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MacDonald Laurier Institute

Bureaucrats should not be arbiters of our online world

Published

1 year ago

18 minute read

From the Macdonald Laurier Institute

By Leonid Sirota and Mark Mancini

When it comes to regulating the internet, Ottawa tells Canadians to simply “trust the experts.”

The federal government has pursued a far-reaching internet regulation agenda. This includes the Online Streaming Act (previously known as Bill C-11) and the Online News Act (previously known as Bill C-18). Both are ostensibly designed to force foreign online platforms – streaming ones such as Netflix, Disney+, and YouTube in the former case, Google and Facebook in the latter – to provide support, mainly but not exclusively financial, to Canadian cultural and journalistic producers. The most recent addition to this regulatory programme, Bill C-63, partly targets online platforms too, but its reach is broader. It seeks to prevent a range of “online harms” – from the distribution of child pornography to hate speech.

These legislative endeavours have attracted commentary from all corners, not least from Macdonald-Laurier Institute experts. Much of the discussion has been critical of the government’s policies on the ground of their unwisdom, immorality, and possible unconstitutionality.

But we would like to take a different tack here and focus not on the ends pursued but the means employed by C-11, C-18, and C-63: the empowerment of administrative agencies as rule-makers and arbiters of Canadians’ online world. While they purport to regulate new technologies, business models, and cultural forms, these policies are a throwback to an old philosophy of government that subverts fundamental constitutional principles: democracy, the separation of powers, and the rule of law.

It is worth beginning with a brief restatement of what these principles mean. Democracy means the exercise of political power – law-making, in particular – by either the people themselves or, more commonly, through elected representatives. The separation of powers means that the making and execution of laws are different functions, not to be confused or conflated, and that adjudication of disputes in accordance with the law is a separate function still. The rule of law is a complex idea, but perhaps the pithiest formulation of its core meaning belongs to economist and political philosopher F.A. Hayek: it “means that government in all its actions is bound by rules … which make it possible to foresee how the authority will use its coercive powers in given circumstances.”

Contrast this with the philosophy underpinning the government’s approach to internet regulation. This philosophy permeated the report of a panel commissioned by the federal government at the end of the last decade to propose reforms to Canada’s regulation of the internet. Published in January 2020, “Canada’s Communications Future: Time to Act” called for legislation that would “provide sufficient guidance to assist the [Canadian Radio-Telecommunications Commission (CRTC)] in the discharge of its duties, but sufficient flexibility for it to operate independently in deciding how to implement sector policy. To achieve this, legislative statements of policy should set out broadly framed objectives and should not be overly prescriptive.” Translation: the democratically elected Parliament should not bother with making actual rules; that would be the job of the bureaucrats at the CRTC. They know better – both what the rules should be and how to apply them. Parliament is their enabler, not their master, and the courts should defer to their judgments.

In fairness, the legislation ultimately enacted or considered by Parliament does not go quite as far in empowering the CRTC or a new Digital Safety Commission (DSC) at the expense of Parliament as that report had urged. But it does go far. Probably the most important example of this concerns the amenability of user content – the average TikTok video, rather than Netflix – to CRTC regulation. This was one of the major points of contention when Bill C-11 was before Parliament. The Bill itself – despite claims by the government to the contrary – quite clearly permitted the CRTC to regulate user content, though it did not require it to do so. Amendments to remove this discretionary power were roundly rejected at the government’s insistence, in favour of leaving the user content question open for decision by the CRTC – only for the government to issue a Policy Direction to the CRTC “not to impose regulatory requirements” on user content.

The real scope of the law, and hence the degree of its impact on the freedom of expression of ordinary Canadians, will thus be fleshed out through the interplay of policy directions from Cabinet and CRTC consultations and orders. The same goes for various other aspects of the Online Streaming Act, such as Canadian content and discoverability requirements to be imposed on online platforms. The Online News Act, had it functioned as intended, would similarly have given the CRTC the final say over the extent of the obligations of the platforms subject to it. (In reality, one of these two platforms instead banned the publication of news content, and to avoid the other doing the same thing, the government made a deal with it that eviscerated the act.) And under Bill C-63, the decisions as to whether an online platform’s policies are “adequate to mitigate the risk that users … will be exposed to harmful content” is similarly within the remit of the DSC, with little if any guidance from Parliament as to what is in fact required.

This way of doing things undermines parliamentary democracy as anyone, except some scholars of administrative law would understand it. The people elected to make laws do not, in fact, make them in any meaningful way. On the contrary, they pawn off responsibility for contentious policy choices to administrators; they enact no more than empty shells, politely described as “framework legislation,” full of blanks to be filled out later. This transgression against constitutional principle is compounded when Cabinet makes a mockery of the parliamentary process with its policy flip-flops, which can then be reversed by further Cabinet fiat. The excuse typically given for this dereliction of duty is that the problems to be addressed are too complex for parliamentarians to deal with, which only makes one wonder at their nerve to have put themselves forward to do a job they are concededly unqualified for in the first place.

Enthusiasts for the internet agenda may say that it remedies its democratic deficiencies by consulting with those subject to new registration requirements. Yet CRTC consultations on the Online Streaming Act provided no more than a shabby ersatz of what democracy is supposed to mean – debate and discussion in Parliament. The submission period was short,  and “industry-focused.” The CRTC ended up issuing orders requiring registration on a range of internet services that meet a $10 million revenue threshold, and the government issued a policy direction to the CRTC instructing that user content not be regulated. The CRTC’s regulatory plan for the Online Streaming Act is still being developed, and will likely involve further decisions about the reach of registration requirements. Whether the DSC does any better – if and when it implements Bill C-63 – remains to be seen. But, in any case, consultations that only include industry players, or some nominal number of users, cannot replicate an engaged and informed Parliament that weighs competing interests. Nor can it replace an engaged and informed citizenry, holding politicians to account for their choices at the ballot box.

Separation of powers fares no better. Instead of Parliament making laws, independent prosecutors bringing charges, and independent courts ruling on them, the CRTC and DSC combine their broad rule-making powers with the ability to both jawbone and outright prosecute online platforms, and to rule on the charges. The Canadian Civil Liberties Association rightly laments “the vast authority bestowed upon” the DSC “to interpret the law, make up new rules, enforce them, and then serve as judge, jury, and executioner.”

Here again, proponents of administrative power think they have an answer. Instead of the old-fashioned institutions wielding divided powers, they say the modern world requires the government’s full authority to be concentrated in the hands of experts. Agencies like the CRTC and, presumably, the DSC have the skills and wisdom to deal with the complex and increasingly difficult online environment. This claim is attractive in part because the layman often cannot comprehend the size and scale of challenges that modern regulation confronts, while politicians are all too often happy to demonstrate their unseriousness and ignorance.

But, in addition to its other problems, the vision of expert administrators who know better is simply unwarranted by the facts. For example, Konrad von Finckenstein, former chair of the CRTC, has told a Senate committee studying Bill C-11 that the CRTC simply does not normally deal with matters of this nature; and that the CRTC will likely need to hire contractors to fulfil its mandate under the legislation. The CRTC is also, by its own admission, not really up to speed when it comes to the universe of online media it is required to regulate under the Online Streaming Act: it has invoked the need to gather information about podcasting to justify its far-reaching registration requirements for platforms that host them. As for the DSC, it will of course be an entirely new bureaucratic structure with no existing expertise at all. Perhaps the government will appoint experts to it. But it doesn’t have to. Bill C-63 imposes no requirements as to the qualifications of the DSC’s members other than their being Canadian citizens or permanent residents. Under the Canadian Radio-television and Telecommunications Commission Act, the same is also true of the CRTC.

Over-reliance on administrative regulation and enforcement undermines the rule of law too, by making the rules applicable to the internet uncertain and their application unpredictable. The legislation relies on vague terms that will only be fleshed out as the agencies that apply it go along, which will discourage innovation, chill expression, and incentivize platforms to take quick action against their users to avoid getting into trouble with the regulators. And if the victims of unfavourable rulings want to challenge them in actual courts, the Supreme Court’s precedents prevent judges from coming to their own independent assessment of what the law requires, but instead require them to yield to the bureaucrats’ interpretations unless these are not “merely” mistaken, but outright unreasonable. Even the requirements of the Canadian Charter of Rights and Freedoms are dissolved in this bureaucratic acid; from the supreme law of Canada, they are diluted into values that must, to be sure, be taken into account, but only as a factor among others.

All this may seem like legalistic pedantry propounded by academics who do not care about the pressing needs of contemporary society. But that impression would be mistaken. It is precisely the government’s disregard for Canada’s constitutional foundations that ultimately ensures that the rules produced for it by its administrative instrumentalities are out of touch.

Instead of legislation reflecting Canada’s public opinion as represented in Parliament, we are to be governed by rules drafted by unrepresentative bureaucrats, potentially influenced by special interest groups with a privileged access to them. Instead of the exercise of coercive power being channelled through institutions with limited remits keeping one another accountable, we are told to trust experts who cheerfully admit having no real expertise to speak of. And instead of the law being predictably and impartially applied by judges who are not invested in the government’s policy and do not depend on government goodwill for reappointment, the law, and the constitution itself, only count insofar as they are consistent with administrative need.

It may be that we are stuck with the administrative state. Although some scholars have made arguments to the contrary, we believe that, as a matter of law, Parliament is entitled to delegate very considerable policy-making powers to agencies such as the CRTC and the DSC. If the government is set on pursuing its regulatory agenda through the old-fashioned means of creating and empowering bureaucratic structures, the courts will not save us, even though, as we have argued elsewhere, they have become rather more skeptical of the administrative state’s claim to be the solution to all the problems of the modern world than they used to be until fairly recently.

But the government having the authority to do something does not mean that doing it would be a good idea. It, and we the citizens, should embrace the judiciary’s skepticism of the vision of government-by-administrator that characterizes the federal government’s plans. More to the point, we should recall what our most important constitutional principles mean. If we are not to erode them, we need to reject the means the government is proposing to employ, as well as, arguably, the ends it is pursuing.

Leonid Sirota is Senior Fellow with the Macdonald-Laurier Institute, and an Associate Professor in the School of Law at the University of Reading, in the United Kingdom, where he teaches public law. His research interests include the rule of law, constitutional interpretation, administrative law, the freedoms of conscience and expression, election law, and other aspects of Canadian and comparative public law.

Mark Mancini, a Senior Fellow with the Macdonald-Laurier Institute, is a Ph.D. candidate at the University of British Columbia, Peter A. Allard School of Law. He holds a J.D. from the University of New Brunswick, Faculty of Law, and an LL.M. from the University of Chicago Law School.

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MacDonald Laurier Institute

Rushing to death in Canada’s MAiD regime

Published on April 7, 2025

By

Macdonald-Laurier Institute By Ramona Coelho for Inside Policy

Canada legalized Medical Assistance in Dying (MAiD) in 2016, encompassing both euthanasia and assisted suicide. Initially limited to those nearing their natural death, eligibility expanded in 2021 to individuals with physical disabilities, with eligibility for individuals with mental illness in 2027. Parliamentary recommendations include MAiD for children. A recent federal consultation explored extending MAiD to those who lack capacity via advance directives, an approach Quebec has already adopted, despite its criminal status under federal law.

Despite its compassionate framing,  investigative journalists and government reports reveal troubling patterns where inadequate exploration of reversible suffering – such as lack of access to medical treatments, poverty, loneliness, and feelings of being a burden – have driven Canadians to choose death. As described by our former Disability Inclusion Minister, Canada’s system at times makes it easier to access MAiD than to receive basic care like a wheelchair. With over 60,000 MAiD cases by the end of 2023, the evidence raises grave concerns about Canada’s MAiD regime.

I am a member of Ontario’s MAiD Death Review Committee (MDRC). Last year, the Chief Coroner released MDRC reports, and a new set of reports has just been published. The first report released by the Office of the Chief Coroner, Waivers of Final Consent, examines how individuals in Track 1 (reasonably foreseeable natural death) can sign waivers to have their lives ended even if they lose the capacity to consent by the scheduled date of MAiD. The second, Navigating Complex Issues within Same Day and Next Day MAiD Provisions, includes cases where MAiD was provided on the same day or the day after it was requested. These reports raise questions about whether proper assessments, thorough exploration of suffering, and informed consent were consistently practised by MAiD clinicians. While MDRC members hold diverse views, here is my take.

Rushing to death, Ignoring Reversible Causes of Suffering

In the same-day or next-day MAiD report, Mrs. B, in her 80s, after complications from surgery, opted for palliative care, leading to discharge home. She later requested a MAiD assessment, but her assessor noted she preferred palliative care based on personal and religious values. The next day, her spouse, struggling with caregiver burnout, took her to the emergency department, but she was discharged home. When a request for hospice palliative care was denied, her spouse contacted the provincial MAiD coordination service for an urgent assessment. A new assessor deemed her eligible for MAiD, despite concerns from the first practitioner, who questioned the new assessor on the urgency, the sudden shift in patient perspective, and the influence of caregiver burnout. The initial assessor requested an opportunity for re-evaluation, but this was denied, with the second assessor deeming it urgent. That evening, a third MAiD practitioner was brought in, and Mrs. B underwent MAiD that night.

The focus should have been on ensuring adequate palliative care and support for Mrs. B and her spouse. Hospice and palliative care teams should have been urgently re-engaged, given the severity of the situation. Additionally, the MAiD provider expedited the process despite the first assessor’s and Mrs. B’s concerns without fully considering the impact of her spouse’s burnout.

The report also has worrying trends suggesting that local medical cultures—rather than patient choice—could be influencing rushed MAiD. Geographic clustering, particularly in Western Ontario, where same-day and next-day MAiD deaths occur most frequently, raises concerns that some MAiD providers may be predisposed to rapidly approve patients for quick death rather than ensuring patients have access to adequate care or exploring if suffering is remediable. This highlights a worrying trend where the speed of the MAiD provision is prioritized over patient-centered care and ethical safeguards.

MAiD without Free and Informed Choice

Consent has been central to Canadians’ acceptance of the legalization of euthanasia and assisted suicide. However, some cases in these reports point to concerns already raised by clinicians: the lack of thorough capacity assessments and concerns that individuals may not have freely chosen MAiD.

In the waiver of final consent report, Mr. B, a man with Alzheimer’s, had been approved for MAiD with such a waiver. However, by the scheduled provision date, his spouse reported increased confusion. Upon arrival, the MAiD provider noted that Mr. B no longer recognized them and so chose not to engage him in discussion at all. Without any verbal interaction to determine his current wishes or understanding, Mr. B’s life was ended.

In the same-day or next-day MAiD report, Mr. C, diagnosed with metastatic cancer, initially expressed interest in MAiD but then experienced cognitive decline and became delirious. He was sedated for pain management. Despite the treating team confirming that capacity was no longer present, a MAiD practitioner arrived and withheld sedation, attempting to rouse him. It was documented that the patient mouthed “yes” and nodded and blinked in response to questions. Based on this interaction, the MAiD provider deemed the patient to have capacity. The MAiD practitioner then facilitated a virtual second assessment, and MAiD was administered.

These individuals were not given genuine opportunities to confirm whether they wished to die. Instead, their past wishes or inquiries were prioritized, raising concerns about ensuring free and informed consent for MAiD.  As early as 2020, the Chief Coroner of Ontario identified cases where patients received MAiD without well-documented capacity assessments, even though their medical records suggested they lacked capacity. Further, when Dr. Leonie Herx, past president of the Canadian Society of Palliative Medicine, testified before Parliament about MAiD frequently occurring without capacity, an MP dismissed her, advising Parliament to be cautious about considering seriously evidence under parliamentary immunities that amounted to malpractice allegations, which should be handled by the appropriate regulatory bodies or police.  These dismissive comments stand in stark contrast with the gravity of assessing financial capacity, and yet the magnitude is greater when ending life. By way of comparison, for my father, an Ontario-approved capacity expert conducted a rigorous evaluation before declaring him incapable of managing his finances. This included a lengthy interview, collateral history, and review of financial documents—yet no such rigorous capacity assessment is mandated for MAiD.

What is Compassion?

While the federal government has finished its consultation on advance directives for MAiD, experts warn against overlooking the complexities of choosing death based on hypothetical suffering and no lived experience to inform those choices. A substitute decision-maker has to interpret prior wishes, leading to guesswork and ethical dilemmas. These cases highlight how vulnerable individuals, having lost the capacity to consent, may be coerced or unduly influenced to die—whether through financial abuse, caregiver burnout, or other pressures—reminding us that the stakes are high – life and death, no less.

The fundamental expectation of health care should be to rush to care for the patient, providing support through a system that embraces them—not rush them toward death without efforts to mitigate suffering or ensure free and informed consent. If we truly value dignity, we must invest in comprehensive care to prevent patients from being administered speedy death in their most vulnerable moment, turning their worst day into potentially their last.

Dr. Ramona Coelho is a family physician whose practice largely serves marginalised persons in London, Ontario. She is a senior fellow at the Macdonald-Laurier Institute and co-editor of the new book “Unravelling MAiD in Canada” from McGill University Press.

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Immigration

Immigrant background checks are unrelated to national security?

Published on April 5, 2025

By

Macdonald-Laurier Institute By David L. Thomas for Inside Policy

Canadians are rightly under the impression that migrants have been properly vetted before coming into our country. But it’s clear we’re not living up to expectations.

A recently de-classified 2022 report of the National Security and Intelligence Review Agency (NSIRA) suggests we’ve entirely misplaced our priorities when it comes to protecting Canadians from foreigners with dangerous backgrounds. Apparently referring prospective immigrants from places in the world beset with violent extremism for deeper background checks could constitute discrimination against those individuals that is “not justifiable on security grounds.”

Arbitrary discrimination on a prohibited ground is wrong. However, it is obviously important, for example, for the government to conduct proper security checks when we admit people into Canada as immigrants. There are times when certain discrimination might be warranted.

Essentially, for fear of being accused of discrimination, our national security oversight committee has deemed that checking prospective immigrants for ties to terrorist organizations is not a matter of national security. This is plainly absurd and is a grave risk to our national security.

The decision-style report of the NSIRA tribunal related to a group of complaints before the Canadian Human Rights Tribunal (CHRT) under the Canadian Human Rights Act (CHRA). The large group of complainants were citizens of Iran seeking temporary or permanent visas to Canada and who were subjected to security background checks. They alleged discrimination on the basis of race and that the CSIS checks delayed the processing of their visa applications (reported by NSIRA as an average delay of 14 days for temporary visas and 26 days for immigration visas). Iran is a country with which we have no diplomatic relations and we have designated as a state sponsor of terrorism since 2012.

Without the resources of CSIS and a deeper security check, how could an immigration officer in the field determine if a visa applicant may have once been a member of a terrorist organization, like al-Qaeda, or a drug cartel? CSIS security checks are designed to look deeper into an individual’s background, sometimes with the co-operation of foreign spy agencies.

These complaints came across my desk in the final months of my term as the Chairperson of the CHRT. Having previously practiced immigration law for more than 20 years, I was well aware of CSIS security background checks. My expectation was that the NSIRA would recommend dismissal of the complaints because, well of course, checking whether a prospective immigrant is connected to a terrorist organization has to be related to the security of Canada, no?

Apparently not.

The CHRT complaints were suspended under a never-before-used section of the CHRA. Under Section 45, the Minister of Immigration, Refugees and Citizenship Canada gave notice “that the (alleged discriminatory) practice to which the complaint relates was based on considerations relating to the security of Canada.” Despite this notice, the Human Rights Commission declined to dismiss the complaints and instead referred the matter to the NSIRA to provide a report on the matter.

The NSIRA report was the first of its kind and acknowledged there is little legislative guidance on the nature of its role under a Section 45 referral. However, in my view, the NSIRA has usurped the role of the CHRT by determining that the criteria applied for requesting the CSIS background checks “was not justifiable on security grounds.” In my view, their determination should have been limited to only whether the alleged discriminatory practices related to national security.

Nevertheless, the complaints are now proceeding before the CHRT to determine if it was discriminatory to make referrals for security background checks.

Arbitrary discrimination is, in most cases, against the law. However, there are exceptions, and one of them is Section 45 of the CHRA which creates a “carve out” from the normal rules when a matter of national security is on the line. And yet, the NSIRA decision bizarrely set aside national security and failed to grant the exception.

Canada has drastically increased its intake of migrants in recent years. Since 2021, the annual target for permanent residents was almost doubled to 500,000. Non-immigrant foreigners, mostly students and temporary workers, accounted for 2.5 million people, or 6.2% or the population in 2023. As these are people entering Canada legally, Canadians are rightly under the impression that migrants have been properly vetted before coming into our country. But it’s clear we’re not living up to expectations.

Canada recently admitted Muhammad Shahzeb Khan from Pakistan, accused of plotting a massive attack against Jews in New York last October. When this news broke Canada was still reeling from the embarrassment of having just granted Canadian citizenship to Ahmed Fouad Mostafa Eldidi. Along with his son, Mostafa Eldidi, he was arrested in July last year as the pair was accused of being in the advanced stages of  planning a violent attack on behalf of ISIS in Toronto. Apparently, Ahmed appears in a 2015 video dismembering an ISIS prisoner with a sword.

All prospective immigrants to Canada are subject to checks for past criminal activity. However, sometimes an immigration officer might flag an applicant for a security screening by the Canadian Security Intelligence Service (CSIS) to determine if a visa applicant has ties to terrorist groups, espionage, war crimes, crimes against humanity, etc.

In order to protect Canada, immigration officers in the field should have the unfettered discretion to refer any non-Canadian for a CSIS security background check. The referral is not a denial of entry into Canada. Applicants are just being asked to wait a little longer until we’re satisfied about their background. Immigration officers should not be second-guessing themselves about this discretion for fear of a human rights complaint.

Now is the time for Canada to set its priorities right. Our national security must be paramount and should not be hamstrung by unrealistic idealism.

David Thomas, a senior fellow at the Macdonald-Laurier Institute, is a lawyer and mediator in British Columbia. From 2014 to 2021, he was the chairperson of the Canadian Human Rights Tribunal.

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