The Law of Bonkerstown

Does the constitution mandate the soft bigotry of low expectations?

In a much-noticed decision, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, the Ontario Divisional Court has declared unconstitutional a standardized test would-be teachers were required to take in Ontario, as well as provisions of the Ontario College of Teachers Act and regulations made under it that required the test to be administered. The Court found that the test infringed the equality rights of “racialized” candidates under section 15 of the Canadian Charter of Rights and Freedoms, because they (or at least some groups among them) had significantly lower pass rates than white ones. The decision is perverse in itself, as well as showing the perversity of section 15 jurisprudence.

The case can be summarised quite simply. In the face of concerns about falling student performance on mathematics tests, the Ontario legislature introduced a requirement that aspiring teachers themselves pass a standardized test. Regulations were drawn up and a test designed, drawing on a “bank of math questions used for Grade 3, 6, and 9 assessments” for its substantive part and “on Ministry policy documents for the pedagogy component”. [24] Alas, despite two reviews “for bias and sensitivity to equity issues” [25] the results of a trial run and of the first official iteration of the test showed considerable disparities between ethnic and linguistic categories of test-takers. A group of would-be teachers, supported, it is worth noting, by the teachers’ union, challenged the test on the basis that these disparities amounted to unconstitutional discrimination.

In a unanimous opinion by Justices Backhouse and Nishikawa, the Divisional Court agrees. Following Fraser v Canada (Attorney General), 2020 SCC 28, it explains that section 15 rights are limited whenever state action impacts a group defined by a trait it names or an analogous one more severely than a relevantly comparable group, and this disparity “has the effect of reinforcing, exacerbating or perpetuating disadvantage”. [56] Crucially, there is no need for a demonstrated causal connection between the disparity and the disadvantaged group’s characteristics, and no need for all of the disadvantaged group’s members to be similarly affected.

This test is met here by the statistical showing that some non-white groups have done noticeably worse than white test-takers ― a result that the Court ties to the fact that “[t]he education system in Ontario has historically imposed disadvantages on Black and Indigenous students” [64] and that “Black and Indigenous students tend to be over-represented in less challenging, basic and general level courses, and under-represented in advanced courses”. [65] Such students, the Court says, would do better if there were more teachers who shared their background, but there are not ― on the contrary, “[t]wenty-six percent of Ontario students are racialized. However, only thirteen percent of teachers are racialized”. [67] In addition to the statistics, the Court discusses what it describes as “qualitative evidence”, in the form of an affidavit by one candidate, of African origin, who found taking the test difficult. One reason for this was that the test “is taken on a computer”, while the candidate “ha[d] never used a computer or calculator for math and ha[d] never taken a computer-based math test” [89] ― though this candidate was actually successful on the math part of the test, and only struggled with the pedagogy one.

The Court then asks whether this limitation of equality rights is justified in a free and democratic society. It accepts the government’s submission that the test is imposed to improve student performance and is a rational way to do so. Furthermore, the issue involves balancing would-be teachers’ rights and the needs of the students, which points to “a highly deferential approach” [132] to deciding whether the test is a minimally impairing way of achieving the government’s purposes. Yet the Court still finds that the test is not justified. This is, crucially, because the government would do as well ― or, the Court strongly suggests, better ― if the test were replaced with a requirement that aspiring teachers be required to take a math course as part of their mandatory education. The Court’s key finding is that this

would be significantly less impairing of equality rights. There is a plethora of evidence in the record highlighting the disproportionate impacts of standardized testing based on race … In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course (i.e. that racialized teacher candidates might disproportionately fail these math courses), and we do not think such an inference can be made on the basis of logic or common sense. [142]


This way lies madness. The Divisional Court is, of course, bound by the Supreme Court’s test at the section 15 stage of the analysis, and for the most part it should not be faulted for the way in which it applies it. What its application of the test makes clear, though, is that this test is, to use a technical term, bonkers. It compels the conclusion that constitutional rights are limited ― or, as the Court puts it, prima facie breached ― by what could, for all we know, be statistical artefacts. (One point that arises in the Court’s discussion is whether data from one trial and one official test are sufficient to support its conclusions. There is a logic to the Court’s response that “a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, [85] but that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture.) References to historical discrimination and current statistical disparities are only for colour; they do are not meant to have any actual explanatory power. They cannot, for instance, account for the fact that, on the trial edition of the test, the disparity between candidates of “Caribbean” and “African” backgrounds was almost as great as that between “Caribbean” and “European” candidates. A potential constitutional violation is made out by a showing no one needs to and, quite possibly, can explain. This is a surrender to, indeed an embrace of, irrationality masquerading legal doctrine.

Meanwhile, the Divisional Court’s approach to section 1 is perverse in its own right, though it is also consistent with the underlying logic of the Supreme Court’s approach. The Court says that the province should rely on courses in mathematics rather than tests to ensure that teachers are competent, because there is no evidence of disparate effect of a course requirement. For one thing, note that the Court doesn’t say there is evidence of equal outcomes. It’s just that nobody seems to have studied the matter. And consider: if the course uses rigorous assessment of the same kinds of skills that the test measured, why would the outcomes be different? Alternatively, how will we know that the reason for the course requirement not yielding disparate outcomes won’t be a lack of rigorous assessment? I’ve taught enough at universities to know that this is not exactly a far-fetched hypothesis.

Here is the desperately sad thing about the Court’s reasoning. The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. The “qualitative evidence” on which the Court relies is telling in this regard. It is, apparently, too much to ask of a teacher, or at any rate, on the Court’s logical, a “racialized” teacher, in the 21st century to be able to do a test on a computer. We shouldn’t care that a future teacher cannot answer multiple-choice questions about pedagogy, because hey, he is “uniquely qualified to broaden students’ awareness and understanding of Franco-African culture and cross-cultural world views”. [91] This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

And yes, of course, it’s not impossible that the standard is set in an insidiously biased way. Needless to say, a standard vetted, twice, for precisely this potential problem by people genuinely concerned about this possibility is unlikely to have this problem. Still, perhaps. But then it should be possible to demonstrate that this is so. As Justices Brown and Rowe say in their dissent in Fraser, one should not assume that a statistical disparity in outcomes between groups or a correlation between disadvantage and membership in a group equals causation:

where one is dealing with complex social and economic considerations … one can readily assume that there are many factors involved, some of which will give rise to causation while others will simply be the result of coincidence (that is, caused by independent factors). [180; emphasis in the original]

Let me end this part of the past by quoting Chad Williams, writing for Fair for All:

the fundamental assumption of critical race theory is that disparities between racial groups are in themselves evidence of racism. This assumption is faulty because it fails to allow or account for the numerous reasons other than racism that racial groups might have different outcomes. At the population level, these plausible reasons include age, geography, and, of course, culture. Many analysts of group differences are trapped in the false binary that these differences must result from either racism or genetic differences. However, Thomas Sowell and others have made compelling arguments about why this simply is not true. This is not to say that past disparate treatment has had no effect on current disparate outcomes, but it certainly cannot be the only cause for these disparities. Accordingly, a policy that begins from the faulty assumption that disparities equal racism is bound to fail as a bulwark against what actual racism still exists today.

This policy is the law the Supreme Court’s created in Fraser, and the Divisional Court’s decision in Candidates’ Council illustrates the tragic consequences it is bound to have.


Before addressing the question “and now what?”, let me point out two things about this case that I do not understand. One has to do with what exactly the Court is deciding. Beyond explaining that a recent amendment to the College of Teachers Act required the test to be set up and regulations under the Act gave effect to the requirement, the Court’s reasons focus entirely on the test. The evidence, such as it was, had to do with the results of different groups of candidates on the particular test they were administered, and the experience of some individual candidates. Yet the court not only invalidates the test, but also the statutory provision and the regulation pursuant to which it was created. It doesn’t at all explain why. Under the heading “What Is the Appropriate Remedy?” it simply states that “[a] declaration” to this effect “will issue”. [161] The province can’t create a new test even if thinks that it might come up with one that will not produce the disparities this one did. That doesn’t seem right to me, and the absence of any explanation does not speak well of the Court’s commitment to transparency and to judicial craft.

Relatedly, I do not understand the Court’s approach to the standard of review. The Court deals with it briskly, citing  Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, for the proposition that “constitutional questions are reviewed on a standard of correctness” [50]. But that seems too quick. Vavilov makes a

distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit [Charter] rights … and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter. [57]

The former type of cases is not, ostensibly, decided on the correctness standard at all, but following the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and refined in a number of subsequent cases. Only the latter attract the correctness standard. Co-blogger Mark Mancini has argued that this is incompatible with Vavilov‘s overall thrust, and so have I, but that’s how it is until the Supreme Court says otherwise. Now, as I’ve alluded to just above, Candidates’ Council seems to involve both types of issues. The design of the test is a discretionary administrative decision. It’s not prescribed by statute or regulation: regulation 3 of the Proficiency in Mathematics Regulations, made under the College of Teachers Act, simply provides that “[T]he Education Quality and Accountability Office shall develop English and French versions of a mathematics test”. The test, then, should in principle be assessed under the Doré framework, on a reasonableness standard. Meanwhile, the Regulations and the enabling section of the Act are obviously the kind of provision whose constitutionality falls to be addressed on the correctness standard under Vavilov.

Does that make sense? No, not really. I would even say, none at all. But that’s what Vavilov pretty clearly seems to require. It is puzzling that the Court does not even attempt to engage with its demands. This isn’t even a matter of fudging the law to get to a desired outcome ― as we have seen, the Court makes a show of being deferential while ostensibly applying the correctness standard, and strikes down the test anyway. It could easily have reached the same result under Doré. I suppose the absurdity of the Vavilov/Doré cohabitation was simply too much to deal with.


So what to do about this terrible decision? Unsurprisingly given both the Zeitgeist and the egregious nature of this decision, the n-word ― “notwithstanding” ― has been thrown around since the decision came out. More than on other occasions, I understand the impulse. But, as before, I remain of the view that it must be resisted. While using the “notwithstanding clause” to undo this particular decision may be a short-term fix, it is not a genuine solution to the underlying problem. The invocation of s 33 of the Charter will have to be renewed every five years. A legislature that takes a different view of either the substantive issues or indeed the propriety of using the notwithstanding clause itself need not do so. More importantly, using the notwithstanding clause to resurrect this particular policy does nothing to prevent other judgments, striking down other policies, from applying the same misbegotten principles as the Divisional Court applied here. Are the supporters of the notwithstanding clause saying that it should be used, René Lévesque-style, to insulate all law from judicial review? They’ve always been angry at me for suggesting that that that’s where their positions naturally led.

The immediate solution, of course, is for the province to appeal. One should hope that the Court of Appeal, and the Supreme Court if need be, will restore sanity, if only on the section 1 issue, on which Fraser does not control. Otherwise, the appropriate solution ― and it is probably well worth pursuing regardless of the outcome of the appeal ― is an amendment to section 15 of the Charter. At a minimum, it should endorse the dissenting position in Fraser, requiring a showing of causation for statistical disparities to be regarded as limiting equality rights. More radically, the amendment could excluding disparate impact discrimination from section 15’s scope. My tentative opinion is that this is the better, cleaner option ― but I am open to persuasion. Either way, an amendment is both a more permanent ― not to mention transparent and honest ― way of avoiding similar disasters in the future than using the notwithstanding clause to revive this particular policy, and a more modest one than a blanket invocation of the notwithstanding clause to prevent section 15 challenges at all would be.

Case Not Made

Unconvincing arguments against judicial enforcement of rights under the UK’s Human Rights Act 1998

Policy Exchange has recently posted a paper by Richard Ekins and John Larkin QC on “How and Why to Amend the Human Rights Act 1998“. Lord Sumption has written the foreword, picking up on themes explored in his Reith Lectures, which I have summarised and commented on here. There is much to disagree with in the paper, as well as some interesting ideas. Time permitting I might do a short series of posts on it. For now, I want to focus on one idea raised by Lord Sumption and addressed in a rather different way in the paper. The idea in question is that the UK’s Human Rights Act 1998, and so presumably any constitutional or statutory enactment that grants judges the authority to verify whether legislation and administrative decision-making complies with a set of enumerated individual rights, results in judges making decisions that are political rather than properly judicial.

Lord Sumption writes that the Act “treats broad areas of public policy as questions of law, and not as proper matters for political debate or democratic input”. (5) One example that seems to exercise him ― and that has exercised the UK’s political leaders for years ― is that of the franchise. He denounces the European Court of Human Rights for having rejected prisoner disenfranchisement despite its approbation by legislatures on the basis that “it was a question of law and not a matter for Parliament or any other forum for democratic input”. (5) For Lord Sumption, “the suggestion that the electoral franchise is not a matter in which the representatives of the general body of citizens have any say, seems startling”. (5)

But, more broadly, Lord Sumption argues that cases involving balancing between public policy objectives and individual rights ― which is a great many under the European Convention on Human Rights and the Human Rights Act and, in theory, all of them under the Canadian Charter of Rights and Freedoms ― are not fit for judicial resolution. Since policy-making means “a choice between competing considerations, and sometimes compromise between them … [i]t is necessarily a political question.” (6) Treating such choice “as a question of legal proportionality, requiring judges rather than elected representatives to assess the relative importance of the various values engaged before deciding which should prevail” (6) is, in his view, a fatal mistake.

As I have previously argued here in response to another distinguished, if less famous, judge, this argument is misconceived. Similarly to Lord Sumption, Chief Justice Joyal of the Manitoba Court of Queen’s Bench has expressed the worry that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

In response, I pointed out that, taken all the way, this leads one to Jeremy Waldron’s rejection of judicial review of legislation. Chief Justice Joyal did not, ostensibly, want to go all the way. Lord Sumption might ― indeed, he may well want to go beyond Professor Waldron, who specifically objects to strong-form judicial review, where courts can actually refuse to apply legislation, not so much the weak-form arrangement that the Human Rights Act 1998 put in place. But strongly argued though it is, this position is not all that compelling. As I wrote in response to Chief Justice Joyal,

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures … But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

Issues cannot be declared political ― or non-political, for that matter ― by stipulation. For instance, the extent of the franchise can meaningfully be addressed in the courts, as it has been under the European Convention and in Canada. It takes more than a bald assertion that this is truly a political matter, or the existence of public controversy, or the involvement of moral considerations, to show that courts should keep out of it or defer to political judgments that are, as often as not, driven by prejudice or self-interest. (As to the point about morality: courts make judgments influenced by morality when applying concepts such as reasonableness, negligence, or unconscionability. One can certainly be sceptical of the resulting jurisprudence, but it’s not plausible to claim that morality is something courts should always stay away from.)

Rather, for any given right that the designers of a constitutional order might consider, they should ask themselves whether, given their respective strengths and weaknesses, a given institution would do a better job of protecting ― better, that is, all things considered, including the downsides of allocating the task to this institution instead of a different one. Institutional considerations have to be front and centre in this analysis. Issues cannot be declared to be political or legal apart from a consideration of actual political and legal institutions that would be dealing with them. Lord Sumption only gestures at institutional factors, claiming that “judges lack the information, experience and democratic legitimacy to make … choices” involved in the proportionality analysis. Even here, the appeal to democratic legitimacy is largely question-begging. It’s not obvious that these choices need to be made democratically, as is evident from the fact that, in the absence of the Human Rights Act, many of them would be made by bureaucrats rather than Parliament.


Professor Ekins and Mr Larkin engage with the institutional issues to a greater extent. To be sure, they too assert that proportionality analysis

requires judges … to answer a series of political questions, about the legitimacy of the legislative objective, the suitability of the means adopted to that objective, and, especially, about the fairness of the balance to be struck between attaining that objective and the claimant’s interest. [33]

But they also say that these “are not questions that a court is well-placed by training or ethos to answer”. [33] They worry, too, “that courts will be drawn into political controversy, with litigation a rational means to enjoin the court to lend its authority to one’s cause”. [34] They also claim that the outcome of rights litigation often depends on the subjective and personal beliefs of the judges hearing the case (and hence on who happens to be on the relevant court and panel).

What should we make of this? To start, it’s important to note that, although Professor Eakins and Mr Larkin have very little to say about Parliament and the executive, deciding which institution should be given the role to uphold rights is necessarily a comparative exercise. It is not enough to point to the shortcomings of the courts, even if these are real enough. It is necessary to show that courts are worse than legislatures, ministers, and bureaucrats, either on a specific dimension where it is possible to compare them directly or on due to some concerns unique to them. With this in mind, I don’t think that Professor Ekins and Mr Larkin make a convincing case at all.

It is of course true that judges lack the “training” that might be helpful to answer the sort of questions that arise in the course of proportionality analysis. But what training have members of Parliament? What about Ministers? Are they trained to weigh up rights when they make policy? They are not, of course. As for ethos: for the high-minded rhetoric of the defenders of legislative articulation of rights, it is very far from obvious to me that politicians care about rights on a regular basis. They do sometimes, of course, especially if the rights of their constituents may be at issue. But their record is patchy at best, and does not suggest an ethos of weighing up rights and social needs in a rigorous fashion.

The most that Professor Ekins and Mr Larkin say on this is that, when it comes to delegated legislation, “Parliamentary scrutiny, including anticipation of political controversy, is an important discipline on ministers, even if secondary legislation is almost never rejected outright”. [48] We are, I suppose, to take this claim on faith. Meanwhile, Professor Ekins and Mr Larkin also note that there are “limits on parliamentary time” which, they say, combine with “scarcity of political capital” to “make[] it relatively difficult … for Parliament to legislate to correct judicial lawmaking” in relation to rights. [40] To their mind, this is a sign that “judicial lawmaking” needs to be curbed. But one can just as easily argue that limits on Parliament’s time and reluctance (or indeed inability) to spend political capital on decisions that will be unpopular even if right are a key reason for wanting judges to make decisions about rights, especially about the rights “discrete and insular minorities”, in the American parlance, and of especially unpopular groups such as criminal suspects and prisoners (a concern that Professor Waldron, for example, has come to acknowledge).

The concern about courts being drawn into politics is legitimate though it is all too often self-fulfilling, in the sense that it is commentators and politicians who share Professor Ekins’s and Mr Larkin’s views who generate much of the controversy. Still, it is fair to worry about the authority of the courts being undermined by their having to make decisions that are bound to be politically controversial. Then again, would the authority of the judiciary not be negatively affected by its having to blindly apply laws that disregard human rights? Besides, occasional flair-ups of criticism notwithstanding, in countries like the United States in Canada, where courts have been given the mandate to make decisions about rights long before the United Kingdom, their standing in the public opinion is much higher than that of legislatures. Indeed, there is an element of self-contradition in the arguments advanced by Professor Ekins and Mr Larkin: if the courts were really suffering from a legitimacy crisis due to all those controversial decisions the Human Rights Act foisted on them, why would Parliament need to expend scarce political capital on disagreeing with them? The authority of the courts, then, may benefit rather than suffer from their having jurisdiction over rights issues.

As for the alleged subjectivity of judicial decisions regarding rights: I think this too may be an issue. It may be more of an issue in the United Kingdom, where the Supreme Court (almost) never sits en banc, than in the United States and in Canada, whose supreme courts do (respectively always and, these days, usually). Then again, if this is acceptable in other cases, which can also divide the bench, sometimes closely, perhaps this is no more concerning where rights are involved. More importantly, though, the criticism of the courts, in the abstract, does not tell us much. In what sense is decision-making by Parliament, by ministers, or by officials not subjective? When it comes to Parliament and ministers, their inclinations and decisions will fluctuate depending on which party is in power. Precedent and legal doctrine constrain judicial decisions based on rights imperfectly. But if constraint and principle are valuable in such decision-making, then courts still do better than the other branches of government.


So neither Lord Sumption nor Professor Ekins and Mr Larkin have advanced particularly convincing arguments against having judges enforce individual rights. Rights issues are not inherently incapable of judicial enforcement, and the institutional arguments against having the judges deal with them are far from obvious. None of this fully addresses an argument along Waldronian lines, one that is purely about ineradicable disagreement and the fairness of resolving it via democratic procedures. But that argument only goes so far ― and, in particular, as Professor Waldron recognised, I think, it does not obviously apply to prevent courts from overriding decisions by the executive branch, which is what Professor Ekins and Mr Larkin want to do.

Fizzy Drink or Fuzzy Thinking?

Questionable arguments in Cass Sunstein and Adrian Vermeule’s critique of anti-administrativism

I have finally started reading Cass Sunstein and Adrian Vermeule’s Law and Leviathan: Redeeming the Administrative State. As it says on the tin, the (very short) book is a defence of the administrative state, and of American administrative law, against criticism by those who ― like me ― would to tear it all, or at least much of it, down. Ostensibly, the book is offered as something of an olive branch, an argument for why those who suspect that the administrative state is inimical to the Rule of Law are mistaken about this, and can, if not embrace powerful government agencies vested with vast discretionary powers, then at least make peace with their existence.

But it gets off to a questionable start in the first chapter, which describes ― and pokes fun at ― anti-administrativist thinking, which Professors Sunstein and Vermeule brand “the New Coke”, ostensibly in reference to Chief Justice Sir Edward Coke, whom anti-administrativists like Philip Hamburger regard as a hero of opposition to executive-branch tyranny but presumably also to one of the biggest flops in the history of marketing. I don’t mind the jab ― it is amusing, although of course the Chief Justice’s name doesn’t sound like that Coke. I do mind that the argument is less forthright than it ought to be.

Professors Sunstein and Vermeule make two main points in their first chapter. One, which is less interesting both to them and surely to most of their non-American readers, is that there is no particularly strong reason to think that the US Constitution’s original meaning outlaws the modern administrative state. The other, in which they are more invested and which will resonate abroad (indeed they assert, in the introduction, that their argument is “promising … for nations all over the world” (18)), is that the administrative state is essential for government to do its rightful work, and that its critics are mistaken to only focus on its alleged dangers for democracy and liberty. This is what interests me here.

One argument I find objectionable has to with the relationship between the administrative state, liberty, and markets, and the relationship of the law, especially the common law, with all three. While anti-administrativists see the administrative state as a threat to be neutralized,

[f]or the theorists and architects of the modern administrative state, private power, exercised through delegation of legal powers and entitlements by the common law and by market ordering, was itself a threat to individual liberty. Hence vigorous government, checking the abuse of corporate and other private power, was deemed just as indispensable to liberty as were constraints on executive abuse. Consider, for example, the question whether the Social Security Administration, the National Labour Relations Board, the Securities and Exchange Commission, and the Federal Trade Commission are threats to freedom or indispensable to it ― questions on which reasonable people differ. (30)

There are several problems with this. First, the claim that private liberty is just something “delegated by the common law” is, at best, taking sides in a contentious debate. The common law itself did not see things that way. A person is free to do that which the law does not prohibit; he or she does not require the law’s permission.

Second, I think it’s quite fair to say that “vigorous government checking the abuse of … private power” is important. Recall Dicey’s example of Voltaire being “lured off from the table of a Duke, and was thrashed by lackeys in the presence of their noble master” and “unable to obtain either legal or honourable redress”. But to say so is not to answer the questions of what forms of “private power” can legitimately be checked by the state, and how they should be checked. Professors Sunstein and Vermeule want us to assume that refusal to deal is the same thing as a private violence in this regard, and that an administrative agency making law and adjudicating claims that the law it made has been infringed is no different from the police and independent courts enforcing the criminal law. These things don’t follow.

And third, the question Professors Sunstein and Vermeule pose is misleading. Reasonable people really should not differ on whether administrative agencies that can create rules backed by the threat of penal sanctions are a threat to liberty. Of course they are! What reasonable people can differ about is whether, all things considered, the threat is offset by, on the one hand, the good these agencies might do and, on the other, the mechanisms that might be devised for controlling and minimizing it. I think that it’s fair for them to argue that the administrative state does good things and that its critics have an unwisely single-minded worldview (whether or not these arguments ultimately succeed is, of course, a different question). But to deny that the administrative state threatens liberty is to peddle a similarly one-sided set of beliefs.

Professors Sunstein and Vermeule go on to give an example of how private law and private power threaten liberty, so that the administrative state is no more coercive than private ordering which it displaces:

If some people have a lot and other people have only a little, it is … not because of purely voluntary achievements and failures, important as those are. It is also because of what the law chose to recognize, protect, or reward. A homeless person, for example, is deprived of access to shelter by virtue of the law of property, which is emphatically coercive. In these circumstances, the creation of modern agencies … did not impose law or coercion where unregulated freedom previously flourished. They substituted one regulatory system for another. (31)

This, again, is quite misleading, and indeed the example comes close to doing the opposite of what Professors Sunstein and Vermeule intend ― it shows the dangers of the administrative state rather than its benefits. A homeless person is not deprived of shelter by “the law of property”, but by refusals to deal on the part of prospective landlords ― and possibly, at one remove, by prospective employers.

I’ll explain why the difference matters presently, but first, it’s important to see that the “law of property” would just as happily assure a person of a home as deny them one. Indeed, when we consider how attempts to interfere with the law of property have fared, we can see that, if anything, it would much rather provide shelter to everyone, as it were. Attempts to abolish private property in land and housing in the Soviet Union did not eliminate homelessness ― but they did result in a dire shortage of housing, such that multiple families were forced to share “communal apartments” with a handful of others if they were lucky, and with dozens if they were not. (My mother was born in such an “apartment” which her parents shared with seven other families.) Less dramatically and closer to us, administrative interference with property rights by means of zoning and building codes raises the cost of housing and prevents enough of it from being built ― which, of course, helps make people homeless in the first place.

In a competitive marketplace, refusal to deal by a prospective landlord or employer will seldom condemn a person to homelessness. Because landlords and employers compete for tenants and employees as much as the latter compete for apartments and jobs, some will moderate their demands to the point when even people who are not well off and/or have limited skills will find something for them. To be sure, some people will still need help ― temporarily in some cases, permanently in others. But this help can take the form of cash transfers, rather than regulation. But once regulation, often enacted by the administrative state, starts restricting the supply of housing or raising the cost of workers beyond what they can produce, refusals to deal by the artificially depressed number of landlords and employers risk becoming much more dramatic. In short, Professors Sunstein and Vermeule, like many well-intentioned pro-administrativists before them, are presenting as solutions mechanisms that often serve to aggravate problems they purport to solve.

This brings me to the last issue I would like to address. Professors Sunstein and Vermeule quote at length a wonderful passage from “The Federalist No. 41“, by James Madison ― a hero for many originalists and supporters of limited government whom they are eager to enlist as an ally to their cause:

It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. … [C]ool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.

Professors Sunstein and Vermeule rely on Madison in support of their rejection of “a fallacious mode of reasoning that afflicts the New Coke critics of executive power” ― namely,

selective attention … to the risks of … government action, as opposed to inaction; to the risks arising from the functions of government, as opposed to dysfunctional governments … ; to the risks generated by new powers, as opposed to t he risks arising from old powers that the new powers could be used to counter. (34-35)

This is not altogether unfair: it would indeed be a mistake to only assess government institutions by the potential for abuse of their powers, without asking what good they might be able to do.

But Madison does not stop at this. His affirmative prescription is just as important as his critical point. He says that we must always ask whether a proposed government power “is necessary to the public good”. Put to one side the question of whether the public good is a useful or meaningful metric. (I have just argued that it is not.) It’s Madison’s necessity standard that I want to emphasize. Necessity is a high bar; it is not enough that a proposed power might be advantageous ― it has to be necessary. This is not obviously a prescription for expansive government, let alone for an expansive administrative state. And then, even with necessary powers, Madison says that we must “guard as effectually as possible against a perversion of the power to the public detriment”. This dovetails nicely with his concern for dispersing and checking powers explored in later (and better-known) papers.

The anti-administrative case isn’t that the administrative state can do no good. Of course it can, sometimes. It is, first, that the administrative state is often actively harmful ― on balance, even accounting for the good it can do ― such that it cannot be regarded as necessary; and, second, that the structure of administrative institutions is such that they fail to provide effectual guardrails against the perversion of their powers. The rest of Law and Leviathan is meant as a response to this last contention and, if its arguent succeeds, it will address part of the anti-administrativists’ concerns. But it will be less important part, as the order of Madison’s requirements makes clear. Devising protections against the abuse of power can only come after we have established that the power is necessary. And anti-administrativists’ concerns on this first front cannot be assuaged by simply pointing to the good that the administrative state might do ― least of all when, as in the example offered by Professors Sunstein and Vermeule ― the good is an illusion that rests on faulty or misleading claims about the nature and effect of coercion in the administrative state and in the market.

The Public Good Trap

Why thinking that the public good is the measure of law and politics is a mistake

The rhetoric of public good has always been part of legal discourse; even scholars who are, one might think, hard-boiled legal positivists are surprisingly sympathetic to the idea that law inherently serves the public interest, as are, of course, the positivists’ critics and opponents. Mark Elliott and Robert Thomas capture this sentiment in their textbook Public Law, which I have just finished reading as I prepare to teach in the United Kingdom starting next month. Professors Elliott and Thomas write:

In a democracy, citizens elect a government to protect, advance, and serve the public interest. In normative terms, democratic governance presupposes that government acts as the servant—rather than the master—of the people. There are two dimensions to this notion that good governance means (among other things) governing in the public interest. The positive dimension is that government should make decisions that advance the public good. … Governing in the public interest has a second, negative dimension. Government must not act in a self-interested manner. (Ca. 401; paragraph breaks removed; emphasis in the original)

I suspect that most people, of all kinds of political and ideological persuasions would view this as correct and indeed uncontroversial. But for my part I do not, and indeed I think that the things that Professors Elliott and Thomas themselves say, and the examples they use, expose the difficulties with this argument.

Two things, though, before I go further. First, to be very clear, I do not mean to pick on Professors Elliott and Thomas. I just happened to be reading their book (and I might have more to say about it soon), and thought that it was representative of what strikes me as a pervasive problem with the way people think and talk about these issues. And second, I think that Professors Elliott and Thomas are right to say, just before the passage quoted above, that “[g]overnments have no legitimate interests of their own, and nor, when acting in their official capacities, do the individuals who lead and work in governments”. This might be a more controversial thing to say than the claim that government must serve the public interest, but if it is true it must, then I don’t think there is any room for a raison d’État independent of the public interest.


But what about the main claim? Why wouldn’t governments need to work in the public interest? How, indeed, could it be otherwise? Well, consider what Professors Elliott and Thomas also say by way of explaining the “positive dimension” of the public interest:

The public good is a highly contestable notion. Concepts such as good governance and the public good are not objective yardsticks against which the legitimacy of governmental action can be determined. … In a democracy, the ultimate question is not whether the government is acting in an objectively correct way (whatever that might mean); rather, it is whether it is governing in a manner that is regarded as broadly acceptable by the public. Elections are the pre-eminent means of doing this. … There are [in addition] a number of different ways that enable or require government to take account of the views and wishes of the people: the need to obtain parliamentary approval of legislative proposals; submission to scrutiny by Parliament, the media, courts, tribunals, and ombudsmen; and public participation in government decision-making (eg by consulting with the public). (Ca. 401)

So: citizens elect governments to serve the public interest, but we can’t actually tell what the public interest is, and the only measure we have is the outcomes of elections and other processes, largely (except, arguably, for scrutiny by courts and tribunals) political ones too. And when you start factoring in political ignorance, the role of special interests in non-electoral accountability mechanisms (and, to a lesser extent, in elections too), the difficulty of interpreting electoral outcomes… the idea that any of it has anything to do with a discernable set of parameters we might usefully describe as the public interest disappears like a snowflake in a blizzard.

The example Professors Elliott and Thomas give makes my case, not theirs. According to them,

it is a relatively uncontentious proposition that, when using public resources—especially public money—government should, so far as possible, seek to attain value for money. Government is largely funded by the public through taxation. Accordingly, the public can, in turn, rightfully expect that government should not waste its money. (Ca. 401)

I think it’s true that, if you just start asking people in the street whether government should “seek to attain value for money”, they will say that of course it should. The trouble is that, if you start asking some follow-up questions, it will quickly turn out that people don’t really mean it. Many people believe, for instance, that government should only, or at least preferentially, do business with suppliers from its own country. The entire point of such policies, of course, is to override the concern for getting value for public money ― they wouldn’t be necessary otherwise. Others (or perhaps the same people) believe that governments should allow, and perhaps even encourage, their employees to form unions and engage in collective bargaining. Again, the point of such policies is to override the preference for value for money: unionized labour is definitionally more expensive than its non-unionized counterpart.

For my purposes here, it doesn’t matter that such preferences are wrongheaded, although they certainly are. What matters is that, wrong though they are, people hold such preferences. As a result, even something as seemingly uncontroversial as the idea that government should get the best bang for the taxpayer buck turns out not to be consistent with how many people understand the public interest ― in the polling booth. In words, they will keep complaining about government inefficiency. In other words, it’s not just that different people and different groups can’t agree on what the public good is and we have no way of extracting any real meaning from the procedures they use to resolve their disagreements; it’s also that a single individual is quite likely not to have any sort of workable view of what the public interest is or requires.

For similar reasons, the “negative dimension” of the public good as articulated by Professors Elliott and Thomas fares no better. They argue that “it would be improper for an elected public body—whether the UK central government, a devolved government, or a local authority—to elevate political gain above the public good”. (Ca. 401; emphasis in the original) But if there is no such thing as the public good, objectively understood, then how can we sensibly claim that a public authority is elevating political gain above this non-existent yardstick? Worse, if the public good is to be assessed based in part on electoral outcomes, then doesn’t it follow that the pursuit of electoral success and the pursuit of the public good are one and the same?


What follows from this? Some would say that we should accept revelation and authority as our guides to the meaning of the common good, as a solution to the empty proceduralism of which they would no doubt see the argument of Professors Elliott and Thomas as representative. But such people have no means of persuading anyone who does not already trust their revelation and their authorities. Many of them recognize this and have given up on persuasion entirely. Like Lenin, they think that a revolutionary vanguard would be warranted in imposing their vision on the rest of us.

If we are disinclined to Leninism, I would suggest that we should shift our expectations and ambitions, for politics, for public law, and indeed for law tout court. Instead of looking to them to produce or uphold the public good, we ought to focus on how they can protect private rights, as the US Declaration of Independence suggests.

This is not an unambitious vision for politics and law, by the way. It is difficult enough to agree on a list of such rights that public institutions can and should enforce, and to work out the mechanisms for enforcing them without compromising other rights in the process. What is, for instance, the extent of property rights? Should it be defined entirely through the political process or should we make property rights judicially enforceable? If we set up police forces to (among other things) protect property, how do we prevent them from engaging in unjustified violence? Those are difficult enough questions, and the pursuit of even more intractable ones under the banner of the public good largely detracts us from paying attention to them.

The Woke Dissent

The thinking animating the dissenting opinion in Ward’s case would destroy freedom of expression in the name of equality and safety

As promised, in this post, I come back to the dissenting opinion in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. I commented (mostly) on the majority opinion in my last post. In that post, I referred to The Line‘s editorial by Jen Gerson and Matt Gurney (possibly paywalled, but you should subscribe!), which addressed the case, and especially the dissent, in some detail. Ms. Gerson and Mr. Gurney write that “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” in the dissent ― that “culled plausible-sounding legalese from Twitter logic”. That’s not a bad way of putting it.

I will put it slightly differently. The dissent is, in a word, woke. And I don’t mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. As noted in my last post, I think he deserves sympathy on human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces a number of specific tenets of contemporary social-justice ideology, which, if they become law ― and remember that they were one vote away from becoming law ― would be utterly corrosive to the freedom of expression.


For one thing, the dissent erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer write:

We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child. [116]

In what is going to be a theme of my comment, this twists the meaning of words beyond recognition; conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise. It’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. In my last post, I gave the majority grief for disregarding precedent and doctrine. The dissent does the same, only much worse.

Besides, as I once noted here, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible into the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence”. This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will stripped of its “protective cloak” and proscribed as the prize.

Another way in which the dissent is woke is its wilful blindness to the context in which words appear. Like critics dragging a writer for the words of an unsavoury character, Justices Abella and Kariser claim that

Mr. Ward remarked that he defended Mr. Gabriel from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. This implies that it would be too burdensome for society to accept Jérémy Gabriel in the mainstream permanently and that ultimately society would be better off if he were dead. 

No, it really doesn’t. Mr. Ward’s persona is, as The Line‘s editorial puts it, that of That Asshole. He is making an obviously hyperbolic statement, a joke ― not remarks at a political meeting. The joke was in poor taste, to be sure, but in no non-woke person’s mind is it a statement about what is best for society. Insofar as Mr. Ward’s comedy was meant as a social commentary, it targeted taboos around joking about certain people or subjects ― not the supposed burdens, or otherwise, of disabled persons for society.

A further symptom of coddling wokeness in the dissenting opinion is its bizarre insistence that Mr. Ward bullied Mr. Gabriel. Justices Abella and Kasirer claim that “[i]n a 2012 interview, Mr. Ward himself acknowledged the view that his comments constituted bullying”. [196] But this isn’t quite true. They quote the relevant interview passage early on in their opinion: it is the interviewer who suggests that Mr. Ward’s jokes amounted to bullying. Mr. Ward himself says “I don’t know. I don’t know. It’s a good point.” [126] Not quite an admission, by my lights. But, in any case, the idea that comments about a person whom one has never met and will likely never meet, over whom one has no actual power, with whom, indeed, one shares nothing at all can amount to bullying are just twisting the meaning of this emotionally charged word. Nobody can defend bullying of course, just as nobody can, say, defend racism, and Justices Abella and Kasirer again take a leaf out of the woke playbook to redefine words in a way that makes their decision seem beyond debate.

Now, Mr. Gabriel’s classmates seem to have bullied him, and to have used Mr. Ward’s jokes in doing so. But it is only on a woke view that Mr. Ward can be liable for their behaviour. He did not commission or instigate their actions. He doesn’t even know about their existence. Again this is reminiscent of calls for the “cancellation” of a work of fiction or some scientific article on the basis that, regardless of its author’s intentions, it will contribute to discrimination by others.

Then again, Justices Abella and Kasirer wouldn’t agree that Mr. Ward had no power over Mr. Gabriel. A preoccupation with power hierarchies imagined to run entirely along the lines of “privileged” and “oppressed” demographic categories is perhaps the clearest sign of their opinion’s wokeness. They write that

that there is value in the performance of comedy and in criticizing those in power in society. But in the circumstances of this case, condoning the humiliation and dehumanization of a child, let alone one with  a disability, would fly in the face of the very idea of the public interest. … Mr. Ward’s message about Mr. Gabriel, albeit one said in jest, was that he was disposable and that society would be better off without him. Unlike other “sacred cows” targeted by Mr. Ward, Jérémy Gabriel fell victim to a stark power imbalance here. [215-16; paragraph break removed]

This focus on power imbalance explains, I suspect, the seeming inconsistency between the position of the dissenters in Ward and in  Toronto (City) v Ontario (Attorney General), 2021 SCC 34 highlighted by Christopher Bredt. (Recall that the the same four judges dissented in both cases.) The Lawyer’s Daily reports that Mr. Bredt, who was part of the legal team that

represented the intervener Canadian Civil Liberties Association, said he finds it incongruous that the minority in the Ward appeal comprises the same four judges who earlier this month vigorously defended freedom of expression to the extent that they would have struck down the Ontario government’s downsizing of wards during Toronto’s municipal election.

The incongruity resolves itself once you account for the fact that in City of Toronto the “stark power imbalance” ran the other way ― the free speech claimants were the less powerful side, and hence the good side in the moral framework that decides worth according to where a person or group stands in an a priori power hierarchy.

In the real world, power hierarchies are not so neat ― which is one of many reasons why they should not be given nearly as much importance as the woke worldview attaches to them. As The Line editors point out,

this is a kid who became famous in all of Quebec, sang, and was enthusiastically cheered by entire hockey stadiums. He performed in front of some of the most famous people in the world. And we’re to believe that the ugly jokes of one stand-up comedian was enough to undo all of this honour and fame? That Mike Ward is uniquely responsible for a disabled child’s ostracization from his peer group and suicidal thoughts? 

Justices Abella and Kasirer insist that a celebrity must be treated like everyone else, and does not lose his rights. That’s true ― in a liberal legal system where everyone has equal rights to begin with. In a system whose starting point is not equality, but people’s relative positions in power hierarchies, insistence that cultural prestige, sympathy, and (in other cases) even wealth are to be disregarded are absurd. But it too is characteristic of the specifically woke take on power and inequality.


Like some others who have written about Ward, I find it frightening that this opinion got four votes at the Supreme Court. Had the dissenters found another colleague to agree with them, it’s not only “edgelord comedians”, in The Line‘s words, that would have come under the potential fire of human rights tribunals. Make a disparaging remark about a member of any of the protected groups that references that membership? There, you’re a law-breaker. Make fun of Greta Thunberg in a way that touches on her Asperger’s and selective mutism ― remember, it doesn’t matter that you’re not targeting her for that? Don’t be surprised if the equality bureaucracy comes calling. (I am grateful to my friend and sometime co-author Akshaya Kamalnath for this example.)

And remember, too, that under Québec’s Charter of Human Rights and Freedoms “political convictions” are a prohibited ground of discrimination as well. Of course, for the foreseeable future, mockery of literal Nazis is undoubtedly safe. You wouldn’t expect human rights tribunals condemn right-thinking members of society! But that’s only good until the day “common good” conservatives get their chance to appoint these tribunals’ members. Then, I’m afraid, the boundaries of permissible discourse will shift.

But abuse of anti-discrimination law as an instrument of censorship would be only the beginning. If speech can be conduct; if the intent of a speaker doesn’t matter for attributing liability for words; if public criticism or mockery can be bullying; if speech can be censored based on how people over whom the speaker has no control might respond to it, or if the right to be free from censorship depends on one’s place in a dogmatic hierarchy of oppression; then hardly any restriction on freedom of speech cannot be justified. It will all be done in the name of safety and equality of course. But it will be no less the end of the freedom of speech, and of democracy, for all that.

It Ends Well

Thoughts on the Supreme Court’s narrow but seemingly decisive rejection of a right not to be offended

Last week, the Supreme Court delivered its judgment in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. By a 5-4 majority, it quashed an award of damages a human rights tribunal had granted to Jérémy Gabriel, a child celebrity, whom a well-known comedian, Mike Ward, had cruelly mocked. As Jen Gerson and Matt Gurney put it in The Line’s editorial (possibly paywalled, but you should subscribe!)

Ward … decided to become That Asshole, the edgelord comedian who pointed out that the kid wasn’t very good. In a few stand-up bits, Ward called the child ugly, and noted that the performances were tolerable only because he thought the singer’s condition was terminal. Nice guy. (Paragraph break removed)

The tribunal, and the Québec Court of Appeal found that this amounted to discrimination in the exercise of Mr. Gabriel’s right to “the safeguard of his dignity” under section 4 of Québec’s Charter of Human Rights and Freedoms, a.k.a. the Québec Charter. The majority of the Supreme Court resoundingly holds otherwise.

Instead of my usual blow-by-blow summary and comment, I will offer some more condensed thoughts on a few striking aspects of this case. While the most important thing about Ward is what, if anything, it means for the freedom of expression, there are a few other things to mention before I get to that. In this post, I mostly focus on the majority opinion. I will shortly post separately about the dissent.

The Human Face

Because I will argue that the majority decision is correct, and indeed that it was very important that Mr. Gabriel not win this case, I want to start by acknowledging that he has had it very hard. Mr. Ward’s jokes at his expense were cruel. Mr. Gabriel did suffer, greatly ― we are told that he even tried to kill himself at one point. I think we can wonder whether the connection between these things is all that strong. I’m not persuaded by the dissent’s imputation to Mr. Ward of the full responsibility for Mr. Gabriel’s bullying by his classmates. We can also argue that anti-discrimination law ― perhaps any law ― isn’t the solution. But we have to recognize that a person has been in a lot of undeserved pain, and a person who, even before this case, had not had it easy in life.

The Court

As already noted, the Court is narrowly divided. The Chief Justice and Justice Côté write for the majority, with Justices Moldaver, Brown, and Rowe concurring. Justices Abella and Kasirer write for the dissent, joined by Justices Karakatsanis and Martin. For those keeping score at home, this is the exact same alignment as in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. Indeed, even the authorship of the opinions overlaps: in City of Toronto, the Chief Justice wrote with Justice Brown, while Justice Abella wrote for the dissenters.

I’m old enough to remember, as they say, how smugly self-satisfied Canadian commentators were, just a few years ago, at the consensus reigning at our Supreme Court, in contrast to the US one always splitting 5-4. To be sure, two cases do not make a trend, but I think it’s pretty clear that on the Supreme Court as it has recently been constituted there is ― though there are always exceptions ― a somewhat cohesive group consisting of Justices Côté, Brown, and Rowe, and perhaps an even more cohesive group led by Justice Abella, with Justices Karakatsanis, Martin, and Kasirer. The Chief Justice and Justice Moldaver are the swing votes. It remains to be seen how, if at all, Justice Abella’s retirement is changing this, but in the meantime, our Supreme Court has been fractured along lines that can be predicted. This is not necessarily bad. But let’s not be smug.

One odd thing to add is that, whereas in City of Toronto majority and dissent were ― by the standards of the Supreme Court of Canada ― at each other’s throats, here they studiously ignore one another. I’m not sure which is better, but the contrast between cases argued and decided just a month apart, by identical alignments, and with overlapping opinion authorships, is striking.

The Case

One uncomfortable question I have is: should the Supreme Court have taken this case at all? Let me take you straight away almost to the end of the majority judgment, where we learn, for the first time, the following

[I]n light of the Tribunal’s finding that Mr. Ward [translation] “did not choose Jérémy because of his handicap” but rather “because he was a public personality” (Tribunal reasons, at para. 86), it must be concluded that the distinction was not based on a prohibited ground. This conclusion on its own is sufficient to dispose of the appeal. [91]

Everything else that the Court has said and that I’m about to discuss ― that’s just obiter dicta. The tribunal made a basic logical mistake, which, as the majority explains, the Court of Appeal then glossed over. That was, of course, unfortunate. But it’s not the Supreme Court’s role to correct basic logical mistakes by tribunals or even courts of appeal. They’re there to develop the law. And develop the law they do ― in a way that, if the majority is right (and I think it is), was pressing and necessary. But also in a way that, by the majority’s own admission, is beside the point in this case.

I think this raises the issue of the Supreme Court’s role in our constitutional system. Where is the line between developing the law in deciding cases, as we expect them to, and developing the law by making big pronouncements that are unnecessary to decide cases? Should a court refrain from doing the latter, or may it properly seize on the opportunities that present itself to it to provide important guidance to lower courts? I have no firm views on any of this, but I think the questions are worth thinking about. (For some related musings, see here.)

Jurisdiction

Back to the very beginning of the majority’s reasons:

This appeal … invites us … to clarify the scope of the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse … and the Human Rights Tribunal … with respect to discrimination claims based on the … Quebec Charter. [1]

Clarify the… what? Yes. That word. The majority uses it several times in the course of its reasons. In particular, it speaks of “the distinction that must be drawn with respect to jurisdiction over, on the one hand, an action in defamation and, on the other, a discrimination claim in the context of the Quebec Charter“. [22]

This is odd. A mere two years ago, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, all of the Ward majority judges signed an opinion that not only eliminated jurisdictional questions as a distinct category of correctness review, but seemed to endorse scepticism at the very “concept of ‘jurisdiction’ in the administrative law context”. [66] Vavilov said that what might previously have been thought of as jurisdictional questions are legal questions like all others, subject to reasonableness review, except when the respective jurisdictions of two administrative bodies must be demarcated.

One recent example of this reasoning is the decision of the Ontario’s Superior Court of Justice in Morningstar v WSIAT, 2021 ONSC 5576, about which I have written here. The Court roundly rejected the argument that, as I summarized it

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 hav[ing] the court ensure the boundary is drawn correctly.

I thought ― and still think ― that that was a correct application of Vavilov. Ward, though, says that there is indeed a jurisdictional boundary between administrative tribunals and courts. I don’t think this is consistent with Vavilov. Nothing turns on this here because the case gets to the courts by way of statutory appeal rather than judicial review, and ― under Vavilov ― the correctness standard applies to all legal questions in such circumstances. But the tensions inherent in Vavilov, including in its attempt to rid Canadian administrative law of the fundamental concept of the law of judicial review are becoming apparent. (Co-blogger Mark Mancini has made a similar observation in the latest issue of his newsletter.)

Interpretation

One of the things the majority is right about is that Ward is, among other things, a case about interpretation. It requires the courts to make sense of a somewhat peculiar statutory scheme, which protects, among other things, rights to the freedom of expression and to the “safeguard of [one’s] dignity”, says that “the scope of the freedoms and rights, and limits to their exercise, may be fixed by law”, and protects equality in “the exercise and recognition” of these rights, rather than as a general self-standing right. This is not an easy exercise and I won’t go into all the details, but I will make a few comments.

The majority deserves credit for trying to work out an independent meaning for the right to the safeguard of one’s dignity. As it notes, dignity is a very tricky concept ― and the Supreme Court itself has tried to avoid putting too much weight on it in other contexts. But here it is, in the text of the Québec Charter, a statute that binds the courts. It will not to do to simply find violations of dignity when other rights are violated in particularly egregious ways, as Québec courts had done. The Québec Charter makes it a distinct right, and the courts must treat it as such. At the same time, they have to give it defined contours. The majority seeks to do so by stressing the importance of the safeguard of dignity, to which the right is directed:

Unlike, for example, s. 5 [of the Québec Charter], which confers a right to respect for one’s private life, s. 4 does not permit a person to claim respect for their dignity, but only the safeguarding of their dignity, that is, protection from the denial of their worth as a human being. Where a person is stripped of their humanity by being subjected to treatment that debases, subjugates, objectifies, humiliates or degrades them, there is no question that their dignity is violated. In this sense, the right to the safeguard of dignity is a shield against this type of interference that does no less than outrage the conscience of society. [58]

What the majority does is a careful and, I think, pretty convincing reading of the statutory text. Good.

Some things the majority says are not so good. For instance: “the interpretation of this provision must be refocused on its purpose by considering its wording and context”. [55] No, no, no. Interpretation should be focused on text understood in context. Purpose can sometimes help a court understand the words and enrich its understanding of the context, but it should not be the focus of interpretation. And then, there is this:

This Court’s jurisprudence also establishes “that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes” … It follows that, as long as this is not contrary to the usual rules of interpretation, symmetry in the interpretation of the various instruments that protect human rights and freedoms is desirable. [68; quoting Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City), 2000 SCC 27, [2000] 1 SCR 665, [47]]

What are we to make of this? If usual rules interpretation are to prevail, differences in terminology must make a difference, if not to the objectives then to the effects of human rights as of any other statutes. And the idea that differences in wording don’t matter because objectives are key to interpretation is specifically rejected in the majority opinion in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 ― signed onto by the same five judges who are in the majority in Ward (even as it is endorsed by the concurrence).

Between the jurisdiction issue and this, I cannot help but wonder whether their Lordships remember what they said last year. Or are they trying to say that we are supposed not to? This stream of inconsistent pronouncements ― by the same people! ― reveals, at best, a lack of attention to legal doctrine and craft. It is very disappointing.

Freedom of Expression

I finally come to the meat of the case. Here too, I want to praise the majority for getting things fundamentally right, but also to criticize them for saying things along the way that are doubtful or even wrong in themselves, or inconsistent ― without explanation ― with important precedent.

Let me start with a quick note from the “judges are not philosophers” file. The majority’s discussion of the freedom of expression begins with the assertion that it, “[l]ike the right to the safeguard of dignity … flows from the concept of human dignity”. [59] Perhaps. But in the next paragraph the majority quotes Joseph Raz’s claim that “a person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected”. [60] These are two quite different views of the foundations and purposes of the freedom of expression ― one deontological, the other utilitarian. Perhaps nothing turns on which of these is correct in this case, but if so, the majority shouldn’t be making these philosophical declarations at all. And I suspect that in some cases the choice might actually make a difference. The majority’s approach is muddled and unhelpful.

Now for some good things. This, especially: “freedom of expression does not truly begin until it gives rise to a duty to tolerate what other people say”. [60] This is the key to so many disputes about freedom of expression. Speech is not harmless. It can hurt. It can propagate falsehoods. It can inflame base passions. But freedom of expression means sometimes having to tolerate such things ― just like freedom of assembly means having to tolerate noisy protests, and freedom of religion means having to tolerate heresy and blasphemy ― even when their cost falls on particular groups or even individuals.

The majority adds that “[l]imits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience”. [61] This sets a fairly high bar to limits that will be considered justified. It also acknowledges that the audience has its share of responsibility in appreciating troublesome words. Courts assessing a limit on the freedom of expression should not assume that citizens are, by default, unthinking and gullible playthings for the tellers of tall tales. This is also good and important. Assuming away all critical sense among the citizens would help justify all kinds of restrictions on speech, including, and perhaps especially, in the political arena. It is fundamentally incompatible with the notion of a self-governing, responsible citizenry.

But this insistence sits uneasily, to say the least, with the Court’s position in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. There, the majority said that

The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case. Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm. [77]

This is contrast to the Harper dissent’s concern that “[t]here [was] no demonstration that” the limits on “third party” spending at issue were “required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair”. [38] By my lights, Ward‘s insistence on serious reasons to fear specific harm, as well as on audience discernment is much more in tune with the Harper dissent. Because I regard Harper as an abominable decision, I am happy to see Ward go in a different direction. But there is no comment in Ward on how these cases interact. Again, it’s as if the judges don’t remember what the law says, though at least Harper is a much older case that Vavilov and Québec Inc.  

All that said, the substance of the majority’s decision is right and reassuring (or it would be reassuring if more than five judges had signed on). The majority insists that the right to the safeguard of one’s dignity most not be “vague” or given “a scope so broad that it would neutralize freedom of expression”. [80] It stresses the objective nature of the test for whether this right is breached and rejects the modified objective standard of “a reasonable person targeted by the same words”, because “[t]hat approach results in a shift toward protecting a right not to be offended, which has no place in a democratic society”. [82] What matters is neither “the repugnant or offensive nature of the expression [nor] the emotional harm caused”, [82] but the effect of the words on listeners: would “a reasonable person, aware of the relevant context and circumstances, … view the expression … as inciting others to vilify [its targets] or to detest their humanity on the basis of a prohibited ground of discrimination” [83] and would “a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted”? [84]

All this is the more important since the list of prohibited grounds of discrimination under the Québec Charter is very broad and includes “political convictions”. As I have written here, “even if we accept the need to protect vulnerable minorities from hate speech targeting them, I struggle to see what makes it necessary to extend this protection to members of political parties or movements”. Protecting people from mockery, let alone hurt feelings, based on their political views is incompatible with lively democratic debate. However much we can wish for such debate to usually be civil, I think it’s a mistake to insist that it always must be, and certainly a grave mistake to put government officials in charge of deciding whether it is sufficiently civil on any give occasion.


The insistence on the need for objective assessment and the clear rejection of a right not to be offended will, I hope, be the key takeaway from Ward. For them, we can forgive the majority opinion its many flaws. That there can be no right not to be offended in a society that proclaims its commitment to the freedom of expression and to democracy might have been self-evident ten years ago, but it evidently isn’t anymore. The dissent offers us a glimpse of what a world in which this truth isn’t recognized looks like. I will focus on it in a forthcoming post.

Don’t Make Idiots into Martyrs

The Double Aspect view on why an Alberta judge was wrong to order that pandemic deniers promote the expert consensus

This post is co-written with Mark Mancini

In Alberta Health Services v Pawlowski, 2021 ABQB 813, a judge of the Alberta Court of Queen’s Bench sentenced a preacher opposed to anti-pandemic public health measures and his brother to steep fines for contempt of court. The defendants had ostentatiously breached court orders requiring them to comply with various public health requirements, and there is no question that they deserved punishment. But the remarkable thing about Justice Germain’s ruling, and the reason, we suspect, why it made the news, was an additional component of his order. “[W]hen … exercising [their] right of free speech and speaking against AHS Health Orders and AHS health recommendations, in a public gathering or public forum (including electronic social media)” the defendants

must indicate in [their] communications the following:

I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms.

This order manifests a deeply disturbing, not to mention likely unconstitutional, disregard for freedom of expression. And Justice Germain’s judgment suffers from other deep flaws on its way to this untenable conclusion, which make his decision all the more troublesome.

We should start by saying that, on a personal level, we have very little sympathy for the defendants’ cause. While reasonable people can always debate the specific measures being taken by the authorities―even to combat a pandemic―there is nothing reasonable in denying the seriousness of the situation, or in opposing vaccinations, which are our only hope to get out of this mess. And while both of us have written with some sympathy about civil disobedience, as practiced by people such as David Thoreau and Martin Luther King, civil disobedience involves acceptance of punishment―not flagrant disregard of the court system.

But the court system, for its part, should not beclown itself, even when dealing with jackasses. Justice Germain, alas, sets the tone quickly. “Alberta”, he writes,

has been and is in its worst shape ever concurrently with these sanction hearings. It is not an overstatement that Pastor Artur Pawlowski and his brother Dawid Pawlowski have contributed to this ominous health situation by their defiance of the health rules and their public posturing, which encourages others to doubt the legitimacy of the pandemic and to disobey the AHS Health Orders designed to protect them. [5]

The idea that the defendants deserve punishment not only for breaking the rules and the court orders enforcing them (which, to repeat, they do), but also for what they say and for what others make of what they say runs through Justice Germain’s reasons and taints his decision. Much of the opinion concerns what the judge personally thinks of the conduct of the defendants. But whatever one’s personal views, a judge cannot justify a decision that forces someone to agree with a particular law. The decision, in this sense, is incompatible with a free society where people can be required to comply with the law, but not to support it, as a majority of the Supreme Court held in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269.

One example of Justice Germain letting his personal views get the better of his judicial duty is his indignation at the fact that the defendants present themselves as martyrs. He is especially upset because one of them has done so “on a speaking tour in the United States where he parlayed his title as a pastor and the fact that he had been arrested for holding a church service into a rally cry that attracted like-minded individuals”. [33] For Justice Germain,

It is disappointing that Pastor Pawlowski had to air his grievances about Alberta in another country. Leaders and statesmen don’t do that. During his sanction hearing, AHS played some trip reports in which Pastor Pawlowski oozes hubris, while relishing in his notoriety. He got to take a picture with a governor of a U.S. state. He is proud of what he asserts is the love of the U.S. people for him. Love he implies he is not feeling in Canada. [34]

In a free and democratic society, no citizen is legally required to be a patriot. Punishment for not loving one’s country in accordance with its authorities’ idea of what such love ought to look like is a hallmark of dictatorial regimes. It is distressing to see a Canadian judge failing to comprehend this.

In a slightly different vein, Justice Germain is also angry that Mr. Pawlowski’s “accuses the Court of being a ‘tool of the government’” and so “show[ing] no civic understanding of the independence of the Courts and their distance from the government”. [35] To the extent that this anger contributes to Justice Germain’s choice of punishment for the defendants, it comes perilously close to being a sanction to the old contempt by “scandalizing” the court―that is, by making statements tending to bring the court into disrepute or to undermine its authority. The Ontario Court of Appeal held that this offence was unconstitutional in R v Kopyto, 62 OR (2d) 449, all the way back in 1987.  

Next, Justice Germain observes that, even as “Pastor Pawlowski makes much virtue of his status in Canada as an immigrant from Poland”, he also “describes health authorities as Nazis”. [36] To the judge, “[i]t defies belief, that any immigrant from Poland (having studied the atrocities of the Nazis in that country) could identify a doctor of medicine trying to keep people alive as a Nazi”. [36] At human level, one might sympathize with Justice Germain, but coming from a judge as part of reasons for sentencing, the suggestion that an immigrant might be held to some kind of special standard due to his origins strikes us as troubling.

These personal views take centre stage in Justice German’s opinion. The law is forgotten; only briefly does Justice Germain seem to acknowledge the relevance of freedom of expression to the case before him―and in a way that shows that, in truth, he just doesn’t get it. He says that “Pastor Pawlowski is entitled to express views about the government, the Courts, and AHS, but he must do it in a respectful, hate-free way that does not breach AHS Health Orders”. [37] To be sure, freedom of expression doesn’t extend to breaching court orders. But nor does it have to be exercised in a “respectful, hate-free way” as a matter of law (though as a matter of morality, we usually hope the freedom of expression is exercised in this way). One might, of course, refer to the US Supreme Court’s well-known decision in Cohen v California, 403 US 15 (1971), the “fuck the draft” case, where Justice Harlan famously wrote that “one man’s vulgarity is another’s lyric”. (25) But, closer to 2021 Alberta in time as well as in jurisdiction, let us note Justice Miller’s opinion for the Court of Appeal for Ontario in Bracken v Town of Fort Erie, 2017 ONCA 668, where it was argued that a loud protest was tantamount to violence and hence unprotected by the Charter’s guarantee of the freedom of expression:

A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

A protest does not cease to be peaceful simply because protestors are loud and angry. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. [49-51]

Justice Germain insists that

Pastor Arthur Pawlowski, his brother Dawid Pawlowski, and others that I dealt with in the sanction hearings are on the wrong side of science, history, and common sense on this issue. The growing number of dead and dying in North America from COVID-19 infection cannot be ignored, nor defined as a false reality. [38]

This is true. But the consensus view of science, history, and common sense, even to the extent that it exists, as here, is not and must not be an official ideology that all citizens are required to endorse. For this reason, while Justice Germain’s sentencing the defendants to a fine and community work is justified, his further order quoted at the beginning of this post is not. In a free and democratic society, which is what the Charter says Canada is, citizens are not required to make themselves into instruments of government propaganda when they engage in political or religious speech. Nor are they required to confess to their own heterodoxy, as Justice Germain would have the defendants do. It is for others to make that showing against them.

We might understand what Justice Germain did if he had framed his opinion in traditional legal terms. But his findings on s. 2(b) of the Charter, such as they are, are couched in personal opinion and conjecture. He does not conduct any analysis about freedom of expression of the sort that we have come to expect from Canadian courts. Indeed, he does not refer to precents on freedom of expression either. When it comes to determining whether his order is justified under s. 1, the only way Justice Germain addresses proportionality is through a comparison of his remedy to an order of jail time. He says that “many reasonable individuals will view the sanctions that I impose to be more beneficial in repairing the harm Pastor Pawlowski and his brother did to society than a short period of jail that will perhaps martyr them in the eyes of their followers”. [43] Yet this is not the test. Our constitutional law, in order to afford speech protection, does not count how many “reasonable people” support a particular exercise of speech or a particular way of repressing it. Not to mention, this statement does not consider, at all, the severity of the impact on the defendants’ freedom of expression—no matter how distasteful we might find their message.

We should note that Canadian case law on the subject of compelled speech is relatively sparse and nowhere near as robust as one would wish it to be. While National Bank, to which we refer above, rightly described attempts to coerce support for existing laws as totalitarian, Slaight Communications v Davidson, [1989] 1 SCR 1038 upheld an arbitral order that an employer state certain facts, found by the arbitrator, in a letter of recommendation provided to a former employee. The majority distinguished National Bank on the basis that Slaight concerned compelled statements of fact, rather than of opinion.

Ostensibly the order given by Justice Germain is framed as a factual statement. There is thus at least an argument that it is valid under Slaight. But this matter is also different from that case―even assuming that it was correctly decided. Justice Germain’s order applies whenever the defendants are speaking on a broad swathe of issues of pressing public concern and, contrary to what was the case in Slaight, the defendants vigorously―if not at all reasonably―dispute the facts they are required to convey. Justice Germain’s order requires them to undermine their own messaging and so to expose themselves to public ridicule if they wish to speak at all.

Thus, even as he gets on his high horse about science, common sense, and the importance of respecting court orders, Justice Germain simply ignores the constitution which constrains his own powers. In denouncing the defendants’ quest for martyrdom and, seemingly, punishing them for their opinions, he is in fact making them into martyrs. Indeed, thanks to him, they are now martyrs for free speech rather than only for covidiocy. We hope that there is an appeal, and the Justice Germain’s decision is reversed. So long as it stands, it is a much more serious affront to the dignity of the Canadian judiciary than anything the defendants―whom we do not mean to excuse―have done.

And that, perhaps, is the important point. COVID-19 has challenged all Canadian institutions in different ways. The challenges have been significant. Courts specifically have been asked to rule  that, at times, public necessity outweighs personal freedoms. We believe COVID-19 presents a number of these situations quite starkly. But when courts must make this judgment, they should do so by predictably applying established doctrines, and in a way that gives due respect to the rights and freedoms at issue. When the judicial analysis is perfunctory, or advanced as part of a personal opinion, public belief in the courts as guarantors of a government of laws, not men, is understandably diminished. This should worry us.

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. They 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.

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.