Dealing with Delegation

Thoughts on a proposal for a judicial crackdown on the delegation of law-making powers to the executive

The explosive growth of legislation made by various government departments, boards, and other entities ― rather than enacted by Parliament, as legislation ought to be on the orthodox understanding of separation of powers ― is quite likely the most understudied aspect of contemporary constitutions, in Canada and elsewhere. In “Reassessing the Constitutional Foundation of Delegated Legislation in Canada“, an article that will be published in the Dalhousie Law Journal and is now available on SSRN, Lorne Neudorf sets out to shed light on and proposes means of reining in delegated legislation ― that is, rules made by the executive branch of government pursuant to a legislative authorization, often a very vague one. It is a worthwhile endeavour from which we have much to learn, even though Professor Neudorf’s arguments, and some of his recommendations, strike me as just as problematic, in their own way, as the phenomenon he criticizes.

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This phenomenon’s importance is out of all proportion to the attention it receives. Professor Neudorf notes that “[b]y volume, delegated legislation is made at a rate of nearly 5-to-1 as compared to primary legislation”. (3) Yet the text of the constitution seems to say nothing at all about the executive being able to make law. On the contrary, the Constitution Act, 1867, endows Parliament and provincial legislatures with “exclusive” law-making powers. Still, the courts have recognized that the legislative bodies are able to mandate the executive to make rules having the force of law, and indeed even rules that override the provisions of laws enacted by legislatures. This, Professor Neudorf argues, is a mistake that needs to be reversed.

Professor Neudorf traces the mistake to a misguided introduction into Canadian constitutional law of orthodox, Diceyan, notions of Parliamentary sovereignty. The notion that “Parliament can make or unmake any law whatever” has always been out of place in a federation, where the Dominion Parliament and provincial legislatures were always subject to limits on their powers. In any event, the enactment of “[t]he Charter” in 1982 “cemented the location of Canadian sovereignty in the Constitution as opposed
to a single lawmaking institution”. (9) Judicial decisions emphasizing the plenitude of legislative powers (subject to the constraints imposed by the Constitution Act, 1867)

should be understood as less about transplanting a robust vision of parliamentary sovereignty into Canada and more about the courts prodding along and encouraging the development of new country with a distinct identity. (9)

Yet the leading precedents on the scope of Canadian legislatures’ ability to delegate its legislative powers to the executive, notably In Re Gray, (1918) 57 SCR 150, recognize no obvious limits on delegation. In Gray, Chief Justice Fitzpatrick held that, since no limitation on delegation was expressed in the Constitution Act, 1867, “within reasonable limits at any rate [Parliament] can delegate its powers to the executive government” (157) ― provided that it be able to terminate and resume the powers it temporarily cedes. Professor Neudorf argues that sweeping delegation of the kind at issue in Gray “might not be viewed as reasonable outside the context of an exceptional national security threat”, (16) but the subsequent cases did not elaborate on the constraints that this reasonableness requirement might impose.

Professor Neudorf insists that Gray rests on a “narrow and technical interpretation of the
Constitution”, an “outmoded interpretive approach”, (18) long superseded by “living tree” constitutional interpretation. Applying this approach, the courts ought to

engage with how the Constitution sees Parliament: as a key part of the basic constitutional architecture: possessing democratic, representative and accountable qualities, and the key player in bringing together different constituencies to formulate national policy and resolve pressing questions facing the country as a whole. (23)

Delegation imperils Parliament’s position, envisioned by John A. Macdonald, as the constitutional cornerstone. It hands law-making over to persons and bodies that are not representative and often operate behind the thick veil of cabinet secrecy. Delegation also undermines the Rule of Law (which provides additional reasons to favour transparent lawmaking) and the separation of powers.

Therefore, Professor Neudorf proposes a number of ways of curtailing the use of delegation. To begin with,

courts should adopt a stricter interpretation of statutory provisions that delegate lawmaking power and strengthen the rigour of the vires review of regulations to overcome the current weaknesses that allow for the delegation of broad powers
through generic words and exceptionally wide latitude for the exercise of delegated power. (30)

If Parliament wants to delegate broad legislative powers, courts ought to make it say so very clearly ― especially if these powers are meant to be exercised retroactively, punitively, or in a manner that is at odds with the Charter. Courts should also drop their deference to the executive’s interpretation of its authority to enact delegated legislation. Nothing less than constitutional principle compels this change of approach, which “will better safeguard Parliament’s constitutional role and give effect to the principle of legality and the rule of law”. (32) But sometimes, the courts should go further still:

when generic words are used in enabling legislation, which are incapable of intelligent qualification by the text, context or purpose of the statute, the court should hold the grant of authority invalid on the basis that it is impermissibly vague. (33)

Indeed, the grant of authority ought to be “narrower than the general purposes of the legislation, with some specificity for the kinds of regulations contemplated”. (33)

Professor Neudorf’s other set of proposals concerns the process by which regulations are reviewed in Parliament. He calls on Parliament to take its inspiration from the review systems that exist in the United Kingdom (which Professor Neudorf describes in some detail), and look into both the delegation provisions of bills as they are enacted, and the already existing regulations that may be flawed or ineffective. But here too, Professor Neudorf envisions a role for the judiciary:

If needed, a court may issue a declaration of the constitutional obligation as the impetus for Parliament to take the necessary action. In an extreme case where the scrutiny system is totally ineffective, the court may seek to enforce this constitutional obligation by holding inadequately scrutinized regulations as legally ineffective. (40)

Professor Neudorf concludes that, while the delegation of some legislative powers is desirable and necessary, and particular bodies (such as the legislatures of territories) can be quite different from the ordinary executive delegates, reform ― and judicial intervention to implement it ― is constitutionally justified and necessary.

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I have mixed feelings about Professor Neudorf’s article. It addresses a real problem that deserves much more attention than it usually receives. I agree to a large extent both with the values underlying Professor Neudorf argument (notably, the empowerment of legislative institutions and the limitation of the power of the unaccountable executive) and with his specific proposals, as I shall explain. But, as noted at the outset, I think that the way in which Professor Neudorf makes his case, and indeed some aspects of his proposals, which follow from his approach to constitutional law, are deeply problematic.

Let me begin with the bad, to finish on a more positive note. Professor Neudorf’s general approach is an excellent illustration of what I recently described as “constitutionalism from the cave“:

On this view, the Canadian constitution … is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts; it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution.

Professor Neudorf refuses to attach any real consequence to the constitutional text’s apparent silence on the question of delegation; on the contrary, he chides the Gray court for having done so, declaring this an “outmoded” way of doing constitutional law. Professor Neudorf argues that, regardless of what the text says or doesn’t say, the courts should implement the ideal conception of Parliament and of its place in a democratically accountable system of government. As I explained, this amounts to a license for the courts to re-write the constitution, in defiance of its own provisions, which quite clearly do not contemplate its amendment by the judiciary.

The fact that I am sympathetic to the policy objectives that this re-writing would be designed to achieve is irrelevant; it’s illegitimate all the same. Professor Neudorf’s appeal to the so-called “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), to prove otherwise ― to show that good courts re-write constitutions to suit their policy preferences ― fails resoundingly. He faults the Supreme Court in that case for having been “disinterested [sic] in the question of the desirability of women Senators” (18) and believing that “giving meaning to the Constitution was a simple and neutral exercise in statutory interpretation”. (19) Yet Lord Sankey, whose opinion for the Judicial Committee of the Privy Council Professor Neudorf extols, similarly insisted the case did not involve “any question as to the rights of women”. (DLR 107) Lord Sankey’s opinion, as, for example, I have argued here, is a master class in statutory interpretation techniques ― not a policy judgment about the desirability of women Senators. And Professor Neudorf’s invocation of the wishes of John A. Macdonald ― odd in an article otherwise extolling living constitutionalism, but of a piece with the strategic (mis)use of original intent originalism by Canadian legal academics that co-blogger Mark Mancini described here ― is no more convincing. Macdonald was interested in the federal division of powers, not the question of delegation.

In short, I don’t think that Professor Neudorf succeeds in justifying the role he sees for the judiciary in implementing his more far-reaching proposals. A more robust judicial review of the vires of delegated legislation, including by the application of the principle of legality (which prevents the executive from trespassing on constitutional and common law rights with clear authorization by the legislature) only requires the courts to abandon their absurdly deferential, pro-regulatory posture. But it is much more difficult to make the case for the courts’ power to nullify vague delegations. (I don’t know whether this is impossible, but that’s a discussion for another time.) Professor Neudorf appeals to the doctrine developed under the Charter for determining whether a limitation of a constitutional right is “prescribed by law”. This is not satisfactory, because the courts have tended to treat even vague laws as sufficiently clear, and even more so because the Charter‘s requirements simply do not apply unless one of the rights it protects is at stake. And as for the idea that courts can order Parliament how to structure its review of regulations ― suffice it to say that it creates much greater separation of powers problems than it is likely to solve, and undermines the very autonomy and authority of Parliament as a democratic decision-making body that Professor Neudorf seeks to restore.

Behind the embrace of constitutionalism from the cave is a belief, which I think is not only misguided but also counterproductive, that supreme constitutional law must have an answer to any and all constitutional concerns. Professor Neudorf is quite right to characterize the rise of delegated legislation as a constitutional issue. But it simply does not follow that it is an issue that the courts must be able to fully address. As the experience of polities such as the United Kingdom (which Professor Neudorf cites as a model!) and New Zealand reminds us, it is possible to think intelligently about the constitution that is not supreme law at all. Indeed, these polities often pay much closer attention to the governance aspects of their constitutions than does Canada. Instead of calling on the courts to twist and stretch our supreme constitutional law, undermining their own commitment to the Rule of Law and indeed their credibility as impartial constitutional arbiters in the process, we should emulate these polities’ commitment to getting the constitution right as a matter of ordinary law and political process.

Professor Neudorf’s recommendations will, mostly, be very helpful in this regard. Greater judicial vigilance in reviewing the legality of the executive’s exercise of its delegated legislative powers is essential ― and it need not rest on dubious appeals to living tree interpretation. The principle of the Rule of Law, as developed by Canadian courts at least as far back as in Roncarelli v Duplessis, [1959] SCR 121, means that the executive’s authority, even if delegated by the legislature in ostensibly, indeed ostentatiously, broad terms, cannot be unlimited, and that the courts are not only authorized, but required to ensure that the executive doesn’t overstep the bounds of this delegation. Professor Neudorf is right to be concerned that Canadian courts are in serious danger of abdicating this responsibility. Recent decisions which he does not mention, notably West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, provide further demonstration of this point, as I argued here and here. The Supreme Court appears to see no issue what it described in West Fraser as “broad and unrestricted delegation of power”. This needs to change.

Professor Neudorf is also right to call for the development of Parliamentary procedures for the review of regulations. I wonder if the smaller number of parliamentarians in Canada in comparison with the UK might be an obstacle to copying the British system of three Select Committees devoted to the study of subordinate legislation (and the problem would, of course, be even more pressing in much smaller and unicameral provincial legislatures), but even if the UK system cannot be perfectly emulated in Canada, it seems to offer a source of inspiration if not a model for imitation.

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To repeat, it is a mistake to think that judicially enforceable supreme  law must have a solution to every constitutional problem. Yet the problem Professor Neudorf identifies is real. Precisely because supreme law may be unable to help us, it is important to get ordinary law and legislative process right. Judicial review and parliamentary procedure might be less glamorous than what Canadians usually think of as constitutional law. Yet Professor Neudorf’s article should be taken as a reminder that these are properly constitutional preoccupations, and that Canadian constitutional lawyers ought to devote more of their energies to them than to the development of exotic theories about what the ideal Canadian constitution would look like.

Judge Kopf on Mandatory Minimums

At his blog Hercules and the Umpire, Richard G. Kopf, a judge on the U.S. District Court for the District of Nebraska, has a fascinating post on mandatory minimum sentences, which I would urge anyone who has been following the Canadian debate about them to read. (Indeed, this is the rare occasion on which you should read the discussion in the comments.) Judge Kopf is generally critical of mandatory minimums as a policy matter, but his views are nuanced. In particular, they call into question the argument against mandatory minimum sentences being made by the Québec bar in its challenge to the 94 mandatory minimums created by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10, which the Québec Court of Appeal recently refused to dismiss for lack of standing.

Judge Kopf’s post consists of his answers to a series of questions asked by a journalism student, the very first of which is the same as that posed by the Bar’s challenge:

are these laws an encroachment upon the judicial branch and the prerogative of the individual judge by the executive and legislative branches?

Judge Kopf’s answer is that

there is nothing inherently wrong with Congress enacting mandatory minimums. After all, Congress has the power to pick specific and definite sentences for any crime on the books.

At the same time, Judge Kopf points to a serious problem with mandatory minimum sentences: “[i]n order to maintain proportionality between offenders mandatory minimums tend to drive up sentences” imposed on those whose crimes are more serious than the least blameworthy ones that could be punished under the same offence, for which the minimum sentence should in fairness be reserved. In the United States, this happens through the intermediary of the Sentencing Commission which must, as Judge Kopf explains, “implement those minimums and then peg the rest of the sentences [provided by the Sentencing Guidelines, which the Commission develops] around those benchmarks.”

There are no Sentencing Guidelines in Canada, but Canadian courts have recognized this effect of mandatory minimums as well. In the recent decision in R. v. Holt, 2014 BCSC 2170, Justice Warren of the Supreme Court of British Columbia explained that

[s]ome mandatory minimum sentences have been found to create an “inflationary floor” that affects the sentence of not only those who might have received sentences below the mandatory minimum, but also those who would have received higher sentences, on the theory that the overriding sentencing principle of proportionality requires the minimum sentence to be reserved for the so-called “best offender.” [26]

As Justice Warren further explained, if the mandatory minimum for a given offence is in line with the lowest sentences already being handed to those found guilty of it, there will be no inflationary effect. But if it forces courts to increase the sentences at the lower end of the range for the offence, then it will also affect those offenders whose sentence ought to harsher.

All that to say, as the Nova Scotia Court of Appeal, as well yours truly, have already pointed out, that the big problem with mandatory minimums is not their effect on judicial discretion or separation of powers, but their effect on people being sentenced. And that effect, as Judge Kopf observes, can be very unfair. Judge Kopf acknowledges that mandatory minimums can be legislative response to disparities in sentencing for substantially similar crimes between judges and courts. They are, he says, “a way of imposing a minimum level of equality, albeit it at a great cost,” both that of the distortion of the sentences imposed across the board, and that of the injustice of punishments “that may have little or nothing to do with the proper sentence.”

Judge Kopf is no bleeding heart, and no libertarian, in case you’re wondering. Even if you think that Canadian judges and academics who have been denouncing mandatory minimums ― and, in the case of judges, striking them down on a regular basis ― are incorrigibly soft on crime, you should take what he has to say very seriously.

A Standing Invitation

Today the Québec Court of Appeal dismissed the federal government’s appeal from the Superior Court’s decision in Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, which granted the Québec Bar public interest standing to challenge the constitutionality of the mandatory minimum sentences ― all 94 of them ― introduced by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10. The decision came from the bench at the end of this morning’s hearing, with reasons to follow. I was there, however, so I think I’m in a position to explain the (likely) grounds for the Court’s decision right away.

The federal government’s first, and less important, argument was that Justice Roy, who granted the Bar public interest standing, was to wrong to accept that it had a genuine interest in the issue. The government pointed out that the Bar failed to intervene in any of the multiple ongoing challenges to mandatory minimum sentences. It also asserted that ― unlike the NGO that was granted public interest standing in the Supreme Court’s most important recent case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, it wasn’t an “umbrella,” a representative for the people actually affected by the impugned legislation.

The Bar countered that it had a long-standing interest in matters related to the legal and judicial system, and that this challenge was in furtherance of that interest. The Court of Appeal, presumably, agreed.

The government’s main focus was on Justice Roy’s conclusion that the Bar’s challenge was a reasonable and effective way to get the issues it raised before the courts. Having a credible and well-resourced litigant willing to take on a case is not enough. Downtown Eastside, in the government’s view, stood for the proposition that if a litigant with personal standing could reasonably be expected to mount an equally or more effective challenge, public interest standing should (normally) not be granted. Unlike on the facts of Downtown Eastside, such was the case here. The accused who were potentially subject to the mandatory minimum sentences at issue had every incentive in the world to challenge them. Accused persons had challenged other mandatory minimums all the way up to the Supreme Court in the past, and were already challenging those introduced by C-10. Unlike with the prostitution-related provisions at issue in Downtown Eastside, no person was harmed by the the mandatory minimum sentences before they were imposed on them by courts, so there was no urgency to consider their constitutionality at once.

The government argued that the Bar’s challenge was seriously flawed. For one thing, it would have to be argued in a factual vacuum. The Bar proposed to use available judicial decisions as “reasonable hypothetical” examples of concrete situations to which the mandatory minimums might be applied to fill it up, to  but the Supreme Court has cautioned against such practices. And for another, the case was going to turn into an aggregate of 94 individual challenges to the various mandatory minimums created by C-10, and would be unmanageable, and thus not a good use of judicial resources.

The Court, however, was of the view that there was something more to the Bar’s case than an assemblage of challenges to individual mandatory minimums. These were “the trees,” but there was also “the forest” ― the Bar’s claim that Parliament interfered with judicial discretion and even judicial independence. The Bar, the judges suggested, was better placed than any individual litigant to argue this claim. If Parliament were to enact American-style sentencing guidelines, who could challenge them? Surely not an individual accused?

The federal government tried countering that this issue would be just the tip of the iceberg, because “99%” of the time of the court that would consider the case on the merits would be devoted to the challenges to the individual provisions. Switching metaphors, it said that the issue of judicial powers would be “Trojan horse” concealing the “soldiers” of these separate challenges under s. 12 of the Charter. Besides, accused persons could well raise the judicial independence issue, since it is another way, in addition to s. 12, in which the law under which they could be sentenced might be declared unconstitutional. Sure an individual could not fell every “tree,” by attacking provisions under which he is not accused, but he can still burn down the “forest.” If the Bar wants to make this argument, it can always intervene in an existing case. It just hasn’t done so. Increasingly desperate in the face of the bench’s skepticism, the government added that we should not be impressed by the “aura” surrounding the Bar, that we didn’t even know how much the Bar was spending on this challenge, and that many of its members were opposed.

To no avail. The judges obviously thought that the Bar’s argument that the introduction of multiple mandatory minimums amounted to unconstitutional interference with judicial independence or separation of powers was a serious one, and were concerned that it would not be made if the Bar were not allowed to bring it. And the existence of one serious question on which the Bar could have standing was enough to let the whole challenge go ahead. Any issues arising from its scope, the judges suggested, can be addressed through case-management.

The government tried to retreat to a subsidiary position, arguing that even if the Court upheld the decision to grant the Bar standing, it could and should limit standing to the “forest” issue, that of judicial independence. The Bar demurred, saying that this possibility had not been raised at first instance, and the Court, always skeptical, did not take up the suggestion.

Those of you who recall my earlier posts on this case will not be surprised to learn that I think this is a very bad decision. As I wrote here, the Bar’s challenge is a distortion of the nature of judicial review of legislation in the Canadian legal system. During its argument (very brief, at the Court’s request), the Bar insisted that its challenge aimed at the way the mandatory minimums were enacted by C-10 ― all at once and without studies. As a matter of political morality, I fully agree that this way of doing things is a shocking violation of what Jeremy Waldron has called “legislative due process.” But that’s not a legal argument. Legally, I remain persuaded that the argument based on judicial independence is feeble. (I wish the federal government had made that point more forcefully, however.) As I recently noted here, other courts seem committed to the view that Parliament is free to set the ranges within which judges may sentence offenders, subject to s. 12 constraints. In law, as I wrote in discussing the decision at first instance, the Bar’s inclusion of a doomed separation of powers argument allows it to jump through the standing hurdle, and the argument can then be more or less discarded.

A bad precedent, unfortunately, is not so easy to get rid of. I don’t know if the government intends to appeal, but unless it does and the Supreme Court intervenes, the Court of Appeal’s decision will be a standing invitation to any interest group with an ideological agenda to challenge any law it doesn’t like, the courts’ usual admonitions against fact-free constitutional challenges be damned.

Bar This Claim

A couple of recent cases that the Québec Court of Appeal should consider in deciding whether to let the Barreau’s challenge to mandatory minimums go forward.

Last Friday, the Supreme Court heard challenges to mandatory minimum sentences imposed for some gun-related offences as part of the federal government’s “tough on crime” agenda. In R. v. Nur, 2013 ONCA 677, the Court of Appeal for Ontario declared them unconstitutional because, although the sentence was not grossly disproportionate to the accused’s blameworthiness in the circumstances of that case, it could become so in a “reasonable hypothetical” situation, which made it “cruel and unusual punishment” contrary to s. 12 of the Canadian Charter of Rights and Freedoms. The “reasonable hypothetical” framework has long been a staple of s. 12 jurisprudence, going back to the Supreme Court’s decision in R. v. Smith, [1987] 1 S.C.R. 1045. Yet as Justin Ling explains in the CBA National Magazine, during last week’s argument in Nur, “many on the top bench were pondering a departure from the practice.”

And that, I would suggest, should be food for thought for the judges of the Québec Court of Appeal who, on December 4, will hear an appeal from the Superior Court’s decision to allow the Québec Bar to challenge, wholesale, 94 mandatory-minimum provisions recently added to the Criminal CodeBarreau du Québec c. Canada (Procureur général), 2014 QCCS 1863. As I explained in criticizing the Superior Court’s decision, although Justice Roy found that the Barreau’s challenge is a “reasonable and effective” way to make the argument that mandatory minimum sentences unconstitutionally infringe on the judiciary’s discretionary powers, this argument is at best secondary in the Barreau’s application. The main one is of the sort that was made in Nur ― a claim that mandatory minimum sentences infringe s. 12 of the Charter. Needless to say, this argument proceeds in a factual vacuum, since no one actually accused of anything is involved in the case. The Barreau contends that this does not matter since s. 12 arguments can be made on the basis of reasonable hypotheticals anyway. But if the Supreme Court chooses to eliminate, or even merely to limit the use of reasonable hypotheticals in s. 12 analysis, this claim will ring more hollow than ever.

As for the claim that mandatory minimum sentences as such infringe the judiciary’s protected discretion, I remain of the view ― which I explained here ― that it is simply not a serious argument. On this point, the words of Chief Justice MacDonald of the Nova Scotia Court of Appeal in the recent case of R. v. MacDonald, 2014 NSCA 102, which struck down the same mandatory minimum that is at issue in Nur, are apposite. The case, he said (at par. 9), is about

the comparative roles of the judiciary and Parliament. Specifically, in our constitutional democracy, Parliament decides what actions will constitute a criminal offence together with the corresponding range of punishment for each. This may include, in Parliament’s discretion, mandatory minimum sentences for certain offences. In this regard, the will of Parliament shall prevail, unless the sentencing provisions are so severe as to constitute cruel and unusual punishment as prohibited by our Charter of Rights and Freedoms. It then falls to the judiciary, as guardians of the Charter, to prevent such occurrences. (Emphasis mine)

It is Parliament’s role, not the courts’, to define the range ― that is to say the upper as well as the lower limits, if any ― of sentences for the offences which Parliament creates. It should go without saying that a power to create and define offences entails the power to define their relative gravity, and that the imposition of sentencing ranges is the most obvious (and maybe the only?) way to meaningfully do this. The only constraint on Parliament’s discretion in this regard is the Charter. The Barreau’s separation of powers argument is without merit, and the Court of Appeal shouldn’t repeat the Superior Court’s mistake by allowing its application to proceed on this shaky basis.

The Ghost of Patriation

If the ghost of communism is, or ever was, haunting Europe, Canadian constitutional law is haunted by what Fabien Gélinas described as the Ghost of Patriation. This ghost has been seen abroad again this week, stirred by an historian’s claims that, while the Supreme Court was considering questions about the constitutionality of the federal government’s proposed plan to seek Patriation without support from the provinces, the Court’s Chief Justice, Bora Laskin, leaked inside information about the Court’s deliberations to the government. The historian, Frédéric Bastien, apparently claims that this was an egregious violation of the separation of powers and that it made Patriation tantamount to a coup d’État and the resulting constitution illegitimate. Québec’s separatist government has seized on the claims, and even the Supreme Court has launched an internal inquiry, as the Globe reports.

Cooler heads are trying to put the ghost to rest by pointing out that, even if true, Dr. Bastien’s allegations are not enough to make out his claims about a coup d’État and the illegitimacy of the constitution. So Yves Boisvert argues in La Presse that while a breach of the secret of the Supreme Court’s deliberations, had it become known, might have been a cause for the Chief Justice’s resignation, it was not “a ploy that changed the course of history” (my translation). He points out that Justice Laskin found himself dissenting on the crucial question in the Court’s decision, usually referred to as the Patriation Reference, whether constitutional conventions prevented the federal government from acting unilaterally to amend the constitution. Indeed, Mr. Boisvert observes that whatever information Chief Justice Laskin might have given the government may well have been erroneous. Mr. Boisvert’s colleague, André Pratte, makes similar points in his editorial.

Messrs. Boisvert and Pratte are right. The coup d’État theory simply ignores the fact that by stating, in the Patriation Reference, that the federal government’s project was unconstitutional, albeit “only” in a conventional rather than a strictly legal sense, the Supreme Court thwarted unilateral Patriation. The Court’s majority, led by Justice Jean Beetz, held that constitutional conventions required “substantial” provincial support for constitutional amendments, which forced the federal government to negotiate with the provinces. Nine provinces eventually agreed on a (revised) Patriation plan, and the Supreme Court unanimously confirmed, in the “Québec Veto Reference,” that this was enough. The process of Patriation was constitutional in both the legal and the conventional sense.

Indeed, in my view Messrs. Boisvert and Pratte are wrong to concede, as both do, that Chief Justice Laskin’s actions amounted, or at least can be regarded as amounting, to a violation of the separation of powers. Separation of powers is an elusive concept, even by the low standards of constitutional theory, but if it has a core, it is something like the idea that political decisions of different sorts ought to be made by different institutions, whether because dividing political power in this way limits potential for abuse and tyranny, or because different institutions have peculiar strengths and good government requires decisions to be made by that institution which is most apt to handle each specific question. A pithy summary of the idea of separated decision-making is James Madison’s well-known phrase, in The Federalist No. 51, that each branch of government “should have a will of its own.” The actions of Chief Justice Laskin, even if they were as Dr. Bastien alleges, simply did not undermine the separation between the executive and the judiciary so understood. Even if he passed some information about the Supreme Court’s deliberations to the government, he did not involve the executive in the Court’s decision-making. He neither asked the Prime Minister how to rule nor took orders from him, even for himself, let alone his colleagues who disagreed with him. The ruling on the Patriation Reference was always in the Court’s hands, and the Chief Justice’s indiscretions did not change anything to that. Indiscretions, breaches of judicial ethics they were, if the allegations are confirmed. But not every breach of judicial ethics, however regrettable, is a violation of fundamental constitutional principle.

Patriation is bound to remain a murky and controversial episode of our history. As the men involved in it die, the first-hand memory of events fades. Perhaps we will never know the exact truth about what happened. On the other hand, the fading of the first-hand memories of the bitter divisions of those days should be an opportunity to leave behind the passions that reigned then. In order to do that, we would do well to leave the ghost of Patriation alone. He has haunted us enough, and earned his peace.

For Sale! (Or To Give Away)

Last week, the BC Court of Appeal issued a decision upholding the constitutionality of the “hearing fees” imposed by the government on litigants who took their cases to trial in the province’s courts, Vilardell v. Dunham, 2013 BCCA 65. The fees had been struck down last May by the province’s Supreme Court.  “Some things are not for sale,” Justice McEwan had written in Vilardell v. Dunham, 2012 BCSC 748.  (I summarized that decision here, and commented on it here, here, and here.) According to the Court of Appeal, they are, though they must sometimes be given away fee of charge.

As a general proposition, says the Court, there is nothing wrong with hearing fees. The province has always had them, except for a relatively short period around the turn of the 20th century. Indeed, they have a very long history:

Crown hearing fees and an accompanying exemption for those who cannot pay them have been a feature of the English legal system going back to the Statute of Henry VII, 11 Henry VII, c. 12, in 1494 and which we inherited upon becoming a colony in 1858. (Par. 9)

And this history matters, the Court holds, “because it shapes the relationship between the executive and the judicial branches of government” (par. 11). Since this relationship has always taken the shape of a compromise balancing the government’s right to impose hearing fees with the courts’  “power to waive payment in forma pauperis, then the claim for a constitutional right to be free of them falls away” (par. 14).

Furthermore, the Court holds that there is no general, unqualified right of access to justice. Provincial legislatures, which are responsible for the administration of justice, have the power to impose conditions on access to courts. The Court is also unpersuaded by a Nova Scotia case in which that province’s hearing fees scheme was held to be unconstitutional.

The problem, and the only problem, with hearing fees is “their potential to impede persons who cannot afford them. Wealthy individuals and corporations may not like paying the fees but they are unlikely to alter their litigation strategy because of them” (par. 26), but for people who are not well-off, they act as a real barrier to asserting their rights in court. This upsets the compromise struck by the Statute of Henry VII (par. 21), violates the principle of the Rule of Law (par. 33), and infringes the courts’ constitutionally protected “core jurisdiction” (par. 35-36).

Accordingly, the solution the Court of Appeal chooses is not to strike down the hearing fees, as the Supreme Court had done, but to expand the exemption from the duty to pay them, so that it covers not only the “indigent,” as it did until recently, or even those on public assistance or “impoverished,” as it now does, but also those “in need.” Reading in these words, “intended to mean those who could not meet their everyday expenses if they were required to pay the fees” (par. 41), eliminates the constitutional difficulty. And, contrary to what Justice McEwan had suggested about the “indigency” exemption, since the re-crafted and expanded “exemption is focused on affordability rather than socio-economic status” (par. 37), it is not offensive to the dignity of those who have to seek it.

For my part, I think this is a poor decision, mostly because it fails to engage with some of the key problems of the hearing fees, which Justice McEwan raised in his (admittedly very imperfect) reasons. Most importantly, it does not at all address the suggestion, which I think is sound, that there is something profoundly wrong with the idea that civil justice is a service of which the litigants choose to avail themselves and for which they may legitimately be made to pay. People often do not have a choice but to litigate; nor can they always settle a case. It is one thing to punish a party who refuses a favourable offer to settle, as for example Ontario’s Rules of Civil Procedure do. It is quite another to make a party pay for going to trial regardless of the reasonableness of his position.

The judgment also, in my view, misunderstands the relationship between history and constitutional principles. History helps us ascertain the underlying principles of the constitution (and of our law more generally), but it does not define them. Ultimately, the constitutional principles are the values that underpin the law today, not necessarily those that connect it to the times of Henry VII. As the future Justice Holmes famously wrote in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897),

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

The century of civil wars separating Henry IV from Henry VII is no good warrant for this either. The Court does not explain why the compromise that was good in the times of the first Tudor monarch should still have power over us more than five centuries after his death.

Finally, the Court’s arguments both about both the law and the facts are misguided. As for the law, the concept of constitutionally protected core jurisdiction is a shaky foundation on which to rest the requirement for a capacious exemption from hearing fees, because it only applies to superior (“s. 96”) courts, and not to provincial courts. The Court simply misunderstands the concept as protecting judicial power in general rather than the power of superior courts. In any case, it does not make sense to protect the litigants’ choice to go to trial, and their choices as to the trial’s length, as an aspect of the courts’ control over their proceedings. As for the facts, the Court is surely wrong that the hearing fees―which, after all, are concededly designed to discourage trials, especially long trials, will only affect the litigation choices of those “in need.” Not the very rich or the very large corporations perhaps, but by no means only “those who could not meet their everyday expenses if they were required to pay the fees” will do their best to minimize the amount of fees they owe and thus modify their litigation strategy and perhaps refrain from asserting legitimate claims as a result of the government’s financial pressure (which, to repeat, has nothing to do with the potential reasonableness of the legal positions litigants seek to assert). The exemption crafted by the court is thus still badly underinclusive. It is also underinclusive by failing to include corporations.  A corporation, I think, cannot be described as “impoverished or in need,” without doing violence to the English language. But corporations do have the right to sue (that’s a large part of what legal personality means), and yet a small corporation can be deterred from suing, or going to trial, by the prospect of the hearing fees just as easily as an individual.

The Court of Appeal’s decision is not only mistaken, I think, but very poorly justified. It is based on misunderstandings of fact and law, and fails to address the serious issues the case raised. It accepts, unthinkingly, the proposition that justice is for sale, even if it says that it must sometimes be given away for free. I can only hope that there will be an appeal, and that the Supreme Court will take it.

An Ancient Parliamentary Right

I learned something about constitutional and Parliamentary tradition yesterday, and decided I’d post about because I was probably not alone in my ignorance of this quirk. Apologies to those in the know already!

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Each session of the mother of parliaments, at Westminster, and her daughters throughout the Commonwealth, starts with a Speech from the Throne, which sets out the Crown’s – so, by convention, the cabinet’s – agenda for the session. Debate on the government’s agenda as outline in the Speech from the Throne is the first order of legislative business, and the vote on the Address in Reply – the formal response of each House of Parliament to the Speech from the Throne – is a vote of confidence. So far, so familiar.

But, it turns out, not exact. Actually, the first order of business, in the House of Lords and the House of Commons at Westminster, the Senate and the House of Commons of Canada, and the Ontario Legislative Assembly (and perhaps others – I haven’t researched other provinces) is not debating the Speech from the Throne, but the introduction and first reading of a bill that has nothing to do with the Speech from the Throne. In the U.K. House of Commons, it is the Outlawries Bill. In the House of Lords, it’s the Select Vestries Bill. In the Canadian House of Commons, it is Bill C-1, An Act respecting the administration of oaths of office. In the Senate, it is Bill S-1, An Act relating to railways. The British bills seems to have a substantive content relevant to their titles. Canadian ones do not have anything to do with oaths of office, or railways, or anything else. Their only section reads:

1. This bill asserts the right of the House of Commons [or Senate, in S-1] to give precedence to matters not addressed in the Speech from the Throne.

This wording is revealing. It is unusual, indeed strange, for an act of Parliament to “assert,” although this is not altogether unique in Canadian legislation: the National Horse of Canada Act, S.C. 2002 c. 11, “recognize[s] and declare[s].” More importantly, it probably is unique for an Act of Parliament – even for a bill – to refer to itself as a “bill” rather than as an “Act”.

The reason for this unique wording is that these are bills that are not meant to become Acts. The preamble to C-1 explains this tradition:

Whereas the introduction of a pro forma bill in the House of Commons before the consideration of the Speech from the Throne demonstrates the right of the elected representatives of the people to act without the leave of the Crown;

Whereas that custom, which can be traced to 1558 in the Parliament at Westminster, is practised in a number of jurisdictions having a parliamentary form of government;

And whereas it is desirable to explain and record the constitutional relationship represented by that custom …

That of S-1 is similar, though of course it makes no reference to “the elected representatives of the people.” It also does not specify the date on which the custom of the pro forma bills originated.

This is perhaps as well, since there seems to be some confusion on this point. The latest iteration of Ontario’s version of the pro forma bill, more transparently named An Act to Perpetuate an Ancient Parliamentary Right, also refers to 1558. But the earliest version available on the legislative assembly’s website, dating back to 1998, claims that

[t]his practice dates back to the reign of Elizabeth I, when on March 22, 1603, (just two days before her death), Parliament made this assertion of independence from the Crown for the purposes of legislation.

The British bills seem to actually have a traditional substantive wording, related to their titles. But their purpose is exactly the same as that of the Canadian pro forma bills, for which they have served as a model (though as you can see, we have somewhat innovated on it).

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This is all quite amusing, as are many other constitutional traditions originating in Westminster. But it in a way, it is also rather sad. Pro forma bills are bald assertions of power, not intended to lead to its exercise. Having won its independence from, and then control over, a once-powerful Crown, Parliament has become the servile instrument of the Cabinet. The executive is once again in control of the agenda, and whatever Parliament says at the beginning of each of its sessions, it does not give precedence, or indeed almost any consideration, to matters not put before it by the Cabinet. (Indeed, it is the Prime Minister who tables Bill C-1 in the House of Commons.) Legislative supremacy, or even autonomy, is not much more real now than under the Tudors and the Stuarts.