Ontario – Double Aspect

Bonkerstown Bypass

The “math is racist” decision is overturned―on narrow grounds that give little guidance for the future

Last week, the Court of Appeal for Ontario issued its decision in Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788. The case was the appeal from the notorious “math is racist” decision of the Divisional Court, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, about which I blogged here. The Court of Appeal, contrary to the Divisional Court, holds that the math and pedagogy test (the Math Proficiency Test [MPT]) that aspiring teachers are required to take in Ontario does not discriminate against non-white candidates. But the decision’s scope is very limited. It is based on additional evidence that was not available to the Divisional Court, and while it provides useful guidance on assessing evidence in cases alleging violations of the Charter’s equality guarantee, it neither calls into question the legal framework applicable to such cases (which in fairness, is not the Court of Appeal’s role) nor points out the Divisional Court’s public law mistakes.

Justice Monahan, writing for the unanimous court, sets out the basis for the decision quite succinctly:

The Divisional Court made its findings based on the July 2021 Data, which recorded the results from the approximately 3600 candidates who had attempted the MPT by July 26, 2021. The July 2021 Data disclosed that … White candidates had passed the MPT at a materially higher rate than had racialized candidates.

The July 2021 Data before the Divisional Court provided a preliminary and incomplete basis for assessing the impact of the MPT on entry to the teaching profession. Candidates who had not passed the MPT could rewrite the test an unlimited number of times, and fewer than half of the candidates who would eventually attempt the MPT in 2021 had done so by July 26, 2021. This was an insufficient evidentiary record that failed to discharge the respondents’ onus under s. 15(1) of the Charter.

… December 2021 Data discloses that of the 8350 candidates who attempted the MPT one or more times during 2021, 95% were successful, including 93% of candidates from racialized groups. Moreover, had the MPT been available in 2022, candidates who had not succeeded in 2021 would have had the opportunity to retake the test. Thus, the ultimate disparities in relative success rates between different demographic groups might well be even smaller than the relatively modest differences observed in the December 2021 Data. [6-8]

What matters, according to Justice Monahan, is whether the white and non-white test-takers are able to enter the teaching profession at similar rates, not the outcome of any particular test attempt. There is no evidence that having to retake the test is a material disadvantage; there is no need to wait any significant amount of time before resitting; no harm ― no foul. This is sensible so far as this particular arrangement is concerned, but note how little the decision really matters for the future: in effect, the test is upheld because failure has no meaningful consequences. The test isn’t really much of a test.

Justice Monahan’s comments about statistical evidence in discrimination cases are worth noting, but they too might turn out not to be very consequential. He points out that “the number of candidates who had self-identified as members of racialized groups” in the data considered by the Divisional Court

was quite small, representing a fraction of the total number of MPT test takers in 2021. Moreover, because the absolute numbers were small, relatively small changes in the numbers would have an outsized impact on the success rate (expressed in percentage terms) for racialized candidates. [71; footnote omitted]

Justice Monahan adds that “the Divisional Court did not explain why it was appropriate to draw firm conclusions about the impact of the MPT on racialized teacher candidates in Ontario from such a small sample size”. [71] But that is not fair. The Divisional Court did address this concern. It wrote that demanding more extensive data

is akin to suggesting that more racialized candidates must attempt and fail the MPT to accumulate the data necessary to show a disproportionate impact. The fact that a greater adverse impact could be demonstrated over time does not mean that there is no adverse impact now. While evidence is necessary, it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory. [Div. Ct., 85]

Of course, the flaw in this reasoning is that it presumes that early trends will simply continue. We know now that they did not, and this might have been anticipated in the circumstances, as the resit attempts allowed groups that were not initially as successful as others to catch up. But then again, the catching-up would presumably not have happened if there had in fact been some deep problem with the test. As I wrote in my post about the Divisional Court’s decision, “[t]here is a logic to” saying that “it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, though “but “that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture”.

In other words, a difficult question arises here: how does a court faced with a disparate impact discrimination claim balance the need for sufficiently robust data to support it against the concern about making people wait and suffer discrimination? It is the Court of Appeal that doesn’t explain why it disposes of this question as it does, even as it chides the Divisional Court for its alleged failure to explain itself. The explanation, I suspect, is implicit: facts are stubborn things, as John Adams long ago pointed out, and once the more complete data are admitted into evidence, it would take a peculiarly bloody-minded court to ignore them. But of course this too doesn’t give future litigants and courts a great deal of guidance.

Perhaps this is because the Court of Appeal is simply stuck with a legal framework foisted on it by the Supreme Court, and could not resolve the paradoxes that this framework throws up even if it tried. The difficulties I have just outlined are inherent in allowing statistics to ground claims of unconstitutional discrimination even if no one can offer a plausible hypothesis about how these statistics have come to be. A general invocation of “systemic racism/sexism/discrimination” isn’t an explanation of course ― it simply begs the question. Getting rid of disparate impact claims entirely would of course solve these problems. Short of that, one might at least require a claimant to explain exactly how the system works to produce this specific set of disparate outcomes. Statistical evidence would then be no more than useful supporting evidence, rather than the foundation of the claim, and its weakness would be less of a concern. In any case, these are things for the Supreme Court to think about.

What the Court of Appeal could and should have done better with is the basic question of the issue in this case and, relatedly, the standard of review and the eventual remedy. Justice Monahan describes the issue as “[d]id the Divisional Court err in finding a prima facie breach of s. 15(1) of the Charter … and [d]id the Divisional Court err in holding that any infringement of s. 15(1) caused by the MPT is not justified under s. 1 of the Charter?” [64] But this is ambiguous as to the nature or cause of the alleged “prima facie breach” or, to use more textually grounded language, limitation of the s 15(1) right. Is the claim that s 15(1) is limited and eventually breached by the specific test that was administered to would-be teachers, or to the statutory provisions authorized it?

The distinction doesn’t just matter for the sake of intellectual rigour. Under existing Supreme Court precedent, it makes a difference to the standard of review. If only the actual test that was administered is at issue, it should arguably be reviewed as a discretionary decision, and thus subject to deference under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and its progeny. If the statutory provisions themselves were being challenged, then correctness review was in order. The Court of Appeal follows the Divisional Court in applying correctness review, but doesn’t explain whether and why the provisions authorizing a test were being challenged despite the evidence dealing almost exclusively with the test that was actually administered and its outcomes. And of course, if the Court of Appeal had upheld the Divisional Court’s findings, the proper remedy would also have turned on the nature of the claim. As I wrote in my post about the Divisional Court’s decision, I don’t think there was a basis for invalidating the legislative provisions enabling the test, and yet the Divisional Court did just that. It looks like the Court of Appeal could have done the same, and we are none the wiser as to why.

The Court of Appeal’s decision is, obviously, better than the alternative. That alternative, as I wrote in my post, was “desperately sad”:

The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. … This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

But the survival of this particular test, for no more compelling reason than that it doesn’t ultimately prevent any significant number of people ― of whatever race ― from becoming teachers, isn’t exactly a cause for joy. The contrary outcome would have been bonkers, but the Court of Appeal doesn’t, and in fairness can’t, prevent it from occurring in a future case. It merely bypasses, for now.

The Made-Up Law Made Them Do It

The Supreme Court’s made-up right to vote doctrine works its mischief at the Ontario Court of Appeal

Earlier this week, the Court of Appeal for Ontario released its decision in Working Families Coalition (Canada) Inc v Ontario (Attorney General), 2023 ONCA 139, which considers the constitutionality of an extension, from six months before an election to a whole year, of the period during which political speech by civil society actors in Ontario is severely restricted. The Superior Court had previously found that this extension was an unconstitutional violation of the freedom of expression protected by s 2(b) of the Canadian Charter of Rights and Freedoms. However, the Ontario legislature re-enacted it, invoking the Charter’s “notwithstanding clause”, s 33. The Court of Appeal unanimously holds that s 33 was validly relied on, but also, by a 2-1 majority, that the law nonetheless violates the right to vote, protected by s 3 of the Charter, whose application cannot be ousted under s 33.

The outcome is a disturbing one. The idea that a law that does not affect anyone’s ability to cast a ballot or run for office ― the two rights protected by s 3 ― but rather censors individuals and groups who are not candidates at an election precisely because they are not candidates, is a violation of the right to vote is, to put it mildly, counter-intuitive. The problem with the impugned legislation is that it is rank political censorship. Yet one would think that, since it enables legislatures to disregard the freedom of expression, s 33 of the Charter enables just this sort of self-serving abuse of power. Yet it would be a mistake to blame the Court of Appeal. The majority’s decision is a plausible application of one of the Supreme Court’s worst decisions of the last half-century: Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827.

Before getting to the main issue, a few words on the unambiguously correct and good aspect of the Court of Appeal’s ruling: the rejection of the argument that s 33 could not have been invoked in the first place. This too is a straightforward application of Supreme Court precedent, Ford v Quebec (Attorney General), [1988] 2 SCR 712, which held that the only implicit limit on resort to s 33 is that it cannot be retroactive; subject to this constraint, legislatures need not explain or justify suspending the enforceability of Charter rights. The applicants argued that Ford could be disregarded, either because election law was a special case or because the Supreme Court’s decision was no longer in tune with “the evolution of Charter jurisprudence since … 1988″ [56]. The Court of Appeal makes short work of both arguments, explaining that the importance of elections to the maintenance of democracy is sufficiently addressed by the fact that s 3 of the Charter is not subject to s 33, and that Ford has never been questioned, let alone overruled, by the Supreme Court.

This is quite right on both points. The fashionable academic theories on which the applicants relied, developed in the last few years in response to the resurgence of s 33, are unmoored from the Charter‘s text, and rely on fanciful extension of underlying principles about whose effects the Supreme Court is ambivalent at best. Of course, the Supreme Court remains free to make things up and reverse Ford. It may yet be urged to do so, whether if this case is appealed or indeed, as some have suggested, in a reference intended to limit the use of s 33. But I hope that the ease with which the Court of Appeal rejected the claim that Ford has been superseded by jurisprudential developments is indication of what is to come if that happens.

Section 2(b) of the Charter having been successfully ousted, the Court of Appeal moves on to the main event: the s 3 argument. This too is governed by Supreme Court precedent, Harper, which concerned the constitutionality of the federal scheme for silencing civil society political speech during (but not prior to) election campaigns. But the guidance it provides is nothing as clear as Ford‘s, and it is necessary to reproduce it here at some length.

Harper was mainly argued and decided on the basis of s 2(b), but s 3 was also raised. Bastrache J’s majority reasons on this point began by noting that it “cannot be” that “the right to meaningful participation” in elections, which is how the Supreme Court has long re-interpreted s 3, has an identical content “with the exercise of freedom of expression. … The right to free expression and the right to vote are distinct rights”. [67] Would that Justice Bastarache had stopped here! Instead, he declared that “[t]he right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner”. [70] This drew on no s 3 precedent whatever, but rather on Libman v Quebec (Attorney General), [1997] 3 SCR 569, a s 2(b) case. Undeterred, Ba starache J had the following to say:

[E]quality in the political discourse is necessary for meaningful participation in the electoral process and ultimately enhances the right to vote. Therefore … s. 3 does not guarantee a right to unlimited information or to unlimited participation. Spending limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters. Spending limits which are overly restrictive may undermine the informational component of the right to vote. To constitute an infringement of the right to vote, these spending limits would have to restrict information in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented.

The question, then, is whether the spending limits … interfere with the right of each citizen to play a meaningful role in the electoral process. The trial judge found that the advertising expense limits allow third parties to engage in “modest, national, informational campaigns” as well as “reasonable electoral district informational campaigns” but would prevent third parties from engaging in an “effective persuasive campaign” … [But] [m]eaningful participation in elections is not synonymous with the ability to mount a media campaign capable of determining the outcome. [72-74; paragraph break removed]

The outcome of Working Families turns on the meaning of this less-than-pellucid passage, of which the majority and the dissent take different views.

The majority, Zarnett and Sossin JJA sees it as setting out “two proxies, or methods of ascertaining whether the restriction” on voter information “is constitutionally offside”. [86] The first is asking whether the restriction is, in Bastarache J’s words, “carefully tailord”, which in turn “”The requirement that the restriction be carefully tailored “invites the court to examine the rationale, express or implicit, for the amount and duration of the spending limit – the express or implicit reasons why the lines were drawn where they were”. [87] This, the majority insists, is a very different matter from the analysis required by s 1 of the Charter, and in particular from its “minimal impairment” stage, which asks whether less restrictive alternatives to the impugned measure were (reasonably) available to the legislature. Here,

the question is whether the challenged spending restrictions draw the line at the point of preventing the well-resourced from dominating political discussion without being overly restrictive so as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented. A conclusion that a choice was in some other sense “reasonable” does not answer this question. [89]

Moreover, in this case, this assessment must focus not only on the legal end-state created by the impugned law, but specifically on the transition from the regulatory regime it displaced, which restricted political speech by civil society actors for six months rather than a year. It is the change from the one to the other that must “carefully tailored” in the above sense.

The majority holds that it was not. While explicitly rejecting the contention that the impugned legislation “constitutes partisan self-dealing by the incumbent government”, [102] it considers that “doubling the restricted period without increasing the quantum, a result that was twice as restrictive as what had been found appropriate, without explanation, does not denote careful tailoring”. [109] While the government argued that the new regime did not impede the voters’ participation, the majority takes the position that “[i]f at least some voters are prevented from exposure to political information of value from third parties in the 6 to 12-month period, their right to meaningful participation under s. 3 may be undermined”. [112] That the new restriction is one of a range of reasonable alternatives does not matter either ― that would be a consideration under s 1 of the Charter, but not at the point of establishing a s 3 infringement.

The second “proxy” is whether the restrictions leave room for at least “a modest informational campaign”. The majority finds that there was no evidence that this was so. The first-instance judge’s suggestion that affordable means of communicating with the voters were available and sufficient for a modest campaign was speculative. Moreover, the resources that could be used under the impugned law had to be deployed over a period of 12 months, which again threw the validity of the law into doubt.

Having briefly considered whether the restriction of s 3 rights could be justified under s 1 of the Charter, the majority concludes that it could not. The law is unconstitutional, but the declaration to this effect is suspended for a year to allow the legislature time to consider its next steps.

In dissent, Benotto JA rejects the majority’s interpretation of Bastarache J’s reasons in Harper. For him

[t]he controlling test is not whether the spending limits are carefully tailored but whether they restrict information in such a way to undermine the right of citizens to meaningfully participate in the electoral process, which includes the right to vote in an informed manner. [161]

This test is concerned with the effects of the impugned law, not with whether a justification for it exists. To look at justification is to conflate the s 3 analysis with that which ought to take place under s 1. In this case, moreover, it would be a mistake to focus on the change from s six-month period of restricting civil society speech to the one-year one; the longer period “had to stand or fall on its own. It was not the change that was determinative, but whether the legislation … was Charter compliant.” [176]

The dissenting judge considers there was enough evidence that the impugned law left some space for civil society actors to communicate their views to the voters, which was all that Harper required. The judge below made findings to this effect which were open to him and should not be disturbed.

I have no strong views on whether the majority opinion or the dissent is the better application of Bastarache J’s comments in Harper. I think both the majority’s reading, which emphasises the importance of the “careful tailoring” language and the dissent’s, which focuses on the way Bastarache J seems to have formulated the ultimate question before him are plausible. It is true, as the dissent charges, that the majority’s “careful tailoring” analysis is hard to tell apart from what would normally take place under s 1 of the Charter. I would add, moreover, that the “two proxies” approach will be unhelpful if the two point in different directions, which one might think was the case here: the law wasn’t tailored carefully, or indeed at all, but it arguably did leave some room for political speech. But the approach favoured by the dissent suffers from its own flaws. For one thing, it seems to ignore Bastarache J’s tailoring language altogether. For another, it is entirely impressionistic, and leaves an ostensible constitutional right at the mercy of the government producing an expert who will say, as a former Chief Electoral Officer did in this case, that the spending limit imposed on civil society was “not nothing”. Pick your poison.

For my part, I want to stress that this case highlights the rare feat achieved by Bastarache J (and, of course, the other judges who signed onto his opinion) in Harper: being at once vapid and pernicious. Vapid, because the discussion of s 3 in Harper is too vague and self-contradictory to mean much of anything, let alone provide real guidance to the courts that are nonetheless bound to apply it. To repeat, it is not the Court of Appeal judges’ fault that they have a hard time puzzling out whether “careful tailoring”, “modest informational campaign”, or “meaningful participation” is the test for a s 3 violation, and what any of these things mean. Pernicious, because it still opens the door to what is quite obviously a freedom of expression issue that should be dealt with under s 2(b) of the Charter ― or, as here, ignored because the self-dealing legislature so decreed ― to be considered under the aegis of a different right, unsuited to the exercise as a matter of both constitutional text and doctrine.

Of course it’s true that, as Bastarache J said in Harper, “[g]reater participation in the political discourse leads to a wider expression of beliefs and opinions and results in an enriched political debate, thereby enhancing the quality of Canada’s democracy”. [70] But it simply does not follow that this is a matter for s 3 of the Charter and that “the right to vote in an election of members of the House of Commons or of a legislative assembly” includes a “right to exercise his or her vote in an informed manner”. [71] Not everything that is needed to make a given Charter right fully effective can be rolled into that particular right. A free press, and certainly the media’s ability to report on court proceedings, “enhance the quality” of the administration of justice and, for instance, the right to be judged by an independent and impartial tribunal. But it does not follow that restrictions on reporting on criminal trials are to be dealt with under s 11(d) of the Charter instead of s 2(b). Different Charter provisions have independent meanings and distinct doctrinal frameworks that give them effect, and confusing them is both wrong in principle and unhelpful in practice ― except, of course, for crassly results-oriented purposes.

In another controversy about election laws in Ontario, the Supreme Court put an end to similar confusion. In Toronto (City) v Ontario (Attorney General), 2021 SCC 34, it rejected the Superior Court’s re-branding of the franchise in municipal elections, to which s 3 of the Charter does not apply, as a form of expression protected by s 2(b). If given the opportunity, it should do the same with the re-branding of pre-electoral expression as “the right to vote in an election of members … of a legislative assembly”. This should be done in the clearest way possible ― that is to say, by rejecting Harper, at least on this point (until, in the fullness of time, its s 2(b) holding is also overturned). Harper‘s s 3 “analysis” was made-up, and it needs to be unmade in the place whence it came.

The Law of Bonkerstown

Does the constitution mandate the soft bigotry of low expectations?

In a much-noticed decision, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, the Ontario Divisional Court has declared unconstitutional a standardized test would-be teachers were required to take in Ontario, as well as provisions of the Ontario College of Teachers Act and regulations made under it that required the test to be administered. The Court found that the test infringed the equality rights of “racialized” candidates under section 15 of the Canadian Charter of Rights and Freedoms, because they (or at least some groups among them) had significantly lower pass rates than white ones. The decision is perverse in itself, as well as showing the perversity of section 15 jurisprudence.

The case can be summarised quite simply. In the face of concerns about falling student performance on mathematics tests, the Ontario legislature introduced a requirement that aspiring teachers themselves pass a standardized test. Regulations were drawn up and a test designed, drawing on a “bank of math questions used for Grade 3, 6, and 9 assessments” for its substantive part and “on Ministry policy documents for the pedagogy component”. [24] Alas, despite two reviews “for bias and sensitivity to equity issues” [25] the results of a trial run and of the first official iteration of the test showed considerable disparities between ethnic and linguistic categories of test-takers. A group of would-be teachers, supported, it is worth noting, by the teachers’ union, challenged the test on the basis that these disparities amounted to unconstitutional discrimination.

In a unanimous opinion by Justices Backhouse and Nishikawa, the Divisional Court agrees. Following Fraser v Canada (Attorney General), 2020 SCC 28, it explains that section 15 rights are limited whenever state action impacts a group defined by a trait it names or an analogous one more severely than a relevantly comparable group, and this disparity “has the effect of reinforcing, exacerbating or perpetuating disadvantage”. [56] Crucially, there is no need for a demonstrated causal connection between the disparity and the disadvantaged group’s characteristics, and no need for all of the disadvantaged group’s members to be similarly affected.

This test is met here by the statistical showing that some non-white groups have done noticeably worse than white test-takers ― a result that the Court ties to the fact that “[t]he education system in Ontario has historically imposed disadvantages on Black and Indigenous students” [64] and that “Black and Indigenous students tend to be over-represented in less challenging, basic and general level courses, and under-represented in advanced courses”. [65] Such students, the Court says, would do better if there were more teachers who shared their background, but there are not ― on the contrary, “[t]wenty-six percent of Ontario students are racialized. However, only thirteen percent of teachers are racialized”. [67] In addition to the statistics, the Court discusses what it describes as “qualitative evidence”, in the form of an affidavit by one candidate, of African origin, who found taking the test difficult. One reason for this was that the test “is taken on a computer”, while the candidate “ha[d] never used a computer or calculator for math and ha[d] never taken a computer-based math test” [89] ― though this candidate was actually successful on the math part of the test, and only struggled with the pedagogy one.

The Court then asks whether this limitation of equality rights is justified in a free and democratic society. It accepts the government’s submission that the test is imposed to improve student performance and is a rational way to do so. Furthermore, the issue involves balancing would-be teachers’ rights and the needs of the students, which points to “a highly deferential approach” [132] to deciding whether the test is a minimally impairing way of achieving the government’s purposes. Yet the Court still finds that the test is not justified. This is, crucially, because the government would do as well ― or, the Court strongly suggests, better ― if the test were replaced with a requirement that aspiring teachers be required to take a math course as part of their mandatory education. The Court’s key finding is that this

would be significantly less impairing of equality rights. There is a plethora of evidence in the record highlighting the disproportionate impacts of standardized testing based on race … In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course (i.e. that racialized teacher candidates might disproportionately fail these math courses), and we do not think such an inference can be made on the basis of logic or common sense. [142]

This way lies madness. The Divisional Court is, of course, bound by the Supreme Court’s test at the section 15 stage of the analysis, and for the most part it should not be faulted for the way in which it applies it. What its application of the test makes clear, though, is that this test is, to use a technical term, bonkers. It compels the conclusion that constitutional rights are limited ― or, as the Court puts it, prima facie breached ― by what could, for all we know, be statistical artefacts. (One point that arises in the Court’s discussion is whether data from one trial and one official test are sufficient to support its conclusions. There is a logic to the Court’s response that “a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, [85] but that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture.) References to historical discrimination and current statistical disparities are only for colour; they do are not meant to have any actual explanatory power. They cannot, for instance, account for the fact that, on the trial edition of the test, the disparity between candidates of “Caribbean” and “African” backgrounds was almost as great as that between “Caribbean” and “European” candidates. A potential constitutional violation is made out by a showing no one needs to and, quite possibly, can explain. This is a surrender to, indeed an embrace of, irrationality masquerading legal doctrine.

Meanwhile, the Divisional Court’s approach to section 1 is perverse in its own right, though it is also consistent with the underlying logic of the Supreme Court’s approach. The Court says that the province should rely on courses in mathematics rather than tests to ensure that teachers are competent, because there is no evidence of disparate effect of a course requirement. For one thing, note that the Court doesn’t say there is evidence of equal outcomes. It’s just that nobody seems to have studied the matter. And consider: if the course uses rigorous assessment of the same kinds of skills that the test measured, why would the outcomes be different? Alternatively, how will we know that the reason for the course requirement not yielding disparate outcomes won’t be a lack of rigorous assessment? I’ve taught enough at universities to know that this is not exactly a far-fetched hypothesis.

Here is the desperately sad thing about the Court’s reasoning. The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. The “qualitative evidence” on which the Court relies is telling in this regard. It is, apparently, too much to ask of a teacher, or at any rate, on the Court’s logical, a “racialized” teacher, in the 21st century to be able to do a test on a computer. We shouldn’t care that a future teacher cannot answer multiple-choice questions about pedagogy, because hey, he is “uniquely qualified to broaden students’ awareness and understanding of Franco-African culture and cross-cultural world views”. [91] This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

And yes, of course, it’s not impossible that the standard is set in an insidiously biased way. Needless to say, a standard vetted, twice, for precisely this potential problem by people genuinely concerned about this possibility is unlikely to have this problem. Still, perhaps. But then it should be possible to demonstrate that this is so. As Justices Brown and Rowe say in their dissent in Fraser, one should not assume that a statistical disparity in outcomes between groups or a correlation between disadvantage and membership in a group equals causation:

where one is dealing with complex social and economic considerations … one can readily assume that there are many factors involved, some of which will give rise to causation while others will simply be the result of coincidence (that is, caused by independent factors). [180; emphasis in the original]

Let me end this part of the past by quoting Chad Williams, writing for Fair for All:

the fundamental assumption of critical race theory is that disparities between racial groups are in themselves evidence of racism. This assumption is faulty because it fails to allow or account for the numerous reasons other than racism that racial groups might have different outcomes. At the population level, these plausible reasons include age, geography, and, of course, culture. Many analysts of group differences are trapped in the false binary that these differences must result from either racism or genetic differences. However, Thomas Sowell and others have made compelling arguments about why this simply is not true. This is not to say that past disparate treatment has had no effect on current disparate outcomes, but it certainly cannot be the only cause for these disparities. Accordingly, a policy that begins from the faulty assumption that disparities equal racism is bound to fail as a bulwark against what actual racism still exists today.

This policy is the law the Supreme Court’s created in Fraser, and the Divisional Court’s decision in Candidates’ Council illustrates the tragic consequences it is bound to have.

Before addressing the question “and now what?”, let me point out two things about this case that I do not understand. One has to do with what exactly the Court is deciding. Beyond explaining that a recent amendment to the College of Teachers Act required the test to be set up and regulations under the Act gave effect to the requirement, the Court’s reasons focus entirely on the test. The evidence, such as it was, had to do with the results of different groups of candidates on the particular test they were administered, and the experience of some individual candidates. Yet the court not only invalidates the test, but also the statutory provision and the regulation pursuant to which it was created. It doesn’t at all explain why. Under the heading “What Is the Appropriate Remedy?” it simply states that “[a] declaration” to this effect “will issue”. [161] The province can’t create a new test even if thinks that it might come up with one that will not produce the disparities this one did. That doesn’t seem right to me, and the absence of any explanation does not speak well of the Court’s commitment to transparency and to judicial craft.

Relatedly, I do not understand the Court’s approach to the standard of review. The Court deals with it briskly, citing Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, for the proposition that “constitutional questions are reviewed on a standard of correctness” [50]. But that seems too quick. Vavilov makes a

distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit [Charter] rights … and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter. [57]

The former type of cases is not, ostensibly, decided on the correctness standard at all, but following the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and refined in a number of subsequent cases. Only the latter attract the correctness standard. Co-blogger Mark Mancini has argued that this is incompatible with Vavilov‘s overall thrust, and so have I, but that’s how it is until the Supreme Court says otherwise. Now, as I’ve alluded to just above, Candidates’ Council seems to involve both types of issues. The design of the test is a discretionary administrative decision. It’s not prescribed by statute or regulation: regulation 3 of the Proficiency in Mathematics Regulations, made under the College of Teachers Act, simply provides that “[T]he Education Quality and Accountability Office shall develop English and French versions of a mathematics test”. The test, then, should in principle be assessed under the Doré framework, on a reasonableness standard. Meanwhile, the Regulations and the enabling section of the Act are obviously the kind of provision whose constitutionality falls to be addressed on the correctness standard under Vavilov.

Does that make sense? No, not really. I would even say, none at all. But that’s what Vavilov pretty clearly seems to require. It is puzzling that the Court does not even attempt to engage with its demands. This isn’t even a matter of fudging the law to get to a desired outcome ― as we have seen, the Court makes a show of being deferential while ostensibly applying the correctness standard, and strikes down the test anyway. It could easily have reached the same result under Doré. I suppose the absurdity of the Vavilov/Doré cohabitation was simply too much to deal with.

So what to do about this terrible decision? Unsurprisingly given both the Zeitgeist and the egregious nature of this decision, the n-word ― “notwithstanding” ― has been thrown around since the decision came out. More than on other occasions, I understand the impulse. But, as before, I remain of the view that it must be resisted. While using the “notwithstanding clause” to undo this particular decision may be a short-term fix, it is not a genuine solution to the underlying problem. The invocation of s 33 of the Charter will have to be renewed every five years. A legislature that takes a different view of either the substantive issues or indeed the propriety of using the notwithstanding clause itself need not do so. More importantly, using the notwithstanding clause to resurrect this particular policy does nothing to prevent other judgments, striking down other policies, from applying the same misbegotten principles as the Divisional Court applied here. Are the supporters of the notwithstanding clause saying that it should be used, René Lévesque-style, to insulate all law from judicial review? They’ve always been angry at me for suggesting that that that’s where their positions naturally led.

The immediate solution, of course, is for the province to appeal. One should hope that the Court of Appeal, and the Supreme Court if need be, will restore sanity, if only on the section 1 issue, on which Fraser does not control. Otherwise, the appropriate solution ― and it is probably well worth pursuing regardless of the outcome of the appeal ― is an amendment to section 15 of the Charter. At a minimum, it should endorse the dissenting position in Fraser, requiring a showing of causation for statistical disparities to be regarded as limiting equality rights. More radically, the amendment could excluding disparate impact discrimination from section 15’s scope. My tentative opinion is that this is the better, cleaner option ― but I am open to persuasion. Either way, an amendment is both a more permanent ― not to mention transparent and honest ― way of avoiding similar disasters in the future than using the notwithstanding clause to revive this particular policy, and a more modest one than a blanket invocation of the notwithstanding clause to prevent section 15 challenges at all would be.

Correct, but Wrong

Thoughts on the Supreme Court’s dismissal of the challenge to Ontario’s interference in the Toronto municipal elections

Last week, the Supreme Court handed down its judgment in Toronto (City) v Ontario (Attorney General), 2021 SCC 34, upholding a provincial statute cutting the number of wards and councillors in Toronto in the middle of a municipal election campaign. The Court divided 5-4, with Chief Justice Wagner and Justice Brown writing for the majority (also Justices Moldaver, Côté, and Rowe) and Justice Abella for the dissent (also Justices Karakatsanis, Martin, and Kasirer).

The majority gets the outcome right. As both co-blogger Mark Mancini and I have written here in response to the Superior Court’s decision in this case, the province was well within its rights to enact what was, by all accounts, a disruptive law of questionable usefulness. But the majority’s reasoning is underwhelming. It’s not bad on the first issue: that of an alleged violation of the freedom of expression. But it is just rubbish on the second: that of the constitutional principle of democracy. The majority’s attempt to synthesize and cabin the Supreme Court’s jurisprudence on unwritten principles is a complete failure.

The first issue is whether the reorganization of the Toronto city council after the beginning ― though well over two months before the end ― of the municipal election campaign was a limitation of the freedom of expression of the candidates who had started campaigning under the old system. The majority holds that it was not. As a result, it does not get to the question of whether a limitation would have been justified.

For the majority, the matter falls to be considered as a claim for the provision by the state of a particular platform for expression, rather than as a (more usual) claim that a person is being prevented from conveying their ideas to others. As the majority explains,

the City does not seek protection of electoral participants’ expression from restrictions tied to content or meaning … ; rather, it seeks a particular platform (being whatever council structure existed at the outset of the campaign) by which to channel, and around which to structure, that expression. [32]

In other words, this is a “positive” rather than a “negative” right claim. The majority reformulates the test for such a claim as whether it is

grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? [25]

The majority adds that “substantial interference with freedom of expression requires “effective preclusion” of “meaningful expression”, which is “an exceedingly high bar that would be met only in extreme and rare cases”. [27]

The City has not cleared this bar. The majority states that “the candidates and their supporters had 69 days — longer than most federal and provincial election campaigns — to re‑orient their messages and freely express themselves according to the new ward structure”, with “no restrictions on the content or meaning of the messages that participants could convey”. [37] There was a meaningful election campaign, albeit a different one than had originally been planned.

The majority also rejects the City’s alternative argument on freedom of expression, to the effect that it implies a guarantee of “effective representation” which the Supreme Court originally articulated in the context of section 3 of the Charter. This provision protects the right to vote in federal and provincial ― not municipal ― elections. For the majority, “[e]ffective representation is not a principle of s. 2(b), nor can the concept be imported wholesale from a different Charter right”.

The dissent, for its part, begins by stressing the disruptiveness of the reform imposed by the province, and the lack of justification for it ― indeed, the new electoral structure had been considered by the City itself, and rejected. It goes on to argue that

When a democratic election takes place in Canada, including a municipal election, freedom of expression protects the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day. … When the state enacts legislation that has the effect of destabilizing the opportunity for meaningful reciprocal discourse, it is enacting legislation that interferes with the Constitution. [115]

This is what the province has done here, as the dissent emphasizes by quoting at great length the statements of candidates impacted by the disruption.

The dissent also argues strenuously that the majority is wrong to see the dispute as being about the positive provision of a platform for expression, and so to apply a higher threshold of seriousness to the question of whether the freedom of expression has been infringed. Indeed, in its view

There is no reason to superimpose onto our constitutional structure the additional hurdle of dividing rights into positive and negative ones for analytic purposes. Dividing the rights “baby” in half is not Solomonic wisdom, it is a jurisprudential sleight-of-hand that promotes confusion rather than rights protection. [155]

The province has also failed to advance a justification. This means that the impugned law contravenes the Charter.

As noted above, I think that the majority is basically right, notably in treating the claim advanced by the city as being for the provision or maintenance of a specific set of arrangements within which expression is to be channelled. The freedom of expression is the ability to say things one thinks, and not to say things one doesn’t. It’s not a guarantee that what one says will be interesting or relevant to anyone. If a province goes dry tomorrow, a great deal of alcohol advertising will have been rendered pointless, as will a great deal of campaigning for moderate drinking, research into the health benefits of red wine, and what not. But prohibition will not infringe the Charter. (It will be abominable, but constitutional.) It is the same when a province renders pointless a great deal of campaigning for a municipal election. Stupid, but constitutional, as Justice Scalia used to say.

The dissent’s response to this would be, I think, that the context of an election is different, but that really just proves the majority’s point. The claim at issue is about a specific platform for expression. The dissent’s analogy with Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295 also doesn’t work. That case was concerned with a ban on political advertisements on city buses, and the issue, as the majority explained, was not access to the platform in question ― that is, advertising on buses ― but a restriction on the content of what could be said on that platform. Here, the situation is exactly the opposite. The province hasn’t changed how it regulates the content of municipal election campaigns, but instead has shut down the old platform for expression and substituted for it a different one.

My objection to the Chief Justice’s and Justice Brown’s reasons has to do not with what they do, but with some of the things they say. They describe the threshold at which the “positive” freedom of expression is engaged as “an exceedingly high bar that would be met only in extreme and rare cases”. This may be tantamount to reading this aspect of the freedom out of the doctrine entirely ― but they also say that it has, in fact, some value. This language of “extreme and rare cases” isn’t necessary here, and I don’t think it provides useful guidance for the future; the words are too imprecise and subjective. The other troubling aspect of the majority’s reasons is its mention ― seemingly in passing, but I suspect that it is with at least a measure of approval ― of the fact that the Charter‘s guarantee of freedom of expression “has been interpreted so broadly that the framework has been criticized for setting too low a bar for establishing a … limitation”. [16] This has nothing to with this case, since that broad framework traditionally traced to Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, doesn’t apply. The Supreme Court is already far too accepting of limitations on the freedom of expression, and its possible willingness to restrict the freedom’s scope bodes ill.

I turn now to the second issue, that of whether interference with an ongoing municipal election is an unconstitutional violation of the democratic principle. This principle, which the City suggested required the provision of “effective representation” in the municipal context, as well as in the cases governed by section 3 of the Charter, would serve as a limit on the legislature’s ability to enact laws in relation to “Municipal Institutions in the Province” pursuant to section 92(8) of the Constitution Act, 1867.

The majority is unimpressed. It says that unwritten principles such as democracy “are … part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms”. [50] However,

because they are unwritten, their “full legal force” is realized not in supplementing the written text of our Constitution as “provisions of the Constitution” with which no law may be inconsistent and remain of “force or effect” under s. 52(1) of the Constitution Act, 1982. Unwritten constitutional principles are not “provisions of the Constitution”. [54]

They can serve two functions: on the one hand, they can be used as aids in interpreting constitutional text; on the other, they can fill textual gaps. What they cannot do, the majority says, is directly invalidate legislation. To hold otherwise would be to “trespass into legislative authority to amend the Constitution”, [58] and to make an end-run around section 1 and 33 of the Charter, which allow, respectively, reasonable limitation of rights and legislative override of some of them, including, relevantly for this case, the freedom of expression.

To support its claim that principles have only interpretive and suppletive effects, the majority reviews various cases that might suggest otherwise. Notably, it dismisses the dissent on the legal question in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 SCR 753, which the Supreme Court later unanimously endorsed in Reference re Secession of Quebec, [1998] 2 SCR 217, on the basis that “while the specific aspects of federalism at issue there may not have been found in the express terms of the Constitution, federalism is“. [52] As for the Provincial Judges Reference, Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3, it stands, the majority says, for the proposition that “where the constitutional text is not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids” [65] and “to fill a gap where provincial courts dealing with non‑criminal matters were concerned”. [66]

In this case, “the unwritten constitutional principle of democracy cannot be used to narrow legislative competence” over municipalities, which is “plenary” and “unrestricted by any constitutional principle”. [80] Moreover,

The constitutional status of municipalities, and whether they ought to enjoy greater independence from the provinces, was a topic of debate during patriation … In the end, municipalities were not constitutionalized, either in amendments to the Constitution Act, 1867 or by reference in the democratic rights enshrined in the Charter. … Were the unwritten democratic principle applied to require all elections to conform to the requirements of s. 3 (including municipal elections, and not just elections to the House of Commons or provincial legislatures), the text of s. 3 would be rendered substantially irrelevant and redundant. [81]

The dissent, again, sees matters differently. It points out that unwritten principles have been recognized as binding both in Canada and in other “Parliamentary” [166] constitutional systems. (The dissent thus does not mention the United States.) It insists that

unwritten principles are our Constitution’s most basic normative commitments from which specific textual provisions derive. … Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles. In other words, the text is not exhaustive of our Constitution. [168]

The dissent rejects the majority’s insistence on the primacy of the text. Unwritten principles are just as important. It is they that “assist in developing an evolutionary understanding of the rights and freedoms guaranteed in our Constitution” ― that is, they “make[]” the constitutional living “tree grow”. [179] As for the majority’s argument based on section 52 of the Constitution Act, 1982, it “is a highly technical exegetical exercise designed to overturn our binding authority establishing that unwritten constitutional principles are a full constitutional partner with the text”. [183]

For the dissent, in “rare” cases “unwritten principles may be used to invalidate legislation” that “elides the reach of any express constitutional provision but is fundamentally at odds with our Constitution’s ‘internal architecture’ or ‘basic constitutional structure'”. [170] As the dissent sees things, this is what happened in the Provincial Judges Reference, as well as in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. That said, the dissent does not say anything about the application of the democratic principle in this case, which it has already resolved on the Charter argument.

By my lights, this is the judicial equivalent of a Leafs-Bruins game, which both ought to lose, but one has to win, just because. Now, I think that the majority’s conclusion is correct as a matter of both precedent and principle. As the Supreme Court held in British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, it would be wrong to apply an unwritten principle so as to expand the scope of a Charter right so as to directly contradict clear text. Imperial Tobacco concerned the protection against retroactive legislation, which the Charter reserved to criminal law. Here we are dealing with the right to vote, and its love child “effective representation”, which the Charter reserves to federal and provincial, not municipal, elections. So far, so good. But only so far.

The rest of the majority’s analysis ― which, of course, is quite unnecessary, because the passage from paragraph 81 quoted above is enough to dispose of this issue ― rests on wholly untenable distinctions. The majority says that federalism is unlike the other constitutional principles ― indeed, that it is not a constitutional principle but part of the constitution’s “structure” ― because “federalism is” “found in the express terms of the Constitution”, notably the division of powers between the Dominion and the provinces. But the same is true of democracy and of the rule of law. We can point to some provisions, such as sections 1 and 3-5 of the Charter for democracy (as well, of course, as all the provisions having to do with the House of Commons in the Constitution Act, 1867), and sections 9-11 of the Charter and 133 of the Constitution Act, 1867 (again, this is not an exhaustive list) to say that these principles too are found in the express terms of the Constitution, and hence their other “specific aspects .. not found” in those express terms can nonetheless be judicially enforced.

Similarly, the majority’s distinction between alleged “gap-filling” in the Provincial Judges Reference “where provincial courts dealing with non‑criminal matters were concerned” and invalidating laws on the basis of unwritten principles is humbug. So far as these courts were concerned, the only reason the laws reducing their judges’ salaries were invalid was unwritten principle.

Last but not least, as Mark has noted, the majority doesn’t even begin to address Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, with its clear statement that

Where a court reviews the merits of an administrative decision … the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. [23; emphasis added]

In other words, Vavilov says that the Rule of Law principle does invalidate legislation to the extent that (though only to the extent that) it would require an incompatible standard of review.

The majority also says that “The unwritten constitutional principle of the honour of the Crown is sui generis” because, it seems, it “arises from the assertion of Crown sovereignty over pre‑existing Aboriginal societies … and from the unique relationship between the Crown and Indigenous peoples”. [62] But the other principles, such as federalism (a sine qua non for Canada’s existence) and democracy and the Rule of Law (1688 and all that), can also boast “unique” historical pedigrees.

The majority’s other arguments fare just as badly as its attempts at splitting hairs with a blunt axe. Applying principles to invalidate laws does not trespass into constitutional amendment if principles were already part of the constitution as enacted, in 1867 and in 1982. While some applications may inappropriately compromise section 33 of the Charter ― which is arguably one reason why Imperial Tobacco approach to cases to which the Charter already speaks is correct ― others will not. Principles are not reducible to expanded forms of Charter rights. Federalism is of course the obvious case in point. As for section 1 of the Charter, foreign precedents, such as the Australian jurisprudence on the implied freedom of political communication, suggest that something like a proportionality analysis can be combined with unwritten principles. Again, though, principles are not just a beefed-up Charter. Perhaps the best argument the majority advances is the one based on the word “provisions” in section 52(1) of the Constitution Act, 1982, but ― without endorsing the dissent’s rant about “technical exegetical exercises” ― I think that it is undermined by section 52(2)’s suggestion that “the Constitution of Canada” is not limited to textual sources, to say nothing of the Supreme Court’s jurisprudence to this effect.

A word, finally, on the dissent. It advocates not only for living constitutionalism, which as readers will know I think is a misbegotten interpretive approach, but also, more precisely, for what I have described as “constitutionalism from the cave“. This is the view that the constitution’s text is just a pale shadow of the true constitution, which judges alone can, over time, discover and impose. As much as I think the majority’s attempt to swat constitutional principles away is unsound as a matter of both doctrine and, sorry, principle, this is not a tenable alternative.

Here we are, then, at the last chapter of this unfortunate saga. It began with institutional vandalism by the Ontario legislature, and concludes with a Supreme Court decision that, despite narrowly reaching the right outcome, may yet do considerable damage of its own. The majority’s statements on freedom of expression are worrying, and its discussion of constitutional principles ― admittedly, a difficult subject (I have had more to say on it here) ― is almost entirely wrong-headed. The dissent, meanwhile, is largely unmoored from the law throughout. The judicial end is not better than the legislative beginning.

“Administrative Sabotage” and the Ontario Human Rights Tribunal

Recently, Professor David Noll (Rutgers Law) posted a fascinating article called “Administrative Sabotage” on SSRN, forthcoming in the Michigan Law Review. You can view the article here, and Professor Noll wrote a fascinating thread outlining its main arguments. The abstract:

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks succeed in sabotaging statutory programs?

This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than other more-studied forms of maladministration. In contrast to an agency that shirks its statutory duties or drifts away from Congress’s policy goals, one engaged in sabotage aims deliberately to kill or nullify a program it administers. Agencies sabotage because presidents ask them to. Facing pressure to dismantle statutory programs in an environment where securing legislation from Congress is difficult and politically costly, presidents pursue retrenchment through the administrative state.

[…]

Professor Noll’s paper is a significant contribution, relevant outside of the United States. In fact, as I have written about previously (see Mark Mancini, “The Political Problem with the Administrative State” (2020) 2 Journal of Commonwealth Law 55) the Ford government’s treatment of the Ontario Human Rights Tribunal (OHRT) is a classic example of a government legitimately delaying appointments to stymie the practice of the administrative justice system. Professor Noll has now provided the theoretical and linguistic tools for us to understand this phenomenon in administrative government, even for us in Canada.

***

Noll’s focus is “the sabotage of statutory programs by agencies that administer them” [7]. In this, Noll’s project fits in a rich tradition of public administration scholarship that has studied the various ways in which bureaucrats can undermine policy objectives set by their enabling statutes, through mal -administration, “shirking” or drifting, or sabotage. Sabotage can be defined as bureaucratic action that “deliberately undermines policy objectives of the superiors” (see John Brehm & Scott Gates, Working, Shirking and Sabotage: Bureaucratic Response to a Democratic Republic, at 21). Sabotage “involves a specific stance on the part of the agency toward the program it administers” and the stance “seeks to eliminate a program [the agency] administers” [8]. Sabotage is thus different from other bureaucratic phenomena, in that it involves a deliberate and intentional sacking from within of the agency’s ability to fulfill its delegated mandate [7]. A classic basic example of sabotage that Noll points out—and that I address in my paper on the OHRT—is “non-appointments”—failing to appoint agency heads, or other important positions, as the case may have it [30].

Administrative sabotage, in either Canada or the United States, is a destructive practice that undermines the legislative choice to delegate to agencies. As Noll says: “Rather than use delegated authority to enforce and elaborate statutory policy, an agency uses that authority to undermine the program it administers. In structural terms, this use of delegated authority is at odds with the principle of legislative supremacy” [10]. Once a legislature has delegated power to an agency, it is a condition of the delegation that the power be exercised according to the enabling statute. Agencies and politicians that fail to live up to these delegated terms—and worse, agencies and politicians that actively undermine them—act inconsistently with the power they have been given. Moreover, they act undemocratically—they undermine the legislative plan & bargain containing the conditions governing the administrative action.

Complicating this conventional picture is the emergence of theories of executive control over the administrative state and the desirability of political control as a constitutional matter. The unitary executive theory in the US, for example, generally holds that all executive power is placed in a President, and it therefore follows that the “executive”—including executive administrative agencies—must be controlled by the President (see, for the nuances, Seila Law). In Canada, we have a parliamentary system, but the gist is similar in at least some respects. Legislatures provide powers to executives and administrative decision-makers to make decisions. Legislatures also structure the relationship between the executive and the administrative state, creating and controlling powers of appointment, for example (see the classic example in Saskatchewan Federation of Labour, 2013 SKCA 61). A strong executive power advocate may claim that that the executive can lawfully engage in sabotage by appointing people who wish to undermine the agency itself. It can do so because the executive is the representative of the people, and thus is the politically legitimate actor, in contradistinction to unaccountable administrators.

In the US, the Trump administration furnished many examples of administrative sabotage, and it mooted the defense of the practice. A prominent example included Mick Mulvaney and the Consumer Financial Protection Bureau (the CFPB). The CFPB is in charge of imposing a variety of consumer financial laws. Mick Mulvaney, appointed the head of the CFPB, had previously indicated that he supported abolishing the CFPB [3]. Of course, by itself this is neither here nor there. But once Mulvaney became the head of the agency, on the conventional picture, he had no discretion to undermine the legislative bargain simply because he disagreed with it in principled. Yet he did so: he “declined to request money to fund the Bureau’s operations; installed “Policy Associate Directors” to shadow bureau chiefs protected by the civil service laws; rescinded, stayed, or delayed major rules on payday lending, overdraft fees, and student loan servicing…” [3]. Mulvaney justified these practices by appealing to the adage of “elections have consequences” [11].

Noll’s paper also explores the various reforms that might be adopted to stop sabotage. Noll shows how courts and Congress have been largely unable to control sabotage. Presidents and courts that have a reflexively anti-administrativist agenda may, in fact, be incentivized to exacerbate and permit administrative sabotage. But as a practical matter, there is another issue: many instances of “administrative sabotage” are simply not amenable to judicial review: “it is simple to invent technocratic explanations for agency actions designed to undermine a statutory program…”, and as such, there are evidential hurdles [13-14]. Noll suggests that specific statutory reforms that might shed light on the question, the goal of these reforms being that the statutory schemes are designed to prevent sabotage—“policymakers should not assume that programs will be administered in good-faith” [50]. Noll suggests statutory appointment qualifications consistent with the Constitution; and, notably for our purposes, endorses the proposition that broad statutory delegations (the norm since the New Deal) encourage sabotage [54].

***

There is much in Noll’s piece to recommend it to Canadians, but I want to focus on just two points: (1) Noll’s conclusions about delegated power; and (2) the case of the OHRT, arguably an example of Noll’s sabotage.

As noted above, and since the New Deal, scholars have argued—and sometimes assumed—that broad delegations of statutory power are desirable. So the old case goes, legislatures simply do not have the time and expertise to consider all the factors when legislating; and particularly in complex fields of regulation, it makes sense to delegate power to so-called expert agencies. As a descriptive matter, this is likely true, and for that reason, it makes sense for legislatures to “trade-off” political control for expertise (as Epstein & O’Halloran once put it). But this does not speak to the degree to which this should happen. As I wrote in my article on the matter [94], and as Noll essentially argues:

The real problem with executive discretion, then, is not that it abridges independence; but that it has a potential of being misused to undermine the limitations on statutory power that arise in the context of a delegating statute. The goal should be to cabin executive discretion tightly so that it, necessarily, cannot undermine delegated legislative power. Broad delegations, on this understanding, should be avoided.

The point is that the solution to sabotage starts not with depending on the good-faith of administrators (as a previous generation of pro-administrativist scholars did), or depending on the political control exercised by an executive actor (who may have incentives to permit sabotage). Instead, it starts with the legislature slightly increasing the cost of legislating by keeping the possibility of sabotage in mind when legislating, and using its powers to put meaningful limits on delegated powers.

This raises an important point about independence. To simplify, in Canada, the independence of administrative decision-making is parasitic on the degree to which a statute permits that independence (famously, see Ocean Port). Statutes can either liberate or constrict executive control over the administrative state. One way for executives to control so-called “independent” tribunals is for the legislature to vest an appointment power in the executive. Assuming this power is exercised according to the terms of the statute, there is no constitutional objection; while independence of administrative decision-making may be a good in some cases, it is not self-evidently legally required (though see the reading of the caselaw suggested by Ron Ellis in his text, Unjust By Design). And political control by elected actors is desirable in a system of responsible government.

But again, this is only true to an extent. Sabotage is quite different from an executive exercising lawfully delegated powers of control; it is a situation where an executive or agency head may intentionally choose to exercise power it does not have to undermine the power it has been granted. The sin of omission here is not that the executive is simply choosing not to exercise delegated power; it is that the executive is actively using its position to undermine the entire statutory bargain setting up the agency.

And this is exactly what happened in the case of the Ontario Human Rights Tribunal. As late as January 2021, observers argued that “…Ontario’s human rights enforcement system has become dysfunctional” in part because “The final resolution of a claim can now take years for individuals who have experienced discrimination.” The cause of this delay: few of the human rights adjudicators whose tenure is at-pleasure have been replaced. I previously studied this phenomenon as an example of a situation where an executive was failing to implement delegated statutory power. Indeed, the relevant legislation delegates power to the Cabinet, who “shall” make appointments to the tribunal [my paper, at 82]. By failing to do so, the government created grist for the mill of its critics, who asserted—not unreasonably—that the government was intentionally starving the tribunal and delaying the resolution of claims.

The failure here is traceable, ultimately, to the legislature—though the executive undermining of delegated power is the evil to which the legislature should have turned its mind. The legislature enacted the tribunal, and it can rescind its powers tomorrow. But executives do not have that authority, which is why sabotage is undesirable. So, in the OHRT case, by failing to impose timelimits for appointments and a minimum number of members, the legislation grants easily-abused delegated appointment power to the executive. So, as Noll suggests, it was the breadth of delegated power that created the conditions for sabotage.

Canadians should pay close attention to Noll’s article. While there are obvious differences between the Canadian and American administrative states, the phenomenon of sabotage is likely a common evil.

Unstuck

Ontario’s Superior Court strikes down the anti-carbon tax-sticker law, but still doesn’t get freedom of expression

Last year, I wrote about Ontario’s Federal Carbon Tax Transparency Act, 2019 (the “Act”) ― both about the disgraceful way in which it became law and about its unconstitutional speech compulsion, which I argued should not even be considered as a potentially justified limitation of the freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms, because it was tantamount to the imposition of an official ideology. The constitutionality of the Act was in fact challenged by the Canadian Civil Liberties Association and, last week, in CCLA v Ontario (Attorney General), 2020 ONSC 4838, the Superior Court of Ontario struck it down.

At first glance, this is a welcome development for the freedom from compelled speech. Not only is the compulsion invalidated, but Justice Morgan’s approach might seem to bear some resemblance to the one I had proposed: in effect, he denies the government the chance to justify the Act under section 1. But look at Justice Morgan’s reasons more closely, and they turn out to be very narrow. Indeed, they could be used to support significant speech compulsions in the future.

This is not altogether surprising. Justice Morgan was constrained by the Court of Appeal’s reasoning in McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1, upholding the constitutionality of the requirement that applicants for the Canadian citizenship swear an oath to bear “true allegiance” to the “Queen of Canada”, which I have described as a “parade of horribles“. And indeed it was none other than Justice Morgan who had written the first instance decision in that case. While it wasn’t quite as bad as that of the Court of Appeal, it did not evince much understanding of the harms of compelled speech either.

The Act required all gas stations to display a prescribed sticker alerting customers to the amount of the “federal carbon tax” levied on the gas they were purchasing. The evidence adduced by the CCLA showed that it was meant as a not-so-subtle intervention in the 2019 federal election campaign, in which the Ontario government supported the anti-carbon-tax position of the federal Conservatives and opposed the pro-carbon-tax Liberals. This partisan dynamic is a key factor in Justice Morgan’s reasoning.

Before getting to the substantive issues, Justice Morgan must address the Attorney General’s objection to the CCLA’s standing to challenge the Act. As it turns out, the CCLA has tried to enlist actual gas stations as plaintiffs or co-plaintiffs, but none would come forward. Justice Morgan explains that “retailers, with a view to market forces rather than to politics and constitutional law, have been loath to participate in this case” due to its political valence. [40] But the record to which Justice Morgan alludes suggests that this is not quite accurate: politics, in the shape of a fear of regulatory retaliation, seems to have been a motivating factor too. Be that as it may, Justice Morgan grants the CCLA public interest standing to pursue the case.

He must next decide whether the sticker requirement limits the freedom of expression protected by section 2(b) of the Charter. To this end, he applies the test set out in the Court of Appeal’s McAteer decision:

The first question is whether the activity in which the plaintiff is being forced to engage is expression. The second question is whether the purpose of the law is aimed at controlling expression. If it is, a finding of a violation of s. 2(b) is automatic. If the purpose of the law is not to control expression, then in order to establish an infringement of a person’s Charter right, the claimant must show that the law has an adverse effect on expression. In addition, the claimant must demonstrate that the meaning he or she wishes to convey relates to the purposes underlying the guarantee of free expression, such that the law warrants constitutional disapprobation. (McAteer, [69])

Justice Morgan finds that the sticker is indeed a form of expression. Yet in his view its purpose is not to control expression. In particular, he takes the view that “it would be difficult for the government to control expression by compelling certain messages … but not restricting others”. [50] Objectors remain free “to disavow” [52] the message they are compelled to voice, for example by posting disclaimers; hence their expression is not “controlled”. However, it is adversely impacted by the Act.

The key point for Justice Morgan is that, unlike the citizenship oath in McAteer, the sticker does not promote democracy and the Rule of Law. Indeed, it does not even serve to truthfully inform. Justice Morgan attaches some importance to the sticker’s use of the “carbon tax” nomenclature, which in his view is at odds with the Court of Appeal for Ontario’s opinion, in Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544, 146 OR (3d) 65, that the policy at issue is not a “tax” within the meaning of the Constitution Act, 1867. Moreover, the sticker says nothing of the ways the money levied as carbon tax is distributed, in part to taxpayers, in part to provinces. As a result, it is a form of “spin”. [60] By requiring it, “the government is not so much explaining a policy [as] making a partisan argument”. [63] And “[b]y using law for partisan ends, the Ontario legislature has enacted a measure that runs counter to, rather in furtherance of, the purposes underlying freedom of expression”. [65]

This limitation of the freedom of expression is not justified under section 1 of the Charter. Indeed, unusually, Justice Morgan finds that the Act lacks a pressing and substantial purpose ― the first, and normally very low, hurdle a statute must meet to be upheld under section 1: “While truly informing the public about the components that make up the cost of gasoline would be a pressing and substantial purpose, promoting the Ontario governing party over the federal governing party is not.” [69] The Act is purely partisan rather than a real “policy choice”. [69] Justice Morgan goes through the other steps of the justified limitation analysis by way of an obiter, but it all comes down to his concern with partisanship. The Act is invalid.

Right outcome, but the reasoning is another matter entirely. Justice Morgan’s approach is illogical and conflicts with the Supreme Court’s precedents, notably inthat it collapses the two stages of the Charter analysis that the Supreme Court has always sought to keep distinct: first, the question of whether a right is being limited; second, that of whether the limitation is justified.

First, to say, as Justice Morgan does, that one’s expression is not controlled because one can disavow something one has been coerced to say is perverse. The fact that one is forced into disavowals shows sufficiently that what one is saying is not what one chooses to say.

The political context that Justice Morgan’s reasons depict highlights this problem. As he explains, it appears that gas station owners would rather keep quiet and sit out the political conflict about the carbon tax. This is their right ― the obverse of the freedom of speech is the freedom to stay silent. If they are forced into disavowals and denials, the gas stations will inevitably be taking sides in the political conflict they are trying to avoid ― if anything, this will be much more obvious than if they merely comply with the Act and display the required stickers. Of course, such a response is not what the Ontario legislature envisioned, but it would be caused entirely by the Act, and so it is absurd to deny that the Act amounts to a form of control of the gas stations’ expression.

Fortunately, the Supreme Court’s precedents mandate no such twisted inquiry. Ostensibly the most important freedom of expression case (I have argued here that it is only “leading from behind”), and the source of the “control” language used in McAteer and by Justice Morgan is Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927. The distinction between legislation that has control of expression as purpose and that which doesn’t is described as follows in the joint opinion of Chief Justice Dickson and Justices Lamer and Wilson:

If the government’s purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government’s purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression. (974)

Applied to speech compulsions rather than censorship, this means that any legislation that “singles out particular meanings” that must be communicated, or forces an audience to listen to a communication, necessarily has control of expression as its purpose. Such legislation limits (or, as the Supreme Court often says, prima facie infringes) the freedom of expression. There is no need to consider effects, let alone to ask the purely subjective question of whether they are worthy of “constitutional disapprobation”.

This inquiry into effects and “disapprobation” in effect forces claimants to show that the law which compels their speech is not justified, and more specifically that it pursues an end worthy of judicial condemnation. The success of such an argument in this case should not blind us to the fact that this is a high hurdle. As noted above, this approach collapses the usual section 1 test of whether a limitation on a right is justified into the threshold inquiry of whether a right is limited in the first place, and it means that the claimant rather than the government bears the burden of proof. It follows that Justice Morgan’s streamlined approach to the section 1 analysis is rather less supportive of freedom of expression than one might think. The important work is already done by the time he gets there, as he has, in effect, found that the Act is unjustifiable. Had he not so found, he would have upheld it without ever getting to section 1, just as the Court of Appeal upheld the citizenship oath in McAteer.

Last but not least, Justice Morgan’s emphasis on partisanship as the fundamental problem with the Act is also misguided. For one thing, as tempting as it might be to say that partisanship can never be a sufficient justification for restricting Charter rights, the Supreme Court has in the past upheld laws that protect political incumbents from criticism, notably in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. I think the Supreme Court was wrong to disregard the partisan valence of that legislation, but this shows that it will often be difficult to disentangle partisanship from other, specious considerations. Indeed, Justice Morgan himself suggests that a statute that is “a hybrid of policy and partisanship” would deserve to be treated as fully legitimate.

More importantly, Justice Morgan’s understanding of partisanship is very narrow. It does not encompass the promotion of a state ideology that rises, if perhaps only slightly, above the “horse race” version of partisan politics. He has nothing but sympathy for governmental “protection and promotion of Canada’s national and legal culture” [58] by means of forcing those who did not agree with this culture to voice loyalty to it. Needless to say, there is a political dimension to a “national and legal culture”, especially when this culture is coercively imposed by the state, even though Justice Morgan is oblivious to this. To him the distinctions between partisanship and high principle appear obvious. To the rest of us living in 2020, they are anything but.

Consider an obvious example: the late and unlamented “statement of principles” requirement that the Law Society of Ontario tried to impose on its members. Certainly its supporters argued in terms promoting a certain high-minded vision of social and legal culture (indeed they spoke of a “culture shift”). But then again, as we now know, there is a bitter partisan division over the issue within the ranks of the Law Society’s membership. So how would Justice Morgan approach the question of the constitutionality of the requirement? And would his approach be different now than it would have been before the partisan cleavage was revealed by the success of the StopSOP campaign in the 2019 Bencher election? Whatever we might think of the “statement of principles” or its opponents (of whom I was one), or of compelled speech more broadly, I hope we can agree that this is not a reasonable way of addressing such an important issue.

Of course it is a good thing that the Act is no more, and that the Ontario government, if it wants to continue its anti-carbon-tax propaganda campaign, will have to do it by itself, rather than by means of conscripting third parties. I have argued here that such ideological conscription is wrong when it serves to supposedly advance some rights-protecting agenda. It is no less wrong, obviously, when its aim has to do with fiscal and environmental policy. Governments have plenty of resources at their command. If they want to propagandize, they have no need to get unwilling individuals to do it for them.

Yet, the state of the law on compelled speech, and indeed on freedom of expression more generally, in Ontario at least, is cause for concern. It’s not just that few restrictions on freedom of expression are ever struck down. More importantly, the courts fail to understand what free speech means, and why it matters. Justice Morgan’s reasons for striking down the Act illustrate these failures just as much as his and the Court of Appeal’s earlier reasons for upholding the citizenship oath did.

Do Not Pass Section 1: Go Directly to Invalidity

Some infringements on rights are never acceptable in a free and democratic society, including requirements to state facts one doesn’t believe in

In my last post, I argued that Ontario’s recently-enacted and not-yet-in-force Federal Carbon Tax Transparency Act, 2019, which requires gas stations to display stickers purporting to inform their clients of the cost of the federal carbon tax, is likely unconstitutional, as well as morally wrong. The requirement obviously compels the owners of gas stations to engage in speech from which they would otherwise have abstained, and so limits their right to freedom of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms. In my last post, I followed the orthodox approach to ascertaining whether this limitation was justified and therefore constitutional, which consists in applying a proportionality analysis along the lines first set out in R v Oakes, [1986] 1 SCR 103. But, as I indicated there, I actually think that this approach is not right for this case. Here, I explain why.

Pursuant to section 1 of the Charter, the rights the Charter protects can be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Proportionality analysis is not an end in itself or an explicit requirement of the constitutional text. It is only a means to the end of ascertaining whether a given limitation on rights is “demonstrably justified”. (Indeed, one may well argue that the proportionality analysis is a bad means to that end; one would not be wrong; but it is much easier to poke holes in proportionality analysis than to come up with a convincing all-purpose alternative.) Proportionality analysis is inherently case-by-case. It focuses a court’s attention on the reasons for and the effects of particular statutory provisions or administrative decisions, applied to the particular circumstances detailed by the persons whose rights are allegedly infringed.

But it should be possible to say that certain limitations of rights are such as to be categorically impermissible in a free and democratic society, regardless of particular circumstances. With limitations of this sort, proportionality analysis is unnecessary; indeed, it only serves to obfuscate their inherent unacceptability. I can see no bar in the text of section 1 of the Charter to taking this position. In his article on the history of section 1, Adam Dodek notes that a number of groups that took part in the proceedings of the Special Joint Committee of the Senate and the House of Commons on the Constitution pushed for some rights (equality rights were a popular candidate, but not the only one) to be excluded from the scope of the application of section 1 altogether. Obviously, this was not done, but I don’t think that this rejection entails that of a more fine-grained approach. In other words, while the history may suggest that no provision of the Charter is absolutely immune from limitation, at least as a textual matter, it does not follow that any and all limitations conceivable are, potentially, justifiable in a free and democratic society.

Indeed, I think that it does not follow that a categorical bar on justifying limitations of certain rights, introduced in the process of constitutional construction, is foreclosed by section 1, even in light of the history described by Dean Dodek. The idea that section 1 had to apply to every right guaranteed by the Charter was put to the Supreme Court in Attorney General) v Quebec Association of Protestant School Boards, [1984] 2 SCR 66, but the Court accepted it “for the sake of discussion only and without deciding the point”. In any case, this is an issue for another day.

And there are precedents, in early Charter cases, for applying the approach that I am considering. Protestant School Boards is one. There, the Supreme Court observed that limits on rights, within the meaning of section 1 of the Charter,

cannot be exceptions to the rights and freedoms guaranteed by the Charter nor amount to amendments of the Charter. An Act of Parliament or of a legislature which, for example, purported to impose the beliefs of a State religion would be in direct conflict with s. 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s. 1. (88)

But the best known precedent is R v Big M Drug Mart Ltd, [1985] 1 SCR 295. There, Justice Dickson (as he then was), wrote that

it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable―a form of proportionality test. (352)

Justice Dickson went on to reject the government’s attempt to justify the Lord’s Day Act, which imposed the Christian holy day as a mandatory day of rest for most Canadian workers. He found that

[t]he characterization of the purpose of the Act as one which compels religious observance renders it unnecessary to decide the question of whether s. 1 could validate such legislation whose purpose was otherwise or whether the evidence would be sufficient to discharge the onus upon the appellant to demonstrate the justification advanced. (353)

However, the proportionality analysis foreshadowed in Big M and sketched out by now-Chief Justice Dickson in Oakes quickly took over Charter cases, and the possibility that some limitations of Charter rights could never be justified, regardless of the circumstances and the evidence the government brings in their support has been a road not taken by Canadian constitutional law in the last 35 years.

I think that this unfortunate. The Oakes-based proportionality analysis, at least as it has developed, focuses on one part of section 1: the “demonstrably justified” requirement. But it has little to say about other parts of section 1: the “democratic society” qualifier, and the notion of “limits” on, as opposed to exceptions to or denials of rights. Perhaps it didn’t have to be this way. In Oakes itself, Chief Justice Dickson wrote referred to this phrase as “the final standard of justification for limits on rights and freedoms” (136) and offered an explanation of what they referred to:

the values and principles essential to a free and democratic society … I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. (136)

One might quarrel with this list, of course ― I am not a fan “social justice” as an inherent component of democracy, for instance ― or, at least, expect it to be refined as cases develop. More fundamentally, one might quarrel with the way Chief Justice Dickson proffers this catalogue of values, as the product of his own meditation on freedom and democracy. An originalist, for example, might want to ask what the words “free and democratic society” meant to the public at the time of the Charter‘s enactment, and not simply how a judge ― even a thoughtful and distinguished judge writing mere years after the Charter came into force ― understood them. But, however that may be, the idea that limitations of rights must be justifiable not just in the abstract, but in a particular kind of society, namely a free and democratic one, was there in Oakes ― and has (like certain other aspects of that decision) fallen by the wayside since.

To repeat, I would like to recover this idea and, more specifically, to argue that there are some limits on rights that are never acceptable in free and democratic societies. Protestant School Boards offers and Big M applies one example: it is not acceptable, in free and democratic society, to impose a state religion. One might imagine a specious proportionality-based defence of the Lord’s Day Act: it serves the objective of social cohesion and public affirmation of a national religion, in a way that could not be achieved by less restrictive means, and after all it is but a small imposition ― dissentients are not forcibly dragged to divine service ― in comparison with purported benefits. A sufficiently deferential court might even, conceivably, swallow this. But we don’t need ask whether it would. The alleged benefits of the Lord’s Day Act are not something a government is entitled to pursue in a free and democratic society.

I tentatively think that a similar argument can be made with respect to many speech compulsions. In particular, I think that a free and democratic society is necessarily one in which there is no official ideology prescribed by the state that citizens are required to parrot. I suspect that the idea would have been familiar at the time of the Charter‘s framing, during the Cold War. Thus the rejection of official ideologies may well be part of the original meaning of the phrase “free and democratic society”, although I don’t know enough to be confident. But even if it cannot be read into section 1 as a matter of interpretation, I think that it has to be as a matter of construction ― the process of elaboration of legal doctrine implementing constitutional text. Just like a free and democratic society has no state religion, as the Supreme Court confirmed in Big M, it must have no set of secular beliefs mandatory for citizens. Perhaps having an official ideology would be convenient or useful; perhaps it would foster equality, or social cohesion, or prosperity. This doesn’t matter. Free and democratic societies don’t do official ideology ― just like they don’t do official history, official economic theory or, I would add, official science. (Official, of course, in the sense of mandatory for citizens; the state itself can, and indeed must to some extent, commit to specific views on many of these issues.)

Now, some cases of compelled speech cannot rightly be described as or assimilated to attempts to impose a state ideology. This is, in particular, the case of mandatory disclosure of information that is in the possession of the person subject to the compulsion ― whether in the shape of nutritional information that is required to be printed on food packing or that of data about trust accounts or self-study hours that lawyers are made to provide on their annual reports. Mandatory requirements to use a particular language for certain communications are in this category too. For these, and perhaps other, cases of compelled speech, the proportionality framework, with its case-by-case scrutiny of the tailoring of means to ends and weighing of costs and benefits is appropriate (assuming, that is, that it is appropriate for anything).

At the other extreme are cases like the Law Society of Ontario’s requirement that lawyers “promote equality, diversity, or inclusion”. This is a clear case where the government ― through the entity to which it has delegate coercive regulatory powers over the legal profession ― attempts to force people to embrace a particular set of values or beliefs and express their having done so. One can argue ― along with Dwight Newman ― that this is also an infringement of the freedom of thought (protected by the same provision of the Charter as freedom of expression, section 2(b)). One can also argue, as I have done here, that this is an infringement of the freedom of conscience. But of course this is also (and neither Professor Newman nor I deny this) a limitation of the freedom of expression ― and, I think, a limitation of a sort that cannot be justified in a free and democratic society, no matter how well-intentioned (which it is) or effective (which it isn’t).

The ant-carbon-tax stickers are something of an intermediate case. They ostensibly communicate information, and at least make no pretense about this information coming from the person coerced into transmitting it rather than the government. To that extent, they are less offensive, and less like an official ideology, than the Law Society of Ontario’s demands. However, it is arguable that stickers present incomplete information, and do so tendentiously. Not everyone, to say the least, would regard the message conveyed by the stickers as something that they could, in good faith, transmit. This is more than just a matter of preference. Perhaps the sellers of junk food would rather not tell people the number of calories their product contains; but their integrity is not threatened when they are made to do so. By contrast, when a person is made to communicate something that he or she does not, in good faith, believe, the stakes are higher, and the analogy to official ideology much closer. At the risk of being a bit dramatic, making Winston Smith love Big Brother was only the end point. The start was making him say that 2+2=5.

As Justice Beetz insisted in his dissenting opinion in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038, to accept that it is permissible to order a person to tell the truth “beg[s] the essential question: what is the truth?” (1060) Some authority may think that it has established the facts, but one “cannot be forced to acknowledge and state them as the truth apart from his belief in their veracity. If he states these facts … as ordered, but does not believe them to be true, he does not tell the truth, he tells a lie.” (1061) Justice Beetz went on to add that

to order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them, constitutes a … serious violation of the freedoms of opinion and expression … [S]uch a violation is totalitarian in nature and can never be justified under s. 1 of the Charter. It does not differ, essentially, from the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus. (1061)

Of course, Justice Beetz’s opinion was a dissenting one. All I can say is that I see nothing in Chief Justice Dickson’s majority opinion that addresses his colleague’s cogent arguments. Given the extent to which the Supreme Court has been willing to revisit its prior cases ― and to do so with much less justification than there would be to revisit Slaight on this point ― I feel no particular compunction in urging that Justice Beetz’s opinion should be followed, and that compelled statements of facts that the person required to make them believes, in good faith, to false or simply misleading should be treated like compelled statements of opinion and compelled professions of value. They are categorically unjustifiable in a free and democratic society.

The Charter‘s reference to “a free and democratic society” is not a mere description. As the Supreme Court held early on, it is the “final standard” against which purported limitations on the rights the Charter secures must be measured. It is true that rights must sometimes be limited, even in a free and democratic society. But the Charter exists because of a recognition by its framers ― and by their constituents ― that legislative majorities are apt to disregard rights, and to seek to limit them for the sake of convenience, or out of ignorance or even spite or hatred. Some limitations may appear defensible in principle but, on closer examination, are not supported by evidence, go too far, or do more harm than good. But others are incompatible with free and democratic societies as a matter of principle. It is unnecessary to scrutinize their tailoring to their purpose, or weigh up their effects. The Charter bars them categorically.

The imposition of official beliefs, or the requirement to express beliefs, is the sort of thing that simply must not happen in a free and democratic society; it is incompatible with freedom and democracy. This includes religious beliefs, as the Supreme Court has held. But political beliefs, or even beliefs about truth, should not be treated any differently. Canadian governments have no right to impose them, and the courts should peremptorily reject them.

Sticking It to the Feds

Why Ontario’s anti-carbon-tax stickers are likely unconstitutional, and certainly immoral

It is time, finally, for me to get back to the carbon-tax stickers. Last month, I was distracted from writing this post by my horror at the abusive, indecent way Ontario’s Federal Carbon Tax Transparency Act, 2019, was set to become law. It has now been enacted (though not yet come into force) and, though my disgust at the process of its enactment is unabated, I turn to its substance. The Act is, I believe, unconstitutional. It is also, quite apart from constitutional issues, morally objectionable in its own right, and doubly so coming from a government that ― cynically ― positioned itself as a champion of free speech.

The Act is simple enough. Its only substantive provision requires every “person who is licensed … to operate a retail outlet at which gasoline is sold at a gasoline pump and put into the fuel tanks of motor vehicles” to

obtain from the Minister [of Energy, Northern Development and Mines] copies of the prescribed notice with respect to the price of gasoline sold in Ontario; and … ensure the notice … is affixed to each gasoline pump at the retail outlet in such manner as may be prescribed.

There are also provisions for inspections and fines. The “prescribed notice” is, of course, the notorious sticker.

This is a requirement that all those (individuals or corporations) engaged in a particular trade communicate a message prescribed by the government. In simpler terms, an instance of compelled speech. Under a sane freedom of expression jurisprudence, this must, of course, be regarded as a limitation on the freedom of expression. Whether Ontario currently enjoys the blessings of a sane freedom of expression jurisprudence is open to some doubt, given the holding of the province’s Court of Appeal in McAteer v Canada (Attorney General), 2014 ONCA 578 that the requirement that applicants for Canadian citizenship swear a prescribed oath is not a limitation of the freedom of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms. However, I think it is best to assume that, on this point at least, McAteer was an aberrant decision that can be disregarded. The carbon tax sticker requirement ought to be held to be a limitation on the section 2(b) right.

There are two paths that one can take from here. The orthodox one, which I shall take in this post, consists in asking whether this limitation is one that can be demonstrably justified in a free and democratic society, and so authorized by section 1 of the Charter. To be justified in a free and democratic society, a limitation on a right protected by the Charter must meet the following criteria, as recently summarized by the Court of Appeal in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393:

the objective of the impugned measure must be of sufficient importance to warrant overriding a constitutionally protected right or freedom;

… the means chosen must be reasonable and demonstrably justified – this is a “form of proportionality test” which will vary in the circumstances, but requires a balancing of the interests of society with the interests of individuals and groups and has three components:

(i) the measure must be rationally connected to the objective – i.e., carefully designed to achieve the objective and not arbitrary, unfair or based on irrational considerations;

(ii) the means chosen should impair the Charter right or freedom as little as possible; and

(iii) there must be proportionality between the salutary and deleterious effects of the measure. [98]

In my next post, I will suggest that this approach is not appropriate for cases that involve certain types of compelled speech, including this one. More specifically, I will argue that the proportionality analysis can be bypassed in the case of many speech compulsions, which are never appropriate in a free and democratic society. That said, an attempt to follow the ordinary proportionality framework here does the Ontario government few favours.

It is difficult to see what the important objective that warrants the imposition of the stickers is. If one is in charitable mood, one might say that the legislature is really trying to provide transparency about the effects of a public policy that affects Ontario’s consumers. (Less charitably, and perhaps more plausibly, one might say that the the objective here is to score some political points off of the feds.) I don’t think that this an inherently bad thing for a government to do, as Patricia Hughes comes close to saying in a post at Slaw. (Dr. Hughes faults the stickers for “not advanc[ing] an alternative approach to fighting climate change” and, instead, “undermin[ing] an approach that has been widely accepted as a positive response to … greenhouse emissions”. I’m not sure why this would be constitutionally problematic. A bad choice of priorities, perhaps, but this is a debate that courts should probably stay out of.) But even if transparency of this sort is desirable, is it, as the Court of Appeal put it, “of sufficient importance to warrant overriding a constitutionally protected right or freedom”? In theory at least, it should be possible to conceive of objectives that, while desirable, are not worth abridging rights for, and I would argue that this is one of them. Perfectly transparent public policy might be a supererogatory good in a free and democratic society, but not one to be pursued at the expense of such a society’s fundamental commitments, which is what constitutional rights are supposed to be. To be sure, the courts generally tend to be very deferential to legislatures at this stage, but even this deference might, just, have its limits ― and if so, this would be pretty good case to discover them.

Now, assuming that the objective of fostering transparency about the effects of public policy does warrant limitation of rights ― a big assumption, as just explained ― I think it has to follow that the sticker requirement is rationally connected to the objective. The issue at this stage isn’t whether it is a particularly good way of achieving the legislature’s purpose, but whether it’s not an arbitrary one. This is a low bar to clear. Dr. Hughes writes that “[t]here is no rational connection between the message of the stickers … and opposition to the carbon tax because they fail to provide all the information”. Perhaps so, but I don’t think that failure to provide complete information is really a rationality issue, or that courts should be in the business of evaluating the content of a government message to assess its completeness.

What the courts can and should do, however, is to find that conscription of gas stations to communicate the government’s message about the effects of the carbon tax is not the least restrictive means of accomplishing whatever transparency-promoting aims the government might have. Being able to help itself to both the bully pulpit and the public purse to further its public-relations strategies, the government can do without conscripting private parties to carry its water. I am no fan of the Supreme Court’s decision in Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30, [2007] 2 SCR 610, which upheld, among other things, a requirement that tobacco manufacturers display government-mandated health warnings on 50% of their packaging, but it is surely arguable that the warnings regarding the health consequences of a particular product really do need to be displayed on that product, and not elsewhere, to be optimally effective. An argument along these lines is not so easy to make in support of Ontario’s carbon tax stickers. That said, a lot will depend on the level of deference the courts accord the legislature. One suspects, however that a legislature at odds with a carbon tax will be given less deference than one trying to discourage smoking. (This is, I am afraid, not to the Canadian courts’ credit.)

Finally, I think the courts can and should find that the benefits of the stickers, if there are any, are not worth the imposition on those who have no desire to display them. But here too, much depends on the level of scrutiny courts are willing to apply. In JTI-Macdonald, the sum total of Chief Justice McLachlin’s reasoning on this point was “proportionality of effects is established. The benefits flowing from the larger warnings are clear. The detriments to the manufacturers’ expressive interest in creative packaging are small.” [139] If a student could not come up with something more than this conclusory assertion, I would flunk her. But, quod licit Jovi, etc. In any case, here again, the courts’ biases are likely to be less favourable to the legislature, and chances are that the sticker mandate will, in fact be scrutinized as it ought to be.

Whatever doubt there might be about the legal side of the issue (and I don’t think there should be too much), the immorality of the carbon tax sticker requirement is clear. As noted above, the Ontario government has virtually unlimited resources to make its views of the federal carbon tax known. These views, at this point, aren’t exactly a secret, anyhow. But if the government wants to instruct its ~~trained seals~~ MPPs to end their speeches with anti-carbon-tax perorations in the style of Cato the Elder, it can. If it wants to put up giant anti-carbon-tax posters on every town square in the province, it can. If it wants to buy advertising slots from willing newspapers or radio and television stations, it can. Instead of doing the work of communicating its position itself ― and paying to do so, if necessary ―, the government conscripts unwilling private citizens and companies to serve as its bullhorn.

This is beyond its rightful powers, not only on a libertarian or classical liberal conception of the government’s proper powers but also, I think, on either a “progressive” or a conservative one. It is, indeed, little more than than naked abuse of power. The Ontario government makes people do things just because it thinks it can. I have argued here against the view the governments can in effect conscript private individuals to advance their constitutional agendas, or that the Law Society of Ontario can force lawyers to act as advocates on its behalf by “promot[ing] equality, diversity, and inclusion”. The same principles apply to a government’s attempt to communicate its views of public policy. This is something that the government can and must do on its own. If it can force citizens to do that, it can force them to do anything.

Notice, by the way, that this is not just an objection to government mandates to communicate misleading or incomplete information, or messages that undermine policy designed to deal with climate change or whatever other problem. The objection to government conscription of individuals to speak on its behalf is neutral and general. It applies to “progressive” causes, as well as to populist ones. Some means are wrong regardless of the rightness of the cause which they are supposed to pursue. This is one of them.

Ontario’s anti-carbon-tax-sticker legislation, enacted in a perversion of parliamentary democracy, is likely unconstitutional, and wrong in principle. The day when it is repealed on struck down by the courts cannot come too soon. It might seem like a small thing― it’s just stickers at gas stations, after all, and unlike with the various recent “statements of principles” and “attestations” nobody is required to believe, or even pretend to believe, what the government wants them to say. Nevertheless the impulse behind this legislation is not that much less authoritarian than that behind these other denials of the freedom of speech.

This is a reminder that liberty is under threat both from self-styled progressives and from self-anointed populists. Each camp will happily point to the other’s excesses and may even proclaim itself a defender of rights, freedoms, and the Charter; both are hypocrites. It is essential that firm, neutral principles of freedom be upheld against threats on either side.

No Way to Make Law

The legislative process is being disgracefully abused in Ontario. Constitutional lawyers need to pay attention.

I wanted to write a post about those anti-carbon tax stickers the Ontario government wants to require gas stations to post. I will, eventually, get around to writing that post, I hope. Spoiler alert: I don’t like the idea of the Ontario government telling people what to say. Anyway, before I get around to a post detailing my objections to the substance of this policy, I need to write this one, which is about process by which the anti-carbon tax sticker requirement is being made into law. This process is disgusting, and I think we (by which I mean Canadian lawyers, especially Canadian lawyers interested in the constitution, and other members of the public interested in law and governance) need to be much more upset about it than I think we are.

The anti-carbon tax sticker requirement is set out in sub-clause 2(1) of the Federal Carbon Tax Transparency Act, 2019, Schedule 23 to Bill 100, Protecting What Matters Most Act (Budget Measures), 2019. Yes gentle reader, Schedule 23. Schedule 23 out of 61, that is. A great many things matter in the province of Ontario, one must surmise, and need protecting. The “Explanatory Note”, which provides anyone who can be bothered to read it an overview of the 61 statutes being amended or introduced by Bill 100, alone runs to more than 9000 words, or 13 dense pages of small print. And this is not because it is unduly detailed; on the contrary, in some cases, it contents itself with setting out “some highlights” of the amendments or new legislation being implemented. The actual legislation runs to about 81,000 words ― the length of a PhD dissertation. I think it is a safe bet that no one will ever bother reading that.

Among the threescore statutes concerned, a solid majority have little to do with the budget, as one would, I think, understand this word. There is the Bees Act, for instance, amended “to expand the method of delivering inspectors’ orders” made pursuant to some of its provisions; there is a new Combative Sports Act, 2019, which regulates ― so far as I can tell from its (perhaps inevitably, though I’m not sure) convoluted definitions provisions ― boxing, wrestling, and the like; there is the Courts of Justice Act, amended in relation to the publication of the Ontario Judicial Council’s reports and also to limit some civil jury trial rights; there is new legislation on Crown liability (which has received some harsh criticism); there are important changes to the Juries Act (which have actually come in for some praise); there is, of course, the gas station sticker legislation; and much, much, more, right up to some not doubt vitally important amendments to the Vital Statistics Act.

There is, so far as I can tell, no reason having anything to do with good government why these statutes need to be amended or enacted as a block, as part of a package of budget matters. Stephen Harper once had his “five priorities”, and though these were inevitably much derided, one could claim with a modicum of plausibility that a new government might focus on, say, those five things. Anyone who actually thinks that “combative sports”, carbon tax stickers, vital statistics, and 58 other things are all “what matters most” would be well advised to run, not walk, to the nearest psychiatrist’s office. (I say so without worrying for Ontario psychiatrists; they are unlikely to be burdened with many such visitors.) But of course, the reasons enact this legislative blob likely have nothing to do with good governance.

And this is where it’s time to drop the snark, and get serious ― and constitutional. In abstract separation of powers theory, the legislature is supposed to make law (except in those areas where it has delegated this power to the government, or left it to the courts; these are, of course, significant exceptions). In all the constitutional practice of all Westminster-type systems, so far as I know, the government dominates the legislative agenda. It mostly decides which statutes get in enacted and when. Still, the legislature has a distinctive role to play. For one thing, it is where legislation is debated, and debate might have some symbolic democratic value even if votes are ultimately whipped and their outcome is not in question. And for another, the process of committee study is what allows a detailed consideration of the proposed legislation, and also public submissions on it, and perhaps amendments to improve the proposal.

A government that cared about good governance would value this process. It might ultimately force its bills through, but it would at least be open to the idea that they might be improved, at the level of detail if not of principle, by input from backbenchers, members of the opposition, and members of the civil society. By contrast, a government that doesn’t care about good governance, and is only interested in getting its way as expeditiously as possible will see the legislative process, even one whose outcomes it is ultimately able to control, as a nuisance or, at best, as a needless formality. In either case, it will endeavour to deny the legislature the ability to play any other role than that of an extension of the government itself.

A government of the latter sort has a variety of means at its disposal. The amalgamation of multiple unrelated bills in a giant package, which drastically limits, perhaps to nothing, the extent to which each of them can be separately debated and studied is one of these means. Both Mr. Harper’s government and Justin Trudeau’s have been criticized for using and abusing this technique. Bill 100 is not exactly new in embodying it. But it should not be regarded as any less shocking despite this. By amalgamating 61 mostly disparate pieces of legislation, it prevents the legislature from properly considering them ― including those among them, like the Crown Liability and Proceedings Act, 2019 for example, that will become really substantial and very important statutes in their own right, as well as those, like the carbon tax sticker legislation, that have obvious, and ominous, implications for constitutional rights and freedoms. Bill 100 thus demonstrates nothing short of contempt for both good governance and the distinct constitutional role of the legislature. It is, as I have already said, disgusting and outrageous.

We have become inured to violations of what is sometimes described as legislative due process. As lawyers, we tend inevitably to focus our attention and energy where our expertise can make an obvious difference, in coming up with and then pursuing through the courts arguments about why the legislative end-product might be unconstitutional and therefore not law at all. I think this is understandable, inevitable to some extent, and perhaps even not always a bad thing. Still, by not thinking about the way laws are made, we let those who make them get away with the procedural equivalent of bloody murder.

This cannot go on. Those who take a benign view of legislatures and want to celebrate legislative engagement with constitutional issues need to get to grips with the reality of broken legislatures that act as rubber-stamps for executives that despise them. Those who, like me, are wary of legislatures and insist on the courts having a robust role in enforcing constitutional rights and other restrictions against them must nevertheless pay attention to what the legislatures are up to ― all the more so since we are more likely than our friends to take an appropriately skeptical view of the matter. But skepticism may not become indifference. We, along with the legislatures’ fans, with whom we can make peace for this purpose, need to get serious about making sure that our laws are made in a decent way ― and not in the way Ontario is making its laws right now.

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.