The Metastasis of Charter Vibes

The rigamarole around the notwithstanding clause this week has me thinking about the reach of the Charter, and in particular, a case that will be heard by the SCC early next year: A.B. v Northwest Territories. While there are other issues in the case, at its heart is a stark proposition: is it required for a government decision-maker to consider “Charter values” (or what I call “vibes”) even where it is accepted that a right is not engaged on the facts? One might think—as I do—that the answer to this question is “no.”

But others disagree, and with some precedent in support, and so the Supreme Court will soon hear this case. A.B. involves s.23 of the Charter, which provides the following:

               Language of instruction

23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

Continuity of language instruction
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant
(3) The right of citizens of Canada under sections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province;

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

As the NWTCA pointed out in the decision being appealed to the SCC, section 23, unlike some other constitutional rights, is rather precise: it delineates who is eligible to enjoy the constitutional right, and so its text inevitably “draws lines of eligibility” that will mean that there will be some “hard cases” that fall on either side of these lines [9]. This is a consequence of the finely-wrought s.23, which could have been phrased more broadly or generously, but isn’t.

As the NWTCA pointed out, this provision requires governments “to provide minority language education to those who have a right to it” [6] but “the government does have the discretion to allow the non-section 23 children to attend the minority language schools” [9]. In the NWT, at the time of the impugned decisions, this process was governed by a Ministerial Directive (and, of course, supplemented by ministerial residual discretion) , which provided that a “limited number” of non-section 23 children could be admitted [10].

Under this process, it was accepted that the A.B. family did not qualify under s.23 [10, 24]. And yet they argued that the Minister, in exercising her discretion and implementing the Directive, were required to consider the values underlying s.23 [28]. The chambers judge named some of the interests that would need to be considered by the Minister under the values-analysis:

…the needs of the linguistic minority and the need to foster the preservation and development of this community, in the exercise of her power over the admission of non-rights holders to minority language schools [28].

At the NWTCA, the majority of the Court rejected this contention. It held that this case did not implicate constitutional rights [59]. Rather, the essence of the claim was that the Minister should have considered values underpinning s.23 in considering whether the Minister properly exercised her discretion not to admit the non-rights holders. But as the Court stated, “[t]he obligations of the provinces and territories to observe and respect the Charter are collateral to the issues that were before the chambers judge” [59]. The point of the majority holding is simple: Charter values cannot be used to extend the protections of the Charter to those who otherwise are not eligible for the specific protections at issue. Rowbotham JA concurred, but would have required the Minister to consider s.23 [136].

In my view, the majority judgment cogently outlines a problem with Charter values—because of the lack of guidance on their scope and application, they can easily metastasize to expand the Charter in unexpected ways. This metastasis can occur in three ways. First, because Charter values are necessarily stated at a high level of abstraction, they can distort the interests protected by a purposive and textual interpretation of specific Charter rights (a concern raised by Rowe J in TWU). Second, a court can align a Charter value with a statutory objective, however broadly-stated, and in the face of a protected right, claim that an administrator can promote that Charter-sanctified statutory objective (as the majority pointed out in TWU, and as explained by Edward Cottrill here). This means that a state objective that otherwise may be directly contrary to an actually-protected right is given the imprimatur of constitutional benediction—that old chestnut. Third, Charter values can be used to “supplement” purported “deficiencies” or perceived lacunae in the Charter text. Because each Charter right delineates and narrows the interests that it protects, it is possible for a Charter value to come into play, even where an individual does not hold the benefit of the right.

A.B. presents this third situation. Like the other cases where Charter values are at play, there is arguably a distortion of the actually-existing Constitution. It would seem odd for there to be a duty on a Minister to consider the Charter where there is no one capable of claiming the right. This means that there is a normative constraint on the decision-maker to consider values (perhaps pale imitations of rights) that may not actually at issue in the case. Should this appear odd, it isn’t necessarily so to those who support Charter values. In Loyola, for example, the plurality seemed to draw an equality between rights and values, such that each are protections that can be claimed in any given case (see Loyola, at para 35). And as one author suggests, perhaps this means that even where a claimant does not have an official Charter right to claim “they ought to have had the protection of Charter values” (see here, at 79).

The key word here is “ought.” What s.23 ought to protect, in the view of one person, is evidently different than the value choices embedded in that provision.  I worry, specifically, about the use of Charter values to defeat the choices made in the Charter on this contentious issue. It distorts this Charter—as opposed to some other Charter of values—to ignore the specific choices made in the text, and to judicially-administer an ever-changing constitution of values, which can be raised where the actual Charter does not apply. The creation of two Charters must be avoided, and this should mean putting an end to expansive Charter values arguments that require judicial extension of existing rights.

There are a number of counter-arguments that could be advanced: some relating to administrative law precedent, and some to the specific context of s.23. It is true that the Supreme Court has referred to an administrative duty to consider Charter values. In Baker, the Court noted that “discretion must be exercised in accordance with the boundaries imposed by the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter” (Baker, at para 56). In Doré, the Court noted that administrative decisions are “always required to consider fundamental values” (Doré, at para 35). Even in the NWTCA decision, the Court claims that it is a “truism that public decision makers should always have regard to fundamental societal values, such as liberty, dignity, and equality” [57].

Putting aside that these values may already map onto existing Charter rights, or are otherwise amorphous and contested (they should not lead inexorably to some pre-determined outcome), I do not think these precedents can be marshalled in favour of the expansive proposition that Charter values are independent constraints on administrative discretion. It is obviously true that a decision-maker is required to consider Charter rights when those rights are argued. So, post-Vavilov, courts have found that when claimants do not raise Charter arguments before a decision-maker or only briefly refer to them, there is no concomitant duty on a decision-maker to engage in a Charter analysis (see e.g. Canada (Attorney General) v Robinson, 2022 FCA 59 at para 28). It’s only a small skip to the next step: of course administrators have a duty to consider the Charter, when a right is claimed, but values in the ether should not expand the scope of the Charter to situations where it “ought”  to apply.

More specifically, and for good reason, recent precedent of the SCC clamps down on these sorts of arguments: specifically City of Toronto and Quebec Inc.  While clarifying that the dominant approach to Charter interpretation is purposive in nature, the Court has finally confirmed that the text remains the starting point to all Charter interpretation. Unwritten principles and values may form a part of doctrinal construction, or construing the scope of a right—but these values must be properly-scoped, and they cannot be used to distort, undershoot, or overshoot the actual rights at hand. This is common sense in many ways, but the simple conclusions from these cases have a great deal of relevance for the continued use of Charter values.

It could also be argued that the specific context of s.23 would permit non-rights holders to act on behalf of the “entire Francophone community” [60]. In this way, the fact that the right is, in part, collective might signal that the Minister should consider s.23 “values.” I think this is wrong. To permit this would be to allow non-rights holders to “piggyback” on those who enjoy the right in question [60]. The collective aspect of a right does not require its extension in this fashion.

People who defend the Charter should be interested in ensuring its scope is limited to the sorts of interests it was meant to protect. The situation we have, these days, with the review of administrative decisions implicating constitutional rights is unsustainable. Most of it distorts orthodox constitutionalism. We have Doré , which can counsel weak review in particular cases when rights are actually advanced; and when rights are not advanced, A.B. brings forward the contention that the Charter applies nonetheless. We have a Charter of Values applying strongly where it shouldn’t, and a Charter of Rights being diluted by a deferential standard of review. This seems odd.

Standing Isn’t Free

On the importance of thinking about costs, as well as benefits, of judicial review of administrative action

NB: This post has been prompted by my teaching and is first addressed to my students in Public Law 2 at Reading, but I hope that other readers, at least those interested in administrative law, will also find it of interest.

Who can challenge an administrative decision: only the persons directly affected by it or, well, just about anyone? This is the question of standing. US law resolutely sticks to the narrow view (as will be apparent, for example, from the discussion of the prospects of the challenges to President Biden’s debt-cancellation plan on this recent episode of Advisory Opinions). But Commonwealth jurisdictions have tended to take a broader view.

As Lord Hope put it in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868, (even as he disclaimed “risk[ing] a definition of what constitutes standing in the public law context”), “the interest of the person affected by or having a reasonable concern in the matter to which the application related” is enough. [63; emphasis added] This means that “[a] personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” [63] Or, in the more colourful words of Palmer J in Smith v Attorney-General [2017] NZHC 1647: “The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists.” [2] While there are differences between the UK and New Zealand approaches, this description is apt for UK law too.

But is this very considerable relaxation of the standing requirement ― when you need to say that something “still exists”, its existence, evidently, is a matter of some doubt ― a good thing? Or does the stricter, American-style, approach has something to recommend it? It is not, after all, without precedent in English law too. In R v Environment Secretary, ex p Rose Theatre Trust [1990] 1 QB 504, Schiemann J insisted that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated”. (522) Doesn’t it, though?

The other view is exemplified in a much quoted (and sometimes implicitly referenced) statement of Sedley J in R v Somerset CC Ex p Dixon, [1998] Env LR 111 (1997):

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs —that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. (121)

The idea is that the law must see to it that public wrongs are set right, and that it matters little who commences the litigation that may lead to this beneficial result. The way I put it to students in my public law tutorials is that the people who take this view emphasise the “review” part of judicial review ― in contrast to those who stress the “judicial” part and so are wary of transforming courts into general-purpose defenders of the public interest.

But to say that an area of the law “is about wrongs” is not enough to show that it must make it possible to identify and ensure consequences for every wrong of the relevant kind that occurs. Just as the socially optimal amount of crime is not zero, so to the socially optimal amount of misuse of public power is not zero either. Some wrongs should actually go unredressed. The idea might seem counter-intuitive, but it makes good sense. The costs of a wrong, be it crime, misuse of public power, or anything else, must be set off against the costs of preventing or rectifying it. If prevention or redress consume more resources (money, time, brainpower, etc) than are lost as a result of the wrong itself, or indeed if they generate further wrongs, then they are wasteful, from the standpoint of society.

In the context of crime, this means, for example, that we wouldn’t want a police officer on every street corner. While their presence would probably deter and possibly help solve some meaningful number of crimes, it would be very costly. The cost, to be clear, is not just money, though that’s part of the story. Salaries are indeed costly, but so are the unseen opportunities lost due to all these people not doing something more productive than standing on street corners. And so, too, is the possibility that they may, if only to occupy themselves, harass or arrest people who are quite innocent.

Recognising all this does not mean that we do not care about crime and about the Rule of Law. As Lord Reed put it in AXA, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”. [170] Acknowledging the costs involved simply means being realistic about the constraints that apply when our ideals come into contact with reality.

The same sort of thinking should apply in public law. While Sedley J and other advocates of expansive standing (such as Lady Hale) do not acknowledge this, some public wrongs are not worth redressing through judicial review because of the cost of doing so. Timothy Endicott’s Administrative Law textbook does make this point. Professor Endicott writes that “the test of standing is a proportionality test. … Proportionality in this case is a relation between the value of hearing a claim for judicial review and the process cost, and any process danger that may result.” (415) I think this is basically the right idea, but it worth unpacking further.

Professor Endicott’s review of the decided cases suggests that courts do, in fact, attach some importance to “the value of hearing a claim”, in that standing is the more easily granted the more serious the claim raised in a case is. And it is not exactly a surprise that courts would pay some attention to this despite sometimes embracing the justice-at-all-costs rhetoric exemplified by Sedley J’s dictum. I have argued here that something similar happens in the realm of procedural fairness. But this is only one side of the proportionality equation.

What about “process cost” and “process danger”? Professor Endicott’s survey suggests judicial interest in this may be limited, and he too has comparatively little to say about these things. I’m not even quite sure what the distinction between “costs” and “dangers” is. Carol Harlow’s article “Public Law and Popular Justice” focuses on a particular set of such concerns, perhaps dangers rather than costs: those that have to do with courts being transformed into political institutions and/or made to address polycentric problems for which they lack institutional competence.

I think these dangers are real, but there is more, too. I discussed the costs (and the benefits) of judicial review in an old post here. I won’t rehash everything I said then, but one point that bears repetition is that

all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested … But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined … by an administrative decision-maker.

Perhaps I should have used a different word: judicial review is not so much superfluous as it is redundant, in the sense of providing an additional layer of protection to a system that could operate without it ― but at some real, and perhaps unacceptable, risk.

Be that as it may, the costs of judicial review, even those that accrue in any legal proceeding, are thus particularly significant. And some are peculiar to judicial review. Among other things, judicial review risks both unwarranted interference with the legitimate activities of government (insofar as anything the government does is legitimate) and, conversely, undue legitimation of government decisions that, while lawful and hence deserving of being upheld, are daft, immoral, or both. Ignoring these (and other) costs of judicial review does not make them go away; nor does it somehow strengthen the Rule of Law.

The other concern I have with Professor Endicott’s approach has to do with the concept of proportionality. As in human rights law, it seems to invite a comparison of things that cannot be assessed on anything like a common scale. As noted above, the costs of judicial review are not all reducible to pecuniary expenses, and its benefits are of course not pecuniary at all. How can we know that one is proportionate to the other? Professor Endicott argues that courts have not struck the right balance, allowing cases where there was no sufficient public interest in having the claims litigated to be brought forward, but with a proportionality approach, such arguments are inherently subjective.

What is more, case-by-case analysis of proportionality exacerbates what Professor Endicott laments as “[t]he irony of process”. This arises when

parties … need to be given more process than is actually due to them [because a] claimant without a sufficient interest in a matter is not entitled to be heard, but it is often necessary to hear the whole story from the claimant and the defendant in order to decide whether the claimant has a sufficient interest. (417; emphasis removed)

This, of course, only adds to the costs of judicial review: debates about standing have to be considered, on top of those of the substantive disputes.

In light of this, it is tempting to look for alternatives to proportionality in the form of clear, rigid rules. They might, of course, not be exactly right: perhaps they will allow some claims to go forward that should not, as is already the case now, Professor Endicott suggests. Or perhaps they will result in some unlawful decisions not being reviewed even though they should be. But if these rules can be applied straightforwardly and predictably, they will still be preferable to the uncertain proportionality approach, provided that they are reasonable proxies for where a case-by-case analysis would end up.

The argument for a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge, would have to be that this rule helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful in a way that is more efficient than the proportionality approach preferred by Professor Endicott or the easy-going approach now preferred by the courts. I think this is possible: the redundant nature of judicial review is particularly salient in case where the applicant’s right and obligations are not involved, and it may be that it is also in those cases that the risks of undue interference with government, and perhaps also of undue legitimation of legally sound but morally questionable decisions arise. But this is just a tentative view for now.

What I am confident about is we must not neglect the costs of judicial review, even as we study and perhaps promote its importance and advantages. The ideals we seek to realise through the law are seldom unmitigated goods, and we do them no justice by forgetting about this. In judicial review as elsewhere, in the heavens as in on Earth, TANSTAAFL.

Our Democratic Deficit

Much is made of Canada’s storied democratic heritage, and on this front, there is much to celebrate. But there is also a dark side that has, from time to time—and these days, more frequently—reared its ugly head: the spectre of a parliamentary process that does not encourage either the participation or the deliberation at the heart of most deliberative democratic accounts. The debility of our legislative process began some time ago. One could blame growing PMO control; omnibus bills, dilatory behaviour, or party whipping.  But now, more than ever, the shenanigans around Bill C-11 are an example of the democratic deficit that appears to characterize at least some aspects of Canadian law-making. One example is just one example, but it raises important questions about the process under which this Bill was adopted.

Bill C-11, on one hand, is a wonky bill giving power to the CRTC to regulate and promote “Cancon.” Given all that is happening in the world, one would be forgiven for forgetting that it is a live legislative proposal. Yet it continues to snake its way through our parliamentary process, and it is significant.

I have criticized the substance of the Bill before, suggesting that it vests the CRTC with unprecedented powers of internet regulation, without proper safeguards on the exercise of that power, especially over individual users. The Bill may permit the CRTC to apply ever-changing Cancon requirements on individual users, such that certain content that meets these standards will be prioritized over content that does not. Since the CRTC has the power to adopt these regulations, one might guess that it will be under pressure to impose ever-more protective Cancon measures that require algorithmic regulation. In this sense, it is true that the CRTC is likely attempting to solve a problem that does not exist; more precisely, it may be giving itself the power to create and solve problems that do not exist at some time in the future.

To be clear, the Bill gives the CRTC the power to regulate individual user content on the Internet—content uploaded to TikTok, Youtube, and the like. The scope of the Bill is potentially vast. The CRTC, as an administrative institution, is under intense scrutiny because of allegations of bias. At a time when valuable democratic institutions should be strengthened and renewed, the CRTC is asking for more power when its institutional credibility is questionable. 

 The substantive point is one on which people can agree or disagree. But ideally, the democratic process that accompanies a Bill of this kind should be robust. Instead, the Government’s conduct assures us that this Bill is so pressing that it justifies any number of shortcuts to cut debate, and rush through unexamined amendments.  An important amendment to clarify that any future regulations should not apply to user content was not considered as a result. This amendment would have curtailed the vast discretion conferred on the CRTC. And yet it fell by the wayside, and the Bill passed the House in June.

The Senate process is unfolding now, but it too has been rocky. “Serious charges of witness intimidation and bullying” have emerged in relation to the Senate Bill C-11 hearings. Liberal MP and Heritage Parliamentary Secretary Chris Bittle (in a letter co-signed by another Liberal MP) asked the Lobbying Commissioner to launch an investigation into Digital First Canada, an organization that was scheduled to testify before the Senate committee. The request was based on an allegation that the organization, which advocated for users, received funding from Youtube. Of course, any technical violation of lobbying rules should be taken seriously, though Digital First maintains that it has received assurances that it followed the rules. But coming from government MPs, and in absence of any other investigations about funding sources of any other witnesses, the timing and specific targeting of this organization is highly suspect. 

More importantly, the targeting of this witness sets an unfortunate precedent. Independent Officers of Parliament are designed to be separated from the government of the day, to support Parliament’s role in the constitutional order. The Officers of Parliament are sometimes called to investigate sensitive matters. But it is incumbent on a government member to conduct themselves with a bit of honour. And weaponizing an officer of Parliament to investigate a particular witness only cheapens the parliamentary process, potentially chilling criticism of the Bill’s wideranging consequences.

It’s trite to say that our legislative practice does not meet some idealized standard. C’est la vie. But where the gap is particularly striking, as here, it raises important questions about what Parliament is doing when it passes bills like C-11 under these conditions. Is it really scrutinizing the Bill and its amendments and producing reasoned debate on them? The House hearings were mostly partisan nonsense, to put it lightly.  If groups worry about being investigated if they testify, how representative is the parliamentary committee process?

At the end, I suppose I have no other point than to lament. None of this is to attack the role of Parliament. In our system, Parliament is sovereign subject to constitutional limits, and statutes adopted by Parliament are law, no matter how imperfect the hearing process. But to the extent that the government can control the hearing process, especially on a bill of this sort, it should do so in a manner that permits examination. 150 amendments, one of which could have solved the legal problem that plagues the Bill, were simply left on the table. That is deeply regrettable.

The result is that Bill C-11, with its power gift to the CRTC, will likely become law, even if the Senate process provides to be an improvement. Cultural protectionism aside, the government’s conduct in the parliamentary process has only shielded the Bill from the sort of scrutiny that might better represent the considered views of parliamentarians and those affected by the law. A law adopted under such conditions is likely to be more readily accepted by the public. In the absence of this adequate deliberation, we are left with a skeletal bill, one that will likely affect user content in service of a vaguely defined Cancon goal. Users should rightly be concerned–and so should lawyers.

Learn Your Craft!

Justice Stratas shares his thoughts on succeeding in law school and beyond on the new episode of the Pod

Last month, co-blogger Mark Mancini launched an experiment in podcasting. We are back with a second episode, for which we have had the honour and the pleasure of speaking with Justice David Stratas, of the Federal Court of Appeal. With the new school year starting, we thought we would ask Justice Stratas for his thoughts on succeeding in law school and in the legal profession, with a particular emphasis on advice for first-year students. We are very grateful to him for accepting the invitation!

I am happy to report that the sound is rather better than last time, though no doubt we still have much to learn. Still, we think this should be an engaging and useful episode. You can listen to our conversation right here:

It is also available on Spotify and Google Podcasts. We also hope that you will share it with any law students ― especially first-year students ― you happen to know, or be teaching.

And, for further reading: Justice Stratas writing tips; and also, Mark’s post on “The First Year of Law School“.

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.

“Bureaucratese”

Newly-minted Leader of His Majesty’s Official Opposition, Pierre Poilievre, recently announced that he plans to propose a “plain-language law” to tackle “bureaucratese.” According to Poilievre, bureaucratese “costs the economy a fortune.” His proposal will “require government publications to use the fewest and simplest words needed to state information.” Now, much of this proposal is probably noise rather than signal because a general rule for politicians (especially in leadership campaigns) is to heavily discount what they say. The scope of the proposed law is unclear, though it seems that it will apply to statutes as well as other public-facing documents, with the Auditor General testing departments for compliance and even a complaint line to report cases of bureaucreatese. Nonetheless, and abstracting away from the specifics of Poilievre’s proposal for a moment, the topic of bureaucratese is a puzzle. Everyone should want to limit it; but how? Is it worth it? The answer is complex, in part because I have no idea if bureaucratese is widespread. I’m also alive to the idea that this whole post might be bureaucratese of a sort. Nonetheless, I’d like to offer some general responses to these questions.

To the extent bureaucratese exists, it is not a small thing. There is something in the idea that inaccessible jargon makes the law, policy, and administrative decisions difficult for people to understand. In response, other jurisdictions have attempted to address the problem. In New Zealand, a Plain Language Bill is currently under study, which would require the appointment of “plain language officers” to ensure that agencies comply with provisions of the statute. In 2010, the United States Congress adopted a similar law, which requires the designation of a senior official for “plain writing,” the establishment of a procedure for implementation, and staff training.

These laws attack, apparently, the same problem. But it is difficult to establish a working definition of “bureaucratese”. The International Plain Language Association says that a communication is in plain language “if the wording, structure, and design are so clear that the intended audience can easily find what they need, understand what they find, and use that information.” Seems fine.

But the term “bureaucratese,” to my mind, relates to the specific problem of a public servant communicating to the public in a way that makes the intended message unintelligble. It specifically concerns what the famous grammarian H.W. Fowler called “jargon”: (1) “words or expressions used by a particular group or profession” and (2) “incomprehensible talk, gibberish, with the second arising conceptually out of the first, although this is not how the meanings evolved historically.” The idea is that those accultured in a professional setting will develop language and shorthand to explain complex concepts, and that language may—by design—be impenetrable for those outside the setting

In a d society that relies on discretionary regulation to deal with problems, a professionalized bureaucracy is obviously expected. And “bureaucratese”—jargon—can even be desirable sometimes. Public Servant A talking to Public Servant B about some technical issue saves time by conversing in their field-specific jargon. Bureaucratese might create economies of scale within bureaucracies.

This is one thing. It is quite another when we talk about public-facing government documents, whether positive laws or front-line administrative decisions. But the problem isn’t necessarily equal in these domains. Legislative drafters often must use technical language to capture certain phenomena. A whole host of conventions assist modern legislative drafters in ensuring uniformity and consistency in capturing these phenomena. Complex, esoteric language must sometimes be used to ensure that the exact same phenomena are captured by different laws, over time. I am not an expert on legislative drafting, but it strikes me that plain language in this context must be balanced against the judicious use of technical language, and as I will point out, the costs of ensuring compliance (whether through the snitch line or the Auditor General).

The problem of bureaucratese becomes worse when we consider public-facing communications and administrative reasons for decision. In this context, bureaucratese can have a more sinister quality. Orwell targeted the problem by noting that “political language is designed to make lies sound truthful, and to give an appearance of solidity to pure wind.” Bureaucratese can be a benign method of communication, but it can also be used deceptively, to minimize or avoid regular public scrutiny. People who cannot understand a message might misconstrue its meaning.

One great, recent example of bureaucratese in public-facing communications is found in a press release by Covenant Health. At the Misericordia Hospital in Edmonton, Trista Champagne complained that “she and other patients waited for hours on the floor inside what she called a ‘dirty makeshift garage’ at the Misericordia Community Hospital. The floor had dry blood on it. Covenant responded that “[t]hroughout the pandemic, hospitals…have used non-traditional spaces for patients to wait after they’ve been triaged.” The relevant issue term here is “non-traditional spaces.” Like all or at least some bureaucratese, there is truth to the idea that a garage is a non-traditional space. But the phrase appears to be used by hospital administrators and others to describe everything other than proper emergency room care. Here, jargon is being used to diminish or minimize the reality of patients lying on blood-stained floors. We could all produce more examples of this.

Bureaucratese can also be an issue in judicial review of administrative action, because it can obscure the basis of a decision, making it difficult for courts and those affected to tell whether the decision tracks to the law. Some administrative decision-makers, like the Social Security Tribunal, have implemented measures to guide self-represented litigants through the process. Others are farther behind in terms of facilitating ease of access. And the Supreme Court’s decision in Vavilov implicitly attempts to address this problem by mandating responsive justification in cases where reasons must be provided. A concern about justification begins with the reality that most people meet the government not in courtrooms, but in the mundane boardrooms and offices of the administration. In many of these contexts, there is no comparable legislative process.  Where reasons are required, especially in individualized settings, they are the primary means through which a court assesses whether a decision is reasonable—whether it has been properly justified to the individual affected by the decision.

In this sense, the provision of understandable reasons facilitates contestation of government action by those affected by it. When a decision is wrapped in jargon–economic, medical, what have you– the person who is affected by the decision might not understand what the decision means, and be unable to contest it, or otherwise not understand its implications. Navigating complex bureaucratic schemes, even with the assistance of a lawyer, is not an easy or cheap task. This state of affairs gives rise to concerns about “bureaucratic domination”—the idea, popularized by civic republicans and liberals—that those with superior knowledge may use that knowledge to impose their arbitrary whim on an individual (see Henry Richardson’s excellent text) . In such cases, there is a fair concern that the power exercised may not track to the public interest; or more specifically, that it will evade scrutiny or understanding. It is for this reason that Vavilov seeks responsive justification: to facilitate judicial review, and to ensure accountability of government action. It is also for this reason that the Federal Court of Appeal continues to warn against immunization of government action from review through the withholding of documents or assertion of privileges (see one example of many, Lukacs v Canada (Transportation Agency), 2016 FCA 103 at para 7).

More can be said about this. For now, it is worth pointing out that no one bill is likely to solve the problem of bureaucratese absent potentially costly enforcement. For one, the plain-language bills that have been proposed in the New Zealand and adopted in the US arguably layer an additional level of bureaucracy in order to solve the problem of bureaucratese. This is because the bills usually mandate departments to appoint individuals to police bureaucratese; plain language “officers” and the like. The National Party in New Zealand had this to say about the New Zealand plain language bill:

The National Party strongly opposes this bill. It is the very legislative essence of a solution looking for a problem….National supports the aim of improving the effectiveness and accountability of the public service in using clear, concise, easily understood language in public documents. We do not believe it should be a legal requirement.

In its legislative scrutiny briefing memorandum, the Office of the Clerk considered the requirements in the bill to be uncertain and without consequence. It suggested the committee explore with officials whether non-legislative alternatives exist. We did. There are. National is disappointed that those alternatives were not pursued.
The requirement to appoint Plain Language Officers is particularly galling. Despite assertions that this could be carried out by existing staff, we are in no doubt that taxpayers will be required to fund new roles to give effect to the requirements in the bill. The Government has a track record of massively increasing bureaucracy and in our view this bill will continue that trend.

National’s concerns raise an important point about implementation . If it costs more to implement measures against bureaucratese, then one wonders about the point of the proposal. This is where cost-benefit analysis can be useful. I would expect that a plain language law as applied to statutes or other internal documentation would not change much or would otherwise not be worth it. However, bureaucratese should be limited and controlled in contexts like front-line administrative decisions, where the risk of arbitrariness might be elevated. In such cases, we should think that bureaucratese cannot count as responsive justification–it cannot speak to an individual’s specific interests. Any effort to stamp out bureaucratese should start where it would make the biggest difference.

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?

In Memoriam Reginae

What the Queen meant to me

“Yes, man is mortal, but that would be only half the trouble. The worst of it is that he’s sometimes suddenly mortal ― there’s the rub!”

Mikhail Bulgakov, The Master and Margarita

On Tuesday, she is still at work, as she had been for 70 years, swearing in a new Prime Minister. On Thursday, she is gone. It is, I guess, the good, and ― let’s be honest ― the lucky way to go. Not everyone has this good fortune. But it is fitting for Her Late Majesty. Yes, she had it good, for the most part. Yes, she was fortunate, as our republican friends have always reminded us. But she took advantage of her good luck to serve, and made sure that her good fortune was ours too.

Much has already been said, and more will be, and it is difficult to add to it without being banal, ridiculous, or both. All the more difficult because the Queen’s death has affected me more than I would have imagined. As we know, the feeling that the time is out of joint does not make for the clearest thinking.

I did want to bring up something that is mentioned less than the really obvious (and of course true and important) things like the late Queen’s dedication and dignity: her levity. Not every Serious Person would have gone along with the James Bond stunts for the London Olympic Games opening ceremony, or the video of her having tea with Paddington Bear for her Diamond Jubilee. But just as a person truly confident of his or her strength can afford to show weakness from time to time, the Queen was secure enough in her dignity not to stand on it at all times. I’m not sure how many others could, let alone would, have pulled it off.

Let me also mention two personal memories of the Queen, which I hope capture some of what she was to me and to many others.

First, her last visit to Canada, in 2010. I was lucky enough to be in Ottawa for Canada Day ― it was my clerkship year. It was a bright and sunny day, a cheerful occasion, and good times seemed to be had by everyone around.

Canada Day, 2010. The Queen is getting out of the limousine to take place in the carriage that will carry her to Parliament.

And second, her “We will meet again” address in the darkest days of the first covid lockdown, which I watched in New Zealand. Nothing bright and cheerful about it; good times were gone and unsure of returning.

April 2020. The Queen addresses the Commonwealth during the first pandemic lockdown.

This is how it was: whichever of her Realms I was in, she had a wave for us in a time of celebration and a word of comfort in a time of anxiety. She seems to have had a preternatural talent for getting both, and every other public word or gesture, exactly right. More luck, perhaps. But it was our luck more than hers. We have had it good, and we must somehow see to it that we make as much of our good fortune as she did of hers.

Farewell, Your Majesty. And long live the King!

Nothing Doing

Why I’m not moved by the responses to my criticism of O’Bonsawin J’s appointment to the Supreme Court

I recently wrote a post that was sharply critical of the appointment of Justice Michelle O’Bonsawin to the Supreme Court of Canada. The National Post then ran a slightly modified version of it as an op-ed. Rob Breakenridge also interviewed me on my views. Somewhat to my surprise, the responses that have reached me were, on the whole, more supportive than not. While the public reaction to Justice O’Bonsawin’s appointment is almost uniformly positive (except for my post and op-ed, the only other sustained criticism came in The Line‘s editorial, which is more proof that you should subscribe to them), in reality there is a good deal of disappointment, some of it very bitter indeed, within and beyond the Canadian legal community.

That said, of course, quite a few people were also unpersuaded, or worse, by what I have had to say. I don’t think I have seen anyone attempt to rebut my argument to the effect that, considering the limitations of her career so far and the shallowness of the responses on her government questionnaire Justice O’Bonsawin lacks either the accomplishments or the intellectual excellence to be a Supreme Court judge. Instead, what has been put forward is any number of reasons why either my arguments or I should simply be ignored. In this post, I quickly respond to them, in rough descending order of seriousness and good faith.

You’re not impressed now, but Justice O’Bonsawin could still turn out to be great!

This is true, of course. She could. I’m not optimistic as to the likelihood of this, but I’ll be happy to be proven wrong. That said, I don’t think this is a good response to my criticism of Justice O’Bonsawin’s appointment. It’s a bit like saying that buying a lottery ticket is a good idea because one might end up winning. One might, but the odds are bad enough that it’s still an irresponsible decision. And while I’m content to stipulate that Justice O’Bonsawin’s odds of turning out to be a reasonably good Supreme Court judge (not everyone needs to be great!) are better than those of getting a winning lottery ticket, the cost of a bad choice is also rather more than just a few dollars. Justice O’Bonsawin could hold office for more than a quarter of a century. If she turns out to be a dud, c’est long longtemps as Quebeckers say. Appointments to the Supreme Court are not trifles to gamble with.

And, by the way, it is always important to remember the opportunity costs of decisions: appointing Justice O’Bonsawin means, among other things, not appointing some other, better qualified judge now. Realistically, it may also mean not appointing a better qualified Indigenous judge to the Supreme Court in the near or medium-term future; at the very least, the pressure for such an appointment will now be much less than it would have been otherwise. True, we’ll never hear about these unmade appointments. But the unseen is no less important than the seen.

You’re making too much of a silly questionnaire; it’s no basis to assess a future judge!

There’s something to this too. Justice Rowe turned out not to be the “judge unbound” I had expected him to be based on his questionnaire. Clearly, the method of predicting future judicial performance based on this has serious limitations. But while that may be a good argument against relying on it with respect to most appointments, Justice O’Bonsawin’s case is exceptional in that the questionnaire is well-nigh all that we can judge her appointment on. What is more, it is well-nigh all that that the government that appointed her had at its disposal. Unsurprisingly given the shortness of her career on the bench, Justice O’Bonsawin has written few judgments of importance ― few enough that she listed her PhD as one the top five pieces of writing, and that thesis has been hidden from public view. (By the way: I think some people have made too much of this; I wouldn’t expect to find some sort of smoking gun there; it’s probably boring; but having mentioned it as being one of her most significant outputs, Justice O’Bonsawin should not have kept it secret.) She has no academic publications. Her career as an in-house lawyer was also not the sort that leaves a record that lends itself to serious assessment. If we also ignore the questionnaire, we must conclude she is a cypher. Well, I don’t think cyphers are fit for appointment to the Supreme Court of Canada.

Admittedly, some people might disagree.

We shouldn’t even try assessing a newly-appointed judge! Let’s see how their career turns out and pass judgment once they retire.

First, I think it’s worth noting that this argument, which would have applied to every judicial appointment ever, seems to be brand new. Perhaps I have missed it being made in the past ― I’d be grateful if someone pointed me to previous examples ― but anyway I daresay it was not a common one. On the contrary, people were quite happy to criticize, for example, the appointments of Justice Brown to the Supreme Court and of Justices Huscroft and Miller to the Ontario Court of Appeal. People were also happy to praise the appointments of, say, Justice Jamal and indeed that of Justice O’Bonsawin to the Supreme Court, and if it’s too soon to criticize a new judicial appointment, then surely it is also too soon to praise it. I add that the government itself is obviously keen to take credit for its judicial appointments: it evidently doesn’t think that they cannot be assessed until long after it is out of office.

That said, to be sure, an argument isn’t wrong just because it’s new and convenient. But the claim that judicial appointments can only be criticized (or praised) retrospectively is simply wrong on the merits. Courts, and especially the Supreme Court, exercise considerable power. (Richard Albert has suggested that the Supreme Court of Canada might be the most powerful court in the world. Whether or not he is quite right about this, it is surely a very powerful institution.) At the same time, courts are ― by design, and rightly ― not meaningfully accountable for the exercise of their authority. It is, then, very important that the decisions as to whom to appoint to the bench, especially the Supreme Court, be made with a degree of thoughtfulness proportionate to its importance, and that these decisions be subject to meaningful accountability. Criticism of bad appointments, just like praise of good ones, is not only permissible but essential to ensure the government of the day takes this responsibility with all the required seriousness.

Are you saying only appellate judges/judges who have served on both trial and appellate courts should be appointed to the Supreme Court?

I said no such thing (and indeed I specifically got the Post to drop a proposed edit that might have carried that implication), but quite a few people seem to have concluded that I did. So, in case this clarification is useful, no I don’t think there’s a specific amount or sort of judicial, or indeed any other, experience that is mandatory for a future Supreme Court judge. Some of the smartest and most interesting judges in recent decades were appointed directly from the bar ― namely, Justices Sopinka, Binnie, and Côté. An appointment from a trial court is unusual (Beverley McLachlin was the Chief Justice of British Columbia’s Supreme Court, a trial court, when appointed to the Supreme Court of Canada, but she had served on the BC Court of Appeal before). But if a Supreme Court judge can lack any judicial experience at all, then having only trial court experience should be no obstacle. What one would want to see in appointee is a track record of excellence ― whether in practice, in the academy, on the bench, or in some mix of these ― and indications of some degree of brilliance. Again, there’s no one right route to this. Justice O’Bonsawin’s record, however, falls far short of what one would expect on the Supreme Court.

Not that this matters, according to some people. Now we’re getting into really silly territory.

Legal skills/qualifications are irrelevant anyway!

This too, I think, is a novel argument. And also a bad one. Even on the view that the law often “runs out” and decisions in hard cases have to rely on judges’ moral sense ― not by any means an uncontroversial view, and one of which I am sceptical (at least in this far-reaching form) but a widespread one ― judicial decision-making has to start with the law, even if it turns out that it cannot end there. If we aspire to anything like a government of laws rather than unaccountable personal rule, we should expect and demand that judges be skilful lawyers, whatever else they might also need to be.

You’re undermining confidence in the Supreme Court!

Sure I am. A Supreme Court one of whose members is not qualified for membership and should not have been appointed deserves less confidence than a court of which this is not true. That was the whole point of the litigation around the appointment of Justice Nadon ― another one which plenty of people thought it was permissible to criticize, by the way, including due to the perceived insufficiency of his credentials (which, whatever one makes of them, were considerably stronger than Justice O’Bonsawin). There is no question that Justice O’Bonsawin’s appointment is legal and constitutional. But, as I said in my original post, it is bad for Canada’s legal system all the same, and nothing requires me or anyone else to be an ostrich about it.

You’re racist/sexist!

We all knew this one coming, didn’t we? Criticizing the appointment of an Indigenous woman to the Supreme Court is, by itself, conclusive evidence of racism and/or sexism in some quarters of what is sometimes mistaken for polite society. Suffice it to say that attacks on, say, a John McWhorter or a J.K. Rowling from the same quarters are not held to be evidence of racism or sexism. The “principle” on which this sort of response to my post is based is just partisan horseshit. Like Pierre Trudeau, I’ve been called worse things by better people.

I think this about covers it. I should say, though, that there was less real horseshit than I had expected. Perhaps people had already decided that I am too much of a heretic to bother about. Perhaps they are quietly taking notes and not telling me. Either way, I suppose I will not be welcome in the “polite society” whence such accusations originate. That’s as well. I have as little time for it as it has for me.

I remain unpersuaded by the responses to my take on Justice O’Bonsawin’s appointment. She is not Supreme Court material, and should not be sitting on that court. And by the way, my saying so is no slight on her personally. There’s nothing wrong with not being Supreme Court material. Most lawyers aren’t. Probably even most judges, let alone most judges who have only spent five years on the bench. One can be a fine person and even a fine judge without this. But appointing someone who is not Supreme Court material to a role for which she is not qualified is a grave fault. We’re hearing much about whether this or that politician will undermine Canadian institutions. Sadly, the Prime Minister’s and the Justice Minister’s choice of Justice O’Bonsawin does just that.

A Nod to the Pod

Introducing the experimental Double Aspect Pod

Co-blogger Mark Mancini and I have been toying with this idea for a while: should Double Aspect expand into the podcasting universe? Well, we have decided to give it a shot, and we are pleased to announce the arrival of the first and very much experimental episode of the Double Aspect Pod.

We’re very new to this medium and it shows. The audio on my end is especially sub-par, I’m afraid. Still we thought that the substance of our conversation, during which we covered the merits/procedure in administrative law, our recent post on statutory interpretation and election law, and medical assistance in dying, was pretty good. If you are willing to give us a shot and overlook the technical difficulties, you can listen to it here:

Please let us know what you think!