The Metastasis of Charter Vibes

The rigamarole around the notwithstanding clause this week has me thinking about the reach of the Charter, and in particular, a case that will be heard by the SCC early next year: A.B. v Northwest Territories. While there are other issues in the case, at its heart is a stark proposition: is it required for a government decision-maker to consider “Charter values” (or what I call “vibes”) even where it is accepted that a right is not engaged on the facts? One might think—as I do—that the answer to this question is “no.”

But others disagree, and with some precedent in support, and so the Supreme Court will soon hear this case. A.B. involves s.23 of the Charter, which provides the following:

               Language of instruction

23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

Continuity of language instruction
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant
(3) The right of citizens of Canada under sections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province;

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

As the NWTCA pointed out in the decision being appealed to the SCC, section 23, unlike some other constitutional rights, is rather precise: it delineates who is eligible to enjoy the constitutional right, and so its text inevitably “draws lines of eligibility” that will mean that there will be some “hard cases” that fall on either side of these lines [9]. This is a consequence of the finely-wrought s.23, which could have been phrased more broadly or generously, but isn’t.

As the NWTCA pointed out, this provision requires governments “to provide minority language education to those who have a right to it” [6] but “the government does have the discretion to allow the non-section 23 children to attend the minority language schools” [9]. In the NWT, at the time of the impugned decisions, this process was governed by a Ministerial Directive (and, of course, supplemented by ministerial residual discretion) , which provided that a “limited number” of non-section 23 children could be admitted [10].

Under this process, it was accepted that the A.B. family did not qualify under s.23 [10, 24]. And yet they argued that the Minister, in exercising her discretion and implementing the Directive, were required to consider the values underlying s.23 [28]. The chambers judge named some of the interests that would need to be considered by the Minister under the values-analysis:

…the needs of the linguistic minority and the need to foster the preservation and development of this community, in the exercise of her power over the admission of non-rights holders to minority language schools [28].

At the NWTCA, the majority of the Court rejected this contention. It held that this case did not implicate constitutional rights [59]. Rather, the essence of the claim was that the Minister should have considered values underpinning s.23 in considering whether the Minister properly exercised her discretion not to admit the non-rights holders. But as the Court stated, “[t]he obligations of the provinces and territories to observe and respect the Charter are collateral to the issues that were before the chambers judge” [59]. The point of the majority holding is simple: Charter values cannot be used to extend the protections of the Charter to those who otherwise are not eligible for the specific protections at issue. Rowbotham JA concurred, but would have required the Minister to consider s.23 [136].

In my view, the majority judgment cogently outlines a problem with Charter values—because of the lack of guidance on their scope and application, they can easily metastasize to expand the Charter in unexpected ways. This metastasis can occur in three ways. First, because Charter values are necessarily stated at a high level of abstraction, they can distort the interests protected by a purposive and textual interpretation of specific Charter rights (a concern raised by Rowe J in TWU). Second, a court can align a Charter value with a statutory objective, however broadly-stated, and in the face of a protected right, claim that an administrator can promote that Charter-sanctified statutory objective (as the majority pointed out in TWU, and as explained by Edward Cottrill here). This means that a state objective that otherwise may be directly contrary to an actually-protected right is given the imprimatur of constitutional benediction—that old chestnut. Third, Charter values can be used to “supplement” purported “deficiencies” or perceived lacunae in the Charter text. Because each Charter right delineates and narrows the interests that it protects, it is possible for a Charter value to come into play, even where an individual does not hold the benefit of the right.

A.B. presents this third situation. Like the other cases where Charter values are at play, there is arguably a distortion of the actually-existing Constitution. It would seem odd for there to be a duty on a Minister to consider the Charter where there is no one capable of claiming the right. This means that there is a normative constraint on the decision-maker to consider values (perhaps pale imitations of rights) that may not actually at issue in the case. Should this appear odd, it isn’t necessarily so to those who support Charter values. In Loyola, for example, the plurality seemed to draw an equality between rights and values, such that each are protections that can be claimed in any given case (see Loyola, at para 35). And as one author suggests, perhaps this means that even where a claimant does not have an official Charter right to claim “they ought to have had the protection of Charter values” (see here, at 79).

The key word here is “ought.” What s.23 ought to protect, in the view of one person, is evidently different than the value choices embedded in that provision.  I worry, specifically, about the use of Charter values to defeat the choices made in the Charter on this contentious issue. It distorts this Charter—as opposed to some other Charter of values—to ignore the specific choices made in the text, and to judicially-administer an ever-changing constitution of values, which can be raised where the actual Charter does not apply. The creation of two Charters must be avoided, and this should mean putting an end to expansive Charter values arguments that require judicial extension of existing rights.

There are a number of counter-arguments that could be advanced: some relating to administrative law precedent, and some to the specific context of s.23. It is true that the Supreme Court has referred to an administrative duty to consider Charter values. In Baker, the Court noted that “discretion must be exercised in accordance with the boundaries imposed by the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter” (Baker, at para 56). In Doré, the Court noted that administrative decisions are “always required to consider fundamental values” (Doré, at para 35). Even in the NWTCA decision, the Court claims that it is a “truism that public decision makers should always have regard to fundamental societal values, such as liberty, dignity, and equality” [57].

Putting aside that these values may already map onto existing Charter rights, or are otherwise amorphous and contested (they should not lead inexorably to some pre-determined outcome), I do not think these precedents can be marshalled in favour of the expansive proposition that Charter values are independent constraints on administrative discretion. It is obviously true that a decision-maker is required to consider Charter rights when those rights are argued. So, post-Vavilov, courts have found that when claimants do not raise Charter arguments before a decision-maker or only briefly refer to them, there is no concomitant duty on a decision-maker to engage in a Charter analysis (see e.g. Canada (Attorney General) v Robinson, 2022 FCA 59 at para 28). It’s only a small skip to the next step: of course administrators have a duty to consider the Charter, when a right is claimed, but values in the ether should not expand the scope of the Charter to situations where it “ought”  to apply.

More specifically, and for good reason, recent precedent of the SCC clamps down on these sorts of arguments: specifically City of Toronto and Quebec Inc.  While clarifying that the dominant approach to Charter interpretation is purposive in nature, the Court has finally confirmed that the text remains the starting point to all Charter interpretation. Unwritten principles and values may form a part of doctrinal construction, or construing the scope of a right—but these values must be properly-scoped, and they cannot be used to distort, undershoot, or overshoot the actual rights at hand. This is common sense in many ways, but the simple conclusions from these cases have a great deal of relevance for the continued use of Charter values.

It could also be argued that the specific context of s.23 would permit non-rights holders to act on behalf of the “entire Francophone community” [60]. In this way, the fact that the right is, in part, collective might signal that the Minister should consider s.23 “values.” I think this is wrong. To permit this would be to allow non-rights holders to “piggyback” on those who enjoy the right in question [60]. The collective aspect of a right does not require its extension in this fashion.

People who defend the Charter should be interested in ensuring its scope is limited to the sorts of interests it was meant to protect. The situation we have, these days, with the review of administrative decisions implicating constitutional rights is unsustainable. Most of it distorts orthodox constitutionalism. We have Doré , which can counsel weak review in particular cases when rights are actually advanced; and when rights are not advanced, A.B. brings forward the contention that the Charter applies nonetheless. We have a Charter of Values applying strongly where it shouldn’t, and a Charter of Rights being diluted by a deferential standard of review. This seems odd.

Nothing Doing

Why I’m not moved by the responses to my criticism of O’Bonsawin J’s appointment to the Supreme Court

I recently wrote a post that was sharply critical of the appointment of Justice Michelle O’Bonsawin to the Supreme Court of Canada. The National Post then ran a slightly modified version of it as an op-ed. Rob Breakenridge also interviewed me on my views. Somewhat to my surprise, the responses that have reached me were, on the whole, more supportive than not. While the public reaction to Justice O’Bonsawin’s appointment is almost uniformly positive (except for my post and op-ed, the only other sustained criticism came in The Line‘s editorial, which is more proof that you should subscribe to them), in reality there is a good deal of disappointment, some of it very bitter indeed, within and beyond the Canadian legal community.

That said, of course, quite a few people were also unpersuaded, or worse, by what I have had to say. I don’t think I have seen anyone attempt to rebut my argument to the effect that, considering the limitations of her career so far and the shallowness of the responses on her government questionnaire Justice O’Bonsawin lacks either the accomplishments or the intellectual excellence to be a Supreme Court judge. Instead, what has been put forward is any number of reasons why either my arguments or I should simply be ignored. In this post, I quickly respond to them, in rough descending order of seriousness and good faith.


You’re not impressed now, but Justice O’Bonsawin could still turn out to be great!

This is true, of course. She could. I’m not optimistic as to the likelihood of this, but I’ll be happy to be proven wrong. That said, I don’t think this is a good response to my criticism of Justice O’Bonsawin’s appointment. It’s a bit like saying that buying a lottery ticket is a good idea because one might end up winning. One might, but the odds are bad enough that it’s still an irresponsible decision. And while I’m content to stipulate that Justice O’Bonsawin’s odds of turning out to be a reasonably good Supreme Court judge (not everyone needs to be great!) are better than those of getting a winning lottery ticket, the cost of a bad choice is also rather more than just a few dollars. Justice O’Bonsawin could hold office for more than a quarter of a century. If she turns out to be a dud, c’est long longtemps as Quebeckers say. Appointments to the Supreme Court are not trifles to gamble with.

And, by the way, it is always important to remember the opportunity costs of decisions: appointing Justice O’Bonsawin means, among other things, not appointing some other, better qualified judge now. Realistically, it may also mean not appointing a better qualified Indigenous judge to the Supreme Court in the near or medium-term future; at the very least, the pressure for such an appointment will now be much less than it would have been otherwise. True, we’ll never hear about these unmade appointments. But the unseen is no less important than the seen.

You’re making too much of a silly questionnaire; it’s no basis to assess a future judge!

There’s something to this too. Justice Rowe turned out not to be the “judge unbound” I had expected him to be based on his questionnaire. Clearly, the method of predicting future judicial performance based on this has serious limitations. But while that may be a good argument against relying on it with respect to most appointments, Justice O’Bonsawin’s case is exceptional in that the questionnaire is well-nigh all that we can judge her appointment on. What is more, it is well-nigh all that that the government that appointed her had at its disposal. Unsurprisingly given the shortness of her career on the bench, Justice O’Bonsawin has written few judgments of importance ― few enough that she listed her PhD as one the top five pieces of writing, and that thesis has been hidden from public view. (By the way: I think some people have made too much of this; I wouldn’t expect to find some sort of smoking gun there; it’s probably boring; but having mentioned it as being one of her most significant outputs, Justice O’Bonsawin should not have kept it secret.) She has no academic publications. Her career as an in-house lawyer was also not the sort that leaves a record that lends itself to serious assessment. If we also ignore the questionnaire, we must conclude she is a cypher. Well, I don’t think cyphers are fit for appointment to the Supreme Court of Canada.

Admittedly, some people might disagree.

We shouldn’t even try assessing a newly-appointed judge! Let’s see how their career turns out and pass judgment once they retire.

First, I think it’s worth noting that this argument, which would have applied to every judicial appointment ever, seems to be brand new. Perhaps I have missed it being made in the past ― I’d be grateful if someone pointed me to previous examples ― but anyway I daresay it was not a common one. On the contrary, people were quite happy to criticize, for example, the appointments of Justice Brown to the Supreme Court and of Justices Huscroft and Miller to the Ontario Court of Appeal. People were also happy to praise the appointments of, say, Justice Jamal and indeed that of Justice O’Bonsawin to the Supreme Court, and if it’s too soon to criticize a new judicial appointment, then surely it is also too soon to praise it. I add that the government itself is obviously keen to take credit for its judicial appointments: it evidently doesn’t think that they cannot be assessed until long after it is out of office.

That said, to be sure, an argument isn’t wrong just because it’s new and convenient. But the claim that judicial appointments can only be criticized (or praised) retrospectively is simply wrong on the merits. Courts, and especially the Supreme Court, exercise considerable power. (Richard Albert has suggested that the Supreme Court of Canada might be the most powerful court in the world. Whether or not he is quite right about this, it is surely a very powerful institution.) At the same time, courts are ― by design, and rightly ― not meaningfully accountable for the exercise of their authority. It is, then, very important that the decisions as to whom to appoint to the bench, especially the Supreme Court, be made with a degree of thoughtfulness proportionate to its importance, and that these decisions be subject to meaningful accountability. Criticism of bad appointments, just like praise of good ones, is not only permissible but essential to ensure the government of the day takes this responsibility with all the required seriousness.

Are you saying only appellate judges/judges who have served on both trial and appellate courts should be appointed to the Supreme Court?

I said no such thing (and indeed I specifically got the Post to drop a proposed edit that might have carried that implication), but quite a few people seem to have concluded that I did. So, in case this clarification is useful, no I don’t think there’s a specific amount or sort of judicial, or indeed any other, experience that is mandatory for a future Supreme Court judge. Some of the smartest and most interesting judges in recent decades were appointed directly from the bar ― namely, Justices Sopinka, Binnie, and Côté. An appointment from a trial court is unusual (Beverley McLachlin was the Chief Justice of British Columbia’s Supreme Court, a trial court, when appointed to the Supreme Court of Canada, but she had served on the BC Court of Appeal before). But if a Supreme Court judge can lack any judicial experience at all, then having only trial court experience should be no obstacle. What one would want to see in appointee is a track record of excellence ― whether in practice, in the academy, on the bench, or in some mix of these ― and indications of some degree of brilliance. Again, there’s no one right route to this. Justice O’Bonsawin’s record, however, falls far short of what one would expect on the Supreme Court.

Not that this matters, according to some people. Now we’re getting into really silly territory.

Legal skills/qualifications are irrelevant anyway!

This too, I think, is a novel argument. And also a bad one. Even on the view that the law often “runs out” and decisions in hard cases have to rely on judges’ moral sense ― not by any means an uncontroversial view, and one of which I am sceptical (at least in this far-reaching form) but a widespread one ― judicial decision-making has to start with the law, even if it turns out that it cannot end there. If we aspire to anything like a government of laws rather than unaccountable personal rule, we should expect and demand that judges be skilful lawyers, whatever else they might also need to be.

You’re undermining confidence in the Supreme Court!

Sure I am. A Supreme Court one of whose members is not qualified for membership and should not have been appointed deserves less confidence than a court of which this is not true. That was the whole point of the litigation around the appointment of Justice Nadon ― another one which plenty of people thought it was permissible to criticize, by the way, including due to the perceived insufficiency of his credentials (which, whatever one makes of them, were considerably stronger than Justice O’Bonsawin). There is no question that Justice O’Bonsawin’s appointment is legal and constitutional. But, as I said in my original post, it is bad for Canada’s legal system all the same, and nothing requires me or anyone else to be an ostrich about it.

You’re racist/sexist!

We all knew this one coming, didn’t we? Criticizing the appointment of an Indigenous woman to the Supreme Court is, by itself, conclusive evidence of racism and/or sexism in some quarters of what is sometimes mistaken for polite society. Suffice it to say that attacks on, say, a John McWhorter or a J.K. Rowling from the same quarters are not held to be evidence of racism or sexism. The “principle” on which this sort of response to my post is based is just partisan horseshit. Like Pierre Trudeau, I’ve been called worse things by better people.


I think this about covers it. I should say, though, that there was less real horseshit than I had expected. Perhaps people had already decided that I am too much of a heretic to bother about. Perhaps they are quietly taking notes and not telling me. Either way, I suppose I will not be welcome in the “polite society” whence such accusations originate. That’s as well. I have as little time for it as it has for me.

I remain unpersuaded by the responses to my take on Justice O’Bonsawin’s appointment. She is not Supreme Court material, and should not be sitting on that court. And by the way, my saying so is no slight on her personally. There’s nothing wrong with not being Supreme Court material. Most lawyers aren’t. Probably even most judges, let alone most judges who have only spent five years on the bench. One can be a fine person and even a fine judge without this. But appointing someone who is not Supreme Court material to a role for which she is not qualified is a grave fault. We’re hearing much about whether this or that politician will undermine Canadian institutions. Sadly, the Prime Minister’s and the Justice Minister’s choice of Justice O’Bonsawin does just that.

A Little Representation

Justice O’Bonsawin is not qualified to be a Supreme Court judge

Last week, the Canadian government announced the appointment of Justice Michelle O’Bonsawin of the Ontario Superior Court of Justice to the Supreme Court. As I had done after the appointment of Justice Rowe, I have read the questionnaire in which she explains her views on her career, diversity, and the role of the Supreme Court and its judges. It brings to mind the notorious argument Roman Hruska, a US Senator from Nebraska, made on behalf of the nomination of G. Harrold Carswell to the US Supreme Court: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.” Justice O’Bonsawin, I am afraid, is also no Cardozo, and no Frankfurter either, for better and for worse.

Nothing in particular qualifies Justice O’Bonsawin for the Supreme Court. She had a seemingly ordinary career as in-house counsel, first at Canada post and then as General Counsel at the Royal Ottawa Health Care Group. I presume she has done good work there ― especially in relation to mental health, with which she seems to have been much concerned, given the nature of her job ― but it is not the stuff of stardom. She has been a Superior Court judge for five years and claims that she has “developed significant knowledge and expertise in our three areas of work: criminal, family and civil litigation”. So, presumably, does any other Superior Court judge, to say nothing of those on the Court of Appeal. Remarkably, Justice O’Bonsawin lists her PhD, for which she did most of the work while on the bench ― and which she has made inaccessible to the public! ―, among the “most significant cases or matters that [she] dealt with while in legal practice or as a judge”. Perhaps I am blasé, but this strikes me as a bit pathetic as a qualification for the Supreme Court, though of course, as Justice O’Bonsawin notes, getting it done while also having a demanding day job is a testament to her work ethic and commitment.

Justice O’Bonsawin’s answer to the question about her “insight into the variety and diversity of Canadians and their unique perspectives” is perhaps the most interesting one of the whole questionnaire, albeit for what it says about the “diversity” discourse more than about her. Tellingly, Justice O’Bonsawin speaks more about her various identities ― “as a francophone First Nations woman, a parent, a lawyer, a scholar and a judge” ― than about “the variety and diversity of Canadians”. I’m not criticizing Justice O’Bonsawin here. Of course a single person’s experience of “the variety and diversity of” soon-to-be 40 million people is limited. But her answers hold up a mirror to the way that diversity talk is usually more about oneself than it is about the diversity of one’s fellow-citizens. Another characteristic point: back when she was first applying to the bench, Justice O’Bonsawin simply said that she had grown up off-reserve. Now, she speaks of “[t]he colonial separation of my family from my First Nation”. To me this feels rote rather than heartfelt. But again, that’s what the diversity discourse requires.

That said, to her credit, Justice O’Bonsawin isn’t entirely down with the programme. She writes that “[a]s Canadians, we must stop focusing on our differences and embrace diversity in order to move our country forward in a progressive manner”. While this ― like much else in Justice O’Bonsawin’s answers ― is more about the feeling than the meaning, the idea that embrace of diversity is compatible with, and even requires, a little less narcissism of small differences is a pretty good feeling to have.

Sadly, I have little positive to say about Justice O’Bonsawin’s answers about the role of judges and of the Supreme Court. While they are banal, and no more “unbound”, to use the word I’d applied Justice Rowe, than might be expected of a generic judge appointed by the Liberal government, they are remarkably shallow. A very average first-year law student might have written something quite similar, and received a very average grade for the effort. This applies, by the way, to Justice O’Bonsawin’s writing style (and indeed grammar), though as I said about Justice Rowe, one should not be judged too harshly on the prose with which one fills a government form.

The first sentence sets the tone. The soon-to-be Supreme Court judge informs us that “The role of a judge in a constitutional democracy requires them to always apply impartiality, act independently and with integrity, and remain cognizant of the pillars of the Constitution and the Canadian Charter of Rights and Freedoms”. I’m not sure how one “applies impartiality”, or what “the pillars of the constitution and the Canadian Charter” are. I’m also not sure whether Justice O’Bonsawin actually thinks the constitution and the Charter are two different things ― this is by no means the only place in her questionnaire where she uses this sort of phrasing.

Another puzzler, from a bit later on: Justice O’Bonsawin writes that “[t]here is a fine balance between constitutional and legislative powers”. Does she mean constitutional rights (she might, because that’s what she is talking about just before). Or some kind of powers that aren’t about legislation? And another one, from the discussion of the Supreme Court’s relationship with its various “audiences”: “Decisions from the Supreme Court of Canada guide litigants through the legal system. This guidance must assure litigants proceed with legal claims well founded in fact and the law.” How can guidance from on high provide this assurance? Does Justice O’Bonsawin mean that it must help litigants formulate sound claims? That would be a sensible thought, but one can only hope that Justice O’Bonsawin’s opinions will be clearer than this, if indeed they are to guide anyone.

Let me now discuss some substantive issues that arise from Justice O’Bonsawin’s answers. First, her thoughts on the constitution. She explains that “[a] judge must continuously interpret the Constitution as a living and breathing document that is reflective of the beliefs and aspirations of generations since its original implementation.” I don’t know what a “breathing document is” ― by my lights, a living one is ghoulish enough, but that’s a minority view. But even apart from that, I’m not sure, about this “generations since” business. What if the “beliefs and aspirations” of the generations that have succeeded one another since 1982, never mind 1867, are not in agreement? Justice O’Bonsawin adds that “[t]he Constitution should not be used as an impediment to individual rights”. Does that mean that when the constitution doesn’t protect a right it ought to be ignored and the right be given “benediction”, Justice Abella-style, by the courts? Conversely, when the “generations since” the constitution’s enactment aspire to impede individual rights ― as they do on a pretty regular basis, which is precisely why rights are protected by constitutions placed out of majoritarian reach ― should judges give way to their views?

The issue of the judge’s relationship with public opinion arises more broadly throughout Justice O’Bonsawin’s answers ― and she tries very hard to have it both ways. On the one hand, “a judge must remain independent from influence or pressure”. On the other ― in the very next paragraph ―, “[a] recurring and oft heard criticism of the judiciary is that judges are out of touch. In an ever-changing climate, a judge must adapt to respond to these changes.” We are not told what changes exactly judges must adapt to, but telling the judges to evolve with the zeitgeist is not so easy to reconcile with their remaining independent from external influence. On the one hand, Supreme Court judges “do not react strategically to external political pressures”. On the other ― in the very next sentence ―, the reason for not reacting strategically is that “[t]his maintains the legitimacy of the Supreme Court of Canada’s standing and its decisions”. Is this not a strategic consideration? The worst of it is that I am pretty sure Justice O’Bonswain isn’t being sneaky ― I really don’t think she realises what a maze of self-contradiction her answers are.

One more beat on the issue of external influences. Justice O’Bonsawin warns that “[a] constitutional democracy will face threats, not only from within its borders, but also from abroad which is further facilitated with social media.” This would have been music to the government’s ears, what with its worries about foreign interference, and bodes ill for the prospects of Justice O’Bonsawin standing up its ongoing attempts to censor online communications. Justice O’Bonsawin adds that “[b]eliefs in other areas of the world should not influence or affect how our Constitution is interpreted and applied to all Canadians, absent the pressure of external forces”. Again I don’t know what to make of the last bit ― should beliefs in other parts of the world influence how the constitution is interpreted if external forces are exerted? Let’s just pretend it’s not there. The idea that the courts should pay little or no attention to “beliefs in other areas of the world” is in line with recent Supreme Court decisions such as  Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32, though not with the open-minded self-image that is dear to many Canadian lawyers. But then, Justice O’Bonsawin explains that Canada “must strive to be a beacon for others as to how a constitutional democracy should be protected and fairly applied to all”. So Canadian judges ought not to be influenced by foreign thought, but those foreigners will be oh-so-lucky to learn from us. This too is not new. The majority in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3 took just this approach. I didn’t like it then, and I don’t like now.

Lastly, let me return to the issue of rights. What does Justice O’Bonsawin have in mind? She specifically mentions equality, which she explains “is not treating everyone the same but treating everyone with fairness and equity taking their differences into account”. As it happens, I recently urged students to drop the word “fairness” from their vocabulary, because it means nothing in particular and tends either to hide a lack of thought given to the subject or to paper over disagreement. Justice O’Bonsawin, who is a prolific user of the f-word, should do the same.  Alongside equality, she also mentions language rights, specifically s 16 of the Charter. And that’s it. Freedom of religion? Freedom of expression? Presumption of innocence? Not that one should necessarily expect a would-be Supreme Court judge to name-check every Charter right in their questionnaire, but the exclusive focus on equality is sadly characteristic of a certain kind of thinking about the law that strikes me as quite impoverished.

There would be still more to say, but none of it more positive than what I have already said. Let me quote just one more passage:

Charter values, such as substantive equality, dignity, fairness and human rights, are beacons for a Supreme Court of Canada Justice’s reasoning. Respecting these values support the public interest in ensuring all Canadians are treated fairly and equally for all rights protected and shared by all. They ensure national equality before the law, which is a core value of our judicial system.

Again, some of it plain silly ― Charter values include human rights! Some, incomprehensible ― national equality before the law? Is that equality before the law with Canadian characteristics? None of it is interesting or thoughtful.

I repeat my verdict: Justice O’Bonsawin is a very average lawyer who is out of her depth when it comes to the big-picture questions that a Supreme Court judge is forced ― by no means in every case, but with some regularity ― to turn his or her mind to. I’m sure she is a good and well-meaning person; she may, for all I know, have been a competent trial judge; but neither her career nor her thinking come close to qualifying her for the Supreme Court. Her appointment is transparently political, and it does a disservice to the Court that will have to welcome her, and to the Rule of Law in Canada.

Undignified

The Supreme Court holds that life imprisonment without parole is unconstitutional. Its reasons are unconvincing.

In R v Bissonnette, 2022 SCC 23, the Supreme Court unanimously finds unconstitutional the provision of the Criminal Code that, in effect, allowed persons found guilty of multiple murders to be sentenced to life imprisonment without parole. The Court holds that the denial of a chance at release to all those on whom such sentences are imposed makes their imposition cruel and unusual, regardless of the nature of the crimes leading to it, and so contrary to section 12 of the Canadian Charter of Rights and Freedoms. In my view, the Supreme Court is wrong.

The case concerns a man who, executing a premeditated plan, entered a mosque “and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers. In less than two minutes, he caused the death of six innocent people” [11] and injured others. The prosecution sought to have him sentenced to serve the mandatory periods of parole ineligibility for each of the murders consecutively, amounting to a total of 150 years. But the Superior Court and the Court of Appeal both found that doing so would be unconstitutional. The former re-wrote the law to impose a 40-years ineligibility period. The latter simply struck it down and imposed the default sentence for a first-degree murder, life imprisonment and parole ineligibility for 25 years.


Writing for the Court, the Chief Justice draws on its recent decisions in Quebec (Attorney General) v 9147‑0732 Québec inc, 2020 SCC 32 and Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, to hold that section 12 of the Charter protects human dignity, which “evokes the idea that every person has intrinsic worth and is therefore entitled to respect”. [59] A punishment may contravene section 12 in two distinct ways. The more familiar one, which is involved in cases on mandatory minimum sentences that make up the bulk of section 12 jurisprudence, involves punishment that is grossly disproportionate to the particular offence for which it is imposed. To decide whether a given punishment is contrary to section 12 on this basis, the court must consider the offence. But there is a separate and logically prior category of section 12 breaches. It concerns punishments that are “intrinsically incompatible with human dignity”. [60] Here, the question of disproportionality does not arise at all; the punishment is simply not one that may imposed, no matter the offence. This category is “narrow” [64] but its contents “will necessarily evolve” along with “society’s standards of decency”. [65]

A punishment that belongs to this category “could never be imposed in a manner consonant with human dignity in the Canadian criminal context” because it “is, by its very nature, degrading or dehumanizing”, taking into account its “effects on all offenders on whom it is imposed”. [67] The Chief Justice adds that “the courts must be cautious and deferential” [70] before concluding that a punishment chosen by Parliament is of such a nature. However, once they reach this conclusion, because the imposition of such punishment is categorically forbidden, it can no more be discretionary than automatic, and it will not be mitigated by the existence of a prerogative power of mercy.

With this framework in mind, the Chief Justice considers whether effective life imprisonment without parole, which is what a parole ineligibility period of 50, let alone 75 or more years amounts to, falls into the category of punishments that “degrading or dehumanizing” by nature. In his view it is. There seem to be two somewhat distinct though no doubt mutually supportive reasons why this is so. On the one hand, such a punishment denies the important of rehabilitation as a part of the sentencing process. On the other, it is especially harsh on those subject to it.

On the issue of rehabilitation, the Chief Justice argues that life imprisonment without parole is incompatible with human dignity because “it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation”. [81] Rehabilitation is inextricably linked to human dignity, and “negat[ing] the objective of rehabilitation from the time of sentencing” “shakes the very foundations of Canadian criminal law”. [84] Even if rehabilitation seems unlikely, “[o]ffenders who are by chance able to rehabilitate themselves must have access to a sentence review mechanism after having served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. [85] Rehabilitation can take the back seat to denunciation and deterrence, but not left by the wayside, as it were. The Chief Justice adds that “the objectives of denunciation and deterrence … lose all of their functional value” after a point, “especially when the sentence far exceeds human life expectancy”, which “does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system”. [94]

As for the harshness of life sentences without parole, the Chief Justice quotes descriptions of this sort of punishment as tantamount to a death sentence and writes that “[o]nce behind prison walls, the offender is doomed to remain there until death regardless of any efforts at rehabilitation, despite the devastating effects that this causes”, [82] such as “the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world”, [97] which can even lead some to suicide. But the Chief Justice is clear that this does not foreclose each and every sentence that would have the effect of “dooming” the offender to remain in prison until death: “an elderly offender who is convicted of first degree murder will … have little or no hope of getting out of prison”. [86] This is nonetheless acceptable “since it is within the purview of Parliament to sanction the most heinous crime with a sentence that sufficiently denounces the gravity of the offence”. [86] What matters is that the existing 25-year parole ineligibility period does not “depriv[e] every offender of any possibility of parole from the outset”. [86]

The Chief Justice then considers comparative materials, reviewing the laws and some case law from a number of countries, as well as some international jurisdictions. I will not say much about this to avoid overburdening this post, though the Chief Justice’s comments about the way in which such materials can and cannot be used, which echo those of the majority in Québec Inc, are worth considering. I will note, however, that the most pertinent comparative source of them all, the sentencing judgment in the New Zealand case of  R v Tarrant, [2020] NZHC 2192, about which I have written here, is simply ignored. This isn’t entirely the Chief Justice’s fault, since, so far as I can tell, the factums for the prosecution and the Attorneys-General of Canada, Québec, and Ontario also fail to mention it. Yet I find the omission striking, and culpable on the part of both the lawyers and the Supreme Court.

Finally, having found a breach of section 12 of the Charter, and in the absence of any attempt by the government to justify it, the Chief Justice considers the remedy to grant. I will not address this issue here, but stay tuned ― there will be more on it on the blog in the days or weeks ahead.


The Chief Justice’s opinion does not persuade me. For one thing, it sits uneasily with precedent. The Chief Justice duly quotes his predecessor’s judgment for the unanimous Supreme Court in R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180, to the effect that sentencing principles, “do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s 12 of the Charter“. [71] This includes both the principle of proportionality and “other sentencing principles and objectives” [Bissonnette, 53] That would seem to include rehabilitation, which the Chief Justice enumerated in the discussion sentencing principles that precedes this passage. And yet it follows from the rest of his judgment that rehabilitation is in fact constitutionally protected. It has a special relationship with human dignity, and cannot be excluded, contrary to the suggestion in Safarzadeh-Markhali, which, however, is not overruled or indeed even discussed at this point in the Chief Justice’s reasons. This is a muddle, which is not helped by the Chief Justice’s disclaimer of any “intent … to have the objective of rehabilitation prevail over all the others”. [88] If rehabilitation, alone among the sentencing objectives and principles ― even proportionality ― is constitutionally entrenched, then it is indeed put on a different plane.

The Chief Justice might think that his disclaimer holds up because, as we have seen, he insists that rehabilitation only needs to be available to those offenders who have “served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. But he does not consider whether ― and, despite his professed commitment to deference, does not consider that Parliament may have concluded that ― in some cases, “no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the offenders] to account for the harm [they] have done to the community [or] denounce [their] crimes”. [Tarrant, 179] If that is so, then the same reasons that prevent rehabilitation from, say, abridging the sentences of elderly murders ought to prevent it from standing in the way of life imprisonment without parole. But it does so stand, because of its alleged special connection with dignity.  

Note that dignity itself is a judicial add-on to section 12 of the Charter; it’s no apparent part of the provision. As Maxime St-Hilaire and I pointed out in our comment on the first instance judgment in this case

the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up ― recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] 

Something, I suppose, has changed, though the Chief Justice no more bothers to tell us why Kapp was wrong than he does explaining his apparent departure from Safarzadeh-Markhali. And note, moreover, that the alleged violation of human dignity that results from life imprisonment without parole is also the fruit of a judicial say-so. The Chief Justice asserts that such a sentence amounts to denial of an offender’s capacity to rehabilitate him- or herself. But it is at least just as ― in my view more ― plausible to see it as Justice Mander did in Tarrant: as expressing the view that nothing less will adequately denounce the crime. The offender may repent it; he or she may become a saint; but still denunciation will demand nothing less than continuing imprisonment. This is not am implausible view ― again, a thoughtful judgment of the New Zealand High Court has taken it ― and the Chief Justice never confronts, let alone refutes, it.

Even if you disagree with me on this, it remains the case that the Chief Justice’s reasons suffer from a serious logical flaw on their own dignitarian terms. Again, he accepts that some, perhaps a not inconsiderable number of, people will be imprisoned without any realistic prospect of being able to apply for parole, as a consequence of their age at sentencing and the duration of a fit sentence (or indeed a mandatory ― but constitutional ― one). He claims that this acceptable because such a sentence “does not exceed constitutional limits by depriving every offender of any possibility of parole from the outset”. [86; emphasis added] But that’s not how human dignity works. Dignity, if it means anything at all, is personal. Elsewhere, the Chief Justice shows he understands this, for instance when he writes that “rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society”. [83; emphasis added] In other words, because we are separate and distinct individuals, your dignity is not upheld if I’m being treated in accordance with dignitarian requirements. Yet that is exactly what the Chief Justice’s approach presupposes. Because some people get a chance at parole, those who don’t are treated with dignity. It’s a dodge, and a very clumsy one.

Finally, although I do not think that the court’s role is “to weigh fundamental values in our society”, [2] I agree that the courts do not operate in a moral vacuum. Yet they should not seek to fill this vacuum with what Professor St-Hilaire, in our comment on the Court of Appeal’s decision in this case, and I have described as “abstract, and ultimately soulless, humanitarianism”. Sadly, this is exactly what the Supreme Court is doing here. It is striking that almost nothing about the crime that led to this case, beyond describing it as an “unspeakable horror” [1] behind which were “hatred, racism, ignorance and Islamophobia”. [10] Perhaps I being unfair here, but to me this sounds like empty slogans or, to repeat, soulless humanitarianism. By contrast, the Chief Justice’s description of the suffering of those condemned to life imprisonment without parole, which I partly quote above, is specific and vivid. I do not suppose that the Chief Justice is really more moved by this suffering than by that of the victims of the offender here. But, in his otherwise commendable determination to reject vengeance and uphold the rights of the justly reviled, he writes as if he were.


To be clear, rejecting pure vengeance as the basis of sentencing policy is right. So is the empowering the courts to check Parliament’s excesses in this realm. The politicians calling for the section 12 of the Charter to be overridden at the next opportunity are wrong, because they are opening the door to abuse and casual disregard of the rights it protects. But that does not mean that the Supreme Court is necessarily right when it protects these rights, and it isn’t right here. Bissonnette is legally muddled, logically flawed, and morally blinkered. It is not a dignified judicial performance.

Mischief and the Chief

The Chief Justice has thoughts on the Supreme Court and the political climate

Yesterday, Radio-Canada/CBC ran an article by Daniel Leblanc that discussed Chief Justice Richard Wagner’s concerns about the standing of the Supreme Court and the judiciary more broadly, and his ideas for fostering public acceptance of and confidence in their work. This made quite a bit of noise on Twitter, and I jumped in too. A reader has encouraged me to turn those thoughts into a post, and I thought that would indeed be a good idea, so here goes.

Mr. Leblanc’s article starts with a discussion of the leak of a draft opinion in Dobbs v Jackson Women’s Health Organization, the US Supreme Court’s pending abortion case. This prompts the Chief Justice to say that “[i]t takes years and years to get people to trust institutions, and it takes a single event to destroy that trust”. The Chief Justice is worried. According to Mr. Leblanc, he “said recent global political events — like the Jan. 6, 2021 insurrection attempt in Washington, D.C. — should serve as a warning to Canadians” that our institutions, notably judicial independence, are at risk. The Chief Justice is also concerned that people are misinformed, notably in that they import fragmentary knowledge of American law into their thinking about Canada’s legal system.

To gain public trust, the Chief Justice has embarked the Supreme Court on a campaign to become more accessible. This includes a social media presence, publishing “plain English” versions of opinions, and sittings outside Ottawa. Mr. Leblanc describes the Chief Justice as saying “he knows he’s taking a risk by communicating more openly and frequently with the public and by taking the court outside of Ottawa. He said he still believes doing nothing would be riskier.”

Mr. Leblanc also turns to other people, notably Vanessa MacDonnell, to second the Chief Justice’s concerns. According to him, Professor MacDonnell “said Conservatives in the United Kingdom have criticized judges’ power to interpret the Human Rights Act, adding it’s part of a pattern of ‘political attacks’ against the courts in that country”. Attacks on judicial independence in Hungary and Poland are mentioned too, presumably at Professor MacDonnell’s behest, though this isn’t quite clear. Moreover, “Canadian institutions aren’t immune from attack either, MacDonnell said. The controversy over Conservative Party leadership candidate Pierre Poilievre’s vow to fire the Bank of Canada governor has dominated that leadership race”. Meanwhile, Senator Claude Carignan argues that “the Supreme Court is right to want to establish, through a certain communication plan, that there are differences with” its American counter part, and that it is “not there to represent a movement of right or left, or of red or blue, but … to judge the merits of the judgment according to current laws”.

So, some thoughts. To begin with, the Chief Justice deserves praise for thinking about making his court’s role and jurisprudence more accessible. Courts wield public power, and people should be able to know what they do with it. Indeed, I don’t know that anyone else thinks differently. The Chief Justice really needn’t pose as doing something “stunning and brave” with his transparency efforts; it looks a bit pathetic. But that doesn’t mean that the efforts themselves are to be denigrated.

That said, one shouldn’t expect too much from them. To the extent that people don’t understand what the Supreme Court is getting up to, I really think it’s more because of a lack of interest or effort than any failures on the Court’s part. The major cases are reported on, tolerably well, by the media. There is CanLII Connects, which hosts summaries and comments on all sorts of cases, written by students, professors, and practitioners. There are blogs like this one. There are podcasts. There are lots of people out there, in other words, who work hard to explain what Canadian courts, and especially the Supreme Court, are doing. Don’t get me wrong: I’m not saying the Supreme Court shouldn’t bother. It might do some good in this regard. But, again, when people are uninformed or misinformed ― and many are ― I don’t think it’s because of a lack of accessible information. In 2022, ignorance is usually wilful.

And I will criticize the Chief Justice for one part of his outreach programme: the roadshows. I fail to see how hearings outside Ottawa are anything other than taxpayer-funded junkets. Most people haven’t the time, let alone interest, to sit through arguments, be it in Ottawa or elsewhere. I’ve sat in on a couple of Québec Court of Appeal cases, some years ago, but I was a grad student would have done anything if that meant not writing my thesis ― not the Chief Justice’s target audience, I suspect. For more productively employed people, having a hearing in their city once in a blue moon is just not going to do anything. And of course anyone already can conveniently watch the Supreme Court on CPAC. This, by the way, is really a point on which the Supreme Court of Canada is better than that of the United States.

Speaking of those Americans, though, if one is concerned about the excessive influence of American thinking and American culture on Canada’s legal system, as the Chief Justice apparently is, one probably shouldn’t invoke American news as justifications for doing anything in Canada, as the Chief Justice definitely does. Again, some of his initiatives at least are worthwhile, but they are so on their Canadian merits, not because of anything that has occurred south of the border. Of course, the Chief Justice isn’t the only one trying to have this both ways. The Prime Minister, for instance, seems pretty keen to capitalize on American news to push ever more gun restrictions ― which he successfully deployed as a wedge issue in the last election campaign. In other words, the importation of American concerns of questionable relevance is something Canadians of all sorts, and not just the dark forces supposedly gnawing away at our institutions’ foundations, do, and Mr. Leblanc would, I think, have done well to note this.

Now, let’s consider these dark forces a bit more. Specifically, I don’t think that the discussion of populist attacks on courts in Mr. Leblanc’s article is all that helpful. I’m no expert on Poland and Hungary, but I take it that some Very Bad Things really have happened there, as part of broader programmes to dismantle institutional checks and balances and constraints on government power. To say that anything of the sort is about to happen in Canada, or could succeed if attempted, strikes me as a stretch. The analogy between the courts and the Bank of Canada doesn’t quite work, since the latter lacks constitutional protections for its independence. But perhaps I am mistaken about this.

What I am pretty sure about, however, is that it is quite wrong to equate the “attacks” on the judiciary in the UK with those in Hungary and Poland. To be sure, there have been some dangerously vile attacks in parts of the media, some years ago. I have written about this here. And it may well be that the government did not defend the courts as strongly as it should have at the time. But so far as government policy, let alone legislation, is concerned, it simply isn’t fair to say that the courts have been “attacked”. There is debate about just what their powers with respect to judicial review should be for instance, and it may well be that some of the proposals in this regard are at odds with the best understanding of the Rule of Law. But nobody is suggesting anything so radical as, say, requiring UK courts to defer to civil servants on questions of law, so I’m not sure that Canadians, in particular, should be too critical about this.

The specific issue example to which Professor MacDonnell refers is even more clearly a nothingburger. It has to do with the interpretation not of the Human Rights Act 1998, but of other legislation, which the Act says “[s]o far as it is possible to do so … must be read and given effect in a way which is compatible with the” European Convention on Human Rights. As readers will know, I happen to favour very robust judicial review of legislation ― more so than what exists under the Canadian Charter of Rights and Freedoms, let alone the UK’s Human Rights Act. But I’m inclined to think that UK courts have gone rather beyond the limits of what is fairly “possible” in exercising their interpretive duty. They certainly have gone further than New Zealand courts applying a similar provision. Whether or not constraining them in this regard is the right thing to do on balance, there is nothing illegitimate or worrying about it.

It is important to remember that, precisely for the reason the Chief Justice is right to work on the Supreme Court’s transparency ― that is, because the court is an institution exercising public power on the citizens’ behalf ― the Court can also be subject to legitimate public criticism. Again, criticism can be overdone; it can be quite wrong. But on the whole it’s probably better for public institutions to be criticized too much than not enough. And the courts’ powers, just like those of other government institutions, can and sometimes should be curtailed. Each proposal should be debated on the merits. Many are wrong-headed, as for instance the calls to use the Charter “notwithstanding clause”. But they are not wrong just by virtue of being directed at the courts.

Meanwhile, Canadians who are concerned about public perceptions of the judiciary should probably worry a bit ― quite a bit ― more about the actions of our own judges, rather than foreign governments, let alone journalists. Sitting judges to some extent ― as when, for instance, they decide to give “constitutional benediction” to made up rights instead of “judg[ing] the merits of the judgment according to current laws”, as Senator Carignan puts it. But even more, as co-blogger Mark Mancini has pointed out, former judges who compromise the perception of their political neutrality and lend their stature and credibility to serve the wishes of governments at home and abroad:

In short, I think that the Supreme Court is trying some useful, if likely not very important things to become a more transparent institution, which is a good thing on the whole. But it is not saving democracy or the Rule of Law in the process. One should certainly be vigilant about threats to the constitution, but one should not dream them up just for the sake of thinking oneself especially courageous or important. One should also be wary of grand transnational narratives, and be mindful of the very real imperfections in one’s own backyard before worrying about everything that’s going on in the world.

Jurisdiction and the Post-Vavilov Supreme Court: Part I

What does “jurisdiction” mean, anyways?

As I wrote in my newsletter last week, the Supreme Court has an awkward relationship with the concept of “jurisdiction.” There is no more tortuous concept in Canadian administrative law. Vavilov, apparently, was the end to the concept of jurisdiction in Canadian administrative law. Vavilov basically said two things about jurisdiction: (1) it is difficult to identify a jurisdictional question, which sheds doubt on the entire enterprise (Vavilov, at para 66); and (2) as a result, “[w]e would cease to recognize jurisdictional questions as a distinct category attracting correctness review” (Vavilov, at para 65). Taken together, it was a fair assumption that jurisdictional questions, if they existed at all, would not be recognized in the law of judicial review.

Easier said than done. The Supreme Court in two recent cases have gone back to the well and drawn from the waters of jurisdiction. In both Ward and Horrocks, the various opinions continue to draw on jurisdiction as a concept without interrogating it. Underneath this technical issue of administrative law is a broader, conceptual difference on the Court that remains post-Vavilov.

In this post I’ll address what I think “jurisdiction” means post-Vavilov. In a future post I’ll address Horrocks and what it might mean for post-Vavilov administrative law splits on the Court.

***

In Ward, under a heading titled, “Jurisdiction Over Defamation and Discrimination,” the majority discusses the “jurisdiction” of the tribunal in that case [28]. In the same paragraph, the Court chastises the Tribunal for indirectly extending its “limited direct jurisdiction.” In Horrocks, on the other hand, the whole dispute concerned the jurisdictional boundary between a labour arbitrator and a human rights tribunal.

The entire setup of these cases is based around the idea of jurisdiction. In Ward, the term was thrown around rather willy-nilly to describe the statutory authority—the grant of power—given to the Tribunal. In Horrocks, the term was used as contemplated by Vavilov, as a category attracting correctness review. But in both cases, jurisdiction looms large.

Before continuing, it’s important to note the various ways that “jurisdiction” has been used in Canadian administrative law. There are at least 3 different uses of the term:

  1. Jurisdiction as a preliminary question: this category concerns “neat and discrete points of law” that arise, for example, in a decision of a human rights commission to refer a case to a human rights tribunal (Halifax, at para 27). In Halifax, the Court overturned previous precedents and held that such questions are reviewable on a reasonableness standard (Halifax, at para 38).
  2. So-called “true questions of jurisdiction”: these questions were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (Dunsmuir, at para 59). An example of such a question was provided in Dunsmuir: “whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences” (Dunsmuir, at para 59). Note, here, that this question trades on the same idea of “jurisdiction” as the preliminary questions doctrine, but there is a difference: ostensibly, this brand of jurisidictional questions concerns an issue that goes to the merits. Vavilov did away with this concept of jurisdictional question, to the extent that such questions attract correctness review.
  3. “Jurisdictional boundaries between two or more tribunals”: this is the category of review at issue in Horrocks. Vavilov retained this category as attracting correctness review.

What is immediately clear is that “jurisdiction” is a morass.

What sense should we make of this? In my view, Vavilov left the door of “jurisdiction” open a crack. The result, as Paul Daly presciently observed the day after Vavilov was rendered, is that jurisdiction is still around—a “stake through the heart” will be the only thing to kill it. In the meantime, we must make sense of what is left of jurisdiction.  As I noted above, one option is to read Vavilov rather broadly: jurisdiction is dead, and we killed it. But this does not explain (in a satisfying way) what the Court is doing in both Ward and Horrocks. Why mention a concept that is dead?

Instead, I think “jurisdiction” (or, as I shall say, hopefully a better label) remains an important concept in Canadian administrative law. This version of jurisdiction—as used in Ward and Horrocks—is not akin to the concept of jurisdiction known to administrative law history (ie) Anisminic. It is not the “preliminary questions” doctrine put to rest in Halifax. This conception of jurisdiction is basically co-extensive with any number of formulations that describes the authority delegated to an administrative decision-maker. The Supreme Court of the United States describes this as “statutory authority,” which is a good a term as any. This is because, fundamentally, any time an administrative decision-maker acts, it is explicitly or implicitly dealing with the boundaries governing it by statute. Whether this is “jurisdiction,” or “statutory authority” does not matter much. It’s all the same thing.

Now, what is true about jurisdiction is that there are different types of legal questions. Some legal questions could be said to be “preliminary.” An example might be a legal condition precedent to the exercise of another legal power under the same statute.  But the difference that Vavilov introduces is simply about the standard of review, not about the existence or not of jurisdictional questions understood in this sense. In other words, to the extent that Halifax and Vavilov dispatched with various types of jurisdictional questions, they only did so to the extent that it matters for the standard of review. Vavilov tells us that questions of jurisdiction, as they were previously known, are hard to identify: and in that sense, they shouldn’t be treated differently than any other legal questions. So whether the question is “preliminary” or on the merits, it’s a legal question that is assimilated to the Vavilov framework.

Why does any of this matter? There is a clarity reason and a substantive reason. For clarity’s sake, the Court should probably not refer to “jurisdiction” anymore. The concept itself, as it is now used, is simply referring to a type of legal question, not a category of review. The Court should adopt some concept of “statutory authority” to describe all the types of legal questions that arise in a typical judicial review proceeding, including anything that might be considered “jurisdictional.” This has nothing to do with the standard of review: all of the questions will be presumed to be reviewed on reasonableness review. On the substantive side, and as we shall see from Horrocks, there are good reasons to take statutes—and the boundaries they set up—seriously. As Vavilov says, the discarding of jurisdiction as a category of review should not lead to  the arrogation of administrative power.

The Woke Dissent

The thinking animating the dissenting opinion in Ward’s case would destroy freedom of expression in the name of equality and safety

As promised, in this post, I come back to the dissenting opinion in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. I commented (mostly) on the majority opinion in my last post. In that post, I referred to The Line‘s editorial by Jen Gerson and Matt Gurney (possibly paywalled, but you should subscribe!), which addressed the case, and especially the dissent, in some detail. Ms. Gerson and Mr. Gurney write that “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” in the dissent ― that “culled plausible-sounding legalese from Twitter logic”. That’s not a bad way of putting it.

I will put it slightly differently. The dissent is, in a word, woke. And I don’t mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. As noted in my last post, I think he deserves sympathy on human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces a number of specific tenets of contemporary social-justice ideology, which, if they become law ― and remember that they were one vote away from becoming law ― would be utterly corrosive to the freedom of expression.


For one thing, the dissent erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer write:

We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child. [116]

In what is going to be a theme of my comment, this twists the meaning of words beyond recognition; conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise. It’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. In my last post, I gave the majority grief for disregarding precedent and doctrine. The dissent does the same, only much worse.

Besides, as I once noted here, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible into the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence”. This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will stripped of its “protective cloak” and proscribed as the prize.

Another way in which the dissent is woke is its wilful blindness to the context in which words appear. Like critics dragging a writer for the words of an unsavoury character, Justices Abella and Kariser claim that

Mr. Ward remarked that he defended Mr. Gabriel from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. This implies that it would be too burdensome for society to accept Jérémy Gabriel in the mainstream permanently and that ultimately society would be better off if he were dead. 

No, it really doesn’t. Mr. Ward’s persona is, as The Line‘s editorial puts it, that of That Asshole. He is making an obviously hyperbolic statement, a joke ― not remarks at a political meeting. The joke was in poor taste, to be sure, but in no non-woke person’s mind is it a statement about what is best for society. Insofar as Mr. Ward’s comedy was meant as a social commentary, it targeted taboos around joking about certain people or subjects ― not the supposed burdens, or otherwise, of disabled persons for society.

A further symptom of coddling wokeness in the dissenting opinion is its bizarre insistence that Mr. Ward bullied Mr. Gabriel. Justices Abella and Kasirer claim that “[i]n a 2012 interview, Mr. Ward himself acknowledged the view that his comments constituted bullying”. [196] But this isn’t quite true. They quote the relevant interview passage early on in their opinion: it is the interviewer who suggests that Mr. Ward’s jokes amounted to bullying. Mr. Ward himself says “I don’t know. I don’t know. It’s a good point.” [126] Not quite an admission, by my lights. But, in any case, the idea that comments about a person whom one has never met and will likely never meet, over whom one has no actual power, with whom, indeed, one shares nothing at all can amount to bullying are just twisting the meaning of this emotionally charged word. Nobody can defend bullying of course, just as nobody can, say, defend racism, and Justices Abella and Kasirer again take a leaf out of the woke playbook to redefine words in a way that makes their decision seem beyond debate.

Now, Mr. Gabriel’s classmates seem to have bullied him, and to have used Mr. Ward’s jokes in doing so. But it is only on a woke view that Mr. Ward can be liable for their behaviour. He did not commission or instigate their actions. He doesn’t even know about their existence. Again this is reminiscent of calls for the “cancellation” of a work of fiction or some scientific article on the basis that, regardless of its author’s intentions, it will contribute to discrimination by others.

Then again, Justices Abella and Kasirer wouldn’t agree that Mr. Ward had no power over Mr. Gabriel. A preoccupation with power hierarchies imagined to run entirely along the lines of “privileged” and “oppressed” demographic categories is perhaps the clearest sign of their opinion’s wokeness. They write that

that there is value in the performance of comedy and in criticizing those in power in society. But in the circumstances of this case, condoning the humiliation and dehumanization of a child, let alone one with  a disability, would fly in the face of the very idea of the public interest. … Mr. Ward’s message about Mr. Gabriel, albeit one said in jest, was that he was disposable and that society would be better off without him. Unlike other “sacred cows” targeted by Mr. Ward, Jérémy Gabriel fell victim to a stark power imbalance here. [215-16; paragraph break removed]

This focus on power imbalance explains, I suspect, the seeming inconsistency between the position of the dissenters in Ward and in  Toronto (City) v Ontario (Attorney General), 2021 SCC 34 highlighted by Christopher Bredt. (Recall that the the same four judges dissented in both cases.) The Lawyer’s Daily reports that Mr. Bredt, who was part of the legal team that

represented the intervener Canadian Civil Liberties Association, said he finds it incongruous that the minority in the Ward appeal comprises the same four judges who earlier this month vigorously defended freedom of expression to the extent that they would have struck down the Ontario government’s downsizing of wards during Toronto’s municipal election.

The incongruity resolves itself once you account for the fact that in City of Toronto the “stark power imbalance” ran the other way ― the free speech claimants were the less powerful side, and hence the good side in the moral framework that decides worth according to where a person or group stands in an a priori power hierarchy.

In the real world, power hierarchies are not so neat ― which is one of many reasons why they should not be given nearly as much importance as the woke worldview attaches to them. As The Line editors point out,

this is a kid who became famous in all of Quebec, sang, and was enthusiastically cheered by entire hockey stadiums. He performed in front of some of the most famous people in the world. And we’re to believe that the ugly jokes of one stand-up comedian was enough to undo all of this honour and fame? That Mike Ward is uniquely responsible for a disabled child’s ostracization from his peer group and suicidal thoughts? 

Justices Abella and Kasirer insist that a celebrity must be treated like everyone else, and does not lose his rights. That’s true ― in a liberal legal system where everyone has equal rights to begin with. In a system whose starting point is not equality, but people’s relative positions in power hierarchies, insistence that cultural prestige, sympathy, and (in other cases) even wealth are to be disregarded are absurd. But it too is characteristic of the specifically woke take on power and inequality.


Like some others who have written about Ward, I find it frightening that this opinion got four votes at the Supreme Court. Had the dissenters found another colleague to agree with them, it’s not only “edgelord comedians”, in The Line‘s words, that would have come under the potential fire of human rights tribunals. Make a disparaging remark about a member of any of the protected groups that references that membership? There, you’re a law-breaker. Make fun of Greta Thunberg in a way that touches on her Asperger’s and selective mutism ― remember, it doesn’t matter that you’re not targeting her for that? Don’t be surprised if the equality bureaucracy comes calling. (I am grateful to my friend and sometime co-author Akshaya Kamalnath for this example.)

And remember, too, that under Québec’s Charter of Human Rights and Freedoms “political convictions” are a prohibited ground of discrimination as well. Of course, for the foreseeable future, mockery of literal Nazis is undoubtedly safe. You wouldn’t expect human rights tribunals condemn right-thinking members of society! But that’s only good until the day “common good” conservatives get their chance to appoint these tribunals’ members. Then, I’m afraid, the boundaries of permissible discourse will shift.

But abuse of anti-discrimination law as an instrument of censorship would be only the beginning. If speech can be conduct; if the intent of a speaker doesn’t matter for attributing liability for words; if public criticism or mockery can be bullying; if speech can be censored based on how people over whom the speaker has no control might respond to it, or if the right to be free from censorship depends on one’s place in a dogmatic hierarchy of oppression; then hardly any restriction on freedom of speech cannot be justified. It will all be done in the name of safety and equality of course. But it will be no less the end of the freedom of speech, and of democracy, for all that.

It Ends Well

Thoughts on the Supreme Court’s narrow but seemingly decisive rejection of a right not to be offended

Last week, the Supreme Court delivered its judgment in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. By a 5-4 majority, it quashed an award of damages a human rights tribunal had granted to Jérémy Gabriel, a child celebrity, whom a well-known comedian, Mike Ward, had cruelly mocked. As Jen Gerson and Matt Gurney put it in The Line’s editorial (possibly paywalled, but you should subscribe!)

Ward … decided to become That Asshole, the edgelord comedian who pointed out that the kid wasn’t very good. In a few stand-up bits, Ward called the child ugly, and noted that the performances were tolerable only because he thought the singer’s condition was terminal. Nice guy. (Paragraph break removed)

The tribunal, and the Québec Court of Appeal found that this amounted to discrimination in the exercise of Mr. Gabriel’s right to “the safeguard of his dignity” under section 4 of Québec’s Charter of Human Rights and Freedoms, a.k.a. the Québec Charter. The majority of the Supreme Court resoundingly holds otherwise.

Instead of my usual blow-by-blow summary and comment, I will offer some more condensed thoughts on a few striking aspects of this case. While the most important thing about Ward is what, if anything, it means for the freedom of expression, there are a few other things to mention before I get to that. In this post, I mostly focus on the majority opinion. I will shortly post separately about the dissent.

The Human Face

Because I will argue that the majority decision is correct, and indeed that it was very important that Mr. Gabriel not win this case, I want to start by acknowledging that he has had it very hard. Mr. Ward’s jokes at his expense were cruel. Mr. Gabriel did suffer, greatly ― we are told that he even tried to kill himself at one point. I think we can wonder whether the connection between these things is all that strong. I’m not persuaded by the dissent’s imputation to Mr. Ward of the full responsibility for Mr. Gabriel’s bullying by his classmates. We can also argue that anti-discrimination law ― perhaps any law ― isn’t the solution. But we have to recognize that a person has been in a lot of undeserved pain, and a person who, even before this case, had not had it easy in life.

The Court

As already noted, the Court is narrowly divided. The Chief Justice and Justice Côté write for the majority, with Justices Moldaver, Brown, and Rowe concurring. Justices Abella and Kasirer write for the dissent, joined by Justices Karakatsanis and Martin. For those keeping score at home, this is the exact same alignment as in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. Indeed, even the authorship of the opinions overlaps: in City of Toronto, the Chief Justice wrote with Justice Brown, while Justice Abella wrote for the dissenters.

I’m old enough to remember, as they say, how smugly self-satisfied Canadian commentators were, just a few years ago, at the consensus reigning at our Supreme Court, in contrast to the US one always splitting 5-4. To be sure, two cases do not make a trend, but I think it’s pretty clear that on the Supreme Court as it has recently been constituted there is ― though there are always exceptions ― a somewhat cohesive group consisting of Justices Côté, Brown, and Rowe, and perhaps an even more cohesive group led by Justice Abella, with Justices Karakatsanis, Martin, and Kasirer. The Chief Justice and Justice Moldaver are the swing votes. It remains to be seen how, if at all, Justice Abella’s retirement is changing this, but in the meantime, our Supreme Court has been fractured along lines that can be predicted. This is not necessarily bad. But let’s not be smug.

One odd thing to add is that, whereas in City of Toronto majority and dissent were ― by the standards of the Supreme Court of Canada ― at each other’s throats, here they studiously ignore one another. I’m not sure which is better, but the contrast between cases argued and decided just a month apart, by identical alignments, and with overlapping opinion authorships, is striking.

The Case

One uncomfortable question I have is: should the Supreme Court have taken this case at all? Let me take you straight away almost to the end of the majority judgment, where we learn, for the first time, the following

[I]n light of the Tribunal’s finding that Mr. Ward [translation] “did not choose Jérémy because of his handicap” but rather “because he was a public personality” (Tribunal reasons, at para. 86), it must be concluded that the distinction was not based on a prohibited ground. This conclusion on its own is sufficient to dispose of the appeal. [91]

Everything else that the Court has said and that I’m about to discuss ― that’s just obiter dicta. The tribunal made a basic logical mistake, which, as the majority explains, the Court of Appeal then glossed over. That was, of course, unfortunate. But it’s not the Supreme Court’s role to correct basic logical mistakes by tribunals or even courts of appeal. They’re there to develop the law. And develop the law they do ― in a way that, if the majority is right (and I think it is), was pressing and necessary. But also in a way that, by the majority’s own admission, is beside the point in this case.

I think this raises the issue of the Supreme Court’s role in our constitutional system. Where is the line between developing the law in deciding cases, as we expect them to, and developing the law by making big pronouncements that are unnecessary to decide cases? Should a court refrain from doing the latter, or may it properly seize on the opportunities that present itself to it to provide important guidance to lower courts? I have no firm views on any of this, but I think the questions are worth thinking about. (For some related musings, see here.)

Jurisdiction

Back to the very beginning of the majority’s reasons:

This appeal … invites us … to clarify the scope of the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse … and the Human Rights Tribunal … with respect to discrimination claims based on the … Quebec Charter. [1]

Clarify the… what? Yes. That word. The majority uses it several times in the course of its reasons. In particular, it speaks of “the distinction that must be drawn with respect to jurisdiction over, on the one hand, an action in defamation and, on the other, a discrimination claim in the context of the Quebec Charter“. [22]

This is odd. A mere two years ago, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, all of the Ward majority judges signed an opinion that not only eliminated jurisdictional questions as a distinct category of correctness review, but seemed to endorse scepticism at the very “concept of ‘jurisdiction’ in the administrative law context”. [66] Vavilov said that what might previously have been thought of as jurisdictional questions are legal questions like all others, subject to reasonableness review, except when the respective jurisdictions of two administrative bodies must be demarcated.

One recent example of this reasoning is the decision of the Ontario’s Superior Court of Justice in Morningstar v WSIAT, 2021 ONSC 5576, about which I have written here. The Court roundly rejected the argument that, as I summarized it

the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”, [63] ― that is, by hav[ing] the court ensure the boundary is drawn correctly.

I thought ― and still think ― that that was a correct application of Vavilov. Ward, though, says that there is indeed a jurisdictional boundary between administrative tribunals and courts. I don’t think this is consistent with Vavilov. Nothing turns on this here because the case gets to the courts by way of statutory appeal rather than judicial review, and ― under Vavilov ― the correctness standard applies to all legal questions in such circumstances. But the tensions inherent in Vavilov, including in its attempt to rid Canadian administrative law of the fundamental concept of the law of judicial review are becoming apparent. (Co-blogger Mark Mancini has made a similar observation in the latest issue of his newsletter.)

Interpretation

One of the things the majority is right about is that Ward is, among other things, a case about interpretation. It requires the courts to make sense of a somewhat peculiar statutory scheme, which protects, among other things, rights to the freedom of expression and to the “safeguard of [one’s] dignity”, says that “the scope of the freedoms and rights, and limits to their exercise, may be fixed by law”, and protects equality in “the exercise and recognition” of these rights, rather than as a general self-standing right. This is not an easy exercise and I won’t go into all the details, but I will make a few comments.

The majority deserves credit for trying to work out an independent meaning for the right to the safeguard of one’s dignity. As it notes, dignity is a very tricky concept ― and the Supreme Court itself has tried to avoid putting too much weight on it in other contexts. But here it is, in the text of the Québec Charter, a statute that binds the courts. It will not to do to simply find violations of dignity when other rights are violated in particularly egregious ways, as Québec courts had done. The Québec Charter makes it a distinct right, and the courts must treat it as such. At the same time, they have to give it defined contours. The majority seeks to do so by stressing the importance of the safeguard of dignity, to which the right is directed:

Unlike, for example, s. 5 [of the Québec Charter], which confers a right to respect for one’s private life, s. 4 does not permit a person to claim respect for their dignity, but only the safeguarding of their dignity, that is, protection from the denial of their worth as a human being. Where a person is stripped of their humanity by being subjected to treatment that debases, subjugates, objectifies, humiliates or degrades them, there is no question that their dignity is violated. In this sense, the right to the safeguard of dignity is a shield against this type of interference that does no less than outrage the conscience of society. [58]

What the majority does is a careful and, I think, pretty convincing reading of the statutory text. Good.

Some things the majority says are not so good. For instance: “the interpretation of this provision must be refocused on its purpose by considering its wording and context”. [55] No, no, no. Interpretation should be focused on text understood in context. Purpose can sometimes help a court understand the words and enrich its understanding of the context, but it should not be the focus of interpretation. And then, there is this:

This Court’s jurisprudence also establishes “that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes” … It follows that, as long as this is not contrary to the usual rules of interpretation, symmetry in the interpretation of the various instruments that protect human rights and freedoms is desirable. [68; quoting Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City), 2000 SCC 27, [2000] 1 SCR 665, [47]]

What are we to make of this? If usual rules interpretation are to prevail, differences in terminology must make a difference, if not to the objectives then to the effects of human rights as of any other statutes. And the idea that differences in wording don’t matter because objectives are key to interpretation is specifically rejected in the majority opinion in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 ― signed onto by the same five judges who are in the majority in Ward (even as it is endorsed by the concurrence).

Between the jurisdiction issue and this, I cannot help but wonder whether their Lordships remember what they said last year. Or are they trying to say that we are supposed not to? This stream of inconsistent pronouncements ― by the same people! ― reveals, at best, a lack of attention to legal doctrine and craft. It is very disappointing.

Freedom of Expression

I finally come to the meat of the case. Here too, I want to praise the majority for getting things fundamentally right, but also to criticize them for saying things along the way that are doubtful or even wrong in themselves, or inconsistent ― without explanation ― with important precedent.

Let me start with a quick note from the “judges are not philosophers” file. The majority’s discussion of the freedom of expression begins with the assertion that it, “[l]ike the right to the safeguard of dignity … flows from the concept of human dignity”. [59] Perhaps. But in the next paragraph the majority quotes Joseph Raz’s claim that “a person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected”. [60] These are two quite different views of the foundations and purposes of the freedom of expression ― one deontological, the other utilitarian. Perhaps nothing turns on which of these is correct in this case, but if so, the majority shouldn’t be making these philosophical declarations at all. And I suspect that in some cases the choice might actually make a difference. The majority’s approach is muddled and unhelpful.

Now for some good things. This, especially: “freedom of expression does not truly begin until it gives rise to a duty to tolerate what other people say”. [60] This is the key to so many disputes about freedom of expression. Speech is not harmless. It can hurt. It can propagate falsehoods. It can inflame base passions. But freedom of expression means sometimes having to tolerate such things ― just like freedom of assembly means having to tolerate noisy protests, and freedom of religion means having to tolerate heresy and blasphemy ― even when their cost falls on particular groups or even individuals.

The majority adds that “[l]imits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience”. [61] This sets a fairly high bar to limits that will be considered justified. It also acknowledges that the audience has its share of responsibility in appreciating troublesome words. Courts assessing a limit on the freedom of expression should not assume that citizens are, by default, unthinking and gullible playthings for the tellers of tall tales. This is also good and important. Assuming away all critical sense among the citizens would help justify all kinds of restrictions on speech, including, and perhaps especially, in the political arena. It is fundamentally incompatible with the notion of a self-governing, responsible citizenry.

But this insistence sits uneasily, to say the least, with the Court’s position in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. There, the majority said that

The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case. Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm. [77]

This is contrast to the Harper dissent’s concern that “[t]here [was] no demonstration that” the limits on “third party” spending at issue were “required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair”. [38] By my lights, Ward‘s insistence on serious reasons to fear specific harm, as well as on audience discernment is much more in tune with the Harper dissent. Because I regard Harper as an abominable decision, I am happy to see Ward go in a different direction. But there is no comment in Ward on how these cases interact. Again, it’s as if the judges don’t remember what the law says, though at least Harper is a much older case that Vavilov and Québec Inc.  

All that said, the substance of the majority’s decision is right and reassuring (or it would be reassuring if more than five judges had signed on). The majority insists that the right to the safeguard of one’s dignity most not be “vague” or given “a scope so broad that it would neutralize freedom of expression”. [80] It stresses the objective nature of the test for whether this right is breached and rejects the modified objective standard of “a reasonable person targeted by the same words”, because “[t]hat approach results in a shift toward protecting a right not to be offended, which has no place in a democratic society”. [82] What matters is neither “the repugnant or offensive nature of the expression [nor] the emotional harm caused”, [82] but the effect of the words on listeners: would “a reasonable person, aware of the relevant context and circumstances, … view the expression … as inciting others to vilify [its targets] or to detest their humanity on the basis of a prohibited ground of discrimination” [83] and would “a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted”? [84]

All this is the more important since the list of prohibited grounds of discrimination under the Québec Charter is very broad and includes “political convictions”. As I have written here, “even if we accept the need to protect vulnerable minorities from hate speech targeting them, I struggle to see what makes it necessary to extend this protection to members of political parties or movements”. Protecting people from mockery, let alone hurt feelings, based on their political views is incompatible with lively democratic debate. However much we can wish for such debate to usually be civil, I think it’s a mistake to insist that it always must be, and certainly a grave mistake to put government officials in charge of deciding whether it is sufficiently civil on any give occasion.


The insistence on the need for objective assessment and the clear rejection of a right not to be offended will, I hope, be the key takeaway from Ward. For them, we can forgive the majority opinion its many flaws. That there can be no right not to be offended in a society that proclaims its commitment to the freedom of expression and to democracy might have been self-evident ten years ago, but it evidently isn’t anymore. The dissent offers us a glimpse of what a world in which this truth isn’t recognized looks like. I will focus on it in a forthcoming post.

The Supreme Court―What Is It Good for?

The Supreme Court is deciding fewer cases; is this a sign of modesty, or boldness?

I’d like to come back to a recent post of Mark’s, the one on the Supreme Court seemingly granting leave to appeal in and hearing ever fewer cases. As Mark notes, “[o]n first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time” ― that of a national institution charged with developing the law, and not merely with correcting the errors that occur in the lower courts. Indeed the idea that the Supreme Court’s role is to develop the law follows logically from the requirement that decide whether to grant leave in a case according to whether it presents questions of “public importance” or “the importance of any issue of law or any issue of mixed law and fact involved”. And this requirement is laid down not by the Court but by Parliament, in s 40(1) of the Supreme Court Act. It might even be an essential characteristic of the Supreme Court and thus a constitutional requirement according to Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433. Who knows.

Be that as it may, Mark argues that, whether or not it is a dereliction of duty, the Supreme Court’s choice to butt out and let the provincial and federal courts of appeal develop the law isn’t all bad:

 There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court. This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. (Paragraph break removed)

I have a somewhat different view on this. For one thing, there is at least some reason to think that the Supreme Court’s decision-making process is in fact more suited to the development of the law. For another, and more importantly, the Supreme Court’s choice to take fewer cases is not exactly innocent.

On the process side, the reason panels expand, while the number of cases courts and individual judges hear shrinks, as one goes up the curial hierarchy is that we expect that more judges devoting more time to any one case are more likely to get it right. In particular, the Supreme Court’s nine-judge bench is sure to be more diverse ― geographically, on a number of demographic dimensions, and ideally intellectually too ― than a three- or even five-judge panel of a court of appeal. To be sure, there can be costs associated with larger panels, especially when they try to conjure up unanimous judgments that need to paper over substantial disagreements. But, at least in the long run, this logic seems sound.

The Supreme Court also benefits, if that’s the word, from inputs into its decision-making that should, in theory, improve it. There are more interveners at that level (including Attorneys General from provinces other than the one whence a case originated), more clerks, and more academics writing about cases before the Court. Perhaps some or all of these do more harm than good. (See, for example, Justice Stratas’ skepticism about interventions in Canada (Attorney General) v. Kattenburg, 2020 FCA 164.) But, to the extent that any do some good, they underscore the benefits of the Supreme Court’s decision-making. Again, the effects, if there are any, only appear in the long run. There are tons of great decisions made by courts of appeal, as Mark notes, and far too many bad ones made by the Supreme Court. But the latter does seem to have an institutional advantage.

More importantly though, I think that the Supreme Court does not grant leave in fewer cases out of some sort of modesty. The issue isn’t whether Court sees itself as having an important role in developing the law ― it certainly does ―, but how it chooses to play this role. Crudely, there are two possibilities: on the one hand, a court might develop the law incrementally by deciding many cases; on the other, it might decide only a few cases, but make significant changes to the law in every one. Of course, this is something of a caricature: how much a case develops the law is a matter of degree, a point on a spectrum. And even the same court might not take the same approach in every case. But you get the idea. Mark writes that “[i[f the Court is granting fewer leaves, it is deciding fewer cases that could ‘settle the law’ in areas that require it”. But deciding many cases isn’t the only way to settle the law.

Now it might seem that the two approaches ― many incremental cases or few big ones ― amount to much the same thing, in the long run: 10 cases developing the law by one unit each, the next always building on the last, or one case jumping ahead by 10 units end up in the same place. One might even think that the few-big-cases approach is preferable insofar as it saves some litigants the expense of ending up at the Supreme Court. It might also enable the Supreme Court to maximize the institutional advantages I have described above. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 is an illustration: it attracted all manner of attention from interveners and academics, and the Supreme Court itself appointed amici curiae to assist it.

Despite this, I think that we should be wary of the few-big-cases approach. It sits uneasily with the judicial role ― even the role of a court mandated to develop the law, and not only to do justice between parties in individual cases. Even when developing the law, a court still does so in the process of deciding cases, in response to the gaps or defects revealed by the disputes before it. It can properly seek to fill the gaps or remedy the defects, but it does not hold a roving commission to reform the law on a grand scale. Again, there are degrees of this, and the line between what is and what is not appropriate is blurry. But it should be apparent that, taken to the extreme, the view that a court can reform large areas of the law at once makes its role indistinguishable from that of a legislature.

There is, perhaps, an additional point. The self-perception of a court may matter: does it see itself as primarily engaged in adjudication or in law reform? This is related to but not quite the same as the vexing question of whether courts make or find law. (I discuss an example of the Supreme Court’s puzzlement at this here.) While a court that thinks of the common law as the product of judicial legislation might be inclined to be less modest than one that thinks of it as the product of judicial discovery, it need not necessarily be so; it might see itself as only properly legislating “in the gaps”. Conversely, a court may not be modest despite claiming not to be making law. The Dworkinian conception of judging is like that ― it is not at all modest, despite ostensibly disclaiming judicial law-making. In any case, the court’s self-understanding may shape its decision-making, at least in subtle ways.

And it is easy to point to decisions of the Supreme Court reflect a legislative, ambitious view of its role. Vavilov is one, of course, and very visibly so. Mark compares it to “an academic essay”, but it is at least as much of a legislative act, albeit one less crisp, though more fully reasoned, than a statute. The majority opinion does not even get to the dispute before the court until Part V, paragraph 146. But Vavilov is only an extreme, not the only example. R v Hart, 2014 SCC 52, [2014] 2 SCR 544, where the Court reformed the law on the admissibility of “Mr. Big” confessions, is a favourite of mine. Justice Moldaver, for the majority, explained that he

propose[d] a solution that … strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime.  This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [84]

And then, of course, there are the constitutional cases. There are those where the Supreme Court re-writes the law and gives “benediction” to rights heretofore unknown to our jurisprudence. But others too, like the notorious R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, also have a legislative feel to them.

Mentioning Jordan brings me to an important caveat: I do not mean to suggest that the Supreme Court should never go big. I have defended that decision, which may well have been the only way the right to a trial “within a reasonable time” could have been made more than a dead letter. Hart may have been the only way the considerable injustices plaguing the use of Mr. Big operations were ever going to be addressed, when one considers the resounding silence of Parliament on this issue both before and since. And even a clean-up on the scale of Vavilov may have been inevitable in administrative law. Justice Scalia, in “The Rule of Law as Law of Rules”, famously argued that judges should confidently lay down rules when deciding cases, to achieve equality before the law and predictability, and to bind themselves and their colleagues to a stable legal framework, including in the face of political pressure. There is something to this.

Nonetheless I think the point still stands: the Supreme Court is not necessarily being cautious or taking a laissez-faire approach just because it is deciding fewer cases. It may well be making a choice to develop the law in bold, big steps rather than incrementally. Bold action may have its advantages, and it may sometimes be necessary, but it runs the danger of being less judicial, and thus injudicious. On the whole, I think I would rather that the Supreme Court decided more smaller cases than fewer big ones. But they won’t ask me.

The Supreme Court’s Leaves (Or Lack Thereof)

The Supreme Court has gone yet another week without granting leave to any cases. I am not an empiricist, and this is not something I’ve been tracking, but I gather that the Supreme Court has granted leave to less cases over time in general (not to suggest that this week is particularly representative of anything).  Statistics from the Supreme Court from 2009-2019 suggest a drop-off in leave rates, and I imagine that the rate at which the Court granted leave was higher in the 1980s and 1990s than it is now.

There is good work being done to analyze the Supreme Court’s leave practice, an area that I understand is traditionally understudied. Led by Paul-Erik Veel, Lenczner Slaght’s Data-Driven Decisions project, and its related Leave Project, attempt to understand and predict the Supreme Court’s leave practice. And while I am not an expert on the subject, I gather that there is interest in understanding why the Supreme Court has granted fewer leaves over time, and relatedly, whether it is a good or bad thing.

On first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time. Its granting of a constitutional role for itself in the Nadon Reference suggests a court that sits at the centre of Canada’s system of laws. In Henry, at para 53, the Court said the following:

53 In Canada in the 1970s, the challenge became more acute when this Court’s mandate became oriented less to error correction and more to development of the jurisprudence (or, as it is put in s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to deal with questions of “public importance”).  The amendments to the Supreme Court Act had two effects relevant to this question. Firstly, the Court took fewer appeals, thus accepting fewer opportunities to discuss a particular area of the law, and some judges felt that “we should make the most of the opportunity by adopting a more expansive approach to our decision-making role”:  B. Wilson, “Decision-making in the Supreme Court” (1986), 36 U.T.L.J. 227, at p. 234.  Secondly, and more importantly, much of the Court’s work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case.

This passage packs in a number of points. First, the Court sees itself not only as an appellate authority of error correction, but as central to the development of the jurisprudence on issues of public or national importance. In turn, this could plausibly affect the doctrine the Supreme Court applies in certain areas. The Court is not designed simply to point out appellate errors, but in turn develops overarching doctrinal frameworks that sometimes requires the overruling of precedents. A modern example is the Supreme Court’s decision in Vavilov, which reads (sometimes) as an academic essay rather than a traditional judicial decision.

The fact that the Supreme Court grants fewer leaves, then, suggests a Court that is not living up to its role to develop the jurisprudence. If the Court is granting fewer leaves, it is deciding fewer cases that could “settle the law” in areas that require it. For those who see the Supreme Court’s role as, for example, arbitrating between competing national values, a lower leave rate suggests a less relevant Supreme Court than its members sometimes imagine.

On the other hand, the granting of fewer leaves is not necessarily problematic if one takes a pessimistic view of what the Supreme Court does. For most advocates across the country, the bread-and-butter of law does not occur in the august halls of the Supreme Court. Instead, it is more likely that legal issues are decided by lower courts and administrative actors. The prohibitive costs associated with bringing leave applications and appeals to the Supreme Court creates a built-in incentive for these issues to be finally decided at a lower level of decision-making.  

This is just my view, but I do not view this as a bad thing. For one,  Canada’s lower court judges are far from bit players in the development of the law. The Supreme Court gets a lot of attention, but the 9 judges on that Court are special only because of their station; not necessarily because they are more likely to come to better or more stable decisions than a lower court judge. The Supreme Court, as Robert Jackson once said, is only infallible because it is final. Our lower court judges are well-equipped to settle the law without high-stakes litigation at the Supreme Court. Vavilov provides another instructive example of this. Prior to Vavilov, the Federal Court of Appeal, led by Justice David Stratas, had attempted to make sense of the Supreme Court’s administrative law doctrine. Its approach to determining and applying the standard of review was, in many respects, adopted in Vavilov: see particularly the Vavilov Court’s approach to reasonableness. The Federal Court of Appeal itself has recently made note of this: Alexion, at para 7. There is an irony here: the Supreme Court, far from settling the law of judicial review in the 2010s, unnecessarily complicated things for lower courts and litigants. Far from stability, the Court actively made things worse. It took lower court judges doing their best to apply the law to make the Supreme Court clean up its own mess, with help from the Federal Court of Appeal.

I am not suggesting that the leave practice of the Supreme Court in recent years is a wholly good thing, but I do not necessarily see it as a bad thing either. There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court.

This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. Vavilov, for example, was an important case on which to grant leave because the doctrine was so unsettled across the country. I am candidly not sure how many such instances exist in various areas of the law. Unfortunately, this suggestion is a non-starter: we will never know what, beyond bromides, members of the Supreme Court take into account when granting leaves.

At any rate, I don’t have the answers here and as I said earlier, there is probably more in the available data to complicate the picture I have drawn here. Nonetheless, I do think more discussion of the benefits and drawbacks of the Supreme Court’s leave practice is desirable.