Tag: human rights law

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.

It’s Happening Here Too

Canadians need to heed David Bernstein’s warning about administrative decision-makers’ disregard of constitutional rights

A very interesting article by David E. Bernstein, “Anti-Discrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism” has recently been published in the Notre Dame Law Review. Professor Bernstein cautions against allowing administrative decision-makers to pursue egalitarian goals unchecked by judicial supervision, because this pursuit often tramples over constitutional guarantees, especially freedom of speech. It is a compelling warning, and deserves the interest of Canadian readers, because the problems Professor Bernstein identifies afflict Canadian law. Indeed, much of his argument applies to the administrative enforcement of other statutes, not only anti-discrimination ones.

Professor Bernstein takes aim at the view, which he attributes to a significant number of American scholars, that administrative decision-makers both do and ought to play a very significant role in defining the scope and content of constitutional protections for certain fundamental rights. This view, “administrative constitutionalism”, rests on a number of arguments. Its supporters think that administrative decision-making “is more transparent than” the judicial sort, that administrators “are more accountable to public opinion than are courts”, and that they bring their expertise to bear on the application of constitutional standards to particular regulatory schemes. (1384) Professor Bernstein provides a number of examples of administrative decision-makers “aggressively enforcing antidiscrimination laws at the expense of constitutional protections for freedom of expression and guarantees of due process of law”, (1386) sometimes in defiance of relevant Supreme Court precedent and political direction. These will be of considerable interest to readers who follow American legal and political developments.

But what is more interesting from a parochial Canadian perspective is Professor Bernstein’s analysis of the situation ― his explanation for why administrative decision-makers tend to apply the law in a way furthers their statutory mission at the expense of the constitutional rights of those subject to their decisions. The explanation is partly institutional, and partly ideological.

The first institutional fact that contributes to administrative disregard of constitutional rights, according to Professor Bernstein, is that administrative decision-makers “maximize their power and budget”, and secure “political support, by expanding the scope of the laws they enforce”. (1401) Constitutional limits to this expansion are brushed aside. Second, a purposivist approach to statutory interpretation “practically invites agencies to find and even create ambiguities so that they can interpret statutes broadly”. (1402) In doing so, administrative decision-makers see themselves as accomplishing legislative goals, and ignore the compromises that may have been involved in the enactment of their enabling legislation. Third, administrative “agencies tend to attract employees who are committed to the agency’s regulatory mission” (1403) and want to expand their own power to, as they see it, do good. While some instances of regulatory overreach invite pushback from those subject to the regulation, this is generally not the case when it comes to “antidiscrimination regulation”, in part because “many businesses hesitate to publicly oppose” this regulation “because of the negative public relations implications”. (1403) Fourth and last, administrative decision-makers “do not see enforcing constitutional constraints on their authority as their job”. (1404) The courts themselves are partly to blame for this, because they often discourage the bureaucrats from looking to the constitution. But, for their part, supporters of “administrative constitutionalism” positively encourage administrative decision-makers to treat constitutional constraints as no more than a factor, among others, to take into account or to reject.

As for ideological concerns, they have to do with the fact that “conflicts between freedom of expression on the one hand, and restrictions on discrimination by private actors on the other, are conflicts between a
constitutional right and a statutory privilege”. (1406) As a matter of orthodox law the former ought to prevail, but for those “who believe that protecting vulnerable groups from discrimination should be at the heart of our legal and political system”, (1406) such an outcome would be wrong. They are accordingly inclined to discount constitutional concerns, or to seek to re-balance them by appealing to “the notion that the ‘constitutional value’ of antidiscrimination should trump First Amendment limitations on government regulation”. (1407) These views are prevalent not only in the legal academy, but also among activists ― and their ideological allies among the administrative decision-makers in charge of enforcing anti-discrimination laws. The fact that “[a]t the state and local level” these decision-makers are often

known as ‘human rights commissions’ … suggest[s] that the right to be free from private discrimination is at least as valuable as other rights, including constitutional rights. Indeed, the phrase ‘human rights’ suggests a superiority over mere textually supported constitutional rights. (1408)

So why, Professor Bernstein asks, don’t the courts do something about administrative decision-makers run amok? After all, the courts ― at least “generalist courts” ― “do not share mission-driven agencies’ tunnel vision, i.e., the latter’s devotion to its statutory mission at the expense of
other considerations”. (1410) But the administrative state is often able to escape scrutiny by using settlements or ostensibly “soft” forms of regulation that are not subject to judicial review. Professor Bernstein argues that courts should engage in review of administrative action more often, and that they ought to be less deferential when they do so. He also suggests possible institutional reforms, notably “to establish constitutional watchdog offices devoted to protecting constitutional rights from
[administrative] overreach”, (1413) whether within individual administrative entities or for the government as a whole.

Canadian readers probably do not need me to tell them that the issues Professor Bernstein describes arise with at least as much, and probably more, urgency in Canada. After all, although it rests on foundations that are partly different from those of its American counterpart, and goes by a different name, administrative constitutionalism is the law of the land in Canada, whenever a court is minded to follow the precedent set in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. In Doré, the Supreme Court held that, given their alleged expertise in applying constitutional “values” in the context of specific statutory schemes, administrative decision-makers are entitled to judicial deference, even in cases where the Canadian Charter of Rights and Freedoms is implicated. Whether an administrative decision gives effect to constitutional “values” ― not even rights ― as fully as possible in light of the statutory objectives is to be assessed on a standard of reasonableness. The Supreme Court also confirmed that reasonableness is the presumptive standard of review applicable to the decisions of anti-discrimination tribunals, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 SCR 230 (although this was not a Charter case).

Admittedly, the Supreme Court hasn’t always been inclined to do so, occasionally simply ignoring Doré. But its latest engagement with administrative interference with constitutional rights, in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, reiterated the applicability of the Doré framework, although it is worth pointing out that the Court’s majority insisted that this wasn’t supposed to be “a weak or watered-down version of proportionality”. [80] Still, the majority wrote that

Doré’s approach recognizes that an administrative decision-maker, exercising a discretionary power under his or her home statute, typically brings expertise to the balancing of a Charter protection with the statutory objectives at stake … Consequently, the decision-maker is generally in the best position to weigh the Charter protections with his or her statutory mandate in light of the specific facts of the case … It follows that deference is warranted when a reviewing court is determining whether the decision reflects a proportionate balance. [79; references omitted]

Professor Bernstein’s article helps us identify the folly of this approach. Despite the claims to the contrary of Justice Abella (the author of the Supreme Court’s opinion in Doré and the most strident defender of “administrative constitutionalism”, most recently in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29) and her colleagues, administrative decision-makers are unlikely to take the constitution, or even constitutional “values”, seriously at all. Granted, unlike their American counterparts, Canadian courts do not discourage bureaucrats from taking the Charter into account. Justice Abella, in particular, exhorts them to do so. But such exhortation is unlikely to mean much, compared with the much more concrete incentives Professor Bernstein identifies.

Canadian bureaucrats, no less than their American colleagues, want to expand their power and to advance their and their allies’ ideological goals. The seemingly expanding efforts of human rights bureaucracies or other administrative decision-makers (such as the former benchers of the former Law Society of Upper Canada) to police speech in the name of equality are an illustration of these twin tendencies. And while there has been pushback against the Law Society’s demand that lawyers “promote equality, diversity, and inclusion”, culminating in the election of a plurality of benchers opposed to this imposition, the incentives, both in the private sector and, still more in, say, public educational institutions are very much on the side of tacit or even vocal endorsement of the one-way ratchet of obstensibly pro-equality agenda.

The Supreme Court’s rulings on statutory interpretation exacerbate this problem. In West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, the majority insisted that the statute at issue featured a “broad and unrestricted delegation[s] of power” [11] so that an administrative decision-maker could pursue its purposes; in TWU, the majority also spoke of a statutory objective “stated in the broadest possible terms”. [33] (West Fraser, to be sure, was not a case implicating constitutional rights. TWU was such a case, however, and their logic is much the same.) In both cases, as I explained respectively here and here, the majority gave no effect to statutory language suggesting that the administrative decision-makers’ powers were not, in fact, unlimited, to which dissents sought to draw its attention. In West Fraser, the majority opinion disparaged attention to such details as “formalistic”. [18] As Professor Bernstein points out, when empowered to pursue expansively defined statutory missions, administrative decision-makers will be unlikely to pay much heed to constitutional concerns. Indeed, TWU offers a perfect illustration of this, since the Supreme Court ended up having to make up the reasons that supposedly justified the administrative decisions at issue.

What Professor Bernstein terms “ideological” factors operate in Canada too. Here too, the value of non-discrimination in the private sphere, branded as a “human right” by federal and provincial legislation alike is held to prevail over such constitutional concerns as freedom of expression and freedom of conscience. The TWU majority spoke of “shared values”, notably non-discrimination, as a valid reason for limiting constitutional rights, despite the fact that the Charter explicitly provides that it does not expand the law-making powers of legislatures or their creatures in the administrative state.

Like Professor Bernstein, I will conclude with an appeal for greater judicial scrutiny of administrative decisions that implicate constitutional rights. Judges ought to realize that administrative decision-makers have no particular incentive to be mindful of the constitution, and real incentives to disregard it. Even when they act in good faith, bureaucrats suffer from a single-minded, excessive focus on their statutory missions, real or assumed, that is bound to divert their attention from constitutional rules that ought to be paramount for all those who exercise public power, but in reality matter primarily to the courts ― if they matter to anyone.

To be clear, the issue is not only with the Doré framework ― though this is the most obvious way in which excessive and unwarranted deference is given to administrative decision-makers when they decide Charter questions. The Doré framework must go, the sooner the better, but this is not enough. The idea that “values” are an adequate substitute for law, whether as a source of constitutional guarantees or of administrative powers, must go along with the Doré framework, to which it is closely linked. And the Supreme Court’s approach to statutory interpretation, and in particular its willingness to countenance supposedly “unrestricted delegations” of power to administrative decision-makers, even if this requires disregarding more circumscribed statutory language, must go too. This, in turn, may require an end of the Court’s fascination with administrative expertise and its pro-regulatory bias.

This is, admittedly, a very ambitious programme. But, as Professor Bernstein shows, it is on that must be attempted if constitutional constraints are to be meaningful in the administrative state. “Administrative constitutionalism” is no substitute for the real thing. This is precisely why its supporters, who are not willing to accept constraints on what they believe is the bureaucracy’s power to do good, advocate for it. This is why we must reject it.

Pronoun Police?

Does human rights legislation let government police people’s use of pronouns?

I have already written here about the way the federal government’ recently introduced Bill C-16 will restrict freedom of expression by adding “gender identity or expression” to the long and growing list of “identifiable grounds” of criminalized hate speech. In that post, I did not touch on the other clauses of the bill, which will similarly add “gender identity or expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act. However, that too will interfere with freedom of expression ― and, Eugene Volokh makes clear in a recent Volokh Conspiracy post, in ways that are quite insiduous. indeed, given the narrow ― if still unjustifiable ― scope of the Criminal Code‘s hate speech provisions, this interference will quite possibly be the more significant one.

The issue prof. Volokh highlights is the application of anti-discrimination legislation to police the pronouns that people ― for example, employers or co-workers ― use to refer to transgender persons. He describes a dispute involving an Oregon teacher who insisted on being referred to as “they,” rather than “he” or “she.” Prof. Volokh had previously written about a document in which the New York City Commission on Human Rights opined that transgender persons are entitled to demand that others refer to them by their preferred pronouns, including those that are not in general usage among English-speakers (such as “ze” and “hir”).

Similar issues can arise in Canada, although a cursory CanLII search seems not to bring up decided cases where they were front and centre. Still, the use of pronouns seems to come up at least as a peripheral issue in some human rights disputes. (The government’s “use of binary gender designation on driver’s licenses and health cards” (T.A. v. Ontario (Transportation), 2016 HRTO 17, [1] (interim decision)) and in other contexts is also at issue in some disputes under provincial human rights legislation, but it doesn’t raise the same freedom of expression issues that arise in the private sphere, especially in the context of employment). Moreover, the Ontario Human Rights Commission has published a “Policy on preventing discrimination because of gender identity and gender expression” which states, among other things, that “[g]ender-based harassment can involve …  [r]efusing to refer to a person by their … proper personal pronoun” (18). While the word “proper” is ambiguous insofar as it doesn’t make clear who decides on a pronoun’s propriety,” the policy also states that “[t]rans students have the right to be addressed by their chosen … pronoun” (46; emphasis mine), and makes other references to chosen, and not only “proper” pronouns. This suggests that the Commission would support claims to the effect that use of pronouns other than those preferred by the person to whom they refer are discriminatory.

Why is that a problem? Isn’t referring to people the way they ask to be referred to a matter of common courtesy? Common courtesy, perhaps, although I’m not convinced that common courtesy can require one to use invented words. But, be that as it may, the issue is not what courtesy requires, but whether it is right that the law should be used to enforce these requirements. As prof. Volokh explains, government intervention into the way people speak, especially in the context of private relationships (for example between employer and employee or among fellow-employees in a private firm) is “a major intrusion on … freedom generally, and free speech rights in particular.” He writes:

Compelling people to change the way they use the ordinary, commonplace words of everyday speech … is a serious imposition. Some transgender people claim that using their preferred pronouns is required as a matter of “respect.” But I don’t think it’s at all respectful to demand that others change their speaking this way, and indeed to coerce them into doing this. …

Nor is this just a matter of asking for equal treatment. People don’t generally get to choose their pronouns, come up with new pronouns for themselves, or change the grammatical features of normal words. While the custom is generally to use others’ names, there is no such custom as to pronouns. If a Quaker insisted that people call him “thee” instead of “you” (Quakers generally don’t insist on that, but if everyone gets to choose a pronoun, then why not?), I don’t think we would — or should — feel obligated to do so. Likewise for “they,” used for reasons of sexual identity as opposed to “thee” for religious identity.

Moreover, the insistence on the use of certain pronouns in preference to others is likely to be inherently normative, if not outright political. It is, prof. Volokh says, an attempt “to convey an idea about language and how language should be,” and those who go along with the demands “will likewise be seen as buying into that idea.” Some may think that this idea is innocuous; others may find it good. But, as prof. Volokh notes, “trying to force people to endorse a particular view on these questions by requiring them to use this highly conspicuous, nonstandard usage” is a violation of their freedom of expression. Prof. Volokh argues that it is also unconstitutional under U.S. law.

In Canada, things would not be so clear. On the one hand, the Supreme Court has held, notably in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, that anti-discrimination legislation can restrict the freedom of expression and be found “demonstrably justified in a free and democratic society” under section 1 of the Charter. On the other, Whatcott emphasized the narrowness of the prohibition on hate speech and the extreme character of the expression which it served to censor. Perhaps significantly, it also stressed “[s]ocietal harm flowing from hate speech” and insisted that “[t]he feelings of the … victim are not the test,” [82] though it is doubtful that this emphasis would survive in the context of a straightforward anti-discrimination case. A further source of difficulty in analyzing the issue is that the focus, in Canadian freedom of expression jurisprudence, on what Whatcott described as “the values underlying freedom of expression” [65] ― self-fulfillment, search for truth, and democratic participation ― isn’t particularly well-suited to resolving a dispute where grammar, rather than the content of expression, is at stake. (This is unsurprising since, as I noted here, these values weren’t intended to be invoked in cases where the law at issue sought to limit expression on the basis of its content; their use in all freedom of expression cases is the product of a doctrinal sleight of hand.)

Ultimately, the constitutionality of the government’s policing of pronoun use under the authority of human rights legislation would probably depend on whether courts think that the objective of ensuring equality for transgender people can be achieved without it ― subject to the courts’ tendency to approach this issue with a good deal of deference to the government ―, and perhaps also on the outcome of a balancing between the restriction on free expression that it would operate and its beneficial effects. I don’t think we can be certain of the outcome, but given the Supreme Court’s general readiness to countenance infringements of the freedom of expression, I suspect that it would be more likely than not to uphold pronoun use requirements imposed by human rights authorities. And that’s without even wading into the mess of the standard of review that courts would apply to these authorities’ decisions…

Yet that would be unfortunate. Whatever we think of the propriety of governmental interference with economic decisions, such as whom to hire or to contract with, in the name of equality, we should agree that similar interference with the very way we speak is a more serious matter. I have no sympathy for the view, often expressed in the context of litigation about same-sex marriage, that courts should not upset longstanding traditions. Courts can certainly do so when no one’s rights or liberties are adversely affected, as was the case with same-sex marriage. But here the situation is different. The issue isn’t that the state would be making itself into an engineer of social change ― it’s that it would be doing so at the expense of individuals whom it would be conscripting for this purpose, and moreover that the conscription concerns not the economic sphere, but speech itself. Again, it may be that the change in question would be beneficial one. But there are means to which the state should not be able to resort even in the pursuit of worthy ends.