Saturday 28 June 2014

New Location for Blog:

As promised, the new website is now up:

Those subscribed by email or RSS should not need to change their settings.

If you have bookmarked this page, please bookmark

You will notice that the new site is much more comprehensive: it includes publications and speaking engagements, for example.

Thanks to my colleague Vincent Gautrais for making the platform available and to Florian and Marie-Christine for helping me to get it up and running.

Friday 27 June 2014

Attaquer une décision en révision judiciaire

I gave a presentation a few weeks ago for the Canadian Institute. An odd subject for a partisan of deference like myself, but I enjoyed putting a paper together. Practitioners may find it provides helpful guidance on ways to attack administrative decisions. You can download it here.

And here is the abstract:
J’essayerai lors de cet exposé du droit canadien en matière de révision judiciaire de fournir quelques conseils pratiques aux plaideurs qui contestent des décisions administratives.

Admettons dès le départ que le sort des plaideurs n’est pas enviable. La décision administrative est présumée valide et l’individu mécontent qui intente un recours devant les tribunaux de justice se trouve alors avec un fardeau imposant sur ses épaules.

Notons en plus que l’auteur du présent texte est un partisan féroce de la déférence envers les décideurs administratifs. Néanmoins, il y a une tendance, particulièrement marquée dans la fonction publique, à pousser à la limite l’approche déférentielle mandatée par la CSC.

Je discute notamment des deux volets de raisonnabilité: justification, transparence et intelligibilité (avec ces deux exigences: les décisions doivent être compréhensibles et révisables) et les issues possibles acceptables (une zone de raisonnabilité construite du contexte juridique et factuel).

Le message du présent texte est que la déférence n’est pas absolue. Les plaideurs ont plusieurs moyens de contester la validité d’une décision administrative qui ne plaît pas à leur client.
Eagle-eyed readers will already have noted that the paper is in French. Don't let that deter you! Download it here.

Tuesday 24 June 2014

Common Law Restraints on Discretionary Powers: S156-2013 v. Minister for Immigration and Border Protection, [2014] HCA 22

An old debate in administrative law concerns the appropriate role of courts in imposing common law restrictions on discretionary powers. For example, when a statute says "X may, in his absolute discretion, do Y", are any limitations of fairness or rationality implied by the common law? The modern tendency has been to admit that there are such limitations. Agreement on this is hardly uniform, however, and there is certainly no agreement on how far judges can legitimately go in imposing common law restraints on discretion.

Friday 20 June 2014

Stare Decisis in Administrative Law

Here is a problem for deferential approaches to judicial review: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the flawed logic is not sanctioned, it remains on the books and may influence future administrative decision-makers: indeed, failing to follow a previous decision might be a basis for judicial sanction.

Sunday 15 June 2014

Change is Coming: A Brief Double Announcement

First, this blog will shortly be making its way to, in a revamped format. Those of you subscribed via email or RSS should not need to adjust your settings. The move will be complete in the next few weeks.

Second, the Daly clan is about to expand further. Given that it already features a 15-month-old, the next couple of months are set to be hectic. Do not expect regular service!

Judicial Musical Chairs

Some have suggested that the announcement on Friday that Mainville J.A. has been appointed from the Federal Court of Appeal to the Quebec Court of Appeal suggests that he will be appointed to fill one of the Quebec seats on the Supreme Court of Canada, a seat about to be vacated by LeBel J. Mainville J.A. was on the long-list of judges last time out and is a highly regarded jurist (including by me, for what very little it is worth).

In March, in the Nadon Reference, the Court held that judges of the federal courts are not eligible for elevation to the Quebec seats. Only current Quebec judges and lawyers are eligible under s. 6 of the Supreme Court Act. As a member of the Quebec Court of Appeal, Mainville J.A. would be eligible.

It would be very risky to appoint Mainville J.A. to the Supreme Court, because there are two plausible arguments against the legality of any such move.

First, it could be construed as an attempt to circumvent the Supreme Court's decision in the Nadon Reference. The Court did not opine on the possibility that a federal court judge could step down and rejoin the bar (or a Quebec court) for a day and thereby become eligible. It left for another day the question of whether compliance with the text would overcome apparent defiance of its purpose.

Second, the appointment might be void ab initio because s. 98 of the Constitution Act, 1867 provides that "The Judges of the Courts of Quebec shall be selected from the Bar of that Province". As a member of the Federal Court of Appeal just prior to his appointment on Friday, Mainville J.A. is not currently a member of the Quebec bar.

These arguments are, at first glance, weaker than those advanced in the Nadon Reference. A Quebec Court of Appeal judge certainly satisfies the letter of the Supreme Court Act. And s. 98 might be construed as including 'former' members of the bar. Certainly, s. 3 of the Judges Act takes that view, permitting the appointment of lawyers with 10 years' service in the past and of current judges (the evolution of this provision was discussed by one of the interveners in the Nadon Reference). Mainville J.A. was long a member in good standing of the Barreau du Québec.

But, of course, the Judges Act would be trumped by the Constitution in the case of a conflict, and the question whether a brief stay on the Quebec courts allows a federal court judge to circumvent the criteria in the Supreme Court Act is one that can only be assessed on the facts of a particular case.

My point is not to assess the merits of these arguments, just to emphasize that litigation is almost certain if Mainville J.A. is elevated to the Supreme Court. The only question is whether the federal government would go ahead with the appointment regardless, or refer the question to the Supreme Court in advance.

Indeed, given that the second argument casts doubt on the legality of Mainville J.A.'s nomination to the Quebec Court of Appeal, the Quebec government might consider referring the eligibility question to the Quebec Court of Appeal -- a decision in which would probably not be reached before LeBel J.'s replacement is named.

Who knows whether Mainville J.A. will be elevated. For the moment, this is pure speculation. But speculation should be informed by an appreciation of the legal risks involved.

Friday 13 June 2014

Interpretation and Context

Here is a great passage from an Australia case (Mainteck Services v. Stein Heurtey) on contractual interpretation:
What is the legal meaning of a promise to sell "my Dürer drawing", if the vendor's wife owns a Dürer drawing which is on display in their home, and the vendor keeps another secretly in his study? What is the meaning of a gift "to my niece Eliza Woodhouse during her life" in a will, if the testator had no such niece, but a grandniece of that name, and another grandniece, who was illegitimate, who lived with him: cf In re Fish; Ingham v Rayner [1894] 2 Ch 83? What is the meaning of cl 7 of the Wild Dog Destruction Regulation 1999, which provided "The Wild Dog Destruction Regulation 1994 is repealed"? Contracts, wills and statutes are very different legal texts, to the process of ascertaining whose legal meaning different rules apply, yet all are based on language, and language is unavoidably contextual. If I may repeat what I wrote of the uncertain meaning of the Wild Dog Destruction Regulation in Resolving Conflicts of Laws (Federation Press 2011), p 13, "The meaning of even the seemingly clearest legal text can be unclear, hence the importance of attending to context in the first instance."
In a similar vein, Morissette J.A. recently wrote:
[9]           En ce sens, parler en matière de révision judiciaire d’une « erreur déraisonnable » risque de créer une fâcheuse confusion des genres. Il ne peut pas y avoir plusieurs réponses à la question 2 + 2 = ? Il n’y en a qu’une seule, toutes les autres sont erronées, aucune d’entre elles n’est « raisonnable » et qualifier les unes ou les autres de « déraisonnables » n’ajoute strictement rien à la compréhension des choses. Mais en matière d’interprétation juridique et de révision judiciaire, on est loin de l’arithmétique élémentaire. Et en l’absence d’une décision ou d’une interprétation déraisonnable, la réponse à privilégier est celle donnée par le tribunal administratif que le législateur a désigné comme le décideur dont ce genre de litige est la spécialité – ici, le TAQ.
Interpretation is not arithmetic and much will turn on context. In administrative law, context will often be best appreciated by an administrative decision-maker, the body designated by the legislature to undertake that interpretive task.

Thursday 12 June 2014

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?

Wednesday 11 June 2014

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?

Friday 6 June 2014

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.

Thursday 5 June 2014

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.

Friday 30 May 2014

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. 

Monday 26 May 2014

"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.

Sunday 25 May 2014

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.

Friday 23 May 2014

"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!

Tuesday 20 May 2014

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.