33 Judicial Review of Ministerial Advice to the Crown Mark D Walters* For Thomas Hobbes, nothing illustrated the The orthodox view is that the Crown or its “inconstant use of words” better than the confu- representative in Canada must exercise its legal sion between “Counsels and Commands,” for the powers only upon the advice of ministers who words “Doe this,” he said, “are the words not only are responsible to the elected members of Parlia- of him that Commandeth; but also of him that ment, and that this rule is one of constitutional giveth Counsell.”1 This confusion remains with convention, not law.4 Rules of constitutional con- us today. We still do not have a sound grasp of vention are, in the orthodox view, customary rules the distinctive place that counsel or advice plays of constitutional practice or morality enforced within our constitutional system. How is minis- politically, whereas rules of constitutional law terial advice to the sovereign concerning how a are true laws enforced by courts.5 Applying these power ought to be exercised different from the ideas, the government argued that Alani’s case exercise of the power itself? Does ministerial had to fail: the Prime Minister’s “advisory role” in advice exist within a domain of political action Senate appointments “exists only by virtue of the beyond the reach of law? These are persistent constitutional convention” and so it cannot be a questions in Canada. concern for judges.6 Prime ministerial advice to the Crown is, in other words, sealed off from law. Was this argument sound? Does constitutional Consider Aniz Alani’s challenge to the deci- convention allow executive power asserted in the sion made in 2014 by (then) Prime Minister form of advice or counsel to reign within a “legal Stephen Harper to stop filling Senate vacancies black hole”?7 Although the case was dismissed — or, to speak more accurately, the decision to for mootness, the substance of the arguments it refuse to advise the Governor General of Canada raised are worth considering. to fill Senate vacancies.2 The challenge survived several preliminary rounds before being dis- To answer the questions raised, we need a missed as moot (since the present Prime Min- more complete understanding of the legal sta- ister has begun to fill Senate vacancies).3 Alani tus of ministerial advice to the Crown. This is pressed on with his case and government lawyers not a topic that has attracted much attention continued to fight for good reason.3 The chal- in Canada. In our constitutional tradition, the lenge was about more than just Senate vacancies. most fundamental aspects of governance evolve It was really a case about executive power and the implicitly and questions about the legality of rule of law. The question that the case raised is political action are often left unaddressed — whether assertions of executive power by prime until, that is, someone in power begins to behave ministers (or other ministers) in the form of in a manner that cuts against the grain of settled advice or counsel to the Crown are shielded from constitutional assumptions. At these moments, judicial review because they occupy a world of there is an understandable desire to shine legal politics outside the bounds of law. light into areas of constitutional life that have Constitutional Forum constitutionnel 33 34 been obscured in darkness. The world of minis- advice to the Crown, I have any and all of these terial advice is one such area. However, the task possibilities in mind. of building a legal account of ministerial advice need not involve radical steps. On the contrary, it Third, it should be acknowledged that many is best if it proceeds in the ordinary common law Crown decisions involve politically sensitive way, one that looks back to the principles that matters that affect the public broadly. Questions have shaped the emergence of legality within will therefore arise as to who has standing to our system. In this essay, I will offer the outlines challenge these decisions in court.9 Questions of such an account. I will suggest that the gov- will also arise, especially in relation to decisions ernment’s position in the Alani case was based of so-called “high policy” made pursuant to the upon a non sequitur. It is true that in relation to royal prerogative, about whether the matter is many of its powers the Crown follows ministerial even justiciable.10 For the purposes of this essay, advice by virtue of extra-legal convention. How- I will bracket these questions and leave them ever, it does not follow from this proposition that to the side. My concern is not with the judicial ministerial advice has no legal foundation or is review of Crown decisions as such, but with left wholly undisciplined by law. judicial review of the ministerial advice govern- ing how those decisions are made. I want to chal- Before explaining this argument, a few pre- lenge the notion that ministerial advice is a mat- liminary comments are necessary. First, in devel- ter of convention only and is unreviewable by oping a legal theory of ministerial advice to the judges for that reason. But I concede that even if Crown in this essay, I will focus on the federal I am right and this notion is rejected, rules about sphere and I will take “Crown” loosely to mean standing and justiciability may still block the the Queen or the Governor General when exer- judicial review of at least some kinds of ministe- cising legal powers pursuant to either the royal rial advice, for the same reasons that these rules prerogative or a specific written provision of the may limit the ability to challenge certain kinds of Constitution of Canada. Crown decision. Second, I will argue that there are circum- Finally, it is important to distinguish between stances in which the legality of ministerial decisions made by the Governor General based advice to the Crown to make a decision may, on ministerial advice and decisions of the Gov- independently of the resulting decision itself, ernor in Council. Where the Governor General be open to judicial scrutiny. Of course, if the is given power by the Constitution Act, 1867, it goal is to challenge the legality of a Crown deci- is usually a power conferred upon the “Gover- sion, it will usually be necessary to seek judicial nor General” alone. However, in a few instances review of that decision rather than the advice power is conferred upon the “Governor Gen- that produced it.8 Still, the conduct of minis- eral in Council,” in which case the power must ters as advisors may become legally relevant in be exercised by the Governor General “acting by a number of situations. For example, the legality and with the Advice of the Queen’s Privy Coun- of the decision may hinge upon the legality of cil for Canada” (s. 13). This is true also where the advice that produced it; or, the problem may an ordinary statute confers a power upon the be (as in the case of Alani) a minister’s refusal “Governor in Council.”11 The Privy Council for to give advice so that there is no Crown deci- Canada is established by section 11 of the Con- sion to attack; or, finally, there may be situations stitution Act, 1867 and consists of all present and in which no point would be served by having former ministers of the Crown as well as a vari- a particular Crown decision quashed on judi- ety of other members. Although it is only by vir- cial review and yet there are legitimate reasons tue of convention that the legal powers conferred to seek a judicial declaration to the effect that upon the “Governor in Council” are exercised the minister who advised the Crown to make by the Governor and present cabinet ministers, the decision was wrong in law to have done so. it is by virtue of law that these ministers, sitting In discussing the judicial review of ministerial as a committee of the Privy Council, participate 34 Special Issue: Volume 25, Number 3, 2016 35 with the Governor to make the decision. In these One way to address this worrisome conclu- circumstances, ministers are not merely advising sion is to question the assumption that constitu- the Governor as to what he or she should decide; tional conventions are never justiciable. Perhaps they are, as a matter of law, joining with the Gov- the time has come to contemplate the possibil- ernor to make the decision.12 So, the judicial ity of at least declaratory judicial relief when review of decisions made pursuant to a consti- ministerial advice flouts established conven- tutional or statutory delegation of authority to tional rules. In this way, the veil of law would be the “Governor in Council” falls outside the scope pierced to reveal where real power lies. However, of this essay. The focus of my inquiry is advice there is another response that may at first appear by ministers who do not have the legal power to counterintuitive. This second approach accepts make a decision (or to participate in the making the orthodox line drawn between law and con- of a decision) given to the person who does have vention, but insists that if the minister is to rely the legal power to make the decision. upon strict law and say that his or her involve- ment in the impugned decision was purely a matter of non-binding advice, then it becomes Command versus counsel appropriate for the courts to apply the law regarding ministerial advice strictly as well.