Delusions of Grandeur

Justice Abella sets out a vision of the Supreme Court as arbiter of national values

I didn’t realize that writing op-eds for the media was part of the judicial job description, but apparently it is. There was of course Brett Kavanaugh’s instantly-notorious op-ed in the Wall Street Journal. And, ten days ago, Justice Abella followed in now-Justice Kavanaugh’s footsteps, with an op-ed of her own, in the Globe and Mail. The op-ed is an adaptation from a speech given on the occasion of the 70th anniversary of the Supreme Court of Israel; but Justice Abella, presumably, thinks that it deserves a Canadian audience as well as an Israeli one.

Why that ought to be the case, I am not quite sure. Part of the op-ed is meaningless twaddle: we have, Justice Abella tells us, a “national justice context” that is “democratically vibrant and principled”. Part is rank hypocrisy: the Supreme Court’s “only mandate is to protect the rule of law”, says the person who has devoted many a talk to criticizing the very idea of the Rule of Law and arguing that it had to be replaced by something called the rule of justice. Part is rotten grammar: “human rights is [sic] essential to the health of the whole political spectrum” (emphasis removed). But all of it is a self-assured presentation of a role for the judiciary that has nothing to do with the Rule of Law, and this bears commenting on.

Justice Abella begins by proclaiming that the Canadian Charter of Rights and Freedoms sets out “a uniquely Canadian justice vision, a vision that took the status quo as the beginning of the conversation, not the answer”. One might be tempted to think that this is a reference to section 33 of the Charter (which, for all its flaws, is indeed “uniquely Canadian”), or at least to some version of the “dialogue theory”, according to which courts and legislatures both participate in the elaboration of constitutional rights. But this would be a mistake. Justice Abella likes her judges “bold”, and her legislatures obedient. The “conversation” to which she refers only involves the members of the Supreme Court.

And while she begins by seemingly conceding that “[t]he Charter both represented and created shared and unifying national values”, Justice Abella then argues that it is the Supreme Court that has developed “a robust new justice consensus for Canada”. It is the Supreme Court that serves as “the final adjudicator of which contested values in a society should triumph”. (Wait… didn’t the Charter already represent and create shared values? How come these values are, after all, contested?) Fortunately, says Justice Abella, the Canadian public and its elected representatives have fallen into line and followed the Supreme Court’s moral leadership: “[c]riticisms and questions were of course raised, but usually with civility.” If Canada is committed to “pluralism and diversity”, rather than “obliteration of the identities that define us”, that’s because “[a]ll this came from the Supreme Court”, and its teachings were accepted by both “the public” and “the legislatures”.

Hence the empowerment of the Supreme Court, coupled with its independence, is all to the good. “[D]emocracy, Justice Abella insists, “is strengthened in direct proportion to the strength of rights protection and an independent judiciary”. Indeed, the very “humanity” of a country would be imperiled by attacks on judicial power. Hence Justice Abella’s plea in defence of the Supreme Court of Israel, delivered, she says, in her capacity not only “as a judge”, but also “as a citizen of the world”. (I assume Justice Abella has not been shy about criticizing the feebleness of the judiciary in countries like Russia and China, too, though I don’t think she has published op-eds about them. Perhaps she has even criticized the backward ways of the United Kingdom, Australia, and New Zealand, which haven’t seen it fit to remit the adjudication of contested values in their societies to the courts, though I can recall no op-eds on that subject either.)

I have no firm views about whether Canadian judges should go around the world lecturing other countries about how to organize their constitutional arrangements, whether in their capacities as citizens of the world or as public officials. (How many ordinary citizens of the world are, after all, invited to give pompous speeches, and allowed 1200 words of op-ed space in a national newspaper to bring them to hoi polloi?) I do, however, have some thoughts on the substance of Justice Abella’s views regarding the role of the Supreme Court in Canada’s constitutional structure. Co-blogger Mark Mancini has already presented his, but my take is somewhat different, so I hope the readers will forgive a measure of repetition.

Mark stresses the fact that, if the Supreme Court is to be the arbiter of national values, it is not at all clear why it should be staffed by judges—that is to say, by former lawyers, who are not trained for or especially good at this task. Why not economists and philosophers instead? Mark writes that

if courts make abstract, political, and resource-intensive value judgments for the society on the whole…—if we have sold the legislature down the river—then they should at least be good at it.

And if the courts are not, after all, to be replaced by philosophical-economic colloquia, that’s probably because what we really want is for judges to stick to law.

I largely agree with this, but there is an additional move in Justice Abella’s argument that Mark does not address: the claim that adjudication by the independent Supreme Court is somehow democratic and that, indeed, democracy is strengthened the more powerful the court is. I think it is a crucial argument. After all, legislatures, which Mark doesn’t want to “sell down the river”, are also staffed by people who tend to have no particular expertise in either economics or philosophy, and who are subject to all manner of perverse incentives to boot. Why should they be making value judgments for society? The generally accepted (which isn’t necessarily to say correct) answer is, because they are democratic institutions. That’s why Justice Abella wants to claim the democratic mantle for the institution that she extols (as do others who make similar arguments).

How successful is the claim? In my view, not very successful at all. It starts from the premise that there is more to democracy than elections. Let us grant that. Still, there are important questions that need answering. What is this “more” that a polity ought to have, beyond periodic elections, to be counted as democratic? Jeremy Waldron would mention things like separation of powers, meaningful bicameralism, and “legislative due process”, rather than judicial review of legislation. Justice Abella doesn’t even consider these possibilities, and thus does not explain why they are not sufficient. She thus does little to justify judicial review of legislation at all, let alone the robust, value-defining version that she favours. Others would add federalism and federalism-based judicial review, but not necessarily the rights-enforcing variety.  And even granting the insufficiency of structural devices to foster and protect genuine democracy, one can doubt whether it is this form of judicial review that we should favour. Aren’t more limited versions, along the lines of John Hart Ely’s “representation reinforcement” or the Carolene Products footnote 4‘s special protection for “discrete and insular minorities”) sufficient? Justice Abella has no answer to this objection either.

Instead, Justice Abella is content to assert that more judicial power is better, including for democracy. Surely, this isn’t necessarily so. Justice Abella herself, and most Canadian lawyers, would likely be horrified at the idea of judicial review enforcing property rights and freedom of contract against democratic majorities. They would insist, as Justice Holmes did in his dissent in Lochner v New York, 198 US 45 (1905), that “a constitution is not intended to embody a particular economic theory … It is made for people of fundamentally differing views”. (75-76) (The only exception to this, of course, concerns labour unions; fundamentally different views regarding their role in the economy have been read out of the Canadian constitution by the Supreme Court, led by Justice Abella.) On reflection, everyone—including Justice Abella—would agree that the protection of rights by an independent judiciary is not, in fact, always good. At the very least, it matters which rights are protected—and if it is the judiciary that effectively decides this, then it matters how it uses its power to do so.

This brings me to Justice Abella’s most remarkable claim—that it is indeed the Supreme Court that defines not just our constitutional rights, but Canadian values more generally. Mark characterizes this is “judicial supremacy”, but I prefer using this term to mean unyielding judicial control over constitutional meaning (the way Professor Waldron does here, for example). Justice Abella’s ambition is not so limited; she is not content to decide what our supreme law means; she wants to be the ultimate authority on what Canadians believe in. This is shocking stuff. In a free society, there can be no such authority, whether in the Supreme Court or elsewhere. In a free society, one cannot point to the constitution and say, Thatcher-style, “this is what we believe”. Citizens in a free society disagree, including about fundamental values. A constitution is only a judgment, albeit one reached by a super-majority—not, mind you, an actual consensus—about which of these values will be translated into legal constraints that will be imposed on the government until the constitution is amended. The courts’ job is to interpret these legal constraints, as they interpret other law; it is not to dictate “which contested values in a society should triumph”.

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority. It is unfortunate that a person so utterly misguided holds an office with as much power and prestige as that of a Supreme Court judge. Still, as important as this office is, it is less significant than Justice Abella imagines. We remain free to reject the values the Supreme Court would have us subscribe to. When these values amount to uncritical polite deference to philosopher-kings in ermine-collared robes, we have very good reason to do so.

The Joke’s On Us

Canadians ought to care about who gets on the Supreme Court

Over the Thanksgiving weekend, the Beaverton ― Canada’s version of the Borowitz report ― ran a piece called Canadians thankful they can’t name single Canadian Supreme Court Justice. Remarkably enough, a number of lawyers in my social media feeds shared it ― with apparent approval. And of course a more reputable outlet published a rather similar story in all seriousness just a few months ago. I suppose one ought to be grateful that Canada has so far avoided the sordid spectacle of American “confirmation battles” generally, and that over the appointment of Brett Kavanaugh in particular. The ability of the Canadian governments to simply get their preferred candidates on the bench is, on the whole, a good thing. But it doesn’t follow that it is of no consequences who the judges of the Supreme Court are.

The Beaverton, parroting the national myth (aren’t they, like, suppose to make fun of things?), claims that “many Canadians were happy their court was quietly and deliberately applying the constitution”. This is, to use a technical term, bollocks. Just this year, the Supreme Court read the guarantee of free trade out of the constitution in R v Comeau, 2018 SCC 15; proclaimed, in defiance of fundamental principle, that administrative agencies can enjoy “plenary”, “unrestricted powers” in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (at [10] and [11]); and gutted religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32. This is not a court “quietly applying the constitution”; this is a court re-writing the constitution as its suits its fancy. Nor is this some sort of new development. Back in 2015, Grégoire Webber wrote that

Over the past year, the people of Canada have undertaken an important remaking of our constitution. We have given constitutional status to the Supreme Court, created a constitutional right to strike, and created a constitutional right to assisted death, among other changes. …

How have we done so? … We have … appealed to that straightforward constitutional amendment process called the Supreme Court of Canada.

Now, both in West Fraser and Trinity Western, and in some of the cases to which Professor Webber refers ― notably Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245, which “gave benediction” to the right to strike ― the Supreme Court was not unanimous in its rewriting or shredding of the constitution. There were fierce, and compelling, dissents. While no Supreme Court judge has taken a very consistent position in opposition to the Court’s majority view of its powers of constitutional amendment ― the Court was unanimous in Comeau, for instance ― some have been more forceful than others in resisting the trend. Justice Côté, in particular, has been a strong voice in favour of upholding the Rule of Law by opposing the empowerment of lawless administrative decision-makers.

And so it matters that there is only one Justice Côté on the Supreme Court; and that even with Justices Rowe and, especially, Brown, who sometimes join her in whole or in part, she is far from commanding a majority of the Court. It matters whether or not you agree with me that Justice Côté tends to be right (she isn’t always) and that most of her colleagues tend to be wrong. If you think that the majority of the Court is generally correct, and that Justice Côté and others who resist its assertions of judicial and administrative power are wrong, it also matters that there not be more Justices Côté, or even Justices Brown or Rowe. Indeed, the enthusiasts of judicial power in Canada understand this very well, which is why some were sufficiently upset when Justice Brown was appointed to the Supreme Court to demand that the Court prevent politicians from choosing judges in the future.

Smug self-satisfaction is, of course, Canada’ national disease, and self-congratulation at not being Americans is a widespread complication. Canadian lawyers are as susceptible to these things as their other compatriots. But we should know better. We should realize that Canadian judges are no more oracles than their American colleagues ― indeed, unlike some American judges, they don’t even pretend otherwise; witness Justice Abella’s repeated rejections of the Rule of Law as even an ideal to aspire to. We should understand that the Supreme Court’s relative anonymity, which it is only too happy to foster with “by the court opinions”, is part of what allows it to exercise powers with which, as even the Beaverton inadvertently suggests, many Canadians would not, in fact, be especially comfortable. If we cannot figure this out, the joke really is on us.

Trinity Western, Dissected

The video of a discussion of the Supreme Court’s decision, held at the Centre for Constitutional Studies

Last week, I had the privilege of taking part in a discussion of the Supreme Court’s recent Trinity Western decisions organized by the Centre for Constitutional Studies. My presentation dealt with the Court’s majority’s embrace of the use of the Canadian Charter of Rights and Freedoms, anti-discrimination legislation, and purported “Charter values” to impose on a private institution obligations to which no law subjects it. I argued that, although the majority judgment in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, refers to “shared values”, in a pluralistic society it is only laws that we share ― until we amend them through the appropriate process ― even as we strongly disagree about values.

For their part, my co-panellists, Howard Kislowicz and Jennifer Rason, spoke respectively about the conformity, or lack thereof, of Trinity Western to Supreme Court precedent in the realm of freedom of religion, and about the decision-making processes followed by the law societies, and their implication for judicial review of their decisions. While they were not as harshly critical of the Supreme Court as I was, I think it is fair to say that, in their own ways, they too were underwhelmed by the decisions.

Here is a recording of the event. My remarks start at about 9:40, but I strongly recommend those of Professors Kislowicz and Raso, as well as the Q&A.

Thanks to the Centre’s Patricia Paradis and her staff for putting this event together! I very much enjoyed it, and hope to be back sometime.

Quis Custodiet?

If judges are the guardians of our constitutional values, they need to be guarded too, as Chief Justice McLachlin’s example shows

There has been no shortage of panegyrics on the occasion of Beverley McLachlin’s retirement. Richard Albert‘s is particularly interesting to me, though, because it is largely based on the former Chief Justice’s extra-judicial output, mostly speeches, and I once toyed with the idea of writing a piece based on such materials myself. (Disclosure: Professor Albert and I are working on an edited collection project together.) Indeed, I have critiqued individual speeches that Chief Justice McLachlin has given on a couple of occasions (here and here).

These explanations of how the former Chief Justice saw her role are significant ― if not always informative, as I will also suggest below ― yet bound to attract less interest, and less critical attention, than her judgments. Professor Albert’s paper is thus a useful contribution to our understanding of the former Chief Justice ― even if we dissent from its tone and disagree with its assessment of its subject, as I do. This is all the more so since the papers on which Professor Albert draws are not as easily accessible as one might wish. The Supreme Court’s website offers only a selection of the former Chief Justice’s speeches (which includes neither of those I have commented on, for instance), and virtually nothing from any for her colleagues, or even her successor.

According to Professor Albert, the former Chief Justice has been a towering figure in early 21st-century Canada. Prime Ministers and Governors General came and went, but the Chief Justice remained, rising almost to the stature “of Conscience-in-Chief
that Americans have sometimes seen fulfilled by their presidents”. (7) You might think it’s a bit too much for a person who writes thrillers, not treatises, in her spare time, but Professor Albert is unrelenting in his praise:

Chief Justice McLachlin … has made Canada a better, fairer and more equal place, and our Constitution the envy of the world. She leaves an equally important legacy as an expositor and guardian of our constitutional values. (1)

As mentioned above, Professor Albert draws on the for Chief Justice’s extra-judicial pronouncements to make his case. In my view, however, the light he shines on her exposes a rather unflattering image.

The earliest speech Professor Albert describes concerned “The Role of Judges in Modern Society“. It is part of that role, the former Chief Justice said, to “be sensitive to a broad range of social concerns” and to “be in touch with the society in which [judges] work, understanding its values and its tensions” ― while at the same time “attain[ing] a level of detachment” from their personal views “which enables [them] to make decisions which are in the broader interests of society”. In another speech discussed by Professor Albert, this one on “Defining Moments: The Canadian Constitution“, Chief Justice McLachlin added that “as a nation’s values and expectations change over time, so its constitution is applied in a way that reflects those changes”.

The idea that judges must maintain a connection of some kind to “their” society is, of course, reminiscent of the discussion of the role of “social values” in l’Affaire Nadon, a.k.a.  Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 ― delivered just five weeks after the “Defining Moments” speech. In his article “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?”, Peter McCormick suggested that Chief Justice McLachlin likely wrote the majority opinion in that reference, and thanks to Professor Albert’s investigation of her extra-judicial pronouncements we arguably have additional evidence in support of this suggestion. What we lack, either in l’Affaire Nadon or in the “Defining Moments” speech, is an explanation of the mechanisms by which judges are to maintain sensitivity to social concerns or understand social values, let alone make decisions in the broader interests of society.

This is impotant. Never mind the normative question of whether deciding in the broader interests of society is in fact the judges’ job. (It’s not.) Ought implies can, and the suggestion that the judges can do these things is implausible and betrays an arrogance that is quite incompatible with maintaining “an attitude of ‘active humility'” for which Chief Justice McLachlin also called in the same speech. The matter of the “social values” that Québec judges on the Supreme Court of Canada purportedly channel is illustrative. The joint dissent by Justices Lebel, Wagner, and Gascon in the gun registry litigation, Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, referred to an alleged consensus in Québec in favour of the (now-defunct) long-gun registry ― yet as I noted here, polls showed that this consensus only existed among the media and political elite, but not among the general population.

Judicial inability to channel social values not only calls into question particular opinions, such as the majority in l’Affaire Nadon or the gun registry dissent, but undermines the foundations of the Supreme Court’s professed (though not always followed) approach to interpreting the constitution. Professor Albert, referring to the former Chief Justice’s insistence that the Canadian constitution is “applied in a way that reflects … changes” in social values, writes that

[t]his raises a telling contrast with the United States, whose revolutionary traditions have invited dramatic reorientations in law and society. Our evolutionary model would certainly not embrace Thomas Jefferson’s famous suggestion that each American generation should discard the existing constitution, break legal continuity with the prior regime, and author its own new constitution according to the values of the time. (12)

This may be true at a wholesale level ― though of course the Americans have been no more keen on Jefferson’s suggestion for constitutional replacement than Canadians, which suggests that we are not all that different from one another. But of course the idea that the constitution can be applied ― by judges ― to reflect social change even in the absence of actual amendment amounts to a discarding of constitutional provisions in detail. Legal continuity is not shattered all at once, but weakened hairline fracture by hairline fracture, one constitutional benediction at a time.

Professor Albert asks “by what means are judges to determine how and when the country’s values have changed or are in a period of evolution from old to new?” Yet having dismissed constitutional amendment as a guide due to its difficulty, he simply accepts that “[j]udges … must themselves drive the evolution of the Constitution”. (13) Professor Albert suggests that the former Chief Justice thought so too; for her “judges must be guided by society but not directed by it”. (13) Indeed, it is the judges who must help direct society towards greater justice ― and specifically towards the “just society” promised by Pierre Trudeau. Professor Albert notes that Chief Justice McLachlin referred to this slogan in a speech she gave in 2007. She returned to the subject in 2016 (both speeches, coincidentally or not, were given to the same audience, the Empire Club of Canada; I suppose they are big fans of Pierre Trudeau there). Commenting on the latter speech, I wrote that it is “quite inappropriate for a judge to take up what was, for better or for worse, a partisan slogan and try to make it into a constitutional ideal”. I worried that this gave “grist for the mill of those who already think that the Charter, and the courts that enforce it, are essentially Liberal self-entrenchment devices.” My views on this haven’t changed, and my worries are only strengthened now that I realize that theme was not a one-off.

Another theme that Professor Albert highlights is the former Chief Justice’s professed commitment to “diversity” ” in speech, thought, origin and orientation, to name a few” (18-19). In another speech Professor Albert quotes, Chief Justice McLachlin insisted that her Court “focused not on ‘seek[ing] to erase difference, nor [sought] to impose conformity’ but to make it possible for ‘each group … to maintain its distinctions'”. (21) I’m afraid that Chief Justice McLachlin’s belief in diversity of thought and in allowing groups to maintain their distinctions will be news, and not very credible news at that, to Trinity Western University, whose law school the former Chief Justice voted to allow law societies to can, lest accrediting it be seen as a stamp of approval for Trinity Western’s (discriminatory) beliefs. But then, extra-judicially saying one thing and judicially doing another one was something of a theme for the person who joined an opinion disparaging “the amorphous underlying principles of our Constitution” only months before jetting off to New Zealand to deliver a noted lecture encouraging judges to invalidate legislation for inconsistency with such principles, declared for the occasion to be tantamount to natural law. And in yet another lecture to which Professor Albert refers, Chief Justice McLachlin stressed that “the law … requires lawyers to take unpopular stands, judges to make unpopular decisions”. (20) Yet for all that she was willing to take on the Prime Minister when occasion called for it, how willing was the former Chief Justice to take a stand that would have been truly unpopular among the bien-pensant intelligentsia? Her change of heart on hate speech criminalisation ― which she opposed early in her career, but eventually accepted ―, and of course her opinion in Trinity Western, are not exactly evidence in her favour here.

Professor Albert has, it will be obvious, a very high opinion of Chief Justice McLachlin. He writes that “the key ingredient … to the success of Canada’s modern Constitution—and the reason why it is so admired abroad—has been how the Supreme Court has interpreted, elaborated and defended it”. (23) To my mind, though, his paper illustrates and explains not so much the successes as the failures of the Supreme Court and of its departing Chief: their rashness in choosing to deal in values rather than in law alone; their arrogance in disregarding legal constraints; their lack of principle and courage. If this is what other countries admire, let them. Canada deserves better.

If, like Professor Albert, I believed that judges can serve as the guardians of our constitutional values, I would not hold up Chief Justice McLachlin as the epitome of that role. But, for my part, I think we ought to heed Learned Hand’s famous warning:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.

The successes, and even the failures, of individual judges in the defence of our constitutional values are, ultimately, less significant than our own. It is our job to uphold these values, including against our public officials ― even the Chief Justice of Canada.

SCC Skepticism

In a recent piece in Maclean’s, Adam Goldenberg explains why the Supreme Court of Canada (SCC) does not suffer from the same partisan interest the Supreme Court of the United States (SCOTUS) does. He lists three main reasons: (1) the nature of partisanship in the US; (2) the American conservative movement’s incubator for legal talent; and (3) American political parties galvanizing support on the strength of controversial court rulings. I accept all of these reasons and invite those interested to read Goldenberg’s piece.

But one more should be added, without which the story is incomplete: American citizens know where law is made.  They realize (even without knowing the legalities) that winning a constitutional debate in court wins the democratic debate for all time.  The matter is put beyond the reach of the regular democratic process. Canadians should be more critical of this reality in our own country.

Two forces have led us to this point. The first is both Canada and the US courts do not shy away from deciding controversial issues. In Canada, Bedford and Carter dealt with prostitution and assisted dying, respectively. In the United States, Obergefell dealt with same sex marriage. The fact that courts often delve into these issues (or, as defenders of the courts would say, are forced into these issues by the nature of an entrenched bill of rights) makes them a lightning rod for political attention.

At the same time, opinion polls in the United States show that Americans have record low confidence in their political institutions, and Canadians are no different. Confidence in government is at all-time lows. We see this in the context of Aboriginal law, where Aboriginal groups have moved to the courts as the primary vehicle by which they can vindicate their rights. One can surmise that they have done so because of the historical ineptitude of the Government of Canada.

These forces together understandably cause citizens to make a choice. Recalcitrant politicians and a lack of confidence in institutions? The slog of convincing one’s fellow citizens? Or, a sweeping court declaration which forces legislatures to respond?

In the US, citizens largely made the latter choice to resolve their plights. Justice Antonin Scalia remarked in Planned Parenthood v Casey that the SCOTUS, rather than legislatures, were increasingly subject to intense political pressure by both sides of hot-button issues—in that case, abortion. The letters, comments, and protestors directed to the SCOTUS, not the legislatures, was an odd sight to Justice Scalia, who viewed the development skeptically. To Justice Scalia’s mind, because the American people “are not fools,” they recognized that the SCOTUS had become the leading institution where these value-laden issues were decided.

While Goldenberg notes that much of this political attention focuses on what the original meaning of the US Bill of Rights means in modern America, I think this overstates the case. The political attention is just that, naked politics, not shrouded in any legality. Many people want the court to achieve their explicitly political ends.  As for originalism, originalists have not held a majority of the US Supreme Court, at least in the last twenty years. Justice Scalia himself was known as a fiery dissenter. For example, under the 8th amendment (cruel and unusual punishment), the SCOTUS developed a profoundly non-originalist test—the so-called “evolving standards of decency” approach. While Justice Kagan’s point that we are all originalists now may be true, it is not true that originalism has been a wholly successful legal project in the United States.

No matter what one thinks of originalism, it provides a limiting principle on otherwise free doctrinal reign. But because it has not been embraced consistently in the US, and no other real principle has come forward, the political parties have latched on to the SCOTUS nomination process as a means to vindicate their particular versions of the good. Since the Bork confirmation hearings, both parties in the US have used the process because they know its consequences. They know that getting the “right” people on the Court will do far more to change laws than simply electing people to the legislature. We see this sort of discussion now with the retirement of Justice Anthony Kennedy, and the ludicrous proposal of “court-packing” to block a Republican nomination.

The Americans have gone too far, and Goldenberg rightly decries this development. But one has to ask whether it is all that bad given the stakes. People understandably want a say in the laws that govern them. If the SCOTUS takes a bigger piece of the pie of the law-making process, then citizens should have the right and the responsibility to campaign on “the court” as an issue.

In reality, Canada’s SCC is just as central in the Canadian polity as the SCOTUS is in the American. Despite the Court’s recent ruling in Comeau, the test to revisit previous precedents is fairly relaxed, and so litigants understandably invite the SCC to do so. This approach invites members of the Court to decide when, according to them, a particular precedent no longer jibes with modern times.  Whatever the strength of the Court’s stated commitment to living constitutionalism, it generally supports its “ideological sex appeal,”   viewing its role as deciding what is best for Canadian society. As Leonid pointed out in a previous post, the SCC has an ideology, but it is probably not evident to most.

A good example is the SCC’s opinion in Saskatchewan Federation of Labour. There, the SCC majority spoke of giving “benediction” to the right to strike. The full quote by the SCC majority is instructive: “[T]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction” [3]. In this example, it was the SCC that decided that now, rather than some past time, was the right time to expand a constitutional right, forever removing it from the realm of democratic debate. This is a political conclusion at heart, more an assessment of what modern times demand rather than what the law does.

And so, it is understandable that political groups should want to have a role in moving the Dworkinian Hercules. But as Goldenberg points out, Canadians have not latched on to these developments as a political matter. In fact, many of the criticisms I’ve advanced to the Saskatchewan Federation of Labour case are common in the US, but less common in Canada. Canadians seem to be  sluggish in response to these tendencies in our own SCC. I can’t speak to why this is; but perhaps it is true to say, as the National Post did, that Canadians are simply “different” than Americans—more trusting of government institutions.

In light of the stakes, Canadians could learn from Americans in taking an active, critical interest in what the SCC does. While I do not advocate a full-blown American approach to judicial nominations, there are various ways Canadians should respond to this phenomenon. Justice Scalia’s prescription was a rigorous application of original meaning originalism, which he thought was the antidote to the excesses of living constitutionalism. I am partial to this approach, but I need not argue this point to make the following assertion: Canadians should first fully reckon with what the SCC is actually doing, whether one thinks its good or bad. If the SCC makes law, as so many legal realists believe, we should hold them to the same standards we hold legislatures. We should, in short,  become Supreme Court skeptics, rather than fawning admirers of our nation’s highest jurists.

This is a distinctly second-order response to the issue, but the most realistic one in the intellectual and legal climate in which we find ourselves.  Canadian academics certainly engage vigorously with SCC decisions, but the extent to which this filters into the larger society (or the extent to which it is representative of all potential critiques) is an open question. We should be concerned with fostering a healthy skepticism of the SCC, similar to the skepticism we hold for legislatures.

This means fostering an open climate of academic, cultural, and political discussion about the SCC, and viewing judges as humans, rather than celebrities—no more capable of coming to conclusions about the nature of human rights than any Joe or Jane Six-Pack. This is a more radical proposition than one might think; consider Leonid’s comments in his recent post about New Zealand’s anti-court criticism bill.

This could also involve a more open nomination process. I saw nothing particularly wrong with the selection process of Justice Marshall Rothstein. His “confirmation” hearings, while in reality non-binding, at least gave those interested a look into the mind of a man who would serve on the SCC. We can have these hearings without devolving into an American three-act-play, or a challenge to the independence of the institution. The fact that Justice Rothstein’s hearing was a model of decorum is an example of this working well.

Goldenberg’s piece underlines the problems with the American approach, but I think it paints far too rosy a picture of our courts.  The Americans understand the consequences of their system and are taking part in it. Canadians, as Goldenberg seems to admit, do not. This is not a fact of which we should be proud.

 

 

The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

What’s Left of Freedom?

In the Trinity Western cases, the Supreme Court eviscerates religious liberty in Canada

In my last post, I discussed the administrative and constitutional law issues relating to judicial review of the decisions of the law societies of British Columbia and Ontario to deny accreditation to the law school set up by the Trinity Western University, which the Supreme Court upheld in in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.  Here, I turn to the religious freedom aspect of the decisions. (Once again, the British Columbia decision is the one that sets out the judges’ reasoning in full, and I will refer to it below.) As indicated in the last post, in my view the Supreme Court’s decisions are disastrous, because they more or less nullify the constitutional protection for religious freedom enshrined in the Canadian Charter of Rights and Freedoms.

Trinity Western requires its students (as well as faculty) to sign and abide by a “Covenant” that proscribes, among other things, sex outside heterosexual marriage. This is widely seen as discrimination against gay and lesbian (potential) students, and was the reason for the law societies’ decisions not to accredit Trinity Western’s law school. Trinity Western argued that these decisions infringed its and its students’ freedom of religion, and that the infringement could not be justified under the Charter.

As on the issues covered in the last post, the Court is split. The majority judgment signed by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon holds that there is indeed a prima facie infringement of religious liberty, but that it is not especially serious and is easily outweighed by the need to prevent harm to students. The Chief Justice, concurring, also finds that there is an infringement of religious freedom, and indeed a rather more serious than the majority lets on, but one that is nevertheless outweighed by the law societies’ desire to avoid condoning discrimination. By contrast, Justice Rowe, also concurring, thinks that religious freedom is not at stake at all. Justices Brown and Côté dissent, finding an infringement of religious freedom that is not justified.

* * *

The majority is of the view that constitutional protection extends to “the socially embedded nature of religious belief” and to “[t]he ability of religious adherents to come together and create cohesive communities of belief and practice”. [64] Trinity Western “is a private religious institution created to support the collective religious practices of its members”, whose rights were “limited” [61] when it was denied accreditation, because their ability to put into practice a “sincere[] belie[f] that studying in a community defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development” was thereby undermined. [70] The majority adds that, while the freedoms of expression and association, as well as equality rights, were also raised in the cases, “the religious freedom claim is sufficient to account for [these] rights of [Trinity Western]’s community members in the analysis.” [77]

The Chief Justice agrees that “the freedom of religion of members of the Trinity Western community” [120] has been infringed. To be sure, as individuals, they can go on holding their beliefs regardless of whether the law societies accredit the Trinity Western law school. However, they would be “prevent[ed] from carrying out a practice flowing from [their] belief about the environment in which [Trinity Western] would offer a legal education”. [125] The Chief Justice adds that the freedoms of expression and association must be included within “the ambit of the guarantee of freedom of religion”. [122]

Justice Rowe, by contrast, denies that anyone’s freedom of religion is being infringed. He starts from the premise “that religious freedom is based on the exercise of free will”, because it “involves a profoundly personal commitment”. [212] For Justice Rowe, it follows from this that, although religion can have a “communal aspect”, it is individuals, and not institutions ― such as Trinity Western ―, who can invoke the right to religious freedom. [219] “[M]embers of the evangelical Christian community” [219] who attend Trinity Western can assert religious rights, but Justice Rowe is skeptical that they “sincerely believe in the importance of studying in an environment where all students abide by the Covenant”. [235] They prefer to do so, but do they really think they have to?Even assuming that this is so, however, Trinity Western’s evangelical students are not entitled to constitutional protection for their belief, which “constrains the conduct of nonbelievers — in other words, those who have freely chosen not to believe”. [239] They cannot, in the name of religious freedom, impose their views on those who do not share them. Since the legislation that sets up Trinity Western requires it to admit non-members of the evangelical community, these non-members are entitled to have their freedom protected too. As for “alleged infringements to … expressive and associate [sic] freedom rights … and … equality rights”, the members of the Trinity Western community “have not discharged their burden” of establishing them. [252]

The dissent sees things very differently. In the opinion of Justices Côté and Brown, the law societies’ denial of accreditation to Trinity Western “undermines the core character of a lawful religious institution and disrupts the vitality of the [Trinity Western] community”. [324] This community has the right to set its own rules for its self-governance, and the law societies are not entitled to dictate how it should do so as a condition of providing it with a benefit. Such dictation

contravened the state’s duty of religious neutrality: [it] represented an expression by the state of religious preference which promotes the participation of non-believers, or believers of a certain kind, to the exclusion of the community of believers found at [Trinity Western]. [324]

The dissenters are exactly right. The majority and the Chief Justice are also correct in recognizing an infringement of the Charter‘s guarantee of religious freedom, though as we shall see, the majority’s recognition, in particular, is well-nigh meaningless, and it is too bad that neither the majority nor the Chief Justice articulate the issue in terms of state neutrality. The key to the Charter aspect of the case is that Trinity Western has been denied something that there is no doubt it would have been granted but for the religious belief and practice which it embodies. While some, including both critics and supporters of the Supreme Court’s decision, have suggested that the case should really have been about freedom of association, I think it makes sense to frame as being about the state neutrality aspect of religious liberty. (That said, freedom of association would also have been a plausible approach ― at least if one ignores the Supreme Court’s refashioning of this provision into one that only benefits labour unions).

Justice Rowe, in my view, is quite mistaken. For one thing, I don’t understand how he, as an appellate judge, can make findings, or even speculate, about the sincerity of individual’s religious beliefs. For another ― and this, as we’ll presently see, is a problem not just for him, but for the majority too ― the suggestion that a court can distinguish between beliefs that are well and truly obligatory and those that are mere “preferences” goes against the approach adopted by the majority of the Supreme Court in Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551, which rejects testing the “validity” of religious beliefs, or asking whether a given practice is regarded as truly mandatory or supererogatory. Most fundamentally, Justice Rowe is wrong to claim that Trinity Western is trying to impose its beliefs on anyone. It demands forbearance from certain actions ― without inquiring into the reasons for this forbearance, in the same way as the state normally demands compliance with laws but doesn’t require citizens to subscribe to the principles behind them. Such demands are indeed quite antithetical to the freedom of conscience ― and one can only hope that Justice Rowe will remember this if or when the Law Society of Ontario’s Statement of Principles policy comes to his court for review ― but this is not what is going on here.

* * *

For the majority, denying Trinity Western accreditation was the only way for the Law Societies to further their statutory mandate (as they understood it), and the denial was “proportionate” to that mandate. It “did not limit religious freedom to a significant extent”, [85] and “does not prohibit any evangelical Christians from adhering to the Covenant or associating with those who do”. [86] Trinity Western itself can still receive accreditation by removing the “Covenant”, or making compliance with it voluntary, and “a mandatory covenant is … not absolutely required for the religious practice at issue”. [87] As for the students who wish to attend it, they prefer to go to a law school governed by the mandatory “Covenant”, but do not have to.

Meanwhile, denying Trinity Western accreditation contributed to “maintaining equal access to and diversity in the legal profession”. [93] Even though accrediting Trinity Western wouldn’t restrict LGBTQ students’ options in comparison with what they currently are, it would leave them with fewer options than their peers which “undermines true” or “substantive equality”. [95] The denial of accreditation also serves to protect any LGBTQ students who were to venture to Trinity Western from “the risk of significant harm” to their dignity, [96] and prevents Trinity Western from “impos[ing]” [102] its religious beliefs on them (and others). The majority concludes that this is just one of the cases where “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society.” [100]

The Chief Justice agrees that the denial of accreditation “was minimally impairing”, [127] but she takes the infringement of Trinity Western’s rights more seriously than the majority. Interference with a “lengthy and passionately held tradition” “of religious schools … established to allow people to study at institutions that reflect their faith and their practices” [130] is no trivial matter. Besides, court cannot assess the significance of religious beliefs and practices, or conclude that they are of minor significance because some believers “may be prepared to give [them] up”. [132] Finally, the Chief Justice rejects the argument that Trinity Western is imposing its beliefs on others:

Students who do not agree with the religious practices do not need to attend these schools. But if they want to attend, for whatever reason, and agree to the practices required of students, it is difficult to speak of compulsion. [133]

On the other side of the balancing exercise, the Chief Justice is skeptical that denying Trinity Western accreditation will do much for LGBTQ students, few of whom would ever consider attending it. However, she gives more weight to “the imperative of refusing to condone discrimination against LGBTQ people, pursuant to the [law societies’] statutory obligation to protect the public interest”. [137] The Chief Justice finds that “[d]espite the forceful claims made by” Trinity Western, she “cannot conclude that” denying it accreditation “was unreasonable”. [148]

The dissent, by contrast, sees no good justification for the denial of accreditation to Trinity Western ― even on the assumption (which, as explained in the previous post, the dissent denies) that the law societies have a free-standing mandate to advance “the public interest”. To be sure, Trinity Western’s “Covenant” is exclusionary; but  this exclusion “is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society”. [327] Canada has traditionally accommodated religious difference, instead of insisting, as the majority does, that it must sometimes be curtailed in the pursuit of statutory objectives. Moreover, “it is the state and state actors — not private institutions like [Trinity Western] — which are constitutionally bound to accommodate difference in order to foster pluralism”. [330] The state is supposed to be secular ― and that means

pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view. [332]

Besides,  “the Legislative Assembly of British Columbia has already determined that the public interest is served by accommodating religious communities” [335] when it exempted Trinity Western from the application of the provincial anti-discrimination legislation.

The dissent also rejects the Chief Justice’s position that accrediting Trinity Western would amount to condoning its discriminatory beliefs:

State recognition of the rights of a private actor does not amount to an endorsement of that actor’s beliefs … Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors. [338]

The state is not entitled to impose its values on those who are not subject to constitutional obligations. While it may not favour particular beliefs, neither may it deny recognition to persons or institutions who hold beliefs that are at odds with its own commitments.

On this, again, the dissenters are exactly right. The majority and the Chief Justice are allowing the law societies to circumvent the decisions of the framers of the Charter and the British Columbia legislature to permit illiberal and discriminatory private actors to retain and act on their religiously motivated beliefs. Yet religious freedom demands no less. When the state uses its regulatory (or, in other cases, its fiscal) power to deny benefits to persons and institutions whose only “fault” is that they hold religious beliefs of which the state does not approve, it not only fails to discharge its duty of neutrality, but actively seeks to eliminate religious diversity or, at best, to push dissentient religious views into the closet. (I use this phrase advisedly.) Moreover, the Chief Justice’s logic ― that the state is entitled to deny a license, benefit, or privilege to persons or entities whose views it ought not to condone ― extends well beyond the realm of religious freedom. Can racist parents be prevented from sending their children to public schools? Holocaust deniers from getting driver’s licenses? Can flat-Earthers be denied passports, or EI payments? In fine, can any interaction a citizen might have with the state be conditioned on that citizen’s not holding proscribed beliefs?

The majority, of course, is no more respectful of religious freedom than the Chief Justice ― and probably less so. Like Justice Rowe, it would, contrary to Amselem, set up secular courts as ecclesiastical tribunals responsible for determining what is and what is not mandatory as a matter of religious dogma. Like Justice Rowe, it confuses rules of conduct and reasons for complying with them and denies the agency of persons who voluntarily choose to submit to rules whose raison d’être they might disapprove of. As for its understanding of “substantive” equality, it requires denying options to all so as not to admit of any disparity, even one that literally leaves “enough and as good” ― and indeed, more than enough and better ― options to those ostensibly excluded; in other words, a levelling down.

* * *

I’m not sure how much is left of the constitutional guarantee of religious liberty after the Trinity Western decisions. Presumably, purely private devotion still cannot be forbidden or compelled ― to that extent, it is fortunate that the Chief Justice’s approach, which would have opened even private religious views to scrutiny the moment a citizen starts interacting with the state, has not prevailed. But any relationships between religious persons or entities with others ― even entirely consensual relationships ― are now open to regulation in which the religiously motivated actions can be regulated or prohibited as impositions of belief, or subjected to the imposition of the state’s values, whether or not there is any legislative basis for such imposition in the circumstances. Purely symbolic harms are deemed to provide sufficient justification for regulation, and multiculturalism is made to serve as an excuse for silencing and assimilating non-conformists. It is telling that the arguments that purportedly justify the denial of accreditation to Trinity Western are not meaningfully different from that those that supposedly support bans on Muslim face veils, which are also said to be necessary to prevent the imposition of retrograde, discriminatory views on those who do not freely embrace them.

Almost five years ago, I commented on an article by Douglas Laycock called “Religious Liberty and the Culture Wars,” which decried the growing hostility to religious freedom among large sections of the political left. Professor Laycock connected this hostility to the religious right’s own attempts to suppress the liberties of the people it regarded as morally misguided. But, contrary to the claims of the Supreme Court’s majority and Justice Rowe, no such thing happened at Trinity Western. However distasteful its views ― and I do find them distasteful, not just the homophobia but the illiberalism more broadly ― Trinity Western wasn’t trying to impose them on unwilling outsiders. Professor Laycock was hopeful that “[w]e could still create a society in which both sides can live their own values, if we care enough about liberty to protect it for both sides”. (41) The Trinity Western cases show this possibility is no longer a realistic one in Canada, for the foreseeable future. The winners in the culture war have chosen not to take prisoners, and to accept nothing short of an unconditional surrender. The Supreme Court holds that they are entitled to do so.