Vavilov's Rule of Law: A Diceyan Model and Its Implications

In Vavilov, the Supreme Court tried to do the impossible: square the circle of the law of judicial review in Canada. Whether the Court succeeded is a matter of debate. But in attempting to square this circle, the Court set out some important changes to the law of judicial review in Canada. One of these important developments concerned the Court’s definition of the Rule of Law. For the Court, while a presumption of reasonableness review will usually apply to decisions of administrative actors, sometimes the Rule of Law will rebut this presumption, inviting a correctness standard. The application of the correctness standard in such circumstances “respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary.” In this short paper, I assess the Court’s comments on the Rule of Law. Specifically, I argue that the Court employs the Rule of Law in two different senses. First, explicitly, the Court adopts the Rule of Law as a basis for selecting the standard of review of correctness in some situations. It does so by reasoning that the courts must have the final word on these questions. Secondly, the Court also implicitly employs an aspect of the Rule of Law when it conducts reasonableness review: by focusing on the statute as the “most salient” aspect of review, it enforces Parliament’s law against the administrative decision-maker. Both senses of the Rule of Law are reminiscent, in at least some respects, of the work of eminent constitutional scholar A.V. Dicey. However, these conceptions of the Rule of Law do not come at zero cost; there are distinct questions that, as a doctrinal matter, attend these conceptions of the Rule of Law. The paper proceeds in two parts. In Part I, I set out the two senses in which Vavilov used the Rule of Law. I compare these senses to the way in which A.V. Dicey used the term “Rule of Law.” Then, in Part II, I outline the four implications for this understanding of the Rule of Law: (1) privative clauses (2) the status of Dore v Barreau du Quebec (3) the relationship between the Rule of Law and parliamentary sovereignty; particularly the extent to which the Rule of Law can override parliamentary enactment; and finally (4) how the Rule of Law relates to reasonableness review and jurisdiction.

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