Mullan, David

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 38, Number 1 (Spring 2000) Article 6Book Review: Boundaries of Judicial Review: TheLaw of Justiciability in Canada, by Lorne SossinDavid MullanFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMullan, David. "Book Review: Boundaries of Judicial Review: The Law of Justiciability in Canada, by Lorne Sossin." Osgoode Hall LawJournal 38.1 (2000) : 221-227.http://digitalcommons.osgoode.yorku.ca/ohlj/vol38/iss1/6BOOK REVIEWBoundaries of Judicial Review: The Law of Justiciabilityin CanadaBy LORNE SOSSIN(Toronto: Carswell, 1999)1 246, xxxii pagesNever before has there been so much concern and debate aboutthe appropriate role of the Canadian courts. Our sense of what kinds ofdisputes courts should be resolving is challenged by the nature of muchhigh-profile litigation. Just this year, for example, a group of votersattempted to have the British Columbia Supreme Court set aside aprovincial election for allegedly fraudulent assurances as to the existenceof a budget surplus made during the course of an election campaign by agovernment seeking re-election.2 Three social activists, two of themclergymen, defended a criminal charge of mischief for defacing a warmemorial. They asserted that a memorial in which a sword is embeddedin a cross amounts to blasphemy and a condonation of war.3 ConradBlack is apparently persisting in his action in the Ontario courts to holdthe Prime Minister accountable legally for blocking Mr. Black's effortsto become a member of the House of Lords.4 Are these issues that arereally suitable for judicial evaluation?These discrete instances aside, the most pervasive controversyremains the legitimacy of the authority that the courts have exercisedsince 1982 with the advent of the Canadian Charter of Rights andFreedoms.5 Was it a "good thing" that the courts were assigned the taskof policing legislation and governmental action by reference to thestandards enshrined in the Charter? Have the courts been exercising thisnew-found power with too little restraint? Have they been capturedinappropriately by various interests groups seeking to achieve politicalends through judicial rather than political processes?I [hereinafter Boundaries of Judicial Review].2 For the judgment allowing this cause of action to proceed, see Friesen v. Hammel, [1997]W.W.R. 268 (B.C. S.C.).3 For an account and commentary, see M. Valpy, "When it's not Just War" The Globe andMail (29 May 2000) R7. The three activists were later acquitted.4 See Black v. Canada (Prime Minister) (2000), 47 O.R. (3d) 532 (Sup. Ct.).5 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c. 11[hereinafter Charter].OSGOODE HALL LAW JOURNALIndeed, some argue that the Charter and the courts' role under itare largely responsible for the heightened expectations that manylitigants now have of the judicial process in other situations whereCharter values are not at stake. In part, this may explain thephenomenon of the three specific examples already provided. It mayalso account for the Supreme Court's expansive view of the reach ofjudicially enforceable constitutional norms as reflected in theresurrection of the preamble to the Constitution Act, 18676 as a potentialsource of constitutionally enforceable rights7 and, even more notably, inthe terms of the Court's judgment in Reference re Secession of Quebec.8In particular, the Court's articulation in that reference of fourunderlying constitutional principles 9 has begun to spawn new forms of orbases for litigation. This is exemplified most dramatically by the OntarioDivisional Court's use of the principle of respect for minorities as a basisfor judicial review of the Ontario government's decision to close thelargely francophone H6pital Montfort in Ottawa. 10Given this significant evolution in the character of the disputesdealt with by Canadian courts, Lorne Sossin's Boundaries of JudicialReview: The Law of Justiciability in Canada has appeared at a particularlyopportune time. The sustained nature of the challenges to judicialauthority has called for a thorough examination of the underlyingprinciple of justiciability and what makes a dispute suitable for judicialresolution. This work also fills a gap in Canadian legal literature to theextent that it is the first sustained or book-length consideration of theconcept of justiciability as developed by our courts. Moreover, to theextent that Sossin's research has revealed a Canadian approach to issuessubsumed within a concept of justiciability that finds no precise parallelsin other comparable common law jurisdictions, this is a work that will beof considerable worth to those outside Canada with an interest in thelimits on the tasks that can be assigned to or assumed by, and performedwell and appropriately by, courts as we generally conceive of themfunctioning in a common law setting.6 (U.K.), 30 & 31 Vict., c. 3, s. 91, reprinted in R.S.C., 1985, App. II, No. 5.7 In particular, see the judgment of Lamer C.J.C. in Reference re Remuneration of Judges ofProvincial Court of Prince Edward Island, [1997] 3 S.C.R. 3.8 [1998] 2 S.C.R. 217.9 Ibid.at 248: "federalism, democracy, constitutionalism and the rule of law, and respect forminority rights."10 Lalonde v. Ontario (Commission de restructuration des services de santd) (1999), 181 D.L.R.(4th) 263 (Ont. Sup. Ct.).222 [VOL 38 NO. IBook ReviewOne of the other singular contributions that Sossin has made inthe writing of this book is the very identification and bringing together ofvarious strands of Canadian jurisprudence in both public and private lawthat constitute the principal sources of our law of justiciability. Indeed,until comparatively recently, the expression or word was one thatsurfaced seldom in Canadian case law. Thus, even with modern aids suchas searchable databases, there was no easy way of locating variousprecedents in which issues of justiciability had surfaced. There was nocommon language which our judges have used invariably to deal withsuch problems, and, indeed, on many occasions, what at root were issuesof justiciability were categorized under other headings. Traditional toolsfor performing effective case law research were simply not reliable.Different techniques were required, and it is a tribute to Sossin's depthof knowledge, imagination, and hard work that we now have a work ofreference for occasions when such issues surface.Of course, as Sossin himself acknowledges in the first chapter,his task was not made easier by the fact that, even among those who hadpaid specific attention to the topic in the past, there had been noconsensus as to the precise boundaries of the principles of justiciability.llMoreover, most (including Sossin) seem to accept that the delineation ofwhat is appropriate for judicial determination cannot be the subject ofprecise philosophical, empirical or objective inquiry but also depends onnormative assumptions and a broad range of contextual considerations.To concede this point, one only has to reflect again on the extent towhich our experience with and, in most instances, expectations of thejudicial process have changed in Canada since the Charter.A further example of justiciability concerns, which featuresprominently in Sossin's book, is provided by the considerable divergenceon whether courts in the common law tradition should be involved inreference cases; that is, in the giving of purely advisory opinions togovernments on the law. Indeed, this is a divergence which exists in theworld of theory and in the laws of Canada, the United States, the UnitedKingdom, and Australia, to cite the jurisdictions used in the book forillustrative purposes. It is a divergence which is conditioned by therelevant constitutional norms of the various legal systems as well as morepragmatic considerations such as the extent to which courts can dealeffectively with questions put to them in abstract terms and whetherscarce judicial resources are deployed appropriately in allowing suchcases to be presented.II Boundaries of Judicial Review, supra note 1 at 2.2000] 223OSGOODE HALL LAW JOURNALIn large measure, Sossin is content to use the rather moredeveloped organizing principles of United States case law onjusticiability as a framework for presenting and analyzing the relevantCanadian authorities. The relevant American doctrines are those of"standing, mootness, ripeness, and political questions," 2 and the latterthree constitute the three core chapters of this work. However, Sossinrejects standing as such as a component of justiciability for the reasonthat standing is about who may bring a case to the courts rather thanwhat the courts may decide.13 Nonetheless, to the extent that Canadianlaw of public interest standing requires judicial consideration of theextent to which the public interest litigant is raising a justiciable issue, heacknowledges quite correctlyl 4 that the jurisprudence on standing willquite often include relevant discussion of principles of justiciability.Indeed, this is true of not just one but all three elements of theCanadian law of public interest standing. When Le Dain J. (for theSupreme Court in Finlay v. Canada (Minister of Finance))15 spoke ofjusticiability as one of the matters that had to be addressed indetermining whether a public interest litigant should be accordedstanding as a matter of judicial discretion, he specifically referred to theneed to consider whether the question raised was one that was in and ofitself "appropriate for judicial determination."16 Was it a question thatraised legal issues suitable for the court's consideration, such as theinterpretation of a statute or an agreement?However, each of the other two elements of Le Dain J.'s test(which continues to be applied in public interest standing cases) are alsovery much at the heart of the broader conception of justiciability thatSossin accepts for the purpose of his work. For Sossin, justiciability is notjust about whether an issue is a "legal" one in abstract terms but it is alsoconcerned with whether it will be presented in a manner which enablesappropriate judicial resolution and whether or not it is timely for thecourt to take the case. These same considerations are embedded in theother two limbs of the Finlay test:The judicial concern about the allocation of scarce judicial resources and the need toscreen out the mere.busybody is addressed by the requirements ... that there be a seriousissue raised and that a citizen have a genuine interest in the issue. ... The judicial concern12 Ibid. at 21.13 Ibid. at 5.14 Ibid. at 6.15 [1986] 2 S.C.R. 607 [hereinafter Finlay].16 Boundaries of Judicial Review, supra note 1 at 4.[VOL. 38 NO. IBook Reviewthat in the determination of an issue a court should have the benefit of the contendingviews of the persons most directly affected by the issue ... is addressed by therequirement .. that there be no other reasonable and effective manner in which the issuemay be brought before the court1 7Thus, while the emphasis might be different, many of therelevant concerns at the very least overlap as between the two domainsof standing and justiciability. It therefore is not surprising thatreferences to the standing cases recur throughout the book and whySossin returns specifically to the standing cases in a separate section inChapter 5, "Procedural Dimensions of Justiciability."18 At a theoreticallevel, this does, however, raise questions as to whether Sossin'ssuperficially attractive differentiation between standing and justiciabilityon the basis of "who" and "what" can withstand scrutiny. Moreparticularly, it would have been informative to have heard a little moreabout why American justiciability doctrine actually includes standing.There are also other instances in which questions can be raisedor issue taken with the selection of what to include within the concept ofjusticiability and what to leave out. Thus, in Chapter 2, "The Doctrine ofRipeness," the author asserts that Canadian law has developed variousstrands of a ripeness doctrine, all of which are founded on the principlethat purely hypothetical questions are not justiciable in a Court.19This statement seems, however, to be undercut by his inclusionof cases in which the court rejected an application for judicial reviewsimply on the basis that there was an alternative remedy or avenue ofrecourse available. In many of these cases the court did not dismiss theapplication because the questions raised were hypothetical at least in thesense of not being able to "be answered with any assurance ofcorrectness." 20 Rather, the concern was with the allocation of scarcejudicial resources and respect for legislative choice. Given that, theremust be some question as to whether such cases fit readily within theauthor's concept of "justiciability" and, even if they do, why Sossin doesnot also feature the case law on collateral attack2l and, more generally,undue delay in seeking relief, case law which is based on those sameconcerns.17 Finlay, supra note 15 at 633.18 Boundaries of Judicial Review, supra note 1 at 202-06.1 9 1bid at 31.20 As defined by Lamer C.J.C. in Reference re Excise TaxAct (Canada), (sub nom. Reference reGoody & Services Tax), [1992] 2 S.C.R. 445, cited in Boundaries of Judicial Review, supra note 1 at 27.21 There is in fact a mention of the collateral attack jurisprudence but only for a more generalstatement: see Boundaries of Judicial Review, supra note 1 at 84.2000]OSGOODE HALL LAW JOURNALSimilarly, there is room for debate about the contents of Chapter622 which is aimed at demonstrating, notwithstanding the lack of explicitacknowledgment, that the Supreme Court has in effect adopted a formof "political questions" doctrine. My sense is that that argument couldbe made even more strongly by reference to the continued common lawand statutory protections afforded to the "Crown" in litigation,protections which at root are often concerned with putting certain issues(either directly or by procedural and evidential rules such as "executiveprivilege") beyond the domain of the courts.However, these are for the most part minor quibbles particularlyin the case of Chapter 6, which is probably the strongest and mostground-breaking in the book. In demonstrating the extent to whichCanadian courts refuse to deal with issues for reasons that correspond tothe American "political questions" doctrine, Sossin undermines anycontinued acceptance at face value of Wilson J.'s oft-quoted statementin Operation Dismantle Inc. v. R.23 that Canada does not have a "politicalquestions" restriction on justiciability. From this point on, surely the taskof our courts will be to recognize the reality that Sossin has exposed andeither to reevaluate that reality when cases arise or, more probably, todevelop a framework within which such concerns can be dealt withconsistently and appropriately.Indeed, for these purposes, the courts would do well to giveserious consideration to the multi-factored approach that Sossin outlinesin his conclusion to this important chapter as a basis for identifying thosecombinations of issues and context which contribute to make a matternon-justiciable as a "political" question:In the case of the political questions analysis, a court should similarly consider a range ofcontextual factors, including evidence of a statutory intent to assign the dispute toanother branch of government, the likelihood that the dispute could be resolved throughpolitical means, the nature of the issue and its seriousness for the party seeking judicialreview.24While such an approach does not produce automatic answers, it may atleast serve to ensure that most judges are on the same page and lead tothe evolution of a rather more sophisticated and appropriately detailedregime for dealing with such concerns. Indeed, Sossin himself is shrewdenough to recognize that his proposed framework for analysis is but a22 IbiiL at 227-38.23 [1985] 1 S.C.R. 441 at 472.24 Ibi at 200.[VOL, 38 NO. IBook Reviewstarting point, not an end point in the rationalization of this area of thelaw.Other strengths of this work include Chapter 3, "The Doctrine ofMootness," 25 which is comprehensive in its analysis of the issue, at leastin the public law domain, and usefully prescriptive. Also, both theintroductory and concluding chapters serve the normal purposes of suchchapters very well.Aside from the concerns expressed above about the delineationof the boundaries of justiciability, I think it is also fair to say that thework pays too little attention to the problem of justiciability in privatelaw. Indeed, perhaps subconsciously, Sossin betrays his ambivalence onthis in the two part title of his work. Boundaries of Judicial Reviewsuggests a book confined to public law issues, while The Law ofJusticiability in Canada holds out the promise of general coverage of theissue. The consequence is an at times uneasy and frustratingcompromise. As a traditionalist in such matters, I also lament theobvious absence (particularly in the case of Chapter 2) of an experiencedlegal editor with responsibility for careful proofreading and the removalof unnecessary repetition. It could and should have been a cleaner andtighter work. However, when measured against the book's obviouscontributions, these concerns are more than offset and can all beaddressed in what I trust will be an automatic second edition. This is afield that cannot stand still and Lorne Sossin has had the wit to realize itin producing a work which occupies with distinction a previouslyunoccupied field.David MullanOsler, Hoskin & HarcourtProfessor of Constitutional and Administrative LawFaculty of Law, Queen's University25 Ibid. at 93-130.2000]

Book Review: Boundaries of Judicial Review: The Law of Justiciability in Canada, by Lorne Sossin

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Book Review: Boundaries of Judicial Review: The Law of Justiciability in Canada, by Lorne Sossin

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