Democracy Watch v. Canada: a Preview of What's to Come in English Montreal School Board?

Democracy Watch v. Canada (Attorney General) - SCC Cases ("Democracy Watch"), released today, will inform the Supreme Court's much anticipated decision in English Montreal School Board ("EMSB") and oral argument in UR Pride.

Addressed in the context of administrative decision making, Democracy Watch reaffirms the inalienable jurisdiction of our s. 96 courts to review the legality of government action and legislative power. The core jurisdiction of our courts is animated by and flows from the Rule of Law.

Recall that the Procureur général du Québec argued in EMSB that the notwithstanding clause removes the courts' s. 96 core jurisdiction. Democracy Watch, a unanimous decision, reads like the preview before the feature presentation. It appears to foreshadow, and effectively pre-empt, the rejection of that argument before it ever reaches centre stage.

Before you write this off as wishful thinking, read Democracy Watch and decide for yourself. For example:

[1]                             The rule of law is a “fundamental postulate of our constitutional structure”: Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142. The rule of law requires, among other things, that “the exercise of all public power must find its ultimate source in a legal rule”: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 10. Under the rule of law, all public powers must be legal, and all legal powers have limits: D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 283. These limits are set out in the delegating statute, in the common or civil law, or derived from the Constitution itself: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 28. An unlimited power is, definitionally, not a legal power.

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[3]                             Since at least this Court’s decision in Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, it has been beyond dispute that some minimum of judicial review of administrative decision-makers is guaranteed by the Constitution. The judicature provisions in ss. 96 to 101 of the Constitution Act, 1867, interpreted in light of the preamble and the principle of the rule of law, enshrine the superior courts as guardians of the rule of law and constitutionally guarantee the core aspects of their jurisdiction that are essential to their function. This includes the power of the courts to exercise their supervisory jurisdiction over the executive through judicial review. As we recognized in Dunsmuir, “judicial review is intimately connected with the preservation of the rule of law . . . [it] is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority”: paras. 27‑28. Judicial review is constitutionally guaranteed, and as such, “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 24.

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[8]                             By virtue of these features of our constitutional system, every exercise of public authority is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits. The availability of this “legality review” is constitutionally guaranteed. When read in its historical context, our jurisprudence is clear that the Constitution guarantees the availability of legality review of all aspects of an administrative decision. Section 66 of the COIA infringes this guarantee by purporting to bar judicial review on questions of fact and law: to that extent, it is of no force and effect.

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[39]                         The judicature provisions in ss. 96 to 101 of the Constitution Act, 1867 guarantee the existence of superior courts of inherent jurisdiction and protect the core, essential aspects of that jurisdiction: see Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291 (“CCP Reference”), at para. 63; Reference re Remuneration of Judges of the Provincial Court, at para. 124; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at paras. 36-37; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845, at para. 55; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at paras. 28-29 and 38-39; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090.

[40]                         The core constitutional jurisdiction of the superior courts protected under ss. 96 to 101 encompasses “the powers and jurisdiction essential to [the superior courts’] role as the cornerstone of the unitary justice system and the primary guardians of the rule of law”: CCP Reference, at para. 63. The “review of the legality and constitutional validity of laws, enforcement of its orders, control over its own process, and its residual jurisdiction as a court of original general jurisdiction” are all included within this constitutionally protected core of the courts’ jurisdiction: para. 68.

[41]                         The supervision of the administrative state through judicial review of the exercise of public powers is one of these essential aspects of the courts’ constitutional function: Dunsmuir, at para. 31; Vavilov, at para. 24; Bibeault, at p. 1090; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638, at p. 654; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207, at para. 27. This supervisory jurisdiction allows the courts to fulfill their role as guardians of the rule of law, and ensure that Canadians are “protected from arbitrary government action”: CCP Reference, at paras. 46-51. Legislative efforts to limit the core jurisdiction of the superior courts are ultra vires: they trench on the powers assigned exclusively to the courts by ss. 96 to 101 of the Constitution Act, 1867.

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[68]                         The courts of Canada, like the courts of England, have consistently held that irrational administrative decisions are unlawful, insofar as they exceed the inherent limits of delegated authority. Irrational decisions raise the spectre of arbitrary exercises of public power; the power of the courts to protect against such arbitrariness lies, as I have explained, at the very heart of the courts’ constitutionally protected jurisdiction under ss. 96 to 101.

[69]                         There can be no doubt, then, that rationality review has a constitutional aspect. Rationality is a boundary of legality. Moreover, deferential judicial review strikes the constitutionally necessary balance between respect for the democratic sovereignty of the legislature, respect for the competence and expertise of the executive, and respect for the courts as arbiters of legality: CCP Reference, at paras. 46-48; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at paras. 10-13, per Lamer C.J., concurring; see also T. Bingham, The Rule of Law (2010), at p. 61. Judicial deference to the legislature and the executive evinces respect without submission — the role of the courts remains essential, but the rule of law is not the rule of courts. Provided that courts can exercise their supervisory jurisdiction over the legality of all exercises of public power, the rule of law does not preclude meaningful decision-making by other state actors: see D. Dyzenhaus, “Disobeying Parliament? Privative Clauses and the Rule of Law”, in R. W. Bauman and T. Kahana, eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006), 499, at p. 514.

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[72]                         Legislation that purports to oust this constitutional power of the courts oversteps the limits of the legislatures’ constitutional authority. Such efforts are ultra vires; they do not affect the scope of the courts’ supervisory jurisdiction. This is true for the s. 96 superior courts, but also where the Federal Courts have been assigned exclusive jurisdiction over judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7.

[73]                         Section 101 of the Constitution Act, 1867 authorizes Parliament to transfer some of the jurisdiction of the s. 96 courts to courts constituted for “the better Administration of the Laws of Canada”, as it did through the Federal Courts Act: Canada Labour Relations Board v. Paul L’Anglais Inc., [1983] 1 S.C.R. 147, at pp. 153-54 and 162. But the transfer cannot eliminate any portion of that jurisdiction; the jurisdiction of the s. 96 courts, whether exercised by s. 96 courts themselves or by courts constituted under s. 101, is constitutionally guaranteed. Where Parliament has assigned a matter to the Federal Courts, Parliament cannot combine that allocation of jurisdiction with a limit on judicial review that would circumvent the constitutional guarantee of legality, and the limits that inhere in any delegation of public powers. In other words, while s. 101 permits Parliament to create new courts to exercise the jurisdiction protected by s. 96, it does not permit Parliament to limit or circumvent that jurisdiction entirely. A privative clause that prevents the Federal Courts from exercising a component of the s. 96 supervisory jurisdiction assigned to them is contrary to the Constitution Act, 1867 and of no force and effect.

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[86]                         All legal powers are subject to inherent limits. Under a constitutional order based in the rule of law, there is no such thing as an unfettered discretion: Roncarelli, at p. 140. The courts are tasked with ensuring that legal powers are exercised in accordance with their limits: Vavilov, at para. 67. Parliament and the legislatures are not constitutionally competent to shield administrative exercises of delegated power from judicial review for legality on any ground; such efforts trench on the core jurisdiction of the courts and are ultra vires.