The rule of law and the justiciability of prerogative powers: a comment on Black v. Chretien.

• Author: Sossin, Lorne
• Position: Ontario

In Black v. Chretien, the Ontario Court of Appeal addressed the issue of the courts' ability to review the exercise of Crown prerogative powers. While the court held that the exercise of prerogative powers is subject to judicial review in general, it stipulated that certain categories of prerogative powers are not reviewable. The court reasoned that judicial review is limited to instances where the nature and subject matter of the prerogative powers are amenable to the judicial process. In Conrad Black's lawsuit against the prime minister, the court round that the communication between the prime minister and the Queen represented an exercise of the prerogative to grant honours and that such a prerogative was non-justiciable.

The author is critical of the court's use of the doctrine of justiciability to shield executive officials from judicial review. He argues that the court adopted an undesirably formalistic approach to justiciability, with the consequence that a significant sphere of executive action lies beyond the reach of the rule of law. The author maintains that justiciability should solely depend on the legitimacy and capacity of the courts to adjudicate a matter. In his opinion, Black's claim against the prime minister was justiciable.

Dans l'arret Black c. Chretien, la Cour d'appel d'Ontario souleve le probleme du pouvoir qu'a la cour de reviser l'exercice des prerogatives de la Couronne. Alors que la cour a decrete que ces privileges sont sujets a la revision judiciaire de facon generale, elle a stipule que certaines categories de ces prerogatives etaient intouchables. La cour a juge que la revision judiciaire se limite aux instances ou la nature et le contenu des prerogatives de la Couronne sont sujet a etre entendus par le processus judiciaire. Dans cet arret, la cour a decide que la communication entre le premier ministre et la Reine representait un exercice de la prerogative d'octroyer des honneurs et que ce privilege n'etait pas sujet a la revision judiciaire.

L'auteur critique l'utilisation que fait la cour de la doctrine de justiciabilite pour proteger un officier executif contre la revision judiciaire. Il demontre que la cour a adopte une approche formaliste de la justiciabilite, approche indesirable, qui a pour consequence d'extraire de la primaute du droit une sphere importante de l'action executive. L'auteur maintient que la justiciabilite ne devrait dependre que de la legitimite et de la capacite de la cour de se prononcer. Selon lui, la demande de Black a l'egard du premier ministre etait justiciable.

Lorne Sossin, Assistant Professor, Faculty of Law, University of Toronto. I should note that I had some minor involvement in this case as a consultant to counsel for the appellant, and prior to that, expressed some criticism of the judgment of LeSage J. in the motion before the Ontario Superior Court. See L. Sossin, "Hoist on his Own Petard" The Globe and Mail (23 March 2000) A17. I wish to thank David Dyzenhaus, Julia Hanigsberg, Peter W. Hogg, Hudson Janisch, Patrick J. Monahan, and Mark Walters for helpful comments on earlier drafts of this article.

Introduction I. Judicial Review and the Crown Prerogative II. Justiciability and the Crown Prerogative III. The Implications of Black and the Rule of Law Conclusion Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case ... Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. (1)

Introduction

The odd case of Black v. Chretien (2) may have resulted in a happy ending for the parties involved, but the judgment of the Ontario Court of Appeal represents, in my view, a mixed blessing for Canadian law relating to the judicial review of Crown prerogative powers. On the bright side, the court has confirmed that the source of governmental authority, whether a prerogative or statutory power, should have no bearing on whether the exercise of that authority is reviewable. By upholding the dismissal of Black's claim, however, the court used the justiciability doctrine as a shield to immunize a category of prerogative powers from the reach of the rule of law. This is a disturbing development which merits closer examination.

The litigation arose in June of 1999 when the Queen decided not to bestow a peerage on Conrad Black. The Queen had apparently been informed by Prime Minister Jean Chretien that Canadian law prevented Canadian citizens from being nominated as peers. Chretien allegedly cited a 1919 Parliamentary resolution known as the "Nickle Resolution" (3) as the source of this legal impediment. (4) That resolution, which was neither a statute nor an instrument with any legal effect, requested the then King not to bestow honours and titular distinctions on subjects domiciled or ordinarily resident in Canada. Prior to that communication, in May of 1999, both Black and the British government had allegedly been assured by the Canadian government that, as long as Black obtained British as well as Canadian citizenship, there was no bar to his nomination. Within a matter of days, Black promptly became a citizen of the United Kingdom.

Black alleged that the prime minister's intervention on the eve of his nomination as a peer was politically motivated, and was undertaken in response to negative coverage of the prime minister in the Southam chain of newspapers owned by Black. Black sued the government of Canada for negligence and the prime minister personally for negligence and abuse of power, and sought $25,000 in damages. The quantum of damages sought suggests Black's suit was motivated more by pride and principle than by a desire for compensation (although, to be sure, quantifying the value of a lost peerage is an esoteric undertaking). (5)

The government of Canada and the prime minister brought a motion to have all the claims dismissed on the grounds they disclosed no reasonable cause of action. (6) LeSage J. granted the motion in part, and dismissed the claim against the prime minister for negligence and abuse of power on grounds that his exercise of the Crown prerogative relating to foreign affairs was non-justiciable. (7) The negligence claim against the government (for misrepresenting that there was no bar to Black's nomination) was allowed to proceed. (8)

The Ontario Court of Appeal unanimously upheld the ruling of LeSage J. (9) While concluding that a claim against a government decision was not non-justiciable simply because the decision was an exercise of a Crown prerogative, the court nonetheless held that the communication between the prime minister and the Queen represented an exercise of the prerogative of granting honours, and that such decisions were nonjusticiable. Laskin J.A. explained this holding in the following terms:

The conferral of the honour at issue in this case, a British peerage, is a discretionary favour bestowed by the Queen. It engages no liberty, no property, no economic interests. It enjoys no procedural protection. It does not have a sufficient legal component to warrant the court's intervention. Instead, it involves "moral and political considerations which it is not within the province of the courts to assess". In other words, the discretion to confer or refuse to confer an honour is the kind of discretion that is not reviewable by the court. In this case, the court has even less reason to intervene because the decision whether to confer a British peerage on Mr. Black rests not with Prime Minister Chretien, but with the Queen. At its highest, all the Prime Minister could do was give the Queen advice not to confer a peerage on Mr. Black. For these reasons, I agree with the motions judge that Prime Minister Chretien's exercise of the honours prerogative by giving advice to the Queen about granting Mr. Black's peerage is not justiciable and therefore not judicially reviewable. (10) While his claim against Prime Minister Chretien was dismissed, Black was able to become eligible for a peerage by renouncing his Canadian citizenship, which he did. On 31 October 2001 he took his seat in the House of Lords as Lord Black of Crossharbour. (11) Prime Minister Chretien presumably is happy as well. He has had his dubious championing of the 1919 Nickle Resolution validated, and more to the point, will not have to endure the indignity of the disclosures and media scrutiny of a civil suit. The British government and Crown have avoided an embarrassing entanglement in Canadian affairs. Finally, the Canadian taxpayers will be spared funding an expensive defence against a litigant with near-bottomless resources.

Black represents, at first glance, a significant and positive watershed in Canadian public law. The Ontario Court of Appeal has confirmed that the Crown may be civilly liable for the misuse of a prerogative power. This judgment has helped to eliminate an obsolete vestige of Canada's monarchial past. However, as I argue below, by finding Black's claim against Prime Minister Chretien to be non-justiciable, the court left intact a sphere of executive authority that is effectively immune from the rule of law. This is not an acceptable or a justifiable immunity, even for (and, perhaps, especially for) a constitutional monarchy rooted in the common law.

This comment is divided into three parts. In Part I, I outline the scope of judicial review of the Crown prerogative power and its application in Black. In Part II, I examine more specifically the justiciability of prerogative powers and the rationale adopted by the Ontario Court of Appeal in Black. Finally, in Part III, I analyze the implications of Black and situate this decision within a broader jurisprudence on the rule of law in Canada.

1. Judicial Review and the Crown Prerogative

   The very nature of a Crown prerogative is that it is discretionary...