Legal canons and social fables: The law in Canada has never been perfect but now it is losing its way
By Bruce Pardy, published by C2C Journal
To hold themselves together, societies tell themselves stories. People are honest; marriages are faithful; parents are devoted to their children. These narratives contain enough truth to be believed but at least as much wishful thinking. They are “myths” in both senses of the word: they’re not always or exactly true, but they convey cultural beliefs, aspirations and standards of conduct.
Essential myths extend to institutions too. Canada is the land of peace, order and good government. Officials act in good faith for the common interest. Public administration is benign. The legal system is just, fair and neutral. Such fables allow civilization to carry on in relative peace and harmony without serious rupture, even when the facts don’t quite match the story.
But what if people conclude that the fables are false?
Fable 1: The Criminal Justice System is Fair and Even-Handed
Respect for the rule of law depends on people believing that they will get a fair shake. The prime duty of prosecutors is not to achieve a conviction but to see that justice is done on the merits. Accused are presumed innocent. Punishment follows only if guilt is established beyond a reasonable doubt.
On July 26, 2022, Tamara Lich was released from jail again. Charged with mischief in February 2022 for her role in the Freedom Convoy that rolled onto Parliament Hill, Lich had been incarcerated on July 8 by a Justice of the Peace. The Crown attorney had characterized Lich as a danger to public safety and the convoy protest as essentially the crime of the century. It was the second time lower judicial officers had detained Lich. On both occasions a judge of the Superior Court overturned her detention and released her. She spent a total of 49 days behind bars on some of the least serious, non-violence-related charges in Canada’s Criminal Code. Her trial is scheduled for this fall.
“Political prisoner”: Even accused killers routinely get bail, but Freedom Convoy organizer Tamara Lich has in essence been punished for a crime – mischief – for which she has been neither tried nor convicted. Shown, Lich and her lawyer Lawrence Greenspon leaving court after her release from jail on July 26, 2022. (Source of photo: The Canadian Press/Adrian Wyld)
In Canadian courts, release on bail is commonly granted to persons accused of all manner of offences, including violent crimes. It was anything but common for Lich. Before the Superior Court stepped in, her disproportionate treatment punished her for a crime she had not yet been tried for, much less convicted. During her incarceration, some pundits suggested that Lich, who has no criminal record and no history of violence, was effectively a political prisoner. As she awaits trial, Lich must live under onerous bail conditions that severely limit some of her basic rights, such as freedom of speech and freedom of association.
Fable 2: Judges are Impartial
To become a judge means to take on onerous responsibilities. “Justice should not only be done,” Lord Chief Justice Hewart famously said in a 1923 UK King’s Bench judgment, “but should manifestly and undoubtedly be seen to be done.” The Canadian Judicial Council, which oversees the conduct of judges on the country’s highest courts, states in its Ethical Principles for Judges that judges “should avoid using words or conduct, in and out of court, that might give rise to a reasonable perception of bias.” In a 2015 case, the Supreme Court agreed. “Judges are required – and expected – to approach every case with impartiality and an open mind,” the Court wrote, and must be perceived to do so.
Impartiality, Canadian-style: Supreme Court Chief Justice Richard Wagner publicly denounced the truckers’ protest as “forced blows against the state…[that] should be denounced with force by all figures of power in the country.” (Source of photo: The Canadian Press/Adrian Wyld)
The trucks had been in Ottawa for two weeks when, on February 14, 2022, the Justin Trudeau government invoked the Emergencies Act. Legal challenges to that move were launched shortly thereafter and have since been heard, but not yet decided, in Federal Court. Those challenges could easily wind up on appeal to the Supreme Court of Canada.
On April 9, 2022, Supreme Court Chief Justice Richard Wagner gave an interview (in French) with Le Devoir, in which he condemned the convoy. He characterized the protest as “the beginning of anarchy where some people have decided to take other citizens hostage.” The article reported Wagner as having declared that “forced blows against the state, justice and democratic institutions like the one delivered by protesters…should be denounced with force by all figures of power in the country.” (Translation obtained from here.)
In mid-May 2022, a group of lawyers (of whom I was one) filed a complaint with the Canadian Judicial Council (CJC). It argued that Wagner’s comments undermined confidence in the impartiality of the courts. They created a reasonable apprehension of bias by expressing a position on the government’s invocation of the Emergencies Act and the right to protest.
In cases across the country, judges have given deference to governments and public health authorities rather than scrutinize the rationales for Covid-19 measures and mandates. Some have gone so far as to take ‘judicial notice’ – finding facts without evidence – that the situation was as public health officials and government agencies represented it to be.
The CJC’s Acting Executive Director, Jacqueline Corado, in a June 23, 2022 letter, rejected the complaint. She called it “unsupported,” “largely based on a hypothetical scenario,” “manifestly without substance,” and claimed it did not concern judicial conduct. The complaint, her letter concluded, was not worthy of further consideration by the Council. She added, “[P]ublic confidence is at higher risk when public and dogmatic (sic) motivated attacks against the judiciary are launched without merit or for improper purposes.”
Fable 3: Courts Find Facts with Evidence
Judges lack training in everything but the law, which is not their weakness but their strength. Their ignorance frees them from specialized predispositions that burden experts. Judges can approach cases about seeds, debentures, mining, medicine or water quality with an open mind precisely because they have no expertise on such subjects. They make their findings exclusively on evidence brought by the parties.
Except when they don’t. In cases across the country, judges have given deference to governments and public health authorities rather than scrutinize the rationales for Covid-19 measures and mandates. Some have gone so far as to take “judicial notice” – finding facts without evidence – that the situation was as public health officials and government agencies represented it to be. In Saskatchewan, the father of a 12-year-old girl applied for a court order allowing his daughter to be vaccinated against Covid-19 over the objections of the girl and her mother. In September 2021, the Saskatchewan Court of Queen’s Bench granted the order. The judge found that vaccination was in the girl’s best interests and could proceed without her or her mother’s consent. His conclusion was not based on evidence about the girl’s risks from the virus and from the vaccine. Instead, he took “judicial notice” that the Covid-19 virus posed a serious and significant health risk to children like the 12-year-old, and that the Pfizer mRNA vaccine was safe and effective for children to receive.
No evidence needed or wanted: The Saskatchewan Court of Queen’s Bench simply accepted government claims that Covid-19 vaccines were safe and effective at face value – known as taking “judicial notice” – in ordering a 12-year-old girl to receive the shot over her and her mother’s objections, while rejecting all evidence presented by the mother. (Source of photo: GoToVan, licensed under CC BY 2.0)
The burden of proving a fact generally lies upon the party alleging it. If you claim that it rained on Tuesday, you will need a witness to testify that it did. No witness, no finding of rain. Without evidence, no court can conclude that the alleged fact is true. However, some facts are so notorious and uncontentious that having to prove them would be silly and a waste of judicial resources. No reasonable person would dispute that the sky is blue. That a statute with Royal Assent has been validly passed can be established by “readily accessible sources of indisputable accuracy.” Of such facts the court may take judicial notice. But this is a narrow exception to the general rule.
Judicial notice is not, however, meant to apply to the very issues that are in dispute. In the Saskatchewan case, the girl’s risk from the virus and from the vaccine were facts on which the outcome of the case depended. Instead of assessing competing evidence on those questions, the judge jumped the shark, concluding that “without the necessity of any specific proof that the possibility of contracting the Covid-19 virus poses a serious and significant health risk to people generally, including children and adults…I conclude I am able to take judicial notice that the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children. I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine.” Covid vaccines are safe for 12-year-olds like the sky is blue.
On appeal, the Saskatchewan Court of Appeal held that it was improper to take judicial notice that the Pfizer vaccine was safe and effective. Yet it also concluded that the fact of the vaccine’s approval meant that no further inquiry about its safety and efficacy was necessary. Nothing in the mother’s evidence about the vaccine, the Court held, was of value. In the end, however, the appeal court reversed the order because of evidence the girl might harm herself if she was forced to be vaccinated against her wishes.
Nova Scotia’s Supreme Court clamped down on protests against Covid-19 mandates, accusing protestors of “a callous and shameful disregard for the health and safety of their fellow citizens.” Shown, a freedom rally in September 2021 at Halifax Citadel against impending vaccine mandates. (Source of photo: Wandering views/Shutterstock)
The Saskatchewan court was not alone in its embrace of the official Covid-19 narrative nor its reluctance to consider evidence that challenged its veracity. In December 2020, the Alberta Court of Queen’s Bench dismissed an application for an injunction against Covid-19 restrictions. It held the lack of evidence of their scientific basis to be irrelevant. In May 2021, the Nova Scotia Supreme Court granted the provincial government an injunction to prohibit protests about Covid-19 rules. It characterized protestors as willfully blind and having “a callous and shameful disregard for the health and safety of their fellow citizens.”
In June 2021, the Federal Court concluded that any deprivation of liberty arising from compulsory quarantine for airline travellers was consistent with “principles of fundamental justice.” Therefore, quarantine was not a violation of the right to liberty under the Canadian Charter of Rights and Freedoms, much less an unreasonable limit on that right. The Court compared the Covid-19 pandemic to being at war – and observed that during a war, governments are entitled to demand sacrifices from their people. The same month, the Ontario Superior Court granted a restraining order against three churches, barring them from holding services and noting that if necessary, the court could and should take judicial notice of a Covid-19 pandemic. The court did not explain what might make it “necessary.”
Fable 4: Justice is Blind
Ontario’s “SummerUp” program openly – and legally – discriminates against “non-racialized” people. When challenged, the province’s Human Rights Tribunal declared that no white person can ever win a complaint of discrimination.
Blind justice means that the same rules and standards apply to everyone without arbitrary distinctions. When the law treats people as individuals rather than as members of groups, it does not matter whether they are black or white, man or woman, straight or gay, rich or poor. The law should not care who you are.
In June 2021, an Ontario high school student tried to sign up for a summer program. He was rejected because he was white. The “SummerUp” program, sponsored by the Ontario government, was open only to black students. His father filed a complaint with the Ontario Human Rights Tribunal alleging racial discrimination. In November 2022 – 17 months later – the Tribunal dismissed the complaint. White people, wrote the Tribunal, cannot claim discrimination.
The Ontario Human Rights Code says that every person has a right to equal treatment without discrimination. The Code, however, has a loophole. “Special programs” are exempt. Special programs give special treatment. They deliberately discriminate “to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity.” A government, company or organization like a school board can apply to designate a discriminatory program as a special program.
For almost 40 years, the Supreme Court of Canada has eviscerated legal equality. The Charter states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. But the Court has given it the opposite meaning.
The SummerUp program had not been designated as a special program. But the Tribunal determined it met the requirements anyway, which the Code empowers it to do. If a program discriminates against the “correct” groups, it will fit within the exemption as a matter of course. And it will be fully protected because, as the Tribunal wrote, “an allegation of racial discrimination or discrimination on the grounds of colour is not one that can be or has been successfully claimed by persons who are white and non-racialized.” The statute that purports to prohibit discrimination authorizes it instead.
It’s not just the Human Rights Tribunal. For almost 40 years, the Supreme Court of Canada has eviscerated legal equality. The Charter states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. But the Court has given it the opposite meaning. Like Ontario’s Human Rights Code, the Charter has an equity exception, and like the Tribunal, the Court has made the exception into the rule. The Charter, the Court insists, requires not equal treatment between individuals but equal or comparable outcomes between identity groups.
Forget equal opportunity: The Supreme Court of Canada ruled unconstitutional an RCMP job-sharing scheme allowing part-time work because more women than men took advantage of it. (Source of photo: Jamie McCaffrey, licensed under CC BY-NC 2.0)
The Charter does not merely allow discrimination against certain groups, the Court has said, but sometimes requires it. For instance, in 2020 the Court declared unconstitutional an RCMP job-sharing scheme allowing employees to work part-time. The voluntary program was open to men and women. Since part-time employees work fewer hours, they would earn lower pension entitlements. More women than men chose to enrol, and as a result more women than men ended up with lower pensions. The program was found unconstitutional because the rules of the program were the same for men and women.
Other courts, of course, have followed suit. In December 2022, the Ontario Divisional Court found a standardized math test evaluating aspiring teachers to be unconstitutional. East and Southeast Asian and white candidates passed the test more frequently than black and Indigenous test-takers. Therefore, the Court concluded, the test was discriminatory, “which occurs when neutral laws have a disproportionate impact on members of enumerated or analogous groups.” The Court did not care why different groups passed the test at different rates. The fact of disparate success was enough to bring use of the test to an end.
Preferential measures, distinguishing between people by their colour, lineage, gender and sexuality, are becoming the order of the day.
Fable 5: Courts Keep Public Bodies within their Powers
Once upon a time, courts insisted that public bodies required specific statutory authority to act. “I know of no duty of the Court which it is more important to observe, and no powers of the Court which it is more important to enforce, than its power of keeping public bodies within their rights,” wrote Lindley M.R. in an 1899 UK case. “The moment public bodies exceed their rights they do so to the injury and oppression of private individuals.” But today courts are more likely to defer to public institutions to act in whatever way they deem to be in the public good.
In August 2022, Western University in London, Ontario imposed a policy requiring students to provide proof of Covid-19 vaccine shots and boosters or face suspension. But in Ontario, as in most provinces, the law prohibits universities from collecting personal information unless they cannot carry out their activities without it. Under the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), universities may not collect personal information unless it is “necessary to the proper administration of a lawfully authorized activity.” They need student addresses and emails, for example, to send notices and schedules.
Above the law: Students opposed to Western University remaining Ontario’s sole university to extend vaccine mandates through 2022-2023 challenged the policy under Ontario’s privacy law; a court ruled the University was free to ignore a law that, a separate Supreme Court decision had stated, should be considered “quasi constitutional.” Shown are Western University students protesting the school’s Covid-19 mandates in August 2022. (Source of photo: The Canadian Press/Nicole Osborne)
Five Western students challenged the lawfulness of the vaccination policy. Western was the only university in Ontario to demand proof-of-vax from its students that year. All other universities ran their programs without it. Western, the students argued, was able to do the same. Therefore, collecting vaccine status was not necessary for the university to function, and did not fit within the exception in the statute.
In response, Western’s lawyers argued that the University could make whatever policies it liked. As a self-governing institution, making policies is one of its “activities.” Since it made a policy to collect proof of vaccination, collecting proof of vaccination was its “activity.” The activity of collecting proof of vaccination cannot be administered without collecting proof of vaccination. That information is “necessary to the activity,” they said, and therefore not prohibited.
If that makes your head hurt, it’s not because it’s clever. Universities are indeed self-governing institutions. They have broad powers to govern their spaces. But they are also public institutions subject to the laws of the land. They negotiate their own contracts, but they cannot breach the Employment Standards Act. They set their own financial policies, but they must obey the Income Tax Act. FIPPA is privacy protection law that limits their authority to collect information.
By creating a policy to collect information, Western University had exempted itself from the privacy law’s prohibition. The law may as well have read, ‘No institution shall collect personal information unless the institution creates a policy to collect the information.’
In 2013, the Supreme Court of Canada said privacy plays a fundamental role in the preservation of a free and democratic society. The ability of individuals to control their personal information “is intimately connected to their individual autonomy, dignity and privacy. These are fundamental values that lie at the heart of a democracy.” Legislation that protects personal information, the Court suggested, should be regarded as “quasi-constitutional.”
But the Ontario court hearing the Western case accepted the University’s argument and dismissed the students’ challenge. The policy to collect personal information was itself an “activity” under the statute, the judge concluded. The policy “is a ‘lawfully authorized activity’…The activity is the Policy.” By creating a policy to collect information, Western had exempted itself from the law’s prohibition. The law may as well have read, “No institution shall collect personal information unless the institution creates a policy to collect the information.”
In the end, the students prevailed. In November, before an appeal could be heard (but after an unknown number of students took vaccines and boosters against their better judgment), Western withdrew the policy with little explanation. But the Court effectively gave universities a free pass to create policies to collect whatever personal information they like – sexually transmitted infections, drug use, DNA, mental health, sexual orientation, criminal records – rendering FIPPA’s privacy protection toothless and defeating the purpose of the legislation.
Fable 6: The Constitution Means what it Says
The job of courts used to be to apply the law but not to make it. A judge, wrote U.S. Supreme Court Justice Benjamin Cardozo in 1921, “is not to innovate at pleasure. He is not a knight errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” The Supreme Court of Canada has for years disagreed. It has insisted that the Constitution is a “living tree,” which gives licence to interpret the Constitution “in a manner that is sensitive to evolving circumstances.” (Translation: we’ll do whatever we think is right.)
Free trade is for countries, not provinces: The Supreme Court of Canada upheld the New Brunswick liquor monopoly’s power to fine residents like Gerald Comeau (shown) for bringing beer purchased in Quebec home to New Brunswick. The ruling protected an array of pernicious federal policies that violate the guarantee of interprovincial free trade in section 121 of Canada’s Constitution Act, 1867. (Source of photo: Radio Canada Acadie/Serge Bouchard)
In 2012, New Brunswick resident Gerald Comeau was fined for buying beer in Quebec and taking it home. A provincial law gives the New Brunswick Liquor Corporation a monopoly on the sale of alcohol. Comeau challenged the fine by citing section 121 of the Constitution Act, 1867, which says that goods will be “admitted free” from any province into any other. When the case finally reached the Supreme Court of Canada, the Court shredded section 121 and left it for dead.
Instead of striking down the New Brunswick statute’s restrictions, the Court said provincial governments can impede the flow of beer and other goods for any reason at all, so long as limiting trade is not their “primary purpose.” So much for economic union. To protect government from the perils of internal free trade, the Court remade the Constitution, and by extension the country, by rendering plain words impotent and substituting its own preferences. So much for the rule of law.
There are few Constitutional provisions stated more clearly than section 121. Historical evidence confirms that its purpose was to guarantee unrestricted passage of goods within Canada. But in Comeau, the Supreme Court feared that internal free trade threatened the modern regulatory state. If to be “admitted free” is a constitutional guarantee of free trade, the Court trembled, “the potential reach of s. 121 is vast. Agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid.”
According to Malcolm Lavoie, associate professor of law at the University of Alberta and counsel for an intervenor in the case, the Court’s decision was “not dictated by either the Constitution’s text or its underlying principles.” The judgment, agreed columnist John Robson, is “legally wrong, historically flawed, metaphysically rotten and destructive. It is post-truth jurisprudence.” Constitutional law scholar Leonid Sirota called the Court the spoiled child of the Constitution, who throws tantrums whenever its parent does not conform to its demands. Andrew Coyne scorned the Court’s “shoddy reasoning, the tendentious reading of simple declarative statements, the selective approach to history, the wilful naivete…[and] the grating hypocrisy.”
It was not the Court’s finest moment, but nor was it an aberration. Over time the Court has invented a variety of constitutional rights and requirements, including a constitutional right to strike, a Crown duty to consult Aboriginal groups, and a government obligation to maintain, once established, injection sites for illegal drugs. None of these is found in the text of the Constitution; all are products of the Court’s roaming.
“Shoddy reasoning”: Associate professor of law Malcolm Lavoie (left) called the Supreme Court’s Comeau decision “not dictated by either the Constitution’s text or its underlying principles,” while columnist Andrew Coyne (right) slammed the Court for its “selective approach to history” and “grating hypocrisy.” (Sources of photos: (left) ualberta.ca; (right) businessincalgary.com)
Talented at finding things that are not there, the Court showed in Comeau that it is also able and willing to ignore things that are. In preferring protectionist measures to free trade, it placed aside the words of the Constitution to protect its own vision of the proper role of government and to validate its conviction that free trade and constitutional text are for dummies.
Fable 7: Public Inquiries Provide Accountability
Last November, the Public Order Emergency Commission reviewing the use of the Emergencies Act, headed by Justice Paul Rouleau, finished hearing evidence from witnesses. After testimony from Ottawa police, the Ontario Provincial Police (OPP), the RCMP, the Canadian Security and Intelligence Service, the City of Ottawa, federal government officials, cabinet ministers and the Prime Minister, the evidence showed that the Freedom Convoy in Ottawa committed no violence and made no threats of violence. There was no storming of Parliament. There were no attempts to overthrow the government. There was no assault, arson, rape, bombing or kidnapping. No intelligence suggested the presence of weapons. When a court issued an injunction to stop their honking, they stopped. As OPP Superintendent Pat Morris testified, “The lack of violence was shocking.”
What illegal acts were the truckers committing? Parking. The truckers were unlawfully parked on Ottawa streets. Ottawa Police Services, which had advance warning of the convoy’s progress, could not figure out how to prevent the trucks from arriving, and together with the OPP, RCMP, city, province and federal government, could not figure out how to make them leave. They could not get tow trucks to remove them and could not, or would not, ticket and arrest. The “emergency” was the inability of a web of agencies, authorities and departments, strangled by their own bureaucracy and ineptitude, to remove big trucks peacefully parked on the streets in front of Parliament Hill.
Parking violations as sedition and anarchy: Evidence presented at the Public Order Emergency Commission clearly showed the Freedom Convoy had committed no assault on Canadian law, order or government; the “emergency” lay in public authorities’ confusion and ineptitude. (Source of photo: Bing Wen/Shutterstock)
Whether the Emergencies Act’s invocation was valid is not a serious question. The required circumstances were not even in the ballpark. But when Rouleau released his report in February, he concluded that the threshold had been met.
No one should have expected differently. The Commissioner, appointed by the government to run an inquiry called by the government, was not likely to throw the government under the trucks. Public inquiries have become rituals, and the purpose of ritual is performance not outcome. The Commission’s purpose had been served long before Rouleau released his report. It created the impression that asking whether the Act’s use was justified is a serious question. Accountability was apparent without being real.
Fable 8: Professional Regulators are non-Political and Act in the Public Interest
Once upon a time, professional regulatory bodies ensured competence and ethical practice. Your dentist should know how to drill teeth. Your real estate lawyer should be able to search title and not skim funds off your trust account. Protecting the public from incompetence and fraud has been the traditional rationale for allowing professions to regulate themselves.
Across the country, regulators are censoring, disciplining or ousting members of their professions who fail to comport with their political imperatives. A new standard of practice is emerging for Canadian professionals: be woke, be quiet or be accused of professional misconduct.
But now competence is being reimagined through an ideological lens. The Ontario College of Psychologists wants to re-educate public intellectual and best-selling author Jordan Peterson for criticizing Prime Minister Justin Trudeau on social media. Nurse Amy Hamm is undergoing a disciplinary hearing of the B.C. College of Nurses for saying that biological sex is real. Numerous doctors have been sanctioned for expressing medical views contrary to official government Covid-19 policies. Across the country, regulators are censoring, disciplining or ousting members of their professions who fail to comport with their political imperatives. A new standard of practice is emerging for Canadian professionals: be woke, be quiet or be accused of professional misconduct.
The Law Society of Ontario led the way. In 2018 it required lawyers and paralegals to adopt and abide by a “statement of principles” (SOP) that acknowledged their obligation to promote diversity, equity and inclusion (DEI) in their affairs, both professional and personal. When the SOP requirement was first imposed, most licensees complied. But a determined group of 22 lawyers, known as “StopSOP,” ran for seats on the society’s governing body on the platform of repealing the SOP. It turned out that more Ontario lawyers opposed the measure when they had an option to vote confidentially and the StopSOP candidates won 22 of 53 seats at “Convocation.” Despite their minority position, they managed to repeal the policy.
Public intellectual and psychologist Jordan Peterson (left) and Vancouver nurse Amy Hamm (right) are among the outspoken individuals being hounded by their professional colleges for refusing to succumb to ideological indoctrination. (Sources of photos: (left) rightedition.com; (right) jccf.ca)
But the SOP was only one small part of an aggressive identitarian agenda that remains in place. Incorporating the SOP’s substance into the law society’s Rules of Professional Conduct, tracking and publishing the racial makeup of each firm over 25 lawyers, and requiring licensees to take compulsory re-education in DEI are among the many items on their to-do list. The “troublemakers” were vanquished in elections this spring and the coast is clear.
Throughout Canada’s professions, conformity of speech and opinion is the order of the day. The Canadian Medical Association’s Code of Ethics and Professionalism, for instance, requires physicians to express views that are “widely accepted” in the profession – and regulators, of course, have the power to determine what those might be. Patients and clients should not assume that their doctors, lawyers, accountants or psychologists are independent actors at liberty to provide informed, educated, professional opinions, rather than spokespersons for the official views of their professional overlords.
A Bloated, Bogged-Down System
“Dying societies accumulate laws, like dying men accumulate remedies,” said Colombian philosopher Nicolás Gómez Dávila. His warning rings true for Canada today.
There is more, much more. Canada has too many laws. Those laws are too complicated. Too many officials have too much discretion to make policies on the fly. Courts, tribunals and agencies make inconsistent decisions. Outcomes are uncertain and unpredictable. The law is becoming a nightmare to navigate for lawyers and clients alike. “Dying societies accumulate laws,” Colombian philosopher Nicolás Gómez Dávila observed, “like dying men accumulate remedies.”
In many parts of Canada, legal matters proceed at a glacial pace. In Toronto, for instance, 15 minutes in a courtroom cannot be booked less than a year ahead of time. Longer motions, maybe 16 months. Good luck scheduling a full civil trial. Court bureaucracy is a major headache. In some locations, registrars refuse to file documents for apparently random reasons. Yet these troubles are for the lucky few. The very rich can pay their lawyer to deal with an ossified system. The very poor may qualify for legal aid in some circumstances. For the rest, “access to justice” can be as elusive as timely medical care.
Imagining the Real
The law has never been completely neutral. The few and the powerful have always had disproportionate influence over it. Even the common law, venerated by the political right as a source of liberty, has often reflected moral paternalism, and too frequently protected vested interests over the common man. The legal profession, which dominates legislatures as well as courts, has not been sufficiently troubled by a justice system that can seem incoherent and impenetrable. Without mystifying obstacles to overcome, high priests are just ordinary people. And yet for a time the law in Canada delivered a system of justice as good as anything that civilization had ever produced.
Government agencies use laws as tools to manage society and bend the conduct of citizens. Personal autonomy is fading into the background as the administrative state supervises our lives. The law is a sword for the authorities more than a shield for their subjects.
Laws restrict liberties. As Oliver Wendell Holmes put it, pretty much all law consists in forbidding men to do something that they want to do. Sometimes that’s a good thing. I shouldn’t have the freedom to club my neighbour or steal his car. Legal restrictions create the space to be free from the coercion of others. Laws that restrict violence are the means to a peaceful society.
But most of the law we have now does not serve that function. Instead, government agencies use laws as tools to manage society and bend the conduct of citizens. Personal autonomy is fading into the background as the administrative state supervises our lives. The law is a sword for the authorities more than a shield for their subjects.
Not-so-distant mirror: Peruvian Field Marshall and two-time president/dictator Óscar Benavides promised his friends “everything” and his enemies “the law,” instantiating the author’s concerns that the law in Canada is being transformed from a shield to protect citizens into a weapon wielded by agents of the state.
Contrary to popular belief, Canada’s Charter is not the foundation of our legal system. Nor are the principles of the Magna Carta or other historical what-have-yous. The ideas in these documents are mere glosses on the supremacy of legislatures, which are empowered to pass any laws they wish. That power is restricted only when courts find their enactments unconstitutional. The Supreme Court of Canada, in turn, can declare the Constitution to mean anything it likes. Its power to do so is almost unlimited, curbed only by the risk that outrageous judgments could erode its legitimacy and threaten its existence. But as we have seen, judgments would have to be pretty outrageous to have that effect.
At bottom, the law is language that legitimizes political decisions. Judicial process is ritual to bless the outcome, whatever it happens to be. Precedent, reasoning and due process are ceremonial trappings. As anthropologist Clifford Geertz put it, the law “is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real.”
Legal canons and social fables discipline power with principles and morals. They have never worked completely. They are working poorly now. As the Canadian legal system loses its way, it comes closer to becoming a political weapon, as it has in other countries. As Peruvian Field Marshall Óscar Benavides is said to have uttered, “To my friends, everything; to my enemies, the law.”
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University. You can reach him at rightsprobe@protonmail.com or on Twitter @PardyBruce.
Read the original version of this article at the publisher’s website here.
