Tuesday 12 November 2013

Canada's Senate: Advisory Elections and the Fettering of Discretion

The Supreme Court of Canada is hearing argument this week on a set of questions relating to the reform (or abolition) of the Senate. Part V of the Constitution Act, 1982 sets out various procedures for constitutional amendment. The Court has to determine which matters fall under which procedures.

The Senate Reference involves classical questions of constitutional law, but administrative law has (thankfully!) managed to insinuate itself into the discussion, thanks particularly to questions during oral argument from Justice Cromwell.

One of the reform proposals put forward by the federal government is the holding of advisory elections. Based on the results of these elections, the Prime Minister would make recommendations that the Governor-General to appoint new senators. At the moment, the formal position is that the power of appointment is vested in the Governor-General, a prerogative power exercisable by convention on the advice of the Prime Minister. There are no statutory limitations.

The question is whether holding advisory elections would be a change to the "method of selecting Senators" which requires a constitutional amendment. Or, to put the point as it was put in the oral arguments this morning, would the Prime Minister's discretion be fettered by a statute requiring him to "consider" the results of advisory elections? There are a few points to make on the administrative-law aspects of the problem.

1. It is difficult to talk of fettering the prerogative, as the Court of Appeal for England and Wales has recently noted (my post is here). As the Court said, "where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule of law which requires the decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case" (para. 53). On this reading, a policy of holding elections on the nomination of senators or consultations with law societies on the nomination of judges would not fetter the prerogative at all.

2. If advisory elections are enshrined in statute, however, the situation might be different. If the Prime Minister did not follow the results of an advisory election, the refusal to do so could be subject to judicial review. There is no clear Canadian law on this. One might say, relying on the Conrad Black cases, that appointment to the Senate is a privilege, not a right, and thus non-justiciable.

But where there are statutory requirements which touch what is otherwise a prerogative power, it seems axiomatic that compliance with statute is required and judicially enforceable. This seems to be the conclusion the British Columbia Court of Appeal came to in a recent case involving a challenge to the appointment of a non-lawyer as Attorney General. And in the second Black case, the fact that termination of membership in the Order of Canada is regulated by a written policy was held to mean that he had an enforceable legitimate expectation that the policy would be followed.

3. Yet, if there were a statute which required the holding of advisory elections, and the Prime Minister decided to always follow the results of the advisory elections, this would presumably amount to an unlawful fettering of discretion. One point in favour of the legality of the advisory-elections proposal is that they could not lawfully be treated as binding.

4. As a general matter, surely some prior consultation does not change the formal method of appointment. For example, significant consultations are now held before the nomination of judges by the federal government. These surely are unproblematic. Does it make any difference that they are not statutory?

I do not think any of this is conclusive of the question, but I thought it helpful to set out the administrative law aspects to the problem. They are not straightforward!


  1. Some form of deference to tribunal-developed procedural rules as well specific procedural rulings is clearly sometimes appropriate for the reasons that you identify. Indeed, the SCC in Baker and the fifth procedural fairness intensity factor seem to say as much, despite other less nuanced pronouncements by the SCC on this issue. What I struggle with is the extent to which this is affected by rules and rulings that are at least in part the product of balancing the resources of the tribunal (money, facilities, personnel) against the procedural fairness claims of the affected person. When we are concerned with substantive review, such resource considerations are generally not part of the tribunal's decision-making mix (though they may be as, for example, in criminal injuries compensation schemes involving allocative decisions respecting a finite sum within the tribunal's control). To what extent should courts on review respect as part of any assessment of a procedural ruling or rule, a denial of a claimed procedural entitlement on the basis that "We don't have resources"? (One typical situation is the use of this justification for not recording proceedings - though, I suppose, this is not necessarily a procedural fairness issue.) Does that kind of cost/benefit justification for denying a requested procedure require deference or respect? David Mullan.

  2. It must be right that "it costs too much" can (almost?) never be a serious argument for denying a particular individual a procedural right. Such an argument doesn't usually wash in the law of torts (no CT scans today because we hit our budget limit yesterday) so I don't see why it should wash in administrative law.

    But that's the easy case. In the more difficult case, the tribunal has a rule or policy which ends up excluding certain procedural rights because it needs to deal in a general rather than individualized way with certain matters (e.g. appropriate scale of compensation). Or a rule or policy of not transcribing its proceedings. It is difficult to fit these under a substantive review or procedural review rubric although my instinct is that deference would be appropriate to these types of determination.