Last year, I wrote about Ontario’s Federal Carbon Tax Transparency Act, 2019 (the “Act”) ― both about the disgraceful way in which it became law and about its unconstitutional speech compulsion, which I argued should not even be considered as a potentially justified limitation of the freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms, because it was tantamount to the imposition of an official ideology. The constitutionality of the Act was in fact challenged by the Canadian Civil Liberties Association and, last week, in CCLA v Ontario (Attorney General), 2020 ONSC 4838, the Superior Court of Ontario struck it down.
At first glance, this is a welcome development for the freedom from compelled speech. Not only is the compulsion invalidated, but Justice Morgan’s approach might seem to bear some resemblance to the one I had proposed: in effect, he denies the government the chance to justify the Act under section 1. But look at Justice Morgan’s reasons more closely, and they turn out to be very narrow. Indeed, they could be used to support significant speech compulsions in the future.
This is not altogether surprising. Justice Morgan was constrained by the Court of Appeal’s reasoning in McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1, upholding the constitutionality of the requirement that applicants for the Canadian citizenship swear an oath to bear “true allegiance” to the “Queen of Canada”, which I have described as a “parade of horribles“. And indeed it was none other than Justice Morgan who had written the first instance decision in that case. While it wasn’t quite as bad as that of the Court of Appeal, it did not evince much understanding of the harms of compelled speech either.
The Act required all gas stations to display a prescribed sticker alerting customers to the amount of the “federal carbon tax” levied on the gas they were purchasing. The evidence adduced by the CCLA showed that it was meant as a not-so-subtle intervention in the 2019 federal election campaign, in which the Ontario government supported the anti-carbon-tax position of the federal Conservatives and opposed the pro-carbon-tax Liberals. This partisan dynamic is a key factor in Justice Morgan’s reasoning.
Before getting to the substantive issues, Justice Morgan must address the Attorney General’s objection to the CCLA’s standing to challenge the Act. As it turns out, the CCLA has tried to enlist actual gas stations as plaintiffs or co-plaintiffs, but none would come forward. Justice Morgan explains that “retailers, with a view to market forces rather than to politics and constitutional law, have been loath to participate in this case” due to its political valence. [40] But the record to which Justice Morgan alludes suggests that this is not quite accurate: politics, in the shape of a fear of regulatory retaliation, seems to have been a motivating factor too. Be that as it may, Justice Morgan grants the CCLA public interest standing to pursue the case.
He must next decide whether the sticker requirement limits the freedom of expression protected by section 2(b) of the Charter. To this end, he applies the test set out in the Court of Appeal’s McAteer decision:
The first question is whether the activity in which the plaintiff is being forced to engage is expression. The second question is whether the purpose of the law is aimed at controlling expression. If it is, a finding of a violation of s. 2(b) is automatic. If the purpose of the law is not to control expression, then in order to establish an infringement of a person’s Charter right, the claimant must show that the law has an adverse effect on expression. In addition, the claimant must demonstrate that the meaning he or she wishes to convey relates to the purposes underlying the guarantee of free expression, such that the law warrants constitutional disapprobation. (McAteer, [69])
Justice Morgan finds that the sticker is indeed a form of expression. Yet in his view its purpose is not to control expression. In particular, he takes the view that “it would be difficult for the government to control expression by compelling certain messages … but not restricting others”. [50] Objectors remain free “to disavow” [52] the message they are compelled to voice, for example by posting disclaimers; hence their expression is not “controlled”. However, it is adversely impacted by the Act.
The key point for Justice Morgan is that, unlike the citizenship oath in McAteer, the sticker does not promote democracy and the Rule of Law. Indeed, it does not even serve to truthfully inform. Justice Morgan attaches some importance to the sticker’s use of the “carbon tax” nomenclature, which in his view is at odds with the Court of Appeal for Ontario’s opinion, in Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544, 146 OR (3d) 65, that the policy at issue is not a “tax” within the meaning of the Constitution Act, 1867. Moreover, the sticker says nothing of the ways the money levied as carbon tax is distributed, in part to taxpayers, in part to provinces. As a result, it is a form of “spin”. [60] By requiring it, “the government is not so much explaining a policy [as] making a partisan argument”. [63] And “[b]y using law for partisan ends, the Ontario legislature has enacted a measure that runs counter to, rather in furtherance of, the purposes underlying freedom of expression”. [65]
This limitation of the freedom of expression is not justified under section 1 of the Charter. Indeed, unusually, Justice Morgan finds that the Act lacks a pressing and substantial purpose ― the first, and normally very low, hurdle a statute must meet to be upheld under section 1: “While truly informing the public about the components that make up the cost of gasoline would be a pressing and substantial purpose, promoting the Ontario governing party over the federal governing party is not.” [69] The Act is purely partisan rather than a real “policy choice”. [69] Justice Morgan goes through the other steps of the justified limitation analysis by way of an obiter, but it all comes down to his concern with partisanship. The Act is invalid.
Right outcome, but the reasoning is another matter entirely. Justice Morgan’s approach is illogical and conflicts with the Supreme Court’s precedents, notably inthat it collapses the two stages of the Charter analysis that the Supreme Court has always sought to keep distinct: first, the question of whether a right is being limited; second, that of whether the limitation is justified.
First, to say, as Justice Morgan does, that one’s expression is not controlled because one can disavow something one has been coerced to say is perverse. The fact that one is forced into disavowals shows sufficiently that what one is saying is not what one chooses to say.
The political context that Justice Morgan’s reasons depict highlights this problem. As he explains, it appears that gas station owners would rather keep quiet and sit out the political conflict about the carbon tax. This is their right ― the obverse of the freedom of speech is the freedom to stay silent. If they are forced into disavowals and denials, the gas stations will inevitably be taking sides in the political conflict they are trying to avoid ― if anything, this will be much more obvious than if they merely comply with the Act and display the required stickers. Of course, such a response is not what the Ontario legislature envisioned, but it would be caused entirely by the Act, and so it is absurd to deny that the Act amounts to a form of control of the gas stations’ expression.
Fortunately, the Supreme Court’s precedents mandate no such twisted inquiry. Ostensibly the most important freedom of expression case (I have argued here that it is only “leading from behind”), and the source of the “control” language used in McAteer and by Justice Morgan is Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927. The distinction between legislation that has control of expression as purpose and that which doesn’t is described as follows in the joint opinion of Chief Justice Dickson and Justices Lamer and Wilson:
If the government’s purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government’s purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression. (974)
Applied to speech compulsions rather than censorship, this means that any legislation that “singles out particular meanings” that must be communicated, or forces an audience to listen to a communication, necessarily has control of expression as its purpose. Such legislation limits (or, as the Supreme Court often says, prima facie infringes) the freedom of expression. There is no need to consider effects, let alone to ask the purely subjective question of whether they are worthy of “constitutional disapprobation”.
This inquiry into effects and “disapprobation” in effect forces claimants to show that the law which compels their speech is not justified, and more specifically that it pursues an end worthy of judicial condemnation. The success of such an argument in this case should not blind us to the fact that this is a high hurdle. As noted above, this approach collapses the usual section 1 test of whether a limitation on a right is justified into the threshold inquiry of whether a right is limited in the first place, and it means that the claimant rather than the government bears the burden of proof. It follows that Justice Morgan’s streamlined approach to the section 1 analysis is rather less supportive of freedom of expression than one might think. The important work is already done by the time he gets there, as he has, in effect, found that the Act is unjustifiable. Had he not so found, he would have upheld it without ever getting to section 1, just as the Court of Appeal upheld the citizenship oath in McAteer.
Last but not least, Justice Morgan’s emphasis on partisanship as the fundamental problem with the Act is also misguided. For one thing, as tempting as it might be to say that partisanship can never be a sufficient justification for restricting Charter rights, the Supreme Court has in the past upheld laws that protect political incumbents from criticism, notably in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. I think the Supreme Court was wrong to disregard the partisan valence of that legislation, but this shows that it will often be difficult to disentangle partisanship from other, specious considerations. Indeed, Justice Morgan himself suggests that a statute that is “a hybrid of policy and partisanship” would deserve to be treated as fully legitimate.
More importantly, Justice Morgan’s understanding of partisanship is very narrow. It does not encompass the promotion of a state ideology that rises, if perhaps only slightly, above the “horse race” version of partisan politics. He has nothing but sympathy for governmental “protection and promotion of Canada’s national and legal culture” [58] by means of forcing those who did not agree with this culture to voice loyalty to it. Needless to say, there is a political dimension to a “national and legal culture”, especially when this culture is coercively imposed by the state, even though Justice Morgan is oblivious to this. To him the distinctions between partisanship and high principle appear obvious. To the rest of us living in 2020, they are anything but.
Consider an obvious example: the late and unlamented “statement of principles” requirement that the Law Society of Ontario tried to impose on its members. Certainly its supporters argued in terms promoting a certain high-minded vision of social and legal culture (indeed they spoke of a “culture shift”). But then again, as we now know, there is a bitter partisan division over the issue within the ranks of the Law Society’s membership. So how would Justice Morgan approach the question of the constitutionality of the requirement? And would his approach be different now than it would have been before the partisan cleavage was revealed by the success of the StopSOP campaign in the 2019 Bencher election? Whatever we might think of the “statement of principles” or its opponents (of whom I was one), or of compelled speech more broadly, I hope we can agree that this is not a reasonable way of addressing such an important issue.
Of course it is a good thing that the Act is no more, and that the Ontario government, if it wants to continue its anti-carbon-tax propaganda campaign, will have to do it by itself, rather than by means of conscripting third parties. I have argued here that such ideological conscription is wrong when it serves to supposedly advance some rights-protecting agenda. It is no less wrong, obviously, when its aim has to do with fiscal and environmental policy. Governments have plenty of resources at their command. If they want to propagandize, they have no need to get unwilling individuals to do it for them.
Yet, the state of the law on compelled speech, and indeed on freedom of expression more generally, in Ontario at least, is cause for concern. It’s not just that few restrictions on freedom of expression are ever struck down. More importantly, the courts fail to understand what free speech means, and why it matters. Justice Morgan’s reasons for striking down the Act illustrate these failures just as much as his and the Court of Appeal’s earlier reasons for upholding the citizenship oath did.
Double Aspect 