Disinformation by Omission

Additional thoughts on the futility of regulatory responses to mis- and disinformation

In my last post, I wrote about the Canadian Forces’ attempts to manipulate public opinion, including by means of disinformation, and about the dangers of regulations ostensibly meant to counteract disinformation. I briefly return to the issue of disinformation to highlight an excellent, if frightening, essay by David French in his newsletter for The Dispatch.

Mr. French writes about the alarming levels of polarization and mutual loathing by political partisans in the United States. He argues that this results from a “combination of malice and misinformation”, which mean “that voters hate or fear the opposing side in part because they have mistaken beliefs about their opponents. They think the divide is greater than it is.” Mr. French observes that many Americans are stuck in a vicious cycle:

Malice and disdain makes a person vulnerable to misinformation. Misinformation then builds more malice and disdain and enhances the commercial demand for, you guessed it, more misinformation. Rinse and repeat until entire media empires exist to supply that demand. 

And, crucially, Mr. French points out that misinformation does not just consist of “blunt, direct lying, which is rampant online”. It also includes “deception by omission (a news diet that consistently feeds a person with news only of the excesses of the other side) and by exaggeration and hyperbole”, which can be “in many ways more dangerous than outright lies”, because they cannot easily be countered with accurate information. (This is why the rhetorical practice of “nutpicking” ― pointing to the crazies on the opposite side, and claiming that they represent all those who might share something of their worldview ― is so effective. The nuts are real! They might even be somewhat prominent and influential, though not as much as the nutpicker suggests. Nutpicking isn’t lying. But it is deceptive, and destructive.) 

And yet, Mr. French cautions against regulatory responses to this crisis, serious though it is:

there is no policy fix for malice and misinformation. There is no five-point plan for national harmony. Popular policies … don’t unite us, and there are always differences and failures to help renew our rage. Instead, we are dealing with a spiritual and moral sickness. Malice and disdain are conditions of the soul. Misinformation and deception are sinful symptoms of fearful and/or hateful hearts. (Paragraph break removed)

I think this is tragically right, even though I do not share Mr. French’s deep Christian faith. Call it heart or mind instead of soul; speak of moral error, indeed of immorality instead of sin; this all is secondary, to my mind. The point is that the fault is not in our laws, but in ourselves. And this is why, in my last post, I wrote that the government

cannot be trusted with educating citizens and funding media in a way that would solve the problems of the “environment that has created the disinformation crisis”. The solution must come from the civil society, not from the state.

As I wrote long ago in the context of hate speech, the law ― at least so long as it remains relatively cabined and does not attempt comprehensive censorship ― cannot counteract the corrosive “messages … sent by sophisticated, intelligent people”, who are able to avoid crude hate propaganda, or outright lies. The hint, the understatement, the implication, the misdirection, the omission are their weapons, and the shield against it must be in our hearts and minds, not the statute book.

We often think of regulation as a sort of magic wand that can do whatever we need, provided we utter the right sort of spell when wielding it. This is, of course, an illusion, and entertaining it only distracts us from working on the most difficult subject of all: our selves.

Disinformation and Dystopia

Whose disinformation efforts should we really fear―and why we should also fear regulation to stop disinformation

Mis- and disinformation about matters of public concern is much in the news, and has been, on and off, for the last five years. First kindled by real and imagined interference in election campaigns, interest in the subject has flared up with the present plague. Yesterday’s developments, however, highlight the dangers of utterly wrongheaded responses to the issue, one that would will lead to a consolidation of government power and its use to silence critics and divergent voices.


First, we get a hair-raising report by David Pugliese in the Ottawa Citizen about the Canadian Armed Forces’ strong interest in, and attempts at, engaging in information operations targeting Canadians over the course of 2020. Without, it must be stressed, political approval, and seemingly to the eventual consternation of Jonathan Vance, the then-Chief of Defence Staff, the Canadian Joint Operations Command sought to embark on a “campaign … for ‘shaping’ and ‘exploiting’ information” about the pandemic. In their view “the information operations scheme was needed to head off civil disobedience … and to bolster government messages”. They also saw the whole business as a “learning opportunity” for what might become a “routine” part of their operations.

Nor is this all. At the same time, but separately, “Canadian Forces intelligence officers, culled information from public social media accounts in Ontario”, including (but seemingly not limited to) from people associated with Black Lives Matter. This, supposedly, was “to ensure the success of Operation Laser, the Canadian Forces mission to help out in long-term care homes hit by COVID-19 and to aid in the distribution of vaccines in some northern communities”. A similar but also, apparently, unrelated effort involved the public affairs branch of the Canadian Forces, which want its “officers to use propaganda” peddled by “friendly defence analysts and retired generals” and indeed “information warfare and influence tactics”, “to change attitudes and behaviours of Canadians as well as to collect and analyze information from public social media accounts” and “to criticize on social media those who raised questions about military spending and accountability.”

And in yet another separate incident,

military information operations staff forged a letter from the Nova Scotia government warning about wolves on the loose in a particular region of the province. The letter was inadvertently distributed to residents, prompting panicked calls to Nova Scotia officials … [T]he reservists conducting the operation lacked formal training and policies governing the use of propaganda techniques were not well understood by the soldiers.

To be blunt, there seems to be a large constituency in various branches of the Canadian forces for treating the citizens whom they are supposed to defend as enemies and targets in an information war. Granted, these people’s enthusiasm seems to outstrip their competence ― but we know about the ones who got caught. We can only hope that there aren’t others, who are better at what they do. And it’s not a happy place to be in, to be hoping that your country’s soldiers are incomptent. But here we are.


Also yesterday, as it happens, the CBA National Magazine published the first episode of a new podcast, Modern Law, in which its editor, Yves Faguy, interviewed Ève Gaumond, a researcher on AI and digital technologies, about various techniques of online persuasion, especially during election campaigns. These techniques include not only mis- and disinformation and “deep fakes”, but also advertising on social media, which need not to untruthful, though it may present other difficulties. Mr. Faguy’s questions focused on what (more) should Canada, and perhaps other countries, do about these things.

Ms. Gaumond’s views are somewhat nuanced. She acknowledges that “social media is not the main driver of disinformation and misinformation” ― traditional media still are ― and indeed that “we’re not facing a huge disinformation crisis” at all, at present. She points out that, in debates about mis- and disinformation, “the line between truth and falsehood is not so clearly defined”. And she repeatedly notes that there are constitutional limits to the regulation of speech ― for example, she suggests that a ban on microtargeting ads would be unconstitutional.

Ultimately, though, like many others who study these issues, Ms. Gaumond does call for more and more intrusive regulation. She claims, for instance, that “[i]f we are to go further to fight disinformation”, online advertising platforms should be forced not only to maintain a registry of the political ads they carry and of the amounts the advertisers spent, but also to record “[t]he number of times an ad has viewed” and “the audience targeted by the ad”. This would, Ms. Gaumond hopes, deter “problematic” targeting. She also wants to make advertising platforms responsible for ensuring that no foreign advertising makes its way into Canadian elections, and tentatively endorses Michael Pal’s suggestion that spending limits for online advertising should be much lower than for more conventional, and more expensive, formats.

Ultimatelty, though she doesn’t “think that we should tackle speech per se”, Ms. Gaumond muses that “[w]e should see how to regulate all platforms in a way that we can touch on all possible ways that disinformation is spread”. This means not only spending limits but also that “[y]ou cannot pay millions of dollars to microtarget … what you’re saying to people that believe the same thing as you do without oversight from other people, from Election Canada”. And beyond that

not only regulating social medias [sic], but also all of the environment that has created the disinformation crisis. That means education, funding and great journalism, the media ecosystem is one of the important components of why we’re not facing such a big disinformation crisis.


There are a few things to say about Ms. Gaumond’s proposals ― keeping in mind Mr. Pugliese’s report about the activities of the Canadian forces. The overarching point is the one suggested by the juxtaposition of the two: while researchers and politicians fret about disinformation campaigns carried ou by non-state and foreign actors, the state itself remains the most important source of spin, propaganda, and outright lies with which we have to contend. Unlike bots and Russian trolls, the state can easily dupe the opinion-forming segments of society, who are used to (mostly) believing it ― partly out of ideological sympathy, but partly, and it’s important to stress this, because the state is also an important source of necessary and true information which such people rely on and relay.

This means that we should be extremely wary of granting the state any power to control information we can transmit and receive. Its armed agents think nothing of manipulating us, including for the sake of propping up the government of the day. And it is no answer that we should grant these powers to independent, non-partisan bureaucracies. The Canadian Forces are also an independent, non-partisan bureaucracy of sorts. I’m pretty confident that they weren’t trying to manipulate opinion out of any special affection for the Liberal Party of Canada, say. They are just on the side of order and stability, and any civilian bureaucratic structure would be too. It would also be likely to be tempted to squish questions about its own budget and functioning, and to develop an unhealthy interest in people it regards as trouble-makers. Civilians might be more suspicious of right-wing groups than of BLM, but the ones have the same right to free speech and to privacy as the others.

Another thing to note is the confusion among the different issues clustered under the general heading of concerns about mis- and disinformation. Concerns about the targeting of advertising may be valid or not, but their validity often has little to do with the truthfulness of the ads at issue. Concerns about foreign influence may be magnified when it is being exercised through misleading and/or microtargeted ads, but they are not necessarily linked to the issues either of disinformation or of microtargeting. Spending limits, again, have little to do with disinformation. No doubt a knowledgeable researcher like Ms. Gaumond would be more careful about such distinctions in a paper than she sometimes is in the interview with Mr. Faguy. But can untutored policy-makers, let alone voters, keep track?

In light of all this, Ms. Gaumond’s suggestions, though sprinkled with well-intentioned caveats about “not saying ‘you cannot say that'”, should give us serious pause. Even increasing disclosure requirements is far from a straightforward proposition. As Ms. Gaumond notes, Google simply refused to carry political ads rather than set up the registry the government required. Facebook and Twitter might follow if they are forced to make disclosures that would reveal the functioning of their algorithms, which they may have good reasons for keeping out of their competitors’ sight. More fundamentally, the idea that all (political?) speech should at all times be tracked and monitored by the state does not strike me as healthy. Political debate is a fundamental right of citizens, not something we can only engage in on the government’s sufferance. We are not children, and government ― including Elections Canada ― is not a parent who needs to know what we are getting up to online. Last but not least, because of the government’s track record of spin and deceit, it cannot be trusted with educating citizens and funding media in a way that would solve the problems of the “environment that has created the disinformation crisis”. The solution must come from the civil society, not from the state.

Lastly, let me note in my view Ms. Gaumond may be far too optimistic about the willingness of Canadian courts to uphold constitutional limits on government regulation of electoral speech. Their record on this issue is generally abysmal, and the Supreme Court’s reasoning in the leading case, Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, is itself misinformed and speculative. If government actors take the initiative on these matters, the courts will not save us.


The issue of mis- and disinformation is at least much a moral panic as a genuine crisis. As Ms. Gaumond points out, the trouble is to a considerable extent with traditional media and political forces outside anyone’s easy control; as Mr. Pugliese’s reporting makes clear, we must fear our own government at least as much as any outside force. Yet fears of new technology ― not to mention fear-mongering by media and political actors whose self-interest suggests cutting social media down to size ― mean that all manner of new regulations are being proposed specifically for online political discussions. And the government, instead of being reined in, is likely to acquire significant new powers that will further erode the ability of citizens to be masters in their own public and private lives.

Common Factionalism

The political rhetoric of the common good is poorly disguised factionalism, which the thinkers in whose name it is being advanced would have abhorred

The idea that law and politics should be organized around the principle of the “common good” is in the air on the political right. The left, of course, has had its versions of it for a long time. Both co-blogger Mark Mancini and I have written about “common good” arguments about legal issues, specifically the administrative state (Mark), constitutional law (me), and the Charter’s “notwithstanding clause” (also me), and found them severely wanting. A couple of recent newspaper articles give us an idea of what the “common good” philosophy looks like in practical politics.

On the northern side of the world’s longest closed border, Ginny Roth, writing in the National Post, identifies the Conservative platform in the late and lamented election with “a rich tradition of common-good conservatism that looks more like Edmund Burke than John Locke”. The master idea of this “new conservatism” (wait, is it new or richly traditional? never mind) is that “Conservatives must be positioned to build on the coalition of voters that will support it in this election by correctly identifying what appealed to them about the leader, the party and the platform”. Less blandly, “the left must not have a monopoly on populist politics”. The right should imitate the left, and in doing so advance the policies favoured, or assumed to be favoured, by “coalitions of voters who think the opposite of what the cocktail party goers do”. 

The same ideas, if that’s what they are, are to be found south of the aforementioned border in Josh Hammer’s column in Newsweek. (Mr. Hammer, it is worth noting, is one of if not the closest thing the “common good” movement has to a leader. He is also, apparently, a research fellow with an outfit called the Edmund Burke Foundation.) Mr. Hammer defends bans on private businesses requiring their employees or customers to be vaccinated against the present plague. In doing so, he claims to take the side of “common-good-inspired figures” against “the more adamantly classical liberal, libertarian-inspired pundits and politicians who believe the quintessence of sound governance is simply permitting individuals and private entities to do what they wish”. Mr. Hammer “explains” that “[v]accine mandates will be a convenient fig leaf for a ruling class already gung-ho at the possibility of precluding conservatives from the full panoply of in-person public life”. (Why is that the defenders of tradition so often struggle with their native tongue?) This “wokeist ruling class” must be stopped by a “prudential use of state power to secure the deplorables’ basic way of life”.


With apologies to H.L. Mencken, “the theory that the common people know what they want, and deserve to get it good and hard” seems to be an excellent description of common good conservatism, as propounded by Ms. Roth and Mr. Hammer. The common people are entitled to get their way, and to have the state’s coercive force used to ensure that they get their way. And no need to ask whether their preferences are consonant with some objective standards of morality, or the teachings of experts ― be it in economics, in epidemiology, or what have you. The beliefs of the common people are entitled to prevail because they are their beliefs, not because they are right.

Of course, it’s only the common people, that is, the right kind of people, that are entitled to have their way. The woke cocktail-swilling pundits and politicians are not. Even entrepreneurs, whom the conservatives of yesteryear lionized, must take their orders from those who do drink cocktails. In other words, what Ms. Roth and Mr. Hammer are promoting under the name of the common good is the view that the aim of politics is to give effect to the wishes of

a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

This is James Madison’s famous definition of faction, in Federalist No. 10. Ms. Roth might not have, but Mr. Hammer, who affects to be a constitutional sage as well as a political visionary, presumably has read the Federalist Papers. He’s read them, and has evidently concluded that he is cleverer than Madison, who feared faction as the seed of tyranny, civil strife, and destruction, and looked for ways to limit its ill-effects.

Madinson saw the remedy in “[a] republic, … a government in which the scheme of representation takes place”. A “republic”, so understood, would

refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Not so for Ms. Roth and Mr. Hammer. Not for them the refining and enlargement of public views by representatives. (It’s the cocktails, don’t you know?) The people themselves, and more precisely the “deplorables”, the ones whose views are the opposite of refined and enlarged, who must govern, and officials are to take their marching orders from them.

Poor Edmund Burke is spinning in his grave. His single most famous idea is doubtless the argument he advanced in his “Speech to the Electors of Bristol”, which deserves to be quoted at length here:

Certainly … it ought to be the happiness and glory of a Representative, to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and, above all, ever, and in all cases, to prefer their interest to his own. But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any sett of men living. These he does not derive from your pleasure; no, nor from the Law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your Representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy Colleague says, his Will ought to be subservient to yours. If that be all, the thing is innocent. If Government were a matter of Will upon any side, yours, without question, ought to be superior. But Government and Legislation are matters of reason and judgement, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one sett of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

The populism masquerading as “common good” conservatism being peddled by Ms. Roth and Mr. Hammer is the opposite not only of John Locke’s ideas and James Madison’s, but also of the deeply held views of the great man they dishonour by pretending to admire him.


I should note that there a more purely intellectual and, not coincidentally, intellectually respectable version of the “common good” thought. For the reasons some of which I set out more fully in my earlier posts, I don’t find it compelling. But, at its best, it does involve an honest reflection on the good of the community rather than window-dressing for factionalism. Michael Foran speaks from this perspective when he tweets that “[t]he Common Good shouldn’t be used as the new phrase for whatever political position one happens to already hold. A claim that X is in the common good needs to explain how X is both genuinely good and genuinely common in its goodness.”

As it happens, Adrian Vermeule (among others) has recently shared his thoughts on vaccine mandates with Bari Weiss, and they are not at all in line with Mr. Hammer’s. Along with much sniping at libertarians (does he think Mr. Hammer is one?), he argues that “the vaccine mandate is analogous in principle to … crisis measures” such as wartime conscription or the destruction of property to stop a fire: “[o]ur health, our lives and our prosperity, are intertwined in ways that make it entirely legitimate to enforce precautions against lethal disease — even upon objectors”.

The point is not really that Professor Vermeule is right (which I’m inclined to think he is, albeit not quite for the reasons he advances), and Mr. Hammer is wrong. It’s not even that their disagreement exposes the vacuity of the common good as a standard against which to measure policy (though it at least points in that direction). For my present purposes, it’s that the partisan version of the “common good” ideology, which Mr. Hammer and Ms. Roth represent, has next to nothing to do with its more cerebral namesake exemplified by Professor Vermeule’s comments to Ms Weiss. In its partisan incarnation, common good talk is nothing more than a fig-leaf meant to hide ― none too well, mind you ― the narcissism and cultural resentment that its promoters impute to a part of the electorate.

The UK Way

What a recent decision of the UK Supreme Court can teach us about courts, legislatures, and rights

A recent decision of the UK Supreme Court, R (SC) v Secretary of State for Work and Pensions, [2021] UKSC 26, might be of interest for Canadian readers. Lord Reed’s judgment for the Court addresses issues that are relevant to current Canadian debates about the relationship between courts, legislatures, and rights, equality rights in particular. To be sure, the UK context is not the same as Canada’s. Still there are lessons to be learned there.

In a nutshell, at issue in SC was a statutory rule providing that one particular tax credit available to low-income families would only be payable in respect of a first and second child, but not for any subsequent children in a family. (Other benefits remained unaffected.) This was alleged to constitute discrimination, on a number of different grounds, in the protection of a right to family life, which is guaranteed by the European Convention on Human Rights, and thus by the Human Rights Act 1998. The Supreme Court found that there was indeed prima facie discrimination against women (who were more likely to be caring for multiple children) and children living in families with three or more children, as opposed to those living in smaller ones. But the rule was still justified as a reasonable means of ensuring the fiscal sustainability of the credit programme.

One could make many interesting observations about this. Canadian readers might want to consider the different approach to equality rights under the Convention and under s 15 of the Canadian Charter of Rights and Freedoms ―no abstruse inquiries into human dignity, histories of stereotyping, and so on, and a ready recognition of what we’d term “analogous grounds”, but also a greater willingness to defer to Parliamentary judgment, except where some particularly invidious forms of discrimination are concerned. But in this post I focus on a different issue: namely, Lord Reed’s comments on the nature and scope of Parliament’s engagement with rights, and the courts’ consideration of this engagement in assessing the compatibility of resulting legislation with the Convention.


These comments are part of Lord Reed’s discussion of “the use which can be made of Parliamentary debates and other Parliamentary material when considering whether … legislation is compatible with Convention rights”. [163] This was necessary because the parties argued about whether or not Parliament gave sufficient consideration to “matters which were argued to be relevant to the proportionality of the legislation, such as its impact upon the interests of the children affected”. [163] Lord Reed, however, cautions about this kind of argument, both out of respect for Parliament’s privileges and, no less importantly, in light of Parliament’s distinct constitutional role.

Parliamentary privilege, as part of the separation of powers, means relevantly “that it is no part of the function of the courts … to exercise a supervisory jurisdiction over the internal procedures of Parliament”. [165] In particular, courts should not expect and must not demand “transparent and rational
analysis” of rights claims by Parliament, because this “would be liable to make the process of resolving political differences through negotiation, compromise and the exercise of democratic power more difficult and less likely to succeed”. [171] The quality of the reasons given by individual Members of Parliament, or even by Ministers, is not what is at issue when courts assess the effect of statutory provisions on rights or their justification and proportionality in a democratic society.

Another aspect of the separation of powers, Lord Reed points out, is the distinction between Parliament and government. Among other things, this means that “[a]s a matter of daily reality, ministers and party whips
have to negotiate and compromise in order to secure the passage of the legislation which the Government has promoted, often in an amended form.” [166] And it follows from this that “[t]he reasons which the Government gives for promoting legislation cannot therefore be treated as necessarily explaining why Parliament chose to enact it”. [166] Neither the government nor individual members can be taken to be speaking for Parliament. Its “will … finds expression solely in the legislation which it enacts”, [167] and its “intention … or (otherwise put) the object or aim of legislation, is an essentially legal construct, rather than something which can be discovered by an empirical investigation”. [172]

At most, Lord Reed says, courts inquire into “whether matters relevant to compatibility” between an impugned statute and Convention rights “were raised during the legislative process”, while “avoid[ing] assessing the adequacy or cogency of Parliament’s consideration of them”. [182] If they were, then ― regardless of the quality of these debates ― Parliament’s enactment may be entitled to an additional measure of deference. The converse, however, is not true: lack of Parliamentary consideration of the issues does not count against the statute.

Canadian courts need to take heed. The most egregious example of their failure to attend to the principles Lord Reed expounds is surely the one Maxime St-Hilaire and I have written about here: the first instance judgment in the Québec mosque shooter’s case, R c Bissonnette, 2019 QCCS 354 (since reversed in part by the Court of Appeal, and now under appeal at the Supreme Court). There, Professor St-Hilaire and I noted, the judge engaged in

play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings.

Another recent example is provided by Justice Zinn’s comments in Smith v. Canada (Attorney General), 2020 FC 629 to the effect that “[a] statement made by the Prime Minister at the time as to the intent of Parliament and its members ought to be accorded significant weight, if not considered conclusive on the issue of Parliamentary intent”. [85]

But even the Supreme Court has sometimes succumbed to such misguided reasoning, if in less extreme forms. Thus in R v Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 SCR 180, Chief Justice McLachlin, writing for a unanimous court, picked and chose among various purposes offered by the Minister who had promoted the legislation at issue, declaring one to be the real purpose of the statute and the others “peripheral”. This arguably crosses the line into “impeaching” Parliamentary statements, and certainly wrongly attributes a Minister’s supposed purpose to Parliament, to the detriment of the separation of powers and to the advantage of the executive over the legislature.

That said, two caveats are in oder. First, Lord Reed’s emphasis on the separation of the executive and the legislature may not always be appropriate in the Canadian context, at least outside of minority government situations. When one considers the law-making practices of some governments and legislatures ― notably, ubiquitous abusive omnibus legislation, or laws interfering with constitutional rights passed in a matter of days, it is difficult to maintain that the legislatures involved are anything other than inanimate rubber-stamps, quite devoid of any “will of their own”. More generally, Canadian legislatures lack certain features and institutions that serve to maintain the Westminster Parliament’s partial independence from the executive. But that doesn’t change the principle that courts should not attribute the executive’s purposes to the legislature. Partly, this is to avoid rewarding the executive for overwhelming the legislature; partly because, as Lord Reed says, it is not the courts’ place to assess the quality of legislative deliberation, and that includes the degree of its independence from the executive.

Second, Lord Reed’s discussion of deference ― both the narrow point described above, to the effect that Parliament’s consideration of an issue should reinforce curial deference to its choices, and what he says elsewhere in the judgment ― is also to be treated with the greatest caution in Canada. Lord Reed is judging in a constitutional system where Parliamentary sovereignty rather than constitutional supremacy is the ultimate principle. But, moreover, section 1 of the Canadian Charter requires any limitations on the rights it protects to be “demonstrably justified” (emphasis mine). The wording of the European Convention is a bit different ― it speaks (for example in article 8, which was at issue in SC) of limits “necessary in a democratic society”. Those readers ― and judges ― who, like me, attach importance to the words of constitutional texts may well think that the Charter‘s emphasis on demonstrable justifications calls into question the appropriateness of judicial deference to legislative choices, and especially of deference on no stronger a basis than the fact that the legislature turned its mind to an issue.

But judges are not the only Canadians who should take note of Lord Reed’s explanations. The proponents of the use of the Charter‘s “notwithstanding clause”, which allows legislatures to maintain in operation laws that are contrary to the Charter‘s guarantees, ought also to consider what Lord Reed says about the difference between courts and legislatures. Their argument is premised, in part, on the claim ― often asserted though seldom supported ― that legislatures will serve “as a forum where rights are debated, articulated and enacted” with “the thoughtful participation of the people themselves”, in the words of Joanna Baron and Geoffrey Sigalet in a post over at Policy Options. Lord Reed’s explanations show why this claim is unlikely to be true, or at least nearly as true as its proponents make it out to be.

Lord Reed points out that the way in which Parliament does its business does not require debate and articulation of rights, or any particular degree of thoughtfulness on the part of the people’s representatives, let alone the people themselves. He writes:

First … Parliament does not give reasons for enacting legislation: it simply votes on a motion to approve a proposed legislative text. There is no corporate statement of reasons, and the individual members of Parliament do not give their reasons for voting in a particular way. …

Secondly, the decisions which Parliament takes are not necessarily capable
of being rationalised in any event. In the first place, Parliament does not operate only, or even primarily, as a debating chamber. It is also a forum for gathering evidence, and for extra-cameral discussion, negotiation and compromise. Furthermore, the way in which members of Parliament vote will usually, but by no means always, reflect party policy, and may be influenced by the discipline imposed by the party whips. [167]-[168]

Lord Reed further explains that while the courts’ task is “the production of decisions arrived at by an independent and transparent process of reasoning”, Parliament’s is

the management of political disagreements … so as to arrive, through negotiation and compromise, and the use of the party political power obtained at democratic elections, at decisions whose legitimacy is accepted not because of the quality or transparency of the reasoning involved, but because of the democratic credentials of those by whom the decisions are taken. [169]

In other words, when Parliament makes a decision, including a decision that impacts or even directly concerns the rights of citizens, it need not act on the basis of reasoned deliberation. It is just as likely to be giving effect to the results of horse-trading or to the political tactics of the majority, its ministry, and its whips. Rights, or any other considerations, need not be articulated in any sort of intelligent fashion in this process. To be sure, sometimes they will be ― but this is no more than a happy accident. It cannot be the foundation of a constitutional theory, let alone the basis on which anyone should accept that their rights can be suspended by a political faction that holds them in contempt.


For all that Canadians like to think of themselves as open to learning from the constitutional law of other countries ― and despite some reservations I have on this score! ― I think that we do not do it nearly enough. There is indeed a great deal to learn out there, and not least from the courts that, to some, might seem passé ― those of the United States and the United Kingdom. SC is a good reminder of that.

The Politics of Law

Is law truly just a function of politics? Should it be?

It is common in progressive circles (and, increasingly, in conservative circles, to some extent) to say that law=politics, or some variation thereof (law is always political, law is political, etc etc). The claim is usually offered without much in the way of qualification, and it appears to capture the many aspects of “law”; the creation of law, the implementation of law, and the interpretation of law.

In this post, I argue that this claim is either banally true or implausible because it merges law with politics in a way that our current system simply cannot support. To determine its veracity, the claim must be examined closely—in relation to the various ways that political considerations interact with law. A failure to do so infects the “law=politics” claim with a fatal imprecision.

I first outline the limited ways in which the claim is likely true. Then I shift gears to a normative argument: while the claim may be true in certain ways, it is not self-evident that it should be true across the legal system. In other words, there is good reason to accept that law may be “political” in certain ways; but it isn’t the case that it should be in all aspects of the law (its creation, implementation, and interpretation).

***

Before jumping in, I should acknowledge some imprecision in terms here. The law=politics claim is often made bluntly, without defining what is meant by “politics” or “political.”  It could mean, for example, that law is inevitably wrapped up in partisan politics. It could mean that law is not necessarily co-extensive with partisanship, but is correlated with political ideology more broadly. Or it could mean something very simple: law is “political” in the sense that people are “political,” meaning that law mediates disputes in a society where political disagreement is inevitable.  It could also mean a combination of all three of these things, or more.

All of these claims could be descriptively true in various ways, in relation to different aspects of law-making, implementation, and interpretation. But a failure to distinguish between these various definitions of “politics” and “political” presents an immediate hurdle for those who claim, without qualification, that law is always political. As I will note throughout, these various claims to the political nature of law may be more or less true given the institutional context. It does not follow that every political consideration is always relevant to the law.

***

Starting with the descriptive claim, it is clearly true that law can be political. The creation of law in the legislature is itself a political act. Laws are created to achieve certain aims; these aims can clearly be motivated by ideologies; and the content of law is not “neutral” as between political aims. Political parties make up the legislatures, and they vie for power in elections. In this case, and quite obviously, law is the product of political machinations. It follows that the creation of law itself can be motivated by wholly ideological reasons, quite aside from any claims to public reason or ideological neutrality. As I will note below, the notwithstanding clause is a good example of a situation where a legal power can be exercised for solely political reasons.

As well, the implementation of law by administrators, state officials, police, and others will not always be perfectly consistent with what the law says. Officials could operate on personal whim or policy preferences that are inconsistent with the policy preferences specified in the law. After all, state officials routinely fall below the standards set by the law and the Constitution—one only need to look at the number of constitutional challenges against state action that are successful in Canadian courts (though, of course, this may be due to stringent constitutional standards rather than routine malfeasance by state officials). Whether this is due to cognitive biases, outright hostility to legal norms, or mistaken application, laws can best be seen as ideals that state officials will sometimes fall below. This illustrates that state officials—at best—can only approximate legal norms. In administrative law, for example, the law of judicial review could be understood as an attempt to police the gap between the law on the books and the law as applied; to inch state officials towards following the law on the books, as much as possible.

Similarly, as a descriptive matter, the interpretation of law could be “political” or perhaps more aptly, “ideological.” Law is fundamentally a human business, and interpretation cannot be a perfect science, a simple application of axioms to words. Human beings have cognitive biases and judges are simply human beings. Notwithstanding the fact that judges sometimes speak as if they are neutral protectors of constitutional values, it is simply impossible to guarantee that law will always be interpreted authentically. To be clear, this tendency is likely true across the political spectrum—results-oriented interpretation can be common on the left or the right, and in each case, it is unavoidable that there will be results-oriented interpretation.

That said, we simply do not know the extent to which any of the above is even true in Canada. While it is plausible to suggest that judges and officials may have their judgments infected by ideology extraneous to the legal instrument under interpretation, this should not be overstated. Empirical research would be helpful in determining the extent of this phenomenon. For the most part, though, Canadian judges likely do their best to apply the law according to its terms. (NB: see Emmett Macfarlane’s work here, which tackles some of these issues. I’ve ordered the text).

***

As a normative matter, let us assume that it is true that implementation and interpretation of law can be “political” or “ideological” or something of the sort.   There are two options: we create rules, standards, and principles to limit the gap between the law as adopted and the law as applied; or we do not.  The form of these rules, standards, and principles is unimportant for our purposes. For now, it is enough to say that there is a fork in the road. Either we choose to limit the political/ideological discretion of state actors—including judges—or we do not. The point here is that while there can never be perfectly “neutral” or “impartial” creation, implementation, and interpretation of law as a matter of fact, it is desirable—as a normative matter—to limit the role of pure ideology in certain areas of law, to the extent we can.

This is obviously not true in the context of law-creation. The public understandably, and quite likely, wants our laws to be the product of a democratically-elected legislature (to the extent our electoral system leads to fair democratic outcomes in the abstract). In this sense, people vote for representatives that share their priors or who they wish to see in the legislature. Those legislatures, composed as they are by political parties, will pass laws that reflect the majority will (again, to the extent the “majority will” is represented in our electoral system). Ideally, in legislative debates, we want all the cards on the table. We want our representatives to fully and frankly air their ideological differences, and we want the public to be able to judge which program of government is best. In this sense, it is undesirable as a normative matter to (somehow) limit the politics of law in the realm of legislation.

However, as a normative matter, the story changes dramatically when it comes to law implementation and interpretation. Our Supreme Court endorses the proposition, for example, that interpretation must be conducted in order to “discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome” (Vavilov, at para 121). Administrative decision-makers implementing law have only limited reserve to bring professional expertise to bear (Vavilov, at para 31); otherwise, they are creatures of statute, and are cabined by the terms of their statutes (Chrysler, at 410). Put differently, administrative actors implementing law have no independent reserve to make free-standing ideological determinations that are not incorporated into the law itself. A different way to put it: law is political in the legislatures, but when it is being interpreted or implemented, courts must discover the political choices embedded in the law itself.

  The Court also endorses a law and politics distinction, as a constitutional matter, when it comes to judicial independence. It says that judicial independence is “the lifeblood of constitutionalism in democratic societies” (Ell, at para 45), which “flows as a consequence of the separation of powers” (Provincial Judges Reference, at para 130). Judges should not, at least as a positive matter, render decisions that are infected by ideology—because it is the legislature’s job to make judgment calls based on political considerations, economic tradeoffs, or otherwise.

I could go on with examples of how our Court—and our system—endorses a separation between law and politics. For what it’s worth, and no matter the descriptive reality, I believe there is wisdom in articulating limits to the free-standing ideological whims of administrators and judges. Of course, these limits will not be perfect, and they will not reverse the reality that implementation and interpretation will sometimes be driven by results. But the use of rules, standards, and principles to cabin these free-standing policy preferences can be useful in ensuring that state actors and judges justify their decisions according to certain, universal standards.

Two examples could be offered. First, in statutory interpretation, we have semantic canons, presumptions, and tools to try to determine the authentic meaning of law. These “off-the-rack” tools and presumptions are far from perfect, as Karl Llewelyn once pointed out. They can be contradictory, and they are not axiomatic laws of nature that lead inexorably to certain results. But we have these rules for a reason. We use them because we have made an ex ante judgment, over the years, that they will help interpreters reach the authentic meaning of legislation (or, if one is an intentionalist, the authentic intention of legislatures). We do not expect judges to distribute palm-tree justice when faced with a law. Instead, we expect judges to justify their interpretive result through the prism of these canons and presumptions, because they are semantically and substantively useful. We do this because there is a law and politics distinction between legislative work and judicial work, endemic to our Constitution.

Of course, there is a recognition that legal principles may themselves have a certain political valence. Presumptions of liberty, substantive equality, strict construction of taxation laws–all of these rules could be said to contain certain “political” suppositions. As I have written before, I am generally not supportive of certain substantive presumptions of interpretation that put a thumb on the scale. But as Leonid Sirota writes, some of these presumptions are plausibly connected to the legal system–in this sense, they are political, but they represent values that are endemic to the legal system as it stands. Substantive equality is similar. It can, at least plausibly, be traced to the text and purpose of s.15 of the Charter. These are principles that have some connection to our legal system; they are not representative of the whims of the particular interpreter in a particular case. At any rate, forcing interpreters to justify their decisions is useful in itself.

Secondly, Doug Ford’s recent decision to invoke the notwithstanding clause presents a good difference between the ways in which law can be political, and the ways in which it should not be. When a government invokes the notwithstanding clause, it is not necessarily an exercise of reason. It could be a blunt assertion of legislative power. Now, that assertion of power can be justified by any number of considerations. If some detractors are correct, for example, Ford’s use of the clause in this case could simply be designed to punish his opponents. Less likely, it could be a good-faith attempt by a legislature to come to a different definition of a rights-balance. Whatever it is, the use of the notwithstanding clause is an exercise of power that could be motivated by distinctly political aims. In this way, legislation is quite clearly political.

However, and even if naked political judgments are not justiciable once invoked under cover of the notwithstanding clause, the public may wish to articulate a different justificatory standard for the use of power that is legalistic in nature. As Geoff Sigalet & I wrote here, the public may wish to subject politicians who invoke the notwithstanding clause to a standard of justification—the politicians should offer legitimate, objective reasons for the invocation of the clause. Again, this is not a legal requirement. But as a matter of custom, it is a requirement that the public may wish to impose on politicians as a check on rank political judgments. By imposing such a standard, the public can disincentivize uses of the clause that are not backed by solid, legal reasons.

None of this is new. Indeed, Dicey argued that for the Rule of Law to flourish in any society, the society must contain a “spirit of legality” that is separate and apart from any limits imposed on power by  courts themselves. This spirit of legality presupposes that there are some areas where the public should expect better than rank political and ideological judgments. Of course, the law & politics distinction is a matter of some controversy, and I cannot address every aspect of the distinction here. Suffice it to say: broad claims that “law is always political” cannot hold. Law is descriptively political in some ways. It does not follow that it should be in all cases. Quite the opposite, sometimes it is best for rules, standards, and principles to cabin the ideological capture of courts and others, as best they can. This will not be perfect, it will not always work, and it is not a mechanical process. But it’s worth trying.

Of Malice and Men

Double Aspect responds to attacks on another scholar

This post is co-written with Mark Mancini

Suppose you say something on Twitter that you wish you hadn’t said. No, actually―if you’re on Twitter―remember that time you said something you wish you hadn’t said? How would you hope that the rest of us would react? For our part, a sad bemused shrug and, perhaps, a friendly private word of reproof sound about right. Well, this is a post about doing unto others, etc.

When Emmett Macfarlane tweeted about “burning down” the US Congress to prevent a successor to the late Justice Ginsburg being confirmed before the presidential election, we cringed a bit. There is too much hyperbole out there, too much violent imagery, too much speaking as if the next election, or the next judicial appointment, is―literally―the end of the world. Twitter makes this phenomenon worse. As Justice Stratas of the Federal Court of Appeal noted in a recent talk, the Twitter world is like the Holodeck from Star Trek―a convincing pastiche of reality. Twitter, in many cases, magnifies our worst impulses.

There is too much of this nonsense on all sides. President Obama, who often modelled grace and calm when his political opponents and supporters alike lacked both, now suggests that questions such as “whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures” turn on who replaces the late Justice Ginsburg. On US political right, the 2016 election was notoriously compared to Flight 93―the plane that crashed in a field in Pennsylvania on September 11, 2001 after the passengers stormed the cabin to prevent hijackers from turning it on their intended target. Similar arguments are being made again. The message is that even death―or at any rate a vote for an avowedly appalling man who would uphold none of the principles one claims to believe―is preferable to the other side taking power until the next election.

So, to repeat, we cringed at Professor Macfarlane’s “burn it down” tweet. And yet we knew full well―as does anyone with a brain and even a modicum of good faith―that it is only a hyperbolic, spur-of-the-moment outburst, not an actual call to arson and violence. Professor Macfarlane’s Twitter persona may be cantankerous, but he is a genuine scholar and a decent man. (Disclosure: one of us (Sirota) has contributed a chapter to a book project Professor Macfarlane edits. You can discount our arguments accordingly, but the diversity of views represented in that project speaks to Professor Macfarlane’s scholarly seriousness and open-mindedness.)

Sadly, there are people who do not operate in good faith at all. They affect to think, or at any rate they say, that Professor Macfarlane was actually threatening violence, and profess worry for the safety of his Trump-supporting students. This is arrant nonsense, a smear with no factual basis whatsoever. Professor Macfarlane’s opinions are neither new nor secret, and those who now betake themselves to the fainting couch haven’t paused for a second to inquire whether he has ever been so much as unfair, let alone threatening, to his students.

These people are as uninterested in truth as they are lacking in charity. They see a political opponent say something that can be―at least to those equally uncharitable―made to look like a threat or a sign of depravity, and pounce to virtue-signal on Twitter, to whip up their allies’ outrage, and thereby to increase their own standing with their in-group. They are hypocrites too, with their feigned outrage about hyperbolic rhetoric which is no worse than that in which they themselves engage. They deserve nothing but unreserved rejection.

A couple of weeks ago, another scholar, Dwight Newman, was disparaged by people who engaged in an uncharitable if not outright twisted reading of his work to impugn his integrity. That was an attack from the left on someone perceived to be on the right. We were proud to give Professor Newman an opportunity to refute their smears (and one of us (Sirota) added a further response of his own). Now Professor Macfarlane is being vilified by people who are trying to make him into an avatar of the unhinged left. Although both the targets of these attacks (an article in one case; a tweet in the other) and their perpetrators (fellow scholars, alas, in the former case; anti-intellectual populists in the latter) are different, they have much in common.

Both need to be defeated. As Justin Amash pointed out just yesterday, limited government―that is, a government that respects democracy and human rights―cannot exist without trust among citizens. To be sure, we need not pretend that our fellow-citizens, let alone our governments, are better and more trustworthy than they really are. But, if we want to continue living together in peace and freedom, we must not pretend that they are worse people than we know them to be for the sake of scoring some political points. To quote another American politician, we must go forward with malice toward none, and charity for all. 

On John Willis and the Pesky Politics of Administrative Law

John Willis was and is considered one of Canada’s most important administrative law academics. As a student of administrative law and the law of judicial review, one cannot skip Willis’ classic works, like his books “The Parliamentary Powers of English Government Departments” and “Canadian Boards at Work”—and his caustic papers, including his attack on the McRuer Report and his famous “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional.” Especially in this latter piece, Willis sets out his comprehensive functional theory of the law of judicial review—that theory holds that courts, with a typically “conservative” orientation, could never understand the difficulties of governments that, post-New Deal, were concerned with social welfare. Accordingly, courts should butt out, in service of the expertise, efficiency, and progressive orientation of administrative decision-makers.

While Willis should obviously be commended and respected as an eminent scholar of administrative law, there is a core problem at the centre of Willis’ thought that should stand as a warning for us in the modern era. Willis fundamentally viewed administrative law as a project of politics. As R. Blake Brown notes in this article, and as Willis himself always argued, the law of judicial review (and administrative law more broadly) was not about legal principles or controls on the administrative state, but was rather designed to limit the interference that legalist, conservative courts could wrought on tribunals pursuing the social good in an expert way. But this sort of thinking runs into two fundamental problems: (1) it ignores the fact that, strategically, administrative power can and has been used to fulfill the policy aims of governments who do not have any designs on social welfare goals—this was a clear blind-spot in Willis’ own work, one that led him to over-trust government; and (2) normatively, as recent Supreme Court and Federal Court of Appeal jurisprudence tells us, there is a meaningful difference between law and politics when it comes to the interpretation and application of laws governing judicial review. Granting deference based on the supposed underlying political motivations of particular decision-makers undermines this separation.

Let’s start by reviewing Willis’ functionalism. Willis self-described himself as a “government man,” and “what actually happens man.” By this he meant he was less concerned about the legal principles of a 19th century constitution, but rather was concerned with the making of “effective government” (see “Administrative Law in Retrospect” at 227). Functionalism crafted doctrine to align with the way government operates and the programs government is responsible for implementing. At the time of Willis’ writing, the struggle for government was the implementation of social welfare programs, closely associated with the New Deal. Delegation to administrative tribunals was one of the ways that these programs were implemented. A functional approach, then, would respect the legislative choice to delegate

In my view, deference to administrative tribunals in the functionalist mould was supported by a number of presuppositions about administrative decision-making, but the most important one for our purposes was what I call the “political” presupposition. Deference on the functionalist account was justified because of the apparent political valence of the decision-makers under review and what they were designed to achieve. Says Michael Taggart (at 257), describing the functionalists of the era:

These left-leaning scholars were deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and the powerful, and defeating the purposes of statutes intended to further the interests of the workers, the homeless, and the least well-off in society.

Deference on functionalist grounds was therefore a reactionary force, one that was a political project designed to fight back against the supposedly conservative orientation of the courts, that used legal principles to stunt the social welfare programs of governments.

Willis himself clearly fell in this category. A social democrat, Willis railed against any sort of thinking that would interfere with the prerogatives of government, undertaking social programs. He viewed government as fundamentally changing in light of the New Deal:

The State had changed its character, had ceased to be soldier and policeman, and was rapidly becoming protector and nurse…Again the right of the community bulk larger than the rights of the individual (See Parliamentary Powers at 13 and 51).

Risk described Willis’ functionalism as such:

Willis’ thinking about law and government can best be summarized by dividing it into three parts. The first is his observations and attitudes about government and its institutions….He perceive the nature and extent of the expansion of government, and its implications for the structure and functions of the legal institutions. He perceived a changing relation between the individual and the community, and how legislative policies were expanding the claims of the community against the individual, and circumscribing common law ideals….He had a great faith in experts, and he believed the courts should give liberal scope to the agencies on review (see Risk, at 545).

The political appreciation of administrative tribunals as representing the needs and wishes of the “community” was a constant thread through Willis’ scholarship advocating for a judicial “hands-off” approach to decision-makers like labour boards.

So, what are the problems with such an approach? To my mind, there are two. First, Willis’ political approach to deference fails on its own terms: it fails, on any complete account, to actually reach an ideal of social justice. This is because deference itself has no political valence, and can be easily used to vindicate decisions of administrators that run counter to social justice. And secondly, on principle, a political approach to deference runs counter to our positive law and to the good reasons for it.

Let’s first tackle the issue of social justice and its connection to doctrines of deference. As I’ve written time and time again, using deference as a means to reward the  decision-makers we like –because we ascribe to them some political ideal—is an unprincipled and politically naïve way to view the law. Let’s start with the latter contention. Willis’ supposition seems to be that courts themselves cannot be trusted to uphold the purposes of ameliorative legislation because of their conservative orientation. But it is not axiomatically true—and in fact, it seems bizarre—to suggest that deference will always serve to advance social welfare principles. It does no such thing.

The development of the administrative state is simple proof of this. When Willis was writing, he made the near-sighted appreciation that deference supported the administrative state as it existed at that time. At that time, observers were mostly concerned with labour tribunals, who were seen as consummate experts in their craft. But Willis either did not predict that deference would and could also have to attach to tribunals he did not appreciate under his social welfare rubric. That is, and I have said before, there are other aspects of the administrative state that do not map so neatly onto any past or modern description of social justice. Prisons, an area of interest for me, come to mind—perhaps the place where administrative discretion, at least prior to the CCRA, was most unbounded. Another example, that of immigration decision-making,  also comes to mind. What, beyond brash politics, justifies treating these tribunals any differently?  If one believes in deference, how can one say that prisons are any less deserving of deference than any other decision-maker?

This does not strike me as a consistent approach based on social justice. Later in Willis’ career, this thought must have occurred to him. That is because, in his “Administrative Law in Retrospect,” Willis addressed the question of a number “fashionable cults” which, to him, were negatively affecting the prerogatives of government:

This is very interesting coming from someone who is committed to social justice. How could it be consistent, if one accepts some political justification for deference based on social justice, for Willis to deny prisoners a right to be heard? Why are prisoners less good, in Willis’ eyes, than unions before a labour board? Willis’ myopic conception of social justice was profoundly underinclusive, even on its own terms.

Another explanation of this oddity is that Willis was not committed to social justice at all. Rather, it is very likely and possible that Willis was indeed a “government man” in the most literal sense of the term. Any action that could offend a government prerogative, in his eyes, was abhorrent. So the “cult of the individual,” and prisoners, all serve to run against government, even if government offends social justice. But this stands inconsistently with the idea of social justice. Social justice, on any cohesive account, is not about empowering government for the sake of government. The problem is that government can act in ways that contradict the theory of social justice

The above point challenges Willis on his own social justice terms, but there is an external, doctrinal reason to be wary of Willis’ approach to deference. It is indeed true that the fight for deference in Canada is overlayed by considerations of politics. After all, the laws delegating power to decision-makers—or laws that work to limit the scope of power for these decision-makers—are passed against the backdrop of a legislature that is a partisan organ. But that is a separate matter altogether from the actual legal justifications for deference, which like the interpretation of statutes, should be a separate concern from politics. Luckily, our law recognizes this fact clearly, and does so for good reasons. Vavilov, for example, does not base deference on any good-faith presumptions about the expertise of decision-makers. Now, the very fact that the legislature delegated power—any power—to any decision-maker is a fact worthy of deference. The tool of delegation as the grounds of deference has the benefit of being agnostic as to how one can judge, politically, particular tribunals. And Vavilov itself (at paras 120-121) cautions against reverse-engineering doctrine to suit a desired outcome. Clearly, Willis’ political approach to doctrine (and the arguably political approach of the common law courts) run afoul of our current law, which erects a clear separation between deference as a doctrine and the political results of a deferential approach. Justice Stratas in the Federal Court of Appeal has made a similar point in the context of statutory interpretation and judicial review: see Williams, at para 48; Cheema, at para 74; and Hillier, at para 33.

While that is the state of the positive law, it is the positive law for a good normative reason. It is orthodox today in the academy that law cannot be meaningfully separated from politics. It is even true that some say that any attempt to do so is necessarily “reactionary” or “conservative.” But this contention does not take account of the different parts of law-making and interpretation, and the very purpose of law itself. As I mentioned above, it is of course true that laws reflect the political consensus of the legislature at the time they are passed. It would be wrong and overbroad to suggest that the making of law is or should be divorced from the political process: indeed, it is the function of our legislatures to make laws that, at least in theory, are undergirded by the support of a majority. However, this is a completely separate act from the interpretation of laws. Laws, in order to be consistent with at least one aspect of the Rule of Law, must be general rather than specific; and when a judge interprets a law, she does so to give the meaning to the text, context, and purpose of the law that is enacted on the page (even purpose, as I discuss here, is usually and ultimately guided by text). The task of interpretation of laws should not be governed by consideration of politics; of what this or that judge thinks of this or that tribunal. Should it be the case that judges grant deference because of their political views, we will go along way towards undermining our separation of powers between courts and legislatures, imperfect as it is in Canada.

Of course, it is impossible to say that politics will never enter the interpretive activity. But that is a different question altogether than how doctrine is constructed. Ideally, the way we theorize deference and interpretation should not be based on political musings; rather, theory should be based on the foundational principles of our legal order, including the choice of a legislature to delegate power and the core interpretive function of the courts. It might be orthodox to suggest otherwise these days, but in my view, the very purpose of law in the law of judicial review is to enforce the limits that legislatures themselves provide—no matter how wide or loose they are—on administrative decision-makers. It should not be the role of the courts, as Justice Stratas so eloquently says in the above-cited decisions, for courts to pick winners and losers based on politics.

Back to Willis. John Willis’ contributions to Canadian administrative law will live for the ages. But his approach to the law of judicial review should not be celebrated wholesale. Willis’ cardinal mistake was falling victim to the game started by the “conservative” common law courts. If it is true that those courts struck administrative decisions because they did not appreciate the social welfare function of those agencies, that runs counter to our governing law and the good reasons for it. But today, Willis is still celebrated; the common law courts are not. I think it is fair and appropriate to draw attention to the blindspots in Willis’ theory: his myopia regarding what he thought was “social justice”; and the specious attempt to import deference based on some political justification.

Telling People Whom to Vote for

An illiberal community seeks to dictate its members’ votes. How can, and should, the law respond ― and quite how different are liberal democracies anyway?

When it comes to election campaigns, where does permissible ― and perhaps even laudable ― persuasion end, and deplorable ― perhaps even illegal ― manipulation or indeed coercion begin? This is a fraught question, as a recent story by Sally Murphy for Radio New Zealand illustrates.

The story concerns what seems to be an totalitarian and abusive fundamentalist religious community, whose leaders seek to dictate not only how members will live, but also how they will vote:

Former members of Gloriavale Christian Community say people still there do not have the freedom to vote for who they want in the general election. … [T]hose inside don’t have free access to the internet or news sources and are told as a collective who to vote for. … One former member … told RNZ Gloriavale leaders would choose which politicians would come and talk to the community before an election. 

“They would talk about their policies and what they would do for us then when they left there would be a discussion, but it was usually only a couple of the leaders who would talk,” she said. “They would say we like this party because of this policy and that we should all vote for them because it’s best if we vote as a collective.” 

It seems fair to infer that current members are likely not to feel free to cast a vote at odds with the preferences of their leaders. But does that mean that something untoward or illegal is going on, and further, that something can, or should, be done?


Consider, first, existing election law. (I am leaving out the charities law aspect of this issue, mostly because it’s not my area of expertise. For a discussion of the restrictions on charties’ ability to engage in politics in the Canadian context, see this guest post by Benjamin Oliphant; and for a broader discussion of the tensions at work in the regulation of charities, this guest post by Kathryn Chan.) Section 218 of the Electoral Act 1993 makes it an offence and a “corrupt practice” to

make[] use of or threaten[] to make use of any force, violence, or restraint, or inflict[] or threaten[] to inflict … any temporal or spiritual injury, damage, harm, or loss upon or against any person, in order to induce or compel that person to vote for or against a particular candidate or party … or on account of that person having voted for or against a particular candidate

But ― going by the statements quoted in Ms. Murphy’s story ― no threats are being made in relation to voting specifically. Gloriavale members are told to vote a certain way, but not actually threatened with reprisals if they do not. Besides, as the Electoral Commission points out, the secrecy of the ballot ought to mean that all voters, including Gloriavale members, can “express their preferences free of outside influence or coercion”.

Beyond threats, the regulation of the persuasion of voters focuses (in various ways) mainly on spending and to some extent on the use of mass media, especially broadcast media. Private, face-to-face exhortation is not targeted, and it would be absurd if it were. Would we want political conversations within families or among friends and co-workers to be subject to regulation? I should think not, even though some of these conversations may be emotionally charged, and people may be uncomfortable, or even distressed, at the idea of going against the wishes or preferences of those close to them. Again, the primary remedy for such situations is ballot secrecy, with section 218 outlawing outright threats.

If the Gloriavale leadership is not breaking election law, is it nevertheless acting immorally in seeking to influencing the members’ votes, and should the law be changed? Again, in relation to voting specifically, it’s not obvious to me that a wrong is being done. All sorts of people and entities tell us to vote one way or another. I don’t think that they necessarily wrong us just by doing so ― even if these people are close to us and may be reluctant to offend or contradict them. Just as it would be absurd to have legal rules regulating political discussions among friends, family members, or other close associates, I think a moral rule to this effect would be contrary to widely held views of both of a good life and of good democratic citizenship. The latter, in particular, surely permits people to urge others to vote in ways they consider to be better for the community.

What makes the Gloriavale situation disturbing is the broader atmosphere ― the habit of obedience and the limitation of alternative sources of information and opinion imposed on its members. People who tell us, even quite forcefully, that we should vote one way or another do not wrong us if the choice is ultimately ours. People who keep us from making an informed choice wrong us even if they do not impose their own preferences. Imagine, hypothetically, that the Gloriavale leadership did not tell the members how to vote. To the extent that they are simply denied information from the outside world, the members would have no idea, and would not be in a position to make a more meaningful choice than they are now, and those responsible for putting them in this position are to blame.

However, election law is not the remedy for such cases. The challenge of illiberal and authoritarian communities within their midst is not an easy one for liberal societies, but to the extent it can be solved at all, the solution has to be at a rather more fundamental level. Perhaps ironically, though, extreme examples like Gloriavale can help us reflect on the fact that liberal societies themselves are not entirely innocent of trying to restrict the information and choices available to their members.

Hard restrictions are, admittedly, rare. Yet not non-existent. In New Zealand, the Classification Office, headed by a Chief Censor, is empowered to ban publications in various media. While that outfit’s website’s proclaims that its enabling legislation “does not regulate political speech, the expression of opinions, or ‘hate speech'”, it has notoriously banned the Christchurch shooter’s “manifesto”, which is obviously an example of ― horrible ― political speech. As Ilya Somin has shown, reading it, in all its gruesomeness, is actually instructive. But New Zealanders are not permitted to do it, because the Chief Censor, on his own motion, decided that he knew better. In some other democratic countries, especially in Europe, political choices can be restricted by the authorities banning political parties deemed opposed to democracy or the existing constitutional order.

Of course, these are extreme examples. There is no equivalence between excluding some outlier political options while preserving a wide range of choice and excluding all options but one. Arguably that the most important thing about democracy is not the ability to vote for one’s preferred agenda ― which constitutional constraints or the vagaries of the electoral system, not to mention a shortage of people who agree with it and are willing to run for office ― might make impossible, but simply the ability to make some kind of choice, and so to throw the bums out from time to time. Still, the censorship impulse has a common foundation in both cases ― the distrust of people’s ability to make acceptable choices, and a confidence in one’s ability to choose on others’ behalf.

And softer, more insidious ways of shaping the range of choices available to voters are common. How do teachers are university professors speak about political views outside the mainstream ― or outside what they perceive as the mainstream? How, if at all, do the media cover unorthodox politicians, at least those who do not also happen to be celebrities? Are the above-mentioned regulations of spending on election campaigns structured so as to favour established parties ― as they are in New Zealand, for example, with the allowed spending on broadcast advertising dependent, in part, on a party’s share of the vote in the previous election? To ask these questions is not, by itself, to advocate for root-and-branch reform of the education system, the demise of the legacy media, and complete deregulation of electoral campaigns. But here again the effects of seemingly disparate and often well-intentioned policies and practices commonly followed in liberal democracies are a little less different from those of the practices of demonstrably illiberal communities than we might be quite comfortable with.


The difficulty of ensuring that all voters, including those who happen to belong to heterodox and illiberal communities, are able to take a meaningful part in an election if they wish to should not stop us from trying. Features of the electoral process that help facilitate meaningful participation and might strike us as obvious today, such as the secret ballot, did not always exist: they had to be invented, and the law had to be changed to implement them. One should of course be wary of unintended consequences, including those of well-meaning but excessive regulation. But perhaps there are ways to make things easier for members of Gloriavale and others caught in similar situations, without introducing unnecessarily intrusive laws. But as we look for such solutions, we should remember that existing laws and practices constrain the range of political choices available to all citizens, and that some of them have effects that differ in degree, but perhaps not in kind, from those of the impositions at Gloriavale and elsewhere. Not all authoritarians in our midst are content to run cults.

A Tale of Two Scandals

Partisanship is undermining political accountability and constitutional checks and balances

This post is co-written with Mark Mancini

Here some harsh—yet entirely justified—words about unconstitutional actions of the executive branch of government:

[N]ot only were there no clear means of constitutional restraint, there was obvious intent to accomplish the scheme well outside the public eye. The scheme was blocked by the unlikely combination of whistleblowing and informal political pressure. Even worse, a defiant [executive] refuses to admit to any wrongdoing at all—even calling the key piece of evidence … a “perfect” call. It was essentially our good fortune (through the courage of the whistleblower) that the [voters] have access to partial information about the scandal so they can factor it into their electoral calculus. What’s the constitutional check for misconduct of that kind? Citizens can’t run to court to block this particular abuse of … power. We can’t even count on public knowledge for public accountability. The [executive] is still actively holding back material evidence. (Paragraph break omitted)

And here’s a trick question: what scandal is being described here? Is it Donald Trump’s attempt to use aid granted by Congress to suborn a Ukrainian announcement of an investigation into a political rival? Or is it Justin Trudeau’s attempt to have a prosecution of a corrupt engineering company stopped from going to trial to avoid financial difficulties for that company―and political embarrassment in Québec? The answer is, technically, that it’s former. The quotation is from the January 22 instalment of “French Press”, the thoughtful newsletter written by David French for The Dispatch. (While we’re at it, may we recommend Advisory Opinions, an equally thoughtful podcast Mr. French co-hosts with Sarah Isgur?) But, by our lights, Mr. French might as well have been writing about l’Affaire SNC Lavalin.

There too the effective head of the executive branch and his political henchmen sought to pervert the course of the execution of the law in their partisan interest. There too, they were discomfited by the unlikely decision of an official to blow the whistle instead of doing their bidding, and the resulting political pressure. There too, this political pressure was enough to arrest the illicit scheme itself, but not to bring about any real acknowledgement of wrongdoing; on the contrary, the master of the executive branch made a great show of having acted in the public interest. There too only partial information was allowed to filter out into the public domain through the medium of legislative hearings, and claims of executive privilege were raised to prevent key witnesses from speaking, or at least speaking fully. There too the courts would have been of no avail in any attempt to get to the bottom of what happened. The similarities between the two scandals are striking.

There are also some meaningful differences, to be sure. For one thing, the person who stood of in the way of the Trudeau government’s scheme to save SNC Lavalin was none other than the Attorney-General. No such high-ranking official has stood up to the Trump administration’s plans. For another, some heads have rolled as a consequence of l’Affaire SNC Lavalin: those of the Prime Minister’s principal secretary (albeit that he made a comeback only months later) and of the head of the civil service. Whether even such imperfect accountability is visited on the Trump administration is, at present, very doubtful. Another difference: obstructive as they have been, the members of Mr. Trudeau’s party in Parliament didn’t stonewall the investigation into his government’s misbehaviour to anything like the same degree as the members of Mr. Trump’s in Congress.

Still, this would be thin gruel for customary Canadian self-congratulation. In response to arguments to the effect that, since the executive’s shady plans were not allowed to come to pass, our constitutional system is working more or less as it should, we expressed here the

worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

Our constitutional system, we suggested, lacks the checks and balances that would ensure, or at least make it sufficiently likely, that a lawless executive could not get away with it. In particular, we were skeptical about the ability of the rules and conventions surrounding the accountability of the executive to Parliament to do this work.

Although we did not say much about this in that post, an important reason for this is partisanship, particularly the strong form of party discipline that characterizes the Canadian system. A majority party lines up behind the government formed by its leader, and has every incentive to close ranks, even at the cost of public-serving accountability. This is the inherent flaw of responsible government, which means that the ministry must have the support of a parliamentary majority (or at least an unchallenged plurality). In theory, this subordinates the executive to Parliament. In practice, the power dynamic is more often than not precisely the opposite. Of course, the obverse of this flaw is the executive’s ability to govern effectively and to implement its legislative agenda. All constitutional arrangements come with trade-offs. The question is not whether we can avoid trade-offs altogether, but whether we have made the right ones.

What is disheartening is that in the United States, whose constitutional framers made different trade-offs from ours, and where a different ― and seemingly more robust ― set of checks and balances was put in place to contain the executive, the same problem seems to have nullified those checks and balances. Mr. French writes that “[w]hen presidents work in secret to substitute their personal priorities for the public good … impeachment is the difference between punishment and permission when a president abuses his power while conducting affairs of state”. Yet if the president’s partisan allies refuse to even recognize the legitimacy of this procedure, they make him (or eventually her) just as unaccountable as a Canadian Prime Minister able to command a Parliamentary majority.   

This is not necessarily to disparage anything and everything about political partisanship. A case can be made for the proposition that Mr. Trump’s election to the presidency is the consequence of weak parties as much as of strong partisanship. But it should be clear by now that adjusting our constitutional systems to strong, and perhaps hypertrophied, partisanship is a challenge that a variety of democratic polities must face, and quickly. Our political scandals sound similar because our constitutional weaknesses are.

Shooting Gallery

A proposed invocation of the Charter’s “notwithstanding clause” in New Brunswick is misguided and disturbing

New Brunswick is the fourth province in the last couple of years, after Saskatchewan, Ontario, and Québec, to announce plans for invoking section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the “notwithstanding clause”, to immunize a bill from scrutiny over possible violations of the Charter. This confirms the trend towards a normalization of the use of the “notwithstanding clause”. Indeed, I think that, if the bill is enacted, it will reinforce this trend considerably, because it is, in substance, a much more serious piece of legislation than the crassly populist, my-way-or-the-highway ukases of Ontario and Québec which, if nothing else, at least continued giving the “notwithstanding clause” a bad name.

Bill 11, just introduced in the provincial legislature, creates a requirement for school pupils to provide proof of vaccination, subject to an exemption on medical grounds alone, and not for conscientious or religious objectors. It is, therefore, a plausible response to the worrying spread of preventable infectious diseases due to the failure of misguided parents to vaccinate their children. As the CBC report on the story notes, “[t]he Public Health Agency of Canada says the risks associated with vaccines are very low”; but anti-vaccination activists still insist that mandatory vaccination amounts to “state and pharma control over Canadian children”, and are gearing up to fight it in the courts.

The CBC quotes New Brunswick’s education minister as claiming that having the mandatory vaccination requirement operate “notwithstanding the provisions of … section 2 and sections 7 to 15 of the Canadian Charter“, as well as, for good measure, the provision of the provincial Human Rights Act that bans discrimination in services, (Bill 11, cl 4) will save “‘expensive court costs’ resulting from … challenges ‘by folks who’ve got nothing but conspiracies and medieval fantasies to base their arguments upon'”. The minister doesn’t say, apparently, whether he thinks such challenges would have any chance of prevailing. Nor does he seem to be advancing any particular view of the relevant rights, or even to have much of a view about which rights are relevant here: why do mandatory vaccinations have to be imposed “notwithstanding”, for example, the right of a party to court proceedings to the assistance of an interpreter (protected by section 14 of the Charter)? I doubt the Minister has a clue. He just wants to preempt litigation challenging his bill.

Once again, this is not a good look for those who defend the “notwithtanding clause” as giving political actors a chance to engage in meaningful debate about the scope of constitutional rights or the justified limits to which they can be subject. As I wrote about the Saskatchewan case, ” real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves”. The evidence that has accumulated since then supports this view, not that of, for example, Geoffrey Sigalet and Joanna Baron who celebrated Québec’s invocation of the “notwithstanding clause” as “an opportunity for democratic renewal”. And in the New Brunswick case there isn’t even a (possibly mistaken) judicial decision to disagree with. The minister doesn’t even consider it worthwhile to hear from the courts before imposing his view. This makes sense if, and only if, his view is motivated by considerations of convenience, on which the courts indeed have nothing interesting to say.

As I also wrote after Saskatchewan invoked the “notwithstanding clause”, despite what the fans of the “notwithstanding clause” believe, there can be no

tertium quid, some sort of happy Canadian middle ground between Parliamentary sovereignty and judicial enforcement of constitutional rights. If the norm against using the notwithstanding clause disappears, then it will be used proactively, profusely, and promiscuously. Like the Saskatchewan government now, others will use it whenever they think their policy ends justify the means, without paying attention to the rights the constitution is supposed to protect.

It gives me no pleasure to say this, but: I told you so. And, to repeat what I said at the outset, I worry that the use of the “notwithstanding clause” in the service of what is arguably a worthy cause will only accelerate the decay of what’s left of the norm against it. One could previously hope that, just like the feckless Robert Bourassa’s resort to the “notwithstanding clause” in the face of nationalist backlash against Ford v Quebec (Attorney General), [1988] 2 SCR 712 gave it a bad name, so would reliance on it by the populist, borderline authoritarian governments in Ontario and Québec in the last year. But now, the argument becomes: “the ‘notwithstanding clause’ is not just for populists!” There is a danger, moreover, that people will get the impression that the Charter stands in the way of good and useful public policy. Yet this is, to say the least, far from clear from this case. (Indeed, I think that the New Brunswick government would not have an especially difficult time defending mandatory vaccinations against a Charter challenge. If mandatory pictures on drivers’ licenses are constitutional in the name of public safety, surely vaccinations are too.)

When writing about the Saskatchewan case, I compared the “notwithstanding clause” to a loaded gun that the Charter’s framers left on the Canadian constitutional stage. As Chekhov wrote, a gun is not placed on a theater set by accident: it must go off. I was still hoping, though, that the law is different. I wrote that

constitutional actors are not comedians. Even if they are put in a position where a loaded gun is within their reach, their responsibility is not to fire it, but to keep it safe if they cannot unload it, and to instruct those who follow them to do likewise.

Not the current generation of Canadian politicians though. Too many of them seem to think that elected office is a shooting gallery.

The one ray of hope in all this is that Bill 11 might not yet become law. It will, the CBC reports, be subject to a free vote. Perhaps cooler, or more constitutionally-minded, heads will prevail, and disarm the Minister. If not, the constitutional rights of all of us, and not just anti-vaxxers, risk being among the casualties.