Those Wild and Crazy Judges

The Supreme Court of Canada is at it again.

The current Supreme Court has shown a real knack of cutting through long-standing hard to grasp legal tangles where there seemed to be no real way to understand what previous courts had done in any kind of coherent way -- largely because the previous courts had not been particularly coherent.

The usual way courts deal with this is they politely overlook the tangle and pretend it does not exist while they pick the bits out of the earlier cases they like and ignore the rest. This court, by contrast, has in a number of areas just ditched previous rulings saying, in essence, "wrong" or "incomprehensible."

For those of us who went to law school until say -- yesterday, one of the nightmare areas was what is referred to as "judicial review" -- that is the role of the courts in policing the way government bodies or bureaucrats carry out their duties. In this area the courts have been vacillating for fifty years between two ideas -- one being that even bureaucrats must obey the law and the other being that courts should not try to take over the job of bureaucrats when the elected officials have given the job to the bureaucrats. This body of law built up a huge collection of technical ideas that seemed completely meaningless such as "patent unreasonability", a "pragmatic and functional approach" and "deference". These words seemed to have completely different meanings from case to case depending upon what the judge wanted to do.


In a recent case involving the dismissal of a New Brunswick lawyer the Supreme Court of Canada essentially looked at the mess and said, "let's dump this." Along the way they made some remarkably candid comments about the state of the law and the way judges have been working. For example, Justice Binnie says, "That said, I agree that the repeated attempts to define and explain the difference between reasonableness simpliciter and 'patent' unreasonableness can be seen with the benefit of hindsight to be unproductive and distracting." Given that most of the effort in this area of law since 1988 has been dedicated to figuring out what these terms mean (thanks to several earlier Supreme Court of Canada cases) this is a remarkable comment.

Here is what the opening paragraph of the main judgement says:

This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. The time has arrived for a reassessment of the question.

Notice that this says "no solution" -- which is a remarkable concession given that the reason we have a Supreme Court of Canada is to provide solutions to problems just such as this and supposedly that is just what it has been doing in this area for the last thirty or forty years.

It all continues to be interesting up there in Ottawa (by the way -- the lawyer stayed fired).