Charter Application by Administrative Tribunals: Statutory Interpretation

Canadian courts have come to accept that the constitution is not some sort of holy grail that administrative decision-makers should not touch. As it is the supreme law of the land, its writ ought to run in any government agency, and its authority may be invoked by individuals in almost any decision-making setting.

But does invoking the authority of the constitution, and in particular its Charter of Rights and Freedoms, require an individual to frame their arguments as a lawyer would in the formal setting of a courtroom? In Doré v. Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada suggested that the answer was 'No'. Decision-makers should pay attention to Charter "values", not necessarily Charter "rights", in the exercise of their discretionary authority. The message is: less legalism in administrative decision-making.

Defining Charter values is a difficult task, but let's bracket it for the purposes of this post (for competing takes, see my paper with Angela Cameron and this recent one by Lorne Sossin and Mark Friedman). There is a more difficult question: what is the role of Charter values in statutory interpretation by administrative decision-makers?

A Strange Concurring Opinion by Chief Justice Roberts

The Supreme Court of the United States released Scialabba v. Cuellar de Osorio this week, an attempt to pick apart the entrails of a poorly drafted immigration provision designed to deal with the problem of "aging out". What happens when an immigrant has been on a waiting list for so long that he becomes too old and thus ineligible for processing?

Prosecutorial Discretion and Assisted Suicide, Again

Purely coincidentally, the day after Quebec passed its "right to die" legislation, the Supreme Court of Canada released an important decision on prosecutorial discretion: R. v. Anderson, 2014 SCC 41. The two are linked. (This is a quick take, and I will update with further links later today. UPDATE: updated!)

Quebec's legislative initiative  is problematic because assisted suicide is a criminal offence in Canada. The provinces have no authority to amend the Criminal Code. But they do have authority to regulate healthcare. Quebec's legislation is almost certainly intra vires. End-of-life care has what Canadian courts call a "double aspect": it falls under provincial healthcare jurisdiction and under federal criminal jurisdiction. Recourse to the "double aspect" concept arises because Canada's constitution enumerates the powers of both the federal and provincial authorities.

When federal and provincial regulation clash, federal legislation prevails: the doctrine of paramountcy. Does Quebec's new law clash with the federal prohibition on assisted suicide? It surely undermines the purpose of the criminal prohibition. I imagine that any court seized of the matter would conclude that Quebec can pass "right to die" legislation but that it must yield to federal criminal law. Doctors and others who help euthanize patients would be subject to criminal sanctions regardless of the right enshrined in provincial law. For more, see this post by Daniel Weinstock.

But there is a problem: prosecutorial discretion. Indeed, the expert report commissioned by the Quebec government on implementing assisted suicide legislation suggested that Quebec issue guidelines to prosecutors, using its authority over administration of justice. Regrettably -- because this would at least have made clear to all concerned what is really going on -- Quebec has opted not to do so, leaving it up to prosecutors to deduce from the new legislation that they should not pursue assisted-suicide charges. It is, in short, a matter of their discretion.

The difficulty this raises is that prosecutorial discretion is virtually unreviewable. Here is what the Supreme Court of Canada said today, in reasons written by Moldaver J.:

[46]                          The many decisions that Crown prosecutors are called upon to make in the exercise of their prosecutorial discretion must not be subjected to routine second-guessing by the courts. The courts have long recognized that decisions involving prosecutorial discretion are unlike other decisions made by the executive....Judicial non-interference with prosecutorial discretion has been referred to as a “matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice” which also recognizes that prosecutorial discretion is “especially ill-suited to judicial review”... (cites omitted)

[48]                          Manifestly, prosecutorial discretion is entitled to considerable deference. It is not, however, immune from all judicial oversight. This Court has repeatedly affirmed that prosecutorial discretion is reviewable [solely] for abuse of process...

[50]                          Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system.

Even if a court declared that the criminal prohibition on assisted suicide is paramount over provincial legislation, how would anyone ever know that prosecutors did not rely on Quebec's "right to die"in deciding not to prosecute? It gets messier once one considers the possibility of guidelines. The following passage may inspire Quebec to issue some after all:

[56]                          Finally, I note that the content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion. Policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor’s conduct was appropriate in the particular circumstances. See R. J. Frater, Prosecutorial Misconduct (2009), at p. 259. For example, a decision by a Crown prosecutor that appears to contravene a Crown policy or guideline may provide some evidence that assists the claimant in establishing the threshold evidentiary foundation. However, as the intervener the Director of Public Prosecutions of Canada submits, Crown policies and guidelines do not have the force of law, and cannot themselves be subjected to Charter scrutiny in the abstract... Emphasis added.

What goes for Charter scrutiny here should also go for general constitutional scrutiny. On Moldaver J.'s logic, Quebec could issue guidelines advising prosecutors not to pursue assisted suicide charges and no court could declare the guidelines unlawful!

But that is not all. Moldaver J. had to address an argument that prosecutors had to take into account Anderson's aboriginal status in deciding to bring charges, as a matter of constitutional right. He noted that prosecutors sometimes have constitutional obligations:

[45]                          In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making. That said, care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations. The distinction between prosecutorial discretion and the constitutional obligations of the Crown was made in Krieger, where the prosecutor’s duty to disclose relevant evidence to the accused was at issue:

         In Stinchcombe, supra, the Court held that the Crown has an obligation to disclose all relevant information to the defence.  While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, is a prosecutorial duty. [Emphasis added; para. 54.]

Manifestly, the Crown possesses no discretion to breach the Charter rights of an accused. In other words, prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations such as the duty to provide proper disclosure to the defence.

Perhaps, then, a declaration that federal criminal law is paramount over Quebec's assisted suicide legislation would impose a constitutional obligation on prosecutors regardless of any provincial statute or guidelines. But would this mean that prosecutors have no discretion at all? Would they be bound to bring charges? It would presumably amount only to a mandatory consideration, but proving -- one way or the other -- that they gave it appropriate weight would arguably be beyond the scope of judicial review.

All this may be mooted if the Supreme Court strikes down the assisted suicide prohibitions, as they may well do, but it is a very thorny problem.

Norms, Facts and Metaphors: the Fabulous Baker Factors and other Tall Administrative Law Tales

When judges strike down administrative decisions, they take a step that must be justifiable and justified in normative terms. I suppose we all agree on that.

Yet whole swathes of administrative law doctrine do not establish normative standards for judicial intervention. Rather, they rely on descriptive labels.

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.