Romancing the Law

An ode to formalism and reflections on Runnymede’s Law and Freedom Conference

I had the pleasure of attending last weekend’s Runnymede Society conference in Toronto. As always, the conference was a welcome opportunity to meet with old friends and new, and to reflect on a number of pertinent issues in Canadian law.

Perhaps because of my own research interests in the last year, I was particularly interested in a theme that seemed to run throughout the conference: the degree of confidence that each of us has in law, particularly the statutory law. Justice Stratas’ talk with Asher Honickman highlighted that there are many in the legal community that, if not giving up on law, are questioning its relevance in a society that is now defined by greater calls for context, nuance, individualized application, and discretion.  The virtues of rules—the creation of economies of scale, the structuring of norms and expectations according to positive orders, the costs saved at the ex post application stage—are apparently counterweighed by the potential for overbroad application, rank injustice, and otherwise discriminatory treatment.

The degree to which we are worried about these vices, or encouraged by these virtues, is probably a function of our belief in legislatures and their work product. Even if legislatures do not get things “right,” there are good reasons to believe that what the legislature does is owed a wide degree of respect–because of the value of legislative compromises, the “finely-wrought” legislative procedure, and the representative nature of the legislature . Nowadays, though, a commitment to the law passed by the legislature is labelled pejoratively as “formalist.” In administrative law, offshoots of this belief are characterized, dismissively and without analysis, as “Diceyan” or an unwelcome throwback to the days of “ultra vires” (take a look at the oral argument in the Bell/NFL & Vavilov cases for many examples of this).  In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

The consequences of this argument-by-label should not be understated. Take the case of statutory interpretation. The Supreme Court of Canada tells us that we should interpret statutes purposively, but at the same time, that the text will play a dominant role in the process when it is clear (Canada Trustco, at para 10). This implies that purposes, while helpful to the interpretive process, should not dominate where the text is clearly pointing in another direction.

But a focus on statutory text—especially the contention that text can ever be clear—is often derided as inconsistent with the contingent and “ambiguous” nature of language. So the argument goes, text can never truly be “clear,” and so textualism falls away. But whether the text of a statute will contain answers to an interpretive difficulty is, in part, a function of the judge’s belief in the coherence and determinacy of law—in other words, her appreciation of the point at which “law runs out”. A judge inclined to believe that the tools of statutory interpretation can be used to come to a defensible answer on a matter will commit herself to that task, and will probably not consider legislative language “ambiguous” in its purposive context. For her, law will maybe never run out, or if it does, it will only do so in the extreme case of true ambiguity, where no discernible meaning cognizable to human understanding could be appreciated. A judge less committed to the determinacy of law will be more willing to introduce extraneous materials—legislative history, Charter values—in order to come to a meaning that makes sense to her. For her, the law may “run out” quite early. The risk here, of course, is the enlargement of the scope for judicial discretion. For those who believe in the general soundness of statutory law, this creates the potential for conflict with the generally-elected representative body.

This is not a hypothetical problem. In the United States, Chevron administrative law deference rests on the judge’s appreciation of statutory language. At step 1, courts are asked to apply the ordinary tools of statutory interpretation to determine if Congress spoke clearly on a particular matter. If so, that meaning binds the agency. If not, at step 2, if there is ambiguity in a statute, courts defer to a reasonable agency interpretation. As Justice Scalia said, a judge committed to the text at step 1 will rarely need to move to step 2. In this way, there would be less scope for agencies to exercise virtually unreviewable discretion. Those who believe that law runs out earlier will, ceterus paribus, be more willing to allow multiple decision-makers to come to very different decisions on a matter so long as those decisions are roughly justified by a statute.

The various points on the spectrum of “giving up on law” will be the product of many factors, including factors particular to cases before courts. But at some level, a belief that text can, or should, contain answers seems to undergird the entire process of determining the meaning of a statute. I think there are good reasons to hold the belief that what the legislature produces is generally sound for reasons that are particular to the legislative process and the law in question. To my mind, judges should be wary of letting text “run out,” in part because of what replaces it; more abstract, generally less clear “second-tier” sources of legislative meaning (Note: sometimes text will be truly unclear, and a statutory purpose can be clearly gleaned from the text. Our law sees no problem with this, and neither do I).

This is not to presuppose that legislatures always make sense in their enactments. The process of making law is not designed to be a perfect application of human rationality or even of expertise. Legislatures sometimes don’t make sense. But there are good reasons to respect the legislative process. Importantly, seemingly non-sensical legislative compromises, run through readings in Parliament and the committee process, are sometimes the product of concessions to minority groups, represented through their Members of Parliament. These legislative compromises are sometimes essential, and should be respected even if they do not make sense. Judge Easterbrook puts it well: “If this [an outcome of statutory interpretation] is unprincipled, it is the way of compromise. Law is a vector rather than an arrow. Especially when you see the hand of interest groups.”

If the legislative process is imperfect, so is the process of statutory interpretation. Statutory interpretation will not always yield easy answers, or even the ex ante “correct” answer. The tools of statutory interpretation are often contradictory, some say outmoded, and sometimes unwieldly. But as Judge Posner said in his book Reflections on Judging, the tools of statutory interpretation are designed to impose meaning. Used authentically and faithfully, with a concomitant belief in the legitimacy of the law passed by the legislature, they help courts come to a defensible conclusion on the meaning of a provision; one that is consonant with the universe of laws in the statute book, with the particular statute’s larger purposes, and the immediate context of a statute.

It worries me that some no longer belief in this process—in the formal quality of law as law, in the idea that when the legislature speaks, it does so for a reason. Similarly, I worry that the invitation for judges to rely on values and principles extraneous to a statute—for example, Charter values, legislative history, etc—to impose a meaning on a statute is based on wrongheaded idea that judicial discretion is somehow absolutely better than legislative power. I, for one, think that we should expect judges in a constitutional democracy to believe in the law passed by the legislature. This is not judicial acquiescence, but there is perhaps a value to formalism. Parliament, to be sure, does not always get everything right. But there is a benefit to formalism: the way in which Parliament passes laws is subject to a formal process, interposed with legislative study. The way we elect our leaders and the way Parliament operates is, in a way, formal. The law it creates should be owed respect by those sworn to uphold it.

The debate over rules versus standards or discretion is one that is rife throughout history. But presupposing the debate, I always thought, was a belief in law itself. For those of us at Runnymede this weekend, we were invited to question whether that belief exists any longer.

Doré Adrift

Why the Supreme Court’s approach to the Charter in the context of administrative law fails to live up to its promises

When Dunsmuir came out, I was in the middle of taking administrative law in law school.  Our class had spent hours learning about “patent unreasonableness”.  But when Dunsmuir abolished it, the professor was faced with a dilemma for the exam: forget patent unreasonableness or pretend that Dunsmuir never happened?

While our professor chose the latter, I imagine admin law professors hope the recent reconsideration of Dunsmuir cases in Bell/Vavilov/NFL (the “trilogy”) will be not be decided during the semester.  While Dunsmuir itself appears to have had a shelf life of about a decade, Doré v Barreau du Quebec, 2012 SCC 12 is approaching the seven year itch. Doré, of course, changed how Courts decide whether government actors violate the Charter. Doré seems safe for now, even as the amici curiae in the trilogy wish to rework it.  But given the lack of longevity to administrative law decisions and its many critics, there is an increasing sense that Doré could (or should) soon belong to the growing graveyard of administrative law jurisprudence.

But offering a eulogy would be premature.  Instead, enough time has passed to conclude that, thus far, Doré and its progeny have disappointed based on the very implicit promises and rationale contained in Doré itself.

Doré’s Path

As many readers are aware, the 2012 decision in Doré abandoned Oakes formal multi-stage proportionality test for assessing whether government action and actors (i.e., tribunals and other government delegates) comply with the Charter.  The Oakes test was the test used by the Supreme Court between the 1989 decision in Slaight and Multani in 2006.  Doré has since been followed by the Court in Loyola (2015) and the twin TWU decisions (2018). Oakes still applies to reviewing the constitutionality of legislation.

Under an Oakes review, a Court first assesses whether a government decision limited the Charter in the first place.  If so, it moves to the second step where the state has the onus to prove:

  • the government’s objective is pressing and substantial;
  • the decision is rationally connected to the objective(s);
  • the decision minimally impairs the affected rights; and
  • there is proportionality between the decision’s benefits and harmful effects. 

For all of Oakesshortcomings, it was applied rather rigorously in the recent Canadian citizenship case and has been hailed by the UK Supreme Court as the “clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning”.

Doré explicitly abandoned Oakes’ formal two-step approach in favour of a global assessment of whether:

“given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (para. 57).   

This loosely structured test is Doré’s “administrative law” approach to judicially reviewing government action.  Whereas the state has the onus to justify itself at each stage of Oakes, everything is “put on the scales” at once under Doré’s “more flexible” approach (paras. 36-37). 

Doré brought “Dunsmuir deference” to decision-makers’ decisions on Charter issues (paras. 36, 54-56; TWU, para. 79).  According to Dunsmuir, deference in judicially reviewing government action means that “courts will give due consideration to the determinations of decision makers” (para. 49) in deciding whether a decision “falls within a range of possible, acceptable outcomes” on a standard of reasonableness (para. 47).  In other words, a court will defer to a decision maker unless their decision is shown to be unreasonable and outside this acceptable range.  The alternative standard, correctness, means a court will take its own independent analysis of a decision, as it does with an Oakes review, and substitute its own view.

Doré’s Promises

Doré offered rationale and a number of promises to justify the break from Oakes.  This is a scorecard of how they have subsequently turned out:

1.The Expertise of Decision-makers.  The rationale in Doré for deferring to decision-makers on Charter issues is that, by virtue of their “expertise and specialization”, they will “generally” be in the best position to consider the Charteron the specific facts of the case” (paras. 47, 54; TWU, para. 79 (“typically”).  This suggests that some decisions don’t deserve deference. But this doesn’t appear to have held true.

One may have thought that the facts in TWU would challenge the supposed “distinct advantage that administrative bodies have in applying the Charter” (Doré, para. 48).  That is because in TWU, the administrative body applying the Charter, the Law Society of BC (“LSBC”), made its decision to bar TWU graduates from practicing law solely because of a popular vote of its membership.  This membership is what Chief Justice Bauman of the BC Court of Appeal facetiously referred to in oral argument as “the largest tribunal in British Columbia”.  While this decision was under judicial review, the LSBC itself conceded in its written submissions and in oral argument before the BCCA that the membership effectively made the decision.  Indeed, the referendum itself said the membership’s decision “will be binding and will be implemented by the Benchers”.  The lower courts unsurprisingly found this to be fettering by the LSBC “abdicating” its statutory duties. 

I had thought TWU would challenge the supposed “distinct advantage that administrative bodies have in applying the Charter” (Doré, para. 48).  In TWU, the Law Society of BC (“LSBC”) made its decision to bar TWU graduates from practicing law solely because of an affirmative vote of the membership.  This membership is what Chief Justice Bauman of the BC Court of Appeal facetiously referred to in oral argument as “the largest tribunal in British Columbia”.  The LSBC itself conceded in its written submissions and in oral argument before the BCCA that the membership effectively made the decision.  Indeed, the referendum itself said the membership’s decision “will be binding and will be implemented by the Benchers”.  The lower courts unsurprisingly found this to be fettering because the LSBC Benchers were “abdicating” its statutory duties to make a decision by independently considering the Charter

On this factual background, the dissenters in TWU, Justices Brown and Côté, sensibly stated that the “LSBC membership could never, through means of a referendum, engage in the balancing process required by Doré” (para. 298). However, the majority of the Supreme Court were forced to downplay the membership vote as being mere “guidance or support” (para. 50) in order to defer to LSBC’s “institutional expertise” (para. 50) and by extension the rationale for deference in Doré

But what kind of expertise did the majority require of the LSBC to justify any deference to it?  Surprisingly, the majority said the LSBC only had to be “alive to the [Charter] issues” (paras. 51-56).  Being “alive” suggests, perhaps, that deference is deserved for decision-makers who don’t drop dead before rendering a decision.

In assessing the rationale for deference in Doré, one must critically consider: what “expertise” and “specialization” did the membership of the LSBC bring?  Or the Benchers, who merely adopted the membership’s will?  Remarkably, the majority in TWU still deferred to the LSBC in spite of the LSBC urging the Supreme Court of Canada not to defer to them and apply a correctness standard instead.

In sum, when the rationale for deference is absent – expertise, specialization, and proximity of the facts to the Charter – deference still apparently applies in a Doré review.  It may be time to reconsider this.

2.Doctrinal Coherence.  One justification for discarding the Oakes framework established in Slaight was that Doré would lay down a new, solid legal foundation on which to construct coherent doctrine (paras. 35-39).  Doré itself said its administrative law approach was employed in cases such as Baker and TWU (2001).

If Doré’s goal was “to start from ground zero in building coherence in public law”, as the decision itself suggested (para. 34), the commentary on Doré cast significant doubt on its methodology and doctrine (calling E.T. v. Hamilton-Wentworth District School Board and Justice Stratas).  Almost seven years later, we still don’t know the basics about applying Doré in practice.  The majority of the Court has remained silent on a litany of criticisms of Doré (see point #4 below) – including ones made by members of the Court itself – having to do with the distinction between Charter values and Charter rights, the absence of the “prescribed by law” requirement in s. 1 of the Charter, and the identification of who bears the onus to prove proportionality under Doré.  (an interesting fact is that the Attorney General of Canada argued in the lower level courts in BC that the LSBC decision could not pass the “prescribed by law” requirement).

And while Doré suggests a court defer to a decision-maker’s own identification of the relevant statutory objective against the Charter (paras. 55-57), that approach was not followed in Loyola and TWU.  This departure has never been explained. The lack of clarity and consistency that Doré was supposed to remedy have caused new frustrations for lawyers and judges alike (again, see #4 below). 

I will add two thoughts.  First, a Doré review seems doctrinally flawed that a Court would defer to the state on whether the state has properly balanced the relevant Charter protections.  Why should the state get the first crack in deciding whether its own actions violate the Charter?  This deference gives the state a distinct advantage over Canadians whose rights are limited by effectively putting the onus on applicants to prove why the state is not owed deference (i.e., why it did not balance the Charter properly). This effectively reverses the onus in Oakes and deprives the Charter of its overarching purpose as a shield against the state. 

One wonders whether there is a principled limit to this reasoning.  If a government delegate is accorded deference to their decision, because of their “expertise and specialization” and familiarity with the Charter (Doré, para. 47), why should this not, in principle, extend to discretionary decisions of other government actors with expertise and specialization such as police officers or border agents whose actions are currently reviewed according to objective tests?  What is the principled reason that they are not afforded deference when the Court decides whether a detention violates s. 9 of the Charter, or their search engages s. 8 of the Charter, which protects against “unreasonable” searches? 

If the scenario seems absurd, consider that courts in BC have directly reviewed police decisions in issuing roadside prohibitions under Dunsmuir deference (!!).  If a Charter issue arose in such a case, “Doré deference” to the police officer’s decision would presumably apply.  In this way, Doré review could potentially erode Charter protections in contexts likely not anticipated by Doré.

Second, taking that dichotomy further, if legislative decisions by decision-makers are reviewed for Charter compliance under the test in Doré, as suggested by the majority in TWU (i.e., the LSBC benchers) (para. 54), what is the principled reason for utilizing Oakes, and not Doré, to review the constitutionality of legislation? 

If the answer is that rules of general application like legislation and regulations should be assessed under the more stringent Oakes standard, this has problematic consequences for the way government operates. The existence of Doré review for government actions means the government has an incentive to structure their power to confer broad discretion to govern opaquely by action, not regulations, so that those actions are reviewed under the deferential Doré review, rather than with the more stringent justification demanded by Oakes.  In other words, the mere existence of a Doré review provides an incentive for the state to provide its actors with Doré deference rather than an Oakes review (e.g., direct judicial review of the police issuing roadside prohibitions).

The different levels of Charter protection Canadians have against government actors means there is a hierarchy of rights protection depending on the identity of the state actor.  It also means there are increasing ways for the state to exploit that hierarchy as there is little incentive for the state to govern transparently or decision-makers to provide reasons when it can deferentially operate under an administrative apparatus free from an Oakes review.

3.An administrative law approach to the Charter should prevail.  This was the main promise of Doré: that Courts “embrace a richer conception of administrative law” by allowing a flexible approach that would be “nurtured” by the Charter (paras. 27-29, 37, 47).

Doré itself was criticised for failing to apply administrative law to critically engage in the reasons of the decision-maker. In Loyola, the Court moved back towards Oakes. It clarified that the Doré test incorporated the minimal impairment test (paras. 4, 41).  In practice, however, the government in Loyola failed the pressing and substantial/rational connection stages in Oakes (without referring to Oakes) in concluding that the decision failed to advance the ERC Program’s objectives in any significant way (paras. 6, 68, 148, 159).   The majority of the Court mystifyingly ignored applying Doré altogether in Saguenay, Justice Counsel, and Ktunaxa.

In TWU, and without citing a single case on the concept, the majority appeared to undermine the well-settled administrative law prohibition of fettering to achieve its result.  The administrative law professor must wonder: what does fettering mean anymore in light of TWU? (If you are one such professor, I would be keen to hear your thoughts). On the other hand, the majority in TWU borrowed from some of its recent administrative law decisions, while ignoring others, to justify the LSBC’s failure to provide reasons and provide post-facto justifications for its decision. 

And as noted by Mark Mancini, the simplicity of Doré was complicated by the subsequent decisions in Loyola, Ktunaxa,and TWU by introducing the threshold question of Oakes as to whether the Charter is limited in the first place. While this is a welcome development, the return of the two stage limitation/justification assessment is another shift toward Oakes (Doré, para. 29).

If practice makes perfect, the applications (or lack thereof) of Doré in Loyola, Saguenay, and TWU are underwhelming in terms of modelling an approach to judges and lawyers that infuses administrative law principles into its decisions.  The more Doré is applied, the more it is applied in a complicated manner.  The touted “flexibility” of Doré can be used to incorporate administrative law in theory, but it can also legitimize judicial preferences in practice.

4.Using Oakes for Administrative Law was Consistently CriticizedDoré justified abandoning Oakes because a few academics were “concerned” by Slaight, and academics were allegedly “consistently critical” of Multani, the last SCC decision that applied Oakes (paras. 27, 33-34). 

By comparison to Multani, Doré’s critics are legion.  In a similar six year time period, Doré has sustained an avalanche of academic criticism easily eclipsing Multani’s use of Oakes. Doré was mentioned unfavourably more than any other Supreme Court of Canada decision in Double Aspect’s “Twelve Days of Christmas” symposium (here, here, here, and here).  Doré been the subject of surprisingly candid criticism from appellate court judges.  In the twin TWU cases, four justices expressed concerns with Doré in response to TWU’s calls to fix Doré.  Justices Brown and Côté offered the stinging criticism that Doré “betrays the promise of our Constitution” (para. 266). 

To use a football analogy, will the Court continue to call seemingly ineffective passing plays when the crowd is screaming for them to run the ball?  Perhaps not, but with each passing decision of the Court, Doré’s critics are growing louder.

Conclusion

Judged on its own terms, Doré is struggling to achieve its vision.  This vision, however, comes at a cost to ordinary Canadians whose rights may be limited.  Given the never-ending construction project that is administrative law in Canada, practitioners “are placed in an impossible situation”.  The lack of clarity, varying simplicity, and unpredictability in a Doré review means lawyers are unable to effectively advise clients because they must speculate as to the possible outcome. Clients are left with uncertainty. If Doré stays on life-support, one wonders: who is being served by keeping Doré alive?

Maryniuk on Doré

The Supreme Court’s decision in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 continues to be one of its most consistently criticized. It was, for instance, one of the most frequently mentioned as being among the Court’s worst by the participants in our recent 12 Days of Christmas symposium. Even more recently, Doré and the concept of “Charter values” as the touchstone of judicial review of administrative decisions implicating the Canadian Charter of Rights and Freedoms was the subject of a fascinating discussion between Justices Lauwers and Sossin, expertly moderated by co-blogger Mark Mancini, at this weekend’s Runnymede Conference.

So it is a real pleasure for me to announce that we are shortly going to publish a guest post on Doré by Jonathan Maryniuk, a lawyer with Kuhn LLP who, among other things, represented Trinity Western University in its challenge the denial of accreditation to their proposed law school before the courts in British Columbia and the Supreme Court. This has, of course, given Mr. Maryniuk an opportunity to reflect a great deal on the Doré approach, which was crucial in that litigation, and I am very much looking forward to his sharing his insights with us.

Doing Right on Rights

Why the Supreme Court was right to find the disenfranchisement of Canadians abroad unconstitutional

In my last post, I summarized the majority, concurring, and dissenting opinions delivered in Frank v Canada (Attorney General), 2019 SCC 1, which held that the denial of the franchise to Canadians who have resided outside the country for more than five years is unconstitutional. As noted there, I believe that the majority, whose opinion was delivered by Chief Justice Wagner was correct so to hold. In this post, I explain why, and also make some observations about the strongly-worded dissent by Justices Côté and Brown. To make my biases clear once again, I remind readers that I am a Canadian abroad myself, and have been for six of the past eight years. While I vote rarely and reluctantly, I am emotionally invested in the issue of whether my right to do so can be taken away. Feel free to discount the following accordingly.


While I am the subject of emotions, let me say this. Justices Côté and Brown assert that the denial of the right to vote to Canadians abroad “is not a distinction based on moral worth”. [168] By my lights, that’s precisely what it is. On their own view, it is the product of “normative conceptions of what the Canadian political community is, and how it can best be protected and made to flourish”. [139] The conception embraced by Parliament in enacting the provisions invalidated in Frank sees the Canadian political community as excluding Canadians abroad, who are consequently less worthy of the franchise. Indeed, they are, according to the dissent, a threat from which the community must be protected, since it is “unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district”. [153]

This is utterly wrong. As the Chief Justice rightly observes, many Canadians who live abroad maintain strong ties with Canada (and, I would add, often with the local community where they used to live and, in many cases, intend to return). As the Chief Justice also says, “[c]onversely, there may be citizens who have never left Canada but whose subjective commitment to the country is much weaker and who are less well versed in local issues”. [68] Indeed, though it would be impolitic for a judge to say so, “may be” in this sentence should read “obviously are”. As, for example, Ilya Somin and Bryan Caplan respectively have shown, voters are both ignorant and irrational ― rationally so, but ignorant and irrational all the same. Yet we would not generally accept disenfranchising voters on that basis; we do not inquire into the degree of connection a voter has with his or her local community, or the country, before issuing him or her a ballot paper. It is only, it seems, in the case of expatriates that these things actually matter. To me, this is strong evidence that what is at work here is not really a concern with the fairness or integrity of Canada’s electoral system, but a judgment, or rather prejudice, about the moral worth of those Canadians who are taken to have left the community, and must “rejoin[]” [153] before being allowed to take part in the community’s affairs.

Now, it is true that most Canadians abroad do not, in fact, go to the hassle and the expense of requesting a special ballot and returning it to Elections Canada. This means, of course, that the idea of non-resident voters swamping elections and deciding them at the expense of residents is far-fetched if not entirely implausible. But more importantly, as the Chief Justice points out, this means that those who do take the trouble value their involvement in Canada’s political life ― probably more so than a great many of their resident fellow-citizens. In the Chief Justice’s words, they “demonstrate[] a profound attachment to Canada”, [75] and it seems absurd to pretend otherwise on the basis of no evidence whatsoever.


This brings me to another issue: that of the correct approach to deciding whether legislation is unconstitutional because it unjustifiably contravenes the Canadian Charter of Rights and Freedoms. Justices Côté and Brown issue what they regard as a profound challenge to the way we not only discuss but also think about the relationship between Charter rights and policies that interfere with them. They note that it is commonplace to speak of such policies as “infringing” or even “violating” rights, only for these “infringements” or “violations” to be upheld, or “saved” by applying section 1 of the Charter. Yet, as they further point out, section 1 provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” ― limits, not infringements or violations. So we should stop talking about justified infringements, and talk about limits instead. The majority is not interested, observing that the words “limits” and “infringements” have long been used interchangeably. (The Chief Justice is probably too polite to note this, but I am not: Justices Côté and Brown themselves spoke in terms of “infringement” as recently as seven months ago, in their excellent dissent in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.)

I take the dissent’s textual point. The word section 1 uses is “limits”, and it arguably makes more sense to say that the state can justifiably limit rights, not that it can violate them. But I fail to see what great change to the way we actually think about rights and scrutinize the state’s possible interference with them follows from this. Contrary to some, indeed quite a few, of the participants in this blog’s recent 12 Days of Christmas symposium, Justices Côté and Brown show no interest in reconsidering the test for verifying the permissibility of limitations on rights that was first set out in R v Oakes, [1986] 1 SCR 103. They apply the same proportionality analysis, warts, subjectivity, and all, under the label of assessing the “limit” on the right to vote as the majority does when considering “infringement” of this right. They have much to say about the fact that the right to vote is a “positive” one, requiring legislation to “breathe[] life into” it, [142] but that it is true of many of the rights the Charter protects (notably, but by no means only, the various rights of criminal suspects and accused) and, more importantly, it simply does not follow that the legislation that “breathes life into the right” may not fail to do so to a constitutionally required standard. (Similarly, Justices Côté and Brown point out that the legislation imposing a five-year expiry period on expatriates’ franchise replaced that which gave no expatriates the vote. So what? The test of constitutionality is not whether Parliament comes closer to respecting the Charter than it once did, but whether it respects the Charter now.)

The real methodological disagreement between the dissent and the majority (as well as Justice Rowe’s concurrence) has to do with the level of deference each accords Parliament. The majority insists, at the outset, that “[a]ny limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification”. [1] Although, as noted in yesterday’s post, it later wavers a little on this point, its approach is, indeed, one that refuses to take the government’s claims about the need for or usefulness of the legislation it examines on faith. By contrast, the dissent waxes deferential, “eschews rigid and technical application” [124] ― it’s not quite clear of what, but presumably of the justification requirements ―, and plays up “Parliament’s policy-making expertise”. [126]

Yet here the dissenters’ professed textualism fails them. To repeat, section 1 of the Charter says that “only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis mine) can be countenanced. The constitutional text, therefore, requires a demonstration ― not judicial acquiescence on the basis that Parliament knows best. And this requirement, in turn, suggests that contrary to what Justices Côté and Brown say Charter rights can only be limited in order to deal with an identifiable problem, to address some specified mischief, and not merely because a legislature thinks that in an ideal political community these rights would be limited in this way. The enactment of the Charter, as a law superior to ordinary legislation, has taken that moral judgment out of the Canadian legislatures’ hands. (To be clear, this is a separate question from that of the permissibility of what used to be called “morals legislation”, which proscribes what the legislature sees as immoral behaviour, such as taking drugs. There is no argument that expatriates act immorally by voting.)

In short, by all means, let’s be careful with our language, and speak of reasonable limits on rights instead justified violations. But let’s also insist that limitations on rights, to qualify as reasonable, must be ones whose justification is capable of being demonstrated, rather than merely asserted, and is in fact demonstrated, rather than taken for granted. Indeed, I think that this substantive concern is rather more important than the semantic one. In Frank, it is the majority, not the dissent, that follows an approach that is closer to that required by the constitution.


In my view, the majority decided Frank more or less as it should have. It correctly insisted that any exclusion from the franchise except the one based on citizenship must be justified. Contrary to the dissent’s strident warnings, it does not follow that no exclusions could ever treated as reasonable limits ― only that the justification process for upholding these limits cannot be elided by saying that some limits on the right to vote must obviously be admissible. This goes even for the denial of the right to vote minors (which, as Ilya Somin, for example, has argued, is not as self-evidently reasonable as the dissenters would like us to think). I think that it would be quite easy to sustain the disenfranchisement of three-year-olds, the dissent’s scaremongering example, should anyone challenge it; but as for the denial of the vote to teenagers, I for one wouldn’t mind seeing the governments put through their justificatory paces.

The majority is also right to be skeptical of the government’s arguments based on an ill-defined “social contract” of which expatriates are allegedly no part. I’m not too impressed with the Chief Justice’s definition of Parliament’s objective in terms of “fairness” ― fairness is too capacious a word for my liking, and the dissent’s suggestion that Parliament was pursuing a currency of relationship between the voter and his or her community seems closer to the mark. But one should also acknowledge that objectives that are largely symbolic (or, as Justices Côté and Brown see it, moral) do not lend themselves to easy definition, and so inevitably compromise the quality of the Charter analysis. The majority’s skepticism about the existence of a rational connection between the objective of fairness and disenfranchisement of Canadians abroad is also warranted. Indeed, I would have liked the Chief Justice to have been bold enough to say that, given both the possibility that expatriates maintain current links with Canada and their Canadian communities, and the lack of any assessment of whether any other voters do so, disenfranchising expatriates alone based on their deemed lack of connection to Canada is actually irrational. But the Chief Justice is not the first judge not to want to go there.

I’ll live with that, because the Chief Justice ends up making the right arguments at the “minimal impairment” stage of the analysis. Like I had in criticizing the decision of the Court of Appeal for Ontario in this case, he points out that Canadians abroad can and do maintain close links with Canada; that they are affected by Canadian laws and government policies; that, moreover, “Parliament can change laws on its own initiative and thus alter the extent to which Canadian legislation applies to non-resident citizens”, [72] so that one cannot invoke the limited scope of current extra-territorial legislation to deny expatriates the vote ― I had called this “let[ting] the statutory tail wag the constitutional dog”; and that in any event “attempting to tailor Charter rights to the extent to which citizens are burdened, or not burdened, by Canadian laws would be an impossible exercise”. [71] If all this is not enough to qualify the disenfranchisement of expatriates as irrational, than it certainly suffices, as the Chief Justice says, to show that it is grossly overbroad, and not “minimally impairing” of the right to vote.

The Chief Justice’s reasons are not perfect. He does, as the dissent points out, get somewhat carried away in patriotic praise for the Canadian democracy, and there are shades of what I’ve been calling “constitutionalism from the cave” in his claim that “a broad interpretation of” the Charter‘s guarantee of the right to vote “enhances the quality of our democracy and strengthens the values on which our free and democratic state is premised”. [27] Constitutional interpretation must aim at ascertaining the text’s meaning, not at strengthening values or anything of the sort. Still, what the Chief Justice’s opinion for the majority does is substantially in line with the constitutional text, despite its rhetorical imperfections. (And still on the subject of rhetoric, or style: can someone please ask the Chief Justice and his colleagues to stop using the initialism “AGC”? It is a recent innovation ― the Court hadn’t done it at all before 2010 ― and not a good one. It is ugly and has a jargon-y feel that is quite at odds with the Chief Justice’s stated desire to make the Court’s work more accessible, including to laypersons.) But as majority opinions of Supreme Court have gone in the last few years, the one in Frank is up there with the best.


The Supreme Court has held that Canadians who live abroad cannot be disenfranchised based on, in effect, stereotypes about their lack of relationship with their home country. This is a relief. In doing so, it has insisted on carefully and critically examining the government’s claimed reasons for limiting Charter rights, and this is a good thing too, one that doesn’t happen often enough. There is something to learn from the dissenting opinion, too, about our constitutional vocabulary, and I hope that this lesson is not lost just because the substance of that opinion is bitterly disappointing. But the constitution was upheld in Frank, and so right was done. May 2019 bring more of that.

“A Profound Attachment”

The Supreme Court holds that disenfranchising Canadians abroad is unconstitutional

Yesterday, the Supreme Court at last delivered its judgment on the constitutionality of disenfranchising Canadians abroad, Frank v Canada (Attorney General), 2019 SCC 1. By five votes to two, the Court holds that disenfranchisement is indeed unconstitutional. This is, as I have long argued (especially in criticizing the decision to the contrary by the Court of Appeal for Ontario), the right result. Full disclosure, in case this is necessary: I am myself a Canadian abroad, and while I would not have been disenfranchised at the coming election under the rules the Supreme Court has found unconstitutional, and am only an occasional and reluctant voter anyway, I am emotionally invested in this issue.

Section 3 of the Canadian Charter of Rights and Freedoms provides that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The Canada Elections Act sets out the details of how this right can be exercised ― and denies it to some groups of citizens. One of these disenfranchised groups consists of Canadians who have not resided in Canada for more than five years, although those who are representatives of a Canadian government or members of the Canadian forces, as well as members of such persons’ families, are not subject to disenfranchisement.

The government conceded that denying their right to vote breached section 3 of the Charter, but contended that the breach was justified as a reasonable limit authorized by the Charter‘s section 1. The majority ― Chief Justice Wagner (who wrote the majority opinion) and Justices Moldaver, Karakatsanis, and Gascon ―, as well as Justice Rowe, who concurs, reject this view. In dissent, Justices Côté and Brown say that the denial of the franchise to Canadians abroad is justified.


Relying on the Court’s decision in Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which invalidated the disenfranchisement of long-term prisoners, the Chief Justice writes that the right to vote must be given a “broad and purposive interpretation”, and “any intrusions on [it] are to be reviewed on the basis of a stringent justification standard”. [25] The Chief Justice rejects deference to Parliament, insisting that “reviewing courts must examine the government’s proffered justification carefully and rigorously”. [43] Unlike in cases that involve “complex” or “nuanced” choices among competing priorities, deference “is not the appropriate posture for a court reviewing an absolute prohibition of a core democratic right”. [44] Later, however, when considering whether the prohibition is “minimally impairing” of the right, the Chief Justice grants that “some deference must be accorded to the legislature by giving it a certain latitude”. [66]

As for residency requirements for voting, they are “an organizing mechanism”, “an important device” [28] that helps structure our electoral system, but have no constitutional value in themselves: “In clear language, the Charter tethers voting rights to citizenship, and citizenship alone.” [29] In any case, there already are Canadian citizens who are allowed to vote from abroad, suggesting that residence within cannot be an implicit pre-condition for having the right to vote.

Applying the test for the justification of Charter infringements set out in R v Oakes, [1986] 1 SCR 103, the Chief Justice begins by rejecting the idea, accepted by the Ontario Court of Appeal, that “preserving the social contract” whereby citizens’ obedience to laws is exchanged for a say in making them as a pressing and substantial objective capable of justifying the infringement of rights. While Sauvé had invoked the language of social contract theory, correctly understood, it stands for the proposition “that deeming that a citizen has ‘withdrawn’ from the social contract is not a legitimate basis for denying him or her the right to vote”. [52] However, the Chief Justice accepts that “maintaining the fairness of the electoral system to resident Canadians”, [55] which he seems to interpret by focusing on the existence of a connection between voters and the Canadian polity, is an important governmental objective.

At the second stage of the Oakes test, Justice Wagner finds that the government “has not definitively shown that a limit of any duration” on the ability of Canadians to vote from abroad “would be rationally connected to the electoral fairness objective advanced in this case”, [60; emphasis in the original] but declines to reach a firm conclusion. He argues, however, that neither the existence of residence requirements for voting in provincial elections nor the prevalence of such requirements abroad make their imposition by Parliament rational, and observers that “there is no evidence of the harm that these voting restrictions are meant to address”, [63] or even any complaints about those non-resident citizens who already are able to vote.

As often, it is the next stage, originally described as that of “minimal impairment” although the word “minimal” has not been taken literally, that is crucial. The Chief Justice finds that disenfranchising Canadians after five years abroad, “[f]ar from being a measure that is carefully tailored so as to impair voting rights no more than is reasonably necessary, … seems to have been simply a ‘middle-of-the-road’ compromise”. [67] There is no “correlation between, on the one hand, how long a Canadian citizen has lived abroad and when he or she intends to return and, on the other hand, the extent of his or her subjective commitment to Canada”. [68] Indeed, whether the issue is knowledge of and commitment to Canada, the impact of Canadian laws on a given voter, many Canadians abroad will be better qualified as voters than those residing in the country. Chief Justice Wagner concludes by noting that “[a] non-resident citizen who takes the trouble to vote by way of special ballot … has demonstrated a profound attachment to Canada. We have nothing to gain from disenfranchising such citizens.” [75] In the same vein, he notes that any positive effects of this disenfranchisement are speculative, while the negative impact on those disenfranchised is real and present.


Justice Rowe agrees that disenfranchising Canadians who live abroad is unjustified, but writes separately to emphasize the “significance and centrality of residence to our system of representative democracy”. [84] He details the history of residency requirements in Canadian election legislation (including the slow expansion of voting rights for Canadians abroad), and pointedly rebukes the majority by claiming that “residence has been historically and remains today more than just an ‘organizing mechanism’. It is foundational to our system”. [90] As a result, Justice Rowe says, while “[s]ection 3 [of the Charter] protects the right to vote … it does not follow as a corollary that there is a right to vote in the constituency or province of one’s choosing”. [91] Provincial and territorial residency requirements, in particular, would be subject to different considerations than federal ones (including because provincial laws are more local in nature and applicability than federal ones).

Whatever might be justifiable in other cases, however, Justice Rowe concludes that the disenfranchisement of long-term expatriates is not. He accepts that it pursues the objective of electoral fairness, although he notes that fairness for resident citizens is being pursued at the expense of non-residents. Justice Rowe also accepts that fairness can reasonably be pursued by preventing “those who are largely unaffected (non-residents) [from] participating in decisions that would affect others (residents)”. [103] Passing over the question of whether the disenfranchisement of Canadians abroad is minimally impairing of their right to vote, he moves on to the balancing of its salutary and deleterious effects. The former, he finds, are “negligible”, [106] since very few expatriates actually vote. The latter are not. Expatriates who are disenfranchised “may not feel the local consequences of particular federal policies in the constituencies in which their votes would be counted, [but] they stand nonetheless to be affected by certain federal laws and policies, perhaps in life altering ways”. [107] As a result, the disenfranchisement of Canadians abroad is not justified.


Justices Côté and Brown dissent. They not only disagree with the outcome reached by the majority and Justice Rowe, but want to approach the issue quite differently. They stress that the right to vote “is a positive right which, unlike most Charter rights, requires legislative specification in order for the right to be operative”, [113; emphasis in the original] so that the denial of the franchise to expatriates is not the product of legislative action, but of a “failure to extend the right to vote” to them. [128] This right is also not absolute: “Nobody suggests that s[ection] 3 entitles three-year-old Canadian citizens to vote.” [114] Indeed, they deny that the legislative provisions at issue “disenfranchise” long-term expatriates, since they had not been allowed prior to these provisions’ enactment, or ever. They also accuse the majority (and, implicitly, any number of past judgments) of “distort[ing] the limitations analysis” [120] by speaking of a “breach” or “infringement” of the right to vote rather than of a “limitation” on this right, as the terms of section 1 of the Charter would suggest. (A breach, they insist, is caused by a limitation that is not justified.)

Thus the real question, Justice Côté and Brown argue, is whether the long-term expatriates’ right to vote has been reasonably limited. The way to answer this question is to apply the Oakes test. However, while they make a point of agreeing with the majority that the burden of justification under this test rests on the government, Justices Côté and Brown insist, citing the dissenting opinion in Sauvé (without acknowledging that they are relying on the dissent) on “a ‘flexible contextual approach’ … one that eschews rigid and technical application”. [124, citing Sauvé at [84]] They also argue that it is wrong to look for “a concrete problem or mischief” that rights-limiting legislation is meant to address, because it is “undeniable … that Parliament can constitutionally legislate in pursuit of, or in response to, considerations of political morality or philosophy”. [126] There is “moral nuance inherent in defining and defending the boundaries of rights — that is, in justifying rights limitations” — and, like “Parliament’s policy-making expertise”, it must be “afford[ed] due respect”. [126]

Justices Côté and Brown define Parliament’s objective as “privileg[ing] a relationship of some currency between electors and the communities in which they are eligible to vote”. [132] (In doing so, they spend four extensive paragraphs cautioning against reliance on statements by individual legislators during the course of parliamentary debate… and conclude by pointing to statements that support their understanding of the objective.) This objective “is clearly inspired by a particular moral philosophical understanding of the relationship between citizen and state in a democracy”. [140] Indeed, electoral “legislation is never designed to solve a problem or address a particular mischief. Rather, it breathes life into the right [to vote] so that it may be recognized and exercised.” [142] While limitations on the right to vote require justification, Justices Côté and Brown attack the majority for considering that, other than citizenship, “all other specifications [of this right] are necessarily unconstitutional”. [142] Justices Côté and Brown note that other groups are excluded from the franchise ― they mention citizens who have never resided in Canada and minors ― and argue that these exclusions too must be regarded as examples of Parliament’s permissible pursuit of philosophical objectives. Indeed, they say, majorities in Sauvé and here have acted in furtherance of philosophical views of their own.

Ultimately, ensuring a current relationship between voters and their communities is a pressing and substantial objective because it “ensures reciprocity between exercising the right to vote and bearing the burden of Canadian laws” [152] and “protects the integrity of the Canadian electoral system, which is founded on geographical representation”. [153] This integrity would be undermined by allowing people to vote in constituencies with which they lack a community of interest.

Justices Côté and Brown also consider that the limitation of the right to vote from abroad to those citizens who have not been outside Canada for more than five years is reasonable and therefore proportionate to Parliament’s objective. They insist that, under the majority’s reasoning, no time limit on voting rights could be upheld, including for provincial elections. They add that the majority is wrong to ignore the treatment of expatriates’ voting rights by New Zealand, Australia, and the United Kingdom: “the majority’s patriotism risks descending into exceptionalism”, and blinding it to “some lessons” that “Canada would well have taken … from other countries” [166] (or at any rate from New Zealand, which enfranchised its aboriginal people and women well before Canada did). Indeed, the majority’s position is “highly political, rhetorical”, and “in tension with the majority’s own invocation of internationalism and of a ‘globalized’ world of connectivity and communication”. [167] As for the effects of the legislation, the deleterious ones are minimized since the denial of expatriates’ voting rights “is not … based on moral worth”, [168] while the salutary ones ― which consist in the attainment of Parliament’s objectives ― are considerable.


As I noted at the outset, I believe that the majority is correct (though Justice Rowe makes some valuable points about provinces and territories). The dissent, I confess, perplexes me. But this post is much too long as it is. I shall publish my comment separately ― and quickly, I hope.

John Finnis and the Law Society

Would the Law Society of Ontario punish a scholar for failing to promote equality, diversity, and inclusion? What about those who defended such a scholar’s academic freedom?

One of the less appreciated issues with the Law Society of Ontario’s demand that its members produce “statements of principles” acknowledging a purported “obligation to promote equality, diversity and inclusion generally, and in [one’s] behaviour towards colleagues, employees, clients and the public” is that it is inimical to academic freedom and the freedom of expression of scholars. This problem is neatly illustrated, however, by the story of the latest attack on an academic who happens to dissent from politically correct views.

The academic in question is John Finnis, “a giant of jurisprudence” in the words of Jeremy Waldron, another such giant himself. Robert George has posted a fairly detailed review of Finnis’s oeuvre (drawn from published work) over at Mirror of Justice (detailed, but still incomplete ― there is, understandably, no mention there of the not insignificant role Professor Finnis played in the patriation of the Canadian constitution; fortunately, he has told the story himself). But the most important point for the present purposes is elided in Professor George’s description: as Brian Leiter put it on his blog, Professor Finnis “has written foolish and sometimes quite ugly things about gay people for years”. And so, as the Guardian reports, “[m]ore than 400 people have signed a petition calling for [Professor] Finnis to be removed from teaching”. Now, there is no allegation that Professor Finnis has actually discriminated against a specific student. The complaint is based entirely on his scholarship which, however distasteful one might find it, is widely regarded as formidable and important ― if also, in many people’s view, profoundly misguided.

Being a generally acknowledged giant and not just an unknown graduate student who can be bullied into submission or chased out of the academy without anyone paying attention, Professor Finnis has been defended by other prominent scholars. Les Green, writing at his blog Semper Viridis, points out that “[t]o fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom”. Professor Leiter use stronger language, writing that the students demanding to be got rid of Professor Finnis “disgrace themselves and their university”. Professor Waldron put it best:

The campaign to have John Finnis removed is preposterous. His views on many things-torture, assisted suicide, sexuality-are uncongenial to some of us … . But defending & elaborating those views doesn’t amount to discrimination[.]

I agree with all this (and, just for the record, I also find Professor Finnis’s views on many things uncongenial, to put it mildly). And so, to come back to the reason for this post, I have a couple of questions for the Law Society of Ontario.

First, if Professor Finnis were a member, would you disbar him? Now, I suspect that he would not in fact conform to the Statement of Principles requirement, much like I and many others, and you’d go after him for that. But suppose he’d ticked the box through oversight. I think it’s fair to say that, whatever their scholarly qualities and interest as an intellectual foil, Professor Finnis’s writings don’t do much for equality, diversity, and inclusion. Would you sanction him for failing to promote these values? Do you think this is compatible with his academic freedom?

And second, what would you make of people like Professors Leiter, Waldron, and Green, assuming that they had not objected to the Statement of Principles requirement? Would you deem speaking out in defence of the academic freedom of a scholar whose work opposes (certain kinds of) equality, diversity, and inclusion a violation of one’s Statement of Principles commitments? After all, if one understands equality, diversity, and inclusion along demographic rather than intellectual lines, as you pretty obviously do, it is at least arguable that defending a scholar with Professor Finnis’s views opposes rather than promotes them. Would you sanction scholars who undertake such a defence because they conclude that, in this instance, academic freedom is a more pressing concern than equality, diversity, and inclusion, on the basis that they fail to “promote” them “generally”? Do you think that would be compatible with academic freedom?

The law society might, I suppose, point to its now-mostly anodyne explanation of what the Statement of Principles requirement is supposedly about, which is largely about complying with anti-discrimination legislation and of no real relevance to academics. Yet the explanation is not the requirement. It has replaced a previous version that spoke of “demonstrat[ing] personal valuing of equality, diversity and inclusion”… and might again be replaced by something that would actually make sense of the never-retracted demand that lawyers ― including lawyers who are academics rather than practitioners ― “promote equality, diversity and inclusion generally”, and not only within their professional relationships with clients, employees, and the like.

In New Zealand, universities are required ― by statute ― to “to develop intellectual independence” in their students, and to “accept a role as critic and conscience of society”. A different provision “declare[s] to be the intention of Parliament … that academic freedom … be preserved and enhanced”, which includes “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. I’m not sure if there is an equivalent legislative framework in Ontario, but at any rate these seem to me to be sound moral guidelines ― principles to abide by, if you like ― for any free society that values learning and scholarship. I’d say that, for an institution that is statutorily required “to protect the public interest”, the Law Society of Ontario shows very little respect indeed for the fact that the public interest requires the existence of people and institutions capable of independent thought, however far astray they may sometimes go in the process of exercising this faculty.

The Canadian Legal Mandarinate

Why we ran the 12 Days of Christmas symposium

On behalf of Leonid and I, I’d like to thank all of our readers for their interest in our recent 12 Days of Christmas symposium, which featured contributions from scholars on their five least favourite Supreme Court cases of the last fifty years. What started as a festive and fun holiday feature has made, I think, a much broader point: rather than glowing coverage of what the Supreme Court does, there is an audience and a need for more biting, critical commentary in Canadian law.

I say this because a not-infrequent response to our symposium asked why we needed to be so pessimistic. Why not ask people for their favourite Supreme Court cases? Doesn’t the world need more positivity?

Maybe it does, but I’m not sure there is a lack of it towards the Supreme Court in Canadian law. Of course, I don’t have empirical evidence to show that Canadian scholars are too deferential towards the Supreme Court and its judges. But it is interesting why our symposium struck a chord in the first place.   Over on profsblawg, Paul Horwitz explains why this might be. Horwitz received his law degree in Canada (University of Toronto), and notes that he practiced and published there as well. It’s worth reproducing a large part of what he said about his impressions of Canadian legal academic culture. It isn’t good:

 

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers.

[…]

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal–faculty-run and peer-reviewed, as most of them are–and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

[…]

If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country’s “national values.”

This a powerful anecdotal account of how Canadians tend to react to those in judicial authority, and in response to those who do engage in critical analysis. Speaking for myself, I am unsurprised by Horwitz’s comments after writing this post on the reaction to Justice Abella’s comments about the role of the Supreme Court as the definitive font of authority on “Canadian values.” Many argued that Leonid and I went too far by drawing particular attention to Justice Abella’s specific comments. Others suggested that we should always tread carefully when criticizing judges, that we should always presume good-faith, and that we should speak about decisions and institutions rather than personalities.

As I’ve said before, if judges are going to assume the mantle of constitutional guardians, we all have the right (and the duty) to monitor their decisions. Given the heightened role that court has arrogated to itself, I see no quarrel with concerning ourselves with what the judges think and say, as well. But this isn’t strictly the point. Instead, it is enough to say that we already do a lot of celebrating of judges and judicial decisions in Canada. There was, of course, the rather drawn-out farewell tour for Chief Justice McLachlin, with growing tributes and nary a peep about her judicial missteps. Academic articles were written celebrating her as the “expositor of our constitutional values.” Justice Abella has also received her fair share of celebration, among academics and the bar alike. I think there is probably an interesting correlation between this judicial idolatry and the rather depressing statistics on ideological uniformity in law schools, but I need not explore that connection here.

I view the 12 Days Symposium as a product of supply and demand principles. If we take Horwitz seriously, and my own experience is consistent with his, then we have an abundant supply of “positive,” more deferential legal commentary in Canada. What is missing, and what our 12 Days contributors arguably provided, was a breaking point from the consensus. And judging from our readership and the spirit of the contributions, I think there is a real demand for this sort of work in Canadian legal academic circles.  Of course, I think this is broadly consistent with the entire premise of Double Aspect to begin with.

To be fair, a lot legal scholarship can’t and shouldn’t be put into the “positive” or “negative” column. Some work is empirical, and that work is in low supply in Canada, at least when it comes to public law. Robert Danay has done us a great service, in this respect, with his empirical work on Dunsmuir. But there is a decidedly normative bent to Canadian legal scholarship, and to that extent, there is such a thing as critical work.  Though I cannot purport to speak from great experience (and so I qualify my statements to a large degree), I view legal scholarship is something like calling balls and strikes. Sometimes, the Court gets it right, and we try to highlight that on Double Aspect when we can. Others do so too. But there is a distinct lack of critical commentary, and our contributors supplied the demand.

This answers the question of why we chose not to run a symposium focusing on the Supreme Court’s best cases—this is already out there if you look hard enough. And it’s also the reason why, speaking for myself, there is no need for an endless veneer of deference towards the judiciary. I can’t speak from experience to definitively conclude that there is a Canadian legal mandarinate. But I can say that there appears to be reticence about criticizing decisions and judges.