An Appreciation of Dr S Ronald Ellis QC: An Academic at the Bar and in the Political Arena

I was invited to contribute to a major symposium on the career of Dr S Ronald Ellis QC today (see the details). Here are my remarks:

A few weeks ago, the Supreme Court of Canada released a remarkable decision in R. v. Bissonnette, 2022 SCC 23. The issue was the constitutionality of a sentencing provision which allowed judges to impose consecutive 25-year terms of imprisonment without parole on individuals who had committed multiple murders. Unanimously, the Supreme Court held that sentences of longer than 25 years constitute cruel and unusual punishment, a violation of s. 12 of the Charter.

For Wagner CJ, the core problem was as follows: “Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re‑enter society” (at para. 76).

The upshot is that for any sentencing regime to be constitutional, it must allow for the possibility of parole after 25 years. As to parole, the Parole Board is the “ultimate arbiter” (at para. 138).

Although Wagner CJ does not put the point in these terms, the effect of his analysis is to create a constitutional right of access to an administrative tribunal, which will determine independently and impartially whether and on what conditions an offender should be released (at para. 147).

Compare Wagner CJ’s comments about the possibility that the royal prerogative of mercy — a discretionary power to commute sentences, exercisable by the Attorney General — could be used to alleviate the harsh consequences of long sentences:

In short, the royal prerogative of mercy, because of its exceptional nature, is at best a release mechanism based on compassion and on the existence of humanitarian grounds under Canadian law. Individuals suffering the normal consequences of a properly imposed sentence are in fact unlikely to obtain such a pardon. This is clear from the Ministerial Guidelines: “. . . an act of executive clemency will not be considered where the difficulties experienced by an individual applicant result from the normal consequences of the application of the law” (p. 4 (emphasis added); Sup. Ct. reasons, at paras. 963 and 967). The existence of the royal prerogative of mercy therefore creates no realistic possibility of parole for offenders serving a sentence of imprisonment for life for which there is no other review mechanism (at para. 118).

As such, it could not function as a safety valve to ensure justice in a potentially unjust regime.

Bissonnette presents a striking contrast between an independent and impartial tribunal (the Parole Board), constitutionally necessary to avoid a conclusion that a lengthy sentence constitutes cruel and unusual punishment, and a ministerial discretion (the royal prerogative of mercy), incapable of remedying systemic problems in an administrative regime because of its exceptional, highly discretionary nature. Tribunals are good; discretion is to be distrusted.

I am sure that Dr Ron Ellis would be amused, or perhaps bemused, by the decision in Bissonnette. For as he pointedly observed in Unjust by Design, we have “a Potemkin village system of apparently independent but in fact dependent judicial tribunals, a system that satisfies the executive branch’s administrative and control needs while ignoring the rule of law” (at p. 36). Administrative tribunals enjoy no constitutional status in Canada. Time and again, Canadian courts have refused to extend constitutional protection to tribunal independence.

In my view, Unjust by Design — Dr Ellis’s academic contribution to administrative independence in Canada — is the best book this century on administrative justice in Canada.

In it, Dr Ellis takes aim at what he ultimately calls “judicial tribunals”. Despite the label, which is carefully chosen and explained, these are not courts. Rather, they are administrative decision-makers. The term “judicial tribunal” is designed to capture a subset of administrative decision-makers for which independence is vitally important.

He distinguishes these from various other bodies, including regulatory agencies. For Dr Ellis, there is a fundamental difference between a workers’ compensation board making payouts to injured workers and an energy board granting licences to economic actors. The workers’ compensation board should dispassionately apply the statute setting out the rights of injured workers. But an energy board might legitimately have regard to a much wider variety of policy factors. The upshot is that the workers’ compensation board must be rigorously protected from outside interference in terms of security of tenure, security of remuneration and decisional autonomy, whereas some political influence over the energy board might be tolerable.

First, Dr Ellis recounts in a chapter entitled “Defeating the Rule of Law in the Administrative Justice System: Executive Branch Strategies and Tactics” the various ways in which political actors undermine, sometimes subtly, the independence of administrative decision-makers. Control over renewal of appointments is a particularly striking example. Discharge your functions in such a way as to please your masters and you will stay in your position. Otherwise, you will need to find a new line of work.

Second, Dr Ellis offers an arresting doctrinal solution. He recognizes that judicial independence would not be suitable for all administrative decision-makers. Instead, he advocates a revival of the distinction between judicial and quasi-judicial tribunals — with perhaps a separate category of administrative functions, but Dr Ellis is concerned primarily with the treatment of functions that are properly considered judicial as quasi-judicial and subject to lower requirements in respect of independence. If the distinction is revived as Dr Ellis argues, only judicial tribunals would be protected by a constitutional principle of judicial independence.

Again, this perspective is very interesting. The conventional wisdom is that the formal judicial/quasi-judicial distinction was jettisoned because it led to arbitrary results in procedural fairness cases. Yet, as Dr Ellis points out in a compelling historical discussion, having jettisoned the distinction, Canadian administrative law was left with no label which would justify requiring the highest possible level of independence for tribunals, like workers’ compensation boards, which really should be expected to discharge their functions with rigorous independence and impartiality, just as courts do.

The difficulty, as Dr Ellis notes, is that politicians have strong incentives to maintain this power over administrative decision-makers: they benefit from the ability to make patronage appointments and to influence indirectly the exercise of administrative powers.

Canadian judges, however, have been reluctant to intervene to redress the imbalance in the administrative justice system. As a member of the bar, Dr Ellis had a front-line seat in Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, where he was counsel for the Federation.

The basic issue here was that a provision in the provincial Interpretation Act provided for the replacement by an incoming government of the members of various administrative bodies. Here, members of the Labour Relations Board were put out to pasture and new members were ushered in. In an earlier case, the Order-in-Council accomplishing this was challenged, but the Saskatchewan Court of Appeal held that the statutory authority to fire administrative decision-makers appointed by a previous government was clear: 2010 SKCA 27.

In this case, the enabling provision in the Interpretation Act was itself challenged as unconstitutional, on the basis that it violated the unwritten constitutional principle of adjudicative independence.

However, the Supreme Court has held that this norm has, at best, the status of a common law norm that can be overridden by clear statutory provisions. Indeed, in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781, the Supreme Court of Canada even suggested that legislation defines the appropriate level of independence of an administrative decision-maker (see especially paras. 20, 24).

Given this, the argument was given short shrift by the Saskatchewan Court of Appeal:

Given what I regard as the clear import of these passages, I am of the view the argument of the Federation of Labour and the two unions is not only problematic but must fail. In other words, I am of the opinion that, in light of reasons for judgment in Ocean Port, the unwritten constitutional principle of judicial independence grounded in the preamble to the Constitution Act, 1867 cannot be seen to extend to the Saskatchewan Labour Relations Board, including the chairperson and vice-chairpersons of the Board (at para. 56). 

With the courts apparently unwilling to step in, even in cases where s. 7 of the Charter is engaged, the ball has been sent into the political arena. Here, too, Dr Ellis has made an important contribution. Arising out of the work of Tribunal Watch Ontario, Dr Ellis proposed model legislation to guarantee administrative independence. His act would alleviate the pressure points of tribunal independence — appointment, reappointment, salary and administrative autonomy — by interposing an independent adjudicative tribunal justice council between adjudicative tribunals and the government of the day. Remarkably, his proposal even garnered a place in the electoral platform of a major political party (the NDP) at the last provincial election. Although the NDP fell well short, there is no doubt that future attempts to secure administrative independence in Canada will take Dr Ellis’s model legislation as the starting point.

Through his work as an academic, at the bar and in the political arena, Dr Ellis has made significant and lasting contributions to Canadian administrative law. When people in the academy, in practice and in politics notice the dissonance between the emphasis on tribunal independence and impartiality in cases like Bissonnette and the reluctance of judges and politicians to protect tribunal independent and impartiality in a meaningful way, let us hope they look to Dr Ellis’s oeuvre as they seek to chart a way forward.

This content has been updated on June 21, 2022 at 20:47.

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