Saturday 28 June 2014

New Location for Blog:

As promised, the new website is now up:

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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.