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 its 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.

It Doesn’t Work That Way

Legislation interfering with a municipal election does not violate freedom of expression ― contrary to what an Ontario judge has found

Last week was a busy one for me, as I was travelling to, around, and from Western Canada, having a good time, and giving five talks in four days, but the rest of the Canadian constitutional law world had an even busier one, courtesy of Justice Belobaba of Ontario’s Superior Court, and Doug Ford, its Premier. The former delivered a judgment invalidating the reduction, a mere two months before an election, of the number of seats on the Toronto city council: Toronto (City) v Ontario (Attorney-General), 2018 ONSC 5151. The latter responded to this judgment by bringing forward legislation that will invoke section 33 of the Charter, and allow the election to go ahead notwithstanding the fact that, according to Justice Belobaba anyway, holding it in this manner violates the freedom of expression. The Twitterverse was all atwitter; the commentariat commented; professors professed various shades of disbelief and indignation.

It would not be possible for me to recap and respond to everything, but I do want to make some observations ― even at the risk of repeating things that have already been said, and that I have missed. In this post, I will address Justice Belobaba’s reasoning. I will post separately on the use of the “notwithstanding clause” by Ontario’s legislature ― and some of the responses to it by commentators. Co-blogger Mark Mancini made a number of important points on both issues in an excellent (as always) post last week, and I largely agree with him. In particular, when it comes to Justice Belobaba’s decision, Mark is right that it “massages a chosen constitutional right” so as to “best achieve [the] result” it is after ― constitutional text and doctrine be damned. Here are some additional reasons why.

One thing I’d note is that the descriptions ― common in the media as well as in Justice Belobaba’s reasons ― of the redesign of the Toronto Council as having been imposed “in the middle of the city’s election” [6] need to be put into perspective. The legislation received royal assent almost 70 days before the voting was to take place. The time remaining in the election campaign was identical almost to the day to the duration of the last federal campaign ― whose length was unprecedented and, pretty much everyone agrees, quite excessive. No doubt federal and municipal elections are very different beasts; but we should perhaps hesitate before accepting the claim that the provincial legislation effectively subverted the voting process in Toronto.

Yet this is essentially what Justice Belobaba accepts when it comes to the first issue he addresses, that of “whether the enactment of Bill 5 changing the electoral districts in the middle of the City’s election campaign substantially interfered with the candidate’s [sic] right to freedom of expression.” [27; footnote omitted] Having so stated the issue, Justice Belobaba follows up with a rhetorical query: “Perhaps the better question is ‘How could it not?'” [28] Actually, there is an answer to this question, but it is worth pointing out that merely asking is not a harmless stylistic flash, but a reversal of the burden of proof, which lies on the applicants when it comes to establishing violation of their rights.

Justice Belobaba insists that pre-existing electoral arrangements “informed [the candidates’] decision about where to run, what to say, how to raise money and how to publicize their views”. [29] The new legislation disrupts plans and means that some, perhaps much, of the campaigning that has already taken place will now go to waste. As a result, it “substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters”. [32] It also “undermined an otherwise fair and equitable election process”. Justice Belobaba relies on Libman v Quebec (Attorney General), [1997] 3 SCR 569 for the proposition that “where a democratic platform is provided … and the election has begun, expressive activity in connection with that platform is protected against legislative interference”. [37]

Yet Libman held no such thing. It was concerned with the constitutionality of a law that prohibited persons not having joined a referendum campaign committee for spending money to make their views on the referendum issue known. This wasn’t about fairness ― indeed, fairness in the Supreme Court’s view supported the silencing of “third parties”, if not quite a complete one ― or about interference with an ongoing campaign. The contrast with the legislation here is quite telling. No one is being prevented from communicating any message to anyone. No one is told to stay out of the redesigned election campaign. Sure, the legislation is disruptive and ill-timed, and that’s a valid policy objection to it, but not any disruption of a municipal election is a violation of the candidates’ rights. Suppose a government ― whether provincial or even federal ― announces a major new policy on funding municipalities, and the announcement happens to coincide with a municipal election somewhere, effectively forcing the candidates to adjust their messaging, their spending plans, and so on, has that government thereby infringed the Charter?

As Mark noted in his post, the Charter protects our right to speak, but does not give us any assurance that our speech will be listened to, or be persuasive. Justice Belobaba’s reasons take constitutional law in a new and unwarranted direction. It’s worth noting, too, that with fixed election dates now being the norm federally and provincially, the “permanent campaign” is here to stay. Decisions about how and where to campaign are being made all the time. If any law that interferes with them, or forces prospective candidates or campaigners to revise their plans, is an interference with their freedom of expression, then there is literally no electoral legislation, regardless of when it is enacted, that is not a prima facie Charter violation. This too strikes me as an absurd consequence of Justice Belobaba’s decision.

Justice Belobaba, however, has an even broader objection to the legislation restructuring the Toronto City Council. He says that the restructuring infringes the constitutional guarantee of freedom of expression because the wards that it creates are simply too large for citizens to receive “effective representation” from their councillors. This defect, unlike interference with an ongoing election, would not be cured by delaying the application of the legislation until the next one. As Mark and many others have noted, Justice Belobaba imports the doctrine of “effective representation” from the cases that applied section 3 of the Charter ― which protects the right to vote, but doesn’t apply to municipal elections. Justice Belobaba argues that voting is an expressive activity, so there is no reason not to import tests developed in the context of the right to vote into freedom of expression cases. Like Mark, I think this is objectionable. Why bother with having a distinct, and carefully circumscribed, guarantee of the right to vote if it is anyway subsumed into freedom of expression?

But I would go further than my esteemed co-blogger, who I think is a bit too quick to concede the possibility of “overlap” between the right to vote and freedom of expression. As I have argued here, “[v]oting in an election is actually an incredibly bad way of sending any sort of message to anyone”. A ballot does not say who speaks, why, and what it is that they actually want. The act of voting is no more expressive than that of picking up a particular item from supermarket shelf; if anything, it is less so, since there usually fewer, and less palatable, choices in the voting booth. I do not mean to disparage voting. It is an incredibly valuable thing, this ability to make a choice, even among unpalatable options, of who is going to exercise power over us. But it is valuable for reasons that are quite different from those that make freedom of expression valuable ― even freedom of expression in the political context. It makes sense to have distinct constitutional protections for these activities, and distinct doctrines implementing these guarantees. There probably are cases of genuine overlap between some Charter rights, especially within and among the various “fundamental rights” protected by section 2, and to some extent between at least some of these rights and equality rights in section 15. But the right to vote is its own thing, and there are good reasons of principle as well as of legal craft to keep it separate from others.

It is hard to avoid the impression that Justice Belobaba strongly disliked the legislation on whose constitutionality he had to pronounce, found it unjust, and convinced himself that the constitution simply had to provide a remedy for it. His disclaimers about “the importance of judges exercising judicial deference and restraint” [8] (a sentiment with which I disagree ― there is no reason for deference and restraint in the face of legislation that actually is unconstitutional) ring quite hollow. He bends constitutional doctrine to get his way ― to, and past, breaking point. His decision is bound to do mischief, and should not be allowed to stand. Over to you, Court of Appeal. And for all that, it doesn’t follow that the government’s response to Justice Belobaba’s ruling was appropriate. More on that soon, I hope.

Permanent Censorship, Again

Ontario’s proposal for regulating pre-campaign political spending is wrong

Earlier this week, The Globe and Mail reported that the Ontario government is proposing to introduce legislation that would limit the flow of private money into the political process (and introduce public subsidies to political parties). There is no bill yet, as the government is consulting with (some of) the opposition, but there is a very handy table that sets out the details of the government’s proposal and compares them to the rules in other Canadian jurisdictions. In this post, I want to discuss one aspect of the proposed changes: the limitation of “third-party” spending during the six months prior to a scheduled general election to 600,000$ (see the table at p. 4). This proposal is, in my view, unconstitutional, and it is quite possible, although not certain, that the courts, which are likely to be asked to rule on the issue, will agree.

As is clear from the table, a number of Canadian jurisdictions limit the expenses that citizens, unions, corporations, and social movements who want to make their views on political issues known, collectively known to election law under the derisive name of “third parties,” can incur during an election campaign. The Supreme Court upheld the principle of such limitations in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, and it upheld the federal limits in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. No Canadian jurisdiction, however, currently limits third party expenses incurred prior to the official election campaign period.

What the table doesn’t say though is that British Columbia has tried to do so, only for its attempts to be twice found unconstitutional by the province’s Court of Appeal. In British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408, the Court struck down limits imposed during a sixty-day pre-campaign period. Then, in Reference Re Election Act (BC), 2012 BCCA 394, the Court took the view that limiting third-party expenses during a period that could, depending on the dates of legislative sittings, vary from 0 to 40 days would also be unconstitutional. The province did not appeal on either occasion, so that the Supreme Court has not had an occasion to pass on the issue.

In commenting on the latter decision, I wrote that I wasn’t sure that Court was correct to conclude that Harper did not apply to the pre-campaign limitations of third party spending. Its rationale ― that the civil society needs to be silenced in order to make election campaigning a “level playing field” on which political parties can frolic unimpeded ― could be applied to the period preceding the official campaign, especially if the spending of political parties is also limited during that period, as it would be under the Ontario government’s proposal (see the table at 3). But, as I noted when discussing musings in Québec and within the federal government about limiting third party spending prior to or between election campaigns, Harper can indeed plausibly be read as precluding the extension of spending limits beyond the bounds of the election campaign.

In response to the dissent’s (cogent, in my view) observation that the spending limits imposed on third parties prevented them from communicating effectively, the Harper majority observed

that third party advertising is not restricted prior to the commencement of the election period. Outside this time, the limits on third party intervention in political life do not exist. Any group or individual may freely spend money or advertise to make its views known or to persuade others. [112]

This was an important part of the majority’s reasoning on the way to its conclusion that the spending limits were “minimally impairing” of the freedom of expression, and thus justified under section 1 of the Canadian Charter of Rights and Freedoms.

Beyond predicting of what the Supreme Court would or would not do if confronted with pre-campaign spending limits, it is, however, important not to lose sight of the principles at stake. As I wrote in my post on the possible introduction of limits on third party spending between federal election campaigns,

It is important to appreciate just how far-reaching an attempt to control “third party” spending between elections would be. It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

There are a couple of additional issues with the Ontario government’s proposal worth highlighting too. One concerns federalism. While provincial and federal electoral processes are separate, the issues and, to some extent anyway, the parties involved in them are not quite distinct. A limit on the ability of a civil society group to speak out about an issue relevant to a provincial election can also be a limit on that group’s ability to speak out on an issue ― that same issue ― relevant to federal politics. If these limits are imposed for a short time, it might be argued ― though perhaps not very convincingly ― that the interference with the other government’s sphere is incidental. But the longer the limits, the more tenuous that case is. There is good reason why Justice Rand wrote, in Switzman v. Elbling, [1957] SCR 285, that “[u]nder [Parliamentary] government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion,” (306) and is therefore a federal, not a local concern. We have not given much thought to the relevance of this point to provincial electoral regulations, but we ought to before expanding them as much as Ontario seeks to do.

The other point concerns the proposed definition of “political advertising” (at p.5 in the table). It is modelled on the one in section 319 of the Canada Elections Act, and while not nearly as objectionable as the one used by Québec in section 404 of its Election Act (whose defects I discussed here), it is still problematic in that it is not fully technologically neutral. As I explained here (and in my article on the regulation of third parties and their role in contemporary Canadian politics),

the Canada Elections Act, for a reason that I do not understand, treats online communications differently from more traditional ones, in that it only only exempts online communications by individuals, and not those of organizations (whether corporations, trade unions, etc.) from its definition of electoral expenses. By contrast, for other forms of communications, notably those published in the traditional media, whether exempt from or included in the definition of (restricted) electoral expenses, the messaging of individuals and that of entities are treated in the exact same way. The singling out of online communications for a more stringent rule should be repealed.

Regardless of the views its government and, eventually, the courts take on the other issues I have raised here, it would be unfortunate if, legislating in 2016, Ontario were to repeat a mistake made by Parliament in 2000.

As I also explained in my article, “third parties” play an increasingly important role in contemporary politics, injecting ideas into the political debate which political parties prefer to focus largely on the personalities of their leaders and a select few wedge issues. I am therefore skeptical about the wisdom of regulating them at all. However, even if a case for limited regulation during the relatively short duration of an election campaign can be made out, there is no justification for extending regulation to long periods of time outside the campaign period. Ontario’s plans in this regard would quite possibly be found unconstitutional by courts, and in any event would be a most unfortunate move in the direction of political censorship. They should be scrapped.