Lord Black’s Day at the Advisory Council for the Order of Canada

If honours were given for services to administrative law, Lord Black would be a strong candidate. His lawsuit against Prime Minister Jean Chrétien gave rise to an important decision on justiciability, Black v. Canada (Prime Minister), 54 OR (3d) 215. His more recent attempt to maintain his membership of the Order of Canada has prompted another decision, again dealing with the prerogative powers of the federal government, which is likely to make the next editions of Canadian administrative law textbooks: Black v. Advisory Council for the Order of Canada, 2012 FC 1234

I think Justice de Montigny was broadly correct in his conclusion that Lord Black did not have the right to an oral hearing before the Advisory Council, though not necessarily for the right reasons.

Lord Black was convicted of criminal offences in the United States arising out of his stewardship of Hollinger International. He had previously been appointed to the Order of Canada, but his criminal convictions have jeopardized his continuing membership.

Members of the Order of Canada are appointed by the Governor-General on the advice of an Advisory Council. Its procedures are regulated by its Constitution and a Policy and Procedure for Termination of Appointment to the Order of Canada. Pursuant to s. 3 of the Policy, termination of membership will be considered in certain circumstances:

  (a) the person has been convicted of a criminal offence; or
  (b) the conduct of the person

(i) constitutes a significant departure from generally-recognized standards of public behaviour which is seen to undermine the credibility, integrity or relevance of the Order, or detracts from the original grounds upon which the appointment was based; or
(ii) has been subject to official sanction, such as a fine or a reprimand, by an adjudicating body, professional association or other organization.

According to the policy, any termination decision must be made fairly and based on all relevant evidence after having ascertained the facts.

Provision is also made in the policy for representations to be made by individuals who have been notified that their membership may be terminated. The crux of the present case was that Lord Black wanted the opportunity to address the Advisory Council in person, and not simply in writing. Clearly, Lord Black was going to be allowed to make representations. The only question was whether he would be confined to the written word.

The first hurdle that Lord Black had to overcome was that presented by his previous case against the Prime Minister. There, Laskin J.A. drew a distinction between two different types of interest which can be affected by exercises of the prerogative: rights, which are subject to judicial review, and privileges, which are not.

de Montigny J. accepted the government’s argument that Lord Black did not have a right which was subject to judicial review:

[51]           Counsel for the Applicant tried to argue that a distinction must be drawn between the conferral of an honour and the removal of such an honour without ever expanding on the significance of that distinction.  I fail to see how a person on whom an honour has been bestowed would have any greater right or expectation of keeping it than a person has of receiving it in the first place.  It may be that, once granted, an honour cannot be taken away except for some stated reasons and according to a specific procedure.  This is a separate issue that I will turn to shortly.  The mere fact that a privilege has been conferred, however, absent other external circumstances, does not transform that privilege into a right enforceable in court.  Once it is recognized that an honour is granted at the discretion of the Crown and that no one is “entitled” to such an honour, the same must be true of the decision to withdraw it afterwards.  That a person may feel his or her reputation will be tarnished by the loss of an honour is no more significant, from a legal perspective, than a person who feels aggrieved by the fact that he or she has not been recognized to be worthy of an honour in the first place.  In both instances, the decision is discretionary and highly subjective, based on considerations that have little to do with ascertainable and objective (let alone legal) norms, and for that reason is ill-suited for judicial resolution.  If, therefore, my decision were to be made solely on the basis of paragraph 25(c) of the Constitution, I would find that Mr. Black would clearly not be entitled to bring his application for judicial review before this Court.

I have previously explained why I think the rights/privileges distinction is problematic, but I think this reasoning is wrong even if the distinction is accepted. First, there is surely a difference between not receiving an honour — when others might simply think that you had been “passed over” — and being stripped of one. Once an honour has been conferred, it must surely lose its character as a “privilege” and become a “right”. Where before it was a mere possibility, now it has vested, and can only be lost in a very public and humiliating fashion. To borrow from Justice Holmes: even Lord Black knows the difference between being kicked and being stumbled over.

Secondly, the Order of Canada is an aspect of the prerogative to grant honours, but attached to the Letters Patent creating it is a long and detailed Constitution. I am doubtful that the usual reasons for treating the prerogative as non-justiciable (lack of expertise, considerations of comity between the branches of government, the policy-induced nature of the questions at issue, etc) attach with great force when the exercise of the prerogative is already highly regulated. Determining lawfulness then becomes more a question of interpretation than a question of pure policy, even if the Constitution was not a “regulation or statutory instrument” (at para. 73).

Indeed, de Montigny J. effectively recognized this. He held that Lord Black had a procedural legitimate expectation that he would be allowed to make representations, based on the Policy. This was enough to overcome the justiciability obstacle:

[63]           On that basis, I do not think it can seriously be contended that the process adopted by the Council in making its recommendation to the Governor General concerning the potential termination of Mr. Black’s appointment to the Order should fall beyond the Court’s reach.  While the exact legal nature of the Policy has not been clarified by the parties, there is no doubt in my mind that it is a “written instrument” or a “set of rules” governing the procedure to be followed by the Council before making a recommendation to the Governor General with respect to the termination of a person’s appointment to the Order of Canada.  The Policy appears to be an appendix to the Constitution and follows it immediately on the website of the Governor General under the heading of The Constitution of the Order of Canada.  As previously mentioned, it spells out a detailed eleven-stage procedure to be followed by the Council before recommending termination of an appointment.  This Policy is public and states at section 5 that the termination procedure “will proceed” according to those eleven stages.  As such, I fail to see how it can be argued that it does not create an expectation that it will be adhered to, or that the steps it prescribes do not provide an objective basis on which courts may be called upon to determine whether the Council has exercised the role assigned to it and followed the procedure according to which it is to fulfill its mandate.

Unfortunately for Lord Black, de Montigny J. concluded that an oral hearing was not necessary:

[85]           In short, Mr. Black has failed to demonstrate that an oral hearing is necessary to ensure that his arguments are dealt with fairly or that written submissions do not and cannot provide him a reasonable opportunity to participate effectively in the process leading to the Council’s recommendation to the Governor General.  Mr. Black has been advised that the Council will consider five U.S. decisions concerning his convictions in making its recommendation, and that he may file any written representations or other written material necessary in support of his position.  Should the Council be unable to resolve any concerns when it considers these submissions, it could solicit additional information from Mr. Black.  All of this to say that Mr. Black will have ample opportunity to present his side of the story and to make sure that the Council is well aware of his views before deciding on its recommendation.  Finally, and contrary to his assertion, credibility is not the key factor or the primary consideration for the Council in assessing whether it should recommend the termination of his appointment to the Order.  For all of these reasons, I believe that Mr. Black’s right to procedural fairness has not been breached by the Council’s decision not to hold an oral hearing.

If one strips it down to the essential question of whether an oral hearing would be necessary, there is much to be said for the approach taken in this paragraph. All of the relevant information could, after all, be put before the Advisory Council in written form. 

Perhaps, though, Lord Black did not put his case high enough in suggesting that his personal credibility was at stake. I suspect Lord Black’s true motivation for wanting to meet the Advisory Council members in person was to explain himself and perhaps even to justify some of his actions. I have some sympathy for the suggestion that only by allowing the man to bare his soul could the members of the Advisory Council truly see the matter from Lord Black’s perspective.

de Montigny J. commented (at para. 83) that it would be “highly inappropriate” for the Advisory Council to second-guess the merits of Lord Black’s U.S. convictions. This seems off to me, for two reasons. First, the Advisory Council should surely be allowed, in certain circumstances, to consider the merits of court decisions in foreign jurisdictions: a blanket rule that all foreign criminal convictions are to be treated as absolute would prevent the Advisory Council from taking account even of miscarriages of justice in dubious legal systems. Secondly, if all Lord Black wanted to do was to put his convictions in context, then no second-guessing would even be necessary. And as I suggested in the previous paragraph, perhaps the context could be provided only by an oral hearing.

It will be interesting to see if Lord Black takes this any further. I think de Montigny J. is just about right in his conclusion, but it is a close case.

UPDATE: Edited to address some formatting issues and add links.

This content has been updated on June 11, 2014 at 09:47.