The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

Trinity Western: Is this the price of good doctrine?

 

In Trinity Western, the Court confirmed (to undoubted cries of agony) that its approach to judicial review of administrative decisions implicating Charter rights, set out in Doré, is nominally still good law. But in application, the Court significantly changed Doré.  It applied the typical tests developed in the context of constitutional challenges to legislation, not the new approach set out in Doré. One is forced to ask whether the ambitious Doré project worked out, or if it is one more example of the Supreme Court saying one thing and doing the opposite.

As a refresher, Doré held that the typical “two-step” approach to Charter adjudication does not apply in the case of an administrative decision engaging Charter rights. The typical approach, to the Court, was an awkward fit to the varied context of administrative decision-making [6]. Instead, the Court’s new approach started from the unassailable proposition that all administrative decision-makers are bound by law, most notably the Charter. Because administrative decisions are “always required to consider fundamental values” under the Charter, [35] a decision-maker is supposed to balance “Charter values with the statutory objectives” [55].  This was its answer to what courts should do when administrative decisions “implicate” Charter values [34].

On judicial review, the question was whether the balance was proportionate, nothing more or less. In effect, the Court merged administrative and constitutional review. But importantly, Doré said nothing else on when a Charter value arises, who has the burden of demonstrating the application of a Charter value on the facts, or what test a court applies to determine when a Charter value is engaged.

Specifically, the Court did not say that the tests which apply to Charter challenges of legislation apply in the context of administrative discretion. For example, Doré did not consider whether the typical test for s.2(b) of the Charter (the right at issue in Doré) applied on the facts.  While this may be because the test for freedom of expression is quite permissive, I think there is something else at play. The Court did not explain how a claimed Charter value becomes constitutionally cognizable in the context of a case. In fact, arguably, the application of the typical Charter breach tests would be contrary to the Doré project; the Court expressly said that its “more flexible administrative approach” was “more consistent with the nature of discretionary decision-making” and its varied contexts [37]. The application of court-made tests would be contrary to the supposed “deeply democratic” nature of Doré, which embraced a diffused form of constitutional decision-making, rejecting the idea that courts should undertake a de novo review of constitutional values on judicial review [51].

In the Court’s next case, Loyola, it introduced a new requirement.  Loyola concluded that the first question in the case of a constitutional challenge to the exercise of discretion is “whether the decision engages the Charter by limiting its protections” [39]. This first step was a prerequisite to a consideration of whether the statutory objectives and Charter rights were proportionately balanced by the decision-maker.  But this “preliminary question” was not alluded to in Doré. In other words, the Doré Court did not make it a prerequisite to determine whether a right was “limited.” Doré used the term “implicated.”

This might be semantic, but I tend to think otherwise. There is a qualitative difference between a right being “limited” and a right being “implicated.” The former implies a prima facie assessment of merit—an analysis of whether there is some element of disproportionality. On the other hand, rights can be implicated without a finding of a limitation requiring justification. In fact, the Court put the question in Doré as which approach to apply when “a party argues that Charter values are implicated on judicial review” [52] (my emphasis). Implication seems to simply mean an argument.

In a likely attempt to make this distinction clearer, lower courts after Loyola added a new bug: the application of the tests typically used by courts to analyze constitutional challenges to legislation.  In many ways, this is an understandable extension on the Loyola limitation requirement; these tests provide some doctrinal method by which to determine if a right is limited requiring justification.

Take E.T. v Hamilton-Wentworth District School Board. The context was a freedom of religion claim against the decision of a school board. The typical test to determine a freedom of religion infringement under s.2(a) provides that: (1) the claimant must demonstrate that he has a sincere religious belief (2) the claimant must show that the impugned law interferes with these beliefs in a manner that is more than trivial and insubstantial (see Hutterian Brethren, at para 32). The Court of Appeal for Ontario concluded that while the claimant made out a sincere religious belief (the subjective component of the test), the claimant failed to satisfy that the infringement at play interfered with that sincere belief [33]. Justice Sharpe concluded that “[a]s I have found no interference with the appellant’s freedom of religion that would engage the protection of s.2(a), it is unnecessary for me to consider whether, under the Doré/Loyola framework” the decision was reasonable [35]. While Lauwers and Miller JJA concurred in result with respect to the first part of the framework, they dissented in the reasoning, pointing out a number of challenges with the Supreme Court’s framework–and actually declining to apply the second step of the framework at all. But they did not dissent on the bifurcated nature of the analysis, and at any rate, the comments on the framework were likely obiter. For the record, E.T. does not stand alone.

In Trinity Western, the Court conducted the same analysis as in E.T. It first cited the two-step test for freedom of religion claims [63], and then concluded that “[i]f, based on this test, s.2(a) is not engaged, there is nothing to balance.”

E.T. and Trinity Western basically introduce the typical bifurcated Charter analysis which applies to legislation to the judicial review context. A right must be engaged/infringed before moving to the s.1 justification analysis.  But this was not what Doré prescribed. It seemed to introduce a more holistic exercise, based around proportionality. In this way, Trinity Western seems like something qualitatively different than the balancing test employed in Doré—even if it does not embrace Oakes fully. In fact, it seems closer to Multani, a decision invoking the typical Charter tests applied to legislative challenges. That case predated Doré, and was roundly criticized by the Court.

All in all, this is good news for critics of Doré, but not for the predictability of the law on the whole. Doré was a dog of a decision, and much has been written criticizing it.  I have previously attacked Doré because it undermined the purposive approach to constitutional interpretation, and the symbiotic relationship between the tests developed in particular Charter provisions and the Oakes test. In fact, this was a feature of Rowe J’s opinion in Trinity Western. Other critics abound.

Perhaps this is an example of the law working itself pure.  Doré was unworkable, so lower courts (and the Supreme Court itself), simply relied on the existing tools of constitutional interpretation. This avoids many of the problems with Doré pointed to by critics, including the indeterminacy of a Charter “value” and what constitutes appropriate “balancing” under the Doré test.  The development also introduces a screening device for Charter claims. While all decision-makers have a requirement to consider Charter arguments, there should be no requirement to conduct a proportionality analysis in every case where a litigant invokes the Charter, because the Charter simply may not arise on the facts. In short, the approach puts the focus back on specific Charter rights and their purposes.

At the same time, Doré was supposed to solidify a completely revised relationship between administrative law and the Charter [30]. It was supposed to be a reflection of the anti-Diceyan approach to administrative law, allowing administrative decision-makers to “infuse” Charter values in the context of their statutory context and expertise [29]. Judicial review courts were not supposed to impose their understandings of constitutional law, their own tests, on administrative decision-makers.

I see this as yet another example where the Court has failed to clearly instruct lower courts and litigants. This is its modus operandi in administrative law. It fails to pick a lane and stay in it, and accordingly, it routinely says one thing and does another. Doré is no different—it counsels a merger of constitutional and administrative law, yet in practice it retains the classic approach it derided in Doré.  Lower courts are, understandably, relying on the analysis with which they are more familiar. A half-hearted balancing approach which is unclear on what must be balanced is unhelpful.

I am firmly on the side of letting Doré die. Its problems are evident, and the reliance interests are minimal—especially given the movement in lower courts and Trinity Western. But whatever the Court does with the case, it should do so convincingly. Doré is (almost) dead, but it comes at the cost of predictability. Is this the price of good doctrine in Canada?

 

Welcome, Mark Mancini

Introducing a co-blogger

For the last six-odd years, Double Aspect has mostly been a one-man show. (I have at times wondered whether the blog’s name was inappropriate as a result, but no one seemed to mind.) While it has been my privilege to welcome guest posts from time to time, and to co-host a blogging symposium on The Dunsmuir Decade, I have mostly carried the ball myself. But today I am very pleased to introduce Mark Mancini as a co-blogger.

Mark has just finished his clerkship at the Federal Court of Canada (where I clerked too, once upon a time), and is headed to the University of Chicago for an LLM. But while he is still in the process of adding letters after his name, Mark is already a rising star in Canadian public law. His work has appeared in the UNB Law Journal, on Advocates for the Rule of Law, and, just today, on the Admin Law Blog. Mark has also published a couple of posts on Double Aspect ― with a post on the Khadr settlement last year, and, more recently, an excellent contribution to the Dunsmuir symposium. In short, Mark is very much someone to keep an eye on ― and now you can do so right here on Double Aspect.

I know that, like me, Mark is committed to serious thinking about the law, and that he takes his responsibilities towards both doctrine and la doctrine very seriously indeed. I am confident that with him on board, Double Aspect will be better positioned to discharge these responsibilities, and that its quality, as well as output, will improve noticeably. Welcome, Mark!

What’s Left of Freedom?

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

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

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

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

* * *

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

The Supreme Court v the Rule of Law

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

* * *

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

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

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

* * *

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

Scandalizing!

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

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

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

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

Remarks on Bill C-76

Freedom of expression issues in an electoral reform bill

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

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

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