A Consensus, If You Can Keep It: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
When Benjamin Franklin was asked what sort of government the framers of the U.S. Constitution had created, he quipped: “A Republic, if you can keep it”. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada reached something of a consensus. The question is: can the Court maintain it?
Vavilov represents a commendable attempt to comprehensively address two issues which have dogged Canadian administrative law (and the Court, in particular) for decades: selecting the standard of review and applying the reasonableness standard. However, there will be further issues to address, tensions to resolve and pressures to withstand in the coming years. Today’s consensus may come under strain.
What is most notable about the majority reasons is the identity of its authors. It is a broad coalition composed of some judges who are comfortable with deference to administrative decision-makers and some who are hawkish at best, judicial supremacists at worst. To bring these judges together to coalesce around a set of reasons spanning a vast expanse of administrative law is a considerable achievement.
When I say “consensus”, I of course acknowledge that there is a powerful set of concurring reasons by Abella and Karakatsanis JJ., which are more accurately described as “disguised dissenting reasons”. Their reasons land some significant blows and they disagree strongly (with some justification) about the majority’s approach to selecting the standard of review. But on the methodology of reasonableness review, although there are important differences of detail and emphasis, all nine judges agreed on several fundamental propositions about how reviewing courts should identify unreasonable administrative decisions. And I suspect that most members of the Canadian legal community will be able to live comfortably with the Vavilov frameworks.
But will the consensus hold? On both selecting the standard of review and applying the reasonableness standard, the majority reasons raise a number of issues, provoke several tensions and create multiple sources of pressure. In future cases, these will have to be addressed. Then, the consensus will be put to the test. In Vavilov, seven judges (on selecting the standard of review) and nine judges (on applying the standard of review) were of one mind. Their ideological preferences may cause them to diverge in cases to come.
Tomorrow, I will delve into the details of what this hard-won consensus produced in Vavilov. Tonight, the Court deserves praise. For the reasons in Vavilov — both the majority’s and the disguised dissenters’ — demonstrate that the Court has engaged in a sustained period of reflection and that the judges have thought long and hard about the way forward.
- DISCLOSURE: In the companion appeal, Bell Canada v. Canada (Attorney General), 2019 SCC 66, I assisted counsel for Bell Canada and the National Football League in preparing for the appeal.
This content has been updated on December 20, 2019 at 03:04.