Locating Dunsmuir’s Meta-structure Within Anglo-Commonwealth Traditions (Dean R Knight)

Dean R Knight is a Senior Lecturer at the School of Law, Victoria University of Wellington

Dunsmuir has exhilarated and puzzled Canadian audiences of administrative law for a decade now; and, before Dunsmuir, the enigmatic pragmatic and functional framework excited and frustrated the same audience. But, for an observer from abroad, this is no surprise. So too does the modulation of the depth of scrutiny fascinate and baffle administrative law folk throughout the Anglo-Commonwealth and beyond.

That’s because of what’s at stake. One of the fundamental features of judicial review of administrative action is the need to draw the balance between the impulses for vigilance, on the one hand, and restraint, on the other. In other words, variability is ubiquitous.

Yet, how the courts should express this variability continues to be controversial. Doctrines and methods employed for this task carry a lot of baggage. Witness the lament about the past from Bastarche and LeBel JJ in Dunsmuir: ‘confounding tests and new words for old problems, but no solutions that provide real guidance’ (at [1]). And compare with Binnie J’s contemporaneous caution about the Dunsmuir future: “the result … may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another without any overall saving to motorists in time or expense’(at [139]).

Sharp language towards the doctrines and methods of variability is echoed elsewhere in the Anglo-Commonwealth: deference: ‘a dreadful word’;[1] jurisdictional error: a ‘chimerical distinction’;[2] ‘a vague and probably undefinable concept’;[3] anxious scrutiny: ‘a catch-phrase[] devoid of legal meaning’;[4] the innominate ‘instinctual’ ground: ‘a circular, indeterminate and largely discretionary “ground”’;[5] substantive grounds of review: surrounded in ‘fog’, of the ‘pea souper’ kind.[6] 

So, the variability project is filled with heat and light everywhere, even though its shape differs around the world. I think much of the angst arises from objection to the language and jargon of the project, perhaps more so than the fact of variability (an observation also made by Binnie J in Dunsmuir).

Oddly, though, the variability project lacks of a shared language. While forms of modulation can be found in all Anglo-Commonwealth jurisdictions, we tend to talk past each other – perhaps because of the foreign look and feel of the doctrines in our sibling jurisdictions. However, if we abstract the judicial method and focus on the meta-structure of judicial review, I suspect we can identify common styles, while also isolating the points of difference. That then allows us to better internationalise the variability project and engage in sharper conversations about the virtues of different methods.

Elsewhere, in my recent book (Vigilance and Restraint in the Common Law of Judicial Review (CUP, 2017)), I’ve given that a go. Using Professor Stanley de Smith’s famous textbook on judicial review – and its changing language and structure – as an anchor, I’ve sketched 4 schemata representing the key methods over the last half century or so throughout the Anglo-Commonwealth: scope of review, grounds of review, intensity of review and contextual review.

For this note, it’s helpful to think of the pre- and post-Dunsmuir approaches in those terms, hopefully helping open up some points of connection.

Scope of review is based on categorical distinctions and formalistic reasoning; in other words, the old-fashioned ‘classic’ English-style of judicial review. Wednesbury and all that. Multifarious – often complexly drawn – binary categories and fastidious line-drawing, especially between law-fact-policy, jurisdictional and non-jurisdictional, etc. Indirect, often covert, modulation of the depth of scrutiny. Canadians were first off the block to reject this formalistic reasoning and to explicitly bring issues of deference/variability to the fore. Now, scope of review’s abstract formalism is largely consigned to history – except in Australia.

Grounds of review also employs an indirect and categorical approach to the modulation of depth of scrutiny. But, instead, systemised into a framework of a few key enumerated grounds of review – each emblematic of different depths of scrutiny (viz Lord Diplock’s tripartite grounds in Council of Civil Service Union). In Canada, the idea of a few enumerated grounds of review, especially in the sphere of discretion, was overtaken as the deference mission was extended beyond questions of law and the pragmatic and functional approach became the monolithic framework. Elsewhere, in England and New Zealand, the grounds of review style continues to be a typical starting point.

Canada’s former pragmatic and functional approach was emblematic of the intensity of review approach. Questions of the depth of scrutiny brought into the foreground, with calibration of depth being a preliminary step in the supervisory process. It doesn’t matter much whether calibration occurs by reference to a distinct standards of review or a sliding scale; the key ingredient is explicit reasoning about the depth of scrutiny, generally based on conceptual or constitutional implications. Beyond Canada – and with nods to the pre-Dunsmuir experience – we’ve seen England and New Zealand toy with the variegation of the unreasonableness ground, by the adoption of hard look, anxious scrutiny or graded formulations of reasonableness; and, in human rights adjudication, (largely unsuccessful) calls for a doctrinal approach to structuring the deference enquiry.

The final approach, contextual review, moves towards unstructured normativism, where variability is endless but modulation is embedded in the judicial assessment in-the-round. With its broad-church reasonableness standard, this is Dunsmuir par excellence! (The limited gateway for correctness review in some cases continues to throw back to the intensity of review approach.) Doctrine is downplayed in favour of the judicial instinct and a discretionary judgement. Seeds of it can been seen elsewhere too. One court in England framed the trigger for judicial intervention as ‘whether something has gone wrong that justifies the intervention of the court?’.[7] The simplicity project driven by some judges in New Zealand has favoured doctrinal grounds and frameworks so open-textured that their essential feature is an overall evaluative judgement, such as substantive fairness and the like. This non-doctrinal approach is also in vogue in both England and New Zealand for the assessment of any deference due in human rights adjudication. And some go further and call for the eradication of doctrine in judicial review generally – in favour of the judges’ ‘instinctual impulse’.[8]

Thus, while observers from abroad may – in the first instance – find Dunsmuir curious, very Canadian and perhaps of limited relevance, deeper reflection finds real points of connection. And the value of this harmonising analysis is that it allows us to more readily assess the points of difference; in other words, what is the virtue of modulating the depth of scrutiny in different ways. Dunsmuir itself was all about that question. But the suite of options is wider than just collapsing the distinction between different standards of reasonableness review. And courts elsewhere have been quite shy about rigorously confronting this how question.

It’s beyond this scope of this short reflection to specifically draw out the virtues of the Dunsmuir turn, especially relative to the pre-Dunsmuir approaches (and other approaches elsewhere in the Anglo-Commonwealth). But we might think about turning the rule-of-law on its head and applying it to the judicial power inherent in the modulation of depth of scrutiny. Take, for example, Fuller’s criteria for evaluating legal regimes: generality, public accessibility, prospectivity, clarity, non-contradiction, non-impossibility, stability and congruence. These rule-of-law principles provide lines of enquiry allowing us to assess the efficacy of the different approach.

It’s perhaps no surprise that the contextual review approach heralded by Dunsmuir tends to fall short. The rejection of doctrine in favour of overall evaluation – suppressing any need for judges to explicitly reason about matters of intensity or deference – maximises judicial discretion; the virtue of general and transparent rules or principles is lost. But each approach has its own rule-of-law virtues and trade-offs – and the devil is in the detail! 

Conversations about the manner in which the balance between vigilance and restraint should be drawn, as we are engaged here in this Dunsmuir symposium, are hard but important. Finding points of connections and difference throughout our Anglo-Commonwealth family of administrative law – sharpening our trans-national language – allows us to learn lessons from each other’s experience.

This content has been updated on March 4, 2018 at 15:06.