Vol. 10 No. 10 (October 2000) p. 523-527.

BOUNDARIES OF JUDICIAL REVIEW: THE LAW OF JUSTICIABILITY IN CANADA by Lorne M. Sossin. Scarborough, Ontario: Carswell, 2000. 246 pp. Cloth $95.00. ISBN 0-459-23928-7.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University.

To extend Justice John Harlan's remark about standing, Is justiciability "a word game played by secret rules"? If so, will a close reading of the relevant case law reveal how this game is played? Access to the courts, the scope of judicial review, and relations between the courts and the elected branches of government are affected by justiciability doctrines largely constructed by the courts themselves. Attempts to understand the games courts may be playing have been persistent in the American legal community, and the resulting debates, especially with regard to standing, have been contentious and pervasive.

Conversations about justiciability in Canada have been muted and sporadic. This is surprising. Since the adoption of the Charter of Rights and Freedoms nearly two decades ago, public law issues now dominate Canada's Supreme Court docket. Because public law litigation often raises new justiciability questions, one would expect controversies over ripeness, mootness, or "political questions" - the basic elements of justiciability in Canada - would fill the pages of law reviews and be heard in the halls of law schools. Although it is incorrect to say no attention is paid to justiciability (constitutional law casebooks (e.g. Hogg 1997) and political science texts (e.g., Knopff and Morton 1992) offer commentary), the book under review nevertheless is the first sustained parsing of justiciability doctrines in Canada.

Lorne Sossin brings strong credentials to this topic. He clerked for the Supreme Court of Canada before joining a prestigious Bay Street law firm in Toronto. He currently has a joint appointment in York University's political science department and at Osgoode Hall Law School. With three hats to wear, Sossin could have put together an insider's story of how the Supreme Court employs its justiciability doctrines. (He wore this hat, though, a few years ago when he published an article about Supreme Court law clerks based partly on his own experiences (Sossin 1996)). He also might have prepared a political science account of how law and politics shape these rules. Instead, Sossin has written a legal assessment of the case law on justiciability. This choice has strengths and weaknesses, of course. Sossin's approach, which emphasizes doctrinal coherence and clarity albeit with calls for pragmatism in the application of the rules, perhaps necessarily fails to see the political in obfuscation and evasiveness or the tactical and strategic in inconsistency.

His book is a comprehensive reference work that most likely will attract the attention of practitioners and members of the legal academy. If combined with Crane and Brown's (2000) regularly up-dated

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practice book and Cromwell's (1988) helpful but now slightly long-in-the-tooth analysis of standing, the resulting trilogy offers novices and old-hands alike useful discussions of the procedural aspects of litigation in the Supreme Court of Canada. Sossin divides his book into six chapters; the four central chapters separately address the doctrines of ripeness (including hypothetical, speculative, contingent, academic, and abstract questions), mootness, political questions, and the procedural dimensions of justiciability.

It is fair to say, I believe, that Sossin's reading of the case law suggests that when Canada's Supreme Court charts the metes and bounds of justiciability, the resulting boundaries are fuzzy, tentative, and wavering. Even when the Court draws clear lines, it later ignores them. Sossin, early in his book, comments that the Court's views on justiciability have long been "unclear" and "confused" (p. 22) and that it applies whatever criteria it has developed "inconsistently and, at times, arbitrarily" (p. 25). In his concluding chapter, he laments the Court's "apparent indifference" to justiciability doctrines, an attitude that he feels erodes the integrity of the judicial process. He attributes this lackadaisicalness to a "prevailing sense" on the bench that justiciability is "merely procedural or technical in nature" (p. 231). Writing in the late eighties, Barry L. Strayer, a law professor and later a federal court judge, bluntly declared that in Canada, "We have never had a clear doctrine of justiciable and non-justiciable issues" (1988, 216).

Doctrinal murkiness persists and characterizes each element of justiciability; not surprisingly implementation remains erratic. Sossin describes the ripeness doctrine as little more than a "quilt of piecemeal and partial rules" (p. 92). Echoing the comments of other scholars he concludes that with regard to ripeness, "Whatever the rhetoric, when one looks at what Canadian courts actually do, one finds that issues unattached to actual live disputes are often decided, and that courts have defined their discretion in wide and flexible terms" (p. 28). Mootness, too, as a doctrine, "remains incomplete and inconsistently applied" (p. 94). In this instance, despite guidelines carefully set down in a leading case, the rules, Sossin feels, "serve most often as a cafeteria at which judges pick and choose the aspects which suit them without troubling with the rest" (p. 130). The process thus "appears to devolve into a subjective and potentially arbitrary 'smell test' by the judiciary regarding the importance of the issue at hand" (p. 125). Things do not get much better when Sossin turns to the Court's nascent political questions doctrine. The "vagueness of the tests which have been applied thus far. . . calls into question the value and viability of this doctrine in guiding judicial discretion in determinations of justiciability" (p. 199).

This doctrinal disarray disturbs Sossin. His solution is a "framework" to guide the judiciary toward a clearer set of doctrines (p. 228). His framework is contextual rather than narrowly doctrinal, he claims, because it includes concerns over the capacities and legitimacy of the judicial process, the separation of powers, and the nature of the disputes before the courts. These factors, he notes, are not objectively definable as they "invariably contain. . . normative preferences" (p. 2). With the hope of moving beyond "smell tests" of justiciability, he advances the following "flexible" framework:

"[F]irst, a court must determine whether it has the institutional capacity and legitimacy to adjudicate

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the issues and the dispute before it. This, in turn, requires a finding that the matter before the court would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties' positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute" (pp. 237-38).

Anxious to ward off doctrinal rigidity, Sossin stresses the importance of pragmatism and claims it need not be incoherent or unprincipled (pp. 230- 31). The path toward a principled pragmatism, he feels, is to pull justiciability out of its traditional home in Canadian common law and relocate it on constitutional grounds, especially those parts dealing with the separation or distribution of powers (p. 231).

This is quite a tall order for the Court. As Sossin notes in his book's first pages, "In attempting to define justiciability, Canadian courts have rarely expressed broader concerns for the nature of judicial review" (p. 3). Without further elaboration of the framework's key terms, one is hard put to know if it would be effective or not in constraining the Court's discretion. And surely the devil lurks in these definitions. Equally as important, Sossin does not discuss the circumstances under which the Supreme Court would fence in its powers of judicial review. The Court currently has the doctrinal largess to hear cases it feels are publicly important while declining others for prudential reasons or political convenience. In other words, why would the Supreme Court tie its hands in the absence of compelling reasons to do so? Finally, Sossin does not discuss the potential problems that constitutionalization of justiciability doctrines might create. A move in this direction would inevitably affect its relations with Parliament; perhaps in the same way that constitutionalization of standing doctrine by the U.S. Supreme Court has impinged on the authority of Congress (Gilles 2000).

If justiciability is a word game or more in Canada, Sossin's case- oriented approach fails to remove the shroud over its rules. Inconsistency may reflect more than just doctrinal shiftlessness. An American law professor recently despaired of the inability of doctrine to accurately predict judicial decisions dealing with standing. He confessed that the attitudinal model of judicial behavior in which access to the courts depended on the ideological agendas of the judges worked much better (Pierce 1999). The attitudinal model, of course, does not preclude inconsistent case development if voting majorities are unstable on a bench or across courts because justices hold heterogeneous views about the administrative, jurisprudential, and political aspects of justiciability (e.g., Rathjen and Spaeth 1979). Sossin's framework also has a static quality; the implicit assumption seems to be that once doctrinal clarity is achieved pragmatism will account for deviations from the criteria. On the one hand, this reliance on pragmatism begs the question of what prompts exceptions in the first place. And on the other hand it is not clear how it incorporates change in the doctrines.

Legal scholars have outlined the major stages in the story of the U.S. Supreme Court's self-conscious articulation of justiciability, particularly standing, a relatively new project started during the New Deal that the Court has accelerated over the past thirty years (e.g., Fletcher

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1988; Sunstein 1992). While the background to this project includes the growth of the administrative state and the emergence of third party litigants or "private attorneys general," the political goals and strategies of the justices like Brandeis (Purcell 2000) or Scalia (Nichol 1993) play pivotal roles at the major turning points in the doctrine's evolution. An interesting alternative perspective of this history, especially the reactions of the Burger and Rehnquist Courts to the liberalization of standing during the Warren era is Stearn's (1995, 1995b) approach using social choice theory. Stearns draws on the Condorcet paradox and path dependency to offer an interpretation of doctrinal evolution in the Burger and Rehnquist courts that reflects the ideological voting patterns of the Courts.

These comments, I fear, come perilously close to complaining that Sossin did not write the book I wanted him to write. His self-appointed task was to assemble the case law on Canadian justiciability and make as much sense of it as he could. He has ably accomplished the task he set for himself.

REFERENCES:

Crane, Brian A. and Henry S. Brown. 2000. SUPREME COURT OF CANADA PRACTICE. Scarborough, Ontario: Carswell.

Cromwell, Thomas A. 1986. LOCUS STANDI: A COMMENTARY ON THE LAW OF STANDING IN CANADA. Toronto: Carswell.

Fletcher, William A. 1988. "The Structure of Standing." YALE LAW JOURNAL 98: 221.

Gilles, Myriam E. 2000. "Representational Standing: U.S. ex rel. Stevens and the Future of Public Law Litigation." http://papers.ssrn.com/paper.taf?abstract_id241946

Hogg, Peter W. 1997. CONSTITUTIONAL LAW OF CANADA. Toronto: Carswell.

Knopff, Rainer and F.L. Morton. 1992. CHARTER POLITICS. Scarborough, Ontario: Nelson Canada.

Nichol, Gene R., Jr. 1993. "Justice Scalia, Standing, and Public Law Litigation." DUKE LAW JOURNAL 42: 1141.

Pierce, Richard J., Jr. 1999. "Is Standing Law or Politics?" NORTH CAROLINA LAW REVIEW 77: 1741.

Purcell, Edward A. 2000. BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH-CENTURY AMERICA. New Haven: Yale University Press

Rathjen, Gregory J. and Harold J. Spaeth. 1979. "Access to the Federal Courts: An Analysis of Burger Court Policy Making." AMERICAN JOURNAL OF POLITICAL SCIENCE 23: 360.

Sossin, Lorne M. 1996. "The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada." UNIVERSITY OF BRITISH COLUMBIA LAW REVIEW 30: 279.

Stearns, Maxwell L. 1995a. "Standing Back from the Forest: Justiciability and Social Choice." CALIFORNIA LAW REVIEW 83: 1309.

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Stearns, Maxwell L. 1995b. "Standing and Social Choice: Historical Evidence." UNIVERSITY OF PENNSYLVANIA LAW REVIEW 144: 309

Strayer, Barry L. 1988. THE CANADIAN CONSTITUTION AND THE COURTS. Toronto: Butterworths.

Sunstein, Cass R. 1992. "What's Standing After Lujan? Of Citizen Suits, 'Injuries,' and Article III" MICHIGAN LAW REVIEW 91: 163.