Business research is often viewed as a wish-list item. Nothing could be farther from the truth. Business research is akin to performing preventive maintenance on a car while inventing new technology for the vehicle. It can save a business’ bacon and increase its productivity.

There is little talk about business research as an organized activity. Corporate research gets some attention, but business research falls flat. The difference is one of scale. Corporations that fund research departments often have considerable resources at their disposal. Smaller firms have it or they don’t; attend a librarians’ conference if you’d like to hear more. Some companies specialize in market research; other, larger companies, provide global solutions. These divisions are suitable for a bygone era, where divisions of labour were relatively clear and large businesses abounded. The expanding gig economy and an increasing presence of digital disruptors means that less clear divisions exist. This fog of war gives smaller, more dynamic firms the ability to gain ground.

‘Business research’ in this context means more than corporate or market research. It embraces the strategic and tactical dimensions of corporate and market research while also fulfilling the gig economy’s need for client-focused, local research. That is to say, business research embraces an enterprise’s front and back ends to deliver seamless service. It is an essential part of the gig economy and Industry 4.0, for the gig economy’s main means of exchange is through the information super-highway. Business research processes digital and analog information to create or encode most every product that we possess.

This changing landscape affords a fresh understanding of business research suited to gig workers and disruptors. All that’s needed is a glance at a humble librarian’s career at the end of the twentieth century and into the twenty-first, where the changes to research and knowledge management revolutionized the librarian’s and the researcher’s roles…only to maintain the cardinal principle that makes business research worthwhile.

My father was a librarian who spent his career organizing and tending to corporate knowledge. He mainly worked in big firms providing corporate and market research. The libraries in which he worked were designed to support profit centers.

I remember spending my childhood in those libraries, and my formative years were traditional libraries’ last kick at the can. I’d go to work with my dad and spend time antagonizing (in retrospect) very kind librarians. My love of books no doubt sprung from these interactions.

As we delve into the twenty-first century, however, physical libraries become less relevant. I saw this firsthand with my pops, whose role began to emphasize finding information over organizing it. These roles, of course, go hand in hand. Information is only found by those who understand it’s organization.

The scale on which electronic, networked, organization is conducted changed the game. The information with which my father dealt in the last year’s of his career was more mercurial than ever. Large data sets and the availability of qualitative sources made it relatively easy to know something without understanding anything. The large firms at which my dad worked were able to move past this barrier to entry. They employed analysts and librarians to interpret massive databases.

Therein lies the problem. The work of interpreting such databases is increasingly being completed by machines that are inherently quantitative mechanisms. Large companies’ economies of scale continue to scale, and librarians like my father find themselves redundant in a new world that sometimes forgets the importance of human research.

The career that my father wound up traced the great lines of this forgetting–and Ray Bradbury would be proud of the results. It’s now difficult to track news in a deluge of information, let alone discrete research tasks. Why not let a computer do the heavy lifting? Librarians are costly investments and the results of their efforts are fallible. Work to the bottom line.

My old man’s career cut through the process of forgetting. He walked out of a master’s degree in library science in 1993 and started work at a public library. He quickly moved to corporate libraries, and the job became increasingly digital. Part of the change was due to the new environment. Another part was the changing means with which we store and access information. These factors play into our ability to forget. They pale, however, on comparison to insistence on maximum efficiency. As the oughts became the teens, by father was subjected to an increasing standard of professional responsiveness. The data existed, therefore he could find the information, and find it quick thanks to technological innovations.

Research, however, is not affected by the amount of available information. A researcher still has to do the work of finding and compiling the right details.

The burden placed on my father and his fellow corporate librarians to get business research done right and faster than ever guaranteed that their work would be undervalued. His eventual redundancy resulted from the expectation of instant gratification that computerized research provides. Partners and associates didn’t feel the need to consult a researcher when they could pull results that seemingly provided a complete description from a Google search, or a corporate dataset.

Hence partners and associates forgetting the importance of business research in the large firm. The pressures in a corporate economy often get the better of business researchers’ end-users. Other things might move quickly, but the fact of the matter is that quality research takes time, and that doesn’t just mean working overtime to produce some result.

Human research captures the nuance of each problem, and such nuance is critical when working with customers or colleagues. It marks the difference between showing that one cares for the others’ interests and an attitude that reduces a person’s interests to a problem that needs solving.

The corollary to this observation is that research is creative. Drawing different strands of networked information together generates new ideas. The methods used build value, because they refine the way in which knowledge is stored and how it can be retrieved. The end result creates and inspires new thoughts. It passes information through the funnel that is a researcher’s mind. Each instance, procedural or substantive, breeds novelty.

The value in this human phenomenon is oftentimes displaced by immediate concerns. The sausage gets made without regard for the consequences.

One of those consequences is the loss of respect for the researcher or the knowledge manager. They are erudite gatekeepers removed from practise, punctilious: abstract. Indeed they can be so many words. They are also diligent workers and able institutional resources. These qualities shine through in the long term. People often only see the bottom line.

The tools that changed my dad’s job also give it new meaning.

Librarians and researchers now contend with a virtually infinite knowledge base. Pinning the issues down is more complex, with greater diversity of opinion, because those opinions are readily accessible in a click. They no longer curate physical collections. 

This changed job description nevertheless maintains its roots: librarians and researchers must still dedicate their working lives to understanding others’ needs, translating those needs into research questions, and building answers. Those answers are needed without delay and are subject to information that changes instantly with electronic publication. The job isn’t for everyone, yet employing a researcher is beyond most people’s means. 

Hence the appearance of freelance or subscription researchers, whose role is to serve as trusted advisor and knowledge base. This role can help small businesses by enhancing their market intelligence at affordable rates; it can also build strategic insights, thus allowing businesses to change tack on a dime. For lawyers in particular, third-party researchers check biases and question arguments. These functions ultimately make for stronger businesses and better representation.

The short form? Consider building a relationship with a researcher. 

Check out a.p.strom’s aviation law practise

This post has been updated after correspondence with Transport Canada regarding its aviation medicine certification regime. 21/06/21.

Transport Canada’s Civil Aviation Medicine (CAM) program has continued a discriminatory policy against subjects who present with mental health conditions that would not pose a danger to aviation safety. CAM has done so by misinterpreting and misapplying its enabling legislation. These faults amount to a breach of subjects’ right to equality; they also show that Transport Canada has not minimally impaired subjects’ rights or balanced the purported benefits of its discriminatory policy with the ill effects that subjects with mental health conditions suffer.

This note reviews the CAM program’s legislated standards and policy documents and considers them against the Australian example while applying Canadian human rights norms to show how the discrimination occurs.

Scitote

Aviation safety is, to be abundantly clear, a very legitimate purpose. That legitimacy, however, does not give doctors the ability to impose discriminatory and restrictive standards without an evidence-based rationale that substantially complies with aviation law and with Canadian human rights obligations.

Introduction

The current regime at Canadian Aviation Medicine has, as I have previously indicated, impinged upon subjects’ human rights when they disclose a history of mental health concerns during the medical certification process. After further reflexion, the problem appears to run deeper than previously indicated.

The short version is that Canadian Aviation Medicine aims to certify pilots as safe to fly. Their regulatory documents all indicate that any condition that renders a pilot unable to safely exercise the privileges of her or his license will be denied medical clearance. Canadian Aviation Medical Examiners (‘CAME’) and Regional Aviation Medical Officers (‘RAMO’) are bound to apply Transport Canada policy; that policy currently openly discriminates against mental health concerns by assuming that all mental health conditions render a person unfit to fly based on the prevailing standards.

As stated earlier, the Canadian Aviation Regulations Part IV, Standard 424.17 (4) specifies the physical and mental standards for medical categories. The standard related to mental issues is stated in 1.3 (a), 2.3(a), 3.3(a), 4.3(b):

“The applicant shall have no established medical history or clinical diagnosis which, according to accredited medical conclusion, would render the applicant unable to exercise safely the privileges of the permit, licence or rating applied for or held, as follows: (a) psychosis or established neurosis.”

At first glance this would render anyone with any history of depression, anxiety or other neurosis unfit to be licensed to fly. However, Transport Canada Civil Aviation Medicine has developed an approach to this issue that considers individual circumstances more intently.

Additionally, the use of medications for treatment of these disorders raises regulatory questions as stated in 1.1(d), 2.1(d), 3.1(d), 4.1(d):

“The applicant shall be free from (d) any effect or side effect of any prescribed or non-prescribed therapeutic medication taken, such as would entail a degree of functional incapacity which accredited medical conclusion indicates would interfere with the safe operation of an aircraft during the period of validity of the licence.”

Again, recognizing that the use of medications to treat mental issues is generally a positive step, but does complicate the considerations for medical certification TC CAM has established an approach that individualizes the decision making process.

Handbook for Civil Aviation Medical Examiners – TP 13312, emphasis added.

The discriminatory assumption is subtle, but present: the medical standard requires all medical evaluations to focus on whether the individual can safely operate an aircraft and exercise all of the privileges (and responsibilities) imposed on holders of aviation licenses. This requirement is immediately interpreted by Civil Aviation Medicine as ‘render[ing] anyone with any history of depression, anxiety or other neurosis unfit’. CAM is quick to downplay this statement by advertising its new policy, but its handbook elsewhere indicates that particular ‘psychiatric diseases’ presumptively render a person unfit. The subtle bias signaled by that ‘first glance’ remains, and CAM’s response to a presumptive determination is to immediately begin considering whether the person assumed to be unfit qualifies for an exemption pursuant to sub-section 404.05(1) of the Canadian Aviation Regulations:

(1) The Minister may, in accordance with the personnel licensing standards, issue a medical certificate to an applicant who does not meet the requirements referred to in subsection 404.04(1) where it is in the public interest and is not likely to affect aviation safety.

This exemption relies on a proper determination that an applicant is unable to safely pilot an aircraft or serve as an air traffic controller. Civil aviation medicine’s approach improperly determines this point because it operates on the assumption that all mental health conditions render a person unfit without any additional investigation.

This note shows how Canada’s Civil Aviation Medicine program is constitutionally deficient. Specific reference will be made to sections 15 and 24 of the Canadian Charter of Rights and Freedoms, which allows a court to review Transport Canada’s conduct. These sections read:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.)

These provisions come into play as a result of the government’s actions; its legislation (which would be controlled by section 52 of the Charter) is free from bias. This note concludes by calling for a new approach to aviation medical certification that treats subjects with the dignity that section 15 is meant to protect while ensuring aviation safety for all.

Canadian aviation medicine, discrimination, and its effects

Canadian aviation medicine operates under the Aeronautics Act, which is federal legislation that incorporates standards from the International Civil Aviation Organization (ICAO) into Canadian law. Its program is discriminatory not because the law makes it so; the doctors running the program instead make a host of assumptions about mental health that undermines the letter of the law (which may be a crime). The systematic effect of this discrimination perpetrates a violence on subjects that Hannah Arendt describes with brutal prescience:

In a fully developed bureaucracy there is nobody left with whom one can argue, to whom one can present grievances, on whom the pressures of power can be exerted. Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant.

On Violence (London: Allen Lane, 1970), p. 81

That initial assumption made within Transport Canada’s bureaucracy creates a hurdle over which subjects have significant problems jumping. The discrimination visited upon these subjects is thus twofold: it creates an immediate denial of the privilege to which they may be legally entitled; it also imposes a much more difficult set of bureaucratic processes to disprove the immediate denial.

This discrimination is typically justified with reference to aviation safety. This justification fails in the measure that its proponents cannot identify specific concerns that would preclude those with any mental health condition from flying. Chronic depression, for example, is treatable and, in some cases, results in no impairment that could affect aviation safety. So, too, is high anxiety. Ignorance is an unfortunate justification. It underscores the need for subjects to navigate the Transport Canada bureaucracy to receive equal treatment.

A common, more informed refrain used to justify Canadian aviation medicine’s biases is that ICAO imposes these standards. The Chicago Convention creates a worldwide set of standards for aviation, which includes medical standards for pilot and air traffic controller (ATC) certification. This shibboleth is quickly disproven by looking to the international context in which Canada’s medical standards exist.

Effect of discrimination

Prior to considering these standards, the effects of Canada’s discriminatory system ought to be fleshed out.

The initial assumption

A medical examination system that begins with an instruction to discriminate is, at first glance, a deeply biased system. The onus (as I have elsewhere shown) rests on individual applicants not only to convince doctors to shake their biases, but also to convince the Government of Canada to change its policy. This is a heavy charge for which most individuals are ill-equipped and under-resourced.

Bias against mental health conditions creates a violation of the Canadian Charter because section 15 requires Transport Canada to apply the law equally to those people who disclose mental health disabilities. The Supreme Court thus said that: ‘The essence of stereotyping … lies in making distinctions against an individual on the basis of personal characteristics attributed to that person not on the basis of his or her true situation, but on the basis of association with a group’ (Winko, para. 87). Canadian Civil Aviation Medicine includes this stereotype in its Handbook for Civil Aviation Medical Examiners. All mental health conditions are presumed to be disqualifying without reference to individual cases.

Transport Canada only takes a case-by-case approach to grant exemptions from the strict medical standards. The burden and cost of obtaining these exemptions falls on individual applicants, pilots, or air traffic controllers.

The Canadian Aviation Regulations, however, which incorporate Standard 424 relating to medical certification, require an individualized process that specifically exempts stereotyping:

The applicant shall have no established medical history or clinical diagnosis which, according to accredited medical conclusion, would render the applicant unable to exercise safely the privileges of the permit, licence or rating applied for or held, as follows: 

(a) psychosis or established neurosis;
(b) alcohol or chemical dependence or abuse;
(c) a personality or behaviour disorder that has resulted in the commission of an overt act;
(d) other significant mental abnormality.

Physical and Mental Requirement, amended 2007/12/30, emphasis added.

The required examination must assess whether any of the listed conditions would, in the applicant’s individual circumstances, create a safety hazard.

Standard 424 also indicates that a CAME must grant the highest medical certification possible based on the evidence before them: ‘An applicant shall be granted the highest assessment possible on the basis of the finding recorded during the medical examination.’

Based on these provisions, that Standard is not only constitutionally acceptable. It is an exemplar of the individualized process required by Canadian constitutional law.

The implementation of this policy, however, leaves much to be desired. The Handbook for Civil Aviation Medical Examiners contains these standards:

The presumption could not be clearer: all anxiety- or depression-related conditions are disqualifying. Pilots are not fit to fly if these conditions are present. The individualized consideration given to applicants appears to fall under section 404.05 of the CARs, which is invoked only when a person is found to be unfit. This added burden creates a disadvantage for applicants with mental health conditions. Transport Canada resists this interpretation, but the use of the words ‘may be considered for medical certification’ after a paragraph that declares depression a disqualifying condition indicates that the disqualification has occurred.

These instructions violate Standard 424 because they do not engage in the required assessment for fitness to fly before implementing the Minister of Transport’s ability to license with conditions.

Pilots and ATC presenting with mental health conditions thus do not benefit from an even application of Standard 424. This discriminatory treatment disadvantages pilots with minor mental health conditions, like dysthymia or some anxiety disorders. These conditions may persist throughout a person’s life and not interfere with her or his aviation duties. They may also be treated with maintenance therapies.

These options are only acknowledged as grounds for exempting a person from medical standards, which means that a professional pilot or ATC may face an indefinite license suspension if she or he discloses a mental health condition. An indefinite suspension is, for most pilots, detrimental to their careers, yet Civil Aviation Medicine does not seem responsive to these grave risks.

Private pilots investing time and money in their hobby are, of course, less affected by these strictures. Their interest is typically more personal. A discriminatory decision from Civil Aviation Medicine will only affect property interests in aircraft or the like.

Either way, though, discrimination hits hard. Research shows that the stigma of perceived discrimination can negatively impact a person’s mental health. An applicant’s pre-existing condition may thus be worsened by Civil Aviation Medicine’s behaviour, which result stands at odds with CAM’s mission and doctors’ ethics.

The violence of bureaucracy

Discrimination is bad enough. Systematic discrimination, for most, is insurmountable due to the sheer size of government bureaucracy. Once this part of the story gets added to the mix, the violence visited upon individuals who disclose that they have a mental health condition becomes acute. The government stands as a representation for wider social stigma, which can be perceived as reflecting Canadian society and/or as reflecting the Canadian aviation community. Either way, stigma that is reinforced by government magnifies the deleterious effects of discrimination on applicants’ mental health.

The wider issue, in bureaucratic terms, is that pre-existing institutional bias that must be reversed by individual applicants creates an institutional culture that prides itself on maintaining bias. Doctors are far from immune to this impulse, specifically as it concerns mental health.

Canadian Civil Aviation Medicine is demonstrative of these ills. The authority accompanies its discriminatory language with discriminatory requirements. CAM automatically imposes a reporting requirement on individuals with mental health conditions. If a person is licensed, they are required to submit medical information about their conditions. Private pilots must submit a report every three months. Professional pilots and air traffic controllers must submit every six. This requirement infantilizes licensees with mental health conditions by assuming that all mental health conditions render a person incapable of judging when she or he is fit to fly. It also duplicates reporting requirements, because treating physicians are required to report any ‘medical or optometric condition that is likely to constitute a hazard to aviation safety’ (Aeronautics Act, s. 6.5). If a licensee decides to stop treatment, for example, a physician would have to report that decision to Transport Canada.

Courts have already recognized that Transport Canada discriminates against individuals presenting with mental health conditions. In Canada v Bethune, the government sought judicial review of a Transportation Appeal Tribunal decision that ordered Transport Canada to reconsider a decision to deny Mr. Bethune medical certification. Mr. Bethune applied for a Category 2 medical certification to become an air traffic controller after passing NAV Canada’s rigorous tests. He had the job, and was forthright in disclosing persistent sadness to the CAME. After several months of waiting, he was forced to decline NAV Canada’s offer because Transport Canada had not yet decided on his medical certification. When it finally ruled against him, he appealed on the grounds that Transport Canada had applied the incorrect policy document: a newer policy was in force. The Tribunal ruled in his favour and held that: ‘The criterion at issue was whether Mr. Bethune had a “significant mental abnormality” that would render him unable to safely exercise the licence at issue – an air traffic controller licence’ (para. 9). The government, worried about precedent, sought judicial review in Federal Court. Justice Phelan agreed with the Tribunal and admonished government counsel in these terms:

It was suggested in argument that no new information would change the Minister’s decision. I take this as a piece of enthusiastic argument and not as a statement of Ministerial policy. If it were policy, there could be grave consequences to a biased and bad faith reconsideration.

Para. 17.

Bethune was decided in 2016; Standard 424 was never at issue in that case. Its application was at issue. The Transportation Appeal Tribunal and the Federal Court each held the government to an individualized process and evidence-based standard that complied with the words in Standard 424. That Standard, to be clear, has not been amended since 2007.

Mr. Bethune’s case unfortunately did not end in cheers. Transport Canada obeyed the letter of the court’s order. It reconsidered the decision. After a year spent waiting, Mr. Bethune was informed that he still did not meet the required medical criteria. Mr. Bethune, frustrated by this dilatory process–one that would wear anyone down–has since happily settled into a fresh line of work.

Ministerial policy has not much changed since Justice Phelan’s admonishment, which brings those ‘grave consequences’ into view. The above-quoted Handbook for Civil Aviation Medical Examiners has not been modified since 2010, when the current discriminatory policy was added as an amelioration to the above-pictured absolute prohibition. Transport Canada’s treatment of Mr. Bethune, moreover, suggests that the Justice Department’s lawyer uttered a premonition in court. Though the judge rightly admonished the Crown, judicial power cannot reform the institutional resistance that ultimately ruined Mr. Bethune’s hopes of becoming an air traffic controller.

Indeed, Transport Canada should be lauded for even considering the prospect that people with mental health conditions take to the skies. Thirty years ago, this was an unthinkable proposition, largely due to ignorance. Now, however, Transport Canada has much more scholarly research about mental health at its disposal. It can craft targeted policies that respond to Canada’s human rights commitments and its concern with aviation safety.

The apathy with which Civil Aviation Medicine has treated this issue runs counter to an evidence-based approach. Justice Phelan commanded such an approach in a specific case, but his writ unfortunately did not extend further.

The resulting lack of close judicial scrutiny means that medical opinion, with its biases, has been allowed to run unchecked through Canadian Civil Aviation Medicine. To be clear, the present cohort of Regional Aviation Medical Officers listed in CAM’s directory are all family physicians whose professional certifications disclose no training or expertise in mental health. This lack of intermediate-level experience may allow biases to run unchecked, for expertise called in at such a remove from individual applicants is at the mercy of pre-established first- and second-line medical opinion.

These opinions in the current regulatory environment identify applicants based on stigma, not individualized analyses. No one person is to blame, but Transport Canada is responsible for a bureaucracy that defines people by a cross-section of traits. These traits then become a person’s institutional identity at Transport Canada. Doctors wind up defining applicants without regard for their dignity or actual aptitudes.

A note about aviation safety

This commentary has so far focused heavily on Transport Canada’s faults. A disbelieving reader might grasp for an easy argument: people with unstable mental health are inherently unpredictable, and medication does not cure such ills. This argument is dated and borne of ignorance regarding the state of research in mental health.

The proper balance between safety and the right to be treated equally for those who have a mental health condition already exists in the Canadian Aviation Regulations. Any health condition must be shown to impair the safe exercise of the privileges of a person’s license. This burden falls upon the doctors employed by Transport Canada.

What’s more, once a person is licensed, they are obliged to self-assess prior to each exercise of the privileges associated with her or his license. Section 404.06 of the Canadian Aviation Regulations is crystal clear:

These provisions show that the legislator considered health conditions that could arise during the course of a person’s license. Instead of placing the responsibility upon the Minister of Transport to verify that every pilot is always compliant (an impossible task), the legislator instead made pilots responsible for their conduct.

Civil Aviation Medicine does not address this part of the Civil Aviation Regulations in its policy documents.

The implication, however, of this section is quite broad with respect to mental health. The current policy just discriminates; a more constructive approach in line with aviation safety is to consider mental health in conjunction with the ability to cognize and apply section 404.06. The question then becomes: if a pilot’s depression is such that they cannot safely pilot an aircraft on a particular day, is the pilot able to restrain herself or himself from exercising the privileges of her or his license?

Civil Aviation Medicine would no doubt reply that a pilot in this position could be impaired because some mental illness and associated treatments reduce reaction times. These kinds of problems, however, are legitimate concerns that warrant restrictions on a license or a refusal to license in particular cases, where evidence shows that individuals present safety hazards. The instant problem addresses a catch-all, or blanket approach to mental health that (to its credit) indiscriminately discriminates.

Canadian aviation medicine on the international stage

Other aviation communities have shown far greater leadership when it comes to medical licensing and mental health. Australia’s medical certification regime is a paragon that incorporate open treatment of mental health.

The strengths of Australia’s regime lies in the clarity with which medical standards are promulgated and communicated to doctors and the public. Clarity and a forthright approach to mental health reduce stigma.

Australian civil aviation medicine

Australia’s open approach to mental health conditions relies on regulations that are virtually identical to Canada’s. The difference lies in the country’s approach.

The Civil Aviation Safety Authority’s information page, for example, indicates that each case is unique and there are no textual markers of discrimination. The relevant section of the Designated Aviation Medical Examiners’ clinical practise guidelines indicates that ‘well managed depression is compatible with certification’. The guidelines take a neutral tone; they inform medical specialists about the procedures to be applied in cases that disclose mental health conditions. They also establish patient expectations regarding their condition and the steps needed for certification.

The absence of any mention of mental illness as a disabling condition, although implied, contrasts with Canada’s Handbook for civil aviation medical examiners, which expressly states that mental health conditions are disqualifying. Only after this statement operates on each applicant does Civil Aviation Medicine turn to creating exceptions based on an individual’s condition.

The Civil Aviation Safety Authority (CASA) goes so far as to provide the public and DAME with case scenarios for further clarity.

One such scenario coupled with CASA’s information page is suggestive of Australia’s positive approach. The subject of this scenario is a mid-life initial applicant for a medical certification. The certification is required to obtain a private pilot’s license. The subject discloses a history of depression that has responded well to medication. The subject is alert to his condition and can understand when he is unable to fly. The DAME reviewed the subject’s file, concluded that his condition was not serious enough to warrant rejecting his application. CASA (in this example) issued a certification with the proviso that the subject submit an annual report from his doctor regarding his depression. He was also restricted from flying if his condition or treatment changed pending a DAME review.

This scenario gives applicants and DAMEs a case-based framework with which to understand CASA’s evaluation protocol.

Australia’s Civil Aviation Safety Regulations are, moreover, quite a bit clearer than Canada’s when it comes to medical certification and mental health. Regardless of the class of license, a person is considered fit to fly if they do not have an

established medical history or clinical diagnosis of any of the following conditions, to an extent that is safety?relevant:

(a) psychosis;

(b) significant personality disorder;

(c) significant mental abnormality or neurosis

Tables 67.150, 67. 155, 67.160.

These criteria are a far cry from Canada’s more restrictive criteria in Standard 424, which gestures toward mental health concerns without indicating the severity required to trigger aviation medical certification concerns. Australia’s standard is clear: the mental health condition must rise to a level that significantly impairs a person’s psyche.

This standard coupled with public-facing documents that provide sufficient detail regarding acceptable mental health conditions and outcomes help de-stigmatize mental health in aviation medicine. They have, moreover, not created any significant additional safety concerns.

Rights, minimal impairment, and a proportional rule

Canada’s Charter of Rights and Freedoms guarantees equality to all before and under the law. The government may breach this guarantee to ensure social cohesion and public safety (s. 1). Any breaches in this regard must be prescribed by law. Where the law authorizes a breach, that breach must minimally impair subjects’ rights and/or must be proportionate to its policy objectives (R v Oakes). Breaches will often need to be justified with reference to social science evidence (Mounted Police Association of Canada, paras. 143-4).

Canadian aviation medicine’s offending conduct derives from law, but is not itself law. It is a policy of government that dictates Civil Aviation Medicine’s approach to mental health issues. This policy may be defensible as law if it is ‘authorized by statute’ (Greater Vancouver Transportation Authority, para. 65). The above analysis, however, shows that CAM has created a policy that offends its enabling legislation, the Canadian Aviation Regulations. As such, CAM’s policy is not authorized by statute, so its discriminatory conduct cannot be protected by the Charter.

Even if its conduct were protected by the Charter, CAM’s policy does not balance subjects’ right to equality with a very legitimate interest in aviation safety.

The need for balance is prescribed by the venerable Oakes test:

• The objective of the law must be pressing and substantial (aviation safety is pressing and substantial);
• A rational connection must exist between the law and the objective (one does exist in this case);
• The law must be minimally impairing (the law in this case is minimally impairing; CAM’s policy is not);
• The law’s effect on subjects must be proportional to the social benefit derived from the infringement of subjects’ rights (the law in this case is proportional; CAM’s policy is not).

These latter categories create difficulty for Civil Aviation Medicine because any justification of doctors’ conduct requires an admission of disregard for the affected population or a plea of ignorance that arises from a lack of adequate aeromedical specialization in mental health issues.

Minimal impairment is not a difficult standard; it’s the standard of a decent, rational professional. This professional’s knowledge extends to the context in which they work and in which their field is situate. Civil Aviation Medicine, for example, is populated by doctors, whose medical knowledge also allows them to understand the limits of their expertise. These doctors are literate, and have knowledge of the regulatory context in which they work. They are also able to conduct further research on matters related to their duties, whether those be evaluating applicants for medical certification or crafting policy. Keeping to their creed, doctors also advocate for patients to the best of their ability.

This synopsis derives from Canadian jurisprudence regarding minimal impairment. The courts require government to show that it has chosen a policy from a range of reasonable alternatives (Health Services, para. 150). Enhancing the administration of a government program is not minimally impairing, even if such enhancement might benefit a greater population (Health Services, para. 151). The government must instead show that it considered its policy alternatives with regard for the interest of the affected population (Health Services, para. 150; Charkaoui, paras. 76, 86). When government action is being challenged, analogies may be drawn between the duty to accommodate under human rights law and Charter violations to show whether the government did its utmost to protect minority interests (Multani, para. 53). Minimal impairment may, moreover, be made out with reference to other jurisdictions (such as Australia) and to other international treaties to which Canada adheres (Carter, paras. 103-4; JTI Macdonald, para. 10; Whatcott, para. 67).

Civil Aviation Medicine’s current policy fails to show regard for applicants’ interest as a group that is potentially disadvantaged by CAM’s current practise. The practise of assuming that an applicant presenting with a mental health condition is immediately unfit to fly is inductive. It applies a group characteristic (in this case, a stigma) to more efficiently process medical certification applications. I am told that CAM processes over 50,000 of these a year: the current staff have to keep up. The implication of this statement is clear. Applications may be moved along faster than needed to ensure that the system runs smoothly; the courts do not tolerate this excuse. Analogies between the duty to accommodate and CAM’s practices also point to the problem. CAM does not accommodate in the initial phase of an application, where a person’s safety record is not yet in evidence. Accommodation only occurs after Transport Canada has stigmatized the applicant, and this is no accommodation at all if the applicant could have been assessed as medically fit.

Canada’s international obligations overwhelmingly support a more enlightened approach to mental health in aviation. The United Nations’ Universal Declaration of Human Rights guarantees a right to equality (article 1) and freedom from discrimination (article 7), subject only to ‘such limitations as are determined by law’ (article 29). The United Nations’ High Commissioner for Human Rights reported in 2017 that: ‘the experience of living with mental health conditions is shaped, to a great extent, by the historical and continuing marginalization of mental health in public policy’ (para. 14). The Commissioner went on to say that:

This stereotyping, prejudice and stigmatization is present in every sphere of life, including social, educational, work and health-care settings, and profoundly affects the regard in which the individual is held, as well as their own self-esteem. The lack of systematic training and awareness-raising for mental health personnel on human rights as they apply to mental health allows stigma to continue in health settings, which compromises care.

…

The full participation of affected communities in the development, implementation and monitoring of policy has a positive impact on health outcomes and on the realization of their human rights. Ensuring their participation supports the development of responses that are relevant to the context and ensures that policies are effective. Participation in lawmaking and policy design in mental health has typically been directed at health professionals, as a result of which the concerns and views of users, persons with mental health conditions and persons with psychosocial disabilities have not been systematically taken into account and harmful practices have been perpetuated and institutionalized in law and policies.

Paras. 16, 43.

ICAO, an organization based in Montreal, is closely affiliated with the United Nations. Its membership requires that a state also possess membership in the United Nations (Chicago Convention, art. 93 bis). UN members are subject to human rights obligations stemming from the UN; ICAO’s membership is subjected to those obligations. Medical standards promulgated under the Chicago Convention must therefore accord with international human rights obligations.

The last phase of the Oakes test balances the effect of a practise on individuals with its positive outcome for the general population (Frank, para. 76; KRJ, paras. 77-8).

The effects of CAM’s practise have been noted above. Their rehearsal here is only to note that the treatment of mental health conditions afforded to prospective and actual pilots and air traffic controllers can have life-altering consequences. Discrimination and perceived discrimination violate a person’s dignity and can impact her or his self-esteem. More critically still, CAM’s treatment may worsen a person’s mental health. Professional pilots and air traffic controllers may lose their livelihoods, which is a stressor that impacts mental health. It only takes a few words to capture these consequences, but for those affected by mental health conditions, the ramifications are much broader. The stigma still associated with mental health is, as noted above, enhanced when it is directed by the impersonal face of government. Individual well-being is seriously undermined.

The social benefit derived from such discrimination is minimal at best. Aviation safety is adequately protected when Civil Aviation Medicine turns its attention to the individual applicant in order to assess her or his actual ability. Treating physicians are, moreover, required to report any potential risks to aviation safety. The mechanisms maintain the balance between aviation safety and individual rights. A blanket prohibition that requires applicants to prove their fitness for an exception to that prohibition only serves to make Civil Aviation Medicine’s case processing more efficient. It does not address the legitimate aviation safety concerns that benefit society.

The effect of CAM’s policy is, then, far more dire than further adjustments to its policy.

Check out a.p.strom’s aviation law practise

This post is cross-posted to CanLII.

The Law Society of Ontario occupies a special place in most lawyers’ hearts, and much talk has sprung up in recent years about how that special place first forms, then concatenates. One reason that springs to mind among the next crop of legal advisers is that articling students are not represented in the Law Society’s structure. They are, to be sure, members of the Society—no one would deny an opportunity to double down on the costs associated with legal licensing. They are simply not represented.

Before attending to the employment concerns that are the heart of this piece, notice the LSO’s structure. It is, as I have said elsewhere, an eleemosynary corporation with collegial powers:

the Law Society is a professional college that bears the hallmarks of an eleemosynary corporation. It is a foundation endowed to preserve its members’ interests. It can award university (collegiate) degrees. Its funds are (notionally) diverted to its members. The Society is, in other words, a charity designed to house legal professionals as a self-regulating and self-training college, thus maintaining an independent profession.

The nature of this independence (and I have called that independence into question) is as a body corporate consisting of all members of the legal profession. This corporate identity is not a facile construction; it was applied from the ancient collegiate model to house each lawyer, thus giving lawyers rights and obligations toward each other. When we speak of the LSO, therefore, we are referring to the corporation of all lawyers in Ontario, and the place of each lawyer in this structure is, like it or not, that of a participant in the LSO’s good and bad works.

On to the employment matters: the situation becomes more interesting still when you attend to an articling student’s options under the Employment Standards Act. They have none because students-at-law are exempted from employment standards:

2. (1) Parts VII, VII.1, VIII, IX, X and XI of the Act do not apply to a person employed,

(a) as a duly qualified practitioner of, …

(ii) law, …

(e) as a student in training for an occupation mentioned in clause (a), (b), (c) or (d).

If you’re not familiar with the ESA, the above exemptions relate to:

• Hours of work and eating periods;
• The ‘three-hour rule’, which requires an employee who comes to work to be paid at least three hours;
• Overtime pay;
• Minimum wage;
• Entitlements for public holidays; and
• Vacation with pay.

In short, then, students-at-law benefit from none of the rights that are traditionally associated with employees. Their only recourses against employers are through human rights tribunals, the courts, or the Law Society itself.

This recital should give you pause. A profession that prides itself on the honourable and efficient administration of justice would, one thinks, admit vulnerable populations like articling students to basic employment protections.

The legislative and regulatory web, however, make students incredibly vulnerable, and the profession’s regulator is Shelob.

Only one legislated recourse is open to this vulnerable population: unionization. The immediate objection to such a course is that students can’t unionize. That claim to student status mitigates attempts to unionize.

I have, however, elsewhere detailed how students and quasi-students may unionize against universities. This class is virtually identical to the students-at-law toiling in enforced obscurity. My article detailing how doctoral candidates might unionize observed that:

The Employment Standards Act precludes doctoral candidates from the benefits of minimal employment standards. The Labour Relations Act in Ontario has no such quibbles.

Indeed, some unions already represent articling students in the Province of Ontario. Legal Aid Ontario, for example, has its articling students represented by the Society of United Professionals.

The stumbling block when it comes to unionizing articling students against the LSO is that they are perceived as students, not as employees. They are, moreover, not directly employed by the LSO: their ability to unionize must attach to an employment relationship.

The LSO as employer

Careful attention to the LSO’s rules regarding articles of clerkship and judicial opinion on the subject suggests that an employment relationship does exist, which merits collective bargaining. The LSO acts either as a statutorily recognized employer bargaining agency or as a personnel agency with the power to establish employment conditions on behalf of its members (Ontario’s lawyers). Its current rules are not subject to negotiation because the equivalent employee bargaining agency doesn’t exist; it has never been viewed as a personnel agency, likely because its august character doesn’t make the inference obvious. One thing, however, is perfectly clear: articling students and law students don’t have a place at the table despite their entreaties.

An employer or an employee bargaining agency differs from a traditional union because it represents the collection of independent bargaining power for a class of employers or unions. The prime example is the Ontario Hospital Association, which negotiates province-wide terms of employment for nurses and other hospital staff. Local negotiations between individual hospitals in the system also take place to ensure that local peculiarities are satisfied. The provincial agreement, however, predominates.

Where a personnel agency exists, its foremost role is routing job seekers to employers. I should note that employees of temporary help agencies in Ontario receive more statutory protection than articling students. Temporary help agencies also cannot charge employees fees for assigning employees to an employer. The LSO charges its articling students $2,800 for the privilege of being employed. Recall that these fees are charged on top of three years’ worth of exorbitant law school tuition fees.

These observations come to naught if the LSO cannot be made out to be an employer, and my first analytical point must demonstrate that the LSO fits the broad legal definition of an employer. Once this point is established, the right to unionize flows from the Labour Relations Act, which defines ‘employee’ as including ‘a dependent contractor’. No further qualification is given. The word speaks for itself.

The employer relationship

The employer relationship is subject of frequent debate, especially as the gig economy enters full swing. Courts have often pronounced on the true status of an independent contractor under employment standards legislation. Labour Relations Boards have also opined on employee status in the context of union certification. Lord Denning’s view of an employer-employee relationship is most apposite: you know it when you see it. This approach is Canadian courts’ and tribunals’ final position in the helter skelter world of judicial opinion.

I’ll dredge up some Labour Relations Board commentary:

The difficulty posed by cases like those of articling students, medical residents and graduate students is that the licensing or academic requirements imposed by an entity upon the individual seeking to be licensed or graduate may serve to explain all or some hallmarks of a relationship which would otherwise be an employment relationship with that entity: direction and control, performance of work, production of something of value, and receipt of income.

CUPE v Governing Council of the University of Toronto, para. 88.

This difficulty is, of course, squarely at issue for articling students. The five hallmarks of an employment relationship are present. The major stumbling point is that each of the five hallmarks may also be assigned to the lawyer or firm employing an articling student. The traditional view, and one that has been assumed by the courts, aids the law societies. In the LSO’s case, there appears to be no challenge to the bald disclaimer in its licensing process policy:

The Society is not a party to the employment relationship created by Articles. The employment relationship is between the Candidate and the Candidate’s employer.

Art. 10.3.

This statement doesn’t hold water if the LSO is found to have all the hallmarks of an employment relationship.

Canadian cases go a ways toward defining the employment relationship, but the law is fraught with discordance. Several tests exist such that the traditional test for control, which defined a master-servant employment relationship is no longer persuasive. Two other tests may apply to the LSO’s relationship with articling students.

The first of these is the fourfold test. This test requires a sufficient degree of control, the ownership of tools, a chance of profit, and a risk of loss.

The second is the organization test, which asks whether a person or group is part of the employer’s organization. The judicial emphasis is placed on the location and timing of the work If the person is indeed part of the organization, they are employees.

Supreme Court Justice Major stated the test more plainly in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.:

In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. …

The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account.  In making this determination, the level of control the employer has over the worker’s activities will always be a factor.  However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.

It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application.  The relative weight of each will depend on the particular facts and circumstances of the case.

Paras. 46-8.

The flexibility of Justice Major’s position has been the Ontario Labour Relations Board’s practise. In C.J.A., Local 27 v. Calvano Lumber & Trim Co., a panel said that:

Employment relationships may exhibit a variety of forms in different contexts, but the essence of such relationship is the exchange of labour for consideration in some form. Collective bargaining concerns the terms of that exchange and trade union representation permits even small groups of employees to improve them.

Applying helter skelter

The LSO’s rules relating to articling students disclose a level of control over the articling relationship that, though not undue, points to students’ status as labour.

The test for control is an obvious starting point. Lawyers control articling students’ day-to-day activities. That control, however, springs from lawyers’ relationship to the LSO. All articling supervisors are approved by the LSO and are regulated as delegates of the LSO. This regulation is akin to appointing professors to supervise graduate students. The lawyer works at the LSO’s behest, and her or his payment for this service is the provision of labour from the LSO. The relationship between the LSO and its students, then, is colourable by the control that the Society exercises over principals.

This point is enhanced by the Society’s potential control over the process. Its recent decision to compel principals to pay their students is a case-in-point. The Society can establish any term or condition relating to students’ labour, thus giving it unlimited potential to control the relationship. That potential, or the ability to control the work, is a determining factor in the test (see 2017 TCC 242, para. 16; Zacharuk v. Kitlarchuk, paras. 20-1).

The fourfold test builds on this analysis. The LSO’s control is established. The ownership of tools rests with the principal, but the tools for a modern lawyer are minimal. A computer is needed, and access to a couple paid databases is helpful. Most of the resources necessary for a lawyer’s trade may be found in a well-stocked university law library. The principal has a chance of profiting on the student’s work; the LSO obtains profit from the student by charging fees to give the student access to the working relationship. This structure, of course, does not import a risk of loss. The LSO instead deputizes its members as agents on its behalf. The risk of loss is passed onto the individual member. Those members are, however, extensions of the LSO’s corporate personality. Their rights and privileges are determined and allowed by each other lawyer, which implies that the risk passed to an individual lawyer is one authorized by the profession. My interpretation is preserved by the above-noted relationship between LSO and principal.

The fourfold test for an employment relationship between articling student and LSO is thus fulfilled. The LSO exercises control over the student’s work; though it does not supply any tools for the work, not many are needed in most cases; it obtains profit from the worker; and it has passed the risk of loss on to individual members.

This assessment of the LSO’s work makes the organization test a formality. The above analysis suggests that the Society serves as a temporary employment agency. It creates the sole means of entering the profession and requires workers to comply with its organizational rules before complying with articling principals’ local requirements. The eleemosynary nature of law societies, moreover, means that each principal is complicit in establishing and maintaining the scheme. The college’s directing minds directly benefit from the organization’s decision to raise labour by using its statutory privileges.

There exists, moreover, a policy reason for recognizing Ontario’s articling students as employees of the LSO. Such recognition allows them to have a meaningful voice in the profession that has so far refused to accede to requests for representation. The Ontario Labour Relations Board recognized this fact in Association of Commercial and Technical Employees, Local 1704 v Parkdale Community Legal Services:

In view of their exclusion from the definition of “member” of the Law Society as set out above, articling students are unable to participate in the governing process of the Society either through voting for or becoming a bencher.

…

to give “member” under The Labour Relations Act a broader interpretation than “member” under The Law Society Act would be to exclude form collective bargaining persons who are not yet full members of their profession and can neither enjoy the full benefits of their professional association nor have an effective input into its operation. The existence of professional associations and an assumed lack of need for collective bargaining among their members provides a fundamental pillar of support for the professional exclusion under The Labour Relations Act. In the absence of clear language to the contrary, we are not persuaded that the Legislature intended to exclude from collective bargaining persons who still stand at the door of their profession and, until they become full members of their professional association, lack effective means of self determination through that association.

Paras. 11, 13.

The fees levied against articling candidates entitle them to a measure of responsible government. If the LSO is unwilling to provide such a measure, the Labour Relations Board is the best alternative.

Conclusion

There’s much left to be said and done on this issue. The above sketch will hopefully generate more in-depth discussion regarding articling students’ place as labourers in the profession. Steps may be taken to organize union representation, either directly against the Law Society, or in concern with unions to form a provincial bargaining association.

The way forward in this regard is fraught by the ever-changing nature of the workforce. Articling students only work for ten months before moving on to professional life. A successful unionization drive therefore requires a rapid vote to certify the bargaining unit, or a vote that is so public that incoming articling students are aware of the issues and can feel confident voting for representation.

The challenge isn’t for the faint of heart, but when one attends to stories of articling relationships gone wrong, or when one takes cognizance of the LSO’s inflexible criteria with regard to this labour pool, the vulnerability of the articling student population to a hierarchical and arcane professional regulator’s decisions is striking.

Elected oversight of municipal (or provincial) police forces is, as I indicated in my previous post, a difficult system by which to enforce standards on police. Foremost among the difficulties of this system: the relative lack of enforcement power granted to these boards. A corollary difficulty is the civilian nature of the oversight. Lack of power and civilians’ frequent inexperience with the machinations of judicial power make civilian oversight a tepid solution to the concerns that are currently being raised about police forces.

The Toronto example from my previous post is low-hanging proof of these difficulties. Justice Iacobucci’s recommendations following the Toronto Police Services’ killing of Sammy Yatim were left mostly unimplemented by the Board one year after the report came out. The limited powers of police oversight boards in Ontario are largely to blame; the remaining blame must fall to the Board itself. What powers exist for the Board to exercise, notably the power to instruct the police chief on matters relating to the department, is legislative and discretionary. These words mean that few legal tools exist to review a police board’s decisions.

Canadian history, however, shows that more responsive models exist; these, however, are not prefaced by the shibboleth: ‘elected oversight’.

One system widely used in nineteenth-century Canadian policing involved police magistrates (essentially justices of the peace) exercising supervision over police constables. This system operated in straight judicial fashion. The magistrate of a police force directly supervised and sanctioned constables, and held the post to the exclusion of other positions.

The benefit of such keen oversight cannot be overstated: a single official sits in appeal of policing decisions, and a single official has all judicial powers necessary to require police to comply with her or his decisions.

This system is, of course, dated, and it was roundly criticized in the Ontario legislature as late as 1962, where Liberal MPP Elmer Sopha said that:

There is in short no justification for the continuation of this practise in this province. Let us get the magistrates away from their connection with the police depar[t]ment. Then you will see one corrective and prophylactic effect it will have on the administration of justice. If they are not connected with the magistrate, you will find that the policemen in their conduct will–those few who are guilty of mis-behaviour, and perhaps guilty of brutality towards citizens–will indeed be more wary of having their conduct reviewed before a magistrate who occupies the independent position that I posit.

Ontario Legislative Assembly, Official report of debates, 4th Sess., 26th Legis., p. 992.

A countervailing view was later posited in 1979 by Norman W. Sterling, a progressive conservative member of the Standing Committee on the Administrative of Justice:

It might be interesting to go back in history some time. Originally, a board of commissioners was first appointed prior to Confederation. In the early days, a police magistrate was a member. In the year after Confederation, in 1868, a county court judge was appointed at that time. So for some 110 or 111 years we have had the county court judge as a member of the police commission.

The members of the municipal police force are governed and directed by the police board. This body is designed to ensure that the police are independent of direct political control of the municipality. The autonomy of the police boards, in my view, is essential to the proper administration of justice. This independence would be lessened if the police officials were either directly controlled by the municipally elected officials or were, in fact, municipally elected officials.

Ontario Legislative Assembly, Official report of debates, 3 Sess., 31st Legis., p. 1796.

These competing views are alive today, and they animate this post: judges ought not try cases in which they have participated in a non-judicial capacity; municipal officials (presently appointed to Ontario police boards) should not sit on such boards because they inject municipal politics into policing.

Lessons from history, however, indicate that we might resolve this tension by appointing a senior justice of the peace in each county or municipality as a police magistrate. This officer would be barred from hearing cases of police misconduct during the course of criminal proceedings; he would instead investigate and adjudicate all matters relating to police misconduct as separate cases. For those who insist on the shibboleth, two municipally appointed lay assessors would assist the magistrate in each case (my grandfather served as a lay assessor in Sweden).

This solution is not elected oversight. It is instead judicial oversight designed for quick responses to police misconduct. The rationale behind this proposal will be revealed with reference to some historical texts.

Historical sources

The police magistrate before Confederation was an omnipotent official that served as a specialized justice of the peace. One source describes the magistrate as a municipal official tending to local concerns:

A Police Magistrate, in the eyes of the law is nothing but two Justices of the Peace rolled into one, who is paid to see, among other things, that the by-laws of his city or town are kept inviolate.

Wicksteed, R.J. The Inferior Magistrates, or, Legal Pluralism in Ontario. Early Canadiana Online 25765, 1886, p. 2

To this definition must be added a more general oversight of policing. The system was inherited from England, where justices of the peace chose constables to keep the peace:

the usuall manner is, that these High Constables of Hundreds be chosen either at the quarter Sessions of the peace; or if out of the Sessions; then by the greater number of the Justices of peace of the Division where they dwell.

Dalton, Michael. The Countrey Justice Containing the Practice of the Justices of the Peace out of Their Sessions. 5th ed. EEBO, STC (2nd ed.) / 6210. London: John More, 1635, cap. 16.

High Constables would, in conjunction with the justices, select further constables for keeping the peace.

Through developments and export, the official evolved such that special magistrates were appointed to oversee police, but justices continued to be involved in appointing police:

The Constable is a Peace Officer generally chosen by the Justices at their Quarter Sessions, and is the proper Officer to a Justice of the Peace, and bound to execute his warrants.

Taylor, Hugh. Manual of the Office, Duties and Liabilities of a Justice of the Peace. Early Canadiana Online 43246. Montreal: Armour & Ramsay, 1843, p. 130; see also, Dempsey, Ricahrd. Magistrate’s Hand-Book. Early Canadiana Online 49619. Toronto: Rowsell & Ellis, 1860, p. 40.

Newfoundland, moreover, explained the relationship between police and all judicial officers in legislative terms:

The Magistrate, however, is responsible to the government for the maintenance of good order within his district, the detection of crime, arrest of criminals, and generally the carrying out of the law—very large powers and authority are given to Magistrates by Imperial and Local Acts. The Policeman is the Executive Officer of Justice, and he must attend to all lawful orders of the Magistrate and obey them implicitly, he should also attend strictly to all suggestions of the Magistrate in carrying out the law ; he should keep his worship fully informed of all matters of a public nature that come to his knowledge.

Prowse, Daniel Woodley. The Justices’ Manual, or, Guide to the Ordinary Duties of a Justice of the Peace in Newfoundland. 2nd ed. Early Canadiana Online 67826. St. John’s, Nfld: 1898, p. 118.

These sources identify two bonds between justices and constables or police officers. The first is that justices of the peace, the judicial officers closest to their communities, have historically been involved in the appointment of police. The second is that police are agents of the courts, which agency requires them to heed not only judicial decisions, but expressions of judicial policy about policing.

This system endured, but admitted increasing elected oversight such that, by 1970, the mayor of a municipality sat with a provincial court judge and a provincial appointee as municipal police boards. These boards had sweeping power to appoint and dismiss officers, to enact by-laws for the management of the police force, and to summon witnesses under oath. These powers stem in part from the judicial powers that have animated police appointments and police control through the ages.

The judge had, by 1980, been removed from the composition of police boards; a second provincial appointee took the judge’s place, thus ending judicial involvement in direct police oversight.

Oversight maintained

Balancing the benefits of elected oversight with judicial power

This system of appointing and supervising police has, of course, now changed. There is a firm division between judicial authority and police forces. The noises that led to this shift may be heard in Mr. Sopha’s comments to the Legislative Assembly in 1962.

The separation of powers is, indeed, an important republican principle; trust between subject and government is an essential part of a constitutional monarchy.

Appointing a justice of the peace to sit with two lay assessors effectively balances these preoccupations. The justice is the emanation of judicial power over police conduct; the lay assessors are appointed by elected officials, so represent elected oversight.

Reunifying judicial oversight with police forces emphasizes the central role of any policeman, which is defined by Daniel W. Prowse in his treatise on Newfoundland justices:

The constable will always remember that the object of arresting a prisoner is to bring him before a Magistrate as soon as he reasonably can.

p. 118, emphasis original.

The problem and our typical solution

This analysis of police supervision in Canada, the United Kingdom, and the United States will appear in two parts. The first part breaks down the problem with civilian policing oversight; the second part addresses the issue with reference to English precedents that were received in Canada and the United States.

Much has been said about defunding police forces and putting those funds to better use sustaining developmental and social services. There is a further, less discussed, need to rethink the management and oversight of police services.

This oversight, though a noble nod toward democratic ideals, has come under pressure at a time when police forces are mistrusted by minority populations. This phenomenon sweeping United Kingdom, Canadian, and American jurisdictions evokes the ages-old debate between technocrats and idealists, or philosopher-kings and democrats.

The slogan ‘defund the police’ paints this issue in stark terms, but the sentiment is pure: cops have been observed committing gross abuses. Even if these are never proven in a legal sense, they diminish respect for and trust in the state’s judicial apparatus.

Militarization of policing is one side of this coin; we might shine more light on the supervision of militarization under civilian police boards. The pattern that may be observed across an admittedly small sampling of police forces is that civilian oversight is often reticent to engage (for one reason or another) with the police forces over which they supposedly lord. This inability to engage has, I think, been missed in the current discussion of police violence and the police’s role in communities. Shining a light in this limited series may help spur some reflection on how we would like our police to be better held to account.

Case study

My home of Ottawa has served as a recent example of the perils of civilian oversight. Civilians are no guaranteed experts, nor are they remotely impartial judges. In Ottawa’s case, a group drawing attention to injustices perpetrated against indigenous and black subjects was forcibly removed by police hours before meeting with members of the Ottawa Police Services Board. The group refused to meet with the Board after arrests were made. The Board’s response to these events stated that it did not interfere in the police service’s operational decisions. The timing of the police’s intervention remains suspect.

Part of this issue lies with the Board’s statutory inability to interfere in the police’s operational decisions. This common prohibition is counterweighed by the Board’s investigative and regulatory power, which can be deployed in cases where unfair behaviour might undermine judicial or police authority. No questions appear to have been asked of Ottawa’s police chief by the Board.

The Board, moreover, failed to uphold one of the principles underpinning policing in Ontario: ensuring that subjects’ constitutional rights are upheld. Justice Marlyse Dumel dismissed a drunk driving case because officers failed to respect the accused’s right to counsel. The Justice noted that there was no police regulation that required arresting officers to be informed that their cases were dismissed due to breaches of Canadian constitutional rights. The Board is aware of this problem, but the police chief failed to propose—and Board members do not seem to have asked for—any further measures to ensure Ottawans’ constitutional rights are respected.

Taking a wider view of Ottawa’s police service in Canadian context also shows that vulnerability to police discretion is likely to lessen a person’s confidence in the police force. Keep in mind that vulnerability is likely to make anyone more critical of authority; know also that authorities with data in hand can take more meaningful steps toward fostering empathy. Statistics Canada’s annual data for public perceptions of police shows that interactions between victims, witnesses, and those suffering from atypical behaviour and police are less likely to produce trust in police.

Subjects with disabilities were similarly less likely to trust police. Visible minorities reported perceiving police as treating people fairly 34% of the time; non-visible minorities reported 45% under the same heading. The data also shows that Canadians aged forty-five years or older tend to trust police more than those below forty-five.

Building public trust on these numbers requires broad appeal to sometimes divergent demographics. Police services boards can temper differences between police culture and vulnerable groups’ experiences.

The Ottawa Police Service’s lacunae are not trifling things, nor are they wholly beyond civilian oversight, as the Ottawa Police Services Board suggested by evoking operational decisions. Proactive and reactive oversight is needed to ensure that operational decisions are in line with community and legal values. This kind of work is community building in its most elementary sense, and Ottawa’s Police Services Board fell below the mark when it failed to publicly inquire into the reasons for the police’s arresting protestors on the eve of their meeting Board members.

The United States

Lest these statistics and problems seem remote or too local, the United States’ national numbers for trust in police are even more grim. The total population may, for the most part, trust police. Vulnerable communities in the United States exhibit far less trust.

These numbers are complimented by a marked lessening of trust from Generation Z. This generation’s trust in US police dropped from 56% in June 2019 to 44% in June 2020.

The erosion of trust, which has obviously manifested in protests across the US and in Canada, has prompted American authorities to turn toward democratically elected police oversight. Fort Worth, Texas, announced such a change on December 2, 2020. Ballot box initiatives in San Jose, Los Angeles, Portland, Seattle, Philadelphia, Pittsburgh, and Columbus instituted enhanced civilian oversight.

American county governments’ extant powers over policing do not exhibit much civilian oversight. Sheriffs are typically elected and thus derive authority directly from the electorate, whose oversight comes solely in the form of elections. State and federal police forces may have the right to lay charges, but these rights are relatively limited by the burden of proof.

The Los Angeles County Sheriff’s department (not to be confused with the LAPD, which is a municipal force overseen by police commissioners), for example, is led by an elected sheriff. Though this sheriff must possess minimal qualifications, the County’s Board of Supervisors has no power over the sheriff. The Board can only ‘direct the sheriff to attend, either in person or by deputy, all meetings of the board, to preserve order, and to serve notices, subpenas, citations, or other process, as directed by the board’ [sic].

The movement toward civilian oversight in the United States is encouraging if not timely. Its relevance as an effective force for cultural changes that can build badly eroded trust in communities remains to be seen.

Elected oversight

The turn toward elected oversight or, indeed, the existence of such oversight is a richly rewarded political move in liberal-democracies. As I’ve indicated above, a tension exists between popular government and government by technocrats. A common lawyer might, perhaps, question such a distinction for its covalence. Technocracy cannot seriously exist in democratic governments. I will address this concern more fully in the second part. Suffice for the present to say that elected police oversight can effectively govern police if elected members are willing to invest time and energy beyond simply meeting to hear citizens’ concerns and deliberate.

Ontario’s current regime provides boards with all the powers necessary to effectively oversee police services. Boards’ oversight is determined by the level of scrutiny each member provides. In the wake of the Toronto Police Service’s killing Sammy Yatim, retired Supreme Court Justice Frank Iacobucci conducted a study that made 94 recommendations to improve Toronto Police’s handling of people in crisis. The Police Services Board’s oversight was not at issue in this review. Justice Iacobucci adverted to this fact:

The Board plays a key role in the democratic oversight of the police, and in ensuring accountability of the police to the community that the police serves. Although I do not make specific recommendations for Board involvement in overseeing the implementation of this Report (because to do so would be beyond my mandate), the Board will undoubtedly have an important oversight role to play.

A year after the Justice released his report, Alok Mukherjee, then just retired from chairing the Toronto Police Services Board, noted that many of Justice Iacobucci’s recommendations had not been implemented. His statement so soon after retiring stands in stark contrast to Justice Iacobucci’s call to action.

New oversight in American jurisdictions and existing oversight in Canadian provinces requires active oversight to be effective. The City of Toronto’s 2014 example is one where active oversight does not seem to have worked: the Chief of Police asked a retired judge to investigate the police service. The judge’s report, though detailed and very considered, was not the product of civilian oversight. The Board’s conduct was thus not in Justice Iacobucci’s scope, nor did he purport to comment upon it.

The City of Ottawa’s Police Services Board is another example of a fairly staid organization defined by its members’ misapprehension of statutory powers. The Board possesses the ability to inquire into police conduct on its city’s behalf; it chose to define itself as a deliberative assembly focused solely on policy. This act of self-definition hems most of the Board’s powers in, leaving the Board with little to inquire upon and still less with which to discipline.

As Americans look at these examples in an effort to implement more civilian oversight of police forces, the lesson is that you get the government that you deserve. Activist groups ought to take sharper aim on their civilian oversight panels, to encourage—to really push these individuals (themselves likely overworked for the positions that they occupy) toward greater oversight. The tone need not be confrontational, but a principled stand needs to bring police oversight to account. Only then can police be adequately overseen.

The next installation of The Judicious Sasquatch will delve into how effective oversight might be accomplished. This analysis will have regard for historical precedents and, as always, an eye toward applying them to strengthen public policy.

Until then (hell, even after the next installation is out), please feel free to engage with this post.

The quality of Anglo-American university education is eroding, and the Government of Ontario this past week confirmed its rapidly decaying state. With its rapidly ageing motto, ‘open for business,’ finally maturing, the Minister of Colleges and Universities announced that a long negotiation with Ontarian public universities resulted in a new five-year plan. Ontarian universities will now receive government funds based on their graduates’ employment success.

Lest the non-Ontarian reader’s eyes glaze over, this trend is growing across Canada, in the United States, and in the United Kingdom. It strikes at the soul of a university and the souls of university students now adrift without a unified worldview with which to navigate.

I could not be more afraid because I feel the passion for university education that once animated my studies now dwindling in an era where governments require quantifiable performance. My most memorable vote as a university senator works to this point. It occurred after an in-camera session where the Senate debated the University’s adoption of a strategic mandate agreement. These agreements are contracts between the university and the Ontario provincial government that set strategic priorities and performance indicators for each university in exchange for government funds. The University of Ottawa Senate accepted its strategic mandate agreement with a single abstention from my dweeby undergraduate self. No one voted against.

My abstention was at the time the subject of good-natured levity, but I think that it expressed the palpable apprehension that filled the room. Most members were career academics. The university was a home for their passions. I knew from some that they were uneasy with the idea of tying financial support to the university’s strategic decisions. A lay academic could describe this reticence as an alpha personality, one that brooks little to no intervention in scholarly work.

I think, however, that the old description of a university education in William Blackstone’s work still applies. Scholars (students and professors alike) collectively work ad studentum et orandum: for study and prayer. Prayer is so little-noticed in the multiversity, but it speaks to the passion for knowledge that might be awakened in every student’s soul. That passion is the education because students learn to weave narratives and pull them apart. No human discipline can survive without this critical skill, yet governments now insist on hard skills that lead to immediate employability.

Prayer connotes an openness toward realms of knowledge that are structured in expanding concentric circles. A medieval studies professor that I knew described movement toward this knowledge as a dangerous mysticism. John Henry Newman and others of the Oxford Movement tried to evoke this view by projecting the Christian God as the center of a virtuous and effective humanist education. We have now moved beyond this (and other) exceptional worldview(s). The university can only house multiple faiths if it publishes its own creed. Professors may have to temporarily abandon the certainty of scholarly production to speculate on the nature of their creed with a view to publishing a collegial expression of beliefs about education.

A university’s Book of Common Prayer rejuvenates each university far better than any strategic mandate. Strategy performs a university’s social role, but performance makes no substantive contribution to a student’s life, or to their university education. Prayer is instead a genuine vulnerability between professor and student, and between university and pupils. Nor does hyper-specialization: prayer evokes purpose in which each professor might find a calling. Callings, however, demand profession, and true profession requires meditation. Hence the need for collegium in that older sense of the word. Departments, faculties, and universities are nothing more than their academic officers. They impose collective rights and obligations, the most important of which is sustaining that common prayer—whatever the college decides that may be.

My alma mater, the University of Ottawa, was once an example of this point. Its Catholic and particularly Oblate identity informed its mission from 1848 through to the 1950s. Economic circumstance eventually removed the religious order in a two-pronged attack. The Government of Ontario systematically withheld funds and the rapidly growing professoriate did not hold a religious view of the University. The Oblates petered out and with them went a century of charism that had informed the University’s teaching.

The University of Ottawa is but one case: many other universities attest to religious foundation and subsequent secularization. We now conceive of the university as pillars of rational thought and democratic debate, and they are to a certain degree. Academics, however, now face the twin pressures of securing government funds and pleasing a restive, entitled student population. Universities and their scholars must perform.

History tells us that university education which moves beyond performance in some common spiritual purpose faces censure regardless of teaching. The brunt of Ontario’s universities have, for example, religious histories, and the need for government funds forced religious groups to cede charters to preserve their educational missions. The University of Ottawa is an example of a holdout. When its religious owners finally sold the university, they faced serious government opposition to a fair valuation of the University’s assets. The Oblates sold their university for $4 million less than their initial valuation. (That’s $32.5 million in today’s currency.)

A modern Canadian example of censure is Trinity Western University, an evangelical undergraduate university in Langley, British Columbia. This university was censured by law societies because it refused to acknowledge LGBTQ rights because its governors viewed these rights as contrary to the University’s religious creed.

Hence my desire to move away from established, religious worldviews as spiritual glue for universities’ missions. We nevertheless need a narrative that can be more evocative of universities’ ancient purpose to teach ad studentum et orandum because current concerns about accountability don’t suffuse teaching with purpose.

Transmitting knowledge is defeated by bare focus on learning outcomes. The prayers that are now more essential than ever must aim to recreate a collegium working in modern values.

Working to that end is a fraught enterprise, and one made difficult by modern universities’ size. A firm grasp of the history of higher education might help shape efforts in this regard. Knowledge, however, of that history also suggests that, at the last, the modern university might occupy untenable ground as fountains of knowledge. If professors cannot define their enterprise beyond strategic goals foisted upon them by government, their ultimate recourse may lie in smaller eleemosynary corporations, where shared values can suffuse teaching.

The converse view—and I make this observation as a young man who might one day have to send a child to higher education—is that universities without a spiritual purpose might not carry the weight and prestige that somehow still defines their enterprise. Higher learning that cannot teach a narrative and the tools with which to pull narratives apart doesn’t merit the title, nor can its sponsors purport to assemble all of the knowledge that exists without a golden thread that strings it all together. I’d rather just homeschool my lads and lasses.

On a related note, you might enjoy this film:

**This commentary is cross-posted to CanLII.**

The Federal Court of Canada’s recent decision in Latham v Canada is at first glance an innocuous refusal to allow a dangerous offender release from prison. The 72-year-old offender, Bryan Latham, brought an interim motion pending final decision of his judicial review of the Parole Board’s refusal to parole him. Mr. Latham argued that he ought to be released because ‘his advanced age and pre-existing medical conditions place[d] him at an elevated risk of succumbing to the novel coronavirus’ (para. 2). Mr. Latham invoked section 7 of the Charter of Rights and Freedoms. He also invoked sections 70, 86, and 87 of the Corrections and Conditional Release Act (‘CCRA’). The Court denied Mr. Latham’s motion because the Parole Board has exclusive original jurisdiction to grant parole and because Mr. Latham did not present evidence of a real threat to his health (paras. 51-3, 64, 72). This decision is in point of law correct, but the Court ignores a little-known part of its jurisdiction, that of judicial visitor. I have elsewhere written about this jurisdiction; the present comment illustrates the Federal Court’s power as visitor to prisons. This comment argues that such powers provide a more efficient means of addressing inmates’ concerns.

This case highlights the need for judges to walk the ground in cases where inmates claim some sort of abuse or substantial failure in corrections policy. Firsthand evidence gathered by the judge provides a fresh and personal perspective of the issues at stake, thus allowing the judge to better decide the issues. This approach also mitigates self-represented inmates’ often inexpert gathering and presentation of evidence. The Court views some of the evidence.

Judicial powers with respect to visitors

Judicial visits are not unheard of at Federal Court and in civil actions (viz. Blood First Nation v Canada; Belshaw v Robarts). English judges are able to conduct judicial visits in a prison context (‘Sentencing Scholarship and Sentencing Reform in Canada’, n. 33; Prisons Act, 1952, s. 19 [authorizing justices of the peace]).

A judicial visitor is empowered to inquire into a prison’s physical and psychological context to determine whether abuses exist. Section 72 of the CCRA allows judges to enter any penitentiary, visit any part of a penitentiary, and/or visit any inmate with the inmate’s consent. I have followed the Newfoundland Court of Appeal in R v Taylor to suggest that this power comes with correlative rights to correct abuses in every penitentiary. The power to correct abuses is an equitable power designed for flexibility and to relax procedural requirements. This power is apt with respect to prisons: prisoners often have limited legal resources, thus leaving them at the mercy of the corrections service.

Issues in Latham

The main issue in Latham is that Mr. Latham did not present sufficient evidence to ground his Charter or statutory claims. These claims were designed to allow Mr. Latham his liberty if the Court found in his favour. Mr. Latham’s singular focus in this regard appears to have left the Court with two options: release on parole or continued incarceration. This is a false dichotomy when the law of visitation is applied.

Justice Pamel points this issue up in Latham:

The ongoing pandemic requires our correctional institutions and the courts that supervise their decisions to employ new ways to account for the specific risks posed by the virus. The appropriateness of each avenue depends on the nature of the claim, the status of the applicant, and the facts of the case.

Para. 80

The Court takes an appropriately context-specific approach to each case. It does not, however, facilitate Mr. Latham’s ability to present persuasive evidence:

I think short of more significant evidence to support a finding that Mr. Latham’s Charter [sic] rights have been breached, it must be for the Parole Board and CSC to develop the mechanisms necessary to protect individuals like Mr. Latham in the face of the extreme challenges and dangers brought on by COVID-19.

Para. 79

This deference to the executive branch may not be warranted when the law of visitation is taken into account. The Crown’s attorney begged this question by challenging the Court’s jurisdiction to order Mr. Latham’s release on Charter or compassionate grounds absent a full review of the Parole Board’s decision (para. 89). The Court properly declined comment, but the question remains.

Procedure

Courts traditionally trifle with executive decisions on judicial review. Mr. Latham’s request, however, engages procedure in equity because the Court had the power to visit the correctional institution to evaluate Mr. Latham’s claim. The Court would then have been better placed to adjudicate Mr. Latham’s Charter and statutory rights with a view to correcting any perceived inequities or errors in Corrections Canada processes.

I am speaking of equity in public law—a concept that has not been much used since Canadian legislators and judges abandoned the ancient Exchequer jurisdiction. Though I do not purpose to describe this jurisdiction at length here, its procedure as a court of common law and equity allowed it to tailor remedies to each case, depending on its common law and equitable nature. This tailoring occurred in revenue cases, but was also concerned with general supervision of the Crown’s actions against subjects.

The Federal Court, of course, maintained the Exchequer’s jurisdiciton regarding non-revenue federal matters (Federal Courts Act, s. 26). It remains a ‘court of law, equity and admiralty’ (s. 4).

As a court of equity, the Federal Court is able to adjust its procedure to exceptional circumstances (Federal Courts Rules, rule 3). The rules do not mention the Court’s power to visit. Part 5, Applications, is the best vehicle for any application to visit a prison because the proceeding is ‘required or permitted by or under an Act of Parliament’ (rule 300[b]). The CCRA allows judges to visit; the process by which a subject brings this matter to judicial attention is thus permitted by the Act.

Part 5 of the rules is typically used for judicial review. Judicial review is a combined statutory and common law appeal to law courts against administrative decisions. The process does not often involve equity because the law of judicial review is a field unto itself.

The Court’s right to visit prisons intrudes a corollary equitable power under Part 5 because visitors, though recognized in common law, are creatures in equity. They have no set procedures and do not fall under a particular body of law (although modern visitors do reach for common legal principles). Visitors rely on their consciences and on the organization’s founding documents.

Applying procedure to Mr. Latham’s case

Mr. Latham’s case is fertile ground for judicial visitation because he did not provide enough evidence to ground his claim. The government’s objection to the Federal Court’s jurisdiction, moreover, sought to preclude any judicial intervention. Mr. Latham had framed his issue to obtain release; release was not the only possible relief. The Court could order preventative measures to increase Mr. Latham’s safety while in prison. These measures indeed might have been more appropriate.

The procedure in a case where neither party pleads the issue is well established: the Court can request submissions on a particular point, such as visitation, to determine whether it might be used in the circumstances. Justice Pamel’s reasons suggest that a visit might have been appropriate to assess the prison environment with respect to Mr. Latham’s medical status. In so doing, the Court intimately understands the litigant’s circumstances, which gives its decision greater legitimacy between the parties and in the public eye.

Mr. Latham’s application for judicial review also allows visitation to intrude without changing the application’s underlying nature. Part 5 of the Federal Court Rules allows the statutory and common law proceeding to run concurrently with equitable relief.

More critically still, the Court has every right to visit; it does not necessarily have the right to grant parole in exigent circumstances. Visitation thus allows Justice Pamel (in this case) to find a middle ground between protecting the Canadian public and ensuring that Mr. Latham’s right to life is reasonably maintained.

Mr. Latham’s right to life while in prison is inherently speculative during the COVID pandemic. The binary logic deployed in this case places the onus on Mr. Latham to prove a violation of his rights, but that violation can really only be proved if Mr. Latham has the resources to receive epidemiological evidence of his correctional institution’s failings. Most federal inmates will not possess these resources. Mr. Latham’s claim is thus speculative because he can only imagine the possibilities. His concerns, however, remain valid and deserve some compassionate judicial treatment. Justice Pamel’s decision is an example of such compassion, but he might have gone further had the law of visitation been pled.

Conclusion

More Charter and statutory challenges to prison conditions during this public health crisis are forthcoming, and courts will need to innovate in order to provide substantive and procedural justice to inmates. Prison visitation represents a distinct reason for applications in Federal Court with vastly relaxed rules for litigants and judges. This procedure might seem lawless to opponnents of visitation; it is instead one of the purest exercises of equity and common sense left to Canadian courts. A judge needs to really consider the prospective effects of her or his decision on inmates. Judges’ ability to inspect Canadian prisons is an opportunity to craft judicial solutions tailored to individual inmates’ and to the extraordinary circumstances of our times. In this way, legal rules, though important, may cede to the dictates of a judge’s conscience.

The Law Society of Ontario uses its Governance Practices and Policies to declare that its ‘authority to regulate is a delegated authority from the government of Ontario through the [Law Society] Act’ (s. 5). The Law Society Act does not, however, back this proclamation with convincing proof. The Society’s only connection to government is through the Attorney General for Ontario, ex officio bencher (s. 12[1]). I contend that the Society’s interpretation of its home statute and its position in relation to government are at odds with the principle of an independent legal profession.

The problem with the law society’s interpretation is not apparent at a time when the welfare state folds the executive into the adjudication of disputes. The Supreme Court in Trinity Western’s latest kick at the can viewed law societies as arms of government. The profession should, however, be concerned with this misapprehension. The Law Society of Ontario – the first law society in Canada – was founded as a private college serving the bench. Our modern view shifts this onus from advocates’ traditional role as servants of a court. We instead see the society identifying with executive power.

This issue founds the question I wish to address: whom does the law society serve?

A bland response is: ‘its members’. Indeed, the Law Society is a professional college that bears the hallmarks of an eleemosynary corporation. It is a foundation endowed to preserve its members’ interests. It can award university (collegiate) degrees. Its funds are (notionally) diverted to its members. The Society is, in other words, a charity designed to house legal professionals as a self-regulating and self-training college, thus maintaining an independent profession.

I will briefly detail the history of visitors at the law society and show how the office was suppressed. I will then discuss the possible current visitor, the Attorney General of Ontario. The conclusion to this comment questions the independence of a bar that thinks of itself as an arm of executive government.

Visitors at the Law Society

A more lawerly response to my question notices the change wrought by amendments to the Law Society Act in the 1970s. Since 1797, the year of the Law Society’s creation, its legislative charter has mentioned that the judges of superior courts are visitors of the law society. I have elsewhere defined a visitor with citations: visitors have full power to review decisions and statutes of the corporations over which they lord. They can overrule executive and quasi-judicial decisions. They can disallow by-laws. They can even replace by-laws with creations of their own. This little-noticed provision endured as evidence of the British trend across the world: judges supervised lawyers pleading at the bar.

By the 1970s, however, the trend was ready to be forgotten. The Law Society Act was amended. Section 3 of the 1960 Act read: ‘the judges of the Supreme Court are visitors of the Society’. This text was replaced by the requirement for an annual meeting of the members; section 13 was also added:

(1) The Minister of Justice and Attorney General for Ontario shall serve as the guardian of the public interest in all matters within the scope of this Act or having to do with the legal profession in any way, and for this purpose he may at any time require the production of any document, paper, record or thing pertaining to the affairs of the Society.

This innocuous addition transferred a right of inspection from the judges to the Attorney General. The Supreme Court later declared, when reviewing the Saskatchewan Legal Profession Act‘s mention of judges as visitors, that

The unique position of a Judge is reflected by s. 7 of the Legal Profession Act [RSS 1987, c L-10] which designated Judges as visitors of the Society. The title is a hollow and anachronistic one: there is no role or function assigned to a visitor. Nor does a visitor hold an office, or derive any rights from or owe any responsibilities to the Law Society. Whatever it may be, a visitor is not a barrister or solicitor.

Maurice v Priel, [1989] 1 SCR 1023

The Supreme Court of Canada forgot the law. Visitors carry symbolic and substantial weight. They show who is responsible for ultimate oversight of a charitable corporation. That responsibility, though little-exercised, creates rights of appeal from decisions and review of by-laws and regulations.

These powers are sweeping and can be used to correct or undermine the law society’s behaviour, thus affecting the independence of the legal profession a society supervises. While judicial review might lie against a visitor’s decision, that first attack against the society’s decision may prove decisive if the visitor acts within its purview.

Returning to Maurice v Priel for a moment, the Supreme Court’s decision is indicative of the lack of judicial and lawyerly care that sometimes pervades the profession. History shows that law society visitors policed conduct at the bar. Judges were, of course, the logical choice of visitor because they could police individual conduct through contempt and the society’s conduct through visitation.

Current Visitor

Removing explicit mention of judges as visitors means that the legislature returned the right of visitation to the common law from whence it originated. Visitors are appointed by common law, not by statute. A statute that appoints a visitor simply clarifies the law; the law society’s visitor thus still exists in common law, but it takes some digging to find.

Two possibilities exist: the judges may remain visitors, or the Attorney General might have taken up the visitor’s power. This latter option seems more likely because the Attorney General is the ‘guardian of the public interest in all matters within the scope of this Act or having to do with the legal profession in any way’. These words are broad enough to deprive the judges of their reforming power over the law society. The Attorney General instead safeguards the public as the Crown’s first barrister.

If the Attorney General acquires reforming power over the Law Society, that power may be used to undermine the independence of the legal profession. Granted, it does seem unlikely that an Attorney General would so blatantly interfere in the Law Society’s business. The visitor’s powers are also symbolic. They allow lawyers critical of the Law Society and judges on administrative review to link the Society with the executive branch (as has demonstrated in Trinity Western‘s latest kick at the can), thus paving the way for judicial review under Charter norms.

Implications

The implications of this legislative change, if it is successfully argued or even if it acquires persuasive weight, is that the Law Society’s focus has indeed shifted from serving the courts to being regulated by government. This shift is a potential nail in the coffin for an independent legal profession because the regulating body is under the state’s thumb, while individual lawyers still serve the courts. This tension has not, to my knowledge, been discussed. It is, however, an issue that might come to symbolize the profession’s true independence.

**What follows supplements my forthcoming article on the law of the university visitor in Canada, which appears in the Windsor Yearbook of Access to Justice. A permanent link to this article will appear on my publications page. This commentary is cross-posted to CanLII.**

Prisons are typically viewed as public institutions. Funded by government, penitentiaries accomplish clear governmental public safety functions, yet the law of judicial review does not allow free flow of information between prisoners and the public. No particular right attached to, say, a journalist’s desire to speak with prisoners. The government controls access to prisons. This problem takes on special significant during this COVID outbreak because prisoners are disproportionately affected by communicable disease.

Most lawyers would look to cutting-edge administrative or human rights law for a solution. With respect to these eminent minds, I think the solution is better found with recourse to the great lake of English precedents. An especially relevant group of precedents surrounds section 72 of the Corrections and Conditional Release Act. This provision reads:

Every member of the House of Commons, every Senator and every judge of a court in Canada has the right to

(a) enter any penitentiary,

(b) visit any part of a penitentiary, and

(c) visit any inmate, with the consent of the inmate,

subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

This provision entitles judges (in particular) to attend at a prison with a view to determining whether the living conditions are adequate.

This kind of provision is a legislative expression of the ancient visitatorial jurisdiction, where the founder of a charity retains the right to inspect the affairs of their foundation and correct abuses. I often describe this function as a crown-in-miniature because visitors have all the rights of an executive, a legislator, and a judge. The three branches of government combine in a single person. If this law applies to prisons, judges can exert their powers as judges and as visitors to correct abuses in the prison system. This law then supplies a novel set of remedies to situations not covered by private nor public law.

Visitors form a unique subset of administrative law. They are largely subtracted from administrative law rules because the jurisdiction is traditionally exclusive. Courts can only review on the narrow ground of ultra vires the visitor’s jurisdiction. Within that jurisdiction, the visitor is supreme. A ‘wrong’ decision is not amenable to review.

When judges visit, then, they move beyond a simple trial or judicial review. They do not judge in the adversarial model, nor are they looking for a reasonable or correct decision. A judge sitting as a visitor can make any order to correct abuses or lacunae in the charity. This is a powerful tool with respect to prisons because it eschews the confining limits of legal procedure.

I briefly review this jurisdiction and its application in Canadian law before turning to prisons and the interpretation of the Corrections and Conditional Release Act (“CCRA“).

Visitors: a potted history

That divided church was incapable of affording an impartial judicature; the controversy was solemnly tried in five successive tribunals, which were appointed by the emperor; and the whole proceeding, from the first appeal to the final sentence, lasted above three years. A severe inquisition, which was taken by the praetorian vicar and the proconsul of Africa, the report of two episcopal visitors who had been sent to Carthage, the decrees of the councils of Rome and of Arles, and the supreme judgment of Constantine himself in his sacred consistory, were all favourable to the cause of Caecilian; and he was unanimously acknowledged by the civil and ecclesiastical powers as the true and lawful primate of Africa.

Edward Gibbon, The Decline and Fall of the Roman Empire 1:21

Visitors originate in Roman practise carried over by the Catholic church into canon law, where the institution subsists today (e.g. can. 396). A visitor is responsible for the proper administration of a foundation created out of it bounty. Almost all the cases on this point relate to colleges and universities. Justice Holt describes the phenomenon in Philips v Bury ([1694] 90 Eng. Rep. 1294):

private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and therefore if there be no visitor appointed by the founder, I am of the opinion that the law doth appoint the founder and his heirs to be visitors. The founder and his heirs are patrons, and not to be guided by the common known laws of the kingdom. But such corporations are, as to their own affairs, to be governed by the particular laws and constitutions assigned by the founder. […] the law gives him and his heirs a visitatorial power, that is, an authority to inspect their actions, and regulate their behaviour, as he pleaseth.

p. 1299.

Justice Holt’s comments remain the leading statement of this law today, although other cases have expounded upon the jurisdiction in England and in Canada (for which, see the below list). The visitor’s power is absolute within its jurisdiction: common law and equity courts traditionally decline to interfere, but a mandamus will lie against a visitor that refuses to exercise jurisdiction when a member of its foundation has a right of appeal to the visitor (The King and Blythe, [1699] 5 Mod 404).

The more critical implication of Justice Holt’s opinion is that visitors are a law unto themselves within the limits of their jurisdiction. They have the power to inspect and reform their charities as they deem fit. This power exists because the founder invests their property in the charity; the bequest must be administered for all time according to the founder’s wishes. This law has been confirmed through the years (Green v Rutherford, [1750] 1 Ves Sen 463; Thomson v the University of London, [1864] 10 The Law Times 403), even if courts are reluctant to acknowledge the jurisdiction (e.g. Page v Hull University Visitor, [1993] 1 All ER 97).

A few more rules that are drawn out of the cases define the office:

• No specific words are needed to constitute a visitor; where the founder’s intention is to found a charity and imbue it with statutes, its intention is also to create power of supervision unless otherwise expressly provided (Attorney General v Talbot, [1747] 3 Atk 663; Saint John’s College, Cambridge v Todington, [1757] 1 Burr 158);
• A transaction that relates to the internal operation of the charity (e.g. admission of fellows to a college) is a transaction reviewable by the visitor, for it involves the rules on which the visitor sits as judge (idem);
• So long as the visitor acts within its jurisdiction, the courts will decline to introduce a remedy (Attorney General v Dulwich College, [1841] 4 Beav 255);
• The visitor’s jurisdiction arises as a trust between the founder and the charity’s administrators, and a court can amend the visitor’s jurisdiction by amending the trust when the trust becomes impossible of performance (Attorney General v The Deadham School, [1857] 23 Beav 350).

English courts and visitors have generally recognized these rules in the twentieth century (for which, see the below list of cases).

Application in Canadian Law

Visitors quietly exist in Canadian law. Colonial governments created visitors to supervise charities founded out of the Queen’s gift or a legislative grant. A notable example remains McGill University, whose visitor is the Governor General. The University of Toronto was similarly endowed, with the Lieutenant-Governor as visitor until 1901, when the Board of Governors was granted all the Crown’s powers in respect of the University. Colleges similarly benefit from visitors: Massey College is visited by an individual elected to the post (charter, art. 10[d]). Beverley McLachlin is its current visitor and is described as ‘the College ombudsman’. Justice McLachlin shares her time as a visitor with Queen’s College, Cambridge. Incidentally, Queen’s statutes describe the office’s modern role as a private court of appeal (art. 39).

Colonial governments’ close involvement with this jurisdiction has changed courts’ approach to the office, but we unfortunately have too few reasoned judicial statements to hand. The most considered debate occurred in 1885. Re Wilson saw a college professor ejected from King’s College, Halifax by the Dalhousie University Board of Governors. The visitor was the Bishop of Nova Scotia, who sat on the Board. The ejected professor sought judicial review; the University put the visitor’s exclusive jurisdiction up against the case.

The critical issue in this instance was determining the rights of the founder, whose rights were created by statute. The Court found that the Legislative Assembly had founded both college and university; the visitor was a statutory delegate supervising the charity for the assembly. Justice John Thompson sums this law up:

How does the case stand with this College? It has no founder, in the sense of the English law. It was a public corporation, established by the Legislature of the Province. It was incorporated by a public statute in 1789. I say a public statute, because the statute has all the features, and complies with the usual tests by which public acts are distinguished, — dealing with the public revenue, reciting that it is for public utility, etc.

1 NSR 180, 193-4.

This view was taken up by the Lieutenant-Governor of New Brunswick’s commissioned visitor in Isaac v University of New Brunswick:

The continuation of the Office of the Visitor by a public statute, for a publicly incorporated educational institution, emphasizes the unique nature of the University of New Brunswick. The University has the full power and authority to promote and carry out the work of a university but, as a public institution, it is subject to the scrutiny of the Legislature responsible for its continued existence. The Office of the Visitor allows the University to maintain its independence, without undue public interference, while providing for public accountability.

[1992] 130 NBR (2d) 382, para. 30.

A modern view of visitors in Canada thus accepts them as ombudspersons. When visitors are created by the legislature in a public statute (see the Interpretation Act, s. 9, for a definition of private statutes), they serve the legislature’s interest as a private court of appeal and a supervisor of the Crown’s funds that vest in the charity.

Interpreting the CCRA

Section 72 of the CCRA creates a right to visit prisons in federal jurisdiction, but it is unclear what the right might entail. Canada’s prisons have no record of visitation, although a great amount of legislative history connects the right in section 72 with the ancient powers of visitors. A single case, R v Taylor, unites old and new. The Newfoundland and Labrador Court of Appeal decided a sentencing appeal and interpreted section 13 of the Prisons Act to imply a judges’ right to shape sentences to individual offenders’ circumstances. For ease of comparison, I reproduce section 13 alongside section 72 of the CCRA:

This wording, though of course different, appears to imply the same rights. Judges and legislators may enter prisons and conduct an inspection.

Justice White interprets the Newfoundland and Labrador provision by ‘in a modern context’:

Visitation must mean more than the right to have tea with the warden. The language of s. 13 of the Prisons Act makes it clear that it is also a power to inspect. There is no point in having a power to inspect unless one can act on the results of the inspection. The information gathered in the course of inspection must be capable of being used for the purposes of the person gathering the information.

…

a judge may use the results to inform him or herself of conditions at the prison so that in the process of sentencing a particular offender he or she can ensure that a disposition suitable to the circumstances of the particular offender is arrived at. … As noted in the quotation from Blackstone set out above, the power is a power to visit, inequity “and correct”. The concept contains a dispositive element; the power is not merely to facilitate information gathering in the abstract.

Paras. 33-34 [all emphasis original].

Justice White’s read of the visitor’s jurisdiction relies on a series of concepts:

1. The legislature is presumed to know all of the law, any facts relevant to the legislation’s operation, and the meaning of all terms of art (2011 SCC 53, para. 45; 2004 NLCA 12, paras. 37-8);
2. The legislature’s use of a legal term without qualification incorporates the term’s common law meaning into the statutory scheme ([1988] 1 SCR 914, para. 25);
3. The Interpretation Acts (NFLD and Canada) provide judges appointed to visit prisons with all powers ancillary to accomplishing that purpose; and
4. Legislation is always remedial and must receive a liberal construction, even when pre-existing principles are being codified ([1999] 1 SCR 688, paras. 31-4; Interpretation Acts).

These principles, though unstated in Justice White’s decision, seem implied because he gives visitors’ common law powers a liberal construction to achieve the Prisons Act‘s purpose: supplying adequate judicial and legislative supervision over penal institutions. The visitor’s public function as an agent of the legislature takes on renewed significance in the penal regime because the executive branch and prison authorities possess near-absolute power over incarcerated offenders.

History of prison visitors

If any doubt exists about the CCRA‘s antecedents, English practise and colonial legislation shows that Canadian legislatures have always understood visitors’ rights in the prison context.

Prisons have been referred to as charities since at least the thirteenth century. John Selden’s edition of Fleta, a manual of government and common law, describes the Crown’s charitable role as officium autem elemosinarii est, fragmenta diligenter colligere, et ea distribuere singulis diebus egenis (EEBO Wing / F1290A, bk 2.23 [the eleemosynary office is, however, to diligently collect the ruins and piece them together every day to distribute to the poor]). Prisons are numbered among charities in this text.

This statement burgeoned over time into a division between county prisons administered by justices of the peace and common gaols administered by the Crown’s sheriffs. This distinction appears in Rex v Eastaff, where a county justice sought to visit a common gaol where men accused of treason were held. The prison keeper refused the justice admission because he was not one of the county’s visiting magistrates and because the Secretary of State’s warrant committed the prisoners to close custody. They were not permitted to speak with anyone. The justice indicted the keeper for refusing to permit visitation under a prison statute. The question was whether a county justice, whose authority extended to county affairs, was permitted to visit a royal prison. The jury ruled that the justice had no right to visit ([1818] Gow 138). The reporter appends a note by a Francis Ludlow Holt, onetime reporter of nisi prius, who explains that houses of correction created by Elizabethan poor laws differ from common law gaols erected under the prerogative (e.g. [1601] 43 Eliz. 1, c. 2). Justices visit the former; sheriffs superintend the latter, with a right of supervision perhaps accruing to justices of superior courts of common law jurisdiction (Eastaff, 155-60).

Canadian colonies adopted this legal formula when they created prisons via statute. Exchequer is nowhere mentioned in these acts, which instead commissions justices of the peace for each county, inspectors of prisons, or appointees of the executive councils as visitors. Prince Edward Island legislation framed this commission in general terms ‘for carrying into effect the provisions of this Act’ (RSPEI 1849 [12 Vict.], c 12, s. 3). These justices were to visit each prison in their county and were superintendent over the county sheriff (ss. 8-9). In Nova Scotia, the Board of Works, of which the ‘financial secretary’ was a member, appointed its members to visit the penitentiary (RSNS 1851, c 24, s. 1; c 25, ss. 4-5). New Brunswick issued commissions to judicial and municipal officers in Saint John, who were required to visit the city’s house of correction (SNB 1841, c 44, ss. 9-10). Upper Canada had prison inspectors, but the Governor, judges, queen’s counsel, and members of the legislature could visit at pleasure while three formal visitors appointed by the Crown saw to day-to-day affairs (RS Prov-Can 1859, c 110; c 111, ss. 53, 61). Whether a justice of the peace, an inspector, or a judge, visitors exercised their reforming powers in the Crown’s name to assist the Crown’s penal charity.

At Confederation, the situation was little changed: visitors continued to exercise the Crown’s power, and Parliament adopted the Province of Canada’s model of visitation. The Parliament of Canada inherited what in England were called common gaols; provinces retained control over county institutions. Federal penitentiaries were overseen by three directors appointed by the Governor-in-council (SC 1868, c 75, s. 3). These officials were responsible for general regulations and had the power to inspect each institution (ss. 7-9). The directors were visitors in all but name, yet they were enjoined against interfering with the wardens’ management of each institution. The visitor’s primary function, to sit in appeal of prison officials, was reserved to:

the Governor General of Canada, the Lieutenant governor of any of the Provinces composing the Dominion of Canada, any Member of the Privy Council of Canada, any Member of the Executive Council of any of the said Provinces, and Member of the Parliament of Canada or of any of the Local Legislatures, any Judge of any Court of Record in Canada or in any of the said Provinces, and any Queen’s Counsel.

s. 42

The legislature nowhere indicates that the right to visit implied more than a right to physical presence at an institution, yet such a right does not accord with the technical words used in the colonial legislation predating Confederation. Nova Scotia’s, New Brunswick’s, and Canada’s legislation all recognized visitors’ traditional powers prior to Confederation. Parliament’s choice of words imported this device by authorizing prison inspectors to collect information while preserve wardens’ executive power in each prison. The power to hear appeals from prison officials was reserved to political and judicial actors across branches of government.

These actors continued in the right to visit, with some modification, since this first corrections statute down to the present. An interpretation of the legislation with regard to the formalities of legislative drafting and context lead to the conclusion that Parliament understands the visitor’s role at prisons. It has incorporated the jurisdiction into the corrections scheme to limit unfettered executive power.

The Judge as visitor – practical application

A judge is vested with a personal power to visit and thus exercises it as persona designata. This phrase denotes personal jurisdiction vested through an act of Parliament naming individuals to exercise powers. Most provinces have abolished persona designata vesting in superior court judges; the court instead exercises these powers under regular procedures. Justice White’s approach in R v Taylor, for example, notices the office to ground the argument that courts may depart from strict sentencing and prison rules to accommodate the individual offender’s needs. Another approach to visitation is by application to any superior court.

Provincial courts are one avenue, but a compelling policy argument pushes litigants to apply to Federal Court to exercise visitatorial powers: a single bench hearing these cases is better placed to develop the law of prison visitation in the modern era. Diffusing visitation across provincial jurisdictions inevitably confuses the standards on which a visitor will judge and intervene in prisons. The federal bench travels; it can accomplish the visitor’s role. It is also resident in Ottawa, with its own appellate bench. It thus has an attractive confluence of mobility and fixed location.

The Federal Courts Act does not abolish persona designata, nor do its rules. Applicants should, however, use the procedure contemplated by rule 300 (with reference to rule 4 if they encounter any guff). An application is made out under the authority of section 72 of the CCRA. The request is that a judge of the Court visit a prison to grant relief. The request must specify the nature of the dispute and the order (or orders) sought, but it is unclear what law needs to be adduced. Visitors are pure creatures of equity that, as has been said, are not constrained by general legal rules. A judge sitting as a visitor thus does not have to decide the matter with reference to those general principles. The CCRA and its regulations must be considered; all policies and procedures enacted in the prison are subject to amendment or reversal if the visitor deems necessary.

Conclusion

Based on the research that I have conducted to date and summarized above, prison visitors are alive and well. Courts may refuse to apply these rules because they are of quite ancient extraction. The rules do, however, continue to serve a purpose in our law: courts ought to follow them.

Prisons are an easy case for visitors. Visitors’ twin purposes in this context are to ensure that prisoners are treated correctly and to act as stewards over public institutions. In most cases, the executive and legislature will adequately supervise prisons; courts need not get involved too often. Rare cases will, however, require the intervention of a judicial officer with plenipotentiary powers to ensure prisoner safety and public confidence in the penal system. Courts should not shy away from this task, and offenders and their allies ought to take advantage of this law.

Cases defining the jurisdiction

This list is not exhaustive. If you find a fresh Canadian or English (or Commonwealth – there are cases in Australia and New Zealand that I have not cited), please leave the citation in comments below.

England/Britain

• Attorney General v Dulwich College, [1841] 4 Beav 255.
• Attorney General v Talbot, [1747] 3 Atk 663.
• Attorney General v The Deadham School, [1857] 23 Beav 350.
• Attorney-General v Magdalen College, Oxford, [1847] 10 Beav 402.
• Attorney-General v Middleton, [1751] 2 Ves Sen 327.
• Casson v University of Aston in Birmingham, [1982] 1 All ER 88.
• Dr Robert’s Case, [1666] 2 Keb 103.
• Green v Rutherford, [1750] 1 Ves Sen 463.
• John Colt & William Glover vers Richard Evesque de Coventry & Lichfield, [1612] 72 Eng Rep 982.
• Page v Hull University Visitor, [1993] 1 All ER 97.
• Parkinson’s Case, [1689] Holt, KB 143.
• Pleadings in the Case of Sutton’s Hospital, [1613] 10 Co Rep 1b.
• R (on the Application of Michael Ferguson) v Visitor of the University of Leicester, [2003] WL 22656617.
• R (On the Application of Varma) v Duke of Kent, [2004] ACD 81.
• R v Episcopum Eliensis, [1750] 1 Wils KB 266.
• R v Middlesex Asylum Justices, 2 QB 433.
• Rex v Eaststaff, [1818] Gow 138.
• Saint John’s College, Cambridge v Todington, [1757] 1 Burr 158.
• The King against Laughton, [1814] 2 M & S 324.
• The King against New-College in Oxford, [1671] 2 Lev 14.
• The King and Blythe, [1699] 5 Mod 404.
• Thomas v University of Bradford, [1985] 1985 Westlaw 311443.
• Thomas v University of Bradford, [1992] 1 All ER 964.
• Thomson v the University of London, [1864] 10 The Law Times 403.
• Thorne v University of London, [1966] 2 QB 237.

Canada

• Ahmed v Dalhousie University, 2014 NSSC 330.
• Blasser v Royal Institution for the Advancement of Learning, 1985 CarswellQue 88.
• Forestell v University of New Brunswick, 1988 CarswellNB 138.
• Isaac v University of New Brunswick, [1992] 130 NBR (2d) 382.
• King v University of Saskatchewan, 1968 CanLII 524.
• Langlois v Rector and Members of Laval University, 1973 CarswellQue 242.
• Marsh v Huron College, 1880 CarswellOnt 57.
• McWhirter v Governors of the University of Alberta, [1975] 62 DLR (3d) 684.
• Mohamed v University of Saskatchewan, 2006 SKQB 23.
• Mycyk v University of Saskatchewan, 2007 CanLII 303.
• Pearlman v University of Saskatchewan (College of Medicine), 2006 CanLII 105.
• Prokopchuk v University of Saskatchewan, 1985 CanLII 2453.
• Re Polten and Governing Council of the University of Toronto et al, [1975] 59 (3d) DLR 197.
• Re Vanek and Governors of the University of Alberta, [1975] 57 DLR (3d) 595.
• Re Wilson, [1885] 18 NSR 180.
• Riddle v University of Victoria, [1979] 2774 CanLII .
• The University of Saskatchewan and MacLaurin (Re), [1920] 2 WWR 823.
• Webb v Simon Fraser University, 1978 CarswellBC 594.
• Wong v University of Toronto, 1990 CanLII 8102.
• Wong v University of Toronto, 1992 CarswellOnt 916.

I find it irksome that Canadian lawyers often resort to the law courts without any regard – at most very little regard – for the ancient role of the legislator as a court of grievances. This phenomenon is especially important in a time when Canada’s Charter of Rights is often pled to establish a new frame of reference for social issues of the day.

Most people trained in law will rebel at the suggestion that Parliament could ever be a court. Conflating the legislature with judicial office undermines the division of powers that defines our Americanized view of government.¹

An historically accurate assessment of our parliamentary democracy ignores such divisions. One compelling example is the early Northwest territories. The Act to amend and consolidate the Laws respecting the North-West Territories stipulated that stipendiary magistrates sit ex-officio on the Lieutenant-Governor’s council, which was charged with the creation of laws and administration of government.²

This reality has, of course, shifted over time: we no longer speak of assemblies as courts with judicial functions. Casting back, however, to our feudal roots in England shows that Parliament was conceived as a court for grievances that could be put up against common law courts’ powers. The critical feudal division of power lies in the spheres of advise that individuals or groups are privileged to offer the Sovereign, for which concomitant privileges are attached. I will describe this phenomenon and then apply it to Charter litigation in Canada.

The origin of Parliament

Frederic W. Maitland ascribes the origin of Parliament, albeit indirectly, to Magna Carta. King John’s 1215 charter submits the Crown to the ‘common counsel of our realm’ when raising most classes of funds.³ Even before this time, in 1213, Maitland has John summoning a council at Oxford composed of ‘four lawful men of every shire, ad loquendum nobiscum de negotiis regni nostri‘.⁴ These discussions allowed the Crown legitimacy, and John’s failure to adequately consult eventually contributed to the eruption of conflict with his barons.

The institution of Parliament comes later, in the reign of Edward I.⁵ This king summons an assembly on November 13, 1295, to levy funds for national defense against France and Scotland, along with a revolt from Wales. He does so via personal writs addressed to his barons and spiritual lords. Commoners are summoned via writs addressed to the royal sheriffs of each county. These estates are asked to execute the levies proclaimed by the Crown. The estates of the realm are asked to consent to the royal levy.⁶ Parliament would require the Crown submit to fresh laws in exchange for funds.

The form created by these exchanges became something of a court as negotiations between Crown and other estates ebbed and flowed. Parliaments served as a check upon feudal power, yet they remained a feudal council advising the Crown and executing the Crown’s decisions. This formality is apparent in the parliamentary roll for 1376, when the Good Parliament exercised itself against perceived corruption in Edward III’s household by citing the poor administration of the King’s revenue:

the said commons came into parliament, publicly making protestation that they were of as good will and firm purpose to aid their noble liege lord with men and goods, and whatever they have, as ever were any others in any time past, and always would be with all their power. But they said that it seemed to them a true thing that if their said liege lord had always had loyal counsellors around him, and good officers, our same lord king would have been well enriched with treasure, and therefore would not have much need to charge his commonalty by means of a subsidy or tallage or otherwise.

PROME, April 1376⁷

The petitions from this Parliament are also indicative of the bargain between Crown and Commons. Information is requested and given; redress requested for specific wrongs; general societal problems resolved through royal grace. These forms are always attached to the Crown’s supply as bargains between the fountain of justice and its people. The King looks to supply the greatest good to his subjects.

The social contract and the English legislator

This bargain made by petition and answer in the early centuries of Parliament sets the stage for further revolutionary arguments at the dawn of social contract theory. Edward Coke is one seventeenth-century proponent of parliamentary bargains. His contribution in this regard is, however, relatively light. Thomas Hobbes’s and John Locke’s theories of social contract point to the massive changes in relationships between the Crown, Parliament, and subjects.

Coke advocated for parliamentary independence in explicitly judicial terms:

Note, the House of Commons is to many purposes a distinct Court, and therefore is not prorogued, or adjourned by the prorogation or adjournment of the Lords House: but the Speaker upon signification of the Kings pleasure by the assent of the House of Commons, doth say: This Court doth prorogue or adjourne it self; and then it is prorogued or adjourned, and not before.

Institutes of the Laws of England, 4.28 [sig. D4r]⁸

Coke’s focus on prorogation and adjournment evokes the larger issue: the Commons’ House is master of its proceedings, a privilege accorded to each English court. John Glanville makes a similar statement regarding the Commons’ privilege with respect to elections: the House is its own court for matters within its jurisdiction.⁹

These statements are usually read in limited terms to mean that Parliament’s privileges allow it to control its internal proceedings. The doctrine of parliamentary sovereignty (which draws from the logic of Parliament as a court advising the Crown) extends these proceedings over any question that a house of Parliament wishes to study.

Thomas Hobbes’s theory of sovereignty departed from the feudal terms of service and moral government that characterized parliamentary discourse. He instead frames the relationship between sovereign and people as a matter of common consent:

The Greatest of humane Powers, is that which is compounded of the Powers of most men, united by consent, in one person, Naturall, or Civill, that has the use of all their Powers depending on his will; such as is the Power of a Common-wealth: Or depending on the wills of each particular; such as is the Power of a Faction, or of divers factions leagued. Therefore to have servants, is Power; To have friends, is Power: for they are strengths united.

Leviathan¹⁰

Unified action creates power, and each human is empowered to join forces. This formulation describes social status as a matter of recognition rather than any inherent quality. Society is formed because individuals ‘love Liberty, and Dominion over others’.¹¹ Society is a defensive measure that appoints ‘the terrour of some Power’ to enforce peace.¹² This view is a marked departure from feudalism’s moral and religious frame of reference.¹³ Individuals are empowered, but Hobbes (true to his experience) continues to laud the monarchy. His theory of government apologizes for Charles I’s obstinacy while degrading Parliament’s revolutionary spirit.¹⁴

John Locke’s response to Hobbes’s monarchical view instead frames the social contract in light of the Glorious Revolution. James II was deposed in 1688 to make way for the protestant William of Orange. Where Hobbes’s theory continued to rely on the Crown’s honour, Locke’s 1689 theory imposed limited government as something of an apology for the Revolution:

Civil society being a state of peace, amongst those who are of it from whom the state of war is excluded by the umpirage, which they have provided in their legislative, for the ending all differences that may arise amongst any of them; it is in their legislative, that the members of a commonwealth are united, and combined together into one coherent living body. This is the soul that gives form, life, and unity to the commonwealth: from hence the several members have their mutual influence, sympathy, and connexion: and therefore, when the legislative is broken or dissolved, dissolution and death follows.

“Of Civil Government”, s. 212¹⁵

The legislator is the root of all power: Parliament’s call for William to ascend the throne projects the people’s will. England’s social and governmental power is preserved because Parliament separate from the Crown is sovereign.

This new contract departs from feudal norms. Individuals are now empowered to break allegiance and faith in their sovereign via the legislative branch. The Crown’s ability to bargain with its subjects is further constrained by Parliament’s assumption of legislative jurisdiction. Society is preserved whenever the legislator judges the Crown’s exercise of power; executive government can be dissolved so long as legislative power remains.

Privilege and Parliament’s jurisdiction

The feudal courts used the concept of privilege to justify their jurisdiction in the face of other tribunals. Hence the writs of privilege and prohibition, which were used by English superior courts to assert themselves. These courts originated in the King’s council,¹⁶ much like Parliament, which extended the Crown’s duty to hear advice to a large formal assembly.

The 1790 Exchequer case of Cawthorne v Campbell defines judicial privilege in feudal terms:

the Courts of Common Law do ordinarily assert their jurisdiction, in respect of the privilege, either of the Court, or of their ministers and officers, in a different manner, by suing out a writ of privilege, and pleading the privilege of one Court, to the jurisdiction of the other, and so submitting the ground of the privilege claimed to the judgment of that other Court. And indeed, the common and received practice and established course of proceedings in those Courts, has made it the law of those Courts and the law of the land.

…

in theory, every Court is properly the judge of its own privilege, and no other Court ought to interfere with it.

Chief Baron Eyre¹⁷

The Chief Baron states that courts in equity assert privilege by injunction issued to another court. These forms of proceeding resemble Parliament’s privilege. Each council advising the Crown has a collection of feudal privileges to protect its operations from other councils.

The Chief Baron’s summary of the law of inter-court privilege means that each superior court judges the limits of other superior courts’ powers. Dialogue – perhaps even responsible dialogue – between courts is the true privilege insulating jurisdiction between tribunals.

Parliament’s privileges are on equal footing with judicial privilege. Each category accomplishes the same goal of protecting part of the royal council from interference. To be sure, the legislator cannot be characterized as a superior court. It is instead a legislative court hearing representatives’ pleas for policy changes.

Canadian Application in the Charter Era

Our legislator simply doesn’t assert privilege or jurisdiction against judicial interference, which allows the courts’ ministers – lawyers – to run amok. Lawyers can now use the courts in efforts to accomplish social reform by pleading the Charter. These cases have led to great advances in our society and have forced legislative responses. They are laudable efforts, but such pleas are in the form of petitions to the legislator to amend the Crown’s conduct.

Such petitions were at one time reserved to Parliament because they were pleas to alter the Crown’s actions.

The evolution of Parliament has since then resulted in petitions becoming a dead letter. Our legislatures hear subjects, but no one expects a petition to result in meaningful change. They receive an answer from government, but there is no effective mechanism attached to each prayer.¹⁸

We therefore rely on our representatives in Parliament (House and Senate) to advance legislative goals. The government, unfortunately, too often controls the pace of legislation. Political parties also maintain a stranglehold on meaningful legislative intervention. Our Parliaments are political first, legislative second.

The result of this inversion weakens the commonwealth and its social contract to the point where lawyers and litigants feel it necessary to accomplish meaningful social reform through the courts. Any veneer of sovereign authority is shattered in this process. Individuals are able to propel social change in a forum never designed for these sweeping questions.

These individuals are, however, not to blame. We are collectively responsible for electing restive and tactful representatives who can assert Parliament’s legislative jurisdiction against the courts. In this sense, a legislature is a court because its weight in our social lives is as meaningful as a court’s. Each exercises some royal power to do right. Parliaments take a wide view of societal ills; courts resolve disputes between individuals. Lawyers in particular should preach this difference, to put pressure on legislators. At the last, however, legislators should have the gumption to assert jurisdiction in relation to Charter questions. Debate new ideas to find ways forward.

The Supreme Court of Canada has got some Canadian dons on the twitter-sphere up in arms after denying leave to appeal in Basilian Fathers of Toronto v. Roderick MacLeod somewhat in conjunction with the release of its 2019 statistics. The central issue on appeal was whether the instructions to the jury regarding assessment of damages for loss of income was incorrect. The Ontario Court of Appeal maintained the trial judge’s and the jury’s decision. The question of instructions to a jury for assessment of damages is, if I read Twitter aright, the central issue appealed to the Supreme Court of Canada.

The Court’s refusal to hear the case comes at a time when the Court takes fewer cases, but hears more cases en banc — as a full panel of nine judges. In 2019, for example, the Court heard 69 appeals and decided 72 cases. 8 cases per judge. The Federal Court of Appeal decided 1130 appeals in 2019. 66 cases per judge. British Columbia’s Court of Appeal decided 767 appeals; about 33 cases per judge. The Supreme Court’s statistics pale in comparison, yet it has the prerogative to hear cases in smaller panels, which allows the Court to hear more cases.

This note takes issue with the Court’s refusal to hear more cases. I take a historical approach by examining the case of Sutton’s Hospital, which was heard by the English Exchequer Chamber. The case gives us a beautiful note on which to consider the Supreme Court’s function in Canada. I will discuss this quote in relation to the historical underpinnings of Canadian courts of appeal. These considerations suggest that the Court misapprehends its role: the Court can focus on allowing its judges to decide cases in small panels while reserving the full bench for the most difficult cases.

The Exchequer Chamber is the centre of my argument; its bears some description.

Exchequer Chamber was a conference of judges assembled to decide a tough question with a single voice. Exchequer Chamber was abolished under the Judicature Act, 1873. By 1873, the Court served as an appellate jurisdiction alongside the House of Lords and Judicial Committee of the Privy Council. The Chamber’s functions were assigned to the English Court of Appeal, which already gives you a sense of its import at English Law. The Chamber’s history begins when common law, equity, or revenue judges in Westminster’s superior courts began referring cases to the common law judges, the Chancellor’s court, and the barons of the Exchequer Court. All of England’s superior court judges came together in a single sitting to hear hard cases. The Crown could also refer cases to Exchequer Chamber.

Sutton’s Hospital is a 1612 case reported by Sir Edward Coke. The case was in trespass, but its real object was to determine who was in rightful possession of a parcel of land bequeathed to charity by John Sutton. Coke heard the case in King’s Bench with a jury. The jury, however, could not decide the case because questions of law had gone unanswered. Coke removed the case to Exchequer Chamber, of which he was a part.

[For a hilarious account of the case, see the Wikipedia page, where the author has misapprehended which court finally decided the issue. When I figure out how to edit Wikipedia pages, I will deal with this problem.]

The stirring point in Coke’s report, for present purposes, is found in the final lines:

And all the Judges who argued in this case (except the two aforesaid) concluded against the plaintiff, and those two mutahl opinione assented also to the judgment; so that by the assent of all the said Judges nullo contradicente judgment was given against the plaintiff. And the Lord Ellesmere, Lord Chancellor of England, hearing all the arguments at the Bar and Bench agreed also in opinion with the Judges: and so this great work of charity has tasted of such charity which ought to be in Judges, which is declared in the statute of West. 1. cap. ult. Summa charitas est facere Justitiam omnibus personis omni tempore quando necesse fiterit.

(1612) 10 Co Rep 23a, pp. 33b-34a.

That Latin quote closing the judgment means ‘the greatest charity is doing justice for all people whenever necessary’. Its import cannot be understated in modern law. In feudal terms, courts are expressions of royal charity. The Exchequer Chamber was an enhanced example of this goodwill. Its judges assembled only for the most difficult and important cases, where precedents needed to be set with reference to all types of law (common law, equity, revenue, prerogative, and statute).

Canada never had an Exchequer Chamber. Pre-Confederation lawmen did, however, have the Chamber in mind when considering the creation of colonial courts of appeal. The charitable principle underpinning Exchequer Chamber (and all judicial opinions) thus had a path into Canadian law.

The Ontario Court of Appeal appears to have been created with the Exchequer Chamber in mind. A member of the Kingston Bar invoked the Chamber’s appellate function in an 1845 public letter:

we secure all the advantages of an indigenous Court of Appeal, by joining the two Common Law Courts and the one Equity Court together, under the name, if that is worth anything, of the Exchequer Chamber.

Early Canadiana Online, no. 52261

William Hume Blake, a successful lawyer and later a judge, similarly commented in a 1845 open letter to Robert Baldwin:

without impairing the efficiency of the common law jurisdiction, or rendering the primary judgments there justly liable to cavil; we should add to our Equity decrees all that additional weight, which they would receive in consequence of the judge presiding there (who might, perhaps, with propriety be termed the Chancellor) being assisted by two associates. While the assemblage of these several judges, in a court, to be termed the Court of Exchequer Chamber, would furnish us with an efficient appellate jurisdiction, with the Province, in which every question of difficulty might be submitted to the decision of six new judges.

Early Canadiana Online, no. 21983

A court of appeal for the Province of Canada was needed to consolidate judgments from various courts into a single legal system only properly considered on appeal, like cases in Exchequer Chamber.

A final commentator, Chief Justice William Johnstone Ritchie (later Chief Justice of Canada), commented on the failed establishment of our Supreme Court under John A. MacDonald’s first government:

No doubt in framing the appellate portion [of the proposed Bill], the Judicial Committee of the Privy Council and the Court of Exchequer Chamber were in the draughtman’s mind; and I also would adopt these two Courts as the basis.

Early Canadiana Online, no. 10760

Eminent Canadian lawyers and judges thus had the Exchequer Chamber in view during discussions about appellate jurisdiction. Their knowledge of Sutton’s Case, however, cannot be assumed.

We instead see the latin principle preserved by Edward Coke at play in these nineteenth-century legal comments. A Court of Appeal is less concerned with the facts. Its true purpose is ascertaining which laws to apply to facts determined elsewhere. In this way, the Crown’s justice is dispensed with reference to all law.

The Exchequer Court’s obvious appeal is that it encompasses the superior court jurisdictions of the realm. In so doing, the Crown’s eminent legal minds are brought to bear on a single issue. The chances of the legally correct result — whether that be in law, equity, revenue, prerogative, or statute — are increased. More minds diverted to a debate brings greater clarity, thus tending toward the greatest charity.

The tenor of the principle in Canada differs somewhat from the seventeenth-century English reality. If we cast far enough back into history, England was indeed a federation of principalities united under William the Conqueror. Its county system evolved into a more centralized government under the Crown’s courts.

Canada’s judicial system inherited the county model but was from the start conditioned by colonial realities. Counties mattered for local justice, but British North American colonies were dependent upon the London executive and its governors. No courts of appeal existed in the early days of British rule. These courts were instead considered in the lead-up to responsible government, when the colonies had grown in size and complexity.

Canada’s Supreme Court is a further example in this narrative. The Court sits over all colonies united under the federal Crown. Its early influence was questionable, but its authority now cannot be disputed. The law issued from each provincial and territorial court of appeal is subject to review.

The review jurisdiction is a necessary charity bestowed on each province by a federal Crown interested in a uniform judicial system. The nine judges created by the Supreme Court Act individually possess the powers of a superior court judge. Five judges together may decide appeals: the Court must only delegate five judges to any case. This legislative baseline is supplemented by the ability to draw ad hoc judges from the Federal Court of Appeal, the Federal Court, the Tax Court, or provincial superior courts. Parliament gives the Court all the tools it needs to hear more cases.

Parliament’s patent purpose in these tools is to allow the Court to hear all appeals where questions of law or justice need to be settled. (Remember the the Supreme Court is a court of law and equity.) The tools to dispense judicial charity exist.

For all this, however, the Court takes on fewer cases and sits more often as a panel of nine judges. The controversy here is that the Court does not behave charitably by concentrating its resources. Questions of law need not always have nine legal minds assigned to them. More discretion does greater justice because, as Lord Coke reiterates, the greatest charity is providing justice to all when it is necessary. The Supreme Court (and its Chief Justice, who assigns cases) must decide on each leave to appeal whether the case sets precedent that could benefit the Realm. The Court must also ask itself what curial interest exists for the parties.

These concerns are no doubt on judges’ minds, yet our apex tribunal hears very few cases per judge. The importance of charity must be emphasized by the profession and our judges if our judicial system is to remain connected to litigants’ curial interests.