regulation – Double Aspect

Same Pig, Different Lipstick: Bill C-11

Last year, I wrote about Bill C-10, which was concerned with “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.” The Bill was controversial, not least because the law could be read to target content produced on user-driven sites (TikTok, say) targeting individual content creators rather than the tech giants and subjecting them to discoverability requirements and penalties. One of the biggest concerns was free expression. This law could be read to grant Canada’s telecom and broadcast regulator (the CRTC) power to regulate the content of individual expressions, something that—to many of us—presented constitutional and regulatory concerns. As Professor Michael Geist of the University of Ottawa stated upon the tabling of the bill, it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.”

Bill C-10 died because of the election, and some of us thought that would be the end of this. Not so. Yesterday the Trudeau Government re-introduced the same pig with different lipstick: Bill C-11. Professor Geist has led the charge on this and I would direct you to his site for deep analysis of the Bill, but for now, it’s enough to say that this Bill is generally not an improvement on its predecessor, at least from the perspective of the power it vests in the CRTC. Its central problem is hinging the entire controversy of the Bill on a clause which allows the CRTC to decide when and to whom the Act applies, subject to some exceptions. This should be, if not constitutionally problematic, politically so: this is the power to expand the scope of the law to a large class of individual users, allowing the Government to evade responsibility for this controversial choice in Parliament. In other words, the Government still has power to regulate user generated content and subject that content to discoverability regulations and users to potential penalties. It has this power despite the Bill representing that it does not.

Let’s take a look at the Backgrounder for the Bill. The Government says that this Bill solves two problems with Bill C-10. First, “it captures commercial programs regardless of how they are distributed, including on social media services.” Second, “the proposed bill is also clear that the regulator does not have the power to regulate Canadians’ everyday use of social media, including when they post amateur content to these services.” It seems, then, that the proposed bill does not apply to Canadian users or individual creators. And the opening part of the actual text of the Bill sounds promising. It says that it must be construed and applied in a manner that is consistent with “(a) the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.” Section 4.1 (1) of the Bill sounds even better: “This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.” This seems to deal with the problem so many of us had with Bill C-10 when it purported to extend its scope to the average TikTok user.

This sounds like a real improvement. But the promise fades when we consider the CRTC’s new regulation-making power. A regulation is a form of law—the power to make regulations is given to an agency by the elected legislature. This isn’t itself inherently problematic, and of course regulation-making is widespread today. But this goes further. Section 4.1(2) of the Bill basically “takes back” s.4.1(1), when it gives the CRTC power to make regulations governing “programs” despite the seeming exclusion of user content. This is something approaching–if it isn’t already–a Henry VIII clause, which allows an agency to amend a primary law (h/t Leonid Sirota for raising this point). If not constitutionally problematic, it is politically so. It allows the Government to evade responsibility for the potentially vast scope of this law.

This is the controversial clause. It is cabined by a few factors, namely s.4.2 (2) (a) which directs the CRTC to consider “the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues” as it makes regulations. As Professor Geist notes, the target here appears to be YouTube music. But there are many other types of user-generated content that could conceivably fall under the scope of the law, including user generated TikTok videos or podcasts that indirectly generate revenue and have other features that fall within the scope of the regulation-making power.

The end result, as Professor Geist says, is that this technical change “would likely capture millions of TikTok and YouTube videos.” In his post on the Bill, he summarizes the wide berth of power granted to the CRTC in Bill C-11:

Views on the scope of this regulatory approach may vary, but it is undeniable that: (1) regulating content uploaded to social media services through the discoverability requirement is still very much alive for some user generated content; (2) the regulations extend far beyond just music on Youtube; (3) some of the safeguards in Bill C-10 have been removed; and (4) the CRTC is left more powerful than ever with respect to Internet regulation.

Taking into account alternative views on the scope of the Bill, I agree. The Bill basically downloads the real decision-making a level down. Rather than the Government taking responsibility for regulation user content in this fashion, it will grant it to the “independent” CRTC. If there is controversy about a future regulation, the Government can shift responsibility to the CRTC. The regulation-making just reinforces this, granting a power to the CRTC to expand the scope of the law and to make the decisions Parliament should be making in plain view.

Others will differ. They could say that I am discounting the CRTC’s own democratic process. Or, one might say that the statute cabins the regulation-making power, and that the income-generation factor is one, non-exhaustive factor. Maybe they’d be right. But I think I could grant all of this and still maintain that the Bill purports to grant significant power to the CRTC to apply the law to users, something the Backgrounder suggests it does not. This disparity concerns me.

It is important here to address another possible response. Much is made in administrative law about the need to empower regulatory experts to make decisions in the public interest. So far as this goes, the device of delegation could be useful. But it is not always and everywhere so, and there are differences in kind. A delegation to the CRTC here may be justifiable, but the Government should take responsibility for the choice to regulate user content. Presumably, this should be something that—if it needs to be addressed—should be addressed in the primary law, rather than by the CRTC in its own wide, relatively unconstrained discretion. In other words, if Youtube music is the problem, the law should be appropriately tailored. And the use of something like a Henry VIII clause is ill-advised, to say the least.

The basic problem here might be more fundamental. I am candidly not sure what the need for this Bill is, particularly the targeting of user content. It seems the regulatory goal here may be to subject the Act’s requirements to users who generate a certain income, for example, and among other things. If that is the regulatory goal, why is the CRTC regulatory mechanism desirable here? If the Government wants to make this policy choice, why can’t it do so in the plain view? Perhaps I simply do not understand the CanCon-motivated reason why this particular power is justified. I’m open to someone explaining to me what I might be misunderstanding here—perhaps something specific to this regulatory context.

Nonetheless, I think there are real democratic tradeoffs to the use of this sort of regulation-making power, and more specifically the deflection of responsibility to the CRTC. This is a controversial application of a regulatory law—with penalties—to a potential huge class of users. Not only does the Government purport not to do this, but it does it here with a delegation to the CRTC. If later challenged, the Government can simply defer to the CRTC. I do not see this legal device—and this Bill—as any better than Bill C-10.

Disinformation by Omission

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

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

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

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

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

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

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

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

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

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

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

The Disuse of Knowledge in the Administrative State

Regulation is not the right tool for intelligently dealing with complexity

Advocates for the administrative state typically promote it on the basis of its great usefulness in contemporary society. Without the expertise that administrators bring to their work, they say, we could not deal with the complexity of the world around us. Although, in the wake of the Supreme Court’s ruling in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, this is no longer part of the rationale for deference to administrative decision-makers in Canadian law, this view is still widely held by administrative theorists in North America. Indeed it is part of the pro-administrativist critique of Vavilov, for example in a post by Mary Liston over at Administrative Law Matters. But this view is fundamentally wrong, even backwards.

A passage from Matthew Lewans’ book Administrative Law and Judicial Deference captures this traditional view nicely. Compared to the past,

we must tackle a broader array of complex social issues―human rights, immigration, national security, climate change, economic policy, occupational health and safety, public access to health care and education, etc―about which there is deep disagreement. And we cannot hope to address these issues intelligently without harnessing the experience, expertise, and efficiency the modern administrative state provides. (187)

Other pro-administrativists, if they have not themselves written such things, would I think wholeheartedly agree with them. To the extent that I specifically criticize Professor Lewans’ argument, below, it is only in a representative capacity.

One thing to note about this passage, and its innumerable equivalents elsewhere, is that it is not supported by any detailed arguments or evidence. The hopelessness of intelligently dealing with the issues that consume contemporary politics without “harnessing the experience, expertise, and efficiency” of the bureaucracy is simply asserted by writers and taken on faith by readers. But I think we need to query these claims before accepting them, and not because I have watched too much Yes, Minister to have much faith in the experience and expertise, let alone the efficiency, of the administrative state.

More fundamentally, the state ― and especially the administrative state ― often is not merely lousy at addressing complexity intelligently, but actively opposed to doing so. The reason for this is that its laws and regulations, to say nothing of its discretionary rulings, serve to eradicate rather than harness the information needed for intelligent behaviour in a complex world. They give both the rulers who wield them and the citizens who clamour for them the illusion of purposive action and control, while actually preventing the operation of the mechanisms that serve to communicate information about the world much more effectively than laws and regulations ever can: prices and markets.

As F.A. Hayek famously pointed out in “The Use of Knowledge in Society“, there is an enormous amount of information that even the best experts armed with the boundless powers of the modern administrative state cannot acquire: information about the circumstances, needs, and desires of individuals and organizations. This information is unlike the scientific, technical knowledge that experts might be able to centralize in the hands of the bureaucracy. In particular, this local knowledge changes much too quickly to be communicated and assimilated by an authority. As Hayek explains, “the economic problem of society” ― that is, the question of how to use the resources available to us most effectively ― “is mainly one of rapid adaptation to changes in the particular circumstances of time and place”. From this,

it would seem to follow that the ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them. We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders.

I would add also that, even if a “central board” could acquire information as fast as individuals and businesses, it could not make new rules to reflect this information fast enough, or consistently with the requirements of the Rule of Law, which include the relative stability of the legal framework.

But how do individuals acquire knowledge which, Hayek insists, even a sophisticated bureaucracy cannot gets its hands on? The answer is, through market prices, which reflect aggregate data about the relative scarcity of goods and services available in a given time and place: “Fundamentally, in a system in which the knowledge of the relevant facts is dispersed among many people” ― which is to say, in any society in which there many people, and especially in complex modern societies to which pro-administrativsts such as Professor Lewans refer, “prices can act to coördinate the separate actions of different people in the same way as subjective values help the individual to coördinate the parts of his plan”.

Hayek gives the example of how, if something people need to produce other things other people need becomes more scarce, such as its price goes up

without an order being issued, without more than perhaps a handful of people knowing the cause, tens of thousands of people whose identity could not be ascertained by months of investigation, are made to use the material or its products more sparingly; i.e., they move in the right direction.

The right direction, that is, from society’s perspective ― the direction of the society’s overall resources being used more effectively where they are most needed. Hayek pointedly describes the functioning of the price mechanism, its ability to economically and quickly communicate information no bureaucracy could gather “by months of investigation” as a “marvel”. He is right.

But, to repeat, the state all too often prevents this marvel from happening. The state outlaws market transactions, and so prevents the communication of information through market prices, left, right, and centre, and interferes with those transactions it doesn’t outlaw. Ronald Reagan summed up the state’s ― and the statists’ ― thinking: “If it Moves, Tax it. If it Keeps Moving, Regulate it. And if it Stops Moving, Subsidize it.” This is not all the state does, of course. The state, if it functions well, also enables markets by keeping peace, protecting property rights, and enforcing contracts. They state may supplement markets by correcting genuine market failures, though these are rather fewer and further between than statists tend to assume. But there’s no denying that much of what the state does, and especially much of what pro-administrativists ― be they on the political left (as most of them have long tended to be) or on the right (as the followers of Adrian Vermeule and other ~~common good~~ will-to-power conservatives, about whom co-blogger Mark Mancini has written here) consists in overriding, displacing, and even criminalizing markets, and so destroying rather than harnessing information. The state not only is stupid; it makes us less intelligent too.

The administrative state, specifically, is especially guilty of this. To quote Professor Lewans once more ― and again, in a representative capacity ―

There are good reasons why legislatures invest administrative officials with decision-making authority. While a legislative assembly might be able to forge sufficient consensus on broadly worded objectives as a platform for future action, it might reasonably conclude that interpretive disputes regarding those objectives outstrip the capacity of the legislative process. (199)

To be clear, “interpretive disputes” here are disputes about the specification of these “broad objectives”, as well as the means through which the objectives, so defined, are expected to be achieved. What Professor Lewans is saying is that delegation of power to the administration vastly increases the state’s overall ability to regulate ― that is to say, to override, displace, and criminalize markets. Legislatures might never achieve consensus on the detail of a regulation, and so wouldn’t enact any since they need at least a bare-bones consensus to enact law. But thanks to the dark wonders of delegation, the need for consensus is dispensed with, or at least reduced, and more regulation can be enacted. And of course the administrative state is simply bigger than a legislature, so it has more person-hours to expend on producing ever more regulation. The legislative process ― at least, proper legislative process, not what all too often passes for it ― is also time-consuming, while one of the supposed virtues of the administrative state is its flexibility. Faster regulatory change, while it cannot actually be effective enough to substitute or account for the information transmitted through the price system, is more disruptive to markets.

If we actually want to address the issues that confront complex contemporary societies intelligently, the administrative state is not our friend. More often than not, it serves to reinforce the state’s ability, to say nothing of its resolve, to prevent individuals and businesses from acting intelligently in the face of complexity by eliminating or falsifying the information they need to do so. At best, the administrative state then tries to provide a simulacrum of an intelligent response ― as, for example, we ask bureaucrats to puzzle out who may come to our countries to work based on what they, from their cubicles, deem to be market needs, instead of simply opening the borders and letting employers and potential workers make their own arrangements.

Why, then, are people ― and more and more people, too, as the emergence of right-wing pro-administrativsim shows ― so convinced that the administrative state is necessary? Some, alas, are not especially interested in social problems being solved effectively. They even make a virtue of inefficient institutions, slower economic growth, and more coercion. Such feelings may be especially widespread among the ~~common good~~ will-to-power crowd. But more people, I suspect, simply misunderstand the situation. As Hayek pointed out,

those who clamor for “conscious direction” … cannot believe that anything which has evolved without design (and even without our understanding it) should solve problems which we should not be able to solve consciously.

They think that central direction, which only the state, and specifically the administrative state, can provide is necessary. They are mistaken, and in a way that is the sadder because they unwittingly demand the exact opposite of what they actually hope for.

A Proclivity for Plunder

The left and the right are united in wanting to regulate the internet by taking from their enemies and giving to their friends

You might think that Steven Guilbeault, environmentalist activist turned Canadian Heritage minister, and Josh Hawley, a leader of the will-to-power faction of the American right, don’t have too much in common. But, as it happens, they do: both think that, when it comes to regulating social media, plunder is the right policy. Even by the standards of the times, their positions are unusually crude. But they have at least the merit of exposing a widespread misunderstanding of the permissible bounds of the activity of the state.

Mr. Guilbeault, as Michael Geist has noted on his blog, is promising to throw more money at the Canadian media and cultural sector and, in order to do so, to “go and get that money where that money is. Which is web giants.” The current idea, as Professor Geist explains in another post, appears to be to charge Google, Facebook, et al. for linking to news articles listed or shared on their platforms, but there may be other chicanery in the works, such as requirements that these companies, or some others, spend some amounts determined by government fiat on content deemed Canadian, or that they give such content a prominence they otherwise would not.

This brings me to Mr. Hawley who, as Christian Schneider explains at The Bulwark, is trying to induce regulatory retaliation against Twitter and Facebook for blocking or limiting the sharing of a dodgy New York Post article. This demand is only the latest in a series of claims by people who used to believe in free speech and free markets (Mr. Hawley’s Twitter biography describes him as “constitutional lawyer” first and husband, father, and senator after that) that social media companies must be made to carry their or their ideological allies’ communications, and punished in case they limit these communications’ reach or prominence.

As you can see, these plans agree in the essential principle that successful platforms must either be requisitioned directly or have their bank accounts raided for the benefit of favoured constituencies. Only the details ― namely, the identity of the beneficiaries ― differ. But then again, once the principle has been accepted, the details can and will change as the partisan make-up of governments shifts. It would be a mistake to focus on the latter rather than the former, though as Mr. Schneider notes, it is a mistake that is quite common on American right: “[t]his may come as a shock to Republican senators, but a freshly empowered Biden/Harris [administration] will not likely make content moderation determinations premised on what produces the largest font of liberal tears.”

The principle on which Messrs. Guilbeault and Hawley operate is plunder. They are not alone, of course: so do countless other politicians, not to mention people who vote for them. As Frédéric Bastiat wrote in his great essay “The Law“:

Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property. But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.

Plunder by a single person or a small band is criminal. Plunder by a monarch and a dictator is illegitimate. But plunder under colour of law by a democratically elected government ― why, that is simply public policy:

Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few — whether farmers, manufacturers, ship owners, artists, or comedians.

By the way, lest you think that the belief that this sort of policy immoral is some peculiarly French radicalism, here’s Justice Chase, speaking in much the same terms in Calder v Bull, 3 Dall (3 US) 386 (1798):

An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. … A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. (388)

And lest you think that this is just American radicalism, let me also quote to your Sir William Blackstone, who wrote in his Commentaries on the Laws of England that “the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature”, (124) and which “may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property”. (129) The protection of these rights is the proper object of the law, so that

the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny. (125-26)

Yet wanton tyranny and plunder is precisely what Messrs. Guilbeault and Hawley propose. Google, Facebook, Twitter, Netflix, and the others have laboured to create platforms and services that hundreds of millions of people want to use. Their creators started from very little ― the beauty of the internet is that barriers to entry are pretty low. But now, instead of imitating them and creating platforms and services of their own, others ― be they journalists whom too few people want to pay for the privilege of reading, artists whose work is of little interest to anyone, or conspiracy theorists ― demand to be given access to these platforms or to the revenue that they generate. And politicians are only too happy to oblige.

Why wouldn’t they be? They think it costs them nothing. They are wrong. As Bastiat points out, one odious consequence of the perversion of the law into an instrument of plunder is that, because people naturally tend to associate what is just with what is lawful, they come to think of plunder and oppression as just: “Slavery, restrictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.”

The other danger of turning the law from protection of liberty and property to their destruction is perhaps the more dangerous because it is even more widespread:

As long as it is admitted that the law … may violate property instead of protecting it … Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious.

This, and with increasing intensity, is what we are seeing. The stakes of politics are so high because it is admitted on all sides that the power of the winners is virtually untrammeled. The limits and restraints whose existence would in the past have been recognized, at least implicitly, such as the principle that a government shouldn’t simply raid the coffers of a particular company or handful of companies, let alone dictate what messages media ― social or otherwise ― should carry, are no longer recognized. On the one hand this is an escalation. On the other, nothing more than accepted principles being taken to their logical conclusion.

The prize of victory ― a permission to plunder ― is great. The threat of defeat is greater still. Because one expects to use power to engage in plunder oneself, one comes to expect one’s opponents to do likewise, at one’s expense. Losing an election means not simply that someone else gets to enjoy the honours of office, but that they get to despoil and silence you. Hence the desperation of the American right to hang on to power; but hence also the conviction of the Canadian left that it is entitled simply to take from those whom it does not like. These afflictions are not peculiar to countries or to parties. They proceed from the same source: the common conviction that there is no limit to political power, and in particular that plunder is part of the legitimate spoils of political office.

Now of course no one wants any of this to happen. Political schemers do not want moral decadence and civil war. But, they feel, they have no choice. If their preferred schemes do not get implemented, there will be no Canadian newspapers! No right-wing conspiracy theories on Twitter! They are convinced that if something is not done by force and the behest of a politician (preferably themselves), it will not be done at all.

And hence the state becomes the answer to all problems. Much of the right now believes this as fervently as does the left. As in Bastiat’s and in Hayek‘s time, this socialist mindset is spread across political parties. Yet as Bastiat wrote,

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

Messrs. Guilbeault and Hawley have no faith in the ability of their fellow-citizens to take care of themselves. Cede to the siren songs of libertarianism, they think, and the sky will fall. Let the other party take power, and it will fall just as surely, if a little slower. They want to save humanity with their projects. Alas, but their preferred means of doing so is plunder. For all their undoubted differences, their commitments to civilization are no more different than those of Alaric the Goth and Attila the Hun.

Again, the projects of Messrs. Guilbeault and Hawley are only an unusually stark illustration of how much ― too much ― almost all ― of our politics is done. Very little of it is about establishing general rules that protect the rights of all equally. All that matters is ― as Lenin asked ― “who, whom?”. Who is going to plunder and silence whom? Who will be the winner and who the victim? For vae victis.

This is bad policy of course, but more importantly, dangerous and immoral. No person and no party, no matter the size of their majority, have the right to behave like this to their fellow human beings. As Bastiat said: “No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic. Until the day of my death, I shall proclaim this principle with all the force of my lungs (which alas! is all too inadequate).”

Making a Monster

A report on the future regulation of the internet proposes giving the CRTC overwhelming and unaccountable powers

The final report of the Broadcasting and Telecommunications Legislative Review Panel, grandly entitled Canada’s Communications Future: Time to Act (the “BTLR Report”) has already attracted its share of commentary, much of it, but by no means all, sharply critical. As Michael Geist has explained, the report articulates

a vision of a highly regulated Internet in which an expanded CRTC … would aggressively assert its jurisdictional power over Internet sites and services worldwide with the power to levy massive penalties for failure to comply with its regulatory edicts.

The discussion has mostly focused on the wisdom of the BTLR Report’s 97 recommendations for regulating the way in which Canadians engage with the online world, and also on their impact on freedom of expression. But one aspect of the report ― indeed, not merely an aspect but a fundamental element of the report’s underlying philosophy ― has, I think, received less attention, although Professor Geist alludes to it with his reference to “an expanded CRTC”: the report’s commitment to administrative power. This is, perhaps, a less obvious issue, but we should not underestimate its significance. If followed, the report’s recommendations would not merely expand the CRTC, but make into a bureaucratic behemoth. We must not let this happen.

The BTLR Report recommends multiple amendments to the legislation governing electronic communications in Canada that would tend to produce the “highly regulated internet” to which Professor Geist refers. Yet the striking thing is that most of the proposed changes do not describe the regulations that they call for with any precision. Instead, they say that the CRTC should be given vast powers to bring into being the report’s imagined brave new world.

The CRTC would be givens new powers to make rules of general application. Most ominously, it would be given the ability to regulate “media content undertakings” ― that is, all manner of entities creating their own content, whether written, sound-based, or visual, as well as those providing platforms for the content created by others, everything from a humble podcast to giants like Netflix, Facebook, and YouTube. These “undertakings” would be required to register with the CRTC, which would be

enable[d] … to establish classes of registrants, to amend registrations, and impose requirements — whether through conditions of registration or through regulations — on registrants (Recommendation 57)

These requirements could, in particular, include “codes of conduct, including provisions with respect to resolution mechanisms, transparency, privacy, and accessibility”. (Recommendation 74) At the same time, the CRTC would be given

the power to exempt any media content undertaking or classes of media content undertakings from registration in instances in which — by virtue of its specialized content or format, revenues, or otherwise — regulation is neither necessary nor appropriate to achieve media content policy objectives. (Recommendation 58)

In other words, the CRTC would decide ― with virtually no guidance from legislation ― both what the rules for “media content undertakings” would be an who would in fact have to comply with them at all. In particular it would be to

impose discoverability obligations on all audio or audiovisual entertainment media content undertakings, as it deems appropriate, including … prominence obligations [and] the obligation to offer Canadian media content choices(Recommendation 62).

The CRTC could impose similar requirements on “on media aggregation and media sharing undertakings” ― again “as appropriate” (Recommendation 73). The CRTC would also be directed to “intervene, if necessary … in order to respond quickly to changes in the communications services, improve transparency, and promote trust” in the face of technologies that “combine algorithms and artificial intelligence with Big Data” (Recommendation 93).

The CRTC would also be empowered, and indeed required, to regulate behaviour of individual market actors. It would be given the remit “to ensure that rates are just and reasonable” in “key electronic communications markets” (Recommendation 29). Indeed, in a rare instance of seeking to restrain rather than expand the CRTC’s discretion, the BTLR Report suggests that the ability of the CRTC to “forbear” from regulating the justness of rates should be eliminated (Recommendation 30). The CRTC would also be given the power to “regulate economic relationships between media content undertakings and content producers, including terms of trade” (Recommendation 61). In relation to CBC/Radio-Canada, the CRTC would be tasked with “overseeing all its content-related activities” (Recommendation 83).

But the report would not only have the CRTC make the law for the online world. It would also be given a substantial autonomous power of the purse. It would be given the power to designate “from an expanded range of market participants — all providers of electronic communications services — … required contributors to funds to ensure access to advanced telecommunications”. (Recommendation 25) Among the requirements the CRTC would be able to impose on those required to register … would be “the payment of registration fees” (Recommendation 57). It could, further, “impose spending requirements or levies on all media content undertakings, except those” mainly providing written news (Recommendation 61), “some or all” of which it could use to fund “to the production of news content” through “an independent, arm’s length CRTC-approved fund for the production of news, including local news on all platforms” (Recommendation 71).

The CRTC would acquire additional adjudicative powers too. For example, Recommendation 38 suggests that it should resolve disputes over the location of telecommunication infrastructure. More significantly, it would be both prosecutor and judge when “imposing penalties for any failure to comply with the terms and conditions of registration” imposed on “media content undertakings” (Recommendation 57), with “resolv[ing] disputes” among which it would also be tasked (Recommendation 61). Not that this adjudication would necessarily look like that done in the courts, since the BTLR Report would empower the CRTC “to issue ex parte decisions where the circumstances of the case justify it”. (Recommendation 75)

The prophet of the administrative state in Canada, John Willis, described administrative agencies as “governments in miniature”. One hesitates to describe the law-making, trade-regulating, money-grabbing CRTC envisioned by the BTLR Report as in any sense miniature, but it sure looks like a government unto itself, albeit a rather undemocratic one. In addition to the Commissioners who would exercise legislative, executive, and judicial powers, it would have a sort of representative body, the Public Interest Committee, “composed of not more than 25 individuals with a wide range of backgrounds, skills, and experience representing the diversity of public, civic, consumer, and small business interests, and including Indigenous Peoples”. (Recommendation 15) It’s not quite clear who would be appointing these people, but it certainly does not seem that, despite their supposed mandate to represent the public, they would be elected. Not to worry though: there would also be funding, out of fees collected by the CRTC, for “public interest interventions” (Recommendations 12 and 13), in case, I suppose, the Public Interest Committee doesn’t sufficiently intervene to represent the public interest. And, in addition to the prosecutorial and judicial functions of the Commissioners, there would be

an independent, industry-funded, communications consumer complaints office with the authority to investigate and resolve complaints from individual and small business retail customers of services covered by the respective Acts,

whose “mandate and structure” the CRTC would “create and approve” (Recommendation 96).

Meanwhile, outside control over this machinery will be be reduced. The Commissioners, who are currently appointed to renewable five-year terms, would instead serve for seven years, with no possibility of renewal (Recommendation 4). A limited form of Parliamentary supervision, the laying of government “directions” to the CRTC before the Houses of Parliament would be abolished in the interests of swift regulation (Recommendation 6). And, of course, given the vagueness of the legislative guidance to the CRTC and the breadth of its mandate, it is unlikely that the courts would intervene much to police its regulatory activities.

To sum up, the CRTC would be put in control, with very few restraints, of Canadians’ interaction with the online world, and with one another. Who can speak online and on what conditions ― the CRTC would have control over that. How much they have to pay for the privilege, and where the money goes ― the CRTC would have control over that. How disputes among them, and between them and the CRTC itself, are to be resolved ― the CRTC would have control over that too. The only “checks” on it would come from handpicked representatives of the “public interest” as the CRTC itself conceives it ― not from Parliament or the courts.

The empowerment of the CRTC proposed by the BTLR Report is, of course, no accident. It proceeds from a specific philosophy of government, which the Report describes quite forthrightly. According to its authors,

The role of government is to establish broad policies. The role of regulators is to implement those policies through specific rules and in a transparent and predictable fashion. Legislation is the key instrument through which government establishes these policies. It should provide sufficient guidance to assist the CRTC in the discharge of its duties, but sufficient flexibility for it to operate independently in deciding how to implement sector policy. To achieve this, legislative statements of policy should set out broadly framed objectives and should not be overly prescriptive. (46-47)

In other words, government ― Parliament is left out of the equation entirely, as if it has nothing to do with legislation ― should mostly leave the CRTC alone. Indeed, it is important to preserve “proper balance between the government’s role in policymaking and the regulator’s role in implementing those policies independent of government influence”. (47) And, judging by the amount discretion ― to make law and dictate the behaviour of individual organizations, to levy fees and spend money, to identify, prosecute, and condemn alleged offenders and to adjudicate disputes ― the BTLR Report would vest in the CRTC, the “balance” is really all on the side of the regulator.

This is the philosophy the BTLR Report would impose on the 2020s and, perhaps, beyond. It ostensibly envisions “the CRTC’s shift toward a future-oriented, proactive, and data-driven style of regulation”. (44) But its ideology comes, not from the future, but from a distant and, as article on “The Depravity of the 1930s and the Modern Administrative State” by Steven G. Calabresi and Gary Lawson about which I blogged here shows, detestable past. As Professors Calabresi and Lawson explain, President Franklin D. Roosevelt’s

administration and a compliant Congress created a vast array of new “expert” regulatory agencies, many of which followed the “independent” model by insulating the agency heads from at-will presidential removal, and many of which contained (and still contain) statutory authorizations to the agencies so vague as to be literally meaningless. … These agencies, controlled neither by the President nor by Congress, made life-altering decisions of both fact and law subject only to deferential judicial
review. (829)

This is the governance model proposed by the BTLR Report. Its original backers

fundamentally did not believe that all men are created equal and
should democratically govern themselves through representative institutions. They believed instead that there were “experts”—the modern descendants of Platonic philosopher kings, distinguished by their academic pedigrees rather than the metals in their souls—who should administer the administrative state as freely as possible from control by representative political institutions. (829)

(For more on the beliefs of 1930s pro-administrativists, see also this post by co-blogger Mark Mancini.) Judging by their proposals, the views of the authors of the BTLR Report are rooted in just this kind of thinking. They mistrust the free market as well as democratic institutions, and want fundamental decisions about what is, by their own account, an unbelievably important part of our lives to be made by officials deemed wiser than everyone else.

And if the philosophy behind the BTLR Report’s proposed future goes back a mere century, its institutional vision is considerably older still. In fact, at the risk of sounding a bit like Philip Hamburger (which, after all, isn’t a bad thing!) I would argue that it amounts to a counter-revolution against the 17th-century subjection of executive authority to law, and a reversal of the the post-1689 constitutional settlement. To be sure, everything the BTLR Report proposes to do would be covered by the fig leaf of ― deliberately vague and unconstraining ― legislative authority. But in substance, the proposals amount to executive law-making contrary to the Case of Proclamations, executive dispension from the law contrary to article 2 of the Bill of Rights 1688, executive adjudication contrary to the case of Prohibitions del Roy, and executive taxation contrary, this time, to article 4 of the Bill of Rights. James I and James II would be proud.

So when we hear that “this time it’s different” ― that the online world is like nothing we’ve seen before ― that its actors “pose a unique set of challenges for contemporary regulators”, as Paul Daly argues ― and that this justifies the sort of overwhelming regulatory response recommended by the BTLR Report, we need to be skeptical. For all that the issues raised by the modern world are ― now as a century ago! ― said to be quite unlike anything that came before, the solutions offered are the same old. More unfettered bureaucratic power is always said to do the trick. When all you have is a hammer…

More recently, a very different philosophy seemed, however briefly, to prevail in the online world. In the 1996 “Declaration of the Independence of Cyberspace“, John Perry Barlow proclaimed:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

The Declaration isn’t much more remembered than the term “cyberspace” itself, nowadays, and the weary giants whom Barlow was taunting have come after the cyber-libertarians like Pushkin’s Stone Guest. If the authors of the BTLR Report get their way, the we would indeed be governed, to keep with the 17th century English political thought, by Leviathan himself.

NOTE: A petition to “the Government of Canada to Reject the recommendations regarding the legislation and regulation of free speech, free expression and the free press made by the” BTLR Report is open for signature at the House of Commons website. Please sign it!

The Supreme Court v the Rule of Law

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

* * *

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

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

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

* * *

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

It’s a Dog!

The majority’s pro-regulatory beliefs help make West Fraser a dog of a decision

In previous posts, I have summarized the Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, upholding the validity of a regulation of the British Columbia Workers’ Compensation Board imposing safety-related obligations on owners of forestry workplaces, and the legality of a penalty imposed on such an owner under a statutory provision authorizing penalties against employers who do not comply with regulations, and discussed some of the administrative law issues to which this decision gives rise. As previously noted, however, West Fraser is interesting not just for what it can tell us about the finer points of judicial review, but also for what it implicitly says about the Supreme Court’s relationship to the administrative state.

In its overall orientation as well as in some details, the majority opinion, written by Chief Justice McLachlin with the agreement of five colleagues, is reminiscent of R v Comeau, 2018 SCC 15 (further confirmation, perhaps, of the Chief Justice’s likely authorship of that ostensibly per curiam decision). It’s not just that the deferential approach to judicial review is, in practice, in Canada, almost necessarily a pro-regulatory position, though that’s part of the story. It’s also that, on the Chief Justice’s view of statutory interpretation, a statute’s pro-regulatory purpose is to be amplified, while whatever constraints on its pro-regulatory orientation the statute might contain are to be played down. And, most fundamentally, the Chief Justice tells us that regulation is good, and the more of it there is, the better.

As discussed in more detail in my previous posts, the Chief Justice’s approach to both issues in West Fraser is deferential ― or so the Chief Justice says. In reality, I have argued, she engages in disguised correctness review and agrees with the administrative decision-maker. But, in principle at least, it’s the deferential approach that’s binding on future courts. Conceptually, deference might be neutral as between pro- and anti-regulatory outlooks. In the United States, famously, Chevron USA v Natural Resources Defense Council, 467 US 837 (1984), which required a deferential approach to administrative interpretations of legislation, arose out of efforts at deregulation by the Reagan administration. Even so, it seems likely that administrative decisions that reduce the scope or onerousness of regulation are less likely to be challenged, so that in practice a deferential court will be a pro-regulatory court even if it has no particular desire to be one. And, of course, the prospects of serious regulatory roll-back in Canada seem rather remote.

But there is more. Whatever abstract theory might suggest, Canadian deference theorists are unabashedly in the pro-regulatory camp. David Dyzenhaus’s famous chapter on “The Politics of Deference: Judicial Review and Democracy”, from which the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, plucked the phrase “deference as respect”, [48] urged the courts to defer to administrative decision ― because its author thought that administrative regulation was normatively desirable, notably in that it advances the cause of equality. (Professor Dyzenhaus went so far as to argue that non-deferential review of the decisions of human rights tribunals by independent courts was a “setback[] to the constitutional commitment to equality between Canadians”, (297) as if the courts were not ultimately responsible for upholding this constitutional commitment.) But for Professor Dyzenhaus, deference was a one-way ratchet: if, peradventure, “judges find themselves confronted with administrative determinations of law that flow from” deregulatory impulses, “they should not be embarrassed to ask how those determinations advance the cause of equality” (306) ― and so to intervene if they do not. Much more recently, in her contribution to the “Dunsmuir Decade” symposium, Kate Glover proposed a novel theory according to which judicial deference to administrative decision-makers is now a constitutional requirement. Professor Glover did so in an attempt to prepare the administrative state’s defences against a (purely hypothetical, as she rightly notes) siege by deregulating anti-administrativists. This should, I think, be a warning to anyone who hopes that deferential courts would in fact be neutral as between more regulation or less.

Statutory interpretation, no less than (rhetorical) deference, is marshalled in support of regulatory expansion by the Chief Justice. She stresses that the Workers Compensation Act, the statute at issue, “is meant to promote workplace safety in the broadest sense”, [18] and discounts the more specific purpose statements that seem to suggest that this purpose is not to be pursued by whatever means necessary. Focusing on them is “formalistic” and “inconsistent with a purposive interpretation of the scheme”. [18] (To be honest, I don’t know what “formalistic” is supposed to mean here. But it’s bad, bad, bad.) When it comes to the issue of whether the statute authorized the imposition of penalties seemingly reserved for “employers” on firms that were, in the context of the events in relation to which the penalty was being imposed, “owners” but not “employers”, the Chief Justice once again favours an interpretation “more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] This interpretation, as I argued in my last post, is strained to the point of rendering the statutory language meaningless. However, what mattered to the Chief Justice is that reading the statute to mean what it said “would undermine [its] goals”, while the strained interpretation “would further the goals of the statute and the scheme built upon it”. [40] In short the statutory purpose, understood in the most pro-regulatory way possible, must be given effect ― other purposes and text itself be damned.

Now, in fairness, to the Chief Justice, she arguably is dealing with a real interpretive difficulty. Probably all, certainly most statutes involve compromises between a number of values or purposes. The Workers Compensation Act promotes workplace safety, of course, but it also accommodates a measure of free enterprise. It could, after all, have imposed even more invasive regulation that might have done even more for workplace safety ― but the legislature chose to only go so far towards that purpose, because going further might have undermined other purposes that it also valued. Or, to take another example, human rights legislation doubtless aims at achieving equality in society ― but the limits on its scope, for example the fact that it is typically not applicable to personal, non-economic relationships, suggests that it respects a measure of personal liberty ― implicitly anyway. The problem, though, is that if the legislature enacts a provision that specifies the purpose of a statute, it is likely to present some, perhaps just one, of the values that the statute actually accommodates, as the purpose it seeks to realize, and omit the others. This might be done for political reasons ― it might not look good to tell workers, or voters, “we’re protecting you, but only some, since protecting you more would actually put a bunch of you out of work”. Perhaps more forgivably, this might also be because, relatively to the previous state of the law, the statute does move things in the direction of more protection, so characterizing that as its main purpose is not unfair. But, either way, the legislature is misleading those who read and try to understand the statute ― above all the courts ― by giving them a distorted view of its objectives.

What are the courts to do when the legislature does this? I think they should do what Justice Côté did in West Fraser ― read the whole statute and give effect to its terms, not letting the (one-sided) purpose section override the substantive provisions. By choosing to focus on the purpose indication (and to read it selectively to emphasize its pro-regulatory aspects), the Chief Justice once again implicitly privileges regulation. For the same political reasons I refer to above, it seems likely that the legislatures will systematically overstate the significance of their regulatory purposes, and understate whatever countervailing values might also be animating them. So, a judge who overvalues statutory statements of purpose at the expense of the text will tend to produce pro-regulatory outcomes even without setting out to do so. But I doubt that the Chief Justice is such a judge.

In fact, her reasons in West Fraser suggest that the Chief Justice’s basic disposition is in favour of regulation ― the more of it the better. She is comfortable with a legislative mandate to an administrative agency “to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”, [10] going so far as to characterize this as an “unrestricted delegation of power”. [11] Though admittedly it is unlikely that the Chief Justice means this adjective literally, it is remarkable that she appears untroubled by the idea of an unrestricted regulatory mission. Later, when discussing the issue of the penalty, the Chief Justice writes that “[t]he general scheme of the [Workers Compensation Act] is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety” [43] by way of justifying holding the ones responsible for violations of obligations the statute only seems to impose on the others. As in the area of what used to be known as division of powers, “cooperation” comes to mean the accumulation of regulatory mandates ― and is seen as a good thing. The Chief Justice’s shows her attitude towards such mandates most clearly when she makes a point of observing that the regulation challenged in West Fraser was adopted

in response to a concern in the province about the growing rate of workplace fatalities in the forestry sector … provid[ing] a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently. [20]

It is important that something be done about social problems, and whatever is done about them by regulators ― presumed, conclusively, to be experts ― must therefore be good. There is only a step, if that, from here to what Sir Humphrey Appleby described as “the politician’s logic”, and what later became known as “the politician’s syllogism“. Something must be done; this is something; therefore this must be done. The Chief Justice has, on the occasion of her already-happened-but-still-impending retirement, and indeed before, been much praised for her statecraft. In West Fraser, she reminds one of The Right Honourable Jim Hacker, MP.

Of course, by criticizing the Chief Justice’s pro-regulatory views ― and those of the other judges in the West Fraser majority ― I do not mean that judges ought to become the flag-carriers of deregulation. They should be neutral and, within constitutional bounds, give effect to the legislation that Mr. Hacker’s colleagues, in their wisdom, enact. Much of this legislation will delegate considerable regulatory powers to administrative agencies. That’s too bad, so far as I am concerned, but this a policy view, not a constitutional argument. However, judges should not, in the name of doing something, be trying to give the regulators freer rein than legislators intended. In Yes, Prime Minister, just before Sir Humphrey formulates the politician’s syllogism, his mentor, the wily Sir Arnold Robinson, exposes its logic by proposing a different one with the same logical structure: “all cats have four legs; my dog has four legs…” “Therefore,” concludes Sir Humphrey, “my dog is a cat.” Well no. And so West Fraser is a dog of a decision.

Jiggery-Pokery

The standard of review issues in the Supreme Court’s West Fraser decision

In my previous post, I summarized the Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, which upheld the validity of a regulation of the British Columbia Workers’ Compensation Board imposing safety-related obligations on owners of forestry workplaces, and the legality of a fine levied on such an owner under a statutory provision authorizing penalties against employers who do not comply with regulations. The Court was divided on both the approach to and the merits of the first issue, and at least on the merits of the second.

As I noted in that post, there is quite a lot to say about the decision. Others have already commented on it. Shaun Fluker, over at ABlawg, focuses on how West Fraser fits, or doesn’t fit, with the Supreme Court’s precedent on analysing the validity of regulations, while Paul Daly’s Administrative Law Matters post which looks ahead to the Supreme Court’s upcoming reconsideration of Dunsmuir. In this post, I add some observations of my own on the various opinions in West Fraser. In a subsequent one, I will explore what these opinions tell us about the Supreme Court’s relationship with the administrative state.

The first point I would note here is that Chief Justice McLachlin’s opinion for the majority, which purports to apply deferential reasonableness review on the first issue, and even more deferential patent unreasonableness review on the second, is actually an excellent example of disguised correctness review. As the former Justice Joseph Robertson described it here, in one of his contributions to the “Dunsmuir Decade” symposium,

Disguised correctness review means that the reviewing court conducts a de novo analysis of the interpretative issue. Little or no meaningful reference is made to the reasoning of the administrative decision-maker; just the interpretative result.

For his part, David Mullan noted that

In its purest form, reasonableness review of determinations of law should start with the tribunal’s reasons for decision. … Too frequently, however, the starting point is not the tribunal’s reasons but the arguments on the merits of the question of law or statutory interpretation advanced by the parties with the reasons either ignored or mentioned only in passing. Consequently, the professed commitment to deference gets submerged in a thorough-going re-examination of the relevant question of law.

That is exactly what happens in the majority reasons in West Fraser, and not only on the first issue, on which there are no reasons for decision to review ― which, as Justice Côté points out, makes the notion of deferential review problematic in this context ―, but also on the second one. You’d think that, applying a patent unreasonableness standard of review, the majority would pay attention to the decision on whose reasonableness it must pronounce, but no ― the decision itself is summarized in a single paragraph and never quoted. For the rest of her reasons, the Chief Justice refers to it only obliquely.

So perhaps the apparent disagreement about standards of review (on the first issue) is really beside the point. This is all the more so since, in the reasons of two of the three dissenting judges, correctness review does not look very exacting at all. Justice Brown, after waxing eloquent about the importance of the courts ensuring that administrative decision-makers act within the limits of their authority, is content to note that the limits in this case are broad. Justice Rowe, for his part, endorses the Chief Justice’s comments about the breadth of the administrative power as sufficient to dispose of the jurisdictional question, presumably on the correctness standard. Yet surely saying that the powers of administrative decision-maker are broad is not enough to show that its regulation was within these powers. The Chief Justice speaks of “unlimited” powers, as if such a thing were possible under the Rule of Law, and as if Justice Rand’s comments in Roncarelli v Duplessis, [1959] SCR 121, were not among the best known in all Canadian law. Here they are, in case anyone needs reminding of them:

In public regulation of this sort there is no such thing as absolute and untrammelled “discretion” … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. (140)

Of the four judges who wrote in West Fraser, only Justice Côté took seriously the “perspective within which the statute is intended to operate” and the notion that the administrative tribunal does not have unlimited powers to act within the general area under its supervision. Justice Côté’s colleagues, even those who ostensibly stress the courts’ supervisory role, are content to let administrative power run wild ― a point to which I return below.

All that said, while I think that Justice Coté is right on the merits of the first issue, both she and her colleagues make important points on the general approach. (The trouble with Justice Brown and Justice Rowe is that they do not really practice what they preach, and fail to ask the hard questions that they rightly suggest the courts ought to be asking of administrative decision-makers.) Justices Côté and Brown are right that the point of judicial review is to ensure that administrative decision-makers exercise those powers delegated to them by statute, and no others. Justice Côté is right to point out that in policing the boundaries of administrative decision-makers’ jurisdiction the courts are upholding the primacy of the legislation enacted by elected legislatures against the self-aggrandizement of the administrative decision-makers. Justices Côté and Rowe are right to call out the vacuousness of the Chief Justice’s appeal to administrative expertise as a justification for deferential review of the validity of regulations. Expertise may be relevant to thinking about the policy merits of a regulation ― and I think that Justice Brown is right that these should be of no concern to the courts, even on a deferential standard (though note that Justice Rowe seems to disagree) ― but contrary to what the Chief Justice suggests the wisdom of the regulation is not at issue in West Fraser.

I think, however, that the comments of Justices Côté and Brown raise even bigger questions about judicial review and judicial deference. Justice Côté insists that there is

an important distinction between actions taken by a regulator in an adjudicative capacity and actions taken by a regulator in a legislative capacity — a distinction that is central to the policy concerns that animate judicial review and the traditional standard of review analysis. [57]

Justice Brown agrees that this distinction is important as the law now stands, stressing that, since “[p]ublic power must always be authorized by law … no statutory delegate, in enacting subordinate legislation (that is, in making law), may ever exceed its authority”. [116; emphasis Justice Brown’s] But, in an obiter dictum, he also worries that

in many cases, the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive. [124]

The Chief Justice’s reasons in effect say that the distinction is elusive, and perhaps non-existent, or at any rate not worth bothering about, in all cases, including this one. In her view, it follows that pretty much all judicial review should be deferential.

But we can share the Chief Justice’s or, more plausibly, Justice Brown’s concern about the elusiveness of the distinction ― we might think that the distinction is often, though probably not always, difficult to draw ― draw from this the opposite conclusion. That is to say, we might think, not that there is basically no such thing as a jurisdictional question, but rather that most questions of law are in a sense jurisdictional and therefore call for correctness review ― because public power must always be authorized by law, and the Rule of Law, therefore, demands no less. This position would, I think, be similar to the approach taken by English (and New Zealand) administrative law after Anisminic v Foreign Compensation Commission, [1969] 2 AC 147 (which Professor Daly recently revisited on Administrative Law Matters). Indeed, Justice Brown’s own reasons suggest that the contrary approach, favoured by the Chief Justice (and perhaps, to a lesser degree, by Justice Brown’s own concluding obiter), leads to a paradox (call it the paradox of deference). If administrative interpretations of law are approached with deference on the basis that they draw upon policy expertise and “field sensitivity”, and if more than one interpretation of a statute is allowed to stand on the basis that they all fall into a range of reasonable outcomes, then isn’t the administrative decision-maker interpreting a statute “making law” just as as surely as if it were “enacting subordinate legislation”? And is it not, then, just as important to ensure that the interpreter “may ever exceed its authority”, because “[t]he rule of law can tolerate no departure from this principle”? [116] Justice Rowe’s view that administrative decision-makers are generally not experts in statutory interpretation ― including but not limited to the category of jurisdictional questions narrowly defined, is the more logical one.

Finally, while others who have written about West Fraser have not discussed the second issue it addressed ― that of the penalty ― I think it is worth addressing at least briefly. The Chief Justice’s analysis on this issue is disturbing. As Justice Côté explains, the legislature carefully wrote the statute to distinguish “employers” and “owners”. The Chief Justice insists that this doesn’t matter because all “owners” are employers too so long as they have employees of their own visiting the worksites that they own, as they are required. As Justice Côté rightly says, this amounts to the re-writing of the legislation. In fact, while Justice Côté is too polite to say so, I think that the Chief Justice’s reasoning on this issue can best be described by borrowing Justice Scalia’s words in King v Burwell, 576 US __ (2015) ― it is “interpretive jiggery-pokery”, as a result of which “[w]ords no longer have meaning”.

Why does a majority of the Supreme Court engage in such unseemly activities? If, unlike me, you believe that the Chief Justice’s opinion is genuinely deferential to the administrative decision, then you should see the fact that this jiggery-pokery takes place in the course of (über-)deferential review ― which is supposed to be all about giving effect to the legislature’s intention ― as an illustration of the paradox of deference described above. Deferring to the administrative decision-maker means allowing it to become a law unto itself, free from the constraints imposed by statute ― and having to scramble to make it look like the administrative decision really does make some kind of sense.

If, however, you agree with me that the Chief Justice is actually engaged in disguised correctness review, things are, if anything, even worse. The Chief Justice is not merely forced, by her preference for deference, to allow the administrative decision-maker to rewrite the statute, but actively complicit in its doing so. As I will explain in the next post, this is what I think is going on. Indeed, in my view the Chief Justice engages in results-oriented, pro-regulatory reasoning throughout her West Fraser opinion. She thinks, no doubt, that she acts wisely and well. “Pure applesauce!”

Profession of Power

A critique of Bob Tarantino’s celebration of the legal profession

In a new post over at his blog, bad platitude, Bob Tarantino continues his defence of the Law Society of Upper Canada’s right to exact ideological conformity from its members. His focus is on Jonathan Kay’s National Post op-ed that tied the Law Society’s demands to a belief in the “myth that lawyers comprise a moral vanguard within society, with sacred duties that extend beyond the daily humdrum of litigating divorces and drafting contracts”. Mr. Tarantino concedes that Mr. Kay “correctly diagnoses … the profession’s seemingly inherent vainglory” ― and proceeds to defend thinking of law as a profession, not “‘just’ an occupation” in a way that demonstrates just how vainglorious this profession can be.

Before getting to the point, I pause to note Mr. Tarantino’s rather remarkable appeal to the forces of the market in an implicit attempt to justify the Law Society’s right to force lawyers to come up with, or at least copy-and-paste, “Statements of Principle” acknowledging a purported obligation to promote equality and diversity. Contra Mr. Kay, Mr. Tarantino observes that some clients ― he mentions Facebook ― want lawyers to take these things seriously. Mr. Tarantino also insists that he has “the right to decide not to spend [his] money at businesses that espouse views [he] find[s] unpalatable, and even to enthusiastically encourage others to avoid spending their money there”. Very well ― though at least some human rights statutes (including those of Quebec and New Zealand) include political opinion among the list of prohibited grounds of discrimination, which suggests that even enlightened individuals like Mr. Tarantino might disagree with some instances or applications of such legislation. But how exactly does Mr. Tarantino justify the coercion of lawyers whose clients are not as enlightened as he or Facebook, or indeed those lawyers who do not have any clients? At best, this is not a free-market argument, but a paternalistic one. The Law Society knows better.

On now to Mr. Tarantino’s main argument, which is that “it is precisely in law’s status as a profession and as a locus of power in society that the importance of collective value-setting arises”. A profession, says Mr. Tarantino, is distinguished by involving the application of “a body of specialized knowledge and subordination of the practitioner’s interests in favour of three ‘others’: the client, the profession, and the public”. Lawyers, even more than the members of other professions, wield power over “our society and over the affairs of their clients, and if they adopted a self-interested ethic, a sort of syndicalism, they could quickly become a manifest danger to the rest of society”. For this reason, it is essential to make lawyers “virtuous” ― “so that their power is channeled in favour of others”. This is what both the Law Society’s latest demands and the oath lawyers are required to swear upon entering the profession (to which these demands bear a close resemblance, as I have noted here) are supposed to accomplish. Mr. Tarantino adds that it is very important that these exercises in “collective identity-formation” are “voluntary”; that they “do not find their origins in the government [but] arise from lawyers themselves.” He sees the legal profession as “in some ways just a big club … that gets to set its own rules about membership”, and there is nothing “illegitimate” about that, is there?

It is as if the last 250 years of history and political thought had not happened. As if it were possible to believe, after Smith and Madison ― not to mention Robespierre ― that public good is achieved by virtuous agents rather than by competition and ambition counteracting ambition. As if it were possible to claim, regardless of Constant and Berlin, that rules that a majority imposes on a minority not really an imposition and an interference with liberty. As if it were possible to maintain, despite Friedman and public choice theory, that a state-backed monopoly is not self-interested and syndicalist, working to exclude competition and raise prices for its services. Or, if Mr. Tarantino does not actually believe that such things are generally true, he must then suppose that lawyers, of all, people, are uniquely immune to the fallibility of other human beings. This is the sort of presumption, as self-serving as it is vainglorious, that Mr. Kay rightly decried.

Moreover, Mr. Tarantino’s argument involves a rhetorical sleight of hand. The lawyers’ power, of which he makes so much, is mostly not collective, as he suggests, but individual. It is not the legal profession acting as a united whole that drafts statutes, prosecutes alleged criminals, adjudicates disputes in administrative tribunals, or handles the personal and financial affairs of vulnerable clients. It is individual lawyers or, at most, firms. In any litigation, there are two sides ― normally, though admittedly not always, each with its own lawyer. When lawyers draft or apply rules that bind citizens, other lawyers are ready to challenge these rules or their application. If a lawyer mishandles a client’s case, another can be retained ― including to sue the first. (This is not to make light of the possibility and cost of mistakes or incompetence, of course. Still, the point is that a mistaken or even incompetent lawyer does not represent the profession as a whole.) The one circumstance when lawyers do act collectively is when they act through the Law Society. When the Law Society exacts compliance with its demands, that is the profession exercising power ― backed up by the armed force of the state. That is where we really ought to worry about power being exercised unethically. And in my view ― though perhaps not in Mr. Tarantino’s ― the exercise of power to impose ideological conformity on those subject to it is unethical and indeed oppressive.

Unlike many other defenders of the Law Society, Mr. Tarantino has the merit of not trying to minimize the seriousness of what is going on. His first post contained a forthright admission that the Law Society’s demands amount to a values test for membership in the legal profession. His latest doubles down on this admission, and makes clear that it the Law Society’s actions rest on a conception of public power that is paternalistic, confident both of its own moral superiority and of its ability to make others virtuous, and takes no notice of disagreement or dissent. Those who do not like how this power is exercised can simply get out and leave the legal profession ― and find some other way of making a living. Many of those who support the Law Society seem to be surprised by the force of the opposition which its latest demands have provoked. Perhaps, thanks to Mr. Tarantino’s posts, they can understand better.

One’s Own Self, Like Water

The Law Society’s demand for a “Statement of Principles” is a totalitarian values test

In my last post, I outlined the scope of the Law Society of Upper Canada’s demands that all lawyers subject to its regulation, including those who are retired or working outside Ontario, produce a “Statement of Principles that acknowledges” a purported “obligation to promote equality, diversity and inclusion” ― not only in the practice of law but “generally”. I also explained that no such obligation exists at present, because none is imposed by the Rules of Professional Conduct or other rules applicable to lawyers, as they now stand, and that it is doubtful whether the Law Society could lawfully impose such an obligation under its enabling statute.

I have not seen meaningful responses to these concerns. On the contrary, they have been echoed in an op-ed in the Globe and Mail by Arthur Cockfield. Instead, those who defend the Law Society argue that whatever limitation of our rights the Law Society’s demands produce, the limitation is justified if analysed under the proportionality framework of s 1 of the Canadian Charter of Rights and Freedoms. They also point to the fact that lawyers are already required, by s 21(1) of Law’s Society’s By-Law 4, to swear an oath upon entry into the profession.

I agree with the Law Society’s defenders that the “Statement of Principles” that it wants us to produce is indeed similar to an oath, and in particular to the oath required by s 21(1), which I will refer to as “the lawyers’ oath”. They are similar in nature, in purpose ― and in their uselessness and questionable constitutionality. I will discuss these points below, drawing heavily on the criticisms of the Canadian citizenship oath (and, specifically, of its reference to the Queen) that I have developed over the course of four years of blogging on this topic, and especially in an article on this issue published in the National Journal of Constitutional Law. (Indeed, though it was not the focus of my argument, I briefly discussed the lawyers’ oath in the article.) Some of those who defend the Law Society have sought to accuse its critics of hypocrisy over our purported failure to object to oaths, and especially to oaths of allegiance to the Queen. Whatever the rhetorical value of such accusations ― and I think that it is nil, since they do not refute our substantive objections ― this topic is not new to me.

Start, then, with the nature of the oath or “Statement of Principles”. Both are forced expressions of commitment to acting in certain ways. Though a “Statement of Principles” might, depending on the way in which it is formulated, ostensibly stop just short of being a promise, I think that any distinction between acknowledging an obligation and promising to fulfill an obligation is one without a difference in this context. In his National Post op-ed criticizing the Law Society’s demands, Bruce Pardy treated the “Statement of Principles” as a forced expression of support of support for the Law Society’s policies, which I think is quite right. As Prof. Pardy pointed out, in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, the Supreme Court has condemned such demands as “totalitarian and as such alien to the tradition of free nations like Canada”. (296) Although in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 the Court made it clear that this holding did not apply to compelled statements of fact, this (wrongheaded, in my view) narrowing of the National Bank holding is not relevant here. But, as I have argued in my blog posts and article, coerced commitments are more than expressions of opinion. They are impositions not only on the freedom of speech of those who must make them, but also on their freedom of conscience. Oaths, as the Supreme Court explained in R v Khan, [1990] 2 SCR 531 work by “getting a hold on [the] conscience” of those who take them, notably ― but not only, as I shall presently explain ― by making the thing sworn to a matter of moral, and not merely legal, obligation. The “Statement of Principles” is similar, in that it is an attempt to make every lawyer embrace, as a matter of his or her personal morality, and thus conscience, the principles set out in that statement.

The other way in which oaths typically impinge on conscience, and also a point of similarity between the lawyers’ oath and the “Statement of Principles” is that, because they typically impose vague obligations that go well beyond the requirements of any positive law, they demand frequent if not constant exercise of moral judgment about the precise scope of the duties being sworn to. As I wrote in my article, the lawyers’ oath

requires lawyers, among other things, to “protect and defend the rights of interests” of their clients; to “conduct all cases faithfully”; not to “refuse causes of complaint reasonably founded, nor [to] promote suits upon frivolous pretences”; to “seek to ensure access to justice”; and to “champion the rule of law and safeguard the rights and freedoms of all persons.” These (and the other requirements of the oath) are not straightforward obligations. Discharging them requires lawyers to think about just what their duties are. … [T]o a considerable degree, the judgment required is a moral one. In some cases, that is because the lawyers’ duties are couched in moral terms (like “faithfulness” …). In other cases, the degree to which one can and ought to fulfill these duties must necessarily be left to individual conscience. (How far must one go to “ensure access to justice”: does it require one to limit one’s fees? How much pro bono work need one do? Can one “ensure access to justice” while being a member of a state-enforced cartel devoted to raising the cost of legal services?) In other cases still, it is because the lawyers’ duties can conflict (for instance, when the defence of a client’s interests might suggest launching a “suit upon frivolous pretences”), requiring moral judgment about which is to prevail. In short, a lawyer must constantly, or at least frequently, rely on his or her conscience to determine just what it is that his or her oath requires. (152)

The “Statement of Principles” would be meant to do the same thing, requiring lawyers (those, at least, who take it seriously) to be constantly asking themselves what their general “obligation to promote equality, diversity and inclusion” requires. It is no answer that the requirement is merely to comply with relevant human rights legislation. Not only is no “Statement of Principles” necessary to achieve that, but this legislation does not actually apply to many lawyers, such as those who are retired and not engaged in the sorts of relationships or activities which such legislation covers. The whole point of a “Statement of Principles” is to go beyond the positive law.

These impositions on freedom of conscience ― and, of course, the compelled expression of opinion that the lawyers’ oath and “Statement of Principles” also are ― require justification. I do not think that any exists. In my article, I take the Canadian citizenship oath through the Oakes proportionality analysis, and find that it fails at every step. (Interestingly, as I also note in the article, the Law Society itself dropped the mandatory oath to the Queen due to constitutional concerns.) Of course, the issues with the lawyers’ oath and the “Statement of Principles” are not the exactly same. Yet there are also some common points.

In particular, both supposedly serve the sort of “[v]ague and symbolic objectives” of which the Supreme Court told us to be wary in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 while having a tenuous relationship to these objectives. The lawyers’ oath is unlikely to make many lawyers more ethical, or more committed to the Rule of Law. One is ethical, or a “champion of the Rule of Law”, because one believes in these things ― not because one was made to swear to them. Similarly, even the Law Society’s defenders tend to acknowledge that requiring us to produce a the Statement of Principles is not going to do much to make the legal profession more diverse or inclusive. A symbolic expression of commitment to a set of values, no matter how attractive, is no more necessary than a symbolic expression of commitment to one’s country, no matter how great ― which, I explain in the article on the citizenship oath, and as Liav Orgad explained in more detail in his study of loyalty oaths, is to say not necessary at all.

This is all the more so since the Law Society explicitly states that the requirement to produce a “Statement of Principles” can be satisfied by the simple expedient of “adopting” one of the sample “Statements” supplied by the Law Society itself. Indeed, the Law Society’s defenders suggest that since we could easily “adopt” one of those sample statements, regardless of whether we believe in them, or some other “Statement” so vague and bland that, as Annamaria Enenajor put it to me on Twitter, “a closet [sic] neo-nazi lawyer could get down with” it, the whole thing is really no big deal. This again is similar to the lawyers’ oath. I have no doubt that if Justice Abella chooses to re-join the bar after her retirement from the Supreme Court, she will feel no compunctions about promising to “champion the rule of law” ― even though it is a matter of public record that “[t]he ubiquitous phrase ‘rule of law’ annoys her“, and that she prefers something called “the rule of justice”. But to the extent that the Law Soceity’s fellow-travellers are right, it is difficult to see how the “Statement of Principles” is meaningfully addressing a pressing and substantial concern, and it must fail the proportionality test for that reason.

There is, however, another possibility. As with the citizenship oath and the lawyers’ oath, while most people may be content to make a pretended commitment to ideas or principles they do not understand or indeed secretly despise, some are not. They take a thing of that nature, whether called an oath or a Statement of Principles, seriously. They agree with Robert Bolt’s Thomas More that “[w]hen a man takes an oath … he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again”. And, just like More refused to falsely swear an oath to regard Henry VIII as head of the Church, they will not tick off box on the Law Society’s form to acknowledge an obligation to promote ideals the Law Societey’s interpretation of which they do not share, or indeed the Law Society’s authority to impose which they reject. As to such people ― as to those who refuse to live in the closet ― the Law Society’s demand is not a trivial, if useless, imposition. As prof. Pardy argues, and as the Supreme Court has long accepted, forcing people to endorse opinions that they do not share is totalitarian ― or at any rate no less oppressive than the government of Henry VIII. As to such people, the Law Society’s demands will, at all events, fail the “proportionality strictu sensu” test, because totalitarian demands for ideological compliance always impose a greater cost than whatever benefit the state (or, in this case, the Law Society) can hope to obtain by imposing them.

Beyond the dry terminology of proportionality analysis, it is important to understand that what is at stake here is neither more nor less than a values test for the practice of law. While some have resisted this implication (going so far as to argue that a requirement to produce a “Statement of Principles” is not a values test even though a requirement to provide it to the Law Society would be one!), others among the Law Society’s fellow travellers are quite comfortable with it. In their view, there is nothing wrong with a legal profession in which only people who hold the right values ― and those who are sufficiently unprincipled to dissemble about theirs ― are welcome to remain, while those who are deemed to be wrong, and who refuse to hide in the closet in response, are shown the door. The undesirables are not yet pushed out ― it may be that the Law Society’s policy is nothing more than a paper tiger, a “demand” that will not be meaningfully enforced. But it could also be a warning, and a test. Even if the Law Society does not try coercion now, acquiescence to its demands it will embolden it do so in the future. As others have argued, it will also show that the legal profession is supine enough to comply with the authorities’ attempts to impose orthodoxy on it. And this leads me to a final question for those who support the Law Society. Are you really so confident of always being among those whose orthodoxy will be imposed on others? Thomas More ― the historical one, the one who confiscated books and rejoiced in the burning of heretics ― was so confident. May you fare better than he did.