The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

What’s Left of Freedom?

In the Trinity Western cases, the Supreme Court eviscerates religious liberty in Canada

In my last post, I discussed the administrative and constitutional law issues relating to judicial review of the decisions of the law societies of British Columbia and Ontario to deny accreditation to the law school set up by the Trinity Western University, which the Supreme Court upheld in in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.  Here, I turn to the religious freedom aspect of the decisions. (Once again, the British Columbia decision is the one that sets out the judges’ reasoning in full, and I will refer to it below.) As indicated in the last post, in my view the Supreme Court’s decisions are disastrous, because they more or less nullify the constitutional protection for religious freedom enshrined in the Canadian Charter of Rights and Freedoms.

Trinity Western requires its students (as well as faculty) to sign and abide by a “Covenant” that proscribes, among other things, sex outside heterosexual marriage. This is widely seen as discrimination against gay and lesbian (potential) students, and was the reason for the law societies’ decisions not to accredit Trinity Western’s law school. Trinity Western argued that these decisions infringed its and its students’ freedom of religion, and that the infringement could not be justified under the Charter.

As on the issues covered in the last post, the Court is split. The majority judgment signed by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon holds that there is indeed a prima facie infringement of religious liberty, but that it is not especially serious and is easily outweighed by the need to prevent harm to students. The Chief Justice, concurring, also finds that there is an infringement of religious freedom, and indeed a rather more serious than the majority lets on, but one that is nevertheless outweighed by the law societies’ desire to avoid condoning discrimination. By contrast, Justice Rowe, also concurring, thinks that religious freedom is not at stake at all. Justices Brown and Côté dissent, finding an infringement of religious freedom that is not justified.

* * *

The majority is of the view that constitutional protection extends to “the socially embedded nature of religious belief” and to “[t]he ability of religious adherents to come together and create cohesive communities of belief and practice”. [64] Trinity Western “is a private religious institution created to support the collective religious practices of its members”, whose rights were “limited” [61] when it was denied accreditation, because their ability to put into practice a “sincere[] belie[f] that studying in a community defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development” was thereby undermined. [70] The majority adds that, while the freedoms of expression and association, as well as equality rights, were also raised in the cases, “the religious freedom claim is sufficient to account for [these] rights of [Trinity Western]’s community members in the analysis.” [77]

The Chief Justice agrees that “the freedom of religion of members of the Trinity Western community” [120] has been infringed. To be sure, as individuals, they can go on holding their beliefs regardless of whether the law societies accredit the Trinity Western law school. However, they would be “prevent[ed] from carrying out a practice flowing from [their] belief about the environment in which [Trinity Western] would offer a legal education”. [125] The Chief Justice adds that the freedoms of expression and association must be included within “the ambit of the guarantee of freedom of religion”. [122]

Justice Rowe, by contrast, denies that anyone’s freedom of religion is being infringed. He starts from the premise “that religious freedom is based on the exercise of free will”, because it “involves a profoundly personal commitment”. [212] For Justice Rowe, it follows from this that, although religion can have a “communal aspect”, it is individuals, and not institutions ― such as Trinity Western ―, who can invoke the right to religious freedom. [219] “[M]embers of the evangelical Christian community” [219] who attend Trinity Western can assert religious rights, but Justice Rowe is skeptical that they “sincerely believe in the importance of studying in an environment where all students abide by the Covenant”. [235] They prefer to do so, but do they really think they have to?Even assuming that this is so, however, Trinity Western’s evangelical students are not entitled to constitutional protection for their belief, which “constrains the conduct of nonbelievers — in other words, those who have freely chosen not to believe”. [239] They cannot, in the name of religious freedom, impose their views on those who do not share them. Since the legislation that sets up Trinity Western requires it to admit non-members of the evangelical community, these non-members are entitled to have their freedom protected too. As for “alleged infringements to … expressive and associate [sic] freedom rights … and … equality rights”, the members of the Trinity Western community “have not discharged their burden” of establishing them. [252]

The dissent sees things very differently. In the opinion of Justices Côté and Brown, the law societies’ denial of accreditation to Trinity Western “undermines the core character of a lawful religious institution and disrupts the vitality of the [Trinity Western] community”. [324] This community has the right to set its own rules for its self-governance, and the law societies are not entitled to dictate how it should do so as a condition of providing it with a benefit. Such dictation

contravened the state’s duty of religious neutrality: [it] represented an expression by the state of religious preference which promotes the participation of non-believers, or believers of a certain kind, to the exclusion of the community of believers found at [Trinity Western]. [324]

The dissenters are exactly right. The majority and the Chief Justice are also correct in recognizing an infringement of the Charter‘s guarantee of religious freedom, though as we shall see, the majority’s recognition, in particular, is well-nigh meaningless, and it is too bad that neither the majority nor the Chief Justice articulate the issue in terms of state neutrality. The key to the Charter aspect of the case is that Trinity Western has been denied something that there is no doubt it would have been granted but for the religious belief and practice which it embodies. While some, including both critics and supporters of the Supreme Court’s decision, have suggested that the case should really have been about freedom of association, I think it makes sense to frame as being about the state neutrality aspect of religious liberty. (That said, freedom of association would also have been a plausible approach ― at least if one ignores the Supreme Court’s refashioning of this provision into one that only benefits labour unions).

Justice Rowe, in my view, is quite mistaken. For one thing, I don’t understand how he, as an appellate judge, can make findings, or even speculate, about the sincerity of individual’s religious beliefs. For another ― and this, as we’ll presently see, is a problem not just for him, but for the majority too ― the suggestion that a court can distinguish between beliefs that are well and truly obligatory and those that are mere “preferences” goes against the approach adopted by the majority of the Supreme Court in Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551, which rejects testing the “validity” of religious beliefs, or asking whether a given practice is regarded as truly mandatory or supererogatory. Most fundamentally, Justice Rowe is wrong to claim that Trinity Western is trying to impose its beliefs on anyone. It demands forbearance from certain actions ― without inquiring into the reasons for this forbearance, in the same way as the state normally demands compliance with laws but doesn’t require citizens to subscribe to the principles behind them. Such demands are indeed quite antithetical to the freedom of conscience ― and one can only hope that Justice Rowe will remember this if or when the Law Society of Ontario’s Statement of Principles policy comes to his court for review ― but this is not what is going on here.

* * *

For the majority, denying Trinity Western accreditation was the only way for the Law Societies to further their statutory mandate (as they understood it), and the denial was “proportionate” to that mandate. It “did not limit religious freedom to a significant extent”, [85] and “does not prohibit any evangelical Christians from adhering to the Covenant or associating with those who do”. [86] Trinity Western itself can still receive accreditation by removing the “Covenant”, or making compliance with it voluntary, and “a mandatory covenant is … not absolutely required for the religious practice at issue”. [87] As for the students who wish to attend it, they prefer to go to a law school governed by the mandatory “Covenant”, but do not have to.

Meanwhile, denying Trinity Western accreditation contributed to “maintaining equal access to and diversity in the legal profession”. [93] Even though accrediting Trinity Western wouldn’t restrict LGBTQ students’ options in comparison with what they currently are, it would leave them with fewer options than their peers which “undermines true” or “substantive equality”. [95] The denial of accreditation also serves to protect any LGBTQ students who were to venture to Trinity Western from “the risk of significant harm” to their dignity, [96] and prevents Trinity Western from “impos[ing]” [102] its religious beliefs on them (and others). The majority concludes that this is just one of the cases where “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society.” [100]

The Chief Justice agrees that the denial of accreditation “was minimally impairing”, [127] but she takes the infringement of Trinity Western’s rights more seriously than the majority. Interference with a “lengthy and passionately held tradition” “of religious schools … established to allow people to study at institutions that reflect their faith and their practices” [130] is no trivial matter. Besides, court cannot assess the significance of religious beliefs and practices, or conclude that they are of minor significance because some believers “may be prepared to give [them] up”. [132] Finally, the Chief Justice rejects the argument that Trinity Western is imposing its beliefs on others:

Students who do not agree with the religious practices do not need to attend these schools. But if they want to attend, for whatever reason, and agree to the practices required of students, it is difficult to speak of compulsion. [133]

On the other side of the balancing exercise, the Chief Justice is skeptical that denying Trinity Western accreditation will do much for LGBTQ students, few of whom would ever consider attending it. However, she gives more weight to “the imperative of refusing to condone discrimination against LGBTQ people, pursuant to the [law societies’] statutory obligation to protect the public interest”. [137] The Chief Justice finds that “[d]espite the forceful claims made by” Trinity Western, she “cannot conclude that” denying it accreditation “was unreasonable”. [148]

The dissent, by contrast, sees no good justification for the denial of accreditation to Trinity Western ― even on the assumption (which, as explained in the previous post, the dissent denies) that the law societies have a free-standing mandate to advance “the public interest”. To be sure, Trinity Western’s “Covenant” is exclusionary; but  this exclusion “is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society”. [327] Canada has traditionally accommodated religious difference, instead of insisting, as the majority does, that it must sometimes be curtailed in the pursuit of statutory objectives. Moreover, “it is the state and state actors — not private institutions like [Trinity Western] — which are constitutionally bound to accommodate difference in order to foster pluralism”. [330] The state is supposed to be secular ― and that means

pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view. [332]

Besides,  “the Legislative Assembly of British Columbia has already determined that the public interest is served by accommodating religious communities” [335] when it exempted Trinity Western from the application of the provincial anti-discrimination legislation.

The dissent also rejects the Chief Justice’s position that accrediting Trinity Western would amount to condoning its discriminatory beliefs:

State recognition of the rights of a private actor does not amount to an endorsement of that actor’s beliefs … Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors. [338]

The state is not entitled to impose its values on those who are not subject to constitutional obligations. While it may not favour particular beliefs, neither may it deny recognition to persons or institutions who hold beliefs that are at odds with its own commitments.

On this, again, the dissenters are exactly right. The majority and the Chief Justice are allowing the law societies to circumvent the decisions of the framers of the Charter and the British Columbia legislature to permit illiberal and discriminatory private actors to retain and act on their religiously motivated beliefs. Yet religious freedom demands no less. When the state uses its regulatory (or, in other cases, its fiscal) power to deny benefits to persons and institutions whose only “fault” is that they hold religious beliefs of which the state does not approve, it not only fails to discharge its duty of neutrality, but actively seeks to eliminate religious diversity or, at best, to push dissentient religious views into the closet. (I use this phrase advisedly.) Moreover, the Chief Justice’s logic ― that the state is entitled to deny a license, benefit, or privilege to persons or entities whose views it ought not to condone ― extends well beyond the realm of religious freedom. Can racist parents be prevented from sending their children to public schools? Holocaust deniers from getting driver’s licenses? Can flat-Earthers be denied passports, or EI payments? In fine, can any interaction a citizen might have with the state be conditioned on that citizen’s not holding proscribed beliefs?

The majority, of course, is no more respectful of religious freedom than the Chief Justice ― and probably less so. Like Justice Rowe, it would, contrary to Amselem, set up secular courts as ecclesiastical tribunals responsible for determining what is and what is not mandatory as a matter of religious dogma. Like Justice Rowe, it confuses rules of conduct and reasons for complying with them and denies the agency of persons who voluntarily choose to submit to rules whose raison d’être they might disapprove of. As for its understanding of “substantive” equality, it requires denying options to all so as not to admit of any disparity, even one that literally leaves “enough and as good” ― and indeed, more than enough and better ― options to those ostensibly excluded; in other words, a levelling down.

* * *

I’m not sure how much is left of the constitutional guarantee of religious liberty after the Trinity Western decisions. Presumably, purely private devotion still cannot be forbidden or compelled ― to that extent, it is fortunate that the Chief Justice’s approach, which would have opened even private religious views to scrutiny the moment a citizen starts interacting with the state, has not prevailed. But any relationships between religious persons or entities with others ― even entirely consensual relationships ― are now open to regulation in which the religiously motivated actions can be regulated or prohibited as impositions of belief, or subjected to the imposition of the state’s values, whether or not there is any legislative basis for such imposition in the circumstances. Purely symbolic harms are deemed to provide sufficient justification for regulation, and multiculturalism is made to serve as an excuse for silencing and assimilating non-conformists. It is telling that the arguments that purportedly justify the denial of accreditation to Trinity Western are not meaningfully different from that those that supposedly support bans on Muslim face veils, which are also said to be necessary to prevent the imposition of retrograde, discriminatory views on those who do not freely embrace them.

Almost five years ago, I commented on an article by Douglas Laycock called “Religious Liberty and the Culture Wars,” which decried the growing hostility to religious freedom among large sections of the political left. Professor Laycock connected this hostility to the religious right’s own attempts to suppress the liberties of the people it regarded as morally misguided. But, contrary to the claims of the Supreme Court’s majority and Justice Rowe, no such thing happened at Trinity Western. However distasteful its views ― and I do find them distasteful, not just the homophobia but the illiberalism more broadly ― Trinity Western wasn’t trying to impose them on unwilling outsiders. Professor Laycock was hopeful that “[w]e could still create a society in which both sides can live their own values, if we care enough about liberty to protect it for both sides”. (41) The Trinity Western cases show this possibility is no longer a realistic one in Canada, for the foreseeable future. The winners in the culture war have chosen not to take prisoners, and to accept nothing short of an unconditional surrender. The Supreme Court holds that they are entitled to do so.

The Supreme Court v the Rule of Law

In ruling against Trinity Western’s fundamentalist law school, the Supreme Court unleashes the administrative state

The Supreme Court’s decisions in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 are a disaster for Canadian law. By a 7-2 majority, the Court upheld the decision of the Law Societies to deny accreditation to a concededly academically adequate law school on the sole ground that its students and faculty would have been required to sign up to a religiously-inspired “Covenant” and, inter alia, promise to abstain from sex outside of a heterosexual marriage for the duration of their studies ― a requirement that disproportionately affects gay and lesbian students and was therefore widely regarded as discriminatory, though it was not illegal under applicable anti-discrimination law. The Supreme Court’s decision and reasoning subvert the Rule of Law and nullify the constitutional protection for religious freedom.

The Trinity Western cases presented two sets of issues. First, there was the administrative law questions of whether the law societies were even entitled to consider  the “Covenant” in deciding whether to accredit it and, in the British Columbia case, whether a referendum of the law society’s members was an appropriate way of deciding whether to accredit Trinity Western. (The British Columbia decision is the one where the reasoning of all the judges is set out in full, and that’s the one I will refer to below, unless otherwise specified.) Second, there were the constitutional law questions of the framework to apply to review of the compliance of administrative decisions with the Canadian Charter of Rights and Freedoms and, substantively, of whether the law societies’ decision infringed the Charter and whether this infringement was justified. In this post, I focus on the administrative law issues, and add a few words on the applicable review framework. I will write about the religious freedom issues separately.

On the issue of the law societies’ entitlement to consider the covenant, as on the outcome, the Court splits 7-2. The majority reasons are ostensibly jointly authored by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon; the Chief Justice and Justice Rowe concur. They hold that the law societies were within their rights to deny accreditation to Trinity Western based on the “Covenant”. Justices Brown and Côté jointly dissent. The majority holds that the referendum was a permissible procedure for deciding on the Trinity Western accreditation. Justice Rowe disagrees, although his comment on this point is in obiter. The dissent also thinks the referendum procedure was not appropriate. As for the review framework, the majority purports to apply the one set out Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and (modified in) Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613. The Chief Justice and Justice Rowe, however, propose substantial modifications of this  framework, while the dissenters call for it to be reconsidered.

* * *

The majority (with the agreement of the Chief Justice and Justice Rowe) considers that the law societies had the power to consider Trinity Western’s “Covenant” and its discriminatory effects because of their alleged statutory mandate to regulate the legal profession “in the public interest”. The British Columbia legislation, for instance, provides that “[i]t is the object and duty of the society to uphold and protect the public interest in the administration of justice by”, among other things, “preserving and protecting the rights and freedoms of all persons”. This “overarching statutory object … is stated in the broadest possible terms”, [33] and the majority decides that in upholding the public interest and rights and freedoms the law societies were entitled to take into account “inequitable barriers on entry to the school” [39] created by the “Covenant”, as well as unspecified “potential harm to the LGBTQ community”. [44] Moreover, the majority thinks that since the “shared values” of the Canadian Charter of Rights and Freedoms “are accepted principles of constitutional interpretation”, [41]

it should be beyond dispute that administrative bodies other than human rights tribunals may consider fundamental shared values, such as equality, when making decisions within their sphere of authority — and may look to instruments such as the Charter or human rights legislation as sources of these values, even when not directly applying these instruments. [46]

To be sure, since neither law society provided reasons for its decision, it is not quite clear whether the decisions were actually made on this basis. But, since the Supreme Court has for some time now insisted that reasons that could have been given by administrative decision-maker can support its decision just as well as those that actually were, this is of no consequence.

The dissenters beg to differ. Constitutional values are irrelevant “to the interpretation of the [law society]’s statutory mandate,” and “it is [its] enabling statute, and not ‘shared values’, which delimits [law society’s] sphere of authority”. [270] That statute allows the law society to regulate itself, “‘lawyers, law firms, articled students and applicants’ [but]does not extend to the governance of law schools, which lie outside its statutory authority”. [273] As a result, the effects of the “Covenant” on which the majority relies are irrelevant considerations; in trying to forestall them, a law society acts for an improper purpose, since ― as Justice Rand famously observed in Roncarelli v Duplessis, [1959] SCR 121 ―,

there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; … 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; cited at [275]; emphasis Brown and Côté JJ’s)

The perspective in which the law societies’ enabling statutes are intended to operate is a focus on the fitness of individual lawyers for legal practice, and denying accreditation to a law school whose graduates are not expected to be individually unfit is inconsistent with this perspective. As for the broad statement of purpose on which the majority relies, it provides no authority for a law society

to exercise its statutory powers for a purpose lying outside the scope of its mandate under the guise of “preserving and protecting the rights and freedoms of all persons”. For example, the [Law Society] could not take measures to promote rights and freedoms by engaging in the regulation of the courts or bar associations, even though such measures might well impact “the public interest in the administration of justice”. …

 It is the scope of the [law society’s] statutory authority that defines how it may carry out its public interest mandate, not the other way around. [286-87]

The law societies are not empowered to regulate student selection by law schools in the name of whatever they conceive as the public interest; if they were, they could (and perhaps would have to) regulate other aspects of the law schools’ policies that can have an impact on access to and diversity within the legal profession ― even, say, tuition fees. This simply isn’t the law societies’ job under their enabling legislation.

On this as on other points, I agree with the dissent ― which is probably the best opinion to come out of the Supreme Court in a long while, though it tragically falls three votes short of becoming the law. The majority’s approach is not altogether surprising. Indeed, it exemplifies tendencies illustrated by other cases, such the making up of reasons where the administrative decision-maker gave none, the better to “defer” to them. I once described judges engaged in this practice as playing chess with themselves and contriving to lose. More significantly, the Trinity Western cases resemble the recent decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, in that, as in that case, the majority seizes on a broad statement of purpose and disregards statutory language that more carefully circumscribes the powers to be exercised by an administrative decision-maker, expanding its competence so that it has virtually no limits. I described this aspect of West Fraser here, and stressed the importance of the “perspective in which a statute is intended to operate”, complete with the Rand quotation, here.

What is perhaps an innovation, albeit one that follows the same perverse logic of courts enabling regulators where legislators did not, is allowing the administrative decision-maker to effectively enforce (under the euphemism of “looking to”) laws that it is no part of their statutory mandate to enforce, supposedly because these laws represent “shared values”. The framers of these laws ― both the Charter and the British Columbia Human Rights Act ― made a conscious decision that they would not bind private entities generally, or religious institutions such as Trinity Western specifically, respectively. No matter ― the majority thinks that administrative decision-makers can apply them regardless.

It is for this reason that, in my view, the Trinity Western cases subvert the Rule of Law. They fly in the face of the idea that, as the Supreme Court still recognized not that long ago ― in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 ―,  “all exercises of public authority must find their source in law”, and that it is the courts’ job to “supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority”. [28] According to the majority, public authority can be exercised without positive legal mandate, indeed in disregard of legislative attempts to (admittedly loosely) define such a mandate, on the basis of allegedly “shared values”. One cannot help but think of the more unsavoury totalitarian regimes, where “bourgeois legality” was made to give way to “revolutionary class consciousness” or similar enormities. That these “shared values” are said to derive from the Charter, which limits the power of government and, indeed, expressly provides in section 31 that “[n]othing in [it] extends the legislative powers of any body or authority”, only adds insult to injury.

As the dissent rightly points out, on the majority’s view law societies have a roving commission to weed out injustice. They could regulate not only “courts or bar associations” but also police forces, self-represented litigants, or anyone else who comes into contact with the administration of justice. Their regulation of lawyers can extend to the lawyers’ private lives, and very thoughts ― which is what what the Law Society of Ontario is already attempting with its requirement that lawyers undertake to promote “equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”. Granting a regulatory body this amount of power unfettered by any guidance more precise than the notion of the public interest is inimical to the spirit of a free society.

* * *

On the question of whether the Law Society of British Columbia was entitled to hold a referendum on whether to accredit Trinity Western, the majority notes that there are not statutory limits on the ability of its governors, the Benchers, to “elect to be bound to implement the results of a referendum of members”. [49] The fact that the constitutionally protected rights were at stake does not change anything. The Chief Justice does not say anything explicitly about this, but I take it that she agrees with the majority.

Justice Rowe, however, has a different view of the matter. While he agrees that the Benchers are generally free to call and choose to be bound by the results of a referendum, he thinks that the case is altered where the Charter is involved. As I will explain in my next post, Justice Rowe (alone among his colleagues) thinks that this is not the case here. Were it otherwise, however, a referendum would not suffice to discharge the Law Society’s “responsibilities under the Charter. Is not one of the purposes of the Charter to protect against the tyranny of the majority?” [256] Majority opinion is not a sufficient basis on which constitutional rights can be restricted.

The dissent is similarly unimpressed. It notes that the majority’s basis for upholding the Law Society’s decision ― that it reflects a proportionate balancing of the Law Society’s objectives and the relevant constitutional rights ― presupposes “expertise in applying the Charter to a specific set of facts”, and requires “engagement and consideration from an administrative decision-maker”. [294] Once they decided to simply accept the outcome of a referendum of members, the Benchers did not exercise their expertise, or engage with and consider the issues; rather, they “abdicated their duty as administrative decision-makers by deferring to a popular vote”, [298] and their decision should be quashed on that basis.

The dissent is right that a referendum is simply incompatible with the framework for reviewing administrative decisions employed by the majority. It makes no sense to demand, as the majority does, that judicial review of administrative decisions effectively made by non-experts who do not deliberate be deferential on the basis of administrative expertise and deliberation.

But that, of course, does not address the real question, which is whether judicial review that implicates constitutional issues should be deferential at all. If the courts do not abdicate their responsibility to ensure that administrative decision-makers comply with the constitution, then whether these decision-makers abdicate their duty by deferring to a popular vote matters rather less. Justice Rowe cannot be right that a majoritarian procedure is, in itself, anathema as soon as the Charter is concerned. Of course the Charter is supposed to protect against the tyranny of the majority ― but it does so by empowering courts to review the decisions of majoritarian institutions, whether law societies, municipal councils, or legislatures, and not by preventing such institutions from deciding matters that might affect constitutional rights.

* * *

How, then, should the courts go about reviewing administrative decisions that implicate the Charter? I will not say much about this issue, because I do not think that the Trinity Western cases tell us much. As noted above, the claims to apply the Doré/Loyola approach of upholding administrative decisions if the achieve a “reasonable” or “proportionate” balancing of statutory objectives against the infringements of Charter rights. Both the concurring judges and the dissenters want to modify this framework and make less deferential.

This sounds like an interesting debate, but I’m not sure it is worth having, because I am not sure that the majority is speaking in good faith. For one thing, as the dissent points out, the majority is not really deferring to balancing achieved by the law societies, since neither gave reasons for its decision. For another,  the majority’s insistence that “Doré and Loyola are binding precedents of this Court” [59] is laughable. I mean this literally ― I laughed out loud when I read this. Even if we pretend that most precedents of the Supreme Court are binding on it, rather than being subject to tacit evasion and quiet undermining, as they increasingly are these days, Doré and Loyola do not belong to this category. As I’ve noted here, and as the dissent also points out (at [303]), the Supreme Court’s recent decisions in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)2017 SCC 54 (CanLII), [2017] 2 SCR 386 and Association of Justice Counsel v. Canada (Attorney General)2017 SCC 55[2017] 2 SC 456, do not follow the Doré/Loyola approach. It is perhaps worth observing that all the members of the Trinity Western majorities except Justice Moldaver were also in the majority in both of these decisions.

The issue of how the courts should review administrative applications, or implicit applications, or failures to apply, the Charter is highly consequential. It is all the more so since the Supreme Court is letting the administrative state loose, unmoored from legislative constraint and judicial supervision on administrative law grounds. But while the suggestions of the concurring and dissenting judges in this regard are worth considering, this is not the place to do so. For the purposes of understanding Trinity Western, I think it enough to say that the Doré/Loyola approach suited the majority’s rhetorical needs, and therefore was used.

* * *

From the standpoint of administrative law and of constitutional control over the administrative state, the Trinity Western cases are a catastrophe. The Supreme Court subverts the Rule of Law by giving administrative decision-makers virtually unlimited powers, unfettered by statutory restrictions, and reinforced by the hopeless vague concept of “shared values” that allow these decision-makers to impose their views on those subject to their power quite apart from any legal authorization. As I will argue next, the Trinity Western decisions are also distressing because of their evisceration of religious freedom. However, the administrative law aspect of these cases might be an even more toxic legacy, because it cannot be confined to a single constitutional right that is an unfortunate victim of the culture war. The administrative state is pervasive, and the Supreme Court’s refusal to keep it under control will make victims on all sides of that narrower, if more salient, conflict.

Is Deference Possible Here?

The Supreme Court’s latest administrative law decision shows why disguised correctness is the default standard of review

In Groia v Law Society of Upper Canada, 2018 SCC 27, decided last week, the Supreme Court of Canada once again fractured over the approach to take to the judicial review of an administrative decision ― and, once again, the majority chose correctness review disguised as reasonableness as its methodology. The substantive issue in Groia was whether the Law Society was entitled to discipline a lawyer for advocacy that took “the form of personal attacks, sarcastic outbursts and allegations of professional impropriety, grinding the trial to a near standstill”. [12] I have no articulate views on this, except a general sense that the fewer powers law societies have, and the more circumscribed these powers are, the better. But I do want to comment on the administrative law aspects of the decision.

* * *

As Justice Moldaver, writing for the majority, describes its decision, the Law Society’s

Appeal Panel grappled with the issue of when in-court incivility amounts to professional misconduct under the Law Society’s codes of conduct in force at the relevant time. It reasoned that incivility “capture[s] a range of unprofessional communications” and ultimately settled on a multifactorial, context-specific approach for assessing a lawyer’s behaviour. [36; references omitted]

The Panel then applied this test to Mr. Groia’s case. The issue for the Supreme Court is twofold: first, it must review the approach devised by the Panel; second, the Panel’s application of this approach. However, although all distinguish the two questions they must answer, the majority, Justice Côté, who concurs, and Justices Karakatsanis, Gascon, and Rowe, who jointly dissent, all consider that the Panel’s decision on both must be reviewed on the same standard. The majority and the dissent opt for reasonableness, though they apply it differently. Justice Côté goes for correctness.

As Justice Moldaver notes, the Supreme Court’s earlier decisions “establish that law society misconduct findings and sanctions are reviewed for reasonableness”. [43] This is because both the elaboration of the applicable analytical framework and its application “involve the interpretation of the Law Society’s home statute” ― or, as in this case, rules enacted under this statute ― “and the exercise of discretion”. [45] While the question of “the permissible scope of [lawyers’] in-court behaviour is arguably of central importance to the legal system as a whole”, [51] it is not “outside the Law Society’s expertise”. [51] Indeed, “Law Society disciplinary panels are composed, in part, of other lawyers”. [52] Justice Moldaver also rejects the claim, advanced by a dissenting judge at the Court of Appeal for Ontario and accepted by Justice Côté, that sanctions for lawyers’ behaviour in the courtroom are different in that imposing them risks trenching on judicial independence. In Justice Moldaver’s view, this is simply not so: “a trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court”. [55]

Having established reasonableness as the standard of review, Justice Moldaver considers the arguments advanced against the framework developed by the Panel in detail. I will not describe his reasons, partly because I have little to say on their substance, and partly because this part of them alone runs for almost 60 paragraphs. What matters for my present purposes is this: on each point and sub-point, after reviewing the Panel’s decision in at most a single paragraph, Justice Moldaver gives extensive explanations of what the Panel’s decision means, and why it is appropriate. Though these explanations are occasionally couched in the language of reasonableness, there is no doubt that Justice Moldaver provides his own views on the approach to judging alleged incivility by lawyers, instead of merely ratifying the Panel’s.

As for the application of the framework to Mr. Groia’s conduct, Justice Moldaver concludes that the Panel’s  decision was unreasonable. In Justice Moldaver’s view ― explained over the course of over 30 paragraphs ―, the Panel failed to apply the test it had itself articulated, and to take into account the factors that, on its own stated approach, ought to have mattered. For Justice Moldaver, “there is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility”. [125] (Now, here’s a question: would it be good if someone could reverse the Supreme Court’s decisions when they don’t follow the Court’s stated approach?)

As already noted, Justice Côté is of the view that the applicable standard of review is correctness, because lawyers’ in-court behaviour must be subject to the ultimate control of the judiciary. She insists that

An inquiry by a law society into a lawyer’s in-court conduct risks intruding on the judge’s function of managing the trial process and his authority to sanction improper behaviour. It does so by casting a shadow over court proceedings — in effect, chilling potential speech and advocacy through the threat of ex post punishment, even where the trial judge offered the lawyer no indication that his or her conduct crossed the line. And it permits an administrative body to second-guess the boundaries of permissible advocacy in a courtroom that is ultimately supervised by an independent and impartial judge. [168]

Justice Côté agrees with Justice Moldaver on the application of the test for misconduct, and thus concurs in the result.

The dissenters, by contrast, agree with Justice Moldaver that the standard of review is reasonableness, and also that the Panel’s approach was reasonable. However, they disagree with the way Justice Moldaver applied this standard, accusing him of

fundamentally misstat[ing] the Appeal Panel’s approach to professional misconduct, and reweigh[ing] the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes this Court’s judgment for that of the legislature’s chosen decision maker. [177]

The dissent faults Justice Moldaver with being insufficiently deferential to the Panel. “[D]eference”, they write, “recognizes that delegated authorities will have greater expertise in matters under their scope of authority”, [178] and when the applicable standard of review is reasonableness, it “is not optional”. [179] In particular, “deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable”, or from “supplement[ing] the decision maker’s reasoning for the purpose of undermining it”. [180]

The dissenters “consider that Justice Moldaver reformulates” [188] the framework articulated by the Panel. As a result, they disagree with Justice Moldaver’s application of this framework too: “[i]t is not a respectful reading of the … Panel’s reasons to articulate a novel test … then fault the Panel for failing to apply it”. [199] The Panel’s decision is intelligible and defensible, and this is not a case where only one outcome could be reasonable. Indeed, such cases will be anomalies, because

[t]he existence of reasonableness review is, rather, premised on the fact that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result”. [215, quoting Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]

The dissent then describes ― at some length, and with limited reference to the Panel’s decision ― what it expects to be the pernicious consequences of the majority’s decision. The majority, the dissent fears, “sends the wrong message to those who look to this Court for guidance”. [227]

* * *

Therein, it seems to me, lies the rub. People look to the Supreme Court for guidance ― not for mere affirmation that an administrative decision-maker’s reasons were good enough and that in any event there is no right answer to the question they addressed. The whole point of having what the Constitution Act, 1867 foreshadows as a “general court of appeal for Canada” is that such an institution can explain what the law is. If such a court does not say what the law is, but only indicates that an administrative decision is within the bounds of what the law will tolerate ― without explaining where these bounds actually are ― then it is not doing its job.

It is no surprise, then, that Justice Moldaver’s reasons show little sign of deference to the Panel. What lawyers across Canada are interested in is what the Supreme Court itself thinks about their standards of conduct ― not in whether it thinks that the opinion of a single provincial disciplinary body on this subject was “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [Dunsmuir, [47]]  Indeed, the dissenters, for all the bitterness with which they chide Justice Moldaver for his failure to defer, and despite their own ostentatious display of deference, cannot help but enter the debate with their own comments about the appropriate standards of civility. If the question the Court is deciding is indeed one of central importance to the legal system, as Justice Moldaver concludes (and the dissent specifically agrees with this part of his reasons), this is entirely comprehensible.

Hence the question that, with apologies to Ronald Dworkin, I ask in this post’s title. Earlier this year, I wondered whether “the Court is growing disenchanted with deference to administrative decision-makers’ decisions on questions of law”, and perhaps even trying to kill off reasonableness review without telling anyone. The cases decided since then only provide more evidence for the proposition that the default standard of review in Canadian administrative law is disguised correctness, not reasonableness as the Supreme Court would have us believe. But perhaps the Supreme Court has a defence of  necessity to the charge of attempted murder. No court in its position could do otherwise.

Yet even if this be so, the Rule of Law issues I raised earlier do not go away. Law should be clear, and the fact of its change, transparent. The law of judicial review applied by the Supreme Court is opaque and hidden. And there is a further issue to think about: is it permissible for an apex court to apply a different law than the one it instructs other courts to apply, just because of its position within the legal system? It is, to say the least, not obvious that this is so ― which presumably is precisely why the Supreme Court engages in so much obfuscation. Once again, I conclude that it would be better ― more transparent, more conducive to the coherence of our legal system ― for the Supreme Court to (openly and publicly) abandon reasonableness review on questions of law in most or in all cases.

* * *

Groia illustrates a couple of additional problems with reasonableness review, as theorized and practised by the Supreme Court. On a theoretical level, it exposes the deficiencies in the Court’s justifications for deference, which I have already discussed at some length. Justice Moldaver explains that, while of central importance, the issue of lawyers’ behaviour is within the expertise of law society adjudicators. Indeed these adjudicators are themselves lawyers! But what, one would like to ask Justice Moldaver, are judges? Aren’t they lawyers too, and aren’t they, in principle (though, granted, not necessarily in practice) more eminent lawyers than those who sit on law society tribunals? As the dissenting opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, co-written by Justice Brown ― who joined Justice Moldaver’s majority opinion in Groia ―, and joined by Justice Moldaver himself, pointed out, “expertise is a relative concept. It is not absolute.” [84] Sometimes administrative decision-makers are more expert than courts, which might be at least a practical reason for deference ― though not a legal one, as Mark Mancini’s contribution to the Dunsmuir Decade symposium pointed out. But this justification is implausible here.

For their part, the dissenters appeal to a different justification for deference: “reasonableness review is premised” on the existence a multiplicity of possible answers to questions to which it applies. Yet, as I noted in the posted linked to in the previous paragraph, deference is the presumptive standard of review for any question concerning the interpretation of administrative decision-maker’s “home statute”, and

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible.

Indeed, the dissent’s reasoning is circular: reasonableness “is premised” on there being multiple possible answers, and since reasonableness applies, it follows that the question under review must have multiple answers.

The practical concern with reasonableness review that Groia illustrates has to do with the supplementation of an administrative decision-maker’s reasons by a reviewing court. The dissent says that Justice Moldaver is wrong to do this to “undermine” the Panel’s review. Yet one of its author’s, Justice Karakatsanis wrote, and another, Justice Gascon, joined, the majority judgment in Edmonton East, which did not so much supplement as outright made up the administrative decision in order to uphold it. Both of these positions ― no supplementation to undermine, any amount of supplementation to uphold ― seem consistent with the Supreme Court’s jurisprudence. But they are quite inconsistent with one another.

A clarification: what I’ve said above primarily concerns the first issue in Groia, that of the applicable framework. On the second one, the application of that framework, without entering into the substance of the debate between majority and dissent, and subject to my comments regarding the supplementation of reasons, I think that reasonableness is the appropriate standard of review. To me, Justice Côté’s concerns about judicial independence seem misplaced, for the reasons given by Justice Moldaver. Besides, while this case did not turn on a credibility issue, other, similar ones may well do so. How are courts supposed to engage in correctness review on that? It seems to me that the two issues in Groia should have been addressed on different standards of review. But no opinion takes that approach.

* * *

Groia provides further confirmation, if any were yet needed, that the Canadian law (if it may be called law at all) of judicial review of administrative action is in a dire state. Its theoretical foundations, which have long been weak, are being eroded decision by decision; its practical construction is falling apart. Perhaps these concerns are soon bound to be a thing of the past, as the Supreme Court’s coming review of the Dunsmuir framework simplifies what is abstruse, clarifies what is opaque, and cuts through what is impenetrable. Perhaps. But considering the confusion and the acrimony that seem to be the most remarkable features of the Court’s latest administrative law pronouncements, I suggest that you should not hold your breath.

NOTE: As some readers have pointed out, I had initially mixed up Justices Karakatsanis and Côté at one point. Correction made, and apologies!

FURTHER NOTE: It wasn’t just at one point. More corrections made.

Jousting over Jurisdiction

A summary of the Supreme Court judges’ competing views on how to assess the validity of delegated legisation

The Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, is, as Robert Leckey observed on Twitter, “[o]ne for the judicial-review nerds or junkies”. But it is also much more than that, because it a chilling reminder of what I recently called the Supreme Court’s “pro-regulatory bias“, and its resulting complacency in the face of administrative lawlessness. As I will explain shortly, there are four different opinions in the case, dealing with two different issues. In this post, I mostly review these opinions, quoting from them at some length. This will be quite long, I am afraid, due to the amount of ground to cover and to the importance of getting a sense of the judges’ thinking. I will offer my own comments separately.

The case arose out of a tragic accident. On land owned by West Fraser, a worker employed by an independent contractor “was fatally struck by a rotting tree”. [1] The provincial Workers’ Compensation Board fined West Fraser, for failing to comply with a regulation (that it had itself made in purported exercise of its authority under s 225(1) of the British Columbia Workers Compensation Act to “make regulations [it] considers necessary or advisable in relation to occupational health and safety and occupational environment”) requiring “[t]he owner of a forestry operation” to “ensure that all activities of the forestry operation are both planned and conducted in a manner consistent with this Regulation and with safe work practices acceptable to the Board.” As basis for its power to impose the fine, the Board relied on s 196(1) of the Workers Compensation Act, which authorized it to “impose on an employer an administrative penalty” for, among other things, failure to comply with the relevant regulations.

West Fraser challenged the legality of this fine on two grounds. First, it argued that the regulation with which it was said not to have complied was ultra vires the Board ― that was not authorized by the Workers Compensation Act. On this issue, the Supreme Court split 8-1: the majority upholds the regulation, though Justice Brown takes a very different approach from the majority judgment authored by Chief Justice McLachlin, and Justice Rowe is at best ambivalent; Justice Côté dissents. Second, West Fraser argued that, even if the regulation was valid, it could not be fined for breaching it, since within the meaning of the Workers Compensation Act it was, in relation to the victim, an “owner” (of the workplace), and not an “employer”. On this point (and, therefore, in the result), Justices Brown and Rowe agree with Justice Côté’s dissent.

* * *

For the Chief Justice, the approach to the question whether a regulation was authorized by the statute pursuant to which it was purportedly made is identical to that followed on any other “judicial review of the exercise of delegated administrative powers”, [8] and set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. Given the Board’s regulatory expertise, the issue is whether the impugned regulation “represents a reasonable exercise of the Board’s delegated regulatory authority”. [10] While “some” ― that would be the Chief Justice’s colleagues who disagree with this approach ― argue that the issue if one of jurisdiction, and thus under Dunsmuir the correctness standard applies, the Chief Justice takes the position that

Where the statute confers a broad power on a board to determine what regulations are necessary or advisable to accomplish the statute’s goals, the question the court must answer is not one of vires in the traditional sense, but whether the regulation at issue represents a reasonable exercise of the delegated power, having regard to those goals. [23]

In this case, the “delegated regulatory authority” is vast: “the Legislature indicated it wanted the Board to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”. [10] This “delegation of power to the Board could not be broader” [10] ― indeed, it is “unrestricted” [11] or, at least, it authorizes “any regulation that may reasonably be construed to be related to workplace health and safety”. [11]

This might be enough to uphold the regulation on the Chief Justice’s approach ― but Justice Côté, as we shall see, forces her to elaborate. The Chief Justice insists that the regulation at issue is both consistent with the purpose and “fits with other provisions of” [14] the Workers Compensation Act. And the Chief Justice invokes “two additional external contextual factors” . [19] For one thing, the impugned regulation was a “response to a concern in the province about the growing rate of workplace fatalities in the forestry sector”, and thus “a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently”. [20] For another, the Regulation is a logical extension of the owners’ existing duties. In short, even on a correctness standard, “the Regulation plainly falls within the broad authority granted” to the Board. [23]

The dissenting judges disagree with the Chief Justice’s approach. Justice Côté delivers the most sustained rejoinder. She insists that the question “whether the Board has the authority to adopt a regulation of this nature at all” “is jurisdictional in nature” [56] and so must be reviewed on a correctness standard: “[t]he Board … possesses only the authority that is delegated to it by statute”, [56] and this authority either extends to the making of the Regulation, or it doesn’t. Indeed, since it “is an unelected institution”, it is important to “ensure[] that the Board … does not aggrandize its regulation-making power against the wishes of the province’s elected representatives”. [66] Besides, unlike when it is adjudicating a dispute, an administrative decision-maker determining the scope of its regulatory authority neither possesses expertise superior to that of the judiciary, nor brings to bear policy considerations or factual understanding unavailable to the courts. And anyway, reasonableness review, which is supposed by focused on the administrative decision-maker’s reasons, can hardly be applied to rule-making decisions which the regulators need not explain: “[i]f a court does not know the reasons justifying a decision or an exercise of jurisdiction, how can it afford any deference?” [69] Justice Côté adds that the Chief Justice’s “rationale largely escapes [her]”, and her “basis for applying the reasonableness standard remains largely unexplained”. [70] The Chief Justice, she says, “has offered almost no analysis on a question that will prove to be important in subsequent cases”. [74] These are fighting words by the usually demure standards of the Supreme Court of Canada.

Justice Côté also disagrees with the Chief Justice on the merits. In her view, the impugned Regulation “impermissibly conflates the duties of owners and employers in the context of a statutory scheme that sets out separate and defined obligations for” each. [75] Consistently with the statutory purpose, set out in s 107(2)(e) of the Workers Compensation Act, to share out responsibility for workplace safety “to the extent of each party’s authority and ability”, the employers’ duties have to do with their relationship with the workers; the owners’, with the employers. They are “separate silos of responsibility”, each actor being assigned that part of the overall task of protecting workplace safety that it is “in the best position to assume”. [83] The impugned Regulation forces owners to micro-manage workers, taking up a role which the Workers Compensation Act instead assigns to employers, and is thus inconsistent with the statutory scheme and purpose. Although its powers are broad, the Board cannot do such a thing: “[o]therwise, there would be no functional limit on the Board’s ability to enact regulations … in some way connected to some abstract vision of occupational health and safety”. [87] Regardless of what might have prompted the Board to regulate in the way it did, it lacked the authority to do it.

Justice Brown also insists on correctness review for the validity of the Regulation. The matter, in his view too, is one of jurisdiction, and Dunsmuir requires the courts to provide their own answers to truly jurisdictional questions. Like Justice Côté, Justice Brown faults the Chief Justice for her “inadequate” response that “elide[s]” the issue. [113] For Justice Brown,

a central judicial function is to ensure that statutory delegates such as the Board act only within the bounds of authority granted to them by the legislature. … Public power must always be authorized by law. It follows that no statutory delegate, in enacting subordinate legislation (that is, in making law), may ever exceed its authority. The rule of law can tolerate no departure from this principle. [116; emphasis in the original]

The substantive reasonableness of a regulation, by contrast, is not a matter for the courts. Provided that the regulation was authorized by statute and not made oppressively or in bad faith, the courts should not interfere. All that said, on the merits, Justice Brown concurs with the Chief Justice. In a single sentence, he concludes that the grant of regulatory authority in the Workers Compensation Act “is sufficiently broad to support” [121] the impugned Regulation.

For his part Justice Rowe professes to “concur with [the Chief Justice’s] analysis”, [128] but only with the proviso that it be split into two parts: first a jurisdictional analysis (which presumably is to be approached on a correctness standard, following Dunsmuir); and then “a substantive inquiry into the exercise of the grant of authority” [127] and its consistency with the purpose of the statute. While Justice Rowe is of the view that the Chief Justice undertakes both of these steps, the second, as I indicated above, is largely if not entirely a response to Justice Côté. Justice Rowe’s agreement with the Chief Justice is thus more apparent than real. He also makes a point of hitting out at “one of the myths of expertise that now exist in administrative law”, [129] arguing that “‘working day to day'” to apply a statutory regime “does not” “give [administrative decision-makers] greater insight into statutory interpretation, including the scope of jurisdiction, which is a matter of legal analysis”. [129]

* * *

The second issue, recall, is whether the Board was entitled to fine West Fraser under a statutory provision that authorizes the imposition of penalties on “employers” who do not comply with regulations. Here, there is no overt dispute about the standard of review: the Chief Justice finds, and Justice Côté (with whom Justices Brown and Rowe agree) “assume[s]”, [95] that provincial legislation imposes patent unreasonableness as the applicable standard.

The Chief Justice finds that to read “employer” as extending to an owner is not patently unreasonable. To be sure, the alternative opinion is “plausible”, [37] but there are also arguments in support of the “broader” view, “one more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] Since West Fraser “employed persons to carry out the duties imposed by” the Regulation, [38] ― and indeed it had, to being a corporation ― it was an “employer” as well as an “owner”. Moreover, “[t]he general scheme of the [Workers Compensation] Act is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety”. [43] Since West Fraser “had sufficient knowledge and control over the worksite in question to render it responsible for the safety of the worksite”, [47] penalizing for the safety shortcomings was reasonable.

Justice Côté sees things differently. Patent unreasonableness is a deferential standard of review, “but there are some interpretations of law that are so far beyond the pale that they cannot be permitted to stand”. [107] The statute carefully distinguishes the roles of owners and employers, and it is impossible to read a provision that only applies to one of these roles as applying to the other too. Although the same entity may play both roles in a given situation, the penalty applicable to the breach of obligations associated with one is not applicable to the breach of those associate with the other. When the legislature wanted to speak more broadly, it used the word “person” rather than the specific terms “owner” or “employer”; the Chief Justice’s “reasoning in this case effectively rewrites” [102] the Workers Compensation Act, undoing legislative choices to uphold “an unbounded interpretation” [104] by the administrative decision-maker. It is not enough, Justice Côté adds, to point to the general purpose of the statute to uphold this interpretation:

The legislature may have intended to pursue that purpose, but it did so through limited means … To hold that any interpretation that the Tribunal views as advancing the goal of health and safety can survive patent unreasonableness scrutiny would render judicial review meaningless. [107]

* * *

There is a lot to chew on here, and I will mostly do so in two upcoming posts. In the first one, I will focus on the substance of the case ― the various views on the proper approach to determining the validity of a regulation, the validity of the Regulation in this case, and the reasonableness or otherwise of the fine imposed by the regulator. (Spoiler alert: to, I suspect, nobody’s surprise, I mostly agree with Justice Côté.) In the second post, I will take a step back, and discuss the broader issues having to do with the relationship between the Supreme Court and the administrative state.

Setting the Story Straight

History, Originalism, and the Supreme Court’s decision in Comeau

Over at the historical blog Borealia, Bradley Miller ― no, not that Bradley Miller ― has a post defending the treatment of history in the Supreme Court’s recent decision in  R v Comeau, 2018 SCC 15. Professor Miller argues that, contrary to what I said in my own comment on Comeau, to which he refers a number of times,

the courts took history and historical evidence and inquiry seriously in Comeau. In fact, historical analysis was central to the case against Comeau’s right to bring beer over the provincial boundary.

Professor Miller also suggests that Comeau illustrates the difficulties that would arise out of attempts to apply originalist methodologies to the interpretation of Canada’s constitution. With respect, I think Professor Miller misunderstands my criticisms of Comeau, which have to do not with the substantive outcome but with the way in which the Supreme Court treated historical evidence. As for Professor Miller’s critique of originalism, it reprises arguments that were made 35 years ago in the United States ― and addressed by the development of originalist theory since then.

Regarding substance, I am obviously not well positioned to debate Professor Miller’s assessment of what he describes as the “two very different versions of history [that] emerged from two historians involved in the litigation”, one presenting Confederation as a triumph of economic liberalism, the other emphasizing more cautious views among the framers of the Constitution Act, 1867. I am tempted to say that, even if the Fathers of Confederation endorsed international protectionism and government intervention in the economy, that doesn’t really dispose of the question of their intentions as to non-tariff barriers to inter-provincial trade. Practical politicians rarely hold fully consistent views, and at least today many would distinguish ― however little basis there may be for this distinction in economic theory ― barriers to trade across and within international borders. But perhaps things were different in 1867.

Be that as it may, though Professor Miller says that “[a]t the Supreme Court, the justices preferred the latter [i.e. more nuanced] view” of the Fathers’ attitudes to free trade, there is little basis for this claim in Comeau. The Court (or, likely, Chief Justice McLachlin) says that “the historical evidence, at best, provides only limited support for the view that” section 121 of the Constitution Act, 1867, the provision at issue, “was meant as an absolute guarantee of trade free of all barriers”. [67] But the Court never actually refers to the evidence on the other side of this debate, even though, as Professor Miller points out, this evidence was submitted to the Court’s attention by the Attorney-General of Alberta’s factum. [16]-[20] (I don’t agree with Professor Miller that these five paragraphs are “central” to the factum, but they are certainly there.)

If anything, this choice to ignore historical evidence that arguably supported the Supreme Court’s conclusion reinforces my view that Comeau was dismissive of history’s value to constitutional adjudication. In other cases, the Supreme Court is eager to seize on such evidence, for example by directly quoting the framers of the constitutional provisions at issue and the documents that reveal their plans and intentions. In Comeau, by contrast, the Court does no such thing. The other ways in which the Court is disparaging towards historical evidence is its insistence that such evidence, unlike that drawn from the social or health sciences, cannot justify reconsideration of precedent, and its aversion to the use of historical expert evidence.

Ultimately, as I argue in my Comeau comment and also in a response to some of my fellow-critics, the Supreme Court’s decision is driven by a conviction that a federalism where internal barriers to trade arising out of provincial regulation are pervasive is the right sort of federalism. The Court does not defend this conviction on historical grounds; it just says that that’s what federalism means. Thus I do not think that “historical analysis was central” to Comeau. Perhaps an opinion focusing on the evidence to which Professor Miller refers and reaching the same outcome the Court reached could have been written. But the point is that it wasn’t. History, in Comeau, is neither the main character nor even a supporting one; it is an adversary to be neutralized and dispatched before moving on to the more important business of constitutional policy-making.

As for Professor Miller’s comments on originalism, they are even less convincing than his defence of the Supreme Court’s reasoning in Comeau. Professor Miller describes originalism as “a technique which is often a tool of social conservatives seeking to squash rights for women, LGBT people, and others, and very uncommon in Canadian constitutional cases”. His evidence for this condemnation? Why, a link to one of Sean Fine’s “Tory judgesscreeds ― this one, ironically, decrying the appointment of Justice Bradley Miller to the Court of Appeal for Ontario. Professor Miller also informs us of “the challenges that originalists face in trying to document a singular and enforceable original intention or original meaning in a document that was as much-Fathered as the [Constitution Act, 1867]”, of his belief that the Fathers of Confederation might not have wanted originalism to be the methodology used to interpret the constitution they created, and of the danger “that this methodology might leave judges needing a resident historian to co-preside on the bench in constitutional cases”. The living constitutionalist “methodological status quo” serves Canadians just fine, Professor Miller concludes ― and those who disagree should just think about the goings-on south of the border “over the last year and a half”.

The suggestion that originalism is somehow responsible for the misery of the Trump presidency ― the prospect of which was denounced by many prominent originalists ― is, to put it as politely as I can, puzzling. But Professor Miller’s other critiques of originalism are not much better. He ignores the existence of originalist arguments in favour of marriage equality and against sex discrimination, among other progressive causes, in the United States, and of Kerri Froc’s feminist originalism in Canada. He also ignores the fact that so-called “new originalism”, focused on the public meaning of constitutional texts rather than the intentions of their authors, developed (starting in the late 1980s!) precisely in response to criticism about the impossibility to ascertain the joint intention of multiple authors who may or may not themselves have been originalists. (Professor Miller might be suggesting that a “much-Fathered” text cannot even have a “singular original meaning” ― but the fact that he also seems to think that he understands the Comeau judgment, ostensibly the joint product of nine fathers and mothers, rather detracts from whatever strength that criticism might otherwise have had.) As for courts needing resident historians ― the Supreme Court in Comeau says that it can do the job without professional assistance, and of course it is managing to dabble in social and health sciences without resident experts. Last but not least, Professor Miller should know, having linked to Benjamin Oliphant’s and my article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, that the claim that originalism is “uncommon” in Canada, and living constitutionalism is the secure status quo, is simply false. The use of originalist reasoning is pervasive, albeit also erratic, in the Supreme Court’s decisions.

Whether or not the Supreme Court’s decision in Comeau is consistent with the best evidence of the original public meaning of section 121 of the Constitution Act, 1867, any such consistency is accidental, rather than the result of serious engagement with the evidence. Unlike many of the Supreme Court’s recent decisions, Comeau is a living constitutionalist, policy-driven decision that accords little importance to history, and as such, it is a poor foundation for any conclusions about the feasibility or soundness of originalist constitutional interpretation. Unpersuasive arguments against originalism, which ignore the developments in originalist theory over the last decades, are sadly not uncommon. Yet if we are to develop something better that what Mr. Oliphant and I described as “a buffet-line approach to interpretation, unfettered by standards for the principled application of the interpretive methods available”, we must begin by understanding the different options on the menu. Perhaps, having done so, we will conclude that originalism is not the right choice. But we cannot come to this conclusion on the basis of outdated clichés and persistent misunderstandings.

La Cour, c’est qui?

Peter McCormick identifies the likely author of the “by the Court” opinion in Comeau

Peter McCormick, University of Lethbridge

The Supreme Court’s recent decision in Comeau has definitely put the judicial cat among the federalist pigeons.  At first glance – we have all seen the headlines – the case is about bringing cases of cheap beer into New Brunswick (“Free the Beer!”).  On a closer look, the already enfeebled Section 121 of the Constitution Act 1867 has been effectively gutted, taking with it any realistic prospect of a major shift toward greater intra-Canadian free trade.  Along the way, the sort of trial judge’s revisiting of precedent that was so highly lauded in Bedford has been severely chastised.  An interesting case, therefore, on several levels.

The decision took the somewhat infrequent form of a “By the Court” judgment – one that is both unanimous and anonymous – which arguably makes it more emphatic while coyly veiling the identity of the judge who did the drafting.  But the curtain of anonymity can be brushed aside to identify the lead author, or at least to establish solid relative probabilities.  That identity will come as no surprise, but the methodology I will describe takes it some distance beyond simple conjecture.

That methodology is function word analysis.  Function words are the words that express grammatical or structural relationships between other words (prepositions, pronouns, determiners, conjunctions, auxiliary verbs and particles), as distinct from the content words (nouns, adjectives, verbs and adverbs) that convey more concrete meaning.  Function words are the words that everybody uses, but different people use with different frequencies and proportions, so much so that these frequencies and proportions provide a literary fingerprint.  There are about 300 function words in the English language; my more focused function word list is drawn from the literature, and modified to reflect the actual usages of the Supreme Court over the last twenty years.  It involves the 44 most frequently used function words, some of which are totals for related words such as “a” and “an”, or the different tenses of common auxiliary verbs like “to be” or “to have” or “to do”; together, these words accounted for a rather remarkable 40% of the total word count – overall and for every one of the judges.  This was used to generate a word-usage profile from the written reasons attributed to each judge, and these in turn can be compared with the parallel profile of any specific anonymous decision.  (The logic and procedures of the methodology are described at length in my article in the Dalhousie Law Journal.[1])  The point is to calculate a “Similarity Index”, summing for the 44 words the absolute value of the differences between that judge’s word-use frequencies and those that appeared in Comeau.  The lower the score, the more likely it is that the particular judge was the lead writer.

Language is a possible problem – because counting words within even a superbly translated version will tell us as much or more about the translator than about the original writer – but the Supreme Court Reports assures us (by describing the English reasons as “the judgment” and the French reasons as the “version francaise”) that the original language of the Comeau decision was English.  This also limits the number of “suspects” for the lead writer; I am assuming that Gascon and Cote would have written in French, such that the French language text would have been “le jugement,” and the English language text the “English version”.

Quotations are also a problem – extensive direct quotations distort the word counts by reflecting the usage patterns of the quoted writer, rather than those of the immediate writer.  My solution is to delete all direct quotations from the examined text.  Some Supreme Court justices quote very extensively, to such an extent that quotations can make up a quarter or more of the total word count.  For the Comeau decision this proved to be a negligible factor, reducing the word count by less than 4%.  As I will indicate below, this unusually low quotation count is itself a pointer to the identity of the lead writer.

Law clerks can be a problem, because they may have contributed early drafts for at least the more routine parts of the judgment.  My solution was to eliminate these more routine parts (the introduction, the background, the decisions of the lower courts) and focus only on the much longer analysis section.  This further reduced the word-count by about 20%, but it left 11,000 words and this is easily enough for the function word analysis to operate with credibility.

An adequate comparison basis is a problem; both Brown and Rowe have been appointed recently enough, and have had such a limited opportunity to write judgments or minority reasons, that there is not a large enough body of words to provide a reliable basis for comparison.  Seniority is a large enough factor in decision assignment generally, especially for major cases and especially for constitutional cases, that it would in any event have been unlikely that either of these more junior members of the Court would have been doing the lead writing.

Finally, the “circulate and revise” process pursued by the Supreme Court can be a problem.  All indications are that the other members of the panel take this very seriously, such that the lead writer’s initial draft can undergo significant revision as a result.   My “fingerprint” metaphor above should be qualified to recognize that what is available for analysis may be a smudged rather than a perfect fingerprint.  However, checking results back against the handful of By the Court decisions whose authors have actually been identified in judicial biographies has validated the methodology even for reasons that are described as having undergone major revisions. (Most dramatically, it revealed the “did not participate” Le Dain as having been the initial lead author of Ford and Devine, a finding that has been confirmed by both the Dickson biography and a recent CBC radio documentary).

Running this process for the Comeau decision, restricting the enquiry to the five senior judges who normally write in English, yields the following results:

Judge Similarity Score
McLachlin CJ 8.03
Abella 8.94
ALL JUDGES 8.95
Karakatsanis 9.64
Moldaver 10.17
Wagner 11.76

Lower scores pointing to a more likely author, function word analysis points to McLachlin.  Readers may initially be disappointed because the spread between individual judge’s scores are modest, but the tug of ingrained writing habits makes this meaningful.  A smoking gun this may not be, it provides a rank ordering for the likelihood of lead authorship, and McLachlin is clearly indicated.

Moreover: the middle row in the table is significant in way that allows us to ratchet up the language with which to describe the findings.  This provides the similarity score the word by comparison with an all-judge figure based on a combined total of four million words over a twenty-year period.  Karakatsanis, Moldaver and Wagner are less like Comeau than is that all-judge figure; McLachlin – and only McLachlin – is significantly closer to Comeau than is the all judge figure.  This makes the findings more decisisve than might have appeared at first glance.

Further: I mentioned earlier that eliminating direct quotations from Comeau reduced the total word count by only about 4%.  For the McLachlin Court’s constitutional cases more generally, the average figure for such quotations was 13.5%.  But this, too, is a distinctive and persisting characteristic of individual judges:  some quote extensively and some do not.  Abella, for example, frequently uses direct quotations, accounting for fully one-quarter of the words in her constitutional decisions, almost double the average.  McLachlin, however, does not; direct quotations account for only 6.5% of the total words in her numerous constitutional decisions, less than half the all-Court average.  This reinforces the suggestion of the similarity scores that McLachlin is the most likely lead writer of the Comeau judgment.

It is somewhat frustrating that one can create a large data-base, run detailed calculations, generate complex indices – and then wind up with a conclusion that simply confirms what was the most obvious guess from the beginning.  (Who needs science when hunches work so well?) Beverley McLachlin has led the Court for almost 20 years, longer than any other Chief Justice in the Court’s history.  During that time, she has delivered a disproportionate share of the Court’s constitutional decisions, and this statement remains true even if one pro-rates the counts to accommodate the fact that no other member of her Court has served the full eighteen years.   Comeau is one of the last major constitutional decisions with which she will have been involved, and arguably the most significant federalism case of her Chief Justiceship; if there is any surprise, it is that she chose to write behind the veil of “By the Court” rather than over her own name.

[1] Peter McCormick, “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?” Dalhousie Law Journal, Vol. 39 (2016) 77