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The Rise of Facts in Public Law II: Factual Assessments in Judicial Review of Administrative Action

In a draft book chapter I am working on with co-author Kseniya Kudischeva, we discuss the increased importance of factual assessments in public law. Here is the second of four substantive parts.

PHOTO: University of Ottawa
In federal systems, factual assessments can never be entirely off limits in judicial review of legislation. Where the powers of legislative bodies in different levels of government are limited to particular fields, a factual assessment will often be necessary to ensure that the level of government has remained in one of its fields. As has been observed on the High Court of Australia, “it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation”.[1]

A straightforward example is provided by the decision of the Supreme Court of Canada about the validity of emergency legislation to combat the inflation crisis of the 1970s: extensive evidence was filed to demonstrate (or, from the opponents’ perspective, undermine) the factual predicates for federal legislation under Parliament’s authority to legislate on matters of national emergency.[2]

There, as in Canadian federalism generally, the effects of a law are relevant to determining its constitutionality, which permits the courts to make factual assessments.[3] This type of factual assessment, however, does not typically present great conceptual or practical difficulties. Much as reference to government policy papers and Hansard has become commonplace in discerning the meaning of statutory provisions, the availability of background material about the passage of legislation and its intended and actual effects can assist judges in determining whether a given law falls within one of the law-maker’s constitutionally accorded fields of responsibility. The judge does not have to evaluate the law-maker’s factual assessment of the situation, testing it for rationality, reasonableness or proportionality but at most only to determine whether the factual assessment was accurate. Put another way, federalism questions are black and white, in the sense that a particular matter either will, or will not be, within the constitutional competence of a given level of government, and factual material is helpful in resolving these binary questions.

Judicial review of legislation for compliance with fundamental rights raises very different issues, at least as this practice has developed in common-law jurisdictions. The proportionality test typically used to determine whether a legislative provision interferes unduly with a protected right requires a court to ask about importance, rationality, necessity and fair balance: (1) whether the legislature pursued an important objective; (2) whether there is a rational connection between the means chosen by the legislation and the achievement of the objective; (3) whether the means chosen were necessary to achieve the objective; and (4) whether the detrimental effects on individual interests caused by the means used outweighed the public interest in achieving the objective.

I acknowledge that it is “hazardous to talk of proportionality analysis simpliciter, rather than the commitments of particular proportionality theorists, or the doctrines and practices of particular courts”.[4] Nonetheless, it is tolerably clear that the factual assessments required by the various prongs of the proportionality test – especially prongs (3) and (4) – are not comparable to the factual assessments required in federalism cases. The questions are not binary, or black and white, but invariably involve complex value judgements about “importance”, “rationality”, “necessity” and “balance”. They are by definition evaluative. Consider the following passage from the work of Professor David Beatty, the leading exponent of the view that judicial review of legislation for proportionality is an exercise in technical reasoning rather than moral reasoning:

Turning conflicts about people’s most important interests and ideas into matters of fact, rather than matters of interpretation or matters of moral principle, allows the judiciary to supervise a discourse in which each person’s perception of a state’s course of action is valued equally and for which there is a correct resolution that can be verified empirically.[5]


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