Plural Public Law: Sources

I gave my inaugural lecture as the University Research Chair in Administrative Law at the University of Ottawa earlier this month. You can watch the lecture here (after some introductory remarks from Dean Sylvestre, Chief Justice Wagner and Justice Bich). The comments from my respondents, Justice Stratas and Professor Cartier can be found here. This is the third post in a series: the first and second installments can be accessed here and here.

I talked mostly of judicial decisions in the previous section. This has been an important focus of my work.

I have argued that the body of judicial decisions we call administrative law is best understood by reference to a plurality of principles or values: the rule of law, good administration, democracy and separation of powers. By the rule of law, I mean the protection by judges of important interests which contribute to individual self-realization, that is to individuals’ ability to plan their affairs whilst being treated with respect by administrative decision-makers. Attention to good administration makes judges cautious about impinging upon effective and efficient public administration. Democracy means respect for decisions taken by officials who have run an electoral gauntlet. And by invoking separation of powers I mean to suggest that discrete bodies perform discrete functions, which should be kept apart. In taking these principles into account, striking a harmonious balance between them where necessary, the courts create administrative law.[1]

Judicial decisions, however, are not the only source of principles public lawyers might usefully draw upon.

Consider the legislative process, a means not only of making laws but also of generating principles for public lawyers. Bills must pass through several stages in (typically) two chambers to become law in a Westminster-style system. The time this takes allows for citizen participation in the law-making process. Citizens need not participate directly – indeed, most are unlikely to be invited to contribute in a formal capacity at any stage – but may make their voice heard through members of parliament,[2] interest groups, social media or traditional media. As the Supreme Court of Canada observed in the Secession Reference, “a functioning democracy requires a continuous process of discussion”.[3] This might be said to be the principle of democracy or, less grandiosely, of citizens participation, in action.

Individual interests may be given protection through the legislative process – Britain’s hybrid bill procedure sets down imposing procedural hurdles for bills apt to interfere with individual interests;[4] and there is nothing to stop Canadian parliamentary committees from taking a hands-on role in consulting with First Nations about proposed legislative measures which may impinge upon the rights protected by s. 35 of the Charter.[5] Beyond this, electoral mandates play an important role in regulating the relationship between lower and upper chambers in the Westminster tradition. Money bills are perhaps the best example,[6] as in most systems operating in the Westminster tradition, money bills are the preserve of the representative lower chamber, not the unrepresentative upper chamber.[7] No taxation without representation – someone tell our American cousins. And, of course, a legislature may be set up – as the Australian and Canadian federal Parliaments are – to protect regional interests and give effect to the principle of federalism.[8] Thus the legislative process can be seen to generate a plurality of principles relating to citizen participation, protection of individual and group interests, electoral legitimacy and federalism.

Principles are also generated by ministerial action and administrative adjudication, a pair of sources which might loosely be described as the “executive” equivalent to the “legislative” and “judicial” sources just mentioned. Ministerial action, increasingly centralized in contemporary Westminster-style democracies in Prime Ministerial offices,[9] sets out by way of impact assessment requirements how countries are to be run, a treasure trove of documents from which principles can be drawn[10] – consider, for example, Gender-based Analysis Plus, found in the most recent batch of ministerial mandate letters.[11] Administrative adjudication, too, generates its own principles, perhaps ones which lawyers would not immediately recognize as their own, for “‘[a]dministrative justice’ will not always look like ‘judicial justice’”.[12] And, of course, one should not neglect Indigenous legal orders, with rich law-making traditions of their own, different in many ways from those of the common and civil law.[13]

There is, then, a plurality of sources upon which public lawyers can draw and a plurality of principles to extract from them. Electronic search, social media and blogs are an excellent means of keeping abreast of the activity generated by the daunting plurality of sources I have mentioned. CanLII has not only opened the sluice gates but has developed a variety of innovative tools to measure the resulting flow: the site allows researchers to grasp very quickly where and how often a particular decision has been cited, typically a good guide to its importance, and via CanLII Connects to identify any relevant commentary, again a good guide to the importance of a decision. In its most recent iteration, CanLII identifies paragraphs in judicial decisions which have been extensively cited or commented upon.

Notice, finally, that here I am commenting only on the most conventional of sources. I have not even mentioned the reams of soft law developed by international organizations and private standard-setting regulators,[14] never mind the policy documents produced by the curators of public platforms such as Facebook, Google and Twitter.[15]

[1] Paul Daly, “Administrative Law: A Values-Based Approach” in John Bell, Mark Elliott, Jason Varuhas and Philip Murray eds., Public Law Adjudication in the Common Law World: Process and Substance (Hart Publishing, Oxford, 2016) and “Administrative Law: Characteristics, Legitimacy, Unity” in Mark Elliott, Jason Varuhas and Shona Stark eds., The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart Publishing, Oxford, 2018).

[2] See e.g. Kelly Blidook, “Exploring the Role of ‘Legislators’ in Canada: Do Members of Parliament Influence Policy?” (2010) 16 Journal of Legislative Studies 32

[3] [1998] 2 SCR 217, at para. 68.

[4] See e.g. R. (HS2 Action Alliance) v. Secretary of State for Transport, [2014] UKSC 3,[2014] 1 WLR 324, at para. 57.

[5] Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 SCR 765, at para. 145, per Brown J.

[6] The Irish Constitution 1937, art. 22.1.1 provides a useful definition:

[A statute which] contains only provisions dealing with all or any of the following matters, namely, the imposition, repeal, remission, alteration or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on public moneys or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; matters subordinate and incidental to these matters or any of them

[7] See e.g. Constitution Act, 1867, s. 53; Irish Constitution 1937, art. 21; Parliament Acts 1911-1949, s. 1(1). Cf. Commonwealth of Australia Constitution Act, s. 53.

[8] See e.g. Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704.

[9] See e.g.  Mary Liston, “The Most Opaque Branch? The (Un)accountable Growth of Executive Power in Modern Canadian Government” in Richard Albert, Paul Daly and Vanessa MacDonnell eds., The Canadian Constitution in Transition (University of Toronto Press, Toronto, 2019).

[10] See e.g. France Houle, Analyses d’impact et consultations réglementaires au Canada, Étude sur les transformations du processus réglementaire fédéral : de la réglementation pathogène à la réglementation intelligente, (Éditions Yvon Blais, Cowansville, 2012). 

[11] See e.g. Office of the Prime Minister, Minister of Justice and Attorney General of Canada Mandate Letter (December 13, 2019).

[12] Vavilov, at para. 92.

[13] See e.g. Sébastien Grammond, Aménager la coexistence : les peuples autochtones et le droit canadien (Éditions Yvon Blais, Montreal, 2003);John Borrows, Canada’s Indigenous Constitution (University of Toronto Press, Toronto, 2010).

[14] See e.g. Julia Black, “Paradoxes and Failures: ‘New Governance’ Techniques and the Financial Crisis” (2012) 75 Modern Law Review 1037; and Cary Coglianese and Evan Mendelson, “Meta‐Regulation and Self‐Regulation” and Tanina Rostain, “Self‐Regulatory Authority, Markets, and the Ideology of Professionalism” in Robert Baldwin, Martin Cave, and Martin Lodge eds, The Oxford Handbook of Regulation (Oxford University Press, Oxford, 2010).

[15] Gillespie, Custodians of the Internet.

This content has been updated on March 18, 2020 at 13:04.