The unfinished project of Roncarelli v. Duplessis: justiciability, discretion, and the limits of the rule of law.

• Author: Sossin, Lorne
• Position: Canada

Roncarelli is remembered fifty years later particularly because of Justice Rand's now iconic statement that "there is no such thing as absolute and untrammelled discretion." Justice Rand defined "untrammelled discretion" as circumstances where action can be taken on any ground or for any reason that can be suggested to the mind of the decision maker. This statement has been understood to mean that all public regulation exercised through discretionary decision-making by executive officials has legal boundaries, and that the role of the courts is to ensure that decisions do not exceed those boundaries.

In this paper, the author explores several areas of public regulation in Canada that remain "untrammelled". These areas include realms of government action deemed to be non-justiciable, such as decisions involving foreign relations or the conferral of honours. The author argues that areas of untrammelled discretion are inconsistent with the Supreme Court of Canada's reasoning in Roncarelli. To complete the unfinished project of Roncarelli, the author argues that all discretionary decisions should be understood to have justiciable elements, which include, at a minimum, a requirement that public power be exercised in good faith. The author concludes by highlighting that while approaching all discretionary authority as justiciable is intended to alter the approach of Canadian public law, Roncarelli's project is as much a political project as a legal one.

L'affaire Roncarelli demeure gravee dans les memoires cinquante ans apres sa redaction, notamment grace a l'affirmation par le juge Rand qu'>. Le juge Rand a defini la > comine etant la possibilite d'imposer une mesure pour n'importe quel motif ou raison qui puisse traverser l'esprit du decideur. Cet enonce est compris comme signifiant que toute regulation publique exercee par la prise de decision discretionnaire de cadres officiels connait des limites juridiques, et que le role des tribunaux est de s'assurer que les decisions ne depassent pas ces limites.

Dans cet essai, l'auteur explore plusieurs domaines de regulation publique au Canada qui sont demeures >. Ces domaines comprennent des champs d'action gouvernementale qui sont reputes etre non-justiciables, tels que les decisions touchant aux relations internationales ou la remise de distinctions. L'auteur fait valoir que ces domaines de discretion > sont incompatibles avec le raisonnement de la Cour supreme du Canada dans l'affaire Roncarelli. Afin de terminer le projet inacheve de l'arret Roncarelli, l'auteur soutient que l'on devrait reconnaitre que toute decision discretionnaire doit comprendre des elements justiciables incluant, au minimum, l'exigence de la bonne foi dans l'exercice du pouvoir public. L'auteur conclut en soulignant que si la reconnaissance du caractere justiciable du pouvoir discretionnaire a pour objectif de modifier l'approche du droit public canadien, le projet de Roncarelli est tout aussi politique que juridique.

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Introduction I. The Rule of Law and Discretionary Authority II. The Dilemmas of Justiciability and the Legacy of Roncarelli A. The Acquisition rum Exercise of Sovereignity B. Foreign Relations C. Political Questions Conclusion: Beyond Roncarelli Introduction

Roncarelli v. Duplessis (1) was a case about the limits of executive authority. Of all the reasons for which the case is remembered and discussed fifty years later, the most significant is Justice Rand's now iconic phrase: "In public regulation of this sort there is no such thing as absolute and untrammelled 'discretion'." (2) Justice Rand defined "absolute and untrammelled discretion" as circumstances where an action can be taken on any ground or for any reason that can be suggested to the mind of the decision maker. The two enduring implications of Roncarelli are, first, that public regulation exercised through discretionary decision-making by executive officials has legal boundaries, and, second, that it falls to the courts through the mechanism of judicial review to elaborate those boundaries. (3) In short, Roncarelli made the courts' control of executive discretion emblematic of the rule of law.

Justice Rand might or might not be surprised to learn that fifty years after his statement was widely embraced there remain significant areas of absolute and untrammelled discretion in Canada. This is so, I suggest, because of the way in which Canadian courts have interpreted and applied the doctrine of justiciability. Courts have found important spheres of executive discretion to be non-justiciable, and, on this ground, have declined to impose legal constraints on the exercise of such discretion.

The purpose of this study is to explore the settings in which the exercise of public authority has been found to be non-justiciable, and to examine the relationship between justiciability and the rule of law as understood in Roncarelli. I argue that as long as justiciability is understood as totally exempting public discretionary decision-making from meaningful oversight, the project of Roncarelli remains unfinished.

I advance the view that for the rule of law to be safeguarded, exercises of discretionary authority should be subject to oversight by courts, and that this imperative should take precedence over the doctrines of justiciability where the two principles cannot otherwise be reconciled. That courts should oversee some elements of discretionary authority does not mean that all elements of such authority should be subject to judicial review. Further, where courts decline to subject some elements of discretionary authority to judicial review, this does not mean that those decisions are immune to oversight. Other non-judicial actors--ranging from auditors general to ombudspersons, and from parliamentary committees to the ballot box--play a role in ensuring the accountability of discretionary decision-makers. Finally, the internal checks on executive discretion from published guidelines, to ministerial supervision, to the training, expertise, and professionalism of the public service are vital to building a culture of the rule of law from within.

This study will explore the boundary between legal and political accountability for the exercise of discretionary authority, and more particularly, will examine the distinction between the justiciable and non-justiciable aspects of discretionary authority. A general distinction, for example, between merits-based review, which looks to whether the exercise of authority was correct or reasonable, and an ultra vires-based review, which looks to whether the authority was exercised in good faith and for proper purposes, may be a sensible point of departure.

There are areas of government decision-making where courts lack the capacity and the legitimacy to engage in merits-based review, such as the conferral of the Order of Canada on individuals based on their contributions to Canadian society. While courts and the judicial process arguably are unsuited to reviewing the merits of a decision to confer or not confer the Order of Canada, the judiciary might still be well-suited to adjudicating allegations that the government acted in an ultra vires manner in exercising its authority--e.g., by withholding the Order on discriminatory grounds or conferring it in order to advance an ulterior agenda unrelated to the stated goals and mandate of the honour. (4)

In this way, I suggest that fulfilling the project of Roncarelli involves moving beyond the reasons of Justice Rand. Rather than asserting that there is simply no "untrammelled discretion" in public regulation of a paticular sort (in this case, the statutorily defined authority over the granting and termination of licences), I argue that there should be no "untrammelled discretion" in any public decision-making, of any sort.

The analysis below is divided into three parts. In Part I, I discuss the relationship between the rule of law and the limits of judicial review over discretionary public authority. Part II focuses on the impact of the doctrines of justiciability on the legacy of Roncarelli. Part III and the Conclusion point the way to completing the unfinished project of Roncarelli.

1. The Rule of Law and Discretionary Authority

   Discretionary authority arises when an official is empowered to exercise public authority and afforded scope to decide how that authority should be exercised in particular circumstances. At its root, discretion is about power and judgment. Its relationship with law is often in tension. As Ronald Dworkin memorably observed, "Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction." (5) This often-cited "doughnut analogy" captures the conventional view of discretion. Two main assumptions are embedded in this view: that law is the primary instrument of social regulation, and that discretion is a residual category of law. (6) More recent scholarly analyses of discretion have begun to revisit and challenge this conventional view, reevaluating discretionary authority and highlighting its progressive and dialogic potential. (7)

   Discretionary authority ought to be seen as more than simply a sphere of potentially arbitrary power to be contained. Discretion is also bound up with the principle of deference to the experience and expertise of specialized administrative decision-makers. Discretionary authority, in other words, conveys the idea that the same power may be applied differently in different circumstances and that the official applying that power is best placed to tailor it to the circumstances. This leads to a distinctive framework for accountability. The relationship between discretionary authority and judicial oversight is therefore necessarily contextual and variable. In other words, the factors appropriate to the exercise of discretion by an immigration officer may not be appropriate for the exercise of discretion by a labour...