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Bruce Pardy: The Triumph of the Administrative State

[FULL TRANSCRIPT BELOW] One year on, what is the legacy of the trucker convoy protests? Why have so many people bought into the idea that a society and its problems must be managed and controlled by so-called experts? And why are laws that pursue equity fundamentally at odds with a society based on the rule of law?

“If the government has a license to treat people differently depending upon their identity, then they now have a license to punish and reward as they wish,” says Bruce Pardy, the executive director of Rights Probe and a professor of law at Queen's University in Canada, in this episode of American Thought Leaders.

“In many ways, the most disappointing thing about this experience during COVID was the fact that a great many people supported the regime, and they didn't seem to have very much appreciation for the aberration that it represented,” says Mr. Pardy.


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Jan Jekielek: Bruce Pardy, such a pleasure to have you on American Thought Leaders.

Bruce Pardy: It's a pleasure to be here. Thanks for having me.

Mr. Jekielek: We first sat down to chat about a year ago, and we didn't end up publishing the interview. It was about the truckers' movement, of course. Just as we were about to publish it, the War Measures Act was pulled.

Mr. Pardy: Right.

Mr. Jekielek: I didn't get to have you on the show. It's a year-and-a-half now since we talked. I've come to believe that the truckers' movement was probably one of the most consequential protests in recent history. I want to get your thoughts on this.

Mr. Pardy: I agree with you, not just in Canada, but probably internationally. Now, it wasn't the biggest protest we've ever seen, and it was quite modest in size. It wasn't the most eventful protest, in the sense that they drove up, they parked, and that's all they did, other than dance in the streets, sweep and clear snow, and feed the hungry.

The truckers have done us all a huge service. They were protesting vaccine mandates, and that alone would've been enough. But what it really turned into was the first significant sign in Canada, a very polite, compliant country, the first sign from ordinary people that they didn't trust their government.

Canada is the land of peace, order, and good government. We emerged out of the revolution in the U.S. The Canadians were the ones that didn't want to revolt, and wanted to remain loyal to His Majesty. Peace, order, and good government runs through the history of Canada.

Here you have a bunch of truckers who took it upon themselves to drive all the way across a huge country to give a message to the government, "We don't trust you. We don't accept your authority. We don't accept your legitimacy." That is a significant thing to say.

Mr. Jekielek: I've interviewed a couple of young men who had embedded themselves in the protest to document it. One of them had previously been a political organizer. He asked them, "What are your demands?" They replied, "We're going to Ottawa. We've got to stop the mandates."

He was shocked to discover this was such a grassroots movement that these people didn't even really have demands, unlike some of the protests that we've seen. For example, many of George Floyd protesters had millions of dollars in backing. They were highly coordinated with very specific goals, perhaps diverging from the surface goals. Anyway, you get the idea. Here we had something that was very grassroots.

Mr. Pardy: Yes. It was organic, spontaneous, and disorganized in a good way. You had to try and figure out what was going on. I was in Ottawa for a good period of time when the protest was going on, and it was even difficult to know who was calling the shots. If you talked to one trucker and then the next, it was basically no agreed upon structure or leadership, and that was part of its charm. It was really a spontaneous thing. Some of them just picked up, got in their trucks and said, "We're going to Ottawa." Then the thing built up across the country.

Mr. Jekielek: What is the outcome here? Clearly, something changed, basically on those days when we filmed our interview. Suddenly, we thought, "Maybe this is going to be codified by the Canadian Senate, and what would that mean?" But then suddenly it was gone. There was a strong ripple effect across the world. Is that the reason you call it consequential, possibly internationally?

Mr. Pardy: It's hard to know exactly why governments rescinded the mandates. You make a good point, that some of them happened to be rescinded not long after the end of the convoy. You could make the case that one thing had a lot to do with the other, and it could well be. On the dark side, let's take a step backwards. Covid seemed to come on us suddenly, and then we were in a different world. The rules were different, and the powers that the government had were different. They seized more powers than they've ever had before, and it seemed like a sudden overnight thing.

I don't think that's really the case. It did come upon us suddenly, and it was an abrupt change, but in my view, these things had been building for a long period of time. In a way, the Covid experience was the triumph of the administrative state. People like to ask this question, "Why did the government fail so badly during Covid? Why did they allow civil liberties to be crushed? Why weren't they more effective at the measures that they put in? Why did it fail?"

From the perspective of this machine that we call the administrative state or the nanny state, it doesn’t think it failed. The administrative state thinks that it succeeded beyond its wildest dreams, because it was finally able to do that which it exists for, which is to manage society. It was able to manage all of us in a more extreme way than it has ever done before.

Of course, we've had an administrative state for many decades, but it had never been as extreme as it was during Covid. People were literally being told to close their businesses, to not go to work, to not walk through the park, and to not leave their homes. It was an extraordinary thing. Things were happening that a lot of people just would not have contemplated as possible in an earlier time.

The truckers have at least questioned that consensus, and that questioning is why the government saw it as such a threat. It was no threat in literal terms. There was no violence, and there were no weapons. There was no storming of Parliament. There was nothing going on inside the convoy other than sitting in the trucks and playing in the snow.

Mr. Jekielek: And honking. I remember there was a lot of honking.

Mr. Pardy: And honking. Honking went on for a while. When I arrived in Ottawa, there was honking going on during the day, but it ended as evening fell. As the days went on, there was an application for an injunction brought to court, and the court granted the injunction. After that, there was basically no honking. Every once in a while you'd hear somebody breaking the rules, but there was basically no honking after the injunction, so they were compliant with the law.

The one thing that the convoy did that was actually unlawful was parking. They were engaged in unlawful parking. The threat was that you have a whole bunch of ordinary Canadians coming to the government and saying, "We don't approve of what you're doing. We don't approve of the system that we're in. We don't believe in your legitimacy. We don't believe in your authority."

I suspect that's why they ultimately decided to trigger the use of the Emergencies Act, which by the way, was not designed for that purpose. That's not the kind of emergency that qualifies for the use of the act. If you are in political trouble, that does not qualify as an emergency, and that's the kind of trouble that the truckers were causing the government.

Mr. Jekielek: What do you make of this inquiry and its findings earlier this year?

Mr. Pardy: I listened to a lot of the testimony, as many people did. The evidence given basically said that there was no violence to be found inside the convoy. In fact, one of the OPP [Ontario Provincial Police] witnesses said that he found the lack of violence in the convoy to be shocking. If you have this number of people doing this kind of protest, the implication was that you would expect some violence, but there wasn't any to be found.

Yet, and I wrote this at the time, I had no expectation that the inquiry would throw the government under the truck. The purpose of these inquiries is as much performance as substance. I regard them as rituals. It provides the appearance of accountability, without actually providing accountability.

The question being posed and answered at the inquiry was not the same question that's being posed and answered in the applications challenging the invocation of the Act. Those challenges have now been heard by the federal court, and we haven't received an answer yet. We'll see.

Mr. Jekielek: This is the appropriate time to talk about what you do and how you've come to see this. You've been watching rights, basically, for decades. This has been part of what you do. Actually, I first came across you when Bill C-16 was going through the legislative system. It’s what I think of as the compelled speech bill.

Mr. Pardy: It was an amendment to the Canadian Human Rights Act. It was incorporating gender identity on the grounds that were being protected from discrimination. Interestingly, the amendments did not include the word speech. It didn't say you're going to be required to say these preferred pronouns.

The argument that Jordan Peterson and I and Jared Brown and others were making at the time was that if you include this based upon interpretations of similar provisions that have been given by human rights commissions elsewhere in the country, this is going to require you to use the preferred pronouns of people who are saying, "Please don't call me him. I want to be called her, or Z, or they, or whatever the case may be."

That would amount to compelled speech, because the interpretation of using the wrong pronoun would be regarded as discrimination. On those grounds we said, "This is not a good idea." That objection did not rule the day, and it went through anyway.

Now, in our human rights codes across the country, both the federal one and provincial ones, we have these grounds of prohibited discrimination, which more and more are now being used for exactly what we suggested they would be used for, which is saying, "I'm sorry, you can't choose the pronoun that comes out of your mouth. Someone else can tell you what that word should be." That is not a country in which free speech exists.

Mr. Jekielek: It was fascinating to hear those arguments back then, and I didn't really grasp it at the time. Jordan and others were seeing something because of this work that all of you had been doing. Please tell me about that work, how you started, and how you ended up at Queens University.

Mr. Pardy: I started my academic career focusing not entirely, but largely, on environmental law. Through the lens of environmental law, you can see a lot of the problems that we're having on a larger scale broadly across society. You can see the dilution of private rights. You can see the disappearance of certain kinds of due process. You can see the erosion of what we may have thought were our constitutional rights.

The whole thing is veering off the track, in my view. It's a very interesting microcosm or case study of the larger legal picture, in which the ground really is moving beneath our feet in ways that we don't suspect. Let me give you one example. The Charter [The Canadian Charter of Rights and Freedoms] came to Canada in 1982. It's the Canadian version of an American Bill of Rights.

Mr. Jekielek: Yes, I remember we were celebrating it in grade school.

Mr. Pardy: Right, and it has turned out to be less than one might have hoped for, partly because of the way it's worded, but also largely because of the way it's been interpreted. One of the sections in the charter is Section 15. It's the equality provision. It's a two-part section. Basically, the first part says that everybody is equal before the law without discrimination. Then the second part is an exception to the first part.

The second part, and this exception does not appear in the American version, is an exception which essentially allows affirmative action in certain circumstances. The first idea is that everybody has the right to equal treatment under the law. That means that the same rules and standards apply to you as everybody else, without regard to who you are. The other version of equality is that people of different identities are entitled to equal outcomes. Now, here's the basic proposition. Everybody is different. Everybody is different in an infinite number of ways. If you apply the same rules and standards to everybody, by definition, they're going to end up with different outcomes because they're all different. If you insist that all the identity groups end up in the same place, that means, by definition, that you must apply different rules and standards to them. You have equal treatment or you have equal outcomes, and you can't have both.

Over this period of time, the Supreme Court of Canada has said it's the second, and not the first. If you do have an actual equal rule that applies to everybody, but that actual equal rule produces disparate outcomes, that won't do. That means you have to change the rules, so there are different rules for the different groups.

We've seen that from the Supreme Court of Canada. There is a case challenging our RCMP [Royal Canadian Mounted Police] program. They instituted a program whereby their members could essentially work if they wanted to. Along with that part-time option, they provided a pension plan that more or less resembled the full-time pension plan, in the sense that your pension reflected the hours that you worked.

Now, this is a voluntary program. If you're a full-timer and you wanted to do this, you were able to do it. If you didn't want to do it, then you didn't do it. As it happened, more women than men chose part-time. As a result, more women than men had lower pensions than the people who were doing full-time. On that basis, a majority at the Supreme Court of Canada said, "This violates Section 15. Same rule, both sexes, different outcomes. We can't have it."

Mr. Jekielek: Why is this a problem?

Mr. Pardy: Whether it's a problem depends upon what you value. If you are a social justice warrior, that won't be a problem at all. This is the way it's supposed to be, because that's the whole idea of social justice. If you want protection from your meddling government, what you want is the right to be treated the same as everybody else. If the government has a license to treat people differently depending upon their identity, then they now have a license to punish and reward as they wish.

Sometimes people confuse equality with freedom, and those two things are different. People sometimes look to equality to provide freedom, but the idea of equality of treatment is really the right to be subject to the same awful dictatorial laws as everybody else, whereas freedom is the right not to be subject to those laws. Sometimes people pursue freedom by looking to equality.

But nevertheless, equal treatment is part of the rule of law. If you are going to adjust your rules for every particular case so as to provide the outcome that you want, that means you don't really have a rule at all. F. A. Hayek said that one of the elements of the rule of law was rules fixed and announced beforehand. That is, the government can rule us, but they have to tell us ahead of time what the rule is going to be, so we can understand it, and govern ourselves accordingly.

Mr. Jekielek: Then they will be held accountable for those rules, correct?

Mr. Pardy: Then they're accountable, exactly. But what's happened in the era of the administrative state, not just with this equality thing, but in a much broader way, is that we don't have that rule of law. Instead, we have decision makers in the executive branch, in all of these agencies, and even in the courts, making decisions as they go about things. A lot of the agencies and the bureaucrats and the professional experts see themselves as being there to solve social problems.

In order to do that, you need flexibility. You need to be agile. You need to be able to respond to things. You need to be able to manage here and there, and to adjust as you go along. That is opposite to the kind of rule of law that Hayek was talking about. You can't do that if you're going to have a rule of law.

The administrative state and all its people are inclined to see the rule of law as an obstacle and inconvenience to achieving the kind of society that they want. What they're missing is that the inconvenience that the rule of law provides, that so-called obstacle, is not an inconvenience. That's really the point. It's there to prevent you from managing things on a case by case, one-off basis, and making up things as you go along. That's what it's there for, but more and more, that idea is eroding.

Then we have the alternative, which is you have a whole bunch of people in this enormous machine of the administrative state trying to solve, and not doing very well at it, but trying to solve problems one at a time, and making things up as they go.

Mr. Jekielek: This is very profound what you're describing. I see the response to the pandemic, and people have different views on how it all happened. Are you saying the response was a crystallization of one particular philosophy of governance, which you could call a benevolent technocracy and rule by experts?

Mr. Pardy: Yes, absolutely. It's the crowning achievement so far of that belief, the belief that in order for civilization to carry on and to be successful, we need experts in a bureaucracy managing things, so that things don't fall apart. That is a belief that is probably widely held, and even widely held across the political spectrum.

Even political actors like Republicans in the United States, who don't approve of overregulation and too much bureaucracy and too many taxes and overspending, if you challenge them, a lot of them would still say, "We need an expert bureaucracy. We need an administration in order to make our way through life."

The opposite view is, "Look, this is just a belief." It is just one of the ways of doing government. Our experience with it over the past while, and especially during Covid, shows it doesn't work.” If anything else, they have shown their incompetence during Covid. They've shown that they are captured by other interests, when they're supposed to be protecting the public.

If the failure is so obvious during Covid, what makes you think that they would be any good at very many other things? We can go down a whole long list of things that we think they're good for and find out, actually, that in many of these situations, the biggest danger and the biggest risk to all of us is the meddling that the state is able to do.

Mr. Jekielek: Just on this point of the significant and repeated failures of these policies that profoundly altered civilization, as you alluded to earlier, not everyone thinks it was a failure.

Mr. Pardy: No.

Mr. Jekielek: To this day, some people believe these things were successful, despite overwhelming and well-documented evidence to the contrary. That phenomenon is something I struggle with.

Mr. Pardy: In many ways, the most disappointing thing about this experience during Covid was the fact that a great many people supported the regime, and they didn't seem to have very much appreciation for the aberration that it represented. If you remember the way people thought about their society before Covid, the idea that the government should take it upon itself to tell people whether or not they can open their business, go outdoors, or walk through the park would have just been unthinkable.

Even the authorities themselves, I would expect, would have thought, "We'd like to do that, but we simply can't do that. People won't put up with it," but they did. They put up with it and they wanted more of it. It's an uncomfortable realization that there are other people in your country who don't think of their country in the same way that you do at all, and then you wonder where it is that you live.

Mr. Jekielek: This wasn't just a Canadian phenomenon. The United States is almost like a collection of countries with quite different philosophies. Some states would be very similar to the Canadian model of approach. Some had a very different approach, especially at the very beginning.

Mr. Pardy: That is one of its great strengths. The fact that you have different tribes in the U.S. is a strength. Because then you actually have real diversity, not the pretend diversity, equity, and inclusion. You actually have real diversity, in the sense that you have different places and different people with very different ideas about what the right thing to do is. That's great. We have that to some extent in Canada, and there are pockets here and there, as opposed to the real battles that are going on in the U.S. which are very healthy. One of the criticisms that Canadians lodge against the U.S. is, "They're full of conflict and they're so political about everything and they have fights in their Supreme Court about the philosophy of this and that. Their Congress is always fighting about things. In Canada, we don't have any of that politicization of our institutions." That's nonsense, of course. The fact of the matter is, the politicization of our institutions is even more extreme because there's no opposition.

Mr. Jekielek: There is a lot more evidence coming out about the human costs of the policies that were implemented. There is still a significant portion of the population that doesn't want to know or isn't able to accept this. It's very difficult to have the discussion that you're talking about, and that's not just a phenomenon in Canada, of course.

Mr. Pardy: Of course. Those discussions are needed. The evidence and the data that you're referring to needs to be discussed, and needs to get out into the public realm. They're out there, and they're available, but not a lot of people are accessing them. There's a more fundamental question, which is this. There's a danger when citing the bad results becomes the argument for why the measures were wrong, and that's not the case that I would make.

I would make this case. If the lockdowns had worked better, if they had not caused such harm to people, if the vaccines had worked as advertised, if they hadn't had such adverse effects, and if the facts had been wholly different than they were, the measures were still wrong, because they took people's choice away.

Even if the authorities happened to be right, you still can't tell people what to do. It's still a free country. It's still their medical decision. It's still their business. It's still their risk. It's still their children. Even if the situation were entirely different and we had competence in our public health authorities, the situation does not change. You simply cannot do this to people and call yourself a free country.

Mr. Jekielek: We're going back to the two views that we discussed earlier. You're firmly on one side on the equality of opportunity.

Mr. Pardy: No, I'm on the equal treatment side, but now we're talking about liberty as much as equality. You could make this case. You could say, "We're going to be equal about it. We're going to make everybody locked down and we're going to make everybody take a vaccine. That's equal."

That's equal for sure. That's not free, though. It doesn't leave medical decisions to the individual, and it doesn't leave the assessment of your own risk to the individual. It has less to do with equality and more to do with whether or not you're serious about your civil liberties.

The administrative state that we now have is more and more incompetent and captured over time. But even if that were not the case, you still shouldn't have one in the way that we do. Because they take it upon themselves to manage us, and being managed is, in a sense, the opposite of being free.

Please note how they managed us. They managed us during Covid in a very clever way. We have a Charter, and we have a Constitution. We have rights in the Constitution. Those charter rights, most of the time, were basically useless during Covid for certain valid legal reasons, because the government didn't always infringe on them directly. Instead, they managed society by saying, "By the way, everybody, this is your choice. You can decide whether to get a vaccine or not. We're not going to make you. But if you decide not to, there are consequences for that choice. You might not be able to fly on a plane. You might not be able to have a job. You can't go to university. But by the way, it's not mandatory."

They're doing indirectly, through their management of society, what they would probably not be able to do directly. It's just one of the examples of how you can squeeze through the gaps in the rights of the charter in a very effective way, as they did during Covid, which allowed civil liberties to be lost without infringing charter rights.

Mr. Jekielek: Bruce, as you're talking here, you're putting the fear of God in me. I'll explain why. I'm reflecting on how there is this inherent feature of bureaucracies, where accountability is diluted to the point where it's unclear who is actually responsible.This type of management, which essentially means no accountability, presents a foundational threat to humanity. Does that sound too dire?

Mr. Pardy: That's part of the design of the administrative state. Let's just back up a step in constitutional terms. Both we and the Americans have this concept in our constitutional order of the separation of powers. The Americans have a much more explicit one than we do. Again, separation of powers is there to protect us.

If you want to conceive of the rule of law in terms of its opposite, which is rule by a person, none of us want to be subject to the rule of a person. We don't want to be subject to the rule of a king who has absolute power. We don't want to be subject to the rule of any other person who has the power to decide what's going to happen, so we divide up the powers between these three branches.

The legislature can make rules, but it makes the rules without knowing the situations to which the rules will apply. The courts take those rules and they apply them to those particular disputes, but they didn't make the rules. They are supposed to be committed to the rules as drafted by the legislature, so they can't make them up. The executive branch is supposed to be able to do nothing. It's supposed to be powerless except for those powers that the legislature gives it in the statute. That protects all of us, because no one of those people or branches can decide on their own what's going to happen to you.

This separation of powers, although it still exists as a principle and is lauded all the time, in practice is just heading out the door. These three branches, which are supposed to be checks and balances on each other, are all of one mind about the necessity for an administrative state, for the experts and the bureaucrats to be able to respond to social problems and make it up as they go.

The legislature passes statutes that give broad rulemaking power to the executive branch. The courts defer to the decisions of the executive branch. The legislature even gives the executive branch the power to adjudicate things in tribunals and boards and commissions. Now, you have the executive branch making rules, deciding cases, and executing.

They're doing the three jobs of the three different branches all in one branch. Of course, there's no accountability, because you don't know who's doing what now, and they're all in on it together. I'm not saying they don't quarrel amongst themselves, they surely do. But in the big picture, they're all of one mind about how civilization should be in order to carry on. I think that idea is wrong.

Mr. Jekielek: What is the role of the media in all of this, which is v