A Brief History of (Recent) Time: the Struggle for Deference in Canada

A major collection on substantive judicial review of administrative action will appear shortly under Hart Publishing's imprint. Edited by Mark Elliott and Hanna Wilberg, The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow brings together many of the world's leading public law scholars in a collection that follows in the sizeable footsteps of The Province of Administrative Law and The Unity of Public Law. As a contributor, I have the chance to read many of the chapters and I can attest to their extremely high quality.

My modest contribution is a chapter entitled "The Struggle for Deference in Canada". I am pleased to reproduce a heavily edited version of the text here. I've left out the discussion of CUPE, a case with which most readers will be familiar:

Presenting Legal Academia 2.0

Wednesday's symposium on the Nadon Reference was a great success. CPAC's cameras captured the event so it will be available online at some point if you weren't able to make it in person.

I presented my Legal Academia 2.0 thinkpiece. It went down well, though as I accept, the idea is emergent rather than dominant. Online academics remain a subset of the legal community and there is still (as I acknowledge in the paper) an important role for the old model and Legal Academia 1.0.

Randy Barnett posted some thoughtful comments on the paper on the Volokh Conspiracy last week:

There is one thought I would add to Professor Daly’s insightful observations that he might want to integrate into his flow charts. The best academic blogging consists of professors who are blogging about subjects within their scholarly expertise. In this way, Legal Academia 1.0 is related to Legal Academia 2.0.

Short form blogging that is based on the essence of long-form scholarship is completely different than opinion blogging, whether the opinion blogging is by an academic or nonacademic. Of course, it is challenging to blog in a way that is consistent with one’s long-form scholarship. But it is entirely possible to do so and is something I urge young scholars to try (after tenure). And I also have found that blogging has improved my academic writing as well. With some effort, even Tweeting can be informed by and consistent with one’s more complex academic expertise.

I believe this is why academic blogs — such as ours, Balkanization, or the Originalism Blog – that are an extension of the academic expertise of those who blog there, are worth reading for reasons other than the pleasures one gets from reading pure opinion blogging. And I think this is why we have the readership we have.

I think Professor Barnett is on the money, although I think non-tenured academics like me also have a lot to gain from online engagement. Writing regularly is important, and writing regularly for an audience helps keep one's prose clear and crisp, for otherwise readers will go elsewhere.

I tend to keep my observations within my field of expertise; and long-form blogging has helped me enormously in developing my ideas. My recent paper "Unreasonable Interpretations of Law" is a case in point. I decided last Fall that I would write an article on the subject and began to post fragments of my argument. Putting my thoughts down on paper was extremely useful, as was the process of responding to readers' observations and comments. In the old, unconnected world, the process would have been mostly internal and I would not have had access to the rich resources made available by the Internet.

Yet blogging also reminds me of the aphorism that life is best organized as a series of daring raids from a secure base. A blog is as good a place as any to give voice to innovative thoughts. Again, the process of writing and receiving feedback proves helpful, giving a good indication of whether I am treading too far from safe territory. An occasional retreat is a modest price to pay for testing the limits of my capabilities. 

"Government" Courts? Challenging the Emergent Narrative that Canada's Federal Courts are Unduly Deferential

On Friday, the Globe and Mail dropped a large bombshell by revealing that four of the six judges proposed by the federal government to fill Justice Fish's seat on the Supreme Court of Canada came from the federal courts.

Regular readers will of course know that in Reference re Supreme Court Act, ss. 5 and 6, the Court held that federal court judges could not be appointed to its three 'Quebec seats'. Two months on the controversy has still not subsided: I wrote an op-ed for the Ottawa Citizen last week with Carissima Mathen; we have organized a free symposium that will take place this Wednesday at the University of Ottawa.

The latest sad and unfortunate outcome of L'affaire Nadon (to borrow from the title of Justice Gilles Letourneau's presentation for Wednesday's symposium) is that the federal courts are now being painted as kangaroo courts, ready to jump as high as the federal government says. In the eyes even of usually sensible commentators federal court judges are, apparently, 'more deferential' to the government. Hence why Mr. Harper -- a fierce opponent of judicial activism -- stacked his longlist.

This is not a new narrative: I have heard senior practitioners (senior enough to know better) describe the federal courts as "government courts". But it is now seeping into the public consciousness. It should be strongly challenged.

First -- and in the absence of empirical evidence impressions are all we have to go on -- there is no reason to believe that federal court judges are any more 'deferential' than other judges. One might get that impression from reading their decisions, but one should remember that judicial review dominates their workload. And in judicial review cases, the deck is stacked against the individual. Administrative decisions are presumptively valid, it is an uphill struggle to get a court to apply anything other than a deferential standard of review, and as long as decisions are relatively clear and fall within a range of reasonable outcomes, the federal courts cannot intervene.

Second, a large body of federal court work is immigration law, an area in which weak cases are more likely to be brought. So much rides on immigration decisions that individuals have strong incentives to pursue every legal avenue available, regardless of the merits of their cases. Dealing with weaker cases on a deferential standard might make judges appear pro-government, but that would be an illusion created by circumstance.

Third, there are high-profile cases in which the federal courts, particularly the Federal Court of Appeal, have refused to defer to the federal government. Georgia Strait, written by Mainville J.A. and concurred in by Nadon J.A. (two of the names on the longlist) invoked separation of powers concerns against a claim that deference should be accorded to a ministerial interpretation of law. Indeed, it is plausible that concerns about the quality of decision-making in government departments would motivate the federal courts to be less deferential. Having been exposed to low quality decision-making, federal court judges promoted to the Supreme Court of Canada and freed from the shackles of precedent might prove to be quite interventionist.

If an expectation of greater deference from federal courts judges was the federal government's reason for stacking the shortlist, it was pretty weak, a shortcut to judicial restraint singularly unlikely to change Canada's prevailing legal culture.

Who Decides to Deport You When There's a Risk of Torture?

There is a piece in the latest print issue of Maclean's magazine (sub only) on a very interesting Federal Court case from earlier this month: Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448.

M's details were posted on what I have dubbed "Canada's Least Wanted", the Canadian Border Services Agency's 'wanted' list of immigration violators. This began as a list of "war criminals" but has since been revised in tone and expanded in content. M argued that being placed on the list increased the risk that he would be tortured if returned to Pakistan.

Arrangements for deportation decisions of this nature are complex. Preliminary assessments are conducted on risks faced by the individual should s/he be returned and any security risks posed by the individual should s/he remain in Canada. These are delivered to a Ministerial Delegate who ultimately takes the decision to deport or not (see para. 71). Here, the Delegate rejected the assessment that M would be at risk of torture. Strickland J. held that this finding was unreasonable, the second time M has won a judicial review on this point. However, she rejected the argument that the Delegate was biased or that the decision-making structure was biased (para. 141).

Of greater interest are the facts, recounted in the Maclean's article, including a bizarre meeting between those responsible for the "Least Wanted" list and other members of the Delegate's department. We are assured by all concerned, and Strickland J., that the meeting was meaningless -- though "ill-advised" (para. 153) -- because of the absence of evidence that the Delegate was "influenced" by the meeting (para. 154). Of course, in bias cases, normally perception is what counts!

And more interesting still is a claim ultimately not addressed by Strickland J.: that M was entitled to have an independent decision-maker determine whether to deport him because his constitutional right to "life, liberty and security of the person" was engaged. Strickland J. was able to deal with the case on administrative law grounds and did not consider M's constitutional argument, but in a telling aside she noted:

[140]      It is not disputed that there was considerable government interest in the CBSA’s wanted list and that there were concerns about the implications of a positive risk assessment on the list. It is therefore certainly not outside the realm of possibilities that, given this interest, a decision-maker could be inclined toward a certain result in the absence of sufficient hallmarks of independence.

The independence question will have to be addressed some day. In Suresh at para. 78 the Supreme Court of Canada allowed for the possibility that individuals could be deported even to a real risk of torture in "exceptional circumstances" but these were not further defined. Given that the individual's constitutional rights are engaged, a rigorously fair process might well be required, presumably including a final determination by an independent decision-maker.

Further questions then arise. Can any official in a department controlled by the executive take the deportation decision? It is arguable that no such official can make a decision with an entirely independent mind. Can the decision even be taken by the Minister? Deporting someone to a real risk of torture is arguably a decision that should not be tainted in the slightest by policy considerations.

Indeed, is this a decision that can only be taken by a court?

Which leads to the ultimate question: would any court ever deport someone to a real risk of torture?

M has now succeeded twice in judicial reviews of Delegate decisions. Who knows what a third decision would bring.

"SCC Upholds Harper Cabinet Decision on Railway Regulation": Some Thoughts on Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40

My suggestion to headline writers is made with tongue firmly in cheek, of course. Often in public law cases, the federal government is a "winner" or "loser" only in the limited sense that a position it took as an institution was vindicated or not. That the identity of the cabinet members tends to be largely irrelevant is a nuance is lost on many lay people but not, I trust on readers of this blog, who will be very interested in the substance of Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40. This is a very important Supreme Court of Canada decision on administrative law and, to my mind, the best we have seen for some time.

The Fact of the Matter Is...: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39

A quick note on McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, an interesting case about whether law firm partners can be required to retire at 65. Short answer: yes (in British Columbia).

The BC Human Rights Tribunal found that Mr. McCormick was an employee of the firm, a finding which would have entitled him to protection against discrimination on the basis of age. The Supreme Court of Canada quashed this decision, concluding (uh-oh...) that the Tribunal did not have "jurisdiction" to address Mr. McCormick's complaint (at para. 15).

Do not worry! Abella J. was using "jurisdiction" in a conclusory sense to indicate that, properly interpreted, the statute did not cover Mr. McCormick.

And the proper interpretation of this particular statute is a matter for the courts. BC has a statute, the Administrative Tribunals Act, that requires courts to apply a correctness standard to all questions "except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness" (s. 59, in situations where there is no privative clause).

However, Abella J.'s decision was not purely an exercise in statutory interpretation. Consider the following paragraph:

[39]                          Turning to Mr. McCormick’s relationship with his partnership and applying the control/dependency test, based on his ownership, sharing of profits and losses, and the right to participate in management, I see him more as someone in control of, rather than subject to, decisions about workplace conditions.  As an equity partner, he was part of the group that controlled the partnership, not a person vulnerable to its control.

Whatever these considerations are, they are not questions of law. Arguably, they are "findings of fact". At the very least, they are questions of mixed fact and law.

The BC courts have reviewed questions of mixed fact and law under s. 59 on a correctness standard. I think this is wrong as a matter of principle. Common law principles apply to the Administrative Tribunals Act (see, by analogy, the treatment of the Federal Courts Act in Khosa), so s. 59 should be interpreted accordingly. These principles teach us that deference is appropriate on questions of mixed fact and law. Given that these are not clearly specified in s. 59, they should be subject to deferential review.

This is purely academic, however. The fact of the matter is that the Supreme Court has no appetite to undo a compromise that seems to suit BC's judges and politicians. It is understandable that pragmatism should triumph over principle!

Some Notes on Allan, The Sovereignty of Law

T.R.S. Allan is one of the most important public-law thinkers of the present age and his new book, The Sovereignty of Law, is a major contribution to public law theory. Here is a brief summary which may be of interest to readers.

At the heart of this book is the distinction made by H.L.A. Hart between the "external" and "internal" point of view. Allan, following Ronald Dworkin, takes an avowedly interpretivist approach, privileging the internal point of view. An external observer might say of a jurisdiction in which Parliament is sovereign that a statute requiring that all blue-eyed babies be put to death is legally valid. To view matters from the external point of view, however, is to adopt the wrong perspective as far as the common law is concerned. What matters is how lawyers (and citizens) would interpret any such statute:

The popular notion that parliamentary sovereignty ultimately overrides the rule of law is erroneous. Parliament’s authority is constrained by its dependence on language; and words take their colour from the broader context in which they are used. We determine the content of Parliament’s instructions in the light of those fundamental principles of law that give the British constitution its continuing authority and conceptual structure...the content of law is, instead, a complex matter of interpretation, in which statutory provisions must be integrated within an existing web of legal regulation, based on both common law and statute...(pp. 35-37)

Adopting an external perspective leads lawyers to make serious errors, as "[b]oundaries and distinctions that serve primarily descriptive purposes are pressed into the service of constitutional theory, where they obscure more than they reveal" (p. 82). For example, the idea that "clear" provisions can oust constitutional protections (such as access to courts):

When the statutory text is read as a whole, and the reading is informed [as it must be – PD] by those common law principles that delineate the relevant demands of legality, questions of clarity or certainty are related, most suitably, to any statement of interpretative conclusions. If anyone has the ‘last word’, it is the court that determines legality in all the circumstances of the particular case; but of course legality is a function of statutory purpose and context as well as general constitutional principle.

Privileging the internal point of view has important doctrinal consequences. Consider justiciability:

From the internal perspective of the public lawyer, justiciability – or susceptibility to review – is, instead, a function of the specific legal challenge to an exercise of power in all the circumstances. It is…properly the outcome of legal analysis rather than a straitjacket confining its course from the start. (p. 58)

Blunt-edged justiciability doctrines, which remove areas of executive power from judicial scrutiny regardless of the consequences for those affected, are inimical to the rule of law. Considerations of legality are suppressed in favour of political accountability, which depends on whether sufficient interest can be aroused to make suitable space in a crowded parliamentary timetable. Certain sorts of complainant, in the relevant fields, are deprived of access to the courts for the vindication of their rights – or the correction of wrongs – without any inquiry into whether, in all the circumstances, an exclusive reliance on political or administrative remedies is consonant with justice. (p. 78)

For administrative lawyers, "[a] misguided focus on competing sources of administrative law, characteristic of legal positivism, has deflected attention away from subtle practicalities of legal interpretation in particular instances" (p. 229):

The appropriate integration of general legal principle and specific statutory purpose is a matter calling for reflection and judgement. From within the practice of law – by contrast with a merely external or descriptive viewpoint – there is neither an omnipotent Parliament nor any free-standing criterion of administrative legality, independent of context. There is only the subtle and nuanced process of interpretation, sensitive to social and political context, that the doctrine of ultra vires invokes when correctly understood. If proponents of ultra vires sometimes emphasize the legislative context at the expense of general principle, its opponents often seem to underestimate the pliability of the grounds of review, which in many cases serve mainly to summarize a finding of illegality closely dependent on all the circumstances. (p. 224)

The law cannot be identified with whatever a majority of judges (or perhaps more senior judges) currently accept or assert, even if their views are elaborated in sufficient detail to give them definite shape in specific contexts. The law is rather the product of considered judgement in which general principle is brought to bear on the distinctive facts of particular cases, forging an accommodation between governmental aim, on the one hand, and the constraints of legality, on the other . (p. 230)

And a clear-cut distinction cannot readily be made between constitutional law and administrative law:

As servants of a sovereign Parliament, the courts must ensure that ministers and executive agencies observe the terms and limits of their statutory mandates; and in thus enforcing the law (it is supposed) the judges may take the content of those statutory mandates largely for granted. It has been a major theme of this book that, to the contrary, the law’s content is always a matter of interpretation, dependent on judgements of value that cannot be evaded by any responsible legal reasoned. What Parliament has authorized an official or agency to do in particular circumstances is always a matter of judgement, reflecting considered opinions about what, in such circumstances, it would be reasonable (or not unreasonable) to authorize. The meaning of legislative instructions cannot be divorced from the context in point: they derive their sense from the overarching tradition of governance to which they contribute. What it is lawful or reasonable for a public authority to do, in the performance of its statutory tasks, cannot be answered in the abstract. It depends on the consequences for constitutional rights and settled expectations and equal citizenship – all those large dimensions of legality that opponents of legal constitutionalism appear, in theory if not in practice, to banish from public law. (p. 317)

There is also a masterful postscript on public law theory. What should public lawyers do? There is a useful hint in the main text:

[P]ractice can be understood only in the light of the ideals or values it serves – those values that give us reason to pursue and sustain the practice and argue over its detailed implications. (p. 210)

The underlying values of public law are what matter most. They simultaneously describe, explain, justify and change the outcomes of concrete cases.

My only quibble with Allan's approach is that it perhaps privileges the internal point of view too much, whereas in legal practice lawyers and judges toggle between the internal and external, on the one hand arguing the merits of the individual case, on the other hand explaining how it can be reconciled with the existing authorities. I think Allan is sensitive to the need for lawyers to adopt dual perspectives though: his postscript features a piercing analysis (reconstruction, even!) of Dworkin's distinction between fit and justification.