Abellian “Law”

It is with an utter lack of surprise that I yet again fill the virtual pages of Double Aspect with thoughts on another of Justice Abella’s comments on the nature of judging. Both Leonid and I have continuously written about how Justice Abella frequently displays a judicial arrogance  that is inconsistent with the role of a judge in a constitutional democracy, both descriptively and normatively. I hesitate to write yet again on the same subject.

But I am moved to do so by the utter lack of accuracy in Justice Abella’s recent speech at Fordham University, where she described a bastardized version of the Canadian approach to constitutional and statutory interpretation. Here are the comments in a release from Fordham:

“Our judges don’t draw lines over whether to follow a linguistic word approach or an intentionalist approach,” she said. “We just look at how we think this provision should be interpreted in light of all the things you worry about: what did the legislature mean, what do the words say, what was the purpose of the statute, all of that.”

Justice Abella discussed the importance of the Edwards v Canada case, more commonly known as the Persons Case, which concluded that women were eligible to sit in the Senate of Canada. In the 1929 decision, Lord Sankey stated that the British North America Act is “a living tree capable of growth and expansion within its natural limits.” Justice Abella spoke about this idea, the living tree doctrine, as a basic guiding principle.

“[The living tree doctrine] is constitutional but it’s also philosophically foundational,” she said. “It’s how we approach not only the constitution but also our statutes. What is the fair, appropriate, and just meaning of the phrase? We read it in the most reasonable way possible.”

I need not repeat yet again, from the constitutional perspective, why Justice Abella’s comments are wrong as a normative matter respecting the living tree.  I want to concentrate on the seemingly more mundane matter of statutory interpretation, and Justice Abella’s statements that we apply a “living tree” methodology in that context. She is flat-out, embarrassingly wrong as a positive law matter; but as a normative matter, the view is dangerous.

On positive law grounds, it is completely untrue that courts in Canada apply a “living tree” approach to the interpretation of statutes as a matter of course. The Supreme Court has held, time and time again, that statutes should given the meaning they had at the time they were adopted. This was the definitive statement of Dickson J in Perka, at 264-265, citing authorities noting that “The words of a statute must be construed as they would have been the day after the statute was passed…” and “Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held.”  Most recently, as co-blogger Leonid Sirota stated on Twitter, this was the approach adopted by the Supreme Court in R v DLW  where the Court cited Perka, noting that while broad terms might be afforded a more flexible interpretation, the original meaning governed in that case. Justice Abella dissented. So, contrary to her belief,  the general rule is that the original meaning of a statute applies.

This makes sense. No matter what one thinks the strengths of living constitutionalism are in the constitutional context, the argument loses force in the statutory world.  At a formal level, constitutions are restrictions on the legislature, and one could argue that they are developed by the judicial branch through strong-form judicial review, in Canada. But statutes are clearly the product of the legislative branch (or their delegates). Judges have no warrant–at least since 1688–to legislate. At a functional level, it could be true that Constitutions are not easily amended, and so judges should develop their meaning to new facts. But that same argument is so clearly wrong in the statutory context, where statutes are passed and amended by legislatures all the time.

One might try to steel-man Justice Abella’s comments by relying on the comments in R v DLW and other general interpretive principles. It is true that “dynamic interpretation” is indeed a distinct method of interpretation, recognized in Canada: see Ruth Sullivan on the Construction of Statutes at 175 (2014). While it is true that the Court in R v DLW and other cases have noted that statutory terms can take on a “dynamic meaning,” this is far from the ordinary rule, generally only applicable in defined circumstances given defined statutory language: see Sullivan, at 177. And even if it was, the dynamic approach is not inconsistent with original meaning, and it does not support Justice Abella’s broad misunderstanding of textualism. One can speak of two types of original meaning:

  1. Situations in which statutory terms should be statically applied to the same situations that were in their contemplation at the time of enactment.
  2. Situations in which statutory terms are broad and must be applied to new facts as they arise.

 

Both of these situations are consistent with original meaning. In the first case, both meaning and application are largely frozen at the time of enactment. Sullivan says an interpretation of this sort is justified when “…new facts are functionally equivalent or analogous to facts that were within the ambit of the legislation when it first came into force” (Sullivan, at 179), for example. In the latter case, though, the legislature has spoken more broadly, and this is where a “dynamic” approach enters the fray. But this does not mean that the statute receives a new meaning according to some Abellian idea of an unbridled living tree: it just means that its contours are applied to new facts. We constrain the meaning–the scope of application– using text, context, and purpose. I always use the example of the Kyllo decision in the US, in which the Court endorsed the proposition that the 4th Amendment (protecting against searches and seizures) applied to infrared searches of the home. The scope of the 4th Amendment always protected the home, and it applied to the new facts of infrared searches.

The situation, then, is much more subtle and sophisticated than Justice Abella suggests, and the subtletly does not work in her favour.

Undeterred, she goes on to suggest that courts in Canada take an “anything goes” approach to statutory interpretation, seemingly rejecting textualism. This mistake is even more bizarre, considering the very recent decision in Telus v Wellman, which I wrote about here. Justice Abella, in her Fordham talk, suggests that courts do not draw lines between “textualism” and “intentionalism” in Canada. But she herself attempts to do so (wrongly) in her dissent, at para 107 of the decision:

The debate between those who are “textualists” and those who are “intentionalists” was resolved in Canada in 1998 when this Court decided that “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. We do not just look at the words.

Not only that, but the majority in decision in Wellman comes down on the side of text over abstract, judicially defined purposes. Justice Abella was in dissent–she did not win the argument, for very good reasons. So, again, Justice Abella finds herself claiming that the law is something when it is not.

Two normative conclusions can be drawn about Justice Abella’s odd talk at Fordham, one about the merits of what she says the law is and one about the role of a judge in Canada. Take the latter first. It would be one thing if what Justice Abella said was an honest, innocent mistake. But I find it that hard to believe in these circumstances. Wellman just happened, and Justice Abella lost the argument she now claims she won. Why a judge in our democracy would say this—especially to an international audience—is unclear. We should expect better

The merits of the suggestion that courts in Canada apply a living tree approach to statutes are also lacking. First, as Craig Forcese said on Twitter, the suggestion would amount to a complete reversal of the ordinary structure of our Constitution. The judicial function is, to state what I thought was the obvious, completely separate from the legislative. Justice Abella seems to have much in common with the old English judge who told an unfortunate lawyer trying to give his best interpretation of the statute: “Do not gloss the statute, for we know better than you, we made it.” We’ve moved far beyond these days, and it is odd for a “progressive” judge like Justice Abella to suggest we go back in that direction. Parliamentary sovereignty should stand for something.

The suggestion that judges should make up statutory meaning as they go along would have positively corrosive effects in many areas of law. Criminal law is an obvious example, but administrative law is another. Judges, rather than Parliament, would be the master of agencies if they could expand or narrow the scope of delegated power exercised by these agencies depending on the judges’ particular worldview. Not only does this stand inconsistently with the Court’s own professed idea of deference, it is dangerous to subvert Parliament’s laws in service of a judge’s ideology.

And this, I suppose, is the point. While I believe that Justice Abella means well, she reveals an unfortunate arrogance that crops up in speech after speech. For one, she claims the law is her opinion when it is not. Then, she takes on the mantle of judging what a statute should mean, given her own impressions of what it requires. It takes someone with much self-confidence to do this. Whether or not we should have confidence in her is quite another matter altogether. A Supreme Court judgeship is not enough, in a democracy, to give its holder the mantle of deciding what laws should mean or which laws should apply. Someone who believes so is better suited to be a politician than a judge.

 

Is This Correct?

Should deference be denied to administrative interpretations of laws that implement international human rights?

Gerald Heckman and Amar Khoday have recently posted on SSRN a forthcoming article, due to be published in the Dalhousie Law Review, called “Once More Unto The Breach: Confronting The Standard of Review (Again) and the Imperative of Correctness Review When Interpreting the Scope of Refugee Protection”. As the title suggests, Professors Heckman and Khoday advocate that correctness, rather than reasonableness, be standard used to review questions of law relating to the interpretation of the provision of the Immigration and Refugee Protection Act (IRPA) relative to refugees, especially sections 96-98, which implement in Canadian law the requirements of international treaties on the rights of refugees and persons in danger of being subject to torture. Long-time readers of this blog will not be surprised to hear that I welcome this pushback against the dogma of reasonableness review. Despite this, I have serious reservations about the argument made by Professors Heckman and Khoday. If its implications are pursued to their logical conclusion, they may swallow the law of judicial review whole. This may not be a bad result, but I would rather that it were brought about differently.

Professors Heckman and Khoday begin by reviewing the existing cases on the standard of review in the refugee protection context. They find that

the Federal Court and Federal Court of Appeal are now reviewing decisions involving administrative decision-makers’ interpretation of provisions of the IRPA that implement the basic human rights conferred by international conventions on a reasonableness standard because in their view, the presumption of reasonableness review of these decision-makers’ interpretations of their home statute has not been rebutted. (9-10)

They also note, however, that the Supreme Court, when it has ventured into the immigration and refugee law area, has often conducted searching review, albeit sometimes under the label of reasonableness, which in principle calls for judicial deference to administrative decision-makers. The Federal Court of Appeal too has sometimes remarked that, while the reasonableness standard applies, the range of reasonable outcomes in this area may be very limited, so that there is little to choose from between reasonableness and correctness.

Professors Heckman and Khoday disagree. They are concerned that deferential review opens the door to inconsistent decisions behind upheld as reasonable. In their opinion, this is intolerable: “[t]he scope of universal protections” embodied in IRPA’s provisions “cannot depend on whether a refugee claimant has the good fortune of having her claim decided by an adjudicator who happens to subscribe to” a view of those provisions that is favourable to her case instead of a different “yet equally reasonable alternative interpretation”. (22) And while “disguised correctness review” would help avoid this problem, it is not principled or transparent.

Intead, Professors Heckman and Khoday insist that

a non-deferential approach to judicial review is required for questions of law arising from administrative decision-makers’ interpretation of statutory provisions that serve to implement human rights conferred in international conventions that bind Canada (11)

After all, non-deferential correctness review is still supposed to be applied to questions of central importance to the legal system ― and, according to Professors Heckman and Khoday, the interpretation of statutory provisions that give effect to Canada’s commitments under international human rights law belong to this category. This is both because of the importance of the substantive interests at stake for refugee claimants and because, due to their “proclaimed universality”, “basic international human rights” must receive a uniform interpretation. (13) Indeed, “[t]he provisions of an international convention defining the scope of basic human rights protections can only have one true meaning”. (22)

Professors Heckman and Khoday add that there is a multitude of decision-makers who may be involved in deciding questions involving the interpretation of the IRPA‘s refugee-related provisions; that most of them are not legally-trained; and that Parliament itself has recognized, in section 74(d) of the IRPA, the existence of “serious question[s] of general importance” in this area. These reasons too suggest that courts should see to it that the IRPA‘s provisions receive a uniform, and legally correct, interpretation. And, they argue, if the Supreme Court will not do so, then Parliament should intervene and legislate correctness review for questions of law arising out of the application of the IRPA‘s refugee-protection provisions.


One way to read Professors Heckman and Khoday’s article is as a recognition of the dark, repressive side of the administrative state. Contrary to a certain progressive mythology, in whose thrall we still live, as co-blogger Mark Mancini recently observed here, the administrative state doesn’t only consist of benevolent and beneficent technocrats, rainbows, and unicorns. As I wrote in my contribution to last year’s Dunsmuir Decade symposium, we must

recall what is at stake in judicial review of administrative decisions. Proponents of deference often think of it as a means of protecting the decisions of an administrative state devoted to economic regulation in the name of social justice, or at least of enlightened technocracy. But there is much more to the administrative state economic than labour boards or arbitrators, whose decisions supply a disproportionate share of material for the Supreme Court’s administrative law decisions. The law of judicial review of administrative action applies also to the review of correctional authorities, professional licensing bodies, immigration officers, human rights tribunals, even universities and municipalities, and much else besides. People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law. 

I asked, then, whether “[i]s it enough to tell” people whom the state is about to deprive of these important rights or interests, that this deprivation rests on a legal interpretation that is “justified, transparent, and intelligible” ― but doesn’t have to be correct. Professors Heckman and Khoday say that, at least as to refugee claimants, the answer is “no”. I certainly make no objection to that, and I would welcome similar blows being aimed at as many of the other heads of the administrative hydra as possible. If anything, I think it is too bad that Professors Heckman and Khoday don’t say much about this broader context.

Now, of course there is nothing wrong with an article such as theirs concentrating on the inadequacy of deferential review in just one area. But the trouble with the approach taken by Professors Heckman and Khoday is that, although they do not say so, it reaches very far indeed. If the fact that a Canadian law implements some supposedly important right under international law must mean that this law has “one true meaning” that must be ascertained and enforced by the courts, then reasonableness review of administrative decisions is an endangered species, perhaps critically so.

It’s not just the bureaucrats who administer refugee law and the human rights tribunals, which Professors Heckman and Khoday briefly mention, who will lose the benefit of deference. It’s the correctional authorities, since Article 10 of the International Covenant on Civil and Political Rights (ICCPR) provides that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” and, further, that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. It’s labour boards of all sorts, since the right to join labour unions is protected by Article 23 of the Universal Declaration of Human Rights, as well as provisions of both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR); the latter specifically protects the right to strike, too. It’s employment tribunals and arguably various professional licensing bodies, too, since Article 23 also protects “the right to work [and] to free choice of employment”, and the ICESCR includes provisions to the same effect. It’s various social security tribunals, since Article 11 of the ICESCR protects “the right of everyone to an adequate standard of living”. It might be the CRTC, since Article 19 of the ICCPR protects “the right to freedom of expression … includ[ing] freedom to seek, receive and impart information and ideas … through any … media of his choice”. It will even be the Patent and Copyright Offices, since Article 27(2) of the Universal Declaration stipulates that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.

This list is not at all intended as exhaustive ― I’ve put it together after quickly skimming just the three major international human rights documents. There are many others, and they contain rights galore, any number of them reflected, in one way or another, in Canadian law. (I should, perhaps, make it clear that I do not mean to suggest that we should have all the “rights” purportedly recognized in these documents. Some of them, such as the “rights” of organized labour, are pernicious nonsense. But the point is that international law recognizes these things as important rights, and Canada subscribes to this view, however unfortunate this may appear to me personally.)

Of course not all legislation giving effect to these rights draws the connection as explicitly as the IRPA does in the case of its refugee protection provisions. But that shouldn’t matter, I think. Whether Parliament legislates in order to give effect, more or less transparently, to pre-existing international commitments, or the Crown subscribes such commitments on the strength of pre-existing legislation, the issue for Canadian administrative tribunals, and for Canadian courts reviewing these tribunals’ decisions, is how Canadian legislation is to be interpreted (if possible, consistently with Canada’s international obligations). So, to repeat, if follow the approach proposed by Professors Heckman and Khoday, we might have to get rid of deferential judicial review, if not across the board, then at least in many of the cases where it currently applies.

As an outcome, this would not be half bad. My own inclination would be to get rid of deference (almost) everywhere. A recognition that legislation has correct meanings that can and must be established by courts (even though this is, admittedly, not always easy) is most welcome, as I noted here. But if we are to come to this recognition, I would rather that we do in a different way than that suggested by Professors Heckman and Khoday. The existence ― or otherwise ― of legally ascertainable meanings is not, surely, a function of whether a statute reflects or even incorporates an international treaty. If legislative texts can have no meanings, then it’s not clear why treaties would escape this sorry fate; if they can, then treaties are not unique.


Canadian administrative law must change, and change radically, for reasons that have nothing to do with Canada’s commitments under international law ― though it may well be the case that such radical change will make it possible for Canada better to fulfill these commitments. That said, Professors Heckman and Khoday provide a practical illustration of one of the downsides of the status quo. More than this, they help undermine the prevailing assumption of the goodness of the administrative state and the judiciary’s deference to it. For these reasons, theirs is a welcome, if not an entirely compelling, contribution to the standard of review discussion in Canada; it is reasonable, one is tempted to say, if not altogether correct.

The “Return” of “Textualism” at the SCC[?]

Under the so-called “modern approach” to statutory interpretation, courts are instructed to take into account the text, context, and purpose of a statute. But perhaps because the “text, context, and purpose” recital is so commonplace, other difficult interpretive questions are masked under its patina. For example, which takes priority—text or purpose? The Supreme Court has said that clear text is dominant in the interpretive process (see Placer Dome, at para 21; Canada Trustco, at para 10), but at the same time, the Court has often adverted to the role of purpose in interpretation, to the extent that purpose or policy considerations could override clear text (see the opinion of then-Chief Justice McLachlin in West Fraser Mills, at paras 40, 43). And, even if one could work out what the proper relationship is between text and purpose ,there is no guidance from the Court about what purpose, at what level of abstraction, should be relevant in the analysis. I have written about these issues before.

Luckily, the Supreme Court has provided some guidance to answering these questions in Telus Communications v Wellman, 2019 SCC 19. While the approach advanced in the case is not strictly textualist, it does represent the important idea that text dominates in the interpretive process, and that overall policy goals should not be permitted to override that text. While the Supreme Court is a laggard to these important conclusions (see the opinions of Stratas JA in Williams, Cheema, and Hillier), they come better late than never.

Facts

The case involved an important question of statutory interpretation under Ontario’s Arbitration Act and Consumer Protection Act. Wellman filed a class action against Telus, consisting of both “consumers and non-consumers” [2]. The action alleged that Telus “engaged in an undisclosed practice of ‘rounding up’ calls to the next minute such that customers were overcharged…” [2]. All of the contracts binding the class provided that any claims “arising out of or in relation to the contract, apart from the collection of accounts by Telus, shall be determined through mediation, and failing that, arbitration” [3].

The problem for Wellman et al, though, was that not all of the members of the class were “consumers.” Under the Consumer Protection Act, the arbitration clauses in the contracts are invalid, because “it would otherwise prevent class members who qualify as ‘consumers’ from commencing or joining a class action of the kind commenced by Mr. Wellman” [4]. The Consumer Protection Act “shields consumers from a stay of proceedings under the Arbitration Act” [4]. Telus conceded this point as regards the consumers. But there were non-consumer, business customers included in the class. The core question was whether they could escape the effect of a stay sought by Telus.

Wellman said that, under the Arbitration Act, s.7(5), the court had discretion to refuse Telus’ request for a stay against the business customers, so that the business customers could continue in the class. Section 7(5) says the following:

7 (5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

Telus, though, fundamentally disputed this claim, arguing that under other provisions of the Arbitration Act, exceptions are set out that are exhaustive of all the legislative exceptions in the Arbitration Act scheme. Accordingly, to Telus, the Consumer Protection Act does not apply to the business consumers, and instead, the business claims should be stayed under the Arbitration Act [7].

Analysis in the Case

Moldaver J wrote for the majority, accepting Telus’ argument. After citing the general modern approach to statutory interpretation of text, context, and purpose, he first grounded his view of the statute in its purpose. One of the principles of the Arbitration Act, appearing in the legislative history, was the need to ensure that parties “abide by their agreements,” and that the law was designed to enshrine this idea [50]. Subsequent cases in courts across the country, to Moldaver J, accepted this idea [54].

Turning to the text, specifically s.7(1) of the Arbitration Act, Moldaver J wrote that it established a general rule: “where a party to an arbitration agreement commences a proceeding in respect of a matter dealt with in the agreement….the court “shall,” on the motion of another party to the agreement, stay the court proceeding in favour of arbitration” [63]. This is, obviously, a mandatory statutory rule. Wellman, though, argued that s.7(5) excerpted above is an “independent, standalone” exception to s.7(1) [74]. This provision, which permits a “partial stay”—meaning that the court has a discretion to stay some of the claims for arbitration—is available if certain statutory preconditions are met and if the court exercises its discretion in favour of the stay. Wellman argued that s.7(5) could be read so that the court “may refuse to stay” the business customers’ claims. But Moldaver J rejected this proposition, focusing on the text of s.7(5) in its statutory context. The text of s.7(5) says nothing about a court “refusing to grant a stay,” and to him: “…where the legislature intended to authorize the court to refuse a stay, it did so through the words ‘may refuse to stay’” [73]. Those words did not appear in s.7(5). And, with this text and context in mind, Moldaver J turned to purpose: allowing Wellman’s argument would “reduce the degree of certainty and predictability associated with arbitration agreements,” permitting the business customers to escape the effect of a stay [76].

Wellman also relied on certain policy considerations to support his preferred interpretation of the text [77]. One of these was a general principle of “access to justice,” which “[removes] barriers to seeking relief in court” [77]. But there were two problems with importing this idea as a decisive principle for the case: (1) a rarefied idea of access to justice should not “be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make the provision say something it does not…the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts…[i]t is not the role of this Court to re-write legislation [79]; and (2) the Ontario regime pursues access to justice by “shielding consumers from potentially harsh results of enforcing arbitration agreements…” by exempting consumers “and only consumers” from “otherwise freely negotiated agreements” [80]. This is in conjunction with the Arbitration Act’s pursuit of the overall principle that parties should abide by their agreements. Access to justice, as a general idea, should not “be permitted to overwhelm the other important objectives pursued by the Arbitration Act…” [83].

While I do not have space to recount the minority opinion of Abella and Karakatsanis JJ, I want to note a particularly fiery charge that they chose to level at Moldaver J: “The majority’s approach, with respect, in effect represents the return of textualism. The words have been permitted to dominate and extinguish the contextual policy objectives of both the Arbitration Act and the Class Proceedings Act [citations omitted]…” [109]. To the minority, the “overall purpose” of the Arbitration Act “was to promote access to justice” [137].

Evaluation

I want to say three things about this case. First, the minority’s charge of “textualism” against Moldaver J is inaccurate and sloppy; (2) Moldaver J’s approach, while not textualism, represents a defensible “textually constrained purposivism,” that guards against a court aggrandizing to itself the power to “read-in” language to a statute; (3) both of the opinions show why relying on legislative history is such a fraught enterprise.

Consider first the minority’s textualism charge. I can only imagine that Abella and Karakatsanis JJ were trying to make a rhetorical point, because I cannot believe that they—learned judges of our Supreme Court—could so misunderstand an entire school of interpretive thought. Textualism is directly opposite to “purposivism,” which is primarily concerned with the ends a statute pursues. To the textualist, purpose is encompassed in the means the statute pursues. It is not concerned with an overall statement of purpose, per se: consider Scalia J’s opinion in MCI and WVUH v Casey, and also Judge Easterbrook’s article, “Statutes’ Domains.”

But Moldaver J’s opinion does not just focus on means. It considers the ends of the Arbitration Act, including the overall “purpose” of respecting the agreement reached by parties in their contracts. Moldaver J’s approach is much more realistic than the minority’s approach, which chooses the “access to justice” purpose as the “overall purpose”—with no justification other than, apparently, judicial fiat. Moldaver J’s approach recognizes that there are other purposes of the statute at play. This is not textualism.

That said, Moldaver J’s approach does recognize that purposes do not exist in the abstract. They must be tied to statutory means. What is relevant is not the court’s appreciation of what access to justice means, but what the legislature thinks it means, and the words the legislature used to represent that idea. And that legislative instantiation is existent in the Arbitration Act and Consumer Protection Act, working in pari materia. As Moldaver J noted, the Ontario regime is focused on permitting access to justice for “consumers,” by allowing them to pursue claims in court. When we are talking about business customers, though, the legislation does not speak in abstract terms about access to justice writ large–the Arbitration Act has defined means to grant a partial stay, not means to refuse to grant a stay. It pursues the goal with limited means, in conjunction with other fairly discernible statutory purposes. Abella and Karakatsanis JJ—poets, apparently—say that “a provision must be assessed in all its textures — language, purpose, effect — to prevent the suffocation of its meaning by a technical literal reading of the words” [130]. But here, poetry suffocated prose, because the language of the statute works in symbiosis with purpose. Purpose does not override text. And in this respect, to my knowledge, it is not hornbook law that the Canadian approach is “intentionalist,” as Abella and Karakatsanis JJ say [107], understood in the sense that intentions should override text. Intentionalism would mean taking a psychologist’s armchair and determining what a legislator meant to say; not what was said.

This makes sense from a democratic perspective. Legislators, in their heads, may think of purposes when they enact laws. These purposes may range from “the public good,” on one hand, to minute, technical considerations on the other. Because a court cannot discern which purpose ended up becoming law, we have to think about what the best evidence of the law could be in the circumstances. Usually, text is that best evidence. While it is not always definitive and clear—because language is not always definitive and clear—it is better than unexpressed intentions or abstract, tangential purposes.

I want to raise a final note about the use of legislative history. Both sides of the case relied on different aspects of the legislative history to support their particular interpretation. Because various statements existing in the legislative history are not ranked by importance, it is difficult for any court or observer to put more or less weight on various statements. So, like Judge Leventhal once said, legislative history is like looking over a crowd and picking out your friends. A judge predisposed to one interpretation will use legislative history to support his own view of the matter. If we are going to allow legislative history to be a valid part of statutory interpretation, it should only be relied on with severe caution, as an afterthought, and with the idea that its probative value is exceedingly low.

Notwithstanding the quibble about legislative history, Moldaver J’s opinion is worthy of note because it finally recognizes that judges, under the guise of judicially divined “purposes,” cannot override a contextual interpretation of the text. The text is what the legislature enacted. It should govern.

A Perspective from the North

A review of Jeffrey Pojanowski’s “neoclassical” approach to administrative law

Jeffrey Pojanowski, whose contribution of “A View from South of the Border” to the Dunsmuir Decade symposium readers may recall, has posted a very interesting paper on “Neoclassical Administrative Law” on SSRN. (The article is to be published in the Harvard Law Review later this year.) Although written in an American context, Professor Pojanowski’s article should be read north of the border too, because it is framed around the tension that is central to Canadian, as well as if not more than, American administrative law: that between the Rule of Law and (what we in the Commonwealth call) Parliamentary sovereignty. Professor Pojanowski’s solution to this tension ought to be appealing in Canada ― though accepting it would require giving up some of the assumptions that are built into our administrative law.


Professor Pojanowski starts by describing three ways of addressing the conflict between the courts’ role of saying what the law is and the legislatures’ prerogative of committing certain governance issues to the resolution of administrative decision-makers. What he terms “administrative supremacy”

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 the discretion of executive officials, who balance those norms’ worth against other policy goals. (7)

“Administrative skepticism”, by contrast,

rejects deference to agency interpretations of law, even if the agency is charged with administering the statute. Deference shirks the judicial duty to say what the law is and introduces a pro-government bias of dubious constitutional provenance. (14)

As for those cases where the lawyers’ traditional interpretive tools are of no avail, because the administrative decision-maker has been given a policy-making role, “the [American] administrative skeptic is more likely to recommend an approach that is both more radical and more modest: invalidating the provision on non-delegation grounds”. (16-17)

Finally, the approach Professor Pojanowski terms “pragmatist” “seeks to reconcile the reality of administrative power, expertise, and political authority with broader constitutional and rule-of law values”. (18) It is relatively deferential to administrative interpretations of law, but makes “certain exceptions, such as withholding deference on major questions or jurisdiction”, (18) and “may … demand evidence that the agency engaged in reasoned decisionmaking” (18) even on those issues where it is normally prepared to defer, both interpretive and policy ones.

In jurisprudential terms, administrative supremacy comports with “a form of legal realism that dissolves the line between legal interpretation and policymaking”, deeming “most interesting questions of legal interpretation … inextricable from legislative policy choices”. (13) The skeptical position embraces A.V. Dicey’s vision of ordinary courts interpreting law as the keystone of the Rule of Law. The pragmatist view reinterprets the Rule of Law as involving “requirements of fair participation and reasoned justification”, and asks the courts to enforce these requirements, rather than to impose their view of what the law actually is.

Professor Pojanowski articulates and begins the defence of another approach to administrative law, which differs from those just outlined, though it has some affinities with each of them, perhaps especially the skeptical one. This “neoclassical administrative law … is skeptical of judicial deference on questions of law but takes a much lighter touch on review of [administrative] agencies’ procedural and policymaking choices”. (23) It seeks to preserve, indeed it emphasizes, the distinction between law and policy, and makes the courts masters of the former while asking them to stay out of the latter.

In part, this is motivated by a “formalist” rejection of the “legal realist premise that all interpretive uncertainty involves policy choices calling for political accountability and non-legal expertise”. (27; footnote omitted) To be sure statutes sometimes employ language that is only amenable to policy-laden elaboration (such as “in the public interest”); such elaboration should be the preserve of administrative decision-makers, subject only to a thin rationality review. However, this is precisely because in such “cases … there is no surface upon which traditional lawyers’ tools can have purchase”, (31) and the obverse of accepting this is a denial of “the more generalized presumption of implicit [legislative] delegation of interpretive authority”, which is no more than “a legal fiction delicately veiling a functionalism that dare not show its face”. (26) Legal questions, even difficult ones that have “more than one reasonable answer”, (33) can and ought to be answered by the courts, although “reviewing judges are likely to confer at least some mild epistemic authority on expert agencies”. (25n) In addition, the “neoclassical” position rests on a belief in the importance of the legislation governing judicial review of administrative decisions, especially (in the United States) the Administrative Procedure Act.

But while the “neoclassical” approach is similar to the skeptical one in its confidence in the law’s autonomy from politics and policy, it does not go as far in its rejection of the administrative state. It does not seek to reinvigorate the constitutional non-delegation doctrine (which holds that only the legislature, and not its creatures in the executive branch, can make law). Instead, “[t]he neoclassical approach turns down the constitutional temperature”, (36) accepting that the administrative state’s rule-making and discretionary powers are here to stay. It, in other words, “classical Diceyan public law theory adapted and persisting in a new regulatory environment”. (38)

Professor Pojanowski ends by addressing some potential criticisms of “neoclassical administrative law”. Of greatest relevance to Canadians will be his admission that

much here turns on interpretive method. The extent to which appeal to craft determinacy is plausible goes a long way toward deciding whether neoclassicism is promising or misguided. Furthermore, if interpretive formalism is inferior to strong purposivism or dynamic statutory interpretation, the case for deference is far stronger. Those methods explicitly, and to a greater degree, call for interpreters to consider policy consequences and evolving public values alongside, and sometimes above, formalist tools. The more those values infuse legal interpretation, the stronger the bite of arguments for deference based on political accountability and technical expertise. (40; footnote omitted)

Professor Pojanowski points out, however, that the pragmatist view, at least, is also tenable only if there are legal answers to at least some interpretive questions, which its adherents exclude from the scope of judicial deference.


I find Professor Pojanowski’s summary of the various existing approaches to administrative law illuminating, and his own “neoclassical” approach, mostly compelling. As a matter of first principle, I might be attracted by anti-administrativist skepticism but, especially in Canada, it is not a plausible position. Whatever might be the persuasiveness of the originalist arguments in favour of the non-delegation doctrine, and of strict separation of powers more broadly, in the United States, I doubt one can take them far in Canada. Subject to (somewhat vague) constraints on legislative abdication, the delegation of discretionary and rule-making authority is within the powers of Parliament and the provincial legislatures under the Constitution Act, 1867. The question, then, is not whether we can burn the administrative state to the ground, but whether we can ensure that it remains subject to law. The “neoclassical” understanding of administrative law is a better way of doing that then the available alternatives.

At present, Canadian administrative law is torn between “administrative supremacy” and “pragmatism”. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the soon-to-be-former leading case, is representative of the pragmatic approach, with its insistence that

[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

By contrast, cases such as Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, which allow unjustified, unreasoned administrative decisions to stand in the name of an (almost?) irrebuttable “presumption of expertise”, epitomize administrative supremacy. That said, even the pragmatist strand of Canadian administrative law is infected with a metastasizing belief in the absence of legal answers to interpretive questions which in Dunsmuir and elsewhere has been said to warrant thoroughgoing deference to administrative interpretations of law.

In the circumstances, even reasserting the belief in the law is in fact autonomous from policy and politics, and that interpretive questions must be resolved by relying on legal rather than on administrative expertise, is a tall order. Professor Pojanowski points out that this belief goes hand in hand with a commitment to interpretation based “on the text’s original meaning, statutory context and structure, linguistic canons, and perhaps historical intent … rather than normative canons or legislative purpose at a high level of generality”. (34) Contrast this with the broad pro-regulatory purposivism of cases like West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, and you will see just how far we have to go. Yet West Fraser, with its purported acknowledgement of an “unrestricted delegation of power” [11] to an administrative tribunal, illustrates the dangers of the prevailing Canadian approach.

That said, I have a couple of interrelated concerns about Professor Pojanowski’s approach. The broader one has to do with judicial review of policy decisions, including “interpretation” (or rather construction) of such terms as “reasonable” or “in the public interest”. I am inclined to think that the approach to (constitutional) construction set out by Randy Barnett and Evan Bernick in “The Letter and the Spirit: A Unified Theory of Originalism” is apposite here. A reviewing court should ensure, not that just that the administrative decision is rational, but also that it is a good faith attempt to further the original purpose of the statutory provision on which it is based and of the statute as a whole. While legal craft may not be able to tell us how best to serve the public interest in a particular regulatory context, it can help shed some light on statutory purpose. Indeed, I think it is necessary that courts, rather than administrative decision-makers naturally incentivized to overvalue to importance of their perceived mission and to underrate the countervailing considerations that may well have led a legislature to limit their ability to advance their agenda, be the final arbiters of statutory purpose. As Justice Rand famously said in Roncarelli v Duplessis, [1959] SCR 121

In public regulation … there is no such thing as absolute and untrammelled “discretion” … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. (140)

A related but more parochial concern has to do with constitutional law. Whatever deference might be warranted to administrative decision-makers engaged in the policy-laden elaboration of vague statutory terms, none should be accorded on constitutional issues. As a matter of the positive law of the Canadian constitution, the courts are the supreme arbiters of its meaning, against the executive branch as well as against the legislative. This question, if I understand correctly, does not even arise in the United States, but so long as Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 remains on the books, it must be flagged in the Canadian context.

Another somewhat parochial question that the “neoclassical” approach to administrative law would force us to confront is that of what to do about a large number of statutory provisions that Canadian courts have so far more or less deliberately ignored or distorted beyond recognition. These are, on the one hand, “privative clauses” that purport to preclude review of administrative decisions; and on the other provisions such as section 18.1(4) of the Federal Courts Act, sections 58 and 59 of the Administrative Tribunals Act of British Columbia, and other provisions that seek to guide judicial review of administrative decisions. Privative clauses would be unconstitutional if taken literally; but instead of holding them unconstitutional and simply ignoring them as nullities, Canadian courts (used to) affect to take them seriously rather than literally, as indications that the decisions of tribunals protected by such clauses should be given greater deference. As the “presumption of deference” spread, even this position has become increasingly meaningless. Meanwhile, as co-blogger Mark Mancini has pointed out, in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, the Supreme Court subverted the guidance that section 18.1(4) provides, insisting on imposing its own views on the standard of review applicable to decisions of federal boards and tribunals. The Supreme Court has similarly ignored provisions creating statutory rights of appeal, treating appeals from administrative decisions like judicial reviews.

Professor Pojanowski calls for such legislation to be taken as binding law rather than guidelines to be subsumed into or overridden by the Suprme Court’s own views about judicial review. This should be the obvious thing to do: statute trumps the common law. However, there is a catch; two even. First, the principle of legality holds that common law rights, including the right to access courts, including, I think it is fair to say, for the purposes of judicial review, cannot be abolished by implication. I’m not sure whether this has repercussions for interpretation of legislation that guides judicial review, but it might in some cases. Often, however, the legislation is quite clear. Notably, section 58 of the above-mentioned BC statute requires review for patent unreasonableness, including on questions of law in the case of certain tribunals. I think the courts would need to squarely face, in an appropriate case, the question of whether legislatures are constitutionally permitted to set the bar so high. And the courts should stop pretending to attach any significance to unconstitutional privative clauses.


Professor Pojanowski has articulated an approach to administrative law that is at once principled and (relatively) realistic. It responds to concerns that animate not only American, but also Canadian law, and should therefore be of considerable interest to us, not just as a comparativist curiosity, but as a source of compelling ideas. For this approach to take hold in Canada, long-held assumptions will require revision, and difficult questions will need answering. Yet it is quite clearly superior to available alternatives. Count me a cautious neoclassicist.

Romancing the Law

An ode to formalism and reflections on Runnymede’s Law and Freedom Conference

I had the pleasure of attending last weekend’s Runnymede Society conference in Toronto. As always, the conference was a welcome opportunity to meet with old friends and new, and to reflect on a number of pertinent issues in Canadian law.

Perhaps because of my own research interests in the last year, I was particularly interested in a theme that seemed to run throughout the conference: the degree of confidence that each of us has in law, particularly the statutory law. Justice Stratas’ talk with Asher Honickman highlighted that there are many in the legal community that, if not giving up on law, are questioning its relevance in a society that is now defined by greater calls for context, nuance, individualized application, and discretion.  The virtues of rules—the creation of economies of scale, the structuring of norms and expectations according to positive orders, the costs saved at the ex post application stage—are apparently counterweighed by the potential for overbroad application, rank injustice, and otherwise discriminatory treatment.

The degree to which we are worried about these vices, or encouraged by these virtues, is probably a function of our belief in legislatures and their work product. Even if legislatures do not get things “right,” there are good reasons to believe that what the legislature does is owed a wide degree of respect–because of the value of legislative compromises, the “finely-wrought” legislative procedure, and the representative nature of the legislature . Nowadays, though, a commitment to the law passed by the legislature is labelled pejoratively as “formalist.” In administrative law, offshoots of this belief are characterized, dismissively and without analysis, as “Diceyan” or an unwelcome throwback to the days of “ultra vires” (take a look at the oral argument in the Bell/NFL & Vavilov cases for many examples of this).  In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

The consequences of this argument-by-label should not be understated. Take the case of statutory interpretation. The Supreme Court of Canada tells us that we should interpret statutes purposively, but at the same time, that the text will play a dominant role in the process when it is clear (Canada Trustco, at para 10). This implies that purposes, while helpful to the interpretive process, should not dominate where the text is clearly pointing in another direction.

But a focus on statutory text—especially the contention that text can ever be clear—is often derided as inconsistent with the contingent and “ambiguous” nature of language. So the argument goes, text can never truly be “clear,” and so textualism falls away. But whether the text of a statute will contain answers to an interpretive difficulty is, in part, a function of the judge’s belief in the coherence and determinacy of law—in other words, her appreciation of the point at which “law runs out”. A judge inclined to believe that the tools of statutory interpretation can be used to come to a defensible answer on a matter will commit herself to that task, and will probably not consider legislative language “ambiguous” in its purposive context. For her, law will maybe never run out, or if it does, it will only do so in the extreme case of true ambiguity, where no discernible meaning cognizable to human understanding could be appreciated. A judge less committed to the determinacy of law will be more willing to introduce extraneous materials—legislative history, Charter values—in order to come to a meaning that makes sense to her. For her, the law may “run out” quite early. The risk here, of course, is the enlargement of the scope for judicial discretion. For those who believe in the general soundness of statutory law, this creates the potential for conflict with the generally-elected representative body.

This is not a hypothetical problem. In the United States, Chevron administrative law deference rests on the judge’s appreciation of statutory language. At step 1, courts are asked to apply the ordinary tools of statutory interpretation to determine if Congress spoke clearly on a particular matter. If so, that meaning binds the agency. If not, at step 2, if there is ambiguity in a statute, courts defer to a reasonable agency interpretation. As Justice Scalia said, a judge committed to the text at step 1 will rarely need to move to step 2. In this way, there would be less scope for agencies to exercise virtually unreviewable discretion. Those who believe that law runs out earlier will, ceterus paribus, be more willing to allow multiple decision-makers to come to very different decisions on a matter so long as those decisions are roughly justified by a statute.

The various points on the spectrum of “giving up on law” will be the product of many factors, including factors particular to cases before courts. But at some level, a belief that text can, or should, contain answers seems to undergird the entire process of determining the meaning of a statute. I think there are good reasons to hold the belief that what the legislature produces is generally sound for reasons that are particular to the legislative process and the law in question. To my mind, judges should be wary of letting text “run out,” in part because of what replaces it; more abstract, generally less clear “second-tier” sources of legislative meaning (Note: sometimes text will be truly unclear, and a statutory purpose can be clearly gleaned from the text. Our law sees no problem with this, and neither do I).

This is not to presuppose that legislatures always make sense in their enactments. The process of making law is not designed to be a perfect application of human rationality or even of expertise. Legislatures sometimes don’t make sense. But there are good reasons to respect the legislative process. Importantly, seemingly non-sensical legislative compromises, run through readings in Parliament and the committee process, are sometimes the product of concessions to minority groups, represented through their Members of Parliament. These legislative compromises are sometimes essential, and should be respected even if they do not make sense. Judge Easterbrook puts it well: “If this [an outcome of statutory interpretation] is unprincipled, it is the way of compromise. Law is a vector rather than an arrow. Especially when you see the hand of interest groups.”

If the legislative process is imperfect, so is the process of statutory interpretation. Statutory interpretation will not always yield easy answers, or even the ex ante “correct” answer. The tools of statutory interpretation are often contradictory, some say outmoded, and sometimes unwieldly. But as Judge Posner said in his book Reflections on Judging, the tools of statutory interpretation are designed to impose meaning. Used authentically and faithfully, with a concomitant belief in the legitimacy of the law passed by the legislature, they help courts come to a defensible conclusion on the meaning of a provision; one that is consonant with the universe of laws in the statute book, with the particular statute’s larger purposes, and the immediate context of a statute.

It worries me that some no longer belief in this process—in the formal quality of law as law, in the idea that when the legislature speaks, it does so for a reason. Similarly, I worry that the invitation for judges to rely on values and principles extraneous to a statute—for example, Charter values, legislative history, etc—to impose a meaning on a statute is based on wrongheaded idea that judicial discretion is somehow absolutely better than legislative power. I, for one, think that we should expect judges in a constitutional democracy to believe in the law passed by the legislature. This is not judicial acquiescence, but there is perhaps a value to formalism. Parliament, to be sure, does not always get everything right. But there is a benefit to formalism: the way in which Parliament passes laws is subject to a formal process, interposed with legislative study. The way we elect our leaders and the way Parliament operates is, in a way, formal. The law it creates should be owed respect by those sworn to uphold it.

The debate over rules versus standards or discretion is one that is rife throughout history. But presupposing the debate, I always thought, was a belief in law itself. For those of us at Runnymede this weekend, we were invited to question whether that belief exists any longer.

Statutory Interpretation in Admin Law and the Supreme Court’s Trilogy

Over on Professor Daly’s blog Administrative Law Matters, Professor Audrey Macklin wrote what I would characterize as a confessional: an admission that the law of judicial review in Canada may be beyond repair. What Prof. Macklin proposes, in light of this realization, is a renewed focus on the principles of statutory interpretation, rather than a myopic focus on standard of review categories—a parochical Canadian invention. Prof. Macklin specifically argues that our disagreements should focus on “what ought to count in statutory interpretation, why it ought to count, and how it ought to count.” For Professor Macklin, external considerations such as access to justice and international law should inform statutory interpretation.

I agree with Professor Macklin—to an extent. I see Macklin as making two claims: (1) the rules of statutory interpretation should be used to replace the rigid categories of standard of review and (2) that the rules of statutory interpretation can be massaged to take account of “normative, policy, operational, and other considerations.” The first contention, I think, is desirable. The second, I worry, will lead to more uncertainty, asking judicial review courts to do more than they are designed to do.

Let’s take (1) first. On this front, Professor Macklin finds agreement with many existing allies. Advocates for the Rule of Law, in its submissions before the Court in Vavilov and Bell/NFL, basically made this very point. With submissions expertly argued by Adam Goldenberg, ARL asserted that the Court, in its attempts to simplify the standard of review, had actually made things worse. Instead, ARL argued that the “established tools of statutory interpretation” should be used in a three-step framework to determine the level of deference. First, courts should look to judicial constating legislation to determine the level of deference; explicit direction that exists, for example, in the Federal Courts Act (which, it should be said, was ignored by the Court in Khosa). Second, the decision-maker’s home statute may contain explicit or implicit legislative direction on the standard of review. A statutory provision allowing a decision-maker to grant licences “in the public interest,” if supported by relevant context and purpose, should allow more deference. Finally, courts should look to the specific textual provision under which the decision-maker made her decision. If not contradicted by context, (say, a statutory right of appeal), broad language in this respect should also mean deference.

This strikes me as a good way to proceed. I make similar arguments in a paper to be released in the Western Journal of Legal Studies in January, “Two Myths of Administrative Law.” There, I assert that toying around with presumptions, categories, and even standard of review labels (reasonableness and correctness), should not be the sum of Canadian administrative law. These legal devices should be scrapped, the focus should be on the principles of statutory interpretation, and signals of deference—for example, expertise—should only come into consideration where they exist in statutory text, context, and purpose. I don’t see Professor Macklin as disagreeing with any of this.

At the same time, Professor Macklin takes a first crack at defining the work the principles of statutory interpretation could do in judicial review. She claims that so-called “operational considerations” that influenced the Supreme Court in Alberta Teachers—such as efficiency—also mean that courts should take into account principles of access to justice and international law in statutory interpretation. To Professor Macklin, courts should take “all the arguments” seriously in a given case.

This, I think, is where Professor Macklin’s proposal introduces more uncertainty than it actually solves, and runs afoul of the very basis of the law of judicial review. Her extension seems to extend the task of statutory interpretation beyond its traditional realm of discovering the meaning of the legislature. Instead, she would make statutory interpretation a normative exercise, one that seeks to render an interpretation that best accords with any number of “external” considerations.

But if we are starting from scratch in developing doctrine for the law of judicial review, we should do so in light of that very fact: it is the law of judicial review with which we are concerned. Judicial review is not a free-standing inquiry into the legality of particular government decisions. When governments delegate away power to make decisions, it does so on a narrow basis—to decide which of Party A and B receives Licence X; to decide whether A’s zoning application is legal. This is the run-of-the-mill judicial review case. When courts review these decisions, they are usually bound to the record the decision-maker considered on review. The courts do not move beyond that record, which maps onto the scope of delegative power afforded to the decision-maker. As a result, and by design, the ancient writ of certiorari and the modern act of judicial review are first and foremost designed to “ensure the legality of state decision-making” (Wall, at para 13). Courts are equipped to make those decisions by rules of the record that mandate the production of all information considered by the decision-maker under its statutory mandate. In this respect, judicial review proceedings are designed to be quick and cost-effective.

There are two upshots of this ordering. First are the considerations that should inform the exercise of judicial review. In the Two Myths paper, I argue that such external considerations lack the imprimatur of legislative approval. In other words, they do not exist in the world with which judicial review is concerned. If judicial review is considered primarily with the supervision of state actors—what I call its “policing function”—then it must hew closely to the four corners of a statute. Anything beyond that is a concern for legislative actors, who are legitimately empowered to address broad, systemic concerns such as access to justice because of their particular institutional competencies. Any other positive policy entitlements—a right to access to justice, considerations of normative justice—are second to the immediate statutory context of a decision-maker’s decision in judicial review. That is not to say that these considerations are irrelevant. But they are distinctly second to the goal of a quick determination of legality “on the record.”

But there is a bigger practical concern here, beyond the issue of separation of powers. To my mind, Macklin asks judicial review courts to do more than they are designed to do, from a perspective of information. By using the principles of statutory interpretation to gaze beyond the four corners of a statute and into other complex, external considerations, judicial review becomes more of a legislative act rather than a pure adjudicative one. In this sense, the benefit of the principles of statutory interpretation—that they, as Macklin notes, put us on the same terrain—is lost. For example, what does a presumption in favour of access to justice mean in the context of particular cases? In absence of real information on what would facilitate access to justice in the context of a defined legislative scheme, how do courts make informed decisions on the matter? Even if they could, doesn’t this complicate the narrow and efficient basis of judicial review?

It is no answer to these problems to say, as Macklin does, that courts are informed by policy considerations when they rely, for example, on presumptions in favour of contract or liberty. These presumptions are of a different sort than the type advocated for by Macklin, at least in the context of access to justice. Most notably, they are negative in nature. But there are particular issues that distinguish these traditional presumptions from the sort of rule Macklin seeks to formulate. For example, in terms of contract, the presumption is justified as a policy matter from the perspective of information. Courts, for good reason, assume that parties enter bargains on the basis of mutual gains, which in turn enable social welfare gains. Courts (and legislatures) lack the information necessary to overturn the parties’ agreement and instead impose their own understanding of what would be an efficient outcome; transaction costs of doing so are high because the court lacks information. Macklin’s presumption (in favour of access to justice) is of a different sort; it asks judicial review courts to consider or act in areas where there is a distinct informational deficiency, at least in the context of particular judicial review cases.

The problem of information is not a practical concern that exists in the ether. It is directly related to the roles of various players in our democratic structure. Courts on judicial review are empowered to redress public law grievances caused by organs of the state; no more or less. As a result, they are given the information required to do so on the basis of the record. The realm of legislative action, on the other hand, is broader—and so legislatures are empowered with more information and more resources. None of this is a coincidence.

People might use a laundry list of adjectives to describe my preferred approach: “cramped,” “formalistic,” “Diceyan.” None of this, of course, is an answer. The bottom line: the law of judicial review, and the principles of statutory interpretation, cannot encompass all, or even most, of what we consider good and virtuous in the world. They can only accomplish their narrow but infinitely important goal. Any renovation to the law of judicial review that uses the principles of statutory interpretation cannot forget this.

Statutory Interpretation in Canada from the “Stratasphere”

For those interested in statutory interpretation and its effect on administrative law, I have a new piece coming out in the Advocates’ Quarterly in October. A preliminary version of the piece was posted on the Advocates for the Rule of Law website over the summer. The paper is basically a review of two opinions written by Justice Stratas of the Federal Court of Appeal. I argue that the opinions give us an opportunity to consider an underexplored area in Canada: how statutory purposes should interact with text, and the implications for the level of deference granted on questions of law to administrative decision-makers. I write the following in the introduction of the piece:

Statutory interpretation presents problems of judicial subjectivity. Though it is well-established that courts and advocates must look to the “text, context, and purpose” of a particular statutory provision to determine its meaning, little work has focused on what courts should do when purposes are stated at different levels of abstraction, or where the statute has multiple purposes which are seemingly contradictory. In fact, there are no rules governing how courts should act in these situations. The potential result of this void is the rule of “homunculi sitting in the minds of judges”; judicial subjectivity beyond statutory text.

While these problems remain, Justice Stratas of the Federal Court of Appeal provides guidance on these questions to courts and litigants in two recent cases: Williams and Cheema. After reviewing the cases, I argue that Justice Stratas’ opinions properly warn courts against characterizing highly abstract statutory purposes, outside of what the statutory text prescribes. In the context of judicial review of administrative determinations of law, doing so could facilitate an overly deferential or interventionist posture to administrative interpretations of law, beyond what text actually prescribes. This is a court created distortion. As an antidote, Justice Stratas’ opinions rightly remind us that legislation binds, and that as a matter of the rule of law, courts must enforce statutory language rather than purposes untethered to text.