Unthinking Thinking Like a Lawyer: the Struggle for Deference in Canada

This is the draft title of a book chapter I have prepared for a forthcoming collection on substantive review.

I have a draft of the chapter which I am happy to circulate to those who are interested in commenting on it. Feel free to email me: paul dot daly at umontreal dot ca.

Here is the abstract:

From their first exposure to law in university, through to their days in legal practice, lawyers understand that legal questions have ‘right answers’ which it is the role of legal experts to provide. Convincing judges that in some instances administrative decision-makers should be trusted to provide the answers is difficult. Affording curial deference requires judges to pull against the current of years of legal training.

It is no surprise then that in pursuing a deferential course to judicial review of interpretations of law, the Supreme Court of Canada has repeatedly been buffeted by traditionalist storms pushing it towards a more interventionist course. This even though the Court has been to the fore in recognizing that curial deference is compelled by the combination of legislative choice and relative institutional competence.

An early deferential approach was the concept of error of law within jurisdiction, but it was thwarted by a broad conception of jurisdictional error. Next, judges were admonished to exercise caution before identifying provisions as “jurisdictional”. Solely attitudinal in nature, this approach failed to shift the interventionist attitudes inculcated by law schools and years of legal practice.

Hence the development of the “pragmatic and functional analysis”, a multi-factor test designed to require justification for judicial intervention in terms of legislative intent. Only those questions the legislature intended to reserve the courts should be treated as “jurisdictional”. Yet again, however, interventionist attitudes prevailed. Questions that would traditionally have been seen as jurisdictional had an almost magical capacity to attract judicial intervention, the multi-factor test notwithstanding. And these questions were sometimes “segmented”: the jurisdictional aspects of decisions were hived off and subjected to more intense scrutiny.

Now, the Court directs that interpretations of decision-makers’ home statutes should be overturned only if unreasonable. Even here, interventionist winds have blown courts off the deferential course charted by the Court. The reasonableness of administrative interpretations of law is adjudged by reference to judicial principles of statutory interpretation, such that little separates modern reasonableness review from prior interventionist approaches.