing a focus for efforts at reform. It is neither sacred nor permanent, but it is a common point of reference for the time being for people who disagree, sometimes radically, about the ways in which it should be changed. These are valuable functions regardless of whether one agrees with the substance of the law as it stands from time to time. Increasingly, however, certain schools of thought tend to deny that law has any value apart from its utility as a means to some political or another. We regard this as a dangerous development.

Now, to serve as the common point of reference in the face of widespread disagreement about values and policies, law must have some characteristics beyond its substantive political content; it must contain other features, often described in the literature on the Rule of Law. For example, it must be public, sufficiently certain, and stable. Of course, law actually enacted by constitution-makers, legislators, or officials exercising delegated authority, or articulated by common law courts, sometimes falls short of the ideals of clarity or certainty. Sometimes the words of this law will be broad, dynamic, and open-textured. But for law to fulfil its function, indeed to be law at all, it must have a fixed content independent of the views and preferences of those to whom the law applies. To the extent this understanding of law is now considered unorthodox, we hope to correct the record.

When law as enacted or articulated is not self-explanatory, it must be interpreted, ultimately by judges. The orthodox view, which we regard as correct, however old-fashioned it may seem, is that judges must do this by applying legal tools and techniques. Ideally, these must themselves be well-known, certain, and stable, although we acknowledge that the law of interpretation has often failed to live up to this ideal, even if the strongest critiques of legal interpretation as radically indeterminate have always been overstated. Judges will sometimes develop legal doctrine beyond what is apparent on the face of a constitutional or statutory text, engaging in the activity American scholars describe as construction. They may also distinguish or even overrule precedents. In doing so, however, judges must remain faithful to the principles and purposes of the law as they have found it enacted or articulated by the institutions―above all, the democratic institutions―our polities have authorized to resolve, for the time being, disagreements among their members.

Those who have come to reject the value of the law as law often regard legal interpretation as the weakest link which they can break to subvert the law’s function as the common guide and reference for people who disagree with one another. They want, instead, to use interpretation to impose values and policies that are not in the law as enacted or articulated, and which are, instead, those of the parasiti curiarum who seek to give the courts this inflated, and fatally distorted, sense of their role.

These parasiti belong to schools of thought―and political factions―that are, ostensibly, fiercely opposed to one another. On the one hand, there are those who favour “living tree” interpretation in constitutional law and freewheeling pragmatism in statutory interpretation, aiming to keep up with ever-changing notions of social justice by means of “progressive” and “modern” interpretations that update the law from time-to-time. On the other, there are those who demand that constitutions and statutes be read so as to promote a religiously-infused “common good”. The substantive political commitments of these schools are far apart.

Yet the two camps share one key belief: they both see law as merely an instrument with which to achieve their preferred political aims. Both are firmly convinced that it is legitimate to impose their respective hierarchy of values on society through judicial and administrative fiat, and urge judges and administrators to do just that, regardless of whether the constitutional and statutory texts being interpreted in fact embody these values. Indeed, they also share a certain legal and linguistic nihilism that causes them to deny that a legal text can have a meaning independent of its interpreter’s will. As a result, they are quite happy to use interpretation to reverse-engineer the meaning of laws in accordance with their preferences, regardless of these laws’ text or history and of the longstanding interpretive techniques.

For our part, we maintain that the judges’ interpretive role is not to impose some pre-determined set of values onto the law but to seek out the moral and policy choices that are embedded in the law as they find it. Judges do so by—to the extent possible—making the law’s text the object of interpretation. Even in the “construction zone”, where they apply legal texts to new situations or develop doctrine to apply vague textual commands, judges must seek, in good faith, to implement the choices made by those who made the law. At all times, they must strive to put aside their own moral and policy views about what the law should be, because they are not the ones charged with resolving moral and policy disagreements in our constitutional systems.

This is a pragmatic as well as a dogmatic position. Judges lack not only the legitimacy but also the ability to make moral and policy choices. Living constitutionalism, for example, asks judges to interpret the Constitution to take account of the moral views or practical needs of a particular political community at a particular point in time. This is impossible, even putting to one side the difficulties in defining the relevant community (especially in a federation such as Canada!), and even if members of political communities did not, in fact, sharply disagree with one another. Even politicians, with their access to pollsters, constant communication with their constituents, and the incentives provided by regular elections are not especially good at assessing the voters’ values and needs. Judges could not succeed at this, and should not try.

More importantly, though, living constitutionalism asks judges to change or override the meaning of the law as written in the name of extraneous moral principles or policy preferences, which it purports to locate in the political community. Pragmatism in statutory interpretation does much the same thing. This approach is problematic enough when it comes to ordinary legislation, because it arrogates the process of amendment to judges. It is doubly troubling in the constitutional realm: not only does it arrogate the process of amendment to judges, but it undermines the purpose of Constitutions—to place certain structural choices about institutions, as well as certain individual rights and freedoms, beyond the reach of the ebb and flow of divided public opinion, leaving their amendment to more consensual procedures.

Unfortunately, this problem is not confined to one side of the political spectrum. A new illiberal strain of legal thought has risen on the right. Driven by Adrian Vermeule’s theory of “common good constitutionalism”, the idea is that conservatives should adopt a style of constitutional interpretation that would “involve officials reading vague clauses in an openly morally infused way … to reach determinations consistent with the common good.” The moral principles that would guide this endeavour are those drawn, above all, from the Catholic natural law tradition; the definition of the common good to which judges would advert is thus one which is, to put it mildly, not universally shared in pluralistic societies.

This attempt by those on the right to reverse-engineer such an interpretive theory should be rejected just as firmly as living constitutionalism, which it mimics. For Professor Vermeule, for example, the very fact that progressives have used constitutional law itself to achieve their aims justifies a conservative attempt, not to put an end to such tactics, but to resort to them, albeit in the service of a different set of values. Like the progressives, he and his disciples look to extraneous moral and policy commitments as guides for legal interpretation, disregarding the law’s role as the authoritative record of the settlement of disagreement and point of reference for citizens whose views of what is good and just differ, seeking to impose pre-ordained results regardless of whether they are consistent with what the law actually is. It too regards separation of powers as passé, a relic of the Enlightenment’s mistakes and an obstacle in the path of those who know better than voters, constitutional framers, and legislators.

Indeed, not only the substance but the language and specific proposals of the two anti-liberal camps resemble one another. In a striking parallel with Justice Abella’s embrace of the courts as the “final adjudicator of which contested values in a society should triumph”, the reactionaries want judges to exhibit “a candid willingness to ‘legislate morality’ because one of if its core premises is that ‘promotion of morality is a core and legitimate function of authority’ given its link to securing the common good.” And, just as Justice Abella wants to upturn settled jurisprudence (except, of course, when she doesn’t) and “give benediction” to new constitutional doctrines, common good constitutionalism is skeptical about aspects of constitutional law that have been taken as a given for generations, including fundamental freedoms and structural limits on the accumulation of power within a single institution. Perhaps especially salient is the embrace by both the progressives and the reactionaries of the administrative state, and the corresponding rejection of the separation of powers. In other words, for both camps, established limits on actors in the system are of no moment if they stand in the way of certain political goals.

Now, to be charitable, it is possible that the illiberal thinkers are simply seeking to discover whether certain values are embedded in particular texts. Maybe it is true, for example, that the “peace, order, and good government” power reflects certain values that coincide with the political preferences of those on the right, or for that matter on the left. But this cannot be stipulated: those making such claims must demonstrate that general constitutional language―cabined and explained as it is by enumerated and limited grants of power―really carries the meaning they ascribe to it. Such demonstrations tend to be lacking, and the claims are often implausible. The “peace, order, and good government” language, for example, is only relevant when it comes to the federal heads of power; is it possible that the federal, but not the provincial, powers in the Canadian constitution reflect a “common good” view of government? Such questions abound, and in truth we suspect that the project pursued by the majority of those for whom concepts such as the “common good” or the “living tree” must guide legal interpretation has little to do with objective analysis and discovery.

Before concluding, a few words are in order about what we do not argue here. First, we do not claim that law and politics, or law and morality, are entirely separate realms. Obviously, law is shaped by politics: the making of constitutions and of legislation is a political process. It involves heated debate about moral and policy considerations, with which―one hopes―constitutional framers and legislatures wrestle. The outcome of these political processes is then subject to political critique, which again will feature arguments sourced in morality and policy. In a democracy, the legal settlements are only ever provisional, although some require greater degrees of consensus than others to displace.

And even at the stage of interpretation, it would be impossible to say that judges are merely robots mechanically following prescribed algorithms. Judges are influenced by their own experiences, which is perhaps to some extent for the better; they aren’t always able to shed their pre-dispositions, though this is surely generally to the worse. Indeed, it is important to recall that constitution-makers and legislators often invite judges to engage in moral and practical reasoning by appealing to concepts such as reasonableness in the provisions they enact. This is not always an appropriate legislative choice, but it is not the judges who are to blame for it.

That said, when it comes to interpretation, there should be a separation between law and politics. That is, interpretation must be guided by rules and doctrines that help judges to avoid, as much as humanly possible, making decisions on their own say-so, arrogating to themselves the roles of legislators to decide what laws should be under the pretense of declaring what they mean. This is admittedly a matter of degree. No one should insist that judges unduly fetter the natural import of words they are asked to interpret by insisting on so-called “strict constructions,” or read appeals to their own moral and practical reasoning as having been fully determined by the law-maker. Nonetheless, the judicial task should not be unbounded, with no restriction on the sorts of moral considerations judges are equipped to take into account.

In sum, we propose not to purge the law of moral and policy considerations, but to re-commit to the view that considerations embedded in legal texts adopted by democratic institutions after proper debate and subject to revision by the same institutions are the ones that ought to matter in legal interpretation. They, that is, rather than the real or hypothetical values and needs of contemporary society, let alone the conjectures of 16^th century scholars from the University of Salamanca.

This upholds the authority of democratic institutions while calling on the courts to do what they ought to be able to do well: apply legal skills to reading and understanding legal texts. No less importantly, this allows the law itself to perform its unique and precious function, that of providing a touchstone for the diverse members of pluralistic communities, who disagree with one another’s moral and political views, yet still need a framework within which disagreements can be managed and, more importantly, they can simply get on with their lives. The illiberal attempts to subvert the law’s ability to do so, in the pursuit of victories which would come at the expense of citizens’ personal and political freedom, are a cause for concern, and for resistance.

Putting Stare Decisis Together Again

Originalists and living constitutionalists alike have good Rule of Law reasons for being wary of appeals to reinvigorate stare decisis

It is hardly news for those who follow Canadian public law that the Supreme Court tends to have little regard for precedent. Indeed, to the surprise of most people and the chagrin of many, it even freed lower courts to disregard its own precedents, in some circumstances, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. For many people, this lack of regard for stare decisis is part of a broader pattern of erosion of the Rule of Law. Dwight Newman and, separately, Brian Bird and Michael Bookman, made this argument in their respective contributions to the collection of essays/special issue of the Supreme Court Law Review on threats to the Rule of Law in Canada edited by Maxime St-Hilaire and Joana Baron in 2019.

The relationship between stare decisis, the Rule of Law, and the desire to do justice in particular cases and to improve the law going forward is not only a source of difficulties in Canada, however. So tomorrow (December 15) at 2PM Eastern, a panel of the Global Summit, an online conference organized by Richard Albert, will try to shed some light on it with participants from the United States (Jeffrey Pojanowski and Marc DeGirolami), and Australia (Lisa Burton Crawford), as well as yours truly. Our chair will be an Italian colleague, Andrea Pin. This should be a lot of fun, and the other participants are all first-magnitude stars. (In case you’re wondering how they let me in ― well, I helped Prof. Pin put it together, so they couldn’t conveniently boot me out!)

The proceedings will, naturally for these plague times, be on Zoom. You can register here ― it’s free! My understanding is that they will be recorded and will, eventually be made available to all. These things tend to take some time though, and are bound to with an event as big as the Global Summit, so I encourage you to watch tomorrow if you can. And, to convince you to give it a go, here is a flavour of own presentation.

Critics of the lack of respect for precedent in Canadian public law tend to argue that enough is enough, and the Supreme Court should go back to a much more robust ― and consistent ― application of stare decisis. My argument is that this is too simple, too idealistic a response. In a perfect world where judges had generally been committed to the Rule of Law, unwavering respect for precedent may well be what an ongoing commitment to the Rule of Law requires. But the world of Canadian public law is far from being perfect in this way. Much of this law suffers from deep Rule of Law problems, some of which I described in my own contribution to the St-Hilaire & Baron volume. As a result, while I share the desire to put stare decisis together again, I argue that this operation will be a delicate one, and must be careful and somewhat selective.

One issue which I’ll address here ― there will be more in my talk (assuming I don’t run out of time, that is!) ― is the concern that respect for precedent may force courts to apply something other than the correct legal rule, be it constitutional, statutory or, arguably, even a common law principle. Lord Sankey, perhaps the chief ― if also most misunderstood ― authority on constitutional interpretation in Canada describes the issue eloquently in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58. Pointing out that “[u]nder our system, decided cases effectively construe the words” of enactments, including constitutional enactments, Lord Sankey highlights

a danger that in the course of this process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of the range black. (DLR 64)

Lord Sankey’s concerns in the Aeronautics Reference are those of an originalist avant la lettre: “[t]he process of interpretation as the years go on”, he warned,

ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction … should impose a new and different contract upon the federating bodies.

Some prominent academic originalist voices have echoed this belief, notably Gary Lawson, Randy Barnett, and Amy Coney Barrett (back when she was still in academia). However, they are not alone in worrying about precedent standing in the way of an accurate application of the law. Debra Parkes raises the same concern from a Canadian living constitutionalist perspective: “[t]he entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are inconsistent with the evolving interpretation of various Charter rights”. (137) Similarly, the late Joseph Arvay and his co-authors have argued that “it is the role and duty of the [Supreme] Court to provide what it believes to be a correct interpretation of the Charter, even if that involves admitting long-standing and oft-repeated past judicial error”. (69)

Of course, originalists or those who are chiefly concerned with the stability of the law may view the living constitutionalist position as simply empowering judges to legislate their particular preferences from the bench. And, admittedly, some living constitutionalists seem to seek a sort of permanent revolution in constitutional law. Mr Avray and his co-authors wrote that “an examination of the role of stare decisis in Charter litigation reveals some transformative Charter moments lost”, (62; emphasis in the original) suggesting that they might be expecting the courts to change society rather than be its reflection, as living constitutionalism seems to suggest. I personally think that this tension between applying the law, even an ever-evolving law, and transforming it is fatal to living constitutionalism’s claim to be a sustainable approach to constitutional interpretation. But let me put that aside for the purposes of this post (and of my talk tomorrow).

Here, I will take living constitutionalism at its word, as an approach to constitutional interpretation that holds that the law is shaped by the needs and values of society as they stand from time to time. On this view, updating legal doctrine to align it with these needs and values as they happen to stand now is not exercise of will, but simply what the Rule of Law requires. Living constitutionalists saying “this precedent no longer reflects the values of Canadian society and must therefore be discarded” are no different, in their relationship to the Rule of Law, from originalists saying “this precedent is inconsistent with the original public meaning of the constitutional text, and must therefore be discarded”.

Call this, if you will, the horseshoe theory of constitutional stare decisis. Radical originalists and radical living constitutionalists agree, at least at the level of broad principle. In practice, there may still be substantial disagreement between those originalists who, like Prof. Barnett, distinguish constitutional interpretation and construction, and see a role for stare decisis in the latter, and living constitutionalists (and those originalists) for whom all constitutional questions are essentially similar in being determined by the constitution itself. But, that important detail aside, both sides of the horseshoe agree that the constitution’s meaning cannot be superseded by judicial interpretation, and remains directly binding on courts, regardless of what their predecessors may have said about it.

From my own originalist perch, I agree with this view. The Rule of Law concerns about the stability of legal doctrine are serious, of course. But the concern on the other side of the scale is no less based on the Rule of Law. The issue is with what Lon Fuller called “congruence” between the law on the books and the law as it is actually applied. (I wrote about this here.) Law cannot guide behaviour ― and thus play its moral role in providing a secure environment for citizens and establishing a mutually respectful relationship between the citizens and the state ― if it is not applied in accordance with its terms. Officials, including judges, who do not apply the law as it stands are engaged in nothing less than “lawless application of the law”. In my view, lawlessness cannot become the foundation of a Rule-of-Law compliant law; it must be expunged for our legal system to have a claim to the kind of authority that Fuller envisions.

As mentioned, this is only a preview. In my talk ― and, hopefully, in a paper that will come out of it ― I will try to address a couple of other reasons why I think it is a mistake to simply insist that the Supreme Court go back to upholding precedents. The problems with the Rule of Law in Canadian public law run much deeper than a lack of regard for stare decisis, and addressing this issue in isolation will not really resolve them. I hope that you can “come” to the talk, and that we can continue this discussion there!

A Citizen’s Guide to the Rule of Law

Introducing a chapter on the nature and importance of the Rule of Law

Last year, Peter Biro of Section1 asked me to contribute a chapter on the Rule of Law for the book he was putting together. The book, Constitutional Democracy under Stress: A Time for Heroic Citizenship, is going to be available in the second week of August, but, with Mr. Biro’s kind permission, you can read my contribution, “A Citizen’s Guide to the Rule of Law“, now ― and for free. It’s meant to be a relatively concise and accessible introduction to the concept of the Rule of Law and to the main strands of scholarship about it, as well as an examination of whether Canadian law actually lives up to the Rule of Law’s requirements. Here is an abstract:

This chapter sets out, for both a generalist and a legally trained readership, the basic contours of the Rule of Law as a legal and political ideal, with a special focus on the ways in which ideal is understood and implemented in the Canadian legal system. It begins by explaining why law is necessary, and why it must bind both government and individuals. A review of three key themes around which the understanding of the Rule of Law is often organized in scholarship follows. The first of these themes is the form that the law, especially legislation, takes. The second is the process by which law is made and enforced by legislatures, the courts, and the administrative state. The third is the possibility that the Rule of Law may impose constraints on the substance of the laws, especially in order to protect fundamental individual rights. The chapter concludes by arguing that adherence to the Rule of Law is the only way in which the exercise of power can be contained and the arbitrariness inherent in it in the absence of law can be counteracted.

The reason for writing this chapter (other than that Mr. Biro asked me to do it) is that too many people ― up to and including at least a couple of Supreme Court judges ― don’t seem to understand what the Rule of Law is and why it matters. I write in the introduction, the Rule of Law is paired with “the supremacy of God” in the preamble to the Canadian Charter of Rights and Freedoms and

there is indeed something theological about the reverence with which some lawyers speak of the Rule of Law, and … it too is an elusive and mysterious idea—and one, moreover, that induces as much impatience in those not converted to it as any religious dogma. (104)

The reason for this impatience is that, however dimly they understand it, the Rule of Law’s detractors ― from absolutist kings to populist politicians to the judges who would abet the ones or the others ― realize that it is a break on the exercise of political power. As I explain in the conclusion of the chapter,

It is precisely the constraint that law represents that so infuriated James I … and that infuriates his spiritual descendants, as impatient as he of limits on their ability to do what they are convinced is right and necessary or just. Be they administrators on a mission to rationalize and organize society, do-gooders on a quest for equality, or patriots in pursuit of national greatness, they resent their inability to act without prior authorization; they chafe at the need to give those unwilling to be organized or equalized opportunities to challenge their commands; they would disregard ancient rights in the pursuit of the greater good. They wish they could do what they believe is necessary, right, and just. (120)

Yet power, as I have explained here, here, here, here, and here, corrupts. It must be kept in check. The Rule of Law is necessary for us to be able to do so. It is, in a real sense, a victim of its own success: people in Western democracies have forgotten what life without the Rule of Law is like, so they speculate about its being dispensable. But no one among those engaged in such speculation would want to live without the Rule of Law. If it sometimes gets in the way of their, and our, good intentions, this is a price well worth paying. I hope you read my chapter to understand, or better yet to simply remind yourselves, why this is.

Through Which Glass, Darkly?

Introducing a new article on the Rule of Law in two decisions of the supreme courts of Canada and the United Kingdom

I followed the challenge to the “hearing fees” that British Columbia imposed on litigants who wanted to have their day in court ― or at least their days, since an initial period was free of charge ― from its beginning as Vilardell v Dunham, 2012 BCSC 748 and to its resolution by the Supreme Court of Canada as Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, writing almost a dozen posts in the process. And then the Supreme Court of the United Kingdom decided a case that was remarkably similar to Trial Lawyers, R (Unison) v Lord Chancellor, [2017] UKSC 51, [2017] 4 All ER 903, which involved a challenge to fees charged for access to employment law tribunals. I blogged about that decision too.

The two supreme courts came to similar conclusions: the fees were invalidated in both cases, out of a concern that they prevented ordinary litigants who could not afford them from accessing the forum where their rights would be ascertained. In Trial Lawyers this was said to be a violation of section 96 of the Constitution Act, 1867; in Unison, of a common law right of access to court. Yet there was a striking contrast between the two decisions, and specifically between the ways in which they treated the Rule of Law. Trial Lawyers discusses this constitutional principle, but as something of an embarrassment, in the face of a scathing dissent by Justice Rothstein, who argues that it should not have discussed the Rule of Law at all. (He still does ― in his keynote address at this year’s Runnymede Conference, for example.) Unison‘s discussion of the Rule of Law, as a foundation of the right of access to court, is much more forthright, and sophisticated too.

This got me thinking. The result is an article that has been accepted for publication in the Common Law World Review, and which I have already posted on SSRN: “Through Which Glass Darkly? Constitutional Principle in Legality and Constitutionality Review“. The main idea is that what explains the difference in the depth and confidence with which the two courts treated the Rule of Law is that constitutional review, despite its power, is bound to be precarious in the absence of an on-point text, while legality review, although seemingly weak in that its outcome can be overturned by statute, actually makes compelling discussion of unwritten principle possible. Here is the abstract:

This article seeks to draw lessons from a comparison between the ways in which the Rule of Law is discussed in cases decided by the supreme courts of Canada and the United Kingdom on the issue of allegedly excessive fees levied on litigants seeking to access adjudication. After reviewing the factually quite similar cases of Trial Lawyers Association of British Columbia v British Columbia (Attorney General) and R (Unison) v Lord-Chancellor and it detailing these decisions’ respective constitutional settings, the article argues that, in contrast to the cursory treatment of the Rule of Law by the Supreme Court of Canada, the UK Supreme Court’s discussion is sophisticated and instructive. This suggests that legality review based on common law rights, which is not focused, and does not try to establish a connection, however tenuous, to an entrench constitutional text, may well allow for a more forthright and enlightening discussion of the principles at stake. Thus it follows that, in constitutional systems that feature strong-form judicial review based on entrenched texts, when regulations and administrative decisions are at issue, legality review should not be neglected. In those systems where strong-form judicial review is not available, legality review should not be regarded as an anomalous ersatz.

While I have argued here that Canadian courts can legitimately base their constitutional decisions on unwritten principles, rather than explicit textual provisions, in some circumstances, I do think that legality review (which, of course, Justice Cromwell favoured in Trial Lawyers) should be considered more often. Our law would be the richer for it.

Against Administrative Supremacy

A response to the “Guest Posts from the West Coast” Series

This post is co-written with Mark Mancini

Over at Administrative Law Matters, Cristie Ford, Mary Liston, and Alexandra Flynn have published a series of posts critiquing the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 for what they regard as its departure from the principles of deference to the administrative state that long characterized Canadian administrative law. As we are going to show, this critique reflects a commitment to what Jeffrey Pojanowski describes as “administrative supremacy”, “an unapologetic embrace of the administrative state”. (861)

Yet in our view this critique rests on a distorted representation of the relevant constitutional principles, such as democracy, separation of powers, and the Rule of Law, and of the stakes involved in judicial review. More robust judicial review of administrative decisions ― if indeed that is what Vavilov will lead to, which is not yet clear ― would not cause a dismantling of the administrative state. It should, however, result in an application of the laws enacted by Parliament and the legislatures more in accordance with their terms, which is what the relevant principles, properly understood, require.

Professors Ford, Liston, and Flynn all see Vavilov as a break with a decades-long history of judicial recognition of and deference to the administrative state. Professor Ford writes that “[o]nce upon a time, in the days before the modern administrative state, there was one standard of review for errors of law: correctness”. These pre-historic days ended, however, with a “[g]rudging acknowledgment of administrative tribunals’ jurisdiction, at least in hard cases” in CUPE v NB Liquor Corporation, [1979] 2 SCR 227. Since then, and until Vavilov, the courts would defer to administrative interpretations of law, unless they were unreasonable, perhaps even patently so.

The embrace of deference reflected a certain view of the law, of the institutions of government, and of their relationship with one another. It rested, in Professor Ford’s words, on a “recognition that the rule of law could be a multifaceted, legitimately contestable thing”, part of “a captivating legal pluralist world”. Courts acted with “humility” in the face of “multiple kinds of expertise” embodied by administrative tribunals, accepting “that expertise could even mean knowing what it was like to be the recipient of social benefits”. They also recognized that “administrative tribunals were more diverse and more representative of the population at large than the judiciary was”. For her part, Professor Liston adds that the turn to deference aimed at

realizing the intertwined principles of democracy, parliamentary sovereignty and the rule of law; affirming the administrative state as a legitimate fourth branch of government; [and] respecting the separation of powers by minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate.

Professors Ford and Liston also both argue that the deferential approach was meant to foster access to justice, but acknowledge that it has ultimately failed to do so. There was too much play in the joints, too many opportunities for argument about the appropriate degree of deference. Judicial review lost its “focus remained on [the] merits” of the cases and became bogged down in “law office metaphysics”, as Professor Liston puts it (citing Justice Binnie).

Vavilov and its companion case Bell Canada v Canada (Attorney General), 2019 SCC 66, however, usher in a radical change. Professor Ford writes that “[t]he velvet glove is off. Vavilov signals a retrenchment by a more assertive, and conservative, Court” (a label that Professor Liston endorses), and that “[w]e are done with letting 1,000 rule of law flowers bloom”. Focusing on Bell (which she describes as “the tell in the shell game that is administrative law”), Professor Liston laments its disregard of administrative expertise, of “the broad grant of discretion” to the CRTC “to make decisions in the public interest that touch on fundamental policy objectives” (reference omitted) and “the democratic and fair process that led to the ultimate decision”, involving protracted consultations and responsive “to the views of ordinary Canadians” who complained to the CRTC about not being able to watch American Super Bowl ads. Instead, Professor Liston sees Bell as having “imported” “political currents from the south”, such as “the libertarian attack on the administrative state”.

As noted above, this view of the administrative state and its relationship with the courts is consistent with Professor Pojanowski’s description of “administrative supremacy”, which

sees the administrative state as a natural, salutary outgrowth of modern governance. In its strongest form, it sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to executive officials, who balance those norms’ worth against other policy goals. (861)

In our view, the administrative supremacist critique of Vavilov and Bell suffers from two fundamental flaws. On the one hand, the principles on which administrative law rests, and which it purports to apply, do not mean what administrative supremacists think or say they do. On the other, a rejection of administrative supremacy does not necessarily lead to the dismantling of the administrative state, supremacists scare-mongering to the contrary notwithstanding.

Start with the principles. The administrative supremacist view is that democracy is at least equally, if not better, embodied in the decisions of administrative tribunals as in legislation enacted by Parliament or legislatures. For one thing, tribunals are acting pursuant to a mandate from the legislatures. For another, the administrative process itself can be characterized as democratic, as the CRTC’s is in Professor Liston’s post.

Yet it simply isn’t the case that a decision actually made by an appointed official, or even a group of officials, is democratic in the same way as a statute debated and enacted by an elected assembly ― even if the assembly itself gave away its decision-making power to the officials in question. To give an extreme example, if Parliament contented itself with simply delegating its full law-making powers to the Prime Minister, we would not, I hope, regard this as a democratic arrangement, even if it may be legal. Somewhat less extreme but more real and just as undemocratic, the recent briefly-mooted plan to delegate plenary taxing power to the federal government was undemocratic too, and would have been undemocratic even if rubber-stamped by a Parliament content to abdicate its responsibility.

And the possibility of public input into an administrative decision offers no more than a partial correction to the problem. This input need not be in any sense representative of “the views of ordinary Canadians”; it is much more likely to be driven by a small group of motivated activists or rent-seeking economic actors, as the “capture” era of American administrative law demonstrates. Besides, even if the CRTC’s decision-making follows a process that could be described, however precariously, as “democratic”, not all administrative decision-makers operate this way. Consider “line decision-makers”, many of whom follow minimal process before reaching their decisions. Vavilov’s reasoning requirements will likely change what these officials do going forward, but the rank administrative discretion they exercise is not in any sense “democratic” on its own; it can only said to be so by virtue of the delegated power that the decision-makers exercise—nothing more or less.

Administrative supremacy similarly distorts the meaning of separation of powers. While Professor Ford, to her credit, associates this principle with the view that “[t]he courts’ role is to police the executive’s exercise of authority”, Professor Liston writes of “the administrative state as a legitimate fourth branch of government” and considers that separation of powers requires “minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate”.

Separation of powers is, to be sure, a slippery and complicated idea, but there is, at its core, the Madisonian view that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”, and further “that each department should have a will of its own”. The administrative “fourth branch” exists precisely to subvert the distinctions between the other three, accumulating in its hands the ability to make policy, execute its decisions, and decide disputes about them. This subversion is compounded by arguments to the effect that the courts can have their core function of saying what the law is taken away from them by legislatures, and that they must defer to legal interpretations propounded by the “fourth branch”, so as to have no will of their own. While Canadian law probably permits the delegation of significant powers to the administrative state, there is a major risk in concentrating these powers. This is why the courts must ensure that administrative decision-makers only exercise those powers actually delegated to them, for the purposes for which they have been granted.

Moreover, the mere fact of delegation does not speak to the intensity of review a court should apply. While the Vavilov Court adopts a presumption of reasonableness based solely on the fact of delegation, this must be considered an organizing default rule that is a product of compromise ― it cannot be defended on the grounds that there is a principled link between delegation and deference. Indeed, the political science literature holds that legislatures may delegate for any number of reasons, none of which have to do with what a court should do on review. Better for a court, in our view, to review the legality of an exercise of administrative power de novo, at least absent some signal from a legislature that it intends deferential review (Vavilov, at [110], outlines some of these signals well).

Last but not least, administrative supremacy embraces a highly misleading view of the Rule of Law. Its proponents suggest that the Rule of Law is possible in ― indeed, that the better understanding of the Rule of Law requires ― a legal environment when legislation has no settled meanings dispassionately elucidated and consistently applied by independent courts. Recycling (and magnifying tenfold) a Maoist metaphor, they would have “1,000 rule of law flowers bloom”, as Professor Ford puts it.

Yet on any serious account of the Rule of Law stable, clear rules, consistently applied so as to create a predictable legal environment, are the heart of this concept. So is the idea that government power is limited by these rules. Judicial control over the meaning of legal rules and over government’s compliance with them is not an ideological caprice, but a necessary corollary of the principle. Only the courts ― not administrative decision-makers subject to control by the executive and invested with an explicit policy-making mission ― are sufficiently independent and can be committed to keeping the government within legal boundaries, as Dicey notes in his Law and Public Opinion. Abstract legal pluralism is, to us, no substitute for the legal certainty which the Rule of Law requires and to the maintenance of which the courts are essential.

And, as far as that point goes, there is another problem with the administrative supremacist argument as it pertains to the Rule of Law. In Professors Liston and Ford’s posts in particular, we see the classic supremacist argument from pluralism and expertise. Encompassed in this ideal is the idea of a “culture of justification” in which expertise could be brought to bear by administrative decision-makers in the reasons justifying administrative action. But there are limits to these principles that Professor Liston does not acknowledge. For one, expertise is not a legal reason for deference. It may be, as Professor Daly notes, an epistemic reason for deference, but what is the legal rationale for a court to abdicate its reviewing function under the Rule of Law in the name of alleged expertise?

Even as an epistemic reason for expertise, the presumption of expertise for all administrative decision-makers, which Professor Liston seems to tacitly endorse, was never justified as a matter of first principle. Indeed, as the Vavilov Court notes, it was impossible to distinguish matters over which administrators were expert from those where they were not. As we know in the prison context, in immigration law, and beyond, decision-makers’ claims to expertise, especially in legal or constitutional interpretation, can be exaggerated or outright unfounded. To give up on the role of the courts in enforcing legal boundaries in the name of unproven assertions of expertise is, in our view, contrary to the Rule of Law.

Our second objection to the administrative supremacist argument can be dealt with more briefly. An administrative law that rejects administrative supremacy and gives effect to the principle of the Rule of Law, properly understood, does not entail the demolition of the administrative state. (For one of us, this is a matter of considerable regret, but it is true all the same.) The administrative state exists in the United Kingdom and in New Zealand, where courts insist on their role of policing the boundaries of its authority, largely without deferring to its legal interpretations. The approach there is summarized in Lord Diplock’s words in the GCHQ case, Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374:

the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

This approach would not prevent the delegation by Parliament or the legislatures of discretionary or adjudicative authority to administrative agencies and tribunals. It would mean, however, that these agencies and tribunals must give effect to the laws that give them their powers and to the general law of the land, rather than to their preferred policies and predilections.

To take up Professor Liston’s example, the CRTC’s view that it would be a good idea to impose some requirement on those subject to its licensing authority does not exhaust the question of its authority to impose this requirement. The question is whether the CRTC actually has this authority, because Parliament has granted it. The administrative state can exist if Parliament or a legislature has willed it into existence. But democracy and separation of powers, no less than the Rule of Law, should lead to the conclusion that the administrative state, and its powers, exist only to the extent that they have been willed into existence, and that their bootstrapping claims deserve scrutiny by the judiciary.

In part, disagreement about deference comes down to how one ought to conceptualize the administrative state. For Professors Liston and Ford in particular, the administrative supremacist view leads to the conclusion that administrative power is to be encouraged; that administrators all have something valuable to say about the law; that a Dyzenhausian view of “deference as respect” best encapsulates the role of courts vis-à-vis administrative actors. We view this as a decidedly Panglossian view of the administrative state. A basic deceit at the core of Canadian administrative law is the tendency for observers to concentrate on the tribunals that best demonstrate, to these observers anyway, the virtue of the administrative state: labour boards and the CRTC, for example. The harder question is what to think of administrative actors that do not fit this mould.

In this respect, Professor Liston and Ford put forward an old view of administrative law that dates back at least to the 1930s and the New Deal ― which is not a good time from which to borrow ideas. A 21^st century version of administrative law must contend with the growth of the administrative state into the licensing state, the exclusionary state, and the carceral state; incarnations of the state that, due to a lack of expertise or otherwise, may not be owed respect under the benevolent standards of review Professor Liston wants. Adopting general language of “pluralism” and “expertise” masks the real work: how to legitimize administrative power that is not characterized by the functional reasons for deference, as in Vavilov itself.

Again, this is not an ideological quirk. With respect, we find puzzling the claims that Vavilov is the work of a “conservative” court influenced by “libertarian” “political currents”. Six of the seven members of the Vavilov majority signed the “by the Court” judgment in R v Comeau, 2018 SCC 15, [2018] 1 SCR 342; three were also in the five-judge majority in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293. However one might describe these judgments, conservative, let alone libertarian, they were not. People of all persuasions should be concerned about the scope of administrative power, no less than that of legislatures or, say, police forces. And if sometimes this rebounds to the benefit of those actuated by the profit motive, we do not think this is as sinister a possibility as Professor Liston seems to find it.

All in all, we differ from the defenders of administrative supremacy in one fundamental respect. The principles at play—democracy, separation of powers, and the Rule of Law—are not licenses to justify administrative power. Instead, they are properly viewed as constraints on that power. Vavilov was right to reject justifications other than legislative delegation for administrative power, and to insist on meaningful scrutiny of the compliance of the exercise of this power with its legislative warrant. For better or for worse, this will not undermine the administrative state, but the reminder that administrative power is something to be constrained using ordinary legal tools, not unleashed in service of the bureaucratically determined common good, is a salutary one.