Democratizing common law constitutionalism.

• Author: Fox-Decent, Evan
• Position: Canada

Common law constitutionalism is the theory that legal principles such as fairness and equality reside within the common law, are constitutive of legality, and inform (or should inform) statutory interpretation on judicial review. This article looks to Justice Rand's judgment in Roncarelli v. Duplessis to develop a democratic and relational conception of common law constitutionalism. By "democratic" the author means a version of the theory that governs judicial review but which is available to frontline decision makers independently of the history and contemporary practice of review. By "relational" the author means a theory that presupposes a trust-like and legally significant relationship between public authorities and the persons subject to their power.

Under the democratic and relational theory, the legality of administrative action is assessed in light of legal principles constitutive of the trust-like relationship and without reference to the separation of powers. These principles flow from the trust-like nature of the relationship and the implications of working out how public authorities can hold discretionary power over individuals without subjecting them to domination or instrumentalization.

Le constitutionnalisme de common law est la theorie selon laquelle les principes juridiques tels que l'equite et l'egalite resident dans la common law, sont constitutifs de la legalite et guident (ou devraient guider) l'interpretation des lois lors du controle judiciaire. Cet article se base sur le jugement du juge Rand dans l'affaire Roncarelli c. Duplessis pour developper une conception democratique et relationnelle du constitutionnalisme de common law. Par << democratique >>, l'auteur entend une version de la theorie qui gouverne le controle judiciaire mais qui est mise a la disposition des principaux decideurs independamment de l'histoire ou de la pratique contemporaine du controle. Par << relationnelle >>, l'auteur entend une theorie qui presuppose une relation quasi-fiduciaire et significative d'un point de vue juridique entre les autorites publiques et les personnes qui sont assujetties a leur pouvoir.

Selon la theorie democratique et relationnelle, la legalite de l'action administrative est examinee a la lumiere des principes juridiques constitutifs de la relation quasi-fiduciaire et sans faire reference a la separation des pouvoirs. Ces principes sont issus non seulement de la nature quasi-fiduciaire de la relation, mais aussi de la recherche d'une facon pour les autorites publiques de detenir un pouvoir discretionnaire sur les individus sans toutefois les assujettir a la domination ou a l'instrumentalisation.

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Introduction I. The Constitution of Discretion A. The Rights/Privileges Distinction B. The Separation of Powers and Judicial Activism C. The Content and Legal Nature of the Obligation in Roncarelli D. Normative Independence from Judicial Review II. Reframing Common Law Constitutionalism Conclusion Introduction

Common law constitutionalism is the theory that legal principles such as fairness and equality reside within the common law, are constitutive of legality, and inform (or should inform) statutory interpretation on judicial review. (1) Because the principles of the common law are settled through the gradual accretion of judicial precedents, they are presumed to embody the. deep-seated values of the community. Judges are thus entitled to rely on those principles when they perform their rule of law duty and read down statutes to keep the administration in check. Common law constitutionalism, in other words, is usually understood as a theory about the rule of law and the role of judges as the rule of law's guardians.

Justice Rand's judgment in Roncarelli v. Duplessis (2) has become the Canadian standard-bearer for the rule of law. His reigning in of Duplessis's abuse of discretionary power sits comfortably with the conventional understanding of common law constitutionalism, as depicted above. Yet we will sec below that Justice Rand's explicit arguments fail to respond convincingly to Justice Cartwright's dissent. We will also sec that common law constitutionalism is vulnerable to several objections pressed recently by Thomas Poole. (3) The burden of this paper is to show that Justice Rand's judgment presupposes a democratic conception of common law constitutionalism capable of answering both Justice Cartwright's dissent and Poole's objections. By "democratic" I mean a version of the theory that governs judicial review but which is available to front-line decision makers independently of the history and contemporary practice of review.

Justice Rand's common law constitutionalism, I claim, consists in more than an aversion to arbitrariness in public decision-making. Implicit in his judgment is a presumption that arbitrariness has legal significance, and that presumption relies on viewing public actors and the people subject to their powers as standing in a legally significant relationship to one another. In Canadian public law scholarship, the shape of this relationship was first noticed by Roderick Macdonald in 1987. He observed:

When viewed through the eyes of the primary decision-maker, the act of applying a statutory rule can be understood as a response to the legislative direction (which may be either explicit or tacit) to take responsibility for administering the statute by virtue of which the particular power is exercised. In so responding, the statutory decision-maker acts no differently than a trustee administering a trust indenture. (4) I interpret Macdonald to be saying that legislatively delegated power begets responsibility for statutory interpretation and administration, and that this responsibility is legally significant (in part at least) because statutory decision-makers are in a trust-like relationship with the public. I also interpret him to be saying that this trust-like relationship and its implications may be apprehended fully "through the eyes of the primary decision-maker," (5) and so do not depend on judicial review.

In Part I, I argue that the major elements of Justice Rand's reasoning presuppose Macdonald's relational and democratic conception of public law. Without the relational and democratic conception in place (or a conception substantially similar to it), Justice Cartwright's approach to discretion remains a viable alternative defensible on principled grounds. In Part II, I consider a number of Poole's objections to common law constitutionalism. I suggest that the relational theory offers fresh replies to them, while taking on board many of Poole's important concerns.

1. The Constitution of Discretion

   Discretionary power is a bugbear for liberal legalists. On its face, discretion stands in tension with the principle of formal equality according to which like cases are to receive like treatment. If a decision maker has true discretionary power, it seems she must be free to decide like cases differently. If she is not so empowered, then it seems more apt to describe her task as the application of a statutory rule rather than the exercise of discretionary power. And if she is free to decide like cases differently, then it appears that the affected individual is subject to the arbitrary will of the decision maker--to domination--rather than to stable and predictable rules consistent with the rule of law.

   Yet discretionary power is a salient and arguably necessary feature of modern administrative states. To take a common example, consider the disciplinary power held by self-regulating professional organizations. When a professional organization imposes a discretionary sanction on a wayward member, it must weigh the public interest against the interest of the impeached individual, taking into account the particular circumstances of the case. No legislature can foresee the Circumstances of every case, nor determine the best balance of the competing interests. Only the professional organization's discretionary power enables it to fashion remedies appropriate to a given case and its wider context. In this sphere and others, discretion is necessary to the context-sensitive (and, plausibly, normatively best) implementation of public policy. Its existence, however, poses a challenge from the standpoint of the rule of law injunction to treat like cases in a like manner.

   The judgments of Justices Cartwright and Rand in Roncarelli provide two distinct and credible answers to this challenge. In his article in this issue, Robert Leckey seeks "to unsettle the accepted wisdom that on that matter the majority adopted the sole credible option." (6) We shall see that much can be said in favour of Justice Cartwright's judgment, and that, read charitably, it poses several difficult challenges that Justice Rand never really confronts explicitly. Indeed, the argument that follows depends crucially on the idea that Justice Cartwright's opinion is credible and defensible in the absence of a relational theory to ground Justice Rand's major assumptions.

   Justice Cartwright's reasoning relied heavily on article 35 of the Alcoholic Liquor Act, which stated that the "[Quebec Liquor] Commission may cancel any permit at its discretion." (7) The statutory discretion was not expressly qualified or limited in any way. Justice Cartwright held that the Commission enjoyed an "unfettered discretion" to grant or revoke licences. (8) He adopted the argument of Duplessis's counsel, which reflects the position many judges have taken toward discretionary decision-making:

   Under the Statute, no one has a pre-existing right to obtain a permit, and the permit being granted under the condition that it may be cancelled at any time, and no cause of cancellation being mentioned and no form of procedure being indicated, the cancellation is a discretionary decision of a purely administrative character. (9) In other words, because there is no pre-existing right to obtain a permit, nor conditions...