Don’t ask, don’t tell?

No, it’s not a post about gays in the U.S. armed forces. That’s so passé anyway. Actually, what I want to talk about is co-operative federalism again, the fascinating topic of the least-read post on this blog. (To the one brave soul who did read it: I love you, whoever you are!)

More specifically, it is about the question whether one level of government in a federation has to accede to the demand of the other for information in its possession. (My title is not totally gratuitous.) This question was raised in the recent judgment of the Superior Court of Québec on the validity of a subpoena issued by a provincial commission of inquiry demanding that the RCMP hand over large amounts of information it collected while investigating organized crime in Québec’s construction industry. Coincidentally, it is also the topic of an interesting forthcoming article by Robert Mikos, of Vanderbilt University Law School.

As prof. Mikos points out, for one government (that of a U.S. state in his paper) to hand over information it has collected to the other government has certain costs. The most obvious, albeit often not a large one, is the direct cost of the time government employees spend working, in effect, for someone other than the people paying them. More subtly, citizens might be discouraged from handing over information to one government if they know that it can end up in the hands of the other. Most importantly, the government which complies with the request for information thereby participates in the enforcement of the policies of the other government, which might be at odds with its own. For example, if a state which allows the medical use of marijuana hands over information about its users  to the federal government, which does not, it possibly helps the federal government arrest and imprison the people who in the state’s opinion are entitled to use the drug. Finally, “such commandeering of the states’ information-gathering apparatus blurs the lines of accountability for unpopular enforcement actions.”

Yet so far, American courts have not accepted these arguments, explains prof. Mikos. He argues that they are wrong, and that federal requests for information held by the states should be considered equivalent to the “commandeering” of their executives by federal authorities, which the U.S. Supreme Court has held to be unconstitutional. This would allow states to resist federal policies with which they disagree and better to give effect to their own.

Compared to these high-minded concerns, the questions at issue in the Québec case, Canada (Procureur général) c. Charbonneau, 2012 QCCS 1701, might be rather pedestrian. At least it does not appear from the judgment that the federal government or the RCMP are opposed, as a matter of principle or policy, to Québec’s inquiry into the shady dealings in its construction industry and that industry’s unsavoury links with the provincial government. (Might this change if the inquiry uncovers links between that industry and the federal government, as a report by the Globe & Mail suggests it well may ?) But given the sheer volume of the information it is asked for, the RCMP is probably concerned about the costs of complying with the request, as it is with preserving the secrecy of its inquiry methods and sources. The court, however, suggests that these concerns are overstated and/or capable of being addressed by the RCMP’s co-operation with the commission of inquiry and with provincial police. As for the constitutional position, the court holds that a commission of inquiry set up pursuant to provincial law can validly subpoena the RCMP and request information in its possession, so long as it does not inquire about the RCMP’s administration. The RCMP, as the Supreme Court has held, is not part of the civil service, and does not enjoy the same immunities from provincial inquiries as the federal Crown or its servants.

Unlike, it would seem, in the U.S., such immunities do exist in Canadian law, and there seems to be no reason for their not applying to provincial, as well as federal government, since provinces and the dominion are constitutionally equal. As the Supreme Court held in A.G. of Québec and Keable v. A.G. of Canada et al., [1979] 1 R.C.S. 218, provincial law cannot authorize a provincial commission of inquiry to force the federal Crown, its ministers or servants, to answer questions or to hand over information. I would assume that the limits that apply to commissions of inquiry also apply, a fortiori, to the federal or provincial civil administration. But this is an area of the law with which I am not familiar, so I have many questions that I do not the answer to, and cannot, at the moment, investigate. For example, if the RCMP is not a part of the civil service, what other federal and provincial agencies could be forced to hand over information? How frequently does this happen? Are issues of policy disagreement between provincial and federal authorities as serious in Canada as in the U.S.?

Two observations in conclusion. First, the gun-registry data litigation, about which I have blogged profusely, is in a sense an example of a government trying to get information from another, albeit with a (big) twist, in that its claim is largely (but not entirely!) based on its own contribution to the collection of this information. And second, whatever limits there might be on what one government can force another to do, there are probably none on what they can agree to.

Religion in School 101

U of T professor Ed Morgan has an excellent op-ed in the Globe on the topic of the place of religion in Canadian public schools, which reviews the relevant case law.

Schools, he explains, cannot themselves endorse religious beliefs qua beliefs (though they can teach about them as facts): “A state agency simply cannot tacitly endorse denominational prayer, especially in a school environment.” The key reference on this point (which he does not name, according to the conventions of the op-ed genre) is Zylberberg v. Sudbury Board of Education.

However, schools may not censor the expression of religious beliefs by their students, as happened recently in a Nova Scotia case about which I blogged here, short of the expression in question becoming hate speech. That expression of belief in one set of religious canons is often (perhaps always) also the expression, implicit or explicit, of belief that (all or most) other sets of religious canons is wrong does not make it hate speech.

Prof. Morgan concludes:

In short, Canadian law generally restricts school authorities from promoting religion, even passively by holding voluntary classes and prayers. It generally does not restrict students from promoting religion, even actively by wearing it on their sleeve or chest. That’s a lesson school boards and principals need to study.

Indeed.

UPDATE: There are two qualifications to be made to prof. Morgan’s exposé.

First, religious speech in schools, at least by teachers (and indeed religious speech by teachers outside schools), can be curtailed not only when it becomes criminal hate speech, as defined by the Supreme Court in R. v. Keegstra, a case prof. Morgan quotes, but also when at amounts to discrimination in human rights law sense. Speech that creates “a ‘poisoned’ environment within the school system” can amount to discrimination, as the Supreme Court held in Ross v. New Brunswick School District No. 15, to which prof. Morgan also refers. Although the case is about teachers, and they can surely be held to higher standards than students, it seems reasonable to believe that school authorities have the power, and indeed the duty under human rights law, to prevent the school from becoming a “poisoned environment” as a result of students’, and not just teachers’, speech. However, prof. Morgan is right to argue that this is still a demanding standard, and mere expression of religious belief, even fervent expression, does not meet it.

And second, the Constitution Act, 1867, protects those public religious schools that existed at its entry into force. Indeed, it obliged Ontario and Québec to maintain, respectively, public Catholic and Protestant schools. The requirement is no longer in force as to Québec, following a constitutional amendment in 1997. This is an anachronism today, but in 1867, it was an essential guarantee, without which Confederation might not have happened.

Life is Wasted Without Freedom

A high school student, William Swinimer, is now suspended from his school in Nova Scotia for wearing a t-shirt with the words ‘Life is wasted without Jesus’, the CBC reports. Some people apparently find that offensive. The CBC quotes the school board’s superintendent as saying that  “[w]hen one is able or others are able to interpret it as, ‘If you don’t share my belief then your life is wasted,’ that can be interpreted by some as being inappropriate.” The authorities are now apparently trying to find a “compromise” of some sort. In the meantime, the politicians have jumped in, with the education Minister supporting the school board, and the opposition critical.

Well, at the risk of offending the bleeding hearts of Nova Scotia’s education establishment, I want to say that life is wasted without freedom. And if you can’t stand the sight of an idea that you find offensive, kindly go on and bleed. It is remarkable that in 2012 it is still necessary to insist on and to fight for the recognition of the principle that freedom of expression cannot be conditional on the failure of those who see or hear a statement to take offence. If that were the condition, no statement would be protected from censorship. I, for instance, take offence at politicians and bureaucrats denying my and my fellow-citizens’ rights. (I mean it. I do find it offensive.) What then? All I can do is try to persuade people, as I am trying to persuade you, that they are wrong. What is it that could give me the right to force them to shut up?

But, they will say, their case is different because they are public officials. They have a job to do. They must preserve a nice cozy learning environment in schools, or something like that. There a couple of things to say to that.

First, if school is going to be more than a rote-learning factory, and serve to prepare people for the outside world, it is silly to want to it to be free from any controversial ideas, including claims that some ways of living are better than others. This is especially so in high school, where the students can be expected to have the maturity to deal with unpleasant and critical ideas. If it is ok to suppress such ideas in school, is it also ok in university? Why not? There’s a learning environment to foster there, and lots of bleeding hearts who might get offended. Should we summarily fire all the ethicists and political philosophers, most law professors, and countless others who are in the business of telling people that some ways of living are better than others? Or is it enough to just prohibit normative scholarship in curricula?

And second, schools are not, in fact, free from controversial ideas and value judgments. They teach – well I hope they still do – literature for example, which is full of ideas on how one ought, and how one ought not, to live. If in a discussion of Hamlet, a student expresses the view that hesitation, reflection, and soliloquies are for weaklings, should he be suspended because the less resolute, or more prudent, of his classmates find that kind of claim offensive? Or should Hamlet just not be taught, lest it give some “insensitive” kids the occasion for offending their classmates?

Censoring offence out of existence is never going to work. But attempts to do so will stand in the way of talking about not only religion, but philosophy, politics, and art. It will make the world a very boring place indeed. Life is wasted without freedom.

Judicial Review and Co-operative Federalism

I would like to return to Justice Blanchard’s reasons for judgment granting the injunction preventing destruction of Québec-related gun-registry data pending judgment on the merits in this case, about which I posted here a couple of days ago.

The case, says Justice Blanchard, is “exceptional,” “a first in Canadian judicial history” (par. 21). The reason it is exceptional is the opposition between the “diametrically opposed views of what is usually called the common good.” I think this is wrong. While the conflict between the federal and a provincial governments’ views of the common good might be especially clear in the gun-registry data litigation, there is nothing exceptional about it. Most federalism cases, certainly all cases that pit a province against the federal government, involve a similar conflict between views of the common good. For example, the federal government thinks that the common good requires a national securities regulator; Québec and Alberta think that it is best served by provincial regulators. The result is a court case. When the two levels of governments agree on a vision of the common good, the co-operate and don’t go to court, the constitution be damned. Healthcare is the prime example: neither s. 91 nor any other provision of the Constitution Act, 1867 give Parliament any role regulating and paying for healthcare, but it does both, because (and perhaps only so long as) the provinces share its view of the public good in this area, and have no inclination to challenge it in court.

What is in fact (almost) unique in the gun-registry litigation is that, as I argued in my first comments on the topic, it actually stems from a co-operative relationship – but one that has broken down. “Normal” federalism cases involve conflicts over who has the power to decide whether and how to regulate certain areas of human activity. Who, of Parliament and provincial legislatures, for example, has the power to decide (whether and) how the securities industry should go about its business. (Not, by the way, who should have this power, as a matter of economic policy; but who actually has it under the specific constitutional arrangements we have in place.) In these cases, courts are called upon to regulate the competitive aspects of federal-provincial relations. The gun-registry litigation is different because what it really is about is not competition for the power to regulate (indeed it is acknowledged that, on the one hand, Parliament has the power not to regulate gun registration if it does not want to, and provincial legislatures have the power to regulate gun registration if they feel like it); it is about “fair terms of co-operation” between the two levels of government, to borrow a phrase from John Rawls (who of course uses it in a different context).

Courts are not often called upon to police the fairness of the terms of co-operation between the federation and its constituent units, and it seems not to be sufficiently theorized. For example, critics of federalism-based judicial review (who are many in the United States, including for example Larry D. Kramer in this article) do not pay any attention to it; Jeremy Waldron’s criticism of judicial review, which is primarily (but not exclusively) directed to rights-based judicial review, is similarly incapable of addressing it. (Some judicial and academic attention in the United States has been directed at one specific problem which arises from co-operative federalism: the tendency of the federal government to attach stringent conditions to grants of funds to sub-federal units, which the Supreme Court of the U.S. addressed in South Dakota v. Dole and will address again in ruling on the constitutionality of “Obamacare.”) Yet judicial review of the fair terms of federal co-operation deserves attention as a distinct constitutional phenomenon. To give but one example, and return, in conclusion, to the gun-registry litigation, Justice Blanchard’s incredulity at the idea of an award of damages as a remedy in a federalism dispute would probably be appropriate if the dispute were, as usual, about competitive federalism; but it might be unfounded in a dispute about the fair terms of federal co-operation.

More on the Gun-Registry Litigation

Having sought – and obtained – cheap popularity with my potty-mouthed post yesterday, I now return to the (extra)ordinary world of constitutional law, and to my favourite topic so far: Québec’s attempt to gets its hands on the gun-registry data the federal government wants to destroy.

I just came across – a bit late – on the reasons for the decision of Justice Marc-André Blanchard, granting Québec’s motion for an interlocutory injunction to stay the application of the federal legislation requiring the destruction of the gun-registry data, about which I posted here and here.

The most important thing in the decision that I, at any rate, had missed in the media reports is that the injunction Blanchard J. granted not only prevents the destruction of existing gun-registry data but also requires that new data continue to be compiled, as if the registry were not abolished, at least until the trial. Québec is not challenging the power of Parliament to put an end to data collection in its merits claims; it only seeks the preservation of the status quo pending the outcome of this litigation and the possible establishment of Québec’s own gun-registry using the federal data. Blanchard J. agrees that, in case Québec succeeds in obtaining the federal government’s gun-registry data, it would make no sense to leave a gap in the data between the moment the federal government stops collecting data and Québec’s own registry is put in place, which cannot possibly be done right away.

I will note two other things. First, Blanchard J. insists on the fact that this case is an important ways novel and exceptional, especially because it results from conflicting interpretations of the public good advanced by two legislatures, both of them democratically legitimate. I think I hinted at this problem, though not exactly in the way Blanchard J. does, in the second of my observations on Québec’s claim.

And second, the federal government argued that the injunction should not issue because Québec’s harm was not irreparable since any expenses involved in re-collecting unconstitutionally destroyed data could be compensated by an award of damages. Blanchard J. rejected this claim on the basis that “it appears not unreasonable to assert that a monetary remedy in a constitutional controversy concerned with division of powers … seems bizarre” (par. 60; translation mine). Now I’m not at all convinced that this is right in the present case, which is, as the judge points out, highly unusual. But what I find really interesting is that it is none other than the federal government who seems to answer in the affirmative the question I raised on this blog: could a province recover damages for the federal government’s destruction of the gun-registry data, if that is found to be unconstitutional? I’m pretty proud I saw that one, although I still have doubts about the possibility of such a claim, and I suspect that if one were brought, the federal government’s lawyers would have doubts too.

Laïcité: le diable dans les détails

On a beau défendre la laïcité, le diable reste dans les détails. Un entretien de Radio-Canada sur le sujet de la laïcité avec un philosophe français, Henri Peña-Ruiz, est une bonne occasion pour nous le rappeler.

M. Peña-Ruiz soutient que la laïcité n’est pas hostile à la religion. Elle insiste plutôt pour s’assurer que “la religion n’engage que les croyants.” D’où l’importance de la garder séparée de l’État qui, lui, engage tout le monde. La laïcité exige une “stricte égalité” de traitement entre croyants et non-croyants. Donc “pas de privilèges, pas de droits spéciaux,” pas d’ “accomodements avec les religions.” Les traditions historiques ou culturelles, qu’on invoque pour défendre la persistence du religieux dans l’espace public ne sont pas de bonnes justifications. Il faut rompre avec le passé et les inégalités, l’oppression qui l’ont caracrtérisé. La place de la religion est donc dans la sphère privée. Si vous priez dans l’intimité de votre maison ou lieu de culte, c’est votre affaire. La sphère publique, quant à elle, doit être indépendente de la religion, de toute religion, de toutes les religions. Le principe de laïcité pourrait faire consensus si on admettait la stricte égalité de traitement.

Ces idées sont, j’ai l’impression, plutôt populaires non seulement en France, mais aussi au Québec. Or, elles sont, au mieux, simplistes, sinon délibérément trompeuses. À écouter M. Peña-Ruiz, on pourrait être porté à croire que la séparation entre le public/laïc et le privé/religieux-pour-qui-le veut est claire et plutôt simple à réaliser. Il n’en est rien. Le slogan “pas de privilèges, pas de droits spéciaux” n’a de sens que si on s’entend sur le sens des concepts de privilège ou de droit spécial, qui sont, en réalité, sujets à controverse.

Pour exiger la séparation entre le public et le privé afin de cantonner le religieux dans l’espace privé, il faut commencer par se faire une idée de ce qui est public et ce qui est privé. Ce n’est pas si simple, comme le démontre la persistance de certaines controverses bien connues. L’habillement d’un employé de l’État, est-ce public ou privé? Et celui d’un élève d’une école publique? Et ce que cet élève porte sous ses vêtements? Privé, dites-vous? Et si c’est un kirpan? À qui revient de définir le public et le privé? Et selon quels critères? Est-ce l’intention qui compte (le crucifix à l’Assemblée nationale se veut un symbole historique et non religieux; un kirpan, un symbole religieux et non une arme)? Ou est-ce plutôt quelque critère objectif? Mais qui est objectif dans ces débats?

Et que signifie le refus d’octroyer des faveurs aux religions? Quand une règle apparemment neutre a un effet disproportionné sur les adeptes d’une religion particulière (comme les règles sur l’abattage d’animaux ont sur les Juifs et les Musulmans), est-ce favoriser leur religion que de les exempter de son application, ou est-ce plutôt rétablir une égalité que la règle rompt? Ça dépend de notre définition d’égalité, et bien sûr, c’est un sujet d’intenses débats, pas seulement dans le contexte du traitement réservé aux religions. Quand l’État finance les écoles religieuses (qui dispensent aussi les cours requis par le gouvernement) comme il finance, aux mêmes conditions, les écoles privées laïques, favorise-t-il la religion en rendant l’éducation religieuse plus accessible ou ne fait-il que traiter équitablement les groupes privés peu importe leur appartenance religieuse? La encore, on peut donner différentes réponses à la question.

Je pourrais continuer longtemps – mon mémoire de maîtrise porte justement sur la question d’exemptions, et il fait plus de 40 pages à interligne simple. Mais dans ce billet, je veux simplement insister sur le fait que la simplicité des thèses qu’on lance souvent en parlant de laïcité est trompeuse, qu’elle cache beaucoup de questions difficiles, et qu’elle peut servir d’outil rhétorique pour masquer la mauvaise foi trop souvent présente dans ces débats. On peut vouloir sortir Dieu de l’espace public, mais il faut se rendre compte qu’on ne saurait sortir le diable des détails.

Quasi-Constitutional Rights?

What are “quasi-constitutional rights”? Is this a meaningful, a useful concept? Justice Lebel’s comments in a decision released last week by the Supreme Court raise the question.

The decision, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 is one of three released last Wednesday, all dealing with questions of when Canadian courts can, and when they should, assume jurisdiction over a tort action with multi-jurisdictional elements. In this case, the action was in defamation. The appellants were the publishers of a book savaging Canadian mining companies for their activities (allegedly involving massive human rights violations) in Africa. The respondents were one of these companies. The book was published in Québec, but over 90 copies were sold in Ontario, some to public libraries, and the book was promoted there. The respondents are based in Ontario, and sued for defamation there. The publishers tried to have the proceedings stayed either for lack of jurisdiction or because the Ontario court was a forum non conveniens; they argued that the respondents were engaging in libel tourism, suing for defamation in jurisdiction more favourable to plaintiffs than that in which the suit should logically have been brought (in this case, Québec). Their motion was dismissed, and their appeals rejected both by the Ontario Court of Appeal and now by the Supreme Court.

In discussing the issue of the choice of law in defamation actions, Justice Lebel wrote (for the unanimous court)

that the harm occasioned by the publication of a defamatory statement is not the publication itself, but rather injury to the plaintiff’s reputation. While the constitutional right to the protection of freedom of expression must be upheld in the crafting of the law of defamation, this Court has recognized that one of the primary purposes of the law of defamation is to protect the reputation of the individual, which was elevated to quasi-constitutional status in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. [par. 57]

As those of you who read my lament about the Charter’s unfortunate effects will recall, I am not a fan of Justice Cory’s reasoning in Hill, linking reputation to innate dignity and privacy, which I called “grasping at constitutional straws.” At least, Justice Cory did not actually speak of a “quasi-constitutional status” for the right to reputation. Justice Lebel now does. What does that mean? Continue reading “Quasi-Constitutional Rights?”

Another Gun-Registry Litigation Update

Radio-Canada reports that the safeguard order preventing the destruction of Québec-related gun registry data has been extended until the end of the hearing on the merits in June. I thought that this had already been the case, but I suppose that the previous extension was only good until the issuance of today’s opinion.

Legal and Political Questions about Student Protests

Faced with the lengthening strikes and the prospect of losing their semester – and thus having their graduation and their entry on the job market delayed – students at many of Québec’s CÉGEPs and universities have turned to the courts and have been seeking, and obtaining, injunctions forcing the schools to get back to teaching the courses they are registered for. The injunctions tend to prevent the student “strikers” from blocking entry to their schools and otherwise disrupting classes. The injunction obtained by a student in a technical programme at the CÉGEP de Saint-Laurent is, I understand, fairly typical. Other injunctions, aiming directly at student protesters, have been obtained by universities.

The law, explained for example in the CÉGEP de Saint-Laurent decision, is quite clear. Student associations do not have the same status as trade unions. They are not entitled to impose their “strike” votes on their members, as trade unions are. Students contract for education services, and pay, however little. They are entitled to have the classes they contract and pay for. They suffer great prejudice if they lose their semester. The protesters, on the other hand, can still protest if they feel like it, despite the injunctions.

Yet the courts’ stepping in to apply the law and grant these injunctions has produced an outcry, including from lawyers. The argument is that what’s going on is a “judicialization” of a social conflict; that the courts are improperly stepping in to resolve political questions. This is the issue I want to address today. What is the distinction between legal and political questions? And is a wrongful “judicialization” affecting the student protests in Québec? Continue reading “Legal and Political Questions about Student Protests”

A Belated Happy Birthday to the Charter

I wasn’t able to post yesterday, but still want to say something good on the Charter‘s anniversary. My doubts and worries notwithstanding, I believe that the Charter has done Canada a lot of good.

With Lord Acton, I believe that “[l]iberty is not the means to a higher political end. It is itself the highest political end.” And Canada is a freer country today than it would have been had the Charter not been enacted. To be sure, there are aspects of freedom which the Charter does not protect – economic freedom in particular. But in those areas with which it is concerned, it has helped curtail the state’s imposition of its views on citizens, its arbitrariness, its bigotry.  But for the Charter, we might well still have a Lord’s Day Act; we would probably still be extraditing people to face torture or the death penalty; and we would almost surely be convicting and imprisoning people on the basis of arbitrary, brutal, or otherwise disreputable actions of the police or prosecutors.

Pace legislative optimists such as Jeremy Waldron – whom I much admire as an idealist, a scholar, and a teacher – we ought to be realistic in thinking about how best to protect our right and freedoms. In some perfect world, legislatures might do the job. In other, dystopian, worlds, judges will become agents of repression worse than any legislators. But in Canada as we have known it in the last three decades, and as it is likely to be in the decades to come, the Charter and the courts that apply it have been and remain our best hope.

But as we celebrate the Charter, we must recall Pierre Trudeau’s words at its proclamation:

No constitution, no Charter of Rights and Freedoms, no sharing of powers, can be a substitute for the willingness to share the risks and grandeur of sharing the Canadian adventure. Without that collective act of the will our constitution would be a dead letter and our country will wither away. … Let us put our faith first and foremost in the people of Canada who will breathe life  into it.

We owe a debt of gratitude to the courts that have nurtured this breath of life, though not without making serious mistakes along the way; and even more so, to the men and women who have, sometimes at considerable cost to themselves, fought for the recognition of their rights. As the profiles of some of them put together by the Globe show, they have often been perfectly ordinary people; it is a safe bet that without the Charter, none of them would have been able to contribute to the freedom of Canadians in the way they did. In this way, the Charter has lived up to Trudeau’s perhaps paradoxical billing of it as “the people’s package.”

The Charter is good, but more importantly, it is ours. Let’s make it even better.