Carry On

One writes in order to try to force the universe to make sense. Others shoot for much the same reason. They say that the pen is mightier than the sword, but that’s a difficult proposition to maintain in the face of a hail of bullets. Still, one must fight with what weapon one can wield. It might be a bad idea to bring a keyboard to a gunfight, but having brought one, it’s too late to change one’s mind. So one writes, even at the risk of missing the mark.

On a somewhat similar occasion some years ago, I quoted Albert Camus who, in the closing paragraph of The Plague, warned that “the plague microbe never dies nor disappears; that it can for decades sleep in furniture or linen, trunks, kerchiefs, or papers; and that, perhaps, the day would come when, to visit woe upon mankind and instruct it, the plague would awake its rats and send them to die in a happy city.” That day came, once again, yesterday.

It is tempting to ask why, and we will surely have no shortage of people not only asking but also answering that question. Some are already busy at it, and I will say something about that presently. But first things first. Camus’s lesson, I think, is that the important question is not why, but what ― what one does when the rats are out.

One could hardly answer that question better than Ottawa did yesterday: with the fearlessness of Parliament’s Sergeant-at-Arms, Kevin Vickers who stopped the murderer; with the courage of the journalists who filmed while the shots were being fired; with the calm of the MPs who spoke to the world’s media from their locked down offices; with the resolve of the party leaders who addressed the country last night; above all with the quiet, level-headed dignity of the citizens. Ottawa friends, I admire you. It is perhaps too bad that we don’t always see such courage, calm, resolve, and dignity. But let’s leave it to another day to muse on why people who can act admirably in the most adverse of circumstances so often fail to do so when it should be easier. There is something to be said for being at one’s best when things are at their worst.

So much for the most important question. I will return to the second most important one, what to do going forward, shortly. But although these two should be enough, they somehow never are. The why question, fruitless though it usually is, keeps nagging at us. (Camus noticed that too, elsewhere, writing that though the world might be meaningless, human beings were not, precisely because they demand meaning.)

Already we have some ready-made answers to the why question. Let me address one, brought to us by Gleen Greenwald, who seems to think that he enlightens us by proclaiming that “it’s not the slightest bit surprising or difficult to understand why people who identify with those on the other end of Canadian bombs and bullets would decide to attack the military responsible for that violence.” We’ve been fighting wars for 13 years, and had it coming. Mr. Greenwald wrote that in response to the murder of a soldier in St-Jean-sur-Richelieu on Monday, but of course this purported explanation ought to be no less applicable to yesterday’s rampage, which we now know was also the work of a self-made Islamist fanatic.

The trouble with Mr. Greenwald’s explanation is not even so much that it is callous, though it is that, too. He thinks that “one’s views on the justifiability of Canada’s lengthy military actions” are irrelevant here, but they are not. If Canada’s fight against the Taliban is justified ― and it is, both the reasons that got it started in the first place and by the UN’s and subsequently Afghanistan’s approval ― then his explanation is no different from pointing out that a rape victim’s skirt was shorter than it might have been. The problem is ― just like that statement ― this explanation explains nothing at all. The question for us is not why “people who identify with those on the other end of Canadian bombs and bullets would decide to attack” those they hold responsible. It is, why do Canadian citizens identify with the Taliban and IS?

Mr. Greenwald dismisses the explanation famously given by George W. Bush, who said that Taliban & Co. “hate us for our freedoms.” But, for what little my view is worth, I think that, although “hate” is not quite the right word here, President Bush was ― wittingly or not ― onto rather more than the pseudo-cognoscenti of Mr. Greenwald’s ilk allow.

It’s not quite that the Canadians who murder Canadian soldiers, or the Frenchmen who kill their Jewish compatriots, or the Americans who run off to Syria to join IS “hate our freedoms” which are also theirs. It’s that they are afraid of these freedoms. For only abject fear can cause a man to lash out in senseless, futile violence like that which we saw yesterday ― fear of the way in which what free people will choose to live their lives, and fear of the responsibilities that come with being a member of a free society.

Those whom these twin fears drive to despair will try to destroy its source. The banner under which he does it is comparatively unimportant, even accidental. Radical Islamism is the murderous ideology du jour, but there have been and are others, which have caused their adherents to act in much the same ways. There was the separatism of the FLQ and left-wing craze of the Red Brigades and the RFA; there was the anti-separatism of Denis Lortie and the right-wing paranoia of a Timothy McVeigh or an Anders Breivik. Canadian intervention in Afghanistan and Iraq stands in exactly the same relation to the murders of Patrice Vincent and Nathan Cirillo as multiculturalism to that of 77 Norwegians on July 22, 2011. The murderers, and Mr. Greenwald, can call it causation if they so wish. We do not have to.

What should we do though, going forward? Well, I’d say we’re off to a good start already. It may usually be the case that liberty is in danger whenever Congress is in session, but Parliament sitting today is in fact a first, manifest example of our liberty. I dearly hope that, whatever revisions there may be to its security protocols, it will still be open to visitors, and its lawn keeps hosting sound and light shows, yoga sessions, protests, and whatever other activities take place there. Beyond that, let us take example from the people of Ottawa yesterday: they did not lose their heads then; there is no reason for us to do so now. Those of us who fight on our behalf, and to whom I am more grateful than ever today, will go on fighting. Those who write will keep writing; if it doesn’t make sense of the world, at least it is a way of claiming our freedom. Whatever we do, we should simply keep calm and carry on.

P.S. Andrew Coyne and especially Aaron Wherry are much more eloquent than I. And Mr. Wherry also asks that “please, somehow, someway, let there be yoga again on the lawn. And Frisbees and protests and light shows in the summer.”

St-Hilaire on Québec Judicial Appointments

I am very happy to announce that Double Aspect now features its first guest post. The post, which is below, is a comment by Maxime St-Hilaire on the (un)constitutionality of the appointment of Justice Robert Mainville to the Québec Court of Appeal. Prof. St-Hilaire teaches constitutional law and aboriginal law at the Faculty of Law of the Université de Sherbrooke, and is a good friend ― which does not mean that I necessarily agree with him! Readers will have noticed, I suppose, that I have not yet had anything to say on Justice Mainville’s appointment. I might do so eventually, and Prof. St-Hilaire’s post, whether or not I end up disagreeing with him, will surely contribute to my thinking.

Two Years, and Many Thanks

I started this blog two years ago today. I didn’t really know what to expect ― whether anyone would read it, or even whether I’d keep going for very long. So its still being around, two years and 330 posts later, is a success. The readership, so far as I can tell from WordPress’s stats, is growing, albeit erratically. That too is a success, and a very gratifying one. Even more so because my readers include not only fellow constitutional law geeks (whom I salute!) but also practicing lawyers (and maybe even some judges), as well as people outside the legal profession. This diversity is something of a surprise to me, and a very pleasant one. I am very grateful to my readers ― to you! And especially, of course, to those of you who have, over these two years, taken the time to tell me that they read, and maybe even enjoy reading, what I write here.

So the plan, for the future, is mostly more of the same. I slowed down a bit in the blog’s second year compared to the first, at least in terms of the number of posts, but I’ll try to keep up the pace in the months to come. If, however, you think that I can improve something ― whether in terms of contents or format, even just the blog’s “look and feel,” by all means, do let me know. I like to think that I’m doing pretty well, but I’d like even more to do better.

Thanks for reading me!

(And, if you enjoy this blog, don’t keep it to yourself ― think of your friends and colleagues who might enjoy it too!)

Short and Tweet

OTTAWA, April 1, 2014 ― The honourable Andrew Scheer, MP, Speaker of the House of Commons has announced new rules which will henceforth limit the speeches of the members in the House to the length of a tweet ― 140 characters or less. In contrast to much recent legislation, the new rules have received an almost-unanimous support from the parties represented in the House of Commons, with only the separatist Bloc Québécois registering a partial dissent.

Peter Van Loan, the Leader of the Government in the House of Commons, expressed his party’s satisfaction at the new rules, pointing out that “any matter of substance important to regular hard-working Canadians can easily be expressed in 140 characters. Consider, for example, Prime Minister Harper’s recent tweet on criminal justice: ‘RT if you think rights of victims trump the rights of criminals.’ There is really nothing to add. The so-called experts calling for so-called nuance and details are just trying to hide things from you, or else demonstrating their utter disconnect from the needs and wishes of ordinary people, who have more important things to worry about than public policy, especially now that the NHL playoffs are around the corner.”

For his part, the leader of the opposition, Thomas Mulcair, argued for an even more stringent character limit on MP speeches. “We think that 71 characters should really be quite enough. 50% + 1 vote are enough to determine any public policy issue, including the existence of this country, so 50% + 1 character are enough to express one’s opinion. Longer speeches are really a waste of public hot air that would be better used to finally bring spring to struggling middle-class Canadians.”

The most articulate support for the new rules, however, came from the Liberal leader Justin Trudeau. Reminding voters that his father had already pointed out that, away from Parliament Hill, MPs are just a bunch of nobodies, Mr. Trudeau recognized that some of them might have interesting ideas but, he said “they have no name, no fortune, and no beauty, so none of that fucking matters.”

The only criticism of the 140-character limit came from the Bloc Québécois, one of whose four MPs claimed that while not unsound in principle, it failed to give Québec a special status, and thus demonstrated “Ottawa’s contempt for the Québécois and the French language. It is well known,” added the member, “that French words and sentences are, on average, longer than English ones, so we demand a 160-character limit for the members from Québec. It is time for the House of Commons to live up to its recognition of the Québécois nation.”

#SochiProblems

There has been a great deal of talk over the last several months about the way one ought to react to the Olympics in Sochi in light of Russia’s ban on “propaganda of homosexuality” or whatever Russian prosecutors construe as “propaganda of homosexuality.” People have, in order of decreasing glamour and increasing effectiveness, boycotted a vodka which turned  out not to be made in Russia at all, raised rainbow flags, and made other, more sensible suggestions. But it seems to me that, although a lot has already been and is still being said on the subject, an important element is missing from this conversation. It is the fact that, while the “propaganda” ban certainly is homophobic, its underlying cause is authoritarianism as much as, if not more than, homophobia. What this means is that to really help Russian gays and lesbians (and all other Russians too), we must not only criticize and support the victims of a specific law, but the whole system of Vladimir Putin’s government.

Now this is not to say that this criticism and support are unimportant. People suffering as a result of the “propaganda” ban, and perhaps even more because of the wave of discrimination and violence that this signal of official homophobia has helped unleash. I would like to think that, for them, knowing that the world cares is at least a small consolation and source of hope. And the overt, shameless callousness of this law deserves its own response.

Nor do I mean to suggest, by saying that the “propaganda” ban is the product of authoritarianism, that a free Russia would a very gay-friendly place. Unfortunately, it would be no such thing. Freedom, democracy, and the Rule of Law are not enough to eliminate at a stroke the latent prejudices of society. But they do tend to make it rather less likely that these prejudices will translate into official policy, or that the authorities will let them run loose to the extent homophobia now does in Russia. Of course, there are some sad exceptions to this general trend, as Québec’s proposed ban on public employees wearing “ostentatious religious symbols,” which is calculated to discriminate against minorities (and especially Muslim women) and which Charles Taylor has rightly compared to the Russian anti-gay law, demonstrates. Still, such laws are both rarer and generally less malign in democratic countries. As, or more importantly, as I will shortly argue, free, democratic countries committed to the Rule of Law give their citizens the tools to fight and, at least over time, overturn those discriminatory measures that they do enact.

The reason Mr. Putin’s authoritarianism is key to understanding and deciding how to respond to the “propaganda” ban is that this law and the prominence of homophobic discourse more broadly are quite recent phenomena. What is not recent ― what has lasted for more than a decade now ― is a trend of small, unpopular groups being persecuted, whether with the active participation or with the silent connivance of officials. First ― before Mr. Putin even was elected President, there was the population of Chechnya, made the victim of a war designed to bolster his (theretofore nonexistent) credentials. Then (and to this day), it was political opponents and independent journalists. A businessman who supported opposition political parties imprisoned. Journalists who reported on human rights violations murdered. The rare media that still remain independent being denied access to their audiences. But then there were other victims. Later and still now, it was ethnic and racial minorities ― first African students, then immigrant workers from central Asia, who the victims of campaigns of murderous brutality, which the authorities have seldom done much of anything to stop. Gays and lesbians are only the latest on the list of the enemies of the Russian state. For a government that lacks the legitimacy that comes from prevailing over political opponents in a fair electoral contest (or indeed for one, like the PQ’s, which is committed to democracy but knows that its electoral prospects are dim), having enemies is probably indispensable to manufacture popular support. The enemy’s identity matters little, provided that he is weak and unpopular. In Russia, liberals, ethnic minorities, and LGBT people all are.

For this reason, and although, as I said above, it is important to oppose the “propaganda” ban and other forms of discrimination against gays and lesbians in Russia, the real solution to their problems must pass by the (re-)establishment in Russia of a free and democratic political system committed to the Rule of Law. Only such a system will not need to make minorities into scapegoats for its shortcomings and prejudice against them the only rallying point it can offer the people.

In addition, such a system would, unlike the present one, allow gays and lesbians ― as well as all other citizens, whether persecuted in their individual capacities or as members of unpopular groups ― to fight back and vindicate their rights. At present, it is not only equality that is absent from Russia. It is also, among many other rights and freedoms, freedom of expression and an independent judiciary. Yet as Jonathan Rauch argues in a fascinating and important guest-post at the Volokh Conspiracy, “[h]istory will show …  that gay marriage, and gay legal equality generally, owe their success not primarily to the 14th Amendment but to the First” ― not the one protecting equality, but the one protecting freedom of speech. The reason is simple: in order to have equality, you must persuade people to recognize you as their equal. You need to be able to speak to them. You need the freedom to make your case. And before you can insist on rights which on paper are yours, you need judges to know that nothing particularly bad will happen to them if they enforce them.

Once Russian gays and and lesbians have these basic rights, which (unlike equality rights which are of more recent vintage) we perhaps take so much for granted that we forget that others might lack them, we can hope, and indeed believe, that they too will in time succeed in having their equality rights recognized. Let us denounce and oppose homophobia. But let us not forget that, in Russia and elsewhere, it will not end without freedom, democracy, and the Rule of Law. 

The Best

I’m a bit late, but still on time. ‘Tis the season ― for Clawbies nominations. So here are mine:

  • Paul Daly’s Administrative Law Matters:Don’t let the title put you off, like I did for too long. Administrative law might not sound like a very exciting thing, but that just highlights the measure of prof. Daly’s success in turning out consistently interesting and thought-provoking posts about it.
  • Philippe Lagassé’s eponymous blog:Whether or not you find it exciting, the Crown is a very abstruse topic in Canadian law. it is also, despite appearances of quaintness, still important, and bound to remain so for the foreseeable future. Prof. Lagassé does a fantastic job of explaining it.
  • Michael Geist’s Blog:Hardly needs a sales pitch from me, but speaking of relevant, you can’t really beat IP and telecommunications. Lots is happening in these areas, and it matters, whether we understand it or not. Prof. Geist helps us do so.

Caption Contest

The decision of the Superior Court of Ontario in  McAteer v. Canada (Attorney General), 2013 ONSC 5895, upholding the constitutionality of the reference to the Queen in the citizenship oath stresses the importance of the legal distinction between the Queen as a person, and the Queen as (a symbol of) an institution. Accordingly, those who have written about this distinction ― starting with Justice Morgan in McAteer ―  have ventured a variety of more or less convoluted phrases to describe the former.

Justice Morgan used the rather unimaginative “Elizabeth R.” Philippe Lagassé speaks merely of “a British woman” here, but he gives a more elaborate description here:

[S]he was a Girl Guide when she was a tween, and she a mechanic during the Second World War, prior to become the monarch of various realms in 1952. She owns Balmoral Castle …  She currently owns two corgis and the horse that she owns, Estimate, won the Royal Ascot this year.

The pithier Steven Muerrens describes her as “an elderly lady with a unique wave” and “the woman who appears on our currency.” And I myself have written about “the kindly old lady whose portraits the federal government is obsessed with hanging all over the place” and “the physical person living in Buckingham palace” ― though that’s probably not a unique identifier.

Can you do better than this? Although I really like the “elderly lady with a unique wave,” can you come up with a more entertaining way of describing Elizabeth R.? Oh, and here’s a picture, for inspiration ― not a great picture, but one I took myself.

Her Majesty visiting Ottawa for Canada Day, 2010
Her Majesty visiting Ottawa for Canada Day, 2010

So, who is she?

P.S. Whether you like the monarchy or not, you have to admit that the Queen has the most awesome license plate ever.