For Your Freedom and Ours

Honouring and learning from the 1968 Red Square Demonstration

Fifty years ago today, on August 25, 1968, eight men and women came out on Red Square to protest against the Soviet invasion of Czechoslovakia.

They held up some banners, perhaps the most famous of them (pictured) repurposing the old Polish slogan “For our freedom and yours“, originally used to protest the Tsarist empire; for this protest by Russians, the words became “For your freedom and ours”. It only took the KGB a few minutes to attack the protesters (one of whom had several teeth knocked out), break up their banners, and arrest them. One gave in to pressure to declare that she had been there by accident; the others did not. Five were put on trial and sentenced to the Gulag or to exile. Two ― Natalya Gorbanevskaya, who had recently given birth (and come to the Red Square with a stroller!) and Viktor Fainberg, the one who had had his teeth knocked out ― were instead declared to be mentally ill and interned in psychiatric institutions, avoiding the Soviet authorities the embarrassment of putting them on trial.

I think it is worth commemorating this protest, not just to honour its participants, but also because they have something important to tell us about what it means, and what it can cost, to be free. A number of them spoke to Vladimir Kara-Murza Jr. for a documentary on the dissident movement in the Soviet Union (the discussion of the 1968 Red Square Demonstration is here), and their thoughts are relevant not only to historians, or to those struggling against regimes that are generally recognized as authoritarian, but also to anyone trying to resist a stifling atmosphere of unfreedom that can exist even in the absence of overt repression, and even in the midst of widely professed belief in free expression.

Freedom has two aspects: internal and external. Free individuals are free thinkers; they do not accept received wisdom, prevailing opinions, and common sense as dogma. Free individuals are also free agents; they act consistently with their sense of right and wrong. Meaningful external freedom, freedom of action, is not possible without internal freedom, freedom of thought. But freedom of thought alone is insufficient. One might be able to count oneself as a king of infinite space while bounded in a nutshell, but not, as we know, if one has bad dreams. And one of the points that that Mr Fainberg makes in the documentary is that “bad dreams” are the inevitable consequence of not acting in accordance with one’s understanding of how one ought to act: “the biggest fear” a person can have, he says,

is fear of the past. Because if you’ve betrayed yourself in the past, if you betrayed your own dignity, you will have that worm inside you, which will eat you from inside, in the present and in the future, and you will not be able to escape it.

This is a point I have already made here, quoting from JS Bach’s St John Passion, where Peter laments his own inability to escape “the pain of [his] misdeed”, his betrayal.

To be free, then, is both to think and to act for oneself, and not on the demand of authorities. Just what acting for oneself involves will depend both on the individual and on the circumstances ― sometimes, it means to worship or preach, sometime to speak or write, sometimes to get together with others on the public square and try to shame the government. All these actions, however, are in some sense public, visible, even ostentatious. To repeat, purely internal freedom, though it may be of some value, is in the long run unavailing. On the contrary, to think freely and to fail to act on these thoughts is to set oneself up for bitter shame and remorse. A free thinker will become a free agent, if only to avoid this outcome. As Gorbanevskaya put it in the documentary, the protest, for her, was a way to ensure that she would “have a clean conscience”. This is no doubt somewhat false, or at least uncalled for, modesty. Protesting, on Red Square, against a defining policy of the Soviet government was an act of incredible bravery. But it is not to slight the protesters to say that they feared a guilty conscience more than the KGB and the Gulag. On the contrary.

The Soviet authorities in 1968 knew this. This is why they took no chances. They did not just stop people from acting. They did their best to impose uniformity of thought. They never fully succeeded, of course, but they never stopped trying. They demanded that all Soviet citizens, especially educated ones, devote years to the study of Marxist “classics”; they forbade “hostile” or “subversive” book being published or even read; and they demanded loud, public, professions of commitment to the ideology and policies of “the Communist Party and the Soviet Government”, the louder and more public the more significant ― or suspect ― the target of the demands was. As Orwell understood so well, forcing people to speak in particular ways meant forcing them to think in particular ways too.

Yet paradoxically the authorities’ obsession with ensuring that all Soviet citizens thought alike gave the few who thought differently a power of their own. In Gorbanevskaya’s words,

[a] nation minus even one person is no longer an entire nation. A nation minus me is not an entire nation. A nation minus ten, a hundred, a thousand people is not an entire nation, so they could no longer say there was nationwide approval in the Soviet Union for the invasion of Czechoslovakia.

This is why it was so important for the Soviet system to crush even the relatively few people who opposed it ― and why, in a sense, their small numbers did not matter very much. Not everyone thought alike, therefore not everyone acted alike, therefore others saw that dissent existed, and started thinking and acting freely in their turn.

Free thought is thus a standing danger to any authority that wants all those subject to it to conform to its demands. Latter-day egalitarian moralists understand this as well as the Communists of yesteryear. (And, any egalitarian moralists who might be reading this: don’t tell me that you are right, or that you are redeeming the many sins of white-man-kind; the Communists also thought that they were building heaven on earth. Including when they were invading Czechoslovakia.) Hence their shamings, their online mobs, and their demands for attestations and statements of principles. They desperately want to control people’s very thoughts and beliefs, because they sense that, if people are not made to get on with the programme in their minds, they will, sooner or later, start speaking out against the programme too, call scrutiny upon it, and expose its unexamined assumptions, its logical deficiencies, and its leaps of blind faith.

This is not to say that the moralists are quite like their forbears in every respect. They (mostly) do not beat those who disagree; they they not imprison them; they do not torture them in psychiatric “hospitals”. The pressure, for now, is mostly economic and reputational. I do not mean to make light of it; I do not mean to judge anyone who thinks it is too much; I certainly do not mean to pretend that I am braver or stronger than others. When I think of those eight who went out on Red Square that day, and of the seven who did not give in to the threats and the violence ― the real violence, not just the unpleasant words ― that they were subjected to do, I do think that the demands on our strength and courage are not yet very high. But if we do not start practising being free now, we won’t be very good at it if one day we really need to.

Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.

A Constitutional Moment

Confederation as a constitutional moment, in George Brown’s words

I take a break from talking about the Saskatchewan Catholic school funding case, and turn from dealing with unanticipated consequences of compromises struck at Confederation to the time when these compromises were being made. It is common enough in Canada to denigrate these compromises, a tendency encapsulated in the former Justice Binnie’s comment, his exit interview with the Globe and Mail, that we couldn’t possibly be originalists because

[w]e don’t have a Jefferson or an Alexander Hamilton or a Benjamin Franklin, for us to read their views on what the Constitution does or doesn’t mean. At the Quebec conference, Sir John A. Macdonald’s most memorable reflection was: “Too much whisky is just enough.” That was the guidance we got as to our Constitution.

The Quebec conference was held behind closed doors, so we don’t actually know what memorable reflections were made there. But we have plenty of other sources to consult, if we take an interest in the thought of the Fathers of Confederation. (Many of these sources are now easily available on the Macdonald Laurier Institute’s Confederation Project’s website, thanks to the hard work of my friend Alastair Gillespie.)

I think it’s fair to say that, on the whole, the Fathers of Confederation did not quite have the philosophical depth or literary talent of Alexander Hamilton and James Madison. But that is a rather absurd standard by which to measure any group of statesmen. Considered in their own right, they were much more serious thinkers, not to mention better expositors of their ideas, than they are usually given credit for. Their constitutional endeavours involved a great deal of compromise and concession, as they openly acknowledged (in contrast, perhaps, to the self-assured Publius). But if did not meditate on the meaning of separation of powers, or advance theories of federalism, or leave cryptic thoughts on judicial review for us to decipher, they carried out a practical demonstration of how to solve constitutional and political problems that was, in its own way, no less impressive ― and has arguably better stood the test of time, for now anyway.

As Mr. Gillespie’s work shows, the accomplishments of Confederation are perhaps best appreciated if presented in the words of those who made them possible. So, to finally get to the point of this post, here is an excerpt from George Brown’s speech during the “Confederation Debates”, during which the legislature of the then-Province of Canada considered whether to support the plan developed at the Quebec Conference. Mr. Gillespie’s paper on Brown does not quote it, but it made an impression on me when I read it recently, and I wanted to share it. Having noted that the candidates supporting the confederation plan have been receiving wide popular support in recent elections, Brown goes on to argue that people outside Canada ― which is to say, mostly, in the United Kigdom and in the United States ― have been noticing too:

And well, Mr. Speaker, might our present attitude in Canada arrest the earnest attention of other countries. Here is a people composed of two distinct races, speaking different languages, with religious and social and municipal and educational institutions totally different; with sectional hostilities of such a character as to render government for many years well-nigh impossible; with a Constitution so unjust in the view of one section as to justify any resort to enforce a remedy. And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away for ever.

We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel of armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy.

We are striving to settle for ever issues hardly less momentous than those that have rent the neighbouring republic and are now exposing it to all the horrors of civil war. Have we not then, Mr. Speaker, great cause of thankfulness that we have found a better way for the solution of our troubles than that which has entailed on other countries such deplorable results?

Now the last paragraph strikes me as an exaggeration. Were the differences between Upper and Lower Canada, British and French Canadians, Protestants and Catholics, truly comparable the conflict over slavery that caused the American Civil War? Brown might have been afflicted with the same blindness about the nature of that war that made Lord Acton, the great liberal, support the South in the name of preserving federalism. But he was also in a self-congratulatory mood (and readers of Mr. Gillespie’s paper will understand why Brown had cause for self-congratulation just then), and no doubt a boastful one, as any politician trying to sell others on his dearly held idea.

Yet despite his rhetorical excess, Brown was fundamentally right. It is true that the differences of religion, to say nothing of the forces of nationalism, had ― and have since he spoke ― often led to hatred, to open conflict, to outright war. The Fathers of Confederation found a way, not to sweep them away for ever, admittedly, but to create a constitutional framework within which opposing forces could be accommodated, and indeed made to work together, in a way that not only kept them at peace, but created one of the most successful polities of the last century and a half.

Contrary to what the denigrators like to say, the mid-1860s (and perhaps the longer period from the late 1850s to the mid-1870s) were a true “constitutional moment” in Canada. It deserves our respect, and our attention. We need not be uncritical of those who made this moment possible. But we profit, to this day, from their practical wisdom and political talents. We should not forget that.

First of All Our Laws

Natural law in a Québec Court of Appeal decision in 1957

Starting with the Reference re Alberta Statutes, [1938] SCR 100, but mostly in the 1950s, the Supreme Court of Canada issued a series of decisions which came to be known as upholding an “implied bill of rights” in the Canada. The actual holdings of these decisions were often relatively narrow ― they held, for example, that provinces could not outlaw political or religious ideas, because doing so was part of Parliament’s criminal law power. Yet both the obiter comments of some judges and the general trend of these cases seemed to give a fairly clear indication that the Supreme Court would, to some extent at least, resist the arbitrary exercise of both legislative and executive power in Canada, and protect civil liberties.

Understandably less well-known are the decisions of the lower courts that tended to the same effect. In Morin v Ryan, [1957] Que QB 296 (CA), for instance, the Québec Court of Appeal awarded damages to a plaintiff it founded to have been defamed by being characterized as a “militant communist” ― a decision F.R. Scott described as “a healthy check on incipient McCarthysm”. Another such decision, which I have recently come across, is Chabot v School Commissioners of Lamorandière, (1957) 12 DLR (2d) 796.  Like many of the “implied bill of rights decisions” it concerned the religious freedom of Jehovah’s Witnesses ― in this instance, in the context of a school system organized along religious lines.

The applicant’s children were attending a Catholic public school ― the only kind there was in their rural municipality. After the family joined the Witnesses, the parents wrote to the school to request that the children not be required to take part in the daily prayers and to study religion-related content. What we would now call a “reasonable accommodation” seems to have worked well enough for a while, but eventually ― perhaps after some trivial misbehaviour by the children, though many of the judges seem quite skeptical of this ― the arrangement broke down. The children were expelled, and the school authorities made it clear that they would only re-admit them on condition that they take part in the full programme of religious activities. The father sought a writ of mandamus to compel the school to admit his children with the condition that they be exempted from religious exercises.

At the Court of Appeal, the case was heard by a bench of seven judges ― testament, I take it, to its special importance. Six sided with the father. Justice Rinfret, as he then was (Édouard Rinfret, that is, not to be confused with his father Thibodeau Rinfret, the Chief Justice of Canada), dissented, protesting that

no one wants to place any obstacles in the way of the religious liberty of the appellant or his children, no one aspires to force him to send his children to the school of the commissioners; if he does it, it is of his own volition, because he wanted to; but if it is his wish and if he insists on sending them there, he is obliged to … follow the regulations [as to religious exercises and studies] established by competent authority. (826)

The law, after all, allowed religious “dissentients” to establish their own schools. If the Chabot family was one of the few or even the only one in its small town, that was not Catholic, the law paid no heed to that; they should still set up their own school, or comply with the rules of the Catholic majority.

But the court’s majority did not see it this way. For them, the issue was one of religious liberty ― and indeed of natural rights. On its face, to be sure, the case was about interpreting the applicable legislation and regulations, and deciding whether they were ultra vires the province, notably in light of some of the already-decided “implied bill of rights” cases. Justice Casey, for instance, starts by putting the case before the court in this context:

During the past few years our Courts have been called upon to consider those fundamental rights commonly called freedoms of speech and of religion, and while differences have arisen in solving specific problems, never has the existence of these rights been put in doubt. (805)

But, more than in those cases, the judges who decided Chabot were explicit in their references to implicit rights prior to positive law, which guided their interpretation and application of that law. Thus Justice Pratte says that “it appears useful to recall that the right to give one’s children the religious education of one’s choice, like freedom of conscience, is anterior to positive law”. (802) Having quoted a couple of English decisions to this effect, and a passage from Aquinas cited in one of them, Justice Pratte writes that

if one considers natural law, first of all our laws, it is necessary to conclude that children who attend a school are not obliged to follow a religious teaching to which their father is opposed. (802)

Similarly, Justice Casey was of the view that “[w]hat concerns us now is the denial of appellant’s right of inviolability of conscience [and] interference with his right to control the religious education of his children”, which rights “find their source in natural law”. (807). Justice Hyde (with whom Justice Martineau agreed), also took the position that the school authorities’ position amounted to an assertion that they could

force upon [non-Catholic children attending Catholic schools] the teaching of the Roman Catholic Church and oblige them to go through forms of worship in accordance with that faith. It requires no text of law to demonstrate that this cannot be so. (813; paragraph break removed.)

Justice Taschereau (that is André Taschereau, not to be confused with his cousin Robert Taschereau, then judge on the Supreme Court and later Chief Justice of Canada), sounded a perhaps slightly more Dworkinian note:

It would … be contrary to natural law as well as to the most elementary principles of our democratic institutions that a father could not exercise the right or fulfil his obligation to instruct his children without renouncing his religious faith (834; emphasis added.)

Of the majority judges, only Justice Owen was more cautious, saying that “[t]here are differences of opinion as to the nature of [religious freedom], whether it is a civil right or a political or public right”, although he too had no difficulty in concluding that it “is a right which is recognized and protected in Canada”, while pointing to limited legislative, and no constitutional, authority.

Now, it is not entirely clear quite what relationship between positive and natural law the judges envisioned. Certainly they were prepared to let natural law guide their choice between plausible interpretations of ambiguous legislative provisions, and either to read down or to declare ultra vires regulatory provisions inconsistent with their chosen interpretation and thus with natural law. But would they go further and actually invalidate positive law for inconsistency with natural law? None of them finds it necessary to do so, but there is at least a hint that they might. Justice Hyde seems to suggest that compliance with natural law might be a constitutional requirement, saying that the school authorities’ power to determine the curriculum

cannot be construed to override [a] basic principle of natural law. It would require very specific provisions in the Act to that effect to justify any such interpretation and then, of course, the constitutionality of such provisions would be a matter for consideration. (813)

Justice Casey might be going further still, stating that rights which

find their existence in the very nature of man … cannot be taken away and they must prevail should they conflict with the provisions of positive law. Consequently if the regulations under which, rightly or wrongly, this school is being operated make it mandatory that non-Catholic pupils submit to the religious instructions and practices enacted by the Catholic Committee then these regulations are ultra vires … and invalid. (807; emphasis added)

That said, the same Justice Casey cautions that

while in principle no one should be coerced into the practice of a religion, or subjected to compulsion in following outwardly the dictates of conscience, or prevented from practising as he sees fit the religion of his own choice, this immunity disappears if what he does or omits is harmful or opposed to the common good or in direct violation of the equal rights of others. (805)

Meanwhile, Justice Pratte suggests that Québec’s education system was designed so as to “take into account the rights of the family in the matter of education.” (800) His and his colleagues’ decision, then, might only rely on natural law the better to advance the positive legislator’s objectives, as well as to protect natural rights.

The majority’s overt invocation of natural law reads like something of a curiosity sixty years later. The rights it sought to uphold have, more or less, been subsumed in the positive protections of the Canadian Charter of Rights and Freedoms ― and, perhaps even more so, in Québec’s Charter of Human Rights and Liberties. Nevertheless, the questions the Court addresses are also very modern. The issue as stated by Justice Taschereau ― whether a parent “[c]an … be obliged to renounce his religious beliefs as a condition to the admission of his children to a public school of the school municipality where he lives?” (832) ― is exactly the same as that which faced the Supreme Court in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, the kirpan case. The answer the Supreme Court gave was not as novel as its critics keep on pretending it was, nor did it have to hinge on constitutional provisions which some of them affect to find illegitimate. Half a century before Multani, Québec’s highest court came to similar conclusions, on the basis of what it ― rightly in my view ― saw as truths antecedent to, and more permanent than, any constitution.

A Pile of Problems

A critique of Steven Penney’s take on the Supreme Court’s distinction between criminal and administrative penalties

Steven Penney has recently posted to SSRN an interesting article, published last year in the Supreme Court Law Review, criticizing the Supreme Court of Canada’s jurisprudence distinguishing the imposition of “administrative” and “criminal” penalties. People (and corporations) who risk the latter kind of penalties ― “true penal consequences” as the Court calls them ― benefit from a variety of procedural protections which section 11 of the Canadian Charter of Rights and Freedoms grants to “[a]ny person charged with an offence”. Those facing only “administrative” penalties ― which can include suspensions of licenses (to drive or to practice a profession) and fines, even fines ranging in the hundreds of thousands if not millions of dollars ― are not protected by the Charter.

Prof. Penney traces the intellectual roots of this distinction to the Canadian rejection of the “Lochner era” in American constitutional jurisprudence, which is generally thought to have involved judicial subversion of valuable economic regulation intended to protect society’s less powerful members.  Prof. Penney shares the concern that motivated this rejection, but argues that it has been taken too far. The “shadow of Lochner“, as his article’s title has it, has dimmed the guiding lights of the Charter, even as

[l]egislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law. In many instances, the sanctions accompanying these regimes are harsh, the targets are ordinary people, and the rules protecting adjudicative fairness are weak. (309)

Prof. Penney argues that section 11 of the Charter should be interpreted more broadly, to provide procedural protections to persons involved in administrative as well as criminal proceedings. The government’s ability to justify restrictions to or departures from these protections under section 1 should be enough to prevent them from standing in the way of truly important economic regulation ― but the necessity of these restrictions or departures would have to be justified.

This is an intriguing argument. I have written here about Thibault c. Da Costa, 2014 QCCA 2347, a case in which the distinction between administrative and criminal penalties was used to uphold the imposition, on a financial advisor who had swindled some of his clients, of fines that were higher than those authorized by the applicable legislation as it stood at the time of the acts. In the criminal context, paragraph 11(i) of the Charter, which entitles persons charged with an offence “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”, prohibits this. But the Québec Court of Appeal took the view that the proceedings here were not really criminal, because the fines imposed were not “true penal consequences”, and so their retrospective increase was upheld. I wrote that the decision, although legally correct, was disturbing. Prof. Penney discusses two decisions of the Supreme Court that also apply this distinction to disturbing effect (as he, persuasively in my view, argues):  Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 and Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250.

At the same time, however, Prof. Penney’s article suffers from a some flaws that are, sadly, characteristic of Canadian constitutional thought. One issue I have with Prof. Penney’s argument is that it mostly does not question the conventional wisdom on the “Lochner era” in which it finds the roots of the problem it tries to push back against. According to this conventional wisdom, the U.S. Supreme Court’s decision in Lochner v New York, 198 US 45 (1905), held up, in prof. Penney’s words, “a rigid and formalist interpretation of the Bill of Rights to limit state efforts to enact and enforce progressive economic legislation”. (308) This is questionable; indeed, recent scholarship argues that it is simply wrong. David Bernstein, whose book prof. Penney cites but does not engage with, has shown that, far from being intended to protect the vulnerable and the disadvantaged, the legislation invalidated in Lochner served to protect (relatively) big ― and unionized ― established businesses against smaller, family-owned competitors. Many other laws invalidated in the “Lochner era” ― which were never as numerous as subsequent criticism made them out to be ― were similarly objectionable. Meanwhile, this reviled jurisprudential era has served as the foundation for the subsequent expansion in the enforcement of constitutional rights in the non-economic realm.

This history matters. Rectifying the record is useful for its own sake of course. Prof. Penney says that “[t]he story of Lochner is well known” (310) ― and, in the next sentence, misstates the year in which it was decided; an accident, no doubt, but an ironic one. Prof. Penney quotes a passage from Justice Cory’s reasons in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 describing the “so-called ‘Lochner era'” as the period of time when “courts struck down important components of the program of regulatory legislation known as ‘the New Deal'”. But of course the “Lochner era” began well before Franklin D Roosevelt’s New Deal, and most of the laws struck down during this period had nothing to do with it. In short, “the story of Lochner” is rather less well known than one might be tempted to suppose; what people think they know about it may be ideological myth more than reality. More importantly, however, recovering Lochner‘s philosophy ― an opposition not to any and all economic regulation, but to the sort of regulation that privileges some groups in society above others ― might also make us rightly more suspicious than we tend to be of the  regulatory schemes that the courts end up protecting by invoking the administrative-criminal distinction. In my post on Thibault I suggested that courts should be wary of “the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role” when they ask themselves whether the penalties at issue are administrative or penal in nature. Remembering Lochner‘s lesson ― that economic regulation is not always as benign and protective as it seems ― might help here.

My other, and more important, objection to prof. Penney’s argument concerns his approach to constitutional interpretation. He “claim[s] … that the Supreme Court’s construal of ‘charged with an offence'” in section 11 of the Charter as excluding administrative proceedings  “is too restrictive”. (323) It is too restrictive, prof. Penney argues, because of the bad consequences it produces ― in the sense that individual rights to “adjudicative fairness in contesting substantial state-imposed penalties” (324) are under-protected. As I suggest above, I think that prof. Penney is right to decry the under-protection of these rights. But it is not enough to say that, because interpreting a constitutional provision in a certain way produces unpleasant consequences, a different interpretation can and ought to be adopted.

The jurisprudence that prof. Penney criticizes arguably illustrates the perils of this approach. In prof. Penney’s telling, the Supreme Court is concerned about the costs of enforcing the Charter‘s procedural protections for the state’s ability to impose economic regulations, more than it is about the consequences of not enforcing these protections when “true penal consequences” such as imprisonment are not at stake. A consequentialist approach to constitutional interpretation can go either way; there is no guarantee that it will always be right-protecting. Consequentialism, in turn, is one possible way of implementing the “living tree” interpretive methodology that the Supreme Court and Canadian academia loudly insist is the only appropriate one. It’s not the only way ― one might be a living-treeist without being a consequentialist. But saying “living tree” is not enough to decide cases. Once one accepts that constitutional meaning can change, one has to figure out what it should change to, and this is where consequentialism comes in. If one wants to foreclose, or at least to limit, its influence in constitutional interpretation, one should, I suspect, abandon living-treeism, at least in the radically unspecified form in which it is practised in Canada.

Now, it is not clear that doing so will lead to results that prof. Penney or I would find pleasant in this particular case. The main alternatives to living-tree constitutional interpretation are the different versions of originalism. (For a primer, see Benjamin Oliphant’s and my paper recently published in the Queen’s Law Journal.) An originalist approach to section 11 of the Charter would consist in asking whether (depending on the version of originalism one subscribes to)  “charged with an offence” would have been understood in 1982 as applying to administrative proceedings or was intended to apply to them by the Charter‘s authors. And I don’t know the answer to these questions. What I do know is that, insofar as these questions do have an ascertainable answer (they might not; perhaps the phrase “charged with an offence” is irreducibly vague, forcing an originalist interpreter into the “construction zone” that is, on some views, not very different from living tree interpretation), this answer does not turn on competing, and potentially variable, cost-benefit analyses, which will inevitably be influenced by personal preferences, of judges or scholars. Originalism is not necessarily more rights-protective than living-treeism ― though as prof. Penney shows, living-treeism isn’t always very rights-protective either. But originalism does hold out a promise of a constitutional law that is actually law-like, in that it is independent of the individuals who apply it. In the long run, this is not only valuable in itself, but arguably also more likely to protect individual rights in situations where doing so is likely to be seen as undermining important social objectives ― which after all is the whole point of constitutional rights protection.

Prof. Penney’s article is valuable because it attracts our attention to a number of serious problems affecting our constitutional law. On the one hand, there is problem of insufficient constraints on the imposition of “administrative” penalties, which the article decries. On the other, there are the twin problems of reliance on a blinkered version of history and on open-ended “living tree” constitutional interpretation that opens the door to consequentialist reasoning unconstrained by anything other than personal preferences, which the article exemplifies. Proponents of prof. Penney’s interpretive approach might say that my argument is contradictory, since it suggests that the constitution might not give us the resources to address the problem prof. Penney identifies. But if that is so, the solution is not to surreptitiously re-write the constitution under the guise of an interpretation that will only be adhered to by those who share the interpreter’s beliefs, but to amend it in a way that will be binding on all future interpreters, whatever their personal views.

Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.

Sub Lege

I often criticize judges, on this blog and elsewhere. I think it is very important that people who exercise power over citizens be subject to criticism whenever they exercise it unwisely or, worse, recklessly, and still more when they abuse or overstep the powers given them. While the media can, more or less, be counted on to criticize legislators and bureaucrats, from time to time anyway, criticizing judges is difficult, because this criticism has to be informed by technical knowledge and skills, which few journalists possess (though there are worthy exceptions). This means that it is especially important for lawyers, including academic lawyers such as myself, to be the judiciary’s critics. And precisely because I am an unabashed critic of the judiciary that I think I need to do so something that might be outside the scope of my normal blogging.

I want to express my dismay, my horror even, at the way in which judges have been treated in much of the British Press in response to the High Court’s ruling that legislation is necessary before the United Kingdom’s government can formally initiate the process of withdrawing the UK from the European Union. The Guardian has collected the front-page reactions: “Who do you think you are?” “The judges versus the people” “ENEMIES OF THE PEOPLE“. A paper “helpfully” noted that one of the (very distinguished) members of the panel that heard that case is gay. Another is apparently just as suspicious by virtue of his wealth. This is shocking, vile stuff.

I do not feel confident enough to comment on the merits of the High Court’s ruling, but there appears to be quite a strong case ― made for instance by John Finnis and other experts for the Judicial Power Project, as well as by Adam Tomkins ― for the proposition that the Court erred. That’s beside the point ― except insofar as these arguments, some of them quite forceful, remind us that it is possible to criticize judicial decisions without resorting to taunts, insults, and sloganeering. Whether or not the High Court rendered the right decision, it decided the case before it in accordance with its understanding of the law and of its own constitutional role. The argument implicit in the tabloids’ headlines is that the court had to decide otherwise ― having no regard to the law, but only to the supposed will of the people. But that would be a culpable dereliction of duty; that would make judges act like politicians in robes; that would make their unelected, unaccountable status grounds for criticism.

But perhaps trying to discern an argument amidst that fury is already too generous. Look at the words they use. Enemies of the people! In modern history, the phrase was apparently first popularized by Robespierre. In case anyone is wondering what life under the Jacobins was like, they should read Dame Hilary Mantel’s A Place of Greater Safety, which succeeds remarkably at creating an atmosphere of all-encompassing, pervasive fear. That same atmosphere was also characteristic of the other period in history where “enemy of the people” was a label used by power to justify mass murder ― Stalin’s purges. This is the heritage which the English press now claims. Land of hope and glory, mother of the free!

Criticizing courts is necessary if we are to hold on to the inevitably precarious proposition that there is a law apart from what the courts say the law is; that there can be a Rule of Law and not merely a rule of judges. If we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law. But if we are to have a government of laws not of men, then even the most revered men and women ― which in a democracy means the voters ― cannot stand above the law.

A final historical parallel, perhaps more exact although of greater antiquity, is in order. When in 1607 the King of England thought that he could substitute his own judgment for that of the law, his Chief Justice would not let him:

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King ought not to be under any man but under God and the law].

Like once their king, the people of England ― or at least the demagogues who would speak for them ― may be offended by being “under the law”. But ― as the examples of the Jacobins and the Bolsheviks remind us ― it is the law that protects them in safety and peace. One has every right to insist that judges too keep to the law. But it is lunacy ― suicidal lunacy ― to wish to with to throw off the law’s protection under the pretense of throwing off its shackles.