What Does Vavilov Mean for Constitutional Issues in Administrative Law?

by Cheryl Milne

It seems like a lifetime ago that I last attended an in-person legal conference. It was only March 9th, and while the specter of COVID-19 was present (there were hand sanitizer dispensers at the elevator banks and we all used them), social distancing was not yet a phrase on everyone’s tongue as we sat shoulder to shoulder in the downtown conference facility. The conference hosted by Osgoode Hall Law School was a day-long examination of the Supreme Court of Canada’s long-awaited administrative law decision, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. I was asked to discuss its implications for constitutional issues.

The short answer is that the decision poses more questions than answers. The long version is what I think can be covered in a blog post rather than an academic paper. Hence, my attempt, from the relatively safe confines of my kitchen, to summarize what I said on March 9th and what I have thought about it since. I should add that I was joined on this two-person panel by Senwung Luk of OKT LLP, who addressed the implications for the duty to consult and accommodate, and whose succinct answer to that question was, “utter chaos.”

For those of you who were not hanging on the edge of your seats for the duration of 2019 awaiting the Court’s pronouncement on the standard of review in administrative law, the appeal involved the judicial review of the decision of the Registrar of Citizenship to cancel the Canadian citizenship of the Canadian-born son of parents later revealed to be Russian spies – their story served as inspiration for the television series, The Americans. That got some of your attention!

I don’t propose to analyze the Court’s overall approach to the administrative law questions and the standard of review here. For a more comprehensive treatment, I suggest Paul Daly’s blog Administrative Law Matters which links to his longer paper posted on SSRN. My task was to discuss the constitutional issues that the majority purported not to address.

In refusing to comment on its earlier administrative law decision in Doré v Barreau du Québec, 2012 SCC 12, the Court leaves open many questions. Doré established that the standard of review of an administrative decision that impacted Charter rights was reasonableness, rather than the application of the Oakes test under s. 1 of the Charter, but in keeping with the general theme of proportionality under s.1, the decision needed to be a proportional balancing of the Charter right with the governing statutory objective. This approach was reiterated in Loyola High School v. Quebec (Attorney General), 2015 SCC 12 and the Trinity Western decisions (referenced below). It remains controversial, with critics claiming that it fails to respect the primary or priority of Charter rights[1] and fails to place the onus on government for justifying a limitation on rights as is required under s. 1 of the Charter.[2]

The majority states clearly that “constitutional matters require a final and determinate answer from the courts” (para.55), thus attracting the correctness standard of review. But that applies only to constitutional questions, such as a challenge to the constitutional validity of legislation. The majority of the Court goes on to state,

However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré) and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter… [para. 57]

 

 

 

So, you might ask what is so unclear about that? The reasonableness standard continues to apply to the Doré set of cases, while challenges to statutes require the standard of correctness. But the Court interchanges constitutional questions with the term constitutional matters, which include federalism issues and treaty rights, and glosses over any confusion that could arise over what could fit within that category. For example, the Ontario Courts of Justice Act defines a constitutional question as one that invokes the constitutional validity or applicability of a statutory provision as well as a claim for a constitutional remedy under s.24(1) of the Charter. Does this mean that the standard of correctness applies to a claim for a constitutional remedy based on government action as opposed to the validity of a statute, as anticipated by R v Conway, 2010 SCC 22?

To illustrate the Court’s inconsistency on this issue alone, one need only look to the case of Ernst v Alberta Energy Regulators, 2017 SCC 1, admittedly not a judicial review, but a case that provides confusing analysis about what constitutes a constitutional question. The plaintiff was seeking Charter damages against the administrative body for allegedly infringing her Charter right to freedom of expression. The regulator raised the statutory provision that barred claims against it to seek a dismissal of the proceedings, while Ernst argued that the provision could not be interpreted so as to prevent a Charter claim. A minority of the Court agreed with the regulator’s interpretation that the legislation barred a damages claim, suggesting the Ernst ought to have sought a judicial review instead. Their ruling dismissing the appeal became the majority decision when Justice Abella reasoned that the claim should be dismissed because the plaintiff failed to file a Notice of Constitutional Question to have the provision declared unconstitutional. If that sounds confusing to you, you are not alone.

A further constitutional matter that could also fall within the category of general questions of law of central importance to the legal system as a whole, which is another category requiring the correctness standard of review, is the consistent interpretation of a Charter right itself. As McLachlin, C.J. (as she then was) noted in her concurring reasons in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, possibly conflating reasonableness and correctness in this context,

…[T]he scope of the guarantee of the Charter right must be given a consistent interpretation regardless of the state actor, and it is the task of the courts on judicial review of a decision to ensure this. A decision based on an erroneous interpretation of a Charter right will be unreasonable. Canadians should not have to fear that their rights will be given different levels of protection depending on how the state has chosen to delegate and wield its power. [para. 116]

 

 

 

 

In stating that it was not revisiting Doré, the majority said that “reconsideration of [its approach to the standard of review of reasonableness was] not germaine to the issues in this appeal” [para.57]. To properly examine this statement, one needs to dip one’s toe into the majority’s revised reasonableness framework. In asserting that the role of the reviewing court is to review and not to decide the issues themselves, the majority states that the review does not entail an “attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker” [para.83]. This specifically contradicts the language of Doré [para. 56] in respect of the proportionality analysis and the approach to judicial review generally enunciated in Dunsmuir v. New Brunswick, 2008 SCC 9 [para. 47]. The Court reiterated this pre-Vavilov approach in Trinity Western University v Law Society of Upper Canada, 2018 SCC 33, where Justice Abella stated for the majority,

The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives, always asking whether the decision falls within a range of reasonable outcomes [Doré, at para.57; Loyala, at para. 41, citing RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160). [para. 36]

 

 

 

It is difficult to ascertain whether a given decision that is required to balance Charter rights against legislative purpose is proportional without asking whether the decision falls within a range of reasonable outcomes. While the section 1 Oakes test is not applicable, the imperative of minimally impairing a Charter right is central to the proportionality analysis.

Another aspect of the decision that raises questions about the approach to expect in future cases is the Court’s treatment of context. The contextual approach to determining the standard of review has been clearly rejected. Reasonableness, even where Charter rights are implicated (other than a constitutional question), is the presumptive standard. However, context still plays a role in the way that a robust reasonableness review is conducted.

The majority states, “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” [para. 90]. However, it is also important to note that the majority in Trinity Western also stated that in the Charter context reasonableness and proportionality are synonymous, suggesting, perhaps, a different approach to the standard of reasonableness given that one could argue that proportionality requires a particular approach when assessing the impact on Charter protected rights.

While we appear to be stuck with Doré for the foreseeable future, that may not be a bad thing in light of the Court’s deferential approach to reasonableness in Vavilov. However, questions still remain under that approach as to who bears the onus for demonstrating the reasonableness of a decision, with the Courts generally requiring those challenging the decision to meet that onus. This leaves the individual alleging the breach of their Charter rights with the burden, unlike the onus on government under the Oakes test.

So, my short summary was that there are more questions than answers in respect of the implications of Vavilov for constitutional issues. Those questions for me include: What is a constitutional question? Does the interpretation of the Charter right invoke the standard of correctness or is an incorrect interpretation unreasonable? How will the context of a Charter claim alter the reasonableness standard, or will it? How will the proportionality analysis be conducted if the reviewer is not to examine alternative outcomes that could have been available? And, does the requirement of justification and the focus on reasons address any of the issues pertaining to onus that have been the subject of the criticism of Doré?

Cheryl Milne is the Executive Director of the David Asper Centre for Constitutional Rights

[1] Macklin, Audrey, Charter Right or Charter Lite? Administrative Discretion and the Charter (October 9, 2014). Supreme Court Law Review, Vol 67, 2014. Available at SSRN: https://ssrn.com/abstract=2507801

[2] Liston, Mary, Administering the Charter, Proportioning Justice: Thirty-five Years of Development in a Nutshell Canadian Journal of Administrative Law & Practice; Toronto Vol. 30, Iss. 2, (Jun 2017): 211-246.

Asper Centre OUTLOOK & Message

 

Dear Asper Centre Friends,

We hope that you, your loved ones and colleagues are keeping safe and well during these challenging times.

Shortly before the faculty of law closed due to COVID-19 earlier this month, the Asper Centre published its annual newsletter, the Asper Centre Outlook. This issue contains many wonderful articles written by our faculty’s students, on topics ranging from voting rights, media freedom, UNDRIP implementation, sex workers’ rights and the carbon tax. Our students’ interest and engagement with the leading constitutional issues in Canada is impressive as always and we are so grateful for their contributions.

We hope you will find this newsletter a good distraction to the more worrisome news flooding your screens, and until we see you again, we wish you the very best. We are all in this together!

The Asper Centre

Carbon Tax Constitutional Challenge: ABCA Sides with Province

by Adam LaRiviere

On February 24th, 2020, the Alberta Court of Appeal (‘ABCA’) released its decision regarding the constitutional challenge of the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (‘Act’). The case was decided 4-1 in favour of the Alberta government and stated that Parts 1 and 2 of the Act were unconstitutional in their entirety. This decision is the third of its kind, with the Ontario and Saskatchewan Courts of Appeal deciding in favour of the federal government 4-1 and 3-2 respectively. The Supreme Court of Canada (SCC) was set to hear appeals from Ontario and Saskatchewan on March 24th and 25th in order to make a final decision on the constitutionality of the Act, however due to Covid-19, the Court has postponed the hearing to June 2020.

What is the Act?

The Act came into force in June 2018, with some aspects, such as the federal fuel charge system, being applied as late as January 1st, 2020. The Act is a direct response to the current climate crisis, and seeks to lower green house gas (GHG) emissions by imposing a minimum set of price standards for both carbon-based fuels and industry-based emissions which provinces must adhere to. This means that all Provinces and Territories are required to meet the minimum price per tonne of carbon dioxide equivalent and establish emission caps as directed by the Act.

Previous Decisions

The reasoning behind the ABCA majority’s decision in this case differed greatly from the previous challenges in Ontario and Saskatchewan. In those appeals, both majorities found that the legislation was validly enacted under the national concern doctrine of Parliament’s Peace, Order and Good Government (POGG) powers; however, it was stated that neither court considered the impact of the Act on the exclusive jurisdiction of the provinces to make laws relating to the development and management of their natural resources under s. 92(A) of the Constitution.

The ABCA’s Decision

The ABCA’s decision was largely founded on the rejection of the application of the national concern doctrine. The majority stated that this doctrine cannot be used to assign a new head of power to the federal government where the subject matter falls within the province’s exclusive jurisdiction. The subject matter of the Act was contested by the parties but the court found that, at its minimum, the Act is aimed at the regulation of GHG emissions. The court focused on the infringement of the provinces’ exclusive power to develop and manage their natural resources granted under s. 92(A). It was found that these powers, in conjunction with the provinces’ proprietary rights in their resources, afford the provinces substantial control over the development of their resources. This includes the ability to regulate resources after they have been extracted. The majority continued, stating that the legislation also falls under the provincial power over property and civil rights (s.92(13)), the power over local works and undertakings (s. 92(10)), and finally the power of direct taxation (s. 92(2)).

The majority also stated that even if they are incorrect in the above finding, the national concern branch of Parliament’s POGG powers cannot apply. They state that the subject matter of the impugned legislation is not sufficiently distinct or indivisible from provincial powers for the national concern doctrine to apply. Rather, the legislation allows the federal government to determine the degree to which the provinces must exercise their power, thus rendering it meaningless. Additionally, the powers granted to Parliament are not inherently limited in the legislation. This creates the potential for Parliament to regulate all things pertaining to the environment or climate change.

Justice Feehan wrote in dissent that he would uphold the Act. He dismissed the idea that the Act infringes the exclusive jurisdiction of the provinces on the grounds that S. 92(A) cannot limit pre-existing federal powers including the national concern branch of the POGG powers. He then stated that the subject matter of the legislation is much more narrow and concerns the need to make a behavioral change in Canada towards more efficient energy use through the use of pricing standards for GHG emissions. Consequently, he stated that this characterization of the Act is within the scope of the national concern doctrine.

Future Litigation

As mentioned, the SCC was meant to hear the appeals from Ontario and Saskatchewan, in addition to the Alberta appeal, on March 24th and 25th. While the decisions have been 2-1 in favour of the federal government, the Justices have been split 7-5 on this issue overall. Parliament remains confident in their position despite this lack of consensus and they feel confident that the “price of pollution is within federal jurisdiction.”

Adam LaRiviere is a 1L JD student at the Faculty of Law and is a member of the Asper Centre Climate Justice student working group this year.

Reflections on the Asper Centre Intervention in Ontario v. G

By Jeffrey Wang

As a clinic student this term, I had the opportunity to hear the Asper Centre’s oral arguments in its intervention at the Supreme Court of Canada in the appeal of Ontario v. G, which took place on February 20, 2020. The appeal concerned the constitutionality of the Ontario and federal sex offender registry laws, which required offenders found not criminally responsible (NCR) to report to the registry for life, even if they had been absolutely discharged by the Ontario Review Board (ORB). Offenders not found NCR who receive an absolute discharge, record suspension, or pardon do not have to report to the registries. In this way, the claimant, G, who was found to be NCR after his criminal trial, argued that the Ontario and federal sex offender registry laws violated his s. 7 and s. 15 rights under the Charter.

Justice Doherty for the Ontario Court of Appeal did not find a s. 7 violation. However, he recognized that the sex offender registries drew a discriminatory distinction based on the ground of mental disability under s. 15 of the Charter, since the law reinforces the stereotype that NCR offenders are indeterminately dangerous. Under s. 1, the court focused on the fact that the reporting requirements for NCR offenders did not have any “exit ramps” even though similar “exit ramps” are available for non-NCR offenders. Justice Doherty found that this was not a minimal impairment of s. 15 rights and struck down the laws.

Supported by the faculty of law’s Professor Kent Roach, the Asper Center intervened in this appeal on the issue of remedies, specifically about when delayed declarations of invalidity intersect with the need for constitutional exemptions in Charter litigation.  In this case, the Ontario Court of Appeal suspended the declaration of invalidity for one year in order to allow the legislature to amend the impugned laws. However, Justice Doherty exempted the applicant G from this suspension, which meant that G was removed from the sex offender registry reporting requirements, effective immediately. This was controversial, since the Supreme Court in R v Demers had expressly advised against exempting individual claimants from suspended declarations. The Asper Center argued that the Demers rule must be overturned. This is due to the fact that the Supreme Court has exempted individual claimants from suspended declarations in the past, such as in Corbiere and Carter. In addition, without the ability to exempt claimants from suspended declarations, individual claimants must wait until the completion of the suspended declaration in order to receive any benefits of their successful claim. The Asper Center also argued that the Supreme Court should only use suspended declarations of invalidity as a remedy when it is justified as necessary and proportional. This is in line with international practices such as the Hong Kong courts’ use of suspended declarations as well as the Supreme Court’s own jurisprudence on other constitutional remedies. Furthermore, many scholars are critical of the overuse of suspended declarations of invalidity since the remedy creates uncertainty and allows laws to continue violating Charter rights during the suspension.

My experience working on this case provided me with an invaluable look into appellate advocacy. At the Supreme Court, the arguments focused on if the sex offender registry laws violated s. 15 of the Charter and security of the person under s. 7. Many of the Justices were critical of the government’s s. 15 argument, asking numerous questions on the implications of their evidence that NCR offenders are more likely than the average population to commit another offence. Although the Asper Center was only given five minutes, Asper Centre Executive Director Cheryl Milne effectively addressed all of our arguments, and the Justices seemed receptive. It was exciting to see the research I conducted on Hong Kong’s jurisprudence not only be included in our factum, but also mentioned in our oral arguments. Ultimately, we will have to wait to see if the Supreme Court will take our invitation to re-imagine the use of suspended declarations of invalidity as a constitutional remedy.

Jeffrey Wang is a 2L JD student at the Faculty of Law and is the current Half-time Asper Centre Clinic student.