Indi’s MLQ v Saguenay review: Abella’s dissent

Aside from its obvious appeal to secularists and human rights activists, the Mouvement laïque québécois v Saguenay (City) ruling also set some important precedents in Canadian administrative law.

Administrative law is one of the three main branches of law in public (as opposed to private) law Canada (the other two are Constitutional law and criminal law). Broadly speaking, it is the branch of law dealing with the administration of the state of Canada. It concerns itself with whether the government and its agencies are properly carrying out the duties that Parliament has assigned to them, and that whatever government is doing is fair and legal.

At issue in MLQ v Saguenay were administrative tribunals, also called “administrative panels” or “administrative decision makers” (though that is more properly what the “judge” of an administrative tribunal is called). These are special bodies created by Parliament to handle specific duties and functions in running the government’s business, and interacting with the citizenry. Examples include:

• the Immigration and Refugee Board of Canada;
• the Occupational Health and Safety Tribunal Canada;
• the Canadian Broadcast Standards Council; and,
• the Privacy Commissioner of Canada.

These are not technically courts, because they are ‘outside’ of the court system proper. However, they often work a lot like courts, hearing cases in an adversarial manner before a ‘judge’ – called a ‘decision-maker’ in an administrative tribunal – where each side argues, usually through lawyers, its case. Their decisions are usually able to be appealed, too, and are often subject to judicial review by a proper appellate court. Because of their similarities to proper courts (and because they are usually subject to judicial review), they can be thought of as ‘informal courts’; ‘courts’ that aren’t as strict about procedure as proper courts. For example, the decision-maker is not a judge – though proper judges often fill the role, in practice (and, in fact, in the tribunal that will be discussed in this post, that is the case) – but they are expected to act much like a judge, in that they are usually not expected to directly question the witnesses or go through the evidence… those tasks are left to the participants’ lawyers. However, if one of the participants doesn’t have a lawyer, decision-makers can and sometimes do take the initiative to ask witnesses questions directly, or go through a participant’s evidence and decide what’s relevant… something that would be absolutely unacceptable for a proper judge to do in a proper court.

(The Council of Canadian Administrative Tribunals has an “Introduction to Administrative Justice and to Plain Language.” with much more detail, if you’re curious.)

The relevant tribunal in MLQ v Saguenay is, unsurprisingly, Québec’s Tribunal des droits de la personne (TDP; or “Human Rights Tribunal”). This is provincial tribunal, not a federal one, but the same logic applies. And the key issue is the standards by which the courts should review decisions by an administrative tribunal.

So let’s back up and I’ll explain exactly what’s going on.

Alain Simoneau and Mouvement laïque québécois brought their complaint to the TDP, and won a complete victory – the Tribunal, led by Court of Québec Judge Michèle Pauzé, ruled that the councillors should stop praying at city council meetings. The city appealed, and Québec’s Court of Appeal overturned the Tribunal’s decision. What is at issue here is the Court of Appeal’s justification for doing so.

The primary issues that the Tribunal was considering were:

• whether the prayer was discriminatory; and
• whether Simoneau’s rights were violated by it.

However, in order to come to its decision, the Tribunal also had to consider another question:

• what, exactly, is the state’s duty with regards to religious neutrality?

You see, if the state has the right to conduct Christian rituals for whatever reason – say, to recognize its Christian heritage – then it would be a matter of balancing the state’s religious rights against Simoneau’s. And in that case, it would be reasonable to say that it would be unfair to demand the state stop praying… instead, a reasonable accommodation might be to allow people who don’t want to participate to leave the room for a few moments. However, if the state does not have the right to conduct Christian rituals, then the only rights that matters are the participants’… in which case it’s simply straight-up unfair to ask certain people to leave because of something the state shouldn’t be doing anyway.

The Dunsmuir v New Brunswick case outlined the standards of judicial review for administrative tribunal decisions. They are:

• Reasonableness: This is the “normal” standard by which an appeals court should review an administrative decision (assuming there isn’t a reason to use the correctness standard). Basically: “Was the decision made reasonably?” The reviewing court is supposed to realize that the group that made the original decision knows their shit, and was working within their field of expertise (expertise which is probably beyond the Court’s own expertise in the matter). All they have to do then, is just make sure administrative tribunal didn’t fly off the rails.
• Correctness: This is the stricter standard by which an appeals court can review an administrative decision. Basically: “Was the law applied correctly in making the decision?” The reviewing court is supposed to ignore the decisions made by the administrative tribunal, and instead try to reconstruct them using proper legal standards. This standard is meant for cases where a decision was made that has important and wide-ranging legal consequences – basically it takes away the administrative tribunal’s power to make those kinds of decisions, and puts that power in the hands of the courts.

Basically, under normal circumstances, the reviewing court should give deference to the expertise of the tribunal within its own jurisdiction. In plain English: the court should assume the tribunal knows what the fuck it’s doing. All it should do is just verify that the tribunal’s reasoning was sound, and in line with existing law and jurisprudence. This is the “reasonableness” standard of review.

But when the tribunal is acting out of its jurisdiction or expertise, or when the issue they’re considering is of central importance to the legal system as a whole, that triggers the “correctness” standard of review. In a “correctness” review, the reviewing court basically throws out everything the tribunal decided and – using the same evidence they had – reconstructs it from the ground up. Hopefully they come to the same conclusion the tribunal did, but if not, the court’s opinion obviously takes precedence.

What happened when the Québec Court of Appeal reviewed the TDP’s decision in MLQ v Saguenay, was that they looked at the questions the Tribunal was considering, and fixated on the question of the state’s duty of neutrality. Justice Guy Gagnon, writing the Court of Appeal’s ruling, put it this way (QCCA p.37):

Ici, l’enjeu du pourvoi porte principalement sur le thème de la neutralité religieuse de l’État. Il s’agit d’une question d’importance pour le système juridique et pour laquelle le Tribunal ne possède pas une compétence exclusive. J’estime, compte tenu de la nature même de la question principale soulevée par cette affaire et des conséquences que sa réponse comporte, qu’il n’y a pas lieu de faire montre d’une déférence particulière à l’égard de l’expertise du Tribunal. C’est donc selon la norme de contrôle de la décision correcte que doit être tranché ce pourvoi.

(The issue in this appeal deals primarily with the religious neutrality of the State. It is a matter of importance to the legal system over which the Tribunal does not have exclusive jurisdiction. Given the nature of the principal issue raised in this case and the consequences that its response entails, I find that there is no need to pay any particular deference to the expertise of the Tribunal. It is thus according to the standard of review of correctness that this appeal must be must be decided.)

In other words, because the actual primary questions being considered – about the prayer and whether it was discriminatory – brought up the question of the state’s duty of neutrality, Gagnon substituted it as the new primary question, and used that to justify a “correctness” review, which allowed him to completely throw out the Tribunal’s decision, and reconstruct it. He then proceeded to do so in a particularly bizarre way, throwing out the sole expert witness for MLQ based on an (incorrectly applied) technicality, and making some weird logical leaps, which resulted in him finding that the prayer was a-okay.

The Supreme Court wasn’t impressed with Gagnon’s justification for using the “correctness” standard. The majority agreed that the question about the state’s duty of neutrality triggers a “correctness” standard, but they disagreed with applying that standard to every question in the Tribunal’s decision. Writing for the majority, Justice Clément Gascon said (SCC p.50):

[I]t was not open to the Court of Appeal to apply [the correctness] standard to the entire appeal and to disregard those of the Tribunal’s determinations that require deference and are therefore subject to the reasonableness standard. For example, the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise. … The Tribunal is entitled to deference on such matters. The only requirement is that its reasoning be transparent and intelligible. Its decision must be considered reasonable if its conclusions fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

So the majority used the “correctness” standard to assess the state’s duty of neutrality, and I’ll discuss exactly what they decided that was in a future instalment. For the other questions, they applied the “reasonableness” standard, which restored the Tribunal’s decisions. The Supreme Court justices reviewed those decisions, and found them reasonable, so now they stand.

The Supreme Court’s decision was unanimous, but for Justice Rosalie Abella dissenting on a single point.

Abella disagreed with splitting the review, and reviewing some questions under the “reasonableness” standard, and others under the “correctness” standard. Like Justice Gagnon of the Québec Court of Appeal, she believed that the whole decision should be reviewed under a single standard. (SCC p.165) Unlike Gagnon, she believed that standard should be the “reasonableness” standard… not the “correctness” standard.

There are two criteria for determining whether an administrative tribunal’s decision warrants a stricter “correctness” review:

• the issue is of central importance to the legal system; or
• it is outside the tribunal’s area of expertise.

The majority decided that these two criteria should be applied to a tribunal decision… and then to each component of a tribunal decision. Abella’s disagreement is that those criteria are meant to be applied to the decision only, and not its components. The only reason to single out a component of a decision for stricter review would be if that component falls outside the tribinal’s purview… not if it is merely of central importance while still being within their purview. (SCC p.167)

It doesn’t make sense, she argues, to extract side issues that arise from a relevant question and check each one to see if it’s of central importance to the legal system. Often these questions are part and parcel of the main questions the tribunal is entirely justified in considering (SCC p.168):

In this case, we are dealing with a human rights tribunal. Its mandate is to determine whether discrimination has occurred based on a number of enumerated rights. One of those rights is freedom of religion and conscience. This is undoubtedly a question of “central importance to the legal system as a whole”, but far from being “outside the adjudicator’s specialized area of expertise”, it is the Tribunal’s daily fare. Since state neutrality is about what the role of the state is in protecting freedom of religion, part of the inquiry into freedom of religion necessarily engages the question of state religious neutrality. It is not a transcendent legal question meriting its own stricter standard, it is an inextricable part of deciding whether discrimination based on freedom of religion has taken place.

She makes a somewhat obvious point, too (SCC p.172):

All issues of discrimination are of central importance to the legal system, but they are also, because of that very importance, issues legislatures across the country have assigned to specialized tribunals with expertise in human rights, not to the generalist courts. Atomizing what is meant to be a holistic approach to determining whether discrimination has occurred, undermines an analysis that requires careful scrutiny of all of the interconnected relevant factual and legal parts.

Finally, Abella brings up a practical point. In this situation, the majority applied the “correctness” standard to the question of the state’s duty of neutrality, and deferred to the Tribunal’s reasoning using the “reasonableness” standard on the other questions. In this situation, it worked, because the Supreme Court’s conclusion about the state’s duty of neutrality didn’t contradict the Tribunal’s conclusions about the other questions. But what if that happened? What if the Supreme Court had decided that the state did not have a duty to be religiously neutral? That would contradict the Tribunal’s decisions – which the Court was supposedly deferring to as reasonable – about the other questions (because they rely on the assumption of a state duty of neutrality). That would be a mess, to say the least.

Abella’s method wouldn’t have changed the result in this case, because even though the majority threw out the Tribunal’s decision and reconstructed it (as per the “correctness” standard), they came to the same conclusion that the Tribunal did. Nevertheless, I think her dissent and the points she makes deserve special consideration, for two reasons.

The first has to do with the power of administrative tribunals. Human rights tribunals – both provincially and federally – have generally been very friendly toward secularists, humanists, atheists, and freethinkers (SHAFT). The courts… not so much, especially provincial courts.

The Supreme Court has been a powerful ally, though, so we have this peculiar situation where, as SHAFT issues move up through the system, things go good (human rights commissions and tribunals), bad (appellate courts and provincial superior courts), then good (Supreme Court). You can see this pattern repeatedly when it comes to SHAFT issues. It’s obvious in this case, but the same pattern has appeared pretty much every time government prayer has come up: secularists won in human rights tribunals in Québec (Commission des droits de la personne et des droits de la jeunesse) v Laval (Ville) (in Québec) and Freitag v Penetanguishene (Town) (in Ontario), but lost in courts in Freitag v Penetanguishene (Town) and Allen v Renfrew (Corp. of the County) (both in the Ontario Superior Court of Justice). Freitag won his appeal in the former case, though.

If you think about it, this pattern shouldn’t be all that shocking. While we take secularism and discrimination against atheists seriously, let’s face facts: most Canadians don’t. In fact, there’s no shortage of open antipathy toward atheists in our popular culture that you simply don’t see for other minority groups. While we’d hope that judges would be above this… they’re just Canadians, too. And unfortunately, they’re often the more conservative brand of Canadian, a group which has always been particularly disdainful of atheists. When you bring a discrimination case to court, you’re really at the mercy of the judge’s attitude toward your group and its claims… and the reality is that you’re probably not going to find a sympathetic ear on the bench. On the other hand, human rights tribunals are built from the ground up for the specific purpose of recognizing legitimate cases of discrimination against any group. Even if you don’t get a sympathetic decision-maker, you’re much more likely to have your concerns of discrimination taken seriously and properly studied in that venue than in a court. (The stupidity in the Québec Court of Appeal review contrasted to the intelligent reasoning in the human rights tribunal in this case is a shockingly clear illustration of what I’m talking about.)

One of the delightful outcomes of MLQ v Saguenay is that the Supreme Court has affirmed that human rights tribunals deserve more deference. If the TDP had been given due deference by the Court of Appeal, we never would have had that scary loss in advance of the Supreme Court hearing of the case. In general, since human rights tribunals have been generally on our side, having more authority granted to their decisions is a good thing for us.

And what Abella is arguing for in her dissent is to give even more deference to human rights tribunals. That would be even better for us.

So I think SHAFT activists should probably take Abella’s dissent seriously. Not only does she make good points, she makes good points for us.

The second reason I think Abella’s dissent deserves special consideration has to do with the future of the Supreme Court. To explain what I mean, I have to take a little detour and talk about our Supreme Court justices.

At the time MLQ v Saguenay was heard, Beverley Maclachlan was the Chief Justice (and she still is), and the other justices, in order of seniority were:

• Louis LeBel
• Rosalie Abella
• Marshall Rothstein
• Thomas Cromwell
• Michael J. Moldaver
• Andromache Karakatsanis
• Richard Wagner
• Clément Gascon

LeBel and Rothstein have since retired, so the current (as of 29 April 2016) justices are:

• Rosalie Abella
• Thomas Cromwell
• Michael J. Moldaver
• Andromache Karakatsanis
• Richard Wagner
• Clément Gascon
• Suzanne Côté
• Russell Brown

An interesting side note is that every single current Justice except for McLachlin (Mulroney) and Abella (Martin) was appointed by Stephen Harper. (Although, McLachlin was appointed Chief Justice by Chrétien.) That means Abella is the only Justice on the Supreme Court that was appointed by a Liberal Prime Minister.

That is about to change. Thomas Cromwell has announced he is going to retire in September. Justin Trudeau will be able to appoint his first Supreme Court Justice then.

More importantly, Beverley McLachlan will reach her mandatory retirement in 2018… which means Trudeau will likely have to appoint a new Chief Justice at that point (and another new Justice). And, as you’ll notice from the list above, which is in order of seniority… Abella is the most senior member of the Court after McLachlin.

Which means: Rosalie Abella is a strong candidate for Canada’s next Chief Justice.

Now, seniority alone doesn’t mean she’ll get the appointment. McLachlin wasn’t the most senior Justice when she was appointed. But in McLachlin’s case, the two Justices ahead of her in seniority were Charles Gonthier – who was only two or three years from retirement at the time – and Claire L’Heureux-Dubé, who was a famously combative Justice who probably holds the record for number of dissenting opinions. So it was really only natural that it fell to McLachlin.

In Abella’s case, she’s still five or six years from retirement, and while McLachlin has served for 15 years – the longest tenure ever, by far – most Chief Justices have served for five or six years or less, historically.

More importantly, Rosalie Abella is one of Canada’s foremost authorities on human rights. That’s the kind of thing that a Liberal Prime Minister would find appealing.

Like McLachlin, she’s also a bit of an icon in Canadian law. In 2013, Canadian Lawyer magazine named her one of the top 25 most influential people in Canadian Law, the only Supreme Court Justice to make the list that year (though McLachlin made the list in 2014 and 2015). She has a reputation for being fair and open-minded, and – despite having strong opinions about human rights issues – being willing to work with the majority on the Court. She’s also popular and outspoken, with very progressive and forward-looking opinions and recognized leadership qualities, and has been called a rock star.

There are practical reasons to take the idea of her appointment to Chief Justice seriously, too. Once Cromwell retires, there will be no one on the Supreme Court with more than fives years’ experience… except Abella, who has over ten (as McLachlin did when she was appointed). After Abella, Moldaver and Karakatsanis are the next senior (they were appointed together), and they have less than half her experience on the Supreme Court. Moldaver’s mandatory retirement is just a few months after McLachlin’s, so he’s pretty much ruled out. As for Karakatsanis, there are some… issues with her. When she was appointed by Harper, she had very little judicial experience – most of her experience was working in the Conservative bureaucracy. At the time of her appointment, there was a lot of criticism of her being partisan, and of her appointment (along with Moldaver) merely being a Harper ploy to pull the Supreme Court rightward. There were also grumbles that Harper only chose her because he needed to appoint a woman, to maintain the Court’s gender balance. It seems unlikely that a Liberal PM was appoint her Chief Justice. After Karakatsanis is Wagner, who’s not a bad choice, but he has only three years’ experience on the Supreme Court. And the others are even more junior.

So there’s good reason to believe that Rosalie Abella may be the leader of the Supreme Court in the not-too-distant future. That would be very good for SHAFT activists, and it’s a good reason to start taking her opinions seriously right now.