A Cheer for Administrative Law

Administrative law can only do so much to avert injustice―but what it can do still matters

I’d like to come back, however belatedly (sorry!) to an interesting post by Paul Daly at Administrative Law Matters. Professor Daly uses the example of Novak Djokovic’s ultimately unsuccessful challenge to the Australian government’s cancellation of his visa to illustrate “the value of administrative law”. He writes:

Immigration has traditionally been a prerogative of the executive, an island of unregulated discretion in the legal system. But over the last half century or so, courts around the common law world have landed on this island, wielding principles of procedural fairness and substantive reasonableness. Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa. Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power.

Professor Daly acknowledges that “[a]dministrative law is no panacea. Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving.” That’s true of course. Still, he concludes that Mr Djokovic’s case “is an important reminder of the value of administrative law in pushing ministers and others to justify their exercises of public power in reasoned terms”. This also is true. And one might even add that, in law as elsewhere, those who cannot afford the Cadillac will often benefit from the ability and willingness of others to shell out for one.

Yet despite this I think that Mr Djokovic’s case shows at least as much that administrative law is, at best, only a partial remedy to injustice. Granting the point that it can force officials to “engage in the reasoned exercise of public power” (which is often though not always true), it does comparatively little to ensure that the power is exercised justly, and nothing at all to ensure that its existence is just. The latter of course is not administrative law’s role. But it’s a point that we should not lose sight of if we choose to celebrate administrative law. In a just world, there would be a great deal less administrative law than we need in ours.

In our world, it is indeed an achievement that immigration decisions have to be reasoned and justified. After all, the founding father of Canadian administrative law scholarship evidently lamented the fact that, although the government “regards immigration as a privilege, not as a right, and wants to avoid having to disclose to a court its sources of information about the political colour of immigrants”, courts lack the good sense to see the point: “On the other side of the ideological fence, a court , with the sweating immigrant before it, sometimes sets aside a deportation order on very flimsy grounds, for instance, that it was made on a Sunday”. (John Willis, “Administrative Law in Canada” (1961) 39:2 Can B Rev 251 at 258) It’s good that we’ve moved that ideological fence some way towards decency.

But let’s not kid ourselves. We haven’t moved it very far. As Maria O’Sullivan explains in The Conversation, the reasons that ostensibly motivated the cancellation of Mr Djokovic’s visa were that his ― presumed ― opposition to vaccination against the present plague might encourage similar opposition among Australians and might undermine “social order”. Professor O’Sullivan points out that ministerial explanations were questionable on their own terms. But she also notes that, perhaps more importantly for the future, the precedent set in Mr Djokovic’s case means that people’s ability to come to Australia might be taken away on account of their actual or even perceived views being a hypothetical source of possible trouble in the opinion of a minister. What starts with an arrogant fool of a tennis player won’t stop there. Yet substantive Australian immigration law seems to allow for precisely this result, and administrative law offers no redress.

Redress will come, not any further development of administrative law, but from substantive law being such to prevent this sort of injustice. In this regard, it is telling that Professor Daly sets his reference point to 50 or 60 years ago, when immigration restrictions ― and the government’s willingness to treat immigration as a privilege to be granted or withheld on a political whim ― had become generally accepted. But let’s not stop 50 years ago; let’s go back another century. In 1872, English-speaking countries simply did not restrict immigration, though health measures and quarantines did exist. (Hence let me note: I’d have very little sympathy for Mr Djokovic if he had been barred from Australia due to not being vaccinated. But that’s very much not what has happened.) In North America, immigration controls were the product, first, of anti-Asian racism in the late 19th century, and then of more generalized xenophobia in the first decades of the 20th. On the other side of the pond, as David Cannadine writes in The Victorious Century, the closing of the UK’s borders at the turn of the 20th century was the result of bigotry against the Irish and, especially, of anti-Semitism. Australia too implemented and long held to an overtly racist immigration policy.

Of course, contemporary immigration law does not discriminate as overtly. But the idea that movement across borders is something that can be regulated in the first place comes from that evil and unjust source. And it still means that people can be stopped from doing the same (often stupid) things that we are allowed, even though they are in all particulars bar their failure to have been born in the right place or to the right parents the same as us, for no reason other than that failure. The old-school racism may be gone, but the xenophobia inherent in the idea of immigration restrictions remains. And it is not administrative law that will purge it, but the realisation that the closing of the borders 120, 140 years ago was an injustice, and that it must be ended.

Hence I will only give one cheer for administrative law. Not two, for administrative law is not meant to reform repressive substantive laws, and certainly not three, for it is powerless to mend injustice raised up to the rank of political philosophy. The trouble with cheering too loudly for administrative law is that this risks making us forget these deeper injustices; we might be content with bringing order and reason to what remains, at bottom, a logic of repression.

But my cheer for administrative law ― at least, for robust administrative law, which truly holds the administrative state to its legal and constitutional duties, rather than for the all-too-often diluted version that many administrative lawyers prefer ― will be a loud one. As E.P. Thompson famously said,

We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power.

Administrative law is an essential component of the Rule of Law, and so of the unqualified human good that Thompson had the wisdom to discern amid what he saw amid great substantive injustice. Hooray for it.

Precedent and Respect

When ― if ever ― can lower courts criticise their hierarchical superiors?

When, if ever, should lower-court judges criticize decisions of the higher courts that bind them? Can they do it in their reasons, whether speaking for their court or only for themselves? Judicature has published a short but thoughtful exchange on these questions between Orin Kerr and Michael Dorf. In a nutshell, Professor Kerr argues that such criticism is (almost?) never appropriate in judicial opinions; it belongs in op-eds and scholarly articles. Professor Dorf, by contrast, sees a place for it, if only a limited one. My own instincts are on Professor Dorf’s side.

For Professor Kerr, judicial opinions “receive respect not because they’re wise or well-reasoned. Some opinions are, and some opinions aren’t. Rather, judicial opinions receive respect because they are legally operative documents issued by judges with the power to issue them”. (84) It follows that

When you write a judicial opinion, you should limit yourself to what you have formal authority to decide. You should explain why you voted as you did in the case before you, as every legal opinion does. But judges shouldn’t also use legal opinions to pontificate about other views they have outside of the case and outside their authority. (84)

Since it is not the job of lower court judges to criticize their higher-ups, and since such criticism is legally inoperative, it should be saved for other venues: “Keeping your exercises of formal authority separate from your views of legal questions outside that authority helps maintain the legitimacy of the authority you exercise.” (85)

This is especially so for those views which a judge held prior to or would hold irrespective of his or her judicial office. Perhaps there is a place for judges criticizing “a [binding] precedent … when the judge’s basis for that opinion is a special insight, gained only in a judicial capacity, into how the precedent is working”. (88) But even then, the lower court judge “can draw attention” to the problem “without taking a view on whether” the higher court should reverse itself. (87)

Meanwhile, Professor Dorf’s position is that judicial criticism of binding authority ― not just higher-court precedent but also legislation ― is appropriate in a wider range of circumstances. For him, it is important that “in a well-functioning judicial hierarchy, information flows both ways. Lower court judges have knowledge and views that can and should usefully inform judges on higher courts”. (85) If lower court judges “spot a defect — a rule that misfires or that ought to but does not contain an exception” (86), for example because “a statute or opinion of a higher court [is] be based on a seemingly reasonable premise that proves false in practice” (86) ―, they might try to finesse or work around that rule. But that’s not always possible, and not necessarily appropriate. Short of refusing to follow the law (and perhaps resigning to make the point), their only other option is to criticize it in an opinion applying it.

Professor Dorf agrees that this should not happen very often. Criticism on “moral” grounds should be especially rare. Yet since “law often incorporates moral judgments, there should be room for an occasional statement by lower court judges that the precedent they must apply is wrong and thus should be reconsidered”. (86) And, regardless of the reason for it, criticism can be offered in a statement of reasons; indeed “it is hardly obvious that doing so outside of the context of a concrete case is the least controversial way to do so”. (87)


For what it’s worth, my view is closer to Professor Dorf’s; in some ways, I might go further than him. Let me begin, though, with one point he raises without developing it, and which makes me uneasy.

It is judicial criticism of legislation. As I have argued before, I think courts (including apex courts) should mostly try to avoid giving their opinions on legislation, whether to praise or to criticize it. It is not their constitutional role ― except in a constitutional challenge to the legislation’s validity or application, and even then the courts ought to focus on legal issues. Commentary on legislation is, inevitably, bound up with policy issues that are outside of the courts’ purview, and it is just as inevitably at risk of being recycled by politicians themselves, at the risk of compromising the public’s perception of the courts’ impartiality. I think courts can comment on technical issues with legislation where it fails to provide sufficient guidance to the subject and to the courts themselves. But this is probably a narrower view of permissible criticism than Professor Dorf would allow.

That said, I think that lower-court criticism of higher courts’ jurisprudence is a different matter. Although the courts stand in a hierarchical relationship to one another, they are fundamentally engaged in the same enterprise of saying what the law is. In this exercise, as Justice Jackson famously put it, higher courts “are not final because [they] are infallible, but [they] are infallible only because [they] are final”. They can err, and I don’t think that it is constitutionally objectionable for their colleagues to say so ― provided, of course, that they still respect their subordinate role in the judicial hierarchy and apply binding precedent until it is overturned. (Of course, in the Canadian context, there is an exception even to this principle, set out by the Supreme Court in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. In my view that was a mistake.)

Sure, it’s probably a good idea for judges to be, well, judicious about when to speak out. Their main task is to decide disputes, not to be legal commentators. But I doubt there is really much danger of this happening. Lower-court judges are simply too busy to moonlight as opinionated bloggers. Conversely, though, I might actually be more uneasy with judicial commentary on the state of the law expressed either without reference to the problems it causes in a particular case or with reference to a past decision. I think it is a valuable principle that reasons for judgment ought to speak for themselves.

So when judges consider that the issue is important enough, and that it arises starkly enough in a case before them, I think they can ― and perhaps ought to ― take the opportunity to speak out. And I wouldn’t limit this to either cases of the binding precedent “misfiring”, or being based on a mistaken premise, or even particularly strong moral disagreement. I think that, just as importantly, it can be appropriate for a lower court judge to say that a higher court’s decision is legally wrong ― that it does not fit with other precedents or with the legal landscape as a whole. It is the Supreme Court’s job to sort out these conflicts and contradictions, which are to some degree inevitable in a dynamic legal system. But lower courts can contribute to the law working itself pure by pointing out impurities ― even when it is the higher court that caused them to exist.

Ultimately, I disagree with Professor Kerr’s view of judicial opinions. To repeat, he says that they “receive respect not because they’re wise or well-reasoned”, which they need not be, but “because they are legally operative documents issued by judges with the power to issue them”. I think this confuses respect and authority. A judgment’s binding authority is a product of the law alone. But the respect due to it is indeed a function of its reasoning. A poorly reasoned judgment is still binding on the parties, and its ratio sets a precedent that binds courts below that by which it was rendered. But it doesn’t follow that this judgment is automatically entitled to respect ― that it ought to be regarded as deserving to be part of the law. As a result, it is not improper for a court bound by that judgment to express reservations about it while still applying it: in doing so, the lower court defers to the higher court’s authority, but withholds the respect to which it is not entitled.

That’s my two cents, anyway. Again, the discussion between Professors Kerr and Dorf is worth your time.

Killing for Laws

People get killed when laws are enforced. How should this bear on our thinking about the laws’ legitimacy?

There is too much law. Considering that people in the business of keeping track of it cannot even tell how much of it there is, I don’t think this claim is reasonably open to dispute. But what laws should we get rid of? One seemingly attractive answer is: all those we are not willing to kill to enforce. It’s a great rhetorical weapon against laws: while we’re probably willing to resort to violence to stop violence, the boundaries of permissible law shrink very, very fast beyond that. But on further reflection I think this is not the right way to think about the issue.

Conor Friedersdorf quoted Stephen Carter’s statement of this view in a short piece in The Atlantic some years ago. (I haven’t tracked down the source of the quotation, though I haven’t looked very hard.) Professor Carter wrote:

[E]ven a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws. It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. … The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. 

David Henderson picked this up in a recent post on EconLog, which is how I came across this particular statement of the “willingness to kill” test for the appropriateness of law. Professor Henderson suggests that you

[t]hink about all the laws and regulations you want. Then think about whether you want the government to be willing to kill people if those who disobey escalate their disobedience. … Then ask yourself if that affects your thinking about any of the laws that you previously said you wanted. Laws that make gasoline cans almost useless? Laws that say you can’t have more than a certain volume of water per minute coming out of your shower head? Laws against using marijuana? Laws against growing marijuana?

Like I said above, the suggestion seems to be that we shouldn’t have such laws ― not just as a matter of policy, but that it is immoral to have such laws and to expose people to the risk of death at the hands of law enforcement for disobeying them. And, to repeat, I’m not convinced.

Part of the reason why was given shortly after Mr. Friedersdorf’s piece appeared by Joe Carter at the Acton Institute’s blog. Mr. Carter referred to Frédéric Bastiat’s argument that resort to law, and to force in enforcing it, is legitimate when, but only when, an individual would be justified in using force to assert his or her natural rights (i.e. life, liberty, and property). The law is a collective substitute for individual self-defence or self-help. Now, just as an individual will sometimes be justified in using force, but not deadly force, in protecting his or her rights, so the law’s intervention may be justified only to a degree. But an individual does no wrong if the accidental consequences of an application of force in self-defence exceed what would have been a priori justified in the circumstances. (Mr. Carter gives the example of a person struggling with a thief who falls and breaks his neck. It would have been wrong to kill the thief intentionally, but the person is not blameworthy for the accident, even though it would not have occurred had they not defended their property.) And this too applies to the law: “Intentionality”, says Mr. Carter, “carries a lot of weight in such scenarios, whether the force is being applied by me or by the Sheriff”.

I think this is mostly right, but I would add a couple of qualifications or nuances. First, I’d sharpen Mr. Carter’s argument a bit. In the example he gives, it’s not only the case that the person who struggles to keep his or her property and in the process accidentally causes the thief to die is blameless. It’s also that the thief is actually wrong ― not just to commit the theft in the first place, but also, additionally and separately, wrong to persist in it and to struggle to hang on to unjustly acquired goods. Similarly, at least if assume that the enforcement of some laws is justified, and further that it is sometimes just (more on this presently), then at least in some subset of cases “escalating disobedience” is actually wrong. The thinkers and practitioners of civil disobedience ― Thoreau, King ― warned against it. So it’s not obvious that we should have special solicitude for the person who escalates disobedience ― at least in some (significant) number of cases.

This brings me to the second qualification to Mr. Carter’s argument. He concludes by writing that “the problem is not the violence” which sometimes accompanies the enforcement of the law, but “the injustice” of far too many laws. But we have been painfully reminded, over the last few years, that too often “the violence” is indeed a problem. Even if the underlying law is just, it can nonetheless be enforced unjustly, in ways that make it impossible to analogize the suffering caused in the process to an accident of no real moral significance, let alone something the law-breaker is to blame for. Far too often, law enforcement resorts to lies, intimidation, excessive actual or threatened violence and deprivation of rights. These problems can be and too often are compounded by prejudice, notably racial prejudice. Also far too often, moreover, law enforcement agencies and agents are unaccountable for these wrongs.

This is precisely why the “willingness to kill” argument, although not strictly valid, is intuitively appealing. At the very least, it draws our attention to the costs that our preference for and belief in the legitimacy of laws imposes on others (and sometimes, though rarely, on us). It also draws our attention to the fact that, our world being rather imperfect, these costs will be rather higher than ideal theory or even analogies to improbable accidents suggest, and unjustly so. And again the injustice is often compounded by the fact these costs weigh heavier on some groups of people than on others ― on the excluded, on the deviant, on the different. We can and should try to reform the system by which our laws are enforced to lessen the disparity, but we can and should also reform the legal system as a whole to reduce the cost of its enforcement for everyone, in recognition of the fact that injustice equally distributed does not cease being injustice.

Lastly, and despite the foregoing, I’ll add that, much as I love Bastiat, there is at least one kind of laws that are, I think, justified but do not fit the strictures of his definition: namely, laws that solve coordination problems. The classic example is the rule as to which side of the road people should drive on. I don’t think that such laws can easily be explained in terms of defence of natural rights; no one person has a right to dictate to another where to go. But such laws serve to make it easier for everyone to enjoy their freedom around other human beings and increase opportunities for peaceful collaboration. They are legitimate if any laws ever are, and even anarchists would want to devise (non-state) mechanisms for enforcing ― coercively if need be ― equivalent rules. It would of course be quite wrong to punish driving on the wrong side of the road by death, and we wouldn’t want anyone to to be killed for breaking this rule, even though it is very useful and not very onerous. But that doesn’t mean that there ought to be no rule about what said of the road to drive on, even if in some small proportion of cases rule-breakers who escalate their disobedience ― say by trying to drive away at high speed when the police attempt to stop them ― will end up dead.

With these qualifications, I think that the “willingness to kill” argument doesn’t quite work, but it draws our attention to some real issues. The concerns that make it appealing to some people are not decisive for or against a particular law, or even for or against a particular theory of legitimacy. But they should at least weigh on us when thinking both about individual laws and about theories of legitimacy, and make us prefer there to be less law rather than more, other things being equal.

Tous mes emmerdements

L’État peut-il obtenir l’obéissance des citoyens en les « emmerdant » ?

Quand les gens ne font pas ce que l’État voudrait qu’ils fassent, comment faire en sorte qu’ils changent d’idée et se mettent au pas? On peut interdire ou ordonner, amende ou prison à l’appui. On peut viser le portefeuille et imposer une « taxe pigouvienne » sur une activité ou un bien auquel on voudrait qu’ils renoncent en partie sinon entièrement, la pollution ou l’alcool étant des exemples classiques. Ou encore, on peut les dépiter, les dégoûter. Les emmerder, selon le vocable recherché d’Emmanuel Macron, président de la République française.

Je cite un reportage de l’AFP repris par La Presse :

« Les non-vaccinés, j’ai très envie de les emmerder. Et donc on va continuer de le faire, jusqu’au bout. C’est ça, la stratégie », déclare sans ambages le chef de l’État.

« La quasi-totalité des gens, plus de 90 %, ont adhéré » à la vaccination et « c’est une toute petite minorité qui est réfractaire », ajoute-t-il.  

« Celle-là, comment on la réduit ? On la réduit, pardon de le dire, comme ça, en l’emmerdant encore davantage. […] 

« Je ne vais pas les mettre en prison, je ne vais pas les vacciner de force. Et donc, il faut leur dire : à partir du 15 janvier, vous ne pourrez plus aller au restau, vous ne pourrez plus prendre un canon, vous ne pourrez plus aller boire un café, vous ne pourrez plus aller au théâtre, vous ne pourrez plus aller au ciné… », explique le chef de l’État.

En sus du vocabulaire, l’idée frappe. Que l’État aimerait que les gens se fassent vacciner et, ainsi, se protègent et réduisent la pression sur le système de santé, ça se comprend. Que l’État soit réticent à mettre les récalcitrants en prison, peut-être aussi ; il y en a trop, et on ne veut pas créer les martyrs pour la télévision. Soit. Que l’État se sente à court de moyens, donc, on peut aussi le comprendre. Mais n’empêche, l’État peut-il ― du point de vue de la moralité politique ― emmerder les gens?

Je me suis déjà posé une question semblable ici, au sujet notamment de la prostitution et de la lutte anti-tabac, deux domaines où on cherche à décourager les gens en leur faisant peur et en les dégoûtant, sans pour autant interdire. Voici ce que j’écrivais alors (je traduis) :

J’ai tendance à croire que cette façon de faire est injuste […]. Comme Jeremy Waldron le souligne dans ses travaux sur la primauté du droit et la dignité humaine, le droit cherche normalement ― et devrait chercher ― à traiter ses sujets comme des être humaines, doués de dignité et d’une capacité à faire des choix rationnels. Il ne les prend pas et ne devrait pas les prendre pour des objets ou des bêtes qui ne répondent qu’à la force. Or, il me semble que c’est justement à cela que s’apparente la règlementation qui produit des effets à coup d’émotions négatives viscérales comme la peur, le dégoût ou la honte.

Bien entendu, le droit compte souvent sur une certaine crainte des conséquences négatives de la désobéissance à ses exigences […]. Cependant, il me semble que, même s’il est difficile d’exprimer cette différence, la nature de cette crainte n’est pas la même et n’est pas aussi troublante. Quoi qu’il en soit, ce qui est plus important et plus clair, c’est que le droit prévient explicitement les gens des conséquences fâcheuses de la désobéissance. Il ne s’agit pas de manipulation. Ces conséquences sont l’oeuvre du système juridique lui-même ― des juges qui les annonces, des huissiers et des gardiens de prisons qui les mettent en oeuvre, et ainsi de suite ― et non des facteurs externes dont le droit se déresponsabilise.

Emmerder les gens à la mode Macron, ce n’est pas tout à fait comme leur dire qu’ils devraient vivre dans la peur, comme le droit canadien disait et dit toujours aux prostituées. Ce n’est même pas tout à fait comme les dégoûter physiquement, comme il le fait avec les fumeurs. Mais le mode d’action d’une réglementation qui vise à emmerder n’est pas si différent de celui d’une réglementation qui agit par la peur ou le dégoût.

M. Macron dit que « “l’immense faute morale des antivax” est de “saper ce qu’est la solidité d’une nation” ». Peut-être. (Que les antivax soient en faute morale, j’en conviens. Ce que c’est que « la solidité d’une nation », je n’en ai pas la moindre idée.) Or, un dirigeant qui veut « emmerder » des citoyens commet donc lui même une faute qui fait en sorte qu’il est mal placé pour faire la morale à qui que ce soit.

Not as Advertised

Legislative debates leading to Saskatchewan’s use of the notwithstanding clause show little interest in constitutional rights

There are two main views out there about what section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the notwithstanding clause, does, descriptively speaking. One is that it is a means by which legislatures can free themselves from constitutional constraint to effectuate their own policy preferences. The other is that, far from being an escape hatch from the constitution, section 33 allows legislatures to give effect to their own considered views of what the constitution requires. The majority in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 (on which I commented here) recently endorsed the latter view, as defended by Dwight Newman. (An early version of Professor Newman’s chapter making this case is available on SSRN.)

The defenders of this view, including Professor Newman, hold up Saskatchewan’s use of its section 33 powers a few years ago as exemplary in this regard. Geoffrey Sigalet and Ben Woodfinden have written that it was “[p]erhaps the best illustration” of what they had in mind. The Saskatchewan legislature enacted the School Choice Protection Act, 2018 in response to the Court of Queen’s Bench decision in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which declared unconstitutional the funding of Catholic schools for educating non-Catholic students but not of other religious or secular private schools. (I wrote about that decision here. It was later reversed on appeal in Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34. ) The Court of Queen’s Bench found that preferential funding of Catholic schools infringed the principle of state neutrality and thus both the freedom of religion and equality rights protected respectively by sections 2(a) and 15(1) of the Charter.

As part of a broader research project looking at whether legislatures do indeed put forward their own interpretations of the constitution when they invoke section 33 of the Charter, I have read the debates about Bill 89, which became the School Choice Protection Act, in the Saskatchewan legislature. In light of the importance that this particular law has assumed in the notwithstanding clause discussion, I thought it would be worthwhile to share my account of these debates, followed by some comments, without waiting complete the entire project (which I am due to present at the Legacies of Patriation Conference this coming April).


Bill 89 was introduced in the Legislative Assembly on November 8, 2017—almost seven months after Good Spirit was decided. A week later, the then-Minister of Education launched the second reading debate with a speech that occupies all of six paragraphs in the Hansard transcript. The Minister acknowledged that the Bill was “in response to the Court of Queen’s Bench … decision” and referred to the Court’s finding that the state’s duty of religious neutrality, and hence the Charter’s religious liberty and equality provisions had been infringed. (2927) However, the Minister asserted that the province’s “funding model … does not discriminate based on religious affiliation”. (2927) The Minister did not explain why she disagreed with the court; nor did she make any other argument about freedom of religion or equality, beyond this one sentence.

Rather, she insisted that “[h]aving to wait for a decision on the appeal could leave parents and students with a great deal of uncertainty about the future, not knowing if they would continue to be funded to attend a separate school”. (2928) As a result, said the Minister, “[i]t is important to invoke the notwithstanding clause now in order to provide certainty to parents and to students so that they can be assured that they will continue to be funded to attend their school without having to wait for the outcome of an appeal”. (2928) This would be the entirety of the contribution the government side of the Assembly would make to the second reading debate.

That debate went on until May 2018, albeit at a desultory pace (on the last day, one of the opposition members complained that “[w]e haven’t seen this bill up too often on the order paper this session and there are a lot of outstanding questions here that do remain outstanding.” (4222)) A number of opposition members spoke, most of them acknowledging the potential for disruption if the Good Spirit judgment were allowed to enter into force. For one, indeed, “there’s no question that, unchallenged, that [sic] this ruling would make fundamental changes to education and classrooms, not only in Saskatchewan but the entire country”. (3173) They also repeatedly endorsed resort to section 33 in some cases, at least as a last resort, one invoking Alan Blakeney in doing so. (3259-60)

However, opposition members argued the government should not have relied on its section 33 powers before the appeals were exhausted. In the words of the member who spoke immediately after the minister, “[w]hile the appeal is being considered, there is no legitimate need to jump to the notwithstanding clause”. (2928) Another darkly warned of “the unintended consequences of using the notwithstanding clause at this point”, which “could be huge”. (3119) However, the member did not specify what these huge unintended consequences might be. Beyond voicing these concerns with process and timing, the opposition members did not add to the Assembly’s collective consideration of the Charter, despite occasional calls on “every member of this House to look through this court decision, to read through the findings”. (3173) Instead, they took advantage of the “debate” to voice recriminations about the government’s funding and management of Saskatchewan’s schools—an issue that is not obviously germane to the constitutional issues Bill 89 raised.

The second reading debate was concluded on May 7, 2018, and the bill was committed to the Standing Committee on Human Services. The committee met on May 23, for an hour and a half. Much of this time was taken up by exchanges between the (new) Minister of Education, assisted by a Ministry of Justice lawyer, and a single member from the opposition. It is worth noting that the Committee Chair warned the members that the Minister may have felt constrained by the ongoing appeals process, although it is not obvious in what respects, if at all, the Minister was really prevented from making his views clear, or for that matter why he should have felt so constrained.

The Minister reiterated his predecessor’s argument that Bill 89 was a response to the Good Spirit decision and that “[i]nvoking the notwithstanding clause ensures that the government can continue to fund school divisions based on the status quo funding model, which … does not distinguish based on religious affiliation”. (733) This would “ensure that parents continue to have a choice as to where they wanted to send their children, … [if] non-Catholic parents wanted to continue to send their children to Catholic schools and have government funding for those children attending those schools” (734)―something he would later describe as “protecting the rights of non-Catholic parents”. (737) The Minister further asserted that “in terms of using it to protect the rights of individuals … it’s a fair use of the [notwithstanding] clause. But from that perspective, I think that any time that you’re using that particular clause, I think you want to be very cautious and very careful about that.” (737) In response to an opposition member’s question, he also noted that, except with respect to the funding of non-Catholic students at Catholic schools, the existing constraints on discrimination in school admissions would not be affected by Bill 89. (740) The Minister pointed to the uncertainty with which the parents were faced, a concern the opposition member shared, and claimed that this concern could not have been addressed in any other way. (738) Yet he later admitted that “whether there are other tools that can be implemented” or what they might be was something he was “not prepared to talk about”, “because [he] ha[d]n’t given a whole bunch of thought to them”. (742) It would, rather, be “for the parties to start giving some fairly serious thought to what this all looks like at the end of the day”. (742) There was no debate on the single amendment approved by the select committee and no Third Reading debate either. Bill 89 received Royal Assent on May 30, 2018.


To be blunt, if this is supposed to be a good advertisement for legislative engagement with the constitution, the product is not an impressive one. A key proponent of section 33, Peter Lougheed, who was Alberta’s Premier at the time of Patriation, would later argue that, in deciding to invoke the notwithstanding clause “a legislature should consider the importance of the right involved, the objective of the stricken legislation, the availability of other, less intrusive, means of reaching the same policy objective, and a host of other issues”. (16) Professor Newman has similarly lofty expectations. But there is precious little of this in evidence in the Bill 89 debates.

The importance of the right involved? No one, neither the Ministers nor opposition members, engage with freedom of religion, equality, and the state’s duty of neutrality at all, unless we want to count the Ministers’ bald assertions that the funding system the court has declared to be discriminatory does not discriminate. It is fair to say that politicians should not be held to the same standards of reasoning as judges, but surely we’d expect to see something, anything, by of an explanation. Nor does any of the speakers question why the funding model was set up the way it was, with a privilege for Catholic schools that was denied to others. Nor, evidently ― and despite the Minister’s initial, quickly self-contradicted, assertion to the contrary ―, has anyone given serious thought to alternatives to this scheme and to using the notwithstanding clause to keep it in existence, although ― as I wrote here shortly after the decision was rendered, an obvious alternative does exist: the legislature could fund non-Catholic minority schools on equal terms with the Catholic ones.

The only relevant concern that was voiced during these proceedings was that with ensuring stability for non-Catholic students in Catholic schools and their parents. This is, obviously an issue that deserved a lot of attention. Yet paradoxically ― and, certainly by the time of the committee discussion, everyone was aware of this! ― invoking section 33 was only a short-term fix, not a permanent solution to this difficulty. Yet no thought was given either to a system of equal funding for all schools, which would have solved the constitutional problem, or to a system of gradual transition out of the arrangement the Court of Queen’s Bench had found to be unconstitutional, at least for those children who were only starting their schooling.

One final thing to note is that, quite apart from the quality of the legislature’s consideration of the issues, the quantity is rather lacking. In particular, I find the lack of participation by the government side of the legislature remarkable, and not in a good way. The only remotely serious discussion ― and even this is a generous assessment ― of the rights issues happened in committee, where the Minister was present in his executive capacity, not as a legislator. The government had a strong majority in the legislature ― but it was largely a silent one. In a very real way, the legislature did not offer any views at all on Bill 89.


In short, the Saskatchewan legislature did not put forward any alternative interpretation of the Charter rights involved ― it paid no mind to them at all. Its consideration of justified limitations on these rights was limited. The solution it adopted was not a permanent one. In my respectful view, those who hold up this episode as a proof of concept for the claim that legislatures can use section 33 to give effect not to brute majoritarian preferences but to constitutional judgments are wrong to do so. Perhaps, as I consider other recent episodes where section 33 was used or where its use was serious contemplated, I will find better support for their theory. But this ain’t it.

The Law of Bonkerstown

Does the constitution mandate the soft bigotry of low expectations?

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

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

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

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


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

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

Case Not Made

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

Fizzy Drink or Fuzzy Thinking?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Public Good Trap

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

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

The Woke Dissent

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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