Dunsmuir and the Constitutional Status of the Administrative State

Have the courts built the administrative state into the constitution’s architecture?

Kate Glover, Western University

I presented some of the ideas summarized here at the ‘Re-writing the Canadian Constitution’ Conference at Boston College Law School, Boston, MA, 19-20 October 2017. This piece is part of a larger project that explores the constitutional character of the administrative state, as well as the implications of that character

The contemporary administrative state in the United States is, Gillian E Metzger writes, under siege on political and judicial fronts.[i] The attack is waged in the President’s tweets, in the administration’s policies, in budget cuts, in failures to fill administrative roles, and in Supreme Court decisions. While Metzger’s descriptive account of the state of administrative justice in America does not reflect the current Canadian experience, it still raises a question worth asking in the Canadian context, namely, would there be any legal recourse in the event of a similar “siege” north of the border?

Part of the answer to this question lies in the constitutional status of the administrative state. Does the network of public actors and institutions that make up the administrative state fall within the protective scope of the constitution? Or, more specifically, does this collection of actors and institutions fall under the protective arm of the constitutional amending formula?[ii] If the administrative state is entrenched within the architecture of the constitution, then the answer is yes. And if the answer is yes, action taken to dismantle or undermine the administrative state could be deemed unconstitutional, thwarted by an absence of the multilateral consensus required under the amending formula.

What, then, is the constitutional status of the administrative state?

The law has traditionally told a story about governance in Canada that imagines the administrative state not as constitutionally necessary, but as constitutionally permissible and, ultimately, constitutionally welcome. Administrative decision-makers are, as Justice Abella explains in Rasanen v Rosemount Instruments (1994) 17 OR (3d) 267 (CA), “designed to be less cumbersome, less expensive, less formal and less delayed”. These actors are, she reasoned, “to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly”. They are, in other words, established and operate in service of access to justice and the rule of law, but can be created – and reformed and dismantled – at the free hand of the legislature, with few constitutional constraints.

But a study of modern public law jurisprudence in Canada reveals an alternative story of governance and public justice that leads to a different conclusion about the constitutional status of the administrative state. In this alternative account, the administrative state – not in all its particulars, but in its essence and function – is a necessary or essential feature of Canada’s constitutional architecture. It follows, as noted above, that the administrative state is entrenched within the constitution and therefore tucked under the protective arm of the amending formula.

* * *

So what is this alternative account and what does Dunsmuir have to do with it?

In short, the alternative story is told by simply noticing three turns in the public law jurisprudence. Each of these turns reflects an expanded appreciation of administrative decision-makers as part of a common justice project, and together, they support the conclusion that the administrative state is now, as a doctrinal matter, constitutionally necessary. Dunsmuir and its progeny, as it turns out, are an important part of the story. They represent the first turn in the jurisprudence that is important for the story. It is in this turn that we see the emergence of the courts’ commitment to a deferential posture when engaged in review of administrative action. Relatively speaking, this posture is new. The early eras of the administrative state witnessed the courts’ active intervention in administrative decision-making. The courts relied on an expansive category of ‘questions of jurisdiction’ to justify intrusions into administrative decision-making.[iii] The message was that administrative actors were inferior decision-makers requiring strict supervision by the judiciary in the service of the rule of law.

Today, judicial resistance to administrative power has been replaced by an attitude of deference to administrative decisions, including deference on questions of law and statutory interpretation. This deferential approach emerged incrementally as the courts grappled with the challenges of relying on reasonableness as a meaningful standard of review.[iv] The commitment to deference was rooted in respect for, in the words of Professor Mullan and invoked by Justices Bastarache and LeBel in Dunsmuir, “the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”.[v] Ultimately, in the post-Dunsmuir world, defence is the norm. While correctness review remains available on some matters, reasonableness is the default standard whenever an administrative decision-maker is interpreting its home statute or statutes that are close to home,[vi] as well as the de facto default standard in a vast number of other contexts.

The second jurisprudential turn of note is witnessed in the expansion of administrative decision-makers’ jurisdiction over constitutional matters. The law has not always granted these actors direct access to, or responsibilities under, the constitution. However, since the later decades of the twentieth century, public law jurisprudence has been loosening the judicial grip on constitutional interpretation. Where do we see this loosening? Martin and Conway are two examples.[vii] Here, we see the Court invoking access to justice, administrative expertise, and constitutional logic to conclude that public officials who are empowered to decide questions of law are also necessarily empowered to answer related constitutional questions and to grant Charter remedies, unless such authority has been clearly revoked. Doré is another example.[viii] There, the Court counselled deference when reviewing decisions of administrative decision-makers that engage Charter values. Again, tracing the increasingly broad and central role of administrative decision-makers in carrying out constitutional analysis and duties seen in Baker, Conway, and Dunsmuir, the Court in Doré held that a deferential approach reflects the “distinct advantage that administrative bodies have in applying the Charter to a specific set of facts and in the context of their enabling legislature”. Clyde River and Chippewas of the Thames First Nation are two final examples.[ix] These cases confirm that the actions of administrative decision-makers can both trigger and fulfill the Crown’s duty to consult Indigenous peoples whose rights and interests are affected by public decisions. In effect, these cases confirm that administrative actors are drawn into treaty relationships, bear the weight of upholding the duties of the honour of the Crown, and share responsibility for pursuing the goal of reconciliation of Indigenous peoples and the Crown. Ultimately, this set of cases suggests that public decision-makers have a direct and close relationship to the constitution, bearing meaningful responsibility in upholding, fulfilling, and applying constitutional obligations and remedies. It is a relationship that would be difficult to reconcile with the notion that the administrative state is not itself central to the architecture of the constitution.

The third and final turn in the jurisprudence is seen in the shrinking limits on administrative powers and jurisdiction under section 96 of the Constitution Act, 1867. Section 96 protects the special status and core jurisdiction of the superior courts. In the early decades of the twentieth century, section 96 was interpreted broadly and strictly, precluding the transfer of any judicial power to administrative decision-makers or statutory courts.[x] This protectionist stance was hostile to the creation and expansion of the administrative state, severely limiting the dispute resolution and adjudicative powers that could be delegated to administrative decision-makers and the sectors in which they could be involved. On this model, the courts, and more specifically the superior courts, were at the centre of the legal system and were to be protected against the intrusion or usurping of power by the burgeoning administrative state.

In fairly short order, the interpretation and application of section 96 – and the limits it created for the creation of the administrative state – loosened.[xi] In the latter half of the twentieth century, the courts pivoted to a liberal and generous approach to section 96.[xii] This flexible approach authorized the administrative state to take up novel jurisdictions, with novelty measured against the conceptual categories of the nineteenth century, and to perform adjudicative roles that are either important to policy goals or integrated into a broader institutional setting.[xiii] With this shift, the courts have contributed to the conditions in which the administrative state can be nimble, sprawling, and directly responsive to the diverse social problems it is intended to address. Together with the other two jurisprudential turns chronicled here, this shift contributes to the conclusion that the administrative state can no longer fairly be conceived of as merely permitted. It is, rather, difficult to conceive of Canada’s constitutional architecture without it.

* * * * *

Dunsmuir is a case about the structural dimensions of the constitutional order; questions of standard of review always are.  And so its tenth anniversary is an opportunity to reflect not only on the particulars, but also on where Dunsmuir might fit within the grander constitutional vision. As I’ve argued here, Dunsmuir is part of a vision that sees the administrative state as a central part of the expansive set of institutions on which the country relies in the pursuit of a flourishing public life. Perhaps this shields us somewhat from a siege on the administrative state and perhaps by Dunsmuir’s next anniversary, we’ll know.

[i] Gillian E Metzger, “Foreword: 1930s Redux: The Administrative State Under Siege” (2017) 131:1 Harv L Rev 1.

[ii] On the protective function of the amending formula, see Sébastien Grammond, “The Protective Function of the Constitutional Amending Formula” (2017) 22:2 Rev Con Stud 171.

[iii] See e.g. Port Arthur Shipbuilding Co. v. Arthurs, [1969] SCR 85; Metropolitan Life Insurance Co v International Union of Operating Engineers, Local 796, [1970] SCR 425.

[iv] CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227. See e.g. UES, Local 298 v Bibeault, [1988] 2 SCR 1048; Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557; Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982; Dr. Q, supra; Dunsmuir v New Brunswick, 2008 SCC 9.  

 [v] DJ Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 CHALP 59 at 93, cited in Dunsmuir, ibid at para. 49.

[vi] Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61.

[vii] Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, [2003] 2 SCR 504; R v Conway, 2010 SCC 22, 1 SCR 765 [Conway].

 [viii] Doré v Barreau du Quebec, 2012 SCC 12.

[ix] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40; Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41.

[x] See e.g. Toronto Corporation v York Corporation, [1938] AC 415.

[xi] See e.g. Labour Relations Board of Saskatchewan v John East Iron Works Limited, [1949] AC 134.

[xii] Procureur Général de Québec v Barreau de la Province de Québec, [1965] SCR 772; Tomko v Labour Relations Board (Nova Scotia), [1977] SCR 112; The Corporation of the City of Mississauga v The Regional Municipality of Peel et al, [1979] 2 SCR 244; Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714.  Indeed, the case law shows that over the past several decades, on the occasions when administrative decision-makers are challenged on section 96 grounds, the vast majority are unsuccessful. See e.g. R v Morrow, 1999 ABCA 182; Campisi v Ontario, 2017 ONSC 2884; Northstar Lumber v USWA Local 1-424, BCCA; Council of Canadians v Canada (AG), [2006] OJ No 4751 (CA); Air Canada v Canada (Commissaire de la concurrence, [2003] 18 Admin LR (4th) 14 (QCCA); Spellman v Essex (Town), [2002] OMBD No 784; Cameron v Sparks; Teal Cedar Products Ltd v British Columbia (Minister of Forests), 2008 BCSC 239; Pye v Pye, 2006 BCSC 505; Saskatchewan (Workers’ Compensation Board) v Saskatchewan (Board of Inuqiry), [1998] SJ No 503 (Sask Ct QB). Contra: Halme’s Auto Service Ltd v British Columbia (Regional Waste Manager), Decision Nos. 1998-WAS-018(c) & 1998-WAS-031(a) (Environmental Appeal Board).

[xiii] Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714; Reference re Amendments to the Residential Tenancies Act (NS), [1996] 1 SCR 186.


The Charter Conscription

The trouble with governments forcing citizens to advance their constitutional agendas

In his Policy Options post on the federal government’s denial of funding under the Canada Summer Jobs Programme to those who do not share its views on reproductive and equality rights, Brian Bird wrote that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”. As I have already noted here, I think this observation is fundamentally correct. But Mr. Bird’s metaphor doesn’t quite capture what is going on.

It is not just, or perhaps even so much, that the Canadian Charter of Rights and Freedoms is being used as a weapon against citizens. After all it is true that, as Jennifer Taylor pointed out in her defence of the government’s policy in the CBA National Magazine, anti-abortionists “are free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen”, though the space for advocacy is being narrowed ― a point to which I will return. But if the Charter is not yet being used to take away people’s rights (except when it really is, as in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038), it is already being help up as a banner under which increasing numbers of citizens must be conscripted to advance the government’s agenda of protecting some real or purported constitutional rights.

The federal government’s endeavour to enlist the recipients of Canada Summer Jobs funding in the service of productive Charter and “other” rights, and Charter values too, in the bargain, is not an isolated one. In Nova Scotia, Ontario, and British Columbia, law societies ― which are, though people apparently forget this, not private clubs but regulatory instrumentalities of the state ― have sought to ensure that law schools respect the equality rights of gays and lesbians by denying accreditation to one that conspicuously fails to do so. In Ontario, the law society is also demanding that all lawyers acknowledge an (inexistent) obligation to “promote equality, diversity and inclusion”.

In this context, the insistence of Ms. Taylor and what few other defenders the federal government has that “[t]he government shouldn’t be funding activism against constitutional rights when the Constitution is the supreme law of Canada” is rather selective. While the issue in the case of the Summer Jobs Programme is public funding, in other cases it is accreditation or licensing that cost the government nothing (or, in the case of lawyer licensing, is highly lucrative). Yet the government’s reasoning in these different cases is essentially the same. It seeks to ensure that individuals or groups subject to its control act consistently with its agenda, defined ― hypocritically, as I will presently argue ― as a constitution-protecting one. Whether the instrument, in each case, is a subsidy, a license, or some other regulatory tool, is beside the point ― certainly as a matter of political morality but also, I would suggest, as a matter of constitutional law.

Now, the professed adherence of those who would force others to advance their “constitutional” agenda to the Charter is, in my view, selective to the point of hypocrisy. I have already argued, here and elsewhere, that the federal government in particular is guilty of “playing favourites” with the constitution, as indeed are large parts of Canada’s legal community. Something similar is happening here too. For instance, the self-anointed defenders of the Charter ignore its section 32(1), which provides that the “Charter applies … to the Parliament and government of Canada … and … to the legislature and government of each province”. The Charter, by its own terms, does not apply to or bind private parties, and it is wrong to invoke it to justify the imposition of rights-protecting obligations on those on whom it was not intended to impose any.

And then, there is the fact while governments seem increasingly happy to impose their duty to uphold some Charter rights on others, they would do no such thing with other rights, which they deem less pressing or less in need of widespread compliance. For example, while Law Societies are much alarmed by the fact that a law school might discriminate on the basis of sexual orientation, nobody seems especially concerned by the fact that a different law school in the same province apparently conditions its hiring decisions on the prospective candidates’ commitment to social justice or “equity in scholarship” ― freedom of opinion, academic freedom, and the right not to be discriminated against on the basis of political belief be damned. The federal government doesn’t want to fund anti-abortionists, but would it object to funding, say, a women’s group working to dilute the presumption of innocence or other protections available to men accused of sexual assault? Or would deny benefits to a crime-victims’ group campaigning against the Supreme Court’s understanding of the right to be tried within a reasonable time?

These last two examples show, by the way, that, as much as we may love the Charter, the precise contours of its protections can and ought to be debated ― and that it’s not a given that the scope of what are currently recognized as Charter rights should never be restricted. Now, I hasten to add that I personally think that undermining the presumption of innocence would be disastrously wrong, and I’ve argued here that the Supreme Court’s decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, which imposed strict time limits on criminal trials, is more defensible than its numerous critics allowed. But these are my opinions, and I really don’t think that the government should seek to impose them on those who happen not to share them. Similarly, I do not think that the government should seek to impose the Supreme Court’s misguided opinions about the purported “rights” of trade unions on people like me. One can support the constitution while seeking to have it amended; one can certainly support the Charter while seeking to have some interpretations of it by the Supreme Court overturned; and, in any case, in a free society, no citizen ― as opposed to an office-holder ― is under no a duty to support the constitution at all.

But governments and their acolytes have no time for such complexity. They are convinced that anything less than enthusiastic universal support for whatever definition they happen to espouse of whatever rights they happen to prioritize is a threat to these rights and to the constitution as a whole. This is simply not so. To Ms. Taylor “[i]t seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students”, since funding anti-abortionists would threaten “the Charter rights of women, like the right to autonomy over their own bodies”. What should, instead be self-evident, though it manifestly isn’t, is that anti-abortion advocacy, whether federally funded or not, does not by itself impede anyone’s access to abortions. Unless governments themselves decide restrict access, this advocacy is so much hot air. Similarly, the creation of a homophobic law school out in British Columbia doesn’t reduce gays’ and lesbians’ access to any of the other law schools in Canada. And, needless to say, my or anyone else’s failure to “acknowledge” a purported obligation to “promote equality, diversity and inclusion” doesn’t take anything away from the rights that various persons or groups have under the equality-protecting provisions of the Charter or human rights legislation.

Yet in all these situations the existence of expression that contradicts rights claims (such as anti-abortionist propaganda) or indeed silence that is often unfairly interpreted to do so (such as failure to “acknowledge” whatever “obligations” the Law Society of Ontario invents) is deemed harmful. There is, in reality, no harm other than the hurt feelings of vocal factions ― whose membership is in no way coterminous with the groups on whose behalf they purport to speak. But if someone’s hurt feelings give the government the right to impose that person’s views on everyone else, there is nothing the government cannot do. Under the guise of an impassioned defence of the Charter, those who adhere to this logic of empowering government are actually working ― wittingly or not ― to remove constitutional barriers on its powers, so that the full weight of these powers can be brought to bear on ideological minorities.

Already, the room for dissent is shrinking. To repeat, Ms. Taylor points out that anti-abortionists remain “free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen” (emphasis mine). But, as the emphasized part of that sentence suggests, some spaces for public advocacy have already been closed off to them. In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734, the Alberta Court of Queen’s Bench upheld a city’s decision to ban anti-abortionist advertising, which was neither especially strongly worded nor particularly visually upsetting (though the website of the organization promoting was both), from its public buses. It was, I have argued here, a “disturbing if not perverse” decision, inconsistent with Supreme Court precedent; I further explained that its reliance on a specious argument to the effect that the people who might see the ads at issue were a “captive audience” was specious and unsupported by authority. But there it is ― and if the decision stands (there is, I take it, an ongoing appeal), governments will be allowed to ban the communication of anti-abortionist ― and otherwise obnoxious ― messages except perhaps to those who already agree with them. And of course, they will not need to stop at censorship. On the same logic that allows government to deny subsidies to organizations based on their views or agendas, it should be possible to deny them or their donors tax credits, which after all are just another form of subsidy, putting them at a distinct disadvantage when it comes to fundraising too. Nor need the government stop at interfering with the freedoms of ideologically-driven organizations. How about requiring anyone who wants to receive money from Employment Insurance or Old Age Security to submit an “attestation” similar to the one required of applicants to the Summer Jobs Programme? They too might use their money to advocate against abortion rights! There is nothing in Ms. Taylor’s ― or the federal government’s ― position that would prevent such an imposition.

The constitution binds the government. It limit its freedom of action. It does not, however, bind, constrain, or even command the unconditional support of citizens or the organizations that citizens form. The government cannot conscript citizens into a pro-constitutional task force; it cannot bind them to constitutional obligations in a way the constitution itself conspicuously does not. Citizens remain free peacefully to challenge the constitution in whole or in part, and to contest the way in which it has been interpreted by the courts. The government may not demand that citizens refrain from doing so, or induce them to refrain. The government, to be sure, need not encourage or subsidize contestation ― but only so long as it does not encourage or subsidize support either. If money is offered, it must be offered on equal terms to the holders of all views. And if this means that less money will be offered in various programmes, subsidies, and tax credits ― so much the better.

The NZBORA and the Noble Dream

Introducing my new paper on the whether the idea of dialogue about rights between courts and Parliament makes sense in New Zealand

Last year, I posted here about a decision of the New Zealand Court of Appeal, Attorney-General v Taylor, [2017] NZCA 215, which held that when a court found a statutory provision inconsistent with the New Zealand Bill of Rights Act 1990, it had the power to make a formal declaration to this effect, in some circumstances anyway. As I noted in that post, the Court of Appeal invoked the idea of constitutional dialogue between courts and Parliament to support its view that courts had an inherent power to make such formal declarations, despite the absence of an explicit authorization in the Bill of Rights Act. I noted, too, that I was skeptical about the usefulness of that idea in New Zealand.

I developed these initial thoughts into an article which the New Zealand Universities Law Review published over the holidays under the title “Constitutional Dialogue: The New Zealand Bill of Rights Act and the Noble Dream“. Here is the abstract:

In its recent decision affirming the courts’ power to issue “declarations of inconsistency” between legislation and the New Zealand Bill of Rights Act 1990, the Court of Appeal embraces the notion of a “constitutional dialogue” between the judiciary and Parliament regarding issues of rights. It suggests that, since both branches of government are engaged in a collaborative process of giving effect to the Bill of Rights Act’s provisions, Parliament can be expected to take the courts’ views on such matters into serious consideration.

This article questions the suitability of the notion of constitutional dialogue to New Zealand’s constitutional arrangements. The idea of dialogue, largely developed as a means to alleviate concerns about the “counter-majoritarian difficulty” that arises in jurisdictions with strong-form judicial review of legislation, cannot be usefully adopted to a system of very weak judicial review, such as the one put in place by the Bill of Rights Act. Dialogue may seem to be an attractive way of addressing what might be termed the “majoritarian malaise” caused by a sovereign Parliament’s sometimes cavalier approach to the rights of individuals and minorities. Yet meaningful dialogue cannot take place if one of the parties is entitled to ignore the other, which has no resources to impress its views upon an unwilling potential interlocutor.

As others have argued in the context of constitutional systems with strong-form judicial review, there is no need to attribute the positive connotations of the dialogue metaphor to a set of institutional interactions that is, in truth, very far from being a conversation, because the participants may neither understand nor be interested in understanding each other. Indeed, there is a danger that the embrace of the notion of dialogue will serve to obscure the reality that, the Bill of Rights Act notwithstanding, New Zealand’s constitutional framework remains one of essentially untrammelled parliamentary sovereignty, which can be, and sometimes is, abused.

Of course, a meditation on New Zealand’s peculiar form of weak judicial review may be of limited interest to most Canadian readers. If it is interest to you, however, I’d be happy to hear what you make of it. And at least my call for transparency about constitutional power dynamics is, I think, relevant beyond the shores on which I now find myself.

The Detestable Attestation

Thoughts on the federal government’s attempt to make religious groups capitulate to its views on abortion

The federal government dishes out money to various organizations to hire young people for summer jobs. But starting this year, the government decreed that there will be no money for any groups that do not

attest that both the job [for which young people will be hired] and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.

Despite the seeming generality (the absurd generality, as I will explain below) of this statement, the government’s focus is quite clearly on “women’s rights and women’s reproductive rights, and the rights of gender-diverse and transgender Canadians”, and more specifically on “sexual and reproductive rights — and the right to access safe and legal abortions”, which are said to be “at the core of the Government of Canada’s foreign and domestic policies”.

Predictably ― except, it would seem, for the government itself ― many religious groups, who were among the frequent recipients of funding under the summer jobs programme in the past, and whose contributions the Prime Minister himself claims to value, are objecting to this attestation. Since they do not share the government’s vision of “sexual and reproductive rights”, especially when it comes to abortions, they are reluctant to profess their “core mandate”‘s consistency with these rights. The government argues that the objectors misunderstand the point of the “attestation” ― it is enough for it that the group not be primarily anti-abortionist ― but for religious groups themselves, implying that their pro-life views are somehow not “core” is out of question. As they see it, they are being denied access to a government benefit for which they would otherwise qualify on the basis of their religious and conscientious beliefs.

They are quite right, as many commentators have already pointed out. John Ibbitson, in The Globe and Mail, equates the attestation with “making applicants sign on to a Liberal values manifesto”. In the National Post, John Ivison echoes this analysis and adds that “there is a hierarchy of rights in this country: at the apex are those rights the Liberals find agreeable, at its base are those they find abhorrent”. In a CBC Opinion piece, David Millar Haskell points out that the government’s insistence that religious organizations can sign the attestation “shows a complete lack of awareness of what it means to be ethical”, because it cannot be embraced with engaging in the “practice of equivocation and mutable morality”.  A Globe editorial points out that “[t]he Charter protects the[] freedom to dispute the contents of the constitution and its interpretation by the courts”, and that the government’s position “that arguing against a right is as bad as infringing it” is “chilling”. Writing for Policy Options, Brian Bird sums up the issue by noting that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”, instead of the “shield for citizens against the abuse of state power” that it is supposed to be.

All this, I think, is correct. Much like the Law Society of Ontario’s “Statement of Principles” requirement, the “attestation” is a values test that conditions eligibility for a public benefit on the would-be recipient’s agreement with the government. It is an obvious instance of compelled speech and, more importantly, an interference with freedom of conscience. The government cannot ask people to profess or to express particular beliefs, even as a condition of providing a benefit. The Charter was meant to break what Steven Smith (the law and religion scholar, not to be confused with Stephen Smith, the contract theorist) recently described as “the centuries-old pattern in which governments have attempted to compel dissenters or outliers to publicly affirm and acquiesce to the dominant orthodoxy” ― the government’s attempt to invoke it to perpetuate this pattern notwithstanding.

In one of the few attempts to defend the government that I have seen, Dale Smith notes that governments always channel public funding to  causes and groups whose morality they approve of, and away from others. That much is true ― and worthy of condemnation. But Mr. Smith is missing a couple of important distinctions. For one thing, there’s a difference between a completely discretionary decision to allocate funding this way or that, and using a values test to deny funding to a beneficiary who otherwise meets set criteria on which everyone is judged. And second, I think that, as Prof. Smith suggests, there is something particularly odious about governments, not content with discriminating against citizens for their views, demanding that citizens also actively express or endorse beliefs that they do not hold.

And as for the government’s claims ― supported by Daphne Gilbert in an Ottawa Citizen op-ed ― that the objectors misunderstand the attestation, they simply ignore the fact that, when it comes to religious (and, I have argued, conscientious) obligations, the state cannot tell people what theirs are. If a religious group cannot dissociate its “core mandate” from its anti-abortionist stance, neither Professor Gilbert, nor Workforce Development and Labour Minister Patty Hajdu, nor Prime Minister Justin Trudeau is entitled to tell it that it ought to be less scrupulous.

I’d like to add a few more points which I mostly have not seen made in other critiques of the federal government’s position. The first concerns the meaning and scope of the “attestation”. While a few rights are singled out ― a point to which I will return shortly ―, on its face the “attestation” requires the support of “individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights”. What does this even mean? Quite clearly, the rights one is required to support are not limited to Charter rights, but some “other” ones as well. So how about some other non-Charter protected rights? For instance, must applicants to the Summer Jobs Programme support property rights (which, though not in the Charter, are part and parcel of Canadian law)? And then, of course, there is the question of “Charter values”, which Justices Lauwers and Miller recently noted in Gehl v. Canada (Attorney General), 2017 ONCA 319 , “are not a discrete set, like Charter rights, which were the product of a constitutional settlement and are easily ascertained by consulting a constitutional text”,  [80] and which, moreover, “can easily be in conflict”. [82] In other words, the government is asking people to “attest” to their support of an indeterminate and indeterminable set of potentially contradictory rights and “values”. This is contrary not only to the freedom of conscience, but also to the principle of the Rule of Law.

All that said, while the “attestation” is seemingly extraordinarily broad, it is obvious that its true purpose has to do with the government’s support with a fairly narrow set of equality and reproductive rights described as being “at the core of” its policy. (By the way, how “core” are these things to the government’s “mandate”, actually? I’d say that they are pretty tangential to most of what it does; the government may disagree, but this of course only makes more pressing the question of how the government thinks it can define for others what their “core mandate” is.) Mr. Ivison is right to describe this approach as constructing a “hierarchy of rights”. Reproductive and equality rights are at the top; their advancement is the government’s priority. In the middle, a vast number of unknown “other rights” are ostensibly important too, but the government doesn’t seem to care about them very much. And at the bottom, as Mr. Ivison says, are those rights ― like freedom of conscience ― that get in the way of its agenda. The reason I dwell on this, though, is that this is not the first time the government has done something like this. In the context of the Court Challenges Programme, of the celebrations of constitutional anniversaries, and of proposed legislation supposed to foster Parliament’s engagement with the constitution, the government plays favourites with constitutional provisions, playing up its commitment to some while ignoring others. The government is treating the constitution not as a binding constraint, but as a political prop, to be used in order to advance its agenda, ignored when unnecessary, and overridden when inconvenient.

My concluding observations concern the reasons the government got into this mess, and the way we might avoid repetitions in the future. We have come to accept the idea, of which Lord Acton warned as a great danger in his Lectures on Modern History, of the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”. (289) In its role as promoter of wealth, the government  decides to subsidize youth employment ― having first made young people unemployable thanks to minimum wage laws that don’t account for their lack of skill and experience enacted in its capacity of guardian of morality. And then, since it is also the intellectual guide of the nation and the mainspring of progress, the government decides to use subsidies as an occasion to inculcate the proper understanding of (some) rights to those who want to receive them. As Lord Acton realized, such a government must be oppressive; it “governs, and all other things obey”. (289) While much of the criticism of the “attestation” is couched in partisan terms, as if it were a peculiarly Liberal pathology, the truth is that the view of government from which its imposition results is shared by all of the principal federal and provincial political parties, and indeed by most of the critics. To be sure, the existence of the criticism shows that one need not be a fire-breathing classical liberal to oppose government overreach. But unless we recover something of Lord Acton’s suspicion of governmental beneficence we will never do more than fight rear-guard battles against its encroachments; we will never allow ourselves to strike back at its ineradicable tendency to overreach.

Whether groups that receive funding under the Summer Jobs Programme support (its interpretation of) human rights is none of the government’s business. Citizens are not obliged to support rights ― only to respect them to the extent that they are reflected in laws that bind them, which must be clear enough for the citizens to understand what it is that they must do. It is the government’s job to comply with the constitution ― all of it, and not just the bits it likes. But to keep the government to its proper sphere, we must first remember what that sphere is.

Squaring the Public Law Circle

Canadian administrative lawyers keep trying to reconcile parliamentary sovereignty and the Rule of Law; they shouldn’t bother

Ancient Greeks wondered whether it was possible to construct a square of the same area as a given circle using only a compass and a ruler ― to square the circle. The problem occupied some great minds of that age and of the subsequent ones, even Napoleon apparently. It took well over two millennia until it was shown to be impossible to solve. Public law has its own quadrature problem, posed by A.V. Dicey (the first edition of whose Introduction to the Study of the Law of the Constitution came out just a couple of years after the demonstration of the impossibility of squaring the circle): it consists in fitting together, albeit by means of verbal rather than geometrical contortionism, parliamentary sovereignty and the Rule of Law.

Dicey and many others since him have mostly been preoccupied by this problem in the context of fundamental individual rights, and their protection from a legislature unconstrained by a supreme law constitution. Canada eventually abandoned this attempt ― or rather cut back on it significantly, since some rights, such as that to property, remain unprotected by the Canadian Charter of Rights and Freedoms. But, to an extent that Dicey did not imagine and that is arguably without parallel in the rest of the Commonwealth, we have re-deployed our intellectual energies merely to a different application of the same problem, this one in administrative law. We are struggling to reconcile parliamentary sovereignty, which suggests giving effect to legislative attempts to insulate administrative decision-makers from judicial review, and the Rule of Law, which, as Dicey himself suggested, requires courts of justice to apply the law. We are not succeeding.

It is not for lack of trying. The majority opinion in the supposedly still-leading case on judicial review of administrative action,  Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, recognized that

[j]udicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. [27]

Dunsmuir and the subsequent cases that have fucked up beyond all recognition refined the framework that it laid down attempted to resolve this tension and to make sure that, as a Russian saying has it, the wolves are sated, and the sheep unharmed. Scholarly commentary has worked, I think, in the same direction.

The most recent example is a thoughtful post on ABlawg by Martin Olszynski. Professor Olszynski seeks to recover what he sees as Dunsmuir’s promise of reconciling parliamentary sovereignty and the Rule of Law. He proposes to achieve this by making

two inter-related changes to the Dunsmuir framework … The first change would be to reverse the presumption of reasonableness on questions of law to a presumption of correctness, which can then be rebutted for the large majority of such questions through the presence of a privative clause (this approach would be similar to that proposed by Justice Deschamps in Dunsmuir). The second related change would be to abandon the overly broad and fundamentally contradictory concept of “expertise” as a basis for deference and to replace it with the potential for democratic accountability, which ultimately is the basis for legislative supremacy.

Although the judiciary has the “training, independence, and impartiality” to claim “the upper hand in the interpretation of the law”, it ought to yield this upper hand to  legislative statements that call for deference to administrative decision-makers. Legislatures “must be respected – because they are democratically elected and accountable”. Provided they make themselves sufficiently clear by enacting “privative clauses” (provisions that typically seek to out judicial review of administrative decisions or to strictly limit it), legislatures can be made to answer for any decision to remove legal interpretation from the purview of the courts. When the legislation includes a privative clause, a reviewing court should, therefore, defer, but not otherwise ― and especially on the pretense that an administrative decision-maker is an expert by virtue of its very existence.

I agree with Professor Olszynski’s criticism of the role that the idea of administrative expertise has come to play in Canadian administrative law (which I have not fully summarized ― you really should read it). Last year I wondered here whether “the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it”, and I elaborate on my worries about “expertise” in a paper I recently presented at the TransJus Institute of the University of Barcelona. I also agree that courts should not be shrinking violets when it comes to legal interpretation. It’s their job, and it’s the think that they’re supposed to be good at. If legislatures decide to scrap some of the administrative bodies they have set up (a guy can dream, right?), the courts will have to apply the legislation these bodies are now responsible for. They ought to be able to do that.

But I am skeptical of Professor Olszynski’s suggestion that the presumption that questions of law must be addressed by courts should, in the name of democratic accountability, by rebutted by privative clauses. Indeed, I think that the idea of democratic accountability is not readily applicable in this context. Professor Olszynski argues that accountability works by pointing to his own criticism of the application of a privative clause in an environmental law case, and contrasting it with the fact “that few labour or employment lawyers would argue against privative clauses in that context”. With respect, the possibility of academic criticism does not make for democratic accountability; nor does acceptance by a relevant expert community (if indeed “labour and employment lawyers” are the relevant expert community in relation to labour law ― what about economists, for instance?) make for democratic legitimacy. How many voters have ever heard of privative clauses, never mind being able to articulate any thoughts on their desirability? To believe that legislatures can, let alone will, be held accountable for eliminating the courts’ role in legal interpretation unwisely, or even abusively, requires more optimism than I could ever muster.

I am inclined to think ― though my thoughts on administrative law are still tentative ― that in determining the standard of review we should not attempt to reconcile the Rule of Law and legislative supremacy. The reconciliation is never meant to be real in any case. The Rule of Law is, ultimately, the dominant value, because even those who claim that they want to respect legislative will refuse to give effect even to the clearest privative clauses. To take a statutory provision that says “no judicial review” to mean “deferential judicial review” is not to accede to the legislature’s desires, but to impose one’s own principles ― including the principle of the Rule of Law ― on it.

And there is nothing wrong with this. The Rule of Law, as the Justice Rand observed ― in the context of a lawless exercise of administrative power ― in Roncarelli v Duplessis, [1959] SCR 121 at 142, is “a fundamental postulate of our con­stitutional structure”. It is a constitutional principle that can, as the Supreme Court recognized in Reference re Secession of Quebec, [1998] 2 SCR 217, result in “substantive limitations upon government action” ― including, relevantly to us here, in government action aiming at reducing the courts’ powers of judicial review. By contrast, as the Secession Reference also recognized, democracy ― whether direct democracy, which was at issue in that opinion, or representative democracy, and whether accountable or otherwise ― must be confined by constitutional limitations. The Court wrote “that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy”. [72] But that’s not quite right. The Charter imposed additional restrictions on legislatures, but it did not “transform” the constitutional system, which was already one of “constitutional supremacy” under the Constitution Act, 1867.

To the extent that it is required by the Rule of Law principle, judicial review of administrative action, including correctness review on questions of law, is a constitutional requirement. This extent is the question that Canadian administrative lawyers and judges should be addressing. Virtually everyone, I think, agrees that the Rule of Law requires correctness review in at least some cases. My own inclination is to say that it requires correctness review often, and perhaps always. I might be wrong about that, but if I am, this is because I misunderstand the Rule of Law, not because I fail to account for Parliamentary sovereignty and to give effect to (modified versions of) privative clauses. There is simply no need to bring parliamentary sovereignty into the standard of review equation, thereby making it unsolvable. Unlike in mathematics, the impossibility of squaring the public law circle cannot be conclusively demonstrated (though even in mathematics the demonstration apparently did not stop enthusiasts from trying). But the futility of well over a century’s worth of attempts should, I submit, be a warning to us all.

The $100 Question, in Court

A challenge to Québec’s harsh limits on political contributions has a decent chance of succeeding

As reported last week by Le Soleil, a citizen of Québec, Yvon Maheux, is challenging the constitutionality of both the province’s $100 yearly cap on donations to political parties and some of the collateral consequences of a conviction for infringing this cap. In my view, much of the claim has considerable merit, and at least a reasonable chance of success. As I wrote when Québec was first considering lowering the amount its citizens were allowed to contribute to political parties from $1000 to $100, such a low limit is quite clearly unconstitutional, given the Supreme Court’s recognition that spending money to advance one’s political views is a form of expression that is entitled to the protection of the Canadian Charter of Rights and Freedoms.

As Mr. Maheux’s notice of constitutional question (kindly provided to me by his lawyer, Antoine Sarrazin-Bourgouin, whom I thank) explains, in 2016 he paid a provincial party, the Coalition Avenir Québec, $100 for taking part in a breakfast it organized, and then another $100 as a fee to take part in the party congress. For his trouble, he was prosecuted for breaching the $100 yearly cap on donations to political parties, provided for by section 91 of Québec’s Election Act. Section 564.2 of that Act provides that, if convicted, Mr. Maheux will face a minimum fine of $5000. Moreover, the infringement of the contribution cap is deemed a corrupt electoral practice (section 567), meaning that a conviction carries a number of additional consequences ― notably the disqualification from voting or running for office, as well as the loss of “the right to engage in partisan work”, both for five years (section 568).

This is a draconian regime. For one thing, the contribution limit is remarkably low. For another, the consequences for breaching it are astonishingly severe. Neither the Canada Elections Act nor Ontario’s Election Finance Act, for example, impose a mandatory minimum punishment for financial offences; nor do they deem making an excessive contribution a corrupt practice; nor do either Parliament or Ontario strip persons convicted of corrupt practices of their “right to engage in partisan work”. New Zealand ― which of course does not limit contributions to political parties at all, and is the least corrupt country in the world nonetheless ― does nothing of the sort either.

But does draconian, in this instance, also mean unconstitutional? The cases raises a number of distinct constitutional issues. The first is whether the infringement of the freedom of expression effected by the limitation of contributions one can make to a political party is justified under section 1 of the Charter. (That the limitation is a prima facie infringement of the freedom of expression must follow from the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although these cases concerned spending independent of parties.) The other issues have to do with the constitutionality of the various consequences of a conviction for breaching the contribution limit.

Regarding the constitutionality of the limit itself, there is no precedent directly on point, I think, but it seems to me that the Québec government will be hard-pressed to show that it is minimally impairing of the freedom of expression. A legislature is entitled to some, perhaps considerable, deference in a line-drawing exercise of this sort ― Libman and Harper indicate that the courts will accept that there ought to be some limit on contributions, and any given figure is bound to be somewhat arbitrary. Still, deference can only extend so far; there is a range of acceptable alternatives, but this range is not infinite. And even if a higher limit would (of course) be somewhat less likely to attain the legislation’s anti-corruption objectives, the issue, as Chief Justice McLachlin’s majority opinion … put it, is only “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner“. That no other jurisdiction in Canada (and perhaps elsewhere) has seen it fit to set a contribution limit anywhere near this low is a strong indication that Québec’s purposes can be substantially achieved through less drastic means.

The $100 limit also fails, I think, at the final stage of the section 1 analysis, which concerns proportionality between the rights limitation’s benefits and its effects on the rights claimants. These effects, in this case, are significant; indeed, the limit renders Quebeckers’ right to contribute financially to a political party of their choice virtually nugatory. Mr. Maheux’s personal story is an eloquent illustration of this fact. So is the simple arithmetic that shows that a donation of $2 a week would be illegal. This all is particularly galling because the Supreme Court’s law of democracy jurisprudence ― especially Harper but also, before it, Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912 ― suggested that participating in the activities of political parties was  political participation par excellence, to be valued and protected above others, as I explained here. Québec’s restrictive approach to political financing means that individuals such as Mr. Maheux can be prevented from developing their engagement with political parties, even as they are also prevented from participating in political debates as “third parties”, by spending money on advertising during electoral campaigns. Politics in Québec risks becoming even more of an insider activity ― ostensibly in the name of a fight against corruption. This makes no sense to me.

As for the consequences of conviction, there are three distinct issues. The first one is whether the disenfranchisement of those convicted, which is an obvious infringement of the right to vote protected by section 3 of the Charter, can be justified under section 1. In Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876, the Supreme Court upheld the disenfranchisement, for five years, of a member of a provincial legislature who had been convicted of trying to induce a person who was not entitled to vote to do so. Harvey was, of course, decided before Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which struck down the general disenfranchisement of prisoners serving sentences of two years or more, but I don’t think that Sauvé calls it into question. The Harvey court accepted that the temporary disenfranchisement of those convicted of corrupt electoral practices was a proportionate way of pursuing the specific purpose of protecting the integrity of elections, with which the general disenfranchisement provisions at issue in Sauvé had nothing to do.

That said, accepting that legislatures can disenfranchise people who compromise the integrity of the democratic process, the question is how far this principle extends. We wouldn’t accept, I think, the disenfranchisement of people who negligently infringe some technical rule about the reporting of a candidate’s expenses. But, again, how do we ― and, more to the point, how does a court ― draw lines? Again, I am not aware of judicial guidance on this point, but looking at what other jurisdictions do is instructive. The lists offences that are labelled as corrupt (or illegal) practices and can lead to disenfranchisement are not identical, but both federally (in section 502 of the Canada Elections Act) and in Ontario (in section 97.1 of the Election Act) the focus is on interference with the composition of electorate (involving voting under various false pretenses or, conversely, preventing electors from voting), or the process of casting ballots. An individual exceeding contribution limits is not deemed guilty of a corrupt practice. Although it is far from certain that the Charter prohibits this, there is, I think, at least a viable argument to be made for this proposition.

The next, related, issue is whether it is permissible not only to disenfranchise a person found guilty of having engaged in some form of corrupt practice, but also to deny him or her the “right to engage in partisan work”. As mentioned above, I do not think that any Canadian jurisdiction except Québec does it; I don’t know if any other democratic country does. The prohibition is an obvious infringement of the Charter freedoms of expression and of association. Can it be justified? Once more, I am not aware of judicial decisions directly on point, but it is possible to venture a few observations. One is that Québec is deliberately targeting political expression and association, which are at the heart of the Charter‘s protections. Another is that it’s not obvious how a ban on “partisan work” is connected to the integrity of the electoral process as such, or even of the political financing regime; at the very least it is seriously overbroad, because much of what might be fairly described as “partisan work” ― a term that Québec’s Election Act does not define, but uses in a number of provisions that suggest that it should be given a broad meaning ― has nothing to do with with either voting or fundraising. Third, once again the experience of other jurisdictions suggests that Québec’s ban is not minimally impairing, and indeed that it is likely quite unnecessary. And fourth, given its breadth, the ban’s deleterious effects on those subject to it surely outweigh whatever social benefits it might be said to have.

Finally, in his notice of constitutional question, Mr. Maheux indicates that he will argue that the cumulative effect of these various sanctions ― not any of them individually, mind you ― amounts to a violation of the prohibition on cruel and unusual punishments in section 12 of the Charter. The test here is whether the punishment is grossly disproportionate, compared to the one that would have been appropriate in the circumstances. This is of course a highly subjective assessment, and I am pretty skeptical of this claim as a standalone ground for constitutional challenge. If a court grants Mr. Maheux’s claims under sections 2 and 3 of the Charter, it is superfluous to consider the section 12 argument. If it thinks that the infringements of sections 2 and 3 are individually justified, I can’t imagine it holding that collectively they are grossly disproportionate; this would strike me as an odd result.

Be that as it may, Mr. Maheux’s challenge is mostly serious and, while we lack specific, on-point guidance from the courts because the provisions of Québec’s Election Act at which it is aimed are so unique, I think it has at least a reasonable chance of success ― perhaps even a very good one. At the level of political morality, the legislation that Mr. Maheux is attacking is indefensible. It is vastly more repressive than it needs to be, and appears to have been enacted in complete disregard of the rights of those affected by it (as well as of the desirability of a competitive political system). I hope that the law recalls Québec’s legislature both to its constitutional duties and to its senses.

Ceci est-il une conversation?

The Supreme Court holds we can expect our text messages to remain private, even on other people`s phones

Last week, the Supreme Court released its eagerly-awaited judgment in R v Marakah, 2017 SCC 59, holding that a person had standing to challenge the admissibility of text messages to which he was a party but which the police had seized from another’s cell phone. The Chief Justice wrote the majority opinion, in which Justices Abella, Karakatsanis, and Gascon concurred. Justice Rowe wrote a brief concurrence, raising some concerns about the future implications of the majority opinion, with which he nevertheless agreed. Justice Moldaver, with the agreement of Justice Côté, wrote a fierce, strongly-worded dissent.

Section 8 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to be secure against unreasonable search or seizure”.  This right applies when a person has an objectively reasonable “expectation of privacy” in the thing or information that is the object of the search or seizure. There is no question that Mr Marakah wanted and expected his exchange of text messages with an accomplice in a weapons-trafficking venture to remain private. But was he entitled to expect that the police would not read these messages on that accomplice’s phone?

The majority and Justice Rowe think that he was. As the Chief Justice put it, the

interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. [28]

The information exchanged in these nooks and crannies of cyberspace is, potentially, highly private, and indeed “[i]ndividuals may even have an acute privacy interest in the fact of their electronic communications”. [33] Crucially,

this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private. [37]

The fact that we might not control all the devices through which this information is accessible is not especially important. It is the information exchanged, the conversation, that is the subject of the expectation of privacy, not whatever device might allow one it view it. And even the fact the person with whom one is texting could disclose the fact or the content of the conversation does not allow the state to read it.

Justice Moldaver disagrees. For him, control is a key factor in the analysis. Justice Moldaver writes that “the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search”, and “[w]here an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable”. [98] Justice Moldaver gives a number of examples: DNA in one’s body is private, but DNA traces left on, say, the body of a victim of a crime are not; thoughts recorded in a private diary are private, but not those publicly shared online. [116] While control does not require ownership or exclusivity of access, a lack of control means that information is not in a meaningful sense private.

When it comes to conversations, including conversations conducted by text messaging, Justice Moldaver is of the view that one loses control over what one has said once one has said it. What one’s interlocutor’s phone records is “an independent record”, [128] similar to the notes one might make after a spoken conversation, and within the interlocutor’s exclusive control. Evesdropping on an ongoing conversation, or intercepting text messages as they are being sent, violates a reasonable expectation of privacy. By contrast, just as each party to a conservation is free to share a record or recollection of it, and his or her interlocutor can (subject to any applicable privacy legislation) have no reasonable expectation of privacy in that record, so it is also with a “record” of a conversation conducted via text messaging.

Here, as I see it, is one important point of disagreement between the majority and the dissent. Both are ostensibly agreed that what Mr. Marakah had, or lacked, a reasonable expectation of privacy — or, in other words, “the subject matter of the search was Mr. Marakah’s ‘electronic conversation’ with” his accomplice. [17; 111] But it seems to me that while the majority does indeed approach the case as one about the privacy of a conversation, the dissent sees it as being not about a conversation as such, but rather about a record of a conversation. To repeat, Justice Moldaver accepts that “an electronic conversation” would be private; it could not be intercepted without due authorization. But the messages stored in the cell phone of one of the parties to the conversation are not the same thing. They are like the notes one of the interlocutors took. (Hence the title of this, in reference to René Magritte’s notorious The Treachery of Images, a.k.a. Ceci n’est pas une pipe.) As Justice Moldaver suggests, we can expect not to be eavesdropped on, when having a private conversation, but not necessarily that the contents of that conversation will never be revealed to third parties. So the majority decision makes sense in light of how it understood the issue, and the dissent makes sense in light of its author’s different understanding of the case.

But which of them is correct? I personally find this a very difficult question. A number of legal issues arising out of new technologies, broadly speaking, has to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles. One of my very early posts, for instance, was about a case that concerned an attempt by a university to punish students who ranted about their professor on Facebook. Student rants about a professor are nothing new, but the fact that they were made online rather than over beers left a record for the authorities to look into and to try (unsuccessfully in the event) suppressing. In a different way, the disagreement about the way to characterize text messaging “conversations” — often created in a spontaneous way, as if the parties were together in the same room, but a permanent record for the police to look at later — exemplifies the same set of difficulties. (This might come out most clearly in Justice Rowe’s brief concurrence.) On balance, though, I am inclined to think that Justice Moldaver’s view makes more sense. The idea of a never-finished conversation, to which one is always an ongoing party, and in which one is permanently entitled to expected privacy, which seems implicit in the majority’s approach, doesn’t quite make sense to me. This is a very tentative thought, however, and a minority view, I gather.

Beyond the characterization of “electronic conversations”, the Chief Justice and Justice Moldaver also disagree about the policy implications of the Supreme Court’s decision. In particular, Justice Moldaver worries that police will not be able to access, without a warrant, “electronic conversations” that are voluntarily tendered to them by one of the parties, even when the conversations are themselves crimes, and the parties disclosing them to the police are victims. A person may, for example, receive a threatening text message, and want to show it to police officers, but it is not clear that the police will be entitled to look without judicial authorization. At best, this will complicate the work of the police; at worst, serious crimes will go unpunished. The Chief Justice responds that these difficulties can be dealt with if and when they arise. For his part, Justice Rowe is not so sure, and I take that it is because he ” share[s] the concerns raised by Justice Moldaver as to the consequences of this decision” [89] that he goes to the trouble of writing separately.

A lot, then, remains to be decided. Privacy issues have been consistently difficult for the Supreme Court, or at any rate more consistently divisive than most others. I find these issues difficult too, so I have sympathy for judges on both sides. That the majority wants to be protective of privacy in a way the majority in R v Fearon, 2014 SCC 77, [2014] SCR 621 (which I criticized here) was not is heartening. (Some people on Twitter were wondering how many of the judges had got smartphones in the meantime. A cynical question, perhaps, but I’m not well placed to critcize those who are cynical about judges, am I?) The question now is whether the pendulum has swung too far in the direction of privacy. It might have, but we will have to wait to find out.