In Vavilov, the Supreme Court of Canada held that, to the extent possible, the law of judicial review should “develop and strengthen a culture of justification in administrative decision making” (Vavilov, at para 2). What is this culture of justification as adopted in Vavilov? It asks decision-makers to ensure that their exercise of delegated public power can be justified to citizens (Vavilov, at para 14). To achieve this goal, the Court adopts a “reasons-first” approach that asks decision-makers, where required, to provide cogent reasons for their decision. For the Court, “…the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable .
In theory, the culture of justification is a necessary though not sufficient condition for the legality of administrative action. As advanced by scholars like David Dyzenhaus and Jerry Mashaw, the culture of justification ensures that decision-makers are not making decisions behind closed doors. As I have wrote elsewhere, a true culture of justification can serve two functions. On one hand, it serves the function of justifying a decision to an affected party. A reasoning requirement that asks decision-makers to show their work prevents reliance on boilerplate, common in many administrative settings: see Osun, at para 26. On the other, it serves the function of justifying a decision to an eventual judicial review court. While the culture of justification works in a world of deference to administrative interpretations of law, it allows courts to determine whether the reasoning of a particular decision “lines up.” In this way, courts can ensure that administrative decisions are not “immunized” from review: see Canadian Council of Refugees, at para 105.
Where the culture operates, it will make decisions better off on the whole. It will, one hopes, make administrative decisions more acceptable to those subject to those decisions. Even if the decisions made in relation to these individuals rejects their particular claim, people may be more likely to accept decisions (within a certain acceptability range) that are justified to them. Additionally, courts can more easily police administrative action if reasons are offered, as a window into the decision.
But the culture of justification–like all theories–has its limits, acknowledged or unacknowledged. It is important to at least keep these limits in mind. At least three are relevant. This is not a knock on the theory itself. After all, theories do not address all possible phenomenon. However, frankly acknowledging theoretical limits is an important task for legal scholars.
First, reasons are not always required as a matter of procedural fairness. Where reasons are not required, the culture of justification that the Supreme Court envisions has less force. While there many be good reasons for this approach to reasons—instituting a reasons requirement across all administrative settings would be terribly inefficient—we should be aware of the trade-off. What we trade-off in justification and an assurance of legality, we get in efficiency. This is a limit to the work a “culture of justification” can do in the edifice of Canadian administrative law.
Secondly, sometimes “reasons” in a formal sense are not given in the context of certain administrative settings. This possibility was addressed in Vavilov, at paras 137 et seq. The Court admits to the problem in this case: “…applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided” (Vavilov, at para 137 et seq). Where a municipality passes a bylaw, for example, no “reasons” are offered. This is common in activity that might be called “legislative” in nature.
In such a situation, the Court leaves open the possibility that courts can look to the record. This was a legitimate pre-Vavilov tool to consider the reasonableness of a decision. And of course, this method is consistent with the idea of judicial review being “on the record.” But what happens were a record is not available? The Court admits that “…it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process” (Vavilov, at para 138).
I have to applaud the Court for the honesty in this particular passage, but for the strength of the “culture of justification” as a centerpiece of Canadian administrative law, it is not promising. This is so for two reasons. First, the culture of justification is closely related (at least in the work of Dyzenhaus) to the democratic pedigree of administrative government. For now, let’s take this argument on its face. The idea of democratic pluralism is in turn connected to the idea of deference; turning over questions of law to resolution by administrators is a choice related to the legislative choice to delegate in the first place, a recognition of the legal legitimacy of administrative action. When a court simply focuses on the outcome rather than the reasoning, there is a chance that judicial review could ostensibly lead to “disguised correctness review,” undermining this choice to delegate. To my mind, there are few satisfactory answers to this. It is an acknowledged limit on the idea of a culture of justification.
At the same time, a focus on outcome can insulate administrative decisions from review. One ground, contemplated by Vavilov, for an unreasonable decision is where the justification for a decision and an outcome simply do not add up (Vavilov, at para 102 et seq). Where there is slippage between a justification and an outcome, a decision is more likey to be legally questionable. Without the benefit of justification, courts must take the legitimacy of an administrative decision’s outcome at face value.
Finally, there is a more pressing issue. Some administrative settings simply resist justification and disclosure—either by statute or policy— preventing the creation of a proper record. The problem with the culture of justification is that it is an ideal-type: it seems to presume a sort of administrative actor that can and does offer cogent, legally-relevant reasons for its action. Yet this simply is not the case. Two examples come to mind. First, a recent example arose in the Federal Court of Appeal in Portnov, which concerned the promulgation of regulations. The Court noted in that case that, as Vavilov holds, “[t]he requirement that a reasoned explanation for an administrative decision be discernible is one that depends on the context, including the nature of the administrator…(Portnov, at para 53). In this case, the Court says:
the context is a sensitive one, with confidentiality concerns relating to international relations, state-to-state communications, and the location and recovery of property that may have been misappropriated. For practical and legal reasons, the Governor in Council is limited in what it can provide by way of explanation
(Portnov, at para 53).
For that reason, “it would be inappropriate for a reviewing court to translate Vavilov’s requirement of a reasoned explanation into an obligation on the Governor in Council to provide a complete, comprehensive, public explanation why it extended the 2014 Regulations” (Portnov, at para 54).
Here, the culture of justification is present, but in the background. In the foreground are the legal and practical reasons why this particular decision-maker cannot provide an ideal explanation for administrative action.
Similarly, the Court took pains to outline how, in these restrictive circumstances, Portnov could get additional disclosure (see Portnov, para 51). But this disclosure is something an applicant would have to fight for using the Federal Courts’ Rules. In some circumstances, this will be difficult. And so the record that could plausibly support a challenge to administrative action may be sparse.
Finally, it is worth noting another administrative setting that resists justification. Prisons are traditionally known as “lawless agencies” where the Rule of Law struggles to find a home. As Professor Kerr says, “the risk of delegated authority is that important features of incarceration will be designed and delivered far from the public and even the political eye” (Kerr, 91). In many cases, “[t]here are few reasons to believe that prison policies reflect the reasoned preferences of either the public or elected officials” . Disclosure—related to the creation of a proper record—is also limited under the Corrections and Conditional Release Act where the Commissioner has certain “reasonable grounds” that disclosure would jeopardize the safety of a person, the security of a penitentiary, or the conduct of a lawful investigation (s. 27(3) of the CCRA). These, in some cases, are legitimate reasons to refuse disclosure. But they are general grounds that are often supported by various internal policies and procedures, and of course, it is in the Commissioner’s (staff) discretion to withhold information. In this case, the culture of justification takes the form of the administrative setting.
More generally, a culture of justification presupposes a democratic endeavour in which, as Genevieve Cartier notes, the discretionary administrative process triggers “a process of communication between the decision maker and the individual concerned, in a way that prevents the former from unilaterally imposing its decision on the latter” (Cartier, at 644). Yet this general idea does not cash out in many administrative settings. Perhaps prisons are an extreme example–but it would be a tall order for anyone to argue that a refugee seeking protection in Canada is, in any meaningful sense, in a justificatory “dialogue” with Immigration Canada. At a certain point, the “dialogue”–if it ever existed–will end. A decision will be made. And that decision will have effect not because of its justificatory value, but because someone is willing to enforce it.
This leads to the conclusion. The culture of justification is a useful theory that can legitimize, at least in part, some administrative action. But to call it a centrepiece of Canada’s law of judicial review fails to acknowledge its limits. This is not a strike against the theory itself. Rather, it is an acknowledgment that courts and legislatures may have to work harder in certain administrative settings to ensure that public action is legal and justified.