McGill Law Journal ~ Revue de droit de McGill
THE UNFINISHED PROJECT OF
RONCARELLI V. DUPLESSIS: JUSTICIABILITY,
DISCRETION, AND THE LIMITS OF THE RULE OF LAW
Lorne Sossin*
Roncarelli is remembered fifty years later
particularly because of Justice Rands now
iconic statement that there is no such thing as
absolute and untrammelled discretion. Justice
Rand defined untrammelled discretion as cir-
cumstances where action can be taken on any
ground or for any reason that can be suggested
to the mind of the decision maker. This state-
ment has been understood to mean that all pub-
lic 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 re-
main 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 au-
thor argues that areas of untrammelled discre-
tion are inconsistent with the Supreme Court of
Canadas 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 pub-
lic power be exercised in good faith. The author
concludes by highlighting that while approach-
ing all discretionary authority as justiciable is
intended to alter the approach of Canadian pub-
lic law, Roncarellis project is as much a political
project as a legal one.
Laffaire Roncarelli demeure grave dans
les mmoires cinquante ans aprs sa rdaction,
notamment grce laffirmation par le juge
Rand qu il ny a rien de tel quune discrtion
absolue et sans entraves . Le juge Rand a dfi-
ni la discrtion sans entraves comme tant la
possibilit dimposer une mesure pour nimporte
quel motif ou raison qui puisse traverser lesprit
du dcideur. Cet nonc est compris comme signi-
fiant que toute rgulation publique exerce par
la prise de dcision discrtionnaire de cadres
officiels connat des limites juridiques, et que le
rle des tribunaux est de sassurer que les
dcisions ne dpassent pas ces limites.
Dans cet essai, lauteur explore plusieurs
domaines de rgulation publique au Canada qui
sont demeurs sans entraves . Ces domaines
comprennent des champs daction gouverne-
mentale qui sont rputs tre non-justiciables,
tels que les dcisions touchant aux relations in-
ternationales ou la remise de distinctions.
Lauteur fait valoir que ces domaines de discr-
tion sans entraves sont incompatibles avec le
raisonnement de la Cour suprme du Canada
dans laffaire Roncarelli. Afin de terminer le
projet inachev de larrt Roncarelli, lauteur
soutient que lon devrait reconnatre que toute
dcision discrtionnaire doit comprendre des
lments justiciables incluant, au minimum,
lexigence de la bonne foi dans lexercice du pou-
voir public. Lauteur conclut en soulignant que
si la reconnaissance du caractre justiciable du
pouvoir discrtionnaire a pour objectif de modi-
fier lapproche du droit public canadien, le pro-
jet de Roncarelli est tout aussi politique que
juridique.
* Osgoode Hall Law School, York University. I am grateful for the excellent research as-
sistance of Danny Saposnik. I am grateful to all of the participants of the symposium for
their ideas, and especially to Genevive Cartier for her comments and suggestions.
Citation: (2010) 55 McGill L.J. 661 ~ Rfrence : (2010) 55 R.D. McGill 661
Lorne Sossin 2010
662 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
The Rule of Law and Discretionary Authority
The Dilemmas of Justiciability and the Legacy of Roncarelli
A. The Acquisition and Exercise of Sovereignty
B. Foreign Relations
C. Political Questions
Conclusion: Beyond Roncarelli
663
665
670
675
677
680
686
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 663
Introduction
Roncarelli v. Duplessis1 was a case about the limits of executive au-
thority. Of all the reasons for which the case is remembered and discussed
fifty years later, the most significant is Justice Rands 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 untram-
melled 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 em-
blematic 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, be-
cause of the way in which Canadian courts have interpreted and applied
the doctrine of justiciability. Courts have found important spheres of ex-
ecutive 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 exer-
cise of public authority has been found to be non-justiciable, and to exam-
ine the relationship between justiciability and the rule of law as under-
stood 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 justicia-
1 Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140, 16 D.L.R. (2d) 689 [Roncarelli].
2 Ibid.
3 In this paper, executive discretion, administrative discretion, and discretionary
public authority will be used interchangeably to refer to settings where public officials
have either (1) a power under statute or through a prerogative authority that they may
exercise, or (2) a power that may be exercised in different ways. This analysis focuses on
the exercise of authority by the executive branch, and therefore does not deal with the
different dynamics that apply to constraints on the exercise of judicial discretion or the
exercise of legislative discretion. Abuse of discretion may be distinguished from abuse of
power, which was the specific concern raised in the context of Roncarelli. Rand J.s
judgment, however, has been adopted as a broader prohibition on abuse of discretion by
subsequent courts. See e.g. C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29,
[2003] 1 S.C.R. 539, 226 D.L.R. (4th) 198 [C.U.P.E.] (the Retired Judges Case dis-
cussed at infra note 14 and accompanying text).
664 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
bility 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 re-
view. Further, where courts decline to subject some elements of discre-
tionary authority to judicial review, this does not mean that those deci-
sions are immune to oversight. Other non-judicial actorsranging from
auditors general to ombudspersons, and from parliamentary committees
to the ballot boxplay a role in ensuring the accountability of discretion-
ary decision-makers. Finally, the internal checks on executive discretion
from published guidelines, to ministerial supervision, to the training, ex-
pertise, 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 ac-
countability for the exercise of discretionary authority, and more particu-
larly, 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 exer-
cise of authority was correct or reasonable, and an ultra viresbased re-
view, 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 contribu-
tions 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 adjudicat-
ing allegations that the government acted in an ultra vires manner in ex-
ercising its authoritye.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 un-
trammelled discretion in any public decision-making, of any sort.
4 The recent controversy involving the awarding of the Order of Canada to abortion activ-
ist Henry Morgantaler represents a reminder of the importance of the conferral of hon-
ours. See Sarah Barmak & Richard Brennan, I Deserve Order of Canada, Morgan-
taler Says The Toronto Star
(2 July 2008), online: The Toronto Star
Order of Canada Appointment Ottawa Citizen (16 August 2008), online: Ottawa Citi-
zen
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 665
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 doc-
trines of justiciability on the legacy of Roncarelli. Part III and the Conclu-
sion point the way to completing the unfinished project of Roncarelli.
I. The Rule of Law and Discretionary Authority
Discretionary authority arises when an official is empowered to exer-
cise 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 conven-
tional 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, re-
evaluating 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 special-
ized 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 frame-
work for accountability. The relationship between discretionary authority
and judicial oversight is therefore necessarily contextual and variable. In
5 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University
Press, 1977) at 31.
6 Dworkin adopted a view well aligned with that of Rand J. in Roncarelli when he pro-
posed that even where there are no explicit laws or rules that govern a decision, the
constraining reach of the legal principles of the rule of law extends to cover the exercise
of discretion. Therefore, Dworkin argued, there is really no such thing as absolute or
unfettered discretion. Judicial decision-making is always constrained by legal princi-
ples. Dworkins conception of discretion, however, still rests upon its binary opposition
to law.
7 See e.g. Genevive Cartier, Reconceiving Discretion: From Discretion as Power to Discre-
tion as Dialogue (S.J.D. Thesis, University of Toronto Faculty of Law, 2004) [unpub-
lished]; Anna Pratt, Securing Borders: Detention and Deportation in Canada (Vancou-
ver: UBC Press, 2005) c. 3 (Reframing Discretion); Lorne Sossin, An Intimate Ap-
proach to Fairness, Impartiality and Reasonableness in Administrative Law (2002) 27
Queens L.J. 809; Joel F. Handler, Dependent People, the State, and the Mod-
ern/Postmodern Search for the Dialogic Community (1988) 35 UCLA L. Rev. 999.
666 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
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 arbitrator.
Judicial oversight of discretionary authority is thus best understood as
a spectrum. This metaphor of a spectrum pervades administrative law
and reflects the idea that few principles apply in the same way across the
diverse venues for executive decision-making. For example, the Supreme
Court of Canada invoked the notion of a spectrum to explain the standard
of review to capture the idea that context will justify differing degrees of
curial deference.8 Similarly, the duty of fairness is also understood as a
variable obligation, to be contextually determined on a spectrum from a
maximum to a minimum degree of fairness.9
Justiciability, by contrast, typically is understood as an on/off switch:
either a matter is justiciable or it is non-justiciable. I would suggest, how-
ever, at least in the context of discretionary authority, that justiciability is
better understood as part of the broader spectrum of judicial oversight.10
For example, when courts engaging in judicial review assert that their
role is not to second-guess the wisdom of government policy but to ensure
that discretion has been exercised within the constraints of the decision
makers jurisdiction, this amounts to a finding that while the merits of
government policy choices may be non-justiciable, the motivations of the
decision maker are justiciable. This concept applies broadly in existing ju-
risprudence, ranging from the standard of review case law under adminis-
trative law to the section 1 case law under the Canadian Charter of
Rights and Freedoms.11 For this reason, the approach I endorse would not
represent a dramatic shift in the current standard of review jurisprudence
where courts already subject discretionary public authority to judicial re-
view on reasonableness grounds. Rather, as a refinement to the existing
jurisprudence, I would argue in favour of extending the scope of this re-
view of exercises of discretionary authority to a broader range of deci-
sions.
8 See Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, 257
N.B.R. (2d) 207; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329
N.B.R. (2d) 1. See also Lorne Sossin & Colleen Flood, The Contextual Turn: Iacobucci’s
Legacy and the Standard of Review in Administrative Law (2007) 57 U.T.L.J. 581.
9 See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para. 21, 174 D.L.R. (4th) 193 [Baker].
10 The idea of justiciability as a spectrum is not new. See e.g. R. v. Gibson, infra note 40.
11 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 [Canadian Charter].
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 667
Understood in this fashion, the ultra vires doctrine, the Wednesbury
unreasonableness,12 the more recent move to reasonableness review for
discretion in Canada, and the Canadian Charter all represent elabora-
tions of the relationship between discretion, deference, the rule of law,
and justiciability. In Baker, Justice LHeureux-Dub described this rela-
tionship in the following terms:
Administrative law has traditionally approached the review of deci-
sions classified as discretionary separately from those seen as involv-
ing the interpretation of rules of law. The rule has been that deci-
sions classified as discretionary may only be reviewed on limited
grounds such as the bad faith of decision-makers, the exercise of dis-
cretion for an improper purpose, and the use of irrelevant considera-
tions. A general doctrine of unreasonableness has also sometimes
been applied to discretionary decisions. In my opinion, these doc-
trines incorporate two central ideasthat discretionary decisions,
like all other administrative decisions, must be made within the
bounds of the jurisdiction conferred by the statute, but that consid-
erable deference will be given to decision-makers by courts in re-
viewing the exercise of that discretion and determining the scope of
the decision-maker’s jurisdiction. These doctrines recognize that it is
the intention of a legislature, when using statutory language that
confers broad choices on administrative agencies, that courts should
not lightly interfere with such decisions, and should give consider-
able respect to decision-makers when reviewing the manner in
which discretion was exercised. However, discretion must still be ex-
ercised in a manner that is within a reasonable interpretation of the
margin of manouevre contemplated by the legislature, in accordance
with the principles of the rule of law, in line with general principles
of administrative law governing the exercise of discretion, and con-
sistent with the Canadian Charter of Rights and Freedoms.13
Baker, in other words, reiterates that the rule of law frames the exercise
of discretionary authority. This notion of bounded discretionary authority
has been a consistent thread through Canadian public law since Ron-
carelli.
An example of the way in which Roncarelli continues to shape the
administrative law response to discretion is captured in Justice Binnies
majority reasons in C.U.P.E., the Retired Judges Case.14 This case in-
volved a challenge to the Ontario Minister of Labours discretionary ap-
pointment of several retired judges to chair interest arbitration panels to
resolve labour disputes in the health care sector. Justice Binnie wrote,
12 See Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (1947),
[1948] K.B. 223, [1947] 2 All E.R. 680 (U.K.C.A.) (recognition by the U.K. courts that an
unreasonable decision will be one that no reasonable decision-maker could reach).
13 Baker, supra note 9 at para. 53 [references omitted].
14 C.U.P.E., supra note 3.
668 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The decision in Roncarelli, despite the many factual differences,
foreshadows, in part, the legal controversy in this case. There, as
here, the governing statute conferred a broad discretion which the
decision maker was accused of exercising to achieve an improper
purpose. In that case, the improper purpose was to injure financially
(by the cancellation of a liquor licence) a Montreal restauranteur
whose activities in support of the Jehovahs Witnesses were re-
garded by the provincial government as troublesome. Here, the alle-
gations of improper purpose behind the unions challenge are that
the Minister used his power of appointment to influence outcomes
rather than process, to protect employers rather than patients, and,
as stated by the Court of Appeal, to change the appointments proc-
ess in a way reasonably seen by the unions as an attempt to seize
control of the bargaining process.
The exercise of a discretion, stated Rand J. in Roncarelli, is to be
based upon a weighing of considerations pertinent to the object of
the [statutes] administration. Here, as in that case, it is alleged
that the decision maker took into account irrelevant considerations
(e.g., membership in the class of retired judges) and ignored perti-
nent considerations (e.g., relevant expertise and broad acceptability
of a proposed chairperson in the labour relations community).15
Justice Binnies observation was made in service of his view that a
statute that empowered the minister of labour to appoint an interest arbi-
trator who is, in the opinion of the minister, qualified to act,16 required
the minister to abide by specific limits in exercising this discretion. Not-
withstanding the expansive nature of statutory language, Justice Binnie,
writing for the majority, held that the power to appoint was predicated on
a set of factors that had to be considered by the minister and yet were not.
In that case, such factors included the labour relations expertise of poten-
tial appointees, as well as independence, impartiality, and the general ac-
ceptance of potential appointees within the labour relations community.17
The Supreme Court of Canada has intervened at other times in discre-
tionary settings where irrelevant factors were considered. For example, in
Oakwood Development Ltd. v. St. Franois Xavier (Rural Municipality
of),18 a similar issue of failing to consider relevant factors arose where a
municipal council refused to consider an application for the subdivision of
some land prone to flooding. Although the council had considered the
flooding issue, it failed to consider the severity of the floods and excluded
consideration of any possible solutions to the problem. Justice Wilson
stated,
15 Ibid. at paras. 92-93 [references omitted], citing Roncarelli, supra note 1 at 140.
16 C.U.P.E., supra note 3 at para. 52, citing Hospital Labour Disputes Arbitration Act,
R.S.O. 1990, c. H.14, s. 6(5).
17 C.U.P.E., supra note 3 at para. 111.
18 [1985] 2 S.C.R. 164, 20 D.L.R. (4th) 641 [cited to S.C.R.].
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 669
More specifically, was [the Council] entitled to consider the potential
flooding problem and make it the ground of its decision to refuse ap-
proval of the subdivision? As Rand J. said in Roncarelli v. Duplessis,
any discretionary administrative decision must be based upon a
weighing of considerations pertinent to the object of the administra-
tion. For the reasons already given I am of the view that the Coun-
cil was entitled to take the flooding problem into consideration. The
issue does not, however, end there. As Lord Denning pointed out in
Baldwin & Francis Ltd. v. Patents Appeal Tribunal, the failure of an
administrative decision-maker to take into account a highly relevant
consideration is just as erroneous as the improper importation of an
extraneous consideration. … The respondent municipality, therefore,
must be seen not only to have restricted its gaze to factors within its
statutory mandate but must also be seen to have turned its mind to
all the factors relevant to the proper fulfilment of its statutory deci-
sion-making function.19
This kind of analysis, in my view, is exactly what Justice Rand fore-
shadowed in his reasons in Roncarelli. A grant of statutory discretion may
appear on its face to be virtually unfettered, but, in a legal system gov-
erned by the rule of law, all discretionary authority has limits. On this
view, however broadly a grant of discretionary authority may be worded,20
there ought to be no conception of the exercise of public authority entirely
outside the reach of the rule of law.
In the Reference Re Secession of Quebec, the Supreme Court of Canada
described the importance of the rule of law doctrine flowing from Ron-
carelli in similar terms:
The principles of constitutionalism and the rule of law lie at the
root of our system of government. The rule of law, as observed in
Roncarelli v. Duplessis, is a fundamental postulate of our constitu-
tional structure. As we noted in the Patriation Reference, [t]he rule
of law is a highly textured expression, importing many things which
are beyond the need of these reasons to explore but conveying, for
example, a sense of orderliness, of subjection to known legal rules
19 Ibid. at 174-75 [references omitted].
20 One issue left open in Roncarelli itself is whether Parliament can, with express lan-
guage, establish an unfettered discretion. Rand J. suggested in Roncarelli that this is
possible when he stated, [N]o legislative Act can, without express language, be taken to
contemplate an unlimited arbitrary power exercisable for any purpose, however capri-
cious or irrelevant, regardless of the nature or purpose of the statute (supra note 1 at
140). Nevertheless, the logic underlying such a proposition is doubtful. Whatever the
case might have been in 1959, if such a law were purportedly enacted today, it is likely
that it would be read down to impose some limits on the exercise of discretion through
the Canadian Charter. See e.g. Slaight Communications v. Davidson, [1989] 1 S.C.R.
1038, 59 D.L.R. (4th) 416; Little Sisters Book and Art Emporium v. Canada (Minister of
Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, 193 D.L.R. (4th) 193. And in the absence of
a Charter violation following from express language, an attempt to authorize unfettered
discretion would likely either be read down or subject to a declaratory remedy that such
statutory provisions were not consistent with the rule of law.
670 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
and of executive accountability to legal authority. At its most basic
level, the rule of law vouchsafes to the citizens and residents of the
country a stable, predictable and ordered society in which to conduct
their affairs. It provides a shield for individuals from arbitrary state
action.21
The principle of aversion to absolute discretion, as articulated by Jus-
tice Rand in Roncarelli, has now become axiomatic in Canadian public
law. However, as I discuss below, the principles of justiciability as cur-
rently applied by Canadian courts may operate at cross-purposes with
this ideal.
II. The Dilemmas of Justiciability and the Legacy of Roncarelli
Justiciability reflects a common law set of doctrines addressing the
circumstances under which a judge may decline jurisdiction over a dis-
pute. It usually arises where there is a claim that a dispute is not legal.22
Such a dispute may be characterized as purely political, or said to rest
on determinations that are not subject to proof in a judicial process (e.g.,
spiritual convictions that can neither be proven nor disproven through the
adversarial presentation of evidence).
Justiciability, as currently applied, may erode the rule of law as elabo-
rated in Roncarelli because it exempts significant discretionary public au-
thority from any judicial review.23 Judicial review, I argue, is a necessary
though not sufficient safeguard for the rule of law. Below, I discuss in
more detail the relationship between the application of justiciability and
these constraints on discretionary public authority.
The most significant exploration of non-justiciable categories of public
authority may be found in the Ontario Court of Appeals decision in Black
v. Chrtien.24 In that case, Conrad Black, then a Canadian citizen, had
been nominated for appointment by the Queen as a peer. Then Prime
21 Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 70, 161 D.L.R. (4th) 385
[emphasis added, Secession Reference].
22 Justiciability may also characterize disputes that are moot, not yet ripe, or are hypo-
thetical, abstract, or academic. These areas of justiciability are beyond the scope of this
article. On the scope of justiciability, see Lorne Sossin, Boundaries of Judicial Review:
The Law of Justiciability in Canada (Toronto: Carswell, 1999) c. 1 [Sossin, Boundaries];
Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy,
Foreword, The Supreme Court, 2001 Term, (2002) 116 Harv. L. Rev. 16; Wayne
McCormack, The Justiciability Myth and the Concept of Law (198687) 14 Hastings
Const. L.Q. 595.
23 At a minimum, rule of law grounds would include the traditional abuse of discretion
constraintsnamely, that no public authority can be exercised in bad faith, for im-
proper purposes, or in an arbitrary fashion.
24 Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215, 199 D.L.R. (4th) 228 (C.A.)
[Black cited to O.R.].
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 671
Minister of Canada Jean Chrtien intervened with the Queen to block
Blacks peerage, citing a contravention of Canadian law. Chrtien invoked
the obscure and inconsistently applied Nickle Resolution,25 passed by the
Canadian House of Commons in 1919, which requested that the King re-
frain from conferring titles on any of his Canadian subjects. Black sued
Chrtien for damages on the grounds of abuse of power, misfeasance in
public office, and negligence. He also sued the government of Canada for
negligent misrepresentation.
The prime minister and Attorney General brought a motion to dismiss
the claims (except the claim of negligent misrepresentation against the
government) on two grounds: first, that the claims were not justiciable
and therefore disclosed no reasonable cause of action; and, second, that
the Quebec Superior Court had no jurisdiction to grant declaratory relief
against the defendants because that jurisdiction lay exclusively with the
federal court. The motions judge held that the superior court had jurisdic-
tion to entertain Blacks claims, which he then dismissed. He held that
what was involved was an exercise of the Crown prerogative, which is
non-reviewable in court. Black appealed on the issue of justiciability.
The Ontario Court of Appeal held that the impugned actions of
the prime minister were non-justiciable. Justice Laskin, writing for
the court, described justiciability in the following terms: The notion
of justiciability is concerned with the appropriateness of courts de-
ciding a particular issue, or instead deferring to other decision-
making institutions like Parliament. Only those exercises of the pre-
rogative that are justiciable are reviewable.26
Justice Laskin held that regardless of whether one characterized the
prime ministers actions as communicating Canada’s policy on honours to
the Queen or as giving her advice on Blacks peerage, the prime minister
was exercising the prerogative power of the Crown relating to honours.
Justice Laskin further held that the exercise of the honours prerogative,
absent a Charter claim, is non-justiciable. The controlling consideration in
determining whether the exercise of a prerogative power is judicially re-
viewable, according to the Ontario Court of Appeal, is its subject matter.
The exercise of the prerogative will be justiciable, or amenable to the judi-
cial process, only if its subject matter affects the rights or the legitimate
expectations of an individual. The exercise of the honours prerogative was
described as always beyond the review of courts,27 because no important
individual interests are at stake and no ones rights are affected. No per-
son, in other words, has a right to an honour. The receipt of an honour
lies entirely within the discretion of the conferring body. The discretion to
25 See Canada, Journals of the House of Commons, vol. 55 (22 May 1919) at 295.
26 Black, supra note 24 at para. 50 [references omitted], citing Ref Re C.A.P., infra note 73.
27 Black, supra note 24 at para. 59.
672 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
confer or refuse to confer an honour, Justice Laskin concluded, is the kind
of discretion that is not reviewable by the court.
I have argued elsewhere that the Ontario Court of Appeals decision to
characterize Blacks allegations as non-justiciable was problematic.28 By
focusing on whether or not the affected party had a right to the benefit in
question, the court, in my view, missed the ambition of Justice Rands as-
sertion in Roncarelli.
The rule of law operates not only to provide those with rights a
mechanism to vindicate them, but also to constrain the exercise of arbi-
trary authority.29 On this view, irrespective of whether the person affected
by the exercise of discretion has a right or legitimate expectation to the
benefit in question, no public official has the authority to make a decision
that is arbitrary, improper, or in bad faith. Or, to put this point slightly
differently, all those affected by discretionary decisions have a right to a
decision made in good faith and for proper purposes. This constraint on
arbitrary discretionary authority would apply equally to Prime Minister
Chrtien as to a passport officer.
To return to Black, if Conrad Black could establish that Prime Minis-
ter Chrtien acted purely out of spite or a personal vendetta in communi-
cating with the Queen, then, on my view, the rule of law requires that a
court intervene. Justiciability addresses the capacity and legitimacy of the
court to adjudicate a matter. It may well be that the subject matter of a
dispute is ill suited to the adversarial process or to the kinds of evidence
admissible in a court.30 Thus, even where the merits of a discretionary de-
cision are beyond review, oversight is both possible and necessary to en-
sure that discretion is not exercised in bad faith or for an improper pur-
pose. As Justice Rand observed in his reasons in Roncarelli, Could an
applicant be refused a permit because he had been born in another prov-
ince, or because of the colour of his hair? The ordinary language of the leg-
islature cannot be so distorted.31
Following Black, the key question in relation to the justiciability of
discretionary authority is whether the decision engages a persons rights
or legitimate expectations. If one has neither a right to nor expectation of
an honour, then the matter is non-justiciable. Where an honour does af-
28 Lorne Sossin, The Rule of Law and the Justiciability of Prerogative Powers: A Com-
ment on Black v. Chrtien (2002) 47 McGill L.J. 435.
29 See Secession Reference, supra note 21.
30 This does not, however, appear to have been the case in the dispute between Black and
Chrtien, as Blacks allegations related to specific conversations and correspondence, all
of which could have been determined through the conventional presentation and cross-
examination of evidence.
31 Roncarelli, supra note 1 at 140.
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 673
fect someone profoundly, however, courts have deployed creative distinc-
tions to ensure judicial oversight.32 In my view, justiciability ought to turn
on whether legal boundaries to discretionary authority need to be elabo-
rated, not on whether the affected party had a right or an expectation at
issue.
There is, to use the framework of Justice Rand, a context and a per-
spective within which all public decision-making must conform. Another
(and, in my view, preferable) way of looking at this issue is to see a gen-
eral right on the part of all members of the public to have executive dis-
cretionary authority exercised impartially, in good faith, and for proper
purposes. This latter approach is similar to the principle that all members
of the public have a right to an independent and non-partisan public ser-
vice. The challenge in many settings of discretionary authority is simply
that there may be no directly affected person reasonably able or willing to
contest such a decision in court. There may well be other individuals or
organizations, however, who would be willing and able to do so. To the ex-
tent that there may be issues of standing if a person or organization not
directly affected by the decision wishes to challenge the exercise of discre-
tionary authority, these can be addressed by analogy to the existing doc-
trine of public interest standing.33 In other words, an allegation of abuse
32 See e.g. Chiasson v. Canada, 2003 FCA 155, 226 D.L.R. (4th) 351, 303 N.R. 54 [Chias-
son]. Chiasson involved a challenge to the decision by the Honours and Awards Direc-
torate of the Chancellery of Honours (an office of the Governor General) to refuse to
consider Richard Chiassons father for a Canadian Bravery Decoration for his part in a
rescue of American sailors at Louisburg, Nova Scotia in 1943. The Canadian Bravery
Decorations Committee had established a policy that only incidents occurring less than
two years prior to the date of submission would be considered. Chiasson was some fifty-
five years too late. Chiasson objected to the imposition of the two-year rule as being ul-
tra vires the committees powers, in light of the fact that it was not included anywhere
in the regulations under which the committee operates. Relying upon Black, the Crown
claimed that the committee was exercising the royal prerogative of granting honours,
which was nonjusticiable. Strayer J.A. for the Federal Court of Appeal, distinguished
the case from Laskin J.A.s reasoning in Black on the basis that written instruments
were available in this case to control the power being exercised (Chiasson, supra at
para. 8). He noted that a matter is usually considered justiciable if there are objective
legal criteria to apply or facts to be determined to resolve the dispute. Strayer J.A. held
that on the facts of this case, the regulations could arguably provide criteria for deter-
mining whether the process they outline has been followed and whether the committee
has exceeded its jurisdiction. Moreover, the regulations can create a legitimate expecta-
tion that the procedure in question will be followed (ibid. at para. 9).
33 See the following trilogy: Thorson v. Canada (A.G.) (1974), [1975] 1 S.C.R. 138, 43
D.L.R. (3d) 1; Nova Scotia Board of Censors v. McNeil (1975), [1976] 2 S.C.R. 265, 55
D.L.R. (3d) 632; Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575, 130
D.L.R. (3d) 588. See also Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, 33
D.L.R. (4th) 321. For an application of the public interest standing doctrine to analo-
gous circumstances, see Harris v. Canada, [2000] 4 F.C. 37, 187 D.L.R. (4th) 419 (C.A.).
Harris launched a class action on behalf of himself and all taxpayers required to file re-
turns pursuant to s. 150 of the Income Tax Act (R.S.C. 1985 (5th Supp.), c. 1). He was
674 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of discretion ought to be considered by a court whether or not a directly af-
fected person can demonstrate that their rights or expectations were jeop-
ardized by the decision.
The principle I advance above may well extend beyond what Justice
Rand elaborated in Roncarelli. Since Roncarelli clearly did have an expec-
tation interest in his taverns liquor licence, the question of the impor-
tance of that interest in framing the legal constraints on executive discre-
tion did not arise. Further, Justice Rands qualification to the claim that
there is no such thing as absolute and untrammelled discretion in public
regulation of this sort34 could be read as implying that in the context of
public regulation of some other sort, absolute or untrammelled discretion
may be tolerated.
If Justice Rand meant to suggest that executive discretion of some
other sort lay beyond judicial oversight, we do not have any clear descrip-
tion of what types of discretion he had in mind. It is worth noting the
irony, however, in the fact that Justice Rand was in a position to offer his
judgment in Roncarelli precisely because of one of the most significant
spheres of untrammelled discretion in our legal systemthat of judicial
appointment. I emphasize this connection in an earlier critique of Can-
adas discretionary judicial appointment system:
Roncarelli, therefore, reflects the Rand Paradox. The judge
most credited with subjecting executive authority to the rule of law
was himself appointed to the Supreme Court in an exercise of un-
checked and unreviewable executive authoritythat is, the author-
ity of the federal executive to appoint judges to the Supreme Court,
and to all federally appointed trial and appellate courts. The rule of
law in Canada, in other words, is supervised by judges appointed ac-
cording to a process that effectively lies beyond the reach of the rule
of law.35
Discretionary authority over judicial appointments also serves as an
example of a setting where it is difficult to imagine circumstances in
which someone directly affected would ever be in a position to challenge
it. Those who receive an appointment have no reasons to challenge this
exercise of discretionary authority, and those passed over for an appoint-
ment are not provided reasons as a basis for such a challenge. Arguably,
however, there is no setting where the rule of law is more crucial to safe-
guard, or where an abuse of discretion could have more pernicious conse-
quences to judicial independence and public confidence in the administra-
tion of justice. In my view, the exercise of the governments discretion to
granted standing to challenge the discretionary application of a tax status on a third
party, private family trust.
34 Roncarelli, supra note 1 at 140 [emphasis added].
35 Lorne Sossin, Judicial Appointment, Democratic Aspirations, and the Culture of Ac-
countability (2008) 58 U.N.B.L.J. 11 at 11.
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 675
appoint or not to appoint someone to the judiciary should be seen as a jus-
ticiable decision as a matter of law. However, if that is the extent of the
oversight over such decisions, the rule of law cannot be safeguarded in a
meaningful way. In this sense, justiciability should be seen as a point of
departure for rule of law accountability, albeit an incomplete and some-
times inadequate response to the challenge. Fulfilling the project of Ron-
carelli may well require the development of shared values within judicial
and executive perspectives on discretionary authority. In settings such as
judicial appointments where judicial review is unlikely to arise, reliance
on the executive may be greater.
It will fall, in other words, to institutional mechanisms developed
within the executive branch to enhance accountability. To take the exam-
ple of judicial appointments, the government could adopt a practice of
transparency and justification, which would make partisan or arbitrary
appointments far less likely.36 Such institutional measures will depend on
political leadership. In this sense, judicial review represents a necessary
but not sufficient point of departure. The application of justiciability doc-
trines as an on-off switch of legal accountability for discretionary author-
ity may erode the rule of law, precisely because political institutions tend
to take seriously as rule of law issues those matters that courts have
identified as such.
As I discuss below, however, there remain significant areas of execu-
tive discretion in Canada that continue to be seen as non-justiciable and,
as such, beyond legal accountability. I now examine some of these areas to
highlight the dilemmas posed by the justiciability jurisprudence. This dis-
cussion is not intended to be exhaustive, but rather illustrative.
A. The Acquisition and Exercise of Sovereignty
The exercise of state sovereignty is an example of a setting in which
executive discretion has been understood as non-justiciable. In this sec-
tion, I discuss two cases involving challenges to Canadian sovereignty by
aboriginal litigants that illustrate this principle.
First, the courts have found that executive decisions to enter into trea-
ties with aboriginal groups are not justiciable. In Cook v. Canada (Minis-
ter of Aboriginal Relations & Reconciliation),37 two groups of petitioners
sought to prevent British Columbias Minister of Aboriginal Relations and
Reconciliation from signing The Tsawwassen First Nation Final Agree-
ment until such time as consultations were completed with the Semiah-
moo First Nation and the Sencot’en Alliance, respectively. The petitioners
claimed that their groups had overlapping claims with the Tsawwassen
36 For discussion of this approach, see ibid.
37 2007 BCSC 1722, [2008] 7 W.W.R. 672, 80 B.C.L.R. (4th) 138.
676 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
First Nation and that the honour of the Crown required it to consult with
the petitioners and to accommodate their interests prior to signing the
agreement. Substantively, they argued that the duty to consult does not
mean that the Crown must consult and accommodate every potential
overlapping claim before agreeing to the terms of a treaty.38 Ultimately,
Justice Garson held for the petitioners, following the reasoning in Black.
She acknowledged that exercises of Crown prerogative powers were sub-
ject to a duty of fairness where a decision affects the rights of individu-
als.39
Second, courts have also held that Crown sovereignty in criminal law
matters is non-justiciable. The case of R. v. Gibson involved an application
by the Crown to quash an application made by an individual member of
the Akwesane First Nation for an order prohibiting the Ontario Court of
Justice from hearing a preliminary inquiry in his case.40 Gibson chal-
lenged the jurisdiction of the Crown to hold him criminally responsible for
an assault causing bodily harm and robbery that was alleged to have
taken place in a Canadian Tire parking lot in Caledonia.41 Gibson put
forward two arguments: (1) that the Crown had no jurisdiction over him
as an aboriginal person and member of the Akwesane First Nation; and
alternatively, (2) that his treaty rights prevail over the Criminal Code
under the rubric of subsection 35(1) of the Constitution.42 The court sum-
marily dismissed Gibsons application, holding, inter alia, that the sover-
eignty of the Crown in criminal law matters has been consistently consid-
ered non-justiciable.43 With respect to the first argument, Justice Whitten
adopted the reasoning in Black, noting that the justiciability of the
Crowns prerogative lies on a spectrum at one end of which lie matters of
high policy, which are immune from judicial review.44 Justice Whitten
further noted that attacks upon the sovereignty of the Crown as an at-
tempt to circumvent criminal proceedings have been dealt with many
38 Ibid. at para. 13.
39 Ibid. at para. 50.
40 [2007] O.J. No. 3948 (Sup. Ct. J.) (QL) [Gibson].
41 Ibid. at para. 3.
42 Ibid. at para. 6; Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.),
1982, c. 11, s. 35(1).
43 Gibson, supra note 40 at para. 12. The court also noted as an aside that the treaty in
question, the Nanfan Treaty (17 August 1701, signed by the Hon. John Nanfan) does
not on its language appear to reserve sovereignty in the matters of criminal law to the
Mohawks (Gibson, supra note 40 at para. 24).
44 Ibid. at para. 11.
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 677
times before, and that each time, the courts have declined to adjudicate
challenges to the acquisition of sovereign jurisdiction by Canada.45
These cases demonstrate types of authority that might be ill-suited to
judicial review because courts lack the legitimacy to limit the sovereignty
of the Crown. While there are good reasons to limit the scope of the judi-
cial role in resolving disputes about sovereigntyparticularly that the
courts derive their authority from the same wellspring of sovereignty of-
ten impugned in these challengesshould sovereignty be available as a
cloak behind which government may act with impunity? This question
takes on added bite in the context of foreign relations where the reference
to high policy has had even broader sweep.
B. Foreign Relations
Similar to issues engaging the sovereignty of the Crown, the cases be-
low illustrate how the conduct of foreign affairs has been held to be a mat-
ter of high policy and, as such, immune from judicial review as a cate-
gory.
In the case of Copello v. Canada (Minister of Foreign Affairs), the ap-
plicant, a diplomat serving with the Italian Foreign Ministry in Ottawa,
sought an order quashing a request made of the Republic of Italy by Can-
adas Minister of Foreign Affairs and International Trade that Copello be
recalled.46 This request came about as a result of two reports made of al-
legedly unacceptable behaviour on Copellos part and his threat of a civil
suit against one of the complainants. His attempts to gain an audience
with either the minister or the Chief of Protocol in order to clarify his po-
sition with respect to the two incidents were unsuccessful. In his judg-
ment, Justice Heneghan held that the acceptance and expulsion of diplo-
matic agents is not justiciable as it is an element of the royal prerogative
covering the conduct of diplomatic relations.47
Following Justice Laskins focus on a subject matter test as a thresh-
old of justiciability in Black, Justice Heneghan approached the question of
whether the rights or legitimate expectations of an individual were af-
fected by the exercise of the prerogative.48 His reasoning was that since
Copello held no independent rights or expectations under the framework
45 See R. v. Francis (2007), 85 O.R. (3d) 45, [2007] 3 C.N.L.R. 294 (Sup. Ct. J.); R. v. David,
[2000] O.T.C. 120, 45 W.C.B. (2d) 471 (Sup. Ct. J.); RO: RI: WI: IO v. Canada (A.G.),
2007 ONCA 100, 155 A.C.W.S. (3d) 324.
46 2001 FCT 1350, [2002] 3 F.C. 24, 213 F.T.R. 272 [Copello], affd 2003 FCA 295, 308 N.R.
175, 3 Admin. L.R. (4th) 214.
47 Copello, supra note 46 at para. 71.
48 Black, supra note 24 at para. 51.
678 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of the Vienna Convention on Diplomatic Relations49 (and since the rele-
vant articles of the convention had not been brought into domestic Cana-
dian law demonstrating an intention to keep the issue outside the legal
arena), the ministers request lay inside the realm of the Crown preroga-
tive in the conduct of foreign affairs, and thus outside the sphere of judi-
cial oversight.
In Ganis v. Canada (Minister of Justice),50 the British Columbia Court
of Appeal considered an application under section 57 of the Extradition
Act51 for judicial review of the minister of justices surrender order in fa-
vour of the Czech Republic. Ganis had been convicted in absentia by a
Czech court for being unlawfully at large after failing to return to prison
following a temporary leave of absence for good behaviour.52 He had been
serving a prison sentence for the Czech offence of trade or dealing in
women, which is analogous to the Canadian offence of procuring.53 Among
the arguments he put forward in seeking to quash the surrender order,
Ganis questioned the validity of the treaty pursuant to which the Czech
Republic was seeking surrender. In his decision, Chief Justice Finch held
that the existence of a treaty was not a justiciable issue. As treaty making
falls within the realm of foreign affairs, it falls within the sphere of sub-
ject matter that is not amenable to adjudication.54
Decisions to send troops abroad or to engage in military intervention
comprise another sphere of discretionary public authority that has fea-
tured arguments regarding justiciability. Aleksic v. Canada (A.G.), for ex-
ample, involved an action against Canada for damages and a remedy un-
der the Canadian Charter resulting from her participation in a bombard-
ment of Yugoslavia in the spring of 1999.55 The fifty-seven plaintiffs in the
case attributed a variety of allegedly tortious acts to the Crown and a
breach of their Charter right to life, liberty, and security of the person.
The Attorney General brought a motion to strike the statement of claim
arguing that the claim was not justiciable, and thus that the statement
did not disclose any reasonable cause of action. Justice Heeney, writing
for the majority of the court, agreed. Applying the subject-matter test
from Black, Justice Heeney held that the decision to participate in the
bombardment of Yugoslavia was closely analogous to a declaration of war,
49 18 April 1961, 500 U.N.T.S. 95, Can. T.S. 1966 No. 29, art. 9 (entered into force 24 April
1964).
50 2006 BCCA 543, 233 B.C.A.C. 243, 216 C.C.C. (3d) 337 [Ganis].
51 S.C. 1999, c. 18.
52 For the analogous Canadian offence, see Criminal Code, R.S.C. 1985, c. C-46, s.
145(1)(b).
53 See ibid., s. 212.
54 Ganis, supra note 50 at para. 20.
55 (2002), 215 D.L.R. (4th) 720, 165 O.A.C. 253 (Sup. Ct. J.) [Aleksic cited to D.L.R.].
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 679
which would place it well within the ambit of matters of high policy.56
Justice Heeney emphasized that the decision was beyond the review of
the courts as it was a pure policy decision made at the highest levels of
government, dictated by purely political factors.57 The sole exception to
this non-justiciability would be where an individual claimed that their
Charter rights had been violated.58 Otherwise, without a cognizable stan-
dard by which to measure wrongful behaviour, this sort of review would
not be well suited to court process.
Justice Wright provides a compelling dissent, holding that the action
should be allowed to proceed on the basis that the National Defence Act59
displaced Crown prerogative in this area.60 He further noted that even if
the prerogative did cover decisions to commit the armed forces to active
service, it would still be subject to the rule of law, whether domestic or in-
ternational.61 While international law, unless written into domestic law,
cannot be used to found a cause of action, Justice Wright suggested that
international law, as it informs the honour of the Crown, provides a justi-
ciable standard by which the use of royal prerogative as a shield can be
measured.
Blanco v. Canada concerned an action by the plaintiff for an injunc-
tion against the federal government to prevent it from deploying armed
forces to fight in Iraq without the consent of Parliament.62 Justice
Heneghan denied the interim injunction on three grounds: the question
was not yet ripe, it was non-justiciable, and the plaintiff relied on inap-
propriate authorities.63 Relying upon Justice Laskins judgment in Black
and the Supreme Court of Canadas decision in Operation Dismantle, Jus-
tice Heneghan affirmed that matters of high policy, including a decision to
go to war, are not justiciable unless an individual claims that the exercise
of royal prerogative has given rise to a breach of their Charter rights.
Finally, Turp v. Canada (Prime Minister) dealt with an attempt to
prevent Canada from participating in the conflict in Iraq.64 In that case,
56 Ibid. at 732.
57 Ibid.
58 See Operation Dismantle v. Canada, [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481 [Operation
Dismantle cited to S.C.R.]. In Aleksic, Heeney J. found the Charter claim pleaded to be
justiciable under this exception, though he expressed doubts as to whether this aspect
of the claim was engaged by the facts as pleaded (supra note 55 at 733).
59 R.S.C. 1985, c. N.4.
60 Aleksic, supra note 55 at 730-31.
61 Ibid. at 731.
62 2003 FCT 263, 231 F.T.R. 3 [Blanco].
63 Ibid. at paras. 11-12.
64 2003 FCT 301, 237 F.T.R. 248, 111 C.R.R. (2d) 184.
680 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the plaintiffs made an application for judicial review and a motion for in-
terim relief. For reasons similar to those in Blanco, the Supreme Court of
Canada declined to impose judicial constraints on the discretionary au-
thority.
While none of the cases discussed above reached the Supreme Court of
Canada, the Court offered its view of a similar dynamic in Canada (Prime
Minister) v. Khadr.65 Khadr involved a challenge to the Canadian prime
ministers decision not to request that a Canadian citizen be transferred
from the U.S. Guantanamo Bay detention facility. The Court concluded
that the matter was justiciable and provided a declaratory remedy but de-
clined to impose an order compelling the Canadian government to seek
Khadrs repatriation. In justifying this decision, the Court observed,
The limited power of the courts to review exercises of the pre-
rogative power for constitutionality reflects the fact that in a consti-
tutional democracy, all government power must be exercised in ac-
cordance with the Constitution. This said, judicial review of the ex-
ercise of the prerogative power for constitutionality remains sensi-
tive to the fact that the executive branch of government is responsi-
ble for decisions under this power, and that the executive is better
placed to make such decisions within a range of constitutional op-
tions. The government must have flexibility in deciding how its du-
ties under the power are to be discharged. But it is for the courts to
determine the legal and constitutional limits within which such de-
cisions are to be taken. It follows that in the case of refusal by a gov-
ernment to abide by constitutional constraints, courts are empow-
ered to make orders ensuring that the governments foreign affairs
prerogative is exercised in accordance with the constitution.66
As Khadr demonstrates, the exercise of public authority is never
purely political. The very fact of it being a public form of authority
brings with it the obligation to all of those affected that it be exercised in
good faith and for proper purposes. Public authority, understood as I have
suggested in this study, does not exist outside the rubric of the rule of law.
C. Political Questions
The question of the justiciability of foreign relations decisions and de-
cisions bearing on sovereignty are species of a broader question hinted at
above: the question of whether some disputes are inherently political
and therefore beyond the realm of the judicial process, and subject to po-
litical rather than legal accountability.67
65 2010 SCC 3, [2010] 1 S.C.R. 44 [Khadr].
66 Ibid. at para. 37 [references omitted].
67 For a more detailed discussion of this question, see Sossin, Boundaries, supra note 22, c.
4.
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 681
A vivid illustration of this dilemma was provided by the parliamentary
crisis in December 2008, which was precipitated when the Governor Gen-
eral decided to accede to the Conservative governments request to pro-
rogue Parliament in order to avoid a vote of non-confidence in the House
of Commons. Would a court have the capacity or legitimacy to interfere
with the discretionary authority exercised by the Governor General on
deeply partisan matters going to the heart of the democratic credibility of
Parliament?68 On the other hand, if not by the court, how will the rule of
law be vouchsafed in the midst of such a crisis? Consider what might have
happened if, as rumours at the time suggested, the Conservative govern-
ment threatened to remove the Governor General if she refused the re-
quest to prorogue.
The question of whether a political questions doctrine applies in
Canada was addressed, at least in part, by the Supreme Court of Canada
in the context of the reach of the Canadian Charter in Operation Disman-
tle.69 In that decision, dealing with a challenge by an antinuclear NGO to
the governments decision to permit U.S. cruise missiles to be tested in
Canada, the Court concluded that the claim was non-justiciable because it
turned on evidence (e.g., the Soviet Unions military strategy) that was in-
capable of being proven in a Canadian court. In her concurring reasons,
Justice Wilson held that it was not open to a court to decline to deal with
Charter claims of this kind merely because they involved cabinet deci-
sions or dealt with politically sensitive issues.70 However, she went on in
the same judgment to recognize that an issue will be nonjusticiable if it
involves moral and political considerations which it is not within the
province of the courts to assess.71 In this fashion, while rejecting the
American political questions doctrine per se, she opened the door to the
development of a distinctly Canadian approach, which would turn on the
ability of a court to parse a dispute into legal, moral, and political aspects.
The Courts approach in Operation Dismantle was put to the test in
subsequent cases, notably the Secession Reference. The amicus curiae
lawyer (appointed by the Court to argue Quebecs position in that case)
challenged the justiciability of the questions referred by the government
68 On the failure to provide reasons, see L. Sossin & A. Dodek, When Silence Isnt Golden:
Constitutional Conventions, Constitutional Culture, and the Governor General in Pe-
ter H. Russell & Lorne Sossin, eds., Parliamentary Democracy in Crisis (Toronto: Uni-
versity of Toronto Press, 2009) 91. While a court would be ill-suited to the task of re-
viewing the merits of the Governor Generals exercise of discretion, once again, I see no
reason why a court should not be able to review allegations that the discretion was ex-
ercised for an improper purpose, in bad faith, or in violation of applicable constitutional
conventions.
69 Operation Dismantle, supra note 58.
70 Ibid. at 472.
71 Ibid. at 465.
682 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
to the Court, which dealt with the legality of a unilateral declaration of
secession. The Court indicated that the question, put simply, was whether
the dispute is appropriately addressed by a court of law.72 The Court had
also examined the issue earlier in the Reference Re Canada Assistance
Plan (B.C.):
In considering its appropriate role the Court must determine
whether the question is purely political in nature and should, there-
fore, be determined in another forum or whether it has a sufficient
legal component to warrant the intervention of the judicial branch.73
In the Secession Reference, the Court held that a finding of nonjusti-
ciability is called for where adjudicating an issue would take the Court
beyond its own assessment of its proper role in the constitutional frame-
work of Canadas democratic form of government, or where the Court
could not give an answer that lying within its area of expertise: the inter-
pretation of law.74 The Court concluded that the questions posed by the
government on the issue of secession were strictly limited to aspects of the
legal framework in which decisions about secession might be taken, and
thus were justiciable. The Court observed,
As to the legal nature of the questions posed, if the Court is of
the opinion that it is being asked a question with a significant extra-
legal component, it may interpret the question so as to answer only
its legal aspects; if this is not possible, the Court may decline to an-
swer the question. In the present Reference the questions may
clearly be interpreted as directed to legal issues, and, so interpreted,
the Court is in a position to answer them.75
This is significant, in my view, as the exercise of discretionary author-
ity always involves a legal element. The legal element is precisely the one
addressed by Justice Rand in Roncarelli: what are the boundaries im-
posed by the rule of law on the exercise of public authority? While ques-
tions of whether discretionary authority was exercised in bad faith would
appear always to engage a legal aspect, the Supreme Court of Canada
has treated such issues as nonjusticiable in a number of settings.
In Thornes Hardware Ltd. v. Canada,76 a federal Order-in-Council
that altered the boundaries of the Port of Saint John was challenged. The
applicant claimed that the executive decision had been motivated by the
ulterior and improper purpose of expanding the revenue base of the Na-
tional Harbours Board. While conceding that there could be review in an
72 Secession Reference, supra note 21 at para. 26.
73 Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 545, 83 D.L.R. (4th)
297 [Ref Re C.A.P.].
74 Secession Reference, supra note 21 at para. 26.
75 Ibid. at para. 28.
76 [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577 [Thornes Hardware cited to S.C.R.].
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 683
egregious case of the cabinet failing to observe jurisdictional limits or
other compelling grounds,77 Justice Dickson (as he then was), writing for
the Court, held that [d]ecisions made by the Governor in Council in mat-
ters of public convenience and general policy are final and not reviewable
in legal proceedings.78 Justice Dickson was unwilling even to review the
evidence that alleged that the cabinet had acted in bad faith and contrary
to the rule of law. He found that it was neither our duty nor our right to
investigate the motives which impelled the federal Cabinet to pass the
Order-in-Council79 and observed that governments may be moved by
any number of political, economic, social or partisan considerations.80
Nonetheless, Justice Dickson was at least prepared to examine the evi-
dence to show that the issue of harbour extension was one of economic
policy and politics; and not one of jurisdiction or jurisprudence.81 In this
sense, he was not prepared to close the door entirely to review of Orders-
in-Council.
In Consortium Developments (Clearwater) Ltd. v. Sarnia (City of),82
the Supreme Court of Canada applied the Thornes Hardware principle in
the context of a municipal corporation appointing a board of inquiry under
Ontarios municipal legislation. Writing for the Court, Justice Binnie held
that the applicants had no right to examine municipal councillors with a
view to establish that they had improper motives in voting for the crea-
tion of a board of inquiry. He held that the motives of a legislative body
composed of numerous individuals are unknowable except by what it en-
acts.83
This approach has meant in practice that the rule of law may amount
to little more than a velvet fist in an iron glove. If courts are unwilling to
allow litigants to advance evidence of bad faith or improper motives in the
exercise of discretionary authority, or to consider such evidence when it is
presented, then judicial oversight will be limited to the rare occasions,
such as Roncarelli, where a decision maker announces publicly that he
wielded authority he did not have and did so for improper reasons.
Consider the example of David Suzuki Foundation v. British Colum-
bia (A.G.).84 In Suzuki Foundation, an environmental NGO sought to chal-
lenge an Order-in-Council that exempted timber originating from the
77 Ibid. at 111.
78 Ibid.
79 Ibid. at 112 [references omitted].
80 Ibid. at 112-13.
81 Ibid. at 115.
82 [1998] 3 S.C.R. 3, 40 O.R. (3d) 158 [cited to S.C.R.].
83 Ibid. at 36.
84 2004 BCSC 620, 17 Admin. L.R. (4th) 85, 8 C.E.L.R. (3d) 235 [Suzuki Foundation];
684 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
northwest regions of British Columbia from a prohibition on export, as set
out in section 127 of British Columbias Forest Act.85 The petitioners
claimed that subsection 128(3) creates conditions precedent to the juris-
diction of the Lieutenant Governor in Council (LGIC) to exempt timber
from the provisions of section 127. Subsection 128(3) of the Forest Act re-
quires that the LGIC be satisfied that the timber will be surplus to re-
quirements of processing facilities in British Columbia, that the timber
cannot be processed economically in the province, and further, that the
exemption will prevent waste or improve the utilization of timber cut from
Crown land. Justice Hood held that the Forest Act provided to the LGIC
powers to exempt, conditional only on his or her own subjective assess-
ment.86 Justice Hood characterized this authority as a complete, unfet-
tered, subjective discretion.87 Justice Hood found that the courts role was
limited to determining whether the LGIC had performed its functions
within the boundary of the legislative grant and in accordance with the
terms of the legislative mandate.88 He concluded that the LGIC had acted
within the scope of its statutory powers.89 He conceded, however, that
there would need to be at least some consideration of relevant evidence for
the decision to be made appropriately, and that the LGIC must act in good
faith.90 Justice Hood noted,
The important factor is the subject matter of the decision. Where
it involves the consideration of political, economic, social, and other
matters so vital to the legislators, but which the Courts are ill-
equipped to weigh or consider, the Court must defer to legislators
where no error in law or jurisdiction is found. Finally, the difficulties
in differentiating between legislative and administrative functions
should be avoided by taking this basic jurisdictional supervisory role
approach, and interpreting the statutory provisions in a context of
the pattern of the statute in which it is found. I note that this seems
to me to lead inevitably to a pragmatic and functional analysis.91
Courts have expressed particular unease when confronted with chal-
lenges to decisions of government that reflect clear policy preferences,
particularly around public spending. For example, in Canadian Bar Asso-
ciation v. British Columbia,92 where the Canadian Bar Association (CBA)
85 R.S.B.C. 1996, c. 157.
86 Suzuki Foundation, supra note 84 at para. 12.
87 Ibid.
88 Ibid. at para. 91. On the reluctance of the Court to impose constraints on the legislative
decision-makers, see Canada (A.G.) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735,
115 D.L.R. (3d) 1.
89 Suzuki Foundation, supra note 84 at paras. 142, 258.
90 Ibid. at paras. 125-28.
91 Ibid. at para. 121.
92 2006 BCSC 1342, 59 B.C.L.R. (4th) 38, [2007] 1 W.W.R. 331.
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 685
sought to establish a constitutional right to legal aid in civil justice set-
tings, Chief Justice Brenner held that
[i]n the case at bar, there is no challenge to a specific governmen-
tal decision, act, or statute. The case cannot be characterized as rais-
ing an issue with respect to the limits of statutory, administrative, or
executive authority. The challenge is to the funding, content, ad-
ministration, operation, and effect of an entire public program that
invokes various federal and provincial statutes, ministries, agencies,
and non-governmental entities and actors.
What the plaintiff effectively seeks in the case at bar is to have
the court conduct an inquiry on the subject of civil legal aid, define a
constitutionally compliant civil legal aid scheme, order the defen-
dants to implement such a scheme, and oversee the process to en-
sure compliance.93
…
In Friends of the Earth v. Canada (Governor in Council),94 the federal
court was faced with a challenge to the governments policy response to its
Kyoto Protocol commitments, and particularly to the duties of the gov-
ernment as elaborated in the Kyoto Protocol Implementation Act95a pri-
vate members bill committing the government to certain steps imple-
menting the Protocol. With specific regard to this case, Justice Barnes
held that the court has no role to play reviewing the governments re-
sponse to Canadas Kyoto commitments within the four corners of the
KPIA.96 He expressed doubts that the court has any role to play in con-
trolling or directing the other branches of government in the conduct of
their legislative and regulatory functions outside of the constitutional con-
text.97 Justice Barnes rejected an approach that would have him separate
the KPIA policy imperatives into justiciable and nonjusticiable compo-
nents.98 He noted that orders made under such an approach would be sub-
stantially empty of content.99 For example, he could mandate a regulatory
response by a certain date, but he would lack any control over its signifi-
cance or substance.
93 Ibid. at paras. 47, 49.
94 2008 FC 1183, [2009] 3 F.C.R. 201, 299 D.L.R. (4th) 583 [Friends of the Earth (F.C.)].
The Federal Court of Appeal dismissed an appeal from this decision, indicating simply
that it agreed with the reasons of the trial judge: Friends of the Earth v. Canada (Gov-
ernor in Council), 2009 FCA 297, 313 D.L.R. (4th) 767, 93 Admin. L.R. (4th) 72.
95 S.C. 2007, c. 30 [KPIA].
96 Friends of the Earth (F.C.), supra note 94 at para. 46.
97 Ibid. at para. 40.
98 Ibid. at para. 34.
99 Ibid. at para. 39.
686 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Justiciability, on this view, is tied not only to the subject matter of a
dispute but also to the courts remedial reach.100 This approach, however,
ignores important principles from other spheres of Canadian public law.
Courts have articulated the scope of constitutional conventions in signifi-
cant detail, for example, while noting that such standards are unenforce-
able. A remedy, moreover, may not require enforcement of any kind. For
example, it is always open to a court to issue a declaratory remedy when
the scope of intervention is limited, as the Supreme Court of Canada did
in Khadr, discussed above.101
In my view, the focus on remedies, like the focus on rights in Black,
places undue and unwise limits on judicial oversight for potential abuse of
discretionary authority. As an alternative, I have argued that no subject
matter of discretionary authority, in and of itself, should be viewed as
nonjusticiable. Justiciability should be seen as a spectrum on which vary-
ing levels of judicial scrutiny may be situated. No form of public authority,
however, ought to be seen as lying entirely outside the spectrum of legal
oversight. As I discuss below, the key to fulfilling Roncarellis promise is
to approach justiciability as an elaboration of the rule of law principle,
rather than its outer boundary.
Conclusion: Beyond Roncarelli
This article has explored the relationship between the doctrine of jus-
ticiability and the principles of the rule of law. In particular, I have exam-
ined judicial decisions in a range of settings such as exercises of sover-
eignty, foreign relations, and political questions, where courts have
opened the door to untrammelled discretion through their application of
justiciability. I argue that the Supreme Court of Canadas justiciability
case law should be re-evaluated from a rule of law perspective. Rather
than finding spheres of discretionary authority to lie outside the realm of
justiciability, I argue for a more nuanced approach. Recognizing that
some merits-based judgments lie outside the capacity or legitimacy of the
courts, I argue that other aspects of discretionary authority, such as
whether that authority was exercised in good faith and for proper pur-
poses, lie within the core of the courts guardianship role over the rule of
law.
In other words, in the context of particular disputes, there may be a
range of matters on which courts lack the capacity or legitimacy to adjudi-
cate. I do not believe, however, that the rule of law can be safeguarded if
there are entire spheres of discretionary public authority that are immune
from judicial review of any kind. While the spectrum of justiciability may
100 Ibid. at para. 47.
101 See supra notes 65-66 and accompanying text.
THE UNFINISHED PROJECT OF RONCARELLI V. DUPLESSIS 687
permit minimal judicial oversight at the more political end of discretion-
ary authority, fulfilling the project initiated in Roncarelli means vigilance
against arbitrary exercises of discretion.
A number of scholars have remarked how often Roncarelli has been
invoked over the past fifty years, but how rarely the rule of law is actually
relied upon as a basis for invalidating executive discretion.102 Even where
an incidence of improper discretion can be addressed through judicial re-
view (as in Roncarelli), judicial intervention depends on litigants with suf-
ficient resources, patience, and initiative to come forward. In some key
settingsjudicial appointments, as discussed above, is one exampleit is
unlikely that a directly affected litigant will ever seek to contest an exer-
cise of executive discretion. In such settings, respect for the rule of law
must come through a partnership between the courts and the executive
branch.
The aspect of Roncarelli that has received too little attention in my
view, and with which my study concludes, is the implication for the execu-
tive of its commitment to the rule of law. While I have argued that judicial
oversight ought to be available for the exercise of discretionary authority,
not even the most effective oversight can identify and remedy the varied
ways in which discretionary authority might be abused. In such settings,
while it is the role of the courts to articulate the requirements of the rule
of law, only executive leadership can promote and protect a rule of law
culture among discretionary decision-makers.103
To conclude, the first step to completing the project that Justice Rand
began in Roncarelli is to revisit the case law on justiciability to confirm
that no category of executive discretion lies outside the scope of judicial
oversight. All discretionary authority, irrespective of the subject matter,
must be subject to legal boundaries. The point of departure for elaborating
those boundaries is judicial oversight, but its destination is to internalize
102 See Peter W. Hogg & Cara F. Zwibel, The Rule of Law in the Supreme Court of Can-
ada (2005) 55 U.T.L.J. 715. Hogg and Zwibel observed that the rule of law is invoked
far more often than it is relied upon as grounds for invalidating discretion. David Mul-
lan, in a similar vein, observed that Roncarelli never had the impact it should have had.
See David J. Mullan, The Role of the Judiciary in the Review of Administrative Policy
Decisions: Issues of Legality in Mary Jane Mossman & Ghislain Otis, eds., The Judici-
ary as Third Branch of Government: Manifestations and Challenges to Legitimacy
(Montreal: Thmis, 1999) 313.
103 An example of this relationship may be seen in the context of the Supreme Court of
Canadas Baker decision (supra note 9). In Baker, the Court elaborated a different ap-
proach to exercising a discretionary exemption for humanitarian and compassionate
grounds. Following this decision, a new guideline was issued and a new training initia-
tive established in order to integrate the Courts standards into the day-to-day decision
making of front-line officials. For a discussion of this process, see Lorne Sossin, The
Rule of Policy: Baker and the Impact of Judicial Review on Administrative Discretion
in David Dyzenhaus, ed., The Unity of Public Law (Portland, Or.: Hart, 2004) 87.
688 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
a rule of law culture through the institutional mechanisms and practices
of executive decision-making. Only then may Roncarellis promise come to
fruition.
