Hate Speech and Group Libel

As I promised yesterday, I want to share a few thoughts on some arguments that Jeremy Waldron makes in The Harm in Hate Speech, his book making the case for criminalizing hate speech. (Prof. Waldron’s Holmes Lectures, from which the book grew, were published in the Harvard Law review, and are available here.) I will address the main arguments of chapters 3, 4, and 5 of the book, which are, respectively, that “hate speech” should be understood as a form of group libel, that criminalizing it serves to give members of minority groups the assurance that they will be treated as equal citizens, and that while aiming at denials of dignity, the criminalization of hate speech does not and should not protect from offence. For the sake of readability, I will devote a separate post to each of these claims. This one deals with the equation of hate speech and group libel.

“Hate speech” is a notoriously slippery phrase. But, says prof. Waldron, we can go back to a different one, that was used, for example, in Beauharnais v. Illinois, 343 U.S. 252 (1952), to understand what we really ought to get rid of: “group libel.” What we want to get at are  written statements denigrating members of certain groups qua members of groups in ways that make them appear unworthy of the dignity of citizenship or, perhaps, more broadly, membership in society. Just as defamation law generally is concerned with unjustified deprivations of reputation inflicted on individuals by a falsehoods that tend to lower them in the estimation of right-thinking people, group libel is concerned with deprivations of reputation inflicted on individuals―not groups―but by making their membership in certain groups appear to make them unworthy of citizenship. And while a person can only recover damages in a civil defamation suit if he or she is identifiable as the target of a defamatory statement, criminal prosecution of group libel does not require any specific person to be targeted, because the state can justly take up the cause of all the members of the targeted group.

But there are several problems with prof. Waldron’s attempt to tie the prohibition on hate speech with the law of libel. For one thing, I do not quite understand his focus on libel (written defamatory statements) as opposed to slander (oral defamatory statements) and thus defamation generally. Prof. Waldron says that the written word has a permanence and a visibility that the spoken word lacks, and is therefore more injurious. I doubt that this is so. Take anti-Semitism. I’m pretty sure that word-of-mouth calumny contributed much more to it than, say, The Protocols of the Elders of Zions, or any other such screed, which relatively few people read. What was much more harmful was the casual prejudice of a majority who never did.

Another set of difficulties involves the differences between the law of defamation, whether libel or slander, and the prohibition on hate speech that prof. Waldron defends. A first difference concerns sort of statements that he would criminalize under the heading of group libel. Defamation law normally distinguishes statements of fact and opinion, the latter enjoying qualified immunity. But prof. Waldron explicitly refuses to make that distinction. He also says that statements such as “no Blacks allowed” are a form of group libel too, since they deny the equal membership of their targets in society, yet statements of this sort―distasteful as they are―are not defamatory, because they are not lies.

In another way though the scope of the prohibition on hate speech, as prof. Waldron envisions it, is narrower than that of defamation law. The latter imposes liability for all sorts of negative statements―not just those that present their targets as unfit for citizenship or membership in society. Prof. Waldron is only concerned with the statements of that sort. The reason is that, for him, the purpose of criminalizing hate speech is the protection of human dignity, which he takes to mean (among other things) the equal high status of every person as a rights-bearer and member of society. I have no quarrel with that understanding of human dignity, but it is not what underlies defamation law; defamation law is concerned with the protection of reputation, and fitness for citizenship and social membership is not the only thing that matters for a person’s reputation.

Finally, unlike the law of defamation, the criminalization of hate speech, at least as it is usually implemented―and I do not understand prof. Waldron to be advocating for something different on this point―only proscribes statements targeting a certain number of groups, usually defined by innate and/or relatively unchangeable characteristics (such as race, gender, sexual orientation, etc.). Defamation law, by contrast, might have started out as a mechanism for protecting the rich and powerful, but now it protects everyone. And it is not clear why hate speech law would not. If the worry is that racist statements will make racial minorities appear to  lack the rights that the majority has, should we not worry in the same way about statements such as “police are scum”? For some people at least, such statements actually imply that members of the police are inferior, morally deficient, and perhaps deserve to be deprived of rights. Should such statements be criminalized? They are in some places―Russia is one, and of course it uses the criminalization of the stirring of hatred against “identifiable social groups” as a means of political repression. But if we don’t want to follow that dubious example, we need a distinction, an explanation for why denigration of some groups is prohibited while that of others is not. The law of defamation is not a place where such a distinction can be found.

In short, I think that prof. Waldron’s attempt to define hate speech as group libel is quite weak. There are important differences between the two concepts. Now this, without more, does not mean that he is wrong that criminalizing hate speech is a good idea. But if it is, it has to be justified on its own terms, without reference to the (perhaps) less contested defamation law; that reference is only a distraction. I turn to prof. Waldron’s justification of hate speech law in the next post.

The Rear-Guard of Hatred

I am reading parts of Jeremy Waldron’s book on The Harm in Hate Speech, in which he argues that hate speech can and should be criminalized to uphold the dignity of all the members of society. I will have more detailed thoughts on it later, probably tomorrow. But for now, just an observation that has relatively little to do with prof. Waldron’s argument.

People who argue that hate speech should be prohibited often see it as a first warning of impending social breakdown; those who engage in it are regarded as the vanguard of advancing prejudice. Prof. Waldron is something of an exception here, as I will explain in forthcoming posts. But for most proponents of prohibiting hate speech, such prohibitions are hoped to be a way of stopping this advance in its tracks. Yet when we look at the actual hate speech cases, we notice that they involve not the vanguard of hatred, but its rear-guard. Consider the petitioner in Beauharnais v. Illinois, 343 U.S. 252 (1952) who wanted to prevent African-Americans from moving into white neighbourhoods; the  respondent in R. v. Keegstra, [1990] 3 S.C.R. 697, who taught his students to be anti-Semites; most recently the respondent in Lund v. Boissoin, 2012 ABCA 300, a case about which I blogged here, who published a homophobic rant in a newspaper. They were all clinging to old prejudices―prejudices that were, by the time they were charged, in retreat. To be sure, they could yet fight, and inflict some damage. Anti-Black racism was not dead in the 1950s, nor indeed is it now, nor are anti-Semitism and homophobia. But they are fatally wounded. They are things of the past, losing ground with each passing year.

I stand to be corrected of course. If you have examples of prosecutions that tried to stop the rising, rather than hurry the ebbing tides of hatred, I’d be happy to revise my views. But I doubt that there are such examples. The phenomenon I am describing is not an accident. When a prejudice is new, it is difficult for legislators, prosecutors, and courts to recognize its danger. We know that prejudice is dangerous when it has had bad effects in the past, so hate speech laws protect groups that have historically been the victims of prejudice and hatred, on the expectation that prejudice and hatred might continue in the future. But of course the very fact that such laws are enacted shows that the majority of the population, or at least a considerable part, sufficient to elect a majority of legislators, has given up on these particular sorts of prejudice, in intent if not altogether in its day-to-day life. Prosecutions under such laws are bound to be rear-guard battles.

And this, I believe, is something we ought to take into account when we think about the usefulness of prohibitions on hate speech. If the law is only ever going to catch the rear-guard, rather than vanguard or the main body of the army of hatred, is it worth the sacrifice of freedom of speech that it necessarily entails?

The Limits of Independence

I want to return to the Québec Bar’s challenge against the constitutionality of all the mandatory minimum sentences increased or created by Bill C-10, the “tough on crime” omnibus bill adopted by Parliament earlier this year, about which I blogged here earlier this week. One of the grounds of possible unconstitutionality which the Bar raises in its application is that the new mandatory minimums infringe judicial independence and separation of powers. I think that this argument is badly mistaken.

The Bar argues that judicial independence and separation of powers (which amount to the same thing, because what is at issue here is the separation of the judicial power from the legislative) require that the judiciary enjoy complete autonomy in the exercise of its functions. In particular, the legislative power cannot interfere with “the law courts’ exclusive function of issuing orders based on law and evidence” (par. 92 of the application). In criminal cases, it is the courts’ role to give a sentence based on the evidence and considerations of proportionality, appropriateness and justice. This judicial function is essentially discretionary. Interference with that discretion is therefore an interference with an essential adjudicative function. And, of course, a minimum sentence takes (some) discretion away from the judge. Imposing a minimum sentence oversteps the constitutional boundaries between Parliament and the judiciary. Furthermore, the Bar submits, “this judicial discretion is necessary for judges to be able to deliver just decisions, the very foundation of the courts’ legitimacy” (par. 101).

These arguments prove too much. If they were accepted, not only the minimum sentences at issue in this challenge, but also any legislative interference with sentencing discretion would be constitutionally prohibited. Such an outcome would be neither sound in principle nor justified by the law.

If it were true that separation of powers required judges to have the discretion to set sentences that they deem just and proportional, then no statutory limits on that discretion would be permissible―neither mandatory minimums nor mandatory maximums. If untrammelled discretion in sentencing is constitutionally required, there is no ground on which to distinguish a mandatory minimum from a mandatory maximum. If, say, a judge feels that a man who stole the last piece of bread of a poor little old lady deserved a harsher punishment that the maximum of two years’ imprisonment set out in s. 334 of the Criminal Code for theft under 5000$, he ought, if we follow the Bar’s reasoning, to be constitutionally free to do so, as much as a judge ought to be free to disregard a mandatory sentence of imprisonment and not to send a man to prison for growing a couple of marijuana plants. But the Criminal Code imposes a mandatory maximum punishment for every single offence it creates―and nobody, to my knowledge, ever thought that somehow wrong. I very much doubt that the Bar thinks so. Judicial independence is important, but it does not include the power to make laws; indeed, separation of powers requires that power to be left to the legislature (subject possibly to a role for the judiciary to develop the law―but subject, in turn, to legislative over-ride). And the power to make criminal laws has always included a power to prescribe a penalty. We impose constitutional limits on this power, in particular in s. 12 of the Charter, which prohibits cruel and unusual punishment. But that has nothing to do with judicial independence. Power must be checked and limited. The legislature’s power to change the law―including in ways with which the judiciary might not agree―is probably the most important check on and safeguard against the power of the judges.

The Bar invokes a couple of Canadian cases to support its claims that sentencing discretion is a requirement of judicial independence, but in my view, its use of these precedents borders on bad faith. The first, R. v. M. (C.A.), [1996] 1 S.C.R. 500, concerned the power of an appellate court to vary a sentence imposed at trial. It is in this context that the Supreme Court held that sentencing was discretionary―within the bounds set by the Criminal Code―and therefore subject to deferential review on appeal. This does not prove that Parliament cannot limit the sentencing judges’ discretion. Indeed, the Supreme Court noted that the Criminal Code usually prescribes a maximum punishment and sometimes a minimum, though minimum sentences are sometimes subject to suspicion under s. 12 of the Charter. The other case, Ell v. Alberta,  2003 SCC 35, [2003] 1 S.C.R. 857, concerned the independence of justices of the peace. It mentions the justices’ discretionary powers over bail―not sentencing―a procedure which is thoroughly regulated by the criminal code. The Bar also invokes a Privy Council decision, Liyanage v. The Queen, but that concerned what was effectively a bill of attainder enacted as retribution against specific political opponents. As much as we may detest the government’s “tough on crime” programme, it is a far cry from that.

Mandatory minimum sentences may, in many cases, be cruel, disproportionate, and even irrational. Courts have already struck down a number of provisions imposing them, and are likely to strike down more. But judicial independence has nothing to do with it. The Québec Bar’s arguments on this point are misguided and very weak. I’d be astonished if they were accepted.

A Bar Brawl

The Québec Bar has launched a constitutional challenge against a substantial part of the Conservative government’s “tough-on-crime” agenda, Radio-Canada reports. In an application filed in Québec’s Superior Court, it contends that every provision of the the omnibus criminal law bill, C-10, enacted by Parliament this year as the Safe Streets and Communities Act, S.C. 2012 c. 1, that creates or increases a mandatory minimum sentence of imprisonment is unconstitutional. (A note on terminology: I, for one, do not wish to play the government’s game by using the tendentious and self-serving name it chose for this piece of legislation, so I will refer to it as bill C-10, even though, the bill having become law, this is not strictly correct.)

The grounds for the challenge are summarized at par. 9 of the application. The Bar argues that the mandatory minimums breach s. 7 of the Canadian Charter of Rights and Freedoms, which prohibits deprivations of liberty except “in accordance with principles of fundamental justice,” first, because they are arbitrary in that they bear no relationship to the stated objectives of the legislation, and, second, because they might result in sentences disproportionate to offences. For this reason, some of them also breach s. 12 of the Charter, which prohibits cruel and unusual punishment. Furthermore, says the Bar the mandatory minimums infringe the equality rights of Aboriginal Canadians, protected by s. 15 of the Charter. Finally, they are an intrusion on judicial functions and thus contrary to the principles of judicial independence and separation of powers.

There have been plenty of challenges against specific elements of bill C-10. I have blogged about some of them―my posts on the topic are collected here. But this is a different beast. Rather than an accused challenging the specific provision pursuant to which he is charged, this is an interest group attacking the entire policy of mandatory minimum sentences wholesale―but doing it not in the context of the political debate, but in the courts.

Yet in some ways, the application of claim reads like a political rather than a legal argument. It asserts that

minimum sentences … do not serve the public interest; respond to no real need; do not contribute to protecting citizens; and do not permit the realization of the public safety objective (par. 3; translation mine throughout).

It also points out that the vast majority of Canadians do not feel unsafe because of crime and that both the number and the severity of crimes committed in Canada has long been falling.

For the most part, though, the application elaborates the four grounds of unconstitutionality listed above. I will not discuss them in detail here. I canvassed some of the applicable principles in previous posts dealing with challenges to elements of bill C-10, and I might return to the substance of the Bar’s arguments in future posts, especially to the claims about judicial independence and separation of powers. For now, I want to say a couple of things about the challenge as a whole.

One question I want to address is whether the Bar has standing to bring a challenge of this sort. Of course, it is not accused of any crime. It argues that, nevertheless, it has “public interest” standing to bring this application in accordance with the principles set out by the Supreme Court in its recent decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which I summarized here. (Another explanation of the decision, by Pivot Legal, which represented the respondents, is here.) In that case, the Supreme Court held that public interest standing should be granted when “in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). In particular, courts should consider a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court (par. 51). The Bar argues that its challenge fits these criteria. It is a concerned with rights and liberties, has intervened in a variety of constitutional cases to protect them, and seeks to have the constitutionality of the mandatory minimums determined at once, in order to prevent the potential violation of the rights of a great number of accused.

That may indeed be so, but I do not think that the Bar’s challenge is comparable to that which the Supreme Court allowed to go ahead in Downtown Eastside. Unlike in that case, there seems to be no special difficulty in bringing constitutional challenges against mandatory minimum sentences by the traditional route―by individuals who stand accused of crimes conviction of which carries a mandatory minimum sentence. Indeed, many such challenges have already succeeded or are working their way through the courts. Now the existence of alternative routes by which a constitutional challenge can be brought is not dispositive, the Supreme Court said in Downtown Eastside. But there are other differences too. In that case, the Court emphasized the fact that the challenge was to the entire scheme Parliament adopted to regulate prostitution; such a wholesale challenge gives the court a much more complete picture than piecemeal attacks on individual provisions. Here, although the challenge aims at a large number of similar provisions, they are really quite disparate, and not part of a single scheme attempting to respond to one social problem. Finally, a crucial point about the Downtown Eastside challenge is that the groups bringing it are able to marshal substantial evidence to support their claims, evidence that individual accused would be most unlikely to bring to bear on their cases, and which is likely to be essential to the challenge’s chances of success. Here, the Bar does not seem to intend to bring any sort of evidence that would not be accessible to an accused. Its application relies largely on past decisions of courts, including for examples of cases where the new mandatory minimum sentences would have been disproportionate, rather than on social science or testimony which it would be uniquely well-positioned to gather, as the respondents in Downtown Eastside.

This brings me to the second point I wanted to make. The Bar’s challenge ill suits the very nature of the judicial review of legislation as it is understood in Canadian law. Judicial review of legislation in Canada normally happens in the context of specific disputes, with a set of facts to which the court can look to appreciate the effect of the legislation it is reviewing in real life. Of course, the facts of the case tend to be no more than a starting point; courts must also think beyond them when evaluating the constitutionality of legislation. Nevertheless, they often insist, and rightly so, on the importance of a “factual matrix” for adjudication. Adjudication, after all, is application of the law to a set of facts. It might involve other things too, like the development of the law, but at a minimum, it is that. The Bar’s challenge to the constitutionality of mandatory minimum sentences is abstract. It is a shortcut. Its very raison d’être is to avoid waiting for the relevant facts to arise. That’s not how judicial review is supposed to work.

My two cents is that the Bar’s challenge to mandatory minimum sentences will fail because the Bar does not have standing to bring it. And so it should. This is not to say that mandatory minimum sentences are a good idea, or even constitutional. But they should be challenged in real cases, as indeed they are already being all over the country.

Pity the Censor

I have started reading the WWI memoir of a British journalist, Philip Gibbs, called Now It Can Be Told. At least part of the reason for the title is that during the war, what he saw could not be told because of military censorship. Gibbs’ description of the censors’ modus operandi is worth quoting at some length:

It seemed the G.H.Q.―mysterious people in a mysterious place―were drawing up rules for war correspondence and censorship; altering rules made the day before, formulating new rules for tomorrow, establishing precedents, writing minutes, initialing reports with, “Passed to you,” or, “I agree,” written on the margin. The censors who lived with us and traveled with us and were our friends, and read what we wrote before the ink was dry, had to examine our screeds with microscopic eyes and with infinite remembrance of the thousand and one rules. Was it safe to mention the weather? Would that give any information to the enemy? Was it permissible to describe the smell of chloride-of-lime in the trenches, or would that discourage recruiting? That description of traffic on the roads of war, with transport wagons, gun-limbers, lorries, mules―how did that conflict with Rule No. 17a (or whatever it was) prohibiting all mention of movements of troops?

This brought to mind my post about the struggles of the Alberta Court of Appeal in defining hate speech. To be sure, there is a great deal of difference between trying to eliminate one particular, and narrowly, if imprecisely, defined sort of undesirable speech and the sort of comprehensive censorship which Gibbs describes. There might also be a difference―at least the common law’s traditional position was that there was a great difference―between “prior restraints,” the requirement of the state’s permission to publish (the imprimatur―”let it be printed”), and the possibility of punishment or liability after publication.

Still, the two cases illustrate just how difficult any attempt to prohibit some speech on the basis of its content is bound to be. Perhaps paradoxically, the difficulty is especially acute if the censors enforcing the prohibition try to go about it in good faith and with the general sense that they should not prohibit or punish more than is necessary. It is easy enough to be a brutal censor and just prohibit anything at all in case of the slightest doubt. But being a conscientious censor is very hard indeed.

Of course, something being difficult is not a conclusive reason for refraining from it. For instance, it is difficult to maintain the law of defamation while respecting freedom of speech, but I think that there are good reasons not to give up trying, as the U.S. pretty much have. Nonetheless, the difficulty of censorship is a good reason (among many others of course) for having as little of it as possible.

Judicial Independence, Freedom, and Duty

Judicial independence is a familiar idea, though it is also a difficult one, in more than one sense. Difficult to accept, on the one hand, because independence from political, and ultimately electoral, control seats uneasily with our notions of democracy in which political power (which judges exercise, since they make their decisions in the name of the community) must spring from and be answerable to the voters. Difficult to work out, on the other hand, because even if we agree that, democratic qualms notwithstanding, that judicial independence is a good and important thing, we are bound to disagree about what, exactly it means or requires. To what extent can the executive be involved in the administration of the courts? Can the legislature lower the judges’ salaries along with those of all civil servants? Can it fail to raise these salaries for some prolonged period of time? People, and polities, committed to judicial independence as a principle can give different answers to these questions.

There is also a more profound difficulty with judicial independence, as Fabien Gélinas points out in a short and very interesting paper. (Full disclosure: prof. Gélinas taught me constitutional law at McGill, and I worked for him as a research assistant on several projects on judicial independence, among others, though not on this one.) As prof. Gélinas says, there some confusion not only over what judicial independence is, but also over what it is for. In fact, he argues, it has two distinct purposes. One is to ensure the impartiality of ordinary adjudication. Judges need to be independent and secure in order to avoid situations where they will have or will be seen as having an interest in the case before them. No one ought to be the judge in his own case. Nemo judex in propria causa. (As prof. Gélinas observes, the maxim, in this form, is not actually Roman―he traces it to Lord Coke. The Roman law had rules to the same effect, but neither as general nor as pithy.) The second purpose of judicial independence is to guarantee that the judiciary will, along with the legislature and the executive, have what Madison called “a will of its own”, an ability to stand up to the other branches of government. Prof. Gélinas says that this is peculiarly important in the modern state, where citizens recognize the possibility that the executive, and even the legislature, will abuse their power, and must be kept in check, particularly by means of judicial review of legislation. If courts are to expose and resist the abuses of the “political branches”, they must be, and be seen to be, impartial not only as between private litigants, but also between private litigants and the government itself.

This is interesting, but I think it does not go far enough.  The focus on judicial review is unjustified. The political branches are not just involved in litigation against citizens in cases involving claims that a statute is unconstitutional. Much more frequently, citizens challenge the legality of executive, rather than the constitutionality of legislative, action, and in such cases too the judiciary must be independent in order to adjudicate impartially. But notice too that we are still speaking of impartiality here―albeit between citizen and state rather than between two citizens. I think that the second purpose of judicial independence, one that arguably goes beyond impartiality, is to avoid situations where judges become instruments of state policy, as administrative agencies can be. Even where the state is not involved in litigation, it might still want, for policy reasons, the case to come out a certain way. Depending on its political preferences, a government might like courts to favour, say, employees over employers in unjust dismissal cases, or corporate defendants over plaintiffs in product liability cases. Judicial independence is means to make sure that if a cabinet minister in such a government picks up the phone, rings the Chief Justice, and tells her about the government’s preference for these outcomes, the the Chief Justice will tell him to go to hell―and that she will not suffer for it.

Of course, the legislature can, subject to the constitution, change the law to, say, make proof of liability for a defective product easier, or to expand the definition of what constitutes just cause for dismissing an employee. But it must do so publicly, after at least a modicum of parliamentary debate, and usually prospectively, so that those affected by the change will have time to prepare for it. A change in the law is also more difficult to reverse than a change in policy, so it is less lightly to be undertaken lightly, as a matter of temporary convenience. Judicial independence does not stop the government from acting―but it forces it to act transparently, democratically and, perhaps, for good reasons rather than on a whim.

The independence of the judiciary gives judges an extraordinary freedom. Nobody can force an independent judge to decide a case one way rather than another. (Appellate courts have some control over lower-court judges of course, because the latter do not like having their decisions reversed―but they will take the chance sometimes.) They can act in ways that are deeply unpopular and retain their positions. This is precisely what is worrying about judicial independence from a democratic perspective (though if what I said in the previous paragraph is right, judicial independence is also, in some ways, democracy-enhancing). But it is worth asking ourselves what it is exactly that judges are free to do.

The somewhat paradoxical, but reassuring answer is that, by and large, judges are free simply to do their duty. This is not to deny the existence of judicial discretion in hard cases. But even in those cases,  the judge has and keenly feels a duty to decide the case, according to what the law requires, or at least to a rule that fits with the law as it stands, after having respectfully listened to the parties and taken their arguments into account, and to give the reasons for his decision. A judge who is not independent―a judge, for example, who takes orders from the government, or who worries about being confirmed in his job by the legislature, or who is underpaid and seeks to ingratiate himself with a powerful litigant―is not free to do his judicial duty.

The Confusion in Hate Speech

The Alberta Court of Appeal delivered an interesting decision on the meaning and application of prohibition on “hate speech” in the province’s human rights legislation. The case, Lund v. Boissoin, 2012 ABCA 300, concerned the publication in a Red Deer newspaper of a letter to the editor urging citizens to resist “the homosexual agenda”, and in particular the teaching of homosexuality’s acceptability in schools. The letter was intemperate and offensive. Two weeks after its publication, a gay teenager was attacked in Red Deer. Outraged by the letter and the attack, an activist brought a complaint against the author of the letter and an organization of which he was the head to the Alberta Human Rights and Citizenship Commission, saying that it contravened the provision of Alberta’s human rights legislation that prohibits publishing or causing the publication of a statement “likely to expose a person or a class of persons to hatred or contempt” on the basis of a personal characteristic, such as sexual orientation. Eventually, a tribunal found in the complainant’s favour, and ordered the respondents to apologize and to pay damages. That decision was then overturned by the Court of Queen’s Bench. The complainant appealed.

Importantly, the parties did not raise constitutional issues on appeal. The court suggests quite strongly that these issues deserve to be debated. It wonders whether the hate speech prohibition is intra vires the province, in light of the “Implied Bill of Rights” cases holding that Parliament has the exclusive power to regulate (political) speech, and whether they are in keeping with the Charter’s guarantee of freedom of expression. But since the parties do not argue these issues, the court cannot decide them, much as―one suspects―it would like to. As McGill’s prof. Fabien Gélinas writes in a paper on “Virtual Justice and the Rule of Law,” “in all but the exceptional cases, [the judge] can only answer those questions that someone cares to ask him―which are not by any means always those which he yearns to answer.”

Proceeding on the basis that the statute is constitutional, the court nonetheless must interpret it to decide what “expos[ing] a person or a class of persons to hatred or contempt means.” It must also interpret an exception to the general prohibition on publishing statements having that effect, which provides that “nothing” in the prohibition “shall be deemed to interfere with the free expression of opinion on any subject.” And it must decide whether the respondent’s letter fits the scope of the prohibition and the exception.

On the interpretation of the general prohibition, one issue was whether, in order to come within its scope, speech had to have some sort of nexus to actual discrimination or infringement of human rights. The judgment below reached this conclusion, and the provincial Attorney General, who intervened, supported it. But the Court of Appeal rejects it firmly, holding that it had no basis in the language of the statute. The narrower interpretation is the result of a “reading down” of the statute, a narrow reading designed to preserve its constitutionality where a broader one would be unconstitutional. But here there is no conclusion―though there is doubt―that the broader, “plain” reading of the legislation is unconstitutional, so the reading down is uncalled for. The other issue, of course, is the meaning of the phrase “hatred or contempt.” Relying the Supreme Court’s interpretation of the same words in equivalent federal legislation, the Court of Appeal finds that it must be a narrow one, encompassing only extreme ill-will.

Applying this interpretation to the respondent’s letter, the Court holds that it does not reach the level of extremeness prohibited by the statute. A statement alleged to expose people to hatred or contempt must be considered in context. In particular, it is important to keep in mind that in a free society, it is permissible to express opinions on the morality of others’ behaviour―and thus to say that a person’s behaviour is immoral. Here, the context was a live public debate on the appropriateness of schools’ teaching children about homosexuality. As part of this debate, an independent newspaper concluded that the views the letter expressed deserved to be brought to the public’s attention―and that the readers’ critical response to it would be enough to promote tolerance. Thus

“[w]hether offensive or not, the letter was perceived to stimulate and add to an ongoing public debate on matters of public interest, as distinct from hate propaganda which serves no useful function and has no redeeming qualities” (par. 70).

It is also the expression of an opinion on the morality of certain behaviour, which is a matter of public debate.

“Frequently, expression on these topics arises from deep seated religious conviction , and is not always temperate. It is unfortunate when some choose to express their opinions in a crude and offensive manner, but sincerely held convictions sometimes give rise to extreme polemical speech. Freedom of speech does not just protect polite speech” (par. 72).

Ultimately, says the court, reasonable people will differ about what amounts to hate speech and what doesn’t. But in its view, the respondent’s letter is nothing more than “an overstated and intemperate opinion of a writer whose extreme and insensitive language undermines whatever credibility he might otherwise have hoped to have” (par. 77).

Although it thus concludes that the letter does not come within the scope of the prohibition on hate speech, the Court considers the meaning of the exception for expression of opinions. The trouble, in its view, is that it seems to be so broad as fully contradict the general prohibition. In order to avoid interpreting one provision so as to cancel out the effect of the other, the court below blended the two is a sort of balancing exercise, treating the exception as a reminder of the importance of freedom of expression. The Court of Appeal holds that this is not the right approach. The statute’s words must be given their full effect. The exception cover all statements of opinion―but not purported statements of fact. The letter at issue, the Court holds, is an expression of opinion, and thus covered by the exception.

In effect, the Court interprets the hate speech provisions of Alberta’s human rights legislation as a prohibition on the more extreme forms of group defamation. The distinction between purported statements of fact and opinion comes straight from the law of defamation―though the law of defamation is very wary of the idea of group defamation, requiring the plaintiff to be identifiable as the subject of the defamatory statement. And there is another importance nuance in the law of defamation. It only protects statements of opinion for which accurate factual context is either provided with the statement, or is deemed to be generally known. The Court doesn’t seem to import this limitation in its interpretation of the hate speech provisions.

Overall, this case illustrates, once again, the problems with attempts to prohibit hate speech. I have some sympathy for the impulse behind the attempts (defended, for example, by Jeremy Waldron in this column). But when it comes to transforming the good intention into statutory language, the outcome tends to be hopeless vague. And judicial interpretation results in the statutes being vanishingly  narrow, yet at the same time still desperately unclear. Whether or not it is philosophically attractive, hate speech legislation is not a success.

Federalism and Judicial Review

First of all, apologies for my silence in the last 10 days. I have a partial excuse in that I gave a guest-lecture in Fabien Gélinas’ constitutional law class at McGill last Thursday, about the Rule of Law and the legitimacy of the judges’ law-creating activity, which of course had me freaking-out to prepare. But it went well―the students, with just a month of law school under their belts, deserve a lot of credit for understanding the material which was quite difficult―and I have no excuses any more, and I plan to resume a more normal blogging pace now.

There’s no shortage of material either, but I start off with more shameless self-promotion. I just posted a new draft paper, “Federalism and Democracy: A Defence of Federalism-Based Judicial Review“, on SSRN.  It is a response to critiques of judicial enforcement of constitutional divisions of power between federations and sub-federal units, such as ss. 91/92 of the Constitution Act, 1867. Although such criticism is seldom heard in Canada, it is common enough, at least in the legal academia, in the United States, and it is also an implication, albeit an unexplored one, of the general critiques of judicial review, such as that of Jeremy Waldron.

Here is the abstract:

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.

I will present it at the Third Annual Constitutional Law Colloquium at the Loyola University of Chicago School of Law in early November, and then revising it before, I hope submitting it for publication. So comments are more than welcome.

Moving the Earth

Last week, the Supreme Court issued an important judgment on the law of public interest standing. Although it might seem like a technical issue, the importance of standing, or locus standi, was already clear to Archimedes 2200 years ago, when he asserted that if given a place to stand, he would move the earth. Ok, maybe he didn’t mean that sort of locus standi, and anyway he spoke Greek, not Latin. But in law no less than in physics, if you want to move the earth, you need a place to stand.

The Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 makes finding one easier. It relaxes, or clarifies, as the Court’s judgment insists, the test courts use to determine whether to grant “public interest” standing to a party who does not have standing―simply put, the right to initiate a lawsuit―to challenge the legality or constitutionality of government action under the traditional (“private interest”) definition of standing, which requires the would-be plaintiff to have a specific personal interest in the dispute.

The would-be plaintiffs in Downtown Eastside are an organization and a former sex-worker who want to challenge the constitutionality of the Criminal Code‘s provisions relating to prostitution, which they say infringe their rights to freedom of speech, freedom of association, security of the person, and equality before the law. Since they neither stand accused under the Criminal Code provisions they want to challenge nor are likely to find themselves in that position, they have no “private interest” in the challenge. But, they say, they should be given standing in the public interest. The Supreme Court of British Columbia refused to do so; the Court of Appeal reversed that decision, and the government appealed. The Supreme Court dismissed the appeal.

Courts can grant a would-be plaintiff public interest standing when his challenge raises serious and justiciable issues, the plaintiff has a genuine interest (in a non-technical sense―this is not a legal interest, in the sense of a personal stake) in the dispute, and, as the Supreme Court put it in Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575 at 598, “there is no other reasonable and effective manner in which the issue may be brought before the Court.” But, as Justice Cromwell explains in his opinion for the unanimous Court, “no” here doesn’t quite mean no.

Rather, than a categorical bright-line rule, the test is a flexible standard, requiring the court to assess “whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). This still allows the courts to accomplish the purposes of the rules on standing: to keep away “mere busybodies” (more hypothetical than real, says the Court) and economize judicial resources; to ensure that courts will be expose to a full adversarial debate; and to keep them within the bounds of their constitutional role. At the same time, it helps enforce “the principle of legality,” which requires constitutional and statutory authorization for government action, by ensuring that no unconstitutional or illegal action can permanently escape a legal challenge.

Justice Cromwell provides (par. 51) a helpful, albeit non-exhaustive, list of factors to be taken into account in deciding “whether the proposed suit is a reasonable and effective way to” litigate an issue. These include a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court―in practice, not in theory.

Applying these considerations to the would be-plaintiffs in Downtown Eastside, Justice Cromwell finds that they favour granting them public interest standing. In particular, he considers that, contrary to what the trial judge had found, it would be very difficult for the same set of issues to be raised in any other manner. To be sure, individual sex workers or their clients are often charged under the Criminal Code’s prostitution provisions. But even when they challenge the constitutionality of the provisions under which they are charged, they do not―and cannot as of right―challenge the whole scheme adopted by Parliament to deal with prostitution. Nor do they have the sort of resources the would-be plaintiffs here will bring to bear. (Anyway, many of these challenges are not heard because the cases are resolved otherwise.) He also notes that, given the legal and social stigma prostitution engenders, potential individual plaintiffs are unwilling to come forward to bring a comprehensive challenge of their own volition.

This could turn out to be a very important decision―or not. The degree to which the circumstances in which sex workers find themselves prevent them from challenging the laws that affect them might be unique. And we have no way of knowing, for now, just how flexibly courts will apply the “reasonable and effective” standard Justice Cromwell articulates.

I will, at least for now, refrain from further commentary. That is, first, so as not to over-extend an already lengthy post. But second, and more importantly, because my NYU colleague, Trudeau Scholar, and wonderful person, Lisa Kerr, who worked on the winning side of this case with the Pivot Legal Society (which represents the would-be plaintiffs), will soon guest-blog about it here. I am very much looking forward to her comments. I’ll save mine for later, if there is anything left to add.

State, Means, and Ends

I am auditing Jeremy Waldron’s seminar on human dignity this semester. Since prof. Waldron’s rule is that auditors “must be seen but not heard” in class, I will use the blog as an outlet for thoughts and comments.

One thing we did in yesterday’s seminar was to go through the rights-protecting amendments to the U.S. Constitution and look for ways in which they can be said to rely on or further dignitarian ideas. It’s an interesting exercise, because it highlights the variety of these ideas, and shows how specific rights are connected to some of them, but not others. For example, dignity is associated with autonomy or self-direction, and the First Amendment’s protection of the “free exercise” of religion can be read as upholding that autonomy. Dignity is also associated with (high-status) equality, and the guarantee of the “equal protection of the laws” in the 14th amendment, or voting equality in the 15th and the 19th are related to that strand in the dignitarian thought. (Of course, a right can be related  to more than one facet of the concept of dignity. For example, the prohibition of slavery in the 13th amendment is related both to autonomy and to equality.)

Now there was, as I remember it, a single section of the Bill of Rights for which no one, apparently, seemed able to come up with a dignitarian explanation: the Third Amendment, which prohibits the quartering of troops in private houses in peacetime without the consent of the owner. But I think that it can actually be related to one familiar dignitarian idea: Kant’s injunction against treating persons as means to an end rather than as ends in themselves. When the government, without your consent, uses your house as improvised barracks, it treats your expense of time and/or money on building or buying and keeping up the house as means to its own ends.

The Bill of Rights contains other rights related to the same sense of dignity, notably in the Fifth Amendment, which includes protections against the taking of private property by the state without compensation and against compelled self-incrimination. (Arguably, the Canadian Charter of Rights and Freedoms is rather less protective of this aspect of dignity, but it also includes a protection against compelled self-incrimination.) Yet in other ways the U.S. Constitution (as well as the Charter) countenances and arguably even requires the use of citizens as means to the government’s ends. It does not prevent the draft, for example. It also protects the right to jury trials, which means that the state must conscript citizens to serve as jury members.

I wonder what to make of this contradiction. Is it even a contradiction, or is there some broader principle, or some distinction, that I am missing? If it is, is it wrong? Can or should we do things differently? Your thoughts are very welcome.