Procedural Fairness before Tribunals of Inquiry: Mr. Chevrette and the Charbonneau Commission

Quebec's Charbonneau Commission is continuing to make headlines. Most recently, the testimony of Ken Pereira, a former trade union activist, is keeping the printing presses tipping over.

The Commission registered an important victory earlier this week before the Superior Court on a question of procedural fairness: Beaulieu c. Charbonneau, 2013 QCCS 4629.

Mark Elliott on Substantive Review

Mark Elliott has a very interesting post on substantive review on the UK Constitutional Law Blog.

Here are some choice extracts, with some highlighting:

A better starting point, I think, is another insight offered by Taggart, according to which public law is increasingly about the enforcement of a “culture of justification”...

Against this background, several questions need to be posed about the notion of justification. Most obviously, it is meaningless to ask whether a given decision or policy is justified unless we articulate the standards against which the measure is to be evaluated. At the very least (leaving third-source considerations to one side for present purposes) there will be a need to demonstrate positive legal authority. But if particularly valuable norms, such as the rights or legitimate expectations of the individual, are impinged upon then the sufficiency of any justification may fall to be assessed against additional, more demanding criteria. It is also important to be clear about two further matters. First, when we say that a decision must be justified by reference to a given benchmark, what does that really mean? It presumably means something more exact (and, normally, something less) than that the court has to be satisfied that it too would have proceeded in the way that the administrator did. The nature of justification is, in this sense, tied up with considerations about the standard of review—which, in turn, relates back to an assessment of the normative significance of the value impugned by the decision and hence the appropriate scale of the decision-maker’s justificatory burden. Second, even once the issue of the standard of justification, or review, has been settled, questions will arise about whether that standard has been met—which, in turn, triggers questions about the court’s role in evaluating the quality of any justifications offered by the decision-maker.

My argument is that it is necessary to move beyond a doctrinal focus which results (depending upon one’s preferences) in either a bifurcated approach or one wedded to a specific doctrine (e.g. proportionality), and to concentrate instead on calibrating substantive review by reference to the normative and institutional considerations which ought properly to shape it. I readily acknowledge that this approach may sometimes—perhaps often—produce outcomes that do not, at least superficially, differ radically from the position that would obtain according to the conventional wisdom. I am certainly not suggesting that the courts invariably, or even often, get it wrong. The difference, however, is one of emphasis. The aim is to secure a framework that is better equipped to enable the courts to get it right, and one that is shaped from the bottom up by the relevant normative and institutional factors. Doctrine should be the servant of such considerations, not a procrustean bed into which they have to be shoehorned.

First, the court will have to determine what should constitute the operative standard of justification in the particular circumstances of the case. What, in other words, should be the justificatory burden under which the decision-maker is placed, and which will have to be discharged if the decision is to be found by the reviewing court to be lawful? The proportionality versus rationality debate captures something of this matter—but only in a rudimentary fashion. On the face of it, asking whether a decision is proportionate is different from—and subjects the decision-maker to a more demanding justificatory burden than—asking whether it is merely rational. However, just as proportionality and rationality are distinguishable, so are distinctions—justificatory gradations—concealed within those concepts. The “sub-Wednesbury” and “super-Wednesbury” notions have long been evidence of this in relation to the rationality doctrine, as also is the more recently-developed “cogent reasons” concept. The point is obvious too in relation to proportionality, which can be (and is) deployed in more and less demanding ways. For instance, the requirement that a given measure be a “necessary” means of advancing a legitimate aim does not always mean what it says, in that the necessity criterion does not invariably rule out every option save that which is the least restrictive of the compromised right or other norm.

When the court rolls up its sleeves and begins to confront questions of this nature, considerations about the intensity of review—and deference—necessarily shift from the abstract to the particular. The setting of the burden of justification (or of the starting-point level of deference) is undertaken on the basis of an all-other-things-being-equal assessment of the nature and importance of the compromised norm. The reality, however, is that all other things are often not equal, such that the court’s analysis of whether the operative standard of justification has been met may need to be moderated by reference to considerations of adjudicative deference. Starting-point deference is then about determining the onerousness of the decision-maker’s justificatory burden; adjudicative deference, in contrast, is relevant when the court is determining whether that burden has actually been discharged.

I have written a little on similar themes: see "Defining Deference" here.

Acknowledging that there are (at least) two stages at which deference (and the considerations that underpin it) can play a role is important. In both determining the standard of review -- correctness, reasonableness, proportionality, etc -- and in the application of the standard, it is possible for reviewing courts to be deferential. In applying a standard of reasonableness (doctrinal deference), some weight (epistemic deference) might be given to a decision-maker's identification of the interests relevant to making a decision. Of course, there is a danger of double counting in these situations. If we decide on the basis of various considerations that deference is appropriate in determining the standard of review, it might not be appropriate to return to those same considerations and tilt the balance further in favour of the decision-maker.

But, as Mark suggests, we should not be slaves to technical arguments about doctrine. Most of the hard cases that public lawyers have to address involve situations in which the "reasonableness" or "proportionality" of a decision is not clear one way or the other. The real question is whether the "burden of justification" has been discharged: has the decision-maker convinced the reviewing court that, despite appearances, its position is justified? We need to ask what the relevant considerations are in answering this question. Plainly, it is necessary to drill down underneath concepts like "reasonableness" and "proportionality" and identify their true foundations in order to understand how public law judges decide and how they ought to decide. 

Procedural Fairness in Public Sector Bargaining

Public Service Alliance of Canada v. Canada (Attorney General), 2013 FC 91 is an illuminating case on many issues, especially procedural fairness. 

At issue was a labour relations dispute between the federal government and one of its agencies. The bone of contention was a direction by the Minister for Canadian Heritage that a group of workers at the Canada Border Services Agency should hold a vote on the last offer made to them. Section 183 of the Public Service Labour Relations Act allows the Minister to order that a vote be taken where he considers it would be in the public interest to do so.

The direction in the present case was issued without consideration of a report concluded by an expert body which had previously been appointed under the Act. Moreover, it was issued without notice to the applicant. Gleason J.'s ultimate conclusion was that the direction was unfair.

Administrative Law and the Next Supreme Court of Canada Justice

With Justice Morris Fish's retirement, the federal government must appoint a new judge from the province of Québec to the Supreme Court of Canada. A shortlist of three names is lying on the Prime Minister's desk.

Among them is thought to be Justice Bich of the Québec Court of Appeal. I spoke with the Globe and Mail's Sean Fine last week. He mentioned that there was a sentiment that Justice Bich was thought to be too liberal for nomination by the current conservative government. This characterization seemed to me to be quite inapt, as I explained to Mr. Fine. Here is the relevant extract from his article:

Justice Bich, an expert in administrative law who writes frequently, and with gravitas, and knows civil law thoroughly, is considered a favourite. “Any third-year law student would tell you she’s a contender,” a Montreal lawyer said.

And she can’t be easily pigeonholed. “She’s a very intelligent judge who is likely to go further than the current Supreme Court in deferring to government agencies,” said Paul Daly, a University of Montreal law professor.

Presumably, the idea that Justice Bich is too "liberal" is intended to mean that she will be willing to enforce limits on government action, especially limits drawn from the Charter. But judging by Bich J.A.'s administrative law jurisprudence the idea that Bich J. would be an interventionist is entirely wrong-headed. In fact, she has gone further than the Supreme Court of Canada in advocating (a) deference on questions of procedural fairness; and (b) deferential review of general questions of law. A Supreme Court with Justice Bich on it would offer more latitude to government, not less.

In this, Justice Bich follows in a long tradition of Canadian labour lawyers (for she is, first and foremost, a labour-law expert) who have been suspicious of judicial activism. For example, Paul Weiler's influential 1971 article warning of the "slippery slope" of judicial intervention focused on the Court's meddling in labour law.

In short, Bich J.A. has been an innovative thinker on questions of administrative-law jurisprudence and she has wholeheartedly embraced the Supreme Court of Canada's deferential turn. Not appointing her because of a perception that she would be interventionist or too "liberal" would be profoundly silly.

Audrey Macklin on Divito

Audrey Macklin sent on some perceptive, though critical, comments on my post on last week's Supreme Court of Canada decision in Divito. She kindly allowed me to share them:

1. I agree with your preference for the minority view on the breach of s. 6(1). If you are right that an inchoate appeal to positive/negative rights underpins the majority, I would go further and say that such a classification is both distracting and unhelpful when it comes to analysing many Charter rights (and perhaps any const'l rights).  Consider the franchise -- one cannot conceive of exercising a right to vote without considerable state 'intervention' to make it happen.  So too with entry to Canada (coincidentally, another right attached to citizenship).  The default position of all states that consider sovereignty to reside in the right to control borders is that the border is always already closed unless and until the state assents to entry.  And this state practice reaches well beyond the border (as in the title of a 2011 gov't initiative) -- a citizen cannot board a plane for Canada without a passport, and if you pitch up at a land border without one, good luck entering. This is why in Abdelrazik (as I recall) the FC grasped that a right to a passport is encompassed in the right to enter. So there is no zone of freedom within which which [lawful] entry to Canada happens in which one might imagine a negative right to be free of gov't interference in entry to Canada.

2.  The 'floodgates' concern you identify fails to distinguish those impediments to entering Canada that are exclusively within state control (consent to prisoner transfer, border clearance, passport issuance) and those that are not (funding a plane ticket).  As it happens, Canadian embassies/high commissions do sometimes pay for flights of Cdns who are stranded abroad for one reason or another (usually catastrophic events outside their control), but it is often a loan, not a gift. In any case, one need not take a position on whether the gov't has a legal obligation to do that in order to dispense with the floodgates argument.

3. If one recognizes (and takes seriously) that withholding consent to a prisoner transfer does violate s. 6, the discretionary criteria in s. 10 are not so 'evidently pertinent' after all. If I am a citizen, why does it matter how long I have been absent, whether I have family members, what my intentions were in leaving or remaining outside Canada, my health status etc.?  The point of being a citizen (as opposed to a permanent resident) is that these things don't matter.  I cannot see how the fact that I'm a prisoner seeking transfer transforms them into justifications for a denial of my s. 6 right, unless one implicitly downgrades the right to a privilege.  The only plausible contenders for justified grounds to limit the right are those that relate to security/public safety.  This is what the FCA's fanciful hypothetical was about.  Yet even this is ultimately irrational:  It relies on the notion that a person in a Canadian prison poses a risk to public safety/security. In other words, it asks us to accept that Corrections Canada cannot protect Canadians from offenders while those offenders are INSIDE prison, even though the detaining state seems able to do so, and Canada seems able to do so with respect to all the dangerous people already in Canadian prisons. (The Federal Court's fanciful hypothetical tried to maneouvre around this). Indeed, if a Canadian is convicted in Canada, Canada simply has no choice but to find a way to incarcerate that person and keep everyone safe.  So it is neither rational nor plausible to claim that the same can't be done with a Canadian incarcerated abroad.  That is, there is no justification once one genuinely recognizes that the right of a citizen to enter is breached by withholding consent to a transfer. I suppose one could try to make something out of the cost considerations of incarcerating Canadians transferred from abroad, but this seems pretty lame and, in any case, it ignores the reciprocity upon which prisoner transfer is based -- Canadians are transferred into Canadian prisons, but foreign nationals are also transferred out. 

The factum prepared by the Asper Centre can be found here.

Any further thoughts or comments are welcome!

Positive and Negative Mobility Rights: Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47

In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, handed down yesterday, the Supreme Court of Canada was unanimous in upholding the International Transfer of Offenders Act against (a long-shot) constitutional challenge. But the judges mapped out two different routes to that conclusion, evidence I think of difficulty in tracing the contours of the right at issue. Understanding these two routes is important, because it will have an effect on how the Act is treated in future cases. Not all of what follows is in my core area of expertise, so I welcome comments.

Public Interest Immunity and Good Record Management

Where disclosure of documents would be detrimental to the public interest, courts have the power to refuse it (see e.g. here). So-called public interest immunity is a hugely important topic, especially where the powers of public bodies are concerned. The issue very recently divided a very strong bench of the Federal Court of Appeal in an important case, Slansky v. Canadian Judicial Council, 2013 FCA 199 (not yet on FCA website; link courtesy of Rob Centa).

The division sheds light on the nature of public interest immunity and how best courts might respond to claims that information should not be disclosed. In particular, their power to manage the judicial-review record might be usefully employed to minimize the damage to the rule of law that sweeping claims of immunity can do.