What’s Left of Freedom?

In the Trinity Western cases, the Supreme Court eviscerates religious liberty in Canada

In my last post, I discussed the administrative and constitutional law issues relating to judicial review of the decisions of the law societies of British Columbia and Ontario to deny accreditation to the law school set up by the Trinity Western University, which the Supreme Court upheld in in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.  Here, I turn to the religious freedom aspect of the decisions. (Once again, the British Columbia decision is the one that sets out the judges’ reasoning in full, and I will refer to it below.) As indicated in the last post, in my view the Supreme Court’s decisions are disastrous, because they more or less nullify the constitutional protection for religious freedom enshrined in the Canadian Charter of Rights and Freedoms.

Trinity Western requires its students (as well as faculty) to sign and abide by a “Covenant” that proscribes, among other things, sex outside heterosexual marriage. This is widely seen as discrimination against gay and lesbian (potential) students, and was the reason for the law societies’ decisions not to accredit Trinity Western’s law school. Trinity Western argued that these decisions infringed its and its students’ freedom of religion, and that the infringement could not be justified under the Charter.

As on the issues covered in the last post, the Court is split. The majority judgment signed by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon holds that there is indeed a prima facie infringement of religious liberty, but that it is not especially serious and is easily outweighed by the need to prevent harm to students. The Chief Justice, concurring, also finds that there is an infringement of religious freedom, and indeed a rather more serious than the majority lets on, but one that is nevertheless outweighed by the law societies’ desire to avoid condoning discrimination. By contrast, Justice Rowe, also concurring, thinks that religious freedom is not at stake at all. Justices Brown and Côté dissent, finding an infringement of religious freedom that is not justified.

* * *

The majority is of the view that constitutional protection extends to “the socially embedded nature of religious belief” and to “[t]he ability of religious adherents to come together and create cohesive communities of belief and practice”. [64] Trinity Western “is a private religious institution created to support the collective religious practices of its members”, whose rights were “limited” [61] when it was denied accreditation, because their ability to put into practice a “sincere[] belie[f] that studying in a community defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development” was thereby undermined. [70] The majority adds that, while the freedoms of expression and association, as well as equality rights, were also raised in the cases, “the religious freedom claim is sufficient to account for [these] rights of [Trinity Western]’s community members in the analysis.” [77]

The Chief Justice agrees that “the freedom of religion of members of the Trinity Western community” [120] has been infringed. To be sure, as individuals, they can go on holding their beliefs regardless of whether the law societies accredit the Trinity Western law school. However, they would be “prevent[ed] from carrying out a practice flowing from [their] belief about the environment in which [Trinity Western] would offer a legal education”. [125] The Chief Justice adds that the freedoms of expression and association must be included within “the ambit of the guarantee of freedom of religion”. [122]

Justice Rowe, by contrast, denies that anyone’s freedom of religion is being infringed. He starts from the premise “that religious freedom is based on the exercise of free will”, because it “involves a profoundly personal commitment”. [212] For Justice Rowe, it follows from this that, although religion can have a “communal aspect”, it is individuals, and not institutions ― such as Trinity Western ―, who can invoke the right to religious freedom. [219] “[M]embers of the evangelical Christian community” [219] who attend Trinity Western can assert religious rights, but Justice Rowe is skeptical that they “sincerely believe in the importance of studying in an environment where all students abide by the Covenant”. [235] They prefer to do so, but do they really think they have to?Even assuming that this is so, however, Trinity Western’s evangelical students are not entitled to constitutional protection for their belief, which “constrains the conduct of nonbelievers — in other words, those who have freely chosen not to believe”. [239] They cannot, in the name of religious freedom, impose their views on those who do not share them. Since the legislation that sets up Trinity Western requires it to admit non-members of the evangelical community, these non-members are entitled to have their freedom protected too. As for “alleged infringements to … expressive and associate [sic] freedom rights … and … equality rights”, the members of the Trinity Western community “have not discharged their burden” of establishing them. [252]

The dissent sees things very differently. In the opinion of Justices Côté and Brown, the law societies’ denial of accreditation to Trinity Western “undermines the core character of a lawful religious institution and disrupts the vitality of the [Trinity Western] community”. [324] This community has the right to set its own rules for its self-governance, and the law societies are not entitled to dictate how it should do so as a condition of providing it with a benefit. Such dictation

contravened the state’s duty of religious neutrality: [it] represented an expression by the state of religious preference which promotes the participation of non-believers, or believers of a certain kind, to the exclusion of the community of believers found at [Trinity Western]. [324]

The dissenters are exactly right. The majority and the Chief Justice are also correct in recognizing an infringement of the Charter‘s guarantee of religious freedom, though as we shall see, the majority’s recognition, in particular, is well-nigh meaningless, and it is too bad that neither the majority nor the Chief Justice articulate the issue in terms of state neutrality. The key to the Charter aspect of the case is that Trinity Western has been denied something that there is no doubt it would have been granted but for the religious belief and practice which it embodies. While some, including both critics and supporters of the Supreme Court’s decision, have suggested that the case should really have been about freedom of association, I think it makes sense to frame as being about the state neutrality aspect of religious liberty. (That said, freedom of association would also have been a plausible approach ― at least if one ignores the Supreme Court’s refashioning of this provision into one that only benefits labour unions).

Justice Rowe, in my view, is quite mistaken. For one thing, I don’t understand how he, as an appellate judge, can make findings, or even speculate, about the sincerity of individual’s religious beliefs. For another ― and this, as we’ll presently see, is a problem not just for him, but for the majority too ― the suggestion that a court can distinguish between beliefs that are well and truly obligatory and those that are mere “preferences” goes against the approach adopted by the majority of the Supreme Court in Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551, which rejects testing the “validity” of religious beliefs, or asking whether a given practice is regarded as truly mandatory or supererogatory. Most fundamentally, Justice Rowe is wrong to claim that Trinity Western is trying to impose its beliefs on anyone. It demands forbearance from certain actions ― without inquiring into the reasons for this forbearance, in the same way as the state normally demands compliance with laws but doesn’t require citizens to subscribe to the principles behind them. Such demands are indeed quite antithetical to the freedom of conscience ― and one can only hope that Justice Rowe will remember this if or when the Law Society of Ontario’s Statement of Principles policy comes to his court for review ― but this is not what is going on here.

* * *

For the majority, denying Trinity Western accreditation was the only way for the Law Societies to further their statutory mandate (as they understood it), and the denial was “proportionate” to that mandate. It “did not limit religious freedom to a significant extent”, [85] and “does not prohibit any evangelical Christians from adhering to the Covenant or associating with those who do”. [86] Trinity Western itself can still receive accreditation by removing the “Covenant”, or making compliance with it voluntary, and “a mandatory covenant is … not absolutely required for the religious practice at issue”. [87] As for the students who wish to attend it, they prefer to go to a law school governed by the mandatory “Covenant”, but do not have to.

Meanwhile, denying Trinity Western accreditation contributed to “maintaining equal access to and diversity in the legal profession”. [93] Even though accrediting Trinity Western wouldn’t restrict LGBTQ students’ options in comparison with what they currently are, it would leave them with fewer options than their peers which “undermines true” or “substantive equality”. [95] The denial of accreditation also serves to protect any LGBTQ students who were to venture to Trinity Western from “the risk of significant harm” to their dignity, [96] and prevents Trinity Western from “impos[ing]” [102] its religious beliefs on them (and others). The majority concludes that this is just one of the cases where “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society.” [100]

The Chief Justice agrees that the denial of accreditation “was minimally impairing”, [127] but she takes the infringement of Trinity Western’s rights more seriously than the majority. Interference with a “lengthy and passionately held tradition” “of religious schools … established to allow people to study at institutions that reflect their faith and their practices” [130] is no trivial matter. Besides, court cannot assess the significance of religious beliefs and practices, or conclude that they are of minor significance because some believers “may be prepared to give [them] up”. [132] Finally, the Chief Justice rejects the argument that Trinity Western is imposing its beliefs on others:

Students who do not agree with the religious practices do not need to attend these schools. But if they want to attend, for whatever reason, and agree to the practices required of students, it is difficult to speak of compulsion. [133]

On the other side of the balancing exercise, the Chief Justice is skeptical that denying Trinity Western accreditation will do much for LGBTQ students, few of whom would ever consider attending it. However, she gives more weight to “the imperative of refusing to condone discrimination against LGBTQ people, pursuant to the [law societies’] statutory obligation to protect the public interest”. [137] The Chief Justice finds that “[d]espite the forceful claims made by” Trinity Western, she “cannot conclude that” denying it accreditation “was unreasonable”. [148]

The dissent, by contrast, sees no good justification for the denial of accreditation to Trinity Western ― even on the assumption (which, as explained in the previous post, the dissent denies) that the law societies have a free-standing mandate to advance “the public interest”. To be sure, Trinity Western’s “Covenant” is exclusionary; but  this exclusion “is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society”. [327] Canada has traditionally accommodated religious difference, instead of insisting, as the majority does, that it must sometimes be curtailed in the pursuit of statutory objectives. Moreover, “it is the state and state actors — not private institutions like [Trinity Western] — which are constitutionally bound to accommodate difference in order to foster pluralism”. [330] The state is supposed to be secular ― and that means

pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view. [332]

Besides,  “the Legislative Assembly of British Columbia has already determined that the public interest is served by accommodating religious communities” [335] when it exempted Trinity Western from the application of the provincial anti-discrimination legislation.

The dissent also rejects the Chief Justice’s position that accrediting Trinity Western would amount to condoning its discriminatory beliefs:

State recognition of the rights of a private actor does not amount to an endorsement of that actor’s beliefs … Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors. [338]

The state is not entitled to impose its values on those who are not subject to constitutional obligations. While it may not favour particular beliefs, neither may it deny recognition to persons or institutions who hold beliefs that are at odds with its own commitments.

On this, again, the dissenters are exactly right. The majority and the Chief Justice are allowing the law societies to circumvent the decisions of the framers of the Charter and the British Columbia legislature to permit illiberal and discriminatory private actors to retain and act on their religiously motivated beliefs. Yet religious freedom demands no less. When the state uses its regulatory (or, in other cases, its fiscal) power to deny benefits to persons and institutions whose only “fault” is that they hold religious beliefs of which the state does not approve, it not only fails to discharge its duty of neutrality, but actively seeks to eliminate religious diversity or, at best, to push dissentient religious views into the closet. (I use this phrase advisedly.) Moreover, the Chief Justice’s logic ― that the state is entitled to deny a license, benefit, or privilege to persons or entities whose views it ought not to condone ― extends well beyond the realm of religious freedom. Can racist parents be prevented from sending their children to public schools? Holocaust deniers from getting driver’s licenses? Can flat-Earthers be denied passports, or EI payments? In fine, can any interaction a citizen might have with the state be conditioned on that citizen’s not holding proscribed beliefs?

The majority, of course, is no more respectful of religious freedom than the Chief Justice ― and probably less so. Like Justice Rowe, it would, contrary to Amselem, set up secular courts as ecclesiastical tribunals responsible for determining what is and what is not mandatory as a matter of religious dogma. Like Justice Rowe, it confuses rules of conduct and reasons for complying with them and denies the agency of persons who voluntarily choose to submit to rules whose raison d’être they might disapprove of. As for its understanding of “substantive” equality, it requires denying options to all so as not to admit of any disparity, even one that literally leaves “enough and as good” ― and indeed, more than enough and better ― options to those ostensibly excluded; in other words, a levelling down.

* * *

I’m not sure how much is left of the constitutional guarantee of religious liberty after the Trinity Western decisions. Presumably, purely private devotion still cannot be forbidden or compelled ― to that extent, it is fortunate that the Chief Justice’s approach, which would have opened even private religious views to scrutiny the moment a citizen starts interacting with the state, has not prevailed. But any relationships between religious persons or entities with others ― even entirely consensual relationships ― are now open to regulation in which the religiously motivated actions can be regulated or prohibited as impositions of belief, or subjected to the imposition of the state’s values, whether or not there is any legislative basis for such imposition in the circumstances. Purely symbolic harms are deemed to provide sufficient justification for regulation, and multiculturalism is made to serve as an excuse for silencing and assimilating non-conformists. It is telling that the arguments that purportedly justify the denial of accreditation to Trinity Western are not meaningfully different from that those that supposedly support bans on Muslim face veils, which are also said to be necessary to prevent the imposition of retrograde, discriminatory views on those who do not freely embrace them.

Almost five years ago, I commented on an article by Douglas Laycock called “Religious Liberty and the Culture Wars,” which decried the growing hostility to religious freedom among large sections of the political left. Professor Laycock connected this hostility to the religious right’s own attempts to suppress the liberties of the people it regarded as morally misguided. But, contrary to the claims of the Supreme Court’s majority and Justice Rowe, no such thing happened at Trinity Western. However distasteful its views ― and I do find them distasteful, not just the homophobia but the illiberalism more broadly ― Trinity Western wasn’t trying to impose them on unwilling outsiders. Professor Laycock was hopeful that “[w]e could still create a society in which both sides can live their own values, if we care enough about liberty to protect it for both sides”. (41) The Trinity Western cases show this possibility is no longer a realistic one in Canada, for the foreseeable future. The winners in the culture war have chosen not to take prisoners, and to accept nothing short of an unconditional surrender. The Supreme Court holds that they are entitled to do so.

The Supreme Court v the Rule of Law

In ruling against Trinity Western’s fundamentalist law school, the Supreme Court unleashes the administrative state

The Supreme Court’s decisions in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 are a disaster for Canadian law. By a 7-2 majority, the Court upheld the decision of the Law Societies to deny accreditation to a concededly academically adequate law school on the sole ground that its students and faculty would have been required to sign up to a religiously-inspired “Covenant” and, inter alia, promise to abstain from sex outside of a heterosexual marriage for the duration of their studies ― a requirement that disproportionately affects gay and lesbian students and was therefore widely regarded as discriminatory, though it was not illegal under applicable anti-discrimination law. The Supreme Court’s decision and reasoning subvert the Rule of Law and nullify the constitutional protection for religious freedom.

The Trinity Western cases presented two sets of issues. First, there was the administrative law questions of whether the law societies were even entitled to consider  the “Covenant” in deciding whether to accredit it and, in the British Columbia case, whether a referendum of the law society’s members was an appropriate way of deciding whether to accredit Trinity Western. (The British Columbia decision is the one where the reasoning of all the judges is set out in full, and that’s the one I will refer to below, unless otherwise specified.) Second, there were the constitutional law questions of the framework to apply to review of the compliance of administrative decisions with the Canadian Charter of Rights and Freedoms and, substantively, of whether the law societies’ decision infringed the Charter and whether this infringement was justified. In this post, I focus on the administrative law issues, and add a few words on the applicable review framework. I will write about the religious freedom issues separately.

On the issue of the law societies’ entitlement to consider the covenant, as on the outcome, the Court splits 7-2. The majority reasons are ostensibly jointly authored by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon; the Chief Justice and Justice Rowe concur. They hold that the law societies were within their rights to deny accreditation to Trinity Western based on the “Covenant”. Justices Brown and Côté jointly dissent. The majority holds that the referendum was a permissible procedure for deciding on the Trinity Western accreditation. Justice Rowe disagrees, although his comment on this point is in obiter. The dissent also thinks the referendum procedure was not appropriate. As for the review framework, the majority purports to apply the one set out Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and (modified in) Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613. The Chief Justice and Justice Rowe, however, propose substantial modifications of this  framework, while the dissenters call for it to be reconsidered.

* * *

The majority (with the agreement of the Chief Justice and Justice Rowe) considers that the law societies had the power to consider Trinity Western’s “Covenant” and its discriminatory effects because of their alleged statutory mandate to regulate the legal profession “in the public interest”. The British Columbia legislation, for instance, provides that “[i]t is the object and duty of the society to uphold and protect the public interest in the administration of justice by”, among other things, “preserving and protecting the rights and freedoms of all persons”. This “overarching statutory object … is stated in the broadest possible terms”, [33] and the majority decides that in upholding the public interest and rights and freedoms the law societies were entitled to take into account “inequitable barriers on entry to the school” [39] created by the “Covenant”, as well as unspecified “potential harm to the LGBTQ community”. [44] Moreover, the majority thinks that since the “shared values” of the Canadian Charter of Rights and Freedoms “are accepted principles of constitutional interpretation”, [41]

it should be beyond dispute that administrative bodies other than human rights tribunals may consider fundamental shared values, such as equality, when making decisions within their sphere of authority — and may look to instruments such as the Charter or human rights legislation as sources of these values, even when not directly applying these instruments. [46]

To be sure, since neither law society provided reasons for its decision, it is not quite clear whether the decisions were actually made on this basis. But, since the Supreme Court has for some time now insisted that reasons that could have been given by administrative decision-maker can support its decision just as well as those that actually were, this is of no consequence.

The dissenters beg to differ. Constitutional values are irrelevant “to the interpretation of the [law society]’s statutory mandate,” and “it is [its] enabling statute, and not ‘shared values’, which delimits [law society’s] sphere of authority”. [270] That statute allows the law society to regulate itself, “‘lawyers, law firms, articled students and applicants’ [but]does not extend to the governance of law schools, which lie outside its statutory authority”. [273] As a result, the effects of the “Covenant” on which the majority relies are irrelevant considerations; in trying to forestall them, a law society acts for an improper purpose, since ― as Justice Rand famously observed in Roncarelli v Duplessis, [1959] SCR 121 ―,

there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption (140; cited at [275]; emphasis Brown and Côté JJ’s)

The perspective in which the law societies’ enabling statutes are intended to operate is a focus on the fitness of individual lawyers for legal practice, and denying accreditation to a law school whose graduates are not expected to be individually unfit is inconsistent with this perspective. As for the broad statement of purpose on which the majority relies, it provides no authority for a law society

to exercise its statutory powers for a purpose lying outside the scope of its mandate under the guise of “preserving and protecting the rights and freedoms of all persons”. For example, the [Law Society] could not take measures to promote rights and freedoms by engaging in the regulation of the courts or bar associations, even though such measures might well impact “the public interest in the administration of justice”. …

 It is the scope of the [law society’s] statutory authority that defines how it may carry out its public interest mandate, not the other way around. [286-87]

The law societies are not empowered to regulate student selection by law schools in the name of whatever they conceive as the public interest; if they were, they could (and perhaps would have to) regulate other aspects of the law schools’ policies that can have an impact on access to and diversity within the legal profession ― even, say, tuition fees. This simply isn’t the law societies’ job under their enabling legislation.

On this as on other points, I agree with the dissent ― which is probably the best opinion to come out of the Supreme Court in a long while, though it tragically falls three votes short of becoming the law. The majority’s approach is not altogether surprising. Indeed, it exemplifies tendencies illustrated by other cases, such the making up of reasons where the administrative decision-maker gave none, the better to “defer” to them. I once described judges engaged in this practice as playing chess with themselves and contriving to lose. More significantly, the Trinity Western cases resemble the recent decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, in that, as in that case, the majority seizes on a broad statement of purpose and disregards statutory language that more carefully circumscribes the powers to be exercised by an administrative decision-maker, expanding its competence so that it has virtually no limits. I described this aspect of West Fraser here, and stressed the importance of the “perspective in which a statute is intended to operate”, complete with the Rand quotation, here.

What is perhaps an innovation, albeit one that follows the same perverse logic of courts enabling regulators where legislators did not, is allowing the administrative decision-maker to effectively enforce (under the euphemism of “looking to”) laws that it is no part of their statutory mandate to enforce, supposedly because these laws represent “shared values”. The framers of these laws ― both the Charter and the British Columbia Human Rights Act ― made a conscious decision that they would not bind private entities generally, or religious institutions such as Trinity Western specifically, respectively. No matter ― the majority thinks that administrative decision-makers can apply them regardless.

It is for this reason that, in my view, the Trinity Western cases subvert the Rule of Law. They fly in the face of the idea that, as the Supreme Court still recognized not that long ago ― in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 ―,  “all exercises of public authority must find their source in law”, and that it is the courts’ job to “supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority”. [28] According to the majority, public authority can be exercised without positive legal mandate, indeed in disregard of legislative attempts to (admittedly loosely) define such a mandate, on the basis of allegedly “shared values”. One cannot help but think of the more unsavoury totalitarian regimes, where “bourgeois legality” was made to give way to “revolutionary class consciousness” or similar enormities. That these “shared values” are said to derive from the Charter, which limits the power of government and, indeed, expressly provides in section 31 that “[n]othing in [it] extends the legislative powers of any body or authority”, only adds insult to injury.

As the dissent rightly points out, on the majority’s view law societies have a roving commission to weed out injustice. They could regulate not only “courts or bar associations” but also police forces, self-represented litigants, or anyone else who comes into contact with the administration of justice. Their regulation of lawyers can extend to the lawyers’ private lives, and very thoughts ― which is what what the Law Society of Ontario is already attempting with its requirement that lawyers undertake to promote “equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”. Granting a regulatory body this amount of power unfettered by any guidance more precise than the notion of the public interest is inimical to the spirit of a free society.

* * *

On the question of whether the Law Society of British Columbia was entitled to hold a referendum on whether to accredit Trinity Western, the majority notes that there are not statutory limits on the ability of its governors, the Benchers, to “elect to be bound to implement the results of a referendum of members”. [49] The fact that the constitutionally protected rights were at stake does not change anything. The Chief Justice does not say anything explicitly about this, but I take it that she agrees with the majority.

Justice Rowe, however, has a different view of the matter. While he agrees that the Benchers are generally free to call and choose to be bound by the results of a referendum, he thinks that the case is altered where the Charter is involved. As I will explain in my next post, Justice Rowe (alone among his colleagues) thinks that this is not the case here. Were it otherwise, however, a referendum would not suffice to discharge the Law Society’s “responsibilities under the Charter. Is not one of the purposes of the Charter to protect against the tyranny of the majority?” [256] Majority opinion is not a sufficient basis on which constitutional rights can be restricted.

The dissent is similarly unimpressed. It notes that the majority’s basis for upholding the Law Society’s decision ― that it reflects a proportionate balancing of the Law Society’s objectives and the relevant constitutional rights ― presupposes “expertise in applying the Charter to a specific set of facts”, and requires “engagement and consideration from an administrative decision-maker”. [294] Once they decided to simply accept the outcome of a referendum of members, the Benchers did not exercise their expertise, or engage with and consider the issues; rather, they “abdicated their duty as administrative decision-makers by deferring to a popular vote”, [298] and their decision should be quashed on that basis.

The dissent is right that a referendum is simply incompatible with the framework for reviewing administrative decisions employed by the majority. It makes no sense to demand, as the majority does, that judicial review of administrative decisions effectively made by non-experts who do not deliberate be deferential on the basis of administrative expertise and deliberation.

But that, of course, does not address the real question, which is whether judicial review that implicates constitutional issues should be deferential at all. If the courts do not abdicate their responsibility to ensure that administrative decision-makers comply with the constitution, then whether these decision-makers abdicate their duty by deferring to a popular vote matters rather less. Justice Rowe cannot be right that a majoritarian procedure is, in itself, anathema as soon as the Charter is concerned. Of course the Charter is supposed to protect against the tyranny of the majority ― but it does so by empowering courts to review the decisions of majoritarian institutions, whether law societies, municipal councils, or legislatures, and not by preventing such institutions from deciding matters that might affect constitutional rights.

* * *

How, then, should the courts go about reviewing administrative decisions that implicate the Charter? I will not say much about this issue, because I do not think that the Trinity Western cases tell us much. As noted above, the claims to apply the Doré/Loyola approach of upholding administrative decisions if the achieve a “reasonable” or “proportionate” balancing of statutory objectives against the infringements of Charter rights. Both the concurring judges and the dissenters want to modify this framework and make less deferential.

This sounds like an interesting debate, but I’m not sure it is worth having, because I am not sure that the majority is speaking in good faith. For one thing, as the dissent points out, the majority is not really deferring to balancing achieved by the law societies, since neither gave reasons for its decision. For another,  the majority’s insistence that “Doré and Loyola are binding precedents of this Court” [59] is laughable. I mean this literally ― I laughed out loud when I read this. Even if we pretend that most precedents of the Supreme Court are binding on it, rather than being subject to tacit evasion and quiet undermining, as they increasingly are these days, Doré and Loyola do not belong to this category. As I’ve noted here, and as the dissent also points out (at [303]), the Supreme Court’s recent decisions in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)2017 SCC 54 (CanLII), [2017] 2 SCR 386 and Association of Justice Counsel v. Canada (Attorney General)2017 SCC 55[2017] 2 SC 456, do not follow the Doré/Loyola approach. It is perhaps worth observing that all the members of the Trinity Western majorities except Justice Moldaver were also in the majority in both of these decisions.

The issue of how the courts should review administrative applications, or implicit applications, or failures to apply, the Charter is highly consequential. It is all the more so since the Supreme Court is letting the administrative state loose, unmoored from legislative constraint and judicial supervision on administrative law grounds. But while the suggestions of the concurring and dissenting judges in this regard are worth considering, this is not the place to do so. For the purposes of understanding Trinity Western, I think it enough to say that the Doré/Loyola approach suited the majority’s rhetorical needs, and therefore was used.

* * *

From the standpoint of administrative law and of constitutional control over the administrative state, the Trinity Western cases are a catastrophe. The Supreme Court subverts the Rule of Law by giving administrative decision-makers virtually unlimited powers, unfettered by statutory restrictions, and reinforced by the hopeless vague concept of “shared values” that allow these decision-makers to impose their views on those subject to their power quite apart from any legal authorization. As I will argue next, the Trinity Western decisions are also distressing because of their evisceration of religious freedom. However, the administrative law aspect of these cases might be an even more toxic legacy, because it cannot be confined to a single constitutional right that is an unfortunate victim of the culture war. The administrative state is pervasive, and the Supreme Court’s refusal to keep it under control will make victims on all sides of that narrower, if more salient, conflict.

Scandalizing!

Read Edward Willis’ and my submission on legislation that would censor criticism of the judiciary

A few weeks ago, I wrote about a bill, currently before the New Zealand Parliament, which would codify ― and expand ― the law of contempt of court, in particular as it relates to criticism of the judiciary. (At common law, this is known as the offence of “scandalizinig the court”.) I argued that the offence the bill would create is overbroad, that the defences to it are insufficient, and that the bill, if enacted, would unjustifiably violate the freedom of expression, the freedom of conscience, and the presumption of innocence.

Well, for once, I thought that just ranting on my blog was not enough, so Edward Willis and I started to work on a submission to the Justice Select Committee, which will be studying the bill. We have been joined by my boss, Charles Rickett, my colleagues Warren Brookbanks and Vernon Rive, as well as Andrew Geddis and Eddie Clark, in arguing that, if the provisions related to criticism of the judiciary are not removed from the bill entirely, they need at least to be amended to be more compliant with fundamental constitutional principles and rights. In particular, we propose making the falsity of any statement punishable as contempt an element of the offence, to be proven beyond a reasonable doubt by the prosecution, rather than a defence to be proven the accused; introducing a defence of honest opinion; and removing the ability of the Solicitor General to request, or of the High Court to order, that a person correct, retract, or apologize for a statement that has not been proven to constitute contempt of court; indeed we are proposing getting rid of forced corrections and apologies entirely.

You can read our submission here. Working on it with Dr Willis has been great fun, and I’m very grateful to our co-signatories for their help and support.

Remarks on Bill C-76

Freedom of expression issues in an electoral reform bill

Earlier today, I had the chance to address the House of Commons Standing Committee on Procedure and House Affairs, which is currently studying Bill C-76, a significant reform package for the Canada Elections Act. I am very grateful to the Committee for inviting me ― though I wish I’d been given more than just a few days to prepare ―, and also to its staff for making it possible for me to speak from an ocean and a continent away.

My remarks focused on the freedom of expression issues that C-76 fails to address or indeed amplifies in what I think is a dangerous quest to stop the “permanent campaign” ― dangerous because the only way to really stop the permanent campaign would be to impose permanent censorship on political debate. (Scott Reid, a Conservative member of the Committee asked me about this, and I said that I hope that Parliament will not go that far ― but I am worried that accepting the principle of regulating political speech outside of the electoral campaign period, we will not stop at just a couple of months, as C-76 does, for now.) More generally, my point was that members of the civil society ― whom election law denigrates by describing them as “third parties” ― should be heard, even at election time.

Here are my remarks. (The Chair’s reference to a miracle is due to some technical issues that prevented me from connecting to the meeting on time… but all’s well that ends well!)

The Real Contempt

New Zealand’s Parliament considers legislation that would shield courts from criticism ― and make them instruments of censorship

I do not write about New Zealand very much, although I have been living here for a year and a half. Perhaps it is as well. If the Administration of Justice (Reform of Contempt of Court) Bill currently before the Justice Select Committee of New Zealand’s Parliament is enacted into law without substantial amendments, a blog post making “an allegation or accusation … against a Judge or a court [of New Zealand]” and deemed to create “a real [to] undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” could land me in prison for up to two years, or get me fined $50,000.

Now, much of the Contempt Bill, developed by the New Zealand Law Commission as part of an effort to clarify and update the law of contempt of court, seems to be a worthwhile project. But the provisions relating to criticism of the judiciary are dangerous. They are overbroad, infringe the presumption of innocence and freedom of conscience as well as freedom of expression, and rely on a dangerous amount of discretion in their enforcement.  Even if they are not applied to the fullest extent of which they are capable ― and, as I will explain below, I think they are meant not to be ― these provisions will have a chilling effect on lawyers and laypersons alike who might want to comment on the courts, whether in the media, on blogs, or in scholarship. They ought be amended or indeed abandoned altogether.

In a recent post, for instance, I argued that the Supreme Court of Canada had a “pro-regulatory bias”; previously, I criticized Chief Justice McLachlin for “tak[ing] up a partisan slogan” ― Pierre Trudeau’s “just society” ― “and try[ing] to make it into a constitutional ideal”, and mused about the corrupting effects of power on chief justices generally. If I criticize New Zealand’s courts and judges in similar ways, I think it would be fair to say that I would be making “accusations or allegations” that could, at least if read more widely than this blog normally is, “undermine public confidence in the … integrity or impartiality” of their targets. And while I know that not everyone is a fan of my sometimes strongly-worded opinions, I wouldn’t be the only one to fall foul of the Contempt Bill. The cover article of the New Zealand Law Society’s magazine this month is called “Bullying from the bench“, and its very first sentence is: “Bullying judges are identified and discussed whenever lawyers get together”. The same Law Society, meanwhile, is investigating a lawyer, Catriona MacLennan, for calling a judge unfit for the bench after he let off a man accused of domestic violence on the basis that “many people … would have done exactly” the same. Perhaps if the Contempt Bill is passed the Law Society will have a chance to rethink its position as it joins Ms MacLennan among those charged with undermining public confidence in the integrity of the judiciary.

These examples make clear, I hope, that the criminalisation of “accusations or allegations” that “could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” can capture a vast range of perfectly legitimate, indeed absolutely necessary, criticism. While the Contempt Bill (and the Law Commission’s report) seem to suggest that only “untrue” statements are being targeted, this word appears only in the headings of Subpart 6 of Part 2 and of Clause 24 of the Bill  ― not in the text of subclause 24(1) which defines the offense. Rather, the truth (or material truth) of an “allegation or accusation” is, by subclause 24(3), made a defence to a charge under subclause 24(1) ― if the accused can prove the truth of the “allegation or accusation” “on the balance of probabilities”.

This is nowhere near enough to circumscribe the scope of the offence. For one thing, many “accusations or allegations” against the judiciary (such as my claims about pro-regulatory bias, or arguably Ms MacLennan’s views about the unfitness of the nothing-wrong-with-domestic-violence judge) are matters of conjecture or opinion: they are inherently incapable of being proven true. For another, ostensibly factual statements that could in theory be true or false can be made for rhetorical effect, and fail to be “materially true” even though they make a legitimate and easily discernable point (such as the claim about lawyers always talking about bullying judges). Besides, the requirement that an accused prove the truth of a statement when only “untrue” ones are thought to be worthy of being criminalized sits uneasily, to say the least, with the presumption of innocence (protected by paragraph 25(c) of the New Zealand Bill of Rights Act 1990). To be sure, in Canada, a similar truth-as-a-defence provision was upheld as a justified limitation on the right to be presumed innocent in R v Keegstra, [1990] 3 SCR 697. But what is justified in the context of a very narrow proscription of hate speech might not be in the context of a much broader ban on criticizing a branch of government and its officials.

Moreover, it seems to me that asking judges to rule that “allegations or accusations” calling into question the impartiality or integrity of colleagues, let alone hierarchical superiors, are true is putting both them and the accused forced to make that case in an exceedingly difficult position. (Of course, any suggestion that judges might be reluctant to impugn the impartiality or integrity of fellow-judges into question is itself an “accusation” that could “undermine public confidence” in their impartiality and integrity ―  and one that is inherently incapable of being proven true.) In Canadian law, there is a principle of fundamental justice according to which any defence to a criminal charge “should not be illusory or so difficult to attain as to be practically illusory”: R v Morgentaler, [1988] 1 SCR 30 at 70 (per Dickson CJ);  R v St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187) at [77]. While the New Zealand Bill of Rights Act does not require such principles to be followed before a person can be imprisoned, this still seems like a sensible moral guideline. The Contempt Bill does not comply with it.

The Contempt Bill’s provisions on criticism of the judiciary have other serious problems, besides the breadth of the offense it creates and the narrowness if not the illusory character of the defence of truth. Instead of, or in addition to, prosecuting a person for having made “allegations or accusations” against the judiciary, the Solicitor-General is empowered, under subclause 25(2) to “request” a retraction or an apology ― including a retraction pending the determination of that person’s guilt. The Solicitor General can also apply, under subclause 26(1), for an order of the High Court requiring, among other things, a retraction or an apology. Such an order is to be granted if the Court is “satisfied that there is an arguable case that” prohibited “allegations or accusations” have been made. Such orders must, under subclause 26(5) be consistent “with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990”, but non-compliance can, under clause 27, lead to stiff fines ― and “knowing or reckless” non-compliance to imprisonment too.

This, in my view, is inconsistent with the freedoms of expression and conscience, as well taking further liberties with the presumption of innocence. The Solicitor-General’s “requests”, backed by the implicit threat of hauling a non-compliant person before the High Court, will at least produce a chilling effect, if not be outright coercive. “Requests” to retract statements that have not yet been judged to be illegal ― with perhaps, wink wink, nudge nudge, the possibility to avoid prosecution as an inducement ― are especially disturbing. But the prospect of court-ordered apologies is even worse. Persons who are being coerced, by threat of imprisonment, into apologizing are being made to say something they do not believe in and, in an affront to freedom of conscience, also to express a moral judgment about their own culpability which they presumably do not share. A liberal state cannot extort such moral judgments from its citizens. As Justice Beetz, speaking for a majority of the Supreme Court of Canada in “additional reasons” in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, said of a labour arbitrator’s order that a bank sign a letter endorsing the objectives of labour legislation, “[t]his type of penalty is totalitarian and as such alien to the tradition of free nations like Canada,” ― or New Zealand ― “even for the repression of the most serious crimes”. (296) Whatever the Contempt Bill might say about respecting the Bill of Rights Act, it is not possible to make such orders with violating the freedom of expression and the freedom of conscience of their targets.

The fact that these orders could be made, not upon a finding of guilt beyond a reasonable doubt or even on a balance of probabilities, but merely if there is an “arguable case” that a person has published “an allegation or accusation” that creates “a real risk” of “public confidence in the independence, integrity, or impartiality of the judiciary or a court” being “undermined” only compounds the iniquity of the Contempt Bill. To be sure, the orders are, ostensibly at least, a form of civil remedy ― though note Justice Beetz’s description of the arbitrator’s letter as a “penalty”. Thus the New Zealand Bill of Rights Act’s protection for the presumption of innocence, which only extends to persons “charged with an offence”, does not apply. Yet the low burden of proof required for a retraction or an apology order means that rights can be interfered with on the basis of a weak showing by the government, even one that is less likely than not to be justified, and so go against the principle of respect for individual rights if not the right to be presumed innocent itself.

Finally, it is worth highlighting the fact that the Contempt Bill quite clearly contemplates that the enforcement of its proscription on “allegations or accusations” against the judiciary will be highly discretionary. Prosecutions are required to be “in the public interest”, (subclause 25(4)) and “may consider” the existence of any complaints about a judge and “any explanation provided by the Judge” (subclause 25(5)). This, I think, is a tacit admission of drafting failure. The Contempt Bill’s authors implicitly recognize that it is overbroad, and hope that the good judgment of prosecutors can be relied on to avoid fining or imprisoning people for legitimate criticism of the judiciary. This is not good enough. The chilling effect of the criminalisation of such criticism will be felt even if there are no abusive prosecutions, as those who write about the courts constantly watch their words and wonder whether they are crossing the line that exists in the prosecutors’ minds. And there is something perverse for a bill that sets out to clarify the law and give citizens fair notice of their responsibilities vis-à-vis the justice system to rely on prosecutorial discretion to avoid these responsibilities becoming a crushing burden.

The Contempt Bill’s provisions restricting criticism of the judiciary must not be enacted in their current form. Whether any such provisions should be enacted at all is something I still need to think through. If enacted, however, they ought at a bare minimum to make room for what Lord Denning MR described, in R v Com’r of Police of the Metropolis, Ex parte Blackburn (No 2), [1968] 2 QB 150 (CA) as “the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest”, including by saying that a court is “mistaken, and [its] decisions erroneous, whether they are subject to appeal or not” (155) ― and including, too, if the commenter him- or herself is in error. New Zealand’s Parliament should take the advice of Lord Denning when he said that his court would not invoke its powers to find a person in contempt “as a means to uphold [its] own dignity. That must rest on surer foundations.” (155) That this power would now  come from statute rather than the common law does not change matters. New Zealand’s courts are independent, and therefore should, just like the English Court of Appeal, “not fear criticism, nor …  resent it”. (155) If anything, it seems to me that the courts’ dignity is more endangered by legislation that would make them into instruments of censorship than by criticism.

Setting the Story Straight

History, Originalism, and the Supreme Court’s decision in Comeau

Over at the historical blog Borealia, Bradley Miller ― no, not that Bradley Miller ― has a post defending the treatment of history in the Supreme Court’s recent decision in  R v Comeau, 2018 SCC 15. Professor Miller argues that, contrary to what I said in my own comment on Comeau, to which he refers a number of times,

the courts took history and historical evidence and inquiry seriously in Comeau. In fact, historical analysis was central to the case against Comeau’s right to bring beer over the provincial boundary.

Professor Miller also suggests that Comeau illustrates the difficulties that would arise out of attempts to apply originalist methodologies to the interpretation of Canada’s constitution. With respect, I think Professor Miller misunderstands my criticisms of Comeau, which have to do not with the substantive outcome but with the way in which the Supreme Court treated historical evidence. As for Professor Miller’s critique of originalism, it reprises arguments that were made 35 years ago in the United States ― and addressed by the development of originalist theory since then.

Regarding substance, I am obviously not well positioned to debate Professor Miller’s assessment of what he describes as the “two very different versions of history [that] emerged from two historians involved in the litigation”, one presenting Confederation as a triumph of economic liberalism, the other emphasizing more cautious views among the framers of the Constitution Act, 1867. I am tempted to say that, even if the Fathers of Confederation endorsed international protectionism and government intervention in the economy, that doesn’t really dispose of the question of their intentions as to non-tariff barriers to inter-provincial trade. Practical politicians rarely hold fully consistent views, and at least today many would distinguish ― however little basis there may be for this distinction in economic theory ― barriers to trade across and within international borders. But perhaps things were different in 1867.

Be that as it may, though Professor Miller says that “[a]t the Supreme Court, the justices preferred the latter [i.e. more nuanced] view” of the Fathers’ attitudes to free trade, there is little basis for this claim in Comeau. The Court (or, likely, Chief Justice McLachlin) says that “the historical evidence, at best, provides only limited support for the view that” section 121 of the Constitution Act, 1867, the provision at issue, “was meant as an absolute guarantee of trade free of all barriers”. [67] But the Court never actually refers to the evidence on the other side of this debate, even though, as Professor Miller points out, this evidence was submitted to the Court’s attention by the Attorney-General of Alberta’s factum. [16]-[20] (I don’t agree with Professor Miller that these five paragraphs are “central” to the factum, but they are certainly there.)

If anything, this choice to ignore historical evidence that arguably supported the Supreme Court’s conclusion reinforces my view that Comeau was dismissive of history’s value to constitutional adjudication. In other cases, the Supreme Court is eager to seize on such evidence, for example by directly quoting the framers of the constitutional provisions at issue and the documents that reveal their plans and intentions. In Comeau, by contrast, the Court does no such thing. The other ways in which the Court is disparaging towards historical evidence is its insistence that such evidence, unlike that drawn from the social or health sciences, cannot justify reconsideration of precedent, and its aversion to the use of historical expert evidence.

Ultimately, as I argue in my Comeau comment and also in a response to some of my fellow-critics, the Supreme Court’s decision is driven by a conviction that a federalism where internal barriers to trade arising out of provincial regulation are pervasive is the right sort of federalism. The Court does not defend this conviction on historical grounds; it just says that that’s what federalism means. Thus I do not think that “historical analysis was central” to Comeau. Perhaps an opinion focusing on the evidence to which Professor Miller refers and reaching the same outcome the Court reached could have been written. But the point is that it wasn’t. History, in Comeau, is neither the main character nor even a supporting one; it is an adversary to be neutralized and dispatched before moving on to the more important business of constitutional policy-making.

As for Professor Miller’s comments on originalism, they are even less convincing than his defence of the Supreme Court’s reasoning in Comeau. Professor Miller describes originalism as “a technique which is often a tool of social conservatives seeking to squash rights for women, LGBT people, and others, and very uncommon in Canadian constitutional cases”. His evidence for this condemnation? Why, a link to one of Sean Fine’s “Tory judgesscreeds ― this one, ironically, decrying the appointment of Justice Bradley Miller to the Court of Appeal for Ontario. Professor Miller also informs us of “the challenges that originalists face in trying to document a singular and enforceable original intention or original meaning in a document that was as much-Fathered as the [Constitution Act, 1867]”, of his belief that the Fathers of Confederation might not have wanted originalism to be the methodology used to interpret the constitution they created, and of the danger “that this methodology might leave judges needing a resident historian to co-preside on the bench in constitutional cases”. The living constitutionalist “methodological status quo” serves Canadians just fine, Professor Miller concludes ― and those who disagree should just think about the goings-on south of the border “over the last year and a half”.

The suggestion that originalism is somehow responsible for the misery of the Trump presidency ― the prospect of which was denounced by many prominent originalists ― is, to put it as politely as I can, puzzling. But Professor Miller’s other critiques of originalism are not much better. He ignores the existence of originalist arguments in favour of marriage equality and against sex discrimination, among other progressive causes, in the United States, and of Kerri Froc’s feminist originalism in Canada. He also ignores the fact that so-called “new originalism”, focused on the public meaning of constitutional texts rather than the intentions of their authors, developed (starting in the late 1980s!) precisely in response to criticism about the impossibility to ascertain the joint intention of multiple authors who may or may not themselves have been originalists. (Professor Miller might be suggesting that a “much-Fathered” text cannot even have a “singular original meaning” ― but the fact that he also seems to think that he understands the Comeau judgment, ostensibly the joint product of nine fathers and mothers, rather detracts from whatever strength that criticism might otherwise have had.) As for courts needing resident historians ― the Supreme Court in Comeau says that it can do the job without professional assistance, and of course it is managing to dabble in social and health sciences without resident experts. Last but not least, Professor Miller should know, having linked to Benjamin Oliphant’s and my article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, that the claim that originalism is “uncommon” in Canada, and living constitutionalism is the secure status quo, is simply false. The use of originalist reasoning is pervasive, albeit also erratic, in the Supreme Court’s decisions.

Whether or not the Supreme Court’s decision in Comeau is consistent with the best evidence of the original public meaning of section 121 of the Constitution Act, 1867, any such consistency is accidental, rather than the result of serious engagement with the evidence. Unlike many of the Supreme Court’s recent decisions, Comeau is a living constitutionalist, policy-driven decision that accords little importance to history, and as such, it is a poor foundation for any conclusions about the feasibility or soundness of originalist constitutional interpretation. Unpersuasive arguments against originalism, which ignore the developments in originalist theory over the last decades, are sadly not uncommon. Yet if we are to develop something better that what Mr. Oliphant and I described as “a buffet-line approach to interpretation, unfettered by standards for the principled application of the interpretive methods available”, we must begin by understanding the different options on the menu. Perhaps, having done so, we will conclude that originalism is not the right choice. But we cannot come to this conclusion on the basis of outdated clichés and persistent misunderstandings.

La Cour, c’est qui?

Peter McCormick identifies the likely author of the “by the Court” opinion in Comeau

Peter McCormick, University of Lethbridge

The Supreme Court’s recent decision in Comeau has definitely put the judicial cat among the federalist pigeons.  At first glance – we have all seen the headlines – the case is about bringing cases of cheap beer into New Brunswick (“Free the Beer!”).  On a closer look, the already enfeebled Section 121 of the Constitution Act 1867 has been effectively gutted, taking with it any realistic prospect of a major shift toward greater intra-Canadian free trade.  Along the way, the sort of trial judge’s revisiting of precedent that was so highly lauded in Bedford has been severely chastised.  An interesting case, therefore, on several levels.

The decision took the somewhat infrequent form of a “By the Court” judgment – one that is both unanimous and anonymous – which arguably makes it more emphatic while coyly veiling the identity of the judge who did the drafting.  But the curtain of anonymity can be brushed aside to identify the lead author, or at least to establish solid relative probabilities.  That identity will come as no surprise, but the methodology I will describe takes it some distance beyond simple conjecture.

That methodology is function word analysis.  Function words are the words that express grammatical or structural relationships between other words (prepositions, pronouns, determiners, conjunctions, auxiliary verbs and particles), as distinct from the content words (nouns, adjectives, verbs and adverbs) that convey more concrete meaning.  Function words are the words that everybody uses, but different people use with different frequencies and proportions, so much so that these frequencies and proportions provide a literary fingerprint.  There are about 300 function words in the English language; my more focused function word list is drawn from the literature, and modified to reflect the actual usages of the Supreme Court over the last twenty years.  It involves the 44 most frequently used function words, some of which are totals for related words such as “a” and “an”, or the different tenses of common auxiliary verbs like “to be” or “to have” or “to do”; together, these words accounted for a rather remarkable 40% of the total word count – overall and for every one of the judges.  This was used to generate a word-usage profile from the written reasons attributed to each judge, and these in turn can be compared with the parallel profile of any specific anonymous decision.  (The logic and procedures of the methodology are described at length in my article in the Dalhousie Law Journal.[1])  The point is to calculate a “Similarity Index”, summing for the 44 words the absolute value of the differences between that judge’s word-use frequencies and those that appeared in Comeau.  The lower the score, the more likely it is that the particular judge was the lead writer.

Language is a possible problem – because counting words within even a superbly translated version will tell us as much or more about the translator than about the original writer – but the Supreme Court Reports assures us (by describing the English reasons as “the judgment” and the French reasons as the “version francaise”) that the original language of the Comeau decision was English.  This also limits the number of “suspects” for the lead writer; I am assuming that Gascon and Cote would have written in French, such that the French language text would have been “le jugement,” and the English language text the “English version”.

Quotations are also a problem – extensive direct quotations distort the word counts by reflecting the usage patterns of the quoted writer, rather than those of the immediate writer.  My solution is to delete all direct quotations from the examined text.  Some Supreme Court justices quote very extensively, to such an extent that quotations can make up a quarter or more of the total word count.  For the Comeau decision this proved to be a negligible factor, reducing the word count by less than 4%.  As I will indicate below, this unusually low quotation count is itself a pointer to the identity of the lead writer.

Law clerks can be a problem, because they may have contributed early drafts for at least the more routine parts of the judgment.  My solution was to eliminate these more routine parts (the introduction, the background, the decisions of the lower courts) and focus only on the much longer analysis section.  This further reduced the word-count by about 20%, but it left 11,000 words and this is easily enough for the function word analysis to operate with credibility.

An adequate comparison basis is a problem; both Brown and Rowe have been appointed recently enough, and have had such a limited opportunity to write judgments or minority reasons, that there is not a large enough body of words to provide a reliable basis for comparison.  Seniority is a large enough factor in decision assignment generally, especially for major cases and especially for constitutional cases, that it would in any event have been unlikely that either of these more junior members of the Court would have been doing the lead writing.

Finally, the “circulate and revise” process pursued by the Supreme Court can be a problem.  All indications are that the other members of the panel take this very seriously, such that the lead writer’s initial draft can undergo significant revision as a result.   My “fingerprint” metaphor above should be qualified to recognize that what is available for analysis may be a smudged rather than a perfect fingerprint.  However, checking results back against the handful of By the Court decisions whose authors have actually been identified in judicial biographies has validated the methodology even for reasons that are described as having undergone major revisions. (Most dramatically, it revealed the “did not participate” Le Dain as having been the initial lead author of Ford and Devine, a finding that has been confirmed by both the Dickson biography and a recent CBC radio documentary).

Running this process for the Comeau decision, restricting the enquiry to the five senior judges who normally write in English, yields the following results:

Judge Similarity Score
McLachlin CJ 8.03
Abella 8.94
ALL JUDGES 8.95
Karakatsanis 9.64
Moldaver 10.17
Wagner 11.76

Lower scores pointing to a more likely author, function word analysis points to McLachlin.  Readers may initially be disappointed because the spread between individual judge’s scores are modest, but the tug of ingrained writing habits makes this meaningful.  A smoking gun this may not be, it provides a rank ordering for the likelihood of lead authorship, and McLachlin is clearly indicated.

Moreover: the middle row in the table is significant in way that allows us to ratchet up the language with which to describe the findings.  This provides the similarity score the word by comparison with an all-judge figure based on a combined total of four million words over a twenty-year period.  Karakatsanis, Moldaver and Wagner are less like Comeau than is that all-judge figure; McLachlin – and only McLachlin – is significantly closer to Comeau than is the all judge figure.  This makes the findings more decisisve than might have appeared at first glance.

Further: I mentioned earlier that eliminating direct quotations from Comeau reduced the total word count by only about 4%.  For the McLachlin Court’s constitutional cases more generally, the average figure for such quotations was 13.5%.  But this, too, is a distinctive and persisting characteristic of individual judges:  some quote extensively and some do not.  Abella, for example, frequently uses direct quotations, accounting for fully one-quarter of the words in her constitutional decisions, almost double the average.  McLachlin, however, does not; direct quotations account for only 6.5% of the total words in her numerous constitutional decisions, less than half the all-Court average.  This reinforces the suggestion of the similarity scores that McLachlin is the most likely lead writer of the Comeau judgment.

It is somewhat frustrating that one can create a large data-base, run detailed calculations, generate complex indices – and then wind up with a conclusion that simply confirms what was the most obvious guess from the beginning.  (Who needs science when hunches work so well?) Beverley McLachlin has led the Court for almost 20 years, longer than any other Chief Justice in the Court’s history.  During that time, she has delivered a disproportionate share of the Court’s constitutional decisions, and this statement remains true even if one pro-rates the counts to accommodate the fact that no other member of her Court has served the full eighteen years.   Comeau is one of the last major constitutional decisions with which she will have been involved, and arguably the most significant federalism case of her Chief Justiceship; if there is any surprise, it is that she chose to write behind the veil of “By the Court” rather than over her own name.

[1] Peter McCormick, “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?” Dalhousie Law Journal, Vol. 39 (2016) 77