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.

The System Is Working

Environmentalist groups have a point when they say they are being muzzled by Elections Canada; trouble is, that’s exactly how the law is meant to work

As the media reported earlier this week, environmentalist groups are angry at Elections Canada, which has warned them that spending money to raise awareness of climate change in the run-up to the coming federal election would subject them to the rules on “third party” participation in election campaigns. Many are feeling that they will be required to keep quiet during the campaign, which rather defeats the purpose of being advocacy groups. Even the BBC has a story on this.

For its part, Elections Canada has issued a response claiming that the Canada Elections Act doesn’t prevent advocacy groups from advocating, so long as they register if they spend $500 or more and comply with the spending cap. Elections Canada adds that the registration requirement “leads to increased transparency” and has been in place “for nearly 20 years”. Helpfully, I suppose, the statement concludes with an acknowledgement that the rules “can be complex”, and Elections Canada is happy to answer questions about them.

The rules are indeed somewhat complicated, as I explain below. But the bottom line is simple enough. Despite the officials’ protestations, NGOs ― be they environmentalist or other ― have a point when they say that they are being muzzled. To some extent, that’s what the Canada Elections Act is designed to do; to an even greater extent this might be an unintended consequence of the Act’s pursuit of transparency, but an entirely predictable one. The issues are well known; I, for one, raised them in my statement to the House of Commons Select Committee that considered the latest round of amendments to the Canada Elections Act. The only surprising thing is the degree to which people still end up being surprised when problems of sort arise.


The Canada Elections Act‘s regulation of political spending is predicated on the idea that attention during election campaigns should be focused on politicians ― individual candidates and political parties, especially parties. Parties, if they run candidates in all ridings, are able to spend tens of millions of dollars on advertising ― which they are entitled to buy at favourable rates, in addition to an allowance of free airtime. Non-politicians ― that is, individuals, labour and student unions, corporations, and NGOs ― are known as “third parties” in the election law jargon and, as I explained here, their participation in electoral debates is viewed as anomalous, indeed suspicious, and is strictly limited.

One set of limits concerns the amounts of money third parties are allowed to spend, which are only a small fraction of the spending allowed political parties. The Supreme Court has upheld the limitation of third party spending during election campaigns, notably in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although there is good reason to be critical of that decision, which I have even rated as one of the worst in the last fifty years. (As I noted here, the High Court of Australia was also quite skeptical of Harper in a recent decision.) Last year, Parliament enacted further limits that apply even before the formal campaign begins, and their constitutionality has not yet been tested; Harper, in my view, does not dispose of the question.

In addition to spending limits, “third parties” are also subject to onerous registration and reporting requirements. Some of these are the cause of the latest dust-up. Specifically, Division 1 of Part 17 of the Canada Elections Act imposes such requirements on “third parties” that incur more than $500 of expenses on, notably “partisan activities” and “partisan advertising” during the “pre-election period”, which begins on June 30 of the year for which a fixed-date election is scheduled and ends with the start of the election campaign. During the election campaign itself, governed by Division 2 of Part 17, “election advertising”, as well as “partisan activities” count for the spending thresholds that can trigger registration and reporting requirements.

The definitions of “partisan” and “election advertising”, found in section 2(1) of the Canada Elections Act, are very broad. The former term “means the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes” a party or a candidate, further defined in section 2(7) as “naming”, “identifying” (“including by … logo” or picture, as the case may be, and “providing a link to an Internet page that” names or identifies the party or candidate. “Election advertising” includes the same things as “partisan advertising”, but also “taking a position on an issue with which a … party or candidate is associated”, even without naming that party or candidate. Since issues with which no candidate or party “is associated”, come election time, are about as common as colour pictures of a Maple Leafs Stanley Cup parade, the definition of “election advertising” encompasses pretty much any advertising that has anything to say on matters of government or policy.

Now, some means of communicating with the public are exempted from these definitions. In particular, the exemptions cover anything that the media will print or broadcast without charge to the speaker ― things like quotes in news items, interviews, and op-eds. Also exempt are organizations’ communications with their members, shareholders, or employees, as well as “the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views”. Note, though, that on its face the latter exemption doesn’t cover ― indeed, it rather pointedly excludes ― a group’s or an organization’s online communications, even if not paid for (for example, tweeting under the organization’s handle). And of course, any communication that the media are not interested in carrying free of charge will count as an advertising. In effect, for groups and organizations, the media are the gatekeepers of their ability to communicate with the public without having to register as “third parties”.

So what’s the big deal about registration? Well, although you won’t know it from the Elections Canada statement linked to above, registration doesn’t just mean filling out a form. There are a number of other requirements. To begin with, unions and corporations cannot register before their board has adopted a resolution authorizing them to incur expenses on “partisan” or “election advertising” (sections 349.6(5) and 353(5) of the Canada Elections Act). All “third parties” are also required to have a “financial agent” who will be responsible for collecting money to be spend on “partisan” or “election advertising” and for spending it (sections 349.7 and 354). These transactions must be done through a separate bank account (section 358.1) After the election is over, a detailed report on the money collected, advertising taken out, and costs incurred must be filed (section 359). And this is not all. Those “third parties” that spend more than 10,000$ are also required to file interim reports during the course of the election campaign and, most significantly, to appoint auditors (section 355) and file the auditor’s report on their spending (section 360).

Needless to say, this is all quite costly, at least in time, but also ― especially for those third parties that spend more 10,000$ ― in money. Big trade unions, whose budgets are extracted from workers who don’t get a say on whether to contribute or on how the money is spend, may not be especially troubled by these costs. But for NGOs, whose income comes from voluntary (albeit taxpayer-subsidized) donations, and which need to be much more careful about how they spend it, compliance with the Canada Elections Act may be too expensive. From their perspective, the sensible if unfortunate thing to do may well be to keep quiet for the duration of the election campaign, or even starting with the beginning of the pre-campaign period.

This means that for a period of almost four months preceding the election ― the period when the most people pay attention, even if it’s still sporadic and fragmentary attention, to political and policy issues ― civil society organizations may indeed be prevented from expressing their opinion about politicians, except to the extent that the media will let them. Again, the bigger and better-known you are, the less of a problem this may be for you. Smaller groups, whose views are (naturally and fairly) of less interest to the media, will find it more difficult to get across to the voters. The more unusual voices, in other words, are the ones who are the most at risk of being silenced ― in effect if not, perhaps, in intent ― by the Canada Elections Act.

And of course even for larger groups, having to pass through the media means sound-bite-sized interventions have a much better chance of getting across to the voters than anything more serious. Say that a politician or party is anti-environment, or pro-worker, or something equally inane, and the media may well pick it up. But they’re not going to run a detailed report card assessing the competing parties’ platforms on some issue ― but publishing it on an NGO’s website, let alone running it as an advertisement would mean having to comply with burdensome registration and reporting requirements under the Canada Elections Act.


No wonder, then, that environmentalists are feeling muzzled and frustrated. And of course groups pursuing other agendas may be feeling that way too ― or may come to feel that way when the occasion arises. They have more than a little justification. And they shouldn’t be the only ones feeling wronged. The voters should be too. You may not miss the presence of a particular set of activists in the election campaign, but the rules that silence them silence the activists on your side too. You may not be all that interested activists generally have to say, but you should be interested in politicians’ feet being held to the fire.

The ostensible rationale for registration and reporting requirements is that they serve to promote transparency, in addition to assisting in the enforcement of spending limits applicable to “third parties”. It is on that basis that the Supreme Court upheld those requirements that apply in the course of the election campaign ― although not those applicable in the pre-campaign period, which weren’t yet in the Canada Elections Act ― in Harper. Yet one needs to weigh the value of transparency against the costs that its pursuit imposes on those subject to the Canada Elections Act ― and, as I have just explained, on the voters who are being deprived of important contributions to the electoral debate.

The Harper majority’s analysis on this point was quite perfunctory. There is no real discussion of compliance costs and their deterrent effects. Instead, the majority is content to baldly assert that “[t]he appointment of a financial agent or auditor is not overly onerous. Rather, it arguably facilitates the reporting requirements.” [145] Even worse, the majority did not at all consider what I think is the crucial issue: the thresholds at which the registration and reporting requirements kick in. All it said was that the requirements “vary depending on the amount spent on election advertising”. [145] Yet one can accept the principle of imposing such requirements on heavy spenders while also acknowledging that the existing rules go much too far.

In New Zealand, “third parties” are not required to register until they spend NZ$13,200 (ca. C$11,000); more detailed reporting requirements only apply once a “third party” spends NZ$100,000. (Even then, third parties aren’t peremptorily required to provide an auditor’s report, although they may be asked to do so.) These strike me as rather more reasonable figures than those in the Canada Elections Act, though even they should probably be multiplied several-fold to account for the fact that New Zealand’s population is only a small fraction of Canada’s.

It is difficult to believe that a “third party” spending a few thousand, or even tens of thousand of dollars is going to have any substantial impact on an election by itself. At most, it may be successful enough in getting other people ― voters, media, or politicians ― to discuss the issues it is raising. It is this discussion, rather than anything published on an NGO’s website or even a Facebook ad, that might, conceivably albeit theoretically, matter. In the abstract, this discussion might be enriched by more disclosure. In practice, the very real costs of the disclosure requirements end up preventing the conversations from happening at all. I fail to see how the voters benefit from this.


As Elections Canada points out in its response to the environmentalist groups, the “advertising during the election period has been subject to the Canada Elections Act for nearly 20 years”. This is true. (As noted above, rules on advertising in the pre-election period are new.) For about half of this time, it has been known, at least to those who study these things, that the rules tend to hobble not business interests, but labour unions and civil society groups. Colin Feasby wrote about this in 2010; I did (in the context of Québec elections, which are subject to similar but even more draconian rules) in 2012; also in 2012 Tom Flanagan came out in support of rules like those in the Canada Elections Act, whose enactment he had opposed, with the declared intention to muzzle unions; I updated Dr. Feasby’s findings in an article published in 2015. And in my statement to the House of Commons Standing Committee on Procedure and House Affairs when it was studying amendments to the Canada Elections Act last year (which, among other things, introduced restrictions on “third parties” in the pre-campaign period) I specifically mentioned both the registration and reporting requirements’ tendency to muzzle civil society, and the needless low threshold at which these requirements apply. Needless to say, that had no effect on the resulting legislation.

Yet at every election the impact of restrictions on “third parties” seems to surprise. It happened in Québec in 2014, when the Chief Electoral Officer tried censoring a short documentary a group of citizens had produced to oppose the election of the Parti québécois and the enactment of its “values charter”. Eventually, the Chief Electoral Officer changed his mind; but he was wrong to do so. It happened again in Québec in 2018, now with environmentalist groups being targeted. And now it’s happening at the federal level. The system, one might say, is working. It was designed to shut down political debate not dominated by politicians or the media. That’s what it’s doing.

It will be obvious that I don’t think it’s a good system. Like the National Post’s Chris Selley, I think the rules need to be changed. Whether any restrictions on political spending are justified is debatable but, as noted above, one can accept the premises of Canada Elections Act and still support relaxing its requirements a great deal. Ideally, the next Parliament will take up the issue. But there is also room for litigation. Certainly rules on pre-campaign spending, whose constitutionality has not yet been tested all the way to the Supreme Court can be challenged. But perhaps even the registration and reporting rules upheld in Harper could be attacked, provided that the courts are forced to consider solid evidence of their pernicious effects.

The Tragedy of Lord Sumption

Thoughts on Lord Sumption’s views on the relationship between law and politics

In my last post, I summarized at length Lord Sumption’s Reith Lectures, delivered earlier this year. As I noted there, Lord Sumption’s views on politics, law, and the relationship between the two are challenging ― especially, but by no means only, to those of us who support judicial review of legislation. Here, I would like to explain why I think there is much truth in what Lord Sumption says, but also to point out the weaknesses and even contradictions in his claims.

By way of reminder, Lord Sumption begins by arguing that the domain of law has been expanding for the last two hundred years, as people have (once again) turned to the state as the provider of physical and economic security and moral certainty. But this expansion has brought with it concerns that the state’s power reaches too far. Representative politics can help mitigate these concerns by generating compromise and accommodation between majorities and minorities. Yet as politics loses its lustre, people turn to law to control the outcomes politics produces. Law promises (and sometimes delivers) principled decision-making, but it does so at the cost of compromise and accommodation and thus, ultimately, legitimacy. The courts end up creating and defining new constraints on politics, and there is little to choose between such constraints being undemocratically imposed in the name of liberalism or of some other ideology. Moreover, in the long run, politics, with its capacity to legitimate limitations on state power provides better security for rights than the law. Yet politics is ailing. Constitutional reform, and especially constitutional entrenchment, will not save it. If democracy is hollowed out, Lord Sumption grimly concludes, we will not notice, “and the fault will be ours”. (V/7; NB: I will use roman numerals to designate the lecture, and arabic ones for the page in the transcript; links to individual transcripts are in the previous post.)


Significant parts of Lord Sumption’s argument run along the lines drawn by Jeremy Waldron, notably in “The Core of the Case against Judicial Review”. The emphasis on the importance of disagreement and the preference for settling disagreement about rights through the political process, in part because it is more egalitarian than adjudication, sound Waldronian. The skepticism about the capacity of judges, or indeed of anyone else, to find out the truth of the matter about moral issues, is Waldronian too. Lord Sumption does not mention Professor Waldron, or indeed any thinker more contemporary that A.V. Dicey, so it’s not quite clear whether how direct Professor Waldron’s influence on him is. However, original or not, these points are important and bear repetition.

Lord Sumption’s critique of the undemocratic character of “dynamic treaties” ― or, I would add, any constitutional documents interpreted as “living instruments” ― builds on these arguments. He focuses on the judicial creation of rights on the basis that “a modern democracy ought to have” (III/3) them ― or, in other words, of what I have been calling “constitutionalism from the cave” ― as qualitatively different from mere application of fixed texts to new facts. Readers will not be surprised to learn that this strikes me as compelling. Lord Sumption’s argument tracks public meaning originalist views, a point to which I will return, but since he does not disclose his influences, I don’t know whether he is at all interested in originalist theory. It is worth noting that, in a later lecture on “Judicial Review and Judicial Supremacy“, Professor Waldron too has focused on living constitutionalism, and specifically the claim that a constitutional court is entitled “to develop new views about (what the court thinks) the constitution ought to have forbidden (though it did not) and to act on these views” (40) as especially problematic.

One additional point on which Lord Sumption echoes that lecture of Professor Waldron is the rejection of comprehensive systems of values as suitable objects for judicial enforcement. Professor Waldron does not want judges to “begin to think of themselves and present themselves as pursuing a coherent program or policy rather just responding to” (27) individual violations of the constitution that happen from time to time. Lord Sumption’s forceful rejection of values systems ― which he equates with one another for this purpose, so that entrenchment and judicial enforcement of a liberal dogma is, in a sense, no different from that of “Islamic political theology or the dictatorship of the proletariat” (IV/4) ― seems to reflect this concern. If asked to take judicial review of legislation as a given, as Professor Waldron does in the “Judicial Supremacy” lecture, Lord Sumption would also urge a piecemeal rather than a systematic approach as the more modest one.


But Lord Sumption’s argument is not simply a reprise of Professor Waldron’s. What makes him interesting, and challenging not just for supporters of judicial review of legislation but also for critics, is that his vision of politics is a gloomy one. Those who have misgivings about judicial review, including Professor Waldron or, to take a couple of Canadian examples, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench in a lecture on “The Charter and Canada’s New Political Culture” and Joanna Baron and Geoffrey Sigalet in a Policy Options post earlier this year, tend to be fairly optimistic about democratic politics. Professor Waldron, especially in “The Core of the Case”, thinks that democratic majorities will protect rights about as well as courts, although in later work he has recognized that some minorities (such as criminal suspects) might end up being routinely shortchanged by the democratic process. He has also forcefully criticized the views of those who equate the Rule of Law with the protection of property and contract rights and, on this basis, are skeptical of social legislation and the welfare state. Chief Justice Joyal, for his part, has extolled “bold” and

“purposeful” governance … expected to include and achieve … the realization of big and bold federal and provincial objectives [and] to assist in the accommodation and brokering of … diverse and conflicting interests underlying the various societal ills and problems. 

Accommodation and compromise are the best outcomes that Lord Sumption sees democratic politics produce. “Bold” and “purposeful” governance? He seems pretty skeptical. It is not just that he sees and laments the decline in the authority of political institutions ― Chief Justice Joyal saw and lamented that too. More interestingly, I take Lord Sumption to raise the possibility that, even when it functions well, democratic politics is dangerous.

Much of Lord Sumption’s first lecture is devoted to establishing this proposition. Pointing out “rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity” (I/4), as well the voters’ tendency to be “afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with”, (I/6) he seems to echo Lord Acton’s prescient warning, in the Lectures on Modern History, about seeing the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”, (289) though again he does not refer to Acton or to any other source. Lord Sumption’s concern at the far-reaching and unrealistic expectations that people have of government and government’s tendency to restrict liberty to try to meet these expectations points to an ineradicable flaw of democracy.

What is more, at times, Lord Sumption seems to accept that certain rights are could appropriately be entrenched beyond the reach of democratic politics. He mentions, repeatedly, rights not to have one’s life, liberty, or property interfered with arbitrarily or without the ability to challenge the interference in court, as well as democratic rights. At other times, admittedly, Lord Sumption seems to say that, in the United Kingdom anyway, an entrenched constitution ― even, it might seem, one limited to protecting these rights, would be inappropriate. This contradiction is never fully resolved, although perhaps what Lord Sumption means is that a narrowly drawn constitution protecting these rights is theoretically desirable, but does not offer sufficient benefits to be worth the dislocation that would occur if it were to be enacted in the UK. Be that as it may, Lord Sumption’s nods in the direction of a limited entrenched constitution and his support for a fairly robust version of the principle of legality ― including in cases like R (Unison) v Lord Chancellor [2017] UKSC 51, which others have criticized as impinging on Parliamentary sovereignty ― suggest concern at what democratic institutions, if left unchecked, might do to important rights and constitutional principles.

This is what prompts me to see Lord Sumption’s vision of law and politics as tragic. He doesn’t have much hope for law, and says we must trust in politics, but his “praise of politics”, to borrow the title of his second lecture, is damningly faint. If all goes as well as it might, he says, we’ll keep muddling through, and not oppress too many people while lurching between overbearing optimism and fretful censoriousness. And perhaps, all will not go so well, although we will not even notice.


Is this the best we can do? I do not want to give quite so easily, and so I would like to try to rescue law, and perhaps, in a way, even politics, from Lord Sumption’s critique. This is almost a matter of necessity: after all, Lord Sumption himself thinks that some measure of entrenchment may well be justified, or at least excusable, and between that and his admonition to avoid dislocating established and functioning constitutional orders, those of us living in polities with entrenched constitutions should probably try to make them work before thinking about abolishing them. Moreover, even if we agree with Lord Sumption that entrenching rights is a bad idea, we still need to think about structural features of constitutions, to which Lord Sumption pays almost no attention. (This is another element of his thinking that he shares with Professor Waldron.) And besides, I am as worried as Lord Sumption by the overbearing, illiberal tendencies of contemporary democracy, and less willing to resign myself to them.

One question that needs to be asked is whether attempts to impose legal constraints on government are necessarily bound to degenerate into living constitutionalist creation of unwarranted constraints by the courts. Lord Sumption seems to think so. He implicitly accepts the living constitutionalist view that constitutional terms such as “due process of law” have no fixed meanings, and that adjudication based on such terms is inevitably going to answer the question not “whether the right exists but whether it ought to exist”. (IV/5) And, to be sure, there is no shortage of living constitutionalists who agree with him, from the hosts of the Stereo Decisis podcast to Supreme Court judges giving constitutional benediction to rights they invent. As I have suggested here,

if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. 

But while Lord Sumption is right about this, I believe he errs in accepting that adjudication of rights issues must devolve into judicial benediction of rights or ― what is equally non-judicial ― dogmatic deference to legislative choices. In many ― I think in most ― cases, an originalist court that seeks to ascertain the public meaning of constitutional texts, and perhaps to engage in good-faith development of constitutional doctrine based on the texts’ original purposes can actually avoid adjudicating primarily on the basis of its normative priors. As William Baude has pointed out, this requires an effort at self-restraint on the court’s part: the court must accept that its first task is to ascertain the meaning of existing law, without rushing to conclude that this meaning is obscure so as to impose its own views on the parties. But I do not think that such an effort is impossible for courts to undertake. Indeed, even that ostensible champion of living constitutionalism, the Supreme Court Canada, already engages in originalist adjudication, admittedly of varying quality, in a non-negligible number of cases, as I have most recently discussed here.

Emphasizing the importance of constrained, originalist constitutional adjudication ― rather than throwing up our hands and conceding that the courts will do what they please with constitutional texts ― is all the more important because it can help resolve not only cases about fundamental rights but also those dealing with structural aspects of constitutions. Lord Sumption says almost nothing about federalism and separation of powers; to me, the way in which he breezes past them in his discussion of the United States is quite disappointing, a rare moment of incuriosity in an otherwise very thoughtful lecture series. Lord Sumption’s preferred understanding of democracy, as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” (III/7) seems to put structural issues front and centre. And given his sharp comments about the pernicious effects of bypassing the usual parliamentary mechanism in favour of a referendum on Brexit, I think he ought at least to give some thought to the question of whether, quite apart from entrenching rights, the decision-making processes of representative democracy may require robust constitutional safeguards against elected officials inclined to sacrifice them for momentary political advantage.

Ultimately, though, I think that Lord Sumption is too quick to reject the desirability of substantive limits on legislation, as well as to ignore the need for structural safeguards. He thinks that it is not a problem that, under the existing UK constitution, “the limits on what Parliament [or legislatures] can do depend on political conventions [that] derive their force from shared political sentiment which would make it politically costly to disregard them”. (V/2) (The situation is the same under the Canadian constitution except with respect to issues on which the Canadian Charter of Rights and Freedoms has something to say.) Yet Lord Sumption gives cogent reasons to think that democratic politics often do not make it costly for Parliament to overreach and overregulate; and, on the contrary, that voters will, in the long run, demand too much conformity and control. These concerns echo those already expressed F.A. Hayek’s, in The Road to Serfdom. They are not new. They should be addressed, if possible, with more than vague hopes of compromise.

Indeed, I also think that Lord Sumption oversells compromise. He is right that one cannot expect to always get what one wants in politics, and that unwillingness to give an inch to partisan opponents one believes to be unprincipled at best, if not outright evil, is a real problem. But surely compromise isn’t valuable on any terms. To say so is only to encourage extremist opening bids by people who will expect us to agree to slightly more moderate versions of their still unreasonable demands in the name of accommodation. (The Québec government’s defence of its anti-religious dress code as moderate is a good example of this.) Compromise is important, but it cannot always be justly expected. As Lord Sumption himself recognizes, there are laws that make civilized coexistence or full membership in a democratic community impossible.


Lord Sumption’s Reith lectures are well worth listening to or reading, and reflecting on. They challenge those of us who support judicial review of legislation with an accessible but powerful restatement of the Waldronian case against that constitutional device and affirmation of the importance of democracy. They challenge Waldronians and other supporters of democratic institutions with a frank and not at all optimistic assessment of these institutions’ output. They are not right about everything ― but, insofar as they are wrong, they are wrong in interesting ways. As I said in introducing my summary of the lectures, I think that incoming law students, in particular, would benefit from engaging with Lord Sumption’s ideas. But so would those with more experience of the law. I am sure I have.

The Fault Will Be Ours

Lord Sumption on politics, law, and the meaning and decline of democracy

A couple of months ago, Jonathan Sumption, former barrister extraordinaire, recently-retired UK Supreme Court judge, and well-regarded historian too, delivered the BBC’s Reith Lectures for this year, speaking on Law and the Decline of Politics. Despite my delay in getting to them, I think they are worth writing about. Lord Sumption’s arguments challenge most if not all of us in one way or another. I expect that those used to the North American way of thinking about constitutional law will find them more uncongenial than many lawyers in the United Kingdom or in New Zealand, but Lord Sumption’s views do not neatly fit into any pre-defined category, and will have something that will force just about anyone to reflect. (I particularly recommend the lectures to any students who are about to start studying law; they are quite accessible, but will give you an excellent preview of many of the debates you will confront in the coming years, and expose you to a way of thinking that is not exactly prevalent in North American law schools.)

In a nutshell, Lord Sumption’s argument is that, as he put it in the first lecture, “Law’s Expanding Empire“,

law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate. (2-3)

The question is, how does law relate to this larger system? What is the place of law vis-à-vis politics? Should it, in particular, be used to control political outcomes and bring them into alignment with some set of substantive values? Lord Sumption wants to caution us against the dangers he says lying in wait if we go down this path. But it is not because he takes an especially optimistic view of politics. In this post, I summarize the five lectures. (It will, I am afraid, be quite long.) I will comment separately.


Lord Sumption’s misgivings appear especially strongly in his first lecture. Law, he says, is an alternative to chaos. But just how much law (and how many lawyers) do we need? Lord Sumption observes that

Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated title to property, it enforced contracts, it protected people’s lives, their persons, their liberty and their property against arbitrary injury, but that was about all. Today, law penetrates every corner of human life. (3)

It need not be that way. The Rule of Law requires limitation of government power and the protection against interference with life, liberty, and property, as well access to the courts to enforce these limits and protections, but it does not necessarily follow that law needs to be pervasive. Rather, this is something that the voters have chosen, in an ongoing fit of general optimism about the prospects of collective action. Democracy “has inevitably led to rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity”. (4)

Moreover, after a retreat over the course of the 19th and 20th centuries, “a growing moral and social absolutism … looks to law to produce conformity”. Even when there is no real consensus in the community about what how a particular moral issue ought to be treated,

we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with. (6)

It is as if moral judgment, which would have been individual in the past, has increasingly been collectivized. In a growing number of cases, moreover, this judgment has been delegated to the judiciary.

At the same time, there has been a push to take judgments about safety and security away from individuals and hand them over to public authorities, under judicial supervision. As more misfortunes appear preventable, the demands are made for them to be prevented; “we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence”. (7) Yet this is achieved only by “restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves”. (7)

The result of it all, Lord Sumption says, is the comeback of the Hobbesian Leviathan: “[t]he 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place”. (8) And unlike when government was an external, antagonistic force, democratic government “is us”. (8) We both fear and repose our fondest hopes in it.


In his second lecture, “In Praise of Politics“, Lord Sumption asks, “how do we control the potentially oppressive power of democratic majorities without undermining democracy itself?” (2) He focuses on the notion of legitimacy, which he defines as “a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing”. (2) Any government, but especially a democratic one, must preserve its legitimacy. Democracy does this by accommodating differences between majorities and minorities, and securing compromises that mean that minorities do not become “permanently disaffected groups [with] no common bonds to transcend their differences with the majority”. (2) This can be done through representative government or through law.

Representative institutions, in contrast to winner-take-all direct democracy, exist in part to accommodate the interests and demands of minorities. They make compromise possible. Building on the thought of James Madison and Edmund Burke, Lord Sumption argues that “political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors”. (3) They are also better placed to further national “collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment”. (3)

Bypassing the processes of representative government, as was done with the Brexit referendum is dangerous. Compromise becomes impossible, as

52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all. … It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence.

Lord Sumption warns, however, that disengagement from politics calls into question the ability of the political process to generate compromise and legitimacy. Political parties play an important role in securing the accommodation of various interests in policy-making, but as their membership has declined greatly, they are no longer representative of the broader citizenry, and the candidates whom they put forward are increasingly out of touch with the voters. All this “is, in the long
run, likely to lead to a far more partisan and authoritarian style of political leadership”. (5)

Law, the other barrier to oppressive majorities, has become more important as politics has lost its lustre. The politicians’ authority is waning, but the judges’ is undiminished; indeed it is growing:

Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. (5)

The judiciary is now more active than it used to be in policing the actions of other public authorities. It does so, in particular, by enforcing the principle of legality, which Lord Sumption suggests should rather be called “the principle of legitimacy”. The principle is appropriately applied to ensure that Parliament faces the consequences of measures that would amount to, notably, “retrospective legislation, oppression of individuals, obstructing access to a [c]ourt, [or] acts contrary to international law”. However, it can be taken further, and made into a barrier to Parliament acting, even advisedly, in ways the courts simply disagree with.

However much we may agree with the outcomes in particular cases, we should be wary of this empowerment of politically unaccountable institutions. It is not the courts’ function to generate compromise, and therefore legitimacy. The law’s strengths are also its weaknesses:

Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace. (7)


Lord Sumption’s third lecture, “Human Rights and Wrongs” focuses on what he describes as “an unfriendly meeting” (1) between law and politics. The idea of fundamental rights is not new; in earlier times it was expressed through the concept of natural rights. The trouble with it, however, is that

[t]o say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion. (2)

Indeed, “[r]ights … are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice”. (2) How is the choice to be made, how are the differences of opinion to be settled? Appealing to democracy is a problem since the point of rights is to protect people from what democratic majorities might do to them. But what else is there? Neither religion nor ideology work in a democratic society.

Still, there is wide agreement that there are some truly fundamental rights: those having to do with due process of law (though Lord Sumption does not use this label), and democratic rights, such as “freedom of thought and expression, assembly and association, and the right to participate in fair and regular elections”. (3)

Legislators can create further rights, including by subscribing to rights-creating treaties. But what Lord Sumption describes as “dynamic treaties”, such as the European Convention Human Rights (ECHR), as it has been interpreted by the European Court of Human Rights (the Strasbourg Court), whose content keeps being developed by supranational institutions after their implementation in law “escape[] parliamentary control”. (3) As Lord Sumption describes the Strasbourg Court’s jurisprudence, it “develops [the ECHR] by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have”. (3) This goes beyond “applying an abstract statement of principle to concrete facts” that weren’t originally anticipated, or giving effect to “concepts … such as the notion of inhuman or degrading treatment [that] plainly do evolve over the time with changes in our collective values”. (4) Such developments are “a form of non-consensual legislation”. (4)

Good or bad, this judicial legislation is controversial; in any case, law should not be made judges, disempowering citizens. In particular, questions about the limitation of rights, the purposes for which it can be undertaken, and the degree to which it is necessary, “are all intensely political … . Yet, the [ECHR] reclassifies them as questions of law”, (6) to be settled by the courts rather than the political process.

We can think of democracy, Lord Sumption says, either as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” or as “a system of values”, (7) of substantive requirements that a political system must fulfill. A political system that is democratic in one sense is not necessarily democratic in the other. Lord Sumption worries that “[d]emocracy, in its traditional sense” (that is, the first one) “is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter”. (7) And he worries that many lawyers are tempted to attribute such urgency to liberal values. For his part, he rejects this view, which he finds

conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. (7)


Lord Sumption’s fourth lecture, “Rights and the Ideal Constitution” takes on a constitutional system that has implemented a number of substantive, values-based constraints on democratic decision-making: that of the United States. Lord Sumption is skeptical of what he calls the “legal model” of the state, since “in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones”. (2) To be sure, the “legal model” promises constraint “based on a body of principle applied by judges” (3) immune from the sort of pressures and incentives to which politicians are subject. This model is based on mistrust of “elective institutions” and their ability “to form opinions about [rights] with the necessary restraint, intelligence or moral sensibility”. (3)

Against that, Lord Sumption argues, we need to count the value of legitimacy: “‘We, the people,’ is the emotional foundation of democracy in Britain as well as in the United States”. Democratic decision-making is also egalitarian. A constitution that enforces a set of substantive values, be they those of “liberalism, human rights, Islamic political theology or the
dictatorship of the proletariat” (4) is neither egalitarian nor legitimate in the eyes of those who do not share these values. It is, therefore, not the right kind of constitution: “the proper function of a constitution is to determine how we participate in the decision-making processes of the state and not to determine what the outcome should be”. (4) Instead of looking for “the right answers to … moral dilemmas”, a polity should content itself with “a political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions”. (4)

Echoing the arguments made in the previous lecture in the context of the ECHR, Lord Sumption reiterates that in deciding rights claims based on vague constitutional language judges are deciding not so much “whether the right exists but whether it ought to exist. Yet, that is surely a question for lawmakers and not judges.” (5) Anyway, “on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment”, and “are not necessarily wiser or morally superior to the judgments of the legislature”. (5) Lord Sumption also reiterates his earlier point that judicial resolution of essentially political disputes does not leave room for compromise and accommodation. By contrast, political compromise may succeed at resolving differences in the community, as it did over abortion in Britain (in contrast to the United States).

All that said, Lord Sumption cautions that it does not follow “that there are no rights which should be constitutionally protected in a democracy”. (6) Rather, “one must be very careful about which rights one regards as
so fundamental as to be beyond democratic choice”. (6) Again, life, liberty, property, due process, and democratic rights fit the bill. But they will not be enough to protect against the tyranny of the majority. Ultimately, “the Courts cannot parry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves”. (7) If any barrier can do that, it must be found in the political culture, not in the law.


Lord Sumption’s fifth and last lecture, “Shifting the Foundations“, addresses the proposals for introducing the “legal model” of the state to the United Kingdom. Lord Sumption suggests that, although presented as a solution to the ongoing crisis of political institutions, this idea, like all calls for institutional reform in response to crises real or supposed, has little to do with the problems it purports to address. There is something, Lord Sumption says, to the criticisms of the UK’s existing constitutional arrangements, said to be “obscure, old-fashioned, out of step with international practice and giv[ing] far too much power to Parliament”. (3) But there is also something to be said in defense of these arrangements.

Lord Sumption points out that “[t]he godparents of written constitutions have been revolution, invasion, civil war and decolonisation”. (3) Nothing of the sort has happened in the UK in centuries. As a result, there is no blank slate on which to write a new constitution. If this were nevertheless done, the result, even if

an artefact of perfect rationality, a thing of great intellectual beauty … would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. (3)

Besides, the flexible political constitution has been able “to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. (3)

The problem, and not just in the UK but elsewhere, Lord Sumption argues, is not with institutions but a political culture struggling with

long term decline in the membership … of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. (4)

The reason for this malaise, Lord Sumption suggests, is that democracy cannot meet the unrealistic expectations for it that result “from the eternal optimism of mankind, … a misunderstanding of the role of politicians, and … an exaggerated view of their power to effect major change”, as well as “the auction of promises at every general election”. (5) This produces “a sense of impotent frustration [that] undermines public confidence in the whole political process”. (5) Those who are disappointed with the representative institutions (Lord Sumption specifically mentions environmentalists frustrated by inaction on climate change) are prepared to look to a strongman who will “get things done”. A further problem is that “[p]eople expect their representatives, not just to act for them, but to be like them”, yet “all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote”. (5) This exacerbates “[r]esentment of political elites”, (6) which plays a large role in current politics.

For Lord Sumption, constitutional change is not the answer to these difficulties, although he is interested in electoral reform “if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population”. (7) An entrenched constitution subject to judicial interpretation, by contrast, “will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable”. (6)

Lord Sumption ends on a dark note:

we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours. (7)


As noted above, there is much to reflect on here. I am not suggesting that everything Lord Sumption says is right; indeed, it cannot be, because his arguments are not altogether consistent with one another. I will set out some reflections on Lord Sumption’s views in my next post. For now, suffice it to say that, if we are to avoid the dark future whose possibility Lord Sumption asks us to confront, we need to think seriously about the issues he cogently outlines.

No Way to Make Law

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

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

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

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

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

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

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

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

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

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

Why Governments Are Not Angels

The SNC-Lavalin affair reveals serious challenges to the functioning of all three branches of the Canadian government

This post is co-written with Mark Mancini

Law Matters has approached us suggesting that we write a short piece on the lessons of the SNC-Lavalin affair ― and kindly accepted to let us post it here without waiting for their publishing process to take its course. So, with our gratitude to their Editor-in-Chief Joshua Sealy-Harrington, here it is.

Attorney General Jody Wilson-Raybould was shuffled out of her office, and then resigned from cabinet; fellow minister Jane Philpott resigned too, and so have Gerald Butts, the principal secretary to Prime Minister, and Michael Wernick, the Clerk of the Privy Council. Ms. Wilson-Raybound and Dr. Philpott have now been expelled from the Liberal caucus. Indeed, the Trudeau government’s future is seemingly imperiled by the SNC-Lavalin scandal. In the unflattering light of these events, Canadians may rightly wonder about the way our government works.

It appears that many of the key decisions in the affair were made by the Prime Minister’s surrogates, who had no regard for the legality of the situation, but were only too happy to advance a political agenda. While the situation is still unfolding, one can already say that it has revealed significant challenges faced by all three branches of our government, and the defects in the ways in which they relate to one another.

Most fundamentally, the SNC-Lavalin affair requires us to take a grittier view of the way government works in Canada. As one of us wrote previously, government in the 20th century was widely perceived as a means to achieve certain substantive ends associated with the social welfare state.  The basic mythology held that, to break the “individualistic” mould of a judicially-developed law focused on upholding property rights and private contractual arrangements, Parliament and legislatures enacted complex legislation, to be administered by expert and efficient tribunals and agencies nested within the executive branch but more or less independent from the supervision of its political masters. This delegation was meant to remove from courts issues of collective justice deemed ill-suited for judicial resolution. The courts, meanwhile, were given a different but even more prestigious role: that of upholding a confined but elastic range of (mostly) non-economic individual rights and liberties.  

This rather Pollyannaish view of government persists today. The executive and agencies are seen as trustworthy technocrats, entitled to judicial deference (regardless of the absence of any real empirical evidence to support this view). Parliament, as the high-minded centre of political representation (at least so long as it is controlled by parties sympathetic to the redistributive project) and accountability. The courts, as the protectors of the rights of minorities. The SNC-Lavalin affair provides strong evidence that this picture is naïve.


The executive branch of government, it turns out, is not only populated by neutral, technocratic arbiters of policy. Rather, politically-minded actors, people like the Prime Minister’s former Principal Secretary, lurk in the shadows―and consider themselves entitled to really call the shots. These are the people who, in the face of an Attorney General’s refusal to cede to the Prime Minister’s pressure, said that they did not want to talk about legalities. They were ready to line up op-eds in newspapers to provide cover fire for their dismissive attitude toward law and discredited legislation adopted by a previous Parliament in which their party did not control the seats.

Instead of being guided by the law, or even (their own conception of) justice, these unelected, unaccountable apparatchiks are only motivated by the prospects of electoral success. Their empowerment means that even those decisions of the executive branch that are ostensibly protected by constitutional principles and conventions mandating their independence (like the prosecutorial function), are perceived as always up for grabs, according to the demands of political expediency.

Meanwhile, some civil servants are a quite prepared to act as the political hacks’ supporting cast, instead of standing up for rules and procedures. Mr. Wernick, the former head of the civil service, certainly was, having apparently had no compunctions about relaying the Prime Minister’s unconstitutional threats to the former Attorney-General and persisting when she warned him of the inappropriateness of his behavior.

But what of Parliament’s role in fostering accountability? Here again, one should not be too optimistic. A government that has the support of a majority of members in the House of Commons will also command a majority on, and thus control the work of, Select Committees, which are key to ensuring that the government is held to account beyond the limited opportunities afforded by the spectacle of question time. Admittedly, the committee supposedly looking into the SNC-Lavalin affair has let the former Attorney General present her version of the events, and it has made public the further documents she supplied, including the damning recording of one of her conversations with Mr. Wernick. Yet the committee is still resisting the calls to allow Ms. Wilson-Raybould to appear again to respond to Messrs. Butts and Wernick’s subsequent attempts to discredit her.

Parliament’s role as a locus of accountability is further compromised by the restrictions on what Ms. Wilson-Raybould is able―as a matter of ethics, at least―to say, even under cover of Parliamentary privilege. The problem is twofold. First, there is some debate about whether Parliamentary procedure would provide the former Attorney General an opportunity to speak despite the opposition of her former party colleagues. Second, even if such an opportunity is available, there is the matter of cabinet privilege, which in principle binds former (as well as current) ministers, even when they speak in Parliament. The Prime Minister could waive privilege in this case, to allow Ms. Wilson-Raybould to speak freely, but he is refusing to do so. 

Finally, the judiciary is unlikely to come out well of the SNC-Lavalin affair―even though it is not directly involved. For one thing, someone―and it is not unreasonable to suppose that that someone is not very far removed from the Prime Minister’s entourage or office―has seen it fit to drag a respected sitting judge, Chief Justice Joyal of the Manitoba Court of Queen’s Bench, through the mud in an attempt to cast aspersions on the former Attorney General. (One of us, we should perhaps note, has been more critical than the other of that judge’s views. In any case, the insinuations that Chief Justice Joyal would not follow the constitution are based on, at best, a fundamental misreading of his extra-judicial statements.)

But beyond that deplorable incident of which a sitting judge has been an innocent victim, it is the former members of the judiciary whose standing has been called into question. In particular, it is worth noting that Mr. Wernick, in his conversations with Ms. Wilson-Raybould, seemed to have no doubt that the former Chief Justice would be able to provide support for the Prime Minister’s position―despite his repeated acknowledgements that he was no lawyer. There is no question that the former Chief Justice, and other former judges involved in or mentioned in connection with the SNC-Lavalin affair, were independent while they were on the bench. Yet their willingness to become hired guns once retired, and perhaps to take aim in accordance with the government’s commands, is still disturbing.


One view of the matter is that―despite the gory appearances it projects and creaky sounds it makes― “the system works”. As Philippe Lagassé wrote in Maclean’s, referring to James Madison’s well-known remark in Federalist No. 51 that “[i]f men were angels, no government would be necessary”, the test of a government is not whether its non-angelic members turn out to be fallible, and sometimes unethical, human beings, but whether “our constitutional constructs include checks and balances to deal with their naturally occurring slip-ups”.

And perhaps the SNC-Lavalin affair ought to give new life to the idea that responsible government—and its attendant norms of political accountability and control of the executive by Parliament—provide adequate checks and balances for government in the 21st century. Despite the limitations on Parliament’s ability to hold the government to account, the opposition party has been able to whip up sufficient public scrutiny to force the hand of the incumbent ministry. Notably, the exposure of the roles played by Messrs. Butts and Wernick is a consequence of the opposition’s pressure―as well as, arguably, of the ability of the media, old and new, to involve experts capable of explaining complex constitutional issues in the discussion of political events. Perhaps, if public attention to aspects of our system that we typically do not consider can be sustained once the interest in the scandal at hand subsides, the system will even come out of it stronger than it was, especially if Parliament can, henceforth, put its mind to holding the executive accountable for its exercise of the powers Parliament has delegated to it.

But this view may well be too optimistic. Just a couple of sentences before his “if men were angels” quip, Madison issued a no less famous exhortation: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” 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.

As Dr. Philpott observed in a statement following her expulsion from the Liberal caucus, “[i]t is frankly absurd to suggest that I would leave one of the most senior portfolios in government for personal advancement”. Similarly, it seems most unlikely that Ms. Wilson-Raybould would have taken the principled stand she took, rather than doing the bidding of Messrs. Butts and Wernick and the Prime Minister himself, had she been the ordinarily self-interested politician. The ambitious thing to do for someone in her position would have been to take a hint, and to do as she was told.

And what would have happened then? Sure, her decision to overrule the Public Prosecution Service and to make a deal with SNC-Lavalin would have had to be published, and would have generated some negative publicity. But friendly journalists marshaled by Mr. Butts, and perhaps the former Chief Justice too, would have provided cover. It seems reasonable to suppose that the SNC-Lavalin affair, if we would even have been calling it that, would have been over already, and almost a certainty that it not have become the major political event that Ms. Wilson-Raybould has made it.

In other words, it is at least arguable that whether fundamental constitutional principles are upheld by our government turns rather too much on individuals doing the right thing under great political pressure, and despite their self-interest. It is to Ms. Wilson-Raybould credit that she has acted in this way. But it seems unwise, to say the least, to rely on her successors always following her example, or to suppose that her predecessors always have set a similar one.

A more realistic view of government, and of its more or less visible denizens, may thus lead us to conclude that all is not well with our constitutional system. In one respect, Madison (in Federalist No. 48) turned out to be wrong. It is not the legislative branch but the executive that “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex”. Law enforcement, Parliament, and perhaps even the judiciary, are endangered by its obstruction, threats, and promises of favours. We must recognize the difficulty to have the slightest chance of doing anything about it.