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.