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

Comeau’s Lesson

It’s not that the courts have generally messed up Canadian federalism, still less that they should improve it

The Supreme Court’s decision in R v Comeau, 2018 SCC 15, which eviscerated section 121 of the Constitution Act, 1867 to uphold the power of the provinces to impose barriers to inter-provincial trade (so long as they are “rationally connected” to some real or made-up regulatory objective) has been sharply and almost universally criticized. Indeed, I can’t recall another decision of a court that, according to more than a few Canadian lawyers, can do virtually no wrong, that was met with such widespread disapproval. But, though I too have argued that Comeau was wrongly decided and very poorly reasoned, I would like to push back against a view expressed by some of my fellow critics, especially by Emmett Macfarlane in Maclean’s, that not only Comeau, but the broader Canadian federalism jurisprudence is fundamentally wrong.

Professor Macfarlane argues that this jurisprudence distorts “the obviously centralized constitutional design implemented in 1867”. He writes that

past courts … trampled over the written text and intent of the framers to dramatically broaden the powers of the provinces while artificially narrowing relevant federal provisions like the trade and commerce clause. … [L]ongstanding federalism jurisprudence … is … a product of judicial invention rather than a reflection of the constitutionally established powers.

Professor Macfarlane also faults the Supreme Court for “abandon[ing] its famous ‘living tree’ metaphor to treat ancient federalism precedent as inviolable.” Philippe Lagassé, paraphrasing Craig Forcese, similarly writes that “it’s hard not to notice that the [Supreme Court] is encasing Canadian institutions in amber”.

With respect, I think that these critiques are largely misguided. Canadian federalism jurisprudence is far from perfect, and I have criticized it from time to time, but it does not merit wholesale condemnation. It is important to distinguish among the multiple issues that arise under the general label of federalism. Failures to deal with some of them do not negate successes in other areas. And it is important not to lose sight of the courts’ task in enforcing a federal distribution of powers ― or, for that matter, any kind of entrenched constitutional provisions: not to make federalism great again, let alone the best it can be, but to give effect to the arrangements arrived at by political actors in the past (and susceptible of revision by political actors in the future).

One kind of issues that courts applying a federal constitution must address has to do with the interpretation of the heads of power it assigns to one or the other level of government. In Canada, these are mostly, though not exclusively, found in sections 91 and 92 of the Constitution Act, 1867, and much of the groundwork of interpreting them was done in the first decades after Confederation by the British judges sitting as the Judicial Committee of the Privy Council. It is a venerable Canadian tradition, going back to FR Scott and even earlier scholars, to attack these judges ― pausing only to fawn over them for their decision in the “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), from which the “living tree” metaphor is drawn.

For my part, however, I do not agree that they somehow distorted the Constitution Act, 1867. As Benjamin Oliphant and I explain in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, their interpretation of sections 91 and 92 was based on the public meaning of these provisions at the time of their enactment. It also took into account the most obvious, and distinctive, fact about the distribution of powers in Canada: that the powers of both orders of government are set out in the Constitution Act, 1867 (in contrast to the United States, and also Australia), and thus must be read together so that all can be given effect. The oft-heard complaint about the courts’ narrow reading of the federal “trade and commerce” power ignores  the existence of both the provincial power over “property and civil rights”, and of other federal powers, such as “banking” and “bankruptcy and insolvency”, which a broad reading of “trade and commerce” would render nugatory. Without going into more detail, I remain of the view that the interpretive part of the Canadian federalism jurisprudence is mostly, if not entirely, satisfactory. It is, moreover, a good thing, not a bad one, that the Supreme Court has resisted the temptation of re-writing these precedents in the name of the living tree; absent a showing, such as one that was made in Comeau, that they were at odds with the original public meaning of the Constitution Act, 1867, their endurance is cause for celebration.

The second type of federalism issues involves the drawing of the boundaries between the powers attributed to the two levels of government. These can overlap, even if they are interpreted in a way that accounts for the distribution and so reduces the overlay to some extent. Doctrines like federal paramountcy, inter-jurisdictional immunity, double aspect, and co-operative federalism determine, for example, whether the courts will conclude that a federal and a provincial law that are plausibly within the respective powers of the legislatures that enacted them are in conflict, and what happens if they are. The Constitution Act, 1867 bears on these questions, but only to some extent, so that the courts have mostly operated without textual guidance in this area.

Many of the rules the courts have developed are of more recent vintage than the interpretations of the heads of powers in sections 91 and 92 ― and of lesser quality. Since I started blogging (and it’s only been a little over six years), I have had occasion to denounce the Supreme Court’s paramountcy jurisprudence, as well as the uncertainty surrounding the doctrine of inter-jurisdictional immunity and the Court’s attempt to freeze it. Meanwhile, in an important recent article, Asher Honickman has criticized the Supreme Court for abandoning the textually-required exclusivity of the federal and provincial heads of power. Both Mr. Honickman’s criticisms and mine, as well as a noticeable part of the invective directed at the Supreme Court in the aftermath of Comeau, has to do with the Court’s embrace of the concept of “co-operative federalism”, which seems to be based on the idea that the more regulation there is, the better off we are. The court has sometimes tried to rein in this idea, notably in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, where it rejected Québec’s attempt to force the federal government to hand over the data from its defunct gun registry. But, as Comeau demonstrated, co-operative federalism keeps coming back to haunt its jurisprudence.

There is, I think, a third category of federalism issues ― those that have to do with the general implications of this principle, as implemented in the Constitution Act, 1867 and other constitutional provisions. It encompasses cases such as Hodge v The Queen, (1883) 9 App Cas 117Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] AC 437, to some extent the Labour Conventions Reference, [1937] AC 326, [1937] 1 DLR 673, and more recently cases concerning constitutional amendment, including the Reference re Secession of Quebec, [1998] 2 SCR 217. In various ways, these cases hold that provinces are autonomous political communities and not mere components of the Canadian whole. This conclusion is an inference from the history and text of the Constitution Act, 1867. Perhaps the inference is wrong. All I can say here in its defence is that it is not enough to point to John A. Macdonald’s hope that provinces would in due course become no more than glorified municipal governments, if not wither away. Macdonald had initially hoped for a legislative union instead of a federal one. He lost that all-important fight, and the federation created by the Constitution Act, 1867 did not reflected the vision of Macdonald alone. To be sure, a federation without economic union may have been of little use; but a federation without meaningfully autonomous provinces would have been impossible.

Balancing these two considerations is no doubt exceedingly difficult ― but, fortunately, it is usually not the courts’ job. For the most part, it is the framers of the Constitution Act, 1867 (and its amendments) who did it when they distributed powers between Parliament and the provinces. They were, on the whole, remarkably successful, though of course, that’s not to say that they got everything right, still less that what was right in 1867 is also right a century and a half later. But, right or wrong, the Constitution Act, 1867 is the law, the supreme law of Canada, and the courts must enforce it to the best of their ability ― not re-write it. As the one British judge for whom Canadian lawyers usually profess admiration, Lord Sankey LC, wrote in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58, that

[t]he process of interpretation [of the Constitution Act, 1867] as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR 65)

Thus, when they adjudicate, the courts’ task is usually to ascertain what the framers of the Constitution Act, 1867 did. They do not need to update the balance between centralization and decentralization, between union and autonomy, from case to case. Nor have they the authority to try.

The problem with Comeau is that the Supreme Court made the attempt. According to the classification I sketched out in this post, the main question in Comeau was of the first, interpretive type (albeit that it concerned a limitation on, not a grant of, legislative powers). Had the Court got the interpretation right, it would have had to deal with additional questions belonging to the second, line-drawing, category. Comeau was not a case of the third type, and the Supreme Court erred in treating it as such. One of the rare defenders of Comeau, the usually very astute Chantal Hébert, makes the same mistake in her column for The Star. In her view, the case was “a timely reminder that Constitution does not cast the provinces as junior partners of a unitary federation”. Perhaps that’s how the Supreme Court saw it, but it’s not what the legal issue was.

Yet regrettably, many of Comeau‘s critics too seem to be taking the wrong lesson from it. They want the Supreme Court to remake Canadian federalism in the name of the “living tree” or of the desire which, Andrew Potter tells us, Canadians feel for an ever closer union. To ask the Court to remake the law in this way is only to encourage further mistakes in the future. To be sure, some corrections are in order, mainly in the realm of doctrines operating at the boundary of federal and provincial jurisdictions. But they would involve, in Mr. Honickman’s words, “getting back to the constitutional division of powers” laid down in 1867 ― not updates in the service of economic policy or nation-building. If such updates are necessary, they must be carried out by politicians following the procedures provided for constitutional amendment, not judges. What Comeau teaches us is not that our federalism jurisprudence as a whole is hidebound or perverse, but that the Supreme Court should stop playing constitution-maker’s apprentice and stick to enforcing the law.

Unmaking History

In the “free the beer” case, the Supreme Court shows ― again ― that it is the spoiled child of the Constitution

When it accepted to pronounce on the constitutionality of non-tariff barriers to inter-provincial trade, the Supreme Court had a chance to make history. In R v Comeau, 2018 SCC 15, the Court chose to unmake it instead. Far from “freeing the beer” and invalidating legislation that prevents bringing booze from one province to another and other regulatory schemes built on provincial protectionism, Comeau countenances even restrictions on inter-provincial trade that would previously have been thought flatly unconstitutional. In the process, it tramples over constitutional text and history, as well as logic.

Section 121 of the Constitution Act, 1867 provides that “[a]ll Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces”. But free of what exactly? Of any and all regulation, or of just some particular kinds? In Gold Seal Ltd v Alberta (Attorney-General),  (1921) 62 SCR 424, the Supreme Court held that “free” meant “free from tariffs”. In Comeau, it was asked to revisit this holding. As the Court ― its members evaded responsibility for their (mis)judgment by attributing it to the institution, though I am looking forward to Peter McCormick or someone else exposing the true author(s) ― notes, this question is of the highest importance:

If to be “admitted free” is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast. Agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid. [3]

* * *

Before answering the interpretive question, however, the Supreme Court addresses a different one: whether the trial judge was entitled to depart from Gold Seal to hold that s. 121 applied to non-tariff barriers to inter-provincial trade. The judge had taken up the Supreme Court’s invitation, issued in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, to revisit precedent in light of newly available evidence. In Bedford and Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, which dealt with the constitutionality of the provisions of the Criminal Code relative to prostitution and assisted suicide respectively, the evidence that was held to allow lower courts to revisit Supreme Court precedent came mostly from the social sciences. In Comeau, the trial judge relied on new historical evidence about the context and original meaning of s. 121.

This, the Supreme Court insists, was not something that Bedford authorizes. Bedford “is not a general invitation to reconsider binding authority on the basis of any type of evidence”. [31; emphasis mine] What is required is a showing “the underlying social context that framed the original legal debate is profoundly altered”, [31] triggering the applicability of the Court’s “living tree” approach to the constitution. Historical evidence, which the court derides as “a description of historical information and one expert’s assessment of that information”, does not count: “a re-discovery or re-assessment of historical events is not evidence of social change”. [36]

In conversation with Maclean’s, Carissima Mathen said the Court “essentially chastised the trial judge for going beyond his authority, in terms of feeling free to disregard this older decision”. Were she less polite, prof. Mathen could have described the Supreme Court as delivering a benchslap to the trial judge, at once gratuitous and telling. Gratuitous, because this part of the Court’s reasons is, in my view, obiter dicta ― it is not part of the reasoning that’s necessary to the decision, which is based on the court’s own re-examination of the constitution and relevant precedent (including, as we’ll see, a departure from Gold Seal). Telling, because the disparagement of history is of a piece with the Court’s broader approach to the constitution, on which more below.

Embarking on its own analysis of s. 121, the Court repeats that a robust reading of this provision would call into question much existing regulation. But, it concludes, such a reading is not required. The constitutional text is “ambiguous, and falls to be interpreted on the basis of the historical, legislative and constitutional contexts”, [54] ― though it is mostly the latter that does the work in the Court’s reasons.

Historical context, in the Court’s view, is inconclusive, because different visions of what form of economic union Confederation would implement were presented by the political actors at the time (none of whom the Court actually quotes). Although it duly notes that “in drafting s. 121, [the framers of the constitution] chose the broad phrase ‘admitted free’ rather than a narrower phrase like ‘free from tariffs'”, [64] the Court insists that “[w]e do not know why they chose this broader, and arguably ambiguous, phrase”, [64] and concludes that “the historical evidence, at best, provides only limited support for the view that ‘admitted free’ in s. 121 was meant as an absolute guarantee of trade free of all barriers”. [67; emphasis in the original]

This is bizarre. Surely we can tell that, if the framers were consciously choosing between a narrower and a broader versions of a constitutional ban on barriers to trade, they chose the broader because the narrower did not capture all the barriers they meant to prohibit. As Benjamin Oliphant and I explain in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, the Supreme Court is no stranger to the “originalist inference” ― reasoning from a choice made during the framing of a constitutional text between competing proposed versions of a provision. The inference seems obvious here, but the Court avoids it. Even more remarkably, the Court also ignores the injunction in Bedford that appellate courts are not to re-assess “social and legislative evidence”, [49] including expert evidence, presented at trial. While the wisdom of this injunction is highly questionable, the Court is, admittedly not for the first time, simply ignoring relevant precedent, without bothering to either distinguish or overrule it.

The “legislative context” that the Court refers to is the placement of s. 121 in a Part of the Constitution Act, 1867 that largely deals with financial issues. The Court considers that  its other provisions “attach to commodities and function by increasing the price of goods”, suggestion that s. 121 does not “capture merely incidental impacts on demand for goods from other provinces”, rather that “direct burdens on the price of commodities”. This might be the Court’s best argument, though it may also be that, as the trial judge found, s. 121 was put where it was simply because this was as good a place as any other in the Constitution Act, 1867. Be that as it may, the Court itself does not seem to attach all that much importance to its conclusion on this point.

The heart of the Court’s reasoning is its discussion of the principle of federalism, which it finds to have two implications of particular relevance to the question of the constitutionality of barriers to inter-provincial trade. One is the exhaustiveness of distribution of powers between Parliament and the provinces. The other is the idea of a balance between the powers of the two levels of government ― and the Court’s role in maintaining that balance. As to the former, the Court insists that there must be no “constitutional hiatuses — circumstances in which no legislature could act”. [72] For any given policy ― including the imposition of barriers to inter-provincial trade ― there must be a level of government competent to enact it, alone or at least in “co-operation” with the other. As to the latter, the Court quotes F.R. Scott for the proposition that “[t]he Canadian constitution cannot be understood if it is approached with some preconceived theory of what federalism is or should be”, [82] and insists that, rather than “a particular vision of the economy that courts must apply”, federalism “posits a framework premised on jurisdictional balance that helps courts identify the range of economic mechanisms that are constitutionally acceptable”. [83]

Here, the Court contradicts both the constitution and itself. Constitutional hiatuses are not anathema to federalism. They exist: in section 96 of the Constitution Act, 1867 (which limits the powers of both Parliament and the legislatures to interfere with the independence and jurisdiction of superior courts); in sections 93(1) and (2) (which limit the provinces’ ability to interfere with minority rights in education, without allowing Parliament to do so); and, even on the Court’s restrictive reading, in s. 121 itself. And then, of course, there is the giant constitutional hiatus usually known as the Canadian Charter of Rights and Freedoms, as well as the smaller but still significant one called section 35 of the Constitution Act, 1982. As for the court’s disclaimer of authority and desire to impose a particular vision of federalism or the economy, it is simply laughable. The idea that federalism requires judicially-imposed “balance” rather than the respect of the letter of the constitution, and any conceivable form of economic regulation must be able to be implemented are precisely the sort of preconceptions that the Court pretends to banish from our constitutional law.

Oblivious to its own incoherence, the Court claims that federal balance would be undermined, and a “constitutional hiatus” created, by an overbroad interpretation of s. 121. Instead of “full economic integration” [85] or “absolute free trade”, the Court propounds what it presents as a compromise:

s. 121 … is best conceived as preventing provinces from passing laws aimed at impeding trade by setting up barriers at boundaries, while allowing them to legislate to achieve goals within their jurisdiction even where such laws may incidentally limit the passage of goods over provincial borders. [91]

The notion of impediment to trade is seemingly a broad one, extending to any provincial law that “imposes an additional cost on goods by virtue of them coming in from outside the province”, [108] or indeed bans inter-provincial importation outright. But, crucially, only laws “aimed at” creating such impediments are prohibited by s. 121, and this will be an extremely narrow category. In effect, it seems that only laws serving primarily “purposes traditionally served by tariffs, such as exploiting the passage of goods across a border solely as a way to collect funds, protecting local industry or punishing another province” will count ― and even that “depending on other factors”. [111] A law having a “rational connection” [113] to some other regulatory purpose, such as “protecting the health and welfare of the people in the province”, [112] or most any other conceivable regulatory objective, will survive. The law at issue survives because it is part of a regulatory scheme intended “to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick”. [124] Its effects on inter-provincial trade in liquor coming to New Brunswick are merely “incidental”, and constitutionally permissible.

This is wrong in many ways. As a starting point, the Court is answering the wrong question. The issue is not how s. 121 is “best conceived”, but what its purpose is, and how that purpose can be given effect. As Randy Barnett and Even Bernick write in a their essay on purposive constitutional construction (which I reviewed here),

[t]o formulate a rule with reference to the function that the relevant provision is designed to perform is not a matter of making the law “the best it can be” but giving effect to the law as best one can. A judge who decided a case on the basis of some other reason—however normatively appealing that might seem—would be departing from the law entirely. (27)

Second, the Court is wrong to claim that its approach to s. 121 is consistent with precedent. However narrowly it construed s. 121, Gold Seal at least maintained an outright prohibition on inter-provincial tariffs. Following Comeau, tariffs are fine ― provided that they are rationally connected to some regulatory scheme that can be spun to appear to be directed a public health and welfare objective. So much for stare decisis. Most importantly though, as Malcolm Lavoie points out in a CBC op-ed, the Court’s “approach practically nullifies Section 121”, because legislation primarily intended to deal or interfere with inter-provincial trade is already something that provinces cannot enact ― if anyone can, it is Parliament, under section 91(2) of the Constitution Act, 1867. (Professor Lavoie, it is worth noting, is the author of the most important article on the Comeau litigation, which the Court ignored, as it ignored all other scholarship touching on the case, as well as recent work on constitutional interpretation more broadly).

* * *

What causes the Court to re-write the Constitution Act, 1867 (while insisting that it is not making a policy decision), ignore precedent (while admonishing the trial judge for doing so), all in the name of a quest for a federal balance that it is quite different from the one the framers of the constitution struck (while denouncing the imposition of pre-conceived notions of federalism)? Emmett Macfarlane, writing for Maclean’s, denounces Comeau as “craven”, the result of “politicized timidity”. He is not wrong about this (though I think he is in his general denunciation of the federalism jurisprudence), but let me be more specific. In my view there are two (loosely related) problems with the way the Court decided Comeau: its pro-regulatory bias, and approach to constitutional interpretation.

The Court’s bias in favour of regulation appears in the introduction of both the decision as a whole (at [3], quoted above) and that of the substantive part (at [51], in similar terms). The Court is preoccupied by the fact that s. 121 might prevent the enactment of some forms of regulation. It is this, rather than the more general notion of “constitutional hiatuses” that leads it to narrow s. 121 into oblivion. As noted above, hiatuses exist, and the Court is actually quite fond of expanding them, s. 96 and the Charter especially. It is the prospect of constitutional limits on economic regulation that makes the Court suddenly desirous to ensure that Canadian legislatures can make or unmake any law whatever.

As for the Court’s interpretive method, it is implicitly, though not explicitly, living constitutionalist. In an appendix to the “Originalist Reasoning” article, Mr. Oliphant and I wrote that in Comeau the Court “be faced with a stark interpretive choice between a very strong originalist case”, which prevailed at trial, “and arguments based (perhaps paradoxically) both on stare decisis and what may be perceived as the needs, or at least the expectations, of current society”. These perceived needs are reflected in the Court’s pro-regulatory bias which causes it to impose its own vision of federalism. And doing so is all the easier if historical evidence can be treated as less significant and worthy of deference than equivalent social scientific evidence, twisted, or even ignored.

* * *

As I wrote in an essay published last year in Diritto Pubblico Comparato ed Europeo, the well-documented hefty costs of the regulatory schemes which the Supreme Court thought it so important to preserve from constitutional challenge, and the fact that this cost is, in many cases, disproportionately borne by the most economically disadvantage members of Canadian society, ought to remind us that “living constitutionalism can come at a price, not only to abstract ideals such as the Rule of Law, but also to individuals and families, including, and even especially, to the most vulnerable”. (644) To be sure, we can in theory demand that our politicians enact inter-provincial free trade even if our judges will not impose it. But this argument could be made in response to literally any constitutional claim. The raison d’être of an entrenched, judicially enforceable constitution is that the political process sometimes fails to translate just demands, and indeed even popular demands, into legislation, due to either the tyranny of self-centred majorities, or the well-organized resistance of self-interested minorities. Section 121 of the Constitution Act, 1867 was enacted in recognition of this reality. The Supreme Court presumes to update our constitution, but it lacks the wisdom of those who wrote it.

It has been said, perhaps unfairly, that Viscount Haldane was “the wicked stepfather of the Canadian Constitution“. The Supreme Court deserves to be called the Constitution’s spoiled child. This child demands that its parent conform to its demands, and throws tantrums whenever it does not. Unfortunately, too many people find this child’s petulance endearing. Perhaps Comeau will convince them that it must, at long last, be made to behave.

Dunsmuir 10 Years Later

The context, aims, and aftermath of Dunsmuir

The Hon. Michel Bastarache CC QC

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

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

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

Institutional Constraints

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

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

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

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

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

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

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

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

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

Our Objective in Dunsmuir

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

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

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

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

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

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

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

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

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

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

Post-Dunsmuir

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

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

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

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

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

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

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

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

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

L’ordre et le rêve

Le contrôle judiciaire après Dunsmuir

The Hon. Louis LeBel CC

Le texte n’appartient plus à son auteur; ce lieu commun de la critique littéraire s’applique particulièrement bien à l’œuvre judiciaire. Une fois déposé, le jugement s’incorpore dans un patrimoine commun, le droit ou le système juridique d’un état ou d’une communauté politique. Il tombera souvent dans le silence.

Parfois il connaîtra une notoriété, peut-être temporaire. Loué ou critiqué, il aura connu le sort que Voltaire au 18e siècle souhaitait à son œuvre, « que l’on en parle en bien, que l’on en parle en mal, pourvu qu’on en parle! » La lecture des contributions communiquées sur les blogues des professeurs Daly et Sirota confirme que tel a été le sort de l’arrêt Dunsmuir depuis 10 ans.

Cependant, puisque cet arrêt n’appartient plus à ceux qui l’ont rendu, il ne me semblerait pas approprié de m’engager dans une défense et illustration de ses mérites. Toutefois, je n’entends pas, même en ces temps de carême, me vêtir d’un sac de toile, répandre des cendres sur ma tête et commencer d’amères pénitences pour obtenir le pardon de la communauté juridique canadienne.

À l’occasion de ces 10 ans, je préfère partager quelques réflexions sur le contrôle judiciaire tel qu’on le connaît au Canada et sur la conception que l’on s’en fait. Le sujet m’a intéressé, bon gré mal gré, au cours de ma vie professionnelle comme avocat puis comme juge. Je pense d’ailleurs avoir plaidé mon premier dossier de contrôle judiciaire en 1964. Jusqu’à ce que je devienne juge, les affaires de contrôle judiciaire sont demeurées constamment une partie de mon horizon intellectuel. Il m’est arrivé aussi de donner quelques cours sur le sujet.

Puis comme juge à la Cour d’appel du Québec puis à la Cour suprême du Canada, les problèmes de contrôle judiciaire ont constitué une part substantielle de mon activité. Si ma mémoire est fidèle, vers 1996, les affaires de contrôle judiciaire représentaient environ 20 % du rôle civil de la division d’appel de Montréal. Cependant, si j’ai aimé le droit administratif, je n’ai jamais salivé à l’idée de plaider ou d’entendre une affaire de contrôle judiciaire. Je ne me souviens pas d’être parti entendre Dunsmuir en clamant le matin mon bonheur à mon épouse.

J’admets le fait de la popularité et l’abondance des activités de contrôle judiciaire. Je les ai considérées souvent comme des problèmes intéressants de procédure civile et de droit administratif. Elles représentaient une part complexe des tentatives d’aménagement du droit administratif ainsi que l’organisation des rapports entre les composantes d’un état démocratique moderne et des relations entre les groupes de toute nature qui forment la société civile.

J’ai donc vécu comme praticien et comme juge plusieurs systèmes de contrôle judiciaire et l’émergence de paradigmes divers gouvernant ceux-ci. Rien ne fut parfait et l’expérimentation s’est continuée. Après d’autres, j’ai apporté une contribution dont la nature fait elle-même l’objet de commentaires à l’occasion de cet anniversaire.

Il m’est arrivé de percevoir dans le fonctionnement du système de contrôle judiciaire un obstacle de l’accès à la justice ou à son efficacité dans les domaines relevant du droit administratif. Que l’on revienne à la case zéro après 15 ou 20 ans de débats judiciaires ne m’est jamais apparu comme une solution admissible, comme je reconnais volontiers l’avoir dit au cours d’une audience de la Cour Suprême, ainsi que le soulignait Me Gall dans sa contribution. Je demeure aussi inconfortable devant des systèmes qui, superposant des procédures de contrôle judiciaires à des régimes d’appel administratif créent une demi douzaine de paliers de juridiction. En réalité, mon intérêt pour le contrôle judiciaire correspond sans doute à celui du chirurgien devant un cancer du pancréas complexe.

Néanmoins, la question du contrôle judiciaire demeure présente et doit être traitée dans un système juridique comme celui d’un pays comme le Canada. Celui-ci reste soumis à la règle de droit comme la Cour suprême le rappelait dans le Renvoi sur la sécession de Québec[1]. Les structures constitutionnelles mises en place par la Constitution de 1867, notamment quant au rôle des Cours supérieures, rendent la question incontournable. Dans ce contexte, le contrôle judiciaire représente un mécanisme nécessaire pour assurer le respect d’un ordonnancement juridique fondamental. Cependant, il doit s’insérer dans la vie d’un état démocratique moderne dont les fonctions de réglementation sociales et économiques ont connu une forte expansion, bien que celle-ci n’ait jamais fait l’unanimité. Il s’inscrit dans les mécanismes d’un droit public, constitutionnel et administratif qui pénètre profondément toute la vie de la société canadienne.

Cette forme de contrôle de l’activité administrative implique nécessairement des conceptions diverses du rôle des tribunaux supérieurs et des mécanismes de formation du droit dans la société contemporaine. Il soulève aussi des interrogations fondamentales sur la nature du droit et des processus de sa formation de celui-ci, y compris au sujet de la nature et de la mise en œuvre des méthodes d’interprétation.

Des commentaires recueillis sur les blogues des professeurs Daly et Sirota, ressortent deux tendances fondamentales. L’une voit dans le contrôle judiciaire une méthode destinée à assurer l’ordre dans le système juridique canadien particulièrement à l’égard des questions de droit. Pour elle, le contrôle judiciaire, à la limite, ne se distinguerait guère de l’appel. Il laisserait sans doute la décision sur le fait au décideur administratif mais exigerait que la plupart des questions de droit soient réglées selon un test d’exactitude défini par les tribunaux supérieurs. Aussi, de fortes réserves se manifestent à l’égard d’une approche déférente qui permettrait aux tribunaux administratifs de définir leur conception de la conformité aux normes fondamentales comme la Charte canadienne des droits et libertés ou, au Québec, la Charte des droits et liberté de la personne[2].

Au fond, cette première tendance vise à l’unification des règles de droit et de leur mise en œuvre par le choix d’une norme d’intervention fondamentalement similaire à celle de l’appel civil ou pénal.

L’autre tendance découle d’une opinion toujours essentielle dans l’aménagement du système de contrôle judiciaire canadien, celle du juge Dickson, plus tard juge en chef dans l’arrêt Syndicat canadien de la Fonction publique, section locale 963 c. Société des alcools du Nouveau‑Brunswick[3]. Comme le note fort à propos la professeure Valois dans sa contribution à ce groupe d’études, elle étend clairement le droit du contrôle judiciaire au mérite de la décision administrative en la soumettant à une norme de rationalité au lieu de limiter l’intervention du tribunal supérieur à la définition de sa compétence et à l’examen des conditions dans lesquelles la décision a été rendue.

Cependant, cette extension s’accompagnait de la reconnaissance d’une forme de déférence en faveur du décideur administratif, même sur un grand nombre de questions de droit. Elle acceptait qu’il existe des dossiers où les choix interprétatifs de décideur administratif primeraient en dépit de désaccords potentiels avec l’opinion de la cour de contrôle. En ce sens, cette orientation qui s’est retrouvée dans des formes diverses d’aménagement du contrôle judiciaire depuis ce jugement, comporte une reconnaissance implicite qu’un système de droit laisse place à une marge de pluralisme juridique. Le droit n’est pas nécessairement univoque et une des fonctions d’un organisme administratif peut consister dans le développement de ses propres orientations juridiques. Un jugement, l’arrêt Domtar[4] admettait d’ailleurs cette possibilité en rejetant même les inconsistances des décisions d’un tribunal administratif comme justification à elle seule d’un exercice du pouvoir de contrôle judiciaire.

L’aménagement du contrôle judiciaire dans cette seconde tendance s’est réalisé, comme on le sait, sous des formes très diverses. La construction de l’œuvre se continuera inévitablement. Cependant, elle a reconnu l’existence d’une autonomie partielle des tribunaux administratifs, certainement sur le fait, mais aussi sur le droit au cours de tous les débats sur les méthodes de contrôle judiciaire.

Le débat incessant sur les normes de contrôle judicaire a d’ailleurs occulté en partie le développement du droit administratif comme tel. La focalisation sur les normes de contrôle et les problèmes d’accès à celui-ci a conduit parfois à négliger que le droit administratif se développait au niveau des juridictions inférieures qui régissent largement la vie quotidienne des membres de la société[5]. On oublierait parfois, à lire notamment une partie de la doctrine de droit administratif, que celui-ci ne se limite pas au contrôle judiciaire. Pourtant, l’examen d’une œuvre récente comme la 7e édition du traité de droit administratif du professeur Patrice Garant[6], confirme la diversité et l’ampleur du droit administratif. Cependant, le contrôle judiciaire tend à absorber toute l’attention. Parfois, sa conception exprime le rêve de la formation d’un ordre stable et de règles d’application quasi-automatiques, dispensant de l’exercice d’un jugement prudentiel. Cette approche oublie les exigences de la vie d’une société et l’importance de l’expérimentation juridique. Elle néglige aussi la nature du droit de l’interprétation juridique qui opère parfois comme mécanisme de création et non seulement, comme une technique mécanique de dégagement d’un sens caché d’un texte.

Le droit ne s’accomplit jamais définitivement. Des problèmes continuent à se poser. Je pense, par exemple, à l’intégration des questions d’équité procédurale dans le système de contrôle judiciaire. On peut aussi s’interroger sur la question des limites du système actuel de contrôle judiciaire et de sa capacité de s’adapter aux fonctions administratives autres que celles d’adjudication. Comment fixer les limites de ce contrôle et ses modes d’exercices particulièrement à l’égard de l’application des normes fondamentales par exemple dans le cas des fonctions de décision individuelle et de réglementation de l’administration publique.

L’essence du contrôle judiciaire correspond à des objectifs simples à définir : maintenir un ordre juridique stable sur des questions de droit fondamentales et assurer le respect d’un processus décisionnel rationnel et juste dans l’administration publique. La réalisation de ces objectifs demeure difficile surtout lorsque le contrôle judiciaire est trop souvent employé pour prolonger des débats devant la justice ou obtenir une seconde chance de modifier une décision prise en réalité dans les marges de la raison et de l’équité procédurale.

L’une des beautés du droit se retrouve dans la nécessité de faire appel à l’imagination au-delà des tentatives ou des espoirs de s’endormir dans un cadre formel immuable. Le présent débat sur les normes de contrôle témoigne de cette tentation et de ce défi. Il s’agit d’apprendre à contrôler le contrôle judiciaire.



[1]
Renvoi relatif à la sécession de Québec, [1998] 2 R.C.S. 217.

[2] RLRQ, c. C-12.

[3] S.C.F.P. c. Société des Alcools du N.-B., [1979] 2 R.C.S. 227.

[4] Domtar Inc. c. Québec Commission d’appel en matière de lesion professionnelles, [1993] 2 R.C.S. 786.

[5] Voir: par exemple, P. Noreau, F. Houle, M. Valois, P. Issalys, La justice administrative : entre indépendance et responsabilité – Jalons pour la création d’un régime commun des décideurs administratifs indépendants, Éditions Yvon Blais, Cowansville 2014.

[6] P. Garant, Droit administratif, 7e édition, Éditions Yvon Blais, Cowansville 2018.

Charter Rights and Charter-Lite

How not to resolve the tension between the principles of constitutional and administrative law, and how to actually do it

Audrey Macklin, University of Toronto

The Supreme Court’s 2012 decision in Doré signaled the apparent victory of Team Administrative Law over Team Charter: discretionary decisions engaging Charter rights — dubbed ‘Charter values’ for this purpose — would henceforth be decided according to principles of administrative law applicable to discretion rather than constitutional principles applicable to rights infringement. This meant that judges called upon to review exercises of discretion that impaired Charter rights/values would defer to the administrative decision maker’s determination, and only set it aside if it was ‘unreasonable’.  Although Dunsmuir indicated that constitutional issues would attract a stricter standard of review (correctness), Doré subordinated the constitutional dimension of a decision to its discretionary form in order to winnow down one of the few remaining bases for non-deferential review. The reassurance offered by Team Administrative Law was that judicial deference in administrative law is not so different from elements of judicial deference built into the Oakes test. According to the Court,

while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality.

Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a ‘margin of appreciation’, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.[1]

I dispute the Court’s attempt to plot administrative and constitutional review on the same axis. First, the replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play.  Secondly, the methodology proposed in Doré purports to marry a simplified proportionality analysis with Dunsmuir’s deferential reasonableness review. In my view, this jurisprudential mash-up respects neither the primacy nor priority of Charter rights and produces instead a Charter-lite approach to review of discretion. Curial deference toward the outcomes it produces exacerbates the dilution of rights protection. It also creates negative incentives for governance and the rule of law by making the executive less accountable for Charter breaches committed via discretion than by operation of a legal norm.

For present purposes, I will highlight the second and third defect of Doré, the proportionality analysis. The normative primacy of Charter rights means that a proportionality analysis in the context of rights adjudication is not neutral as between rights and freedoms protected by the Charter and other interests, entitlements or ‘values’.  To denominate an interest as a right is to recognize its distinctive importance. A Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement[2].   Doré’s re-labelling of Charter right as Charter ‘value’ obscures this implication of rights recognition.  More significantly,  the simplified proportionality analysis commended by the Court simply requires decision makers to identify the Charter ‘value’ in play and then ‘balance’ it against competing objectives. In effect, it suppresses the normative primacy of a Charter right. This demotion is not rescued by remedial italics. Exhorting decision makers to engage in what Abella J. called  ‘a robust proportionality analysis consistent with administrative law principles’ does not assist, precisely because it does not reckon with the relevant administrative law principles.

The standard of review in Doré is reasonableness.  A failure to accord sufficient importance to a Charter right (or value) is a question of weight, and the Court’s statement of administrative law principles for over fifteen years have emphatically insisted that deferential review of discretion precludes reweighing the factors relevant to the exercise of discretion. Doré does not depart from this admonition against re-weighing. So if an administrative decision maker undervalues the importance of protecting Charter values/rights against fulfillment of the statutory objectives that are the daily preoccupation of that decision maker, deferential review will have nothing to say. (That is, if the court actually defers; claiming to apply a standard of reasonableness while actually reviewing on a standard of correctness can avoid unpalatable outcomes but only at the cost of introducing other pathologies.)

A Charter right, once established, also asserts normative priority. A rights bearing individual need not justify the exercise of a Charter right; rather, the state must justify infringing it, and the state’s burden is a heavy one.  These requirements flow from the intrinsic weightiness of rights. The stages of the test are designed to ensure that limiting a right serves important objectives, actually advances those objectives, and limits the right no more than required to achieve the objective. Only after clearing each of those hurdles does one arrive at the ultimate balancing of the last step, in which the failure to accord sufficient weight to the Charter right may yet yield the conclusion that the government has not discharged its burden.

The confounding feature of discretion, of course, is that it presupposes that the person has no right to a particular outcome (indeed, the outcome may, in this technical sense, be a ‘privilege’), but insofar as the Charter is implicated in the decision, the individual should be regarded as a rights bearer.

While Doré does instruct decision makers to assess the necessity of limiting the Charter protection in order to achieve statutory objectives, the Court provides no practical advice about how to do that. On its face, it encourages a mere balancing of the Charter as one factor among others. Perhaps the Court in Doré intends to convey the normative primacy and priority of the Charter and all that is entailed when it enjoins decision-makers to ‘remain conscious of the fundamental importance of Charter values in the analysis’[3].   If so, it should say so more explicitly, because it would be subverting its own problematic jurisprudence on re-weighing.

Another entry point into the disjuncture between administrative and constitutional review is the judicial posture toward ministerial decisions. It exposes a fundamental tension between the democratic impulse that underwrites deference and the counter-majoritarian dimension of constitutional rights adjudication. Judges are entrusted with adjudicating the Charter not only because of their legal expertise, but also because of their independence from government. Some Charter cases engage questions of redistribution that resist straightforward classification as state infringement of individual right, but many Charter challenges do conform to type. The judiciary’s real and perceived detachment from the legislature and the executive matters to the legitimacy of rights adjudication when government actors are alleged to have breached the constitutional rights of individuals subject to their authority. Yet, standard of review jurisprudence currently justifies deference by reference to democratic delegation.  Quasi-judicial tribunals who enjoy a measure of relative independence enjoy no more or less deference than front line bureaucrats and possibly less than ministers of the crown. The independence of the administrative decision maker from government does not matter to deference.

But in Charter litigation, proximity to the political branch of government pulls in the opposite direction – decisions by elected officials (legislators) are distrusted precisely because they might be inclined to trade off individual rights for political gain through appealing to majoritarian interests. In other words, democratic legitimacy, political acumen and access to expert staff may incline courts to display particular deference to Ministers in judicial review of discretion, but this translates awkwardly into a rationale for deference where the Charter is at issue. The fact that an administrative decision maker is also high-ranking elected official is not a reason to defer to the balance he or she strikes between protection of individual rights and advancement of other public objectives (statutory or otherwise). It may even be a reason not to defer.

The foregoing does not suggest that decision makers with authority to interpret law should not consider the Charter when exercising discretion.  Their valuable ‘field expertise’ may enhance the fact finding process, the elaboration of the statutory scheme  and the richness of the evidentiary foundation. Some individual decision makers may also produce legally sophisticated and cogent Charter analyses. Many will not, either for lack of ability, time, resources or independence, or some combination thereof. There is simply no basis for a presumption that a decision maker’s ‘field expertise’, which may contribute constructively to some aspects of a Charter analysis, equips the decision maker to manage all aspects of a Charter analysis. On judicial review, judges should certainly pay respectful attention to the reasons given by decision makers exercising Charter-impacting discretion. Sometimes the reasons may be persuasive, and a judge should be as open to benefiting from a rigorous and compelling set of reasons in the same way he or she is open to persuasion from high quality submissions by counsel, analyses by law clerks, or opinions of fellow judges.

In other words, the arguments in favour of Charter jurisdiction do not explain why deference is owed to their Charter outcomes. Nor do arguments about why courts should defer to the exercise of discretion on non-Charter matters automatically extend to those aspects of discretion that implicate the Charter. Yet Doré commits both of these errors.  The slippage is exacerbated by the fact that Court in Doré equips administrative decision makers with a Charter-lite methodology that is approximate, vague and incomplete, starting with its problematic invocation of Charter values, to its account of proportionality.

Lower courts and various Supreme Court judges have already revealed diffidence toward Doré, either by subjecting it to critique or effectively ignoring it. Going forward, I propose that a constructive approach to review of discretion engaging Charter rights should contain the following elements: First, a Charter right is a Charter right, regardless of whether it is infringed by operation of law or discretion; conclusory labelling it a ‘value’ obscures rather than clarifies.

Secondly, a Charter right weighs more than other interests, and the graver the impact of the violation, the more it weighs. Thirdly, the independence of the decision maker from political influence matters. Proximity between the decision-maker and the legislator provides no reason to defer to a balancing of individual Charter rights against majoritarian interests.

Fourthly, where no or inadequate reasons are provided for the exercise of discretion that infringes a Charter right, curial deference neither requires nor authorizes retrofitting reasons to support the result reached by the administrative decision-maker.

Finally, the extent to which the discretion in structured and guided through constitutionally valid legislation, regulation or ‘soft law’ matters. Where the exercise of discretion will routinely and predictably limit Charter rights (e.g. in civil or criminal commitment, parole, immigration detention, child apprehension, extradition, etc.), legislators can and should stipulate the purposes for which the discretion is granted, and identify the factors relevant to the exercise of discretion.  If these provisions withstand an ordinary Charter challenge (including the Oakes test), then the individual exercise of discretion within those demarcated constitutional boundaries should benefit from greater deference than exercises of broad, general and unstructured discretion.  Legislators and administrative agencies should be encouraged to structure discretion.  It advances the rule of law goal of publicity. But if the legislator declines to structure the discretion, courts should not reward opacity by undertaking to generate the best optimal justification for the outcome, just as they should not reward the absence of [adequate] reasons by generating better ones.[4]

Whether these considerations travel under the rubric of reasonableness, correctness, proportionality or Oakes, or some other label matters less than that they receive proper and explicit attention. After Multani, David Mullan correctly (and reasonably) concluded that there is ‘room for deference to the discretionary judgments of statutory authorities exercising powers that have the potential to affect Charter  rights and  freedoms’, but in order to prevent devaluation of those rights and freedoms ‘there should be recognition  that the framework within which deference operates will often, perhaps invariably need  to be different than in the case of judicial  review of administrative action that does not affect Charter rights and  freedoms’.[5] Justice McLachlin (as she then was) correctly observed that many more people have their rights determined by administrative decision makers than by courts. The quality of Charter protection they receive should not depend on who makes the determination.



[1]
Doré, at paras. 56, 57.

[2] Lord Bingham recognized this in the UK context: R (Daly) v. Secretary of State for the Home Department, [2001] UKHL 26.

[3] Doré, at para 54.

[4] Ideally, this should incentivize legislators to be more transparent in structuring and defining the scope of discretion in legislation.  For a thoughtful elaboration of this idea, see Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 Supreme Court Law Review (2d) 247.

[5] “Administrative Tribunals and.Judicial Review of Charter Issues After Multani” (2006–07) 21 N.J.C.L. 127 at 149.