Affidavi

Why I oppose the Law Society of Ontario’s “statement of principles”

I have repeatedly argued, here and elsewhere, that the Law Society of Ontario’s requirement that its members “acknowledge[] [an] obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” by means of a “statement of principles” is wrong in principle, illegal, and unconstitutional. Fortunately, Ryan Alford and Murray Klippenstein are challenging the validity of the Law Society’s demands, backed by the Canadian Constitution Foundation. For my part, I have provided an affidavit for their application (which has been served on the Law Society, but not filed with the court just yet), primarily to illustrate that the “statement of principles” policy applies far more widely than do non-discrimination obligations under the Ontario or federal human rights legislation, to which the Law Society has been endeavouring to misleadingly equate it.

But of course the affidavit is also an opportunity to explain why I oppose the Law Society’s demands, and will not comply with them, so I thought it worthwhile to reproduce an adapted version of it here. (I have removed some of the affidavit-y bells and whistles, so that it reads more like a normal post, and have added some links.) Of course, since an affidavit is meant to be a personal statement, not legal argument, it is a more personal and less argumentative text than my normal posts. Here goes.


I am a Senior Lecturer (a position equivalent to that of an Assistant or Associate Professor) at the Auckland University of Technology Law School. I hold degrees in civil law and common law (BCL/LLB (Hons)) from the McGill University Faculty of Law, as well as a Master’s degree (LLM (Legal Theory) and a doctorate (JSD) from the New York University School of Law.

I was called to the Bar in June 2010 and have been a member of the Law Society of Upper Canada, now the Law Society of Ontario, (the “Law Society”) in good standing ever since. However, I am not and have never been a practicing lawyer. From September 2010 to August 2016, I was a full-time student; since August 2016, I have been a full-time academic. I have no clients and no employees. To my knowledge, no one among my co-workers is a fellow licensee of the Law Society. I have resided in New Zealand since August 2016, and have not resided in Ontario since August 2010.

My Interest in Freedom of Conscience and the Rights of Others

My research interests range broadly across constitutional and administrative law, with a focus on Canada. Among the areas on which I have published is the freedom of conscience and religion. My LLM thesis, subsequently published as a peer-reviewed article, was concerned with religious exemptions and the Rule of Law, exploring the importance of individual conscience in reconciling the claims of religious believers and the demands of legal conformity. Another of my peer-reviewed articles argued that the reference to the Queen in the Canadian citizenship oath infringes the freedom of conscience of those republicans who are required to take it.

In addition to scholarship, I have written about freedom of conscience and religion in multiple posts on the award-winning blog Double Aspect, which I created in 2012, of which I first was the sole author (until July 2018) and now am a co-author. In particular, I have been critical of various attempts in Québec to deprive state employees of their right to wear so-called “ostentatious religious symbols”. I have also published an op-ed on this issue. I also published multiple posts on freedom of conscience of republicans objecting to the citizenship oath.

In this work, as well as in writing on a number of other issues (notably relating to freedom of expression in the electoral context), I have consistently championed the rights of individuals and groups with whom I profoundly disagree, including many whose views I reject. I have defended religious exemptions and other forms of accommodation for religious believers, but I am agnostic. I have defended the freedom of conscience of republicans, but I am a monarchist. I have defended the freedom of expression of student movements and trade unions, but I strongly disagree with the aims of both.

The Statement of Principles Requirement

At the December 2, 2016 meeting of Convocation, the Law Society adopted the requirement that each licensee “create and abide by an individual Statement of Principles that acknowledges [his or her] obligation to promote equality, diversity and inclusion generally, and in [his or her] behaviour towards colleagues, employees, clients and the public”.

I learned of the adoption of the Statement of Principles requirement after the fact, via an e-mail sent by the Law Society on September 13, 2017, entitled “New Obligations for 2017 — Actions you need to take”. That e-mail said that: “You will need to create an abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity generally, and in your behaviour towards colleagues, employees, clients, and the public.” Until then, I had not received any correspondence from the Law Society on that topic or which alluded to it, and was not aware that Convocation had adopted the Statement of Principles requirement.

This requirement is applicable to me as a licensee of the Law Society, even though I am not, and never have been, practicing law in Ontario, and, to my knowledge, have no colleagues, students or subordinates who, are licensed to practice law in Ontario. As the Law Society explains on a “Frequently Asked Questions” page on its website, “[i]f you are licensed by the Law Society, you must meet this requirement regardless of whether you are currently practising law or providing legal services”.

I have not complied with the Statement of Principles requirement. I have provided the following explanation for my refusal to do so in my 2017 Lawyer Annual Report:

No existing legislation, primary or delegated, imposes on me or on any lawyer in Ontario an obligation to promote equality, diversity and inclusion. In particular, human rights legislation and the Rules of Professional Conduct prohibit engaging in discrimination, but say nothing of promoting any particular values or ideals. The Law Society has no right to be demanding that its members acknowledge an obligation that does not exist, and one that could not be constitutionally imposed, since in a free society, the state or its instrumentalities, such as the Law Society, have no business imposing values on individuals, much less demanding that individuals promote values. The Law Society’s policy in this matter is no less totalitarian than the arbitrator’s letter denounced by a majority of the Supreme Court in National Bank of Canada v Retail Clerks Int’l Union, [1984] 1 SCR 269.

I have elaborated these views in a series of blog posts, listed below, which I invite the Law Society to read:

https://doubleaspect.blog/2017/10/12/lawless-society-of-upper-canada/
https://doubleaspect.blog/2017/10/19/ones-own-self-like-water/
https://doubleaspect.blog/2017/10/29/profession-of-power/
http://nationalmagazine.ca/Articles/November-2017/The-Law-Society-of-Upper-Canada-should-stick-to-it.aspx
https://doubleaspect.blog/2018/01/21/the-detestable-attestation/

Reasons for My Objection to the Statement of Principles Requirement

I consider myself a conscientious objector to the Statement of Principles requirement, and will not comply with it in the future. As noted above, I have a longstanding interest in freedom of conscience, and have displayed a consistent and public commitment to the rights and freedoms, especially those having to do with belief and expression of belief, of individuals and groups whose religious, moral, or political opinions I do not share. I claim the same freedom for myself.

I regard the Statement of Principles requirement as a violation of my freedom of conscience, freedom of opinion, and freedom of expression. The requirement states that I must promote specific values: equality, diversity, and inclusion. I believe that promoting values requires me to hold them. Otherwise, this promotion would be insincere; indeed, it would be a lie. And it is my sincerely held belief that, as a free individual, I must only hold those values that I freely choose for myself, and must not embrace those values imposed by an authority exercising coercive powers conferred by the state — i.e. the Law Society.

My fundamental belief that a free individual must choose his or her own values, think for him- or herself, and reject the authorities’ views of what he or she must believe in, which animates my scholarship and blogging on freedom of conscience and compels my refusal to comply with the Statement of Principles requirement is a product, in part, of family upbringing, and in part of my broader philosophical views.

As to the former, I was born in what was still the Union of Soviet Socialist Republics, and my parents took pride in ensuring that my brother and I grew up speaking Russian at home and aware of Russian history after our move to Canada. Part of my parents’ endeavours — indeed a very substantial part — involved exposing us to the stories of Soviet dissidents, people who, in various ways, stood up to a brutally repressive regime for their right to believe and to say their own, rather than the regime’s truth. The circumstances of a free and democratic society such as Canada are hardly comparable to those of the Soviet Union, but the moral imperative to live the truth as one sees it is no less pressing in this more benign setting.

As to the latter, I have been heavily influenced by Lord Acton’s liberalism, and, in particular, his admiration for “[t]he true apostles of toleration” — “not those who sought protection for their own beliefs, or who had none to protect; but men to whom, irrespective of their cause, it was a political, a moral, and a theological dogma, a question of conscience involving both religion and policy”. Hence my advocacy for the freedom of conscience and expression of those with whom I disagree; but one can still, I trust, be a defender of toleration while claiming its benefits for oneself. Lord Acton summarized the role of freedom of conscience in modern history thus:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities.

It is my most deeply and conscientiously held belief that I must defend “the ground gained by the individual”, and the individual’s prerogative to maintain his or her independent character. I must resist if I can, and certainly lend no support to the attempts of “states, or nations, or majorities” — including a majority of the Benchers of the Law Society — to claim for themselves the “sublime prerogative” of knowing good and evil, and cast those subject to their jurisdiction all of the same type.

In addition to this overall outlook, I believe that my professional position as a scholar means that I must resist any attempt to make me adhere to or promote specific values chosen by an external authority. Academic freedom — which I regard not only as an entitlement but also as a responsibility — is a right, and arguably a duty, to pursue truth, however uncomfortable or unpleasant it might be to authorities and others. This pursuit, in my opinion, is incompatible with an undertaking to promote specific values. If my research leads me to conclusions that I or others regard as incompatible with or even opposed to a given value, so much the worse for the value in question.

I would add that, at a high level of generality, I find the values to which the Statement of Principles requirement refers attractive. However, my understanding of these general values is quite different from that which animates the Statement of Principles requirement. I believe in equality before the law, and reject the value of an equality of outcomes. I believe that diversity is primarily desirable if it embraces a plurality of views and perspectives on human flourishing, and not only of demographic backgrounds. Similarly, I believe that inclusion must extend to those who think, and not only those who look, unlike the majority. As a result, expressing support for these values, at the command of the Law Society, would risk communicating adherence to beliefs that I do not hold, and would thus force me to express statements I would not otherwise express.

Concluding observations

As explained above, I refuse to comply with the Statement of Principles requirement. I regard it as incompatible with my rights and duties as a free person, my professional responsibilities as a scholar, and, above all, my conscience.

If the requirement that I hold and promote values chosen by the Law Society is not repealed or invalidated, I will cease being a member of the legal profession in Ontario. This is not an outcome I desire — I would not have paid substantial fees for years for the privilege of this membership which is not necessary for my academic position and from which I derive no financial gain if I did not value the connection with the profession. However, I simply cannot remain a member of the legal profession in Ontario if to do so would violate some of my most deeply held conscientious beliefs.


We’ll see what happens with this. In any case, I am very grateful to Professor Alford and Mr. Klippenstein, as well as Asher Honickman who is litigating the case, and the CCF for fighting the good fight. And don’t forget that, in parallel, there is another front on which this fight can be fought ― the upcoming election for benchers of the Law Society. Vote, and throw the bums who imposed the “statement of principles” requirement out!

At the Executive’s Pleasure

When Parliament delegates power to agencies, it does so for any number of reasons. At least in theory, Parliament could delegate to a tribunal because it genuinely believes that some particular problem requires expert treatment. Parliament could also delegate as part of a “make or buy” decision, in a Coasian sense: the costs of crafting legislation may be prohibitive, and it may make more sense for Parliament to set out the broad strokes and let the agency fill in the blanks. Or, sometimes problems require solving by an independent body. Tribunals, for example, could play an important role in this regard. For example, determining whether a government action is contrary to human rights law is likely best determined by an impartial adjudicator. In such cases, so the story goes, a so-called “flexible” tribunal is best suited to deal efficiently with these sorts of problems.

But the promise of true independence is not often (and perhaps never) realized, because its existence is determined by the legislature and the executive. This should make us question whether the model of administrative justice we currently employ is even working.

The Ontario Human Rights Tribunal is finding this out the hard way. Recently, it came to light that the tribunal is experiencing a shortage of adjudicators, causing mass delays. The shortage is due, apparently, to the Attorney General’s refusal (or failure) to fill vacancies. The Ministry of the Attorney General oversees the province’s tribunals, including the Ontario Human Rights Tribunal. Lawyers and observers have pointed out the effect that the Attorney General’s delay in appointing adjudicators has on procedural fairness rights, and the general efficiency of the administrative justice system. Some people may view this state of affairs as untenable and inappropriate state of affairs, inconsistent with the spirit of administrative justice. But, to my mind, it is predictable.

Why should we expect this? The Tribunal is a recipient of delegated power, under the Ontario Human Rights Code. But like many legislative delegations, power is also concurrently delegated to the executive. As the Supreme Court said in Ocean Port at para 24, this means that tribunals span the constitutional divide between executive and judicial powers, but are primarily invested with these powers by legislative delegation. They are “created precisely for the purpose of implementing government policy.” There is no constitutional principle requiring structural independence, and it need not matter whether the tribunal is adjudicative or regulatory in character.

The Human Rights Tribunal is no exception from the Supreme Court’s comments in Ocean Port. In this case, the legislation specifies the Governor-in-Council has power to make appointments (s.32(2)). The language presupposes that there “shall” be “members” of the Human Rights Tribunal, but how many is left unsaid, presumably up to executive discretion. Otherwise, the only legislative specification on appointments is that appointments must be made according to a particular process (s.32(3)). Other than that, how much members of the tribunal shall be paid (s.32(4)) and their terms of office (s.32(5)) are matters for Cabinet. Cabinet has a wide degree of discretion to shape the efficiency and responsiveness of the administrative process in the Ontario Human Rights Tribunal, supposedly an independent agency, perhaps the “Crown jewel” of administrative law.

The fact that the legislature—at least arguably—even permits this should make us question the actual degree of independence in the administrative state. In fact, recalcitrance in conducting appointments is just one of the many ways that the executive can undermine the project of administrative justice. It is also perfectly legitimate, should the legislation permit it, for a Cabinet, after an election, to fire all the members of a labour board and to replace those members with persons that it sees fit. And this is just on the topic of appointments. Ron Ellis, in his book Unjust By Design (ably summarized by Professor Daly here) goes into detail about the ways in which executive actors can undermine tribunal independence, in a way that undermines the project of administrative justice. Renewal of tribunal members is one way that the executive can do so, but one can also imagine considerations such as the power of the purse and general administrative reorganization as ways in which the executive can subtly (and not so subtly) control the success and efficiency of the administrative state.

This might all sound bad, but I for one, think that independence is an overrated virtue, and should be calibrated to the strength of the case for independence. There is clearly a case for the Bank of Canada to be independent. But one can imagine closer cases. After all, we live in a system of responsible government and political accountability, and creating islands of power without adequate oversight should be concerning. That said, there is clearly a need for the broader category of “independent agencies” in modern administrative decision-making.

So, how do we balance accountability with independence? I think we need to go to the source: Parliament and the legislatures. One way is to insist that Parliament, if it is to empower the executive with power over these tribunals, legislate more specifically. In the Human Rights Tribunal example, perhaps Parliament could specify a minimum number of adjudicators that must exist at a given time. Or it could delegate the power to the Cabinet to do so, but make it a mandatory requirement. More specificity in delegation, while increasing the costs of legislating, also helps to guide executive action and provide constraints on executive recalcitrance.

The Law Reform Commission, in 1985, recommended that the independent agency be decoupled from Cabinet, and instead be made to report directly to Parliament to remove the spectre of executive interference. This might seem desirable, but I fear it prizes independence over accountability. Having someone able to answer, on a day-to-day basis, for the tribunal activities (and to be accountable in a broader sense for the tribunal’s mandate) is an important accountability mechanism in and of itself. It may make more sense for us to expect Parliament to adequately debate and decide on the limits of executive action in relation to tribunals, and then expect responsible ministers to be accountable for whatever they do in relation to the tribunals.

Overall, there is a risk that tribunals merely exist at the executive’s pleasure. But legislatures themselves have made this choice. It is for them to solve.

Look, Look, over There!

What role should comparative law play in constitutional adjudication in Canada?

This is, I think, the last post I write on Frank v Canada (Attorney-General), 2019 SCC 1, where the Supreme Court held that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional. I summarized the decision here, commented on it here, and added further comments on the issue of expatriates’ supposed lack of connections to individual ridings here. In this post, I address a further issue that I left out so far, because it is only tangentially related to the question of the constitutionality of disenfranchising expatriates: that of the significance of foreign jurisdictions’ approaches to this issue.

In their dissenting opinion, Justices Côté and Brown invoke the “limits adopted by other Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts” [164] as support for the proposition that disenfranchising Canadians after five years abroad is reasonable. They mention, specifically, three other “Westminster democracies” ― the United Kingdom itself, as well as Australia and New Zealand. They note, by way of a rejoinder to the majority’s dismissal of this argument (on which more presently), that “[a]t different times in its history, Canada would well have taken some lessons from other countries” ― or at least from New Zealand, which enfranchised its aboriginal citizens (albeit in a way that radically under-represented them) and women well before Canada did. For Justices Côté and Brown, the fact that peer democracies “have adopted comparable time limits on voting for long-term non-residents … provide[s] compelling evidence” [167] for the proposition that the Canadian law they are examining is rational, and therefore constitutional.

Chief Justice Wagner, for the majority, is not impressed with this. For one thing, he insists that that the dissent’s comparisons do not really work in its favour. The United Kingdom only disenfranchises its expatriates after fifteen years, not five; meanwhile, “in Australia, the voter’s right can be extended indefinitely upon application, while New Zealand’s three-year limit is reset each time the non-resident returns to the country”. [74; hyperlinks added ― oddly, I think, the Chief Justice provides no citations.] Thus, disenfranchising expatriates after five years of non-residence (even if they visit Canada during this period) is a harsher approach than that taken by the countries on which the dissenters want to rely. (The dissenters, for their part, dismiss this as “minutiae of policy preferences of Canadian legislators (and, for that matter, legislators in Australia and New Zealand) on matters about which this Court as an institution has little comparative expertise”. [166])

More fundamentally though, the Chief Justice is skeptical about whether there is anything at all to be learned from the experience and choices of other jurisdictions: “I place little stock”, he writes, “in comparisons with other countries for the purpose of determining whether this legislation is constitutional.” [74] Whatever may be done elsewhere, it need not be a rational response to the particular problems that Parliament purports to be solving by limiting the right of Canadians abroad to vote, or that it is the least restrictive option available. Besides, “Canada is an international leader” [62] when it comes to enfranchising citizens to whom other countries deny the vote (such as prisoners), and part decisions of the Supreme Court paid little heed to what other countries do. For the dissent, these are “highly political, rhetorical arguments … that … stand in tension with the majority’s own invocation of internationalism and of a ‘globalized’ world of connectivity and communication”, [167] and which smack of “exceptionalism”. [166]

There are some important questions here. Should we, contrary to the Chief Justice, “place stock in comparisons with other countries” when assessing the constitutionality of legislation? Are there particular areas where we might want to make exceptions to whatever general principle we adopt ― for example, on account of Canada’s being “an international leader”? And if we ought to be looking at comparative materials, how should we go about it?

On the general issue of the relevance of comparative law, my answer is “it’s complicated”. Where the interpretation of constitutional text is concerned, being a public meaning originalist, I think that foreign or international materials can assist a Canadian only insofar as there is evidence that they would have been understood to bear on text’s meaning at the time of its enactment. That might sometimes be the case, especially with the Charter, but the evidence has to be provided whenever an argument about the relevance of such materials to the question at hand is made. Moreover, the simple existence, somewhere in the world, of a particular view about the meaning of a right that might have been “within the contemplation of the framers of the Charter“, as the Supreme Court put it in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, is not enough. What needs to be shown is that this particular interpretation was actually understood as the one the Charter itself would bear.

When it comes to the application of section 1 of the Charter, which allows legislatures to limit rights, provided that the limitation is a “reasonable” one and “demonstrably justified in a free and democratic society”, the issue is no longer one of interpretation (except insofar as the terms of section 1 itself have to interpreted). Here, I think that international and comparative materials may cast some light on what may be acceptable “in a free and democratic society”. However, the views of other free and democratic societies are not dispositive on the question of what is actually reasonable and demonstrably justified in the specific context in which rights are being limited in Canada. The Chief Justice is quite right to insist that the analysis has to proceed with reference to the Canadian circumstances, including (but not limited to) the objective for the sake of which a Canadian legislature is seeking to limit rights. Sometimes, the circumstances of other jurisdictions will be similar enough to make their experiences and choices interesting; sometimes they will not be.

Smug dismissals on the basis that Canada is a “world leader” are unwise, if for no other reason that one can only be such a leader if the direction in which the world is supposed to move is clear, and this will rarely be obvious in rights cases. But, at the same time, claims the effect that, since some respectable jurisdictions restrict rights in a particular way, it is rational and therefore permissible, for Canada to do likewise are similarly unhelpful. Such claims ignore local circumstances and, crucially, the textual requirement of section 1 that limitations on rights be demonstrably justified. “Other people do it” is not a demonstration; it is, at most, a relevant consideration for such a demonstration. To insist that, ultimately, a Canadian government defending a Canadian statute limiting the rights protected by the Canadian constitution demonstrably justify this limitation is not a rhetorical, let alone a political move. It is nothing less than what the constitution itself, in no uncertain terms, requires.

Still, foreign laws might be of some, albeit limited, interest to Canadian courts in Charter cases. This brings me to the question of how Canadian judges should consider them. Here, I’m afraid the Frank dissent offers a good lesson in how not to do it. First, one should not cherry-pick a few examples that seem to support one’s preferred position. Why focus on the UK, Australia, and New Zealand? They are, we are told, “Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts”, but why are “Westminster democracies” the only relevant ones here? The electoral systems of the United States and France, for example, are also “structured around geographically defined districts. Why should we ignore them?

Second, one should not cherry-pick aspects of those foreign laws to which one refers either. If one wants to invoke a foreign law as a model, one doesn’t get to dismiss aspects of that law that don’t support one’s conclusions as “minutiae of policy preferences”. The fact that Australian citizens can actually vote from abroad, so long as they keep making the relevant annual applications, and that New Zealand citizens and permanent residents can reset their respective disenfranchisement clocks by simply visiting the country considerably undermines the point that the Frank dissent attempts to make by appealing to them.

Third, one really shouldn’t misunderstand the foreign law on which one relies, or present it in a way that is misleading. I’m not sure which of these to things Justices Côté and Brown do in Frank, but in any case, New Zealand, unlike the UK and Australia (and the US and France) uses a proportional electoral system. It does have “geographically defined electoral districts” that ensure local representation, but it’s the party vote that determines the composition of the House of Representatives, so I think that it’s just wrong to equate this system to Australia’s or the United Kingdom’s ― or Canada’s. (Conversely, if New Zealand is an apt comparison, why not Germany, on whose system New Zealand’s is closely modelled?)

In short, when judges choose to embark on a consideration of comparative law, they must do their best to ensure that this endeavour is not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete. Of course, there are limits to what judges can do in looking at other jurisdictions. Some help is sometimes available to them ― for example, in the shape of reports of the Council of Europe’s Venice Commission ― but this will not always be enough. I think it is also fair to ask whether some countries’ experiences ought to carry more weight than those of others in the minds of Canadian judges. I’m not sure how to answer that question though, other than to point out the obvious fact that similarities, or lack thereof, between Canada’s constitutional texts and those of another jurisdiction’s constitution ought to matter in assessing the interest that jurisdiction’s law can have for Canadian judges. But choosing, or appearing to choose, only a few jurisdictions favourable to one’s inclinations, or giving a partial picutre of their law so as to bolster one’s conclusions, or both, is not good enough.

Comparative law has a place in constitutional adjudication in Canada. However, this place should be limited, and carefully circumscribed. The fact that some other countries limit the rights of their citizens in a particular way does not, by itself, mean that it is appropriate for a Canadian government to limit the rights of Canadians likewise. Moreover, we must be sure of understanding foreign law before invoking it in support of the limitation of our constitutional rights. The Frank dissent, ought to serve as a warning in this regard.

One last point. The strong disagreement about the role of comparative law between the majority and the dissent in Frank helps us think through important questions that are relevant in a variety of constitutional cases. It is a reminder, in the face of some recent grumblings, that allowing debates among judges to be publicly aired enriches our law and improves it.

Civics, Feelings, and Politics

Expatriates’ alleged lack of connection to particular ridings is not a good reason to disenfranchise them

When it held, in Frank v Canada (Attorney-General), 2019 SCC 1 (summarized here), that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional, did the Supreme Court go with “feelings over civics”? Did it decide the case in a way that ignores the fact that Canadians vote not for national parties but for candidates in local constituencies, to which expatriates are not meaningfully connected, even if they maintain, as the Court’s majority said, a “profound attachment” to Canada? Over at Routine Proceedings, Dale Smith argues that that’s precisely what the Court did. I disagree.

As Mr. Smith sees it, “five of seven justices of the Supreme Court failed to properly understand the importance of constituency-based democracy”. He also faults the government’s lawyers “for not making the case adequately either”, “and virtually all of the commentary” on Frank, including presumably my comment, for ignoring the issue. Yet in his view, it ought to have been a decisive consideration:

[W]e vote for local representatives. We don’t vote for parties, or party leaders, no matter what we may have in mind when we go into the ballot box – we mark the X for the local candidate, end of story. For an expat, it’s not the connection to Canada that should be at issue – it’s the connection to the riding, because that’s how we allocate our votes.

One might, of course, reproach the government lawyers for failing to emphasize this particular rationale for disenfranchising Canadians abroad. The Frank majority, even on this view, is blameless, because it wasn’t at liberty to sustain the disenfranchisement on the basis of a justification that the government did not even put forward. Section 1 of the Canadian Charter of Rights and Freedoms provides that limits on Charter rights, including the right to vote, must be “demonstrably justified” ― and as the Supreme Court has long held, it is the government that must carry out the demonstration. But there are other reasons, based in both what we might (loosely) call civics and feelings, as well as some realism about politics, that mean that, had the government chosen to make connection to the riding as the hill its case would die on, this case would be every bit as dead as it now is.


Start with the civics. Mr. Smith is quite right that, in point of law, we vote for local representatives, not for national parties or their leaders. Whether this ought to matter as much as he suggests, I will discuss below, when I turn to politics. But it’s important to consider a couple of other legal issues.

First, though there seems to be a good deal of confusion or even obfuscation on this point, the Canada Elections Act already takes care of the need for a connection between a Canadian voting from abroad (who may be a short-term expatriate, a long-term one previously allowed to vote, such as a diplomat’s family member, or a newly-enfranchised long-term expatriate). Paragraph 223(1)(e) provides that, when applying to be registered as an elector resident outside Canada and requesting to vote by special ballot, a would-be voter must provide the Canadian address to which his or her vote will be tied. Once the choice has been made, section 224 prevents the voter from changing it. This prevents forum shopping, as it were, and seems a sensible regulation.

Now, there is a range of options for the prospective voter from abroad to choose from:

the address of the elector’s last place of ordinary residence in Canada before he or she left Canada or the address of the place of ordinary residence in Canada of the spouse, the common-law partner or a relative of the elector, a relative of the elector’s spouse or common-law partner, a person in relation to whom the elector is a dependant or a person with whom the elector would live but for his or her residing temporarily outside Canada.

It has been put to me that the breadth of this range is excessive and gives the elector too much choice. If Parliament agrees, it can eliminate some superfluous options by legislation; this should not be constitutionally problematic. But I don’t think that Parliament should do this. On the contrary, giving the voter the ability to tie his or her vote to a former residence or a family member’s one makes it more likely that the elector will choose to vote at the particular place in Canada to which he or she is feels the strongest connection, which will not be the same for all expatriates, and which each voter is much better positioned to figure out when registering than Parliament when legislating.

Second, one must keep in mind that when it comes to voters in Canada, the law does not require any sort of evidence of a connection between the voter and his or her riding other than the fact that the voter resides there. Perhaps that’s because residence is simply deemed to be determinative of the community to which the voter belongs. But this seems a very rough assumption, especially in today’s urbanized world, in which many ridings are quite compact and the boundaries between them, fluid. A voter might be live in a bedroom community or a residential neighbourhood, but work in a downtown in a different riding, and perhaps have other attachments in yet a third one. It is, to say the least, not obvious which of these the voter is genuinely connected to. Residence, arguably, is only the most easily administrable way of sorting voters into ridings (both at the point of counting them through the census and at the point of registering them), simply because it tends to be more stable than other connections. As Chief Justice Wagner, writing for the Frank majority, put it, “residence can best be understood as an organizing mechanism for purposes of the right to vote”. [28] It is nothing more than that.


This brings me to what Mr. Smith might calls “feelings”. He and others who defend the disenfranchisement of Canadians abroad are very quick to demand that expatriates meet conditions that are not imposed on other Canadians to qualify for the franchise. Whether it be some subjective connection to a riding or to Canada as a whole, or knowledge about the local state of affairs, or tax liability, or subjection some undefined but substantial number laws, not all residents will meet these conditions that are said to justify denying the franchise to expatriates. But no one thinks to inquire into whether they really do, and no one, I’m pretty sure, would accept (re-)introducing tests of this nature into our election laws. Expatriates are the only people whom people judge on such criteria.

Indeed, it is not so much a judgment as prejudice. Expatriates are simply assumed to fail such tests ― and arguments to the contrary are dismissed as “feelings”. Mr. Smith guesses that Canadians who live abroad cut themselves off from communities where they used to live, or have family, or intend to return (or all of these things). Why? My personal experience, for what that’s worth, is that I keep up with the news from Québec and Montreal (and occasionally write on Québec-specific issues), more than from other provinces. Do I specifically track the news for Notre-Dame-de-Grâce-Westmount, where my parents live and I will vote in October, if I can be bothered? Not particularly, but then again, I wouldn’t even if I actually lived there. To say that I’m not a suitable voter for this reason would be applying a groundless double standard.

And speaking of double standards (and, I suppose, of civics), it’s worth noting that pursuant to section 222 of the Canada Elections Act some long-term expatriates are already allowed to vote: namely, members and employees of the Canadian forces, federal provincial public servants, employees of “international organization[s] of which Canada is a member and to which Canada contributes, as well as anyone who “lives with” such voters. The rationale for this is, presumably, that all such persons ― not just public servants, mind you, but their family members too ― are deemed to maintain a connection with Canada that other expatriates lack. Yet even assuming that this is so, is it remotely plausible that such persons (who, if anything, probably tend to be more mobile than the average voter even when they live in Canada) maintain their special connections to their home ridings? I really don’t think this is plausible, and so, the invocation of the riding connection as a justification for disenfranchising some, but not all, expatriates is another sort of unwarranted double standard.


Let me finally turn to politics ― and, specifically, to the need to be realistic about it. If we want to understand the rules of elections and government formation in Canada, we must keep in mind that each voter only casts a ballot for a local representative, not (directly) for a party or Prime Minister. But if we want to figure out whether Parliament is justified in preventing a person or a class of persons from voting, I don’t think it makes sense to pretend, as Mr. Smith asks us to, that this is all that matters. The reality, as he more or less acknowledges, is that what we “have in mind when we go into the ballot box” ― or at least the voting booth, for the less acrobatic among us ― very much has to do with parties and, especially, their leaders, for most voters.

Political parties themselves know this. The big ones tried to prevent to keep the small ones from getting their names on ballot papers, until the Supreme Court wisely put an end to that in Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, because candidates not identified with parties get fewer votes. They give pride of place to party names, logos, slogans, and leaders in their advertisements. They make sure their MPs have lookalike websites in party colours. Local candidates are often little more than props for a leader’s tour. I’m too lazy to look for the relevant research (if it exists) right now, but as a not-so-wild guess, I’m inclined to think that many voters don’t even remember the name of their local candidate when they go vote. This may be regrettable, but the parties themselves have ensured that it doesn’t matter; what does matter is the party identification on the ballot paper.

One key reason for this is that election campaigns are largely national events, not local ones. (By way of thought experiment, imagine we didn’t hold simultaneous general elections, but renewed the House of Commons with staggered elections, one riding at a time. Our politics may well be quite different ― and more local. But of course we don’t do that.) The centrality of leaders’ personalities to election campaigns makes this unavoidable, and an even starker phenomenon than in the past. But even to the (limited) extent that voters are preoccupied with actual issues rather than personalities, the issues are largely national in scope. This is perhaps especially the case in federal elections, since Parliament’s powers are, by design, largely those that concern the country as a whole. Admittedly Parliament doesn’t always keep to its jurisdiction. Even when it does, Justice Rowe points out in his concurring reasons that “federal policy can impact different geographically defined communities in different ways”. [89] Still, federal elections aren’t about the quality of your local school or the regularity of garbage removal from your street. Most voters, especially in federal elections, just aren’t especially concerned with riding-level matters. To say that expatriates, and only expatriates, ought to be disenfranchised because they aren’t is, once again, to apply an unwarranted double standard.


The existing law already ensures that Canadians voting from abroad cast their ballots in the ridings to which they have the strongest connections. At the same time, it does not require the existence of a very meaningful connection between any voters, including those resident in Canada, and their ridings. The idea that expatriates should be prevented from voting because they lack such a connection is thus a double standard. Moreover, Canadian elections, especially federal ones, aren’t local affairs anyway. For all these reasons, had the government argued that Parliament was entitled to deny expatriates the franchise because of their supposed detachment from the ridings in which their votes would be counted, it would have fared no better than it actually did in Frank.

Romancing the Law

An ode to formalism and reflections on Runnymede’s Law and Freedom Conference

I had the pleasure of attending last weekend’s Runnymede Society conference in Toronto. As always, the conference was a welcome opportunity to meet with old friends and new, and to reflect on a number of pertinent issues in Canadian law.

Perhaps because of my own research interests in the last year, I was particularly interested in a theme that seemed to run throughout the conference: the degree of confidence that each of us has in law, particularly the statutory law. Justice Stratas’ talk with Asher Honickman highlighted that there are many in the legal community that, if not giving up on law, are questioning its relevance in a society that is now defined by greater calls for context, nuance, individualized application, and discretion.  The virtues of rules—the creation of economies of scale, the structuring of norms and expectations according to positive orders, the costs saved at the ex post application stage—are apparently counterweighed by the potential for overbroad application, rank injustice, and otherwise discriminatory treatment.

The degree to which we are worried about these vices, or encouraged by these virtues, is probably a function of our belief in legislatures and their work product. Even if legislatures do not get things “right,” there are good reasons to believe that what the legislature does is owed a wide degree of respect–because of the value of legislative compromises, the “finely-wrought” legislative procedure, and the representative nature of the legislature . Nowadays, though, a commitment to the law passed by the legislature is labelled pejoratively as “formalist.” In administrative law, offshoots of this belief are characterized, dismissively and without analysis, as “Diceyan” or an unwelcome throwback to the days of “ultra vires” (take a look at the oral argument in the Bell/NFL & Vavilov cases for many examples of this).  In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

The consequences of this argument-by-label should not be understated. Take the case of statutory interpretation. The Supreme Court of Canada tells us that we should interpret statutes purposively, but at the same time, that the text will play a dominant role in the process when it is clear (Canada Trustco, at para 10). This implies that purposes, while helpful to the interpretive process, should not dominate where the text is clearly pointing in another direction.

But a focus on statutory text—especially the contention that text can ever be clear—is often derided as inconsistent with the contingent and “ambiguous” nature of language. So the argument goes, text can never truly be “clear,” and so textualism falls away. But whether the text of a statute will contain answers to an interpretive difficulty is, in part, a function of the judge’s belief in the coherence and determinacy of law—in other words, her appreciation of the point at which “law runs out”. A judge inclined to believe that the tools of statutory interpretation can be used to come to a defensible answer on a matter will commit herself to that task, and will probably not consider legislative language “ambiguous” in its purposive context. For her, law will maybe never run out, or if it does, it will only do so in the extreme case of true ambiguity, where no discernible meaning cognizable to human understanding could be appreciated. A judge less committed to the determinacy of law will be more willing to introduce extraneous materials—legislative history, Charter values—in order to come to a meaning that makes sense to her. For her, the law may “run out” quite early. The risk here, of course, is the enlargement of the scope for judicial discretion. For those who believe in the general soundness of statutory law, this creates the potential for conflict with the generally-elected representative body.

This is not a hypothetical problem. In the United States, Chevron administrative law deference rests on the judge’s appreciation of statutory language. At step 1, courts are asked to apply the ordinary tools of statutory interpretation to determine if Congress spoke clearly on a particular matter. If so, that meaning binds the agency. If not, at step 2, if there is ambiguity in a statute, courts defer to a reasonable agency interpretation. As Justice Scalia said, a judge committed to the text at step 1 will rarely need to move to step 2. In this way, there would be less scope for agencies to exercise virtually unreviewable discretion. Those who believe that law runs out earlier will, ceterus paribus, be more willing to allow multiple decision-makers to come to very different decisions on a matter so long as those decisions are roughly justified by a statute.

The various points on the spectrum of “giving up on law” will be the product of many factors, including factors particular to cases before courts. But at some level, a belief that text can, or should, contain answers seems to undergird the entire process of determining the meaning of a statute. I think there are good reasons to hold the belief that what the legislature produces is generally sound for reasons that are particular to the legislative process and the law in question. To my mind, judges should be wary of letting text “run out,” in part because of what replaces it; more abstract, generally less clear “second-tier” sources of legislative meaning (Note: sometimes text will be truly unclear, and a statutory purpose can be clearly gleaned from the text. Our law sees no problem with this, and neither do I).

This is not to presuppose that legislatures always make sense in their enactments. The process of making law is not designed to be a perfect application of human rationality or even of expertise. Legislatures sometimes don’t make sense. But there are good reasons to respect the legislative process. Importantly, seemingly non-sensical legislative compromises, run through readings in Parliament and the committee process, are sometimes the product of concessions to minority groups, represented through their Members of Parliament. These legislative compromises are sometimes essential, and should be respected even if they do not make sense. Judge Easterbrook puts it well: “If this [an outcome of statutory interpretation] is unprincipled, it is the way of compromise. Law is a vector rather than an arrow. Especially when you see the hand of interest groups.”

If the legislative process is imperfect, so is the process of statutory interpretation. Statutory interpretation will not always yield easy answers, or even the ex ante “correct” answer. The tools of statutory interpretation are often contradictory, some say outmoded, and sometimes unwieldly. But as Judge Posner said in his book Reflections on Judging, the tools of statutory interpretation are designed to impose meaning. Used authentically and faithfully, with a concomitant belief in the legitimacy of the law passed by the legislature, they help courts come to a defensible conclusion on the meaning of a provision; one that is consonant with the universe of laws in the statute book, with the particular statute’s larger purposes, and the immediate context of a statute.

It worries me that some no longer belief in this process—in the formal quality of law as law, in the idea that when the legislature speaks, it does so for a reason. Similarly, I worry that the invitation for judges to rely on values and principles extraneous to a statute—for example, Charter values, legislative history, etc—to impose a meaning on a statute is based on wrongheaded idea that judicial discretion is somehow absolutely better than legislative power. I, for one, think that we should expect judges in a constitutional democracy to believe in the law passed by the legislature. This is not judicial acquiescence, but there is perhaps a value to formalism. Parliament, to be sure, does not always get everything right. But there is a benefit to formalism: the way in which Parliament passes laws is subject to a formal process, interposed with legislative study. The way we elect our leaders and the way Parliament operates is, in a way, formal. The law it creates should be owed respect by those sworn to uphold it.

The debate over rules versus standards or discretion is one that is rife throughout history. But presupposing the debate, I always thought, was a belief in law itself. For those of us at Runnymede this weekend, we were invited to question whether that belief exists any longer.

Doré Adrift

Why the Supreme Court’s approach to the Charter in the context of administrative law fails to live up to its promises

When Dunsmuir came out, I was in the middle of taking administrative law in law school.  Our class had spent hours learning about “patent unreasonableness”.  But when Dunsmuir abolished it, the professor was faced with a dilemma for the exam: forget patent unreasonableness or pretend that Dunsmuir never happened?

While our professor chose the latter, I imagine admin law professors hope the recent reconsideration of Dunsmuir cases in Bell/Vavilov/NFL (the “trilogy”) will be not be decided during the semester.  While Dunsmuir itself appears to have had a shelf life of about a decade, Doré v Barreau du Quebec, 2012 SCC 12 is approaching the seven year itch. Doré, of course, changed how Courts decide whether government actors violate the Charter. Doré seems safe for now, even as the amici curiae in the trilogy wish to rework it.  But given the lack of longevity to administrative law decisions and its many critics, there is an increasing sense that Doré could (or should) soon belong to the growing graveyard of administrative law jurisprudence.

But offering a eulogy would be premature.  Instead, enough time has passed to conclude that, thus far, Doré and its progeny have disappointed based on the very implicit promises and rationale contained in Doré itself.

Doré’s Path

As many readers are aware, the 2012 decision in Doré abandoned Oakes formal multi-stage proportionality test for assessing whether government action and actors (i.e., tribunals and other government delegates) comply with the Charter.  The Oakes test was the test used by the Supreme Court between the 1989 decision in Slaight and Multani in 2006.  Doré has since been followed by the Court in Loyola (2015) and the twin TWU decisions (2018). Oakes still applies to reviewing the constitutionality of legislation.

Under an Oakes review, a Court first assesses whether a government decision limited the Charter in the first place.  If so, it moves to the second step where the state has the onus to prove:

  • the government’s objective is pressing and substantial;
  • the decision is rationally connected to the objective(s);
  • the decision minimally impairs the affected rights; and
  • there is proportionality between the decision’s benefits and harmful effects. 

For all of Oakesshortcomings, it was applied rather rigorously in the recent Canadian citizenship case and has been hailed by the UK Supreme Court as the “clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning”.

Doré explicitly abandoned Oakes’ formal two-step approach in favour of a global assessment of whether:

“given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (para. 57).   

This loosely structured test is Doré’s “administrative law” approach to judicially reviewing government action.  Whereas the state has the onus to justify itself at each stage of Oakes, everything is “put on the scales” at once under Doré’s “more flexible” approach (paras. 36-37). 

Doré brought “Dunsmuir deference” to decision-makers’ decisions on Charter issues (paras. 36, 54-56; TWU, para. 79).  According to Dunsmuir, deference in judicially reviewing government action means that “courts will give due consideration to the determinations of decision makers” (para. 49) in deciding whether a decision “falls within a range of possible, acceptable outcomes” on a standard of reasonableness (para. 47).  In other words, a court will defer to a decision maker unless their decision is shown to be unreasonable and outside this acceptable range.  The alternative standard, correctness, means a court will take its own independent analysis of a decision, as it does with an Oakes review, and substitute its own view.

Doré’s Promises

Doré offered rationale and a number of promises to justify the break from Oakes.  This is a scorecard of how they have subsequently turned out:

1.The Expertise of Decision-makers.  The rationale in Doré for deferring to decision-makers on Charter issues is that, by virtue of their “expertise and specialization”, they will “generally” be in the best position to consider the Charteron the specific facts of the case” (paras. 47, 54; TWU, para. 79 (“typically”).  This suggests that some decisions don’t deserve deference. But this doesn’t appear to have held true.

One may have thought that the facts in TWU would challenge the supposed “distinct advantage that administrative bodies have in applying the Charter” (Doré, para. 48).  That is because in TWU, the administrative body applying the Charter, the Law Society of BC (“LSBC”), made its decision to bar TWU graduates from practicing law solely because of a popular vote of its membership.  This membership is what Chief Justice Bauman of the BC Court of Appeal facetiously referred to in oral argument as “the largest tribunal in British Columbia”.  While this decision was under judicial review, the LSBC itself conceded in its written submissions and in oral argument before the BCCA that the membership effectively made the decision.  Indeed, the referendum itself said the membership’s decision “will be binding and will be implemented by the Benchers”.  The lower courts unsurprisingly found this to be fettering by the LSBC “abdicating” its statutory duties. 

On this factual background, the dissenters in TWU, Justices Brown and Côté, sensibly stated that the “LSBC membership could never, through means of a referendum, engage in the balancing process required by Doré” (para. 298). However, the majority of the Supreme Court were forced to downplay the membership vote as being mere “guidance or support” (para. 50) in order to defer to LSBC’s “institutional expertise” (para. 50) and by extension the rationale for deference in Doré

But what kind of expertise did the majority require of the LSBC to justify any deference to it?  Surprisingly, the majority said the LSBC only had to be “alive to the [Charter] issues” (paras. 51-56).  Being “alive” suggests, perhaps, that deference is deserved for decision-makers who don’t drop dead before rendering a decision.

In assessing the rationale for deference in Doré, one must critically consider: what “expertise” and “specialization” did the membership of the LSBC bring?  Or the Benchers, who merely adopted the membership’s will?  Remarkably, the majority in TWU still deferred to the LSBC in spite of the LSBC urging the Supreme Court of Canada not to defer to them and apply a correctness standard instead.

In sum, when the rationale for deference is absent – expertise, specialization, and proximity of the facts to the Charter – deference still apparently applies in a Doré review.  It may be time to reconsider this.

2.Doctrinal Coherence.  One justification for discarding the Oakes framework established in Slaight was that Doré would lay down a new, solid legal foundation on which to construct coherent doctrine (paras. 35-39).  Doré itself said its administrative law approach was employed in cases such as Baker and TWU (2001).

If Doré’s goal was “to start from ground zero in building coherence in public law”, as the decision itself suggested (para. 34), the commentary on Doré cast significant doubt on its methodology and doctrine (calling E.T. v. Hamilton-Wentworth District School Board and Justice Stratas).  Almost seven years later, we still don’t know the basics about applying Doré in practice.  The majority of the Court has remained silent on a litany of criticisms of Doré (see point #4 below) – including ones made by members of the Court itself – having to do with the distinction between Charter values and Charter rights, the absence of the “prescribed by law” requirement in s. 1 of the Charter, and the identification of who bears the onus to prove proportionality under Doré.  (an interesting fact is that the Attorney General of Canada argued in the lower level courts in BC that the LSBC decision could not pass the “prescribed by law” requirement).

And while Doré suggests a court defer to a decision-maker’s own identification of the relevant statutory objective against the Charter (paras. 55-57), that approach was not followed in Loyola and TWU.  This departure has never been explained. The lack of clarity and consistency that Doré was supposed to remedy have caused new frustrations for lawyers and judges alike (again, see #4 below). 

I will add two thoughts.  First, a Doré review seems doctrinally flawed that a Court would defer to the state on whether the state has properly balanced the relevant Charter protections.  Why should the state get the first crack in deciding whether its own actions violate the Charter?  This deference gives the state a distinct advantage over Canadians whose rights are limited by effectively putting the onus on applicants to prove why the state is not owed deference (i.e., why it did not balance the Charter properly). This effectively reverses the onus in Oakes and deprives the Charter of its overarching purpose as a shield against the state. 

One wonders whether there is a principled limit to this reasoning.  If a government delegate is accorded deference to their decision, because of their “expertise and specialization” and familiarity with the Charter (Doré, para. 47), why should this not, in principle, extend to discretionary decisions of other government actors with expertise and specialization such as police officers or border agents whose actions are currently reviewed according to objective tests?  What is the principled reason that they are not afforded deference when the Court decides whether a detention violates s. 9 of the Charter, or their search engages s. 8 of the Charter, which protects against “unreasonable” searches? 

If the scenario seems absurd, consider that courts in BC have directly reviewed police decisions in issuing roadside prohibitions under Dunsmuir deference (!!).  If a Charter issue arose in such a case, “Doré deference” to the police officer’s decision would presumably apply.  In this way, Doré review could potentially erode Charter protections in contexts likely not anticipated by Doré.

Second, taking that dichotomy further, if legislative decisions by decision-makers are reviewed for Charter compliance under the test in Doré, as suggested by the majority in TWU (i.e., the LSBC benchers) (para. 54), what is the principled reason for utilizing Oakes, and not Doré, to review the constitutionality of legislation? 

If the answer is that rules of general application like legislation and regulations should be assessed under the more stringent Oakes standard, this has problematic consequences for the way government operates. The existence of Doré review for government actions means the government has an incentive to structure their power to confer broad discretion to govern opaquely by action, not regulations, so that those actions are reviewed under the deferential Doré review, rather than with the more stringent justification demanded by Oakes.  In other words, the mere existence of a Doré review provides an incentive for the state to provide its actors with Doré deference rather than an Oakes review (e.g., direct judicial review of the police issuing roadside prohibitions).

The different levels of Charter protection Canadians have against government actors means there is a hierarchy of rights protection depending on the identity of the state actor.  It also means there are increasing ways for the state to exploit that hierarchy as there is little incentive for the state to govern transparently or decision-makers to provide reasons when it can deferentially operate under an administrative apparatus free from an Oakes review.

3.An administrative law approach to the Charter should prevail.  This was the main promise of Doré: that Courts “embrace a richer conception of administrative law” by allowing a flexible approach that would be “nurtured” by the Charter (paras. 27-29, 37, 47).

Doré itself was criticised for failing to apply administrative law to critically engage in the reasons of the decision-maker. In Loyola, the Court moved back towards Oakes. It clarified that the Doré test incorporated the minimal impairment test (paras. 4, 41).  In practice, however, the government in Loyola failed the pressing and substantial/rational connection stages in Oakes (without referring to Oakes) in concluding that the decision failed to advance the ERC Program’s objectives in any significant way (paras. 6, 68, 148, 159).   The majority of the Court mystifyingly ignored applying Doré altogether in Saguenay, Justice Counsel, and Ktunaxa.

In TWU, and without citing a single case on the concept, the majority appeared to undermine the well-settled administrative law prohibition of fettering to achieve its result.  The administrative law professor must wonder: what does fettering mean anymore in light of TWU? (If you are one such professor, I would be keen to hear your thoughts). On the other hand, the majority in TWU borrowed from some of its recent administrative law decisions, while ignoring others, to justify the LSBC’s failure to provide reasons and provide post-facto justifications for its decision. 

And as noted by Mark Mancini, the simplicity of Doré was complicated by the subsequent decisions in Loyola, Ktunaxa,and TWU by introducing the threshold question of Oakes as to whether the Charter is limited in the first place. While this is a welcome development, the return of the two stage limitation/justification assessment is another shift toward Oakes (Doré, para. 29).

If practice makes perfect, the applications (or lack thereof) of Doré in Loyola, Saguenay, and TWU are underwhelming in terms of modelling an approach to judges and lawyers that infuses administrative law principles into its decisions.  The more Doré is applied, the more it is applied in a complicated manner.  The touted “flexibility” of Doré can be used to incorporate administrative law in theory, but it can also legitimize judicial preferences in practice.

4.Using Oakes for Administrative Law was Consistently CriticizedDoré justified abandoning Oakes because a few academics were “concerned” by Slaight, and academics were allegedly “consistently critical” of Multani, the last SCC decision that applied Oakes (paras. 27, 33-34). 

By comparison to Multani, Doré’s critics are legion.  In a similar six year time period, Doré has sustained an avalanche of academic criticism easily eclipsing Multani’s use of Oakes. Doré was mentioned unfavourably more than any other Supreme Court of Canada decision in Double Aspect’s “Twelve Days of Christmas” symposium (here, here, here, and here).  Doré been the subject of surprisingly candid criticism from appellate court judges.  In the twin TWU cases, four justices expressed concerns with Doré in response to TWU’s calls to fix Doré.  Justices Brown and Côté offered the stinging criticism that Doré “betrays the promise of our Constitution” (para. 266). 

To use a football analogy, will the Court continue to call seemingly ineffective passing plays when the crowd is screaming for them to run the ball?  Perhaps not, but with each passing decision of the Court, Doré’s critics are growing louder.

Conclusion

Judged on its own terms, Doré is struggling to achieve its vision.  This vision, however, comes at a cost to ordinary Canadians whose rights may be limited.  Given the never-ending construction project that is administrative law in Canada, practitioners “are placed in an impossible situation”.  The lack of clarity, varying simplicity, and unpredictability in a Doré review means lawyers are unable to effectively advise clients because they must speculate as to the possible outcome. Clients are left with uncertainty. If Doré stays on life-support, one wonders: who is being served by keeping Doré alive?

Maryniuk on Doré

The Supreme Court’s decision in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 continues to be one of its most consistently criticized. It was, for instance, one of the most frequently mentioned as being among the Court’s worst by the participants in our recent 12 Days of Christmas symposium. Even more recently, Doré and the concept of “Charter values” as the touchstone of judicial review of administrative decisions implicating the Canadian Charter of Rights and Freedoms was the subject of a fascinating discussion between Justices Lauwers and Sossin, expertly moderated by co-blogger Mark Mancini, at this weekend’s Runnymede Conference.

So it is a real pleasure for me to announce that we are shortly going to publish a guest post on Doré by Jonathan Maryniuk, a lawyer with Kuhn LLP who, among other things, represented Trinity Western University in its challenge the denial of accreditation to their proposed law school before the courts in British Columbia and the Supreme Court. This has, of course, given Mr. Maryniuk an opportunity to reflect a great deal on the Doré approach, which was crucial in that litigation, and I am very much looking forward to his sharing his insights with us.