Administrative Law Values: Distinctively Canadian?
In the concluding chapters of Public Law Adjudication in Common Law Systems: Process and Substance — the edited collection arising from the first Public Law Conference, held at the University of Cambridge in 2014 — both Professor David Feldman and Professor Cheryl Saunders gently suggested that my chapter, “Administrative Law: A Values-Based Approach“, was produced from a Canadian perspective. As Professor Saunders put it, my approach was “distinctively Canadian”. She cited to Reference re Secession of Quebec,  2 SCR 217 where, as is well known, the Supreme Court of Canada laid out the ‘unwritten principles’ of the Canadian constitution. In this post, which could usefully be read alongside my paper for the second Public Law Conference, I would like to make the case that my approach is not “distinctively Canadian”, though I can understand why it might be characterized as such.
First, let me try to unpack the phrase “distinctively Canadian”. The phrase might be taken in one sense as a tendency to give immediate normative force to unwritten principles. There are certainly examples of this. They range from the Ontario Court of Appeal’s decision in Lalonde (2001), 56 OR 505 to invalidate a ministerial decision to close a hospital serving a city’s French-language minority because the Minister did not respect the unwritten principle of minority protection, to the Supreme Court of Canada’s decision in Canadian Western Bank v. Alberta,  2 SCR 3 to reformulate the rules regulating the relationship between federal and provincial laws to better reflect the unwritten principle of federalism.
However, there are many other examples of Canadian modesty on this front: the idea that the unwritten principle of the rule of law might be an independent basis to invalidate otherwise validly enacted legislation met a cold reception in British Columbia v. Imperial Tobacco Canada Ltd.,  2 SCR 473; and in the gun registry case (Quebec (Attorney General) v. Canada (Attorney General),  1 SCR 693), where the federal government legislated to destroy data that a province wished to use to create its own registry, even the minority that would have found in favour of provincial interests used the federalism principle as an interpretive guide only and did not give it independent normative force — the minority followed the modest approach I laid out in this article, not the more ambitious approach laid out in this one. In short, I think Canadian judges are as reticent as their counterparts elsewhere in the common law world about using unwritten principles to invalidate governmental decisions.
“[D]istinctively Canadian” might have a second sense: the use of general principles to structure the development of doctrinal rules. There are certainly Canadian examples of this, from the invocation in Dunsmuir v. New Brunswick,  1 SCR 190 of the rule of law and democracy as providing the creative tension from which the rules of judicial review of administrative action emerge, to the reliance in Reference re Senate Reform,  1 SCR 704 on ‘constitutional architecture’ to impose limits on constitutional change. But mention of general principles tends to be reserved for cases in which the judges are making sweeping statements about doctrine. On other occasions reference to general principles is sorely lacking, cases often being resolved and doctrinal innovations being made without any consideration given to general principles.
In any event, I do not think the approach in “Administrative Law: a Values-Based Approach” is “distinctively Canadian” in either of these senses. The approach is interpretive, which leads to the claim that the values of the rule of law, good administration, democracy and separation of powers shape the law of judicial review of administrative action. In order for this claim to be persuasive, judges need not, à la their Canadian counterparts, invoke these principles explicitly (still less give them immediate normative application), Rather, the idea is that the judges have, like Molière’s bourgeois gentleman, been adjudicating in terms of values without necessarily knowing it: “What an interpreter is trying to understand—to interpret—is the law, not what motivated the judges who made the law”; the goal is to reveal “an intelligible order in the law, so far as such an order exists” (Stephen Smith, Contract Theory (Oxford University Press, Oxford, 2004), 5-6).
It is true that in a forthcoming piece on legitimate expectation I have argued that the four values can usefully provide guidance to judges in developing the law. I suppose that the pluralist approach I advocate (seeking to reconcile and accommodate the four values) is “distinctively Canadian” in the second sense of the term, but it is interesting to note that Canadian cases feature hardly at all in this piece.
For more on these methodological points, see “Administrative Law: Characteristics, Legitimacy, Unity“, on which comments are very much welcome.
This content has been updated on September 6, 2016 at 04:16.