More Turbulence in Judicial Review
In Gehl v. Canada, 2017 ONCA 319, the Ontario Court of Appeal has rendered an engrossing and potentially subversive decision on administrative law principles. A divided panel has both reined in the role of Charter values and declined to defer to an administrative decision-maker.
The central substantive issue was whether the appellant, Dr. Lynn Gehl, was entitled to be registered as an Indian under s. 6 of the Indian Act. This question turned on the status of Dr. Gehl’s paternal grandfather, whose identity was unknown. While there was some circumstantial evidence that her paternal grandfather possessed Indian status under the Act, an internal policy of the Registrar for Aboriginal Affairs and Northern Development required nothing less than positive documentary evidence.
The claim as originally framed was one for damages, but was later amended to seek a declaration that section 6 of the Indian Act and the Registrar’s policy contravened section 15 of the Charter. By the time the case was heard by the Court of Appeal, the panel was ready to accept that the matter had taken on the form of a judicial review. The issue was whether the Registrar ought to have accepted the circumstantial evidence submitted by Dr. Gehl.
The Charter value of equality
Sharpe J.A., writing only for himself on a divided panel, concluded that the Registrar had failed to exercise its powers consistently with the Charter value of equality. He noted that, while there is rarely ever any doubt about who one’s mother is, there may be “considerable doubt about paternity” (para. 44):
The pregnancy may be the result of a relationship with a man the mother is fearful of identifying, for example, a relative, or the spouse or friend of a friend or family member. The pregnancy may be the product of abuse, rape or incest. The mother may have had multiple sexual partners.
To impose a “strict burden of proof essentially based upon documentary evidence” would make proof of paternity problematic for many women, a failure which “perpetuates the long history of disadvantage suffered by Indigenous women” (para. 45).
Charter values should only be invoked when necessary
Lauwers and Miller JJ.A. concurred in the result, but on decidedly different grounds.
In their view, Dr. Gehl was prevented from accessing benefits “because of an imposed burden that she prove something that, in the circumstances, cannot be proven” (para. 70). It was “wrong” for the Registrar to demand “evidence of specific identity when, in some circumstances, only circumstantial evidence […] is available”. Indeed, this evidentiary burden is at odds with the purpose of s. 6 of the Indian Act.
While this was likely enough to dispose of the appeal, the majority went on to insist that courts ought to shy away from the “concept of Charter values” (para. 56), an analysis which “should be avoided where possible” (para. 76).
The majority argued, firstly, that a Charter values analysis does not provide the State with an opportunity to argue that a certain limit is justified under s. 1.
Second, their use “injects a measure of indeterminacy into judicial reasoning”:
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 (para. 79).
This indeterminacy is exacerbated by the fact that Charter values are not an enumerated set of rights described in a constitutional text. Instead, “Charter values have been formulated at a much higher level of abstraction – as concepts such as justice, liberty, autonomy or dignity”. The meaning of these concepts “is both contestable and contested” (para. 81).
Third, Charter values will often conflict with one another, further complicating their application:
Unlike Charter rights, which are largely negative and will thus rarely conflict, multiple Charter values can simultaneously apply in a given dispute, and can easily be in conflict. In this case, for example, 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 […] 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. Mablor […], and which, according to the s. 1 Charter evidence tendered in this case, informed the compromise that underlies s. 6 of the Indian Act.
The majority could have also stopped there, but went further still. In their view, the Registrar’s decision is simply not one that is owed deference to begin with.
The majority asserts that “[d]eference is required only if the administrative decision maker is exercising, as Doré prescribes, a relevant ‘grant of discretion’” (para. 86). A grant of discretion occurs when the decision-maker is tasked by the legislature with selecting from a “choice of options within a statutorily imposed set of boundaries” (para. 86).
Where the legislature has not provided the decision-maker with a “choice of options” – as is the case for the Registrar’s determination under s. 6 of the Indian Act – then the decision is simply not one entitled to judicial deference (para. 86). The majority also adds that the Registrar’s decision is subject to a statutory appeal to the Superior Court of Justice (para. 87).
On this final front, the majority actually subverts and repudiates much of the Canadian law on judicial review.
For better or for worse, the Registrar is owed some deference on how it interprets and applies its home statute, and the presence of a statutory right of appeal does not justify abandoning this deferential review. After all, the Registrar has presumably developed some expertise on what kind of proof can reliably establish filiation.
The majority’s reasoning also has revolutionary implications when it comes time for administrative decision-makers to interpret legislation. When they do so, decision-makers are tasked with ascertaining the law’s true meaning; they are clearly not exercising discretion. Their interpretation – at least on the majority’s understanding of things -, would therefore not be entitled to deference.
The majority seems to recognize this implication in open and honest terms, citing and endorsing the following passage from James Sprague’s dated article, “Another View of Baker” (1999), 7 R.A.L. 163:
Filling in legislative gaps and making choices among various options is not true discretion. That is trying to discern what the legislator meant to say. The legislator never said, or intended to say, that where there is a gap, the law is to be whatever a decision-maker may decide it should be. No, where the decision-maker has to fill in gaps or otherwise interpret law he or she is not exercising discretion. He or she is simply doing his or her best to ascertain what the law is – he or she is not a law-maker (or at any rate is not supposed to be).
The story that Dunsmuir tells is that the law of judicial review is guided by the need to reconcile legislative supremacy with the rule of law. Legislative supremacy requires that courts respect the legislature’s choice to delegate certain powers to administrative decision-makers. The rule of law, for its part, requires some measure of judicial intervention to ensure that the law is respected.
However, if we accept that administrative decision-makers are not exercising some special grant of authority when they do their “best to ascertain what the law is”, then the Dunsmuir justification for deference on pure questions of law flounders.
We’ll have to see where this one goes!
 See e.g. Dunsmuir v. New Brunswick,  1 S.C.R. 190, 2008 SCC 9, at para. 53, Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47,  2 S.C.R. 293, at paras. 27-35; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII),  2 S.C.R. 3, at para. 38.