For some years, the Supreme Court of Canada has endeavoured to involve administrative decision-makers as key actors in the implementation of the Canadian Charter of Rights and Freedoms. Beginning in Doré v Barreau du Québec, the Court emphasized their expertise in implementing constitutional rights and “Charter values” in the context of the regulatory regimes they are charged with enforcing. This expertise, the Court said, generally entitles administrative tribunals to deference when they make decisions that affect the rights the Charter protects or the values that underpin these rights.
The empowerment of administrative decision-makers and their insulation from judicial supervision in the constitutional realm—often described as “administrative constitutionalism”—results from a misapprehension of fundamental constitutional principles. It elevates the fascination with administrative expertise and the pursuit of social justice above the demands of constitutionalism—properly so called—and the Rule of Law. It undermines constitutional rights and leaves them vulnerable to administrative ambition or perceived convenience.
A consideration of the Supreme Court’s latest endorsement of “administrative constitutionalism” makes this clear. A bare majority of the Court issued this endorsement—in the face of doubt and indeed overt challenge from within the Court—in companion cases upholding the denials of accreditation to the proposed law school of a fundamentalist Christian university by the law societies of British Columbia and Ontario (together, “the Trinity Western Cases”). The Trinity Western Cases cast a harsh, unforgiving light on administrative decision-making and judicial deference to it, illuminating their dark side, typically ignored in scholarly defences of “administrative constitutionalism”. These defences emphasize the ability of administrative decision-makers to do good, as their authors see it: to provide a “response to pregnancy discrimination”, or “champion equality rights during the 1980s”. But such cases are not the whole story of “administrative constitutionalism”.
I do not deny that administrative decision-makers will sometimes make good decisions on constitutional issues, although what counts as a good decision depends on one’s theory of constitutional interpretation, construction, and decision-making. Nor do I make a general attack on judicial deference to administrative interpretations of statutes (as opposed to constitutional rights), although I do not defend this practice either. Still less do I undertake a general critique of the state of administrative law doctrine in Canada, let alone of the legality or morality of administrative law. I also put to one side the issue of whether, in the Trinity Western Cases as in so many others, the Supreme Court ignored its own teachings and engaged in disguised correctness review instead of genuinely deferring to administrative decision-makers. Finally, although I take issue with the Supreme Court’s approach to reviewing administrative decisions compromising religious liberty, it would be beyond the ambit of this article to address the substance of the Court’s pronouncements on the scope of this right, which are no less pernicious.
In Part II, I describe “administrative constitutionalism”, reviewing, first, the arguments that have been made in its defence by scholars in the United States and in Canada, and then the Supreme Court’s engagement with it prior to the Trinity Western Cases. In Part III, I briefly introduce the Trinity Western Cases themselves. In Part IV, I show that the Trinity Western Cases illustrate the failure of “administrative constitutionalism” to live up to the main arguments made by its supporters. I show, moreover, that this failure is not accidental, but consistent with significant trends in Canadian administrative law. In Part V, I review the implications of the Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov for the future of “administrative constitutionalism” in Canada. I argue that Vavilov undermines the theoretical foundations of “administrative constitutionalism” or, at a minimum, will change the way it is implemented—but it is uncertain whether the courts will proceed in the directions Vavilov seems to indicate. In Part VI, I argue that they ought to do so, because, in addition to not delivering on the promises made on its behalf, “administrative constitutionalism” also fails to live up to the requirements of the (procedural) Rule of Law. It should be abandoned once and for all.
II. “Administrative Constitutionalism”
The administrative state exercises vast coercive authority over individuals and organizations. So-called “administrative tribunals”—a capacious term that includes ministers, officials in government departments, and various more or less independent bodies exercising statutory powers—decide whether a person will be able to enter or remain in Canada; exercise a profession; be released from prison or, if detained, in what conditions. And this is only a minute sample of the administrative state’s powers. It is arguable that both civil and criminal law influence most people’s lives rather less than legislation administered by bureaucratic institutions.
In a constitutional system where it is accepted that the power of government is not unlimited and can only be exercised subject to restraints of both form and substance, the administrative state will necessarily encounter these restraints, and perhaps find them standing in its way, as it goes about the routine exercise of its tasks. Such encounters will be all the more frequent and the degree of tension that they will generate, higher, if administrative decision-makers expand their regulatory endeavours so that these reach previously unthought-of areas or take unanticipated forms. But what is the role of the administrative state vis-à-vis the constitutional fetters to which it, like all state authority, is in principle subject?
The principle of constitutionalism—one of the underlying principles of Canada’s constitution, which “are … invested with a powerful normative force, and are binding upon both courts and governments”—suggests a straightforward answer. Administrative decision-makers ought simply to apply the relevant constitutional rules and doctrines, subject always to strict judicial supervision. After all, constitutionalism “requires that all government action comply with the Constitution. … The Constitution binds all governments, both federal and provincial, including the executive branch … They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution”. And, as the Supreme Court long ago explained, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the constitution”. Any arrangement whereby constitutional compliance is left to the executive’s discretion “would be entirely inconsistent” with this duty.
There is, however, an alternative view, according to which the administrative state’s role is not limited to following constitutional rules as interpreted by the judiciary, subject to correction by the courts. This view, “administrative constitutionalism”, seeks to make the administrative state into an entity with a will of its own in matters constitutional. Gillian Metzger defines “administrative constitutionalism” as encompassing not only “application of established constitutional requirements by administrative agencies”, but also “the elaboration of new constitutional understandings by administrative actors”. Similarly, for Bertrall Ross, “administrative constitutionalism” consists of “constitutional value judgments, made [by administrative decision-makers] in the process of interpreting statutes”. In Canada, the phrase “administrative constitutionalism” does not seem to have been used as much as in the United States. However, the idea that administrative “tribunals have the opportunity to imbue their decisions regarding the exercise of administrative discretion with Charter values and engage in a more active form of constitutional interpretation” is equally present. Indeed, as I shall shortly explain, the Supreme Court of Canada has given it its imprimatur, unlike its American counterpart.
“Administrative constitutionalism” is not simply the idea that administrative decision-makers may engage with constitutional rules or values when this is necessary for them to implement their statutory mandates. Crucially, it insists that this engagement must to some (uncertain) extent be insulated from judicial supervision. It is, Professor Sossin (as he then was) and Mr. Friedman say, the role of each administrative decision-maker “to determine which Charter values will be relevant to its mandate, and how to balance those values against its policy mandate”. The courts, in other words, should defer to constitutional determinations made by the administrative state, at least so long as these determinations possess some desirable attributes. In short, the judiciary’s role in relation to administrative “elaboration of new constitutional understandings” is rather more limited under “administrative constitutionalism” than under constitutionalism tout court.
Supporters of “administrative constitutionalism” advance a number of reasons for insisting that the administrative state should be actively involved in the elaboration of constitutional meaning and that the courts ought to defer to its constitutional views. These include, in particular, the administrative state’s supposed expertise, its alleged democratic qualities, and its purported ability to give fuller effect to substantive constitutional commitments. Moreover, a recurring theme in arguments in support of “administrative constitutionalism” is the uncertainty of constitutional meaning, which it is said that no individual institution is in an especially good position to resolve—or at least not the judiciary.
Expertise is, of course, an oft-cited reason for judicial deference to the administrative state, not only on constitutional questions. Supporters of “administrative constitutionalism” embrace it. They argue that administrative decision-makers have special insight into the application of statutory regimes that may be subject to constitutional constraints, the significance of particular constitutional values, the constitutional relevance of facts within their area of special knowledge, or some combination of these. Thus Professor Metzger insists that administrative decision-makers “are likely to be better at integrating constitutional concerns with the least disruption to these schemes and regulatory priorities” and “have a better grasp of the effect of certain actions, and thus of their constitutional significance, than courts do—and greater ability to investigate and assess the factual bases that underlie constitutional claims”. Similarly, Professor Lewans insists that “we should reject” and “debunk” the view, which he regards as a “gross generalization”, “that human rights agencies have no expertise insofar as interpretive questions regarding human rights are concerned”. The decision-making processes of the administrative state may also be said to emphasize the role of expertise and to focus attention on evidence, insofar as it involves public input and reasoned administrative response to it.
In comparison with the traditional enforcement of constitutional rules by the judiciary, “administrative constitutionalism” is also said to be more democratic and effective at spurring a conversation between the public, its representatives, the administrative state, and the courts. “Administrative constitutionalism” is valuable for “the opportunities it provides for political and public engagement with constitutional meaning”, writes Professor Metzger. Professor Lewans argues in favour of “conceiving legislatures, courts, and administrative agencies as partners in the ongoing project of interpreting and implementing constitutional values that enjoy widespread public support”. Professor Ross adds that “[o]bserving distinct court and [administrative] applications of constitutional principles allows the People to assess how effective the different applications are in advancing the constitutional principle” and eventually to “mobilize for the general adoption” of the application they deem most beneficial. Professor Ross also points out that administrative decision-makers “have a stronger link to the political branches” than do the courts. That said, Professor Ross goes on to argue that the influence of both the political branches and the public on the administrative state is limited by the latter’s size, the insulation of the career civil servants from political influence, and the obscurity of administrative decision-making to the public. Meanwhile, for Professor Sossin and Mr. Friedman, “administrative constitutionalism” even obviates the counter-majoritarian difficulty: “the dilemmas accompanying the power of unelected judges to further policy aims and constrain democratic action through judicial review does [sic] not apply in the context of administrative justice”, because the administrative state uses the constitution not to “negate or ‘trump’ legislative choices, but … to inform, refine, focus and interpret those choices”.
Finally, “administrative constitutionalism” is said to foster greater respect for constitutional rights and spur faster progress towards substantive justice than judicial interventionism would. At a minimum, in Professor Metzger’s words, “in an administrative world administrative agencies must become a locus for independent constitutional enforcement to do justice to the principle of constitutionally constrained government”. This is especially the case when administrative decision-makers “view [constitutional] constraints as advancing important policy goals”. For his part, Professor Ross argues that “administrative constitutionalism” is necessary to ensure that the constitution can adapt to a changing world and to the development of constitutional values, because administrative decision-makers “are able to update constitutional applications more speedily than courts, and they are more connected to public sentiment and evolving societal settings”. In the course of such updating, they can engage in “robust constitutional experimentation”, including by “advanc[ing] constitutional applications that diverge from those” put forward by the judiciary. Professor Lewans is even more confident “that administrative officials are capable of interpreting constitutional values in a rationally defensible manner that reveals their moral purpose within a dynamic social context”, and faults the Supreme Court of Canada for adopting “heavy-handed approaches to judicial review” that rejected administrative constitutionalism.
These arguments are made against the background of a belief in the substantial indeterminacy, or at least underdeterminacy, of constitutional texts, and in the insufficiency of judicial methods for ascertaining these texts’ meaning. According to Professor Metzger, “administrative constitutionalism” “rejects the notion that the Constitution has hard-and-fast edges, such that what is constitutionally required is discernible, determinate, and unchanging. … Not only does the meaning of the Constitution evolve, but so does the scope of what is viewed as constitutional.” Commending “administrative constitutionalism” as a means of escaping the strictures of stare decisis, Professor Ross similarly insists that “[t]here is nothing in the vague provisions of the Constitution or in its many principles that requires a particular constitutional application”.
This is even more the case in Canada, where the constitutional constraints applicable to the administrative state are said to take the form of “values” rather than textually-defined rights. Professor Sossin and Mr. Friedman—who, to be clear, vigorously defend the shift from rights to values—caution that “it is premature to attempt to map the entire terrain of Charter values in the context of administrative justice”, which suggests that neither the administrative decision-makers nor those subject to their decisions can yet know what constraints there may limit the exercise of this power. Indeed, they consider themselves unable to offer more than “a somewhat subjective account of an ill-defined category”.
But, whether they focus on rights or values, defenders of “administrative constitutionalism” take the position that constitutional requirements in a given context and at a given point in time are a matter of discretion, moral reasoning, or even policy judgment. Courts may lay no particular claim to having their view of these matters prevail. They have no “unique access to transcendental truths about fundamental legal values”, and should therefore defer to administrative decision-makers. Only in this way, says Professor Lewans, can “legislatures, courts, and administrative agencies … play supporting roles in a more complex web of public justification by providing different fora for intelligent, contextually sensitive public discourse and deliberation regarding the content and practical implications of those values”.
The supporters of “administrative constitutionalism” often acknowledge that its legitimacy or effectiveness can be called into question. Professor Metzger recognizes that “administrative constitutionalism” presents “real” “accountability challenges” and sometimes suffers from a “lack of transparency”, also acknowledged—albeit as a virtue rather than a vice of “administrative constitutionalism—by Professor Ross. Indeed, Professor Metzger notes that”[a]dministrative constitutionalism may well flourish best in the shade" because “political or judicial veto of administrative efforts at constitutional development” might ensue if these efforts are made transparently. She also observes that “[a]dministrative officials are not selected for their competency with constitutional doctrine or their awareness of constitutional principle” and, instead, “are often drawn to working at federal agencies because of a shared commitment to their underlying missions”, which they “might be thought particularly likely to privilege … over constitutional concerns”. She recognizes, too, that administrative decision-makers’ engagement with the public and with political stakeholders could, instead of democratizing “administrative constitutionalism”, “simply advance the policy priorities of political supervisors, the interests of well-connected groups, or their own parochial concerns”. Indeed, Professor Ross goes so far as to argue that “[t]o the extent that [administrative] elaborations of constitutional meaning are responsive to [majoritarianism and special interest capture], judicial supremacists are properly suspicious and courts should resist administrative constitutionalism”. Ultimately, however, they suggest that these risks are either less serious than might be thought, or simply outweighed by the advantages of “administrative constitutionalism”.
And, academic misgivings notwithstanding, “administrative constitutionalism” is ostensibly the law of the land in Canada. After initially rejecting the possibility, the Supreme Court held that administrative tribunals can consider constitutional issues, including the conformity of legislation to the Charter. It also concluded that administrative tribunals have jurisdiction to grant Charter-based remedies. These decisions paved the way for “administrative constitutionalism” insofar as they involved administrative decision-makers in the implementation of the Charter, but they did not yet seek to insulate these decision-makers’ constitutional determinations from judicial supervision. On the contrary, in Martin, Justice Gonthier, writing for the unanimous court, stressed that “administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard [so that] [a]n error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court”. This, he suggested, was one reason why tribunals could safely be allowed to consider constitutional issues.
The Supreme Court made the final and crucial step into “administrative constitutionalism” in Doré. In unanimous reasons by Justice Abella, the Court expressed the concern that applying the usual Charter analysis framework based on R v Oakes, under which the state is required to justify both the ends and the means of any measure that prima facie limits Charter rights, to the review of administrative decisions creates a “risk of undermining a more robust conception of administrative law”. The Court’s preferred solution involved “[i]ntegrating Charter values into the administrative approach, and recognizing the expertise of [administrative] decision-makers”. This expertise extends to assessing “the competing considerations at play in weighing Charter values”, including the details of the regulatory schemes that tribunals implement and the facts of the specific cases they are deciding. While administrative decision-makers “must remain conscious of the fundamental importance of Charter values in the analysis”, they deserve a measure of leeway in addressing these values, and their choices should not be scrutinized too closely by the courts.
It follows that administrative decisions engaged in “weighing Charter values” are entitled to judicial deference. Courts are to review them on a reasonableness rather than a correctness standard. They must not substitute their views for those of administrative decision-makers merely because they would have come to different conclusions. Justice Abella’s reasons do not even mention Martin, with its endorsement of correctness review.
The Court updated Doré’s teachings in Loyola High School v Quebec (Attorney General). On the one hand, it expanded the scope of Doré’s application from “the context of adjudicated administrative decisions” to that of the review of any “discretionary administrative decision”. On the other, Justice Abella—writing this time for a majority—was at pains to emphasize that Doré review required “a robust proportionality analysis consistent with administrative law principles”. While reasonableness remained the applicable standard of review, to be regarded as reasonable, an administrative decision “must accord with the fundamental values protected by the Charter”, by “giv[ing] effect, as fully as possible to the Charter protections at stake given the particular statutory mandate”. Justice Abella cautioned, however, that “there may be more than one proportionate outcome that protects Charter values as fully as possible”. As in Doré, she emphasized the importance of respecting the contextual expertise that administrative decision-makers bring to their discretionary decisions.
Following Loyola, the Supreme Court seemed to relax its embrace of “administrative constitutionalism”. The Court made an exception to the principle of deference to administrative decision-makers on Charter issues in Mouvement laïque québécois v Saguenay (City) (decided less than a month after Loyola). It ignored Doré and Loyola in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) and Association of Justice Counsel v Canada (Attorney General). I, for one, wondered whether, “[w]ithout telling anyone, the Supreme Court might have killed off, or at least curtailed, Doré”, although Paul Daly, wisely, did not think that anything interesting had happened. And indeed “administrative constitutionalism” returned to the Supreme Court’s jurisprudence with the Trinity Western Cases. The majority in Trinity Western (BC) insisted that “Doré and Loyola are binding precedents of this Court” as if the same judges who signed this proclamation had not joined or indeed authored opinions directly contrary to it.
III. The Trinity Western Cases
The Trinity Western University (“Trinity Western”) is a private Christian institution. It receives no public funding. Attending it is expensive. It is also onerous in other ways. Notably, students were expected to accept and abide by a “Community Covenant Agreement” whereby they undertake to “voluntarily abstain from”, among many other things, “gossip, slander, vulgar/obscene language”, “the use of … pornography”, “drunkenness”, and “the use or possession of alcohol on campus, or at any [Trinity Western] sponsored event, and the use of tobacco on campus or at any [Trinity Western] sponsored event”. Another item on this lengthy list is “sexual intimacy that violates the sacredness of marriage between a man and a woman”. The “Community Covenant Agreement” sources many, although not all, of the restrictions it sets out in the Bible; this includes the rule on sexuality.
When Trinity Western sought accreditation for a law school, the restriction on “sexual intimacy” outside a heterosexual marriage became an obstacle. Because this restriction disproportionately affects prospective students (as well as faculty members and staff, also required to accept the “Community Covenant Agreement”) who are not heterosexual, Law Societies in British Columbia, Ontario, and Nova Scotia refused to accredit Trinity Western, considering it to be exclusionary and discriminatory. In British Columbia, the decision followed a referendum of the Law Society’s members. Trinity Western challenged these refusals both on administrative law grounds and as violations of its constitutional rights, notably the freedom of religion. The Trinity Western Cases disposed of the challenges to the British Columbia and Ontario decisions.
The Trinity Western Cases presented a number of distinct issues. First, there was the question of whether the Law Societies were even entitled to consider the “Covenant” in deciding whether to accredit Trinity Western. In Trinity Western (BC), there was, in addition, a question as to whether a referendum of the Law Society’s members was an appropriate way of reaching a decision on accreditation. Then, there were the questions of the framework that ought to be used to review of the compliance of administrative decisions with the Charter, and, finally, the substantive questions of whether the Law Societies’ decisions infringed the Charter and whether this infringement was justified.
A five-judge majority, in joint reasons, as well as Chief Justice McLachlin and Justice Rowe, both of whom separately concurred, found that the Law Societies were within their powers to take the “Community Covenant” into account when deciding whether to accredit Trinity Western’s proposed law school. In a co-authored opinion, Justices Côté and Brown dissented. The majority also found that the referendum was a permissible procedure for making that decision. The dissenters disagreed, as did Justice Rowe, although his comment on this point was obiter. As for the review framework, the majority purported to apply the one set out in Doré and (modified in) Loyola. The Chief Justice and Justice Rowe, however, proposed substantial modifications to this framework, while the dissenters called for it to be reconsidered. On the substantive constitutional issues, all judges except for Justice Rowe found that Trinity Western’s freedom of religion had been infringed, but the majority and the Chief Justice held that the infringement was justified. The dissenters disagreed.
IV. “Administrative Constitutionalism” in the Trinity Western Cases
After seemingly turning away from “administrative constitutionalism” in a number of decisions that followed Doré and Loyola, the Supreme Court returned to this framework in the Trinity Western Cases. Because these cases raised not only the substantive issue of balancing the protection of the freedom of religion with governmental objectives pursued by an administrative decision-maker but also a number of administrative law concerns, they offer an unusually good opportunity to assess “administrative constitutionalism”. A close examination of the Trinity Western Cases allows us to ascertain whether the promise of administrative constitutionalism to enrich constitutional law with the insights of context-sensitive experts is being realized.
It is not. The decisions upheld in the Trinity Western Cases were not based on administrative expertise. They countenanced fundamentally flawed decision-making processes. Far from expanding constitutional rights, they ignored those that were actually implicated in the name of advancing those that were not. What they did expand, meanwhile, is the power of the administrative state to act, even in the absence of proper legal authority, under cover of judicial deference.
The Trinity Western Cases suggest that, contrary to the claims of the defenders of “administrative constitutionalism”, the administrative state will often fail to bring any particular expertise to bear on its decisions that affect constitutional rights. The decisions under review in the cases were, ostensibly at least, both made by the benchers (that is, members of the governing boards) of the respective law societies. Yet there is no reason to believe that the benchers are in any real sense experts in constitutional or anti-discrimination law, or the application of such law to legal education.
The benchers are, in both cases, predominantly elected from among the membership of the law societies, while some are non-lawyers appointed by the provincial governments, and a few are benchers ex officio. There is no requirement of legal, let alone specifically constitutional, expertise; indeed, there no requirement that a would-bencher have been a lawyer for any particular amount of time. Nor are there any requirements for actual expertise on the part of non-lawyer benchers; in fact, they need meet no qualifications at all. And there is no reason to believe that the benchers are elected or appointed on the basis of their constitutional acumen rather than factors such as standing in the profession and name recognition, or, more optimistically, their views on the appropriate regulation of the profession and the governance of the law society itself.
The majority in the Trinity Western Cases paid no heed to such details. Instead, it relied on past decisions, especially Green v Law Society of Manitoba, for the proposition that “where legislatures delegate regulation of the legal profession to a law society, the law society’s interpretation of the public interest is owed deference”, based among other reasons on “the law society’s institutional expertise”. Yet the issue in Green was the validity of a law society regulation requiring lawyers to undergo continuing professional development. Charter rights or “values” were not involved. It may be that elected and appointed benchers somehow possess or develop an expertise in the requirements of professional practice in the face of changing law, technology, and ethical standards. But that was not what the Trinity Western Cases were about.
In reality, of course, the benchers of the Law Society of British Columbia acted under the dictation of the Society’s membership, following a referendum. The notion that the Society’s thousands of members are, individually or collectively, experts on anything in particular could only be accepted by diluting the notion of expertise into utter meaninglessness. The majority in Trinity Western (BC) did not genuinely engage with this point. It was content to state that since the benchers are, for the most part, elected representatives of the Society’s membership, they “may decide that certain decisions they take would benefit from the guidance or support of the membership as a whole. This is no less the case where a decision implicates the Charter”. Yet if the (normally expert) benchers may require “guidance” from the members of the Society on a particular issue, is this not a sign that their expertise, at least on that issue, is non-existent?
Nonetheless, the Trinity Western Cases are consistent with others decided by the Supreme Court where expertise was imputed to an administrative decision-maker in the face of compelling reasons to believe that it had none on the specific issue under review. A majority of the Court once proclaimed that, while “[e]xpertise may … arise where legislation requires that members of a given tribunal possess certain qualifications”, or from their individual experience, “as with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution”. That majority further asserted that expertise, real or imputed, attached to all of a tribunal’s decisions, and not only those on which the tribunal’s members may be more expert than on others. One might, of course, wonder, whether the membership of a provincial law society should, even on this account, qualify as “an institution” in which expertise might inhere, but Trinity Western (BC) suggests that this is indeed so—or that there were five votes for this proposition when the case was decided.
The Trinity Western Cases show, then, that while the defenders of “administrative constitutionalism” expect it to enrich the law with expert insights into the meaning and application of constitutional rights in specific contexts, the reality will often be quite different. Not all the decision-makers who, collectively, form the administrative state are experts. More than a few possess other qualifications, if they possess any. At best, their decisions will be shaped by a consideration of the issues that, while serious, should have no more authority than that of the courts. At worst, their decision-making processes do not live up to the standards the judiciary upholds. This is the issue to which I now turn.
A second argument for “administrative constitutionalism, as we have seen, is that the engagement of the administrative state with constitutional issues involves the public in the elaboration of constitutional meaning in a way that adjudication cannot and is not intended to. Yet here too, the Trinity Western Cases ought to give supporters of"administrative constitutionalism” pause. They show that the administrative state is not the public, and that its interests and preferences may be at odds with those of the public. They show, furthermore, that the processes followed by the administrative state are not necessarily conducive to public engagement with its decision-making and with the constitutional issues that it implicates.
Of course, it is tempting to suppose that decision-making by the members of a law society or by benchers whom they have elected is democratic, or at any rate more democratic than decision-making by unelected judges. Yet it is important to clarify what we mean by democracy. Is any electoral process democratic simply by virtue of ballots being cast? Without wanting to endorse an especially thick conception of democracy, I would suggest that, at a minimum, we need to ask ourselves who is given a vote in the election or referendum in question. An electoral process that excludes those affected by the decisions it serves to generate can only have a tenuous claim to democratic legitimacy.
The “democracy” embodied by law societies suffers from just this flaw. While their governance involves voting at elections or referenda, the electorates that are given a say consist only of lawyers—that is, only one narrowly self-interested constituency among the many whom the governance of the legal profession in each province affects. Others—clients, law students (current or future), judges, and the general public—are given no say. A few lay benchers appointed by governments participate in the governance of law societies, but their own democratic credentials are questionable at best, and they are only a small minority of the total number of benchers. And, of course, the referendum procedure such as the one used in British Columbia sidelines them entirely.
Being given no meaningful say in the decisions made by law societies, the public might at least expect these decisions to be presented in a way that allows for meaningful after-the-fact engagement. But that expectation too would have been disappointed in the decisions that give rise to the Trinity Western Cases. Reasons for decision were not given, and there was nothing, especially in the case of British Columbia, for any interested member of the public to engage with. In Trinity Western (Ontario), the majority pointed to “[t]he speeches the … Benchers made” when debating whether to accredit Trinity Western’s proposed law school as evidence that “that the Benchers were alive to the question of the balance to be struck between freedom of religion and their statutory duties”. Presumably, public engagement with the decision to deny Trinity Western accreditation would have involved parsing these speeches. Meanwhile, in Trinity Western (BC), the operative decision was the one made by the lawyers who took part in a referendum. While the majority of the Supreme Court was content to say that, as these lawyers’ elected representatives, the benchers were entitled to call on “the guidance or support” of their constituents, this process cannot assist anyone outside that membership in engaging with the constitutional principles that were at stake. For that matter, even a member of the Law Society of British Columbia who wanted to know why other members voted the way they did could only have guessed.
In this too, the Trinity Western Cases were not unique, but rather representative of trends that were already well present in Canadian administrative law. As the majority pointed out, the Supreme Court had previously suggested that “[r]easonableness review requires ‘a respectful attention to the reasons offered or which could be offered in support of a decision’”. The reasons actually given by the administrative decision-maker could be supplemented by the reviewing court, which would be required to defer to them—a process I once described as the court playing chess with itself and arranging to lose. Yet whatever one might think of this practice of judicial supplementation of the reasons given by administrative decision-makers by those which (allegedly) could have been but were not as a matter purely of administrative law, it defeats the claims of the supporters of “administrative constitutionalism”. “Administrative constitutionalism” can, on their view, do nothing for democracy or public engagement with the constitution if it devolves into judicial deference to reasons not given by the administrative decision-makers, but made up by the judges themselves.
Can “administrative constitutionalism”, nevertheless, live up to the third claim made on its behalf—that it can help provide fuller protection for individual rights than enforcement of the constitution by courts alone? As we have seen, supporters of “administrative constitutionalism” insist that, given the pervasive in- or underdeterminacy or unceasing evolution of constitutional meaning, administrative engagement with rights can protect rights in ways the courts have not yet endorsed and may never come to endorse (except perhaps under pressure from administrative decision-makers). And, to be sure, they are able to point to instances that support their claims.
But the Trinity Western Cases show that “administrative constitutionalism” is not always conducive to the protection of fundamental rights. Rather, it serves to advance the priorities of the administrative state. These priorities are complex: as Jacob Gersen explains, “bureaucrats might maximize budgets for their agencies, the scope of their own power, leisure, the implementation of policy closest to their own preferences, stable policy likely to be upheld by courts, or policy advantaging influential private interests”. If, or to the extent that, the administrative state is interested in protecting rights, “administrative constitutionalism” is rights-protective. If, however, the priorities of the administrative state are at odds with the protection of a given right, “administrative constitutionalism” will serve to undo this protection. More specifically, the Trinity Western Cases show that, in the event of a conflict, real or simply perceived, between two rights or “Charter values”, “administrative constitutionalism” ensures that the right favoured by the administrative state will prevail, at the expense of the other.
As the administrative decision-makers saw it, accreditation of Trinity Western’s proposed law school compromised the equality rights of its prospective gay and lesbian students. In their view, upholding these equality rights was an important part of their statutory mandate. The majority of the Supreme Court deferred to this interpretation. And it further deferred (or purported to defer, since, as we have seen, it was actually “deferring” to reasons it invented) to the benchers’ conclusion that, “in light of the applicable statutory objectives” denying the accreditation sought by Trinity Western was a “proportionate” limitation of its religious liberty.
As noted above, in this paper, I am not concerned with the correctness of the latter conclusion, considered by itself. However, the reasoning chain preceding it is worth examining. I will do so on the basis that, at the very least, the law societies saw Trinity Western’s religious freedom claim (whose validity was recognized by all of the judges of the Supreme Court except Justice Rowe) as an inconvenient obstacle to their pursuit of their chosen regulatory objectives. As I will argue, they were not entitled to take this view. Thus, it does not matter whether, in different circumstances, a claim like Trinity Western’s could properly have been made to yield to the demands of equality. The law societies had no right to press these demands.
They were able to do so nonetheless because judicial deference to administrative decision-makers’ interpretations of their statutory mandates allows them to expand or contract these mandates. In theory, this expansion or contraction must take place “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. However, post-Dunsmuir cases—at least until the recent decision in Vavilov, whose impact I explore in more detail below—allowed the administrative state to stretch this “range” virtually at will. In a decision delivered shortly before the Trinity Western Cases, a majority of the Supreme Court, under the Chief Justice’s pen, spoke of a “broad and unrestricted delegation of power”. Whatever Dunsmuir, let alone earlier decisions emphasizing the constrained nature of administrative power, may have suggested, the majority was unwilling to police even the outer boundaries of the “range” of power granted to the administrative state.
In the Trinity Western Cases, the law societies took advantage of this flexibility to extend their mandate to what the majority in Trinity Western (BC) described as the “consider[ation]” of “fundamental shared values” drawn from constitutional and human rights law, and specifically the “value” of equality. As the majority put it, echoing West Fraser, their mandate “to uphold and protect the public interest in the administration of justice … is stated in the broadest possible terms”. Their choice of means to carry out this mandate “is entitled to deference”. For the majority, “it should be beyond dispute that administrative bodies”, such as law societies, “may consider fundamental shared values, such as equality, when making decisions within their sphere of authority — and may look to instruments such as the Charter or human rights legislation as sources of these values, even when not directly applying these instruments”. The lack of specific statutory authorization was thus irrelevant, and the dissent’s cogent objection that an administrative decision-maker’s “enabling statute, and not ‘shared values’, … delimits [its] sphere of authority” proved unavailing.
In the name of the value of equality, Trinity Western’s accreditation was denied. Indeed, this was the only reason for the denial. The law societies did not so much “consider” this “value”, then, as enforced it as a duty incumbent on Trinity Western. They did so despite the fact that this duty is nowhere to be found in the applicable law. There was no dispute that Trinity Western is exempt from provincial anti-discrimination legislation, and that the Charter does not apply to it. The administrative state—here, the law societies—subjected Trinity Western to obligations which neither the framers of the constitution nor the legislature of its province saw fit to apply to it. The majority made these democratic choices otiose. Despite the Charter’s clear admonition that “[n]othing in [it] extends the legislative powers of any body or authority”, it allowed the administrative state to invoke “Charter values” to create ad hoc human rights codes of their own to bind those subject to its regulatory authority. In other words, under the Supreme Court’s “administrative constitutionalism” jurisprudence, the pursuit of a regulatory objective not found in applicable legislation could be balanced against—and made to outweigh—a claim under one of the Charter’s “fundamental freedoms” provisions.
At the very least, then, the protection of rights under “administrative constitutionalism” may be different, not only from constitutionalism as administered by the courts, but from that which was agreed upon by framers of the constitution and law-makers. But the Trinity Western Cases show that it is likely that this difference will have a specific flavour, favouring an expansive definition of equality rights at the expense of liberty, especially freedom of religion or, in other cases, of expression. This is due to both the way in which “administrative constitutionalism” is implemented by the Supreme Court and certain tendencies inherent in the administrative state.
The Supreme Court allows administrative decision-makers to blend values drawn from the Charter (and, as in the Trinity Western Cases, anti-discrimination legislation) with statutory objectives they pursue and balance against the Charter claims of those subject to their power. As Edward Cottrill has observed, this “encourages a decision-maker to draw on Charter rights and values in support of a decision to exercise the power provided by a statutory mandate”. When a decision-maker does so, “the role of the Charter in empowering the state, governing private relations, and in supporting positive entitlements, expands”, even if this is, as in the Trinity Western Cases, contrary to the Charter’s design and text. In particular, “[e]quality as a Charter right or value could provide leverage in favour of state action … Almost all legislation and regulation is remedial. Laws regulating trade, banking, health, education, policing, safety, marketing, housing, labour, social assistance, and human rights”—and, as the Trinity Western Cases show, laws regulating the professions too—
all address inequitable deprivations, reduce disparities in access to services, provide equal protection from exploitation, or lessen inequalities of bargaining power in one way or another. Equality as a Charter right that supports positive legislation, or as a Charter value that may be invoked as suits the context, is broad enough to provide a justification with a universal adaptor for many kinds of state action.
For his part, David Bernstein has described the features of the administrative state that impel it to sacrifice constitutional rights to the “value” of equality. Professor Bernstein writes in the American context and focuses on “human rights” commissions charged with administering anti-discrimination laws, but some of their traits are shared by other administrative decision-makers. This is not surprising, for the reasons identified by Mr. Cottrill. If any number of laws, even those cartelizing the legal profession at the expense of clients and aspiring lawyers alike, are conceived of as remedial and egalitarian, the decision-makers implementing these laws will share something of the mindset of their colleagues in the “human rights” bureaucracies specifically geared toward the enforcement of equality.
Four characteristics of such organizations, as identified by Professor Bernstein, have broader relevance. First, administrative decision-makers “maximize their power and budget”, as well as “political support, by expanding the scope of the laws they enforce”. Having arrogated to themselves the power to enforce the value of equality as part of their control of the legal profession, law societies can now regulate at least some aspects of legal education, and have sought to expand their regulatory ambit further still, indeed into the very minds of lawyers.
Second, Professor Bernstein notes that administrative “agencies tend to attract employees who are committed to the agency’s regulatory mission”. Needless to say, this is also true of those administrative bodies whose decision-making personnel is elected, such as law societies, although it is sometimes possible for candidates who have a different conception of the organization’s mission to prevail, as in fact happened at the Law Society of Ontario in 2019. Absent a change mechanism like a secret ballot election, it can be, as Professor Bernstein notes, very difficult for those subject to regulation in the name of equality to challenge it. The optics of such a challenge make it too reputationally risky.
Third, administrative decision-makers “do not see enforcing constitutional constraints on their authority as their job”. In the United States, this is in part because courts discourage them from doing so. The situation in Canada is different—but only in theory. Whatever the Supreme Court may say in cases like Doré, there is little reason to think that, for example, the members of the Law Society of British Columbia had the Charter’s protections of freedom of religion high on their minds when voting to deny accreditation to Trinity Western. And the idea that administrative decision-makers will value constitutional protections above their statutory missions seems even less plausible when applied to other administrative bodies, especially those whose members are not legally trained.
Fourth, and relatedly, Professor Bernstein argues that the administrative state is likely to sacrifice liberty to equality for ideological, as well as institutional, reasons. Again his focus is on commissions enforcing anti-discrimination laws, where the belief “that protecting vulnerable groups from discrimination”—rather than the enforcement of freedoms like those of religion or expression or due process rights—“should be at the heart of our legal and political system” is especially prevalent. But if such views spread to the decision-makers entrusted with implementing other types of legislation, “freedom of speech and other civil liberties” will no longer “be incidental casualties of broader regulatory goals”. They will become targets, just as freedom of religion was in the Trinity Western Cases.
In short, despite the optimism of its supporters, “administrative constitutionalism” is unlikely to be conducive to systematically more robust protection of rights. Rather, judicial deference to, on the one hand, administrative interpretations of the scope of the decision-makers’ own mandates and, on the other, to administrative balancing of rights and statutory or extra-statutory, values-based objectives is only likely to result in the expanded protection of equality rights, as understood by the administrative state. This expanded protection of equality will often come at the expense of individual liberty generally, which will be made to yield to aggressive application of egalitarian values even in the administration of statutory schemes not ostensibly concerned with them, and sometimes at the expense of disfavoured constitutional rights, such as the freedoms of religion and expression, specifically.
V. Now What? Vavilov and the Future of “Administrative Constitutionalism”
I have argued above that the Supreme Court’s endorsement and application of “administrative constitutionalism” are consistent with its broader administrative law jurisprudence, or at least with what its broader administrative law jurisprudence had been until very recently. However, late last year the Supreme Court released its decision in Vavilov, which not only revised the framework for choosing a standard of review and provided detailed guidance on the application of the deferential “reasonableness” standard, but also reconsidered the basis for judicial deference to administrative decisions. This may have significant implications for the future of “administrative constitutionalism” in Canada.
To be sure, the majority opinion in Vavilov was careful to insist that “[a]lthough the amici questioned the approach to the standard of review set out in Doré … a reconsideration of that approach is not germane to the issues in this appeal”. Vavilov indeed did not involve the Charter, and so did not strictly require the Supreme Court to reconsider Doré and its progeny. At least some of the judges who signed the ostensibly joint majority opinion may have been reluctant to do so. Nevertheless, it is not quite fair to say that these cases are “not germane” to what Vavilov decided.
This is, most obviously, because the reasoning of the Vavilov majority pulls the rug from under the feet of the key rationale for deference to administrative applications of the Charter endorsed in Doré: the administrative decision-makers’ expertise. Departing from a long series of administrative law decisions, Vavilov held that the legislative choice to assign decision-making to an administrative tribunal was the necessary and sufficient justification for deference. Meanwhile, “expertise is no longer relevant to a determination of the standard of review”, although, as I note below, it is not entirely left behind. As Mark Mancini points out, it would be inconsistent to reject expertise as a decisive factor in the selection of the standard of review in ordinary statutory cases yet retain it in those implicating the Charter.
More broadly, Mr. Mancini argues, “Vavilov and Doré appear motivated by different views of administrative law and judicial review”. According to him, Doré’s “administrative constitutionalism” reflects “functional understandings of the superior expertise of administrative bodies over constitutional matters arising in their remit … inspired by older approaches associated with the Progressive school of administrative law”. Vavilov, by contrast, blends “justificatory” and “formalist” approaches, insisting that administrative reasons must serve as “a way to not only justify a decision to affected parties, but also … to ensure that the Rule of Law, as the Court understands it, is upheld”. Doré and the Trinity Western Cases, in keeping with the philosophy of “administrative constitutionalism”, emphasized the unique insights of administrative decision-makers into the operation of both constitutional and ordinary law. Vavilov, by contrast, stresses the limits that statutory language and purpose place on administrative discretion and the importance of judicial supervision of administrative compliance with these limits.
The other reason why “administrative constitutionalism” is inconsistent with Vavilov is the latter’s reaffirmation of the principle that judicial deference to the administrative state is sometimes “precluded by the rule of law”. This is the case when constitutional questions arise:
The Constitution — both written and unwritten — dictates the limits of all state action. Legislatures and administrative decision makers are bound by the Constitution and must comply with it. A legislature cannot alter the scope of its own constitutional powers through statute. Nor can it alter the constitutional limits of executive power by delegating authority to an administrative body. … The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard.
To be sure, this assertion of the judicial role in constitutional review is only said to apply to questions of validity of statutes and regulations, and is followed by the above-mentioned disclaimer about Doré not being implicated. Yet legislatures may no more insulate administrative interpretations of the Charter from judicial review than they may empower administrative decision-makers to act unconstitutionally in the first place.
The reason, as Mr. Mancini explains, is twofold. First, “legislatures cannot meaningfully alter the depth of constitutional scrutiny” to which the courts subject legislation, and it stands to reason that they can no more alter the standard of review applied to constitutional determinations made by administrative tribunals. This would be a case of evasion—albeit partial rather than complete—of the legislatures’ “Charter responsibility by appointing a person to carry out” their policy programmes. If lighter scrutiny of administrative applications of the Charter is required or permitted, it is not because legislatures validly intend it when setting up the administrative state, but because the constitution itself directs it.
This brings me to Mr. Mancini’s second argument, which is that, on the contrary, “the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts.” And indeed a belief in the administrative state being subject to “determined, defined and consistent limits” imposed by the constitution it is not easily reconciled with deference to its own interpretation of these limits. Professor Daly, who argues that “Doré emerges strengthened from Vavilov, not weakened” questions “why the presence of a Charter right requires uniform answers to be furnished by judges in respect of decisions made in different settings by different decision-makers”. The answer is the same as it would be to the question why Charter rights must be uniformly enforced by the courts against legislatures operating in different political and social contexts, and legislating on a variety of subjects: the constitution, of which the Charter is part, is the supreme law that binds all holders of state authority, legislative and administrative alike, rather than a slogan that has no meaning except at the point of application.
Even if the Doré framework is retained, however, Vavilov is likely to influence the way in which the reasonableness review that it calls for will be performed. Four important points from Vavilov’s explanation of the reasonableness standard are bound to be relevant to Doré-type review unless, or until, it is displaced by a return to the more rigorous constitutional review Vavilov calls for.
First, the administrative decision-maker’s reasons are—when they are required to be provided—central to reasonableness review. To be sure, a reviewing court can and indeed ought to look to the record insofar as it may shed further light on the reasons given or serve to explain decisions for which reasons are not required to be provided (a proposition for which Vavilov cites, inter alia, Trinity Western (BC)). The court is not, however, to “fashion its own reasons in order to buttress the administrative decision”, bridge “a fundamental gap” or ratiocinate so as to make up for “an unreasonable chain of analysis”. It must see that the decision-maker actually considered and logically reasoned through the important issues, and not merely assume that it has done so, let alone do it in the decision-maker’s place. Only in rare cases where reasons were neither required nor discernable from the record will the court focus on the outcome alone.
Second, expertise is no longer a blanket, sometimes counterfactual, justification for judicial deference. Reviewing courts are called upon to “be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons”, which may help explain “an outcome that might be puzzling or counterintuitive on its face”. But the courts must see an actual justification to accept an administrative decision as warranted by the decision-maker’s expertise. Indeed, attentiveness to demonstrated expertise is arguably always in order—and would be even on correctness, not only reasonableness, review.
Third, Vavilov emphasizes the significance of the constraints imposed by the legal framework within which the administrative decision-maker operates. Consistently with its refusal to comment on Doré and the absence of constitutional issues in Vavilov itself, the majority judgment does not mention the constraints imposed by the constitution, but its comments on the importance of the applicable statutory framework and other legal rules, including precedent and principles of interpretation, are surely applicable, mutatis mutandis, to reasonableness review under Doré. In particular, it is worth highlighting the admonition that an administrative decision-maker “cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient”. This is said in a discussion of statutory interpretation, but must apply with as much force in constitutional matters.
Fourth and last, but not least, Vavilov indicates that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. … This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.” Other constitutional rights, including the fundamental freedoms of religion, conscience, and expression, must arguably be counted among the interests interference with which must be thoroughly justified. The Vavilov majority’s recognition—not always present in Canadian administrative law—that “[m]any administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us” is a welcome reminder of the importance of meaningful review of the way in which this power is exercised.
VI. “Administrative Constitutionalism” and the Rule of Law
The Supreme Court has abandoned a key justification that supported its endorsement of judicial deference to administrative decisions implicating the Charter. If it does not forsake deference altogether, ostensibly deferential review may well in the future be conducted quite differently from the way in which it was handled in the Trinity Western Cases. The future of “administrative constitutionalism” in Canadian law is in the balance.
How should the uncertainty about the future of “administrative constitutionalism” in Canada be resolved? In my view, the experiment with judicial deference to administrative applications of the Charter must be terminated. The Trinity Western Cases show that “administrative constitutionalism” fails on its own supporters’ terms. It does not guarantee that decisions regarding the scope and implementation of fundamental rights will be made by experts, or result from democratic and accountable procedures, or protect rights better than the courts can. Far from it. “Administrative constitutionalism” can just as easily be the means for empowering a non-expert, unaccountable bureaucracy in the pursuit of a narrow agenda that will, at most, favour egalitarianism at the expense of other rights.
Yet it is not enough to say that “administrative constitutionalism” cannot deliver on its supporters’ promises. More than that, it is simply incompatible with the principles of constitutionalism tout court and the Rule of Law. Constitutionalism, as already observed, has long been understood as requiring judicial supervision of the executive’s compliance with constitutional restraints. The executive, including the administrative state, cannot be allowed to become the judge of its own compliance with the rules that authorize and legitimize its actions. Here, I shall review the ways in which “administrative constitutionalism” conflicts with the Rule of Law, as distinct from constitutionalism.
In addition to its better-known formal and controversial but oft-asserted substantive dimensions, the Rule of Law has an important procedural one. The process by which rights can be taken away from or obligations imposed on a person must, if it is to be a genuinely legal process, follow certain requirements. When that process is adjudicative rather than legislative—that is, when it targets an identifiable person rather than a class defined by more or less abstract characteristics—it ought to be undertaken by an accessible institution, staffed by legally-trained and independent adjudicators who must, moreover, be impartial, observe the rules of natural justice, and attend and respond to the arguments and evidence presented by the parties, and yield a reasoned decision. Courts endeavour to respect these requirements, although not doubt they do not always succeed as fully as one might wish, especially with respect to accessibility.
Whatever the imperfections of the courts, however, the administrative state falls well short of the standard they set on multiple dimensions. In particular, administrative decision-makers do not enjoy the protections for independence, are not subject to the same requirements as to legal training and reason-giving, and are not meant to be impartial in the same way as judges. Perhaps this is sometimes acceptable. The Rule of Law cannot be realized to perfection. It is, moreover, one political ideal among many, and might sometimes properly give way to others. Indeed, different aspects or requirements of the Rule of Law may be in tension with one another—as, arguably, requirements of legal training and independence for adjudicators are with accessibility. (Adjudication by non-legally-trained bureaucrats is likely to be cheaper, and can therefore be more accessible, than that by actual judges.) A comprehensive examination of whether, or when, the Rule of Law’s procedural requirements can be compromised so as to allow adjudicative processes that do not meet them to be insulated from review by judicial deference to the decisions they produce would, as already noted, be beyond the scope of this article.
My argument here is narrower: whatever may be the case for decisions depriving individuals of other types of rights, the requirements of the Rule of Law apply most forcefully to those that limit their most important rights and freedoms protected by the constitution. This includes, in particular, those freedoms that the Charter itself describes as “fundamental”, including the freedoms of conscience, religion, opinion, and expression. The principle that decisions that affect individuals in especially serious ways must conform to more exacting procedural standards than those that are less significant is a well established one in Canadian administrative law. “Administrative constitutionalism” is not consistent with this principle.
One reason for this, highlighted by the Trinity Western Cases, is the possibility that reasons will not be given for a decision that limits or denies a person’s constitutional rights. As Jeremy Waldron argues, a person whose rights are being interfered with ought to have “[a] right to hear reasons from the tribunal when it reaches its decision that are responsive to the evidence and arguments presented before it”. Reason-giving forces the decision-maker not only to attend to the evidence and arguments it has heard, but also to show that its decision is guided by a rule, and further to reckon with the fact that this rule will be available and likely invoked in similar cases in the future.
As we have seen, however, Canadian administrative law has long allowed administrative decision-makers to escape this discipline in many cases. Vavilov provides only a partial corrective. While emphasizing the importance of reasons, it still calls for deference to decisions “justified” by, in effect, political speeches, or in some cases to those entirely unsupported by reasons. While it is understandable that not all decisions of the administrative state can be supported by formal reasons, this means that “administrative constitutionalism” can result in the abridgment of rights by a process that has not been subjected to the constraints that reason-giving provides.
“Administrative constitutionalism” also allows decisions about constitutional rights—that is, about rights protected by “the supreme law of Canada”—to be made by officials lacking any legal training. Professor Waldron argues that questions about a person’s legal rights ought to be determined by “[a] legally trained judicial officer” and, surely, this must be true when the rights at issue are those protected by the most important law of our legal system. More than mere legal training, we expect judges to have a certain degree of legal experience, and indeed expertise, as reflected in statutory requirements that they have been licensed to practise law for a certain number of years. Yet, as we have seen, no such requirements are imposed even on the benchers of law societies, let alone any number of other administrative decision-makers.
An even more fundamental concern is the administrative decision-makers’ lack of independence. As Professor Raz explains, “[t]he rules concerning the independence of the judiciary … are designed to guarantee that [judges] will be free from extraneous pressures and independent of all authority save that of the law. They are, therefore, essential for the preservation of the rule of law.” The Supreme Court has echoed this concern, observing that “[t]he integrity of judicial decision making depends on an adjudicative process that is untainted by outside pressures”.
Yet administrative decision-makers in Canada do not benefit of the sort of protections available to judges. In particular, they are either appointed for limited terms and subject to re-appointment or indeed removal, or elected—like the benchers whose decisions gave rise to the Trinity Western Cases—and subject to re-election. As a result, administrative decision-making lacks the integrity conferred by freedom from outside pressure and is likely to be guided by considerations unrelated to the law. As the Supreme Court has explained, “[a]dministrative tribunals … are … created precisely for the purpose of implementing government policy”, rather than to do equal justice under the law. Subservience to policy or even partisan considerations is their raison d’être. Since constitutional rights are supposed to limit the government’s ability to pursue its policy objectives, it is incompatible with the Rule of Law to put primarily policy-making institutions in control of their enforcement.
“Administrative constitutionalism” involves yet another departure from the requirements of the Rule of Law, this time not so much by administrative decision-makers as by the courts. As Philip Hamburger observes, deferential review of administrative decisions involves judges “often … adopting the interpretation or legal position of one of the parties. Such deference thus is systematic judicial bias in favor of the most powerful of parties and against other parties.” This is incompatible with the requirement of impartiality which, along with independence, is at the core of the procedural dimension of the Rule of Law.
In short, “administrative constitutionalism” not only fails on its own terms, although it does; it is also incompatible with the Rule of Law. Judicial deference to administrative interpretations and applications of the Charter means that judges favour the views of decision-makers who are not always required to provide meaningful reasons for their decisions, many of whom are not legally trained, most of whom are not required to be legal experts, and none of whom are independent from the executive or from (a segment of) the electorate. Those who claim that these decision-makers have unjustifiably infringed their rights are denied a fair hearing, and the supreme law of Canada is not impartially enforced by the very institution that proclaims itself its guardian.
“Administrative constitutionalism” is second-rate constitutionalism in practice, and wrong in principle. The sooner it is recognized for the misguided idea that it is and abandoned, the stronger our actual constitution and the rights it protects will be. Judicial review of compliance with the Charter should proceed on the same basis regardless of the institution applying the Charter in the first instance: legislatures, police forces, courts, prosecutors, and administrative decision-makers should be subject to the same standards. After all, the Charter itself makes virtually no distinctions among them—and when a distinction is necessary, the Charter says so explicitly.
All this is not to say that the administrative state should simply ignore the Charter. Like the rest of the constitution, the Charter binds the administrative sate, as well as the rest of the “government of Canada” and the “government of each province” within their respective areas of authority. It follows that administrative decision-makers must endeavour to comply with it to the best of their ability. Of course, the administrative state “is defined by its diversity”. It consists of a multitude of decision-makers, not all of whom will be capable, by virtue of their training and expertise, as well as of the procedures they employ, of engaging with the Charter directly. But those who are able to do so need to consider the Charter’s implications for their decisions.
Indeed, it seems quite possible that, when administrative decision-makers actually consider how the Charter impacts or interacts with the statutory schemes they are required to implement, they will, as the supporters of “administrative constitutionalism” expect, have a perspective that the courts would do well to consider. As Vavilov suggests, courts should be prepared to take the administrative decision-makers’ views on constitutional issues into account, when these views are explained and appear to reflect genuine—rather than merely assumed—expertise.
What courts need not and ought not to do is defer to the administrative decision-makers’ decisions. If the reasoning that supports a given decision is convincing, a court can allow itself to be convinced. Otherwise, not. The principle expressed by Justice Jackson in Skidmore v Swift & Co is sound, and in my view apposite:
We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.
Conversely, when the administrative decision-maker has no particular insights beyond those available to the courts to bring to the matter, or when its consideration of the issues has been lacking, or its reasoning missing, the courts need not pay any heed to its conclusions; nor should they pretend to do so. Ultimately the responsibility for enforcing the constitution is theirs. They may not shirk it.
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11.
2012 SCC 12,  1 SCR 395.
Law Society of British Columbia v Trinity Western University 2018 SCC 32,  2 SCR 293.
Trinity Western University v Law Society of Upper Canada 2018 SCC 33,  2 SCR 453.
Gillian E Metzger, ‘Administrative Constitutionalism’ (2013) 91 Texas L Rev 1897, 1923.
Matthew Lewans, ‘Administrative Constitutionalism and the Unity of Public Law’ (2018) 55 Osgoode Hall LJ 515, 521.
Lewans, for example, subscribes to a living constitutionalism—although in his view it is not enough to allow the courts to re-work and expand the constitution: ibid, 523-24. My own view is that living constitutionalism is indefensible, notably because it is contrary to the Rule of Law. See Léonid Sirota, ‘The Rule of Law All the Way Up’ in Maxime St-Hilaire and Joanna Baron, eds, Threats to the Rule of Law from Within (LexisNexis 2019) 79, Part VI.
See eg David Stratas, ‘The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency’ (2016) 42 Queen’s LJ 27.
See eg Philip Hamburger, Is Administrative Law Unlawful? (University of Chicago Press 2014); Richard A Epstein, The Dubious Morality of Modern Administrative Law (Rowman & Littlefield 2020).
See eg David Mullan, ‘The True Legacy of Dunsmuir — Disguised Correctness Review?’ in Paul Daly and Léonid Sirota, eds A Decade of Dunsmuir/Les 10 ans de Dunsmuir, CJALP (Special Issue) (2018) 107; The Hon Joseph T Robertson, ‘Dunsmuir’s Demise & The Rise of Disguised Correctness Review’, in Daly and Sirota, ibid 111.
See Leonid Sirota, ‘What’s Left of Freedom’ (Double Aspect, 6 July 2018) <https://doubleaspect.blog/2018/07/06/whats-left-of-freedom> accessed 15 July 2020; Barry Bussey, ‘The Constitutional Promise of Religious Freedom Betrayed’ (CanLII Connects 28 August 2018) <https://www.canliiconnects.org/en/commentaries/63683> accessed 15 July 2020.
As will become apparent, although American scholarship takes no notice of Canadian developments, and Canadian cases seem to ignore this scholarship, Jeffrey Pojanowski’s recent observation that “further conversation between” American and Canadian administrative lawyers “is important, for we are all struggling with the tension between the supremacy of law and the need for sound, politically responsive policy in a complex world” is apposite, and the issues and arguments on both sides of the border are similar, albeit not identical. Jeffrey A Pojanowski ‘Dunsmuir: A View from South of the Border’ in Daly and Sirota (n 10) 197.
2019 SCC 65 .
Immigration and Refugee Protection Act, SC 2001, c 27.
See e.g. Legal Profession Act SBC 1998, c 9; Law Society Act, RSO 1990, c L.8.
Corrections and Conditional Release Act, SC 1992, c 20.
cf Lorne Sossin and Mark Friedman, ‘Charter Values and Administrative Justice’ (2014) 67 SCLR (2d) 391, 392 (“Administrative justice … is where a vulnerable tenant goes to stave off eviction, where a refugee claimant goes to avoid deportation, and where a person whose benefits have been curtailed goes for recourse”). These examples illustrate the tendency, in Canadian administrative law scholarship, to see the administrative state as an agent of social justice. Mine are meant to illustrative its coercive character. In my view, the Immigration and Refugee Protection Board, which would not need to exist but for the state’s determination to interfere with the freedom of movement of its citizens and their guests, employees, and business partners (on which see Ilya Somin, Free to Move (OUP 2020)) better illustrates my point that that of then-Professor Sossin and Mr. Friedman.
Reference re Secession of Québec  2 SCR 217 .
Re Manitoba Language Rights  1 SCR 721, 745.
Metzger (n 5) 1900. Metzger’s definition of “administrative constitutionalism” is, in fact, broader; it extends to “the construction (or ‘constitution’) of the administrative state through structural and substantive measures”: ibid. Indeed, she goes on to explain that the phrase is capable of being defined so broadly “as to denude it of meaning”. ibid 1910.
Bertrall L Ross II, ‘Embracing Administrative Constitutionalism’ (2015) 95 BU L Rev 519, 529.
Lewans (n 6) may be the first discussion of “administrative constitutionalism” in Canadian scholarship to actually use the term.
Sossin and Friedman (n 17) 423.
Ross (n 23) 530-33 (explaining that, after an early period of deference, the “assertion of judicial supremacy” in the 1950s, “[c]ombined with the declining judicial faith in agency expertise as a basis for agency action … contributed to a shift from judicial deference to resistance to administrative constitutionalism”.
Sossin and Friedman (n 17) 423.
Ross (n 23) 579-80 (arguing that administrative decision-makers “must not only act on the basis of … expertise and responsiveness in their elaboration of constitutional meaning, they should also give proper consideration to how their actions best advance constitutional principles established by the courts”—failing which “there is no real reason for courts to defer to their interpretations of statutes implicating constitutional values”); Lewans (n 6) 518-19 (arguing that “judges should respect administrative decisions concerning constitutional matters provided that they are rendered in a fair, transparent, and reasonably justified manner”).
See e.g. Dunsmuir v New Brunswick, 2008 SCC 9,  1 SCR 190 ; cf Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65  ("[E]xpertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis. However, we are not doing away with the role of expertise in administrative decision making. This consideration is simply folded into the new starting point and, as explained below, expertise remains a relevant consideration in conducting reasonableness review.) See also Chevron USA v Natural Resources Defense Council, 467 US 837, 865-66 (1984).
Metzger (n 5), 1922. See also Lewans (n 6) 554 (suggesting that “human rights agencies are particularly well-positioned to investigate and articulate the various concrete ways in which discriminatory treatment can limit an individual’s opportunities”).
Lewans (n 6) 552-53.
Ross (n 23) 568-69.
Metzger (n 5) 1928.
Lewans (n 6) 517-18.
Ross (n 23) 563.
Ibid 570-72. It is worth pointing out that the nature and strength of the link between “political branches” or the public and a given decision-maker will vary greatly, depending on the latter’s enabling legislation, although the link will always be at least somewhat stronger than with the judiciary, given the very robust protections for judicial independence in both Canada and in the federal system in the United States.
Sossin and Friedman (n 17) 422.
Metzger (n 5) 1925. See also Sossin and Friedman (n 17) 394 (“what is needed to realize the promise of the Charter in the context of administrative justice is a Charter practice that is designed by and for administrative justice”).
Metzger (n 5) (reference omitted).
Ross (n 23) 525. See also Lewans (n 6) 519 (arguing that “administrative constitutionalism” allows “for synthesizing abstract constitutional principles with a dynamic social context across a broad range of administrative action”).
Ross (n 23) 560.
Lewans (n 6) 521.
Metzger (n 5) 1927.
Ross (n 23) 557.
Sossin and Friedman (n 17) 409-10.
See ibid 428 (noting that “it will be a challenge for parties and advocates to predict at the outset how Charter values might affect their positions in an administrative adjudication”).
Ross (n 23) 557.
Lewans (n 6) 552.
Metzger (n 5) 1902.
Ross (n 23) 572.
Metzger (n 5) 1931.
Ibid 1920. Of course, Professor Metzger’s insistence that “administrative constitutionalism” works best when administrators support constitutional rights as “policy goals” rather feeds this worry. See also Sossin and Friedman (n 17) 425-26 (acknowledging that “[a]dministrative decision-makers cannot be expected to be intuitively aware of the range of Charter values” but hoping that “training and, ideally, guidelines, which highlight the Charter values most relevant to” their mandate can solve this problem); Ross (n 23) 574 (noting that the professional administrative decision-makers “responsible for elaborating the meaning of constitutional rights, are more likely to be motivated by their commitment to an agency’s mission” than by partisan political considerations).
Metzger (n 5) 1929.
Ross (n 23) 568. Ross argues, however, that “public input into one of the most important forms of [administrative] decision-making—notice-and-comment rulemaking—is derived from a process that is more deliberative than majoritarian or special interest captured”. ibid. Yet whatever the accuracy of the claim about the relative importance of notice-and-comment rulemaking in the United States, I do not believe that anything like it would be tenable in Canada.
Cooper v Canada (Human Rights Commission)  3 SCR 854.
Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur 2003 SCC 54,  2 SCR 504.
R v Conway 2010 SCC 22,  1 SCR 765.
Martin (n 60) .
 1 SCR 103.
Doré (n 2) .
2015 SCC 12,  1 SCR 613.
Doré (n 2) .
Loyola (n 68) .
Ibid  (emphasis in the original).
2015 SCC 16,  2 SCR 3.
2017 SCC 54,  2 SCR 386.
2017 SCC 55,  2 SCR 456.
Leonid Sirota, ‘Doré’s Demise?’ (Double Aspect, 12 November 2017) <https://doubleaspect.blog/2017/11/12/dores-demise/> accessed 16 July 2020.
Paul Daly, ‘The Supreme Court of Canada and the Standard of Review: Recent Cases’ (Administrative Law Matters 11 November 2017) <https://www.administrativelawmatters.com/blog/2017/11/11/the-supreme-court-of-canada-and-the-standard-of-review-recent-cases/> accessed 16 July 2017.
Trinity Western (BC) .
Trinity Western University, ‘Community Covenant Agreement’ <https://www.twu.ca/sites/default/files/community_covenant_without_signature.pdf> 2-3.
See the footnotes ibid.
Charter of Rights (n 1) s 2(a).
Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon.
See Legal Profession Act (n 15) ss 4–5; Law Society Rules 2015, r 1-21; Law Society Act (n 15) ss 12, 15–16, 23.
2017 SCC 20,  1 SCR 360.
Trinity Western (BC) (n 3) .
Green (n 87) .
See Jonathan Maryniuk, ‘Doré Adrift’ (Double Aspect, 15 January 2019) <https://doubleaspect.blog/2019/01/15/dores-failed-promises/> accessed 23 July 2020.
Trinity Western (BC) (n 3) .
Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd 2016 SCC 47,  2 SCR 293 .
See eg Sauvé v Canada (Chief Electoral Officer) 2002 SCC 68,  3 SCR 519  (“A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardizes its claim to representative democracy, and erodes the basis of its right to convict and punish law-breakers.”).
While lay benchers are appointed by democratically elected governments, it seems quite unlikely that ministers will ever be held to account for their choice of appointees.
Trinity Western (Ontario) (n 4) .
Trinity Western (BC) (n 3) .
But see ibid  (asserting that “[i]t is clear from the speeches” made by benchers “that they were alive to the question of the balance to be struck between freedom of religion and their statutory duties”); however, as the dissent points out, the outcome of these discussions among the benchers was not to deny Trinity Western accreditation. ibid .
Ibid  quoting Dunsmuir (n 29)  (underlining added by the Trinity Western (BC) majority).
Leonid Sirota, ‘Law in La-La-Land’ (Double Aspect, 4 December 2016) <https://doubleaspect.blog/2016/12/04/law-in-la-la-land/> accessed 23 July 2020.
See eg Bonnybrook Park Industrial Development Co Ltd v Canada (National Revenue) 2018 FCA 136, 44 Admin LR (6th) 71 - (Stratas JA, dissenting) for a sharp critique.
Jacob E Gersen, ‘Designing Agencies’ in Daniel A Farber and Anne Joseph O’Connell (eds), Research Handbook on Public Choice and Public Law (Edward Elgar 2010).
Trinity Western (BC) (n 3) .
Above (n 11) and accompanying text.
Dunsmuir (n 29) .
See Part V, below.
West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal) 2018 SCC 22,  1 SCR 635 .
Roncarelli v Duplessis  SCR 121, 140 (Rand J) (“In public regulation … there is no such thing as absolute and untrammelled ‘discretion’ … [T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.”). This language was quoted by Côté and Brown JJ in dissent. Trinity Western (BC) (n 3) .
Trinity Western (BC) (n 3) .
Charter of Rights (n 1) s 31.
Edward J Cottrill, ‘Novel Uses of the Charter Following Doré and Loyola’ (2018) 56 Alberta L Rev 73, 95.
David E Bernstein, ‘Anti-Discrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism’ (2019) 94 Notre Dame L Rev 1381.
Ibid 1401. See also (n 101) and accompanying text.
Arthur J Cockfield, ‘Limiting Lawyer Liberty: How the Statement of Principles Coerces Speech’ Queen’s Law Research Paper Series no. 2018-100 <https://papers.ssrn.com/abstract=3141561> accessed 23 July 2020 (describing the imposition—since repealed—of a requirement that lawyers in Ontario acknowledge a purported obligation to “promote equality, diversity and inclusion”).
Bernstein (n 117) 1403.
See eg Christie Blatchford, ‘Ontario lawyers score victory for free thought in Law Society election’, National Post (Toronto, 2 May 2019) < https://nationalpost.com/opinion/christie-blatchford-ontario-lawyers-score-victory-for-free-thought-in-law-society-election >.
Bernstein (n 117) 1403.
Vavilov (n 13) .
Chief Justice Wagner and Justices Moldaver and Gascon come to mind, having been part—and ostensibly co-authors of the opinions—of the majorities in both the TWU Cases and Vavilov.
Going all the way back to Canadian Union of Public Employees Local 963 v New Brunswick Liquor Corporation  2 SCR 227.
Vavilov (n 13)  (“It is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review”).
Mark Mancini, ‘Doré Revisited: A Response to Professor Daly’ (Double Aspect, 21 May 2020) < https://doubleaspect.blog/2020/05/21/dore-revisited-a-response-to-professor-daly/ > accessed 23 July 2020.
Mark Mancini, ‘The Conceptual Gap Between Doré and Vavilov’ (2020) 43 Dalhousie LJ (forthcoming) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3586079 > 1.
Ibid 2 (references omitted).
Vavilov (n 13) , .
Mancini (n 132). See Amax Potash v Saskatchewan  2 SCR 576, 591 (referring to “the inability of the Provinces to limit judicial review of constitutionality”).
Mckinney v University of Guelph  3 SCR 229, 265.
Mancini (n 132).
Paul Daly, ‘Unresolved Issues after Vavilov II: The Doré Framework’ (Administrative Law Matters, 6 May 2020) <https://www.administrativelawmatters.com/blog/2020/05/06/unresolved-issues-after-vavilov-ii-the-dore-framework/> accessed 23 July 2020; see also Paul Daly, ‘Doré and Vavilov, A Surreply’ (Administrative Law Matters, 21 May 2020) <https://www.administrativelawmatters.com/blog/2020/05/21/dore-and-vavilov-a-surreply/> accessed 23 July 2020.
Mancini (n 132).
Vavilov (n 13) .
See (n 18-21) and accompanying text.
See especially Lon L Fuller, The Morality of Law (Rev ed, Yale University Press 1969).
See eg Tom Bingham, The Rule of Law (Allen Lane 2010); Ryan Alford, Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law (McGill-Queen’s University Press 2020).
The Rule of Law also, arguably, imposes requirements on the legislative process, but these are different from the ones applicable to adjudication, and not my concern here; for a discussion of these requirements see Léonid Sirota, ‘A Citizen’s Guide to the Rule of Law’ in Peter L Biro, ed, Constitutional Democracy Under Stress: A Time For Heroic Citizenship (Mosaic Press 2020) 104 Part IV.2 (forthcoming).
Joseph Raz, ‘The Rule of Law and Its Virtue’ in The Authority of Law (OUP 1979) 210, 216-17; Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ in James E Fleming, ed, (2011) 50 Nomos: Getting to the Rule of Law 3, 6
See Fuller (n 153) 41 (acknowledging the impossibility, and indeed the undesirability, of a “utopia of legality”; Fuller writes about the formal dimension of the Rule of Law, but his point applies to the procedural one too).
Charter of Rights (n 1) s 2.
See Baker v Canada (Minister of Citizenship and Immigration)  2 SCR 817 .
Waldron (n 156) 6.
Constitution Act, 1982 (n 1) s 52(1).
Waldron (n 156) 6.
Supreme Court Act, RSC 1985, c S-26, s 5; Judges Act, RSC 1985, c J-1, s 3. See also Reference re Supreme Court Act, ss 5 and 6 2014 SCC 21,  1 SCR 433  (describing “the purpose of s. 5” of the Supreme Court Act as being “to ensure that appointees to the Court have adequate legal experience”).
See eg Immigration and Refugee Protection Act, SC 2001, c 27, s 153(4) (providing that “at least 10 per cent of the members of the” Refugee Appeal Division and the Immigration Appeal Division of the Immigration and Refugee Board—Canada’s largest administrative tribunal— “must be [lawyers] of at least five years standing”; in other words, up to 90% of the members of these divisions, and all members of the Refugee Protection Division and the Immigration Division, can be non-lawyers).
Raz (n 156) 217.
Ell v Alberta 2003 SCC 35,  1 SCR 857 .
See eg Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch) 2001 SCC 52,  2 SCR 781.
Philip Hamburger, ‘Chevron Bias’ (2016) 84 Geo Wash L Rev 1187, 1189.
Admittedly, the Supreme Court’s jurisprudence on the nature of these standards is inconsistent, and sometimes admits of unwarranted deference to legislatures. See Sirota, ‘All the Way’ (n 7) 86-90.
Charter of Rights (n 1) s 24(2).
Ibid s 32.
Sossin and Friedman (n 17) 392.
See eg ET v Hamilton-Wentworth District School Board 2017 ONCA 893, 140 OR (3d) 11 - (questioning the expertise and impartiality of “line decision-makers” such as school teachers and principals called upon to address Charter issues).
323 US 134, 140 (1944).