Terms and Conditions May Apply: Tribunal Independence

There are two important Canadian doctrines which affect the structure of administrative tribunals: impartiality and independence. Impartiality arises where a well-informed observer would have a reasonable apprehension of bias in a substantial number of cases. Independence, meanwhile, concerns the insulation of tribunal members from outside influence, something to be judged by reference to security of tenure and remuneration and security from external interference.

As has been said:

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word “impartial” . . . connotes absence of bias, actual or perceived. The word “independent” in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.

However, the practical effect of these principles is somewhat limited. They are common law principles, rather than constitutional requirements. Accordingly, statutory authorization can justify breaches of either and, in the case of independence, the Supreme Court of Canada has even suggested that legislative requirements express the desirable level of independence, leaving nothing over for the common law of judicial review.

In Quebec, however, s. 23 of the quasi-constitutional Québec Charter assures the vitality of the concepts. Association des juges administratifs de la Commission des lésions professionnelles c. Québec (Procureur général), 2013 QCCA 1690, was a case brought by members of the province's workers' compensation tribunal, a case they won in part.

The basic argument was that the members of this quasi-judicial tribunal (the CLP) should be entitled to the same conditions as members of the Tribunal administratif du Québec, the province's general appeals tribunal, in order to maintain the appearance of impartiality. In particular, members of the CLP are appointed for renewable five-year terms (rather than indefinitely subject to good behaviour) and their remuneration is not fixed by an independent committee (as is now the case with Crown prosecutors in the province). In addition, a government decree had, the members alleged, interfered with their financial security.

Although these arguments mostly carried the day at first instance, they did not impress Bich J.A., who wrote for the Court. She emphasized that institutional impartiality and independence are flexible and should vary depending on context:

[27]        Les garanties conférées en cette matière aux tribunaux administratifs, et qui trouvent leur source dans les règles de la justice naturelle, peuvent donc varier et elles varieront en fonction de la nature précise du pouvoir décisionnel et des modalités d'exercice de ce pouvoir, le tout sous réserve des termes de la loi. Dans cet ordre fluctuant, le tribunal administratif qui exerce des fonctions purement juridictionnelles – et la Cour suprême, là encore, l'a confirmé – doit offrir le niveau de garantie le plus élevé, niveau qui n'a cependant pas, je me permets de le répéter, à être celui des cours supérieures ni même celui des autres cours de justice.

...

[40]        C'est ainsi que, bien qu'elles soient dans tous les cas essentielles, l'inamovibilité, la sécurité financière et l'autonomie administrative ne sont pas toutes atteintes par l'octroi des mêmes garanties exactement. Comme on le sait, les garanties accordées aux tribunaux administratifs n'ont pas à être celles des cours supérieures ni celles des autres cours de justice et varieront selon la nature et le contexte de leurs fonctions, selon la question de savoir s'ils statuent sur les droits de l'État ou les décisions de celui-ci ou sur des litiges privés, etc. La situation de chaque tribunal doit être évaluée à la lumière de la réaction du justiciable raisonnable et bien informé, qui étudierait la question en profondeur, mais de manière réaliste. Ce justiciable, ayant examiné les conditions de la nomination des décideurs, les garanties associées à leur sécurité financière et la question de leur autonomie administrative, craindrait-il que le tribunal soit ou paraisse à la solde de l'État, d'une partie, d'un groupe de pression, d'un tiers à la décision ou qu'il soit vulnérable à la corruption tant financière que morale et rende des décisions qui ne soient pas fondées que sur le droit et les faits du litige? Cet exercice, précisons-le, implique à la fois un examen des conditions individuelles de l'indépendance, mais aussi un exercice de soupèsement global : c'est l'ensemble des garanties offertes que l'on doit étudier, pour en tirer une conclusion générale.

In the case of quasi-judicial tribunals such as the CLP, the requirements are at their highest. Whether the requirements have been met is to be judged from the standpoint of the well-informed, reasonable observer who takes into account the criteria for appointment, financial security and level of protection from outside interference. The question, based on these considerations, is whether the observer would fear that the decision-maker is a stooge for governmental or private interests or unlikely due to outside pressures to take decisions based on the facts of individual cases.

The CLP members had sufficient security of tenure. Their five-year appointments are terminable only for cause and decisions not to renew a member's mandate are subject to a rigorous process. More interesting was the proposition that subjecting the CLP members to annual performance evaluations which could be taken into account in deciding not to renew their mandates undermined security of tenure. Bich J.A. was unimpressed:

[64]        Comme je l'ai déjà observé, l'idée de mandats à durée fixe (ou déterminée) ne va pas sans celle de renouvellement desdits mandats. Or, il va de soi qu'on ne peut pas faire du processus de renouvellement un mécanisme purement arbitraire, dépendant du seul bon vouloir des membres du comité; on ne peut pas non plus en faire un processus automatique n'obéissant à aucun critère qualitatif, sans quoi, ce serait l'équivalent d'une nomination durant bonne conduite, que le législateur, ici, n'a pas voulue et qui n'est pas requise. Que les membres du comité de renouvellement, désormais indépendants de l'administration publique (comme on l'a vu), puissent considérer les évaluations de rendement faites par le président de l'organisme (qui, lui, n'est pas membre du comité) paraît tout à fait normal dans ce contexte. Il n'est pas utile d'insister sur le fait que la compétence, tout autant que l'indépendance, est une condition sine qua non d'une saine administration de la justice, y compris la justice administrative. L'on ne peut pas raisonnablement se formaliser d'un processus de renouvellement qui tient compte de cette dimension de la fonction juridictionnelle. La Cour a déjà exprimé ce point de vue dans l'affaire Barreau de Montréal, lorsqu'elle conclut que, si l'évaluation du rendement de chaque commissaire ne peut être utilisée aux fins de fixer sa rémunération, elle peut néanmoins « être considérée par le comité indépendant chargé d'en recommander le renouvellement ».

The situation would be different, she noted, if an evaluation were used in bad faith, as a Sword of Damocles hanging over the head of a decision-maker (at para. 65), but no such incident had been reported.

In addition, the legislative choice to vest members of the Tribunal administratif du Québec with indefinite tenure during good behaviour did not suggest that fixed, renewable mandates violated s. 23 of the Québec Charter. Given the flexibility of the principles of institutional impartiality and independence, the legislature was entitled to apply a slightly higher standard to the TAQ than to the CLP.

The CLP members also had sufficient financial security. Here, the complaint was three-fold. First, while CLP members are paid on a salary scale determined in advance, a member's position on the scale may vary. Bich J.A. held that, on its own, this initial disparity (which eventually is corrected) does not undermine members' financial security. Second, the government had, in the midst of the 2008 financial crisis, adopted a decree which had the effect of reducing the salaries of some members and of slowing other members' progression up the salary scale.

Bich J.A. held that this general measure, applicable across the public service and not intended to single out members of the CLP, did not undermine the financial security of members of the CLP:

[105]     En l'espèce, la preuve ne révèle aucunement que le Décret 370-2010 a été imposé dans un but malhonnête ou spécieux ou que l'exécutif entendait cibler par là les commissaires de la CLP (ou d'autres tribunaux administratifs) ou de réduire leurs revenus à un niveau indéfendable ou d'établir entre eux des distinctions injustifiables ou d'influencer leurs décisions. Au contraire, ce décret répond à des impératifs économiques et budgétaires importants, il s'insère dans une politique générale d'austérité applicable à tous ceux dont la rémunération dépend des fonds publics et a par ailleurs un caractère temporaire.

[106]     Il n'y a donc pas lieu de conclure que le Décret 370-2010 attente à la sécurité financière des commissaires et à l'indépendance que requiert l'article 23 de la Charte québécoise, pas plus qu'il n'y a lieu de conclure que ce décret équivaut à une intrusion arbitraire de l'exécutif dans la sphère protégée de l'indépendance juridictionnelle.

The decree was, however, inapplicable to members of the CLP because it was inconsistent with s. 404 of the Loi sur les accidents du travail et les maladies professionelles. A minor victory for the members of the CLP.

Third, it was not necessary to provide for an independent committee to determine the remuneration of the CLP members (as had been done for Crown prosecutors in the province). Again, Bich J.A. emphasized, the principles of institutional impartiality and independence are flexible and do not require uniform solutions to problems that cut across different decision-making bodies.

And finally, the CLP has adequate protection from outside influence. The claim here was that the requirement to produce budgetary submissions and an annual report detailing its work could undermine its independence. But the absence of financial autonomy was not dispositive, according to Bich J.A., especially in the absence of any proof of interference:

[148]     Bref, en l'absence d'intervention ministérielle (de fait ou de droit) dans la « gestion juridictionnelle » de la CLP, je ne crois pas que tous « ces points de contact », pour reprendre l'expression du juge Gonthier, entre ce tribunal et l'exécutif nuisent de quelque façon à son indépendance. On notera que même les cours de justice québécoises (y compris la Cour supérieure) n'ont pas une autonomie budgétaire ou administrative parfaite[109] et que les contraintes qui leur sont imposées peuvent avoir un effet sur leur gestion juridictionnelle, dont elles demeurent maîtres cependant. Il n'en va pas différemment de la CLP.

An interesting review, then, of the principles of institutional impartiality and independence. Yet again, however, arguments based on these principles ultimately did not carry the day.

Eligibility to sit on the Supreme Court of Canada

Mr. Justice Nadon, a member of the Federal Court of Appeal, was named -- and indeed has been sworn in -- as a judge of the Supreme Court of Canada. But a challenge has been launched to his appointment. And until the challenge is resolved, Justice Nadon will not sit as a member of the Supreme Court. The applicant in the case is a Toronto lawyer, Rocco Galati. You can read his Notice of Application to the Federal Court here (via Trevor Guy).

Will the challenge succeed? I think the ultimate question here is a close one. There is a good argument that Federal Court of Appeal judges are not eligible for appointment to the three seats reserved for judges from the province of Quebec.

OBA Annual Update on Judicial Review

In Toronto on Thursday, October 24, I am speaking with Justice Stratas of the Federal Court of Appeal on developments in administrative law.

We will be poking at the entrails of recent Supreme Court of Canada decisions and trying to discern what the future holds.

Discussion will be informal and frank.

I am very much looking forward to it and hope to see you there!

Expertise and the Copyright Board

I spent yesterday afternoon at an excellent conference in Ottawa on the Copyright Pentalogy. I was among the contributors from the collection on the pentalogy edited by Michael Geist who gave presentations. I was also the only non-copyright lawyer who spoke. Regular readers will not be surprised that I urged deference from the courts to the Copyright Board.

This provoked an excited reaction from other presenters and attendees, much of it in the corridors and during the coffee breaks! The vast majority of experts in copyright law do not think much of the Copyright Board's "expertise". They applaud the Supreme Court of Canada's decision to take the reins of copyright law, suspecting that beneath the technical justifications for refusing to defer lies an appropriate disdain for the Copyright Board.

The running theme of the criticism was that members of the Copyright Board are not nominated at all for their expertise -- legal or otherwise -- and have not spent time working in areas which would allow them to develop in-depth knowledge of intellectual property issues.

Another important point -- in fairness to the Copyright Board -- is that it is difficult to persuade people to take on what is seen as a thankless task. The highly technical proceedings before the Copyright Board are quite a few steps removed from the glamour of the Emmys.

Am I shaken from my pro-deference position by these concerns? Not really (yet...).

The first answer to the criticism is that the problem is essentially a political and cultural one. If the government nominated people with greater expertise in copyright law, then the Board would be better off. If people with expertise in copyright law put themselves forward for consideration, then the Board would be better off. But these are political and cultural problems, which should be resolved by the political branches and members of civil society.

The second answer to the criticism is that we should not be too quick to assume that lawyers have some sort of magical prowess when it comes to questions of copyright policy. Over the centuries, legal experts have built up a superstructure of impressive-sounding legal principles and precepts. It must be dreadful to see these mangled by non-lawyers!

But at base, many of the questions that come before the Copyright Board are essentially questions of fact and policy which do not require legal knowledge as much as they require practical wisdom.

Doubtless the Copyright Board often explains decisions based on practical wisdom in terms that fit uneasily (or not at all!) with the body of copyright law built up over the years. But as the Supreme Court of Canada has wisely taught, reviewing courts should not engage in a "line-by-line treasure hunt for error". If a conclusion falls within the range of reasonable outcomes, it should not be disturbed solely because some of the decision-maker's reasoning was suspect.

Unsurprisingly, these "first, kill all the lawyers" responses didn't go over very well yesterday! I wonder what those from other fields think.

Referendum-itis

Apologies for this break from our usual fare, but my essay from last year on the referendum process in Ireland is no longer available on the Human Rights in Ireland blog. As we wait for the results of yesterday's referendum, I cannot resist reposting my mischievous polemic. The low turnout and poor understanding of the issues relating to abolition of the Senate and insertion of a Court of Appeal support a lot of what I had to say!

The Irish body politic suffers from referendumitis, a terrible disease that weakens those it purports to empower. My contribution to the shadow constitutional convention is to offer, in the form of a polemic, a tentative diagnosis and a tentative cure.

As to diagnosis, referendumitis courses through Irish political life, weakening both the Dáil and the people themselves. Some recent examples demonstrate that the country is worse off for its tendency to decide contentious issues by plebiscite: the referendums on European treaties, investigative powers of the Oireachtas, and judges’ pay.

As to cure, the power to initiate referendums should be removed entirely from the Dáil’s arsenal. Instead, only popular referendums should be put to the people, once 500,000 signatures have been affixed to a petition.

No doubt my medicine will be difficult to swallow, for the host is racked by the referendumitis malady. But allowing the solution to run its course will restore Ireland to health.

The Power of Amendment

Article 46.1 of the Bunreacht provides for amendment, “whether by way of variation, addition, or repeal”. Doubts have been raised by commentators as to the lawfulness of amendments which violate fundamental rights or contradict other constitutional provisions, but the courts have steadfastly read Article 46 broadly.

Barrington J., in Finn v. Minister for the Environment, was forthright:

           

[T]he people intended to give themselves full power to amend any provision of the Constitution and…this power includes a power to clarify or make more explicit anything already in the Constitution.

Subsequently, in In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, the Supreme Court rejected the suggestion that amendments to the Constitution in violation of natural law could be void and of not effect:

The People were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the People.

Such stirring references to the power of the People – note the capitalization – can only thrill the blood. In substance, the people do indeed have a broad power of amendment. But the capitalization of the word “People” is jarring. Even in the Bunreacht the word is not capitalized. Barrington J. saw no need to aggrandize the citizenry in this way. Did the Supreme Court protest too much? Are the people really people with a capital “P”?

It turns out that an important formal barrier to the exercise of the power of amendment is mounted by Article 46.2:

Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

Whatever power the people have, it can only be exercised when their hands are held by their elected representatives. Rhetorically, the People are captains of their fate. In reality, the people are vassals of their own elected representatives, allowed to make decisions only when they are asked to do so. Given that merely the passage of a Bill is required to pose a question to the people, referendums give politicians an easy way out.

The Powerlessness of Politicians

The ready availability of referendums has enfeebled the elected representatives, who are either unable to push back against wrong-headed judicial decisions or unduly afraid of being on the receiving end of the judicial lash. Consider three examples (best read in tandem with Conor O’Mahony’s previous contribution).  

The most egregious is the supine response to the Supreme Court’s decision in the Crotty case. There, a razor-thin majority of the Supreme Court held that the Single European Act fettered the power of the executive to make foreign policy. Ratifying it would thus amount to “clear disregard” of the provisions of the Bunreacht. Rather than pushing back, politicians bent the knee. All subsequent European treaties have been submitted to the People in referendums, even in cases where the treaties could safely be described as exercises in supranational housekeeping. A nadir was reached with the fiscal treaty amendment, where the treaty at issue was not even an EU treaty, and where no provisions of the amendment actually contradicted an existing judicial decision or term of the Bunreacht! At best, the referendum has a prophylactic effect, protecting against binding decisions far off in the future.

In a healthier jurisdiction, politicians would have pondered the implications of holding referendums on European treaties as a matter of course. They might have asked themselves whether complex questions of pan-European governance could really be reduced to a simple up or down vote. Such reflection ought to have been particularly acute on occasions when questions were reduced to a simple up or down vote for a second time, the required answer having not been furnished at the first time of asking.

They might then have asked whether the Supreme Court was actually right in Crotty. They might have turned to the text of the decision and wondered whether the conception of sovereignty articulated therein was one which should continue to bind the organs of state in the 21^st century; whether continued acquiescence by voters to pro-European parties and pro-European constitutional amendments gives the state more leeway in negotiating treaties; and, most of all, whether the reasoning of Crotty applied to every single treaty negotiated at the European level. Perhaps, they might have wondered, having read it closely, whether the logic of Crotty ought to be considered afresh.

A strong, healthy body of elected representatives would have taken account of these potential frailties in the reasoning of the majority of the Supreme Court and pushed back against the Crotty decision. Instead, they chose the easier route: ask the people, those with the ultimate power to bind the state.

Perhaps even more depressing is the tale of the investigative powers of the Oireachtas, emasculated by the Supreme Court in its Abbeylara decision. More depressing because in holding that the Oireachtas did not have the inherent power to make findings of fact adverse to individuals, the Supreme Court left plenty of room for interpretation. Politicians might have pushed back by forming new committees, with the power to make recommendations, but without the power to make findings of fact against individuals. Or new committees with the power to make findings of fact against institutions, but not against individuals. Or – most of all – new committees with a mandate to conduct investigations with a view only to formulating proposals for legislative change. On any of these grounds, clever counsel for the Oireachtas could have sought to distinguish Abbeylara. 

A changing climate might also have contributed to reconsideration by the Supreme Court of the scope of Abbeylara. Attacking individual Gardaí, only one step removed from most ordinary civilians, who were doing their best in a situation of severe pressure is one thing. Aggressively questioning financial regulators or the Captain Edward Smiths of the financial industry is quite another. Brave politicians concerned for the health of the legislature would recognize the distinction and the space in which to push back.

Instead, an ill thought-out and poorly worded amendment was put to a referendum. Virtually no context was provided. A decade had elapsed since the Abbeylara inquiry foundered. Those events had slipped deep into the public unconscious. Pushing back earlier and aggressively would have raised public awareness. Putting a question to the people in the aftermath of an adverse judicial decision would have had the benefit of focusing minds. An intelligent public debate might even have ensued. Failure to push back led instead to a debate in which the main ‘issue’ was whether voters wanted to give the likes of Mattie McGrath more power. Reduced to these terms, the debate was one the Oireachtas could never win.

Further evidence that politicians will not take tough decisions and prefer to follow the path of least resistance comes from the judicial pay saga. When extending public sector pay cuts to judges was first mooted, there was broad public support. Academics too noted that ordinary legislation would probably suffice: general legislation with an incidental effect on judges would violate neither the letter of Article 35.5 (“The remuneration of a judge shall not be reduced during his continuance in office”) nor the spirit of judicial independence enshrined in the Bunreacht. The Attorney General concluded otherwise. His advice has not been made public, but it was hardly ill-founded: there is an argument that treating judges as members of the civil service is a violation of the Bunreacht’s separation of powers between legislature, executive and judiciary.

What is interesting is what happened next. Faced with decent arguments on both sides, the government decided to pose a question to the people rather than answer it itself. It is difficult to see how this could possibly have represented the best strategy. Opposing ordinary people and members of the judiciary was a recipe for mutual incomprehension and disaster. It would have been far better to ‘legislate and be damned’. In that case, any erstwhile judge who sought to have the measure invalidated would have had to mount a constitutional challenge. His or her chances of victory could not have been more than 50%. A calculated risk, then, for the government. Why involve voters in what was essentially a technocratic dispute between organs of state? When, as was predictable, the debate turned to whether ‘fat cat judges should pay their share’, all opportunity for intelligent discussion was lost. The standing of the judiciary was hardly enhanced by this episode.

A healthier, stronger legislature and executive might have been able to push back against some or all of these adverse judicial decisions, real and potential. Doing so would take imagination and courage, involving a commitment to public debate on wide-ranging issues. What is the nature of sovereignty in the modern world? How should legislative powers be exercised and their scope increased? Does cutting the pay of judges, along with that of other public servants, endanger the separation of powers? Avoiding deep engagement on these difficult questions, Irish politicians have instead taken the path of least resistance by reducing them to a series of Yes/No propositions. Worse, once politicians have first gone down the referendum road, it becomes progressively more difficult to turn back. Expectations of public consultation increase. Desires to push back decrease.

One bright light can be noted on the horizon. The Public Accounts Committee’s current attempt to launch a wide-ranging investigation into the circumstances of the blanket guarantee of bank debt may demonstrate that elements of the body politic have been shocked into life by the defeat of the referendum on Oireachtas powers. Only time will tell, however, whether this is merely temporary respite or the beginning of a healing process.

The Powerlessness of the People

The formal constraint on the power of amendment means that the people are trusted to vote only when they are asked to. It means they are dragged out for matters they could evidently care less about: barely a third of the population voted in the first referendum on the Nice Treaty. Moreover, the formal constraint means the people are only allowed to vote where the political elites deem it acceptable for them to do so. A referendum on children’s rights and the place of the family would be politically sensitive. As a result, the issue of the appropriateness of some of the anachronistic provisions of the Bunreacht remains in permafrost, along with those provisions themselves.

Worse, referendums on European treaties have only one answer. When the wrong one is given, the people are called back to the polling stations after a ‘period of reflection’ (during which no reflection takes place) or the extraction of ‘concessions’ (in reality, statements of the blindingly obvious). The people are free to vote Yes, when they are asked. No stronger evidence of the powerlessness of the people could be adduced.

Such powerlessness may be linked to the very nature of referendums. In their function as vassals of the Oireachtas, the people merely provide votes. No forum for discussion is provided: just a ballot box and a sheet of paper. The reduction of the people to providers of votes is facilitated by the Yes/No, up or down propositions with which they are confronted in a referendum. People are viewed as atoms, clashing together and bouncing to rest on one side or the other of an artificially imposed line.

Parliamentarians fare little better in this process. Facilitation is their role: to hear his or her master’s voice and drag as many atoms as possible to the ‘right’ side of the line.

Nowhere in this process is there room for deliberation or discussion. Yet maybe a vote on a European treaty cannot be reduced to an up or down proposition. Perhaps the role of the Oireachtas cannot be distilled into a set of investigative powers. And what of those who think that it is simply inappropriate to subject the pay and pensions of judges to a referendum?

If democracy is viewed as a deliberative and discursive process, to which people are allowed to contribute in the way they choose, be it talking, writing, phone-calling, emailing, commenting on internet message boards, marching, demonstrating, encouraging, cajoling, or whatever, the reductionist nature of Irish referendums can only be damaging to the health of the body politic.

These questions – Ireland’s relationship with Europe, the nature of the legislative function, judicial independence – are ones which require an ongoing process of engagement and contestation. No political decision or commitment is forever. And no judicial decision is forever either. Politics and law have a dynamic quality: they respond to the exigencies of their time. That dynamism can only be fed through public deliberation and discussion. It is not nourished by treating citizens as atoms and reducing important questions to simple propositions to which the citizenry parrots in unison Yea or Nay.

In a deep and meaningful sense, Irish referendums are undemocratic.

Popular Initiatives

Article 46.2 should be removed from the Constitution. There is some attraction to removing referendums altogether. Even in jurisdictions where constitutional change can (in reality) be effected only by courts and then over a process of time, popular movements, shifts in public discourse and changes in the preferences of the citizenry can work to change constitutional doctrine.

But casting referendums out might be too dramatic a cure. The body politic might not tolerate such a sudden change to its system. And even in the United States, the possibility, however remote, of effecting constitutional change through a formal process has galvanized movements on both sides of the political divide. From the left with its Equal Rights Amendment to the right’s proposed Same Sex Marriage Amendment, popular movements for constitutional change have prompted public discussion and deliberation.

What seems necessary in Ireland is for the people to be released from the shackles of their elected representations. A real power of popular initiative should be introduced. Even if the final questions on the ballot paper were to remain Yes/No propositions (although there is no rule against multiplying the available choices), the need to accumulate thousands of signatures and the process of doing so would provoke public discussion and deliberation. A high threshold of 500,000 signatures is important to ensure that the process is taken seriously and that only propositions capable of attracting support from a broad cross-section of society get on the ballot paper.

Reflection on the choices to be made about law, politics and society would be the order of the day. Referendumitis would be banished. And the people would become the People.

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.