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Alice Woolley* LEGITIMATING PUBLIC POLICYt
This article critiques the failure to adopt and enforce proceduralnorms in Canadian
public policy making and suggests that the failure of legislatures and courts to require
appropriateprocedureprior to the elaboration and implementation of regulatory policy
undermines the democratic and substantive legitimacy of that policy. It supports this
position through analysis of current approachesto policy making in Canada and the
United States, through application of theories of deliberative democracy to policy
making and, ultimately, through consideration of what appropriateproceduresfor
policy making should look like.
Key words: deliberation/policy/procedure/administrative law/judicial review
I Introduction
State action affecting the lives of individuals can arise without the benefit
of either legislative or judicial process. Through the design and appli-
cation of ministerial and administrative policy, the state makes decisions
that significantly affect the interests, concerns, and rights of its citizens.
It is through policy, for example, that Canadian administrators determine
the conduct of immigration matters and refugee claims, the strategy for
implementing national security programs, and much of the direction
and substance of economic programs such as electricity deregulation
and environmental protection.' These decisions are generally made
pursuant to legislation; however, they involve more than the implemen-
tation of legislative direction. Instead they can, and often do, involve
substantial consideration, evaluation, and weighing of the interests of
the citizenry. Administrative and ministerial policy making is not simply
* Faculty of Law, University of Calgary.

t I would like to thank Richard Panton, Robert Froelich, and Mike Bolitho for their
invaluable research assistance; the students and faculty of the University of Michigan
governance seminar and participants in the Institute for Sustainable Energy,
Environment and Economy (ISEEE) Futures Conference for their insightful
comments and criticisms; and the University of Calgary and ISEEE for providing
financial assistance. Any remaining errors are, of course, the sole responsibility of
the author.
I For discussion of the nature of policy making in Canada see Part II infra and France
Houle & Lorne Sossin, 'Tribunals, Fairness and Guidelines' in Laverne A..Jacobs &
Anne L. Mactavish., eds., Dialogue Between Courts and Tribunals - Essays in
Administrative Law and Justice (2001-2006) (Montreal: Les Editions Th~mis,
forthcoming 2008) [Houle & Sossin, 'Tribunals']; Robert Macaulay & James
Sprague, Practice and Procedure before Administrative Tribunals, vol. 1 (Toronto: Carswell,
1988) at c. 6 [Macaulay & Sprague, Practice and Procedure].
(2008), 58 UN[VERSIY OF TOROT'O LAWJOURNAL DOI: 10.3138/utlj.58.2.153

154 UNIVERSITY OF TORONTO LAW JOURNAL
'normatively neutral, technically competent implementation of statutes

'2
within the framework of normatively unambiguous responsibilities.
This article does not suggest that the exercise of state power through min-
isterial or administrative policy making is eo ipso legally or politically proble-
matic. Indeed, the exercise of such power in the modern administrative
state is fundamental to ensuring that the broad goals identified in legislation
and adjudicated in individual cases can be translated into, or applied
through, coherent and sensible public policy.3 Rather, my concern here is
with the failure of the Canadian parliamentary and judicial systems to
respond appropriately to the significance of executive policy making by
ensuring that policy making follows from appropriate public process.
Unless administrative or ministerial policy takes the form of a federal
regulation, there is no general legislative requirement that policy
decisions follow from any form of procedure. 4 Further, Canadian admin-
istrative law jurisprudence has distinguished between quasi-judicial
decisions, which will be reviewed by the courts to ensure procedural
fairness, and decisions of ministerial policy, which will not:
A purely ministerial decision, on broad grounds of public policy, will typically
afford the individual no procedural protection, and any attack upon such a
decision will have to be founded upon abuse of discretion. Similarly, public
bodies exercising legislative functions may not be amenable to judicial
supervision.'
While this statement may originate in reasonable judicial deference to
ministerial decision making, its result, along with the legislative failure
to subject policy making below the level of regulations to procedural
rigour, is to permit governments to make substantive decisions affecting
the interests, concerns, and rights of citizens without adequate process.
2 Jfirgen Habermas, Between Facts and Norms: Contributionsto a Discourse Theory of Law and
Democrac, trans. William Rehg (Cambridge, MA: MIT Press, 1996) at 440 [Habermas,
Facts and Norms]. It is questionable, of course, whether administrative decision
making has ever been normatively neutral, although it certainly used to be less
extensive.
3 For a general consideration of the legitimacy of public policy making by administrative
agencies see Kenneth E Warren, Administrative Law in the Political System, 4th ed.
(Boulder, CO: Westview Press, 2004) [Warren, Administrative Law], Houle & Sossin,
'Tribunals,' supra note 1, and Macaulay & Sprague, Practice and Procedure,supra note 1.
4 See Part II.C infra.
5 Martineau v. Matsqui Disciplinary Board, [1980] 1 S.C.R. 602 at 628. Genevieve Cartier
describes the court's attitude as a 'persistent refusal on the part of the courts to
impose procedural obligations on administrative decision-makers exercising powers
of a "legislative nature" absent statutory indication to that effect.' Genevieve Cartier,
'Procedural Fairness in Legislative Functions: The End of Judicial Abstinence' (2003)
53 U.TL.J. 217 at 218 [Cartier, 'Procedural Fairness']. Cartier argues that the
reasoning behind this 'persistent refusal' is fundamentally flawed.
LEGITIMATING PUBLIC POLICY 155
Using theories of deliberative democracy, this article argues that the

failure of legislators and the courts to ensure that ministerial and
administrative policy making follows from appropriate process renders the
legitimacy of the resulting policies questionable, as well as making these
policies less likely to be factually and normatively sound. Many administrative
agencies and government ministries currently follow procedures when
designing policy;6 however, the sufficiency of these procedures is at best
difficult to determine and at worst doubtful. In any event, reliance on the
goodwill and good faith of individual decision makers to establish the
process of policy making is insufficient to ensure that the resulting policies
are both democratically legitimate and well informed. Public policy
making should, and should be required to, follow from an appropriate
process that ensures its legitimacy and soundness.
Part ii below discusses the substance and process of policy making in
Canada. Part iii provides an overview of theories of deliberative
democracy and ajustification for their application to this problem. Part ivindi-
cates how, based on the application of deliberative democracy, the process of
policy making in Canada can and should be reformed. Part v concludes.
II Policy and procedure in Canada
A INTRODUCTION
This section first identifies the two different types of policy making in
Canada - formal rules or regulations and informal guidelines, policies,
or directives - and the relative significance of each. It then considers
the processes underlying the adoption of these two types of policy
making, as required by legislation or judicial review and/or as used in
practice by administrative decision makers. Finally, it provides some
context for the discussion of Canadian policy making through a brief
discussion of the process of rule making in American administrative
law - the legislative and judicial oversight of the process of American
rule making and the significant academic literature on the adequacy of
that process.
B POLICY MAKING
At its most significant, Canadian policy making takes the form of a legally
binding rule or regulation. 7 This formal policy making is relatively
6 J.M. Evans, 'Controlling Administrative Discretion: A Role for Rules?' Camb.Lect.

[1991] 209 at 222.
7 Both rules and regulations are legally binding; however, rules do not comply with the
formal procedural requirements of the enactment of regulations. They gain legal force
through legislative authorization but are required only to comply with any process set
out in the legislation.
156 UNIVERSITY OF TORONTO LAWJOURNAL
uncommon, however;8 it can occur only where it is legislatively permitted,

and it is so permitted for few administrative agencies. Further, even agencies
that have the authority to make rules have been somewhat reluctant to
exercise it.9
Despite their relative infrequency, however, it is the case that there are
legally binding policies in Canada that significantly affect the nature and
extent of state action. There are rules and regulations instigated by
administrative decision makers that, inter alia, establish the procedure
to be used when making administrative and adjudicative decisions;
govern the adjudication of human rights claims; determine the nature
and extent of economic regulation of activities such as telecommunica-
tions, public utilities, and securities trading; and govern the development
and environmental regulation of industrial activity.'0
In addition to these formal rules and regulations, policy making also can,
and most commonly does, take the form of informal guidelines, directives, or
policy statements issued by administrative agencies or government minis-
tries. Every administrative agency has the authority to make policy in this
way." Such policies cannot formally bind the decision maker - the courts
have been clear that it is improper for informal policies to 'fetter the discre-
tion' of a decision maker - but they do have legal effect. They are treated as
binding by administrative decision makers,' 2and a failure to follow guidelines
can subject an administrative decision to unfavourable judicial review on
8 See the discussion on American rule making, infra.

9 Macaulay & Sprague, Practiceand Procedure,supra note 1 at 6-4.
10 Houle & Sossin, 'Tribunals,' supra note 1. See, e.g., with respect to the procedure used
in making adjudicative decisions, Alberta Energy and Utilities Board Rules of Practice,Alta.
Reg. 101/2001; with respect to the adjudication of human-rights claims, Bell Canada
v. Canadian Telephone Employees Association, 2003 SCC 36, the Canadian Human Rights
Act, R.S. 1985, c. H-6, ss.27(2) (as cited in Houle & Sossin, ibid.) and 48.9(2), and
the Canadian Human Rights Tribunal Rules of Procedure (03-05-04), online: CHRT
<http://www.chrt-tcdp.gc.ca/pdf/rules-regles-04.pdf>; with respect to the extent of
economic regulation, the Ontario Securities Act, R.S.O. 1990, c. S-5, s. 143, and
General Regulations, R.R.O. 1990, Reg. 1015; with respect to the development of
industrial activity, National Energy Board Pipeline Crossing Regulations Part II, SOR/88-
529, online: NEB <http://www.neb-one.gc.ca/ActsRegulations/index-e.htm>; with
respect to the regulation of public utilities, Transmission Regulation, Alta. Reg. 174/
.2004, online: Alberta Utilities Commission <http://www.auc.ab.ca/> and with
respect to environmental regulation, the Environmental Assessment and Review
Guidelines Order established under s. 6 of the Department of the Environment Act, R.S.
1985, c. E-10 (as cited in Houle & Sossin, ibid.), and Michael M. Wenig, 'The
Democracy Deficit in Canadian Environmental Policy Making' [2004] LawNow Online
[Wenig, 'Democracy Deficit'].
11 Macaulay & Sprague, Practice and Procedure,supra note 1 at 6-4. Although I have not
found authority for this proposition, it is likely that every government ministry
implementing programs under legislation also has policy-making authority.
12 Houle & Sossin, 'Tribunals,' supra note 1.
substantive grounds.'3 Further, Canadian courts have been willing to treat

even non-binding policies as 'prescribed by law' and thus subject to review
4
and consideration under the Canadian Charter of Rights and Freedoms.1
As summarized by Houle and Sossin,
[T]ribunal policies are approached with ambivalence by the courts. Policy
guidelines are held not to be 'law' but nonetheless to be capable of imposing
procedural and substantive constraints on tribunal discretion. These policies
cannot purport to be treated as binding (unless legislatively mandated to
bind decision-makers) and yet cannot be ignored. Guidelines shape the exercise
of discretion but are also themselves discretionary decisions. The judicial treat-
ment of tribunal policy-making is a product of the separation of powers doctrine
and yet also a challenge to the coherence and sustainability of those
boundaries. ,
Informal policy making influences a vast range of state action in
Canada. It shapes how law is interpreted and how discretion pursuant
to law is exercised.' 6 So, for example, regulators of economic activity,
such as the Alberta Energy Resources and Conservation Board and
the National Energy Board, determine much of what is and is not per-
7
mitted economic activity by promulgating guidelines and directives.'
Further, administrative agencies making decisions about individuals
do so through policy making and'application. The Immigration and
Refugee Board, for example, has numerous policies governing, for
example, how the term 'refugee' should be defined in certain cases
and how information from informants as to .the credibility of a particu-
lar refugee claim should be taken into account (or not) in adjudicating
refugee claims.8
There are thus constraints on the extent to which informal policies
affect state action. In the majority of cases, however, these constraints
are more apparent than real. Government decision makers have the
power to enact policies and also to follow them, subject only to what is
13 Ibid., discussing Baker v. Canada (Ministerof Citizenship and Immigration), [1999] 2 S.C.R.
817.
14 Ibid.
15 Ibid.
16 Ibid.
17 The Alberta Energy Resources and Conservation Board (AERCB) has some seventy-
one directives on its Web site that cover a wide range of activities by the energy
sector. See 'Directives,' online: AERCB <www.ercb.ca>. See also the National
Energy Board's Web site at <http://www.neb.gc.ca >.
18 See Houle & Sossin, 'Tribunals,' supra note 1. See also Canada, Immigration and
Refugee Board [IRB], 'The Treatment of Unsolicited Information in the Refugee
Protection Division,' Policy no. 2003-04, online: IRB <http://www.irb-cisr.gc.ca/en/
references/policy/policies/unsolicite.htm >.
in practice the fairly narrow prohibition against the fettering of discre-

tion. The relative insignificance of this constraint arises particularly
from the fact that, in reviewing whether a guideline is an improper
fettering of discretion, the courts focus on whether the policy expressly
fetters the decision maker's discretion; they do not consider the practical
constraints on administrative decision making that a technically non-
binding policy creates.'9
In sum, then, it is clear that administrative policy in Canada affects the
nature and extent of state action in a wide variety of areas. It does so both
formally and informally, the former being more clearly authoritative but
less common and the latter less clearly authoritative but both more
common and, practically, of significant influence and importance.
C THE POLICY-MAKING PROCESS

The question of how these differing types of policies are brought into
being - the identification of the process of policy making - needs to
be considered in three ways. First, are there any legislative constraints
on the process used in setting policy? Second, are there any judicial con-
straints on the process used in setting policy? Third, how, in practice, do
administrative agencies set policy?
1 Legislative constraints
Most instances of policy making in Canada are not legislatively
required to comply with procedural requirements. 20 Where policy
making is informal, or even where it is formal but does not take
place pursuant to the actual enactment of a regulation, there is no
general legislative requirement in any Canadian jurisdiction that the
policy in question follow from a particular process. Neither the
Ontario Statutory Power Procedures Act 2' nor the Alberta
Administrative Procedures Act2 2 nor the Quebec Act Respecting
Administrative Justice2 3 requires that the enactment of administrative
rules or policies follow from procedure, and no other Canadian
province has enacted similar general legislation governing adminis-
trative procedure - nor has the federal government. Further, the
specific statutes of at least two administrative agencies with signifi-
cant rule-making power - the Canadian Radio-Television and
19 Houle & Sossin, 'Tribunals,' supra note 1.

20 Houle & Sossin, 'Tribunals,' supra note 1: 'the idea that some procedural rights to
participate in the primary creation of a guideline is not often recognized by a statute.'
21 R.S.O. 1990, c. S-22, s. 3(1). The act applies only to statutory powers that, as part of the
statutory authorization, 'otherwise by law' must be exercised following a hearing.
22 R.S.A. 2000, c. A-30, s. 1(c). The act applies only to administrative action directed
toward individuals.
23 R.S.Q., c.J-3. The act only applies to 'individual decisions made in respect of a citizen.'
Telecommunications Commission and the National Energy Board -

do not speak to the process of policy making except where it
occurs through the enactment of a regulation. The governing legis-
lation simply provides that those bodies have the power to hold
public hearings on any matter where it is in the public interest to
do so; that is, they are permissive, not directive, with respect to the
process used to enact legally binding guidelines.2 4 It is only relatively
rarely that formal rule making is legislatively required to follow from
procedure 25
Policy making in Canada is most clearly subject to legislatively required
procedure where the policy takes the form of a regulation. Where a policy
is formalized through a regulation, it must satisfy the general legal require-
ments that precede the enactment of regulations.
At the federal level, the process for enacting regulations is
26
established by the Cabinet Directive on Streamlining Regulation
and the Statutory Instruments Act.2 7 The department or agency
writing the regulation is required to identify 'interested and affected
parties' and to provide them 'with opportunities to take part in
open, meaningful, and balanced consultations at all stages of the regu-
latory process.' The draft regulation that results from this consultation
process is pre-published in the Canada Gazette, Part i, following which
it is further subject to public scrutiny and comment for a minimum
thirty-day period.
It is not clear precisely what processes result from application of the
cabinet directive and its requirement that interested and affected
parties be provided with meaningful consultation opportunities, or how
significant the response is to publication of regulations in the Canada
Gazette, Part 1.28 Moreover, it appears that few Canadian provinces have
followed the federal lead in imposing additional procedural
24 See Broadcasting Act, S.C. 1991, c. 11, s. 18(3); National Energy Board Act, R.S.C. 1985,
c. N-7, s. 24(3).
25 See, e.g., amendments to the Ontario Securities Commission legislation, the Securities
Amendment Act, 1995. The process involves a notice and comment period and is
inapplicable in circumstances of 'urgency' (s. 143.2(5)). See OSC, 'Rule-making in
Ontario' (n.d.), online: OSC <http://www.osc.gov.on.ca/Regulation/Rulemaking/
rrn-backgrounder.jsp>.
26 Canada, Regulation, 'Cabinet Directive on Streamlining Regulation,' online:
Government of Canada <http://www.regulation.gc.ca/directive/directiveOl-eng.asp>.
27 R.S.C. 1985, c. S-22.
28 This directive replaces its predecessor, Regulatory Policy 1999, pursuant to which a
stakeholder consultation process was required and other procedural directions were
imposed on those making regulation. It seems on its face that the directive is
(ironically) less directive with respect to the requirement for process prior to the
enactment of policy. The practical impact of this change remains to be seen.
160 UNIVERSITY OF TORONTO LAWJQURNAL
requirements around regulation making.2) In Alberta, for example, 'the

cabinet (and individual ministers) may adopt regulations without first
30
obtaining public comment on draft versions.'
In sum, then, only a small amount of Canadian policy making is
subject to legislatively required procedure, and that procedure is, on its
own terms, relatively minimal. While agencies may follow procedures
prior to enacting policies, they do not do so out of legislative necessity.
2 Judicial constraints
The constraints imposed by the Canadian judiciary on the enactment of
administrative policy without process can be summarized simply: there are
none.31 It is government action that the courts have treated as occurring in
'a space devoid of legal principles. '32 Following from the leading decision of
33
the Supreme Court of Canada in Canada (A.G.) v. Inuit Tapirisatof Canada,
the courts have consistently refused to review the process by which any 'legis-
lative' decision - that is, any decision that is general, rather than directed at
the individual, and reflects considerations of public policy and the public
interest, rather than 'facts pertaining to individuals or their conduct'- - is
made.35 The approach has been one of absolute deference: the courts do
not require procedure for a legislative or quasi-legislative decision except
where it is mandated by statute,36 and where it is statutorily mandated they
do not review the procedure for adequacy beyond compliance with the
37
statutory requirements.
29 Quebec has a similar regime to the federal government's, enacted in 1986 under the
Regulations Act, L.R.Q. 1986, c. R-18.1. It would appear that no other province has
imposed additional procedural requirements: for an excellent summary of the
current situation, see Environmental Commissioner of Ontario [ECO], The Ontario
Regulation and Policy-Making Process in a Comparative Context: Exploring the Possibilitiesfor
Reform (1996), online: ECO <http://www.eco.on.ca/english/publicat/reform.pdf> at
32-3.
30 Wenig, 'Democracy Deficit,' supra note 10.
31 The courts will impose procedure where it is required by legislation, but at that point
the requirement flows from the legislation, not from the courts. The doctrine of
'fettering discretion,' discussed above, applies to the implementation of policy in
individual cases but not to the enactment of it.
32 Cartier, 'Procedural Fairness,' supra note 5 at 222, 225.
33 [1980] 2 S.C.R. 735.
34 Donald Brown & John Evans, Judicial Review of Administrative Action (Toronto:
Canvasback, 2004) at 7-23-7-24.
35 See, e.g., CanadianAssociation ofRegulated Importersv. Canada(A. G.) (1994), 17 Admin. L.R.
(2d) 121; Thorne's HardwareLtd. v. Canada[1983] 1 S.C.R. 106; Dixonv. Canada(Commission
of Inquiry into the Deployment of CanadianFosres in Somalia - Lgtorneau Commission), [1997]
EC.J. No. 985; MacMillan Bloedel Ltd. v. British Columbia (Minister of Forests) (1984), 8
D.L.R. (4th) 33; Pichi v. Canada(Solicitor General), [1989] EC.J. No. 204.
36 And, as discussed in the prior section, it is so mandated relatively rarely.
37 Cartier, 'Procedural Fairness,' supra note 5 at 218.
3 Administrativepractice
Despite the lack of legislative necessity or judicial oversight, Canadian
administrative decision makers do, in at least some cases, follow pro-
cedures prior to enacting policies. Determining the nature and extent
of the procedures used is difficult, however. Because the procedures
are designed on an ad hoc basis (and, arguably, are not designed at all)
they vary between decision makers and among different types of
decisions. Thus, while it is possible to indicate the different types of pro-
cedures that administrative agencies use in some instances of policy
making, it is impossible to say how prevalent these procedures are, how
agencies decide which procedures to use in which cases, and whether
such procedures are always, or even normally, available. Further,
even when we can identify the type of procedure used in a particular
case - for example, the frequently relied upon 'stakeholder consul-
tation' - it is often next to impossible for an outsider to describe the
process with precision. That is, someone reviewing the process after
the fact may know that stakeholders were 'consulted,' and may even
know which stakeholders were consulted, but he will not know the
form that consultation took, nor 'whether an administrative tribunal
took into consideration the suggestions of a particular interest group
38
or not and why.'
The main forms of process used in policy making by administrative
decision makers are internal consultation, in the form of full board meet-
ings and/or use of the expertise of agency staff; allowing challenges to the
application of a policy to an individual in a particular case; broad public
participation and deliberation through a public hearing on the policy
issue; and consultation with stakeholders, either informally or, more for-
mally, through a notice and comment procedure.39
At the Alberta Energy and Utilities Board (AEUB) ,4 for example, policy
generally followed either from a public hearing" or from stakeholder
38 Houle & Sossin, 'Tribunals,' supra note 1. This lack of information about the process of
administrative policy making is exacerbated by the lack of judicial scrutiny, because
judicial review provides, if nothing else, an opportunity to witness the nature of
administrative decision making in practice.
39 Ibid.
40 The Alberta Energy and Utilities Board has (as of 1 January 2008) been split into two
separate agencies. This change is more functional than substantive. The directive
discussed here is now under the jurisdiction of the Energy Resources and
Conservation Board and is available at its Web site <http://ww.ercb.ca>.
41 The Alberta Utilities Commission and Alberta Energy Resources and Conservation
Board (formerly the Alberta Energy and Utilities Board) tend to use a public
hearing in cases where the impact of the policy is immediate and the interests of
stakeholders are in direct conflict. It has held hearings, for example, in developing
the policy for resolving the competing interests of bitumen and natural-gas
producers in Alberta's oil sands (see, inter alia, AEUB General Bulletin 2003-028)
consultation. In designing Directive 036, which addresses 'Drilling

Blowout Prevention Requirements and Procedures,' 42 the AEUB received
'input' from stakeholders and, in particular, from industry representatives
and 'other government regulators in Canada.' 43 It is impossible, however,
to gauge further the true extent or impact of this consultative process."
What the stakeholders said, which stakeholders took which positions,
what opportunity the stakeholders had to respond to each other, and
the reasons for the board's adoption of a particular approach are not
available for review.
It is fair to say, therefore, that, in practice, the process of administrative
policy making is by no means as procedurally empty as it could be, given
the absence of either legislative direction or judicial scrutiny. It is also,
however, impossible to assess the breadth and depth of these procedures:
how often they are used, how they are chosen, and their rigour and
adequacy.
Further, despite the difficulties noted, it is possible to find examples of
public decision makers making policy without properly or meaningfully
consulting with those who will be affected by it. In Alberta, for
example, while some aspects of energy regulation and deregulation
have followed from relatively comprehensive processes, other policy-
making processes have been so incomplete as to fail to raise serious
issues of concern to affected parties and the public at large .45
and for resolving the problem of congestion in regulated electricity transmission given
deregulated generation (AEUB Decision 2002-099). The General Bulletin 2003-28 is
available at the Energy Resources Conservation Board website (www.ercb.ca) and
Deicsion 2002-099 is available at the Alberta Utilities Commission Web site <http://
www.auc.ab.ca>. Ironically, the policy that followed from the board's full public
hearing on the transmission issue was overridden (and rejected) by the Department
of Energy's transmission policy, supported only by a non-public stakeholder
consultation process (and the formalities of translation into a regulation). It was
these two competing approaches to policy making, and my concern with the process
and substance of the Department of Energy's approach, that initiated the research
and analysis presented here.
42 This is a policy related to the conduct of drilling operations and contains numerous
constraints on and guidelines for industry practice.
43 AEUB General Bulletin 2004-18.
44 One of the most remarkable facts about the AEUB's reporting of its procedure is its
statement, in Bulletin 2004-18, that one of its purposes in organizing its directives is
'to better serve our customers.' The idea that an independent adjudicative and
regulatory body would view industry as its 'customers' indicates the democratic
deficit that can arise in a regulatory regime.
45 See the dissent of Dr Prince in AEUB Decision U99113: Board Review of the
Independent Assessment Team's Report of Power Purchase Arrangements and Other
Determinations, Phase 2, online: Alberta Utilities Commission <http://wwv.auc.ab.
ca> Wenig, 'Democracy Deficit,' supra note 10.
D POLICY AND PROCEDURE IN THE UNITED STATES

While it is not the purpose of this article to undertake a comparative
analysis of policy making in Canadian and American administrative law,
it is helpful to place the Canadian experience in the broader context
of its American counterpart. Doing so highlights the relative (and ulti-
mately surprising) lack of attention to the process of policy making in
Canada. Further, and more importantly, if Canadian administrative law
is to reconceive its approach to policy making, as this article argues it
should, it will ultimately need to consider and learn from the American
experience in designing, implementing, and overseeing a process for
administrative policy making."
Administrative policy making in the United States, which consists
largely of administrative rules promulgated by independent administra-
tive agencies, is arguably the defining feature of the American administra-
tive state. It has been described as the 'most important function
performed by agencies of government. ' 47 Indeed, Kenneth Warren
argues that 'more than 90 percent of modern American laws are rules
s
(public policies) promulgated by agency administrators.'4
The process of administrative rule making at the federal level is gov-
erned by a variety of legislative requirements, most notably those con-
tained in the Administrative Procedures Act (APA). 4 9 The APA requires
'informal' rule making to follow from a notice and comment procedure
and 'formal' rule making - which is relatively rare - to follow from a
more rigorous adjudicative-type procedure.50 All administrative rule
46 Although this is not a task I undertake here. The focus in this article is on the broader
philosophical necessity for ensuring the democratic legitimacy of public policy.
Ultimately, however, and in further academic consideration of this question, the
specific recommendations that I (and others) make should be assessed against the
American experience, and, in particular, against the successes (and failures) of the
legislative attempts to mandate procedure and the judicial review of how
administrative agencies oversee the procedure of policy making. This section
provides some of the basic relevant information to begin this inquiry.
47 Cornelius M. Kerwin, 'The Elements of Rulemaking' in David H. Rosenbloom &
Richard D. Schwartz, eds., Handbook of Regulation and Administrative Law (New York:
Marcel Decker, 1994) at 345.
48 Warren, AdministrativeLau; supra note 3 at 248.
49 5 U.S.C. 551 (1946). See also Government in the Sunshine Act, 5 U.S.C. 552b (1976);
Freedom of Information Act, 5 U.S.C. 552 (1966); Negotiated Rulemaking Act, 5 U.S.C. 561
(1990); Regulatory Flexibility Act, 5 U.S.C. 601 (1980); Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C. 601 (1996); Paperwork Reduction Act, 44 U.S.C. 3504
(1980).
50 Formal rule making has become relatively rare because the adjudicative process has
proven itself entirely unworkable. Most infamously, a hearing pursuant to the Food,
Drug and Cosmetic Act considering the question of whether peanut butter should
be made of 87.5 per cent or 90 per cent peanuts lasted nine years and produced a
7 736-page transcript. Cited in Warren, Administrative Lau; supra note 3 at 220.
making is, as well, subject to judicial review to ensure its procedural

adequacy.-'
Policy making at the state level is not subject to the same level of
procedural requirements of judicial scrutiny. In addition, the adequacy
of even the more rigorous federal requirements has been subject to sig-
nificant academic commentary and criticism. Critics note the inadequacy
of the formal rule-making process (which essentially renders effective and
timely policy making impossible), the tendency for the informal 'notice
and comment' proceedings to be dominated by special interests, and
the ways in which agencies have simply exploited legislative gaps to
avoid procedural requirements altogether.2 In turn, however, the legisla-
tive and judicial oversight of administrative rule making has been at least
somewhat responsive to these criticismsY 3 Overall, American administra-
tive rule making follows from and embraces procedural norms intended
to ensure that it 'complements democratic government' rather than
51 See, e.g., Riverbend Farms v. Madigan, 958 F.2d 1479 (9th Circ. 1992), cert. denied 506
U.S. 999 (1992).
52 See, e.g., Robert A. Anthony, 'Interpretive Rules, Policy Statements, Guidances,
Manuals, and the Like - Should Federal Agencies Use Them to Bind the Public?'
(1992) 41 Duke LJ. 1311; Cary Coglianese et al., 'Seeking Truth for Power:
Informational Strategy and Regulatory Policymaking' (2004) 89 Minn.L.Rev. 277;
David Fontana, 'Reforming the Administrative Procedure Act: Democracy Index
Rulemaking' (2005) 74 Fordham L.Rev. 8i; Cornelius M. Kerwin, Rulemaking: How
Government Agencies Write Law and Make Policy 2d ed. (Washington, DC: Congressional
Quarterly Press, 1999); Theodore J. Lowi, The End of Liberalism (New York: W.W
Norton, 1969); Theodore J. Lowi, 'Legitimizing Public Administration: A Disturbed
Dissent' (1993) Pub.Admin.Rev. 53; Theodore J. Lowi, 'Two Roads to Serfdom:
Liberalism, Conservatism and Administrative Power' (1987) Am.U.L.Rev. 36; Robert
S. Lorch, Democratic Process and Administrative Lau rev. ed. (Detroit: Wayne State
University Press, 1980); Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public
Choice to Improve Public Law (New Haven, CT: Yale University Press, 1997) [Mashaw,
Greed, Chaos); Richard J. Pierce, Jr., Administrative Law Treatise, 4th ed. (New York:
Aspen, 2002); Edward Rubin, 'It's Time to Make the Administrative Procedures Act
Administrative' (2003) 89 Cornell L.Rev. 95; Peter H. Schuck, Foundations of
Administrative La4 2 d ed. (New York: Foundation Press, 2004); Mark Seidenfeld,
'Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review
of Notice and Comment Rulemaking' (1997) 75 Tex.L.Rev. 483; Peter L. Strauss,
'Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an
Essential Element' (2001) 53 Admin.L.Rev. 803.
53 The most obvious example of this is the Negotiated Rulemaking Act, supra note 49. See
Cary Coglianese, 'Assessing Consensus: The Promise and Performance of Negotiated
Rulemaking' (1997) 46 Duke L.J. 1255; William Funk, 'Bargaining Toward the New
Millennium: Regulatory Negotiation and the Subversion of the Public Interest'
(1997) 46 Duke L.J. 1351; Philip J. Harter, 'Assessing the Assessors: The Actual
Performance of Negotiated Rulemaking' (2000) 9 N.YU.Envtl.LJ. 32; Henry
H. Perritt, Jr., 'Negotiated Rulemaking Before Federal Agencies: Evaluation of
Recommendations by the Administrative Conference of the United States' (1986) 74
Geo.LJ. 1625.
detracting from those democratic values.5" It is in this way that making

public policy in American administrative law departs most significantly
from its Canadian counterpart.
E SUMMARY OF PROCESS AND POLICY

Administrative policy making in Canada thus clearly affects the nature
and extent of state action in numerous areas, ranging from general regu-
latory jurisdiction over economic activity to more individualized concerns
such as immigration and human rights. Such policy making may result
from processes intended to facilitate administrative decision makers'
pursuit of the public interest. However, it is impossible to state with
certainty the significance or extent of such processes. For the most
part, they are not required by law, are not subject to judicial review,
and are difficult to assess in practice. In addition, despite the difficulties
of assessment, it is quite possible to find examples of procedural inade-
quacy in administrative policy making.
This happenstance and undisciplined approach to the policy-making
process departs markedly from the approach followed in the United
States. In the United States, policy making is not without flaws, but it
takes place within the framework of an overall normative recognition
of, and commitment to, ensuring that the process is consistent with
democratic values. The Canadian approach to the process of policy
making is, by contrast and as discussed further below, insufficient to
ensure the democratic legitimacy and instrumental soundness of the
policies that result.
III Deliberative democracy
A INTRODUCTION
Thus far this article has hinted at its conclusion - that policy making by
Canadian regulatory bodies is not subject to adequate procedural
safeguards.
This conclusion must, however, be normatively justified. Why does it
matter that there are in general few, if any, legislative requirements that
policy follow from a process of public consultation or input? Why does
it matter that Canadian courts have entirely refused to subject the
process of policy making by administrators to judicial scrutiny? And,
finally, why does it matter that the particular procedures used by
Canadian regulators are difficult to determine and even more difficult
to assess for adequacy?
54 Warren, Administrative Lau; supra note 3.

This article attempts to answer these questions through theories of

deliberative democracy. Further, it uses the central insights of those
theories to outline what a procedurally sufficient approach to policy
making looks like. To do so it must, obviously, begin with an overview
of the main tenets and principles of deliberative democracy. Thus, Part
ii begins with a brief overview of the two primary models of deliberation
theory - the theoretical model (which grounds the necessity for procedu-
rally adequate policy making in the protection of individual autonomy)
and the instrumental model (which views process as important to
ensure substantively sound policy decisions). It then discusses what delib-
eration consists of and how theoretical deliberative norms are put into
practice. Finally, it discusses some challenges to deliberation theory and
defends the latter's relevance to Canadian public policy making and
administrative law.
From this discussion Part Iv will attempt to translate the procedural
norms of deliberative democracy into practical suggestions for how the
limited 'process' of administrative policy making in Canada, as just
outlined, should be improved.
B THEORETICAL MODEL
Theories of deliberative democracy arise from a central problem of meta-
physical philosophy: How does the state legitimately coerce the individ-
ual, given the individual's innate right of 'independence from being
constrained by another's choice ... insofar as [that right] can coexist
with the freedom of every other in accordance with universal law? ' 55
How can individual rights and collective action coexist?
Drawing from the Kantian insight that legitimate laws are those that
reflect the 'general united will of the people,' 56 deliberative democracy
asserts that laws can be understood as reflective of that will when those
laws arise from a democratic process of public reasoning - that is, from
55 Immanuel Kant, Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge

University Press, 1991) at 63.
56 Ibid. at 125; see Jfurgen Habermas, 'Habermas on Law and Democracy: Critical
Exchanges: Habermas's Proceduralist Paradigm of Law: Paradigms of Law' (1996) 17
Cardozo L.Rev. 771 at 777 [Habermas, 'Law and Democracy']; Jorgen Habermas,
'Between Facts and Norms: An Author's Reflections' (1999) 76 Denv.U.LRev. 937 at
940 [Habermas, 'Author's Reflection']; Joshua Cohen, 'Deliberation and Democratic
Legitimacy' in James Bohman & William Rehg, eds., Deliberative Democracy: Essays on
Reason and Politics (Cambridge, MA: MIT Press, 1997) 67 at 72 [Cohen,
'Deliberation']; Joshua Cohen & Joel Rogers, On Democracy (New York: Penguin,
1983) at 149; Frank Michaelman, 'How Can the People Ever Make the Laws? A
Critique of Deliberative Democracy' in James Bohman & William Rehg, eds.
Deliberative Democracy: Essays on Reason and Politics (Cambridge, MA: MIT Press, 1997)
145 at 162.
deliberation.5 7 When the individuals who are to be subject to laws have a

discussion in which participants provide reasons as to what laws can (or
cannot) legitimately bind them and, after those discussions, achieve con-
sensus as to the laws that should be binding on all, then those accepted
laws are legitimate.
What is required for a proper deliberative process, both in theory and
under the practical constraints of the non-theoretical world, is discussed
in more detail below; however, some immediate points need to be empha-
sized. Most importantly, deliberation is not pluralism. To determine the
public will, discussants need to do more than identify their competing inter-
ests and aggregate the preferences of the majority; 8 they need to reach a
collective consensus as to what are proper reasons for consideration in iden-
tifying legitimate laws and as to what those laws should be. This means, in
turn, that each participant is assumed to be capable of more than instru-
mental rationality." Participants are instead understood as able to identify
and articulate reasons that take into account the perspectives of others.-
Further, deliberative democracy asserts that participants in the process
do not have an exogenous set of perspectives that are incapable of being
affected by the process of discussion and reason giving. 1 Rather, partici-
pants can and will change their position in response to reasons given by
62
others and, in particular, based on the perspectives articulated by others.
In sum, then, theoretical models of deliberative democracy assert the
necessity for, and the importance of, determining the public will through
a discussion in which participants identify a consensus view on legitimate
reasons and on the state action that follows from those reasons. This
requires from participants the ability to explain, to justify, to listen, and
57 Jfirgen Habermas, 'Popular Sovereignty as Procedure' in James Bohman & William

Rehg, eds., Deliberative Democracy: Essays on Reason and Politics (Cambridge, MA: MIT
Press, 1997) 35 at 48 [Habermas, 'Popular Sovereignty'].
58 Cass R. Sunstein, 'The Republican Civic Tradition: Beyond the Republican Revival'
(1988) 97 Yale L.J. 1539 at 1554-5 [Sunstein, 'Republican'].
59 Joshua Cohen, 'Procedure and Substance in Deliberative Democracy' in James
Bohman & William Rehg, eds. Deliberative Democracy: Essays on Reason and Politics
(Cambridge, MA: MIT Press, 1997) 407 at 416 [Cohen, 'Procedure and Substance'].
60 Ibid.
61 Sunstein, 'Republican,' supra note 58 at 1554.
62 Ibid. Some theoretical models of deliberation theory also ground deliberation's merits
in its ability to 'transform' and 'enlighten' participants, to inculcate civic virtue. Mark
Seidenfeld, 'A Civic Republican Justification for the Administrative State' (1992) 105
Harv.L.Rev. 1512 at 1529, 1534. Whether or not this position is correct, and whether
or not it can even properly be ascribed to deliberative democracy theorists in
general, it is not a concept used in this article. The normative and instrumental
value of deliberation for legitimating state decision making does not depend on
whether the decision-making process creates, in general, a more virtuous or other-
centred citizenry. See also Jim Rossi, 'Participation Run Amok: The Costs of Mass
Participation for Deliberative Agency Decisionmaking' (1997) 92 Nw.U.L.Rev. 173.
to take into account the perspectives of others. And through this 'proce-
duralist paradigm of law'63 those laws that can legitimately bind citizens,
given each citizen's innate right to be independent of constraints
arising from the choices of others, can be distinguished from those
that simply represent an arbitrary and illegitimate exercise of state
power. Any law, whether following from legislative enactment or from a
de facto exercise of state power through administrative policy, must
satisfy these requirements: 'Policies that are adopted in a manner that
does not conform to the conditions for the democratic genesis of law
are merely cloaked in juridical form.'6
C INSTRUMENTAL MODEL
The grounding of deliberative democracy also rests in the usefulness of
deliberation to the formation of good public policy. Deliberation is
asserted to be the best way to correct for the informational and other fail-
ures of reason that arise when groups of people try to make a decision
about their collective good.
For a variety of reasons largely related to failures to share or obtain the
best information when making a decision, groups of people often make
poor decisions: that is, they make decisions that they would not rationally
have made if they had the benefit of the best and most comprehensive
information. For example, studies have been done 65 in which different
groups of individuals are given a personnel decision to make. Each
person in a group is given some, but not all, of the information about
different candidates who can be hired. One potential candidate is
clearly the best qualified, but almost none of the groups in the exper-
iment in fact choose that candidate. The posited reason for their
failure to do so is that the participants do not share information accu-
rately with each other; they tend to share only positive information
about candidates they like and to share negative information about
those they do not like.
Similarly, psychologists have done studies- in which participants are
given a question to answer. In some cases the question is easy, and in
other cases it is difficult. When the participants are placed in a group
in which other members of the group (who are 'plants' and not partici-
pants) strongly assert erroneous conclusions, participants in the group
will give erroneous answers to the questions posed, even when those ques-
tions are straightforward. These erroneous conclusions appear to arise
63 Habermas, 'Popular Sovereignty,' supra note 57.

64 Habermas, Facts and Norms, supra note 2 at 429.
65 This example is discussed in Cass R. Sunstein, Why Societies Need Dissent (Cambridge,
MA: Harvard University Press, 2003) at 119 [Sunstein, Dissent].
66 Ibid. at 18-23.
either from the fact that people rely on the information apparently held
by others in deriving their own conclusions or from conformity effects.
More troublingly, subsequent experiments have found that the errors
and the conformity effects apparent in these fact-based studies can also
arise where the issue is one of morality or politics.67
Cass Sunstein, a strong proponent of the instrumental significance of
process, notes and discusses these and many other decision errors arising
from the use of heuristics, from informational and reputational 'cascades'
(in which conformity effects rather than independent judgements deter-
mine conclusions), and from the tendency toward group polarization (in
which groups of like-minded people become more extreme in their
views). Sunstein argues that deliberation - and, in particular, deliberation
designed to generate information sharing - decreases peer pressure and
encourages heterogeneity of views, and that it is the best way to decrease
the likelihood of such decision errors. He does not believe that delibera-
tion is the only way to achieve these ends, and his more recent work in
fact questions whether traditional deliberative models will do so.' 8
Nevertheless, he argues strongly that it is for the accomplishment of
these goals - the encouragement of effective and accurate decision
making - that a thoughtfully designed deliberation process is both
good and necessary.
For the instrumentalists, deliberation may be a source of democratic
legitimacy in law-making. But it is also, and perhaps primarily, the
proper democratic process because it will, if designed to encourage criti-
cal thinking, reduce social pressure, enhance information sharing,69 and
thus lead to better decisions: '[W] e regard public deliberation as primar-
ily of instrumental value. It is an instrument for the making of high
quality decisions. If public deliberation does not serve that purpose, it
70
does not have value.'
Sound and well-informed public policy will arise only where policy
decisions follow from a process of public deliberation.
D WHAT IS DELIBERATION?
Deliberation theory thus asserts that deliberation is necessary to ensure
legitimate and well-made decisions. Public policy decisions that do not
67 Ibid. at 21-2.
68 Cass R. Sunstein, 'Group Judgments: Statistical Means, Deliberation, and Information
Markets' (2005) 80 N.YU.L.Rev. 962 at 982 [Sunstein, 'Group Judgments'].
69 Ibid. at 1012-21.
70 Thomas Christiano, 'The Significance of Public Deliberation' in James Bohman &
William Rehg, eds. Deliberative Democracy: Essays on Reason and Politics (Cambridge,
MA: MIT Press, 1997)243 at 255.
arise from deliberative processes are illegitimate and are unlikely to be

either well informed or properly directed. Public policy should be
deliberatively based. This assertion leads, though, to the obvious next
question: What is deliberation?
Different deliberation theorists give somewhat different answers to the
question of what constitutes true deliberation, with differences particu-
larly evident where the basis for deliberation shifts from theoretical to
instrumental grounds. There are, however, four consistently articulated
criteria for a discussion to be considered fully deliberative, described
here as the 'four pillars of deliberation.'
The first pillar of deliberation is consensus. Unless the participants
reach a consensus in favour of a particular outcome, it cannot be said
that that outcome reflects the will of all the participants. Theorists do
not agree on whether that consensus must, in a theoretical sense, also
be unanimous, but they do agree that it must reflect more than an
aggregation of pre-existing preferences.7'
The second pillar of deliberation is reason; deliberation requires that
discussion be reason based. What 'reason' requires is not consistently
articulated by different theorists; it is clear, though, that it is not merely
instrumental rationality. Reason is instead an 'orientation to the
common good,'72 the ability to take into account in a fundamental way
the perspective of others, to be compelling to discussants other than
the person offering the reason, 3 and to articulate reasons that have
some claim to universality.1
The third pillar of deliberation is rational discussion; ideal delibera-
tion not only requires that the discussion be based on reason but also
places constraints on the manner in which the reasons provided can be
discussed. Participants cannot terminate the conversation because of
concerns unrelated to the reasons given - for example, a personal dis-
taste for the person offering the reason. Further, participants must be
71 Cohen, 'Deliberation,' supra note 56 at 75;John Rawls, PoliticalLiberalism, excerpted in

James Bohman & William Rehg, eds., DeliberativeDemocracy: Essays on Reason and Politics
(Cambridge, MA: MIT Press, 1997) at 137; Gerald E Gaus, Contemporary Theories of
Liberalism: Public Reason as a Post-Enlightenment Project (London: Sage Publications,
2003) at 131-41 [Gaus, Contemporary]; but see contra Jfirgen Habermas, 'Habermas
on Law and Democracy: Critical Exchange: Part II: Habermas Responds to His
Critics: Reply to Symposium Participants' (1996) 17 Cardozo L. Rev. 1481 at 1484
[Habermas, 'Law and Democracy'].
72 Habermas, ibid. at 1481.
73 Cohen, 'Procedure and Substance,' supra note 59 at 413.
74 This last requirement follows naturally from the Kantian origins of deliberation. Gaus
describes this requirement (from Habermas's original articulation of deliberative
democracy) in the following terms: 'Everyone who applies predicate F to object A
must be prepared to apply F to all other objects resembling A in all relevant
aspects.' Gaus, ontempora-i supra note 71 at 121.
sincere in offering reasons. Finally, the only true basis for discussion is in
the reasons provided by participants - it is only the attempt to identify
and develop the better argument that can govern the discussions.
Within the constraints of reason and of rational discussion, however, par-
ticipants have complete freedom of expression - they may question or
75
assert any proposition.
The fourth and final pillar of deliberation is equality; in ideal delibera-
tion, participants will be formally and substantively equal with each other.
Participation is not constrained by the pre-existing distribution of
resources in a society, and individuals are not treated differently based
on status. Each participant is treated as equally competent to provide
and respond to reasons through the deliberative process." m
Ideal deliberation, then, is rational and reason-based discussion
among formally and substantively equal participants who achieve consen-
sus on the outcome of those discussions. The question this raises is, How
do deliberation theorists think these criteria are translated into a real-
world setting? How, for example, does an administrative agency setting
its rules of procedure know whether its process for establishing those
rules has been sufficiently deliberative?
Deliberation theorists do not have a clear or unambiguous answer to
this question, although they generally recognize it as a problem. Most
theorists suggest, for example, that, in practice, voting or some other
decision mechanism is required to allow deliberation to reach a decision
even without the accomplishment of consensus.7 7 Further, most recognize
that deliberation must be representative rather than involving actual
participation by all citizens; Joshua Cohen goes so far as to suggest that
[p]erhaps an ideal deliberative procedure is best institutionalized by ensuring
well-conducted political debate among elites, thus enabling people to make
7
informed choices among them and the views they represent. 1
75 These details are most obviously stated by Habermas, 'Law and Democracy,' supra note
71 at 1519. See also Gaus, Contemporar, supra note 71 at 121-2. I would suggest,
however, that they apply also to the deliberative models adopted by others. For
example, Cohen, 'Deliberation,' supra note 56 at 74, asserts the importance of
reason for all aspects of deliberative discussion.
76 Cohen, 'Deliberation,' supra note 56 at 74; Habermas, 'Law and Democracy,' supra
note 71 at 1519; Jack Knight & James Johnson, 'What Sort of Political Equality Does
Deliberative Democracy Require?' in James Bohman & William Rehg, eds. Deliberative
Democracy: Essays on Reason and Politics (Cambridge, MA: MIT Press, 1997) 279 at 288.
Sunstein also notes the distorting effects of status and inequality in creating poor
decisions - in the real world, some speakers will have a more powerful impact than
others based not on what they say but on who they are. Sunstein, Dissent, supra note,
65 at 67-8.
77 Habermas, 'Law and Democracy,' supra note 71 at 1494-5.
78 Cohen, 'Procedure and Substance,' supra note 59 at 422.
Furthermore, deliberative theorists in general, and certainly Jfirgen

Habermas in particular, suggest that the project of translating delibera-
tion into practice is ongoing; it cannot be definitely structured for all
times and for all problems but requires the ongoing 'interplay of
institutional imagination and cautious experimentation.' 9
The form and style of deliberation are inevitably context dependent;
they depend on the 'empirical, technical, prudential, ethical, moral or
legal' circumstances in which deliberation takes place.' Habermas reco-
gnizes, for example, that bargaining can, in the real world, be a legitimate
form of deliberation. The ability to compromise to reach solutions is at
the heart of political decision making."'
The four pillars of deliberation - consensus, reason, rationality in
discussion, and equality - thus do not have any definite form in practice.
They are standards against which a decision-making process can be
measured to determine that process's legitimacy, but they are also
standards that need to be used carefully, taking into account the practical
circumstances in which the decision is being made.
Up to this point, discussion of the content of deliberation has been
focused on the normative theory of deliberation. As discussed above,
however, deliberation also has an instrumental basis - and satisfaction
of the instrumental requirement of deliberation requires taking into
account factors beyond the four pillars of normative deliberation.2
Sunstein argues that to be effective, deliberation must also be designed
to encourage participants to share information with one other. He
makes some practical suggestions in this regard, including encouraging
critical thinking, rewarding group success, appointing devil's advocates
for the group, enlisting high-status contrarians and effective discussion
leaders, and, where necessary, using anonymity for participants."
These instrumental suggestions would, as Sunstein acknowledges, also
present the challenge of appropriate translation into practice;8 4 however,
they provide an additional measure against which to consider the
adequacy of procedures used in developing public policy. They may not
affect the assessment of the democratic legitimacy of the resulting
public policy, but they certainly provide a basis for assessing whether
the process used was conducive to ensuring that policy was well informed.
79 Habermas, Facts and Norms, supra note 2 at 441.

80 Habermas, 'Author's Reflection,' supra note 56 at 941.
81 Ibid.
82 Sunstein, 'Group Judgments,' supra note 68 at 990.
83 Ibid. at 1012-20.
84 Ibid. at 1020.
E CHALLENGES FOR DELIBERATION THEORY AND ITS RELEVANCE TO CANADIAN

PUBLIC POLICY AND ADMINISTRATIVE LAW
Deliberation theory thus posits four pillars of deliberation and suggests
that these pillars can be translated into practice, taking into account
the particular circumstances and nature of a democratic decision. Part
rv below attempts to use the pillars of deliberation to assess the process
of Canadian policy making and to make suggestions as to how that
process can be improved. First, however, it must be acknowledged that
there are some major issues with deliberation theory and, in particular,
with its four pillars and their practical realization. More specifically, it
must be demonstrated that these issues can be satisfactorily addressed
before deliberative democracy can be put to meaningful use in assessing,
and proposing reforms to, Canadian public policy making.
The first major issue concerns the requirement for consensus. As
even deliberation theorists recognize, consensus is enormously difficult,
and may be impossible, to achieve. 85 Gerald Gaus makes this point
most strongly:
We do not simply live in a society with plural understandings of the good life, but
with diverse and conflicting ideologies that insist their competitors are deeply mis-
guided. None of this is to say that political life in an ideologically fractured society
is impossible. It does, however, strain beyond plausibility the claim that politics
ought - even ideally - to aim at actual consensus.86
And if consensus is impossible - 'even ideally' - then how can it be a
grounding criterion for political discussion?
Further, as has also been noted by writers within deliberation theory,
equality is something that has not yet been achieved in most of the
world and certainly was not in existence at the time when countries
whose political systems are claimed to be based on deliberation origi-
nated. Given that this is the case, it seems problematic either to find
democratic legitimacy in societies based on deliberation where the
conditions of equality have never been met or to suggest that such
societies can ever achieve legitimacy through deliberative processes.87
85 Most theorists accept that there have to be decision mechanisms to resolve conflict.
Some, such as Habermas, see these mechanisms simply as an interruption in the
deliberative process pending a return to attempting to achieve actual consensus.
Habermas, 'Law and Democracy,' supra note 71 at 1494-5. Others, such as Rawls,
seem to accept that a plurality of views is the reality of the modern world and that a
'political rule of action' is always required: Rawls, Political Liberalism, supra note 71
at 137.
86 Gaus, Contemporar supra note 71 at 140.
87 See Jon Elster, 'The Market and the Forum: Three Varieties of Political Theory' in
James Bohman & William Rehg, eds. Deliberative Democracy: Essays on Reason and
Politics (Cambridge, MA: MIT Press, 1997) 3. Elster makes the point (at 18) that if
Perhaps most fundamentally, however, as the discussion above makes

clear, deliberation is based strongly on a metaphysical conception of
reason. Whether or not this conception is empirically or philosophically
supportable, it cannot be disputed that it is one roundly rejected by
economists, post-modernists, and many feminists. It does not take into
account the situational nature of most decisions or the enormous and
perhaps impossible challenge posed for individuals who must seek to
separate themselves from their own circumstances and experiences in
analysing the appropriate response .to a problem. 88 And if reasoning is
always situational, how can a society require a universalized reasoning
process as a precursor to legitimate political decision making?
Finally, even if the four pillars of deliberation can be defended from
these challenges, the translation of deliberation into practice is, as
discussed above, not a matter on which deliberation theory itself gives
much guidance. It may be reasonable to suggest that deliberation must
be translated into practice by taking into account the 'empirical, techni-
cal, prudential, ethical, moral or legal' circumstances in which the
decision is to take place, but this observation is more obvious than
helpful. Once the four pillars of deliberation are recognized as incapable
of perfect translation into practice, then some other concept or concepts
will be required in order to determine an appropriate process for state
decision making in particular circumstances. Deliberative democracy
itself, at least in its non-instrumental form, does not provide much
indication as to what those concepts might be.
Given these fundamental objections, what justification can this article
present in support of its use of deliberative democracy?
While there are, in my view, no indisputable responses to these
objections, there are nonetheless good reasons for using the analysis
of deliberative democracy to illuminate the problem of process in
policy making. The most important of these is that, absent those phi-
losophers who are doctrinaire supporters of a particular approach,
deliberation requires a society free of 'political and economic domination,' this creates
problems for deliberation in any society which does not satisfy this criterion: 'If, as
suggested by Habermas, free and rational discussion will only be possible in a society
that has abolished political and economic domination, it is by no means obvious
that abolition can be brought about by rational argumentation.'
88 Note that the feminist and economist objections to 'reason' may have different bases.
For the economist, the problem is the impossibility of the non-self-interested
perspective. For (some) feminists, the problem is that the emphasis on reason
privileges a particular way of ordering and thinking about the world, one that has a
much less obvious claim to validity than these theories suggest: Carol Gilligan, In a
Different Voice: Psychological Theory and Women's Development (Cambridge, MA: Harvard
University Press, 1982). Gilligan is discussing Kohlberg's stages of moral reasoning,
not metaphysical reason per se, but I think the central argument is the same.
there is no theory that cannot be subject to the same sort of

fundamental criticism. Take, for example, public choice, which can
also be used effectively to critique the process of public policy
making. 9 Political economy rests on the idea that all humans are
instrumentally rational - that is, that they will act in the way most
likely to maximize their own self-interest. Again, however empirically
or philosophically supportable that conception of human action may
be, it is clearly as hotly disputed as the metaphysical conception of
reason, and it can no more provide an uncontroversial basis for analy-
sis than deliberative democracy can. Similarly, the feminist 'ethics of
care' can be criticized as empirically non-demonstrable and as, in
fact, indistinguishable from a properly understood metaphysical
conception of reason. 90 Further, and of particular importance given
the subject matter of this paper, careful analysis of administrative
procedures in practice does not support the empirical validity of any
single theory of government regulation. 9
This position suggests two alternatives: either the use of theory should
be abandoned except by those for whom it is incontrovertibly
compelling, or theory should be used where, after its arguable weaknesses
have been acknowledged, its strengths can nonetheless provide insight
into, or clarification of, a particular problem. This article asserts the
latter basis for using deliberative democracy - deliberative democracy
does have weaknesses, and those weaknesses can only be refuted, in my
view, by taking a doctrinaire approach to the theory. But that it has
such weaknesses should not render its strengths invisible. It is its strengths
92
that make it compelling for analysis of policy and procedure.
What are the strengths of the deliberative model? First, deliberation
theory's primary focus is on the question of procedure - on what pro-
cedures are fair, effective, and respectful of equality. Even if its answer
to the question of what constitutes fair and effective procedure can be
criticized, there are few other theories that engage so thoroughly with
89 See, e.g., Mashaw, Greed, Chaos, supra note 52; John S. Moot, 'Economic Theories of
Regulation and Electricity Restructuring' (2004) 25 Energy L.J. 273.
90 Steven Hartwell, 'Promoting Moral Development through Experiential Teaching'
(1994/1995) 1 Clinical L.Rev. 505 at 519-22.
91 Steven P. Croley, 'Theories of Regulation: Incorporating the Administrative Process'
(1998) 98 Colum.L.Rev. 1 at 167.
92 This weak defence of the theory will no doubt be unsatisfactory to some. I would
suggest, however, that a weak defence is better than an implausible one. Further, I
would note that this weak defence properly allows other theories to be Laken into
account in analysing administrative procedure. In my view, the development of
administrative procedures should take into account a multiplicity of theoretical
perspectives. The perspectives are, to a great extent, theoretically incompatible, but
they are not practically incompatible, and it is their practical significance that is
important here.
176 UN1VERSITY OF TORONTO LAW JOURNAL
that issue. 9 That engagement makes deliberation theory helpful in

considering what, in the context of policy making, constitutes fair and
effective procedure. And since it is that question that this paper is consid-
ering, deliberation theory is a justifiable part of the consideration of the
question's answer.
One challenge that has traditionally faced the courts in reviewing
'legislative'-type decisions for procedural adequacy is the court's recog-
nition that the procedural norms of judicial decision making apply only
awkwardly, if at all, to such decisions. 4 This recognition is appropriate,
and it means that if courts are to undertake consideration of the appro-
priate process for legislative decisions, different procedural norms need
to be articulated. Deliberative democracy, with its focus on how legislative
decisions are properly made, assists in this task.
Second, while the four pillars of deliberation can be criticized, and will
be simply unconvincing to some, they do provide directional orientation
to the design of procedure. If my friend lives to the north of me, and I am
walking to her house through city streets, I may never be able to walk due
north; however, having a compass with 'north' on it will at least help me
to know, in general, which streets are the best ones to take. The four
pillars of deliberation are the 'north' of political decision making.
Considering the interests of others, ensuring that rules can be fairly
applied in different circumstances, allowing for equal participation, and
achieving consensus about state action may all be impossible and may
not be the only relevant factors for consideration. But avenues of pro-
cedure that head in the general direction of those outcomes are better
to take than ones that do not.
This use of the pillars of deliberation as directional orientation for pro-
cedural design also responds to the objection that deliberative democracy
does not provide sufficient guidance as to how to deliberate in practical cir-
cumstances. It suggests that procedures orientated toward accomplishing
the goals of reason, rational discussion, consensus, and equality of
discussants are better than those that are not orientated toward these objec-
tives. Thus, for example, a consultative process for the design of ministerial
or administrative policy that hears only from parties with an interest in the
outcome, that hears only from those parties certain to promote self-interest
rather than consideration of others or the public good, that does not acknowl-
edge or promote equality of participation, and that in no way aims for consen-
sus is unlikely to withstand the scrutiny of deliberative democracy, even taking
into account the practical circumstances in which it was made 5
93 Pluralism addresses this question directly and, arguably, political economy addresses it
indirectly.
94 Cartier, 'Procedural Fairness,' supra note 5 at 244.
95 See, e.g., note 44 supra and accompanying text.
Third, this directional Orientation of deliberative democracy coincides

with the self-concept of Canadian administrative law. Canadian adminis-
trative law and practice does not conceive of itself as simply an attempt
to aggregate the preferences of the majority, or as driven by the self-
interest of the participants in the process; rather, it has an internal
morality oriented toward fairness, reasonableness, and the protection of
human dignity 6 While no doubt those most critical of deliberative
democracy would also criticize this self-concept, there is merit in using
a theory that respects the basic tenets of Canadian administrative law to
elucidate flaws in Canadian administrative practice.97
Finally, the instrumental branch of deliberative democracy - which
looks at empirical research on decision making and considers how,
based .on that research, political decisions can be more accurate - does
not suffer from the conceptual weaknesses of the theoretical branch.
The philosophy and approach of instrumental deliberation are empirical
and pragmatic, and in that way it can be used to consider whether process
is desirable and how an effective process can be structured. It can be used
in conjunction with an analysis of how a procedure orients toward the
pillars of deliberation to assess the legitimacy and effectiveness of a
particular process.
IV Deliberative democracy and administrativeprocedure
A INTRODUCTION
Deliberative democracy requires that state action that affects individuals,
whether in the form of enacted legislation or of public policy, satisfy the
procedural standards necessary to ensure democratic legitimacy and
instrumental soundness. It further sets out the particular norms toward
which legitimate process is directed. Part Iv of this article first considers
the extent to which the current approach to administrative policy
making in Canada satisfies, in the qualified way just articulated, the
tenets of deliberative democracy. After arguing that it does not, it then
outlines how the process of policy making can and should be changed
so that it does.
B THE CURRENT APPROACH

Does the process of public policy making in Canada satisfy the criteria of
deliberative democracy? There are two potential routes for answering
96 Evan Fox-Decent, 'The Internal Morality of Administration: The Form and Structure of
Reasonableness' in David Dyzenhaus, ed., The Unity of Public Law (Oxford: Hart
Publishing, 2004) 143.
97 See ErnestJ. Weinrib, 'Legal Formalism: On the Immanent Rationality of Law' (1988).
97 Yale L.J. 949.
'yes' to this question. The first is by claiming that policy obtains

democratic legitimacy indirectly, through the legislative process. The
second is by arguing that the procedure currently used for policy
making is, given the 'empirical, technical, prudential, ethical, moral, or
legal' circumstances in which it takes place, adequate to ensure that
the resulting policy is both democratically legitimate and well informed.
It is submitted that neither of these answers is satisfactory.
The difficulty with the first response is indicated by the discussion in
Part ii: policy making in Canada is normative and not merely techno-
cratic. Canadian public policy has a significant and independent
impact on the nature and extent of state action and, as a consequence,
cannot meaningfully claim to derive legitimacy from the process
through which its authorizing legislation was enacted. 98
The only way policy making can obtain procedural legitimacy through
the parliamentary process is when it is discussed during question period.
Such discussion is possible, and, when policy making was relatively less
common, question period was probably a real source of procedural legiti-
macy. But in a modem parliamentary democracy, where public policy
making is substantive, frequent, and technically complex, it is highly
doubtful whether forty-five minutes a day of questioning (and only
when Parliament is in session) is sufficient to allow for any meaningful
discussion of emerging public-policy issues. It is also highly doubtful
whether question period could qualify as deliberative in either a theoreti-
cal or an instrumental sense. It may initiate deliberative processes else-
where, but it is itself highly partisan, and it is unlikely to be oriented
toward the pillars of deliberation.
With respect to the second response, while it is obvious that, when
assessed against the four pillars of deliberation in their theoretical
form, the procedure used to make policy in Canada is inadequate, it is
less obvious that it is inadequate when we take into account the need
to translate those pillars into practical circumstances. As discussed
above, policy takes a wide variety of forms. In circumstances where the
impact of the policy is narrow, its legal force is constrained, and some
form of procedure has been used, it is not evident that, at least in that
particular case, there is a democratic deficit, or that insufficient infor-
mation has been generated to ensure instrumentally sound decisions.
Indeed, it is quite likely that there are numerous instances in
Canadian administrative practice in which the procedure used to
develop policy is sufficient to ensure both democratic legitimacy and
instrumental soundness. It is also the case, however, that there is no
assurance in the current circumstances that policy will follow from a
98 See Habermas, Facts and Norms, supra note 2 at 440.

sound and appropriate procedure, and, as noted, there are certainly

examples that suggest that it may not. Under the current approach to
policy making there is every opportunity for administrative decision
makers to avoid procedure altogether, or to implement it inadequately
or improperly. Most obviously, for example, an administrator can
simply label a policy 'informal,' avoiding the need for any consultative
process prior to its enactment, even if that policy will, in effect and in
fact, be determinative of the state's treatment of particular parties.
Further, the legislature can leave matters that are - because of their
general democratic significance and importance - properly determined
through legislative action to be set through public policy by administra-
tive bodies, the result being that such policies will be subject neither to
any procedural rigour not to, any meaningful judicial, legislative, or pol-
itical oversight of the process through which they are enacted. In
general, having democratic legitimacy and instrumental soundness rest
on the goodwill, creativity, and budget of particular administrative
decision makers is an insufficient protection of democratic values, and
of the legitimate instrumental concern that public policy reflect a well-
informed identification of what will satisfy the public interest articulated
by legislation. Democratic legitimacy and sound decision making must
not depend on happenstance.
C DELIBERATIVE POLICY MAKING

It is impossible to determine for all time and all purposes the appropriate
process for the design of administrative policy. As is the case for adminis-
trative procedure more generally, the precise form and type of procedure
used for designing administrative policy are matters best left largely for
determination by the administrative decision maker drafting the
policy.- With that qualification noted, however, this section attempts to
identify the general principles that should inform the process through
which administrative policy is designed and provides some suggestions
for how those principles can be implemented in practice. It then con-
siders the legislative and judicial parameters that should be placed
around administrative procedure to ensure that administrative policy is
both democratically legitimate and well informed.
The first general principle that should inform the policy-making
process is that the extent of the procedure used should be directly
related to the significance of the policy being designed, and the signifi-
cance of the policy should be assessed based on whether and to what
99 The Supreme Court of Canada has said that each administrative decision maker is
'master of its own procedure.' Knight v. Indian Head School Division, [1990] 1 S.C.R.
653. This principle should apply no less in the legislative or quasi-legislative context.
degree it affects the nature and extent of state action. If a policy will infact
(whatever its theoretical legal force) change the way individuals are
treated by the state, then that policy should not be designed without
some process to ensure its legitimacy and soundness. The nature of the
decision maker (whether a government department or an administrative
agency) and the form of the policy (whether a rule, regulation, or guide-
line) should be less significant to the determination of the. process
required than the impact of the decision being made.' °°
Second, procedures should attempt to ensure that participation is, to
the extent possible, based on reasoned engagement with the policy rather
than on lobbying to further the interests of participants. So, for example,
if a stakeholder consultation process is used, participants should be
required to submit comments in writing, or in a public forum, rather
than through private conversations or phone calls with government
officials.'"' Further, the documentation or records arising from
the consultative process should be readily available to the public on the
relevant department or agency's Web site. Otherwise, it is difficult for
anyone outside the inner circle of stakeholders to determine whether
participation, and the process itself, involved reasoned engagement
with the issues, or whether it was simply positioning by parties who had
much to gain or lose, considered quite apart from the public interest.
Obviously those most interested in the outcome of a policy are those
most likely to participate in any administrative process related to its draft-
ing, and it may simply be impossible to expect those participants to
engage with the issues in a disinterested fashion. However, the public
and formal nature of the communications is likely to increase the
amount of reasoned consideration of an issue. Even if the reasoning
is not wholly sincere, and is certainly not disinterested, it will stand on
100 Genevieve Cartier makes a similar point: Cartier, 'Procedural Fairness,' supra note 5 at
45. It should be emphasized that this point also means that where an issue is properly
the subject of legislative direction, and not simply a matter of administrative
implementation of legislative direction, that issue should be resolved by the
legislature directly and not simply through delegation to administrative decision
makers. One of the issues with rule making in the United States is the extent to
which it has largely supplanted congressional establishment of public policy. This
has been argued by some to be seen as de facto amendments to the U.S.
Constitution and state constitutions.' Warren, Administrative Law, supra note 3 at 213.
The position of this article is that such defacto amendments are at best problematic.
101 It is recognized that some private discussions may be necessary to ensure candour from
participants and to further effective bargaining. However, public-record discussions are
equally important to ensure breadth of participation, to orient the discussion toward
the public interest, and to enable public scrutiny and accountability. No public-
policy process should take place solely in private, and the public portion should
come well before the policy has reached the stage of a proposed rule or regulation.
its merits as reason and can be weighed in those terms by the

decision maker.'02
Third, participants in the process should have some opportunity to
respond to positions put forward by others, or, at a minimum, to be
aware of those positions. This will allow for a more deliberative process
and encourage parties to engage with one another's reasons and not
simply with extraneous concerns related to competitive advantage.
Fourth, decision makers should seek to obtain breadth of participation
in the process, both in terms of making multiple parties aware of the
policy point to be decided and also by taking practical steps to encourage
participation by those who otherwise might not involve themselves. In
addition, they should encourage participation in a way that helps to
reduce the unfortunate tendency of 'notice and comment' proceedings
to be dominated by special-interest groups. 0 3 Funding of participants is
one of the most obvious ways to accomplish this; however, inviting
other levels or departments of government to participate and contacting
representatives of groups known to have an interest but not the financial
wherewithal to participate may serve the same purpose. Involving agency
staff in asking interrogatories, cross-examining witnesses, and submitting
arguments that address strengths and weaknesses in the positions pre-
sented, and having government-appointed representatives who operate
as public-interest advocates or ombudspersons, will also help to ensure
that public participation is effective as well as broad.
Creative use of the tools of modern electronic media can also reduce
the cost and increase the breadth of participation; or-al hearings are no
longer the only means by which a broader public can participate in
policy-making processes. Further, participation and information sharing
may be enhanced in contexts where policy development and implemen-
tation are common (e.g., the energy sector) by decreasing the frequency
of processes and increasing their intensity. A hearing on, for example, the
proper approach to addressing the cumulative effects of development of
Alberta's oil sands is likely to be more effective at ensuring breadth of
102 This effect of formal participation soon becomes apparent in a regulatory proceeding.
So, for example, in the AEUB's generic hearing into the policy that should govern
transmission expansion (see AEUB Decision 2002-099, supra note 41), identifying
the relationship between parties' positions and their economic interest was
straightforward. However, the positions were stated in reasoned terms, were
defended with evidence, and were available for assessment (and were so assessed)
on their merits. Further, it is always possible for the decision maker to take into
account the qualification that may arise from the relationship between the position
and the self-interest of the party who makes it. The end result is, in any event, a
number of reasoned arguments that the decision maker can take into account.
103 'The consensus is that participation in the rulemaking process is far from equitable and
democratic.' Warren, Administrative Law, supra note 3 at 231.
participation than are separate stakeholder consultation processes for

multiple smaller issues related to the cumulative effects of that
development."
Fifth, care should be taken to ensure the qualifications and open-
mindedness of those making decisions. It is unclear whether true
impartiality is required for policy decisions in the same manner that it
is required for adjudicative decisions. This is because policy does not
involve win/lose determinations in the same way that adjudicative
decisions do, and because the general and public orientation of policy
decisions may make it unreasonable to require that decision makers
not have some preconceived ideas about the best policy to adopt.
Policy design is different from, for example, a situation in which a
decision maker is assessing an otherwise unfamiliar fact situation.
Having the expertise and experience necessary to make the policy
decision in a thoughtful way, however, and the ability to be open to the
reasons presented by others, is an important part of the decision-
making process, and one that has arguably been relatively neglected
here. 0 5 Ensuring that type of open-mindedness and competence is one
of the most straightforward ways to improve democratic legitimacy and
instrumental effectiveness. It is also of particular importance where the
policy maker is not a regulatory agency (the appointments to which
often face public scrutiny) but is, rather, a government department
whose employees are largely shielded from public view.
In terms of deliberative democracy, the necessity for competence and
open-mindedness arises from the need for both rational discussion and
for consensus. The open-mindedness and competence of the decision
maker will allow the policy-making process to focus on the reasons why
the policy should or should not be adopted (and not on extraneous
political concerns) and will also allow that decision maker's decision
to provide a justifiable substitute for the achievement of consensus.
Finally, and in accordance with the instrumental conception of delib-
erative democracy, the process of policy making should be designed to
encourage the generation of information about the policy in question
104 The ideas in this paragraph were suggested by participants in the ISEEE Futures
Conference.
105 See, e.g., Peter Aucoin & Elizabeth Goodyear-Grant, 'Designing a Merit-Based Process
for Appointing Boards of ABCs: Lessons from the Nova Scotia Reform Experience'
(2002) 45 Can.Pub.Admin. 301 at 303; Abigail Friendly, 'Process and Criteria in
Public Broadcasting Governance: Appointments to CBC and CRTC' (report
prepared for the Friends of Canadian Broadcasting, 2004), online: Friends of
Canadian Broadcasting <http://www.friends.ca/files/PDF/Appointments to-the_
CBC-CRTCAug_2004.pdf>. Note in particular that Canada, unlike the United
States, has no requirement that members of administrative bodies represent the
spectrum of political beliefs.
and its likely outcomes. This can be done by encouraging participation, as

discussed above, but also by ensuring that information is shared between
the decision maker and participants and by using agency staff in creative
ways, as 'devil's advocates' or contrarians. Ideally, agency or government
staff could be used to support different possible outcomes, thereby
helping to ensure better development of information on those outcomes
to assist the decision maker.' °0
Application of these deliberative principles does not preclude the use
of a wide variety of administrative procedures in administrative policy
making. °7 A 'notice and comment' process can be as consistent with
these principles, in its own way, as a full public hearing. The significance
of the principles is that they indicate what quasi-legislative process, which
is oriented toward different things than a quasi-judicial process, should be
trying to accomplish. Determination of a dispute between parties, or
administrative implementation of state programs at the individual level,
simply does not involve the same kind of decision making or the same
concerns of legitimacy'08 as a legislative, or quasi-legislative, decision.
The purpose of the principles identified here is to suggest what good
quasi-legislative process will be directed toward, in the same way that
norms of fairness, impartiality, and openness suggest what good adjudica-
tive process will be directed toward.""
How should these principles be implemented? While it is important,
as noted earlier, that administrative decision makers be given latitude
to design the procedure appropriate to the policies they are making, it
is also crucial that the ad hoc approach to policy that currently exists,
whereby everything depends on the goodwill and competence of particu-
lar decision makers, be replaced with some more formal requirement
that appropriate processes be used for policy making.
Balancing these competing concerns - respecting administrative
discretion and ensuring appropriate procedure - can be accomplished
106 This would obviously have the disadvantage of making the government seem less well
directed. To address this issue, it might be necessary to use different government
departments to address different perspectives, or to use a public or consumer advocate.
107- This insight is important. Process is expensive, and without design flexibility, procedure
will inappropriately draw resources away from important substantive programs. But this
does not mitigate the general point that the process must be appropriate for the type
and significance of the policy being enacted. A 'notice and comment' process is not
adequate for policy that is in substance a legislative enactment.
108 Although legitimacy is as much of a concern, it is not a concern in the same way.
109 Cartier, 'Procedural Fairness,' supra note 5, suggests that these procedural norms
(articulated by the Supreme Court in Baker) should also influence how the process
of policy making is designed. While I think Cartier and I are quite consistent in our
recommendations, I would argue (as I have attempted to do here) that the way to
get to the recommendations should not follow from an application of principles that
are developed in the adjudicative context.
both through legislative direction and through judicial oversight. Where

administrative decision makers are enacting policy that will be legally
binding, whether through regulations or otherwise, those decision
makers should be legislatively required to follow a consultative process.
The specific form of that process need not be stipulated, but the
general necessity for process should be indicated.
Further, wherever administrative decision makers develop policies that
potentially affect the nature and extent of state action, whether formally
or informally, courts should be willing to assess the propriety of the
process used to develop those policies. While the court has, to this
point, refused to undertake this responsibility, critics"0 have demon-
strated that there is no particular logic to that refusal, and that undertak-
ing some scrutiny of the policy-making process is, in fact, quite consistent
with the more recent decisions of the Supreme Court. In undertaking this
role, courts should give administrative decision makers respect and
should not require quasi-legislative decision making to comply with the
norms of judicial decision making. However, they should assess
whether, given the nature and effect of the policy in question, the
process designed is sufficient to ensure the resulting policy's legitimacy
and soundness.
V Conclusion
It could be that implementing the proposals outlined here would make

little difference to the practice of administrative policy making. The
purpose of this article has been, however, to demonstrate the extent to
which there is no guarantee that adequate procedure prior to policy
making exists in Canada at this time. As matters stand, administrative
decision makers can make policy decisions that will have a significant
impact, that are only authorized in general terms by the legislation pur-
suant to which they are made, and that have not been subject to pro-
cedural rigour. As a result, Canada has a democratic gap - a space
'devoid of legal principles' - in which there is no assurance that govern-
ment policy will reflect the public will.
Through some modest legislative changes and a more open-minded
judiciary, however, it is possible to close that gap - to allow the modern
administrative state to discharge its important responsibilities without
losing its democratic justification for doing so.
110 In particular Carier, 'Procedural Fairness,' supra note 5.

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Key words: deliberation/policy/procedure/administrative law/judicial review

* Faculty of Law, University of Calgary.

(2008), 58 UN[VERSIY OF TOROT'O LAWJOURNAL DOI: 10.3138/utlj.58.2.153

'normatively neutral, technically competent implementation of statutes

Using theories of deliberative democracy, this article argues that the

II Policy and procedure in Canada

6 J.M. Evans, 'Controlling Administrative Discretion: A Role for Rules?' Camb.Lect.

uncommon, however;8 it can occur only where it is legislatively permitted,

8 See the discussion on American rule making, infra.

substantive grounds.'3 Further, Canadian courts have been willing to treat

in practice the fairly narrow prohibition against the fettering of discre-

C THE POLICY-MAKING PROCESS

19 Houle & Sossin, 'Tribunals,' supra note 1.

Telecommunications Commission and the National Energy Board -

requirements around regulation making.2) In Alberta, for example, 'the

consultation. In designing Directive 036, which addresses 'Drilling

D POLICY AND PROCEDURE IN THE UNITED STATES

making is, as well, subject to judicial review to ensure its procedural

detracting from those democratic values.5" It is in this way that making

E SUMMARY OF PROCESS AND POLICY

III Deliberative democracy

54 Warren, Administrative Lau; supra note 3.

This article attempts to answer these questions through theories of

55 Immanuel Kant, Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge

deliberation.5 7 When the individuals who are to be subject to laws have a

57 Jfirgen Habermas, 'Popular Sovereignty as Procedure' in James Bohman & William

63 Habermas, 'Popular Sovereignty,' supra note 57.

arise from deliberative processes are illegitimate and are unlikely to be

71 Cohen, 'Deliberation,' supra note 56 at 75;John Rawls, PoliticalLiberalism, excerpted in

Furthermore, deliberative theorists in general, and certainly Jfirgen

79 Habermas, Facts and Norms, supra note 2 at 441.

E CHALLENGES FOR DELIBERATION THEORY AND ITS RELEVANCE TO CANADIAN

Perhaps most fundamentally, however, as the discussion above makes

there is no theory that cannot be subject to the same sort of

that issue. 9 That engagement makes deliberation theory helpful in

Third, this directional Orientation of deliberative democracy coincides

IV Deliberative democracy and administrativeprocedure

B THE CURRENT APPROACH

'yes' to this question. The first is by claiming that policy obtains

98 See Habermas, Facts and Norms, supra note 2 at 440.

sound and appropriate procedure, and, as noted, there are certainly

C DELIBERATIVE POLICY MAKING

its merits as reason and can be weighed in those terms by the

participation than are separate stakeholder consultation processes for

and its likely outcomes. This can be done by encouraging participation, as

both through legislative direction and through judicial oversight. Where

It could be that implementing the proposals outlined here would make

110 In particular Carier, 'Procedural Fairness,' supra note 5.

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