The Jurist in the Age of Misinformation and Populism

Par Jonathan Riel

Introduction

Today’s sociopolitical context is reshaping the role of the jurist. Whereas 2022 was supposed to be a banner year as the Covid-19 pandemic finally seemed to be wearing out, Canada has already faced multiple crises. From a local viewpoint, the ‘Freedom Convoy’, consisting mainly of protests in Ottawa by truck owners against Covid-19 sanitary measures, has forced the Canadian government to invoke the Emergencies Act[1]. Moreover, Quebec’s Act respecting the Laicity of the State[2](“Bill 21”), a law that prohibits a series of state employees from wearing religious symbols, continues to generate controversy[3]. In December 2021, the London, Ontario, city council voted in favor of providing $100,000 in funds to support the legal challenge of Bill 21[4]. From an international standpoint, the Russian invasion of Ukraine has resulted in the Canadian government imposing multiple economic sanctions to Russia in virtue of the Special Economic Measures Act[5]. All these situations have significant legal implications and, as such, it is normal for jurists to wonder what their duty is in today’s society. This paper will argue that the purpose and the role of a jurist are to protect the integrity of his or her legal system and to contribute to its successful evolution. First, we will discuss the concept of a jurist and Canadian institutions. Second, we will analyze challenges our society is facing and the jurist’s role in this context.

1. The Jurist and our Institutions

To determine the purpose and the role of the contemporary jurist, it is important to first define what a jurist is and to delineate Canada’s main legal institutions.

1.1 What is a Jurist?

There are many definitions of the term jurist. For our purposes, our starting point will be a simple

definition found in a dictionary: “a person who is an expert in law”[6]. Considering the broadness of this definition, it is relevant to quickly review the roles played by jurists throughout different legal traditions that led to Canada’s, especially Quebec’s, legal system.  

In Roman law, a classic figure is the jurisconsult. These renowned jurists, typically authors or pedagogues, would advise the magistrate or the parties during a trial. They essentially gave their opinion which, depending on the identity of the jurisconsult, could carry a lot of prestige. Their answers were also put in writing in order to become a precedent in the future[7].

The civil law tradition, which has Roman origins, is characterized by the predominant role of university education. This contributed to the rationalization and intellectualization of the law. In this tradition, the task falls to academics to analyze and criticize the law. For this reason, it is said that the law is learned in lecture halls, not in courtrooms[8]. As such, we could notably picture an expert of law, in other words a jurist, as an academic.

Common law has traditionally been the business of practitioners and judges. As a result, it has a strong procedural dimension historically, it is characterized by casuistry, and the judge has great creative power. It is therefore easy to conceive why judges have such a high status in England[9]. In this case, we could imagine the jurist in a courtroom.

Today, codes of professional conduct give interesting insight as of what is expected of jurists. Quebec’s Code of Professional Conduct of Lawyers states in its preamble that “a lawyer is a servant of justice”[10]. It also sets out that the practice of the profession is based on a set of values including the “preservation of the rule of law”, the “protection of […] fundamental rights”, and the “consideration for the social context within which the law evolves”[11]. As for notaries, the first article of Quebec’s Code of ethics of notaries states, “Every notary shall act with dignity and shall refrain from using methods or adopting attitudes likely to detract from the good repute of the profession or from the notary’s ability to serve the public interest.”[12]

Thus, the word “jurist” includes many professionals, including lawyers, notaries, and judges. While the role of the jurist differs across different systems, it appears reasonable to state that jurists must maintain the integrity of their legal system and to contribute to its successful evolution.  

1.2 Canadian Institutions

Two institutions of our legal system will be the subject of this text: the separation of powers and the Constitution. While this list is in no way exhaustive, it is clear that the aforementioned institutions are part of Canada’s foundations.

To begin with, the French philosopher and political philosophy professor Pierre Manent[13] once wrote that the most distinctive feature of a democracy is its organization of separations. A typical example would be the separation of powers as described by Montesquieu. These separations, Manent claims, are mandatory to liberty as different bodies of our society act as counterpowers and prevent each other from complete dominance[14].

In Canada, the judicial branch is a very good illustration of such separation. It prevents governments from being too powerful as it allows courts to control the legality of laws. This is notably done thanks to the Constitution[15]. In addition, section 11(d) of the Canadian Charter of rights and freedoms (“Charter”) addresses the question of judicial independence as it states the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”

[emphasis added]

[16]. As the Supreme Court of Canada wrote, “But the institutional independence of the judiciary reflects a deeper commitment to the separation of powers between and amongst the legislative, executive, and judicial organs of government” [emphasis added][17]. It is therefore easily conceivable that one of the goals of judicial independence is to maintain the rule of law[18].

The Constitution is another fundamental aspect of Canadian institutions. It is at the very essence of both our political functioning and our legal system. It includes, inter alia, the division of powers and the Charter[19]. As it states at section 52(1), “The Constitution of Canada is the supreme law of Canada […].”[20] The Supreme Court of Canada, in Reference re Secession of Quebec[21], identified five underlying constitutional principles: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. Although these principles are important to fully understand our Constitution, it is important to specify that the primacy of the written Constitution remains[22].

2. Society’s Contemporary Challenges and the Role and Purpose of Jurists

Having defined what a jurist is and delineated two of the main institutions of the Canadian legal system, it is now important to discuss some contemporary challenges disrupting our society and how jurists must continue to act as guardians of our institutions.

2.1 Contemporary Challenges we Face as a Society

More precisely, the challenges created by populism and misinformation will be analyzed. To begin with, it appears that populism has taken a rise in the last years in Occident. The term “populism” refers to a “political program or movement that champions, or claims to champion, the common person, usually by favourable contrast with a real or perceived elite or establishment.”[23] From a contemporary viewpoint, populism also refers to an authoritarian form of politics whereby a charismatic leader claims to represent the will of the people to gain power[24].

This situation is well illustrated by Frédéric Bérard, doctor of law and political scientist, in his comments on Donald Trump’s election. The latter has campaigned on fear and irrationality. Two examples of this are the wall he proposed to build at the Mexican border and his Muslim ban. As Bérard wrote, Trump has offended the rule of law, intellectualism, and democracy; this is a dangerous precedent[25]. It all culminated on January 6, 2021, when a mob of Trump supporters stormed into the United States Capitol. This attack is sometimes referred to as an attempted coup d’état and an act of domestic terrorism[26].

While, at this point and time, Canada’s trouble with populism does not seem as evident as the United States’, Canada is in no way immune. Examples of this would be the recent events regarding the ‘Freedom Convoy’, as previously described, or Bill 21, which we will come back to.

The second challenge is the one of misinformation, which is often defined as information that is wrong or that intentionally aims to deceive[27]. Misinformation is in part a consequence of digital media and information technologies because these make it easy to produce and disseminate false and manipulated information[28]. This has been patent during the Covid-19 pandemic. A report published by The Public Health Agency of Canada, Noni E MacDonald, who is affiliated to the Department of Pediatrics of Dalhousie University, discusses a “vaccine misinformation tsunami” as the public is bombarded with huge amounts of information and science deniers have a large platform on the Web[29].

On the international scene, Ukraine pleaded in front of the International Court of Justice (“International Court”) that Russia took military actions based on false claims of genocide taking place in the regions of Luhansk and Donetsk. The International Court stated that it did not have any substantial evidence that such genocide had been taking place in Ukraine. In its provisional measures, the International Court notably indicated, by thirteen votes to two, that “[t]he Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”[30]. Without going in further details, it is easy to observe how misinformation can be a problem for Canada internally, but also in its international relations.

2.2 The Purpose and Role of the Contemporary Jurist Facing these Challenges

The contemporary jurist ought to protect his or her legal institutions from effects of populism and misinformation. The Ukraine war, the ‘Freedom Convoy’, and Bill 21 are all situations where jurists must intervene. However, we will only analyze Bill 21 because more proceedings have unfolded at the time of writing these lines.

This first article of Bill 21 states, “The State of Québec is a lay State.”[31] As a result, the law prohibits numerous people, including peace officers and teachers, from wearing religious symbols while exercising their functions[32]. The Constitution’s notwithstanding clause was invoked in the law, and Quebec’s Prime Minister said that this was done in an attempt to prevent a long debate before the Courts[33]. In addition, François Legault, often justifies Bill 21 by noting that surveys show that most Quebecers agree with it[34]. He is embodying the will of the people and, therefore, the law is, at least in some degree, justified in a populist manner.  

This law also illustrates the challenges of assessing the value of information. Whereas there are many claims of misinformation in the media today, Bill 21 is no exception. For example, Radio-Canada made a report called A Sikh teacher flees Quebec because of the law on laicity [our translation]. This report was criticized by columnists from Le Journal de Montréal for being biased and alarmist. They notably deplored the fact that Radio-Canada had to make a list of corrections after the publication of the report, including changing the word “fleeing” by “left” and specifying that Bill 21 would not have prohibited the teacher from working in the private sector in Quebec. Indeed, the teacher had left to work in a private school in British Columbia[35].

It therefore seems Bill 21 embodies both aforementioned problems. Before addressing what jurists can do in this situation, it is relevant to quickly review Hak c. Procureur général du Québec[36]. Rendered on April 20^th, 2021, this judgment dealt with Bill 21 and its breaches of the Charter.

The Superior Court of Quebec did not analyze the violations to the freedom of conscience and religion, the freedom of expression, and the right to equality in a declaratory judgment notably because the notwithstanding clause made the question theoretical[37]. To be exact, the government waived sections 1 to 38 of the Charter of human rights and freedoms and sections 2 and 7 to 15 of the Charter. This means that, even if Bill 21 pertains to laicity, the government waived rights going way beyond this scope such as the right to not be arbitrarily detained (s. 9 Charter), the presumption of innocence (s. 11(d) Charter), and the right to retain counsel without delay (s. 10(b) Charter). Justice Marc-André Blanchard qualified this as flippant and inconsiderate[38].

For this reason, almost the entire law was maintained. However, the Superior Court of Quebec declared that a few articles were inoperative in certain circumstances as they breached a section of the Charter that was not waived by the notwithstanding clause. This includes articles 13 and 14 of Bill 21 which were contrary to section 23 of the Charter that protects minority language educational rights. These articles do not apply to people who are entitled to the rights granted by section 23 of the Charter, namely English school boards[39].

This whole situation raises many questions. For instance, the government stated that it used the notwithstanding clause to prevent a long debate in Court. What does this mean for the well-being of our separation of powers? The government also willingly enacted a law that violated rights and freedoms of minorities whereas the protection of minorities is an underlying principle of our Constitution. Even if the government used legal mechanisms available in the Constitution, this does not mean the question does not deserve to be debated. Due to this, jurists need to speak up in at least three different ways.

First, judges evidently have a very important role in such a situation. It is his or her role to apply the law and to prevent the litigants from undermining our institutions. Justice Blanchard notably did the latter when he expressed his concerns regarding the waiving of numerous rights and freedoms[40]. Second, litigators have the responsibility to bring to a judge’s attention alleged breaches to our laws. This was done in Hak c. Procureur général du Québec[41] simply by bringing this case in front of a Court of Justice. It is the responsibility of jurists to protect our laws and our Constitution, especially when they are subject to attacks from populism. Third, there is a duty for all jurists to identify misinformation and to keep it away from healthy debates. They should contribute to the debate through doctrine, their work and in any other way they find suitable. For example, although the written Constitution has priority, it would be interesting to have jurists write about Bill 21 and how it is contrary to the protection of minorities, an underlying principle of our Constitution.

Conclusion

Contemporary jurists’ must protect their legal system and contribute to its successful evolution. They must stand up to the challenges that our society is facing today, namely the ones caused by populism and misinformation, in order to defend our institutions. In Canada, it is especially important to protect our Constitution and the separation of powers. This appears easy to design with Bill 21 considering a judgment has been rendered on this matter. However, it is important to pursue this exercise with other crises such as the ‘Freedom Convoy’, internally, and the war in Ukraine, internationally.

[1] R.S.C. 1985, c. 22 (4th supp.) ; Yvonne Lau, “Canada’s ‘Freedom Convoy’ has shut down Ottawa and is blocking $500 million daily in cross-border trade. Here’s where things stand”, Fortune, 16 February 2022, online: < https://fortune.com/2022/02/16/canada-freedom-convoy-protests-whats-happening/ >.

[2] CQLR, c. L-0.3.

[3] Takwa Souissi, “Bill 21 (An Act Respecting the Laicity of the State)”, The Canadian Encyclopedia, 17 December 2021, online : < https://www.thecanadianencyclopedia.ca/en/article/bill-21 >.

[4] Daryl Newcombe, “City of London to support challenge ot Quebec’s Bill 21”, CTV News, 22 December 2021, online : < https://london.ctvnews.ca/city-of-london-to-support-challenge-to-quebec-s-bill-21-1.5716643 >.

[5] S.C. 1992, c. 17 ; Special Economic Measures (Russia) Regulations, SOR/2014-58 (Gaz. Can II) ; Global Affairs Canada, Canada imposes additional economic measures on Russian energy sector, News release, 2 March 2022, online < https://www.canada.ca/en/global-affairs/news/2022/03/canada-imposes-additional-economic-measures-on-russian-energy-sector.html >.

[6]Oxford Learner’s Dictionaries, Oxford University Presse, “Jurist”, online: < https://www.oxfordlearnersdictionaries.com/definition/american_english/jurist >.

[7] Michel Morin, Introduction historique au droit romain, au droit français et au droit anglais, Montréal, Les Éditions Thémis, 2004, p. 48, 75, 76 & 77.

[8] Yves-Marie Laithier, Droit comparé, Paris, Éditions Dalloz, 2009, p. 32.

[9] Id., p. 33-36.

[10] Code of Professional Conduct of Lawyers, CQLR, c. B-1, r. 3.1, preamble.

[11] Id.

[12] Code of ethics of notaries, CQLR, c. N-3, r. 2, art. 1.

[13] “Pierre Manent”, Babelio, online <  https://www.babelio.com/auteur/Pierre-Manent/11619 >.

[14] Pierre Manent, Cours familier de philosophie politique, Paris, Fayard, 2001, pp. 25-37.

[15] Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), s. 91 & 92; Constitution Act, 1982, Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), art. 52.

[16] Constitution Act, 1982, prec., note 15, art. 11(d).

[17] Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island ; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island ; R. v. Campbell; R. v. Ekmecic; R. v. Wickman Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3, par. 125.

[18] Id., par. 10.

[19] Constitution Act, 1867, prec., note 15, par. 91 & 92 ; Constitution Act, 1982, prec., note 15, art. 1 -34.

[20] Constitution Act, 1982, prec., note 15.

[21] [1998] 2 S.C.R. 217, par. 49.

[22] Id., par. 50-53.

[23] André Munro, Encyclopedia Britannica, 2020, “Populism”, online : < https://www.britannica.com/topic/populism >.

[24] Id.

[25] Frédéric Bérard, Dérèglements politiques, Montréal, Éditions Somme toute, 2018, p. 71-80 & remarks on the author.

[26] Brain Duignan, Enclopedia Britannica, 2022, “United States Capitol attack of 2021”, online :  < https://www.britannica.com/event/United-States-Capitol-attack-of-2021 >.

[27] Cambridge Dictionary, Cambridge University Press, “Misinformation”, online: < https://dictionary.cambridge.org/dictionary/english/misinformation >.

[28] “Misinformation Review. Our Mission”, Harvard Kennedy School. Shorenstein Center on Media, Politics, and Public Policy, online: < https://misinforeview.hks.harvard.edu/our-mission/ >.

[29] Noni E MacDonald, “Fake news and science denier attacks on vaccines. What can you do?”, (2020), 46 CCDR 432, online: “ < https://www.canada.ca/content/dam/phac-aspc/documents/services/reports-publications/canada-communicable-disease-report-ccdr/monthly-issue/2020-46/issue-11-12-nov-5-2020/ccdrv46i1112a11-eng.pdf >.

[30] Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Order of 16 March 2022, I.C.J., par. 2, 52, 59, 60 & 86, online: < https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf >.

[31] Act respecting the laicity of the state, prec., note 2, art. 1.

[32] Id., art. 6 and Schedule II.

[33] Id. art. 33 & 34 ; Hak c. Procureur général du Québec, 2021 QCCS 1466, par. 52.

[34] For an example see: “Loi 21: Québec invite Trudeau à « s’occuper de ses affaires » ”, Radio-Canada, 13 December 2021, online : < https://ici.radio-canada.ca/nouvelle/1847141/affaire-fatemeh-anvari-ecole-chelsea-outaouais-legault-trudeau-loi-21 >.

[35] Sophie Durocher, “Radio-Canada et l’horrible loi 21 ”, Le Journal de Montréal, 27 September 2019, online : < https://www.journaldemontreal.com/2019/09/27/radio-canada-et-lhorrible-loi-21 > ; Geneviève Lasalle & Valérie Gamache, “ Une enseignante sikhe quitte le Québec en raison de la loi sur la laïcité ”,  Radio-Canada, 23 August 2019, online : < https://ici.radio-canada.ca/nouvelle/1271811/voile-turban-sikh-surrey-kaur-legault-caq-quebec >.

[36] Prec., note 33.

[37] Id., par. 785-800.

[38] Id., par. 753-780.

[39] Id., par. 4, 993, 997, 1003, 1109-1111.

[40] Id., par. 753-780.

[41] Id.

Bibliography

Monographies

Bérard, F. Dérèglements politiques, Montréal, Éditions Somme toute, 2018

Laithier, Y-M., Droit comparé, Paris, Éditions Dalloz, 2009

Manent, P., Cours familier de philosophie politique, Paris, Fayard, 2001

Morin, M., Introduction historique au droit romain, au droit français et au droit anglais, Montréal, Les Éditions Thémis, 2004

Encyclopedias & Dictionaries

Cambridge Dictionary, Cambridge University Press, “Misinformation”, online: < https://dictionary.cambridge.org/dictionary/english/misinformation >

Duignan, B., Enclopedia Britannica, 2022, “United States Capitol attack of 2021”, online :  < https://www.britannica.com/event/United-States-Capitol-attack-of-2021 >

Munro, A., Enclopedia Britannica, 2020, “Populism”, online : < https://www.britannica.com/topic/populism >

Oxford Learner’s Dictionaries, Oxford University Presse, “Jurist”, online: < https://www.oxfordlearnersdictionaries.com/definition/american_english/jurist >.

Souissi, T., “Bill 21 (An Act Respecting the Laicity of the State)”, The Canadian Encyclopedia, 17 December 2021, online : < https://www.thecanadianencyclopedia.ca/en/article/bill-21 >

Governmental & Intergovernmental Documents

Global Affairs Canada, Canada imposes additional economic measures on Russian energy sector, News release, 2 March 2022, online < https://www.canada.ca/en/global-affairs/news/2022/03/canada-imposes-additional-economic-measures-on-russian-energy-sector.html >

Article & Websites

“Loi 21: Québec invite Trudeau à « s’occuper de ses affaires »”, Radio-Canada, 13 December 2021, online : < https://ici.radio-canada.ca/nouvelle/1847141/affaire-fatemeh-anvari-ecole-chelsea-outaouais-legault-trudeau-loi-21 >

“Misinformation Review. Our Mission”, Harvard Kennedy School. Shorenstein Center on Media, Politics, and Public Policy, online: < https://misinforeview.hks.harvard.edu/our-mission/ >

“Pierre Manent”, Babelio, online <  https://www.babelio.com/auteur/Pierre-Manent/11619 >

Durocher, S., “Radio-Canada et l’horrible loi 21 ”, Le Journal de Montréal, 27 September 2019, online : < https://www.journaldemontreal.com/2019/09/27/radio-canada-et-lhorrible-loi-21 >

Lasalle., G. & Gamache, V., “ Une enseignante sikhe quitte le Québec en raison de la loi sur la laïcité ”,  Radio-Canada, 23 August 2019, online : < https://ici.radio-canada.ca/nouvelle/1271811/voile-turban-sikh-surrey-kaur-legault-caq-quebec >

Lau, Y., “Canada’s ‘Freedom Convoy’ has shut down Ottawa and is blocking $500 million daily in cross-border trade. Here’s where things stand”, Fortune, 16 February 2022, online: < https://fortune.com/2022/02/16/canada-freedom-convoy-protests-whats-happening/ >

MacDonald, N. E., “Fake news and science denier attacks on vaccines. What can you do?”, (2020), 46 CCDR 432, online: “ < https://www.canada.ca/content/dam/phac-aspc/documents/services/reports-publications/canada-communicable-disease-report-ccdr/monthly-issue/2020-46/issue-11-12-nov-5-2020/ccdrv46i1112a11-eng.pdf >

Newcombe, D., “City of London to support challenge ot Quebec’s Bill 21”, CTV News, 22 December 2021, online : < https://london.ctvnews.ca/city-of-london-to-support-challenge-to-quebec-s-bill-21-1.5716643 >