Law Society – Double Aspect

Deregulate All the Lawyers

Why deregulation is the solution to the conflict around the “Statement of Principles” (in addition to being good for access to justice)

There was, we can now confidently say, a great deal of rancour in the Ontario legal profession about the Law Society’s attempt to force its members to abide by a “Statement of Principles” acknowledging a non-existent “obligation to promote equality, diversity and inclusion”. This rancour having let to the election last month of slate of benchers pledged to repeal the “Statement of Principles” requirement, there is now a great deal of rancour among the profession’s social justice warrior faction. The #BencherElection2019 hashtag on Twitter leads one to a collection of laments about the profession’s past, present, and future. Of course, the election result suggests that the wailing chorus represents only a limited section of the profession, but it is certainly not a negligible one.

Being a vocal opponent of the “Statement of Principles” requirement, I was, of course, delighted by the election’s outcome. But I too am not especially optimistic about the future of the legal profession as it is currently constituted. I don’t know whether the StopSOP momentum can be kept up in 2023, and in 2027, and in 2031… Perhaps the social justice brigades will have moved on, and the whole thing will no longer be an issue. But I would not bet on it just yet. It’s certainly not inconceivable that a People’s Front of Ontario Lawyers, or an Ontario Lawyers’ People’s Front, will come to run the Law Society at some point. And judging by their role models, when they do so, they will not be taking prisoners.

Fortunately, there is a way to avoid this outcome and, more broadly, the transformation of Law Society elections into a battleground of total culture war, in which liberty is supposedly pitted against equality, and the losers, whoever they may be, fear for the integrity of their souls. It is deregulation. The deregulation of the legal profession is a very good idea on other grounds too, notably for the sake of access to justice, as Ian Mulgrew recently pointed out in the Vancouver Sun. (One particular sub-genre of the post-Bencher election lament consistent of the supporters of the “Statement of Principles” saying that lawyers should worry about access to justice instead of opposing the Law Society’s impositions. I think this is a false dichotomy, but I hope that those who are concerned about access to justice, whatever they might think about the “Statement of Principles”, will join my appeal for deregulation!) There is no reason, really, why the law needs to operate like a medieval guild. But this is not a new idea; just one that needs to be constantly repeated. The possibility of using deregulation as a tension-defusing mechanism is more novel. Still, the case is a rather obvious one.

The reason why the “Statement of Principles” provoked such fierce resistance is that those of us who refuse to submit to state-sponsored imposition of a mandatory ideology were put before a stark choice: trample, in Vladimir Mayakovsky’s words, on the throat of our own song, or lose the right to practice law. The reason why the proponents of the “Statement of Principles” are so aghast at its opponents’ electoral success is that they think it speaks so very poorly of a profession ― and a guild ― to which they too belong, and about which they care (however misguidedly they might do so, by my lights). We are, apparently, stuck together ― at least until the Ontario Lawyers’ People’s Front, or the People’s Front of Ontario Lawyers, can liberate the profession from dastardly dissidents. And we are bound to make each other miserable.

But not if the legal profession were deregulated. There is more than one way of doing this. Ideally, the restrictions on who can provide legal services, and even the lawyer licensing process, would be scrapped. (It would make sense, of course, to continue requiring anyone providing such services to carry insurance appropriate to the nature of the service the person is providing.) But as a second-best alternative, what needs to go is the monopoly of the existing Law Society of Ontario. Let any group of lawyers, subject perhaps to a moderate minimum membership requirement, start up its own law society, with its own licensing process, and its own membership rules. If Lawyers for Social Justice want to require their members to have a statement of principles abjuring whiteness in the name of the gestational parent, the daughter, and the holy ghost, amen to that. If the Cult of Hayek wants to demand a statement of principles demonstrating personal valuing of free markets and the Rule of Law, amen to that too. And if Lawyers for Mere Professional Competence don’t want to impose any such rules, amen to that again, and where can I sign up?

The point is that, in the absence of a monopoly ― if there isn’t one body whose decisions, whether made as a result of (low-turnout) elections or on the basis of revolutionary racial consciousness, have the ability to allow or deny people the ability to make a living ― we don’t have to constantly fight one another about the direction of the profession as a whole. We can and will continue to disagree, but the stakes of the disagreement will be lower. At most, we might be fighting for greater memberships in our respective clubs ― and we will be doing that by trying to persuade people to join us, rather than our opponents, instead of peremptory demands that they adopt our fatal conceits, or else.

Now, despite my professed equanimity, am I really rigging the game in favour of Cult of Hayek here? Why should the supporters of the “Statement of Principles” endorse deregulation? Well, for one thing, because they now know that they are not as popular as they thought. They might make a comeback in four years, but then again, they might not. Deregulation would make it possible for them to organize their affairs on their preferred principles, regardless of their lack of popularity among the broader profession. They could even be the shining light to which more and more lawyers flock, leaving us dinosaurs on the ash heap of history. And even the proponents of the “Statement of Principles” they do come back, it will be over the objections of a sizable part of the profession, and not just the measly 3% who, we are told, refused to tick the “Statement of Principles” box on our annual reports. Instead of advancing their agenda, they will be fighting to eradicate dissent, much more confident now than it was before the last election. And while some of them are aspiring totalitarians who would be quite happy to kick people out of the profession for non-conformity, I do believe that more than a few will blink, especially if there is a lot of kicking to be done. They should conclude that they have better things to do, and get on with the building of social justice in one part of the legal profession.

Of course, right now, it is the opponents of the “Statement of Principles” who will speak with the strongest voice in the affairs of the Law Society of Ontario. Their first order of business, I hope, will be to do what they were elected to do: repeal the state’s imposition on our consciences. But I also hope that they will not stop there. They will need to ensure that such impositions are impossible in the future. But also, that the legal profession in Ontario does not become consumed with the culture war into which it has been plunged. I call on all the newly elected Benchers, but especially on those elected under the StopSOP banner, to support deregulation, for the sake of the legal profession, as well as of access to justice. And I hope that other lawyers, wherever they might stand on the cultural issues du jour, will join this call.

The Statement of Principles

Thus far, I have stayed out of the controversy surrounding the Statement of Principles [SOP] because I have nothing new to add. Leonid has, in a series of posts, outlined the in-principle objections to the SOP, while others have suggested that the SOP is a modest, necessary remedy for a difficult problem.

But as the debate has evolved, I think something has been lost in the shuffle. Let’s assume that the SOP is constitutional. There are still a number of unanswered questions about the efficacy of the SOP, the way it was adopted, and the strength of the evidence underlying it. Related questions: does the SOP do anything to actually rectify the problem it identifies? And if not, if we believe that the objectors to the SOP are acting in good-faith, shouldn’t we expect better from the LSO given its status as a regulator in the public interest? I think so. That the SOP is toothless is a sign of regulatory excess and pointless, costly regulation that won’t even accomplish the goal it sets out to solve.

I do not purport to say anywhere here that discrimination is not a problem. The experience of racialized licensees should be prioritized, and the LSO should be applauded for turning its mind to this issue at all. At the same time, I think it is important that we do not denigrate the sincerity of the “conscientious objectors” to the SOP. I need not link to the various hues-and-cries on Twitter, assaulting people like Leonid and Murray Klippenstein for being racist, privileged, etc etc. I think we should take as a given that the conscientious objections are rooted in deeply-held philosophical commitments. For that reason we should respect them. Leonid’s objection, for example, is exhaustively set out in his post here, where he outlines the genesis of his general philosophical orientation and how it applies to the SOP. We should assume that if the SOP is enacted, it will exact a constitutional cost—one that may or may not rise to a constitutional violation, but a cost nonetheless.

The SOP was adopted as part of a suite of initiatives designed to address the problem of systemic racism. The SOP is one requirement that exists in this suite of initiatives. The collection of initiatives was occasioned by a long consultation period, along with a study designed by the LSO and a communications firm “to encourage law firms to enhance diversity within firms, based on identified needs, and create reporting mechanisms.” The study consisted of:

Interviewing key informants
Organizing, managing, and recording the discussions in 14 focus groups with racialized lawyers and paralegals
Organizing, managing, and recording the discussions in two focus groups with non-racialized lawyers and paralegals; and
Designing a 35-question survey and collecting data from a large group of lawyers

Somehow, from this process, the SOP was born. None of the evidence gathered in the study pointed to the SOP as a necessary—or even desired—policy mechanism to accomplish the goals of the overall LSO Equity, Diversity, and Inclusion [EDI] Initiative. The causal link between the SOP and “accelerating culture shift” was never explored by any data in the study. All that was established by the study was that there was, indeed, discrimination in the profession.

But even on that score, there is no clarity on the breadth of the problem, and for that reason, no clarity on the mechanisms required to solve it. In this case, the challengers to the SOP have outlined some compelling reasons in an expert report why we might doubt that the SOP is a tailored, evidence-based policy—assuming, again, that the criticisms of the SOP levelled by a number of quarters is in good-faith. For one, there is a major confirmation bias issue in the study commissioned by the LSO. Survey respondents were already aware about the goals of the study. Participants in the focus groups were separated based on whether they were racialized or not, which does not lend itself to a random discussion of the issues. Perhaps most prominently, there was a sampling bias problem that led to the data underpinning the recommendations presented to Convocation—only a small portion of the over 40 000 licencees responded to the survey data, and according to the expert report, “it is possible that some licensees completed the survey multiple times…”

None of this should be taken as a given simply because an expert says so. This is an expert report filed by a party in the litigation. But it at least raises legitimate questions about the methodology underpinning the solution adopted by the LSO. Clearly, discrimination might be a problem in the profession, but we have no idea how much of a problem it is.

Even if we had some scope of the problem, the SOP is not necessarily linked to solving it. If we assume that objectors to the SOP are acting in good-faith, and therefore we believe that there will be some cost to them associated with abiding by the LSO’s edict, then we should be doubly sure the SOP will actually do something to solve the problem it purports to solve. But the LSO has offered no evidence that this particular policy mechanism is required, cost-efficient, or is even relatively better than other options. Nor has it explained why this policy mechanism is necessary for the soundness of the rest of its EDI policies.

Why should anyone care about this? Shouldn’t the LSO simply just be able to act in the face of a problem?

We know that inclusion in the legal profession is a problem, but as a regulator with delegated legislative authority under the Law Society Act, the legislature implicitly subjected the LSO to democratic norms. It established a system of elections in the enabling legislation itself, which can be interpreted to express a legislative desire to ensure that there is some accountability mechanism within the LSO for the exercise of its powers that are legislative in character. The LSO has the power to compel licensees through rules and bylaws, none of which need to be subject to any approval by the Cabinet (unlike the exercise of delegated legislative power to make regulations—see 63(1) of the Law Society Act). While there is an obvious mechanism to hold benchers and the administration of the LSO accountable through elections, the power of compulsion that the LSO exercises—and the broad powers it has been conferred by legislatures and the courts—counsel in favour of holding the LSO to robust standards of evidence-based policy-making. In other words, not only do we need to know that discrimination is a problem, we need to know whether it is truly “systemic” in order to craft appropriate solutions.

There is no evidence, even on a common-sense basis, that the SOP will do anything to solve the problem it identifies, assuming the problem is framed as the LSO says it is. One might say that the SOP will force licensees to reflect on the things they must do to ensure a more inclusive profession. I think this is Pollyannaish. More likely, people will file rote statements without reflecting on them, as Atrisha Lewis points out. Or they will simply write something that fits with what the licensee perceives the LSO to want. Unless the LSO is going to police the substantive content of each filing, there will be no way to know who is genuinely reflecting on the issue. Given the vagueness of what constitutes a “violation” of the requirement, we can expect discretion of prosecutions under the Law Society Act against those who do not adopt a “proper” SOP. The costs continue piling up when one thinks of defending the SOP in court, and the cost of enforcement.

Someone has to ask if the EDI initiative requires this SOP given the costs it exacts against principles of good government and against the good-faith constitutional objectors. The SOP seems to be questionable response to a problem of unknown proportions that raises significant constitutional concerns, even if those concerns do not constitute an in-law constitutional violation. I gather that the LSO perhaps did not expect this to be an issue, and are now painted into a corner. Like most administrators, they do not want to cede any regulatory power. So they must defend the SOP in court. But I think even they must recognize that the SOP is probably a bad policy mechanism for the problem of discrimination, no matter its scope.

The LSO should be held to a higher standard than this. We should expect evidence-based policy-making in the administrative state, especially where the LSO has the means (through the exorbitant fees it charges) to conduct properly designed research studies and to lessen the informational uncertainty designed to solve the problem. Some literature in administrative governance focuses on the cost of acquiring information within public institutions. Here, the costs for the LSO on this particular problem are not particularly high. And yet, we are left with a dog of a policy mechanism, one that is unlikely (even on a common sense basis) to solve the problem it purports to solve. At the same time, the costs of implementing it and enforcing it—both monetary and constitutional—are high.

All of this puts the SOP on the horns of the dilemma. Either it does something to accomplish the goal it sets out—it compels people to concern themselves with EDI as the LSO understands it—or it does nothing to accomplish anything, in which case it is costly. Surely our public regulator, that we ensconce in yearly fees, can do better.

This is fundamentally different than the claim that the SOP doesn’t go far enough. The problem is that it doesn’t go anywhere at all. I doubt it will solve any problem whatsoever.

Affidavi

Why I oppose the Law Society of Ontario’s “statement of principles”

I have repeatedly argued, here and elsewhere, that the Law Society of Ontario’s requirement that its members “acknowledge[] [an] obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” by means of a “statement of principles” is wrong in principle, illegal, and unconstitutional. Fortunately, Ryan Alford and Murray Klippenstein are challenging the validity of the Law Society’s demands, backed by the Canadian Constitution Foundation. For my part, I have provided an affidavit for their application (which has been served on the Law Society, but not filed with the court just yet), primarily to illustrate that the “statement of principles” policy applies far more widely than do non-discrimination obligations under the Ontario or federal human rights legislation, to which the Law Society has been endeavouring to misleadingly equate it.

But of course the affidavit is also an opportunity to explain why I oppose the Law Society’s demands, and will not comply with them, so I thought it worthwhile to reproduce an adapted version of it here. (I have removed some of the affidavit-y bells and whistles, so that it reads more like a normal post, and have added some links.) Of course, since an affidavit is meant to be a personal statement, not legal argument, it is a more personal and less argumentative text than my normal posts. Here goes.

I am a Senior Lecturer (a position equivalent to that of an Assistant or Associate Professor) at the Auckland University of Technology Law School. I hold degrees in civil law and common law (BCL/LLB (Hons)) from the McGill University Faculty of Law, as well as a Master’s degree (LLM (Legal Theory) and a doctorate (JSD) from the New York University School of Law.

I was called to the Bar in June 2010 and have been a member of the Law Society of Upper Canada, now the Law Society of Ontario, (the “Law Society”) in good standing ever since. However, I am not and have never been a practicing lawyer. From September 2010 to August 2016, I was a full-time student; since August 2016, I have been a full-time academic. I have no clients and no employees. To my knowledge, no one among my co-workers is a fellow licensee of the Law Society. I have resided in New Zealand since August 2016, and have not resided in Ontario since August 2010.

My Interest in Freedom of Conscience and the Rights of Others

My research interests range broadly across constitutional and administrative law, with a focus on Canada. Among the areas on which I have published is the freedom of conscience and religion. My LLM thesis, subsequently published as a peer-reviewed article, was concerned with religious exemptions and the Rule of Law, exploring the importance of individual conscience in reconciling the claims of religious believers and the demands of legal conformity. Another of my peer-reviewed articles argued that the reference to the Queen in the Canadian citizenship oath infringes the freedom of conscience of those republicans who are required to take it.

In addition to scholarship, I have written about freedom of conscience and religion in multiple posts on the award-winning blog Double Aspect, which I created in 2012, of which I first was the sole author (until July 2018) and now am a co-author. In particular, I have been critical of various attempts in Québec to deprive state employees of their right to wear so-called “ostentatious religious symbols”. I have also published an op-ed on this issue. I also published multiple posts on freedom of conscience of republicans objecting to the citizenship oath.

In this work, as well as in writing on a number of other issues (notably relating to freedom of expression in the electoral context), I have consistently championed the rights of individuals and groups with whom I profoundly disagree, including many whose views I reject. I have defended religious exemptions and other forms of accommodation for religious believers, but I am agnostic. I have defended the freedom of conscience of republicans, but I am a monarchist. I have defended the freedom of expression of student movements and trade unions, but I strongly disagree with the aims of both.

The Statement of Principles Requirement

At the December 2, 2016 meeting of Convocation, the Law Society adopted the requirement that each licensee “create and abide by an individual Statement of Principles that acknowledges [his or her] obligation to promote equality, diversity and inclusion generally, and in [his or her] behaviour towards colleagues, employees, clients and the public”.

I learned of the adoption of the Statement of Principles requirement after the fact, via an e-mail sent by the Law Society on September 13, 2017, entitled “New Obligations for 2017 — Actions you need to take”. That e-mail said that: “You will need to create an abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity generally, and in your behaviour towards colleagues, employees, clients, and the public.” Until then, I had not received any correspondence from the Law Society on that topic or which alluded to it, and was not aware that Convocation had adopted the Statement of Principles requirement.

This requirement is applicable to me as a licensee of the Law Society, even though I am not, and never have been, practicing law in Ontario, and, to my knowledge, have no colleagues, students or subordinates who, are licensed to practice law in Ontario. As the Law Society explains on a “Frequently Asked Questions” page on its website, “[i]f you are licensed by the Law Society, you must meet this requirement regardless of whether you are currently practising law or providing legal services”.

I have not complied with the Statement of Principles requirement. I have provided the following explanation for my refusal to do so in my 2017 Lawyer Annual Report:

No existing legislation, primary or delegated, imposes on me or on any lawyer in Ontario an obligation to promote equality, diversity and inclusion. In particular, human rights legislation and the Rules of Professional Conduct prohibit engaging in discrimination, but say nothing of promoting any particular values or ideals. The Law Society has no right to be demanding that its members acknowledge an obligation that does not exist, and one that could not be constitutionally imposed, since in a free society, the state or its instrumentalities, such as the Law Society, have no business imposing values on individuals, much less demanding that individuals promote values. The Law Society’s policy in this matter is no less totalitarian than the arbitrator’s letter denounced by a majority of the Supreme Court in National Bank of Canada v Retail Clerks Int’l Union, [1984] 1 SCR 269.
I have elaborated these views in a series of blog posts, listed below, which I invite the Law Society to read:
https://doubleaspect.blog/2017/10/12/lawless-society-of-upper-canada/
https://doubleaspect.blog/2017/10/19/ones-own-self-like-water/
https://doubleaspect.blog/2017/10/29/profession-of-power/
http://nationalmagazine.ca/Articles/November-2017/The-Law-Society-of-Upper-Canada-should-stick-to-it.aspx
https://doubleaspect.blog/2018/01/21/the-detestable-attestation/

Reasons for My Objection to the Statement of Principles Requirement

I consider myself a conscientious objector to the Statement of Principles requirement, and will not comply with it in the future. As noted above, I have a longstanding interest in freedom of conscience, and have displayed a consistent and public commitment to the rights and freedoms, especially those having to do with belief and expression of belief, of individuals and groups whose religious, moral, or political opinions I do not share. I claim the same freedom for myself.

I regard the Statement of Principles requirement as a violation of my freedom of conscience, freedom of opinion, and freedom of expression. The requirement states that I must promote specific values: equality, diversity, and inclusion. I believe that promoting values requires me to hold them. Otherwise, this promotion would be insincere; indeed, it would be a lie. And it is my sincerely held belief that, as a free individual, I must only hold those values that I freely choose for myself, and must not embrace those values imposed by an authority exercising coercive powers conferred by the state — i.e. the Law Society.

My fundamental belief that a free individual must choose his or her own values, think for him- or herself, and reject the authorities’ views of what he or she must believe in, which animates my scholarship and blogging on freedom of conscience and compels my refusal to comply with the Statement of Principles requirement is a product, in part, of family upbringing, and in part of my broader philosophical views.

As to the former, I was born in what was still the Union of Soviet Socialist Republics, and my parents took pride in ensuring that my brother and I grew up speaking Russian at home and aware of Russian history after our move to Canada. Part of my parents’ endeavours — indeed a very substantial part — involved exposing us to the stories of Soviet dissidents, people who, in various ways, stood up to a brutally repressive regime for their right to believe and to say their own, rather than the regime’s truth. The circumstances of a free and democratic society such as Canada are hardly comparable to those of the Soviet Union, but the moral imperative to live the truth as one sees it is no less pressing in this more benign setting.

As to the latter, I have been heavily influenced by Lord Acton’s liberalism, and, in particular, his admiration for “[t]he true apostles of toleration” — “not those who sought protection for their own beliefs, or who had none to protect; but men to whom, irrespective of their cause, it was a political, a moral, and a theological dogma, a question of conscience involving both religion and policy”. Hence my advocacy for the freedom of conscience and expression of those with whom I disagree; but one can still, I trust, be a defender of toleration while claiming its benefits for oneself. Lord Acton summarized the role of freedom of conscience in modern history thus:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities.

It is my most deeply and conscientiously held belief that I must defend “the ground gained by the individual”, and the individual’s prerogative to maintain his or her independent character. I must resist if I can, and certainly lend no support to the attempts of “states, or nations, or majorities” — including a majority of the Benchers of the Law Society — to claim for themselves the “sublime prerogative” of knowing good and evil, and cast those subject to their jurisdiction all of the same type.

In addition to this overall outlook, I believe that my professional position as a scholar means that I must resist any attempt to make me adhere to or promote specific values chosen by an external authority. Academic freedom — which I regard not only as an entitlement but also as a responsibility — is a right, and arguably a duty, to pursue truth, however uncomfortable or unpleasant it might be to authorities and others. This pursuit, in my opinion, is incompatible with an undertaking to promote specific values. If my research leads me to conclusions that I or others regard as incompatible with or even opposed to a given value, so much the worse for the value in question.

I would add that, at a high level of generality, I find the values to which the Statement of Principles requirement refers attractive. However, my understanding of these general values is quite different from that which animates the Statement of Principles requirement. I believe in equality before the law, and reject the value of an equality of outcomes. I believe that diversity is primarily desirable if it embraces a plurality of views and perspectives on human flourishing, and not only of demographic backgrounds. Similarly, I believe that inclusion must extend to those who think, and not only those who look, unlike the majority. As a result, expressing support for these values, at the command of the Law Society, would risk communicating adherence to beliefs that I do not hold, and would thus force me to express statements I would not otherwise express.

Concluding observations

As explained above, I refuse to comply with the Statement of Principles requirement. I regard it as incompatible with my rights and duties as a free person, my professional responsibilities as a scholar, and, above all, my conscience.

If the requirement that I hold and promote values chosen by the Law Society is not repealed or invalidated, I will cease being a member of the legal profession in Ontario. This is not an outcome I desire — I would not have paid substantial fees for years for the privilege of this membership which is not necessary for my academic position and from which I derive no financial gain if I did not value the connection with the profession. However, I simply cannot remain a member of the legal profession in Ontario if to do so would violate some of my most deeply held conscientious beliefs.

We’ll see what happens with this. In any case, I am very grateful to Professor Alford and Mr. Klippenstein, as well as Asher Honickman who is litigating the case, and the CCF for fighting the good fight. And don’t forget that, in parallel, there is another front on which this fight can be fought ― the upcoming election for benchers of the Law Society. Vote, and throw the bums who imposed the “statement of principles” requirement out!

John Finnis and the Law Society

Would the Law Society of Ontario punish a scholar for failing to promote equality, diversity, and inclusion? What about those who defended such a scholar’s academic freedom?

One of the less appreciated issues with the Law Society of Ontario’s demand that its members produce “statements of principles” acknowledging a purported “obligation to promote equality, diversity and inclusion generally, and in [one’s] behaviour towards colleagues, employees, clients and the public” is that it is inimical to academic freedom and the freedom of expression of scholars. This problem is neatly illustrated, however, by the story of the latest attack on an academic who happens to dissent from politically correct views.

The academic in question is John Finnis, “a giant of jurisprudence” in the words of Jeremy Waldron, another such giant himself. Robert George has posted a fairly detailed review of Finnis’s oeuvre (drawn from published work) over at Mirror of Justice (detailed, but still incomplete ― there is, understandably, no mention there of the not insignificant role Professor Finnis played in the patriation of the Canadian constitution; fortunately, he has told the story himself). But the most important point for the present purposes is elided in Professor George’s description: as Brian Leiter put it on his blog, Professor Finnis “has written foolish and sometimes quite ugly things about gay people for years”. And so, as the Guardian reports, “[m]ore than 400 people have signed a petition calling for [Professor] Finnis to be removed from teaching”. Now, there is no allegation that Professor Finnis has actually discriminated against a specific student. The complaint is based entirely on his scholarship which, however distasteful one might find it, is widely regarded as formidable and important ― if also, in many people’s view, profoundly misguided.

Being a generally acknowledged giant and not just an unknown graduate student who can be bullied into submission or chased out of the academy without anyone paying attention, Professor Finnis has been defended by other prominent scholars. Les Green, writing at his blog Semper Viridis, points out that “[t]o fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom”. Professor Leiter use stronger language, writing that the students demanding to be got rid of Professor Finnis “disgrace themselves and their university”. Professor Waldron put it best:

The campaign to have John Finnis removed is preposterous. His views on many things-torture, assisted suicide, sexuality-are uncongenial to some of us … . But defending & elaborating those views doesn’t amount to discrimination[.]

I agree with all this (and, just for the record, I also find Professor Finnis’s views on many things uncongenial, to put it mildly). And so, to come back to the reason for this post, I have a couple of questions for the Law Society of Ontario.

First, if Professor Finnis were a member, would you disbar him? Now, I suspect that he would not in fact conform to the Statement of Principles requirement, much like I and many others, and you’d go after him for that. But suppose he’d ticked the box through oversight. I think it’s fair to say that, whatever their scholarly qualities and interest as an intellectual foil, Professor Finnis’s writings don’t do much for equality, diversity, and inclusion. Would you sanction him for failing to promote these values? Do you think this is compatible with his academic freedom?

And second, what would you make of people like Professors Leiter, Waldron, and Green, assuming that they had not objected to the Statement of Principles requirement? Would you deem speaking out in defence of the academic freedom of a scholar whose work opposes (certain kinds of) equality, diversity, and inclusion a violation of one’s Statement of Principles commitments? After all, if one understands equality, diversity, and inclusion along demographic rather than intellectual lines, as you pretty obviously do, it is at least arguable that defending a scholar with Professor Finnis’s views opposes rather than promotes them. Would you sanction scholars who undertake such a defence because they conclude that, in this instance, academic freedom is a more pressing concern than equality, diversity, and inclusion, on the basis that they fail to “promote” them “generally”? Do you think that would be compatible with academic freedom?

The law society might, I suppose, point to its now-mostly anodyne explanation of what the Statement of Principles requirement is supposedly about, which is largely about complying with anti-discrimination legislation and of no real relevance to academics. Yet the explanation is not the requirement. It has replaced a previous version that spoke of “demonstrat[ing] personal valuing of equality, diversity and inclusion”… and might again be replaced by something that would actually make sense of the never-retracted demand that lawyers ― including lawyers who are academics rather than practitioners ― “promote equality, diversity and inclusion generally”, and not only within their professional relationships with clients, employees, and the like.

In New Zealand, universities are required ― by statute ― to “to develop intellectual independence” in their students, and to “accept a role as critic and conscience of society”. A different provision “declare[s] to be the intention of Parliament … that academic freedom … be preserved and enhanced”, which includes “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. I’m not sure if there is an equivalent legislative framework in Ontario, but at any rate these seem to me to be sound moral guidelines ― principles to abide by, if you like ― for any free society that values learning and scholarship. I’d say that, for an institution that is statutorily required “to protect the public interest”, the Law Society of Ontario shows very little respect indeed for the fact that the public interest requires the existence of people and institutions capable of independent thought, however far astray they may sometimes go in the process of exercising this faculty.

Trinity Western, Dissected

The video of a discussion of the Supreme Court’s decision, held at the Centre for Constitutional Studies

Last week, I had the privilege of taking part in a discussion of the Supreme Court’s recent Trinity Western decisions organized by the Centre for Constitutional Studies. My presentation dealt with the Court’s majority’s embrace of the use of the Canadian Charter of Rights and Freedoms, anti-discrimination legislation, and purported “Charter values” to impose on a private institution obligations to which no law subjects it. I argued that, although the majority judgment in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, refers to “shared values”, in a pluralistic society it is only laws that we share ― until we amend them through the appropriate process ― even as we strongly disagree about values.

For their part, my co-panellists, Howard Kislowicz and Jennifer Rason, spoke respectively about the conformity, or lack thereof, of Trinity Western to Supreme Court precedent in the realm of freedom of religion, and about the decision-making processes followed by the law societies, and their implication for judicial review of their decisions. While they were not as harshly critical of the Supreme Court as I was, I think it is fair to say that, in their own ways, they too were underwhelmed by the decisions.

Here is a recording of the event. My remarks start at about 9:40, but I strongly recommend those of Professors Kislowicz and Raso, as well as the Q&A.

Thanks to the Centre’s Patricia Paradis and her staff for putting this event together! I very much enjoyed it, and hope to be back sometime.

What’s Left of Freedom?

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

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

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

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

* * *

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

The Supreme Court v the Rule of Law

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

* * *

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

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

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

* * *

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

Is Deference Possible Here?

The Supreme Court’s latest administrative law decision shows why disguised correctness is the default standard of review

In Groia v Law Society of Upper Canada, 2018 SCC 27, decided last week, the Supreme Court of Canada once again fractured over the approach to take to the judicial review of an administrative decision ― and, once again, the majority chose correctness review disguised as reasonableness as its methodology. The substantive issue in Groia was whether the Law Society was entitled to discipline a lawyer for advocacy that took “the form of personal attacks, sarcastic outbursts and allegations of professional impropriety, grinding the trial to a near standstill”. [12] I have no articulate views on this, except a general sense that the fewer powers law societies have, and the more circumscribed these powers are, the better. But I do want to comment on the administrative law aspects of the decision.

* * *

As Justice Moldaver, writing for the majority, describes its decision, the Law Society’s

Appeal Panel grappled with the issue of when in-court incivility amounts to professional misconduct under the Law Society’s codes of conduct in force at the relevant time. It reasoned that incivility “capture[s] a range of unprofessional communications” and ultimately settled on a multifactorial, context-specific approach for assessing a lawyer’s behaviour. [36; references omitted]

The Panel then applied this test to Mr. Groia’s case. The issue for the Supreme Court is twofold: first, it must review the approach devised by the Panel; second, the Panel’s application of this approach. However, although all distinguish the two questions they must answer, the majority, Justice Côté, who concurs, and Justices Karakatsanis, Gascon, and Rowe, who jointly dissent, all consider that the Panel’s decision on both must be reviewed on the same standard. The majority and the dissent opt for reasonableness, though they apply it differently. Justice Côté goes for correctness.

As Justice Moldaver notes, the Supreme Court’s earlier decisions “establish that law society misconduct findings and sanctions are reviewed for reasonableness”. [43] This is because both the elaboration of the applicable analytical framework and its application “involve the interpretation of the Law Society’s home statute” ― or, as in this case, rules enacted under this statute ― “and the exercise of discretion”. [45] While the question of “the permissible scope of [lawyers’] in-court behaviour is arguably of central importance to the legal system as a whole”, [51] it is not “outside the Law Society’s expertise”. [51] Indeed, “Law Society disciplinary panels are composed, in part, of other lawyers”. [52] Justice Moldaver also rejects the claim, advanced by a dissenting judge at the Court of Appeal for Ontario and accepted by Justice Côté, that sanctions for lawyers’ behaviour in the courtroom are different in that imposing them risks trenching on judicial independence. In Justice Moldaver’s view, this is simply not so: “a trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court”. [55]

Having established reasonableness as the standard of review, Justice Moldaver considers the arguments advanced against the framework developed by the Panel in detail. I will not describe his reasons, partly because I have little to say on their substance, and partly because this part of them alone runs for almost 60 paragraphs. What matters for my present purposes is this: on each point and sub-point, after reviewing the Panel’s decision in at most a single paragraph, Justice Moldaver gives extensive explanations of what the Panel’s decision means, and why it is appropriate. Though these explanations are occasionally couched in the language of reasonableness, there is no doubt that Justice Moldaver provides his own views on the approach to judging alleged incivility by lawyers, instead of merely ratifying the Panel’s.

As for the application of the framework to Mr. Groia’s conduct, Justice Moldaver concludes that the Panel’s decision was unreasonable. In Justice Moldaver’s view ― explained over the course of over 30 paragraphs ―, the Panel failed to apply the test it had itself articulated, and to take into account the factors that, on its own stated approach, ought to have mattered. For Justice Moldaver, “there is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility”. [125] (Now, here’s a question: would it be good if someone could reverse the Supreme Court’s decisions when they don’t follow the Court’s stated approach?)

As already noted, Justice Côté is of the view that the applicable standard of review is correctness, because lawyers’ in-court behaviour must be subject to the ultimate control of the judiciary. She insists that

An inquiry by a law society into a lawyer’s in-court conduct risks intruding on the judge’s function of managing the trial process and his authority to sanction improper behaviour. It does so by casting a shadow over court proceedings — in effect, chilling potential speech and advocacy through the threat of ex post punishment, even where the trial judge offered the lawyer no indication that his or her conduct crossed the line. And it permits an administrative body to second-guess the boundaries of permissible advocacy in a courtroom that is ultimately supervised by an independent and impartial judge. [168]

Justice Côté agrees with Justice Moldaver on the application of the test for misconduct, and thus concurs in the result.

The dissenters, by contrast, agree with Justice Moldaver that the standard of review is reasonableness, and also that the Panel’s approach was reasonable. However, they disagree with the way Justice Moldaver applied this standard, accusing him of

fundamentally misstat[ing] the Appeal Panel’s approach to professional misconduct, and reweigh[ing] the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes this Court’s judgment for that of the legislature’s chosen decision maker. [177]

The dissent faults Justice Moldaver with being insufficiently deferential to the Panel. “[D]eference”, they write, “recognizes that delegated authorities will have greater expertise in matters under their scope of authority”, [178] and when the applicable standard of review is reasonableness, it “is not optional”. [179] In particular, “deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable”, or from “supplement[ing] the decision maker’s reasoning for the purpose of undermining it”. [180]

The dissenters “consider that Justice Moldaver reformulates” [188] the framework articulated by the Panel. As a result, they disagree with Justice Moldaver’s application of this framework too: “[i]t is not a respectful reading of the … Panel’s reasons to articulate a novel test … then fault the Panel for failing to apply it”. [199] The Panel’s decision is intelligible and defensible, and this is not a case where only one outcome could be reasonable. Indeed, such cases will be anomalies, because

[t]he existence of reasonableness review is, rather, premised on the fact that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result”. [215, quoting Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]

The dissent then describes ― at some length, and with limited reference to the Panel’s decision ― what it expects to be the pernicious consequences of the majority’s decision. The majority, the dissent fears, “sends the wrong message to those who look to this Court for guidance”. [227]

* * *

Therein, it seems to me, lies the rub. People look to the Supreme Court for guidance ― not for mere affirmation that an administrative decision-maker’s reasons were good enough and that in any event there is no right answer to the question they addressed. The whole point of having what the Constitution Act, 1867 foreshadows as a “general court of appeal for Canada” is that such an institution can explain what the law is. If such a court does not say what the law is, but only indicates that an administrative decision is within the bounds of what the law will tolerate ― without explaining where these bounds actually are ― then it is not doing its job.

It is no surprise, then, that Justice Moldaver’s reasons show little sign of deference to the Panel. What lawyers across Canada are interested in is what the Supreme Court itself thinks about their standards of conduct ― not in whether it thinks that the opinion of a single provincial disciplinary body on this subject was “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [Dunsmuir, [47]] Indeed, the dissenters, for all the bitterness with which they chide Justice Moldaver for his failure to defer, and despite their own ostentatious display of deference, cannot help but enter the debate with their own comments about the appropriate standards of civility. If the question the Court is deciding is indeed one of central importance to the legal system, as Justice Moldaver concludes (and the dissent specifically agrees with this part of his reasons), this is entirely comprehensible.

Hence the question that, with apologies to Ronald Dworkin, I ask in this post’s title. Earlier this year, I wondered whether “the Court is growing disenchanted with deference to administrative decision-makers’ decisions on questions of law”, and perhaps even trying to kill off reasonableness review without telling anyone. The cases decided since then only provide more evidence for the proposition that the default standard of review in Canadian administrative law is disguised correctness, not reasonableness as the Supreme Court would have us believe. But perhaps the Supreme Court has a defence of necessity to the charge of attempted murder. No court in its position could do otherwise.

Yet even if this be so, the Rule of Law issues I raised earlier do not go away. Law should be clear, and the fact of its change, transparent. The law of judicial review applied by the Supreme Court is opaque and hidden. And there is a further issue to think about: is it permissible for an apex court to apply a different law than the one it instructs other courts to apply, just because of its position within the legal system? It is, to say the least, not obvious that this is so ― which presumably is precisely why the Supreme Court engages in so much obfuscation. Once again, I conclude that it would be better ― more transparent, more conducive to the coherence of our legal system ― for the Supreme Court to (openly and publicly) abandon reasonableness review on questions of law in most or in all cases.

* * *

Groia illustrates a couple of additional problems with reasonableness review, as theorized and practised by the Supreme Court. On a theoretical level, it exposes the deficiencies in the Court’s justifications for deference, which I have already discussed at some length. Justice Moldaver explains that, while of central importance, the issue of lawyers’ behaviour is within the expertise of law society adjudicators. Indeed these adjudicators are themselves lawyers! But what, one would like to ask Justice Moldaver, are judges? Aren’t they lawyers too, and aren’t they, in principle (though, granted, not necessarily in practice) more eminent lawyers than those who sit on law society tribunals? As the dissenting opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, co-written by Justice Brown ― who joined Justice Moldaver’s majority opinion in Groia ―, and joined by Justice Moldaver himself, pointed out, “expertise is a relative concept. It is not absolute.” [84] Sometimes administrative decision-makers are more expert than courts, which might be at least a practical reason for deference ― though not a legal one, as Mark Mancini’s contribution to the Dunsmuir Decade symposium pointed out. But this justification is implausible here.

For their part, the dissenters appeal to a different justification for deference: “reasonableness review is premised” on the existence a multiplicity of possible answers to questions to which it applies. Yet, as I noted in the posted linked to in the previous paragraph, deference is the presumptive standard of review for any question concerning the interpretation of administrative decision-maker’s “home statute”, and

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible.

Indeed, the dissent’s reasoning is circular: reasonableness “is premised” on there being multiple possible answers, and since reasonableness applies, it follows that the question under review must have multiple answers.

The practical concern with reasonableness review that Groia illustrates has to do with the supplementation of an administrative decision-maker’s reasons by a reviewing court. The dissent says that Justice Moldaver is wrong to do this to “undermine” the Panel’s review. Yet one of its authors, Justice Karakatsanis wrote, and another, Justice Gascon, joined, the majority judgment in Edmonton East, which did not so much supplement as outright made up the administrative decision in order to uphold it. Both of these positions ― no supplementation to undermine, any amount of supplementation to uphold ― seem consistent with the Supreme Court’s jurisprudence. But they are quite inconsistent with one another.

A clarification: what I’ve said above primarily concerns the first issue in Groia, that of the applicable framework. On the second one, the application of that framework, without entering into the substance of the debate between majority and dissent, and subject to my comments regarding the supplementation of reasons, I think that reasonableness is the appropriate standard of review. To me, Justice Côté’s concerns about judicial independence seem misplaced, for the reasons given by Justice Moldaver. Besides, while this case did not turn on a credibility issue, other, similar ones may well do so. How are courts supposed to engage in correctness review on that? It seems to me that the two issues in Groia should have been addressed on different standards of review. But no opinion takes that approach.

* * *

Groia provides further confirmation, if any were yet needed, that the Canadian law (if it may be called law at all) of judicial review of administrative action is in a dire state. Its theoretical foundations, which have long been weak, are being eroded decision by decision; its practical construction is falling apart. Perhaps these concerns are soon bound to be a thing of the past, as the Supreme Court’s coming review of the Dunsmuir framework simplifies what is abstruse, clarifies what is opaque, and cuts through what is impenetrable. Perhaps. But considering the confusion and the acrimony that seem to be the most remarkable features of the Court’s latest administrative law pronouncements, I suggest that you should not hold your breath.

NOTE: As some readers have pointed out, I had initially mixed up Justices Karakatsanis and Côté at one point. Correction made, and apologies!

FURTHER NOTE: It wasn’t just at one point. More corrections made.

Misplaced Zeal

The Law Society of Ontario’s “Statement of Principles” cannot be defended as advocacy for the Law Society

In a post at Slaw, Alice Woolley argues that lawyers’ state of mind, and in particular their personal commitment to the causes they are asked to represent, should not factor into an assessment of whether they are acting ethically ― and further, that this logic applies not only to lawyers’ representation of clients, but also to their compliance with other obligations requiring them to take particular positions, such as the Law Society of Ontario’s “statement of principles” policy. Though no legal ethicist myself, I am inclined to agree with Professor Woolley general point that a lawyer’s advocacy need not be anchored in a personal commitment to a cause ― but only so far as advocacy on behalf clients is concerned. Advocacy outside the context of legal representation, where the lawyer is acting on someone else’s behalf, is a different matter. Professor Woolley’s conflation of these two contexts is, in my respectful view, a serious mistake.

Professor Woolley gives the examples of hypothetical lawyers who undertake to represent clients for reasons that have nothing to do with a personal commitment to their causes. They want to get paid and cannot think of a better way to make their living (or at least, as good a living as the practice of law allows them), and care little for the justice of their clients’ cases. They are, however, competent and hardworking, and successful as a result. These lawyers, Professor Woolley argues, are not truly “zealous” advocates ― they feel no particular zeal ― but it would be wrong to think of them as unethical. “Lawyers’ ethics”, she insists, “are about acting as required by their role and professionalism, not personal belief or commitment.”

That seems right to me. A system of professional ethics that required lawyers to wholeheartedly embrace their clients’ cases would be both unattractive and impracticable. Many clients would have to be unrepresented, because no lawyer would agree with them, while professional regulators would have to become inquisitors to find out how lawyers well and truly felt. Note, though, that so far as the Model Code of Professional Conduct of the Federation of Law Societies is concerned, the idea that representation must be “zealous” is only a gloss, and as Professor Woolley shows an unfortunate gloss, on the actual rule, which rather requires it to be “resolute”. (5.1-1) Professor Woolley argues that her hypothetical halfhearted lawyers are not “resolute”, but I’m not sure about that. To the extent that they work hard and diligently pursue whatever recourse is open to their clients, without regard to their own feelings about them, I would not describe them as lacking in resolve, though this is a point about semantics and I don’t think much turns on it.

Be that as it may, as Professor Woolley suggested I might, I think that the position of lawyers who are not engaged in advocacy on behalf of clients is different from that of those who are. Lawyers arguing clients’ cases are widely understood not to be presenting their own views; conflations of the lawyers’ positions with the clients’ are routinely criticized by lawyers and others ― for example when judges or politicians with experience as criminal defence lawyers are (mis)represented as approving of the crimes of which their former clients were accused (and in many cases guilty). Acting as an advocate for a client, a lawyer is a mouthpiece, a hired gun; the rules of professional ethics not only do not require him or her to inject personal approval into the representation, but positively forbid injecting disapproval.

Outside the special context of client representation, however, these understandings and rules do not apply. Indeed, the Model Code‘s the requirement of resolute advocacy applies specifically in that context: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law” (emphasis mine). The rule does not speak to the lawyer acting as an individual, a citizen, with something of his or her own to say. When expounding and advocating for their own views, lawyers are, it seems to me, held to the same expectations of integrity as other people. If a lawyer gives a talk at a bar association event on the importance of access to justice, yet charges exorbitantly high fees and never undertakes any pro bono work, that lawyer deserves to be condemned as a hypocrite ― even though such a condemnation would be quite inappropriate in response to the same lawyer’s invocation of access to justice in argument on behalf of a client. The same goes for advocacy of any other ideal or value, including of course those referred to in the “statement of principles” policy ― equality, diversity, and inclusion. A lawyer advocating for these things without actually believing in them is a hypocrite whom right-thinking members of society are entitled to condemn.

I’m not sure whether Professor Woolley actually disagrees with this view, in the abstract. Yet she thinks that it is inapplicable to the situation of the Ontario lawyers whom the Law Society wants “to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public”. That’s because “the Statement of Principles is not about lawyers doing things on their own behalf, but rather on the profession’s.” In effect, by requiring us to produce this statement, the Law Society has enlisted us all as advocates for its own views, so that the norms of advocacy, of client-representation, apply.

Now, I do not think that the Law Society itself understands its policy in this way. When the “statement of principles” was first introduced, the Law Society explained that “[t]he intention” behind it “is to demonstrate a personal valuing of equality, diversity, and inclusion” (emphasis mine). Subsequently, it backtracked on this and claimed that requiring lawyers to “promote equality, diversity, and inclusion” “does not create any obligation to profess any belief or to seek to persuade anyone about anything”. If the former view of the “statement of principles” ― contradicted but never withdrawn from the Law Society’s website ― still holds, then, contrary to what Professor Wolley says, it is very much “about lawyers doing things on their own behalf”, albeit at the regulator’s behest. If the subsequent view is correct ― though I find it implausible, and the Law Society itself refused to make it the basis of a settlement of the challenge to the “statement of principles” brought by Ryan Alford and the Canadian Constitution Foundation ―, then lawyers are not asked to be advocates either on their own behalf or on the Law Society’s.

But suppose that the Law Society is, in fact, seeking to enlist the lawyers subject to its regulatory power as advocates for its own views, as Professor Woolley thinks. This would be a startling proposition. Unlike in any other case of representation, lawyers do not consent to this “retainer”. Unlike with any other client, they are not given a choice to decline representation if they find the client or the cause unacceptable, or simply beyond their availability or ability. Nor are they permitted to withdraw. They are, in a word, conscripted, coerced to act for the Law Society on pain, for most of them, of losing their livelihood. All the arguments against conscription, both deontological (it is simply wrong for one person to use other persons for his or her own purposes in this way) and consequentialist (conscripts are unlikely to provide good service), apply.

And why exactly is this conscription necessary? The Law Society is sufficiently well-heeled, what with charging over $1200 a year to members like me who are not even practising law, and double that to those who are, not to need pro bono representation. Lawyers are not even required to provide free representation to those who desperately need and, thanks in part to the Law Society’s cartelization of the legal services market, cannot afford it. Why is it entitled to something those in more need lack? Why does it need thousands upon thousands of (free) lawyers ― more than any client in the history of the universe ever had?

Moreover, there appears to be no limiting principle to the idea that the Law Society is entitled to conscript lawyers to represent it. If it can force us to advance its views and objectives with respect to “equality, diversity, and inclusion”, why not on other issues? If the Law Society comes to the view ― perhaps a not unreasonable view ― that its interests would be better served by the government of Ontario being formed by a given political party, can it mandate lawyers “promote” this party’s electoral fortunes? Can the Law Society, instead of hiring consenting lawyers ― and, presumably, paying them ― to defend its policies against Professor Alford and the CCF simply command some to work for it nolens volens? This would, to repeat, be a startling view ― and, to repeat also and give the devil its due, the Law Society itself does not take a position that commits it to advancing it ― but it seems to follow from Professor Woolley’s argument that there us “no regulatory impropriety in requiring” lawyers to advance particular views and values “to pursue the profession’s objectives”.

Professor Woolley is right that whether a lawyer’s heart is in his or her work for a client, or merely his or her brain and sitzfleisch, is irrelevant. But this is not true of the lawyer’s expression of his or her own views, where a lawyer is no more permitted to be hypocritical than any other person. Opposition to the Law Society’s “statement of principles” requirement proceeds in part from a sense that accepting it would require commitment to “equality, diversity, and inclusion” regardless of whether one adheres to these values (and arguably, more specifically, to how they are understood by the Law Society) ― and therefore, in many cases, hypocrisy. Professor Woolley claims that this is not so, because the requirement has nothing to do with personal belief, and is in effect a forced retainer of every licensed legal practitioner by the Law Society. Yet the Law Society does not think so. A power to conscript its members in this fashion would be an extraordinary one, and is quite unjustified in a free society. I see no reason to believe that it exists. Professor Woolley’s zeal in defending the Law Society is misplaced.

Stranger Things: A Defense of Dunsmuir

Did Dunsmuir actually do some good ― at least when it comes to judicial review of law society decisions?

Alice Woolley, University of Calgary

I love criticizing Dunsmuir v New Brunswick. Who doesn’t? The majority judgment purports to simplify the identification of the standard of review, but sets out a test with the potential to bog a court down (precedent + the “standard of review analysis”). It suggests reasonableness as a deferential standard, yet invites courts to look not just at an administrative decision-maker’s reasons, but also at the outcome it reaches – an apparent invitation to a court to assess the substance of a case, instead of focusing on the administrative decision-maker’s analysis. Indeed, in Dunsmuir itself the majority neither simplified its own identification of the standard of review nor genuinely deferred to what the labour arbitrator in that case had decided (as David Mullan pointed out at the time). And of course perhaps the most telling criticism arises from the case’s failure to accomplish what one would have thought was its core mandate: allowing the Supreme Court to move on from its preoccupation with, and disagreement about, what is a ultimately a secondary question in any administrative law case. Standard of review is what the Supreme Court can’t quit. As recently as 2016 the Court split 5-4 on the appropriate standard of review in Edmonton (East) Capilano Shopping Centres Ltd.. And even in a straightforward case, the Court can still spill a remarkable amount of ink identifying the standard of review (see, e.g., Green v Law Society of Manitoba (2017)).

It thus saddens me to concede that this blog does not criticize Dunsmuir. It does not even offer praise only as cover for a nasty zinger or devastating critique. It instead reinforces the empirical studies by Gerald Heckman, Robert Danay and others (summarized by Paul Daly here) to suggest that, on the whole, the effect of Dunsmuir on judicial review of administrative decisions has been more positive than negative.

My contribution to the empirical conversation was to review Court of Appeal and Supreme Court decisions reported on CanLII involving judicial review of law society decisions (mostly through statutory rights of appeal). I reviewed 76 cases with “law /1 society” in the title and “standard /2 review” in the text, identifying the 59 decisions involving judicial review (the remaining cases were disputes to which the law society was a party). Of those, 40 cases were decided after Dunsmuir, and 19 before. I chose law society decisions because I can read those decisions and understand the issues quickly, which allows assessment of, for example, whether the law society acted badly such that the court’s interference was understandable, or whether the court was really just substituting its judgment for the law society’s. I analyzed the cases on the following grounds:

Did the decision uphold or reverse the law society?
Was the decision able to identify standard of review in five paragraphs or less?
Was the standard identified reasonableness or correctness?
Was the Court’s judgment analytically weird (for example, the Adams v LSA (2000) where the Alberta Court of Appeal applied the “error of principle or… unreasonable or demonstrably wrong” standard of review (and concluded that the decision was both “correct” and not “manifestly unreasonable”))
Did the court in fact defer taking into account both the analytical methodology (i.e., focusing on the reasons of the law society rather than on the court’s own analysis of the issue in the case) and the grounds supporting the court’s interference with the law society’s decision?

My analysis suggests little difference between how willing courts are to uphold law society decisions before and after Dunsmuir. In both time periods courts upheld the law society decision more than 75% of the time (75% post-Dunsmuir; 79% pre-Dunsmuir). Nor are judges notably more willing to use reasonableness review after Dunsmuir than they were before, at least on some of the issues raised by a case (84% pre-Dunsmuir; 90% post-Dunsmuir, including two dissenting judgments).

More significant differences arise with respect to how often the court is willing to use correctness, the length of its analysis in identifying the standard of review, and the likelihood of an odd judgment. In the pre-Dunsmuir cases the courts used correctness for at least part of the decision regularly – in 7 of the 19 cases (37%) correctness was employed in whole or in part. Conversely, in only 2 of the 40 post-Dunsmuir decisions was correctness used (5%), with one additional dissenting judgment using correctness (bringing the total to 7%).

Similarly, prior to Dunsmuir, courts regularly devoted a considerable amount of their decisions to identifying the standard of review. In the pre-Dunsmuir cases 32% of judgments spent more than 5 paragraphs identifying the standard of review, whereas subsequent to Dunsmuir only 12% did. In many of the post-Dunsmuir cases the court identifies the standard of review in a single paragraph.

Further, in almost all of the post-Dunsmuir cases the standard of review used by the court recognizably conformed to the Supreme Court’s jurisprudence. In one post-Dunsmuir case, DeMaria v LSS (2015) the Saskatchewan Court of Appeal referenced the idea of a court needing a “palpable and overriding error” for reviewing a tribunal’s findings of fact, relying on Justice Deschamps’ concurring judgment in Dunsmuir, but the Court connected that concept to the idea of reasonableness, which seems defensible. In another British Columbia decision, Mohan v LSBC (2013), the Court did not identify the standard of review, but appeared to review for correctness a Law Society Review Panel’s assessment of a Hearing Panel decision, in circumstances where the appropriateness of a correctness standard is not obvious (the issue before the Court was the Review Panel’s assessment of the Hearing Panel’s findings of fact). The Court’s failure in that case to engage at all with its own standard of review is unusual. Mohan is the one post-Dunsmuir law society decision where, to my mind, the Court dropped the ball entirely on the standard of review analysis.

In the pre-Dunsmuir cases courts also mostly seemed to grasp the basic concepts that govern standard of review (correctness, reasonableness and (at the time) patent unreasonableness) but in 3 of the 19 judgments the court’s analysis seemed odd or off-base, which is a much higher percentage (16%) than the 2.5% (1/40) for the post-Dunsmuir decisions. In its 2000 judgment in Adams, referenced earlier, the Alberta Court of Appeal treated an error of principle, unreasonableness and being demonstrably wrong as a singular standard of review, and later upheld the law society’s decision on the basis that it was both correct and manifestly reasonable. The Court did not obviously appreciate the basic ideas of standard of review and judicial deference, or turn its mind to the level of deference it needed to exercise. In a 1999 decision, Phillon v LSA, the Alberta Court of Appeal did not identify the standard of review explicitly but upheld the law society in part “given the standard of review” – implying, I think, a reasonableness standard. Yet the Court also overturned part of the law society decision on the basis that the law society had sanctioned a lawyer using guidelines not published until after the hearing. For that aspect of the decision the Court did not identify the standard of review it was using. That standard on that part of the decision appears to have been correctness but the court never says so. In 1993 the British Columbia Court of Appeal in McOuat v LSBC suggested that courts may only interfere with administrative decisions that fall within the decision-maker’s jurisdiction where the decision-maker has “abused its discretion”, which seems to adopt the pre-CUPE idea of radically different levels of deference based on the administrative decision-maker’s jurisdiction, rather than a post-CUPE concept of judicial review.

To my mind this comparison speaks in Dunsmuir’s favour. Some of these effects almost certainly arise from more than that decision – it is likely that less odd judgments arise post-Dunsmuir because of the Supreme Court’s repeated reiteration of the concepts of standard of review, not Dunsmuir on its own. A judge has to be pretty out of it nowadays not to know that correctness and reasonableness are the core concepts of standard of review, and to miss the need to identify the standard of review when considering an administrative decision. Nonetheless, the reduction in odd judgments is a good thing, and Dunsmuir deserves at least some of the credit for it. Further, the increased simplicity of identifying the standard of review is great. In almost all law society cases reasonableness should be the standard – so why belabor the identification of it? That simplification was something Dunsmuir explicitly sought to accomplish, and these cases suggest that it has done so. Dunsmuir also does not seem to have made courts any more willing to interfere in law society decision-making – courts, at least when it comes to law societies, are respectful of and deferential to administrative authority, and Dunsmuir has made them no less so.

Indeed, perhaps the thing that strikes me most about reading these judgments is how sound the courts’ instincts are in reviewing law society decisions. That is not to say that I agree with the result in every case here. In several cases I disagree strongly with the law society’s decision (e.g., Groia v LSUC), so I’m unlikely to agree with the outcome of the court decision that upholds it. But disagreement with the result does not suggest that the Court was wrong to defer. My observation is that, generally speaking, these cases show courts understanding what their role ought to be, and fulfilling it.

Generally speaking, courts focus on law society reasons, not the substantive issue in the case. Of the 42 post-Dunsmuir judgments, I assessed 75% as focused on the law society’s reasons and analysis, even where the court overturned that decision. In those cases courts did not seem interested in making their own decision and then weighing the law society’s against it. They looked instead at what the law society did, and whether it could be defended as reasonable. And where courts were not reasons-focused, that lack of focus was often understandable. In Trinity Western University v LSBC (2016), for example, the process and substance of the Law Society’s decision was fundamentally flawed such that the Court’s independent assessment of the legal and constitutional issues was understandable (even inevitable). Similarly, in Merchant v LSS (2014), the Court engaged in a detailed review of the issues, but it did so in significant part because of the intensity and detail of the arguments made by the lawyer challenging the decision – there was really no way for the Court to both defer and respond to the lawyer’s case. Certainly sometimes the courts focused more on the substance of the issue before the court than on the law society’s reasoning. In Law Society of Newfoundland and Labrador v Regular (2011) for example, while I am persuaded by the Court’s reasoning, I do not think it acted deferentially in substituting its reasoning about conflicts of interest for the Law Society’s, especially given it reached the same result in the end. Overall, however, the cases did not bear out the concern that Dunsmuir encourages courts to focus on the justifiability of the outcome rather than on the administrative decision-maker’s reasons.

Further, and this is true of both pre- and post-Dunsmuir cases, most of the time I think courts interfered with law society decisions to about the right extent, substantively speaking. They did not tend to second-guess law society decisions about whether a lawyer has committed misconduct, or about the appropriateness of the penalty. They recognized that the law society was in the best position to decide those matters, and they let the law society’s decision and assessment stand. At the same time, however, courts appropriately checked law society over-reach. The Courts overturned decisions where the law society:

Failed to take into account or even consider a lawyer’s exculpatory explanation for misconduct in assessing the appropriate penalty, or failed to consider joint submissions from the law society and the lawyer on penalty (Guttman v LSM (2010); Hamilton v LSBC (2006); McLean v LSS (2012); Rault v LSS (2009));
Improperly assessed a delay as prejudicial for only one charge, even though the witness now unavailable was material to both charges (Stinchcombe v LSA (2002));
Refused to compensate a client for funds paid to a lawyer on the basis that a lawyer who was suspended did not receive money in his capacity as a “lawyer” (Singh v LSA (2000));
Applied sentencing guidelines that had not been in force at the time of the lawyer’s hearing (Phillon v LSA (1999));
Had a review panel which did not apply the level of deference review panels of that law society are supposed to apply (LSUC v Abbott (2017); Vlug v LSBC (2017);
Did not try to make a correct decision, but only tried to make a reasonable one (TWU v LSBC (2016) – although the Court also took the position that the law society denying accreditation to TWU would be an unreasonable violation of s. 2(a), which is more contestable);
Had a review panel which incorrectly stated that a hearing panel had not made a credibility assessment of a witness, and then proceeded to assess the witness’s credibility without having heard the witness (Mohan v LSBC (2013));
Imposed a condition that a lawyer provide a psychological assessment of her fitness to practice, when her competence was not at issue (Ritchot v LSM (2010));
Charged the lawyer with having committed an act intentionally, but then convicted the lawyer on the basis of negligence (Merchant v LSS (2009)).

Of course one does have to remember that it is the court who gets to tell the story in cases like this, with the result that it is perhaps unsurprising that the court tends to look like it is doing the job well. At the same time, however, I chose law society decisions because I am somewhat less likely to be fooled by persuasive judicial writing in this area than I would be in, say, environmental law, where I know nothing. And based on such expertise as I have, it seems to me that the courts mostly have it right in terms of their willingness to interfere with law society decisions. This is the case even where I do not agree with the underlying law society decision such as Histed v LSM (2006) or Groia v LSUC (2016) (with the caveat that the dissent in Groia makes a persuasive case for correctness review and overturning the Law Society’s decision). But the point is that whether a law society reached the same decision I would have on the evidence is not a basis for judicial review, and the courts understand that.

What broader insights follow from this analysis? None, except cautiously and with significant caveats. Law societies have features that set them apart from other administrative decision-makers: the decisions reviewed are quasi-adjudicative; they have extensive procedural protections for the lawyer; many (most?) lawyers are represented by counsel at the law society hearing; most law societies have statutory rights of appeal that take them to appellate courts for judicial review in the first instance, which increases the likelihood of informed judges; the decision-makers are mainly lawyers who are less likely to make bad legal errors; their policy choices rarely come before the court on judicial review. These factors may enhance the likelihood that a court will do judicial review of law society decisions better than they do judicial review generally. On the other hand, courts have concurrent jurisdiction over lawyer conduct through the inherent jurisdiction of the court, and can reasonably be viewed as equally expert to law societies on what constitutes appropriate lawyer conduct. That could have made the court more willing to interfere – no matter how expert the law society, the court would see itself as just as expert. Certainly it was not obvious to me before I read these cases that I was going to find what I did – I expected courts to be much more willing to interfere in law society decisions than they turned out to be.

With that caution and those caveats in mind, I would offer up two tentative conclusions from this review. One is that, as noted before, the effect of Dunsmuir is largely positive or, at worst, not negative. The other, however, is to suggest that the Supreme Court might want to calm down on its standard of review jurisprudence. These cases suggest that appellate courts understand what they are supposed to be doing in judicial review, and they are doing it. Constant tinkering with judicial review by the Supreme Court does not seem to be necessary, and risks unsettling the good work the lower courts, at least in these cases, are doing.