On the Origin of Rights

Are religious justifications for rights and equality inadmissible in Canadian politics?

Why have we got the fundamental rights we think we have? This is a somewhat embarrassing question for secular liberals, such as yours truly. We don’t have a very satisfactory answer to it. Our religious fellow-citizens, by contrast, have one, which is that rights come from God, in whose image (at least the Judeo-Christian tradition) human beings have been created. As it turns out, however, not everyone is okay with this answer being publicly aired, at least by a politician. This is puzzling to me, and worth a response.

The minor Twitter dustup of the week so far was triggered by the Conservative Party’s leader, Andrew Scheer, who wanted us all to know that he “believe[s] that we are all children of God and there is equal and infinite value in all of us”, from which it follows that no one is superior or inferior to anyone else on the basis of “race, religion, gender, or sexual orientation”. Pretty anodyne stuff, I should have thought. But not according to, well, a number of people ― one can never tell how many with these Twitter dustups. Emmett Macfarlane demanded that Mr. Scheer “[k]eep his imaginary shit out of [his] public policy”, eventually adding that”[i]t’s actually highly disagreeable to imply … that the equality of people is rooted in our status as ‘children of God'”. And I’ve seen other comments along these lines too. Perhaps, as Jonathan Kay suggested, “Canada has run out of real things to fight about”. But I take it that to Professor Macfarlane, and to others who think like him, this is a serious thing.


So here are some hopefully serious thoughts on this, from the perspective of one who does not share Mr. Scheer’s belief that human beings are children of God. To begin with, it’s necessary to recall that something like Mr. Scheer’s view was, historically, the foundation of the argument for the normative equality of human beings and the existence of fundamental rights inviolable by a political community. It was John Locke’s argument and Thomas Jefferson’s, for instance. The Declaration of Independence proclaimed, as “self-evident” “truths”, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Lord Acton would later write that “the equal claim of every man to be unhindered by man in the fulfillment of duty to God … is the secret essence of the Rights of Man”.

A Twitter interlocutor told me that this was of no import in Canada. Stuff and nonsense. Canada is very much an heir to the liberal tradition of which both Locke and Jefferson were among the founders, and Acton one of the great exponents. (The Canadian Charter of Rights and Freedoms, in particular, embodies this tradition ― and, in permitting individual rights to be set up as limits on public power, does so in a manner that is more Jeffersonian than the defenders of Canadian exceptionalism care to acknowledge.) Others have pointed out that Locke’s egalitarianism did not extend to the Aboriginal peoples of the New World. They might have added that Jefferson was, notoriously, a slave-owner who fathered children with an enslaved woman. Acton almost as notoriously, supported the slave-owners in the American Civil War, in a shockingly misguided and embarrassing defence of federalism. But I don’t think this matters here. Locke, Jefferson, and Acton fell short of their principles ― as human beings often do ― and this is to their individual discredit, but not to that of the principles which, had they followed these principles fully, would have prevented them from discrediting themselves.

More modern, secular statements about the origin of rights, meanwhile, are full of elisions and circumlocution. Article 1 of the Universal Declaration of Human Rights provides that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” This is, up to a point, an echo of Jefferson’s words, but notice what’s missing here: any indication of why human beings are born free and equal, or how we know this, or who endowed them with reason and conscience. Section 1 of the Canadian Bill of Rights “recognized and declared that in Canada there have existed and shall continue to exist … [certain] human rights and fundamental freedoms”. This (like similar, if more laconic, language in section 2 of the New Zealand Bill of Rights Act 1990) is a recognition of the pre-political nature of rights, which are not created by whatever positive law implements them. But again, it is not clear how these pre-political rights came into being. The preamble to the Canadian Bill of Rights declares that “the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions”. The preamble to the Canadian Charter of Rights and Freedoms also refers to “principles that recognize the supremacy of God and the rule of law”. But the connection between these principles and the rights these instruments protect is left studiously undefined.

I am not saying that this is a bad thing. It’s probably more important to agree on our having rights than on the causes of our having rights. I share A.V. Dicey’s belief that it is more important to provide legal remedies for the violations of rights than to declare grand principles of rights-protection. Jefferson could consider the divine origin of rights self-evident, but in contemporary society neither his view nor any alternative can make such claims, and it is fortunate that we have gotten on with the practical business of providing legal remedies against the breaches of at least some important rights instead of debating the precise metaphysical reasons why we should do so.

It would be a long debate. We secularists cannot claim to know, collectively, where rights or equality come from. Some of us, individually, have hypotheses of course. There is Kant’s work on human dignity of course (arguably as mysterious as many a religious dogma). Jeremy Waldron (although he is no secularist, actually, as will soon be apparent), sets out a (multifaceted) justification for equality in his book One Another’s Equals. Another line of thought that I personally find appealing is based (non-religious) natural law, developed along the lines Randy Barnett sketches out. In a nutshell, this argument holds that, given certain facts about human nature ― perhaps especially our general tendency, all too well attested by history, to disregard the interests of those whom we do not consider to be (at least) our equals ― if we want to live peacefully and prosperously with one another, we really ought to consider each other as equals and as holders of certain rights. Intriguingly, the preamble of the Universal Declaration actually makes an argument of more or less this sort: “[w]hereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. In other words, if we don’t commit to ideas like equality and some other fundamental rights, we can be pretty sure that things will turn out badly.

But none of that is, to use Jefferson’s words, self-evident. One can plausibly be a Kantian, a secular Waldronian, a latter-day natural lawyer, but one cannot plausibly insist that these explanations, or any one of them, are the only admissible ones. Nor can one specifically exclude religious explanations for equality or fundamental rights from the realm of admissibility. (That’s not to say one has to find them persuasive.) Professor Waldron himself writes that it “seem[s] obvious to [him]” that

an adequate conception of human dignity and of the equality that is predicated on that dignity is rooted in an understanding of the relation of the human person to God or in aspects of human nature that matter to God or matter for our relation to God[;] that human worth and human dignity are going to have to be rooted in something like a theological anthropology, a religiously loaded account of human nature. (177)

Professor Waldron acknowledges that these things are not obvious ― to put it mildly ― to many others; that “[m]any philosophers” ― or political scientists, like Professor Macfarlane, or others ― “are inclined to dismiss religious accounts of human equality as superstitious nonsense”. (178) He specifically addresses the concerns of those who would rather that religious arguments on such issues not be offered to the public. As read him, Professor Waldron speaks mostly to the position of the philosopher (not necessarily a professional one, but perhaps simply a philosophically-minded citizen), not that of the aspiring office-holder. But I think that his conclusion that “everybody calling it as they see it and giving the fullest and most honest account they can is superior to … embarrassed self-censorship about a matter this important” (213) is applicable to people in Mr. Scheer’s position, as well as in Professor Waldron’s. This is partly a matter of honesty both personal and intellectual, and partly also a consequence of the fact that, as noted above, for politics and law, our agreement on the existence of rights and the value of equality matters rather more than the reasons we might have for subscribing to this agreement. If some people want to sign on for religious reasons, we should welcome them and be glad of their company even if we do not find their reasons convincing.


So, despite not being religious, I would not purge the religious accounts of equality and fundamental rights from the realm of intellectually respectable ideas or from the public square. Indeed, I will end on a on wistful and worried note. Professor Waldron suggests that “perhaps some of the foundations” of our morality “have [a] nonnegotiable character;” (188) they must be obeyed and are not subject to revision in light of our other commitments. These foundations “may include the basic equality of all human beings, and I wonder whether a religious grounding might not be a good way of characterizing this particularly strenuous form of objective resilience”. (188) Perhaps the same might be said about liberty, or its more specific instantiations, such as the freedom of conscience and the freedom of speech.

And so, like Professor Waldron, I wonder whether a world, call it Jefferson’s world if you like, in which there was certainty about the origin of rights ― and about their divine origin, and hence transcendant importance, too ― was not one in which rights could be more secure than in our world of pluralist doubt. Against that, we must count the reality of, on the whole, much greater respect for rights today than in Jefferson’s own time and in his own life. Still, it is difficult not to worry that our lack of confidence about the origin of rights leaves them vulnerable to the rhetoric of those who see rights (and other legal and constitutional limitations) as dispensable luxuries or outright obstacles in their pursuit of plans for remodelling human beings, society, and the world in the name of this or that ideal.

Nothing to Celebrate

Québec’s irreligious dress code proposal isn’t an opportunity to extol democracy, or to do away with judicial review of legislation

In a recent post at Policy Options, Joanna Baron and Geoffrey Sigalet argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, to insulate Bill 21, Québec’s proposed legislation making irreligion the province’s official creed from judicial scrutiny “is an opportunity for democratic renewal” in discussions about matters constitutional. In doing so, they come another step closer to overtly taking a position that has always been implicit in the arguments of many of section 33’s fans: that the enactment of the Charter was a mistake. Indeed, they go further and, intentionally or otherwise, make the same suggestion regarding the courts’ ability to enforce the federal division of powers under the Constitution Act, 1867. It is brave of Ms. Baron and Dr. Sigalet to make this argument with Bill 21 as a hook. Yet courageous though it is, the argument is not compelling.

Ms. Baron and Dr. Sigalet dismiss claims to the effect that, while section 33 prevents the scrutiny of Bill 21 for compliance with the Charter’s guarantees of religious freedom and equality, other constitutional arguments remain available. (I have presented one such argument, building on Maxime St-Hilaire’s work, here.) To them, they are no more than a “legalistic … distraction”. Opponents of Bill 21 should, rather, be “making the democratic case for protecting religious freedom”. Indeed, we should be celebrating “the legislative process … with its tradition of active debate”, which allows Québec to take a “collaborative approach to fleshing out important rights”. We should also be celebrating street protests, open letters, and even threats of disobedience issued by some of the organizations that will be responsible for applying Bill 21 when it becomes law. After all, letting the courts apply the Charter “can wind up overriding rights in ways similar to Bill 21”, while causing “an atrophying of the democratic process as a forum where rights are debated, articulated and enacted”. In short, “rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.”

I agree with this last point. Rights are unlikely to enjoy much protection in a political culture in which they are seen as something of concern to the courts alone. In one way or another ― whether through judicial acquiescence or through legislative override ― whatever constitutional protections for rights might exist in such a society will be cast aside. Québec is an excellent example of this. And, for my part, I have made a political, as well as a legal, case against Bill 21 here. The two can, and should, coexist.

And this is where Ms. Baron and Dr. Sigalet go badly wrong. In their headlong rush to praise politics, they denigrate the law. Without seriously addressing their merits, their dismiss plausible (albeit, to be fair, not unassailable) legal arguments as mere legalism. This applies not only to an argument based on the Charter, but also to one based on federalism. Presumably, we should count on the political process to sort out which of two different but equally democratic majorities should have the ability to impose its religious views on Canadians ― or any other issues about which order of government has the ability to legislate with respect to a particular subject. Similarly, Ms. Baron and Dr. Sigalet appear to see no harm in state institutions, such as school boards, threatening to act lawlessly, the Rule of Law be damned.

Ms. Baron and Dr. Sigalet also take a remarkably optimistic view of the political process. They say not a word of the fact that the “active debate” for which the praise Québec’s legislature may well be curtailed by the government. They call for democratic persuasion in the face of a law that is designed to impose few, if any, burdens, at least in the way in which it is likely to be enforced, on Québec’s lapsed-Catholic majority, and great burdens on a few minority groups that have long been subjects of suspicion if not outright vilification. A thoughtful advocate of democratic control over rights issues, Jeremy Waldron, at least worried in his “The Core of the Case against Judicial Review” about the possibility that political majorities will put their interests above the rights of minority groups. “Injustice”, he writes, “is what happens when the rights or interests of the minority are
wrongly subordinated to those of the majority”, (1396) and we may legitimately worry about the tyranny of the majority when political majorities dispose of the rights of minority groups without heeding their concerns. Ms. Baron and Dr. Sigalet show no sign of being so worried, or of entertaining the possibility that the Québec society’s commitment to religious liberty is fundamentally deficient.

To be sure, Professor Waldron (rightly) reminds us that minorities “may be wrong about the rights they have; the majority may be right”. (1397) He also insists that, in societies genuinely committed to rights, it will rarely be the case that questions of rights will provoke neat splits between majority and minority groups. Still, we should be mindful of his acknowledgement that it in is cases like Bill 21, where majorities focus on their own preoccupations and are willing to simply impose their views on minorities, that the arguments in favour of judicial enforcement of constitutional rights protections are at their strongest. There is also a very strong argument ― and a democratic argument, too ― to be made in support of judicial enforcement of the federal division of powers, which serves to preserve the prerogative of democratic majorities to decide, or not to decide, certain issues.

Ms. Baron and Dr. Sigalet do not recognize these arguments, which leads me to the conclusion that they see no room for (strong-form) judicial review of legislation, under any circumstances. I believe that this position, at least so far as the Charter is concerned, is implicit in most if not all of the recent attempts to rehabilitate section 33. If one argues that we should trust legislatures to sometime come to views about rights that deserve to prevail over those of the courts, indeed perhaps to correct judicial mistakes, then why trust them in some cases only, and not in all? The application of this logic to federalism isn’t as familiar in the Canadian context, but in for a penny, in for a pound, I suppose.

Yet in my view, this is a mistake. As the circumstances surrounding Bill 21 show, politics is often little more than the imposition of the preferences of one group on another by brute force. This is as true in a democracy as it is under any other political regime. Democracy makes it more likely (although it does not guarantee) that the triumphant group will be a majority of the citizenry, which may or may not be a good thing. Democracy means that governmental decrees are, in principle (although not always in practice) reversible, and this is most definitely a good thing, and the reason why democracy is the least bad form of government. But I see no basis for pretending that democratic politics is somehow wise, or that it fosters meaningful debate about rights or other constitutional issues. Yes, there are some examples of that, on which opponents of judicial review of legislation like to seize. But these examples are few and far between and, more importantly, nothing about the nature of democratic politics makes their regular occurrence likely.

And of course it is true that strong-form judicial review of legislation, or judicial enforcement of rights (and of federalism) more broadly, sometimes fails to protect rights as fully as it should. I’m not sure that Dr. Sigalet and Ms. Baron’s chosen example, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, is especially compelling ― I think the case was wrongly decided, but the majority’s position at least rested on the sort of concern that can in principle justify limitations on rights. The more recent decisions in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case are much worse in this regard, and provide compelling examples of an abject judicial failure to enforce the rights of a (rightly) maligned minority against an overbearing majority. Judicial review provides only a chance that what the political or administrative process got wrong will be set right, not a guarantee. But there is no compelling reason to think that the (usual) availability of judicial review causes the political debate about rights or other constitutional issues to atrophy. After all, as I have argued here, politicians are just as wont to ignore the constitution when they know or think that their decisions are not judicially reviewable as when they know that they are.  

In short, I am all for making the case for rights, and even federalism, outside the courtroom, and in ways that do not only speak to those carrying the privilege, or the burden, of legal training. I am all for making submissions to legislatures to try to prevent them from committing an injustice ― I’ve done it myself. And I’m all for protest, and even for civil disobedience by ordinary citizens when the politicians won’t listen ― though I have serious misgivings about officials declining to follow the law, partly for the reasons co-blogger Mark Mancini outlined here, and partly due to concerns of my own. But if the legally-minded among us should not neglect the political realm, then the politically-inclined should not disparage the law. The would-be prophets of popular sovereignty ought to remember Edward Coke’s words in his report of Prohibitions del Roy :

the law [is] the golden met-wand and measure to try the causes of the subjects; and which protect[s] His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege.

This is no less true of today’s democratic sovereign, though it be no less apt to stand on its own dignity as James I.

Doing Right on Rights

Why the Supreme Court was right to find the disenfranchisement of Canadians abroad unconstitutional

In my last post, I summarized the majority, concurring, and dissenting opinions delivered in Frank v Canada (Attorney General), 2019 SCC 1, which held that the denial of the franchise to Canadians who have resided outside the country for more than five years is unconstitutional. As noted there, I believe that the majority, whose opinion was delivered by Chief Justice Wagner was correct so to hold. In this post, I explain why, and also make some observations about the strongly-worded dissent by Justices Côté and Brown. To make my biases clear once again, I remind readers that I am a Canadian abroad myself, and have been for six of the past eight years. While I vote rarely and reluctantly, I am emotionally invested in the issue of whether my right to do so can be taken away. Feel free to discount the following accordingly.


While I am the subject of emotions, let me say this. Justices Côté and Brown assert that the denial of the right to vote to Canadians abroad “is not a distinction based on moral worth”. [168] By my lights, that’s precisely what it is. On their own view, it is the product of “normative conceptions of what the Canadian political community is, and how it can best be protected and made to flourish”. [139] The conception embraced by Parliament in enacting the provisions invalidated in Frank sees the Canadian political community as excluding Canadians abroad, who are consequently less worthy of the franchise. Indeed, they are, according to the dissent, a threat from which the community must be protected, since it is “unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district”. [153]

This is utterly wrong. As the Chief Justice rightly observes, many Canadians who live abroad maintain strong ties with Canada (and, I would add, often with the local community where they used to live and, in many cases, intend to return). As the Chief Justice also says, “[c]onversely, there may be citizens who have never left Canada but whose subjective commitment to the country is much weaker and who are less well versed in local issues”. [68] Indeed, though it would be impolitic for a judge to say so, “may be” in this sentence should read “obviously are”. As, for example, Ilya Somin and Bryan Caplan respectively have shown, voters are both ignorant and irrational ― rationally so, but ignorant and irrational all the same. Yet we would not generally accept disenfranchising voters on that basis; we do not inquire into the degree of connection a voter has with his or her local community, or the country, before issuing him or her a ballot paper. It is only, it seems, in the case of expatriates that these things actually matter. To me, this is strong evidence that what is at work here is not really a concern with the fairness or integrity of Canada’s electoral system, but a judgment, or rather prejudice, about the moral worth of those Canadians who are taken to have left the community, and must “rejoin[]” [153] before being allowed to take part in the community’s affairs.

Now, it is true that most Canadians abroad do not, in fact, go to the hassle and the expense of requesting a special ballot and returning it to Elections Canada. This means, of course, that the idea of non-resident voters swamping elections and deciding them at the expense of residents is far-fetched if not entirely implausible. But more importantly, as the Chief Justice points out, this means that those who do take the trouble value their involvement in Canada’s political life ― probably more so than a great many of their resident fellow-citizens. In the Chief Justice’s words, they “demonstrate[] a profound attachment to Canada”, [75] and it seems absurd to pretend otherwise on the basis of no evidence whatsoever.


This brings me to another issue: that of the correct approach to deciding whether legislation is unconstitutional because it unjustifiably contravenes the Canadian Charter of Rights and Freedoms. Justices Côté and Brown issue what they regard as a profound challenge to the way we not only discuss but also think about the relationship between Charter rights and policies that interfere with them. They note that it is commonplace to speak of such policies as “infringing” or even “violating” rights, only for these “infringements” or “violations” to be upheld, or “saved” by applying section 1 of the Charter. Yet, as they further point out, section 1 provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” ― limits, not infringements or violations. So we should stop talking about justified infringements, and talk about limits instead. The majority is not interested, observing that the words “limits” and “infringements” have long been used interchangeably. (The Chief Justice is probably too polite to note this, but I am not: Justices Côté and Brown themselves spoke in terms of “infringement” as recently as seven months ago, in their excellent dissent in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.)

I take the dissent’s textual point. The word section 1 uses is “limits”, and it arguably makes more sense to say that the state can justifiably limit rights, not that it can violate them. But I fail to see what great change to the way we actually think about rights and scrutinize the state’s possible interference with them follows from this. Contrary to some, indeed quite a few, of the participants in this blog’s recent 12 Days of Christmas symposium, Justices Côté and Brown show no interest in reconsidering the test for verifying the permissibility of limitations on rights that was first set out in R v Oakes, [1986] 1 SCR 103. They apply the same proportionality analysis, warts, subjectivity, and all, under the label of assessing the “limit” on the right to vote as the majority does when considering “infringement” of this right. They have much to say about the fact that the right to vote is a “positive” one, requiring legislation to “breathe[] life into” it, [142] but that it is true of many of the rights the Charter protects (notably, but by no means only, the various rights of criminal suspects and accused) and, more importantly, it simply does not follow that the legislation that “breathes life into the right” may not fail to do so to a constitutionally required standard. (Similarly, Justices Côté and Brown point out that the legislation imposing a five-year expiry period on expatriates’ franchise replaced that which gave no expatriates the vote. So what? The test of constitutionality is not whether Parliament comes closer to respecting the Charter than it once did, but whether it respects the Charter now.)

The real methodological disagreement between the dissent and the majority (as well as Justice Rowe’s concurrence) has to do with the level of deference each accords Parliament. The majority insists, at the outset, that “[a]ny limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification”. [1] Although, as noted in yesterday’s post, it later wavers a little on this point, its approach is, indeed, one that refuses to take the government’s claims about the need for or usefulness of the legislation it examines on faith. By contrast, the dissent waxes deferential, “eschews rigid and technical application” [124] ― it’s not quite clear of what, but presumably of the justification requirements ―, and plays up “Parliament’s policy-making expertise”. [126]

Yet here the dissenters’ professed textualism fails them. To repeat, section 1 of the Charter says that “only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis mine) can be countenanced. The constitutional text, therefore, requires a demonstration ― not judicial acquiescence on the basis that Parliament knows best. And this requirement, in turn, suggests that contrary to what Justices Côté and Brown say Charter rights can only be limited in order to deal with an identifiable problem, to address some specified mischief, and not merely because a legislature thinks that in an ideal political community these rights would be limited in this way. The enactment of the Charter, as a law superior to ordinary legislation, has taken that moral judgment out of the Canadian legislatures’ hands. (To be clear, this is a separate question from that of the permissibility of what used to be called “morals legislation”, which proscribes what the legislature sees as immoral behaviour, such as taking drugs. There is no argument that expatriates act immorally by voting.)

In short, by all means, let’s be careful with our language, and speak of reasonable limits on rights instead justified violations. But let’s also insist that limitations on rights, to qualify as reasonable, must be ones whose justification is capable of being demonstrated, rather than merely asserted, and is in fact demonstrated, rather than taken for granted. Indeed, I think that this substantive concern is rather more important than the semantic one. In Frank, it is the majority, not the dissent, that follows an approach that is closer to that required by the constitution.


In my view, the majority decided Frank more or less as it should have. It correctly insisted that any exclusion from the franchise except the one based on citizenship must be justified. Contrary to the dissent’s strident warnings, it does not follow that no exclusions could ever treated as reasonable limits ― only that the justification process for upholding these limits cannot be elided by saying that some limits on the right to vote must obviously be admissible. This goes even for the denial of the right to vote minors (which, as Ilya Somin, for example, has argued, is not as self-evidently reasonable as the dissenters would like us to think). I think that it would be quite easy to sustain the disenfranchisement of three-year-olds, the dissent’s scaremongering example, should anyone challenge it; but as for the denial of the vote to teenagers, I for one wouldn’t mind seeing the governments put through their justificatory paces.

The majority is also right to be skeptical of the government’s arguments based on an ill-defined “social contract” of which expatriates are allegedly no part. I’m not too impressed with the Chief Justice’s definition of Parliament’s objective in terms of “fairness” ― fairness is too capacious a word for my liking, and the dissent’s suggestion that Parliament was pursuing a currency of relationship between the voter and his or her community seems closer to the mark. But one should also acknowledge that objectives that are largely symbolic (or, as Justices Côté and Brown see it, moral) do not lend themselves to easy definition, and so inevitably compromise the quality of the Charter analysis. The majority’s skepticism about the existence of a rational connection between the objective of fairness and disenfranchisement of Canadians abroad is also warranted. Indeed, I would have liked the Chief Justice to have been bold enough to say that, given both the possibility that expatriates maintain current links with Canada and their Canadian communities, and the lack of any assessment of whether any other voters do so, disenfranchising expatriates alone based on their deemed lack of connection to Canada is actually irrational. But the Chief Justice is not the first judge not to want to go there.

I’ll live with that, because the Chief Justice ends up making the right arguments at the “minimal impairment” stage of the analysis. Like I had in criticizing the decision of the Court of Appeal for Ontario in this case, he points out that Canadians abroad can and do maintain close links with Canada; that they are affected by Canadian laws and government policies; that, moreover, “Parliament can change laws on its own initiative and thus alter the extent to which Canadian legislation applies to non-resident citizens”, [72] so that one cannot invoke the limited scope of current extra-territorial legislation to deny expatriates the vote ― I had called this “let[ting] the statutory tail wag the constitutional dog”; and that in any event “attempting to tailor Charter rights to the extent to which citizens are burdened, or not burdened, by Canadian laws would be an impossible exercise”. [71] If all this is not enough to qualify the disenfranchisement of expatriates as irrational, than it certainly suffices, as the Chief Justice says, to show that it is grossly overbroad, and not “minimally impairing” of the right to vote.

The Chief Justice’s reasons are not perfect. He does, as the dissent points out, get somewhat carried away in patriotic praise for the Canadian democracy, and there are shades of what I’ve been calling “constitutionalism from the cave” in his claim that “a broad interpretation of” the Charter‘s guarantee of the right to vote “enhances the quality of our democracy and strengthens the values on which our free and democratic state is premised”. [27] Constitutional interpretation must aim at ascertaining the text’s meaning, not at strengthening values or anything of the sort. Still, what the Chief Justice’s opinion for the majority does is substantially in line with the constitutional text, despite its rhetorical imperfections. (And still on the subject of rhetoric, or style: can someone please ask the Chief Justice and his colleagues to stop using the initialism “AGC”? It is a recent innovation ― the Court hadn’t done it at all before 2010 ― and not a good one. It is ugly and has a jargon-y feel that is quite at odds with the Chief Justice’s stated desire to make the Court’s work more accessible, including to laypersons.) But as majority opinions of Supreme Court have gone in the last few years, the one in Frank is up there with the best.


The Supreme Court has held that Canadians who live abroad cannot be disenfranchised based on, in effect, stereotypes about their lack of relationship with their home country. This is a relief. In doing so, it has insisted on carefully and critically examining the government’s claimed reasons for limiting Charter rights, and this is a good thing too, one that doesn’t happen often enough. There is something to learn from the dissenting opinion, too, about our constitutional vocabulary, and I hope that this lesson is not lost just because the substance of that opinion is bitterly disappointing. But the constitution was upheld in Frank, and so right was done. May 2019 bring more of that.

The Bowels of Administrative Law

Administrative guidelines that make it difficult to challenge the administrative state.

In the United States, the Administrative Procedure Act governs federal administrative decision-making. Among other things, the APA prescribes a number of minimum standards for what I call the “bowels” of administrative law—the ugly business of rules, regulations, and guidelines adopted under statutory authority that touch the everyday person.  For example, when an agency promulgates rules made pursuant to congressionally delegated authority, the agency must provide the public with adequate “notice and comment” procedures, calibrated to the importance of the rule. On the other hand, rules that are merely policy or interpretive guidelines are generally not subject to notice and comment procedure. When an agency, however, exercises its delegated powers, it must provide adequate notice and comment.

In my view, the APA provides some acknowledgement that internal agency guidelines, even procedural ones, could impact substantive rights. It presents a supralegislative standard that certain procedural guidelines must meet if there is a chance that the rights and interests of citizens could be impacted. This, to my mind, is the primary function of the notice and comment procedure. It gives citizens the right to have a say on the sorts of rules that may adversely impact their ability to challenge administrative action. It is an attempt to reconcile the deep constitutional challenge of the administrative state with the rights and freedoms of individuals.

In Canada, on the other hand, little academic work focuses on the sort of internal agency guideline I’m concerned with—putatively procedural guidelines, adopted under statutory authority, that could have a significant impact on the ability of claimants to challenge administrative action. This could leave administrative decisions insulated from challenge. Putting aside the historical work of John Willis, a notable recent exception is the work of Lorne Sossin, who in a series of articles fleshes out a framework for classifying the wide gamut of agency guidelines and directives that could structure the broad statutory discretion of an administrative decision-maker. Professor Sossin has done a service in this regard, and I can do no better than a piece by Professor Sossin and France Houle. But I merely wish to underline a point made by Professor Sossin and Houle. In Canada, we have not grappled with the role that procedural guidelines could play in impacting the ability of citizens to challenge the state.  Relatedly, we have not addressed what role citizens should and do play in the formulation and adoption of these guidelines.

From one perspective, agencies empowered by legislatures can be seen as operating in a deeply democratic space to which courts should defer. By that, I mean that agencies particularize democratic mandates adopted by the legislature in a way that the legislature simply cannot.  Agency guidelines can develop the legal order or fill gaps in it. Much like a principal-agent relationship, the agency stands at the “hard end” of administrative law, achieving the legislature’s goals while efficiently and expertly managing disputes. As Metzger and Stack argue, we must view this business of administrative law as “administrative government” in an “administrative world”—these tribunals are fundamental parts of the law-making state in the modern world. It follows that overbearing “legal” norms should not be used to disincentivize the development of agency and policy guidelines.

But we know in Canada that, even when acting pursuant to statutory authority, administrative decision-makers do not have free rein. According to Roncarelli, there is no such thing as untrammelled discretion that can operate without regard to some intelligible statutory delegative principle. At the same time, beyond this general proposition, there is no general doctrinal guide for when courts should be skeptical of internal, procedural guidelines that could impact on the ability of litigants to challenge administrative action–with or without adherence to a statutory delegation.

A statute, for example, that delegates an agency the full power to develop rules of evidence leaves a great deal of discretion to the agency to decide on the sort of disclosure it must grant a claimant. Short of a constitutional challenge based on the case to meet principle and principles of fundamental justice, an agency could limit the disclosure of evidence to a claimant. This might seem benign. But it could make more difficult challenges to administrative action because a claimant may not have the best evidence to challenge the administrative decision. The effect? Less investigation of administrative action.

Standing rules are a better example. The legislature could delegate broad power to an agency to determine who has standing to challenge decisions. Any procedural rule adopted under this broad authority could be legal, but that same rule could pose problems for other rights and interests.   On one hand, if the agency adopts a liberal standing rule, more claimants will be let through the door and have the ability to hold agency decisions to account. Such a rule would exact a cost in the coin of agency resources, and that alone may impact the ability of the agency to efficiently respond to other complaints. On the other hand, a restrictive standing rule exacts a cost in a very different currency: the rule of law. If, under broad statutory authority, an agency adopts a standing rule that permits the denial of standing to many claimants, an administrative decision could be practically immunized from review. The concern is that the administrative state could  use the statutory authority it has been given to entrench its own power or the power of stakeholders. In such a situation, an agency could insulate itself from meaningful review while still acting within the four corners of a statute.

This is not a hypothetical situation. In Delta Air Lines v Lukacs, the Supreme Court recently dealt with the Canadian Transportation Agency’s interpretation of its own rules for standing, governed by a broad statutory authority. In that case, it did not appear that the Agency adopted a written rule for the situations in which it would grant standing. But it did adopt a particular version of the common law test for standing that made it more difficult for claimants to challenge the Agency’s action. While the Supreme Court held that this version of the common law test was inconsistent with the Agency’s enabling statute, what about a case where there is a restrictive standing guideline that is consistent with the enabling statute? In such a case, many claimants could be excluded. And the worry is that an agency could be insulated from review based on an arbitrary guideline.

The difficulty of addressing this problem should not be understated. In fact, this may not even be a “problem” that can be addressed through the courts. As noted above, the use of so-called “soft law” can be placed on a spectrum. As KC Davis noted in his important work, Discretionary Justice, we could have mere policy directives moving along into quasi-legislative rules. On the former end of the spectrum, such guidelines may not have the force of law. Even quasi-legislative rules that as Sossin and Houle note could develop or interpret the legal order may not themselves be justiciable. If these guidelines are adopted within the bounds of statutory authority, what warrant does a court have to intervene?

I’m not opposed to this line of thinking, because legislative intent defines the scope of agency authority. At the same time, there is something unsatisfying about the conclusion that agencies can themselves lower the probability of their decisions being scrutinized by litigants and ultimately courts. For that reason, as the Americans determined, the legislature is probably the best place to reckon with the difficult balance required between the delegation of power to administrative decision-makers and the ability of claimants to challenge agency action. A legislature could prescribe standards that allow claimants to have a say in the sorts of guidelines adopted by an agency. I do not expect such legislative guidance to come any time soon. But one could hope for the regulation of administrative law’s bowels.

 

The Panglossian Peril

The dangers of naïve optimism in thinking about constitutional constraint

In a provocative paper recently posted on SSRN (and based on the HLA Hart Memorial Lecture delivered last year at Oxford), Frederick Schauer challenges a fairly common tendency to argue that apparent conflicts between rights and important interests, or among rights, are illusory, and that, properly understood, these rights and interests can be reconciled so as to avoid the conflict. Professor Schauer calls this tendency “Panglossianism”, after the obstinately and obliviously optimistic character of Voltaire’s Candide, and argues that it makes for muddled thinking that will end up compromising the rights that Panglossians purport to value. Professor Schauer makes important points, although I am not persuaded by his takeaway.

* * *

Professor Schauer wants us to recognize that we cannot have it all ― socially desirable policies fully implemented and rights fully protected at the same time. He laments

the common but nonetheless troubling tendency of many people to perceive (or distort) the empirical aspects of various interests in a manner that eliminates the conflict between them and other interests, or between those interests and the rights with which they may conflict. And although people sometimes thus perceive interests in ways that make rights appear cost-free, they also indulge in the equally common tendency to define rights in a way that similarly eliminates the constraints that rights sometimes impose on legitimate interests. (1-2)

To relate just one of the examples he uses, when it comes to prohibitions on hate speech, those who oppose them will often insist that hate speech is not especially harmful, or is not harmful in ways that anyone should really care about, so that upholding the right to freedom of expression has no real cost. Conversely, many of those who support the criminalization of hate speech invoke the mantra of “hate speech is not free speech”, similarly insisting that their preferred resolution of this issue is costless. “Panglossianism” can accordingly involve either a reading of the data (or speculation) about the effects of policies that minimizes their impact on rights, or a redefinition of rights or other constitutional rules that narrows them so as to ensure that a favoured policy is not precluded.

Professor Schauer argues that Panglossianism is a mechanism people deploy to deal with the threat of cognitive dissonance that they might experience if they acknowledge that their preferred policies and constitutional commitments are in tension, and even in conflict. It is easier to believe, and to say, that such conflicts are not real, or can easily avoided, than to deal with them, which would mean taking sides, recognizing that one is wrong about rights or that one’s preferred policy cannot be implemented.

Yet Panglossiansim is a problem, for two reasons. First, intellectual honesty requires us “to avoid attempting to see the empirical world through the rose-colored glasses of one’s own normative desires”. (18) And second, rights are safer if they are not justified on the basis of empirical claims that are either  weak to begin with, or at best “temporally or culturally contingent [so that] the right may turn out to be weakened or inapplicable under different empirical conditions”. (19) Rights are stronger if they are grounded in pure moral principle than if their continued existence depends on whether it is, or is not, relatively harmless. Indeed, if only harmless rights deserve protection, then not much is going to be protected at all. Professor Schauer warns that policy-makers (whether in the legislative or in the executive branch) can Panglossians too; they will tempted to insist that there is no conflict between their preferred policy and constitutional restrictions on their action. But

[u]nlike the rights-concerned Panglossian commentator or advocate who interprets – or distorts – the empirical data so as to eliminate a conflict between policies and rights, here the official is more likely to attempt to eliminate the conflict between policy preferences and constitutional constraints by understanding the constraints in a way that makes them inapplicable to the issue at hand. (22)

Panglossianism, Professor Schauer notes, can undermine not only rights protections, but all manner of intended constitutional rules. Resorting to it may be psychologically comforting, but it will weaken the very idea of constitutional constraints on governments’ pursuit of their preferred policies.

* * *

I think that Professor Schauer describes a real problem. It is indeed tempting to say that the enforcement of one’s favoured right does not compromise the attainment of valuable policy goals or the respect of other rights; it is similarly tempting to insist the implementation of one’s preferred policy conflicts with no real rights, properly understood. Debates about free speech are one area where this dynamic is especially visible, as Professor Schauer notes, but there are any number of others. It is arguable (which is not necessarily to say true) that the controversy over the federal government’s demand that religious groups “attest” to the compatibility between their “core mandate” and (some) Charter rights, about which I’ve written here, also involves Panglossian arguments on both sides.

And Professor Schauer is quite right to point out that Panglossianism can affect thinking about structural constitutional rules, and not just rights. Indeed, I would suggest that in Canadian constitutional law, Panglossianism is an especially strong danger in federalism jurisprudence. In Charter cases, section 1, which authorizes the imposition of “limits” to rights, channels the analysis into a more explicit consideration of the conflict between rights (which tend to be defined in broad and abstract terms) and policy reasons for restricting them. By contrast, the movement towards the erosion of the exclusivity of federal and provincial heads of power under the banner of “co-operative federalism” proceeds from the Supreme Court’s unwillingness to acknowledge the existence of conflict between what it sees as desirable policy and the federal division of powers. Federalism analysis simply makes no room for the acknowledgement of this conflict. This is not to say that we should change the way we approach it ― but we should beware the Panglossian dangers inherent in what we do.

Yet while I think that there is a great deal of truth to Professor Schauer’s diagnosis of the pathologies of Panglossianism, his prescriptions against it may not be especially salutary. Professor Schauer does not tell us much about how to assess what he sees as potentially-Panglossian claims about the effects of policies or the scope of rights. He warns against thinking, for instance, that not punishing hate speech is costless because such speech does not really cause any social evils. Fair enough ― those of us opposed to bans on hate speech on normative grounds will be tempted to downplay its effects. But what if it really doesn’t have any? Conversely, if hate speech really is socially harmful, that happens to align with the preferences of those who want to ban it. Both sides in this particular debate cannot, I think, be wrong at the same time. The mere fact that an empirical claim aligns with someone’s prior normative preferences cannot mean that the claim is wrong. The same applies to claims about the scope of rights (to the extent that these can be said to be correct or incorrect at all).

So while we should be wary of the dangers described by Professor Schauer, he has not convinced me to give up on empirical or otherwise contextualized thinking about rights in favour of a priori philosophizing. This is all the more so in the numerous cases that concern what might be described as marginal (possible) infringements of rights. Perhaps the hate speech question, which is about whether people can be prevented from saying certain things at all can be sufficiently resolved by an a priori insistence that such bans are never permissible. Note, though, that the argument wouldn’t work the other way: a case for banning hate speech can only be made if one is allowed to rely on empirical considerations (unless of course one takes the position that there is no right to free speech at all and anything can be banned). But what about, say, restrictions on financing political parties? Most people accept that at least some restrictions are acceptable (most people in North America, anyway; New Zealand has no limit on how much one can give, and seems to be doing just fine!). Many ― most, I hope ― would also agree that some restrictions are too extreme and cannot be justified. The issue is where to draw the line, and where to err in doubt. I don’t think that we can give remotely interesting answers to these questions without knowing something about the current practices of political fundraising and the likely effects of raising or lowering the existing restrictions. Again, Professor Schauer’s warnings about Panglossianism are relevant, but his suggestion that we resolve our questions by reference to first principles alone is not helpful.

Now, Professor Schauer is right, of course, that any empirically contingent answers might be inapplicable under different circumstances. He might be overstating the extent to which this is a problem: I’m not sure, for instance, that cultural contingency of rights protections is objectionable; it’s not obvious that rights must be the same everywhere and at all times. However, to the extent that, within a legal order, rights are implemented through judicially articulated constitutional doctrine, this doctrine risks being destabilized if the empirical or normative premises on which it is based are challenged by the evolution of society and of what we know about it. How to deal with this risk of instability (and its converse, the risk of a static doctrine divorced from reality) is a difficult question, to which I have no very good answers. But I doubt that we can avoid trying to get at some answers, at least, if only mediocre (and contingent!) ones.

Thinking about constitutional rules and their relationship with policy is a difficult business. Professor Schauer is right to remind us that we are too often tempted to oversimplify it by pretending that contradictions between our normative commitments and policy preferences are less significant than they really are. Unfortunately, he doesn’t offer us much by way of useful advice for identifying the exact situations where our thinking is so sidetracked, and his suggestion that we think more about abstract principle than about the real-world effect of policy does not strike me as especially helpful. Nevertheless, Professor Schauer’s warning is an important one, and we should heed it even if we conclude that we must continue exposing ourselves to the dangers he highlights.

Not Withstanding Scrutiny

The Saskatchewan government hasn’t justified its resort to the notwithstanding clause in the Catholic school funding case

Yesterday, I summarized and briefly commented on the decision of the Saskatchewan Court of Queen’s Bench in  in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which held that funding Catholic schools for educating non-Catholic students was an unjustifiable infringement of religious liberty and equality guarantees of the Canadian Charter of Rights and Freedoms. In my view this decision is correct. However, plenty of people disagree. Importantly, so does the government of Saskatchewan, which has announced that it will have the provincial legislation resort to the Charter‘s “notwithstanding clause” to nullify the Court’s decision, ostensibly in the name of school choice. Some thoughtful people, like Emmett Macfarlane and Dennis Baker, are supportive of the idea. In my view, however, it is misguided and hypocritical, not to mention illustrative of why the notwithstanding clause should never be used.

The best justification for occasionally resorting to section 33 of the Charter, which allows a legislature to suspend for a renewable period of up to five years the operation of constitutionally protected right is that the legislature disagrees with the courts’ interpretation of that right. After all, if the truth about rights, to borrow a phrase from Jeremy Waldron, exists at all, it’s not obvious that courts have privileged access to it. Questions about rights, about what counts as justifiable limitations of rights, are difficult, and reasonable people can disagree about them. In the face of such disagreement, isn’t it acceptable for the people’s elected representatives to decide that their views ought to prevail over those of unelected judges?

Trouble is, this solemn scene ― representatives of the people deliberating about rights and coming to conclusions that are reasoned and reasonable, if different from the judges’ ― has not taken place in Saskatchewan. The government doesn’t say that it disagrees with Justice Layh’s views about the scope of religious liberty or equality. It does not argue that the constitutionally protected freedom of religion does not encompass a duty of religious neutrality on the part of the state. It does not say that granting funding for students outside of a school’s denomination to Catholic schools and to no others is consistent with neutrality or not discriminatory. It is content to state the objective of “school choice” ― which, by the way, I think is a laudable objective, but which the government’s lawyers didn’t even dare put to the Court ― as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so. This is not what the defenders of the notwithstanding clause, or indeed the critics of any judicial enforcement of individual rights, say they have in mind. Why, then, do they defend the Saskatchewan government?

The Charter, or any sort of system that protects individual rights against infringement by the state, is based on the idea that the end does not always justify the means. At most, there is a proportionality test, such as the one embodied in section 1 of the Charter. A pressing social objective can justify some limitations of rights, but no more than is necessary, and in particular, not if less restrictive means are available to the government. Of course, whether the means at issue in a given case are the least restrictive available is a difficult question, and legislatures and courts might disagree about that. But there is no sign that Saskatchewan’s government has given any thought to alternative ways of achieving its professed objective of school choice. Why, then, do those boosters of the “notwithstanding clause” that justify its use by the existence of reasonable disagreement defend this government?

In reality, the government’s position is doubly hypocritical. It is hypocritical, first, because although it is posing as the defender of school choice, it is the government that is ultimately responsible for limiting the choices of the parents at the centre of this litigation. The government funds public schools. Its funding was not sufficient to keep a rural school open. The school board decided to close it, and have students be bussed to a different one. Instead of accepting this, some parents took advantage of constitutional rules allowing them to set up a “separate” Catholic school―in a village where there had never been one―, and non-Catholic parents, who had never had any particular interest in Catholicism, decided to also send their children there. If the choices of these parents mattered as much as the government now says they do, the local public school would have stayed open, and this case would not have arisen.

The government is hypocritical, second, because it has perfectly constitutional options to provide even more school choice than it now does ― in which it appears to take no interest. The government could provide all groups, including all religious groups, with funds to educate students from outside their communities. That would be real, meaningful school choice ― not the rather limited choice of a public or a Catholic school, which is only a choice, as Justice Layh points out, for those who do not mind their children receiving a Catholic education. Sure that might be costly system ― but if school choice is important enough to override constitutional rights, surely it’s worth a little tax raise?

Instead of admitting that its position is driven by fiscal, and presumably ultimately electoral, considerations rather than an authentic concern with school choice, the government compounds its hypocrisy with misleading threats. It claims that “[t]he ruling [in Good Spirit School Division] could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.” The press release conveniently doesn’t mention the fact that this funding, which was not actually at issue in the Good Spirit School Division case, is less that the funding Catholic schools receive, and that at least the Huda School was on the side of the plaintiffs in the proceedings. Indeed, I wonder how the people involved the Huda School feel about being used in this way to make the government’s case considering the testimony of the school’s president at trial. Here’s how Justice Layh describes it:

he asked why the Huda School cannot receive funding to educate non-Muslim students, just like Catholic schools receive funding to educate non-Catholic students. The Huda School does not discriminate against hiring non-Muslim teachers (unlike Catholic schools). The majority of its teaching staff is non-Muslim. Dr. Aboguddah testified that the Huda School would welcome non-Muslim students to its growing school of 430 students (in 2016) which would provide an opportunity to build bridges with the broader Canadian community to reduce the stereotyping and negative image affecting the Muslim community in light of recent world events. [397]

A Rabbi similarly testified “that certain advantages would accrue to the small Jewish school in Regina if it received complete government funding for non-Jewish students.” [440] Again, if the government were committed to meaningful, non-discriminatory school choice, it would fund schools equally, regardless of who is behind them. The constitution would not stand in its way. It is its choice not to do so ― and it ought to accept the constitutional consequences of this choice.

Like a court looking to uphold a dubious administrative decision on a reasonableness standard, Profs. Macfarlane and Baker, and those who agree with them, offer their own reasons for why Justice Layh’s decision was wrong. I might return to that in a future post. Here, my point is that the government of Saskatchewan does not give any such reasons. Its justification for overriding this decision cannot withstand scrutiny. And it’s the government, not the thoughtful (if in my view mistaken) scholars, that gets to use the “notwithstanding clause”. If government were run by profs. Macfarlane and Baker, I would have fewer qualms about its ability to override judicial determinations of constitutional rights. But it is not.

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

Debts of Gratitude

Over at the CBA National Magazine, Rebecca Bromwich has an interesting article reminding us of our debt of gratitude to the campaigners for women’s suffrage, and arguing that we owe it to their memory to vote it in the upcoming election. The first point is important and well-taken. The second, in my view, does not follow.

Prof. Bromwich points out that

The story of Canadian democracy is one in which a debt is owed to military men, yes, but it is also a story of people of courage in civilian life, ordinary people doing extraordinary things. It was not just soldiers on battlefields who won for us our democracy but we owe our democratic rights but also women suffragists, who undertook many years of struggle, were beaten, jailed, went on hunger strikes, carried out acts of civil disobedience, and even died, for their cause.

That’s very true, and the reminder is important. People who agree with prof. Bromwich that gratitude to those to whom “we owe our democratic rights” is a reason for voting are indeed apt to single out soldiers in that category. But if the right to vote was preserved, at least in part, on the battlefield, it was largely won elsewhere. The activists who obtained the extension of the franchise to groups excluded from it ― and women, of course, were by far the largest such group ― also deserve our admiration and appreciation. Prof. Bromwich names many of those who helped create “firsts” in women’s suffrage, but let me also mention Thérèse Casgrain and Idola Saint-Jean, two of the campaigners who saw to it that the women of Québec were finally able to vote in provincial elections, albeit a generation after they gained that right for federal elections.

And let me mention, too, other “people of courage in civilian life” to whom we also owe our democratic rights. For example the citizens of the riding of Charlevoix who, in 1876, braved social reproof and religious condemnation to bear witness to the Catholic Church’s campaign of intimidation against those who dared exercise their franchise in accordance with their own conscience rather than that of their priests and bishops ― a story told in the report of the Supreme Court’s decision in Brassard v. Langevin, (1877) 1 SCR 145, and one I summarized here. And spare a thought, too, for the legislators who, even if too late, acceded to the suffragist campaigners’ demands. If we can lionize judges who recognize rights from the security of their life-tenured offices, we should do no less for legislators who put their career on the line for doing it.

All that said, unlike prof. Bromwich, I do not think that awareness of these debts of gratitude ought to “entice Canadians – all Canadians – to actually use their right to vote in the federal election set to take place” this fall. I would not support “a resolution that connects the centennial anniversaries of milestones in the achievement of women’s suffrage in Western Canada with the imperative for all Canadians to vote in the federal election.” I do not believe that our debts of gratitude to those who helped obtain or preserve our right to vote can translate into some sort of moral obligation to exercise this right.

Voting, needless to say, is not the only one of our rights that was took the courage and sacrifices of many people to be recognized. Yet one never hears that we owe it to those who won or defended these rights to actually exercise them. It is never said, for instance, that we ought to honour, say, Frank Roncarelli by attending worship (even at an atheist Church if we are so inclined!). There are very good reasons for honouring him, of course, but not only is it not incumbent on every citizen who benefits from his sacrifices to do so, but even if one is wishes to honour him, this can be done in any number of ways. Is there something special about the way in which the way in which the right to vote was won that compels all of us to honour those who won it by exercising it? I don’t think I have ever seen an argument to that effect.

There are, of course, other arguments in favour of a duty to vote. Prof. Bromwich mentions one of them when she says that “[t]he exercise of the right to vote is crucial for the legitimacy and healthy functioning of democracy.” (I do not find this or any other such argument persuasive, but that’s a matter I’ll take up in other posts as we approach the election.) However, these arguments are independent from the one based on gratitude. If it were true that we must vote in order to preserve a legitimate and well-functioning democracy, that would be true even democracy were the only political regime the world had ever known and there was nobody to thank for universal suffrage.

While I’m not convinced that this is a matter of duty rather than “merely” of civic virtue, we should of course be grateful to and honour those to whom we owe our rights. In the case of the right to vote, it is important to remember that our debt is not only to defended our democracy against totalitarianism, but also to those who helped create this democracy in the first place. But there are many ways to honour these people. Exercising the franchise is one of them, but not the only one. Our gratitude cannot ground a duty to discharge our debt to them in this specific way.