I wrote earlier this week about the decision of the Court of Appeal for Ontario R. v. Michaud, 2015 ONCA 585, which upheld the constitutionality of regulations requiring trucks to be equipped with a speed limiter that prevents them going faster than 105 km/h. The Court found that the regulations could put some truck drivers in danger by leaving them unable to accelerate their way out of trouble, and thus infringed s. 7 of the Canadian Charter of Rights and Freedoms, but that they were justified under s. 1 of the Charter. This is a most unusual outcome ― I’m not sure there a s. 7 violation had ever before been upheld under s. 1 ― and the Court itself suggested that the s. 7 analytical framework set out by the Supreme Court in Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101 is not well-suited to cases where the constitutionality of “safety regulations” is at issue. In this post, I would like to comment on the role of s. 7 in this and similar cases, and the role of courts in applying the constitution in such circumstances.
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The Court may well be right that the current s. 7 framework is not adequate to deal with “safety regulations” ― at least if it has interpreted that framework correctly. Referring to Bedford, the Court took the position that any negative effect on a person’s security is enough to engage the “security of the person” right protected by s. 7. But I’m not sure that this is really what the Supreme Court meant when it said that “[a]t this stage, the question is whether the impugned laws negatively impact or limit the applicants’ security of the person.” [Bedford 58] Is there no threshold, at least a more-than-de–minimis one, for a court to find a s. 7 infringement? Such thresholds exist in jurisprudence on other provisions of the Charter, for example on s. 2(a), where a “trivial or insubstantial interference” with religious freedom, one “that does not threaten actual religious beliefs or conduct,” does not engage the Charter. Admittedly, Bedford says nothing about such a threshold in s. 7, but then neither it nor the other s. 7 cases that come to mind involved situations where the interference with security interests was of a potentially trivial magnitude.
As the Court of Appeal suggests in Michaud, “safety regulations” are likely to create precisely this sort of interference with the security interests, or even the right to life, of people who engage in the regulated activity. The Court explains that it is always possible to say that a more stringent regulation would have prevented a few more injuries or even deaths, so one could argue that the increase in each person’s likelihood of being injured or dying as a result of a somewhat laxer rule is a s. 7 violation. The Court is concerned that acceptance of such arguments will trivialize s. 7, and I agree that this would indeed be disturbing.
But it seems to me that the best response to this problem is to say that a purely statistical increase in the odds of being injured should not count as sufficient to establish the violation of any given person’s rights. In Bedford itself, the courts were able to show how the prostitution-related provisions of the Criminal Code directly and substantially interfered with the security of sex-workers who had to comply with them. The negative impact on their safety was not just statistical; one did not need an actuarial table to see it ― though statistical evidence was used to show the extent of the problems beyond the stories of the claimants themselves.
The Court of Appeal suggests a different approach, which is to treat safety regulations differently from other (perhaps especially criminal) laws, and to take their beneficial effects into account at the s. 7 stage of the analysis, and not only at the s. 1 justification stage as is usually done. In my view, there are two problems with this solution. First, it is inconsistent with the Supreme Court’s longstanding aversion for introducing balancing into the substantive provisions of the Charter. This aversion is justified, not only by the pursuit of coherence, but also by the desirability of putting the onus of proving social benefits on the government.
The other reason I find the creation of a special category of “safety regulations” problematic is that its contours would be uncertain, and would generate unnecessary yet difficult debate. The rules requiring speed limiters in trucks under pain of relatively limited penalties are obvious safety regulations. But it seems like a safe bet that the government would try to bring other rules within the scope of that category if doing this made defending their constitutionality easier, including for example the prostitution provisions enacted, in response to Bedford, as the Protection of Communities and Exploited Persons Act. Of course, the parties challenging these laws would fight just as hard to show that such rules are not really about safety. The uncertainty and the costs of litigation would increase, while the benefits to be gained from this approach are not obvious.
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Now, this whole issue of statistical increases in risk being treated as a violation of s. 7 of the Charter is actually irrelevant to Michaud. That’s not to say the Court should not have brought it up ― I think it did us a favour by flagging it, and we should take up its invitation to think about this problem. Still, the issue in that case is different: it’s not that a safety regulation does not allegedly go far enough, but that it allegedly goes too far. The two possibilities are, of course, two sides of the same coin; they are both possible consequences of the regulator’s preference for a bright-line rule over a standard. The Court is right to observe that there are good reasons to prefer rules to standards (some of the time anyway). And surely the Charter wasn’t supposed to eliminate bright-line rules from our legislation.
However, to speak of the speed limiter requirement as a “bright-line rule” is to miss what is really distinctive about it. Those who challenge the requirement aren’t seeking it be replaced by a standard. They are content with a bright-line speed limit ― provided that they are able to infringe it on occasion (and, one suspects, that they are not prosecuted for doing so). Unlike a speed limit enforced, sporadically and ex-post, by the police, which can be broken if need be, a speed limit enforced permanently and ex-ante by an electronic device cannot be broken at all. In other words, the issue is not simply one of rules versus standards; it’s one of rules whose nature as rules can on occasion be ignored (put another way, rules that can be treated as if they were standards) versus rules that stay rules.
This creates a difficulty for constitutional law. Can a court acknowledge that a rule sometimes needs to be broken? Can a court go even further than that, and say that a rule is constitutionally defective if it doesn’t allow a mechanism for being broken? To say that the legislator is entitled to choose rules over standards does not really answer these questions. As thoughtful and sophisticated as the Michaud opinion is, I don’t think that it really addresses this issue.
That’s too bad, because this problem will arise again, and ever more urgently, with the development of technology that takes the need, and the ability, to make decisions away from humans. Self-driving cars are, of course, the obvious example. As it happens, the New York Times published an interesting story yesterday about the difficulties that Google’s autonomous vehicles run into because they are “programmed to follow the letter of the law” ― and the drivers of other cars on the road are not. Google’s cars come to a halt at four-way stops ― and cannot move away, because the other cars never do, and the robots let them by. Google’s cars keep a safe distance behind the next vehicle on a highway ― and other cars get right into the gap. The former situation might be merely inconvenient, although in a big way. The latter is outright dangerous. What happens if regulators mandate that self-driving cars be programmed so as never to break the rules and it can be shown that this will increase the danger of some specific situations on the road? What happens, for that matter, in a tort claim against the manufacturer (or rather the programmer) of such a vehicle? Michaud gives us some clues for thinking about the former question, though I’m not sure it fully settles it.
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Thinking about constitutional questions that challenges to safety regulations give rise to also means thinking about the courts’ role when these regulations are challenged. In Michaud, the Court took a strongly deferential position, drawing a parallel with administrative law, where courts are required to defer to decisions that are based on the exercise of expert judgment. It noted, however, that “situations, in which a legislature or regulator uses a safety regulation for an improper collateral purpose, or where the regulator makes a gross error, are imaginable.”  In these situations, the courts should step in.
I think this is exactly right. Courts must be alert to the possibility that rules that ostensibly aim at health and safety are actually enacted for less benign purposes, and in particular as a result of various public choice problems. Safety rules are attractive to those who want to limit competition precisely because they look so obviously well-intentioned and are difficult to criticize. That said, when ― as in Michaud itself ― there seems to be no dispute that the rule at issue is genuinely meant to pursue safety objectives, courts should indeed adopt a hands-off approach. Michaud illustrates the difficulties they have in dealing with conflicting expert reports based on complex and uncertain science. And the Court is right to suggest that governments should be entitled to err on the side of caution if they so wish ― though, by the same token, I think they should also not be required to do so (and the Court does not say otherwise). This is fundamentally a policy choice, and the courts should not be interfering with it.
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The questions that the Michaud case raises are many and complex. The Court of Appeal’s opinion is thoughtful and interesting, though as I explained above and in my previous post, I’m not sure that its approach to the existing constitutional framework and to the evidence is the correct one. But that opinion does not address of all these questions. Eventually ― though not necessarily in this case, even if there is an appeal ― the Supreme Court will need to step in and start answering them.
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