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.

Common Factionalism

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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


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

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

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

Right Is Wrong

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

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

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


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

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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

Tanstaafl

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court―What Is It Good for?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Disuse of Knowledge in the Administrative State

Regulation is not the right tool for intelligently dealing with complexity

Advocates for the administrative state typically promote it on the basis of its great usefulness in contemporary society. Without the expertise that administrators bring to their work, they say, we could not deal with the complexity of the world around us. Although, in the wake of the Supreme Court’s ruling in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, this is no longer part of the rationale for deference to administrative decision-makers in Canadian law, this view is still widely held by administrative theorists in North America. Indeed it is part of the pro-administrativist critique of Vavilov, for example in a post by Mary Liston over at Administrative Law Matters. But this view is fundamentally wrong, even backwards.

A passage from Matthew Lewans’ book Administrative Law and Judicial Deference captures this traditional view nicely. Compared to the past,

we must tackle a broader array of complex social issues―human rights, immigration, national security, climate change, economic policy, occupational health and safety, public access to health care and education, etc―about which there is deep disagreement. And we cannot hope to address these issues intelligently without harnessing the experience, expertise, and efficiency the modern administrative state provides. (187)

Other pro-administrativists, if they have not themselves written such things, would I think wholeheartedly agree with them. To the extent that I specifically criticize Professor Lewans’ argument, below, it is only in a representative capacity.

One thing to note about this passage, and its innumerable equivalents elsewhere, is that it is not supported by any detailed arguments or evidence. The hopelessness of intelligently dealing with the issues that consume contemporary politics without “harnessing the experience, expertise, and efficiency” of the bureaucracy is simply asserted by writers and taken on faith by readers. But I think we need to query these claims before accepting them, and not because I have watched too much Yes, Minister to have much faith in the experience and expertise, let alone the efficiency, of the administrative state.

More fundamentally, the state ― and especially the administrative state ― often is not merely lousy at addressing complexity intelligently, but actively opposed to doing so. The reason for this is that its laws and regulations, to say nothing of its discretionary rulings, serve to eradicate rather than harness the information needed for intelligent behaviour in a complex world. They give both the rulers who wield them and the citizens who clamour for them the illusion of purposive action and control, while actually preventing the operation of the mechanisms that serve to communicate information about the world much more effectively than laws and regulations ever can: prices and markets.

As F.A. Hayek famously pointed out in “The Use of Knowledge in Society“, there is an enormous amount of information that even the best experts armed with the boundless powers of the modern administrative state cannot acquire: information about the circumstances, needs, and desires of individuals and organizations. This information is unlike the scientific, technical knowledge that experts might be able to centralize in the hands of the bureaucracy. In particular, this local knowledge changes much too quickly to be communicated and assimilated by an authority. As Hayek explains, “the economic problem of society” ― that is, the question of how to use the resources available to us most effectively ― “is mainly one of rapid adaptation to changes in the particular circumstances of time and place”. From this,

it would seem to follow that the ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them. We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. 

I would add also that, even if a “central board” could acquire information as fast as individuals and businesses, it could not make new rules to reflect this information fast enough, or consistently with the requirements of the Rule of Law, which include the relative stability of the legal framework.

But how do individuals acquire knowledge which, Hayek insists, even a sophisticated bureaucracy cannot gets its hands on? The answer is, through market prices, which reflect aggregate data about the relative scarcity of goods and services available in a given time and place: “Fundamentally, in a system in which the knowledge of the relevant facts is dispersed among many people” ― which is to say, in any society in which there many people, and especially in complex modern societies to which pro-administrativsts such as Professor Lewans refer, “prices can act to coördinate the separate actions of different people in the same way as subjective values help the individual to coördinate the parts of his plan”.

Hayek gives the example of how, if something people need to produce other things other people need becomes more scarce, such as its price goes up

without an order being issued, without more than perhaps a handful of people knowing the cause, tens of thousands of people whose identity could not be ascertained by months of investigation, are made to use the material or its products more sparingly; i.e., they move in the right direction. 

The right direction, that is, from society’s perspective ― the direction of the society’s overall resources being used more effectively where they are most needed. Hayek pointedly describes the functioning of the price mechanism, its ability to economically and quickly communicate information no bureaucracy could gather “by months of investigation” as a “marvel”. He is right.

But, to repeat, the state all too often prevents this marvel from happening. The state outlaws market transactions, and so prevents the communication of information through market prices, left, right, and centre, and interferes with those transactions it doesn’t outlaw. Ronald Reagan summed up the state’s ― and the statists’ ― thinking: “If it Moves, Tax it. If it Keeps Moving, Regulate it. And if it Stops Moving, Subsidize it.” This is not all the state does, of course. The state, if it functions well, also enables markets by keeping peace, protecting property rights, and enforcing contracts. They state may supplement markets by correcting genuine market failures, though these are rather fewer and further between than statists tend to assume. But there’s no denying that much of what the state does, and especially much of what pro-administrativists ― be they on the political left (as most of them have long tended to be) or on the right (as the followers of Adrian Vermeule and other common good will-to-power conservatives, about whom co-blogger Mark Mancini has written here) consists in overriding, displacing, and even criminalizing markets, and so destroying rather than harnessing information. The state not only is stupid; it makes us less intelligent too.

The administrative state, specifically, is especially guilty of this. To quote Professor Lewans once more ― and again, in a representative capacity ―

There are good reasons why legislatures invest administrative officials with decision-making authority. While a legislative assembly might be able to forge sufficient consensus on broadly worded objectives as a platform for  future action, it might reasonably conclude that interpretive disputes regarding those objectives outstrip the capacity of the legislative process. (199)

To be clear, “interpretive disputes” here are disputes about the specification of these “broad objectives”, as well as the means through which the objectives, so defined, are expected to be achieved. What Professor Lewans is saying is that delegation of power to the administration vastly increases the state’s overall ability to regulate ― that is to say, to override, displace, and criminalize markets. Legislatures might never achieve consensus on the detail of a regulation, and so wouldn’t enact any since they need at least a bare-bones consensus to enact law. But thanks to the dark wonders of delegation, the need for consensus is dispensed with, or at least reduced, and more regulation can be enacted. And of course the administrative state is simply bigger than a legislature, so it has more person-hours to expend on producing ever more regulation. The legislative process ― at least, proper legislative process, not what all too often passes for it ― is also time-consuming, while one of the supposed virtues of the administrative state is its flexibility. Faster regulatory change, while it cannot actually be effective enough to substitute or account for the information transmitted through the price system, is more disruptive to markets.

If we actually want to address the issues that confront complex contemporary societies intelligently, the administrative state is not our friend. More often than not, it serves to reinforce the state’s ability, to say nothing of its resolve, to prevent individuals and businesses from acting intelligently in the face of complexity by eliminating or falsifying the information they need to do so. At best, the administrative state then tries to provide a simulacrum of an intelligent response ― as, for example, we ask bureaucrats to puzzle out who may come to our countries to work based on what they, from their cubicles, deem to be market needs, instead of simply opening the borders and letting employers and potential workers make their own arrangements.

Why, then, are people ― and more and more people, too, as the emergence of right-wing pro-administrativsim shows ― so convinced that the administrative state is necessary? Some, alas, are not especially interested in social problems being solved effectively. They even make a virtue of inefficient institutions, slower economic growth, and more coercion. Such feelings may be especially widespread among the common good will-to-power crowd. But more people, I suspect, simply misunderstand the situation. As Hayek pointed out,

those who clamor for “conscious direction” … cannot believe that anything which has evolved without design (and even without our understanding it) should solve problems which we should not be able to solve consciously.

They think that central direction, which only the state, and specifically the administrative state, can provide is necessary. They are mistaken, and in a way that is the sadder because they unwittingly demand the exact opposite of what they actually hope for.