Happy Constitution Day!

A love note to a document and a tradition

Today is Constitution Day in the United States. The reverence for and celebration of the Constitution ― not just on the anniversary of its signing at the conclusion of the Philadelphia Convention in 1787, but throughout the year ― might seem as quaint to outsiders ― and indeed as irritating to a certain type of insider ― as The Queue to the Queen’s lying in state is in the United Kingdom. Indeed, the British and Commonwealth monarchy and the US Constitution have something important in common, despite the latter being the result of a rebellion, ostensibly against the former.

Despite their less-than-angelic origins ― despite the connection of both with conquest and oppression ― what they mean to their respective supporters is, on the one hand, stability and tradition, and on the other freedom and, perhaps paradoxically but still importantly in the case of the monarchy, a check on the ambition of passing office-holders. To embody these two clusters of values, which in human history have more often than not been at odds with each other, is a remarkable success, and well worthy of admiration.

The Constitution makes these commitments more explicitly, of course, and in a way that is more teachable. It has been on my mind of late because I have been preparing some introductory lectures on the UK constitution, and the American one is an excellent example at the same time as it is an excellent foil. For anyone interested in constitutionalism and in government more generally, not only in the United States but far abroad too, the Constitution and the intellectual tradition to which it gave rise ought to remain of the greatest interest.

Yet my impression is that, among those interested in comparative constitutional law, the US Constitution has become unfashionable. It is said to be too old or too odd; too absolutist in its approach to any number of problems, from the freedom of speech to judicial review of legislation; too bound up with itself and its own history. I think this view is a mistake. We need not emulate the United States, but treating the US Constitution as if it now has nothing to teach us deprives us of an example far more successful than many people either realize or care to admit.

And as for American absolutism, it is a view that we ignore at our peril. In The Federalist No. 48, James Madison wrote “that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it”. He thought that this proposition would “not be denied”. Yet there are dangerous fools who do in fact deny it. And many more, alas, simply forget it. The American constitutional tradition is the best remedy we have against such forgetfulness.

Shapes and Sizes

Public lawyers (and public law students) should think about government size―and shape

I am currently in the process of making slides for the early lectures in the constitutional law course I am due to deliver in the next month or so. One of them, for a lecture on the basic concepts of the UK constitution, looks like this:

Slide explaining government size in the United Kingdom

With this slide, I want to make three points that I thought are worth sharing here too. One is obvious, but not sufficiently thought of in public law. One was actually something of a revelation to me. And one is connected to my recent post on the “good government trilemma” ― the unpleasant trade-offs between democracy, government size, and accountability.

The obvious point is that government is very, very big. In the UK, it spent just over 40% of GDP in pre-pandemic years. The figure is substantially higher now. Another way to understand its size and complexity is the number of ministers, though in fairness the UK is something of an outlier here: it has as many ministers as New Zealand has MPs, opposition ones included. But the Canadian cabinet has almost 40 members nowadays ― and of course it does not need people to deal with provincial issues.

Although well-known (though perhaps not to first-year law students), I think this reality is worth highlighting in the context of a public law course. For one thing, it shows just how important public law is ― it would matter less in a nightwatchman state. As I hinted at in the “trilemma” post, if you think public lawyers are taking up too much space, one solution is to shrink government. But most people who want to ― metaphorically ― fist kill all the lawyers are not itching to ― metaphorically ― kill all the ministers and civil servants.

It is well known, too, that government is much bigger now than it used to be 100, let alone 150 years ago. Taxation and government spending as percentage of GDP is one convenient way of measuring this. Before the Great War, the UK government was spending 8-10% of GDP (except during the Boer War, when it was somewhat more than that) ― and that was a time when the Royal Navy was as big as its two nearest competitors combined. One could also describe the various areas of human activity that government regulates, as illustrated by the gaggles and flocks of ministers (though perhaps the better collective noun would be a meddling). This expansion, as opposed to the sheer magnitude of the end product, is often mentioned in administrative law, because writers on the subject, at least in North America, tend to think that it justifies the existence of a more-or-less unsupervised administrative state. It could, of course, just as well be taken as evidence of the administrative state’s malignancy. My point in the lecture will not be to take sides ― that’s not a lecturer’s role ― but this blog’s readers will know which way my sympathies lie.

Less well known ― indeed, something of a surprise to, though perhaps I am simply an ignoramus ― is that fact that by some measures government is now much less active than it used to be. Specifically, I mean the much-reduced number of statutes being enacted annually. My numbers, for the UK, come from a study by Chris Watson for the UK’s House of Commons Library, and those on the slide may be understating matters: in the last few years, the number of statutes enacted each year has fallen further, from the low 30s to the low 20s. (I’ve not put this on the slide because it might still be a temporary blip; but how long can something temporary last before it isn’t temporary)? It averaged about 100 if not more before WWII. Granted, these numbers don’t tell us everything; it may be that the complexity and/or length of statutes being enacted has increased, compensating for the lower numbers. But they are nonetheless suggestive. The volume of delegated legislation, by contrast, grew enormously from 1950, and indeed 1980, to the mid-1990s and stayed at that level until, it would seem, Brexit. It then fell off a cliff, relatively speaking, though there are no data for the period before 1950 ― I suspect it would have been substantially less at least until the Great War, and perhaps later.

This means that not only the size, but also the shape, if you will, of government has changed a lot over the last century. It is a great deal more executive-dominated than before. Parliament grants the executive enormous resources and vast delegated legislative powers, but it does not act as much as before for itself ― or rather, given the executive’s control of Parliamentary agenda, isn’t allowed to act. This too isn’t exactly a shocking discovery ― it is not really a discovery of any kind ―, but I think it needs to be kept mind when we assess claims about, for example, the judiciary’s real or alleged interference with Parliament, the important of the political constitution, and so on.

And this brings me to my third point, which follows from the trilemma I have previously discussed. It is that when we discuss public law, and especially when we discuss the changes that public law has undergone since, roughly, the 1960s ― both in the UK and in Canada (and New Zealand too). The judicial role has expanded a great deal in these jurisdictions, albeit in somewhat different ways. UK courts might be more intrusive vis-à-vis the executive; Canadian courts have been granted greater powers vis-à-vis Parliament. There is no question that, by the standards of 1950, let alone 1900, courts are more influential. But this development did not take place in a vacuum. It occurs, not coincidentally I would argue, in parallel with a vast expansion of government, and therefore of the government’s capacity for messing with people’s lives. To insist that the law used to control a government of the size and shape it has in 2022 should be as minimalistic as it was in 1872 or even 1922, or that Parliament can remain the primary if not the sole forum in which government is kept accountable as the government looked as it did in Dicey’s time is either mad or disingenuous.

This argument, by the way, does not in any way depend on thinking that government expansion, without more, is bad. Admittedly, I think it is ― I can say so here, though that will be beside the point in my lecture. But you can very well disagree with that, but still believe that an appropriately expanded government requires the kind of accountability and supervision that the courts have increasingly come to provide (in part thanks to their own efforts and in part because they were asked to do so). That said, I do wonder whether colleagues for whom the expansion of government over the last century is a welcome phenomenon might be less inclined to reflect on its implications, simply because they see it as natural, and it is human nature to think less about what one thinks of in this way. Small-government heretics have their uses in public law academia ― but then, I would say that, wouldn’t I?

The Good Government Trilemma

If you like big government, be prepared to sacrifice democracy or accountability

What is the respective role of democratic and other means of holding a government to account in a well-ordered polity? In one way or another, this question is the subject of live―and lively―debates in many (perhaps all?) democratic societies. In Canada, it manifests itself especially in controversies about the use of the Charter’s “notwithstanding clause”; in the UK, about the role of judicial review (especially of ministerial decision-making) and the Human Rights Act 1998.

At the risk of generalizing, my impression is that these debates tend to present themselves as clashes between the values of, for lack of better terms, democratic government and accountable government. One side thinks that the important thing is that elected officials get to run the show as they think best, subject to eventually being booted out by the voters. The other thinks that what matters is that the government be kept in check and made to answer for its actions on an ongoing basis, through some mix of elections, judicial supervision, and other accountability mechanisms, either internal to the government (such as ombudsmen and auditors) or external (NGOs and media).

To be clear, the democracy camp does care about accountability ― especially, that provided, or at least thought to be provided, by regular elections. For its part, the accountability side doesn’t deny the value of democracy, though it might argue that it’s a mistake to think of democracy in purely electoral terms. But there is, or so people think, a tradeoff between a focus on democracy, which calls for limiting the ability of non-electoral accountability mechanisms, especially the courts, to interfere with the work of government, and that on accountability, which requires these mechanisms to get in the government’s way with some regularity.

However, I think that the debate framed in this way is incomplete. It ignores a third factor that needs to be taken into account: the size of the government in question. This tends to go unnoticed because, whatever relative values they attach to democracy and accountability, virtually all participants in the debate are committed to keeping government big, by which I mean (substantially) bigger than a classical liberal nightwatchman state, let alone a Nozickian minimal state. I’m not sure quite where the boundary of big government lies, but I am sure that all governments in democratic states in 2022 (and for all I know the non-democratic ones as well) are on the big government side of it.

I would suggest that the apparent need to trade off between democracy and accountability is in fact only special case of what I will, again for lack of a better term, call the good governance trilemma. Of democracy, accountability, and big government, you can have two ― if you do things well; many polities won’t get two, or indeed even one ― but you cannot have all three. It is possible to satisfy the trilemma by choosing fractions ― a dose of democracy, a measure of accountability, a government not quite as big as one might dream of ― but the total cannot go above two, and it will certainly never go anywhere near three. You can’t have it all.

How does the trilemma work? Let’s start, as most people do, with big government a given. A government so big it takes scores of ― or, in the UK’s case, close to a hundred ― ministers of various sorts (or, in the US, agency heads) to run itself, to say nothing of the tens or hundreds of thousands of civil servants. This, of course, is not a Kornbluthian dystopia, but our present reality. A citizen who wanted to keep track of what the government is getting up to at a rate of, say, half an hour per minister per week would have a full-time job on his or her hands. And for at least some departments (think treasury or foreign affairs, for example, but there almost certainly many many others), half an hour per week hardly seems like it would be anywhere near enough to know what’s going on. Never mind ordinary citizens: even members of Parliament would struggle mightily to keep the tabs on the administration by virtue of its sheer size, to say nothing of the partisan and career incentives weighing on backbenchers, and of government obstructionism vis-à-vis the opposition.

Realistically, voters are in no position to keep such a government accountable (a point that Ilya Somin makes in Democracy and Political Ignorance: Why Smaller Government Is Smarter). This is why taking big government as a given, as most people today do, leaves you with a necessary trade-off between democracy and accountability. If such a government it is going to be accountable for more than an infinitesimal fraction of its innumerable decisions and actions, it will have to be made accountable to, or at least through, non-democratic or indeed counter-majoritarian institutions: courts, tribunals, ombudsmen, NGOs, and journalists. Alternatively, a big government can be made answerable to voters alone, with no judicial and other interference. But then it would be foolish to expect it to answer for even fairly major screw-ups, let alone the small-scale indignities a large administration visits on those subject to it every day that ends in-y ― not because it’s necessarily evil or even especially incompetent, let alone corrupt; but because it is run by fallible human beings. And these human beings, too, are the more likely to be pressed for time or out of their depth the more tasks the administration has been given.

If, however, one were willing to sacrifice government size, one could at least hope for a government held accountable primarily through electoral means. For one thing, as the government does less, there is simply less for courts and other non-democratic accountability mechanisms to sink their teeth into. (I have written about this here: if, for instance, government didn’t take it upon itself to regulate who can enter the country, we wouldn’t be debating the merits of judicial review of immigration decisions, which are a big annoyance to the UK government in particular.) But, less cynically, if government only does a few things, it is easier for citizens to keep track of those few things, and the odds of their using their vote to reward things done well and punish things done badly improve. Admittedly, I personally would not be all that optimistic about the degree of the improvement; but there ought to be some. By trading away government size, one could get more accountability and democracy, because democracy would be (more) sufficient to ensure accountability.

At the risk of making this post even more off-the-wall, I will add that a (very) small government system would make it possible to improve the quality of democracy and accountability further in another way. As Bastiat points out in The Law, so long as the government sticks to protecting people’s natural rights instead of being an expedient through which everyone hopes to live at the expense of everyone else, it doesn’t matter all that much whether suffrage is universal or equal: “If the law were confined to its proper functions, everyone’s interest in the law would be the same. Is it not clear that, under these circumstances, those who voted could not inconvenience those who did not vote?” Some form of epistocracy, or at least a minimal test of political knowledge, could be applied without causing the same problems it must under a big government. And a more knowledgeable electorate would likely be better at holding the government to account.

Of course, I don’t expect many people to share my interest in radically smaller government. Fair enough. But I think that it would be good if they recognized the reality of the trilemma I’ve outlined in this post. Its cause ― the difficulty for voters and even their representatives to keep track of a large administration ― should not be a matter of partisan controversy. It’s a reality that needs to be acknoweldged and responded to, whatever values will inform each person’s response.

And, as I said above, the possible solutions to the trilemma are not all-or-nothing matters. Government size, obviously, is not a binary choice. A government that withdraws from some areas of activity, or abjures some forms of regulation, could be more amenable to political accountability and less in need of non-democratic accountability at least to that extent. Conversely, a government that expands in some new direction may require the creation of entirely new accountability mechanisms to address this specific development. All this should be borne in mind even if the boot of big government as I have (sort of) defined it here remains firmly planted on our faces, and other body parts, forever.

Who’s Afraid of the Rule of Law?

Many critics of the US Supreme Court’s decision on abortion rights themselves embrace a purely political view of adjudication

Since the US Supreme Court released its decision in Dobbs v Jackson Women’s Health Organization, which overruled precedents finding a right to abortion in the US Constitution, there has been a great deal of public anguish and anger, not only in the United States but elsewhere too. In this post, I want to say something about non-American, and especially Canadian, responses. I won’t “bring receipts” ― that is, I won’t be linking to tweets, articles, etc. Partly, that’s because there are too many for any sort of representative survey. But mostly, because I will be very critical and don’t mean to target anyone in particular. The reason for writing this post is that I think I’m seeing broad and disturbing trends, not to dunk on individuals. If you think I’m describing things that aren’t there, well, I hope you’re right. But I doubt you are.

Let me note that this criticism does not mean that I am convinced Dobbs was correctly decided. I do not know enough about the original meaning of the 14th Amendment to the US Constitution to say whether it was. And to a large extent, this will be my point: one has to know the law before saying that judicial decision was wrong, let alone implying that it was political or indeed corrupt, as many have done. And the non-American critics of Dobbs (many American ones too, to be sure) don’t know enough and seemingly don’t care. I can understand ― though by no means approve of ― this when the people involved are politicians or other non-lawyers. But it distresses me when the same comments are made or shared by lawyers, professors, and bar associations.

Before I get to why that matters, a quick word on a genre of reaction to Dobbs that has, I think, been especially common in the UK. The decision, we are told, shows how bad it is to have the courts deciding matters of great social concern; or indeed it proves that judicial review of legislation is a misbegotten arrangement. Respectfully, this makes no sense. Dobbs holds that there is no constitutional right to an abortion. This means that the legality of abortion will, for the foreseeable future, be decided by democratically elected legislatures, probably at the State level, though I take it that there have been noises about Congress intervening on one or the other side of the issue. (I don’t know enough to say whether that would be constitutional, but I have my doubts). And that’s exactly what the critics of judicial review and judicial power want ― legislators rather than courts settling rights issues. Dobbs gives them, on this issue, what they say they are after. It cannot logically prove that judicial review is bad ― if anything, it shows that judicial review can be sensitive to their concerns. (This blog’s readers will know, of course, these are concerns I mostly do not share.)

But the most common type of reaction to Dobbs holds that it is a manifestly wrong decision made by partisan hacks and/or (more likely “and”) misogynists, and one that shows that the US Supreme Court isn’t a real court and that it will, wittingly or not, destroy the rule of law. I think that, putting these claims in the best possible light, to the critics it is simply inconceivable that in this day and age the constitution of an enlightened state committed to the Rule of Law would not protect a woman’s right to choose an abortion. Hence, a judicial decision holding that the US Constitution does not protect this right is egregiously wrong and either bigoted or partisan or both.

But the premise is quite obviously misguided. Take Australia, which, like Canada before 1982, has (virtually) no national protections for individual rights. If somehow a case arguing that there is an implied right to an abortion similar to the implied freedom of political communication that Australian courts have in fact inferred from the Commonwealth Constitution made its way to the High Court, and the High Court rejected the claim, would the critics of Dobbs be saying that its judges are bigots and hacks? Perhaps they would, and this is a rather scary thought ― it would mean that to avoid being tarred as a bigot and hack a judge would need to be willing to quite clearly make things up. More likely, though, they would not. The idea that an existing constitution “in a free and democratic society”, to borrow the Canadian Charter‘s language, does not protect abortion rights is not unintelligible.

Ah, but Australia is different, they might say. It actually lacks a national bill of rights, and the United States obviously don’t. That’s true so far as it goes, but you might think that the response to that is a given bill of rights may or may not protect a given right, even an important and widely recognized one. The Charter, for instance, doesn’t protect property rights. Whether a given bill of rights protects a given right is a question of law, to be authoritatively answered by the courts responsible for applying that bill of rights and, not authoritatively but importantly, by anyone with a sufficient knowledge and understanding of the constitution in question.

A judicial decision holding that a given constitution doesn’t protect a given right, such as Dobbs, can result from two causes. (1) The court may be wrong. It may be just wrong in the way that courts staffed by human beings are sometimes wrong, or it may even be captured by hacks or bigots. Or (2), it may be the case that the constitution actually fails to protect the right in question. Then the constitution may then be defective; it may stand in urgent need of amendment, and be subject to criticism until that takes place. But, for its part, the court faithfully applying this constitution would be blameless.

The critics of Dobbs are convinced that it falls into category (1). But they make no argument to exclude the alternative (2). Such an argument would need to parse the relevant provisions of the US Constitution in accordance with some plausible interpretive methodology. And not only do the Canadian and other non-American critics of Dobbs not articulate such an argument; they are ― and I say this with respect, if only because I am in the same position as they ― not qualified to do it. (That’s obviously not because you have to be American to be so qualified, but because you do need to study the relevant materials.) Without an argument for why Dobbs is wrong as a matter of US constitutional law, criticism of the US Supreme Court’s majority is at least as unfair and unjustified as any of, say, Stephen Harper’s attacks on the Supreme Court of Canada or the British government’s on the Supreme Court of the United Kingdom.

Why are we seeing such criticism? And why do I care, anyway? The answer to both question is the same: I strongly suspect that a great many people, including, most regrettably, lawyers (including those of the academic and journalistic varieties) are themselves taking an entirely political approach to law. It does not matter to them that they do not know enough US constitutional doctrine and history to articulate a plausible interpretation of the relevant provisions, or that many of them might not even know what these provisions are. At best, they think that a constitution is sufficiently interpreted by reference to purely moral considerations. At worst, that one need not bother with anything resembling interpretation and that only the rightness of the outcome matters to how we think about judicial decisions. But there is little daylight between these two views.

And this bothers me to no end, because I doubt that the people ― the lawyers ― who take such an approach to opining on the US constitution would take a different one to the constitutions of Canada or of the UK. If you think that the US Constitution is all about morality or the vibe of the thing, there is no reason why you wouldn’t think that about any other. To my mind, this, rather than the decision in Dobbs ― which may, for all I know, be quite wrong ― is tantamount to a rejection of the Rule of Law. I understand that people are upset about Dobbs. If some country commissioned me to write a constitution and to just do what I thought was right, I would include abortion rights, and property rights, and many other rights besides. But that doesn’t mean that any existing constitution protects my pet list of rights and liberties. If you cannot accept that any existing constitution might also not protect yours, you don’t believe in law. Sorry.

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.

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.

Citizens and Judicial Independence

A lawyer’s attempt to spy on a judge is a threat to judicial independence

This is a joint post with Mark Mancini

The goings-on in the Manitoba Court of Queen’s Bench seldom make for front-page news. This time is different though, as that Court’s Chief Justice, Glenn Joyal, has revealed that he has been followed and his house visited by a private investigator, and lawyers for the Justice Centre for Constitutional Freedoms (JCCF) have admitted that they are the ones who hired the investigator (though the Board of the JCCF has disclaimed any knowledge or responsibility for the incident). The JCCF is representing people challenging pandemic-related restrictions on religious worship and apparently thought that it would be a brilliant idea to find out whether Chief Justice Joyal, and seemingly other public figures too, complied with these orders.

This has elicited prompt and entirely proper condemnation. It is, of course, “astonishingly inappropriate” for lawyers to be gathering dirt on judges in their cases, with―presumably―the intent to embarrass them at the “right” moment, should the opportunity arise. If a lawyer is concerned about a judge’s impartiality, he or she needs to raise this with the judge, instead of proceeding in this underhanded fashion. But we want to make a further point here. This situation reminds us of the limited but still meaningful ways in which judicial independence imposes obligations on citizens, as well as on government officials—apart from and in addition to any obligations imposed on lawyers as officers of the court.

Generally speaking, we think of judicial independence as a constraint on what are (especially in the United States) sometimes called the “political branches” of government, i.e. the legislature and the executive. They are required by explicit constitutional provisions or implicit but enforceable constitutional principles to respect the judges’ security of tenure, financial security, and administrative independence. Private citizens cannot meaningfully threaten these incidents of judicial office, which makes it easy to think that judicial independence does not concern them.

Parliamentary rules and constitutional convention also strictly limit the ability of Members of Parliament and Ministers to criticize judges. This serves to avoid creating unconstitutional pressure or, perhaps more likely, the appearance of such pressure on the courts. Here, the position of ordinary citizens is radically different. They must be free to criticize individual judges and the courts as a whole. Judges and courts exercise the public power over citizens; the state’s armed force is wielded at their behest; the power of legislatures and thus the citizens is limited by their pronouncements. Their decisions, no less than the decisions of those who write the laws they apply, must be subject to public scrutiny. For this reason, arguments to the effect that citizens (or specifically the media) must respect judicial independence are sometimes little more than cover for disturbing attempts to silence legitimate criticism of the judiciary.

That said, there is indeed a way in which even private citizens ought to respect judicial independence. This obligation is so narrow that it is seldom worth discussing, but the JCCF’s shenanigans bring it to the fore. As with other fundamental constitutional principles, although the main responsibility for upholding and fostering them rests with officials, citizens should avoid undermining judicial independence, just as they should avoid undermining democracy (say, by making false allegations of electoral fraud) or the Rule of Law (say, by condoning private violence).

The most obvious way in which citizens can undermine judicial independence is by engaging in intimidation intended to make judges decide cases otherwise than in accordance with the judges’ honest understanding of the facts and the law. Indeed, the reason why political actors are so constrained in their ability to criticize the judiciary is precisely that their doing so risks being perceived as intimidatory even if it is meant as respectful disagreement. This is not normally true of private citizens or even the media. But there are exceptions. One of us (Sirota) has written here about some instances of extreme criticism of judges by UK media in the wake of Brexit. As that post suggested, that looked like an attempt to intimidate the courts into ruling in accordance with perceived popular will rather than the law.

The JCCF’s “investigation” of Chief Justice Joyal appears to have been a similar attempt at intimidation, intended to influence a judge’s decision (or at least his decision as to whether or not to recuse himself from a case). It may be worth noting that if, say, the media learn that a judge has been breaking the law―especially if this happens to be a law that the judge in question found to serve some important public purpose―they would surely be justified in reporting on it. But this would be very different matter from what the JCCF seems to have attempted. It is one thing to say that public power has been exercised hypocritically; it is quite another to attempt to direct the exercise of public power toward irrelevant considerations, such as potential embarrassment.

In short, the JCCF broke even the narrow obligations that ordinary citizens owe to the independence of the judiciary. This is apart from and in addition to a possible breach of the distinct, and more onerous, obligations that lawyers to the courts before which they practise. (We express no view on the JCCF lawyers’ actions from that perspective.) The JCCF’s conduct is reprehensible. While it may be tempting to write the situation off as the initiative of one person, it illustrates a deeper willingness of some—even legal professionals—to run roughshod over constitutional principles in service of their own legal or partisan goals. Whatever “advantage” the JCCF thinks it may have attained from its inappropriate investigation is clearly outweighed by the pound of flesh taken from the integrity of the legal system. Over time, these situations open the door to more enterprising litigants and private citizens who seek to maximize their chances of “winning,” however they describe it. The result is the continual erosion of cherished constitutional principles like judicial independence.

The widespread condemnation that has followed was thus reassuring―and we hope that it was the result of a widespread commitment to the principles at stake, and not only of the fact that the JCCF is known for defending views at odds with those of much of the legal profession. Some principles are so fundamental that they must be defended from ideological friend and foe alike.

Bill C-10 and the CRTC Debacle

Does it get much worse?

Bill C-10 has passed the House of Commons. For those unaware, the bill nominally involves “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.”  Experts, like the University of Ottawa’s Michael Geist, are concerned about the far-reaching impacts of this law. The concerns mostly revolve around the idea that the government’s law may reach content produced on user-driven sites, targeting individual content creators rather than the “tech giants” that are the nominal targets of the law.

I agree with Professor Geist. I share deep worries about the chilling effect this, and other measures the government is introducing, will have on free expression. But that isn’t my area of interest or expertise, for the purposes of today. Instead, whatever the content of the law, no one can gainsay Professor Geist’s conclusion, upon the tabling of the bill, that it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.” The wide-reaching delegation of power will, as is common in administrative settings, be used by the CRTC to the hilt. We should expect nothing different, and we should therefore be disappointed that Canada’s government did all it can to prevent the legislature from taking a hard look at this bill.

In Canada, most of our discussions of administrative law are synonymous with discussions of judicial review. That is, we tend to view the law of judicial review as the same as administrative law. The focus of most Canadian administrative law academics (myself included) is on the stuff of judicial doctrine; standards of review, procedural fairness, etc etc. But, in other jurisdictions, like the United States, legislatures and courts have indicated an interest in controlling administrative power themselves. The United States’ Administrative Procedure Act, despite its flaws, is at least a legislative indication that the administrative state can and should be controlled by the legislative standards regarding adjudication and rule-making.

No such interest evidently exists in Canada, as the Bill C-10 debacle shows.  Put aside, for the moment, the rather emaciated Statutory Instruments Act (see Neudorf, here for problems with this statute at 562 et seq, and my paper, here, for more). The efforts by the government (and other abettors) to do anything—whatever the optics—to limit debate and amendment of the bill are unfortunate:

All bills, no matter their consequences, should be subject to robust debate, in both Parliament and the public forum more generally. But this law, in particular, is troubling from an administrative law perspective. Parliament’s inability to even fully debate—let alone control—the mass discretion passed to the CRTC should worry all Canadians.

I accept the legitimacy of the administrative state, parasitic as it is on delegated power. But that’s the rub—the power is delegated, and amenable to control by the delegator. The legitimacy question is quite aside from the need for the formal, constitutional actors in our system (the legislatures, specifically) to fully and frankly debate the policy and legal implications of broad delegated power. In fact, legislatures may be the only ones with the power to do this in our constitutional order. Despite strong arguments to the contrary (see Justice Côté’s opinion in the GHG Reference and Alyn Johnson’s excellent paper here), I am not convinced that courts can pass on the constitutionality (let alone the policy implications) of the scope of broad delegated power. While courts are the only “independent” guardians of the Constitution (see Ell, at paras 3, 23), that does not mean that legislatures should bar themselves from considering the legalities and policy implications of their delegations.

It gives me no comfort that judges of the Supreme Court and commentators has referred to the CRTC as the “archetype” of an expert tribunal (see the opinion of Abella and Karakatsanis JJ in Bell Canada, at para 64; see also B. Kain, “Developments in Communications Law: The 2012-2013 Term—The Broadcasting Reference, the Supreme Court and the Limits of the CRTC” (2014) 64 SCLR (2d) 63). While it is certainly true that “we simply do not know what the typical bureaucratic objective function looks like” (see Gersen, here, at 335), there is clearly a risk that “[d]elegation can create iron triangles of policymakers insulated from public control…” (Gersen, at 345). This is even more apposite where the mandates that are implemented by administrative actors are vague and general, as they often are. While expertise may be a valid reason for delegation, there is an inevitable trade-off involved in delegating power to experts—there is always a risk of bureaucratic drift, or expansion of delegated mandates. The worry is multiplied when the legislature indicates little interest in debating the merits of delegated power. Indeed, perhaps the legislature has no incentive to control delegated power, except for the incentives provided by constitutional principles.

 And here, the CRTC has been given delegated power a country mile wide. As Geist noted on the tabling of the bill, many of the specifics of the bill’s new concept of “online undertakings” will be left to the regulator. For example, the third reading of the bill does not unambiguously say that it does not apply to users.  Much will be left in the hands of the CRTC through its regulation-making powers. We will not know the extent to which the market and users will be affected until the CRTC begins using its new-found powers.

Now, because of the parliamentary calendar, it does not appear  that the Senate will be able to pass the bill in time. This is good news, but it seems more fortuitous than anything. More of this vast delegated power appears on the horizon for other agencies, like the Canadian Human Rights Commission. A rigorous public will need to step in where the government has made it impossible for the legislature to fully examine the proposed law.

Ontario’s COVID-19 Discretion Tragedy

Ontarians watched with a mix of horror and confusion on Friday as Premier Ford and medical officials announced what could only be described as drastic measures to, apparently, curb the spread of COVID-19 and its related variants. While the government has flip flopped on these measures since, and it is unclear if further changes are coming, these measures would have (and as I will point out, probably still do) significantly empower the police to enforce Ontario’s stay-at-home (SAH). These measures raise a whole host of enforcement concerns, ones that should worry all Ontarians.

In this post, I briefly review the state of affairs as they stand. I then make two general comments about the recent measures. First, the measures demonstrate why discretion is presumptively risky, even if a modern system of government requires it to function. Second, the measures demonstrate why a relatively thin version of the Rule of Law is a necessary but insufficient condition for a society that respects civil liberties. Instead, the Ontario example shows that a populace concerned with legality will sometimes act as a better check on discretionary power than the courts. This is a highly desirable feature of a society built around the Rule of Law.

***

On April 7, the Ontario government announced enhanced measures “in response to the rapid increase in COVID-19 transmission, the threat on the province’s hospital system capacity, and the increasing risks posed to the public by the COVID-19 variants.” The so-called SAH applied province-wide, and required “everyone to remain at home except for essential purposes, such as going to the grocery store or pharmacy, accessing health care services (including getting vaccinated), for outdoor exercise, or for work that cannot be done remotely.” The SAH also had some measures dealing with retail opening and staffing.

The province upped the ante last Friday, when it announced enhanced measures adopted in relation to the SAH to fight COVID. There were a few iterations of these measures, and the timeline is somewhat confusing, but below is my attempt to summarize the happenings (I do not include, here, any information about the interprovincial travel measures or the so-called “playground” measures:

  • On Friday, the provincial government gave police the power to require any individual not at home, on the street or in their cars, to provide the reason that they’re out and provide their home address. Put differently, the police had the power under this order to stop anyone randomly.  This rather surprising delegation of power, when it was announced by the Premier and medical officials, was not cabined by any limiting principle; ie, to many of us on Friday, it did not appear that the police even required “reasonable and probable grounds,” a constitutional standard, to stop anyone.
  • In response to the announcement, various police forces across the province intimated that they would not enforce the new rules, to the extent that they required random vehicle or individual stops (see ex: Waterloo Regional Police). The Ontario Provincial Police, however, seemed to suggest it would enforce the random stops (see here).
  • On Saturday, the relevant text of the regulation was released (as an amendment to O. Reg. 8/21 (ENFORCEMENT OF COVID-19 MEASURES). The amended regulation, at s. 2.1, specifically gave the police the power to require information from an individual “not in a place of residence.” This information included an address, as well as “the purpose for not being at their residence, unless the individual is in an outdoor or common area of their residence.”
  • On Saturday evening, Solicitor General Sylvia Jones announced that officers would no longer be able to stop any pedestrian or driver to ask why they’re out or to request their home address. The new regulation makes two important changes:
    • The range of information the police could collect in a stop in which they have reasonable grounds was seemingly expanded by the regulation (adding date of birth, for example).

As of moment of publication, this is where we stand. I turn now to analyzing this series of events in the two frames I have set out (1) discretion and (2) the Rule of Law.

**

Modern government is built on discretion. The insight here is simple. Legislatures cannot make all the laws they need to make to cover all policy or legal problems that exist in a modern society. As such, legislatures in Canada have chosen to take advantage of the supposed expertise of administrative actors, delegating power to make and enforce laws. They have also, relatedly, delegated power to Cabinet to adopt law quickly through regulation. The finely wrought legislative process will not always be reactive or quick enough to deal with problems, and so delegation is a way to create a more responsive body of law.

This is the positive side of the story.  But as KC Davis famously argued in his text Discretionary Justice: “…every truth extolling discretion may be matched by a truth about its dangers. Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder” (25). While it is important that a modern system of government can individualize justice, as Davis put it, there are costs to doing so.

The costs can be minimized, but often aren’t. Legislatures in Canada often delegate power to various recipients in the broadest fashion possible, and they generally do not fulsomely analyze the content of regulations adopted, after the fact. There are the famous “public interest” delegations that are legion in the statute books, for example. These delegations cannot be broader, in part because they ask the recipient of the delegation to decide themselves whether the public interest is met by a particular exercise of discretion.

Now, there is not a strict dichotomy between “rule” and “discretion,” but rather discretion starts where rules “run out”: “The problem is not merely to choose between rule and discretion, but…to find the optimum point on the rule-to-discretion scale” (15).  Davis’ idea of “structured discretion” is relevant here. To Davis, “[t]he purpose of structuring is to control the manner of the exercise of discretionary power within the boundaries” [97].  While Davis’ discussion is focused on the American rule-making context, the idea is equally relevant to us: legislatures and administrators themselves can choose, in certain circumstances, to confine their discretion through targeted delegations, policies and guidance documents, and precedents. This does happen: one might look at Ontario’s Emergency Management Act, particularly section 7.0.2, to see how a delegation can be cabined, even weakly (delegation to make orders in a declared emergency).

The problem with discretion, however, is that the systemic incentives tend towards permitting wide discretion that can be abused. Legislatures that are delegating because they cannot make laws themselves are probably not inclined to truly structure discretion: the Ontario emergency legislation is an example. Administrators, police officers, and other actors have no real incentive themselves to exercise their discretion within the bounds of law (except a political one, which I will note below). In fact, the institutional pressures of their own administrative settings may encourage ad hoc reasoning and decision-making, relying on broad delegated authority, in order to accomplish what they see as their policy goals. This is all hypothetical, of course, but the point is that when any government official is exercising delegated power, there is no real reason for them to exercise discretion properly (whatever that means in context), and especially so where the possibility of ex post judicial review is unlikely, or the strength of that review will be highly deferential.

In certain administrative contexts, abused discretion (in the notional sense, not the legal sense) carries grave consequences. Expropriation of land is an example. The police are another example. Police carry any number of discretionary powers, and police are constantly up against the rights and dignity of individuals. Recent events illustrate that police discretion—to detain someone, to arrest them, even to shoot them—can be easily abused based on irrelevant characteristics, such as race or class stereotypes. We have seen this story too many times to say that discretion is some inherently benevolent legal concept.

This is what made Ontario’s original order so surprising. A system of random stops is positively unstructured discretion. While, in normal circumstances, the delegation of legislative power cannot be constitutionally impeached, the legislature does not have the power to delegate a power to administrators or police to breach the Constitution: see Vavilov, at para 53. In this case, this unstructured discretion is likely unconstitutional (see here), even if it is validly delegated. This isn’t surprising: the discretion is so broad that the possibility of unconstitutional implementation is too great to bear.

Some might say it is a vindication of the police that many decided not to enforce the order. But this is simply not enough, for two reasons. First, not all police chose this path: as I mentioned above, the OPP had every intention, it seemed, of enforcing the original order as written. Secondly, the point is that there is no legal incentive (except the political one I mention below) that mandated the police to opt out of enforcing these measures. In the strictest positivist perspective, actually, until a court has rendered the delegated power or a government act unconstitutional, the law must be enforced. But as I will note below, there are other controls for potentially unlawful government conduct.

Additionally, one might think that the refined regulation is better. After all, it does seem to incorporate some “structuring” language: it includes the “reasonable and probable ground” language. This may insulate it from constitutional scrutiny, but that does not mean that the discretion is proper from a public governance standpoint (rather than a strictly legal one). This is barely structured discretion (much like the emergencies legislation). As Nader Hasan points out, on close reading of the regulation, it does appear that the police can stop people that they subjectively believe have violated certain rules, and then obtain any information they wish. The regulation compels an answer if the police can clear the “reasonable cause” threshold, which they likely could in most cases, given that if one is outside, they may be about to attend a prohibited public gathering, or about to return home from one. This could then lead to other information gathered about potential criminal activity that otherwise could not be obtained but for the pretense of the “COVID stop.” Because it is up to the police themselves to form the reasonable suspicion, there are many potentially irrelevant factors that could infect the discretion.

This is not to say that all police will always abuse their discretion. Many police officers perform their roles honourably, and I bet many officers did not want or ask for the powers that were granted to them. But, nonetheless, the Ontario example demonstrates the problem with discretion. There is no incentive for legislatures or the Cabinet to heavily structure discretion. In this case, the government obviously decided that an unfettered police power would best accomplish its goals. As citizens, we should be worried that this was the government’s first choice—not only because it is unconstitutional, but because of the potential error rate and abuse.

**

Finally, I want to say a few words about what this saga tells us about the Rule of Law.

There is a vibrant, old debate about what the Rule of Law accomplishes. Historically, some have said the Rule of Law is the rule of courts (Dicey is often said to represent this view: see Justice Abella & Teagan Markin’s recent piece). Others have suggested that the Rule of Law is much broader, encompassing substantive guarantees (see Lord Bingham’s book). Without taking a side in this debate, there is a subsidiary question: whose responsibility is it to preserve the Rule of Law?

Clearly, the courts play a vital role in preserving the Rule of Law. This is a point that requires no citation. We need a system of adversarial courts, and such a system is probably constitutionally prescribed. Moreover, we need a system of courts to police the boundaries of discretionary action. Courts ensure that administrative action falls within the bounds of the law, and in Canada, this is where the bulk of control over the administrative state occurs. Most reasonable people agree that we need this system of courts.

But these courts are only a necessary condition for legality to flourish. More is needed. Most notably, as Dicey notes (and as Mark Walters explores in his work), a Rule of Law society cannot depend on formal legality as the only requirement. What is required is a society of individuals who embody a “spirit of legality.” People need to jealously, but within reason, guard their constitutional rights that are protected in positive law. But they also need to see the Constitution as a floor rather than a ceiling. Troublesome discretionary acts can be perfectly constitutional but be undesirable because they increase the error rate of enforcement or liberate government actors to an unacceptable degree. What is required is a vigilant population, especially in an emergency situation where civil liberties might be the first legal rights to fall by the wayside.

Many people, on this front, acted appropriately in calling out the Ford government for its adoption of the first tranche of measures on Friday. It was this mass outcry, I think, that forced the government into walking back its original measures. This public outcry was essential. There was little chance (apart from an injunction) that any litigant would be able to stop the enforcement of these measures in time. In this case, it was a concerned population that forced the government to change its laws. One should never underestimate the power of political controls in hemming in potentially unconstitutional government conduct. Any society that says it is bound by the Rule of Law will be incomplete if it does not encourage vigilance and skepticism regarding government acts.

This is not to say that the balance has been appropriately struck throughout the pandemic. I’m not sure, from a policy perspective, if the SAH had the desired effect, for example–despite the cost it exacted in civil liberties. But we have to celebrate wins when they happen. Such is life.

Interpretation and the Value of Law

Why the interpretation of law must strive for objectivity, not pre-determined outcomes

This post is co-written with Mark Mancini

We write in defence of a simple proposition: there is a value in ordering relations among individuals in large communities through law, rather than through other modes of exercising authority, and this value is not reducible to the goodness―by whatever metric―of the content of the law. Of course, good law is better than bad law, but law as a form, as the institution that allows individuals, groups, and organizations to interact with one another in predictable ways while constraining what those with power can do to those without, is precious quite apart from its substantive merits.

Law is the only mediator we have in a pluralistic society where there is limited agreement on foundational moral values, and still less on the best ways of giving them effect. Law records such agreement as exists for the time being, while also exposing this record to critique and providing a focus for efforts at reform. It is neither sacred nor permanent, but it is a common point of reference for the time being for people who disagree, sometimes radically, about the ways in which it should be changed. These are valuable functions regardless of whether one agrees with the substance of the law as it stands from time to time. Increasingly, however, certain schools of thought tend to deny that law has any value apart from its utility as a means to some political or another. We regard this as a dangerous development.

Now, to serve as the common point of reference in the face of widespread disagreement about values and policies, law must have some characteristics beyond its substantive political content; it must contain other features, often described in the literature on the Rule of Law. For example, it must be public, sufficiently certain, and stable. Of course, law actually enacted by constitution-makers, legislators, or officials exercising delegated authority, or articulated by common law courts, sometimes falls short of the ideals of clarity or certainty. Sometimes the words of this law will be broad, dynamic, and open-textured. But for law to fulfil its function, indeed to be law at all, it must have a fixed content independent of the views and preferences of those to whom the law applies. To the extent this understanding of law is now considered unorthodox, we hope to correct the record.


When law as enacted or articulated is not self-explanatory, it must be interpreted, ultimately by judges. The orthodox view, which we regard as correct, however old-fashioned it may seem, is that judges must do this by applying legal tools and techniques. Ideally, these must themselves be well-known, certain, and stable, although we acknowledge that the law of interpretation has often failed to live up to this ideal, even if the strongest critiques of legal interpretation as radically indeterminate have always been overstated. Judges will sometimes develop legal doctrine beyond what is apparent on the face of a constitutional or statutory text, engaging in the activity American scholars describe as construction. They may also distinguish or even overrule precedents. In doing so, however, judges must remain faithful to the principles and purposes of the law as they have found it enacted or articulated by the institutions―above all, the democratic institutions―our polities have authorized to resolve, for the time being, disagreements among their members.

Those who have come to reject the value of the law as law often regard legal interpretation as the weakest link which they can break to subvert the law’s function as the common guide and reference for people who disagree with one another. They want, instead, to use interpretation to impose values and policies that are not in the law as enacted or articulated, and which are, instead, those of the parasiti curiarum who seek to give the courts this inflated, and fatally distorted, sense of their role.

These parasiti belong to schools of thought―and political factions―that are, ostensibly, fiercely opposed to one another. On the one hand, there are those who favour “living tree” interpretation in constitutional law and freewheeling pragmatism in statutory interpretation, aiming to keep up with ever-changing notions of social justice by means of “progressive” and “modern” interpretations that update the law from time-to-time. On the other, there are those who demand that constitutions and statutes be read so as to promote a religiously-infused “common good”. The substantive political commitments of these schools are far apart.

Yet the two camps share one key belief: they both see law as merely an instrument with which to achieve their preferred political aims. Both are firmly convinced that it is legitimate to impose their respective hierarchy of values on society through judicial and administrative fiat, and urge judges and administrators to do just that, regardless of whether the constitutional and statutory texts being interpreted in fact embody these values. Indeed, they also share a certain legal and linguistic nihilism that causes them to deny that a legal text can have a meaning independent of its interpreter’s will. As a result, they are quite happy to use interpretation to reverse-engineer the meaning of laws in accordance with their preferences, regardless of these laws’ text or history and of the longstanding interpretive techniques.


For our part, we maintain that the judges’ interpretive role is not to impose some pre-determined set of values onto the law but to seek out the moral and policy choices that are embedded in the law as they find it. Judges do so by—to the extent possible—making the law’s text the object of interpretation. Even in the “construction zone”, where they apply legal texts to new situations or develop doctrine to apply vague textual commands, judges must seek, in good faith, to implement the choices made by those who made the law. At all times, they must strive to put aside their own moral and policy views about what the law should be, because they are not the ones charged with resolving moral and policy disagreements in our constitutional systems.

This is a pragmatic as well as a dogmatic position. Judges lack not only the legitimacy but also the ability to make moral and policy choices. Living constitutionalism, for example, asks judges to interpret the Constitution to take account of the moral views or practical needs of a particular political community at a particular point in time. This is impossible, even putting to one side the difficulties in defining the relevant community (especially in a federation such as Canada!), and even if members of political communities did not, in fact, sharply disagree with one another. Even politicians, with their access to pollsters, constant communication with their constituents, and the incentives provided by regular elections are not especially good at assessing the voters’ values and needs. Judges could not succeed at this, and should not try.

More importantly, though, living constitutionalism asks judges to change or override the meaning of the law as written in the name of extraneous moral principles or policy preferences, which it purports to locate in the political community. Pragmatism in statutory interpretation does much the same thing. This approach is problematic enough when it comes to ordinary legislation, because it arrogates the process of amendment to judges. It is doubly troubling in the constitutional realm: not only does it arrogate the process of amendment to judges, but it undermines the purpose of Constitutions—to place certain structural choices about institutions, as well as certain individual rights and freedoms, beyond the reach of the ebb and flow of divided public opinion, leaving their amendment to more consensual procedures.

Unfortunately, this problem is not confined to one side of the political spectrum. A new illiberal strain of legal thought has risen on the right. Driven by Adrian Vermeule’s theory of “common good constitutionalism”, the idea is that conservatives should adopt a style of constitutional interpretation that would “involve officials reading vague clauses in an openly morally infused way … to reach determinations consistent with the common good.” The moral principles that would guide this endeavour are those drawn, above all, from the Catholic natural law tradition; the definition of the common good to which judges would advert is thus one which is, to put it mildly, not universally shared in pluralistic societies.   

This attempt by those on the right to reverse-engineer such an interpretive theory should be rejected just as firmly as living constitutionalism, which it mimics. For Professor Vermeule, for example, the very fact that progressives have used constitutional law itself to achieve their aims justifies a conservative attempt, not to put an end to such tactics, but to resort to them, albeit in the service of a different set of values. Like the progressives, he and his disciples look to extraneous moral and policy commitments as guides for legal interpretation, disregarding the law’s role as the authoritative record of the settlement of disagreement and point of reference for citizens whose views of what is good and just differ, seeking to impose pre-ordained results regardless of whether they are consistent with what the law actually is. It too regards separation of powers as passé, a relic of the Enlightenment’s mistakes and an obstacle in the path of those who know better than voters, constitutional framers, and legislators.

Indeed, not only the substance but the language and specific proposals of the two anti-liberal camps resemble one another. In a striking parallel with Justice Abella’s embrace of the courts as the “final adjudicator of which contested values in a society should triumph”, the reactionaries want judges to exhibit “a candid willingness to ‘legislate morality’ because one of if its core premises is that ‘promotion of morality is a core and legitimate function of authority’ given its link to securing the common good.” And, just as  Justice Abella  wants to upturn settled jurisprudence (except, of course, when she doesn’t) and “give benediction” to new constitutional doctrines, common good constitutionalism is skeptical about aspects of constitutional law that have been taken as a given for generations, including fundamental freedoms and structural limits on the accumulation of power within a single institution. Perhaps especially salient is the embrace by both the progressives and the reactionaries of the administrative state, and the corresponding rejection of the separation of powers. In other words, for both camps, established limits on actors in the system are of no moment if they stand in the way of certain political goals.

Now, to be charitable, it is possible that the illiberal thinkers are simply seeking to discover whether certain values are embedded in particular texts. Maybe it is true, for example, that the “peace, order, and good government” power reflects certain values that coincide with the political preferences of those on the right, or for that matter on the left. But this cannot be stipulated: those making such claims must demonstrate that general constitutional language―cabined and explained as it is by enumerated and limited grants of power―really carries the meaning they ascribe to it. Such demonstrations tend to be lacking, and the claims are often implausible. The “peace, order, and good government” language, for example, is only relevant when it comes to the federal heads of power; is it possible that the federal, but not the provincial, powers in the Canadian constitution reflect a “common good” view of government? Such questions abound, and in truth we suspect that the project pursued by the majority of those for whom concepts such as the “common good” or the “living tree” must guide legal interpretation has little to do with objective analysis and discovery.


Before concluding, a few words are in order about what we do not argue here. First, we do not claim that law and politics, or law and morality, are entirely separate realms. Obviously, law is shaped by politics: the making of constitutions and of legislation is a political process. It involves heated debate about moral and policy considerations, with which―one hopes―constitutional framers and legislatures wrestle. The outcome of these political processes is then subject to political critique, which again will feature arguments sourced in morality and policy. In a democracy, the legal settlements are only ever provisional, although some require greater degrees of consensus than others to displace.

And even at the stage of interpretation, it would be impossible to say that judges are merely robots mechanically following prescribed algorithms. Judges are influenced by their own experiences, which is perhaps to some extent for the better; they aren’t always able to shed their pre-dispositions, though this is surely generally to the worse. Indeed, it is important to recall that constitution-makers and legislators often invite judges to engage in moral and practical reasoning by appealing to concepts such as reasonableness in the provisions they enact. This is not always an appropriate legislative choice, but it is not the judges who are to blame for it.

That said, when it comes to interpretation, there should be a separation between law and politics. That is, interpretation must be guided by rules and doctrines that help judges to avoid, as much as humanly possible, making decisions on their own say-so, arrogating to themselves the roles of legislators to decide what laws should be under the pretense of declaring what they mean. This is admittedly a matter of degree. No one should insist that judges unduly fetter the natural import of words they are asked to interpret by insisting on so-called “strict constructions,” or read appeals to their own moral and practical reasoning as having been fully determined by the law-maker. Nonetheless, the judicial task should not be unbounded, with no restriction on the sorts of moral considerations judges are equipped to take into account.


In sum, we propose not to purge the law of moral and policy considerations, but to re-commit to the view that considerations embedded in legal texts adopted by democratic institutions after proper debate and subject to revision by the same institutions are the ones that ought to matter in legal interpretation. They, that is, rather than the real or hypothetical values and needs of contemporary society, let alone the conjectures of 16th century scholars from the University of Salamanca.

This upholds the authority of democratic institutions while calling on the courts to do what they ought to be able to do well: apply legal skills to reading and understanding legal texts. No less importantly, this allows the law itself to perform its unique and precious function, that of providing a touchstone for the diverse members of pluralistic communities, who disagree with one another’s moral and political views, yet still need a framework within which disagreements can be managed and, more importantly, they can simply get on with their lives. The illiberal attempts to subvert the law’s ability to do so, in the pursuit of victories which would come at the expense of citizens’ personal and political freedom, are a cause for concern, and for resistance.