Listening to Podcasts Like a State

The CRTC wants to know about podcasts. Beware!

If you are in the podcasting business (as indeed this blog occasionally is), the Canadian government wants to know about you. It hasn’t yet decided what to do about you, to be sure. Fear not, it will, in its own good time. But, while the full implications for the freedom of expression will only become clear once it does make up its mind, it is not to soon to be (re-)learning some lessons about the administrative state.

Michael Geist (among others) has explained what is afoot: in late September,

The CRTC [i.e. Canadian Radio-television and Telecommunications Commission] … released the first two of what is likely to become at least a dozen decisions involving the Online Streaming Act (aka Bill C-11). The decision … involves mandatory registration rules for audio and visual services that include far more than the large streaming services.

Podcasts are “audio services” within the meaning of the legislation. Ostensibly, only those services with more than 10,000,000$ of Canadian revenues are required to register, which includes few podcasts (and definitely not ours, which produces no revenues at all). But of course things are not so simple. Individual podcasts won’t be required to report to the CRTC, but the platforms on which they are hosted will.

Why is that? The CRTC helpfully explains, and is worth quoting at length:

There are a variety of podcasts that can provide a wide range of content relating to information, opinion and entertainment. Without information about online undertakings that transmit or retransmit podcasts, it would be more difficult for the Commission to ensure the achievement of the objectives of subparagraph 3(1)(i)(iv) of the Broadcasting Act, which relate to, among other things, providing a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and of subparagraph 3(1)(i)(i), pursuant to which the programming provided by the Canadian broadcasting system should be varied and comprehensive, providing a balance of information, enlightenment and entertainment for people of all ages, interests and tastes.

Given that podcasts constitute a quickly evolving type of content that is consumed by Canadians, the registration of online undertakings that transmit or retransmit podcasts over the Internet and that are subject to the Broadcasting Act would assist the Commission in improving its understanding of that type of content in order to ensure that the broadcasting system is working to achieve the identified objectives of the Broadcasting Act. [223-24]

Simply put, the CRTC doesn’t have the foggiest clue what is going on, but it sure as hell knows that, whatever is going on, it has got to regulate it. And so it better find out what’s up.

This brings to mind James C. Scott’s Seeing Like a State. The editors of a Cato Unbound symposium on it, on which I draw in what follows, summarise it as follows:

States can only exert their power on what they can know about. Knowing requires measuring, systematizing, and simplifying. It requires, in other words, missing out on a lot of particular local data. Strategies of resistance to state power often take these gaps as their starting point, and problems with state rule often begin here as well. The state itself to a high degree may be said to run on legibility — the ability to know what’s really going on in a governed population or territory. Legibility, however, is in limited supply, and it comes at a cost. 

As Prof. Scott points out, forms of legibility that we now take for granted ― even such seemingly self-evident things as everyone having a last as well as a first name ― took considerable inventing, and imposing. But invented and imposed they were, because without them, the state was rather helpless.

It is both striking and important to recognize how relatively little the pre-modern state actually knew about the society over which it presided. State officials had only the most tenuous idea of the population under their jurisdiction, its movements, its real property, wealth, crop yields, and so forth. … Having little synoptic, aggregate intelligence about the manpower and resources available to it, officials were apt either to overreach in their exactions, touching off flight or revolt, or to fail to mobilize the resources that were, in fact, available. To follow the process of state-making, then, is to follow the conquest of illegibility.

The CRTC’s admission of its ignorance and demand for information echo these points. John Perry Barlow had a point, after all, when he taunted “Governments of the Industrial World, you weary giants of flesh and steel … from Cyberspace, the new home of Mind.” On behalf of the inhabitants of this new home, he insisted that governments “do not know us, nor do you know our world”. The CRTC is saying, “damn right we don’t ― but damn right we will”. Its relationship with cyberspace has been pre-modern, but not anymore. It will colonize cyberspace, and to do so it will learn to see it, and to listen to it, like a state.

Note that this sort of thing entirely undermines the expertise justification for administrative power. Scholars who support the administrative state and insist that legislatures should delegate vast powers to it, while courts must defer to its decisions, including when those affect constitutional rights or purport to say what the law is, tend to justify these violations of the separation of powers by pointing to administrative expertise. As, for example, Matthew Lewans writes in Administrative Law and Judicial Deference ” we cannot hope to address [the] issues” facing modern societies “intelligently without harnessing the experience, expertise, and efficiency the modern administrative state provides.” (187) As Professor Scott points out ― and as the CRTC demonstrates ― the experience and expertise of the modern administrative state are manufactured.

They are also incomplete to the point of being quite fake ― and dangerously so. Consider one of the examples Prof. Scott uses in his contribution to the Cato symposium. He describes “the invention of scientific forestry in 18th-century Prussia and Saxony”. In the process,

 … the forests were reconceptualized as streams of salable commodities, above all so many thousands of board feet of timber and so many cords of wood fetching a certain price. … Missing were all those trees, bushes, and plants holding little or no potential for crown revenue. Missing as well were all those parts of trees, even revenue-bearing trees, which might have been of great use to the population but whose value could not easily be converted into fiscal receipts. … From a naturalist’s perspective, nearly everything was missing from the state’s narrow frame of reference. Gone was the vast majority of flora … Gone were most species of fauna, except for the large game integral to the aristocratic hunt. The utilitarian state could, quite literally, not see the real existing forest for the (commercial) trees. 

But the state did not stop at rethinking: it proceeded to remake. It made the

 attempt to create through careful seeding, planting and cutting, a redesigned forest that was easier to count, manipulate, measure, and assess. Thus was born the modern, “production” forest: a mono-cropped (Norway spruce or Scotch pine), same-age, timber-farm planted in straight rows. The very uniformity of the forest vastly simplified its management and exploitation. … Redesigning the forest as a “one-commodity machine,” however, had, in the long run, catastrophic consequences for forest health and production. The mono-cropped, same-age forest was far more vulnerable to disease, blight, and storm damage.

A little knowledge is a dangerous thing, and Prof. Scott’s shows that the state only ever has a little knowledge. This is a similar point to Hayek’s, but Prof. Scott’s reasons are different (and complementary). While Hayek emphasized the inherent unavailability to the state of information about rapidly-changing individual needs and desires, Prof. Scott points to the inevitable simplification and deliberate sidelining if not destruction of information that must occur for the state to “see” anything. Either way, it is dangerous for the state to presume that it knows enough to start not only understanding the world around it but also to improve it. In the attempt to improve, it will often destroy.

In fairness, there are occasions when the state’s gaze has its uses ― perhaps even its benefits. For example, Prof. Scott notes that “[t]he opacity of local society was, of course, actively maintained by local elites as one effective means of resistance to intrusions from above”. It seems plausible that, at least in some cases, oppression by these local elites may have been worse than whatever form of governance the modern state substituted for it. It is also frequently the case that, however simplified they may be, and sometimes precisely because they are simplified, centralized ways of seeing things reduce transaction costs (both in a literal sense and in a broader one too, as in Prof. Scott’s opening example of a unified road numbering system making it easier for emergency services to reach the scene of an accident). Then again, as some of the contributors to the Cato symposium note, such co-ordination devices may well emerge without the state’s coercive direction. (The modern English language, trimmed down and bastardized from its Old English origins to serve the needs of the various ethnic and linguistic groups co-habiting Britain would be a good example of this.) All this is the subject of a good deal of interesting discussion in the Cato symposium, but there is no need for me to summarize that here.

Whatever good seeing like a state may sometimes do, there is no real case that it is beneficial or even useful when it comes to, of all things, podcasts. There are no local elites exerting a droit du seigneur on hapless podcasters, and the transaction costs one most incur in order “to be exposed to the expression of differing views on matters of public concern” or “a balance of information, enlightenment and entertainment for people of all ages, interests and tastes” are very close to nil. The CRTC’s endeavour to learn about podcasting is nothing more than a colonialist enterprise intended to do nothing more than expand its empire. As Jen Gerson has noted in The Line, what begins as seemingly benign information-gather will become the conduit through which podcasts of any size can be regulated ― potentially out of existence.

It’s Nonsense But It Works

The Supreme Court’s latest administrative law decision is welcome, but it too is unsound in principle

Yesterday, the Supreme Court decided Mason v Canada (Citizenship and Immigration), 2023 SCC 21, which could turn out to be an important administrative law decision ― though my past assessment of how important administrative law cases are likely to be have often been badly wrong. Mason is noteworthy for being, in some ways, a resounding confirmation of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, and in some a clarification of that decision, potentially resolving some of the tensions latent in it in favour of robust judicial review of administrative decisions. At the same time, Mason provides yet another illustration of Vavilov‘s unsoundness in principle, even as it makes a commendable effort at making it work in practice.

At issue in Mason is s 34(1)(e) of the Immigration and Refugee Protection Act (IRPA), which makes non-citizens “inadmissible” to Canada ― or, as here, liable to be expelled if already present in Canada ― “on security grounds for …  engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. Specifically, the question is whether the acts of violence in question had to be connected to “the security of Canada” as a nation, or whether ordinary, albeit perhaps relatively serious, violence that endangers individual Canadians but not the country would suffice. While at first glance the statutory text seems broad, this provision is only one of several that deal with inadmissibility, including inadmissibility on the grounds of “serious criminality” and “criminality” tout court. The latter two require criminal conviction; s 34(1)(e) does not. There are also differences in the recourses available to people declared inadmissible under different provisions, including in that people found to be inadmissible under s 34(1)(e), unlike those inadmissible on grounds even of “serious criminality”, are unable to seek relief on “humanitarian and compassionate” grounds.

The Immigration Appeal Division of the Immigration and Refugee Board considered that s 34(1)(e) can apply to any acts of violence, regardless of any connection to national security. The Federal Court disagreed and set its decision aside, but gave the government permission to appeal by certifying a “serious question of general importance”, as permitted by the IRPA. The Federal Court of Appeal restored the Appeal Division’s decision, holding that, while not explicit on certain points, it was not unreasonable.

Before getting to the substance of the case, the Supreme Court must decide on the standard of review. Generally, under Vavilov, when administrative decision-makers like the Appeal Division interpret legislation, they are entitled to deference, and the reviewing court will only ask if they have sufficiently justified their interpretation to make it reasonable. But this is only a presumption, which can be rebutted if the legislation signals that the reviewing court should impose its own view of the legislation or, even in the absence of such a signal, if, among other things, the case presents a “general question of law of central importance to the legal system as a whole”. Is, then, the certified question mechanism either a legislative signal for correctness review or an indication that a question that has been certified is one of central importance?

The Supreme Court splits on this issue. The majority, in reasons by Justice Jamal, says “no”. It says that precedent supports reasonableness review even when the Federal Court has certified a question and that, important though it may be for the individuals to whom the provision might be applied, the interpretation of s 34(1)(e) is not of central importance to the legal system as a whole, notably because it only matters within the context of the administration of the IRPA. The majority also points out that no certified question exists until the Federal Court gives judgment on a judicial review application, which means that it would, logically, have no reason or even opportunity to apply correctness review in a case that, as it ultimately turns out, will eventually present such a question.

For her part, Justice Côté, who concurs in the result and, on most other points, in Justice Jamal’s reasoning, thinks that certified questions should be reviewed for correctness. The precedents are not nearly as unequivocal as the majority suggests. More importantly, the certification mechanism is a signal that Parliament wanted the courts to be clarifying the meaning of the Immigration and Refugee Protection Act, instead of leaving it to administrative decision-makers; indeed, the certification of questions would be pointless if they did not have to be definitively answered by the Federal Court of Appeal. This makes sense, moreover, in light of the fact that many provisions are subject to concurrent jurisdiction of different decision-makers in the immigration ecosystem. But the Rule of Law principle also requires correctness review. Justice Côté argues that because

[a] question whose answer turns on the unique facts of the case will not be certified … [b]y definition … certified questions concern issues of broad significance or general importance within Canada’s immigration and refugee protection regime. [160]

Correctness review is then in order. Moreover, when expulsion from Canada, possibly to persecution or even torture is at stake, nothing less than a correct legal interpretation can suffice to justify such action by the government and avoid arbitrariness that is antithetical to the Rule of Law.

Turning to the substantive issue, Justice Jamal begins by recapitulating ― at remarkable length ― Vavilov‘s instructions on conducting reasonableness review. He also reproves the Federal Court of Appeal for having suggested that a reviewing court should start with “a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before . . . examin[ing] the administrators’ reasons”. Justice Jamal worries that this is tantamount to the court “starting with its own perception of the merits”, which “may lead [it] to slip into correctness review”. [79] Justice Jamal summarizes the Appeal Division’s reasons, noting that they “applied several recognized techniques of statutory interpretation”. [84] However, he faults them for failure to address some key arguments.

First, it ignored the differences between the recourses available to people found inadmissible under s 34(1)(e) and other inadmissibility provisions, leading to a paradoxical situation where people who fall within the scope of the former on the basis of conduct that might have amounted to a crime for which they have, nonetheless, not been convicted are worse off than those actually convicted of that same crime and found inadmissible on the basis of that conviction. Justice Jamal writes that these considerations might not be “determinative” [91, 95] but failure to address them is a reviewable error, which could not be disregarded by inferring, as the Federal Court of Appeal did, that the Appeal Division considered them implicitly. Second, the Appeal Division did not sufficiently consider the potentially sweeping nature of its interpretation of s 34(1)(e). And third, it did not attend to “the legal constraints imposed by international law on its interpretation”. [104] The interpretation adopted by the Appeal Division could result in Canada expelling people who are not a danger to its security, in violation of its commitments under the Convention Relating to the Status of Refugees, to which IRPA explicitly points as a mandatory interpretive consideration. Justice Côté agrees with these points, emphasizing the significance of expulsion to the person affected.

Having concluded that the Appeal Division’s interpretation of s 34(1)(e) is unreasonable, Justice Jamal addresses the question of the remedy. Normally, deference means that the administrative decision-maker will be asked to interpret the statute anew, albeit drawing on the reviewing court’s guidance. But here, “[t]he relevant legal constraints cumulatively point overwhelmingly to only one reasonable interpretation of s 34(1)(e) — the provision requires a nexus to national security or the security of Canada”. [121]

Let me start with what I see as the positive aspects of this decision. As I have argued here and elsewhere, and as other said too, after Vavilov, there was a great deal of uncertainty about what its actual implications could be. While co-blogger Mark Mancini and I expressed some cautious optimism that it would lead to meaningful judicial review of administrative interpretations of law, it could also, quite plausibly, have been read with an emphasis on deference and judicial restraint, leading to continuing judicial abdication to the administrative state. As I noted at the time, this ambiguity, which was probably the product of compromise in the quest for a broad majority as much as of theoretical confusion, left Vavilov “open to future manipulation by courts that do not share its spirit or find it inconvenient in a given case”. In particular, of course, the danger was that, as the Supreme Court’s composition changed, the deferential reading of Vavilov would come to the fore. Mason suggests, to my mind at least, that this is not happening.

The Supreme Court is essentially unanimous in adopting an intrusive approach to reasonableness review, in which even a comparatively thought-through administrative decision is vulnerable to correction for failing to engage with relatively subtle issues raised by the applicable statutory scheme. The majority also doubles down on Vavilov‘s rejection of the earlier cases inclination to make up administrative reasons and defer to these judicial concoctions ― what I described as a court playing chess with itself and contriving to lose. I think it’s very ironic for the majority to reprove the Federal Court of Appeal for failing to follow this rule. The Court of Appeal’s decision was given by Justice Stratas, who penned the pre-Vavilov locus classicus on this exact point, writing in dissent in Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue), 2018 FCA 136: “My job is judicial review of the Minister, not judicial impersonation of the Minister. I do not work for the Minister. I am not the Minister’s adviser, thinker, or ghostwriter.” I do not suppose that Justice Stratas, of all people, has decided to take the job of ghostwriter for the Immigration Appeals Division. But, however uncalled for, the Mason majority’s criticism of him at least shows that the Supreme Court will not tolerate others doing so. The majority’s refusal to remit the case to the Appeal Division and its insistence that there is only one sensible reading of the statute also signal that courts should not pretend that they lack the wisdom to read legislation administered in the first instance by some bureaucrat.

All this is happening four years after Vavilov, with three members of the Vavilov majority gone from the Supreme Court. It is happening the agreement of Justice Karakatsanis who, along with the now-retired Justice Abella, attacked that majority for being insufficiently deferential. At the risk of being unduly optimistic, I will take this as a positive sign that the robust interpretation of Vavilov has legs and is likely to stand even as the turnover on the Supreme Court continues. It is probably not a coincidence that, like Vavilov, Mason is an immigration case. In decades past, too many leading administrative law cases featured friendly neighbourhood labour arbitrators solving annoying disputes between big business or big government and big labour. The more these cases are drawn, instead, from the immigration world, where the state red in tooth and claw is baring its fangs at the individual, the more we can hope for robust judicial review doctrine.

That said, Mason shows that, at the level of principle, this doctrine is as unsound as ever. It remains beset with the contradiction between the rhetoric of deference and the practice of robust review. This is illustrated, for instance, by Justice Jamal’s criticism of the Federal Court of Appeal’s “preliminary analysis” for the risk of slipping into correctness review ― combined with also criticizing the Court of Appeal for not conducting reasonableness review with enough vigour. Logically, the Court of Appeal wasn’t insufficiently and excessively deferential at once. The “preliminary analysis” it suggested is just the natural way a flesh-and-blood judge will approach judicial review, whatever the Supreme Court may say. Indeed, Justice Jamal himself begins by reciting the applicable statutory provisions. Are we to suppose he just copied them with no shade of reflection on what they might mean having entered his mind? Sorry, but I don’t believe this. But the posture of largely fake deference to the administrative state forces the Supreme Court into such implausible pronouncements.

More seriously, I’m inclined to think the majority is wrong to insist on deference in the context of certified questions under the IRPA. Justice Côté is right that the legislative scheme indicates that Parliament, for good reason, wanted the courts to sort out the legal issues arising out of IRPA’s interpretation, and that their failure to do so risks creating arbitrariness in high-stakes cases where it is utterly unacceptable from a Rule of Law standpoint. But Justice Côté’s reasons hint at a deeper problem with Canadian administrative law doctrine, which she does not address, and indeed might not see as a problem at all. Justice Côté writes:

[T]he risk of arbitrariness may be acceptable in the context of decisions regarding the extent of an income replacement indemnity during a temporary plant closure … or alleged violations of a provincial collective agreement … to use the two examples referred to in Vavilov … . It is not acceptable when the identity of the individual decision maker is what determines who is permitted to remain in Canada, as in these companion appeals, or in the context of other serious questions of general importance under the IRPA. [164]

But, even allowing, as one must, that the practical stakes of an immigration decision are much higher than many others ― indeed, they are as high as it gets in a legal system that does not impose the death penalty ― why exactly is arbitrariness tolerable in other contexts?

Questions of law ― at least pure questions of law whose answers, to quote Justice Côté, do not “turn[] on the unique facts of the case” ― are by definition of general importance insofar as laws, unlike commands directed at individuals, exist to apply to unknown numbers of unknown future cases. By definition, they have “broad significance or general importance” in whatever legal regime they arise in. On one point, Justice Jamal is actually right: the certified questions regime is, first and foremost, a leave to appeal mechanism rather than a way of distinguishing some special category of legal questions. But in a sound administrative law regime this would not have the consequences he says it does, which are wrongheaded for the reasons Justice Côté explains. (For that matter, even without moving to an entirely sound administrative law regime, progress could be made simply by reversing the fit of judicial madness that was Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, and holding that, in accordance with the Federal Courts Act, immigration decisions are reviewable for error of law on a correctness standard. This would eliminate the paradox of differing standards of review at the Federal Court and the Federal Court of Appeal when a question is certified.) Vavilov, with its misbegotten claim that questions of law need not be given unequivocal answers to comply with the Rule of Law, does not a sound administrative law regime ground.

Its unsoundness is, finally, further illustrated by the majority’s decision not to remit the case back to the Appeal Division because there is actually only one reasonable reading of the provision at issue. As I have written here,

I find it odd to say that reviewing courts must start from the position that “respect for [the] institutional design choices made by the legislature” in setting up administrative tribunals “requires a reviewing court to adopt a posture of restraint on review”, [Vavilov, 24] but then insist that respect for legislative choices also requires the courts to be vigilant in case these choices leave only one permissible interpretation. The view, endorsed in Dunsmuir, that deferential judicial review reflects the inherent vagueness of legal language, was empirically wrong (and indeed implausible, as I argued here), but coherent. The recognition in Vavilov that statutory language is sometimes precise and can have a definitive meaning is welcome, but it is logically incompatible with an insistence on deference and judicial restraint.

The conclusion that there is only one justifiable (and hence not only reasonable but also correct) reading of a statutory provision doesn’t need to come at the end of a big, but fake, show of deference. It should be the first thing a reviewing court decides, as part of its duty to say what the law is, and so of giving decisions that are definitionally of general importance.

I remain hopeful that one day, Canada’s administrative law will recognize these truths, even if it does not yet hold them to be self evident. But yesterday was not that day. The absurdity at the core of our law remains. But, at least, the law in action might just make more sense than the law on the books. The Supreme Court seems committed to playing a meaningful role in upholding the Rule of Law in the face of administrative overreach and to instructing other courts to do likewise. As the recent history of Canadian administrative law reminds us, this is no small blessing, and I am grateful for it.

Dissidents Need Not Apply

Ideological hiring in Canadian law schools

It is hiring season at many Canadian law schools, when they fill or expand their faculties’ ranks with rookie professors or, more rarely, newcomers from other schools. Usually (not always), hiring is restricted by seniority level and by area of research or teaching. Sometimes, hiring at Canadian law schools is explicitly restricted by demographic characteristic: it may be that only Indigenous applicants will be considered for some positions, or in other cases, that white men need not apply. This is supposed to make law schools more equitable and representative (though see Joseph Heath’s recent post at his In Due Course Substack on the limits of demographic representativeness as a metric for Canadian institutions).

But at some Canadian law schools, would-be academics must be meet another set of criteria: ideological ones. This is not a new phenomenon. For example, way back in 2018, the University of Victoria was publicizing its hiring with a tweet calling for candidates “passionate about social justice“. But I have been reminded of it once again by this tweet from a member of the hiring committee at Windsor Law:

And Windsor’s actual ad is pretty clear too. Immediately after listing the areas of interest to the school, it explains:

Windsor Law welcomes candidates who bring social justice and critical perspectives, including interdisciplinary, comparative approaches, intersectional, critical race, feminist and/or queer theory, to their research, teaching, and service.

Granted, this isn’t an explicit statement to the effect that people who do not bring “social justice and critical perspectives” are not welcome. But, even apart from the extrinsic evidence of Prof. Ceric’s tweet, the implication is unmistakable. It’s not as if people might be in doubt about whether “social justice” devotees would be considered for a job at a Canadian law school, and at Windsor of all places, to the point that they, and no one else, need to be reassured about this. On the contrary, if not an absolute requirement, then ideological acceptability is, at least, a major advantage.

Nor is Windsor alone. This year’s ad from the University of Toronto Law School “seek[s] candidates who value diversity and whose research, teaching, and service bear out a commitment to equity, diversity, and inclusion”, and requires applicants to “submit a brief statement of contributions to equity and diversity”. This is not just a generic “social justice”, but one specific (though very popular) pew in that ideological church. If you do not subscribe to what, for example, Yascha Mounk has described as the “identity synthesis” view on equity, diversity, and inclusion, or indeed if you simply devote your legal research to other matters, UofT will not even look at your application, which will be incomplete without the statement.

These ideological litmus tests are antithetical to the spirit of free inquiry and the pursuit of truth which define a research university. The point of a university is to expand and share human knowledge ― not to be the research arm of a political movement, no matter how righteous. We do not know in advance which way the data and the logic of our arguments will point; we might guess, of course, but we have to be open-minded about the possibility that our assumptions will be disproven. Maybe data and logic support “social justice”; but maybe they do not. If the latter possibility ― or the former ― is peremptorily foreclosed at the outset, then what is being done is no longer scholarship but advocacy falsely flying the scholarly flag.

This is troublesome enough when an individual does it, but, as I have argued in my contribution, over at the Verfassungsblog, to the ongoing debate about “scholarly activism” (or “scholactivism”), individual activists can contribute to academia ― provided that they are checked by people who disagree with them. But when entire institutions commit to ideological dogmas, this checking cannot take place. Indeed, attempting to fundmentally question the activist findings of a colleague becomes a form of sabotage to the institution’s mission. An institution that does research with a pre-determined valence is not a university at all but, at best, a think-tank. And when many, if not most, of a country’s law schools ― and let’s not kid ourselves; for ever Windsor, Vic, and UofT who are explicit about their ideological requirements, there is another law school or three that simply isn’t transparent ― make the same ideological commitment, that country no longer has a legal academy. At best, it has a thriving industry of social justice think-tanks.

It is worth noting, too, that these are public universities we are talking about. A public university is not merely failing to discharge but actively abandoning its public mission if it decides to put itself into the service of a movement whose ideology some significant portion of the public rejects ― rightly or wrongly, this does not matter. It becomes a partisan actor, albeit one that has the privilege and the gall to be financed by its opponents as well as its supporters. When the opponents wise up to what is going on and decide to tie the purse strings, the university should not be surprised ― let alone accuse them of authoritarianism and other frightful things.

Let me address, briefly, some objections that have been made to me when I have raised some of these points on Twitter. One claim is that “social justice”, for example, is not at all an ideological term, but simply a way of saying that legal scholars should be thinking about how to make society more just. Quite apart from the fact that the idea of a just society is already ideologically contentious (see e.g. the second volume of Hayek’s Law, Legislation, and Liberty ― called The Mirage of Social Justice), these claims are beyond implausible. Nine times out of ten, at least, the phrase “social justice” describes the ideal, or an ideal, of progressive, left-wing politics, and one has to live under a rock not to know this. The same sort of argument used to be made about “equity, diversity, and inclusion” back when the Law Society of Ontario demanded that all the lawyers in the province “promote” this stuff, and it was equally disingenuous. And the suggestion that it’s all about being able and willing to teach the “social justice” or “critical” views (as in, teaching about them as part of a balanced overview of existing opinion, as opposed to imposing them on students), which is anyway belied by references to research in both the Windsor and the UofT ads, is just as detached from reality.

And then there is the view that what Windsor, in particular, is doing is fine because its mission statement describes it as “justice-seeking: Building on a long-standing commitment to social justice that seeks fairness, equity and dignity, with a particular focus on relationships with historically marginalized communities”. It’s not obvious to me that UofT, for example, has a similar excuse, but never mind. Much more importantly, few, if any, of the people who might find this argument persuasive would have accepted it in the context of a mission statement imbued with a different set of values.

Consider, for example, the Trinity Western University’s “covenant” that required students and faculty to, among other things, abstain from sex outside a heterosexual marriage. TWU has a mission of its own, that of being an evangelical Christian institution ― a private one, mind you, not a public one. But, when it wanted to create a law school of its own, law societies in British Columbia and Ontario demanded that it drop the “covenant” because it discriminated against gay and lesbian students. If you think that TWU’s mission is no excuse for excluding people who do not fit in, but Windsor’s is, then you are applying an obvious double standard.

You might, like the academic who made this argument to me on Twitter, describe it as “pluralism”, but it’s an awfully convenient sort of pluralism, one that only imposes obligations on the people you disagree with, and allows you to indulge your pre-existing preferences at no cost. It all sounds fine so long as you get to be in power and call the imposition of your preferences on others by various high-minded names. If the other side gets in and starts ordering the public square to what it regards as the common good, or the highest good, or whatever other label it describes theocracy with today, you’ll have no cause for complaint. They’ll be doing unto you what you are already doing unto everyone.

Canadian legal academia has an ideological groupthink problem, which becomes worse every year as many law schools restrict hiring to people who share the prevailing orthodoxy. The solution is simple enough ― stop imposing litmus tests, and remember that people with whom you disagree, including about values and principles, can still be smart and interesting to engage with even they are profoundly mistaken. If they are willing to argue with you in good faith, return the compliment. And if you are so convinced of your values’ and principles’ superiority, you have nothing to fear from students being exposed to some others. They’re smart enough see the difference as well as you.

Can Do Better

An interesting, but seriously flawed, decision on the separation of powers

Today, the Court of Appeal decided Canada Christian College and School of Graduate Theological Studies v Post-Secondary Education Quality Assessment Board, 2023 ONCA 544, a public law case that raises a number of interesting questions ― not all of them intentionally. The facts are simple. In 2020, the Legislature enacted a law authorizing the appellant College to call itself a university and grant degrees. But, like many laws, this one would only come into force only if and when proclaimed by the Lieutenant Governor, on the government’s advice of course. This one never did. On the contrary, the relevant minister, following the respondent Board’s advice, recommended against bringing the legislation into force “at this time”. This recommendation was followed. The College applied for judicial review.

There are a few other issues the Court of Appeal deals with, but the one I am interested in has to do with the lawfulness of not bringing the legislation into force. Writing for the unanimous court, Justice Sossin notes that “[t]here is no suggestion in the record that proclamation was being taken off the table, or that the question would not be reconsidered” [43] in the future. He further observes that “[t]he discretion to determine when proclamation would occur is a power expressly provided through the commencement provision in the Act. Exercising this discretion … was precisely what the commencement provision contemplated.” [44]

He adds, though, that “[w]hile the Minister’s exercise of this lawful authority is entitled to deference, the power of a minister to defer proclamation is in no way unlimited”. [45] At the prompting of the Canadian Constitution Foundation, which intervened in the case, Justice Sossin explains that “it would not be open to a Minister to decide that an enacted statute will never be proclaimed”. [50] On the contrary, “[t]he discretion to exercise the authority conferred by this commencement provision is subject to the same constraints that apply to all exercises of ministerial discretion”. [53] In particular, as Justice Rand argued in Roncarelli v Duplessis, [1959] SCR 121, statutory discretion must be exercised consistently with the statute’s “perspective”. As a result, “[t]he legitimate grounds for delaying proclamation must be related to the conditions necessary for implementing the legislation”, [54] and “the executive” is subject to a “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision”. [55]

In this, Justice Sossin follows the House of Lords in R v Secretary of State for the Home Department, ex p the Fire Brigades Union, [1995] 2 AC 513, which he discusses at some length. As he explains, in that case, the House of Lords “held that the Secretary of State was under a duty to keep under consideration from time to time whether or not to bring [unproclaimed statutory] provisions into force”, [58] and further, that the the Secretary could not so exercise a prerogative power as to make it impossible that he or a successor would decide to bring the statutory provisions into force. (Justice Sossin’s phrasing here is a bit confusing ― he does not make clear that Fire Brigades involved the exercise of a separate prerogative power so as to frustrate the statutory power to bring provisions into force.) The upshot is “that it is for Parliament, not the executive, to repeal legislation”. [58] But this is not what is being alleged here: since it is, seemingly, possible that the legislation will eventually be brought into force, the matter stands differently than in Fire Brigades.

I am glad that the Fire Brigades Union‘s case is discussed in a Canadian judgment; all too often Canadian administrative law is parochial and ignores directly relevant lessons from elsewhere in the Commonwealth. But beyond that, Justice Sossin’s reasons raise some difficult questions.

To begin with, discussing relevant House of Lords authority is well and good, but what about Supreme Court authority that binds* the Court of Appeal? Specifically, the Criminal Law Amendment Act Reference, [1970] SCR 777, a.k.a. the Breathalyzer Reference, which also addresses a ministerial decision not to bring provisions into force. Granted, there was an extra twist there in that the government had brought most of the relevant statutory scheme into force, only leaving out the defences of which an accused might have availed him- or herself. But, much as in Fire Brigades, the question was whether the executive could in effect repeal legislation by failing to proclaim it into force. As I noted when I discussed the Breathalyzer Reference here,

Despite vigorous dissents pointing out that the government effectively re-wrote what Parliament had enacted without having any clear authority to do so, Justices Judson and Hall both insisted that “provisions” could be any parts of the bill. And if, as Justice Hall diplomatically put it, “proclaiming parts only of” the scheme enacted by Parliament “may indicate on the part of the executive a failure to live up to the spirit of what was intended by Parliament”, (784-85) that wasn’t the courts’ concern. Justice Laskin (as he then was) was even worse, arguing that “we should be very wary of judicializing the exercise of the very broad executive power conferred by Parliament”. (801)

Surely these remarks from the Supreme Court warranted a comment from the Court of Appeal. I personally find it very difficult to distinguish Canada Christian College from the Breathalyzer Reference. But if Justice Sossin and his colleagues thought that a distinction exists, they ought to have explained it. (To the extent that the government lawyers did not alert the Court to the Breathalyzer Reference, that is not a great look for them; indeed, some might think that even the appellants and the CCF should have alerted the court to this binding authority.)

I happen to think that the Breathalyzer Reference was a terrible decision. In the post already linked to, I pointed out that

its abdication of the judicial duty to interpret the law and to see to it that Parliament’s will is carried out, antithetical to the separation of powers and the Rule of Law, still infects the Supreme Court’s jurisprudence ― above all in administrative law.

If the damnatio memoriae performed by the Court of Appeal is part of the Canadian courts’ walking back that abdication, it has at least that silver lining. But if it is simply per incuriam, a failure to consider an opinion that, as I wrote, is “somewhat obscure” ― or perhaps very obscure indeed ― that is unfortunate. Doubly so, perhaps, because it is not only a failure of legal craft, but also a missed opportunity to alert the Supreme Court to the need to revisit this misbegotten precedent.

The second question I have about Christian College concerns my old bugaboo, judicial deference to the executive on questions of law. Here, the comparison with Fire Brigades is instructive. We ― and I assume other law schools in the UK ― teach Fire Brigades in constitutional law; for that matter, I also learned about the Breathalyzer Reference in constitutional law at McGill. As Justice Sossin’s summary of Fire Brigades makes clear, it’s a case about the separation of powers and the respective roles of Parliament and the executive ― and the courts’ role in policing the boundaries between the political branches, too.

But, evidently, that is not how Justice Sossin thinks of Christian College. He sees at as an administrative law case, subject to administrative law rules about judicial deference to the executive. He frames the issue as whether the Minister’s decision not to recommend that the legislation be proclaimed was unreasonable and, as already noted, says that the minister’s “exercise of this lawful authority is entitled to deference”. Justice Sossin is not simply saying that, once it is established that the minister’s recommendation was lawful, it is not to be disturbed, which would be trite. Deference is built into the determination of lawfulness.

But why is that? If indeed this is a constitutional case about the separation of powers, about whether a minister improperly repealed an Act of the Legislature, why does the minister get the benefit of judicial deference, of which there is, quite rightly, no hint in Fire Brigades? I think this is a mistake even under the standard of review analysis established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. There, the majority stressed that

[q]uestions regarding … the relationship between the legislature and the other branches of the state … require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions. [55]

It is bad enough that Vavilov continues to require courts to abdicate their duty to say what the law is and to take the side of the executive against the subject by deferring to its interpretation of legislation. But whatever specious justifications may be proffered for this misbegotten practice, they do not apply to separation of powers issues between the executive and the legislature. In Vavilov, the Supreme Court justifies deference by the fiction of legislative intent. How conceivable is it that the legislature intended courts to take the executive’s side against itself?

The third and last question I have about Christian College also arises from the Fire Brigades analogy. It is simply this: what follows from this fine assertion of the separation of powers? As I see it, the “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision” is a paper tiger. In Fire Brigades, the members of the majority were all quite clear that it gave rise to political questions that prevented any judicial enforcement. The Secretary of State had, perhaps naïvely, been forthright enough to say he would never bring the statute into force. His successors would be warned by their officials not to say that. The matter is under consideration, they would say. And the courts would do no more. (“The matter is under consideration”, said Sir Humphrey Appleby, “means we’ve lost the file. The matter is under active consideration means we’re looking for it.”)

I do not mean to insinuate that the Minister here was insincere and would not reconsider the decision not to proclaim the legislation into force if relevant circumstances changed. I don’t know much about the story, so I wouldn’t want to suggest anything about the specific facts and am happy to assume perfect good faith. But for future cases, the duty identified by the Court of Appeal will mean nothing ― absent some special circumstances. The Breathalyzer Reference, I think, did present special circumstances, because of the way that only some provisions of a statutory scheme were brought into force, changing the balance Parliament had struck. I think that in a case like that a person charged under the provisions that had been brought into force should be able to challenge the lawfulness of the prosecution. That’s a very different matter, though, from attempting to force the government to bring a whole statutory scheme into force.

To the extent Christian College undermines the intellectual authority of the Breathalyzer Reference, such as it was, it is still a valuable decision. But it does not address that case in the way it had to, and it does not comply with much more recent precedent about the standard of review of ministerial decisions either. I am glad for the CCF, which successfully pressed the separation of powers point, but this is not a great performance from the Court of Appeal.

*NOTE: As Emmett Macfarlane reminded me, this is somewhat loose language. Strictly speaking, reference opinions are not binding precedents. But they are unfailingly treated as such, and even if not strictly biding, they are very highly persuasive indeed, especially for lower courts.

And Again

Confidence, not head counts, is the key to responsible government

I thought I was done with dispelling government formation misconceptions, having responded in detail here and here to claims that the party winning a plurality of seats in the House of Commons was somehow entitled to form government even if it lacked an overall majority. But I return to this issue, briefly, to address the converse mistake: the claim, advanced by Patrice Dutil in a Macdonald-Laurier Institute Inside Policy essay, that “[r]esponsible government requires the support of the majority of the House of Commons”, so that “in order to form government in a parliament that is split among five parties, one of them must earn the support—at least the tacit support—from the others”. This is, at best, an oversimplification of the conventional position.

As explained in my previous posts, what responsible government requires is for the ministry to maintain the confidence of the House of Commons. Whether the ministry is doing this is assessed by its ability to win certain key votes: that on the Speech from the Throne, which outlines its legislative programme, at the beginning of a new session of Parliament, and then mainly “money votes” on taxes and spending, as well as anything that the ministry itself designates as a vote of confidence, or a motion of non-confidence brought by the opposition. This has a couple of important corollaries.

One is that at no point does the ministry actually need “the support of the majority”. It simply needs not to be outvoted. If it can win votes with less than a majority of MPs supporting it because even fewer are voting for the opposition, that’s fine. Maybe this is what Professor Dutil is alluding to this when he refers to “tacit support”, but I’m not sure that this is a fair description of all conceivable political arrangements. Tellingly, Professor Dutil’s review of political precedents runs from King’s minority governments in the 1920s to that of Joe Clark in 1979. It does not consider Stephen Harper’s governments from 2006 to 2011. These were kept in office, in part, by the opposition’s failure to vote against the Conservative government in sufficient numbers ― the opposition either abstained or made sure that too few of its members turned up to outvote the government. This did not involve any sort of lasting arrangement or even cooperation with the opposition, which was either in no position to fight an election campaign (being leaderless, penniless, or both) or afraid that an election would yield even worse results for it than the status quo. I don’t think this counts as support, even tacit, but it was enough to keep the government in office. In short, a government lacking majority support in the House of Commons can stay in office without making any sort of deal with the opposition, so long as the opposition does not bring its full numbers to bear to vote it down on a matter of confidence.

This brings me to the second corollary from the convention of responsible government outlined above. A government ― by whatever count or margin it wins the votes of confidence it must win to remain in office ― does not “require the support of the majority of the House of Commons” for anything else, constitutionally speaking. There is no impediment to a government remaining in office despite taking a loss on a legislative project or a symbolic motion, provided it has not been designated as a matter of confidence. And other than money votes and motions of no-confidence brought by the opposition, governments have the choice not to designate votes as implicating confidence. If they do so, that is a political choice for which voters ought to judge them. If a majority government whips its MPs and forces them to toe the party line on every vote, and not just on matters of confidence, that is also a political choice for which voters ought to judge it. If a government won’t allow a vote on a private member’s bill to be held, or won’t let it be treated as a free vote on which individual MPs are free to follow their conscience and/or their constituents’ wishes, that is a political choice for which voters ought to judge it.

Such judgments do not seem to be occurring in Canada, despite our governments controlling their MPs to a much greater extent than those in the UK or in New Zealand. I’m no political scientist and not in a position to speculate as to why that is the case. (One common hypothesis ― that with a smaller House of Commons than the UK, Canadian MPs are too blinded by the higher prospect of a ministerial position than their UK colleagues to show independence ― does not account for the greater prevalence of free votes in the much smaller House of Representatives in New Zealand.) But I think that misrepresenting the constitutional position, even by implication and even with the laudable intention of making it accessible to ordinary citizens, by suggesting that governments (always) need to be supported by majorities to remain in office does not help matters.

I may be wrong, of course, but I would like to think that the conventions of responsible government do not require oversimplification to be understood. A government needs to maintain confidence, which is assessed by its ability to win ― by whatever head count ― a limited set of votes in the House of Commons. All the other stuff that is being discussed these days ― pluralities, majorities, popular vote ― is largely or entirely irrelevant. It’s not that complicated.

Government Formation, Revisited

The orthodox understanding of the conventions of government formation is better than its populist rival

I am grateful to Charlie Buck for taking up my invitation to explain why the constitutional conventions of government formation in Canada have diverged from those recorded in the Cabinet Manuals of the United Kingdom and New Zealand, which I discussed here. However, I am not persuaded by his argument to the effect that, whatever may have been the case in Canada in the past, and still be the case in its fellow Commonwealth realms, our present conventions make the plurality party in the House of Commons uniquely entitled to govern.

There are several strands to Mr. Buck’s argument. First, conventions are political and flexible, and thus subject to revision from time to time as an “outgrowth of democratic impulses”. Second, the nature of Canadian politics today favours treating the plurality-winning party as endowed with a special governing mandate that any opposition coalition would lack. Third, recent (and perhaps not-so-recent) precedent favours this interpretation of the conventions of government formation. Finally, if the plurality party in the House of Commons is unable to govern in the face of a united opposition, the solution is a new election, rather than, potentially, an opposition takeover. At every step in this argument, Mr. Buck starts from truth, and quickly errs.

So far as the flexibility of conventions is concerned, there is no doubt that new conventions can add themselves to the constitution, as Mr. Buck’s example of the (arguable) convention requiring a referendum prior to any constitutional amendment illustrates. The present Prime Minister’s policy of only appointing bilingual judges to the Supreme Court is likely an attempt to create a convention, and there is nothing improper about it, though whether the attempt succeeds will depend on whether future Prime Ministers play ball.

Whether existing, established conventions can also decay or be replaced by something quite different strikes me as a more difficult question ― at least when the convention is as central to our constitutional order as those regulating government formation. At the very least, we should be wary of too quickly concluding that this has happened. This is because, if constitutional conventions are to serve as rules and as meaningful constraints on the behaviour of political actors, they cannot simply be whatever “partisans, acting on the wishes of their constituents” happen to believe. As I said in my original post, conventions must “have an existence independent of misrepresentation by either political partisans”. The issue here isn’t, contrary to what Mr. Buck suggests, whether we believe that conventions are different from law, let alone an academic’s self-serving wish to obtain “a monopoly on interpreting the nature of Canadian constitutional conventions”. It is that if the conventions are whatever a politician claims they are, then what we have is not a political constitution, but no constitution at all.

Besides, it is too easy to say that politicians “act on the wishes of their constituents”. Mr. Buck refers to no evidence of these wishes, other than the politicians’ own say-so ― and politicians just aren’t great at discerning their constituents wishes. At most, we have the unpopularity of the 2008 attempt by a coalition of opposition parties to oust the Conservative minority government. I will return to it below, but for now, suffice it to say that attributing it to an alleged belief that the plurality winner is entitled to govern is pure speculation.

What is not speculation, and needs to be taken into account, is that voters are generally ignorant of even basic constitutional rules, be they legal or conventional. This may very well result in their having wishes that are contrary to such rules. But that does not give the politicians license to break the rules. Even if a poll were to show unambiguously that Canadians would rather that a Governor General not assent to a bill passed by the House of Commons and the Senate, that would not justify the Governor General in withholding assent. Again, were it otherwise, we would not a political constitution, but no constitution at all.

I turn now to the claim that changes in the way politics are done and understood ― namely, the prominence of parties and party leaders at the expense of individual MPs ― favour abandoning the longstanding conventions of government formation in favour of a plurality-winner-take-all rule. The changes are real enough: I have discussed them here, in a post drawn from an article published in the McGill Law Journal (and based, for this part of the argument, on Bernard Manin’s historical and theoretical work and a close look at the 2011 election campaign in Canada). But they are not a compelling explanation, let alone justification, for an alleged change in the conventions of government formation in Canada.

For one thing, one has to wonder what took so long. These changes aren’t new. The emergence of political parties rather than individual parliamentarians as the dominant actors ― what Professor Manin describes as “party democracy” ― was well underway in the second half of the 19th century. The increased prominence of leaders due to their ability to speak directly to voters ― Professor Manin’s “audience democracy” takes off in the 1970s. Why would it be the case that government formation conventions only responded to these changes in the last 10, perhaps 15 years?

Perhaps even more strikingly, though: why would this only have occurred in Canada of all places? As Professor Manin explains, the tendencies to which Mr. Buck points are common to Western democracies. They certainly have not bypassed the UK and New Zealand. More than that: in the 1990s, New Zealand switched to a (mixed-member) proportional electoral system where the partisan composition of its House of Representatives depends almost entirely on the votes cast explicitly for a political party. To a much greater extent than Canada (and the UK), New Zealand has consecrated the dominance of parties over electoral politics in its law. Yet, as I have shown in my last post, New Zealand retains the traditional conventions of government formation, to whose operation the prominence of political parties and their leaders is evidently no obstacle. After the 2017 election, a Labour-led government under Jacinda Ardern took office, despite Labour winning 10 fewer seats than the National Party (in 120-member House!). There is nothing “nostalgic” about this; this is just the Westminster system operating as it always has.

Of course, Mr. Buck is right that “Westminster systems are also capable of diverging from each other”. But the whole point of the challenge I issued in my earlier post was to ask those who think like him to explain why they think the divergence has happened. What is different in Canada? Emmett Macfarlane usefully reminds us that the simple fact that plurality winners have always taken office after 1925 is not enough. Nor is Mr. Buck’s generic claim that “diversity in response to shifting environmental conditions is a strength not a weakness of the Westminster model”. What environmental conditions have changed in Canada in the way they have not in the UK and in New Zealand ― other, that is, than the self-serving claims of politicians?

This brings me to the question of precedents. Mr. Buck mentions three: the King-Byng Thing, the implosion of the 2008 opposition coalition, and the statements of major party leaders in 2015. None are conclusive.

King-Byng is inapposite, if not outright contrary to Mr. Buck’s point. If King was the good guy in that story, which I’m not particularly convinced of, it is worth recalling that he had formed a government despite Arthur Meighen’s conservatives having won more seats than his Liberals at the previous election. Not a problem then, I suppose. But more importantly, King-Byng is a very well known story throughout the Commonwealth ― I used to teach it in New Zealand, for instance ―, yet nowhere is it thought to stand for the proposition that the plurality party in the House of Commons (or its equivalent) is specially entitled to govern. It is, above all, a cautionary tale about the appearance of vice-regal partiality, and helps explain why the Cabinet Manuals of the UK and New Zealand are so insistent that the Sovereign or his representative are not to be drawn into government formation discussions, and that the politicians need to work out for themselves where the confidence of the House lies. As I pointed out in the previous post, none of that would be worth saying if the Sovereign simply needed to appoint the leader of the plurality party as Prime Minister.

As for the events of 2008, we know that the coalition was unpopular, and was unable to hold together long enough to actually oust the Prime Minister. But was that due to rejection of the principle of coalition governments without the participation of the largest party? Or to that particular coalition’s membership (notably its including the Quebec separatists)? To the personal unpopularity of its putative leader? To it being an attempt to change governments months after, rather than in the immediate aftermath of, an election? That, I don’t think we know.

The 2015 statements are a somewhat different matter, because they were seemingly explicit and on point. While I have struggled to find news stories to link to, I share Mr. Buck’s recollection of the events: “The leaders of all the major parties in 2015 [stated] that the largest party should form government”. What I do not share is his interpretation of these statements as concessions: hence the change I have made in quoting him. One needs to recall the peculiar dynamics of the 2015 election campaign, during much of which it was widely thought that all three major parties had a decent shot at ending up as plurality winners. The eventual result, an outright majority for one party, was unexpected until perhaps the final week if not the last few days of the campaign. In these circumstances, the leaders’ claims that the plurality winner ought to become Prime Minister were not concessions made against interest but demands for deference made in the hope that the would be in a position to claim this supposed mandate. As Professor Macfarlane notes, “we should be cautious about relying on statements by political leaders in the midst of election campaigns as if they reflect constitutional principle rather than political tactic”.

What the King-Byng and 2008 precedents can help with is the consideration of Mr. Buck’s final point: that, while it is legitimate for the opposition to deny a minority government the confidence of the House of Commons, the only legitimate consequence of such a denial is an election. The formation of an alternative government by the opposition is out. I want to credit Mr. Buck for making clear that a denial of confidence is legitimate. As I said in my earlier post and as I am about to explain again, I strongly suspect that the politicians who share his views on the conventions of government formation would inappropriately deny this. But I am not convinced that the only legitimate response to such a situation is a new election.

What 1926 and 2008 have in common is that they happened months after an election and after the government whose ouster was being contemplated had initially retained the confidence of the House of Commons. In such circumstances, a new election may well be the best response to a loss of confidence, though I would not yet say that this is a conventional requirement. Evidently the opposition leaders in both 1926 and 2008 did not believe that they were bound by any rule against mid-Parliament government changes, and what is politically unwise or even reckless is not necessarily unconstitutional, even in a conventional sense.

But the focus of the present debate about government formation, as I see it, is not so much on what might happen months after an election, but rather ― as in 2015 ― on an election’s immediate aftermath. If (like King’s liberals in 1925) the party of the incumbent government fails to win a plurality of seats, must it (unlike King) resign and give way to the new plurality winner? Or, if it does win a plurality (like New Zealand’s National in 2017), is it automatically entitled to continue in office despite the opposition joining forces to deny it confidence, (as National was not)?

I suspect that voters’ appetite or perhaps even tolerance for a new election in the immediate aftermath of the one that was just held would be nil, and understandably so. There would not be much reason to expect a second election to produce a different result from the first, and so provide a way out of the impasse. This is why I think that, although this is not Mr. Buck’s intention, adopting his interpretation of the conventions of government formation will inevitably lead to claims that it is illegitimate for the opposition to deny confidence to a government formed by the plurality party in the House of Commons. Note that, in 2008, the then-Prime Minister’s reaction to the coalition’s attempt to oust him was not to go to the Governor General and ask for a dissolution ― which, in light of King-Byng, may have been granted. It was to avoid facing a denial of confidence by the House of Commons and to cast aspersions on the legitimacy of such an eventuality.

By far the better view is the one captured by the UK and New Zealand cabinet manuals. When an election produces a hung Parliament ― i.e. one in which no one party has a majority in the House of Commons ― the politicians should work out where confidence lies. Ideally, this should be done by negotiation before the new House meets. Failing that, the incumbent administration, which of course remains in office throughout, is entitled to meet the new House and see if it can secure its confidence, which is tested by the vote on the Speech from the Throne. And if confidence is denied, which is perfectly legitimate, the opposition, whether or not it includes the plurality party, gets a chance to form a new government without an election needing to be held. Only if the alternative government cannot secure confidence either does an election become the only way out of the impasse and a constitutional necessity.

In short, there are no good reasons to think that the constitutional conventions of government formation in Canada have changed from what they have long been understood to be both in this country and elsewhere in the Commonwealth. There is no real evidence of the public understanding and demanding such a change; nor are the politics of an “audience democracy” any less suited to the orthodox understanding of conventions than those of earlier periods. Political precedents do not support the alleged change either. On the contrary, as explained both in my previous post and here, unsurprisingly, our political system will work better ― the legitimacy of opposition being preserved and wholly unnecessary and futile elections being averted ― with the orthodox understanding of conventions.

All that being so, both I in my previous post and Professor Macfarlane have been wondering why this whole debate is even happening. Part of the answer is excusable confusion. Part, I am afraid, is that, exactly as in 2015, some political actors see fanning this confusion as a shortcut to power. And part is that the populist spirit of the times is seeping even into good faith intellectual discussions, as Mr. Buck’s post illustrates. His appeal from the consensus opinion of “academics dictating” what the constitution ought to be to the authority of the voters “in this democratic age” is a familiar one. As with all such populist appeals, the irony is that allowing it would empower self-serving political elites at the expense of voters too poorly informed to see through it.

In the face of these populist tendencies, the role both of politicians and of academics is to remind the voters of the rules and the reasons these rules exist. Of course, academics have an easier time doing this because their self-interest is not nearly as implicated. But if politicians aren’t capable of doing what is right instead of what will win them some extra votes, what good are they? It is regrettable that Canada’s politicians failed in 2015, and may well fail again. But that only makes it more important for academics to hold the line.

Conventions from on High

A couple of weeks ago, I published a post arguing that the conventions of government formation in Canada did not give any special entitlement to the party winning a plurality of seats at a general election ― just like these same conventions in the UK and in New Zealand. That post invited responses from the proponents of the contrary view, and I am very pleased that one has taken up the challenge. His response is below. I will post a reply tomorrow.

Guest Post by Charlie Buck, PhD Student (Political Science), University of Toronto

In Canada, the party with the plurality of seats should form government. Professor Leonid Sirota mistakenly suggests Canada instead follow the rules of government formation outlined in the cabinet manuals of the United Kingdom and New Zealand.

He is hardly alone in holding a textbook understanding of government formation. Political scientists Peter Aucoin, Mark D. Jarvis, and Lori Turnbull argue the same in their award-winning monograph Democratizing the Constitution: Reforming Responsible Government. They blame the slide towards executive dominance of the legislature on the ambiguity that is at the heart of the constitutional conventions of responsible government. Prime ministers of all partisan stripes have routinely exploited the confusion that surrounds the governor general’s reserve powers over dissolution, prorogation, and summoning to run roughshod over parliamentary democracy. One need only cursorily point to Jean Chrétien’s knack for snap election calls or Stephen Harper’s use of prorogations to avoid opposition scrutiny, to see this prime ministerial abuse of conventional authority in action.

In the midst of their disillusionment with contemporary conventional practice, what most experts on law and politics appear to have forgotten is how those conventions materialize in the first place. Conventions are separate from legal rules (contra Professor Sirota’s doubtfulness that the two can be distinguished) precisely because they are politically rather than legally binding. A virtue that comes from this political nature is flexibility. As the written law is enforced through judges who are sensitive to precedent and may only modify what has already been settled through the ad hoc flow of real cases and controversies, the pace of legal change is slow, potentially glacial. Conventions’ responsiveness to the public mood tolerates a greater dynamism than rigid legal rules allow.

The enforcement of conventions takes place in the political arena; partisans, acting on the wishes of their constituents, are much more relevant to their operation than academics. That these academics are “out of touch” is beside the point. That they do not have a monopoly on interpreting the nature of Canadian constitutional conventions is not.

Other than their flexible nature, conventions hold the advantage over codified constitutional rules by being the outgrowth of democratic impulses. As has already been stated, it is not academics dictating the nature and scope of conventional rules (no matter how much they may wish otherwise), but the people acting through their own voices, the media, the ballot box, and their representatives. Academics and judges may observe what the conventions are in a given moment, but they do not get to ordain their meaning nor freeze that meaning for eternity. Professor Sirota is certainly correct that constitutional rules are rules and conventions are rules too. But he is wrong to collapse the differences between them.

The nostalgic understanding of government formation has evolved in this democratic age to mean that only the largest party can claim the legitimacy to form a government. It is not for Canada’s constitutional scholars to decide the rightness or wrongness of that transformation. Conventions are not just formulaic legal rules but normatively desirable governing principles. To quote A. V. Dicey, conventions are “a body not of laws, but of constitutional or political ethics.”

The ethics of transforming the standards of government formation makes some sense. Canadians no longer—if indeed they ever did—vote on the basis of the qualities of local candidates. Elections are now much more nationally driven, leader-centric, and partisan affairs. It is increasingly at odds with reality to think of the House of Commons as formed from 338 individuals representing their ridings rather than from leader-dominated parties.

In conjunction with the changing face of parliamentary representation, democratic accountability has risen to the forefront. From this so-called “decline of deference” has developed another convention surrounding an area of Canadian political life as vital as government formation: constitutional amendment. Many political scientists blame the closed-door process of negotiation for the ultimate failure of the Meech Lake Accord. Participants in the later Charlottetown round were cognizant of this fact and addressed it head-on by holding a national referendum, only the third held in Canadian history. Today, scholars such as Peter Russell and Richard Albert speculate this precedent has generated a new conventional rule that major constitutional overhauls require the direct consent of the Canadian people through national referendums. If the conventions governing constitutional amendment are open to modification as a result of democratic pressure, why not also the conventions that surround government formation?

With a demand for greater accountability and citizen participation in the workings of government, the confidence convention has evolved in the direction it has. The democratic sensibilities of Canadians now require, not just that governments command a confidence of the House cobbled together by backroom agreements and coalitions between party insiders, but that they do so while holding the most seats in the chamber. If the party with the most seats cannot muster the necessary majority to pass spending bills then an election must be called.

The exception proves the rule. The only time in Canadian history a governor general has not called an election at the insistence of a prime minister, in the famous King-Byng Affair, the Canadian people expressed their displeasure towards Governor General Byng by rewarding that prime minister with a plurality of seats in the subsequent election with which he was able to maintain the confidence of the House. This not only shows that the transformation of the confidence convention requiring a plurality of seats was a long time coming but also that political actors who violate the new conventional rule risk the wrath of the electorate.

It is telling on this front that politicians have followed the desires of the public, notwithstanding these many academic objections. The leaders of all the major parties in 2015 conceded that the largest party should form government, but this is a practice that goes back far longer. Every prime minister in Canadian history faced with a larger party in the legislature following an election resigned or asked for dissolution rather than try to continue on. Once again, the exception proves the rule. Canadians’ popular rejection of coalition government during the 2008-9 parliamentary crisis, the unravelling of the agreement between the Liberals, NDP, and Bloc, and the subsequent Conservative majority win in 2011, is a cautionary tale of what happens to parties finding themselves on the other side of the conventional line.

In the end, this dispute comes down to different understandings of what conventions are and should be. A discomfort with flexible, politically enforced rules appears to favour cabinet manuals like the ones in the United Kingdom and New Zealand. The antidote to ambiguity and political constitutionalism is the codification of clear-cut rules in cabinet manuals. An understanding of conventions on these terms is at cross-purposes with their virtues, namely, their dexterity and democratic enforceability.

In no way does this difference of opinion cloak a hidden partisan agenda. As Professor Sirota quite rightly says, the opposition, including one constituting a majority of the House, may properly oppose the government’s agenda. If this results in a loss of confidence then an election should be held and the resulting plurality (or majority) party given the opportunity to govern.

Far from something to be condemned, the debate over responsible government’s organic evolution into something other than originally understood by the framers of the British North American Act puts into sharper focus the remarkable ability of Westminster systems to adapt their governing arrangements to changing circumstances. Westminster systems are also capable of diverging from each other, as the historical experiences of Canada, the United Kingdom, New Zealand, and Australia make plain. This diversity in response to shifting environmental conditions is a strength not a weakness of the Westminster model. In the populist, turbulent moment we are living through, governing arrangements require an elasticity capable of adjusting to the people’s wants and desires.

Justice Brown’s Resignation: Now What?

A new podcast episode

In the wake of Justice Brown’s departure from the Supreme Court of Canada, co-blogger Mark Mancini and I have both published op-eds lamenting this event: Mark, with Kristopher Kinsinger, in The Hub, and I in The National Post. We also recorded a podcast episode in which we discuss Justice Brown’s legacy, the events leading to his resignation, and the need to reform the Canadian process for dealing with allegations of judicial misconduct, of the deep deficiencies of which Justice Brown was ultimately the victim. For various reasons, we weren’t able to release the episode right away, but it is now available: have a listen.

Private Conscience or Public Choice

Why universities should not trade on their reputation to intervene in politics or social debates

At her invaluable Substack (can we just say blog? isn’t one neologism enough for this sort of thing?) What Katy Did, Katy Barnett has posted a thought-provoking essay on “Universities and politics: The modern phenomenon of ‘official positions’“. It is worth a comment, both for what it gets right and also for what, I think, it doesn’t.

Professor Barnett argues that “it’s inappropriate for a university” ― and, I assume, an another academic organization, such a professional association of the scholars in a given field ―

to have an official position on political matters not directly related to their operation. Individual academics and students can, of course, adopt political positions, and advocate for them. … [But] it should be for them to make up their own minds what causes they support. The idea of an official position is inimical to freedom of conscience. 

I agree with Professor Barnett’s substantive position: universities should avoid making pronouncements on political or social issues ― including, I would specify in reaction to some emails I got a month or so ago as an NYU Law alumnus, controversial judicial decisions.

Professor Barnett notes that these public statements have no practical impact. They do not change the lives of those whose side they are ostensibly take: “Words are powerful—I’m a lawyer, after all, and using words is part of my stock-in-trade—but there’s a limit to how far words can change reality.” Indeed.

These statements also do not persuade those not already inclined to agree; when they concern electoral issues, they do not sway votes. On this point I would probably go even further: those who see an academic institution wading into electoral politics on the other side, whatever “other” means in this context, will not change their minds about how to vote, but they may eventually change their minds about whether their taxes should support an independent academia that is their political opponent. Anyone outraged by this should consider the level of vitriol directed at intellectual institutions that refuse to be part of the progressive consensus, such as the Federalist Society in the United States and the Runnymede Society in Canada, the legality of whose existence is apparently disturbing to some bright young things. And these are independent associations of like-minded people which do not rely on the support of those who disagree with them. Why should people feel any more magnanimous about political opponents whom they are coerced to fund?

Where I part company with Professor Barnett is in her connection of this stance to the freedom of conscience. She writes that “[h]ow one votes is a matter of conscience”, which I agree with, and that “it’s not up to any organisation to tell me what to think”. I would guess that this isn’t meant literally: some organizations, above all political parties, but also, say, the editorial boards of newspapers, exist precisely to (among other things) tell us how to vote. Professor Barnett writes that “it’s not for universities or corporations to tell me or anyone else how to vote, one way or the other”, but even so I would guess that she ― like many others who condemn corporate interventions in politics, would make an exception for the media; many would also be tempted to exempt non-profits.

To me, though, these exemptions show that any general rule against corporate, let alone organizational, political intervention is untenable. If some corporation tries to convince me to vote one way or another, I’ll probably just shrug; if I am particularly exercised about it, I’ll boycott them. (This is why, until recently, commercial interests mostly stayed out of electoral politics; as Michael Jordan famously put it, Republicans wear sneakers too.)  

That said, there is a narrower but, I think, more plausible version of Professor Barnett’s position: it’s not up to any organization to tell us how to vote if (1) it has some measure of control over us, and (2) we did not join this organization for electoral or political purposes. Professor Barnett might actually have something like this in mind when she writes that “[b]y stating an institutional position, any debate within that institution is chilled. That’s not good for democracy, and it’s not good for an educational institution which should be able to discuss contentious matters.” This is probably right so far as it goes.

But I wouldn’t connect this issue to either freedom of conscience or voting choices. In a university context, official statements are beside the point; a half-decent university won’t punish people for disagreeing with its official proclamations, and they know this. An indecent one will punish them for their politics, official statements or not. This happens (mostly, of course, in the black box of academic hiring, but sometimes more overtly too) but, I think, in ways that simply aren’t sufficiently connected to the sort of statements Professor Barnett has in mind for them to really matter.

My objection to these statements is different. They are a pretty typical example of a problem identified by public choice theory: politicians ― in this case, academic politicians ― use the resources of which they obtain control for their own ends instead of those of their constituents. The resource, in this case, is primarily reputational rather than pecuniary, but that hardly matters. The political entrepreneurs who get themselves into positions of academic authority, or sway faculty councils and university senates, privatize the university’s reputation for independent-minded expertise and spend it on their own agendas ― and their individual self-aggrandizement too. I am enough of cynic to suspect that they won’t mind any chilling effect they manage to create in the process, but I doubt this is the main consideration.

This is as objectionable as politicians building bridges to nowhere to make sure their allies get juicy contracts, their constituents re-elect them, and their name gets attached to some reinforced concrete. It is immoral, in the same way as taking something that isn’t yours and disposing of it as if it were always is. And, as discussed above, in this case, the reputational capital of universities, built up over the past 150 years or so (I’m not sure the relatively few universities that existed before mattered all that much in the public discourse, but I might be wrong) is squandered on what are, at best, quixotic quests for a better world, and at worst, vulgar political machinations. Perhaps too much of this capital has been squandered already for this to matter, but the people who believe universities should make political statements must think otherwise.

So I very much agree with Professor Barnett that statements by universities or other academic entities in support of political or social causes are useless at best, seriously damaging at worst, and morally objectionable quite apart from that. But I come to this position from a somewhat different perspective, and think we should not be too hasty to invoke freedom of conscience, even in the face of disturbing developments. This is something I might soon have occasion to return to.

Rules Matter

Why the rules of government formation are the way they are, and why they matter

For reasons quite beyond my comprehension, Canada is apparently having a “debate” about the rules applicable to government formation in the event an election does not produce a single-party majority in the House of Commons. Philippe Lagassé has covered the essential principles ― as they have long been accepted, certainly up until, roughly, the summer of 2015, and for the most part beyond that too. Contrary to the claims of some Conservative partisans ― and, if memory serves well, to those of the leaders of all three major federal parties during the 2015 election campaign ― winning a plurality of seats (i.e. being the single biggest party in the House of Commons) does not entitle a party to form government or its leader to become Prime Minister. Only an outright majority makes this automatic.

Of course, my saying that Professor Lagassé is right won’t persuade people who dismiss his views and hallucinate about him writing out of a partisan agenda. I don’t suppose they are open to persuasion at all, really. But here is something that Professor Lagassé does not discuss, which I think bears pointing out. Canada’s conventions of responsible government, including government formation, are not special or unique. On the contrary, they at the heart of what the framers of the Constitution Act, 1867 meant when they explained, in the preamble, that they were designing a “Constitution similar in Principle to that of the United Kingdom”. The UK follows similar conventions; so does New Zealand. Unlike Canada, though, both the UK and New Zealand have recorded the relevant conventions in authoritative (though not legally binding) Cabinet Manuals. One would think that, given the deliberate similarities between our constitutional systems, these statements ― made by people who have no conceivable interest in our partisan squabbles ― are worth considering.

The UK’s 2011 Cabinet Manual begins by explaining that “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.”(2.7) This is crucial point; I will return to its significance below. The Cabinet Manual adds that “[c]ommanding the confidence of the House of Commons is not the same as having a majority or
winning every vote”. (2.7) Note that there is no mention of a plurality here. The next paragraph notes that

Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government. (2.8)

This has a number of important consequences, which Professor Lagassé explains, but I’ll simply reiterate the point that likelihood of commanding the confidence of the House of Commons is decisive; again, there is no mention of a plurality of seats mattering. This is confirmed in the next paragraph, which notes that, in ascertaining “who appears most likely to be able to command the confidence of the House”,

the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine [this] and communicate clearly to the Sovereign. (2.9)

Of course there would be no need for warnings about drawing the Sovereign into party politics if all that mattered were who won the most seats.

All this is again reiterated in paragraphs 2.12 and 2.13, under the heading “Parliaments with no overall majority in the House of Commons”. Finally, the Cabinet Manual outlines the possible outcomes:

The nature of the government formed will be dependent on discussions between political parties and any resulting agreement. Where there is no overall majority, there are essentially three broad types of government that could be formed:

    • single-party, minority government, where the party may (although not necessarily) be supported by a series of ad hoc agreements based on common interests;
    • formal inter-party agreement …
    • formal coalition government, which generally consists of ministers from more than one political party, and typically commands a majority in the House of Commons … (2.17)

This is a bit of an oversimplification, because these options aren’t mutually exclusive (one can imagine, say, a coalition of two parties working on an ad hoc basis with a third one), but the essential points are, first, that a single-party minority is not inherently more legitimate than a coalition, and, once again, that winning a plurality of seats doesn’t enter into the discussion at all.

New Zealand’s Cabinet Manual 2023 is to the same effect. It notes that

The Prime Minister is appointed by warrant by the Governor-General. In making this appointment, constitutional convention requires the Governor-General to:

    1. act on the outcome of the electoral process and subsequent discussions between political parties. These discussions ascertain which party, or group of parties, appears able to command the confidence of the House of Representatives (expressed through public statements) and therefore has a mandate to govern the country; and
    2. act on the outcome of the political process by which the person who will lead the government as Prime Minister is identified. (2.2)

Once again, there is no mention of the winner of a plurality of seats in the House of Representatives having any significance. On the contrary, what is highlighted is “discussions between political parties” that are “subsequent” (my emphasis to “the electoral process”. Again this is confirmed in a later chapter, which states

The process of forming a government is political, and the decision to form a government must be arrived at by politicians. Government formation may involve one or more parties.

In a case where government formation involves multiple parties, once the political parties have reached an adequate accommodation, and it is possible to form a government, it is expected that the parties will make appropriate public statements of their intentions. … 

By convention, the role of the Governor-General in the government formation process is to ascertain where the confidence of the House lies, on the basis of the parties’ public statements, so that a government can be appointed. (6.42-6.44)

As with the similar UK provisions, there would no need for any of this is the Governor-General simply had to invite the leader of the single biggest party to form the government.

So here are my questions to those who claim that the rule in Canada is different: when did Canada’s constitution cease to be “similar in principle” to that of the mother country and our Commonwealth siblings? For what reasons did that divergence happen? And what useful purposes does it serve? If anyone wants to offer a response, I’ll be happy to publish it as a guest post.

Meanwhile, let me return to the key point from the UK Cabinet Manual: “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.” Being Prime Minister means nothing if you are unable to actually govern, which requires, at a minimum, securing money from Parliament (and more specifically from the House of Commons, whence “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost” are required to “originate” pursuant to s 53 of the Constitution Act, 1867) to keep the lights on. Ideally, securing the House’s support for key legislation is part of it too, though not, as the UK Cabinet Manual notes, winning every vote.

A party that has nothing more than a plurality ― especially, but not necessarily, a narrow plurality of seats in the House of Commons may fail to secure funds and support for legislation from the rest of the House. In that case, it will lack any “authority to govern”, or indeed any ability to do so. Having its leader as Prime Minister will have as much significance as being an Admiral in the Great Navy of the State of Nebraska. This is why the ability to command the confidence of the House of Commons ― that is (oversimplifying a bit), to secure its support in votes on budgetary matters and some other key issues ― is the fulcrum of the rules on government formation, as explained by Professor Lagassé and as recorded in the UK and New Zealand cabinet manuals.

Some of the people who are claiming that winning a plurality of seats in the House of Commons is all that matters are not thinking this through because they do not understand what governing in our constitutional system actually involves. But others ― and presumably those who manufactured this whole “debate” are among them ― surely do understand, and have a further agenda. They would not be content to have a Prime Minister take office without being able to do anything with it. Instead, they would argue that their man is entitled not to be opposed by a hostile majority of Parliament, and that opposition (if not Opposition) is antidemocratic and illegitimate.

This is the end game here. We will be told that the majority of the House of Commons needs to make itself scarce, figuratively at least. And, to add insult to injury, we will be told that this is in the name of democracy and the will of the people.

I don’t suppose any disclaimers of partisanship would be particularly useful at this point. My regular readers can surely tell where my antipathies lie (everywhere, really). Others wouldn’t believe me anyway. Like Professor Lagassé, I lament the difficulty, indeed the impossibility, of “good faith discussions with partisans” who “cast academic analyses as ideological disagreements, or to think there’s a scholarly plot afoot, if our views don’t align with partisan objectives”.

Maybe because I am lawyer and not a political scientist, though, unlike Professor Lagassé I am not quite content to “understand why an academic perspective might be dismissed as irrelevant or out of touch”. Constitutional rules are, well, rules, and the fact that the person reciting them is allegedly “out of touch” is beside the point. This is as true of conventions as it is of legal rules (assuming there is a difference between the two, which I doubt). Rules matter, and they have an existence independent of misrepresentation by either political partisans or Supreme Court judges. More often than not, this blog is devoted to pointing out the latter. But now there is seemingly a need to sound the alarm about the former. Consider yourselves warned.