The Woke Dissent

The thinking animating the dissenting opinion in Ward’s case would destroy freedom of expression in the name of equality and safety

As promised, in this post, I come back to the dissenting opinion in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. I commented (mostly) on the majority opinion in my last post. In that post, I referred to The Line‘s editorial by Jen Gerson and Matt Gurney (possibly paywalled, but you should subscribe!), which addressed the case, and especially the dissent, in some detail. Ms. Gerson and Mr. Gurney write that “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” in the dissent ― that “culled plausible-sounding legalese from Twitter logic”. That’s not a bad way of putting it.

I will put it slightly differently. The dissent is, in a word, woke. And I don’t mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. As noted in my last post, I think he deserves sympathy on human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces a number of specific tenets of contemporary social-justice ideology, which, if they become law ― and remember that they were one vote away from becoming law ― would be utterly corrosive to the freedom of expression.


For one thing, the dissent erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer write:

We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child. [116]

In what is going to be a theme of my comment, this twists the meaning of words beyond recognition; conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise. It’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. In my last post, I gave the majority grief for disregarding precedent and doctrine. The dissent does the same, only much worse.

Besides, as I once noted here, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible into the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence”. This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will stripped of its “protective cloak” and proscribed as the prize.

Another way in which the dissent is woke is its wilful blindness to the context in which words appear. Like critics dragging a writer for the words of an unsavoury character, Justices Abella and Kariser claim that

Mr. Ward remarked that he defended Mr. Gabriel from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. This implies that it would be too burdensome for society to accept Jérémy Gabriel in the mainstream permanently and that ultimately society would be better off if he were dead. 

No, it really doesn’t. Mr. Ward’s persona is, as The Line‘s editorial puts it, that of That Asshole. He is making an obviously hyperbolic statement, a joke ― not remarks at a political meeting. The joke was in poor taste, to be sure, but in no non-woke person’s mind is it a statement about what is best for society. Insofar as Mr. Ward’s comedy was meant as a social commentary, it targeted taboos around joking about certain people or subjects ― not the supposed burdens, or otherwise, of disabled persons for society.

A further symptom of coddling wokeness in the dissenting opinion is its bizarre insistence that Mr. Ward bullied Mr. Gabriel. Justices Abella and Kasirer claim that “[i]n a 2012 interview, Mr. Ward himself acknowledged the view that his comments constituted bullying”. [196] But this isn’t quite true. They quote the relevant interview passage early on in their opinion: it is the interviewer who suggests that Mr. Ward’s jokes amounted to bullying. Mr. Ward himself says “I don’t know. I don’t know. It’s a good point.” [126] Not quite an admission, by my lights. But, in any case, the idea that comments about a person whom one has never met and will likely never meet, over whom one has no actual power, with whom, indeed, one shares nothing at all can amount to bullying are just twisting the meaning of this emotionally charged word. Nobody can defend bullying of course, just as nobody can, say, defend racism, and Justices Abella and Kasirer again take a leaf out of the woke playbook to redefine words in a way that makes their decision seem beyond debate.

Now, Mr. Gabriel’s classmates seem to have bullied him, and to have used Mr. Ward’s jokes in doing so. But it is only on a woke view that Mr. Ward can be liable for their behaviour. He did not commission or instigate their actions. He doesn’t even know about their existence. Again this is reminiscent of calls for the “cancellation” of a work of fiction or some scientific article on the basis that, regardless of its author’s intentions, it will contribute to discrimination by others.

Then again, Justices Abella and Kasirer wouldn’t agree that Mr. Ward had no power over Mr. Gabriel. A preoccupation with power hierarchies imagined to run entirely along the lines of “privileged” and “oppressed” demographic categories is perhaps the clearest sign of their opinion’s wokeness. They write that

that there is value in the performance of comedy and in criticizing those in power in society. But in the circumstances of this case, condoning the humiliation and dehumanization of a child, let alone one with  a disability, would fly in the face of the very idea of the public interest. … Mr. Ward’s message about Mr. Gabriel, albeit one said in jest, was that he was disposable and that society would be better off without him. Unlike other “sacred cows” targeted by Mr. Ward, Jérémy Gabriel fell victim to a stark power imbalance here. [215-16; paragraph break removed]

This focus on power imbalance explains, I suspect, the seeming inconsistency between the position of the dissenters in Ward and in  Toronto (City) v Ontario (Attorney General), 2021 SCC 34 highlighted by Christopher Bredt. (Recall that the the same four judges dissented in both cases.) The Lawyer’s Daily reports that Mr. Bredt, who was part of the legal team that

represented the intervener Canadian Civil Liberties Association, said he finds it incongruous that the minority in the Ward appeal comprises the same four judges who earlier this month vigorously defended freedom of expression to the extent that they would have struck down the Ontario government’s downsizing of wards during Toronto’s municipal election.

The incongruity resolves itself once you account for the fact that in City of Toronto the “stark power imbalance” ran the other way ― the free speech claimants were the less powerful side, and hence the good side in the moral framework that decides worth according to where a person or group stands in an a priori power hierarchy.

In the real world, power hierarchies are not so neat ― which is one of many reasons why they should not be given nearly as much importance as the woke worldview attaches to them. As The Line editors point out,

this is a kid who became famous in all of Quebec, sang, and was enthusiastically cheered by entire hockey stadiums. He performed in front of some of the most famous people in the world. And we’re to believe that the ugly jokes of one stand-up comedian was enough to undo all of this honour and fame? That Mike Ward is uniquely responsible for a disabled child’s ostracization from his peer group and suicidal thoughts? 

Justices Abella and Kasirer insist that a celebrity must be treated like everyone else, and does not lose his rights. That’s true ― in a liberal legal system where everyone has equal rights to begin with. In a system whose starting point is not equality, but people’s relative positions in power hierarchies, insistence that cultural prestige, sympathy, and (in other cases) even wealth are to be disregarded are absurd. But it too is characteristic of the specifically woke take on power and inequality.


Like some others who have written about Ward, I find it frightening that this opinion got four votes at the Supreme Court. Had the dissenters found another colleague to agree with them, it’s not only “edgelord comedians”, in The Line‘s words, that would have come under the potential fire of human rights tribunals. Make a disparaging remark about a member of any of the protected groups that references that membership? There, you’re a law-breaker. Make fun of Greta Thunberg in a way that touches on her Asperger’s and selective mutism ― remember, it doesn’t matter that you’re not targeting her for that? Don’t be surprised if the equality bureaucracy comes calling. (I am grateful to my friend and sometime co-author Akshaya Kamalnath for this example.)

And remember, too, that under Québec’s Charter of Human Rights and Freedoms “political convictions” are a prohibited ground of discrimination as well. Of course, for the foreseeable future, mockery of literal Nazis is undoubtedly safe. You wouldn’t expect human rights tribunals condemn right-thinking members of society! But that’s only good until the day “common good” conservatives get their chance to appoint these tribunals’ members. Then, I’m afraid, the boundaries of permissible discourse will shift.

But abuse of anti-discrimination law as an instrument of censorship would be only the beginning. If speech can be conduct; if the intent of a speaker doesn’t matter for attributing liability for words; if public criticism or mockery can be bullying; if speech can be censored based on how people over whom the speaker has no control might respond to it, or if the right to be free from censorship depends on one’s place in a dogmatic hierarchy of oppression; then hardly any restriction on freedom of speech cannot be justified. It will all be done in the name of safety and equality of course. But it will be no less the end of the freedom of speech, and of democracy, for all that.

It Ends Well

Thoughts on the Supreme Court’s narrow but seemingly decisive rejection of a right not to be offended

Last week, the Supreme Court delivered its judgment in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. By a 5-4 majority, it quashed an award of damages a human rights tribunal had granted to Jérémy Gabriel, a child celebrity, whom a well-known comedian, Mike Ward, had cruelly mocked. As Jen Gerson and Matt Gurney put it in The Line’s editorial (possibly paywalled, but you should subscribe!)

Ward … decided to become That Asshole, the edgelord comedian who pointed out that the kid wasn’t very good. In a few stand-up bits, Ward called the child ugly, and noted that the performances were tolerable only because he thought the singer’s condition was terminal. Nice guy. (Paragraph break removed)

The tribunal, and the Québec Court of Appeal found that this amounted to discrimination in the exercise of Mr. Gabriel’s right to “the safeguard of his dignity” under section 4 of Québec’s Charter of Human Rights and Freedoms, a.k.a. the Québec Charter. The majority of the Supreme Court resoundingly holds otherwise.

Instead of my usual blow-by-blow summary and comment, I will offer some more condensed thoughts on a few striking aspects of this case. While the most important thing about Ward is what, if anything, it means for the freedom of expression, there are a few other things to mention before I get to that. In this post, I mostly focus on the majority opinion. I will shortly post separately about the dissent.

The Human Face

Because I will argue that the majority decision is correct, and indeed that it was very important that Mr. Gabriel not win this case, I want to start by acknowledging that he has had it very hard. Mr. Ward’s jokes at his expense were cruel. Mr. Gabriel did suffer, greatly ― we are told that he even tried to kill himself at one point. I think we can wonder whether the connection between these things is all that strong. I’m not persuaded by the dissent’s imputation to Mr. Ward of the full responsibility for Mr. Gabriel’s bullying by his classmates. We can also argue that anti-discrimination law ― perhaps any law ― isn’t the solution. But we have to recognize that a person has been in a lot of undeserved pain, and a person who, even before this case, had not had it easy in life.

The Court

As already noted, the Court is narrowly divided. The Chief Justice and Justice Côté write for the majority, with Justices Moldaver, Brown, and Rowe concurring. Justices Abella and Kasirer write for the dissent, joined by Justices Karakatsanis and Martin. For those keeping score at home, this is the exact same alignment as in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. Indeed, even the authorship of the opinions overlaps: in City of Toronto, the Chief Justice wrote with Justice Brown, while Justice Abella wrote for the dissenters.

I’m old enough to remember, as they say, how smugly self-satisfied Canadian commentators were, just a few years ago, at the consensus reigning at our Supreme Court, in contrast to the US one always splitting 5-4. To be sure, two cases do not make a trend, but I think it’s pretty clear that on the Supreme Court as it has recently been constituted there is ― though there are always exceptions ― a somewhat cohesive group consisting of Justices Côté, Brown, and Rowe, and perhaps an even more cohesive group led by Justice Abella, with Justices Karakatsanis, Martin, and Kasirer. The Chief Justice and Justice Moldaver are the swing votes. It remains to be seen how, if at all, Justice Abella’s retirement is changing this, but in the meantime, our Supreme Court has been fractured along lines that can be predicted. This is not necessarily bad. But let’s not be smug.

One odd thing to add is that, whereas in City of Toronto majority and dissent were ― by the standards of the Supreme Court of Canada ― at each other’s throats, here they studiously ignore one another. I’m not sure which is better, but the contrast between cases argued and decided just a month apart, by identical alignments, and with overlapping opinion authorships, is striking.

The Case

One uncomfortable question I have is: should the Supreme Court have taken this case at all? Let me take you straight away almost to the end of the majority judgment, where we learn, for the first time, the following

[I]n light of the Tribunal’s finding that Mr. Ward [translation] “did not choose Jérémy because of his handicap” but rather “because he was a public personality” (Tribunal reasons, at para. 86), it must be concluded that the distinction was not based on a prohibited ground. This conclusion on its own is sufficient to dispose of the appeal. [91]

Everything else that the Court has said and that I’m about to discuss ― that’s just obiter dicta. The tribunal made a basic logical mistake, which, as the majority explains, the Court of Appeal then glossed over. That was, of course, unfortunate. But it’s not the Supreme Court’s role to correct basic logical mistakes by tribunals or even courts of appeal. They’re there to develop the law. And develop the law they do ― in a way that, if the majority is right (and I think it is), was pressing and necessary. But also in a way that, by the majority’s own admission, is beside the point in this case.

I think this raises the issue of the Supreme Court’s role in our constitutional system. Where is the line between developing the law in deciding cases, as we expect them to, and developing the law by making big pronouncements that are unnecessary to decide cases? Should a court refrain from doing the latter, or may it properly seize on the opportunities that present itself to it to provide important guidance to lower courts? I have no firm views on any of this, but I think the questions are worth thinking about. (For some related musings, see here.)

Jurisdiction

Back to the very beginning of the majority’s reasons:

This appeal … invites us … to clarify the scope of the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse … and the Human Rights Tribunal … with respect to discrimination claims based on the … Quebec Charter. [1]

Clarify the… what? Yes. That word. The majority uses it several times in the course of its reasons. In particular, it speaks of “the distinction that must be drawn with respect to jurisdiction over, on the one hand, an action in defamation and, on the other, a discrimination claim in the context of the Quebec Charter“. [22]

This is odd. A mere two years ago, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, all of the Ward majority judges signed an opinion that not only eliminated jurisdictional questions as a distinct category of correctness review, but seemed to endorse scepticism at the very “concept of ‘jurisdiction’ in the administrative law context”. [66] Vavilov said that what might previously have been thought of as jurisdictional questions are legal questions like all others, subject to reasonableness review, except when the respective jurisdictions of two administrative bodies must be demarcated.

One recent example of this reasoning is the decision of the Ontario’s Superior Court of Justice in Morningstar v WSIAT, 2021 ONSC 5576, about which I have written here. The Court roundly rejected the argument that, as I summarized it

the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”, [63] ― that is, by hav[ing] the court ensure the boundary is drawn correctly.

I thought ― and still think ― that that was a correct application of Vavilov. Ward, though, says that there is indeed a jurisdictional boundary between administrative tribunals and courts. I don’t think this is consistent with Vavilov. Nothing turns on this here because the case gets to the courts by way of statutory appeal rather than judicial review, and ― under Vavilov ― the correctness standard applies to all legal questions in such circumstances. But the tensions inherent in Vavilov, including in its attempt to rid Canadian administrative law of the fundamental concept of the law of judicial review are becoming apparent. (Co-blogger Mark Mancini has made a similar observation in the latest issue of his newsletter.)

Interpretation

One of the things the majority is right about is that Ward is, among other things, a case about interpretation. It requires the courts to make sense of a somewhat peculiar statutory scheme, which protects, among other things, rights to the freedom of expression and to the “safeguard of [one’s] dignity”, says that “the scope of the freedoms and rights, and limits to their exercise, may be fixed by law”, and protects equality in “the exercise and recognition” of these rights, rather than as a general self-standing right. This is not an easy exercise and I won’t go into all the details, but I will make a few comments.

The majority deserves credit for trying to work out an independent meaning for the right to the safeguard of one’s dignity. As it notes, dignity is a very tricky concept ― and the Supreme Court itself has tried to avoid putting too much weight on it in other contexts. But here it is, in the text of the Québec Charter, a statute that binds the courts. It will not to do to simply find violations of dignity when other rights are violated in particularly egregious ways, as Québec courts had done. The Québec Charter makes it a distinct right, and the courts must treat it as such. At the same time, they have to give it defined contours. The majority seeks to do so by stressing the importance of the safeguard of dignity, to which the right is directed:

Unlike, for example, s. 5 [of the Québec Charter], which confers a right to respect for one’s private life, s. 4 does not permit a person to claim respect for their dignity, but only the safeguarding of their dignity, that is, protection from the denial of their worth as a human being. Where a person is stripped of their humanity by being subjected to treatment that debases, subjugates, objectifies, humiliates or degrades them, there is no question that their dignity is violated. In this sense, the right to the safeguard of dignity is a shield against this type of interference that does no less than outrage the conscience of society. [58]

What the majority does is a careful and, I think, pretty convincing reading of the statutory text. Good.

Some things the majority says are not so good. For instance: “the interpretation of this provision must be refocused on its purpose by considering its wording and context”. [55] No, no, no. Interpretation should be focused on text understood in context. Purpose can sometimes help a court understand the words and enrich its understanding of the context, but it should not be the focus of interpretation. And then, there is this:

This Court’s jurisprudence also establishes “that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes” … It follows that, as long as this is not contrary to the usual rules of interpretation, symmetry in the interpretation of the various instruments that protect human rights and freedoms is desirable. [68; quoting Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City), 2000 SCC 27, [2000] 1 SCR 665, [47]]

What are we to make of this? If usual rules interpretation are to prevail, differences in terminology must make a difference, if not to the objectives then to the effects of human rights as of any other statutes. And the idea that differences in wording don’t matter because objectives are key to interpretation is specifically rejected in the majority opinion in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 ― signed onto by the same five judges who are in the majority in Ward (even as it is endorsed by the concurrence).

Between the jurisdiction issue and this, I cannot help but wonder whether their Lordships remember what they said last year. Or are they trying to say that we are supposed not to? This stream of inconsistent pronouncements ― by the same people! ― reveals, at best, a lack of attention to legal doctrine and craft. It is very disappointing.

Freedom of Expression

I finally come to the meat of the case. Here too, I want to praise the majority for getting things fundamentally right, but also to criticize them for saying things along the way that are doubtful or even wrong in themselves, or inconsistent ― without explanation ― with important precedent.

Let me start with a quick note from the “judges are not philosophers” file. The majority’s discussion of the freedom of expression begins with the assertion that it, “[l]ike the right to the safeguard of dignity … flows from the concept of human dignity”. [59] Perhaps. But in the next paragraph the majority quotes Joseph Raz’s claim that “a person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected”. [60] These are two quite different views of the foundations and purposes of the freedom of expression ― one deontological, the other utilitarian. Perhaps nothing turns on which of these is correct in this case, but if so, the majority shouldn’t be making these philosophical declarations at all. And I suspect that in some cases the choice might actually make a difference. The majority’s approach is muddled and unhelpful.

Now for some good things. This, especially: “freedom of expression does not truly begin until it gives rise to a duty to tolerate what other people say”. [60] This is the key to so many disputes about freedom of expression. Speech is not harmless. It can hurt. It can propagate falsehoods. It can inflame base passions. But freedom of expression means sometimes having to tolerate such things ― just like freedom of assembly means having to tolerate noisy protests, and freedom of religion means having to tolerate heresy and blasphemy ― even when their cost falls on particular groups or even individuals.

The majority adds that “[l]imits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience”. [61] This sets a fairly high bar to limits that will be considered justified. It also acknowledges that the audience has its share of responsibility in appreciating troublesome words. Courts assessing a limit on the freedom of expression should not assume that citizens are, by default, unthinking and gullible playthings for the tellers of tall tales. This is also good and important. Assuming away all critical sense among the citizens would help justify all kinds of restrictions on speech, including, and perhaps especially, in the political arena. It is fundamentally incompatible with the notion of a self-governing, responsible citizenry.

But this insistence sits uneasily, to say the least, with the Court’s position in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. There, the majority said that

The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case. Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm. [77]

This is contrast to the Harper dissent’s concern that “[t]here [was] no demonstration that” the limits on “third party” spending at issue were “required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair”. [38] By my lights, Ward‘s insistence on serious reasons to fear specific harm, as well as on audience discernment is much more in tune with the Harper dissent. Because I regard Harper as an abominable decision, I am happy to see Ward go in a different direction. But there is no comment in Ward on how these cases interact. Again, it’s as if the judges don’t remember what the law says, though at least Harper is a much older case that Vavilov and Québec Inc.  

All that said, the substance of the majority’s decision is right and reassuring (or it would be reassuring if more than five judges had signed on). The majority insists that the right to the safeguard of one’s dignity most not be “vague” or given “a scope so broad that it would neutralize freedom of expression”. [80] It stresses the objective nature of the test for whether this right is breached and rejects the modified objective standard of “a reasonable person targeted by the same words”, because “[t]hat approach results in a shift toward protecting a right not to be offended, which has no place in a democratic society”. [82] What matters is neither “the repugnant or offensive nature of the expression [nor] the emotional harm caused”, [82] but the effect of the words on listeners: would “a reasonable person, aware of the relevant context and circumstances, … view the expression … as inciting others to vilify [its targets] or to detest their humanity on the basis of a prohibited ground of discrimination” [83] and would “a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted”? [84]

All this is the more important since the list of prohibited grounds of discrimination under the Québec Charter is very broad and includes “political convictions”. As I have written here, “even if we accept the need to protect vulnerable minorities from hate speech targeting them, I struggle to see what makes it necessary to extend this protection to members of political parties or movements”. Protecting people from mockery, let alone hurt feelings, based on their political views is incompatible with lively democratic debate. However much we can wish for such debate to usually be civil, I think it’s a mistake to insist that it always must be, and certainly a grave mistake to put government officials in charge of deciding whether it is sufficiently civil on any give occasion.


The insistence on the need for objective assessment and the clear rejection of a right not to be offended will, I hope, be the key takeaway from Ward. For them, we can forgive the majority opinion its many flaws. That there can be no right not to be offended in a society that proclaims its commitment to the freedom of expression and to democracy might have been self-evident ten years ago, but it evidently isn’t anymore. The dissent offers us a glimpse of what a world in which this truth isn’t recognized looks like. I will focus on it in a forthcoming post.

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.

Still Unhappy

The Canadian Judicial Council’s report on the former Justice Camp does little to ease my concerns

First of all, my apologies for the silence in the last couple of weeks. Let me return to something that happened during that period: the Canadian Judicial Council issued its Report to the Minister of Justice in the matter of Robin Camp, the “why didn’t you keep your knees together?” judge. The Council confirmed the recommendation of the Investigative Committee it had previously set up that the judge be dismissed, and Justice Camp finally resigned ― which, as I argued in my post on the Committee’s report he should have done long ago. Unfortunately, Justice Camp’s failure to do so gave the Committee the occasion to issue a report that was, in my view, seriously flawed. The Judicial Council’s own Report does little to remedy these flaws.

My general objection to the Committee’s report was that it was not clear on what basis it recommended that Parliament dismiss Justice Camp. Perhaps it was his (inconvertible) sexism. Perhaps it was his “antipathy” towards, indeed his “bias” against, the law he was applying, or maybe not the law itself but the values underlying it, though it is possible that that was only because this law was “laden with concerns about gender equality bias and discrimination”. Perhaps it was because Justice Camp’s behaviour contributed to a public impression that the system is rigged against the victims of sexual assault. All of these factors were present in Justice Camp’s case, but what about some future one where they would not be? Parliament’s power to remove a judge from office is too grave to be exercised on an uncertain basis.

Unfortunately, the Judicial Council does not clarify matters. Its own report, beyond assertions that it has carefully considered that of the Committee, consists mostly of and of responses to Justice Camp’s objections. The responses are arguably sufficient so far as they go, but while they may have persuaded Justice Camp to finally fall on his sword, they provided little guidance for future that may be somewhat, but not entirely, similar to his. We still do not know whether the various factors identified by the Committee are all necessary, or which of them are, for a judge to be removed. As I did in my earlier post, I want to acknowledge the difficulty of being precise here. Each case is unique and calls for a judgment on its own fact. But I still believe that more clarity about the circumstances in which it is permissible to interfere with judicial independence would have been in order.

The Council might have tried to address one specific point tried to make ― not that I think it did so because I made it! ― about the potential chilling effect of the Committee’s report on judges who might be less than enamoured with the law as it happens to stand from time to time. The Council wants us to know that it is

mindful that any criticism Council levels against a judge must not have a chilling effect on the ability of judges, generally … to call attention to deficiencies in the law in appropriate cases. Indeed, judges have a duty to be critical of existing legislation in specific circumstances, for example where a judge forms a view that a specific provision contravenes our Constitution or otherwise operates in a deficient manner. We do not in any way intend to deter judges from asking the hard questions and taking the difficult positions that are sometimes necessary to discharge their judicial responsibilities. [35]

This is a useful clarification, although in my view it does not go far enough. It does not address the Committee’s confusing, and in my view unsustainable, attempt to distinguish (permissible) criticism of a law’s practical effects and (impermissible) criticism of values underpinning the law. Nor does it address the unjustified asymmetry between judicial commentary that criticizes the law and that which goes out of its way to approve it, though admittedly the latter sort of commentary was not in issue here. Be that as it may, the Council notes that “some of the Judge’s comments in this case were not in the nature of legitimate legal inquiries or comment” [36], perhaps because they were irrelevant to factual and legal issues before him. But again, this strikes me as too vague to provide useful guidance for the future about the scope of “legitimate … comment”.

It is said that hard cases make bad law ― not hard in the sense of intellectually challenging, but hard in the sense of emotionally difficult. But perhaps so do easy ones. Justice Camp’s case was easy ― in the sense that it was easy to want him gone from the bench. But that may well have encouraged the people who decided it ― thoughtful jurists though they are in their day jobs ― to spare themselves some difficult line-drawing exercises. I can only hope that we do not come to regret this.

Unhappy Camper

The shortcomings of the report into the misconduct of Justice Camp

The Inquiry Committee set up by the Canadian Judicial Council to investigate whether Justice Robin Camp ― the “why didn’t keep your knees together” judge ― has “committed misconduct and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge” has produced a report concluding that he did. The Report has been praised, not least for its pedagogical qualities. But of course, its primary function is not to be a teaching aid in educating lawyers and judges about rape myths and the conduct of sexual assault trials, useful though it may be in doing that. It is, first and foremost, the potential foundation for Parliament’s exercise of one of its most tremendous powers: that of moving an address for the removal of a judge. And in that respect, in my view, the Report falls short of what would have been desirable.

To be clear: I do not say this out of any sympathy for Justice Camp. His conduct towards the complainant (and, to a lesser extent, the prosecutor) during that notorious trial was appalling, as the Report details. And, unlike Brenda Cossman, I do not think that whatever efforts Justice Camp has undertaken since to educate himself about the history and purposes of sexual assault law are enough to allow him to go on in office. This re-education, whatever its value, cannot address the fact that he had the conceit of conducting a trial in an area of law about which he knew next to nothing. Since he is now at the Federal Court, there would be no sexual assault trials in Justice Camp’s future even if here were to stay there, but there could be plenty of other cases in areas of the law about which he does not know much ― and I do not think that litigants who appear before him in such cases can be assured that he will make enough efforts to educate himself about those. So there are sufficient reasons in the report for Justice Camp to resign ― indeed, to make resignation the only right course of action.

But are there sufficient reasons for Parliament to fire him? That is not so clear to me. The Report never quite articulates a clear reason why Justice Camp should be removed from office. Instead, it seems that a combination of several factors, which may or may not have been sufficient on their own (we are never told), lead to that conclusion. Such an approach is not necessarily objectionable in other contexts, but it is a problem here, because, not knowing which of the Report’s concerns might have been the decisive one, governments, activists, or simply disgruntled individuals with an ax to grind may be tempted in future cases to use any one of them as a stand-alone motivation for an attempt to remove another judge. And this is disturbing, because these concerns can potentially extend to circumstances quite unlike those involved here, and the exercise of any power, but especially one as awesome (in the old sense of the word) as the removal of a judge, in the absence of clear principles limiting this power, is worrying.

* * *

Part of the reason why the Report suggests that Justice Camp ought to be removed from office is simply the sexist stereotyping that many of his comments during the trial and his subsequent reasons for judgment reflect. But it is only a part, and as I read the Report not the decisive one. Rather, the Report puts a great of emphasis on the fact that Justice Camp’s comments demonstrated his “antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials”. [6] The Report suggests that “antipathy” towards the law the judge is charged with applying, or maybe to the values underlying this law, in itself amounts to bias ― though it is not quite clear whether this is only in the unique circumstances of a sexual assault trial, but perhaps more generally.

The Report notes that “[g]enerally, judges refrain from commenting on the merits or wisdom of laws enacted by Parliament or the provincial legislatures”, but also “that judges are permitted to criticize the law in certain contexts”, [86] especially in constitutional cases. The Report concludes, however, that

Justice Camp’s comments about [the ‘rape shield’ provision] of the Criminal Code are far removed from … permissible criticism. His comments were gratuitous and stemmed from a limited understanding of what he was so quick to criticize. Moreover, his criticisms were not based on thoughtful analysis nor even any analysis at all. [88]

This criticism is to be contrasted with, not compared to, the good sort of criticism that “ha[s] nothing to do with the values underlying those provisions” that a judge is criticizing, “and everything to do with the well-known and widely accepted fact that” the application of these provisions did not serve these values well. [89] The report finds that “Justice Camp held a bias, whether conscious or unconscious, in the form of an antipathy towards the present laws governing sexual assault trials”; [104]  indeed, “his bias, whether conscious or not, led him to express disdain for the law in its current state”, [108] to formulate “comments … reasonably understood as being disparaging of legislative attempts to remove discredited myths from sexual assault law”. [182]

What the Report sees ― quite fairly, I hasten to add ― as Justice Camp’s “disdain for the careful development of the law through legislation and jurisprudence designed to bring balance and equality to a process that historically discriminated against women” [276] is, if I understand correctly, every bit as important as his underlying sexism in justifying Justice Camp’s removal. On the one hand,

[s]exual assault law and sexual assault trials are laden with concerns about gender equality, bias and discrimination. Justice Camp’s manifest failure to behave impartially and to demonstrate respect for equality in such a context, over a protracted period of time, has raised considerable public concern about how women who allege they have been sexually assaulted are treated in the judicial system. [287]

On the other,

[w]hen a judge displays disrespect or antipathy for the values that a law is designed to achieve or towards witnesses whose vulnerability is exposed, it encourages a similar disrespect or antipathy in others in the judicial system. Judges are not viewed simply as participants in the justice system. They are expected to be leaders of its ethos and exemplars of its values. … A judge who uses his role in a criminal trial to denigrate values he should respect commits serious and significant misconduct. [289, 291]

The Report makes an additional, and only distantly related point, stating that,

Justice Camp’s conduct … renders it more difficult for judges to make credibility findings adverse to a complainant in a sexual assault prosecution without fear of facing complaints that they too are part of a system rife with bias. [292]

Again, it is difficult to tell what contribution this argument makes to the report’s overall conclusion: is it important? is it necessary? is it sufficient? There is no telling.

* * *

None of the points the Report makes are wrong. But, as I suggested above, because we do not know how decisive each of them is, I worry about their being taken in isolation and used to attack judges in the future. Even if the attacks prove unsuccessful, they are liable to have a chilling effect that would undermine judicial independence.

Take the very last point, about Justice Camp’s conduct contributing to an impression that, to use a recently popular term, the system is rigged. It is very likely true. But how much can it matter? If a court issues a decision which is legally questionable and which provokes a public outcry, this is likely to “render it more difficult for judges” to reach similar outcomes “without facing complaints that they too are part” of a rigged system. But does this mean that any legally questionable, or indeed obviously mistaken, judicial decision is grounds for complaint to a judicial council (as opposed to appellate intervention, which is supposed to be the remedy for errors of law, even very bad ones)? I don’t think this is what the report means to suggest, but on its face, its argument is not limited to “credibility findings adverse to a complainant in a sexual assault prosecution”, and could be applied in all sorts of other situations.

The report’s discussion of judicial “antipathy” for or “denigration” of the law suffers from the same flaw. Is it always true that antipathy to a law that a judge ought to apply ― or perhaps to the values underlying this law ― amounts to bias and hence to misconduct? If so, then opinions such that of Judge Richard Posner in Khan v State Oil, 93 F.3d 1358 (1996) (7th Cir.), much of which was devoted to showing why the relevant Supreme Court precedent was “unsound when decided”, would amount to judicial misconduct (although Judge Posner actually applied the precedent that he was criticizing). And by the way, why is there, if indeed there is, a distinction between judicial criticism of the law, which may (at least sometimes) be tolerable (though this isn’t very clear), and judicial criticism of values underlying the law (which apparently is not)? Judges, after all, are not just sworn to uphold the values of the law ― they are sworn to uphold the law itself, though they sometimes forget this, so if criticism of values suggests that a judge might not do his or her duty, then presumably so does criticism of the law itself.

But perhaps criticism only amounts to bias when the law in question is “laden with concerns about gender equality, bias and discrimination”. Yet what area of the law is not laden with concerns about equality, bias, discrimination ― at least in the opinion of some theorist? (And whose opinion about these matters ought to count?) I am not being snarky here ― I certainly do not mean that the report is wrong about sexual assault law being laden with these concerns, or that various critical theorists are always wrong about the presence of bias in other areas of the law. What I am saying is that if the existence of concerns about bias, or perhaps about one specific form of bias (but then, why this one in particular?), are the limiting principle that defines when criticism of the law is and is not permissible, then the principle is hopelessly uncertain, and cannot do much limiting at all.

Let me make a final point in this vein, which is something of a pet peeve. If, as the report suggests, judicial antipathy to the values underlying existing law is in itself bias against those whom the law is meant to protect, then isn’t vocal sympathy for the values underlying existing law bias in favour of its beneficiaries? And isn’t bias in favour of a party or, as in this case, a witness, just as much a breach of judicial impartiality as bias against one? This isn’t just a theoretical concern: courts do sometimes go out of their way to commend the law, and while I have argued elsewhere that they should avoid doing so, I would not want judges who commit this particular judicial sin to be the subject of inquisition.

* * *

Perhaps I am making a little too much of the Report’s failure to draw clear lines between what is and what is not permissible. Perhaps a little chilling effect forcing judges to err on the side of circumspection in their commentary might even be a good thing. Then again, I doubt somehow that judges who go around the country or even the world telling people that their job is “to think about what’s best for Canadian society” rather than anything so lowly as merely applying the law will be deterred.

 It may be that judicial misconduct is, to some extent, one of those “I know it when I see it” things. But people disagree about what it is that they see. Where I see distressing arrogance, others see business as usual, and vice versa.  We might all agree about Justice Camp, but it is likely enough that we will not agree about some future cases. And while reasonable disagreement is inevitable in law and politics, and arguably something to be embraced rather than feared, there a few areas where clarity and generally understood rules are especially important. The realm of permissible interference with judicial independence is one of them. For this reason, the Report leaves me with a very uneasy feeling.

Can’t Work

The most serious argument I have seen a representative of the Québec government invoke in defence of its proposed “Charter of Values” is Bernard Drainville’s claim, in an interview to the Globe, that “[w]orking for the state is not a right, it is a choice that comes with certain responsibilities.” The argument is that since the proposed Charter would only apply to state employees, and working for the state is not a right, it would not infringe anyone’s rights ― it would only condition access to something of a privilege. Of course, being most serious argument in a heap of lies and lunacy need not mean much, but it is, I think, serious enough to deserve an answer. Nevertheless, the argument cannot work.

One obvious response to it is to invoke an anti-discrimination logic. Even if something is a matter of privilege or of discretion rather than of right, it cannot be granted on a discriminatory basis. Mr. Drainville would surely accept that a law that, say, excluded Jews from the civil service would be discriminatory and wrong, even though, as a general matter, no individual, Jewish or otherwise, has a right to be a civil servant. It is one thing to say that an individual does not have an entitlement to something that can only be obtained as a result of a competitive process (in this case, recruitment); it is quite another to exclude all members entire groups from even participating in the competition. And because the Charter of Québec values, as proposed, has a largely disparate impact on different religious groups, imposing basically no hardship on Christians or the non-religious, but a lot of hardship on the members of some religious minorities, it is discriminatory unless these restrictions can be justified on some independent basis, and not merely by saying that working for the state is not a right. (On the operation of anti-discrimination law in this context, I recommend this post by my erstwhile Federal Court colleague, and now labour and employment lawyer, Brian Gottheil.)

Mr. Drainville’s argument also fails on the logic of religious liberty and accommodation, although the reasoning here is a bit more complicated. Mr. Drainville’s position is a special case of the general principle that the case for solicitude towards a religious behaviour which clashes with some general rule is rather less strong if the clash can be avoided ― avoided, that is, not by the believer renouncing his or her religiously-motivated behaviour, but by adjusting his or her secular conduct so that the clash will not arise. To make this abstract formulation clear, consider the following examples: (1) a Sikh who wants to wear a kirpan to school, despite a general rule prohibiting dangerous objects in the school; (2) a Sikh who wants to wear a kirpan to attend a session of Parliament, despite a rule prohibiting dangerous objects in the parliamentary buildings; and (3) a Sikh who wants to wear a turban while driving a motorcycle, making it impossible for him to wear a helmet, despite a rule that makes helmets mandatory. I think that the argument for exemption in case (1) is extremely strong, because school attendance is mandatory, so that the believer has no way out of the conflict with the general rule. In case (3), by contrast, the argument for exemption is not all that strong, because riding a motorcycle is a purely optional behaviour, something done out of pleasure rather than necessity. The believer can drive a car instead, and get around without any interference with his religious duty. (Of course, we might say that the helmet requirement is a paternalist regulation and the case for it is very weak too, tipping the balance in favour of granting the exemption, but that’s a somewhat different argument.) Case (2) is, arguably, somewhere in the middle. Attending a session of Parliament is not mandatory; most people get on just fine without ever doing it. However, it is, I think, a matter of right in a democracy, and citizens should not be deprived of it without very grave reasons indeed. In my view, the case for the exemption is quite strong here, though not as strong as in (1).

So where does working for the state fall on this scale? Mr. Drainville says that being a civil servant is like riding a motorcycle (except, I guess, that it is less dangerous and exciting) ― a purely optional behaviour; if one doesn’t like the conditions that come with it, one just shouldn’t do it. But that is not quite so, especially in the context of 21st-century Québec (or indeed, albeit perhaps to a somewhat lesser extent, any advanced society). The public sector employs a sizable part of the total workforce. But, more to the point, in some professions, it is the dominant, if not the only, employer. If one is a schoolteacher, one is likely to be working in a public institution (though there are, to be sure, some private schools). If one is a doctor, one has to pass through a period of public employment as a resident; in some areas (say, emergency medicine), state hospitals are the only potential employer. Cooks and janitors, who the PQ also considers to be bearers of state authority whose appearance needs to be secularized, could potentially leave public employment and take up similar, if less well-paying, jobs in the private sector. But for many professionals, that is simply not an option. For them working for the state is not a right (the state could, after all, privatize some of its activities, or simply fire them to save costs), but it’s not exactly a choice either. The case for accommodating their religious duties is much stronger than it is for the motorcycle-rider.

Of course, there are always alternatives. If a professional cannot work in Québec, chances are he or she will find a job in some other province. A hospital in Ontario is already advertising to McGill’s medical students, saying that (unlike Québec), “we don’t care what’s on your head. We care what’s in it.” But we might still hope that Mr. Drainville did not mean to say, like the officials of the Russian Empire, in the wake of late 19th-century Jewish pogroms, that “the western border is open to you.” Or did he?

Vive la Différence!

It was a long time in coming, but the Supreme Court has finally delivered its ruling regarding the constitutionality of Québec’s (absence of) legal regime for de facto (a.k.a. common law) couples. The dispute pitted a wealthy businessman, identified by the Supreme Court as “B”, against his former common law spouse (and mother of his three children), identified as “A”. (In Québec, they are better known by the pseudonyms Éric and Lola). She claimed that the fact that provisions of the Civil Code of Québec (CCQ) relative to the division of family property and support obligations applied to married but not to de facto couples, such as theirs, was a breach of the equality guarantee of s. 15(1) of the Canadian Charter of Rights and Freedoms. Yesterday’s decision, Quebec (Attorney General) v. A, 2013 SCC 5, rejected that claim. The reasons, unfortunately, are obscenely long, so I will forego my usual detailed summary. After an additional rant about their length, I will summarize each of the four sets of reasons very briefly, and make some comments about the issues the decision raises and, mostly, fails to address.

First of all, let me repeat what I just said: the length of this decision is unconscionable. It is over 200 pages long. As I wrote here, when ranting about a somewhat shorter judgment,

judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. [Judges] make[] much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it.

Now, unlike in that case, part of the explanation for the judgment’s length here is that there are multiple sets of reasons, four of them in fact. But that still works out to over 50 pages on average―and none of these sets reasons had to canvass all of the issues in the case. I simply see no excuse for the Court’s prolixity.

The four sets of reasons are as follows.

1) Justice Lebel, writing for himself and Justices Fish, Rothstein, and Moldaver, would have held that the impugned provisions of the CCQ do not infringe s. 15(1) of the Charter. Although they distinguish between married and de facto couples, this distinction is not discriminatory because it neither perpetuates prejudice nor reflects a stereotype. Instead, it gives effect to people’s autonomy, a value which, along with equality and human dignity, underpins s. 15 of the Charter.

2) Justice Abella would have held that all the impugned provisions are unconstitutional. They are discriminatory because they impose a disadvantage on a group which, historically, has been the victim of strong prejudice. And they cannot be justified under s. 1 of the Charter, because the legislative purpose of preserving autonomy can be achieved by means less impairing of equality, such as a presumptive application of the legal regime for married couples to unmarried ones, subject to an ability to contract out of that regime.

3) Justice Deschamps, writing for herself and Justices Cromwell and Karakatsanis, agrees with justice Abella that the provisions in question breach s. 15(1). However, while would also have held that the legislature’s failure to provide support rights to members of de facto couples is unconstitutional, she finds that the provisions related to the division of family property are the least restrictive means of achieving the legislature’s aim of preserving autonomy, and hence are saved by s. 1 of the Charter.

4) Chief Justice McLachlin agrees with Justice Abella that the impugned provisions are discriminatory, but she holds that they can all be justified under s. 1 of the Charter, because nothing short of the exclusion of the de facto couples from the mandatory regime imposed on married ones could preserve their full autonomy, which is the legislature’s goal.

The final tally is that the provision relative to support is upheld 5-4, while those relative to the division of property are upheld 8-1.

Now for some comments on the decision.

First, the decision shows that s. 15(1) of the Charter continues to bedevil the Supreme Court. R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, which was supposed to clarify the Courts equality jurisprudence, seems to have failed to do so. The court is fractured 5-4 on the issue of the difference between legislative distinctions, which are permissible, and discrimination, which is unconstitutional. Justice Lebel thinks that, to succeed in a s. 15(1) claim, the claimant must prove that “the disadvantage” he or she complains of “is discriminatory because (i) it perpetuates prejudice or (ii) it stereotypes” (par. 186). Justice Abella, who on this point has the support of a bare majority of the court, thinks not. Prejudice and stereotyping are indicia of discrimination, but no more than that. Whenever  “state conduct widens the gap between [a] historically disadvantaged group and the rest of society rather than narrowing it, … it is discriminatory” (par. 332).

Furthermore, remarkably, not one of the four judgments discusses the possible applicability of Kapp‘s holding that, pursuant to s. 15(2) of the Charter, a legislative scheme that is intended to remedy a historic disadvantage will not be considered discriminatory even if it does not address the situation of all the groups who have suffered from that or a similar disadvantage. The family law regime challenged by A arguably had an ameliorative purpose, to help disadvantaged members of formerly-married couples. Why no mention of s. 15(2) then? Maybe B and the Québec government simply did not raise it, in which case it seems to me that their lawyers made a serious mistake. Still, I find it surprising that the court―especially Justice Lebel―did not mention it at all.

Another issue that the court does not discuss is the subject of the equality rights that A asserted. Whose rights are at issue―the de facto couples’ or those of the economically disadvantaged members of those couples? The judgments, especially those of the majority of the judges who find that s. 15(1) has been breached, shift ceaselessly between the two possibilities. But the distinction matters. It is the couples who, historically were the victims of prejudice and disapproval because their behaviour was considered immoral. But it doesn’t make sense to say, as Justices Abella and Deschamps and Chief Justice McLachlin do, that the de facto couples are denied the protection granted to married couples. The CCQ provisions challenged by A do not protect couples―they protect the economically weaker members of those couples. The trouble for the s. 15(1) majority is that historic prejudice, on which they rely to justify their conclusion of discrimination, was not directed against individual members of couples. Furthermore, the disadvantage at which individuals such as A find themselves is due, in the first instance, to their partners’ (and sometimes, though not in this case, their own) refusal to get married, rather than to any decision of the state. And so the s. 15(1) majority judgments rely on discrimination against couples or disadvantage to individuals, as suits their needs, even though one has no direct connection with the other. I’m not sure whether they are merely confused or deliberately obfuscating.

And there is a further aspect of the equality claim that the s. 15(1) majority ignores. A complains of discrimination on the ground of her marital status. The Supreme Court has long recognized marital status as a prohibited ground of discrimination for the purposes of s. 15(1) of the Charter. But marital status is different from most of the other prohibited grounds, such as sex, age, religion, or sexual orientation, in that it is a creature of the law. Most other prohibited grounds of discrimination―citizenship is the only exception I can think of―are essentially pre- or extra-legal. A person is of a certain age, a certain religion, or a certain sexual orientation regardless of what the law has to say about it. But marital status is a category entirely defined by the law. In defining marriage and other “forms of conjugality,” the law also fixes the rights and obligations that attach to that status. This definition necessarily excludes certain people, from whom the rights and obligations are also withheld.  This cannot, in itself, be discriminatory. Now, distinctions on the basis of marital status, as of other categories defined by law, such as citizenship, can be discriminatory when they have nothing to do with the definition of that category. (Justice Lebel discusses this issue, par. 220-21, but the other judgments fail to respond to his points.) And a definition of a legal status can be discriminatory on some other basis―as, for example, the traditional definition of marriage was on the basis of sexual orientation. But I don’t think that it makes sense to say that a definition of a legal status can discriminate on the basis of that status.

The final comment I want to make concerns the role of the judiciary in this dispute. As I said here,

[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.

Courts should be more cautious in such cases, all the more so when the legislature actually considered the issue with some care, as the Québec legislature did the rights of de facto spouses.

For all that, the outcome of the case is right, and a relief. The majority reaffirms the importance of the choices people make, and their freedom to define their own legal position different from the state’s default rules. And it reaffirms the same freedom for Canadian provinces too, with Québec being allowed to stick with its unique approach if it so wishes. A win for individual liberty and for federalism, then. Vive la différence!