The Administrative State: Theory or Pragmatism?

Author(s): David J. Mullan

Source: The University of Toronto Law Journal, Vol. 40, No. 3, Special Issue on Administrative
Law (Summer, 1990), pp. 362-368
Published by: University of Toronto Press
Stable URL: http://www.jstor.org/stable/825813
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David J. Mullan* THE ADMINISTRATIVE
STATE: THEORY OR
PRAGMATISM?

I am not a politicalscientist;therefore,myambitionto respond to Alan

Cairns's paper at leastin parton itsown termsmaybe tocourtthedisaster
of 'trespassing'thathe correctlywarns us against in his introduction.
The Law ReformCommissionof Canada has perceived the absence of
a satisfactorytheory of the state and its role in this country.' This
concern was apparent in the directionthattheco-ordinatorstriedto give
to the legal research effortsof the Macdonald Commission.2 There are
referencesin Cairns's paper to the continued lack of such a theoryin
Canada, and thisdespite the factthatwe havejust gone through(indeed,
are stillgoingthrough)one ofthegreatestperiodsofconstitutionalreform
in our history.
As an academic lawyerbroughtup in thecommon law tradition,I must
say that I have been far less troubled by the lack of a fullydeveloped or
mature theoryof state than have my civilian counterpartsor political
scientists generally. The incremental, often untidy, but frequently
pragmaticevolutionof common law doctrine(even in the constitutional
law arena) has clearlyhad itsimpacton mythinking.As a result,itis with
some reticencethatI venturea fewremarksabout theoriesof statehood.
I will begin with Cairns's telling statement:'However much the line
betweenstateand marketshiftsto the advantage of the latter,the market
willnothave the sanctityor sense of natural givenness thatitpossessed
fora briefperiod in westernhistory... The Canadian statewill not lack
tasksto occupy itself.Retreat,withdrawal,and privatizationwilloperate
at the margin.'
There are two aspects to these assertionsthat I would like to discuss.
First,frommyperspective,Cairns is correctwhen he 'marginalizes' the
*
Facultyof Law, Queen's University
1 See, for example, the introductionand chapter 1 of The Legal Statusof the Federal
AdministrationWorking Paper 40 (Ottawa: Law Reform Commission of Canada 1985)
and chapters 1 and 2 ofJohn Frecker,PatrickRobardet,John Clifford,Daniel Mockle,
and Kernaghan Webb Towardsa ModernFederalAdministrative Law (Ottawa: Law Reform
Commission of Canada 1987).
2 The researchersparticipatingin the Law, Society,and the Economy sectionof the Law
and ConstitutionalIssues Research Projectwere given an extensivereading liston the
theoryof the state and urged to use this as a basis for theirindividual projects. This
is also reflected in volume 46 of the Law Reform Commission's collected research
studies: Ivan Bernier and Andree Lajoie Law, Society,and the Economy(Toronto:
Universityof Toronto Press 1985).
(1990), 40 UNIVERSITY OF TORONTOLAWJOURNAL 362

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 THE NATURE OF THE ADMINISTRATIVE STATE 363

current mood - indeed, the fetish- of many in favour of freeing the

economy,deregulation,and privatization.The overallimpactofthistrend
on the role of the statewillin futureyears probablybe seen as trivialand
the whole thrustof the exercise as perhaps misguided. Moreover, as
various proposals in the name of these objectives are put into practice
(privatizationof Crown corporations),the state occupies more of other
fields (human rightsprotection),retreatsfromannounced objectivesin
stillothers(simplificationof the tax system,reformof the welfarestate),
realizesthepotentialfordisasterin some formsof governmentwithdrawal
(the United States'experience withthecompromiseof passenger safetyin
airline deregulation), and is broughtface to face withthe intoleranceof
the Canadian public of many of the consequences of even the existing
limitedfreemarketeconomy(bank,trustcompany,and brokeragehouse
failures).This recentexperience suggeststhatanytheoreticalconstructof
the Canadian statewilldiffersignificantly fromwhathas alwaysbeen and
now particularlyseems tocharacterizepublicand politicaldiscourseabout
therespectiverolesofstateand privateenterprisein thenation'seconomy
and ethos. Realitydiverges greatlyfromthe assumptions (perhaps the
pretence) of the debate, even though the rhetorichas an impact on both
national and international'confidence' in the Canadian economy.
Less triteand of farmore significance,however,is the lesson that,ifwe
are to develop a satisfactorytheoryof the Canadian stateor if we are to
engage in a forward-lookingreformof administrativelaw, our frameof
referencecannot be restrictedor influencedunduly bysuch currentbut
probablymarginaland almostcertainlyfleetingtrends.In thisrespect,one
of the meritsof Cairns's paper is his recognitionof this lesson and his
attemptto focus on issues that he sees as being of more transcendent
importance to Canadian society: the impact of the Charter and its
accompanyingcreationof rights,and the problemsof race and ethnicity.
These he links togetherin his concluding statement:'One of the most
demanding tasks confrontingthe state in coming decades will be the
managementof an ethnicallyand raciallyplural societyin the contextof
a numericaldecline in the population of Britishand Frenchdescent and
of a citizenrydigestingits new Charter-derivedstatus as possessors of
enforceable rights.'
That these are demanding tasksis beyond controversy,though,froma
legal perspective,I willhave somethingto sayabout therole oftheCharter
in all of this. Also, these issues are not marginal in the way that
privatization,deregulation,and a freereconomyprobablyare. None the
less, theydo reflecta narrownessand contemporanietyof concern that
ultimatelymakes the development of a theoryof stateand the reformof
the administrativestate problematicin the extreme. Any coherent and
useful theorymustpay attentionto some of the crisesof the recentpast,

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364 UNIVERSITY OF TORONTO LAW JOURNAL

whichare likelyto replicatethemselvesin the yearsahead and whichwill

again pose difficultproblems forthe ship of state.
In particular,I am amazed by the extentto which we have dismissed
fromour collectiveconsciousness the threatsto our quality of life that
seemed so real and so urgentduring the oil crisisof the mid-197os. More
generally,of course,whatis invoked here is the state'slegitimateconcern
withthe problemsof non-renewableand diminishingnatural resources.
Double-digitinflation,therealityofwhichpromptedemergencylegislative
responses at both the federal and provinciallevels a fewshortyearsago,
is probablycyclicalalso. Indeed, ifsome economistsare tobe believed,the
possibilityof another round of such economic turmoilis a veryreal one.
Surelytheoriesof statehood should be concerned withthe management
of and state role in response to such phenomena. We presumablyhave
some interestas a state in at least debating the extent to which our
expectationsare thatgovernmentswill anticipateor be proactiverather
than simplyreactivein these areas.
Perhaps even more obviously,the same is also trueof some of the new
and emerging incidents of life in late twentieth-century Canada. For
example, it is clear that national and internationalconcerns with the
environmentare coming more and more to dominate the politicaland
moral agenda. We mustthinkveryseriouslyabout the massive staterole
thatthe maintenanceof the planet is likelyto require and, in termsof this
conference,about imaginativeand innovativeregulatorystructuresfor
acting effectivelyin Canada's interest.3 Indeed, the problems of the
environment,transcending national boundaries as they do, may well
eventuallydemand a completereappraisal of the place of nation-statesin
global politics,somethingthateven issues of war and genocide have not
previouslyforcedus to consider seriously.
Anotheraspect of Canadian lifeand politicaland social ethicsthatwill
almost inevitablycome under close scrutinyand mayeventuallychange
fundamentallyis thatof labour or work,if not as a right(since we have
never acknowledged that),4then at least as a positivegood and a strong

3 The Law Reform Commission of Canada's Protectionof Life Project has, of course,
been veryattuned to these considerations.See, forexample, PollutionControlin Canada:
TheRegulatory Approachinthe g98os(Ottawa:Law ReformCommissionof Canada 1988).
4 On an extended reading, section7 of the Charter'spromiseof 'rightto life,libertyand
security of the person' might, I suppose, be interpreted as involving a right to
employment. However, I suspect we are a good way from that interpretation,
notwithstandingthe BritishColumbia Court of Appeal's recent ruling that 'freedom'
includes the rightto practiseone's profession: Wilsonv. Medical ServicesCommission
of
BritishColumbia(1988) 34 Admin. LR 235. Compare International Covenanton Economic,
Social and CulturalRightswhich in article 6(1) provides for a rightto work. Canada is
a partyto the covenant,whichhas been in forcehere since 19 August 1976. However,
the covenantis not immediatelybindingor creativeof litigablerights,but rather
obliges

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 THE NATURE OF THE ADMINISTRATIVE STATE 365

claim with its currentlyperceived antithesisalmost indisputablybeing

laziness and slothand, forthoseout ofwork,a lackof place or statusin the
community.Cairns's paper does not ignore these concerns. Indeed, his
discussionofunemploymentinsurance,theNewfoundlandeconomy,and
work-sharingis prescient.However, I do question theemphasis or lackof
prominencehe givesto these matters.While our concernswithrace and
ethnicitywill inevitablybring us face to face with some of the first
manifestationsof theseproblemsand compel forwardthinkingabout the
place ofworkas an incidenceofcitizenshipor residenceand as an essential
concept in theaffairsof state,I suggestthatitwould be mostunfortunate
if we were forced to deal withthese issues under conditions of almost
certaincrisis.Rather,we could profitfroman immediateconsiderationof
the phenomenon of a developed state wherein employment in its
conventionalsense has ceased to exist fora majorityof its population. I
suggest that we could begin to grasp some of the parameters of the
problembyreferencenot simplyto the impactof such a developmenton
minoritiesand theirculturesbutalso in thelightof suchdiversephenome-
na as the enormous transferto or growthof employmentin the informa-
tion and hospitalitysectors.
My finalreferencepointis to thefreetrade agreementand theimplica-
tionsthatagreementwillhave forany theoryof the Canadian state.The
agreementalso raisesimportantconsiderationswithrespectto regulatory
structures and enforcement. Inevitably, the agreement will have a
liberatingeffecton sectorsor aspects of the market.Nevertheless,in our
formof state,this will be offsetat least partiallyby the growthof new
regulatorystructures,albeit forthe most part of a controland policing
ratherthan a permission-granting variety.
If the Law ReformCommissionis disposed to play a grand ratherthan
an incrementalrole in thereformof theadministrativestate,and ifitis of
a mindto performthistaskagainstthebackgroundofa developed theory
of the Canadian state,I hope thatit willdo so witha broad visionof the
futureof Canada; in so faras possible,itshould attempttobe comprehen-
sivein itsidentificationand evaluationoftheforcesat workin theshaping
of our polity.
I was greatlytakenbyCairns'sdiscussionofthe'politicalpurposes' ofthe
Charter,and in particularbyhis sense of theCharteras a nation-building
instrument.At one level, I read thisas an argumentthatthe Charter is
federalin itsorientation,favouringthe nation at the expense of itsother
componentpoliticalparts,theprovincesand territories, notto mentionthe
municipalities.To thatI assent. Cairns also sees the Charter as a nation-

partiesto work 'witha view to achieving progressivelythe fullrealizationof the rights'

it contains (article2(1)).

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366 UNIVERSITY OF TORONTO LAW JOURNAL

builder in at least one other sense: the Charter is a source of a stronger

versionofcitizenship.By conferringexplicitrightson individuals,itgives
them a greater sense - indeed, a reality- of belonging to a nation.
However, and this I think is important,the claim is made not at the
expense of or in contrastto the position of communitiesand groups.
Cairns speaks to the Charter'srathersubtlerole as both a reinforcerand
a builder of citizenship,and as a source of claims for communitiesand
groups-in particular,those groups whichforvarious purposes are from
timetotimeclassed as minoritiesand treatedunequally. In a sense,though
notnecessarilyin a pejorativeor criticalone, thestatethroughtheCharter
has implicateda multitudeof groups withinitby conceding recognition
and acceptingvarious strongclaimson the partof those groups. This is a
powerfulidea rooted in a realitywhichmakes itan importantcomponent
in any post-Chartertheoryof Canadian statehood.
I suggest too that an analysis of the Charter from a legally oriented
perspectivecan lead to thesame conclusion.One ofthedisturbingaspects
of the Charter in the firstperiod of its exposure to the thinkingof
practisinglawyersand thejudiciarywas theextenttowhichitsapplication
was principallyin the arena of criminaland regulatorylaw; the phrase
'life,libertyand the securityof the person' was invoked on a number of
occasions where the ultimate result was a manifestationof the worse
excesses of traditionalliberalthinkingand a vindicationof theindividual
rightsof thecriminalas opposed to the responsibilitiesof citizenshipand
theinterestsofeffectivecriminalenforcement.5Even more perniciously,
theaccumulatedexperienceoftherequirementsforeffectiveenforcement
of legislativepolicies in the regulatoryarena was threatenedseriouslyby
theCharter-basedattackson absolute and strictliabilityoffences6and the
challengesto stateinvestigatory activities,withtheaccompanyingrightsof
thestateto demand theproductionof documents,conductexaminations,
and engage in search and seizure.7 At the same time,the alwaysfragile,
collectivelybased conductof labour relationsin Canada became subjectto

5 In my view, the use of the Charter in relation to breathalyserand other impaired-

driving offencesis one of the best examples of this. See, for example, R. v. Racette
(1988) 48 DLR(4th) 412 (Sask. CA).
6 See, for example, the blow dealt to absolute liabilityoffences by Referencere Section
94(2) oftheBC MotorVehicleAct[ 1985] 2 SCR486.
7 The various aspects of these attacks are well described in Neil Finkelstein'Constitu-
tional Rightsand InvestigativePowers' in Neil Finkelsteinand Brian MacLeod Rogers
(eds) RecentDevelopmentsin AdministrativeLaw (Toronto: Carswell 1987) 127 and Brian
MacLeod Rogers 'Charter Limits on AdministrativeInvestigative Powers' paper
presented to the Law Societyof Upper Canada Departmentof Education Conference,
Toronto 28 November 1988.

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 THE NATURE OF THE ADMINISTRATIVE STATE 367

challenge on the basis of newly enshrined 'liberties and freedoms.'8

While I acknowledgethatnotall oftheextremesof'right-wingliberalism'
implicitin thisover-simplifiedcharacterizationof the early days of the
Charterhave come to fruition,therewere and are sufficientindicatorsto
cause concern about the unduly individualized basis of litigated Charter
rights.
Nevertheless,there are signs thatjudicial emphasis in regard to the
Charteris changing,particularlyas section15,theequalityprovision,has
achieved prominence.Moreover,I venturetosaythat'equality'cases have
moreto do withcollectivethanindividualclaims.One reason forthisis the
resultofthedynamicsofanylitigationin Canada, and ofCharterlitigation
in particular.The cost of a proceeding in a provincialhigh courtor the
Federal Courtis prohibitiveformostindividuals.Add tothatthecostsand
complexities of Charter litigationin general and of equality cases in
particular,and the fieldis closed to virtuallyall but group or sponsored
proceedingsin whichthepurpose ofthelitigationis theassertionof group
or communityratherthan uniquely or situationallyindividual claims.9
This tendency also manifestsitselfmore and more in Human Rights
Commission inquiries.'x The ombudsman is one of the few remaining
effectiveresourcesfortrulyindividualizedcomplaintsabout statewrongs.
(I am not sure thatthisis a bad thing.)
The impetusfortheuse oftheCharteras a vehicleforthevindicationof
group rights has been added to by the Supreme Court of Canada's
significantexpansion of the law relating to standing." Finally, and
perhaps of mostsignificanceultimately,thereis thebeginningof a sense
that 'equality' as provided for in section 15 representsto government,
administrativetribunals,and courts a concept of 'identity'rather than
equality in itsclassic sense - the rightof groups and communitiesto an
effectivepresence in the state." If thisis true,thereis some chance that

8 See, forexample, Re Lavigneand OntarioPublicServiceEmployees'Unionet al. (1986) 29

DLR(4th) 321 (Ont. HC), rev'd (1989) 56 DLR(4th) 475 (Ont. CA),now on appeal to the
Supreme Court of Canada; the case raised the issue of a union's use of funds
generated by compulsorydues.
9 The best example is probably afforded by the case and litigationstrategyof the
Women's Legal Education and Action Fund (LEAF).
10o See, forexample, '1io womenjoin in filingdiscriminationcomplaint.York University
called biased in naming law dean' (1987) 3(10) CanadianHumanRightsAdvocate5.
11 Finlayv. Canada (MinisterofFinance) [ 1986] 2 SCR607
12 This is underlined by the concept of 'equality' developed subsequentlybythe Supreme
Court of Canada in Andrewsv. Law SocietyofBritishColumbia[1989] 1 SCR 143. See, in
particular, the followingstatementby Wilson j (at 152-3): 'I believe also that it is
importantto note thatthe range of discreteand insularminoritieshas changed and will
continueto change withchangingpoliticaland social circumstances.For example, Stone
j, writingin 1934, was concerned with religious, national and racial minorities.In
enumeratingthe specificgrounds in s. 15, the framersof the Charterembraced these

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368 UNIVERSITY OF TORONTO LAW JOURNAL

therewillbe a significantmeasure of congruence between the way legal

branches of governmentdepartments,tribunalsand agencies, and the
courtssee as theirprimaryrole in Charter promotionand litigationand
whatCairns has described as 'one of the mostdemanding tasksconfront-
ing the state in the coming decades' - managing a nation of various
communitieswithinthe context of the enhanced commitmentto both
nationhood and citizenshippromised bythe Charteras a politicalas well
as a legal document.

concerns in 1982 but also addressed themselvesto the difficultiesexperienced by the

disadvantaged on the grounds of ethnic origin, colour, sex, age and physical and
mental disability.It can be anticipated that the discrete and insular minoritiesof
tomorrowwill include groups not recognized as such today. It is consistentwith the
constitutionalstatus of s. 15 that it be interpretedwith sufficientflexibilityto ensure
the "unremittingprotection"of equality rightsin the years to come.'

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