A Week of Arguments about Deference

Last week’s output from the Supreme Court of Canada featured four administrative law cases: one about the analytical tools used by the Correctional Service of Canada for dealing with aboriginal offenders (Ewert v. Canada, 2018 SCC 30); one about the Canadian Human Rights Tribunal’s refusal to entertain discrimination claims brought by members of Indigenous communities  (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31); and two about the refusal of law societies in Ontario (Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33) and British Columbia (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32) to accredit Trinity Western University’s proposed evangelical Christian law school.

I do not propose to pick through the decisions in detail — I have already written about every administrative law aspect of the Trinity Western litigation (broadly in line with the majority’s views on proportionality, the role of reasons, the scope of the law societies’ regulatory authority and the decision-making-by-referendum process in British Columbia — but rather to make four general points about deference in Canadian administrative law.

First, these cases highlight the high stakes of the debate about deference from courts to administrative decision-makers. The Trinity Western litigation provides the most obvious examples, with the relative roles of the law societies and the courts in defining and balancing the TWU’s community’s religious liberty and equality for the LGBTQ community to the forefront.

But the other cases do too. Who is in the front seat when it comes to the psychological and risk assessment tools used to evaluate aboriginal offenders, the courts or the CSC (Ewert)? And are decisions of human rights tribunals entitled to deference from the judiciary when interpreting statutory provisions of national significance — such as whether the Canadian Human Rights Tribunal could adjudicate on claims of individuals who had been discriminated against on the basis of a long-discredited official practice formerly enshrined in legislation (Canadian Human Rights Commission)?

Each of these cases raised profound issues relating to Canada’s contemporary and historical treatment of minority groups, decided in the first instance by administrative decision-makers. The question then becomes the courts’ attitude to those decision-makers: do they carve out a space in which the decision-makers can act as they see fit, subject to remaining within the boundaries of reasonableness? Or do the courts reserve the final word on these questions of national significance to themselves, perhaps giving some weight to the decision-makers’ views, if felt appropriate?

Second, there are deep divisions, on the Court and in the Canadian legal community about when and whether such deference should be accorded to administrative decision-makers. Given the binding precedent, CHRC and Trinity Western seem, to me at least, to have been rightly decided. Indeed, the majority reasons in CHRC represent an excellent application of accepted principles relating to the scope and meaning of reasonableness review. Ewert is also a defensible decision, for reasons I will discuss further below. In these cases, however, there were detailed, spirited dissents that began from markedly different premises from those of the majority reasons. Having said that, it was striking that all of the judges seem to agree that there is some scope for deference: for instance, Rowe J jointly wrote a concurring set of reasons in CHRC arguing against deference but upbraided the majority in Ewert (at para. 127) for being insufficiently deferential.

Beyond the Court, and underscoring the salience of the deference issue, there were some visceral reactions to the Trinity Western decision. Some of these were prompted by the lack of weight the majority accorded to the Trinity Western community’s religious beliefs (see Professors Su, Newman and Vermeule). But some were prompted by the deference afforded to the decisions of the law societies (most notably Howard Anglin; see also Leonid Sirota). I was quick out of the blocks in 2012 with a critique of the decision in Doré v Barreau du Québec [2012] 1 SCR 395, which I subsequently expanded upon in this article and I am glad to see that the ranks of the critics are swelling.

Nonetheless, the criticism should not be exaggerated, not least because the Court has often repeated the sentiment that “[w]hen a decision engages the Charter, reasonableness and proportionality become synonymous” (Trinity Western BC, at para. 80); it may be that Dore, despite its emphasis on deference, is not all that deferential (though see Rowe J in Trinity Western BC, at paras. 195-208, on the burden of proof), or at least has the potential to be an exacting standard of review.

Third, the result of all this deference is to diffuse power to interpret the law and Constitution across a wide range of bodies, some staffed by lawyers, some by laypeople. Does this raise the prospect of “petty tyrants“, running amok under the banner of “Charter values”, imposing their own personal preferences on those they regulate? Perhaps. I am more optimistic about the ability of “line decision-makers” (as Lauwers JA described them in E.T. v. Hamilton-Wentworth District School Board 2017 ONCA 893, at para. 117, noted here) to make sensible decisions. For every petty tyrant, I would guess there are about a dozen making good faith efforts to apply regulations and statutes, having regard to the broader constitutional context.

Indeed, CHRC indicates that human rights adjudicators take their responsibilities seriously: on a political (and, for that matter, human) level, it must have been very tempting to allow the complaints of discrimination to proceed to a full hearing, in the spirit of reconciliation between Canada and its First Nations, yet the adjudicators showed fidelity to the legal framework in which they were operating and refused to allow the complaints to go forward.

Whether administrative decision-makers will do a good job or not under the Doré framework is ultimately an empirical question. On the plane of theory and practice, it can be said in its defence that Doré is a deeply democratic decision, in the sense that it gives non-lawyers the ability to produce binding interpretations of constitutional law (within the bounds of reasonableness/proportionality). Doré teaches that constitutional law is not the exclusive preserve of the courts. As McLachlin J (as she then was) once put it: “The Charter is not some holy grail which only judicial initiates of the superior courts may touch” (Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854, at para. 70). The decisions in the Trinity Western cases are very much in keeping with this democratic impulse — all the more so given that a majority of the Court accepted in Trinity Western BC that the law society could rely on the results of a referendum of its members to help justify refusing to accredit Trinity Western’s proposed law school. Put another way, Doré and Trinity Western are not dastardly attempts by the Court to do away with Canadians’ Charter protections; they represent a judicial effort to bring the Constitution into everyday administrative decision-making, perhaps a misconceived effort but certainly a good-faith one.

Fourth, producing reasons that justify decisions implicating Charter rights or other fundamental constitutional principles can be difficult. Deference is hard work. For instance, the CSC does not emerge well from the Ewert decision. The partial dissent queries why no deference was afforded to the CSC, in the context of doubting that declaratory relief was appropriate (as opposed to going through a statutory grievance procedure). Sure enough, the majority conducts a statutory and constitutional analysis with no regard at all for the CSC’s views. But as the majority pointed out, the CSC “was aware of long-standing concerns as to whether the impugned tools were valid” and carried on regardless, continuing “to rely on the results they produced in making decisions about offenders without inquiring into their validity with respect to Indigenous offenders” (Ewert, at para. 80). There was, it seemed, nothing much to defer to.

Of course, in the Trinity Western cases there were no reasons to defer to, a point the dissenters emphasised (see Trinity Western BC at paras. 298-302). However, these were cases involving non-adjudicative decision-makers that adopted [resolutions: thanks “Jack”!]. Reasons are generally not provided in such situations and have to be gleaned from the record. In the Trinity Western cases, what therefore mattered was the process leading up to the decisions.

Certainly in Ontario, the process followed, of an open, transparent debate in which opposing viewpoints were thoroughly ventilated, was fully deserving of the respect of the courts: indeed, the dissenters do not suggest otherwise (see Trinity Western Ontario).

In British Columbia, the decision was arrived at after a convoluted process, involving a referendum of the province’s lawyers. Reasonableness in such circumstances cannot be assessed in the light of the reasons given for the decision (because none will be available), but would have to be assessed by reference to whether appropriate safeguards were put in place to ensure the relevant issues were properly taken into account. The majority could perhaps have said more on this (see Trinity Western BC, at paras. 48-50 and 55). Equally, however, the dissent’s characterization of the process as an “abdicat[ion] of duty” is too strong, at least absent a consideration of the shortcomings (if any) of the referendum process (Trinity Western BC at para. 298).

These cases came out in a bunch because the six-month post-retirement period for former Chief Justice McLachlin to contribute to decisions was coming to an end and, with an overhaul of Canadian administrative law in the offing, the reflections they prompt will no doubt prove to be very timely.

This content has been updated on June 19, 2018 at 13:05.