The Book

 

 

 

 

 

 

This blog serves to update Craig Forcese and Aaron Freeman, The Laws of Government: The Legal Foundations of Canadian Democracy (2nd Ed., Irwin Law 2010). It is also a depository for comments relating to two public law course taught by Craig Forcese at the University of Ottawa, Faculty of Law: CML 1104 Public Law and Legislation and CML 2212 Administrative Law.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Saturday
Feb092019

L'Affaire SNC-Lavalin: The Public Law Principles

I have not posted to this blog branch of my website for years, but shall do so this morning on the issue of: the role of the Attorney General in criminal prosecutions. The context: the Globe and Mail reported on Thursday, February 7:

Prime Minister Justin Trudeau’s office attempted to press Jody Wilson-Raybould when she was justice minister to intervene in the corruption and fraud prosecution of Montreal engineering and construction giant SNC-Lavalin Group Inc., sources say, but she refused to ask federal prosecutors to make a deal with the company that could prevent a costly trial. [emphasis added]

The article uses even stronger language later:

Sources say Ms. Wilson-Raybould, who was justice minister and attorney-general until she was shuffled to Veterans Affairs early this year, came under heavy pressure to persuade the Public Prosecution Service of Canada to change its mind [in relation to seeking a remediation agreement in lieu of prosecution]. [emphasis added]

The Prime Minister’s office asserted the “Prime Minister’s Office did not direct the attorney-general to draw any conclusions on this matter,” a position repeated by the Prime Minister himself the next day: "At no time did I or my office direct the current or previous attorney-general to make any particular decision in this matter”. The Prime Minister also stated: “The allegations reported in the story are false.”

The matter is now a matter of political controversy, and partisan preoccupations will drive the narrative. My concern here are the public law issues. I cannot resolve the contested facts, but I will try to suggest the legal standards that apply in assessing them.

 

1. Starting Observation

I shall, throughout this note, assume that the Globe’s sources are being truthful in recounting what they believe happened, and likewise that the PMO and the Prime Minister are honest. From a public law perspective, this is the line in the Globe story which galvanizes this post: the Attorney General “came under heavy pressure [from the PMO] to persuade the Public Prosecution Service of Canada to change its mind.”

I note right away the story is inconsistent on the degree of this pressure. In its opening line it says “attempted to press”. Later, it says “Sources say officials from Mr. Trudeau’s office, whom they did not identify, had urged Ms. Wilson-Raybould, Canada’s first Indigenous justice minister, to press the public prosecution office to abandon the court proceedings.” The story then variously uses "pressure" and "political pressure".

These are all different degrees of influence – and as I shall note below, that matters. The first point, however, is that the reporting is ambiguous, even if you accept the anonymous sources as credible. No judgment can be made, in the end, about the propriety of the relationship between the PMO and the AG on this matter without much more specificity.

That is because the rules in this area are nuanced.

 

2. What Does the AG Do?

The AG is not a minister like all others. In our system, he or she does have a more classic ministerial administrative or political function, as “Minister of Justice”. As “Minister of Justice”, the minister manages and directs Justice Canada. The minister is also the “official legal advisor to the Governor General and the legal member of the Queen’s Privy Council for Canada”, which makes the minister the chief law officer to Cabinet. Among other things, the minister must “see that the administration of public affairs is in accordance with law”.[1]

In her or his role as AG, however, the minister has very different functions. Here, the minister inherits the traditional powers and duties belonging to the office of the AG of England “by law and usage, to the extent applicable to Canada”.[2]  Most critically, the attorney-general oversees federal prosecutions in Canada’s criminal justice system. By long-standing constitutional tradition, the attorney general is expected to be above partisan concerns in supervising prosecutions, creating an independence within executive government not shared by other members of Cabinet.[3]

 

3. What is AG/Prosecutorial “Independence”?

The most famous recognition of the “constitutional convention” of AG independence came from the Supreme Court of Canada in Krieger: “It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.”[4] The Court also noted: “The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government.”[5]

In the United Kingdom, this AG independence is preserved by leaving the AG out of Cabinet. Because Canada “double-hats” the AG and Minister of Justice function, we do not have this structural safeguard. Thus, as the Supreme Court noted, “Membership in Cabinet makes the principle of independence in prosecutorial functions perhaps even more important in this country than in the UK”[6]

The principle of AG independence is nicely summarized by Justice Rosenberg of the Ontario Court of Appeal as follows:

The most important of these constitutional conventions is that although the Attorney General is a cabinet minister, he or she acts independently of the cabinet in the exercise of the prosecution function. This convention is now so firmly entrenched in the Canadian political system that any deviation would likely lead to the resignation of the Attorney General or would, at the very least, spark a constitutional crisis. The resignation of the Attorney General would expose any attempted interference by the premier or the cabinet both to the public and especially to the press, and would further entrench the convention of institutional independence.[7]

More generally, prosecutorial independence from the rest of executive government, Parliament and, to a considerable degree, judicial supervision, is a carefully protected expectation in Canadian law.[8] At the federal level, it is reinforced within the Justice portfolio by a statute that separates Justice Canada and the Public Prosecution Service of Canada (PPSC). Under the supervision of a director of public prosecutions, the PPSC conducts most federal prosecutions and its law imposes transparency requirements where the AG her- or himself assumes the conduct of a prosecution, or directs its initiation or conduct.[9] Put another way, we have added a layer of additional buffers between Cabinet and prosecutors. If an AG were to compromise and surrender his or her independence, the PPSC structure makes it more difficult to act on that surrendered independence, at least not without considerable risk of exposure.

To be sure, this does not mean that PPSC/prosecutors operate with impunity. There is such a thing as lawsuits for malicious prosecution – though the threshold for winning such lawsuits is high.[10] And prosecutor discretion can be structured through general policy, such as the PPSC’s manual.[11]

 

4. Why AG/Prosecutorial Independence?

The reason for this AG/prosecutorial independence is straightforward: the role of the AG and prosecutors is to act in the public interest, not in the interest of whoever is in the PMO. They must, therefore, not be under the thumb of the political executive, and indeed must be insulated from political pressures that would, for instance, leave some people favoured in the criminal justice system, and others targeted. A core ingredient of the “rule of law” is that “there is, in short, one law for all”.[12] We do not have one criminal law for the powerful and influential, and another one for everyone else.

                 

5. Where would AG/Prosecutorial Independence be Violated?

The key issue is: what degree of “interference” would trammel AG independence. Justice Rosenberg summarizes the standards in what is called the “Shawcross” doctrine, now practiced throughout Canadian jurisdictions:

First, the Attorney General must take into account all relevant facts, including the effect of a successful or unsuccessful prosecution on public morale and order — we would probably now call this the public interest. Second, the Attorney General is not obliged to consult with cabinet colleagues but is entitled to do so. Third, any assistance from cabinet colleagues is confined to giving advice, not directions. Fourth, responsibility for the decision is that of the Attorney General alone; the government is not to put pressure on him or her. Fifth, and equally, the Attorney General cannot shift responsibility for the decision to the cabinet.[13]

Sir Hartley Shawcross’s statement itself reads:

I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.

In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.

Nor, of course, can the Attorney-General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.[14]

From these standards, it is clear political advice is one thing, but a political executive “direction” to the AG in a criminal justice matter would exceed the Shawcross standard. In response to such a direction, the AG should refuse – and resign. [Addendum Sun Feb 10: on AG resignations, see the addendum below the footnotes in this post.]

The murk lies where discussions fall short of “direction”. To use the language from the Globe article “heavy pressure” would raise, in my view, serious Shawcross standard problems – indeed, I do not see how “heavy pressure” could be consistent with those standards. As Justice Rosenberg notes, “responsibility for the decision is that of the Attorney General alone; the government is not to put pressure on him or her.”

I am less certain what to make of the Globe’s other statements: “attempted to press” and “urged”. Without knowing what was said and in what context, it is essentially impossible to know if these were discussions of the sort the Shawcross principle do allow; or whether the line between discussion and pressure was crossed. “Urged” is clearly gauche and the sort of thing a carefully organized Cabinet office would avoid at all costs (for appearance sake at least). Applying Shawcross, it sounds like “telling [the AG] what that decision ought to be”. Meanwhile, I simply have no idea what to make of “attempted to press” – the universe of things that might fall in that category is so broad it is impossible to apply the Shawcross standard to the allegation.

In sum, without clarity on the specific statements made and their context, it is simply impossible to measure “heavy pressure”, “urged”, or “attempted to press”. These descriptors all encapsulate the judgment of either the Globe’s sources or the Globe reporters themselves. And I have no idea what criteria they have applied to arrive at that judgment.

At risk of being very wrong, one might infer that people in the AGs office thought a line had been crossed – someone was, after all, the Globe’s source. But if a clear Shawcross line was crossed, the expectation would then be that the AG would resign. That did not happen.

The Prime Minister’s rejection in the Globe story suggests that, at the very least, whatever happened did not cross the unquestionable redline of “direct”. (There is now a lot of Kremlinology-like speculation about this wording. My assumption when I heard it was just “oh, in using that ‘direct’ language, he has been responding to legal advice that has focused on this clear Shawcross redline.”) His further statement that “the allegations reported in the story are false” might also be a denial of the “attempted to press” and “urged” standards. If so, a clear statement might be useful -- because if none of what is reported happened, then we are all wasting a lot of time while the sea rises.

Bottom line: right now, no one beyond those in the know can presently make a definitive judgment on whether this is a public law nothing-burger, or a rule of law train-wreck. (And I would like to know what lines the people in the know are using in arriving at their conclusions.)

 

6. Does it matter that this was a remediation agreement issue?

 

A final point relates to the fact that at issue was the prosecutors’ unwillingness to enter into a remediation agreement negotiation. Some on Twitter Law School have suggested this fact relaxes the traditional strictures on AG/prosecutorial independence.

I do not see how that could be. First, a remediation agreement is, essentially, an off-ramp from a prosecution for corporate economic crimes. It is simply impossible to imagine that use of the off-ramp may be a politicized exercise, while only driving down the highway is protected by independence. That would mean, in effect, there is no independence: the off-ramp would available to the politically-favoured companies, who never take a ride down Highway Prosecution if they had friends in high places. We would have, in effect, two Criminal Codes: the Code for corporate friends, and the Code for everyone else. That would do considerable violence to the rule of law. (I would note, also, that the Supreme Court in Krieger was clear that the AG’s independence extended to the “authority to initiate, continue or terminate prosecutions”. By extension, so too would prosecutorial independence extend to these matters.)

I would resist, therefore, any assertion that prosecutorial independence is unavailable where a prosecutor acts under Part XXII.1 of the Criminal Code.[15] At any rate: the Code itself does not anticipate politicking. Section 715.32 places the discretionary decision on whether to enter into a remediation agreement negotiations in the hands of the prosecutor, whose decision to negotiate would be approved by the AG. In this context, because of the Director of Public Prosecutions Act, the AG should be read as the “director of public prosecutions”.[16] (Put another way, unless the AG proactively intervenes under the express powers to do so in that Director of Public Prosecutions Act, noted above, he or she is not personally involved in this decision.)

The Code sets out (in considerable detail) the factors the prosecutor is to consider in exercising their discretion. This is a fettered discretion. And even if there were no constitutional conventions of independence applicable here, prosecutors would still err if they were to depart from the language of the Code and contemplate political variables like “heavy pressure”, “urge” or “attempts to press” from the PMO. Specifically, if they did not enjoy prosecutorial independence, they would be fully subject to administrative law discipline. And that discipline would preclude abuses of discretion. While administrative law “standards of review” are a muddled mess, it would still be an unreasonable exercise of discretion to act based on improper considerations not anticipated by the statute. In sum, even if the prosecutor were stripped of independence for Part XXII.1 purposes, we are still talking about a legal error, were he or she responsive to political pressure.

 


[1]                Department of Justice Act, s.4, online: https://laws-lois.justice.gc.ca/eng/acts/J-2/page-1.html#h-4.

[2]           Ibid, s.5.

[3]                Krieger v. Law Society of Alberta, 2002 SCC 65, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2007/index.do.

[4]           Ibid at para. 3.

[5]           Ibid at para. 29.

[6]           Ibid.

[7]           Marc Rosenberg, “The Attorney General and the Prosecution Function in the Twenty-First Century,” (2009) 43(2) of Queen's Law Journal 813, online: http://www.ontariocourts.ca/coa/en/ps/publications/attorney_general_prosecution_function.htm

 

 

[8]                See Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 40, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15406/index.do.

[9]                Director of Public Prosecutions Act, S.C. 2006, c. 9, s.121 at ss. 10 and 15.

[10]         See Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 40, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15406/index.do

[11]         See https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/index.html.

[12]         Reference re Secession of Quebec, [1998] 2 SCR 217 at para. 71, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do

[13]         Marc Rosenberg, “The Attorney General and the Prosecution Function in the Twenty-First Century,” (2009) 43(2) of Queen's Law Journal 813, online: http://www.ontariocourts.ca/coa/en/ps/publications/attorney_general_prosecution_function.htm (emphasis added).

[14]         UK, H.C. Debates, vol 483, cols 683-84, (29 January 1951), reproduced at https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p1/ch01.html#section_1.

 

[15]         Criminal Code, RSC, 1985, c. C-46, online: https://laws-lois.justice.gc.ca/eng/acts/C-46/page-179.html#h-263 .

[16]         SC 2006, c.9, s.121, at ss. 3(3).

 

Monday
Dec012014

Supreme Court Appointments: Two Steps Backwards, None Forward

Update: Laws of Government (LofG), Chapter 4, judicial appointments, pp.263 et seq.

I will begin with the usual caveats:  I don't know Madame Justice Côté.  I have no reason to doubt the endorsement her Supreme Court appointment has earned from the legal profession's establishment. 

But just like good can occasionally come of any bad process, that goodness is not reason to go silent on that process.  This appointment is the first to follow the disastrous events known as the "Nadon affair".  That debacle has many villains.  None of those villains was Justice Nadon himself.  But one of them was the process followed: a deck loaded with legally doubtful options that was considered by a deficient parliamentary process, and produced fall-out of all sorts when it all collapsed.  That fall-out now includes abandonment of a flawed appointment system in favour of an even worse one: We have now retreated from any kind of openness in Supreme Court appointments. 

I haven't seem much blow-by-blow reporting on what exactly took place, but I take it the approach employed was the one used for all appointments prior to that of Justices Charron and Abella.  This "traditional" approach was described by then-Justice Minister Irwin Cotler and described in LofG, p.263:

First, the minister identifies potential candidates, either through his or her own devices or via nomination. The minister consults with the chief justice of the Supreme Court, and occasionally that court’s other judges. He or she also singles out key individuals from the province or region associated with the empty spot on the court: at least one senior member of the CBA and law society, and the attorney(s) general and chief justice(s) of the courts of the provinces concerned. Typically, the candidates identified via this processes are current judges of the country’s Courts of Appeal, although they may also be senior members of the bar or academia.

Second, the minister assesses the candidate, according to three broad criteria: professional capacity;personal characteristics; and diversity. The minister’s assessment of professional ability is assisted by “jurisprudential profiles” compiled by the Department of Justice, reviewing the candidate’s judicial writings as assessed by their “precedent-setting value” and the outcome of any appeals of their decisions.

The minister discusses the candidates with the prime minister. A candidate is selected and the prime minister recommends this person to the Cabinet.

The appointment follows.  My colleague Adam Dodek puts it well in some of his writing about the traditional process: “more was known about the process for electing a new Pope than about the process for selecting a new Supreme Court Justice".

This model was abandoned (or at least supplemented) by the Martin government in favour of a parliamentary hearing of sorts, a tradition then maintained and enhanced (albeit modestly and occasionally in the breach) for the first several Harper appointments.  Few observers considered this token hearing perfect.  But it did create a form of transparency and public engagement on appointments.  More than that, it was a base on which to build.

No more. And so, I cite another passage from LofG, p.269:

...the increased power of the judiciary under the Charter requires an urgent rethink of the appointments process. In this respect, we are discomforted by a system that depends exclusively on the good faith of the executive branch in selecting meritorious candidates. ...[W]e believe that if Canada has been blessed with excellent Supreme Court justices, this is the fortunate byproduct of an honourable, and once widely shared, political culture opposed to politicizing Court appointments. It is not the result of robust checks and balances in the appointments process minimizing the likelihood of such politicization. We fear that this shared political culture is now waning. Accordingly, preserving the calibre of an independent judiciary — and ensuring that it remains (or becomes, in the view of critics) depoliticized — will require a rethinking of our antiquated appointment process.

Nothing that has happened since my co-author and I wrote that passage in 2005 changes my mind.  Indeed, the gamesmanship of the Nadon affair seems to affirm it.  So badly botched was that process that the return to the insularity of the traditional process seems to have relieved the profession.  (I am somewhat cynical about this response, since the profession is now restored to an especially privileged, backroom position in opining on candidates.) 

It was good politics to made the latest appointment a moderate choice.  But politics is capricious and whatever check it places on executive excess cannot be guaranteed to last.  Any process that cannot restrain politics in the interest of the integrity of the justice system deserves condemnation, not a sigh of relief.

We have more checks and balances for lower court judge appointments, albeit ones that have been weakened at the federal level under the current government.  It is well past time to legislate an effective, meaningful appointment process, starting with Supreme Court appointments.  (And no, I do not believe that anything in the Senate reference or the Supreme Court's Nadon decision would preclude careful legislative rules.)

I have my favourite alternative appointment models, as set out in LofG.  Others, have their's.  All are better than the new status quo. 

Thursday
Nov202014

Angels on Pinheads and "Internal Standards of Review" in Administrative Law

Every year, at least one student in my administrative law class wonders whether (or assumes that) standard of review concepts applicable as between courts and tribunals also apply as between two levels of administrative tribunals. 

As a general rule, I am allergic to the idea that judicial review standard of review concepts should inspire how appellate administrative tribunals relate to tribunals of first instance.  I have long considered this an idea attractive only to those caught up in esoteric doctrine without an appreciation of the principled bases of judicial review standard of review.  As something who has, however, long advanced the idea that all standard of review issues should be cured through legislative enactment and not the idiosyncratic musings of judicial minds, I also accept that the legislature can dictate quite a different relationship between appellate and lower administrative tribunals. 

This week, I was pleased to be invited by the members of the Appeal Division of the new Social Security Tribunal to ponder these issues, in the context of their governing statute.  I reproduce my own idiosyncratic musings here.

***

Thank you for your invitation.  I come to you not as someone with expertise in relation to your tribunal, but as a person with a much more generic role as a professor of administrative law.  After discussions with Vice-Chairperson Wake, my thought was to facilitate a discussion on the state of play on the question of so-called “internal standards of review”, and then consider implications for the Social Security Tribunal.  By internal standards of review, I mean the question of “how much deference one level of administrative tribunal may owe another, in the course of an administrative appeal from one to the other”.

To tee up the debate: there is what I consider a perplexing and idiosyncratic line of jurisprudence suggesting that deference analysis developed in a judicial review context may be imported into the statutory administrative appeal process.  I’ll highlight aspects of that jurisprudence, and then I want to answer this development with an invocation of both authority and principle.  And then I shall turn to some thoughts on relevance to your activities. 

My take away is this: yes, standard of review analysis matters for the Appeal Division, but not for the General Division.  And it matters not through false analogy to judicial review jurisprudence, but because the statute matters.

Developments in the Internal Standard of Review Jurisprudence

So first, what is happening with internal standards of review?  Well, quite a lot, at least in Alberta, at the Alberta Court of Appeal.  The Alberta line of cases stems from Newton, a 2010 decision involving a police disciplinary proceeding.[1]  At issue, in part, was the standard of review to be applied by the appellate administrative body in relation to the decision of an initial administrative decision-maker. 

To cut to the chase, the Court of Appeal held (in essence) that the appellate tribunal owed a standard of reasonableness to the initial administrative decision-maker.  In so doing, it concocted a test that mixed together the Dunsmuir line of judicial review cases and also the Supreme Court’s jurisprudence on review standards as between trial and appellate courts (most notably, the 2002 decision Housen)

Newton has since been followed by 5 cases, and cited in several dozen more.  None of the cases in which it has been followed are from outside Alberta.  In fact, some jurisdictions have exhibited a distinctive lack of enthusiasm for Newton.  The BC Supreme Court, for instance, has critiqued the decision,[2] and regarded it as confined to a particular statutory context.  And while the Quebec Court of Appeal has not cited Newton, it has clearly struck its own course on this issue.  In cases like Parizeau,[3] the Court has preferred an appellate like approach: deference on fact-finding, no deference on other errors.

Federally, Newton has been more warmly (and it turns out, wrongly) received by the Refugee Appeal Division.  In 2013, that tribunal followed Newton,[4] concluding “except for strict issues of law or natural justice, it is appropriate for us, as members of the RAD, to extend the same deference to the decisions of the RPD. Indeed, this deference is the same as that which courts of law are required to extend to decision-makers of first instance when the issue is a question of fact or a question of mixed law and fact.”  And it would seem other RAD decisions apply reasonableness pretty much across the board.

To date, the Federal Court has mentioned Newton in 8 judicial review cases stemming from RAD decision.  These Court decisions have been hostile to the view that the RAD should review the RPD on a deferential standard, except where at issue is fact finding (and especially credibility findings). To wit: deference is owed where the issue concerns the RPD’s assessment of the credibility of a witness or “where the RPD enjoys a particular advantage in reaching such a [factual] conclusion.”[5] 

To cite the summary contained a Federal Court decision issued on October 28: “… this Court clearly rejected the position taken by the RAD in the decision under review, that it owes deference to the findings of the RPD and that it should apply the reasonableness standard, as this Court does when reviewing the RPD decisions that are not subject to an appeal before the RAD.”[6]

It is also the case, however, that while the Federal Court has been consistent in rejecting the idea that the RAD is to be reflexively deferential to the RPD, it is not been entirely consistent on why it has taken this view, or exactly what deference is in fact owed.

And on this issue, it is worth examining the entrails of probably the most interesting treatment of this subject to date from the Federal Court, Alyafi v. Canada (Minister of Citizenship and Immigration) (released October 8, 2014).[7]

Here, Justice Martineau pointed to uncertainty in the Federal Court’s line of cases as to what deferential standard of review should be applied by the RAD to fact finding by the RPD.  Some courts are content with “reasonableness” drawn from the administrative law caselaw.  Others speak of “palpable and overriding error”, drawn from the caselaw on appellate review of trial court decisions.  Some courts see the two standards are effectively identical. 

Others see the standards as different.  At first blush, this standard appears even more deferential than mere reasonableness.  In a Quebec Court of Appeal case cited in Alyafi:

 Palpable and overriding error is an error that, in its undeniability -- and therefore not a difference of opinion on the assessment of the evidence - determines the outcome of the dispute in that the conclusion of the trier of fact, i.e. the result of his or her decision, cannot hold, thus, ipso facto, making the decision unreasonable.

(I find myself wondering if we should call a palpable and overriding error one that is patently unreasonable!)

On the other hand, the Federal Court in Alvarez applied this palpable and overriding error test in a manner that made it seem more (not less) demanding of the first level decision maker than the reasonableness standard: “the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. … The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes.”

So far I think I’ve demonstrated clearly that administrative law deserves its reputation as a close cousin of metaphysics.

But let me try to piece this together in a manner that makes it somewhat more operational and less dysfunctional.  And I’ll take my signal from magazines that always seem to sell well when they promise “5 easy steps” to something or other.   I don’t have steps.  I don’t want to propose a variation on the Newton test, for example.  But I do have three easy principles that should guide any approach to internal standards of review. 

Principle 1: Don’t Lose Sight of the Big Policy Picture

Any student of the history of deference in judicial review knows that deference reflects, at heart, judicial humbleness.  If you read cases from the Supreme Court like Corn Growers all the way through to many of the most recent standard of review cases, deference is viewed as recognition that generalist courts are often ill-equipped to second-guess the decisions of specialized tribunals.  It remains the case that considerations of relative expertise are at the heart of modern standard of review analyses.  Witness the almost ironclad presumption in the most recent post-Dunsmuir cases of deference where at issue is construals of the tribunal’s home statute.

Relative expertise is the animating spirit of judicial review deference. 

It is a policy position that has no place in discussions of internal standards of review.  Here, we have two specialized, expert bodies, one that hears appeals from the other and nothing else.  One presumes that a body whose sole role is to hear appeals on the same home statute as applied by the original decision maker is equally expert to that original decision maker.

The entire justification for basically the whole corpus of judicial review standard of review jurisprudence is entirely non-applicable to internal reviews.  It is a category error to apply it.

Principle 2: Common Sense Does have a Place in Administrative Law

Several courts reacting to Newton raise the perplexing issue of: “why would the legislature want deference in internal appeals in a world in which the decision is ultimately reviewed in court on a deference standard”.  We’ll call this the “deference squared” problem. 

It makes no sense to pile deferential review on deferential appeal. If a legislature creates an internal appeal, the presumption, absent competing statutory language, should be assertive appeal.  Any other approach assumes the legislature’s aim was to increase expense and limit relief for any prospective appellant.  A parsimonious legislature would surely have cut out the middle level of internal appeal if all you get is the same deferential review to which you are entitled by judicial review.  We’ll call my observation the “maxim of administrative parsimony”.

Principle 3:  It’s Always About the Statute

This is by far the most important consideration: the statute.  It is entirely conceivable that Parliament intended something quite unique in a specific tribunal context.  The structure of the tribunal may signal that Parliament intended a more complex arrangement than just decision, followed to full-blooded appeal and then (usually deferential) judicial review.

Something that is often forgotten in administrative law is that, at heart, it is a glorified species of statutory interpretation.  And even in the area of internal standards of review, whatever pie in the sky standards courts may devise, they all acknowledge that statutory language matters.  For instance, many courts seem preoccupied with deciding whether the internal appeal is a full appeal de novo, or a more limited creature.

So the statute is everything.

To summarize my principles: do not uncritically think that all that jurisprudence on judicial standards of review matters one wit in an internal appeal context; do presume that the legislature was trying to create non-duplicative types of appeal followed by judicial review; but, three, above all else always be guided by the statute and all the maxims of the statutory interpretation that are often invoked, but unevenly applied in administrative law.

So let me apply these principles to your tribunal.  In your case, I think it is all about the statute:

You have a three-part administrative appeal system, as I understand it: Original decision within the bureaucracy (e.g., the Commission under the Employment Insurance Act).  First level appeal to the General Division.  Second level appeal, with leave on matters decided on the merits, to the Appeal Division. 

Your statute also imposes progressively narrower grounds of appeal.  So, as I understand, appeals to the General Division, under, for example, s.113 of the Employment Insurance Act are as of right and are not limited to specific grounds.

In comparison, a further appeal on the merits to the Appeal Division is with leave and is limited to grounds that echo the grounds for judicial review found in the Federal Courts Act.

And then, judicial review of the Appeal Division decision is done by the Federal Court of Appeal (at least in relation to decisions on the merits).

The legislative history is also potentially relevant.  Here, I have only limited knowledge, but I believe that this new system replaces, among other things, appeal from employment insurance commission decisions to a board of referees and then to an umpire (actually a Federal Court judge).  Judicial review of the umpire went then to the Federal Court of Appeal.  And the language on the grounds of appeal open to the new Appeal Board echoes that on grounds once applied in the old umpire appeals.

I think this history matters.  The jurisprudence under the old system suggested that the umpire was required to apply an internal standard of review.  Question of law were reviewable, for example, on correctness.[8]

So let me try to piece it together with reference to my trilogy of principles.  So principle 1:  Relative expertise does not matter here, and so there is no reason to embark on a JR style standard of review analysis.  (I note that the issue of the Appeal Division’s expertise seems to have been asked and answered in a different factual context by the Federal Court in Bellefeuille).[9]

Principle 2: We should not assume that Parliament intended appeal to the General Division to require deference to, e.g., the Commission.  Logic dictates that the existence of the internal appeal is designed to allow a close look over the shoulder of the Commission.  Indeed, the fact that there is then a further appeal (albeit with leave) to the Appeal Division strongly militates against the application of an internal standard of review to be conducted by the General Division.  It would make little sense to have government decision, followed by deferential first appeal, followed by another deferential appeal, followed by potentially deferential judicial review.  That violates my “maxim of administrative parsimony”. 

This observation bleeds into Principle 3: the General Division’s seemingly broad powers in terms of appellate authority also hints at sweeping appellate powers, to the level of de novo review.  These factors, like those at issue in the RAD cases in Federal Court, suggest that JR SOR concepts are inapplicable. Instead, the General Division should be thinking of the standards that govern appeals from trial courts to courts of appeal: correctness on law and overriding and palpable error for fact.

My assessment of the Appeal Division is a bit different.  Principle 1 is the same.  But in relation to Principle 2, it seems to me that the “maxim of administrative parsimony” points in a different direction.  I am not inclined to assume automatically that we should assume appeal de novo piled on appeal de novo.  This is a conclusion compounded both by the statutory language (limiting the grounds of appeal for the Appeal Division to ones analogous to grounds of review in the Federal Courts Act) and also the past jurisprudence involving umpires.  As noted, the latter jurisprudence required umpires to apply an internal standard of review.  I am also cognizant that judicial review lies with the Federal Court of Appeal, pushing ultimate judicial review up the court hierarchy – a possible signal as to the status of the Appeal Board as a not “just your usual, run of the mill” administrative body.

All told, therefore, I think these factors mean that the Appeal Board should be in the business of applying an internal standard of review analysis in deciding General Division appeals.

But I also don’t think this matters much in practice.  Yes, the Appeal Tribunal should probably engage in a pro forma standard of review exercise.  But as already noted, that exercise hinges now mostly on relative expertise.  I do not think there is a compelling case to be made that the relative expertise of the General Division is greater than that of the Appeal Division.  In other words, this key variable in the SOR analysis is neutralized.  That leaves us looking for other signposts, including other SCC language to the effect that on questions of law, deference may be less common.

In the result, my instinct is that the Appeal Division will end up with legal questions reviewed on correctness, and questions of fact with deference. 

But unlike the RAD, I think the Appeal Division can handsomely sidestep the esoteric discussion of whether reasonableness = palpable and overwhelming error.  Since the Appeal Division is applying the JR SOR analysis, its only choices are reasonableness or correctness.  And reasonableness would be the standard for questions of fact. 

(As an aside, if I am right in my analysis, it is the General Division that would need to be on the hunt for palpable and overwhelming error in its assessment of facts.  And then the Appeal Division would simply need to decide whether the outcome of that hunt was reasonable.)

Those are my two cents.  When it comes to my predictions, time will tell if I am even close to being correct, or even reasonable.

 


[1]           Newton v. Criminal Trial Lawyer's Assn, 2010 ABCA 399.

[2]           British Columbia Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331

[3]           Parizeau c Barreau du Québec, 2011 QCCA 1498

[4]           RPD File No. MB3-01975

[5]           Yetna v. Canada (Minister of Citizenship and Immigration), 2014 FC 858; Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 79; Alvarez c Canada (Citoyenneté et Immigration), 2014 CF 702; Triastcin c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2014 CF 975; Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952; Spasoja c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2014 CF 913; G.L.N.N. v. Canada (Minister of Citizenship and Immigration), 2014 FC 859; Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711.

[6]           Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022.

[7]           2014 FC 952.

[8]           See, e.g., Canada (Attorney General) v. Lemire, 2010 FCA 314; MacNeil v. Canada (Employment Insurance Commission), 2009 FCA 306.

[9]           Bellefeuille v. Canada, 2014 FC 963.

Thursday
May292014

Privacy Commissioner & Emerging Controversy over Appointment

On May 29, 2014, the Prime Minister announced his pick for the next Privacy Commissioner, an officer of Parliament post under the Privacy Act.  The nominee, Mr. Daniel Therrien, is a career Justice lawyer presently serving as an Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice.  The official opposition reacted negatively to the PM's nomination, and called on the PM to reconsider Mr. Therrien.

In this post, I rehearse the legal issues tied to appointment of the Privacy Commissioner.  Under the Privacy Act, the Commissioner is appointed by the Governor in Council, "after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons".

In the following extract from Laws of Government (at 242), Freeman and I trace past controversy over the appointment process, flowing from the resignation in 2003 of the then-commissioner:

[Some MPs] questioned a process in which Parliament was asked to “rubber-stamp” a government-selected nominee, without vetting fully alternatives:

I am sure that there are Canadians who would have been great nominees. Parliament could have had some role in short listing them and suggesting to the government that it select from half a dozen people. This would have been a much more meaningful process and would have helped, in the public’s mind, to reduce the cynicism about parliament being a rubber stamp for things that are decided elsewhere. Let us not kid ourselves. This was clearly decided elsewhere.[1]

...[T]he controversy [surrounding the Privacy Commissioner in 2003] prompted the Commons Standing Committee on Government Operations and Estimates to recommend to the Commons a study of officers of Parliament appointments.[2] In its words, “[t]he appointment processes that currently apply to privacy commissioners and other officers of Parliament may be deficient. The imbalance, in practice, between the respective roles of the Governor in Council and Parliament in such appointments warrants examination.” As a consequence, the committee recommended a comprehensive review of officers.[3]

The subsequent standardization of the appointment process for most officers of Parliament made by the 2006 Federal Accountability Act arguably increases parliamentary scrutiny of candidates.  Not least, approval of these candidates by Parliament is preceded by a process in which the GIC consults with the leaders of the official political parties in Parliament on the candidate.  This last innovation – something that was not required under prior versions of the statutes governing most officers – presumably means that opposition politicians turn their minds more actively to the identity of candidates than was the case when candidates were simply presented to Parliament as a whole for approval by the government.

 

What Parliament did not enact were ground rules on the credentials and expectations that might guide selection of candidates.  That means that the issue remains high politics (or low politics, depending on your perspective).

While I have seen no reporting on the issue, my assumption is that the Prime Minister did consult with Messieurs Mulclair and Trudeau before announcing his nomination.  My assumption is that Mr. Mulclair did voice his concerns during that consultation, which the PM has now rejected.  The matter will now be decided by the senate and House of Commons, and each will need to pass a resolution approving the appointment.  The government enjoys a majority in both houses, and can secure passage of the resolutions.  Along the way, however, there is risk of acrimonious political debate.

There would be considerable virtue in clearer expectations on the qualities nominees should possess.  And there would also be considerable virtue in party leaders hammering out consensus on such matters behind closed doors.  Contentious nominations visit unfairness and significant collateral damage on people who deserve much better, and risk tarnishing the institutions which appoint and to which they are appointed.  The Justice Nadon matter is an obvious case in point. Controversy over SCC appointments has likely put blood in the water in relation to similar matters.  We seem, in Canada, to be entering our "Robert Bork era". 

 


[1] Mr. Bill Blaikie (Winnipeg–Transcona, NDP), Hansard, no. 124, 36th Parl., 2d Sess. (28 Sept. 2000).

[2] Commons Standing Committee on Government Operations and Estimates, Matters Relating to the Office of the Privacy Commissioner at 18–19.

[3] Ibid.

 

 

Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Wednesday
May282014

Politicized Judicial Appointments & the Absence of Checks and Balances

Recent reporting and commentary allege (rather persuasively) that the Harper government has sought to politicize appointments to the Supreme Court.  The government may do so with relative ease because the appointments system has depended on a shared political culture, not institutional checks and balances.  That shared political culture no longer exists.  In our 2005 edition of Laws of Government (and again in our 2011 edition), Freeman and I expressed concern with the Supreme Court appointments process as follows:

Repeated objections have been raised ... to the inscrutable nature of the appointments process, and the potential for abuse it creates. As the Commons justice committee puts it, the secretive process of selecting Supreme Court judges “could lead to the perception that appointments may be based upon improper criteria.”[1]

Depending on your political leanings, this perception may prove well-founded. Indeed, in the 2004 federal election, Minister Cotler himself reportedly claimed that the Conservatives would politicize the Supreme Court by choosing judges on ideological, not purely professional, grounds.[2] These comments followed remarks made months earlier by then-Alliance leader Stephen Harper, reportedly accusing the Liberals of stacking the bench with “pro-gay” judges.[3]

Harper’s comments suggest that at least one side in the “culture wars” — that represented by the Conservative Party and its academic brain trust — perceives the judiciary as already tainted by political bias, and thus a legitimate target. As the gay rights issue suggests, these critiques are often motivated by judicial decisions viewed as ideologically undesirable by critics.[4] In other instances, the complaints are predicated on more universal principles, not least democratic accountability.[5] Even this latter, laudable principle simplifies, however, the complex issues at stake.

As Professor Ed Ratushny has noted, pure democratic accountability is inconsistent with the very attribute elemental to a functioning judicial system — judicial independence:

[i]t is incompatible with the judicial role for judges to view themselves as representatives of particular “constituencies.” That is a political rather than judicial function. Judges may act “politically,” in the broad sense of that term, when their decisions involve policy choices. But those choices are made on different criteria by judges than by politicians. … The Supreme Court of Canada is not a “democratic” institution even though it is an essential institution within our democratic system under the rule of law. Its role is not to be democratic, but to be judicial. It is not elected by the public and it is not accountable to the public for the content of its decisions.[6]

Professor Lorraine Weinrib has made similar comments.[7]

There is, however, another way of examining the appointments issue through the prism of judicial independence. Professor Martin Friedland, in his influential study on judicial independence, notes several connections between a credible appointments process and judicial independence. First, the better the quality of judge, the less likely subsequent disciplinary action will be required, with its concomitant stresses on independence. Second, weak appointments diminish the status of the judiciary in the public mind, fostering a climate potentially receptive to interference with judicial functions. Last, politically motivated appointments may prompt legitimate questions about a judge’s actual independence and impartiality.[8] As is discussed elsewhere, the test for judicial independence hinges, in part, on whether bias is reasonably apprehended (or not) by an objective observer. The opaque Supreme Court selection process described by Minister Cotler to the Commons justice committee has allowed dubious selections in the more distant past and might do so again in the future. To that extent, it potentially imperils judicial independence, measured on a reasonable apprehension standard. The fact that Court appointments may not have been (in fact) tainted by partisan or truly ideologically driven selections since at least the 1980s does not diffuse fully these concerns. In the words of Professor Jacob Ziegel: “If major controversies have been avoided over the appointment of Supreme Court judges since the adoption of the Charter … this is largely because successive Prime Ministers — Trudeau, Mulroney, Chrétien — have shared similar constitutional philosophies and because the full impact of the Charter has not yet sunk in.”[9]

Echoing Minister Cotler’s election-time reproof, Professor Ziegel also predicted consequences were parties not sharing this classic consensus to take office: “Without the restraining force of an independent nomination procedure or confirmation process appointments would become more polarized, as the appointees would be selected on the basis of their … political and social philosophies.”[10]

We share these concerns. While we join others in acknowledging the general excellence of recent Supreme Court appointments, we agree that the increased power of the judiciary under the Charter requires an urgent rethink of the appointments process. In this respect, we are discomforted by a system that depends exclusively on the good faith of the executive branch in selecting meritorious candidates. Like Professor Ziegel, we believe that if Canada has been blessed with excellent Supreme Court justices, this is the fortunate byproduct of an honourable, and once widely shared, political culture opposed to politicizing Court appointments. It is not the result of robust checks and balances in the appointments process minimizing the likelihood of such politicization. We fear that this shared political culture is now evaporating. Accordingly, preserving the calibre of an independent judiciary — and insuring that it remains (or becomes, in the view of critics) depoliticized — will require a rethinking of our antiquated and traditional appointment process.



[1] Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Improving the Supreme Court of Canada at 4.

[2] Cristin Schmitz, “Cotler, Arbour Differ on Risk Tory Government Would Politicize Supreme Court,” The Lawyers’ Weekly, 18 June 2004.

[3] Tonda MacCharles, “Liberals Rigged Same-Sex Rulings, Harper Charges,” Toronto Star,  5 Sept. 2003.

[4] See also the discussion in ch. 2 of this book.

[5] See, e.g., Mr. Reed Elley (Nanaimo–Cowichan, Ref.), Hansard, 36th Parl, 1st Sess. (1 April 1998) (“Judges are civil servants. What other recourse do the people of Canada have to hold the judiciary accountable except through their elected representatives? If we in this House do not have the freedom to be able to criticize the judiciary of this country, then who does?”); Ted Morton, Reforming the Judicial Appointment Process for the Supreme Court of Canada, Presentation to the Commons Standing Committee on Justice and Human Rights (April 2004) (“But when a national court of appeal is given the function of constitutional review, of supervising the laws passed by Parliament, it is no longer simply enforcing laws; it is also making law. In a 21st century democracy, law-making institutions are expected to be accountable and representative, not independent.”).

[6] Ed Ratushny, “Confirmation Hearings for Supreme Court of Canada Appointments: Not a Good Idea!” in Pierre Thibault et al., eds., Essays in Honour of Gérald-A. Beaudoin: The Challenges of Constitutionalism (Cowansville, PQ: Editions Y. Blais, 2002).

[7] Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Evidence (23 March 2004) (“It is regrettable, I think, that we have entered into this process of thinking about the appointing authority as an offshoot from the new government’s concern with the democratic deficit. The democratic deficit is primarily focused on the interplay between the legislature and the executive and properly concerns a number of appointments that are made that could benefit by further engagement by parliamentarians. However, the Supreme Court — and the other courts as well, but in particular the Supreme Court — is a very particular type of institution. We have to have concern that we not analyze the appointing power only or even primarily in the context of the democratic deficit question.”).

[8] Friedland, A Place Apart at 233.

[9] Institute for Research on Public Policy (IRPP), “Merit Selection and Democratization of Appointments to the Supreme Court of Canada,” by Jacob Ziegel, Choices (June 1999) at 10.

[10] Ibid.