Advocates for the Rule of Law
The Honourable Peter D. Lauwers is a Justice of the Court of Appeal for Ontario. This speech was delivered to the Runnymede Society in Toronto on January 12, 2018. It develops further some thoughts on Charter values in my article, “Liberalism and the Challenge of Religious Diversity, (2017), 79 S.C.L.R. (2d) 29. The footnotes have not been edited or completed.
I am in the course of writing an article on the problematic use of Charter values in discretionary decisions made by tribunals and courts. I thought I would pick out two phenomena to discuss with you this evening.
The first has to do with the psychological nature of judicial decision making. There is a reason why the system of justice has evolved ways to control the exercise of judicial discretion. I entitle this part: “A Call for Judicial Humility.”
The second has to do with the nature of “values” as a concept, and by necessary implication, the nature of Charter values. I call this part of my talk: “The Almost Empty Idea of Charter Values.”
My thesis is that the intersection of these two phenomena – the inherent nature of discretionary decision making, and the almost empty idea of Charter values – poses real problems for our constitutional order, in two ways. The first is that unbridled Charter values have the potential to increase the discretionary power of administrative tribunals and judges in a way that is inconsistent with our understanding of the Rule of Law. The second is in expanding the range of issues that are justiciable under the Charter well beyond the text of the Charter itself.
I begin with some groundwork, then move to the call for judicial humility, and end with the almost empty idea of Charter values.
Some groundwork on the Rule of Law
The triumph of liberal democracy has been to subject the exercise of political power, on the one hand, to democratic institutions under the rubric of the supremacy of Parliament, and, on the other hand, to the Rule of Law including what I would call “tempered” judicial power.
The Charter recognizes the Rule of Law in its preamble[1]. The Supreme Court has described it as one of the “four fundamental and organizing principles of the Constitution”[2], and as a “fundamental postulate of our constitutional structure”[3]. The court picked out three elements:
First … the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second… “the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order”… [Third] “the exercise of all public power must find its ultimate source in a legal rule”.[4]
This is not an exhaustive list of the Rule’s attributes[5].
We have long accepted the existence of expert administrative tribunals appointed by legislatures to do specific tasks, something that Dicey deplored. They routinely exercise policy making responsibilities and regulatory functions of a highly discretionary nature in an adjudicative context.
The use of discretionary power is essential to good government. As the Supreme Court explained in Baker: “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.”[6] To be clear, I do not see filling in legislative gaps or interpreting legislation as the exercise of discretionary authority[7]. Here the decision maker must get it right in fidelity to the separation of powers.
I see adjudicative expert administrative tribunals as a form of specialized courts, which are subject to the supervisory oversight of Superior Courts. The key issue in administrative law continues to be the extent to which Superior Courts should defer to the decisions of administrative tribunals in judicial review[8].
With that brief review of the Rule of Law, I now turn to:
I. A call for judicial humility
I have been a judge for about 10 years, half as a trial judge and the other half on the Court of Appeal. Judges hold positions of power. We make decisions that have the force of law on those affected, usually only the immediate parties, but sometimes more broadly when we find legislation to be unconstitutional or when we change a common law rule. But our power is limited. We are not roving dispensers of the law or justice.
If Dicey was suspicious of administrative tribunals, I am suspicious of judges, starting with myself. But so is the system of justice. Knowing from experience how seductive the exercise of power can be, the system of justice puts many constraints on judicial decision making.
In addition to the constitutional constraints, our jurisdiction is prescribed by statute and the common law. It is also limited by the statutory authority and the common law related to the case itself. We are limited in what we can do by the issues in the cases we hear, and by the evidence the parties adduce. Our authority is further limited by the rules that apply to the particular kind of case, whether it is a civil case, an administrative law case, or a criminal case. We are ordinarily bound by the rules of stare decisis, for our court, particularly by decisions of the Supreme Court of Canada and by our own decisions unless we choose to set them aside[9]. Often the legal tests we are required to consider and apply are prescribed by statute or by a higher court. We are obliged to give reasons for our decisions that display the qualities of accountability, intelligibility, adequacy and transparency[10].
Further, appellate courts sit in panels and are obliged to decide cases collegially. Except for the apex court, judges are subject to appellate review and, even the apex court, in theory at least, is subject to Parliamentary supremacy.
I consider all of these to be mechanisms designed to constrain the exercise of judicial power under the rubric of the Rule of Law. However, there are growing contrary pressures.
Ronald Dworkin argued that there are three forms of constraints embodied in the law, which he identified as limiting rules, principles (the province of courts), and policies (the province of legislatures).[11] In his forthcoming book, my colleague Justice Robert Sharpe argues persuasively that the trend in Canada is to move away from binding rules and towards open principles, both in common law and in administrative law contexts.[12] This puts more power in the hands of first instance decision makers.
There has been an intersecting development in the jurisdiction of appellate courts[13]. Despite legislation that confers broad powers on appellate courts to deal with the errors of trial judges, the Supreme Court has steadily diminished the role of intermediate courts of appeal through decisions on the standard of review[14].
This has the effect of giving even more power to first instance decision makers, who are increasingly insulated from review. Is this a good thing?
Recent psychological research shows the need for constraints on judicial power,. What our ancestors intuited from observation and experience, and passed into law and practice in order to constrain judicial power, psychology now demonstrates as necessary. Maybe we need rules more than we like to think. I would extend this observation to administrative tribunals.
Human Cognition and Judging
In recent years psychologists have studied the cognitive structure of the human mind, and there is a large body of American psychological research related especially to judges. I am going to lay some of it out for you, because it bears on the identification and use of Charter values in constitutional litigation, which in turn bears on the operation of the Rule of Law.
Psychologists now posit two basic cognitive structures or mechanisms in the human mind. The first is known as System 1. It is intuitive, relatively automatic, and responds quickly.
By contrast, System 2 involves deliberative thought. If a problem is too complex for System 1, System 2 takes over. But System 2 is energy-intensive, and people try to minimize its use. Psychologist Daniel Kahneman asserts that System 2 is lazy.[15] While it can do cognitively complex tasks, it seeks shortcuts wherever possible.
In an influential article entitled, “Blinking on the Bench: How Judges Decide Cases,” [16] the authors set out the psychological research, which shows that “judges generally make intuitive decisions but sometimes override their intuition with deliberation.”[17] They note the “importance of deliberation in constraining the inevitable, but often undesirable, influence of intuition.”[18] In short, they propose that, “judges should use deliberation to check their intuition.”[19] The authors believe “deliberative decision making is more likely than intuitive decision making to lead to just outcomes.”[20] This conviction is deeply rooted in our system of justice.
What emerges is this: the idea in making decisions is to expand reliance on the deliberative function of System 2 as a check on the gut reaction of System 1. In other words, the idea is to suspend judgment, and to use deliberative thought to assess the accuracy of one’s intuitive understanding.
What about justification, that is, the right reason for a decision? In a seminal 1929 article provocatively entitled “The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision,” Judge Joseph Hutcheson said this about the experience of the judicial hunch:
I speak now of the judgment or decision, the solution itself, as opposed to the apologia for that decision … I speak of the judgment pronounced, as opposed to the rationalization by the judge on that pronouncement.[21]
From these words, neuropsychologist Jonathan Haidt extracts this idea: “[J]udgment and justification are two separate processes. Judgment comes first, based on educated intuition; justification is undertaken next.”[22]
The work of justification falls to System 2 because System 1 is basically inarticulate. However, and this is the key point, Haidt and others argue that System 2 primarily functions to rationalize and explain the intuitive position reached by System 1. He says: “[R]eason is the press secretary of the passions or intuitions.”[23] Haidt draws the colourful image of System 2- controlled cognition, as a “small and somewhat ineffectual rider perched on the back of a large, powerful, and rather smart elephant.” He adds: “The [System 2] rider can try to steer the [System 1] elephant, and if the elephant has no particular desire to go one way or the other, it may listen to the rider. But if it has its own desires, it’s going to do what it wants to do.”[24]
Haidt does not deny that people can change their minds as the result of deliberation. As judges sometimes say to each other, the intuitive conclusion “won’t write”. This means that deliberative reason can find no path in reason to the outcome proposed by intuition, which therefore cannot be justified. It must be changed because it is wrong. The deliberative thought that goes into crafting reasons imposes a substantial check on the over-use of intuition.
However, Haidt asserts that “reasoned judgment” is “rather rare”.[25] The idea in adjudicating is to improve the quality of decision-making by reducing the rarity of reasoned judgment.
Why does Haidt assert that reasoned judgment is rare? Here we enter the mysterious workings of the human mind, particularly the role of cognitive illusions, or biases[26].
The research shows that “even though judges are experienced, well-trained, and highly motivated decision makers, they are vulnerable to cognitive illusions.”[27] Time does not permit me to lay out the cognitive illusions in detail, only to make several pertinent observations.
First, consider the framing effect. Advocates try to frame the question for judicial determination in a way that aligns with what they believe to be the natural sympathies of the tribunal. A case often turns on a dispute about what exactly is the real issue in question.
Recall the essential elements of rhetoric that good advocates use: ethos, pathos and logos. Ethos is about an advocate establishing credentials as a decent, trustworthy person, who is also competent. Pathos is about the motivation – what should move and compel the outcome. It focuses on the sympathies of a particular matter. The third element is logos, and is intended to provide the chain of reasoning that gets to the result the advocate wants the court to reach.
The advocate’s instinct turns out to be sound. The way a question is framed, and the way that the evidence is presented, does affect the way that judges answer it[28]. There is a reason why evidence in constitutional cases is increasingly presented in the form of stories and narratives; they are extremely affecting.
Each of the cognitive illusions can be managed with some success, albeit with great effort. With respect to framing, judges must be aware of the possibility that the frame is being manipulated by the advocates, and resist accepting a frame that is not reasonable or apposite to the circumstances.
Related to the cognitive illusion of framing is the strategy of directing tribunal attention. Advocates strive to “change the terms of the debate so as to win a case that cannot otherwise be won,”[29] because “[I]t is easier to redirect people’s attention than to change their mind.”[30] This explains the old idea that an advocate will emphasize the facts if they are favourable, but emphasize the law if the facts are not, and resort to the equities if both the facts and the law fall short. Here is where the emotion of the narrative bites especially deeply.
Emotional responses are the business of System 1.[31] Since, however, System 2 is often an apologist for System 1, more a cheerleader than a critic, a real question arises as to the role emotions play in adjudicative decision making.[32]
It is a fact that advocates do appeal to emotions and decision makers are routinely required to suppress their emotional reactions. It would obviously be inappropriate, for example, for a decision maker’s feelings for a party or an advocate to influence the outcome of a case.
However, the evidence is that “judges – like most adults – do not easily convert their emotional reactions into orderly, rational responses.”[33] When emotions take over, they distort deliberative reasoning, which can be transformed into “motivated cognition” or “motivated reasoning.” [34] When that happens, instead of an impartial assessment of the evidence and the arguments, the decision maker looks for evidence and arguments that support the desired outcome in a way that is not impartial.
This reflects the “confirmation bias”, which Jonathan Haidt notes, is one of:
[T]he most robust and ineradicable biases in the literature of cognitive and social psychology. It is the finding that when we evaluate a proposition, we don’t look for evidence on both sides and then weigh up which side is more likely to be true. Rather, we start with an initial hunch and then we set out to see if we can find any evidence to confirm it. If we find any evidence at all, we have confirmed the proposition, and we stop thinking.[35]
Haidt echoes Kahneman’s notion that System 2 is lazy. He observes: “It’s just so easy for us to go with our first judgment, and it is so difficult for us to seek out evidence that disconfirms that judgment.”[36] Haidt considers that “the confirmation bias among the most important psychological ideas that can be taught in a law school.” He adds, “This is one reason why it’s so valuable to have an adversarial legal system – somebody is appointed on each side to try to disconfirm the arguments of the other side.” I did not learn about the confirmation bias in law school.
“Result-selective reasoning” is the pejorative name for the kind of decision in which the evidence and arguments are marshalled by the judge in such a way as to reach the result that he or she favours, not to reflect fairly and fully the evidence and arguments on both sides of the case. It is built on the confirmation bias.
In the reasoning process, judges must take account of both sides of the story, not just decide the way they intuitively favour. Motivated reasoning is especially problematic, but it is also detectable, if judges are sufficiently introspective. Being in that mode should ring the judicial warning bell.
The strategy for coping with cognitive illusions has a number of dimensions. Every effort must be made to suspend judgment and to induce deliberative thought. In other words, after System 1 has flashed its intuitive answer, System 2 should be engaged to check it out without letting it take its own intuitive shortcuts.
As I noted earlier, the justice system itself has an intuitive understanding of these issues, as shown by many constraints on judicial power. These features of the justice system, in which I include tribunals, have evolving in order to encourage deliberative reasoning and to discourage over-reliance on intuition in making decisions. Given the nature of human cognition, discretionary decision making should be approached with great caution.
With that foray into the way our brains work and the implications for judicial decision making, I now turn to Charter values. My thesis is that the concept of Charter values poses special challenges for disciplined decision making by judges and tribunals.
II. The Language of Values
The use of values language is prevalent in our society. People speak of Canadian values, European values, religious values of various stripes, and so on. What do we mean when we use the term, “values”, which seems to have become “our ethical keyword?”[37]
What are the Charter values?
What is a Charter value? Where do Charter values come from? Is there anything to the notion that Charter values can give rise to new Charter rights, whatever the text of the Charter actually says? Are they legion, as some say is the implication of the Supreme Court’s decision in Doré?[38]
Lorne Sossin and Mark Friedman extract an ostensibly benign list of Charter values from the reported Supreme Court cases: liberty, human dignity, equality, autonomy, fairness, expressive freedom and privacy.
There are more Charter values in the jurisprudence, if you take the broad view. The Supreme Court identified a list of “cardinal” values in Oakes including: “respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.”[39] The Court later added “autonomy, liberty, equality and human dignity”[40] One could find others in the Québec Secession Reference, and elsewhere.
The list of Charter values is not closed. People argue that diversity and inclusion are Charter values[41]. No doubt there are many other possibilities.
Sossin and his co-author encourage tribunals with discretionary powers to use recognized Charter values “or, potentially, a novel value analogous to an existing Charter value”[42] in decision making.
The problematic next move would be to deploy these Charter values, even the novel ones, as though they have the same force as Charter rights. Can this be the right approach? I think not.
How has the Court Used Charter Values?
There is no doctrinal definition of what a Charter value is. Perhaps it is a concept best understood by watching how it has been used in legal reasoning. The cases have used Charter values in five different ways[43]:
- interpreting the Charter;
- developing the common law;
- interpreting statutes;
- reviewing the exercise of discretion in administrative law;
- engaging in proportionality analysis under s. 1 of the Charter.
The Supreme Court has recognized that a Charter values analysis should be avoided where it is not necessary[44]. The Court’s usually cautious approach to the use of Charter values is warranted.
- Interpreting the Charter
Chief Justice Dickson said that a purposive approach must be taken to the task of interpreting the Charter: ”To identify the underlying purpose of the Charter right in question, therefore, it is important to begin by understanding the cardinal values it embodies”.[45]. Earlier he had said that a guaranteed right or freedom “was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.” This, in turn, required the court to refer to “the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms…”[46]
However, consider Bastarache J.’s cautionary language: “’Charter values are an important concept that may help to inform a Charter right, but they cannot be invoked to modify the wording of the Charter itself.”[47]It is not the business of tribunals or courts to amend the constitution by creating novel Charter rights.
In carrying out a purposive analysis of the scope of a Charter right, courts must sometimes go behind the right to consider the human interests it is meant to serve. As an example, dignity is an important substrate to personal rights. Courts have invoked it from time to time. We can easily imagine other Charter values like equality and liberty working in that limited sense.
- Developing the common law
The Supreme Court has said: “the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution,” even though the Charter does not apply to private disputes[48]. The court has done so in many cases. I see this as uncontroversial.
- Statutory interpretation
The Supreme Court has been careful to limit the role Charter values can play in statutory interpretation to those instances where the legislative text is ambiguous, in the sense that one or more meanings are available that are equally in accordance with the intentions of the statute.[49] Absent such ambiguity, Charter values have no role to play in statutory interpretation.
Justice Abella stated in Gomboc that the application of Charter values “cannot be used as a freewheeling deus ex machina to subvert clear statutory language, or to circumvent the need for direct Charter scrutiny with its attendant calibrated evidentiary and justificatory requirements.” [50] This is strong language, and I agree with it.
I need to do a little more groundwork on Charter rights and permissible limits on them to make sense of the next two judicial uses of Charter values, that is, in reviewing the exercise of discretion in administrative law, and in proportionality analysis under s. 1 of the Charter.
Some groundwork on Charter rights and permissible limits
The basics are settled law. The Charter expressly provides for certain individual rights such as freedom of conscience and religion (s.2(a)), security of the person (s.7), and from discrimination (s.15). If legislation, or state action such as a discretionary decision of an official, limits a claimant’s express Charter right, the claimant is entitled to a remedy unless the state can show the limit is reasonable and “demonstrably justified in a free and democratic society,” under the test in s.1 of the Charter.
Where a Charter right is engaged, the process is formal. The claimant bears the burden of proving the limit, and the Crown or other state actor bears the burden of justifying the limit, under the s.1 proportionality analysis established by the Supreme Court in Oakes[51].
The court must determine first, whether the purpose of the law is pressing and substantial, and second, whether the means by which that purpose is advanced are proportionate. The proportionality analysis asks three questions: (1) is the limit rationally connected to the purpose? (2) Does the limit minimally impair the right? (3) Is there proportionality between the deleterious and salutary effects of the law?[52]
With that background, I now return to the next judicial use of Charter values:
- Reviewing the exercise of administrative discretion
Reviewing courts must keep in mind two basic things in assessing the reasonableness of a tribunal’s decision. The first is that the legislature has chosen to confer decision making power in a particular area on a specialized tribunal, and that legislative choice must be respected. The second is that the right decision is often not obvious, and the tribunal’s expertise and “field sensitivity” in making the choice must also be respected[53].
“Reasonableness” is the customary standard of deference shown to a tribunal.[54]The tribunal’s decision will be quashed only if it is determined by the court to be unreasonable.
How does the Charter factor into administrative decision making?
Discretionary decision makers are obliged to take the Charter into account.[55] In Slaight, the Supreme Court created a staged structure for relating the Charter to the tribunal’s tasks. But that structure did not make practical sense in situations where tribunals heard all of the evidence and all of the argument together.
Then came Doré. At issue was whether the Barreau du Quebec had violated Doré’s freedom of expression under s. 2(b) of the Charter by penalizing him for criticizing a superior court judge. The Quebec Court of Appeal applied the Oakes analysis under s. 1 of the Charter and upheld the penalty. The Supreme Court dismissed Doré’s appeal but took the administrative law approach.
Justice Abella stated that the administrative law framework and the Oakes test could be reconciled in the proportionality calculus[56]. In reviewing an administrative tribunal decision that implicates or engages Charter values, a court should move to the proportionality analysis and should not undertake the more rigorous Charter analysis.
Justice Abella explained that in applying “Charter values in the exercise of statutory discretion” an administrative decision-maker “balances the Charter values with the statutory objectives.” This is a two-step process, in which “the decision-maker should first consider the statutory objectives.” Second, “the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives.” The reviewing court must give a “margin of appreciation”, or deference, to administrative bodies in their balancing of Charter values against broader objectives.[57]
The difficulty with Doré is that Abella J. used the language of “Charter values” throughout and made no effort to distinguish Charter values from Charter rights, even though Doré had directly challenged the Barreau’s sanction as an infringement of his Charter right to freedom of expression.
Doré caused consternation in academic and legal circles, [58]and some delight[59].
The confusion grew with the Supreme Court’s later decisions in several religious freedom cases. In Loyola, a case about curriculum control in a Catholic private school, the majority, led by Abella J., applied Doré, but the minority did not use the analysis at all[60].
And then in Saguenay, a case about whether a municipal pre-meeting prayer limited the claimant’s right, none of the judgments referred to Doré[61].
Next, in Ktunaxa the majority did not refer to Doré, while the concurring minority relied on it[62].
Quite apart from uncertainty about the juridical status of Doré, the Doré/Loyola framework poses some serious conceptual difficulties, as I pointed out in E.T. v. Hamilton-Wentworth District School Board. The confusion results from the failure to make a clear distinction between Charter rights and Charter values.
Justice Abella J. stated in Loyola that, under Doré, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue.”[63] This would not be a problem if Charter values were at play, not Charter rights. However, the language she used seems to suggest that the statutory objectives have indefeasible priority over Charter rights, which would be contrary to the Oakes methodology.[64]
Let me, in these somewhat murky circumstances, be somewhat bold. In my view, it would be an error to collapse the two legally distinct concepts of Charter rights and Charter values[65].
Perhaps reviewing courts should draw a bright line between cases in which a party claims that a Charter right has been limited, and cases in which Charter values are merely implicated.
Where there is a claim that a Charter right has been limited, a first instance adjudicative decision maker and the reviewing court should conduct a full Charter review, both on the issue of whether the claimant’s Charter right has been limited, and on whether that limit was demonstrably justified. In the case of a line decision maker like a school principal or a hospital bureaucrat, to pick out two examples, the reviewing court should do so. In the analysis, the Charter right must be privileged over the statutory objective. This is the implication of s. 52, which makes the Charter supreme.
However, where Charter values are only engaged or implicated, the decision maker need not do a full Charter rights review, but should have regard to the implicated Charter value in making a decision that is consistent with its statutory objectives. The reviewing court should take an administrative law approach.
Why should a bright line be drawn between cases in which there is a claim that a Charter right has been limited, and cases in which Charter values need only be considered? There are several reasons.
First, it is not only reasonable but obligatory in a constitutional democracy with a Charter of Rights and Freedoms to give priority to express constitutional rights. The Charter effected a negotiated constitutional settlement in 1982. The negotiating parties picked out only some moral commitments and made them into enforceable rights in order to limit state action to some extent. It left others out. There are good reasons for that, philosophical, practical, and political. Hence the ongoing importance of attending to legislative intent if we really mean to be a constitutional democracy[66].
The reasons for the specification of only some rights in the Charter are not hard to fathom: many of the underlying concepts are amorphous by nature, so it is hardly surprising that they were not adopted as enforceable Charter rights that would serve to limit state action. They are not justiciable in the traditional sense. Western society has been contending with the meaning of justice, for example, for thousands of years, with no end in sight. The same could be said of many of the other Charter values such as dignity, autonomy and liberty.
Maintaining an active distinction between Charter rights and Charter values would acknowledge that even if we identify the underlying value to a Charter right, it is plain that the framers did not recognize that value as a Charter right in itself. We need to be able to reconcile that value with the rights specified in the Charter so as to ensure we are not supplementing the Charter, or effectively amending it, in the guise of interpreting it[67].
Second, there is the problem of indeterminacy. The amorphous and vague nature of Charter values means that they provide relatively little real decisional guidance. They do not form a discrete set, like Charter rights. And the identification of Charter values has been ad hoc. Sometimes they confusingly and unnecessarily track the language of an enumerated right in circumstances where the right clearly applies, as in Doré.
The problem of indeterminacy is not small. Charter values have often been cast at a high level of abstraction — as concepts such as justice, liberty, autonomy and dignity[68]. The meaning of these concepts — and their juridical application — is both contestable and contested.
Third, there is a serious problem with subjectivity in the identification and application of Charter values. As my colleague Justice Miller and I said in Gehl:
Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application. Their use injects a measure of indeterminacy into judicial reasoning because of the irremediably subjective — and value laden — nature of selecting some Charter values from among others, and of assigning relative priority among Charter values and competing constitutional and common law principles. The problem of subjectivity is particularly acute when Charter values are understood as competing with Charter rights.[69]
The concept of Charter values is loose and readily lends itself to an increase in discretion.
Fourth, the interaction of Charter rights and Charter values poses problems for judicial reasoning. These relate to the lack of clarity about the subordinate relationship of Charter values to Charter rights, the plurality of Charter values, and their uncertain relationship to each other and to constitutional and common law principles. We noted in Gehl that multiple Charter values can simultaneously apply in a given dispute, and can easily be in conflict[70]. We added that “although equality seems like an apposite value, it is a capacious concept that goes beyond the legal right established in s. 15 of the Charter.” As the Supreme Court has observed, every conception of equality “is at once a psychology, an ethic, a theory of social relations, and a vision of the good society”[71].
How are we to determine the outcome when Charter rights and Charter values compete with each other? The risk is not small that an appeal to Charter values could pre-empt Charter rights analysis and subordinate Charter rights. However, a party bringing a Charter challenge is entitled to a judicial determination of whether the Charter right has been limited, and the state actor must have the opportunity to argue that such a limit is justified under s. 1 of the Charter[72].
In my view, the Rule of Law would be compromised if the authority of adjudicative tribunals to consider Charter values were coupled with deferential standard of judicial review that requires tribunal decisions only to be reasonable, not necessarily correct.[73] The troubling prospect is that two panels of different tribunals, or panels of the same tribunal, could disagree about the scope and treatment of a particular Charter value and reach different results in a similar situation without any reconciling judicial oversight.
The majority of the Supreme Court in Saguenay did not think this was desirable, and applied a “standard of correctness to the question of law concerning the scope of the state’s duty of neutrality that flows from freedom of conscience and religion”. Justice Gascon explained, “I find that the importance of this question to the legal system, its broad and general scope and the need to decide it in a uniform and consistent manner are undeniable.”[74] Justice Abella alone would have reviewed on the reasonableness standard. This is now the active debate.
So, what is the problem with Charter values? The problem is conceptual. The idea of Charter values, on close examination, is an almost empty idea.
The Almost Empty Idea of Charter Values
Listen to a point made by the pragmatist philosopher John Dewey in 1923, long before the use of this word, “value”, became prevalent:
Speaking literally, there are no such things as values. There are things, all sorts of things, having the unique, the experienced, but undefinable, quality of value. Values in the plural, or a value in the singular, is merely a convenient abbreviation for an object, event, situation or res, possessing the quality… [D]iscussion of the theory of values and goods, whether moral or esthetic, manifests a tendency to forget the concrete things to which the value-quality is attached. Thus it is said that liking constitutes values.[75]
Note that the term “value” is not primary, but derivative. It is a second order concept. The value of a thing derives from the thing itself, whether it is an object or a concept, even though it is possible to consider value in the abstract. Note also that the term “value” has a vaguely positive connotation. Something that has value is valuable and worth valuing and wanting. That positive connotation smuggles in an emotive quality that has some vague but real influence in reasoning.
As with most language in active use, the meaning of “values” is morphing over time. You might join with Canadian philosopher George Grant in deploring the way in which the term “values” has displaced earlier and much more precise moral language like ”good”, “virtues”, “principles” and “beliefs.” [76] However, I would argue that, paradoxically, the term “values” seems to be absorbing some of the moral content of the terms it displaced.
In general usage, “values” are understood to be matters of subjective opinion on which people can differ. But some, perhaps increasingly, many “values” do make moral claims that impose constraints on behaviour and on thinking. In short, some values are treated as correct opinions that people must be constrained by, if not compelled to adopt.
The tendency Dewey observed to forget the concrete is precisely what Peter Westen took aim at in his seminal article entitled: “The Empty Idea of Equality”:
[A]lthough equality is derivative, people do not realize that it is derivative, and not realizing it, they allow equality to distort the substance of their decision making…[I]t gives an aura of revealed truth to whatever substantive values it happens to incorporate by reference. As a consequence, values asserted in the form of equality tend to carry greater moral and legal weight than they deserve on their merits. That is why arguments in the form of equality invariably place all opposing arguments on the “defensive.”[77]
Westen argued that equality is just a stalking horse for the particular form of treatment the advocating party wants to claim as worthy of equality protection. These same observations could be made of other Charter values like liberty, autonomy and dignity.
This is exactly the role that a motivated advocate wants an identified Charter value to play in constitutional adjudication. Labelled as a Charter value, a concept gains immediate and perhaps winning gravitas. In actuality, the selection and labelling of a Charter value in a particular case is intended to facilitate result-selective reasoning.
Let me drill down a bit more on the process of identifying and labelling a Charter value. Looked at carefully, the cases bring into sharp relief the subjective nature of decisions invoking Charter values, and the lack of transparency in the reasoning process leading to their identification and adoption.
Invariably the concept is being used to identify a particular moral commitment that the sponsor asserts is desirable and that should accordingly be given some constitutional weight. But there is never an explanation about why that is. It is simply declared as self-evidently good. And if something is a fundamental moral good, the thought runs, something that all right thinking people must agree to, then it must in some way proceed from the Charter, which is our national commitment to a consensus of fundamental goods. And if it proceeds from the Charter, then it must be a commitment that is both shared and beyond debate.
This is catnip to many decision makers, including judges. There is great joy in donning the moral mantle, something bracingly affirming about finding and labelling a moral commitment as a Charter value. Putting it romantically, perhaps, the declarant can claim to be standing in the mid-stream of the river of justice that flows out from the Charter. This is an intoxicating exercise of sovereign power[78].
The Charter values approach excuses the decision maker from the step of justification, because all the normative work is done off-stage in selecting the Charter value. Advocates spend their time constructing competing Charter values to arrange a “collision of dignities”[79], rather than engaging on the substantive issues and the facts.
Put bluntly, the term “Charter value,” serves in practical terms as a rhetorical device that supplants what should be a transparent analytical process. This is the mischief.
I turn now to the fifth use of Charter values, in the proportionality analysis under s. 1 of the Charter.
- Engaging in proportionality analysis under s. 1 of the Charter.
Earlier I said that the problem with Charter values is conceptual, that the idea of Charter values, on close examination, is an almost empty idea. Why did I hedge? Because I think the idea does play a useful role, and that Charter values do state important moral commitments decision makers should take into account where they are relevant.
What underlying interests are the competing moral commitments striving to advance, protect or instantiate? Are any of the competing moral commitments Charter rights? If they are, how should we sort out the contest under the proportionality test in s. 1 of the Charter?
In a classic article, Frederick Schauer built on Westen’s thinking. He said:
Some terms, like “liberty” and “equality”, are pervasively indeterminate. It is not that such terms have no content whatsoever; it is that every application, every concretization, every instantiation requires the addition of supplementary premises to apply the general term to specific cases[80].
To put the point more plainly, when one asserts that the Charter value at issue in a case is equality, one should then be compelled to explain in respect of which interests, concretely, equality is being asserted.
Does the claimant, for example, assert a claim to treatment that engages the classic choice between equality of condition, and equality of opportunity? The search for the deep issue involves repeatedly asking, “And what does that turn on?” Only when that question cannot again be reasonably asked has one hit the deep issue. Once that is done, the real interests are fully revealed, and the analysis can proceed.
The same approach holds for assertions that the Charter values of dignity, liberty or autonomy are relevant to resolving the dispute. What are the ultimate interests that are engaged, and are they really engaged?
Charter values are almost empty vessels, proxies for the underlying interests that are actually engaged in the dispute. Analytically, it is those interests that must be evaluated. They should not be masked or obscured by a label.
These are the concrete interests that must be considered in the proportionality analysis under s. 1 of the Charter, in each element of the Oakes test. Rather than stop at bandying labels, the parties must bear down on the analysis, the facts, and the evidence.
In a more recent work, Schauer said this about proportionality analysis under the Charter:
We need some way to conceptualize not only the way in which rights may at times compete with other rights, but also, and more importantly, the way in which rights are superior to but neither trumping nor excluding non-rights-based interests and other considerations.[81]
Schauer proposes a rule of weight in which Charter rights do have more weight, but not necessarily trumping weight, in proportionality analysis. Charter values are not Charter rights, but they can signal interests and moral commitments that courts and other decision makers must take into account in proportionality analysis.
The label “Charter value” seeks to justify setting apart a certain moral commitment as a Good Thing worthy of a preference in the proportionality calculus. But whether it is or is not worthy really should not depend on rhetoric, but on how the concrete interests of the contending parties sort out.
Concluding Comments
Consider this troika: first, the advent of unbridled Charter values; second, the requirement of appellate deference to first level courts and especially to administrative tribunals; and third, the increasing resort to proportionality analysis. This troika could serve to magnify enormously the discretion of administrative decision makers and first instance judges sitting alone.
Would this be a good thing? Could this expansion of discretion diminish the role of the elected legislature? Could it undermine the basic constitutional idea of the separation of powers, and fidelity to the constitutional text and to the Rule of Law?
Would it be a wise move to get the Charter values genie back into the Charter rights bottle? I would say NO. Charter values have some moral content and they have their uses. It is the abuses we must guard against.
In our culture we do not understand judges to be Plato’s “golden-souled philosopher kings”, disinterested and dispassionate[82]. We understand that judges are imperfect human beings. The psychological research demonstrates that the broader the range of unbridled discretion open to a decision maker, the more likely it is that cognitive illusions, personal biases and attachments, will play a role in decisions. And this is just wrong.
We judges cannot do whatever we like. We are guardians of the Rule of Law and are also bound by it. It is a hedge against the abuse of power, including the power of judges. The system of justice rightly expects we judges to honour our oaths and do the right thing for the right reason, and in the right way, according to law. But we need the support of the Rule of Law, in all of the mundane elements I laid out earlier, to keep us on the right track, and off the wrong track of embedding our subjective moral commitments in law.
Justice Abella rightly asserted in Gomboc that the application of Charter values “cannot be used as a freewheeling deus ex machina to subvert clear statutory language, or to circumvent the need for direct Charter scrutiny with its attendant calibrated evidentiary and justificatory requirements.”
Just so.
Notes
[1] It is also implicit in the preamble to the Constitution Act 1867.
[2] Quebec Secession Reference [1998] 2 SCR 217, at para. 32
[3] Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142.
[4] Quebec Secession Reference at para 71. See also British Columbia v Imperial Tobacco Canada [2005] 2 SCR 473, at para. 58.
[5] Dicey envisaged the English legal system as a system in which all the rules of law were completely stated so that the courts would not be required to exercise any policy judgment in the application of the law. In short, he thought that discretion was a bad thing. In Dicey’s original formulation, all administrative decision makers would be subject to the oversight of superior courts. The Supreme Court gave this attribute constitutional weight in Crevier [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1. The Rule’s requirements have been the subject of on-going debate from the days of Aristotle, Cicero, and Aquinas, to Blackstone and Dicey, to the present.
[6] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 52.
[7] James L.H. Sprague, “Another View of Baker” (1999), 7 R.A.L. 163 at 164.
[8] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
[9] But see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.
[10] R. v. Sheppard [2002] 1 S.C.R. 869 per Binnie J. at para. 55. See also Clifford v. OMERS 2009 ONCA 670. See also Vancouver International Airport Authority v Public Service Alliance of Canada 2010 FCA 158, at para 16.
[11] Ronald Dworkin, Taking Rights Seriously, (London: Duckworth, 1977), at 22-28.
[12] Robert J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: U of T Press, forthcoming). See also Frederick Schauer in “Formalism”, (1988) 97 Yale Law Journal 509, who identifies the advantages and disadvantages of rules.
[13] In Ontario by the Courts of Justice Act R.S.O. 1990, c. C.43
[14] Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633.
[15] Daniel Kahneman, Thinking, Fast and Slow, (Anchor Canada, 2011).
[16] Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Blinking on the Bench: How Judges Decide Cases” (2007) 93 Cornell L. Rev. 1; I will cite a number of their articles, and, for simplicity, in this talk I will refer to them as “the authors”. Most recently, see Jeffrey J. Rachlinski & Andrew J. Wistrich, “Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It”, in Enhancing Justice: Reducing Bias 99 (Sarah E. Redfield, Ed., 2017).
[17] “Blinking” above at p. 3.
[18] Above at p. 3.
[19] Above at p. 5.
[20]Above at p. 6.
[21] Hutcheson, “The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision” (1929) 14 Cornell Law Quarterly 274 at p 279.
[22] Jonathan Haidt, “Moral Psychology and the Law: How Intuitions Drive Reasoning, Judgment and the Search for Evidence” (2013) 64 Ala. L. Rev. 867 at p. 868.
[23] Haidt, at p. 871.
[24] Above at p. 870. See also Hugo Mercier and Dan Sperber, “Why Do Humans Reason? Arguments for an Argumentative Theory” (2011) 34 Behavioral and Brain Sciences 57.
[25] Above at p. 873.
[26] Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Inside the Judicial Mind” (2001) 86 Cornell L. Rev. 777 at p. 780-82.
[27] Above at p. 782.
[28] Mercier and Sperber, “Why Do Humans Reason? Arguments for an Argumentative Theory” at p. 70.
[29] Jeffrey J. Rachlinski, Andrew J. Wisterich and Chris Guthrie, “Altering Attention in Adjudication” at p.1588.
[30] Above at p. 1588.
[31] Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Blinking on the Bench: How Judges Decide Cases” at p. 7.
[32] Haidt, “Moral Psychology and the Law: How Intuitions Drive Reasoning, Judgment and the Search for Evidence” at p. 871; Kahneman, Thinking, Fast and Slow, at p. 103.
[33] Andrew J. Wisterich, Jeffrey J. Rachlinski and Chris Guthrie, “Heart Versus. Head: Do Judges Follow the Law or Follow their Feelings?” (2015) 93 Texas L.R. 855 at p. 863.
[34] Above at p. 869, 911; Mercier and Sperber, “Why Do Humans Reason? Arguments for an Argumentative Theory” at p. 66.
[35] Haidt, “Moral Psychology and the Law: How Intuitions Drive Reasoning, Judgment and the Search for Evidence” at p. 873. And see Kahneman, Thinking, Fast and Slow, at p. 81.
[36] Haidt, “Moral Psychology and the Law: How Intuitions Drive Reasoning, Judgment and the Search for Evidence” at p. 873. See also Kahneman’s modest conclusions at the end of his long book, Thinking, Fast and Slow, at p. 416-417.
[37] Mark Antaki, “The Turn to “Values” in Canadian Constitutional Law” in Luc B. Tremblay and Gregoire C.N. Webber eds.,The Limitation Of Charter Rights, Critical Essays on R. v. Oakes, (Les Editions Themis, 2009) at p.176
[38] Lorne Sossin and Mark Friedman have proposed a framework to be used by administrative tribunals that builds on the Supreme Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395. See Lorne Sossin & Mark Friedman, “Charter Values and Administrative Justice” (2014) 13 Osgoode Legal Studies Research Paper, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=23898099>, accessed January 19, 2017, (2104), 67 S.C.L.R. (2d) 391, [“Sossin & Friedman”].
[39] R. v. Oakes [1986] 1 S.C.R. 103 at
[40] R. v. Labaye, [2005] 3 S.C.R. 728, at para. 33
[41] E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893.
[42] Sossin & Friedman, at 26.
[43] I have benefited from reading the unpublished doctoral thesis of my colleague Justice Bradley Miller, Attitudes towards moral standards in the adjudication of the Supreme Court of Canada from 1982 to 2002 (2003). See also Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism”, (2014), 67 SCLR (2d) 361.
[44] See also Gehl v AG (Canada) 2017 ONCA 319. In this paper I use the decisions in Gehl and in E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893, occasionally without attribution.
[45] R. v. Oakes [1986] 1 S.C.R. 103, at para. 28.
[46] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at para. 116, 117.
[47] Gosselin v. Quebec [2002] SCJ No 85, at para. 203.
[48] RWDSU v. Dolphin Delivery Ltd. [1986] 2 SCR 573 at para. 36. At issue was whether secondary picketing in a labour dispute engaged freedom of expression under s 2(a) of the Charter.
[49] Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 28, 60-66. This principle was affirmed most recently in Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 25.
[50] R. v. Gomboc, [2010] SCJ No 55, at para. 87
[51] R. v. Oakes, [1986] 1 S.C.R. 103
[52] Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.
[53] Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190, at para. 47. And see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) [2011] S.C.J. No. 62 at para. 47 [NFL Nurses’ Union].
[54] Ibid. at para. 46.
[55] Slaight Communications Inc. v. Davidson [1989] 1 S.C.R. 1038; Nova Scotia (Worker’s Compensation Board) v. Martin [2003] 2 S.C.R. 585; Conway 2010 SCC 22.
[56] Doré, para.5
[57] Doré, at paras. 55-57
[58] Paul Daly “The Court and Administrative Law: Models of Rights Protection” (2017), 78 S.C.L.R. (2d) 99, David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Cosistency” (2016) 42 Queen’s L. J. 27, Sossin and Friedman.
[59] Sossin and Friedman.
[60] Loyola High School v. Quebec (Attorney General) 2015 SCC 12 [2015] 1 S.C.R. 613.
[61] Mouvement Laique Quebecois v. Saguenay (City), 2015 SCC 16.
[62] Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) 2017 SCC 54
[63] para. 4 of Loyola
[64] E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893 at para 111. Applying the Doré/Loyola framework to a line decision maker, not an adjudicator, also raises some serious difficulties that the Supreme Court has not addressed.
[65] This was the majority’s view in Multani v. Commission Scolaire Marguerite-Bourgeoys 2006 SCC 6, expressed by Charron J. at paras. 15-16, which Doré displaced. Paul Daly noted the “risk that eliding the distinction between administrative review and constitutional review will weaken the latter.” Paul Daly “The Court and Administrative Law: Models of Rights Protection” (2017), 78 S.C.L.R. (2d) 99, 115.
[66] See Grant Huscroft & Bradley Miller, eds., The Challenge of Originalism (Cambridge University Press, 2011).
[67] See Gosselin, per Bastarache.
[68] Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613.
[69] See Gehl..
[70]At para. 82. For example, in Gehl we noted that the Charter value of equality potentially competes and conflicts with the autonomy and liberty of native bands, principles that were identified as Charter values in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 44-48, and which, according to the s. 1 Charter evidence tendered in Gehl, informed the compromise that underlies s. 6 of the Indian Act.
[71] in adopting the words of J.H. Schaar in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, at para. 26 (QL).
[72] Symes v. Canada, [1993] 4 S.C.R. 695, [1993] S.C.J. No. 131, at para. 105 (QL) [per Iacobucci J.].
[73]Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, [2008] 1 S.C.R. 190, 2008 SCC 9 (S.C.C.); Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] S.C.J. No. 62, [2011] 3 S.C.R. 708, 2011 SCC 62, at para. 47 (S.C.C.).
[74] Saguenay, at para. 51.
[75] John Dewey, “Values, Liking and Thought” (1923) 20 J. of Philosophy 617. The genealogy of the term is beyond the scope of this talk, but I want to pick out several important steps along the way. See Antaki.
[76] George Grant, Time as History (Toronto: Canadian Broadcasting Corporation, 1969) 44-45. Joseph Power “Grant’s Critique of Values Language” in George Grant in Process, Larry Schmidt ed. (Toronto: Anansi, 1978) 90 at 94. “Grant is saying, as forcefully as he can that “values” is not what has been meant by “the good”.” See Iain T. Benson, “Civic Virtues and the Politics of “Full Drift Ahead”, The Acton Lecture:2017 (Sydney: Centre for Independent Studies, 2017) https://www.cis.org.au/publications/occasional-papers/acton-lecture-2017-civic-virtues-and-the-politics-of-full-drift-ahead/
[77] Peter Westen, “The Empty Idea of Equality” (1982) 95 Harv. L. R. 537, at pp. 593-93.
[78] See Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (Columbia University Press, 2011). Kahn asserts that “The American Supreme Court founds its claim for legitimacy on its capacity to speak in the voice of the transhistorical sovereign” (at 13). When it does so, Kahn argues that the court is making law as the sovereign. The same could be said for any court making a decision in the progress of the case to the final court. At 145, Kahn says that the same observation applies to Canada.
[79] Chamberlain v Surrey School District No. 36 [2002] 4 S.C.R. 710, per Gonthier J. at para. 132.
[80] Frederick Schauer, “Formalism”, (1988) 97 Yale L. J. 509 at 514.
[81] F. Schauer, “Proportionality and the Question of Weight” in Huscroft, Miller & Webber, Proportionality and the Rule of Law (Cambridge University Press, 2014) at pp. 178-79, and see 173-78.
[82] Plato, The Republic (473 d)
