Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms

My paper for this Saturday's conference at the University of Ottawa in honour of Justice Charron is now available on SSRN. You can download it here. To whet your appetite, here is the abstract:

In interpreting the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms, Canadian courts have struggled with an abundance of difficult distinctions: between law and discretion, general norms and individualized decisions, and administrative law and constitutional law.

A purposive approach assists in identifying the key functions of the “prescribed by law” requirement. First, it has both formal and substantive senses which are intimately related to the rule of law. Second, it performs an accountability function by forcing government to take responsibility for general norms that infringe Charter rights. Third, consistent with the intention of the drafters of the Charter, it provides additional protection for the individual from rights-infringing conduct by state actors.

These functions are frustrated somewhat by the analytical framework set out by the Supreme Court of Canada in Slaight Communications v. Davidson (1989). Unfortunately, in its recent decision in Doré v. Barreau du Québec (2012), the Court has only worsened the situation. It did away with the application of the proportionality test where Charter infringements can be attributed to individualized decisions of state officials, substituting instead the more deferential reasonableness test applied in judicial review of administrative action. Accordingly, a return to the pre-Doré situation, as outlined in the majority reasons of Justice Charron in Multani v. Commission scolaire Marguerite-Bourgeoys (2006), would be appropriate.

Moreover, improvements to the analytical framework within which the “prescribed by law” requirement is applied can be effected by using the tools of administrative law. Justification, transparency and intelligibility are the touchstones of reasonableness in administrative decision-making, as the Court itself has acknowledged. Accordingly, administrative decision-makers who fail to confine, structure and check their discretion by adopting “soft law” instruments, such as publicly available guidelines, risk seeing their decisions struck down as unreasonable by reviewing courts. And if decisions are unreasonable, they cannot be “prescribed by law” within the meaning of section 1 of the Charter.

Requiring the adoption of “soft law” instruments gives effect to the formal and substantive senses of the phrase “prescribed by law” by improving the accessibility and precision of administrative discretion; enhances its accountability function by allowing individuals to identify the source of rights-infringing official action and providing a focal point for debate; and hands an additional shield to the individual with which to fend off infringements of the Charter.

I will not be attending the conference in person -- my wife is due to give birth at any moment now -- but my friend Alexander Pless (Federal Department of Justice, Montréal) will be presenting it on my behalf. I welcome any comments.

Two Recent Papers on Accountability

I was particularly taken by Julia Black's recent Calling Regulators to Account: Challenges, Capacities and Prospects:

Since their inception, public lawyers and political scientists have fulminated at the lack of accountability of regulatory agencies. But, though it may surprise their critics, regulatory agencies do not go out of their way to be unaccountable. The difficulties of accountability, this article argues, lie in large part elsewhere: with the institutional position and accountability capacity of the accountors, and with the particular nature of the challenges that face them. The article focuses on developments in the roles of the four main accountors in the UK political domain in turn: the core executive, Parliament, the National Audit Office and consumer bodies, exploring their relationships both with the accountees (the regulators) and with other bodies which are calling those regulators to account. It examines their capacity to call regulators to account, and to meet the five core accountability challenges that face them: viz the scale and scope of the regulatory landscape, the number of organizations involved in any one regulatory domain, the complexity of their relationships and their propensity to blame-shift; the technical complexity and contestability of the regulatory task; the opacity of regulatory processes; and the willingness of the accountee to be called to account. These challenges produce deep-rooted tensions which are not easy to resolve, and create opportunities for blame- shifting which both accountors and accountees can, and do, seek to exploit. Moreover, the roles of accountors themselves are fluid, moving from accountor to participant to controller, bringing further complexity to the accountability relationship. However, it is the nature both of the relationship and the task of accountability that these tensions will exist, and it is right that they do, at least up to a point. For without those tensions both regulators and their accountors will become complacent, which will be to their detriment, as well as ours.

Accountability is a vast concept, and its application is often difficult. Black talks of accountors: bodies which hold regulators to account. She emphasizes the need to look at (1) their institutional position, including the amount of respect they attract and (2) their accountability capacity, in terms of resources. These, it seems to me, are two very helpful axes for charting the concept of accountability in different contexts. For example, one could say as a general matter that courts have a strong institutional position but limited capacity for holding others to account. Therefore, we must sometimes look to extra-judicial bodies.

In that regard, Mark Elliott's recent Ombudsmen, Tribunals, Inquiries: Re-fashioning Accountability Outside the Courts is also worth noting:

Courts play a prominent and significant role in holding public bodies to account in the UK, most obviously through the exercise of powers of judicial review. However, the accountability 'system' extends far beyond the courts, encompassing (among other institutions) tribunals, ombudsmen and inquiries into matters of public concern. This chapter argues that accountability is a protean concept, and that the accountability system must therefore exhibit appropriate diversity if accountability in all its relevant senses is to be secured. This raises questions about the balance and relationship between legal and political mechanisms for supplying accountability. It is argued that an increasing tendency to view the legal-judicial model as a paradigm places other accountability institutions at risk of inappropriate judicialisation. That trend, it is contended, must not continue unchecked if the accountability system is to remain suitably diverse.

Some Justiciability Hypotheticals

Blogging has been light recently: teaching, writing and administrative commitments, allied to some technical problems, have been holding me up.

Due Process and Drone Strikes

Last week, the New York Times published a lengthy article on the 'secret kill list' being maintained by President Obama. Whatever the merits of targeted killings as a matter of international law, international human rights law, or justice, for students of administrative law, there are at least three aspects of interest to the story. To be clear, in what follows, I am not taking a position on the legality or morality of the strikes. But in the absence of formal due process through judicial review, it is worth considering the internal safeguards that administrative law norms suggest.

Delegation of Law-Making Power to Private Entities

Last week the U.S. District Court for the District of Columbia upheld against constitutional challenge a delegation of power to Amtrak to develop performance standards.