The Signal and the Noise in the Supreme Court of Canada’s Administrative Law Jurisprudence
I have been quiet recently, in part because I have been working and travelling, but also because the last month of Supreme Court of Canada cases has been discouraging. While academics, practitioners and lower-court judges try to establish coherent frameworks to understand the general principles of judicial review, the Court resolves cases one-by-one without, with respect, any serious attempt to explain how they fit into its existing body of jurisprudence.
In fairness to the Court, this might in part be the result of institutional considerations. As the judicial body of last resort, it has to give authoritative guidance on matters of substantive law to other actors (individuals, politicians, lawyers and lower-court judges), a task which might be impeded by discussion of the general principles of judicial review. I happen to think this view is mistaken — read any recent decision of the Federal Court of Appeal to appreciate how one can both give guidance and properly apply judicial review principles — but I can appreciate that others may well hold it.
However, this gives rise — with apologies to Nate Silver — to a “signal and noise” problem. How do the rest of us know when the Court is telling us something about judicial review principles and when it is not? Should lower courts, lawyers and litigants try to integrate all of the Court’s judicial-review jurisprudence into their analytical frameworks or should they be selective? I am now firmly in the selectivity school. I think the vast majority of the Court’s judicial review decisions can be discounted for the purposes of understanding Canadian administrative law.
So what in the Court’s body of jurisprudence is “signal” that the rest of us should pay careful attention to and what is “noise” that can safely be ignored by administrative lawyers? Where the Court expressly sets out to give authoritative guidance, its decisions should be closely parsed by administrative lawyers. Rothstein J.’s recent exposition on standing is an excellent example: the case law was unclear, the Court acknowledged it was unclear, it set out the general principles that should guide the law in this area, and it revamped the doctrine; LeBel J.’s decision in Khela, on the availability of habeas corpus, is another, as is Binnie J.’s discussion of legitimate expectations in Mavi.
When it comes to the standard of review, there are relatively few examples: of the post-Dunsmuir cases I think only Alberta Teachers’, Catalyst Paper and (maybe), Katz fall into this category, while some other cases are authoritative as to particular aspects of standard of review — e.g. Canadian National (on the scope of the standard of review analysis generally) and Saguenay (on deference and appeals). The last time the Court said anything of general precedential value about the analytical structure of the reasonableness standard of review is 2003, in Ryan. These cases “signal” the Court’s view on the general principles of judicial review. (UPDATE: I forgot Newfoundland Nurses, which is an important “signal” which is part standard of review and part analytical structure of reasonableness review).
The rest, with respect, is “noise” as far as administrative law is concerned. These cases are characterized by purely pro forma references to correctness and reasonableness, an absence of detailed discussion of the general principles of standard of review and lengthy explanations of substantive law designed to guide lower courts. This last characteristic is important. I am not saying that these cases should be ignored, but that they should be treated as authoritative only in respect of the particular area of substantive law they address. What is “noise” to someone interested in the general principles of judicial review may be a very strong “signal” to someone interested in, say, access-to-information law, or human-rights law. From the perspective of the general administrative lawyer, the distinction between “signal” and “noise” will be viewed differently and many cases of interest to others will have to be discarded.
Sorting the signal from the noise will typically require lawyerly judgement, just as sorting ratio from obiter is not a purely mechanical exercise. To forestall potential objections, I do not think that my distinction between “signal” and “noise” is an incitement to illegitimate judicial disobedience to binding commands issued by the Court. As the Court itself has explained, to think of a “a strict and tidy demarcation” between ratio and obiter is an “oversimplification” (R. v. Henry,  3 SCR 609, at para. 52). For the administrative lawyer, the “noise” cases are limited to their particular facts, but the “signal” cases involve commentary that is part of “a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative” (ibid., at para. 57). With this in mind, my early New Year’s resolution is to spend less time on Supreme Court of Canada administrative law cases in 2016, focusing on “signal” and not being distracted by “noise”.
UPDATE: Martin Olszysnki says McLean is also worth a mention for its discussion of the range of reasonable outcomes. Fair enough: Moldaver J. did indeed give some “signal” on that point, though there are noisier aspects of the decision with which I am uncomfortable.
This content has been updated on December 22, 2015 at 10:38.