Rethinking Peace, Order, and Good Government in the Canadian Constitution

This post is written by Brian Bird.

The United States has life, liberty and the pursuit of happiness. France has liberté, égalité, fraternité. What is the calling card of the Canadian Constitution? It is peace, order and good government.

Apart from being a concise expression of the political philosophy that animates Canadian society, or at least the philosophy that is supposed to animate it, conventional – and I would say faulty – wisdom has developed around the quintessentially Canadian brand of constitutionalism. The prevailing understanding and analytic approach to peace, order and good government (POGG) has led us to astray with respect to this key element of our constitutional architecture.

Before identifying that prevailing (mis)understanding, let us take a look at the constitutional text. Section 91 of the Constitution Act, 1867 delineates matters over which Parliament has exclusive legislative jurisdiction – matters which, by virtue of that delineation, are off limits for the provinces.

Section 91 begins with the following words:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say …

What follows this paragraph is the enumerated list of classes of subjects over which the federal government has exclusive legislative jurisdiction: criminal law, national defence, banking and so forth.

The opening words of section 91 are revealing in at least three ways.

First, the concept of POGG precedes the list of subjects that fall exclusively within federal legislative jurisdiction. I suspect many if not most jurists in Canada envision POGG as residing at the end of the list, as a residual catch-all category. On the contrary, section 91 arguably contemplates legislation for the purposes of POGG as the first and foremost responsibility of Parliament.

Second, the list of subjects that follow the opening paragraph of section 91 are expressly said to be included for “greater Certainty, but not so as to restrict the Generality of the foregoing Terms”. In other words, the enumerated list of subjects under exclusive federal jurisdiction do not diminish the ability of Parliament enact laws for POGG. The conventional wisdom among most Canadian jurists is the opposite, that the list in section 91 curtails Parliament’s power to legislate for POGG.

Third, the power of the federal government to enact laws for POGG is only available where the topic of the law does not come within the areas of exclusive provincial jurisdiction. On a strictly textual basis, then, federal laws that are enacted in the name of POGG are invalid if the substance of the legislation reflects a head of provincial power as found in section 92.

This third consideration provides additional texture to the doctrine of paramountcy, which holds that a valid federal law will prevail over a valid provincial law to the extent the two laws clash. It would seem, based on the opening words of section 91, that there is no scenario in which there will be a division of power issue raised by the coexistence of a federal law enacted for POGG and a provincial law enacted for a matter listed in section 92. Parliament cannot enact legislation for peace, order and good government if the substance of that legislation falls within exclusive provincial jurisdiction.

Having taken a closer look at the wording and structure of sections 91 and 92, it seems inescapable that the proper starting point for determining whether Parliament can legislate for POGG is whether the legislation at issue falls exclusively within provincial jurisdiction pursuant to section 92. If the legislation can only be enacted by the province, it is constitutionally impossible for the same legislation to be enacted by Parliament for the purposes of POGG. This result, however, does not exclude the possibility of the legislation being valid under a specified subject of federal jurisdiction in section 91 and that, pursuant to paramountcy, such federal legislation would prevail over conflicting provincial legislation.

To a certain extent, then, the legal principles developed by courts that govern the ability of Parliament to legislate for POGG get off on the wrong foot. As these legal principles currently stand, Parliament can enact laws for the purposes of POGG in three scenarios: to address matters of national concern, respond to emergencies, and fill gaps in the division of legislative powers.

Given the text and logic of sections 91 and 92, the analysis of the validity of a federal law purportedly enacted to promote peace, order and good government should be reworked to feature two steps. The first step is to determine whether the federal legislation engages a matter coming within the classes of subjects assigned exclusively to the provinces. If the federal legislation encroaches on provincial jurisdiction, the federal legislation is invalid unless it can otherwise be saved – for example, by recourse to the enumerated list of federal subjects in section 91.

If the legislation survives the first step, the second step – tracking the opening words of section 91 – is to determine whether Parliament has made the law “for the Peace, Order, and good Government of Canada”. This language suggests a significant amount of latitude, so long as the legislation bears some rational basis to the three concepts. If that basis exists, the law is valid federal legislation.

If the federal law does not bear a rational basis to the promotion of POGG, Parliament might still be able to validate the legislation at this step by establishing that it falls within one of the classes of subjects listed in section 91. Assuming the federal legislation somehow satisfies section 91, it should be upheld by a court unless other constitutional constraints, such as the guarantees of the Canadian Charter of Rights and Freedoms, are at issue.

It is worth noting an important and, as far as I can tell, often overlooked aspect of the relationship between the list of federal classes of subjects in section 91 and the corresponding provincial list in section 92. The drafters of the Constitution Act, 1867 give us a hint of the rationale for even including a list in section 91 at all. Indeed, the collective structure of sections 91 and 92 lends itself to section 91 featuring nothing more than the general terms of the opening paragraph cited at the beginning of this post. Why did the drafters opt to go further and include specificity in the form of a federal list?

Besides a likely desire to give Parliament and the provinces a flavour of which matters fall within federal jurisdiction, the words that follow the federal list are revealing. Section 91 concludes by saying that “any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

In other words, the list of federal subjects in section 91 fall outside of the subject that appears at the end of the provincial list. Section 92(16) affords the provinces exclusive jurisdiction to legislate “Generally all Matters of a merely local or private Nature in the Province”. The closing words of section 91 preclude the possibility of a province enacting a law that pertains to a federal class of subject on the basis that the substance of the provincial law happens to concern a matter of a “merely local or private Nature in the Province”. Owing to the constitutional text, the provinces cannot attempt to legislate on a factually provincial matter that concerns interest, copyrights, the postal service or any other federal subject unless the provincial law can be sustained through recourse to another subject specified in section 92.

The novel two-step analysis for POGG described above challenges the current approach to this constitutional grant of legislative jurisdiction to Parliament. Perhaps the most problematic aspect of the current approach is the absence of a robust inquiry into whether the federal law under scrutiny promotes the three ends of peace, order and good government. The current approach focuses on three other concepts: national concern, emergencies, and gaps. In my view, this approach must be refined to ensure fidelity to the constitutional text and to the brand of federalism it enshrines.

Admittedly, this revamp of the POGG analysis may not yield different results in certain cases that have already ruled on legislation through the lens of this this constitutional provision. In the most recent Supreme Court ruling where POGG took centre stage, the majority’s opinion in References re Greenhouse Gas Pollution Pricing Act – an opinion that affirmed the federally enacted price on greenhouse gas pollution via the national concern branch – may also hold water under the novel approach. There are good reasons to say that the power to enact this law does not belong exclusively to the provinces (step one). And laws that seek to protect the environment – and by extension basic human welfare – serve the peace, order and good government of Canada (step two).

That said, there is also good reason to believe that recalibrating the POGG analysis may lead to different results in future cases. The concepts of peace, order and good government qualitatively differ from the concepts of national concern, emergencies and gaps. It seems intuitive to say that the former concepts are, in a variety of ways, broader than the latter. In short, it may be that the current approach to POGG shortchanges this grant of federal legislative jurisdiction.

Indeed, several existing federal statutes are arguably POGG laws. For example, the Firearms Act, Food and Drugs Act, Privacy Act and Canadian Human Rights Act do not fit neatly within the federal list in section 91. On the current test for POGG, these statutes would not satisfy the emergency branch. They may not satisfy the national concern branch, which remains a difficult needle to thread.

While these statutes likely satisfy the “gap” branch, this outcome also reveals a problem. Saying that POGG can fill gaps in the division of powers, without more, neglects to ask if the gap being filled is a law made for the peace, order and good government of Canada. The gap branch, as it now stands, does not ask whether the federal law is concerned with peace, order and good government.

This flaw in the current POGG test seems to echo the conventional wisdom that the division of powers in Canada is “exhaustive”. Yet, based on the text of sections 91 and 92, the division of powers is not exhaustive in the way that is often thought. If the subject of a law cannot be hung on a hook within the provincial or federal lists and cannot be said to further peace, order and good government, this is a law that no legislature in Canada can enact. The division of powers presents the field of subjects that can be treated by legislation in Canada, but it is not exhaustive in the sense that legislatures can enact laws about anything and everything. The field of legislative jurisdiction in Canada has boundaries. Parliament cannot enact a statute that defines water as H3O instead of H2O. While there is no provincial head of power that impedes this law, there is also no federal head of power or POGG basis that permits such a statute. This law is, subject-wise, out of bounds.

If the current branch-based approach to POGG shortchanges this head of federal power, does Parliament in fact enjoy far more legislative latitude? The answer is likely something less than “far more latitude”. In addition to the field and boundaries just described, the provinces enjoy exclusive jurisdiction to legislate generally on all matters “of a local or private Nature”. In other words, only the provinces can enact laws for local POGG. Besides this check on federal legislative power, there is also – as noted above – constraints imposed by other constitutional instruments such as the Charter.

I finish by noting an interesting interpretive question: must federal legislation for POGG serve all three concepts contained in this clause (peace, order and good government)? Or, alternatively, does the federal legislation only need to serve at least one of these concepts? I leave this intriguing issue, and others that inevitably spring from a consideration of the POGG clause, for another day.

Peace, order and good government may be the most famous phrase in the Canadian Constitution. Many people say the phrase encapsulates Canada’s political culture. It is therefore surprising to discover that, in terms of how this concept lives and breathes within our constitutional atmosphere, we have fallen far short of understanding it.

Correct, but Wrong

Thoughts on the Supreme Court’s dismissal of the challenge to Ontario’s interference in the Toronto municipal elections

Last week, the Supreme Court handed down its judgment in Toronto (City) v Ontario (Attorney General), 2021 SCC 34, upholding a provincial statute cutting the number of wards and councillors in Toronto in the middle of a municipal election campaign. The Court divided 5-4, with Chief Justice Wagner and Justice Brown writing for the majority (also Justices Moldaver, Côté, and Rowe) and Justice Abella for the dissent (also Justices Karakatsanis, Martin, and Kasirer).

The majority gets the outcome right. As both co-blogger Mark Mancini and I have written here in response to the Superior Court’s decision in this case, the province was well within its rights to enact what was, by all accounts, a disruptive law of questionable usefulness. But the majority’s reasoning is underwhelming. It’s not bad on the first issue: that of an alleged violation of the freedom of expression. But it is just rubbish on the second: that of the constitutional principle of democracy. The majority’s attempt to synthesize and cabin the Supreme Court’s jurisprudence on unwritten principles is a complete failure.


The first issue is whether the reorganization of the Toronto city council after the beginning ― though well over two months before the end ― of the municipal election campaign was a limitation of the freedom of expression of the candidates who had started campaigning under the old system. The majority holds that it was not. As a result, it does not get to the question of whether a limitation would have been justified.

For the majority, the matter falls to be considered as a claim for the provision by the state of a particular platform for expression, rather than as a (more usual) claim that a person is being prevented from conveying their ideas to others. As the majority explains,

the City does not seek protection of electoral participants’ expression from restrictions tied to content or meaning … ; rather, it seeks a particular platform (being whatever council structure existed at the outset of the campaign) by which to channel, and around which to structure, that expression. [32]

In other words, this is a “positive” rather than a “negative” right claim. The majority reformulates the test for such a claim as whether it is

grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? [25]

The majority adds that “substantial interference with freedom of expression requires “effective preclusion” of “meaningful expression”, which is “an exceedingly high bar that would be met only in extreme and rare cases”. [27] 

The City has not cleared this bar. The majority states that “the candidates and their supporters had 69 days — longer than most federal and provincial election campaigns — to re‑orient their messages and freely express themselves according to the new ward structure”, with “no restrictions on the content or meaning of the messages that participants could convey”. [37] There was a meaningful election campaign, albeit a different one than had originally been planned.

The majority also rejects the City’s alternative argument on freedom of expression, to the effect that it implies a guarantee of “effective representation” which the Supreme Court originally articulated in the context of section 3 of the Charter. This provision protects the right to vote in federal and provincial ― not municipal ― elections. For the majority, “[e]ffective representation is not a principle of s. 2(b), nor can the concept be imported wholesale from a different Charter right”.

The dissent, for its part, begins by stressing the disruptiveness of the reform imposed by the province, and the lack of justification for it ― indeed, the new electoral structure had been considered by the City itself, and rejected. It goes on to argue that

When a democratic election takes place in Canada, including a municipal election, freedom of expression protects the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day. … When the state enacts legislation that has the effect of destabilizing the opportunity for meaningful reciprocal discourse, it is enacting legislation that interferes with the Constitution. [115]

This is what the province has done here, as the dissent emphasizes by quoting at great length the statements of candidates impacted by the disruption.

The dissent also argues strenuously that the majority is wrong to see the dispute as being about the positive provision of a platform for expression, and so to apply a higher threshold of seriousness to the question of whether the freedom of expression has been infringed. Indeed, in its view

There is no reason to superimpose onto our constitutional structure the additional hurdle of dividing rights into positive and negative ones for analytic purposes. Dividing the rights “baby” in half is not Solomonic wisdom, it is a jurisprudential sleight-of-hand that promotes confusion rather than rights protection. [155]

The province has also failed to advance a justification. This means that the impugned law contravenes the Charter.

As noted above, I think that the majority is basically right, notably in treating the claim advanced by the city as being for the provision or maintenance of a specific set of arrangements within which expression is to be channelled. The freedom of expression is the ability to say things one thinks, and not to say things one doesn’t. It’s not a guarantee that what one says will be interesting or relevant to anyone. If a province goes dry tomorrow, a great deal of alcohol advertising will have been rendered pointless, as will a great deal of campaigning for moderate drinking, research into the health benefits of red wine, and what not. But prohibition will not infringe the Charter. (It will be abominable, but constitutional.) It is the same when a province renders pointless a great deal of campaigning for a municipal election. Stupid, but constitutional, as Justice Scalia used to say.

The dissent’s response to this would be, I think, that the context of an election is different, but that really just proves the majority’s point. The claim at issue is about a specific platform for expression. The dissent’s analogy with Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295 also doesn’t work. That case was concerned with a ban on political advertisements on city buses, and the issue, as the majority explained, was not access to the platform in question ― that is, advertising on buses ― but a restriction on the content of what could be said on that platform. Here, the situation is exactly the opposite. The province hasn’t changed how it regulates the content of municipal election campaigns, but instead has shut down the old platform for expression and substituted for it a different one.

My objection to the Chief Justice’s and Justice Brown’s reasons has to do not with what they do, but with some of the things they say. The describe the threshold at which the “positive” freedom of expression is engaged as “an exceedingly high bar that would be met only in extreme and rare cases”. This may be tantamount to reading this aspect of the freedom out of the doctrine entirely ― but they also say that it has, in fact, some value. This language of “extreme and rare cases” isn’t necessary here, and I don’t think it provides useful guidance for the future; the words are too imprecise and subjective. The other troubling aspect of the majority’s reasons is its mention ― seemingly in passing, but I suspect that it is with at least a measure of approval ― of the fact that the Charter’s guarantee of freedom of expression “has been interpreted so broadly that the framework has been criticized for setting too low a bar for establishing a … limitation”. [16] This has nothing to with this case, since that broad framework traditionally traced to Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, doesn’t apply. The Supreme Court is already far too accepting of limitations on the freedom of expression, and its possible willingness to restrict the freedom’s scope bodes ill.


I turn now to the second issue, that of whether interference with an ongoing municipal election is an unconstitutional violation of the democratic principle. This principle, which the City suggested required the provision of “effective representation” in the municipal context, as well as in the cases governed by section 3 of the Charter, would serve as a limit on the legislature’s ability to enact laws in relation to “Municipal Institutions in the Province” pursuant to section 92(8) of the Constitution Act, 1867.

The majority is unimpressed. It says that unwritten principles such as democracy “are … part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms”. [50] However,

because they are unwritten, their “full legal force” is realized not in supplementing the written text of our Constitution as “provisions of the Constitution” with which no law may be inconsistent and remain of “force or effect” under s. 52(1) of the Constitution Act, 1982. Unwritten constitutional principles are not “provisions of the Constitution”. [54]

They can serve two functions: on the one hand, they can be used as aids in interpreting constitutional text; on the other, they can fill textual gaps. What they cannot do, the majority says, is directly invalidate legislation. To hold otherwise would be to “trespass into legislative authority to amend the Constitution”, [58] and to make an end-run around section 1 and 33 of the Charter, which allow, respectively, reasonable limitation of rights and legislative override of some of them, including, relevantly for this case, the freedom of expression.

To support its claim that principles have only interpretive and suppletive effects, the majority reviews various cases that might suggest otherwise. Notably, it dismisses the dissent on the legal question in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 SCR 753, which the Supreme Court later unanimously endorsed in Reference re Secession of Quebec, [1998] 2 SCR 217, on the basis that “while the specific aspects of federalism at issue there may not have been found in the express terms of the Constitution, federalism is“. [52] As for the Provincial Judges Reference, Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3, it stands, the majority says, for the proposition that “where the constitutional text is not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids” [65] and “to fill a gap where provincial courts dealing with non‑criminal matters were concerned”. [66]

In this case, “the unwritten constitutional principle of democracy cannot be used to narrow legislative competence” over municipalities, which is “plenary” and “unrestricted by any constitutional principle”. [80] Moreover,

The constitutional status of municipalities, and whether they ought to enjoy greater independence from the provinces, was a topic of debate during patriation … In the end, municipalities were not constitutionalized, either in amendments to the Constitution Act, 1867 or by reference in the democratic rights enshrined in the Charter. … Were the unwritten democratic principle applied to require all elections to conform to the requirements of s. 3 (including municipal elections, and not just elections to the House of Commons or provincial legislatures), the text of s. 3 would be rendered substantially irrelevant and redundant. [81]

The dissent, again, sees matters differently. It points out that unwritten principles have been recognized as binding both in Canada and in other “Parliamentary” [166] constitutional systems. (The dissent thus does not mention the United States.) It insists that

unwritten principles are our Constitution’s most basic normative commitments from which specific textual provisions derive. … Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles. In other words, the text is not exhaustive of our Constitution. [168]

The dissent rejects the majority’s insistence on the primacy of the text. Unwritten principles are just as important. It is they that “assist in developing an evolutionary understanding of the rights and freedoms guaranteed in our Constitution” ― that is, they “make[]” the constitutional living “tree grow”. [179] As for the majority’s argument based on section 52 of the Constitution Act, 1982, it “is a highly technical exegetical exercise designed to overturn our binding authority establishing that unwritten constitutional principles are a full constitutional partner with the text”. [183]

For the dissent, in “rare” cases “unwritten principles may be used to invalidate legislation” that “elides the reach of any express constitutional provision but is fundamentally at odds with our Constitution’s ‘internal architecture’ or ‘basic constitutional structure'”. [170] As the dissent sees things, this is what happened in the Provincial Judges Reference, as well as in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. That said, the dissent does not say anything about the application of the democratic principle in this case, which it has already resolved on the Charter argument.

By my lights, this is the judicial equivalent of a Leafs-Bruins game, which both ought to lose, but one has to win, just because. Now, I think that the majority’s conclusion is correct as a matter of both precedent and principle. As the Supreme Court held in British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, it would be wrong to apply an unwritten principle so as to expand the scope of a Charter right so as to directly contradict clear text. Imperial Tobacco concerned the protection against retroactive legislation, which the Charter reserved to criminal law. Here we are dealing with the right to vote, and its love child “effective representation”, which the Charter reserves to federal and provincial, not municipal, elections. So far, so good. But only so far.

The rest of the majority’s analysis ― which, of course, is quite unnecessary, because the passage from paragraph 81 quoted above is enough to dispose of this issue ― rests on wholly untenable distinctions. The majority says that federalism is unlike the other constitutional principles ― indeed, that it is not a constitutional principle but part of the constitution’s “structure” ― because “federalism is” “found in the express terms of the Constitution”, notably the division of powers between the Dominion and the provinces. But the same is true of democracy and of the rule of law. We can point to some provisions, such as sections 1 and 3-5 of the Charter for democracy (as well, of course, as all the provisions having to do with the House of Commons in the Constitution Act, 1867), and sections 9-11 of the Charter and 133 of the Constitution Act, 1867 (again, this is not an exhaustive list) to say that these principles too are found in the express terms of the Constitution, and hence their other “specific aspects .. not found” in those express terms can nonetheless be judicially enforced.

Similarly, the majority’s distinction between alleged “gap-filling” in the Provincial Judges Reference “where provincial courts dealing with non‑criminal matters were concerned” and invalidating laws on the basis of unwritten principles is humbug. So far as these courts were concerned, the only reason the laws reducing their judges’ salaries were invalid was unwritten principle.

Last but not least, as Mark has noted, the majority doesn’t even begin to address  Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, with its clear statement that

Where a court reviews the merits of an administrative decision … the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. [23; emphasis added]

In other words, Vavilov says that the Rule of Law principle does invalidate legislation to the extent that (though only to the extent that) it would require an incompatible standard of review.

The majority also says that “The unwritten constitutional principle of the honour of the Crown is sui generis” because, it seems, it “arises from the assertion of Crown sovereignty over pre‑existing Aboriginal societies … and from the unique relationship between the Crown and Indigenous peoples”. [62] But the other principles, such as federalism (a sine qua non for Canada’s existence) and democracy and the Rule of Law (1688 and all that), can also boast “unique” historical pedigrees.

The majority’s other arguments fare just as badly as its attempts at splitting hairs with a blunt axe. Applying principles to invalidate laws does not trespass into constitutional amendment if principles were already part of the constitution as enacted, in 1867 and in 1982. While some applications may inappropriately compromise section 33 of the Charter ― which is arguably one reason why Imperial Tobacco approach to cases to which the Charter already speaks is correct ― others will not. Principles are not reducible to expanded forms of Charter rights. Federalism is of course the obvious case in point. As for section 1 of the Charter, foreign precedents, such as the Australian jurisprudence on the implied freedom of political communication, suggest that something like a proportionality analysis can be combined with unwritten principles. Again, though, principles are not just a beefed-up Charter. Perhaps the best argument the majority advances is the one based on the word “provisions” in section 52(1) of the Constitution Act, 1982, but ― without endorsing the dissent’s rant about “technical exegetical exercises” ― I think that it is undermined by section 52(2)’s suggestion that “the Constitution of Canada” is not limited to textual sources, to say nothing of the Supreme Court’s jurisprudence to this effect.

A word, finally, on the dissent. It advocates not only for living constitutionalism, which as readers will know I think is a misbegotten interpretive approach, but also, more precisely, for what I have described as “constitutionalism from the cave“. This is the view that the constitution’s text is just a pale shadow of the true constitution, which judges alone can, over time, discover and impose. As much as I think the majority’s attempt to swat constitutional principles away is unsound as a matter of both doctrine and, sorry, principle, this is not a tenable alternative.


Here we are, then, at the last chapter of this unfortunate saga. It began with institutional vandalism by the Ontario legislature, and concludes with a Supreme Court decision that, despite narrowly reaching the right outcome, may yet do considerable damage of its own. The majority’s statements on freedom of expression are worrying, and its discussion of constitutional principles ― admittedly, a difficult subject (I have had more to say on it here) ― is almost entirely wrong-headed. The dissent, meanwhile, is largely unmoored from the law throughout. The judicial end is not better than the legislative beginning.

Disinformation by Omission

Additional thoughts on the futility of regulatory responses to mis- and disinformation

In my last post, I wrote about the Canadian Forces’ attempts to manipulate public opinion, including by means of disinformation, and about the dangers of regulations ostensibly meant to counteract disinformation. I briefly return to the issue of disinformation to highlight an excellent, if frightening, essay by David French in his newsletter for The Dispatch.

Mr. French writes about the alarming levels of polarization and mutual loathing by political partisans in the United States. He argues that this results from a “combination of malice and misinformation”, which mean “that voters hate or fear the opposing side in part because they have mistaken beliefs about their opponents. They think the divide is greater than it is.” Mr. French observes that many Americans are stuck in a vicious cycle:

Malice and disdain makes a person vulnerable to misinformation. Misinformation then builds more malice and disdain and enhances the commercial demand for, you guessed it, more misinformation. Rinse and repeat until entire media empires exist to supply that demand. 

And, crucially, Mr. French points out that misinformation does not just consist of “blunt, direct lying, which is rampant online”. It also includes “deception by omission (a news diet that consistently feeds a person with news only of the excesses of the other side) and by exaggeration and hyperbole”, which can be “in many ways more dangerous than outright lies”, because they cannot easily be countered with accurate information. (This is why the rhetorical practice of “nutpicking” ― pointing to the crazies on the opposite side, and claiming that they represent all those who might share something of their worldview ― is so effective. The nuts are real! They might even be somewhat prominent and influential, though not as much as the nutpicker suggests. Nutpicking isn’t lying. But it is deceptive, and destructive.) 

And yet, Mr. French cautions against regulatory responses to this crisis, serious though it is:

there is no policy fix for malice and misinformation. There is no five-point plan for national harmony. Popular policies … don’t unite us, and there are always differences and failures to help renew our rage. Instead, we are dealing with a spiritual and moral sickness. Malice and disdain are conditions of the soul. Misinformation and deception are sinful symptoms of fearful and/or hateful hearts. (Paragraph break removed)

I think this is tragically right, even though I do not share Mr. French’s deep Christian faith. Call it heart or mind instead of soul; speak of moral error, indeed of immorality instead of sin; this all is secondary, to my mind. The point is that the fault is not in our laws, but in ourselves. And this is why, in my last post, I wrote that the government

cannot be trusted with educating citizens and funding media in a way that would solve the problems of the “environment that has created the disinformation crisis”. The solution must come from the civil society, not from the state.

As I wrote long ago in the context of hate speech, the law ― at least so long as it remains relatively cabined and does not attempt comprehensive censorship ― cannot counteract the corrosive “messages … sent by sophisticated, intelligent people”, who are able to avoid crude hate propaganda, or outright lies. The hint, the understatement, the implication, the misdirection, the omission are their weapons, and the shield against it must be in our hearts and minds, not the statute book.

We often think of regulation as a sort of magic wand that can do whatever we need, provided we utter the right sort of spell when wielding it. This is, of course, an illusion, and entertaining it only distracts us from working on the most difficult subject of all: our selves.

What Does City of Toronto Mean For Administrative Law?

The Supreme Court released its much-anticipated decision today in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While others will address the nuances of the case, the majority generally puts unwritten constitutional principles into a tiny, little box. It says that because “[u]nwritten principles are…part of the law of our Constitution…” [50], unwritten principles only have two practical functions: (1) they can be used in the interpretation of constitutional provisions [55]; (2) they can be used to “develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecure” [56]. In this category, the Court uses the example of the doctrine of paramountcy, the doctrine of full faith and credit, and the remedy of suspended declarations of invalidity.

I applaud the majority opinion for clarifying the role of unwritten constitutional principles. For my part, I think the functions they have outlined for unwritten principles give those principles a meaningful role in the constitutional structure while giving priority to the text. The majority aptly underscores the worry with unwritten principles–they are so abstract and potentially endless–and negates that worry by ensuring the text as a control on the use of these principles. Even better, the majority closes the door on the rather pernicious attempt to read municipalities into s.3 of the Charter [5].

But that is not my concern for today. What does any of this have to do with administrative law?

Post-Vavilov, there was a good argument that unwritten principles–the Rule of Law specifically–could have independent force in limiting state action in some way on the standard of review–put more bluntly, that the Rule of Law could invalidate certain legislative rules governing standard of review. The Court says, for example, that “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35). It goes on to outline categories of questions–like constitutional questions–that demand a correctness standard because of “respect for the rule of law” (Vavilov, at para 53). This raised the argument that if a legislature were to prescribe a standard of review of reasonableness on a constitutional question, such a standard would not be given effect to by a court because it transgresseses the “limits imposed by the rule of law.”

On first blush, City of Toronto tends to throw cold water on the argument. Its insistence that unwritten principles cannot invalidate legislation could mean that a court should give effect to a legislated standard of review on constitutional questions. And because there is no express constitutional provision insisting on a correctness standard on certain questions, on a strict reading of the City of Toronto majority opinion, there would be no power to invalidate that law.

This very well may be true, and yet I think there are a few ways to reconcile City of Toronto with Vavilov that leads to the same result that Vavilov seems to suggest–a court not applying (which is strictly, though perhaps not functionally, different from invalidation) a legislated standard of review of reasonableness on constitutional questions. Much of this argument hinges on s.96 of the Constitution Act, 1867.

First, it might be said that the Rule of Law as outlined in Vavilov is a necessary interpretive principle that should be used to understand s.96. That is, we cannot understand s.96–which contemplates federally-appointed superior courts–without understanding the traditional role of these courts to conduct judicial review of administrative action on a certain stringency on certain questions. In City of Toronto, the Court cites s.96-100 as an example of unwritten principles bolstering a constitutional principle, suggesting that “unwritten constitutional principles of judicial independence and the rule have law have aided in the interpretation of [ss.96-100], which have come to safeguard the core jurisdiction of the courts that fall within the scope of those provisions” [55].

I think to call any of the doctrinal innovations that have come to s.96 a result of “interpretation” stretches the term a bit far. On its face, s.96 is just an appointing provision. It may be one thing to interpret what the terms of that appointing provision are, but to construct doctrine on top of the provision–or to make it work in a constitutional structure–seems to be a different judicial function.

Secondly, and I think more persuasively, the Court notes that unwritten principles can develop structural doctrines that flow from constitutional architecture [56]. Again, the Court notes examples of this sort of doctrinal construction: full faith and credit, paramountcy, and even the legal result in the Quebec Secession Reference. As we see, some of these doctrines are quite particular to specific contexts–the Quebec Seccession Reference, for example. Others are more general. The doctrine of full faith and credit in the context of conflict of laws is a major doctrinal innovation that is not found anywhere in a specific constitutional provision. These doctrinal innovations can, in effect, change or invalidate legislation that conflict with them, though they are rooted in the text itself.

Vavilov‘s comments on standard of review best fall into this category. The standard of review framework flows from two unwritten principles themselves: legislative intent (perhaps partially reflected in the principle of “democracy”) and the Rule of Law. The Court conceives of the Rule of Law as generally the rule of courts, in that courts must retain a strong supervisory role over certain questions. It would upset the supervisory role of these courts to outlaw their ability to hold state actors to the strictest constitutional standard. This is but a logical extension of Crevier, which set the stage for an argument about the constitutionally-protected role of the superior courts.

An example and a caveat. First, the majority and dissent clash over MacMillan Bloedel. In that case, the Court arguably invalidated a legislative scheme that granted exclusion jurisdiction to a youth court. The City of Toronto majority says the holding in that case was based on the text of ss.96-101 and 129 of the Constitution Act, 1867 [50]. The dissent, on the other hand, cites para 41 of MacMillan Bloedel to suggest that the basis of the holding was the Rule of Law itself [176]. In my view, MacMillan Bloedel is a bit of both. The Court clearly bases its decision in s.96 (MacMillan Bloedel, at para 47). But it also says that the case is best understood “in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of superior courts in our system of governance” (MacMillan Bloedel, at para 2). To the extent these principles and s.96 were abridged, the impugned legislative provision was “read down” as “inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case” (MacMillan Bloedel, at para 43). In MacMillan Bloedel, we have a constitutional text (s.96)–>supported by the Rule of Law (unwritten principle)–>a result that the core of superior court powers were protected in this case. Vavilov falls into this same category. We can see, then, that in some cases a legislative standard of review may be “read down” as a result of the standard of review doctrine spun out from the unwritten principles of legislative intent and the Rule of Law.

The caveat I wish to raise has to do with the Federal Courts. Section 96 does not speak to statutory courts, and in theory, the Federal Courts’ judicial review jurisdiction could be abolished tomorrow unlike the superior courts. All of this, then, would stop at the Federal Courts. But I do not think this is inevitable. Once a statutory court has been made under s.101 of the Constitution Act, 1867, one might make the argument that so long as such a court exists, its powers should be construed as broadly as the powers of a superior court under s.96. But I do not commit to this argument in full, except to say that it makes practical sense to me and would uphold a consistent judicial standard for administrative action across jurisdictions.

At any rate, I think City of Toronto–despite its strong language on unwritten principles–can be reconciled with Vavilov. And at the end of the day, the result may be the same: legislation that undermines an unwritten principle may not be “given effect” according to a doctrinal innovation, even if the legislation is not “invalidated” in a strict sense. This is the best way to undertstand Vavilov‘s standard of review framework.

Disinformation and Dystopia

Whose disinformation efforts should we really fear―and why we should also fear regulation to stop disinformation

Mis- and disinformation about matters of public concern is much in the news, and has been, on and off, for the last five years. First kindled by real and imagined interference in election campaigns, interest in the subject has flared up with the present plague. Yesterday’s developments, however, highlight the dangers of utterly wrongheaded responses to the issue, one that would will lead to a consolidation of government power and its use to silence critics and divergent voices.


First, we get a hair-raising report by David Pugliese in the Ottawa Citizen about the Canadian Armed Forces’ strong interest in, and attempts at, engaging in information operations targeting Canadians over the course of 2020. Without, it must be stressed, political approval, and seemingly to the eventual consternation of Jonathan Vance, the then-Chief of Defence Staff, the Canadian Joint Operations Command sought to embark on a “campaign … for ‘shaping’ and ‘exploiting’ information” about the pandemic. In their view “the information operations scheme was needed to head off civil disobedience … and to bolster government messages”. They also saw the whole business as a “learning opportunity” for what might become a “routine” part of their operations.

Nor is this all. At the same time, but separately, “Canadian Forces intelligence officers, culled information from public social media accounts in Ontario”, including (but seemingly not limited to) from people associated with Black Lives Matter. This, supposedly, was “to ensure the success of Operation Laser, the Canadian Forces mission to help out in long-term care homes hit by COVID-19 and to aid in the distribution of vaccines in some northern communities”. A similar but also, apparently, unrelated effort involved the public affairs branch of the Canadian Forces, which want its “officers to use propaganda” peddled by “friendly defence analysts and retired generals” and indeed “information warfare and influence tactics”, “to change attitudes and behaviours of Canadians as well as to collect and analyze information from public social media accounts” and “to criticize on social media those who raised questions about military spending and accountability.”

And in yet another separate incident,

military information operations staff forged a letter from the Nova Scotia government warning about wolves on the loose in a particular region of the province. The letter was inadvertently distributed to residents, prompting panicked calls to Nova Scotia officials … [T]he reservists conducting the operation lacked formal training and policies governing the use of propaganda techniques were not well understood by the soldiers.

To be blunt, there seems to be a large constituency in various branches of the Canadian forces for treating the citizens whom they are supposed to defend as enemies and targets in an information war. Granted, these people’s enthusiasm seems to outstrip their competence ― but we know about the ones who got caught. We can only hope that there aren’t others, who are better at what they do. And it’s not a happy place to be in, to be hoping that your country’s soldiers are incomptent. But here we are.


Also yesterday, as it happens, the CBA National Magazine published the first episode of a new podcast, Modern Law, in which its editor, Yves Faguy, interviewed Ève Gaumond, a researcher on AI and digital technologies, about various techniques of online persuasion, especially during election campaigns. These techniques include not only mis- and disinformation and “deep fakes”, but also advertising on social media, which need not to untruthful, though it may present other difficulties. Mr. Faguy’s questions focused on what (more) should Canada, and perhaps other countries, do about these things.

Ms. Gaumond’s views are somewhat nuanced. She acknowledges that “social media is not the main driver of disinformation and misinformation” ― traditional media still are ― and indeed that “we’re not facing a huge disinformation crisis” at all, at present. She points out that, in debates about mis- and disinformation, “the line between truth and falsehood is not so clearly defined”. And she repeatedly notes that there are constitutional limits to the regulation of speech ― for example, she suggests that a ban on microtargeting ads would be unconstitutional.

Ultimately, though, like many others who study these issues, Ms. Gaumond does call for more and more intrusive regulation. She claims, for instance, that “[i]f we are to go further to fight disinformation”, online advertising platforms should be forced not only to maintain a registry of the political ads they carry and of the amounts the advertisers spent, but also to record “[t]he number of times an ad has viewed” and “the audience targeted by the ad”. This would, Ms. Gaumond hopes, deter “problematic” targeting. She also wants to make advertising platforms responsible for ensuring that no foreign advertising makes its way into Canadian elections, and tentatively endorses Michael Pal’s suggestion that spending limits for online advertising should be much lower than for more conventional, and more expensive, formats.

Ultimatelty, though she doesn’t “think that we should tackle speech per se”, Ms. Gaumond muses that “[w]e should see how to regulate all platforms in a way that we can touch on all possible ways that disinformation is spread”. This means not only spending limits but also that “[y]ou cannot pay millions of dollars to microtarget … what you’re saying to people that believe the same thing as you do without oversight from other people, from Election Canada”. And beyond that

not only regulating social medias [sic], but also all of the environment that has created the disinformation crisis. That means education, funding and great journalism, the media ecosystem is one of the important components of why we’re not facing such a big disinformation crisis.


There are a few things to say about Ms. Gaumond’s proposals ― keeping in mind Mr. Pugliese’s report about the activities of the Canadian forces. The overarching point is the one suggested by the juxtaposition of the two: while researchers and politicians fret about disinformation campaigns carried ou by non-state and foreign actors, the state itself remains the most important source of spin, propaganda, and outright lies with which we have to contend. Unlike bots and Russian trolls, the state can easily dupe the opinion-forming segments of society, who are used to (mostly) believing it ― partly out of ideological sympathy, but partly, and it’s important to stress this, because the state is also an important source of necessary and true information which such people rely on and relay.

This means that we should be extremely wary of granting the state any power to control information we can transmit and receive. Its armed agents think nothing of manipulating us, including for the sake of propping up the government of the day. And it is no answer that we should grant these powers to independent, non-partisan bureaucracies. The Canadian Forces are also an independent, non-partisan bureaucracy of sorts. I’m pretty confident that they weren’t trying to manipulate opinion out of any special affection for the Liberal Party of Canada, say. They are just on the side of order and stability, and any civilian bureaucratic structure would be too. It would also be likely to be tempted to squish questions about its own budget and functioning, and to develop an unhealthy interest in people it regards as trouble-makers. Civilians might be more suspicious of right-wing groups than of BLM, but the ones have the same right to free speech and to privacy as the others.

Another thing to note is the confusion among the different issues clustered under the general heading of concerns about mis- and disinformation. Concerns about the targeting of advertising may be valid or not, but their validity often has little to do with the truthfulness of the ads at issue. Concerns about foreign influence may be magnified when it is being exercised through misleading and/or microtargeted ads, but they are not necessarily linked to the issues either of disinformation or of microtargeting. Spending limits, again, have little to do with disinformation. No doubt a knowledgeable researcher like Ms. Gaumond would be more careful about such distinctions in a paper than she sometimes is in the interview with Mr. Faguy. But can untutored policy-makers, let alone voters, keep track?

In light of all this, Ms. Gaumond’s suggestions, though sprinkled with well-intentioned caveats about “not saying ‘you cannot say that'”, should give us serious pause. Even increasing disclosure requirements is far from a straightforward proposition. As Ms. Gaumond notes, Google simply refused to carry political ads rather than set up the registry the government required. Facebook and Twitter might follow if they are forced to make disclosures that would reveal the functioning of their algorithms, which they may have good reasons for keeping out of their competitors’ sight. More fundamentally, the idea that all (political?) speech should at all times be tracked and monitored by the state does not strike me as healthy. Political debate is a fundamental right of citizens, not something we can only engage in on the government’s sufferance. We are not children, and government ― including Elections Canada ― is not a parent who needs to know what we are getting up to online. Last but not least, because of the government’s track record of spin and deceit, it cannot be trusted with educating citizens and funding media in a way that would solve the problems of the “environment that has created the disinformation crisis”. The solution must come from the civil society, not from the state.

Lastly, let me note in my view Ms. Gaumond may be far too optimistic about the willingness of Canadian courts to uphold constitutional limits on government regulation of electoral speech. Their record on this issue is generally abysmal, and the Supreme Court’s reasoning in the leading case, Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, is itself misinformed and speculative. If government actors take the initiative on these matters, the courts will not save us.


The issue of mis- and disinformation is at least much a moral panic as a genuine crisis. As Ms. Gaumond points out, the trouble is to a considerable extent with traditional media and political forces outside anyone’s easy control; as Mr. Pugliese’s reporting makes clear, we must fear our own government at least as much as any outside force. Yet fears of new technology ― not to mention fear-mongering by media and political actors whose self-interest suggests cutting social media down to size ― mean that all manner of new regulations are being proposed specifically for online political discussions. And the government, instead of being reined in, is likely to acquire significant new powers that will further erode the ability of citizens to be masters in their own public and private lives.

Common Factionalism

The political rhetoric of the common good is poorly disguised factionalism, which the thinkers in whose name it is being advanced would have abhorred

The idea that law and politics should be organized around the principle of the “common good” is in the air on the political right. The left, of course, has had its versions of it for a long time. Both co-blogger Mark Mancini and I have written about “common good” arguments about legal issues, specifically the administrative state (Mark), constitutional law (me), and the Charter’s “notwithstanding clause” (also me), and found them severely wanting. A couple of recent newspaper articles give us an idea of what the “common good” philosophy looks like in practical politics.

On the northern side of the world’s longest closed border, Ginny Roth, writing in the National Post, identifies the Conservative platform in the late and lamented election with “a rich tradition of common-good conservatism that looks more like Edmund Burke than John Locke”. The master idea of this “new conservatism” (wait, is it new or richly traditional? never mind) is that “Conservatives must be positioned to build on the coalition of voters that will support it in this election by correctly identifying what appealed to them about the leader, the party and the platform”. Less blandly, “the left must not have a monopoly on populist politics”. The right should imitate the left, and in doing so advance the policies favoured, or assumed to be favoured, by “coalitions of voters who think the opposite of what the cocktail party goers do”. 

The same ideas, if that’s what they are, are to be found south of the aforementioned border in Josh Hammer’s column in Newsweek. (Mr. Hammer, it is worth noting, is one of if not the closest thing the “common good” movement has to a leader. He is also, apparently, a research fellow with an outfit called the Edmund Burke Foundation.) Mr. Hammer defends bans on private businesses requiring their employees or customers to be vaccinated against the present plague. In doing so, he claims to take the side of “common-good-inspired figures” against “the more adamantly classical liberal, libertarian-inspired pundits and politicians who believe the quintessence of sound governance is simply permitting individuals and private entities to do what they wish”. Mr. Hammer “explains” that “[v]accine mandates will be a convenient fig leaf for a ruling class already gung-ho at the possibility of precluding conservatives from the full panoply of in-person public life”. (Why is that the defenders of tradition so often struggle with their native tongue?) This “wokeist ruling class” must be stopped by a “prudential use of state power to secure the deplorables’ basic way of life”.


With apologies to H.L. Mencken, “the theory that the common people know what they want, and deserve to get it good and hard” seems to be an excellent description of common good conservatism, as propounded by Ms. Roth and Mr. Hammer. The common people are entitled to get their way, and to have the state’s coercive force used to ensure that they get their way. And no need to ask whether their preferences are consonant with some objective standards of morality, or the teachings of experts ― be it in economics, in epidemiology, or what have you. The beliefs of the common people are entitled to prevail because they are their beliefs, not because they are right.

Of course, it’s only the common people, that is, the right kind of people, that are entitled to have their way. The woke cocktail-swilling pundits and politicians are not. Even entrepreneurs, whom the conservatives of yesteryear lionized, must take their orders from those who do drink cocktails. In other words, what Ms. Roth and Mr. Hammer are promoting under the name of the common good is the view that the aim of politics is to give effect to the wishes of

a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

This is James Madison’s famous definition of faction, in Federalist No. 10. Ms. Roth might not have, but Mr. Hammer, who affects to be a constitutional sage as well as a political visionary, presumably has read the Federalist Papers. He’s read them, and has evidently concluded that he is cleverer than Madison, who feared faction as the seed of tyranny, civil strife, and destruction, and looked for ways to limit its ill-effects.

Madinson saw the remedy in “[a] republic, … a government in which the scheme of representation takes place”. A “republic”, so understood, would

refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Not so for Ms. Roth and Mr. Hammer. Not for them the refining and enlargement of public views by representatives. (It’s the cocktails, don’t you know?) The people themselves, and more precisely the “deplorables”, the ones whose views are the opposite of refined and enlarged, who must govern, and officials are to take their marching orders from them.

Poor Edmund Burke is spinning in his grave. His single most famous idea is doubtless the argument he advanced in his “Speech to the Electors of Bristol”, which deserves to be quoted at length here:

Certainly … it ought to be the happiness and glory of a Representative, to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and, above all, ever, and in all cases, to prefer their interest to his own. But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any sett of men living. These he does not derive from your pleasure; no, nor from the Law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your Representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy Colleague says, his Will ought to be subservient to yours. If that be all, the thing is innocent. If Government were a matter of Will upon any side, yours, without question, ought to be superior. But Government and Legislation are matters of reason and judgement, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one sett of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

The populism masquerading as “common good” conservatism being peddled by Ms. Roth and Mr. Hammer is the opposite not only of John Locke’s ideas and James Madison’s, but also of the deeply held views of the great man they dishonour by pretending to admire him.


I should note that there a more purely intellectual and, not coincidentally, intellectually respectable version of the “common good” thought. For the reasons some of which I set out more fully in my earlier posts, I don’t find it compelling. But, at its best, it does involve an honest reflection on the good of the community rather than window-dressing for factionalism. Michael Foran speaks from this perspective when he tweets that “[t]he Common Good shouldn’t be used as the new phrase for whatever political position one happens to already hold. A claim that X is in the common good needs to explain how X is both genuinely good and genuinely common in its goodness.”

As it happens, Adrian Vermeule (among others) has recently shared his thoughts on vaccine mandates with Bari Weiss, and they are not at all in line with Mr. Hammer’s. Along with much sniping at libertarians (does he think Mr. Hammer is one?), he argues that “the vaccine mandate is analogous in principle to … crisis measures” such as wartime conscription or the destruction of property to stop a fire: “[o]ur health, our lives and our prosperity, are intertwined in ways that make it entirely legitimate to enforce precautions against lethal disease — even upon objectors”.

The point is not really that Professor Vermeule is right (which I’m inclined to think he is, albeit not quite for the reasons he advances), and Mr. Hammer is wrong. It’s not even that their disagreement exposes the vacuity of the common good as a standard against which to measure policy (though it at least points in that direction). For my present purposes, it’s that the partisan version of the “common good” ideology, which Mr. Hammer and Ms. Roth represent, has next to nothing to do with its more cerebral namesake exemplified by Professor Vermeule’s comments to Ms Weiss. In its partisan incarnation, common good talk is nothing more than a fig-leaf meant to hide ― none too well, mind you ― the narcissism and cultural resentment that its promoters impute to a part of the electorate.

On Law and Music

What is the relationship, if any, between law and music?

As a musician myself, I notice many commonalities between law and music. As a jazz musician, improvisation is what I spend a lot of time thinking about. To improvise over a tune, it helps to know the notes in the tune, the chords underneath it, and the structure of the song. Artists can break these rules, and perhaps the best music comes when the rules are broken. But to break the rules, the cardinal idea of music—it has to sound good—cannot be lost. In other words, an artist has to implicitly justify her departure from the structure of the tune with the most convincing reasoning of all—the fact that the music, nonetheless, still sounds good.

It is only a small jump to move to the world of interpretation. Many have written about the aesthetics of law. In a similar vein, in a delightful article, Jerome Frank analyzes the relationship between legal interpretation and music. I preface this by saying that Frank was a noted legal realist, and I am no legal realist. Nonetheless, the intersection he explores between music and interpretation is, at the very least, interesting. For Frank, the relationship between a composer and a performer is quite similar to the relationship between a legislature and a judicial interpreter. The composer is the legislature, and it “cannot help itself” [1264]: interpretation of whatever is intended (or written, depending on one’s view of the idea of “intent”) must fall to the court—much like a piece of music, composed by someone perhaps generations ago, must fall to a performer.

Once the performer  receives the item to be interpreted, three considerations become important. First, the entire point of a performance is to perform: the performer must give due respect to the composer, because he was the one who made the song that the audience will enjoy. Sometimes in music—particularly jazz—you hear a performer that is ostensibly playing a tune but it is something completely different: he says he is playing “Autumn Leaves,” but he is improvising—almost too much—on the original tune. Sometimes this is good, but many times it isn’t, if only because the composer was the one who made the song (in this case, there is a time for soloing, but it’s important to “play the head,” as it were: “Autumn Leaves” is just fine as it is). As a general rule, I think this tracks to legislation, where the interpreter should do his best to remain true, within reason, to the law.  But, as a second consideration, there will always be an inevitable slippage between what the composer wanted (or even what the composer wrote) and what the performer does. The performer may make an inadvertent error, doing violence to the intention of the author. The composer may herself make a musical error, in which case the performer is left in the position of correcting it or leaving it as is. Finally, the interpreter may make a deliberate choice to change the composer’s creation. A jazz musician can do everything from “bending” the notes, to changing the rhythm, to even “going outside” the chord structure, creating dissonance where none was intended. The “free jazz” school, for example,  “developed in the 1960s as a rejection of conventional musical structures: things like melody, harmony, and chord progressions.”  While the free jazz school in many senses merges the role of composer and performer, creator and interpreter, it demonstrates the extreme end of the spectrum—musicians (and interpreters) can make choices given the structure of the music they are asked to perform.

As a musician, I focus much of the time on bebop, hard bop, and other “straight-ahead” styles—perhaps this explains my preference for textualism as a general interpretive method. Nonetheless, there is no doubt that the choices interpreters and performers make can sometimes make the composer’s or legislature’s creation make more sense—or sound better. And if that is the goal, then  sometimes the interpreter and performer will need to make on-the-spot decisions about how a cacophony of words (or notes) should be put together into a convincing performance. As Frank notes, interpretation is a human activity, and human creativity can make sense of what, on its own, may not make sense. Law is not always coherent, because humans are not always coherent. Yet interpreters, taking a step back, can sometimes (within the context of the interpretive rules) make sense of the law.

Frank’s piece underscores the balance that must be struck in interpretation between fidelity to legislative wishes and the “human” element of interpretation that must make sense of what is in front of a court. On one hand, slavish devotion to the law can lead to absurdity; and for that reason, we have an “escape valve” available for those cases, among others (like scrivener’s error). But in most cases, there is something important about remaining relatively true to the composer’s wishes. The composer created the music for a reason. The performer is being asked to perform it. For the performer to turn the tune upside down is a drastic choice that, at least in some sense, undermines the relationship between composer and musician.

Cannonball Adderley - IMDb
Cannonball Adderley

What does this musical story tell us about interpretive methodology? Methodology cannot perfectly guarantee correspondence between law creation and law interpretation. What is important, though, is that courts make a choice to commit themselves to rules in advance: just like performers (minus the free jazz folks) commit themselves to chords, notes, rules of rhythm, etc. The choice to commit oneself to a “structured and deliberate methodology” as Justice Malcolm Rowe and Michael Collins said in a recent paper, is immensely important. It prevents rank instrumentalism by an interpreter, where a result is chosen and then justified after the fact. A structured and deliberate methodology, as Rowe and Collins note, does not tie an interpreter’s hands, just like chords and notes do not tie a performer’s; but it does structure the choices an interpreter or musician can make, for the benefit of the listeners who  generally do not want to hear dissonance all night. As above, an interpreter who breaks these rules—say, to solve an absurdity—does so because the methodology permits it. He can justify his departure under the rules, much like a musician can justify a departure from notes and chords as justified according to the reality of what sounds good to an audience. The point, as Rowe and Collins say, is that the methodology forces an implicit justification.

The analogy between music and law is imperfect, in part because different musical styles ask different things of performers. A classical musician is likely to be closer to a composer’s wishes than a jazz musician is, and this is in part defined by the rules of the particular style. Nonetheless, the relationship between composers and performers does track to legislative activity. And it shows us how, in many aspects of life outside of law, rules are important even if imperfect.

Right Is Wrong

What an ordinary case can tell us about the problems of Canadian administrative law

Last month, I wrote here about a decision the Federal Court of Appeal (Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157) which, although a good and faithful application of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, actually highlighted its conceptual defects. This is another post in the same vein, focusing on the choice of the standard of review in Morningstar v WSIAT, 2021 ONSC 5576 to point out (yet again) that the Vavilov approach to jurisdiction makes no sense. I then also point to a different issue that Morningstar usefully highlights with arguments for the administrative state based on access to justice. If you are tired of my fire-breathing neo-Diceyanism, you can skip to the latter discussion.

As co-blogger Mark Mancini explains in his invaluable Sunday Evening Administrative Review newsletter (subscribe!), the applicant in Morningstar tried to argue that correctness review should apply to a decision of the Workplace Safety and Insurance Appeals Tribunal to the effect that she was not entitled to bring a civil lawsuit against a former employer and should have pursued administrative remedies instead. The idea was that the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”, [63] ― that is, by have the court ensure the boundary is drawn correctly. But courts are not “administrative bodies” in the sense the Vavilov majority meant this phrase, and the Divisional Court makes short work of this argument. As Mark suggests, while the reasons it gives are very questionable, the conclusion is clearly correct.


But it shouldn’t be! Ms. Morningstar’s argument was, in Mark’s words, “doomed to failure” under Vavilov, but as a matter of principle it is actually exactly right. The Vavilov majority explains, sensibly, that

the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions … Members of the public must know where to turn in order to resolve a dispute. … [T]he application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making. [64]

That’s right so far as it goes. But what exactly changes if we replace the phrase “two administrative bodies” in the first sentence with “two adjudicative bodies”, so as to encompass the courts? Are the Rule of Law’s demands for predictability, finality, and certainty suddenly less stringent because a court is involved? Need members of the public not know where to turn in order to resolve a dispute? The Rule of Law applies in exactly the same way to jurisdictional conflicts between courts and tribunals as between tribunals, and should require correctness review in both situations.

It might be objected that this argument ignores the privative clause in the statute at issue in Morningstar. Section 31 of the Workplace Safety and Insurance Act, 1997 provides that the Tribunal “has exclusive jurisdiction to determine”, among other things, “whether, because of this Act, the right to commence an action is taken away”, and further that “[a] decision of the … Tribunal under this section is final and is not open to question or review in a court”. The true and tart response is: who cares? In Morningstar, the Divisional Court not only questioned and reviewed, but actually quashed the Tribunal’s decision on the question of whether, because of the Act, the applicant’s right to commence an action is taken away.

This isn’t a mistake, of course. Courts already ignore privative clauses, and rightly so. Vavilov explains why. As I pointed out here, it

embraces the Rule of Law principle … clearly and, crucially, as a constraint on the legislative power. According to the Vavilov majority,

Where a court reviews the merits of an administrative decision … the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. [23; emphasis added]

The majority goes on to specify that “[t]he starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness”, [23] but “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions”, [53] legislative intent notwithstanding.

If a statute attempted to make anything less than correctness the standard of review for jurisdictional boundaries between two administrative tribunals, Vavilov says that it should be ignored, because the Rule of Law, with its demands of predictability, finality, and certainty, requires it. A privative clause that attempts to exclude altogether review of decisions on the jurisdictional boundary between a tribunal and the ordinary courts should similarly be ignored.

But the Vavilov majority could not bring itself to take that approach, because it would be fatal to the entire conceit of deferential review on questions of law which the Supreme Court embraced in CUPE, Local 963 v New Brunswick Liquor Corporation, [1979] 2 SCR 227, and on various forms of which it has doubled down ever since. As Justice Brown wrote in West Fraser Mills Ltd v British Columbia(Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, “in many cases, the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive”. [124] When an administrative decision-maker is resolving questions of law, notably when it is interpreting the legislation granting it its powers, it is always engaged in the drawing of the boundary between its jurisdiction and that of the courts. To admit ― as one ought to ― that the Rule of Law requires these questions to be resolved by courts would cause the entire structure of Canadian administrative law to come crashing down. And so, to preserve it, Vavilov asks the courts to pretend that things that are actually entirely alike from a Rule of Law perspective are somehow mysteriously different. It is, as I said in the post linked to at the start, an instance of post-truth jurisprudence.


Now to my other point. In a couple of ways, Morningstar reminds me of the Supreme Court’s decision in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, [2010] 3 SCR 585. The issue there was whether a litigant who sought private law damages as compensation for an allegedly unlawful act of the federal Crown had, before bringing a civil claim in a provincial superior court, to pursue an application for judicial review in the Federal Court to establish the unlawfulness. It was, in other words, a conflict between remedial regimes potentially open to alleged victims of government wrongdoing. The Federal Court of Appeal had held that such victims had to seek judicial review first; the Ontario Court of Appeal ruled that they did not. The Supreme Court agreed with the latter. It noted that following the Federal Court of Appeal’s approach “would relegate the provincial superior courts in such matters to a subordinate and contingent jurisdiction”. [4] It added too that the case was “fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity.” [18]  

Morningstar, like TeleZone involves a conflict between two possible venues for redress, albeit of a private wrong rather than one resulting from government action. Employees who think they have been wronged in the course or during the breakdown of their employment relationship might seek compensation from the administrative regime supervised by the Tribunal or sue the employer in the civil courts. The substantive question in Morningstar was which of these regimes was the appropriate one on the facts. The courts should be able to resolve this conflict without deferring to the views of the venue administering one of these regimes, just as the Supreme Court did not defer to the Federal Court of Appeal in TeleZone. And, to be sure, there is a difference: the Superior Court that would be one of these conflicting jurisdictions would also be the court resolving the jurisdictional conflict. (The Divisional Court is a division of the Superior Court.) But that’s how our system is set up, and it’s not a reason for deferring to the other jurisdiction involved.

But the deeper and perhaps more important similarity between TeleZone ― and, specifically, the approach the Supreme Court rejected in TeleZone ― and Morningstar has to do with the functioning of the Workplace Safety and Insurance Act. Its section 31 directs employees and employers to apply to the Tribunal for a ruling on whether they are can go to court, before they can actually litigate their claims ― much like the Federal Court of Appeal in TeleZone said those who consider suing the Crown for damages must first go to the Federal Court and seek judicial review. Former employees might then find themselves in the Divisional Court (and perhaps further in the Court of Appeal) for a judicial review, before they can start litigating the merits of their dispute, if it is one that can be litigated in the Superior Court.

To repeat, in TeleZone, the Supreme Court held that the conflict between competing remedial regimes should be resolved in such a way as to maximize access to justice and minimize cost and complexity. Specifically, this meant that litigants should be able to avoid a pointless journey through the Federal Courts before launching their claims in the Superior Courts. The Workplace Safety and Insurance Act might as well have been designed to do the exact opposite ― maximize cost and complexity and undermine access to justice. Of course, that’s not what the legislature was trying to do. It wanted to preserve the jurisdiction of the Tribunal. The legislature might even say, “hey, it’s not our fault that the Tribunal’s decisions can be judicially reviewed ― we said they can’t”. But the legislature acts against a background of constitutional principles, which have long included the availability of judicial review. It knew that its privative clause is constitutionally meaningless. And still it went ahead and created this nonsensical arrangement, instead of simply allowing the jurisdiction of the Tribunal to be raised, perhaps by way of a motion for summary judgment, in any litigation in the Superior Court.

The creation of administrative mechanisms such as the Tribunal ― and their partial insulation from judicial review by the application of deferential standards of review ― is often said to promote access to justice. Perhaps it might do so in the abstract. If a dispute stays within the confines of an administrative tribunal, it will usually be handled more cheaply than in the courts. But, at the very least, such arguments for the expansion of the administrative state must take into account the reality that multiplying jurisdictions means multiplying conflicts both among them and, even more often, between them and the courts. And the resolution of these conflicts is neither cost-free nor something that can be simply wished away. It’s a reminder that, in public law as elsewhere in heaven and earth, there ain’t no such thing as a free lunch.


Morningstar is, in a sense, a rather uninteresting case, at least in the part that I have addressed here. A first-instance judicial review court applies a clear instruction from the Supreme Court and, despite some loose language in its reasons gets it right. But it is still revealing. In Canadian administrative law, courts that do things right, or roughly right, so far as their duty to apply precedent is concerned, are still doing things wrong if we judge them by first principles. This is not a good place for the law to be.

Tanstaafl

What do a libertarian society and its laws look like? Thoughts on Robert Heinlein’s The Moon Is a Harsh Mistress

I have recently ― and, needless to say, very belatedly, for a self-proclaimed science-fiction fan ― read Robert Heinlein’s The Moon Is a Harsh Mistress. I had been put off of Heinlein by Isaac Asimov’s somewhat harsh take on him in his memoir, I. Asimov, just as I’ve been forever put off Sartre by Boris Vian’s portrayal of him as Jean-Sol Partre. No regrets so far as Sartre is concerned, but I am glad I got over my aversion to Heinlein. The Moon Is a Harsh Mistress is an interesting book. Interesting enough, from a legal perspective, that I think it deserves a post here.

In a nutshell, the story is a retelling of the American Revolution, but set on the Moon, a.k.a. Luna, in 2075-76. The lunar population is oppressed by the Authority that supposedly runs the place on behalf of the Earth’s governing “Federated Nations”, but is mostly content to just plunder it by banning free trade and underpaying for the sole export ― grain (hydroponically grown) ― and overcharging for imports. Otherwise, the “Loonies”, most of whom are either transported convicts ― some actual criminals, others political undesirables ― or descendants of convicts, are largely left to their own devices, and become resentful of the Authority’s interference and exploitation. When the Authority tries to put an end to low-level grumbling, things quickly get out of control. Thanks to their courage, self-reliance, and the good fortune of having a fearsomely brilliant self-aware computer (I suppose we would now say AI) on their side, the rebels prevail, though not without considerable loss in the end.

The interest of such a book is, of course, primarily in its representation of a society very different from ours. (I am deliberately echoing the title of David Friedman’s Legal Systems Very Different from Ours, to which I will return.) The difference has little to do with technology ― indeed, on that front, The Moon Is a Harsh Mistress is just one of the many examples of science fiction Golden Age’s writers’ utter failure to anticipate the advances in computing and telecommunications that have occurred in the last 35 or so years. Heinlein’s Luna is a place of fixed (should one say moonline?) phones! What does make it different from 1960s and 2020s, Earth is its having had to adapt to an unforgiving environment, the virtual impossibility for its inhabitants to return “Earthside” where they are crushed by gravity, their lack and suspicion of organized government, and the sex imbalance that one might expect in a penal colony.

Heinlein’s lunar society is a libertarian one, and it is very odd, and unsettling in some ways ― seemingly high prevalence of illiteracy and very early marriages among others. In other ways, though, it is far ahead not only of the time of the book’s publication (1966) but even of ours, especially in its absolute intolerance of what we today might refer to as #MeToo abuses ― touching a woman without her consent, in however minor a fashion, might get a male Loonie “eliminated” at the nearest airlock. (The ready acceptance of the death penalty is another unsettling aspect of the place.) And while Heinlein’s vocabulary sometimes is antiquated, and he does fall into some annoying tropes more in tune with his times than ours, there is no question that his Loonies also have no time for, and indeed no concept of, racial bigotry ― though I suspect that they’d have no time for latter-day progressive identity politics too.

One might wonder, of course, whether Heinlein’s social prognostication is any more lucid than the technological sort. Perhaps a more or less anarchical society with a sex ratio severely out of whack will actually be a hell hole, not the creative and resilient if also deeply weird kind of place The Moon Is a Harsh Mistress depicts. But you know what? People with more conventional views get their fairy tales told to them by gaggles of politicians at every election campaign. If that has a value, then so does libertarian science-fiction. At least, we’re not about to get a Prime Minister Heinlein imposing his views on the rest of us just because we hated him a little less than the other guy. And the fundamental maxim of lunar libertarianism ― there ain’t no such thing as a free lunch, or tanstaafl for short ― is something that we would all do we well to keep in mind.

Still, I do want to pick a fight with Heinlein on one thing: his views of law and perhaps adjudication. The latter, like most everything else in Luna, is done privately, and often as a matter of improvisation. A citizen is simply asked to “go judge” and accepts, for a fee of course ― tanstaafl ― paid equally by both parties to the dispute. A few make this something like a part-time occupation, but there is no professional judiciary, just as there are no lawyers. And there are no laws. The protagonist speaks derisively of

an earthowrm [who] expects to find a law, a printed law, for every circumstance. Even have laws for private matters such as contracts. Really. If a man’s word isn’t any good, who would contract with him? Doesn’t he have reputation?

He adds that, instead of “printed laws”, Loonies

[h]ave customs [that] aren’t written and aren’t enforced ― or could say they are self-enforcing because are simply way things have to be, conditions being what they are. Could say our customs are natural laws because are way people have to behave to stay alive.

(Note that the lack of articles and pronouns in the quotations isn’t a typo or an accident: the Loonies’ English has a bit of a Russian accent. I wonder if non-Russian speakers will find it annoying, but it is mostly well done and I was rather impressed.)

Heinlein’s protagonist has a good understanding of natural law: see, for example, Randy Barnett’s explanation of natural law as a set of principles such that “[i]f we want persons to be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that reflects these principles”. (657; emphasis removed) But he doesn’t seem to understand something that actual natural lawyers have always recognized: the natural law principles aren’t enough. To be useful, at least in a large-scale society, they need to be implemented and given relatively specific shape, which is what “printed”, or at least positive, laws are for. Natural law principles might lead us to the conclusion that we must make up for the losses we negligently cause, but not necessarily tell us what counts as negligent, or how to assess the compensation. Reputation can work to secure the performance of contracts among people who know one another, but it is of less help when we deal with strangers, nor does it necessarily assist us in figuring out what to do about a bargain that has been upended by a change of circumstances.

All that is not to say that the laws must necessarily be the work of a legislature or some other centralized, governmental institution. Perhaps, but that case must be made separately. As Bastiat pointed out in The Law, it is wrong to think that if something is not provided by the state it will not be provided at all, and this may well be as much of a mistake in relation to laws themselves as to other things. Perhaps laws can be efficiently supplied by institutions involved in a competitive marketplace ― indeed, it might not be too much of a stretch to say that the early development of the common law by royal courts competing with other kinds of courts looked a bit like that, though to be sure it wasn’t exactly a free market.

Conversely, though, thinking that there ought to be no state, or a minimal state, or a state that doesn’t seek to monopolize the law, doesn’t mean that one can do without laws ― or without lawyers and professional judges. Even among those of the “legal systems very different from ours” Professor Friedman describes that are not state-based, many rely on professionals for adjudication and sometimes legal representation. It is tempting to think, as Heinlein’s protagonist seems to think, that lawyers and professional judges are only a drain on society, but they ― like all other specialists ― are only a manifestation of the division of labour. If laws are necessary, and they are, and complicated, and they are too, then it is more efficient to let them be handled by people who specialize in this. On this point, Heinlein, or at least his character, fails to apply their own cardinal rule: one cannot have the benefits of a sophisticated legal system without some inconvenience: tanstaafl.

This critique notwithstanding, I do think that The Moon Is a Harsh Mistress is an interesting and worthwhile attempt to think through the working of a libertarian society and its (inevitable?) conflict with a statist neighbour. It might come short in dealing with any number of specific aspects of these problems, but the attempt is hardly less valuable despite this. So let me conclude by quoting the appeal of another of the principal characters to the lunar constitutional convention ― it is one that we would do well to take seriously in our own thinking about constitutions:

[I]n writing your constitution let me invite attention to the wonderful virtues of the negative! Accentuate the negative! Let your document be studded with things the government is forever forbidden to do. No conscript armies … no interference however slight with freedom of press, or speech, or travel, or assembly, or of religion, or of instruction, or communication, or occupation … no involuntary taxation. … What I fear most are affirmative actions of sober and well-intentioned men, granting to government powers to do something that appears to need doing.

The Supreme Court―What Is It Good for?

The Supreme Court is deciding fewer cases; is this a sign of modesty, or boldness?

I’d like to come back to a recent post of Mark’s, the one on the Supreme Court seemingly granting leave to appeal in and hearing ever fewer cases. As Mark notes, “[o]n first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time” ― that of a national institution charged with developing the law, and not merely with correcting the errors that occur in the lower courts. Indeed the idea that the Supreme Court’s role is to develop the law follows logically from the requirement that decide whether to grant leave in a case according to whether it presents questions of “public importance” or “the importance of any issue of law or any issue of mixed law and fact involved”. And this requirement is laid down not by the Court but by Parliament, in s 40(1) of the Supreme Court Act. It might even be an essential characteristic of the Supreme Court and thus a constitutional requirement according to Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433. Who knows.

Be that as it may, Mark argues that, whether or not it is a dereliction of duty, the Supreme Court’s choice to butt out and let the provincial and federal courts of appeal develop the law isn’t all bad:

 There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court. This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. (Paragraph break removed)

I have a somewhat different view on this. For one thing, there is at least some reason to think that the Supreme Court’s decision-making process is in fact more suited to the development of the law. For another, and more importantly, the Supreme Court’s choice to take fewer cases is not exactly innocent.

On the process side, the reason panels expand, while the number of cases courts and individual judges hear shrinks, as one goes up the curial hierarchy is that we expect that more judges devoting more time to any one case are more likely to get it right. In particular, the Supreme Court’s nine-judge bench is sure to be more diverse ― geographically, on a number of demographic dimensions, and ideally intellectually too ― than a three- or even five-judge panel of a court of appeal. To be sure, there can be costs associated with larger panels, especially when they try to conjure up unanimous judgments that need to paper over substantial disagreements. But, at least in the long run, this logic seems sound.

The Supreme Court also benefits, if that’s the word, from inputs into its decision-making that should, in theory, improve it. There are more interveners at that level (including Attorneys General from provinces other than the one whence a case originated), more clerks, and more academics writing about cases before the Court. Perhaps some or all of these do more harm than good. (See, for example, Justice Stratas’ skepticism about interventions in Canada (Attorney General) v. Kattenburg, 2020 FCA 164.) But, to the extent that any do some good, they underscore the benefits of the Supreme Court’s decision-making. Again, the effects, if there are any, only appear in the long run. There are tons of great decisions made by courts of appeal, as Mark notes, and far too many bad ones made by the Supreme Court. But the latter does seem to have an institutional advantage.

More importantly though, I think that the Supreme Court does not grant leave in fewer cases out of some sort of modesty. The issue isn’t whether Court sees itself as having an important role in developing the law ― it certainly does ―, but how it chooses to play this role. Crudely, there are two possibilities: on the one hand, a court might develop the law incrementally by deciding many cases; on the other, it might decide only a few cases, but make significant changes to the law in every one. Of course, this is something of a caricature: how much a case develops the law is a matter of degree, a point on a spectrum. And even the same court might not take the same approach in every case. But you get the idea. Mark writes that “[i[f the Court is granting fewer leaves, it is deciding fewer cases that could ‘settle the law’ in areas that require it”. But deciding many cases isn’t the only way to settle the law.

Now it might seem that the two approaches ― many incremental cases or few big ones ― amount to much the same thing, in the long run: 10 cases developing the law by one unit each, the next always building on the last, or one case jumping ahead by 10 units end up in the same place. One might even think that the few-big-cases approach is preferable insofar as it saves some litigants the expense of ending up at the Supreme Court. It might also enable the Supreme Court to maximize the institutional advantages I have described above. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 is an illustration: it attracted all manner of attention from interveners and academics, and the Supreme Court itself appointed amici curiae to assist it.

Despite this, I think that we should be wary of the few-big-cases approach. It sits uneasily with the judicial role ― even the role of a court mandated to develop the law, and not only to do justice between parties in individual cases. Even when developing the law, a court still does so in the process of deciding cases, in response to the gaps or defects revealed by the disputes before it. It can properly seek to fill the gaps or remedy the defects, but it does not hold a roving commission to reform the law on a grand scale. Again, there are degrees of this, and the line between what is and what is not appropriate is blurry. But it should be apparent that, taken to the extreme, the view that a court can reform large areas of the law at once makes its role indistinguishable from that of a legislature.

There is, perhaps, an additional point. The self-perception of a court may matter: does it see itself as primarily engaged in adjudication or in law reform? This is related to but not quite the same as the vexing question of whether courts make or find law. (I discuss an example of the Supreme Court’s puzzlement at this here.) While a court that thinks of the common law as the product of judicial legislation might be inclined to be less modest than one that thinks of it as the product of judicial discovery, it need not necessarily be so; it might see itself as only properly legislating “in the gaps”. Conversely, a court may not be modest despite claiming not to be making law. The Dworkinian conception of judging is like that ― it is not at all modest, despite ostensibly disclaiming judicial law-making. In any case, the court’s self-understanding may shape its decision-making, at least in subtle ways.

And it is easy to point to decisions of the Supreme Court reflect a legislative, ambitious view of its role. Vavilov is one, of course, and very visibly so. Mark compares it to “an academic essay”, but it is at least as much of a legislative act, albeit one less crisp, though more fully reasoned, than a statute. The majority opinion does not even get to the dispute before the court until Part V, paragraph 146. But Vavilov is only an extreme, not the only example. R v Hart, 2014 SCC 52, [2014] 2 SCR 544, where the Court reformed the law on the admissibility of “Mr. Big” confessions, is a favourite of mine. Justice Moldaver, for the majority, explained that he

propose[d] a solution that … strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime.  This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [84]

And then, of course, there are the constitutional cases. There are those where the Supreme Court re-writes the law and gives “benediction” to rights heretofore unknown to our jurisprudence. But others too, like the notorious R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, also have a legislative feel to them.

Mentioning Jordan brings me to an important caveat: I do not mean to suggest that the Supreme Court should never go big. I have defended that decision, which may well have been the only way the right to a trial “within a reasonable time” could have been made more than a dead letter. Hart may have been the only way the considerable injustices plaguing the use of Mr. Big operations were ever going to be addressed, when one considers the resounding silence of Parliament on this issue both before and since. And even a clean-up on the scale of Vavilov may have been inevitable in administrative law. Justice Scalia, in “The Rule of Law as Law of Rules”, famously argued that judges should confidently lay down rules when deciding cases, to achieve equality before the law and predictability, and to bind themselves and their colleagues to a stable legal framework, including in the face of political pressure. There is something to this.

Nonetheless I think the point still stands: the Supreme Court is not necessarily being cautious or taking a laissez-faire approach just because it is deciding fewer cases. It may well be making a choice to develop the law in bold, big steps rather than incrementally. Bold action may have its advantages, and it may sometimes be necessary, but it runs the danger of being less judicial, and thus injudicious. On the whole, I think I would rather that the Supreme Court decided more smaller cases than fewer big ones. But they won’t ask me.