The Limits of Judicial Review: Democracy vs. Reasonableness in Blood Tribe and Shell
Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44 [Blood Tribe], has been covered here before – twice, in fact – but the decision presents a good opportunity to return to issues raised by an administrative law classic, Shell Canada Products Ltd v Vancouver (City),  1 SCR 231 [Shell].
The relevant facts in Shell are simple. The city had passed a resolution stating that it would not enter into contracts with Shell for gas purchases until the company divested from South Africa. The stated purpose of the resolution was to indirectly place pressure against South Africa’s apartheid regime. Shell challenged the rule as ultra vires. In a 5-4 decision, the majority sided with Shell, holding that because the resolutions pursued the ‘improper purpose’ of affecting matters in other parts of the world, it was outside the city’s legislated powers. The decision thereby actively stifled the democratic capacity of one of our most powerful governmental institutions: our cities.
Shell was superficially about the power of the city to make decisions about international issues. For those who study the astronomy of Canada’s constitutional order, it stands as a clear reminder that our cities don’t appear on the celestial atlas of constitutional actors. The division of powers remains a battle between the provinces and Ottawa.
The “Other” Division of Powers
However, the case is just as much about the other division of powers: that between the legislatures, the executives and the judiciary.
That division was also the primary focus of Blood Tribe. Certainly, the court aimed to strike the right balance between individual control over personal information and a foundational facet of our legal system, solicitor-client privilege. To that end, the court agreed with the pressing need to hold the private sector accountable for personal information over which privilege is claimed:
“Whether their claims turn out to be completely right, honestly equivocal, overly broad, inadvertently wrong, or intentionally misleading, they must be independently verified in order to give proper meaning to the fundamental right of access to one’s personal information.”
There is no doubt that the rights protected by the Commissioner should be balanced against those defended by solicitor-client privilege, nor that some cases require the review of documents subject to claimed privilege. But Binnie J made clear the case was about something different. “However, the question raised by the appeal is whether the proper forum for this independent verification in the first instance is the court or the Privacy Commissioner herself.”
Blood Tribe was primarily about who should have the power to navigate that balance. The court’s answer was clear: we do.
The commissioner was asking for powers of compulsion much broader than that which the court has allowed itself, on the basis of legislative language which gave the Commissioner powers only of “a superior court of record.” It borders on absurd to argue against the court’s holding that the Commissioner’s practice was too broad. Yet the decision not only limited the Commissioner’s powers, but completely removed them on the basis that the court was a more capable arbiter of the competing interests.
Both cases, then, are about jurisdiction: not only about delimiting the jurisdiction of one body, but about adjudicating jurisdiction between a legislated body and the courts themselves.
Legislatures have tried valiantly to place certain arbitrations outside the ambit of court review. The whole constellation of administrative bodies is in part a response to perceived biases, gaps in expertise, and procedural incompatibilities on the part of courts. However, the elimination of the third standard of review in Dunsmuir v New Brunswick, 2008 SCC 9, essentially constitutionalized a right to be free from unreasonable decisions: that is, a right to court review. No privative clause or legislative imagination can place an exercise of governmental power outside the grasp of the court’s review.
As interpreters of the law, courts are uniquely empowered to determine their own jurisdiction. Yet judges are not subject to the democratic oversight as are other arms of government. The court’s biases are subject only to the reasonable limits the court places on itself. The court system as a whole cannot subject itself to a review for reasonableness.
The Return to Shell
In Shell, McLachlin J. (as she then was) drafted the strident dissent. In holding that the city had been empowered to make the impugned decision, she gave a broad reading to the city’s legislated end of “provid[ing] for the good rule and government of the city” which included “the psychological welfare of the citizens as members of a community who have an interest in expressing their identity as a community.” It’s clear that even the courts can disagree about the bounds of the reasonable.
She also, however, turned her mind to the threat of an activist court, in her view often too quick to overturn the decisions of responsible authorities. In the opinion of four of nine judges, a more deferential approach would better serve democratic legitimacy, improve predictability, and respect relevant expertise. The rule of law, they understood, also required respect for other constitutional principles, and must act to limit, as well as empower, the courts.
This second issue is at the crux of Blood Tribe. It wasn’t a decision addressing reasonableness, but one engaging substantially with how well placed the courts were to balance the competing interests at issue. Yet the decision simply presumed the superiority of the courts as arbiter.
Despite the twilight of parliamentary supremacy, Charter-era constitutional jurisprudence is still beholden to the idea that legislatures are, as democratic institutions, the best arbiters between competing social ends. This principle has often tempered the Court’s exercise of its constitutional powers to substitute their own judgment. My point is that, in making administrative law decisions, courts are always, in a way, choosing whether to substitute their own judgment. That exercise should include at least some discussion of the court’s own potential failings in adjudicating between the underlying social ends. This is especially so where the court is not only exercising a review, but imbuing itself with a permanent power.