The Constitutional Basis for Judicial Review in Canada
In the wake of the Supreme Court of Canada’s decision in Vavilov, I’ve decided to pick up a copy of A.V. Dicey’s Introduction to the Study of the Law of the Constitution. I had read passages from this book more than a decade ago when I was in law school, but very little since beyond the odd paragraph. Dicey’s book is valuable primarily as a historical work. It lays out in comprehensive fashion the principles of the British Constitution in the late 19th and early 20th centuries and thereby provides a key insight into the original meaning of the Canadian Constitution – a “Constitution similar in principle to that of the United Kingdom.” Dicey’s brief discussion of Canadian federalism is admittedly somewhat rudimentary and ill-informed and there are other aspects of his argument that are wanting. But his in-depth analysis of the principles underlying the British Constitution more generally is extremely well thought out and remains relevant today.
In what follows, I will discuss an aspect of Dicey’s text and its implications for the law of judicial review in Canada. In particular, I argue that Canada’s Constitution – and particularly its entrenchment of Parliament and the courts – precludes the use of strong privative clauses that oust judicial review of administrative action.
Dicey on Parliamentary Sovereignty and the Rule of Law
The nuances of Dicey’s arguments are rarely discussed today, and the man has become more of a symbol for a way of thinking about law. The terms “Diceyan” and”Neo-Diceyan” are used pejoratively by some of Dicey’s detractors, but it is not clear to me that Dicey would have endorsed all of the qualities being ascribed to him.
For example, while Dicey was critical of the French system of droit administratif, he was also not shy about extolling the ways in which it was superior to British common law – namely its flexibility and ability to deliver justice in particular cases. Secondly, there is nothing in Dicey’s text to suggest that he considered delegation to administrative tribunals to be incompatible with the rule of law as such. Indeed, he even argued that an “Act of Indemnity” – a statute protecting agents of the Crown for previous unlawful conduct – would not run afoul of the rule of law principle. Dicey thus took no issue with what we would today call the administrative state, provided that the decisions of administrators were still subject to be reviewed by the common law courts.
For Dicey, the twin pillars of the British rule of law were parliamentary sovereignty on the one hand and an independent judiciary interpreting the legality of government conduct on the other. This may seem like an odd pairing to Canadians, as we are accustomed to thinking of a robust judicial function as being incompatible parliamentary sovereignty. The Supreme Court has long treated the concepts of parliamentary sovereignty and the rule of law as being in tension and requiring reconciliation in the field of administrative law. Dicey argued, however, that far from being in conflict, the rule of law rests on parliamentary sovereignty, and parliamentary sovereignty correspondingly depends upon an independent judiciary. Each law passed by Parliament must be discussed and debated and is then promulgated in written form. The courts then interpret the law based solely on the words enacted by Parliament and determine whether state actors have acted lawfully in executing or administering that law. In interpreting the law, the courts employ traditional canons of construction, some of which require strict or narrow readings to maximize individual liberty or common law rights. Ultimately, the independence of the courts ensures that administrative action stays within the confines of the jurisdiction conferred by Parliament.
Naturally, much can still go wrong under such a system. However, I do not read Dicey to be necessarily suggesting that no law passed by Parliament could ever endanger the rule of law or that the rule of law would not be further enhanced by a constitutional statute. His basic point, it seems to me, is entirely sound. The rule of law, first and foremost, requires that all state action be authorized by a legal rule, meaning an Act of Parliament, and it is the role of the courts to enforce this standard and, in doing so, to protect the principle of parliamentary sovereignty. Absent the courts, it could be argued that Parliament could retain its sovereignty simply by reining in overreaching administrators through supplementary legislation. In practice, however, things are very unlikely to play out in this fashion and Parliament is ill-equipped to be crafting these types of individual remedies. The courts, on the other hand, are institutionally well-suited to assess the legality of administrative action in particular cases. Thus while an independent judiciary may not be necessary to uphold parliamentary sovereignty in theory, it is very much an essential ingredient in practice.
Judicial Review in Canada
Dicey’s argument has interesting implications for the law of judicial review in Canada, and particularly for so-called privative clauses that purport to oust or limit the scope of judicial review. It is here that the principles of parliamentary sovereignty and the rule of law genuinely appear to conflict at first glance. The argument goes that if Parliament is supreme then it surely must be empowered to oust the jurisdiction of the courts, but this would run contrary to the rule of law principle that undergirds Canada’s constitutional structure. Under Dicey’s conception, however, no such conflict arises. Parliamentary sovereignty not only co-exists alongside the common law courts, it relies upon the courts. As such, were Parliament to pass a law ousting the court’s historic jurisdiction to review administrative action, it would, in effect, be undermining its own sovereignty.
In the United Kingdom, the principle of parliamentary sovereignty can lead us into a bit of an omnipotence paradox. Just as philosophers have been debating for centuries whether God can make a rock he cannot lift, so too is it unclear whether a sovereign Parliament could pass a law annulling its own sovereignty, and perhaps its very existence. In the Canadian context, however, we need not concern ourselves with such dilemmas as we have the benefit of the Constitution Act, 1867, which entrenches Parliament’s existence and thus its sovereignty.
Section 17 of the Constitution Act, 1867 states “There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.” Taking Dicey’s text as a historical guide, the original meaning of Parliament in the Canadian context would be something akin to: The sovereign, representative and exclusive federal lawmaking body, whose enactments are subject only to the provisions of the Constitution itself. This meaning is consistent with sections 91 and 92 of the Act, which state that Parliament and the provincial legislatures have the “exclusive” authority to make laws in their respect spheres. The qualification upon parliamentary sovereignty is a Canadian nuance to be sure, but it is not fundamentally dissimilar from the British conception of parliamentary sovereignty since the Constitution is itself, to quote LaForest J. in the Provincial Judges Reference, a “super-legislative source” (see para 314). As I have previously argued, Canada’s system is one of both legislative and constitutional supremacy. The Constitution is the supreme law of the land, but it is itself a legislative enactment that can only be amended by a super-legislative majority.
The entrenchment of Parliament in s.17 is mirrored by the “Judicature” Part of the Act and particularly by the constitutionalization of superior courts. As with “Parliament” the Constitution Act 1867 does not define the term “court.” Based on the historic judicial function in Britain (and in Canada following Confederation) that Dicey outlines, I would propose a definition along the following lines: An independent and impartial tribunal whose functions are to decide cases that come before it, determine the legality of state action, and, by virtue of the foregoing, serve as the final expositor of the meaning of the law.
The necessary implication of constitutionalizing Parliament and the courts is that no law passed by a simple majority can infringe either upon the sovereignty of the former or the reviewing jurisdiction of the latter. Thus, returning to the issue of privative clauses, any statutory provision purporting to oust judicial review is doubly unconstitutional. It undermines the sovereignty and exclusive lawmaking authority of Parliament by taking away the court’s supervisory jurisdiction, while simultaneously divesting courts of one of their essential functions: judicial review.
This argument should not be taken to mean that any limitation upon the scope of judicial review is unconstitutional. A prescribed standard of reasonableness that is interpreted in accordance with the principles laid down in Vavilov would, in my view, not offend the Constitution for the basic reason that Vavilovian reasonableness review is still in essence a standard of legality. So long as the courts are not precluded from assessing the lawfulness of administrative decisions, Parliament and the legislatures are free to prescribe different standards of review. It is also questionable whether the standards of correctness and reasonableness are even helpful. A court reviewing the term “public interest” should afford the administrator some deference even on a correctness standard, while a court reviewing the term “owner” should rigorously review the administrative decision even on a reasonableness standard. In both instances, the true inquiry is into whether the administrator acted lawfully, meaning in accordance with legislative enactments.
In sum, we need not balance a crass conception of legislative supremacy against a vague conception of the rule of law. We need not look to unwritten principles to determine whether a privative clause is constitutional. We need only look at the structure and text of the Constitution itself, relying upon unwritten principles only to the extent that they inform textual meaning – in this case, the meaning of “Parliament” and “courts”.
We sometimes hear the argument that privative clauses should be enforced subject to constitutional objection. There has been relatively little discussion, however, about precisely what form that objection ought to take. The Supreme Court appeared interested in exploring the issue in Crevier, but very little has been said since. My argument is that a privative clause must not offend the role of the courts to determine legality and thereby protect parliamentary sovereignty. Some may call this Diceyan, and while I do not eschew the label, I would simply say that my position is first and foremost constitutionalist. Dicey’s text is far more descriptive than it is normative as he was concerned primarily with articulating the principles underlying the British Constitution. And while he admittedly got certain things wrong, his observations regarding the role of Parliament and the courts in the British Constitution are highly insightful and transferable to the Canadian context. Canada’s Constitution is “similar in principle to that of the United Kingdom,” but we have placed our historic British institutions – and thus their essential functions – beyond the reach of ordinary majorities.
Our legislatures must be able to keep apace with social and economic developments, including through the delegation of their powers to administrative bodies. But our courts must continue to serve as guardians of both the rule of law and parliamentary sovereignty by ensuring that administrative actors exercise their powers in accordance with the mandate with which the sovereign legislative branch has endowed them.