Humpty Dumpty

Last week, the Globe’s Neil Reynolds blamed all the troubles, real or imaginary, of Canadian federalism on the “peace, order, and good government” (POGG) clause of s. 91 of the Constitution Act, 1867. Undeterred by his failure last time around to grasp the actual constitutional law he was bewailing, which I pointed out here, Mr. Reynolds is at it again, albeit with a new culprit: subsection 2A of s. 91, which authorizes Parliament to legislate with respect to “[u]nemployment insurance.” A week ago, Mr. Reynolds was ignorant of that provision’s existence, and castigated Employment Insurance (EI) as an abuse of the POGG power. It’s nice to know he might actually have read the Constitution Act, 1867. It would have been even nicer if he had acknowledge his previous mistake, but never mind.

Mr. Reynolds is manifestly distressed by what he perceives as the downfall, apparently in 1943, though I’m not sure why then, of the “limited, decentralized government” the Constitution Act, 1867 set up. Notwithstanding Lord Atkin’s “prescient warning” in the Unemployment Insurance Reference about the dangers of a federal spending power which “would afford the Dominion speedy passage into the provincial domain,” provinces and the federal government agreed to a constitutional amendment which transferred the competence to legislate with respect to unemployment insurance from the provinces to Parliament. Mr. Reynolds thinks this was catastrophic:

As Lord Atkin anticipated, the program led, a single surrender of provincial jurisdiction at a time, to a notional constitution that lets federal governments collect taxes and distribute the proceeds to any person, organization or corporation it wants.

We now think it absurd that a British aristocrat could have blocked – as illegal – a national unemployment insurance program in Canada. In retrospect, Lord Atkin proved more perceptive than this country’s determined centralizers. He perceived that the [Constitution Act, 1867] protected Canadians’ human rights by protecting their property rights from excessive federal power.

Mr. Reynolds then goes on to follow Lord Atkin (dissenting in Liversidge v. Anderson) in invoking Alice’s question to Humpty Dumpty:  “whether you can make words mean so many different things.” Humpty Dumpty thought he could. Mr. Reynolds apparently is Humpty Dumpty himself, thinking as he does that he can make our constitution mean so many different things.

For it is absurd to blame the alleged abuses of the federal spending power (the power to collect taxes and distribute the proceeds however it sees fit, without regard to exclusive provincial jurisdiction) on EI. The power to implement EI is narrow, clear, and grounded in a specific constitutional provision; the problem of the federal spending power is precisely that it is unlimited in scope, vague, and has no clear constitutional basis. EI and the federal spending power are polar opposites.

And it is equally absurd to claim that the Constitution Act, 1867 “protected Canadians’ human rights by protecting their property rights from excessive federal power.” For one thing, property rights are no less vulnerable to provincial than to federal invasion. The most economically radical government in Canadian history was the Social Credit one that came to power in Alberta in 1935. Its repressive legislative programme was struck down by the Supreme Court in the Alberta Statutes Reference, [1938] S.C.R. 100, because it infringed the broad economic powers of Parliament. And the extent of these powers – over taxation, over the banks, over interest rates, over bankruptcy – means that if Parliament set about undermining property rights, it could very well have done it. Of course, the framers of the Constitution Act, 1867, rejected the American example and refused entrenching protections for property rights in the constitution (as did the framers of the Charter).

More broadly, Mr. Reynolds’ belief that Canada is an absurdly centralized country with a federal government of unlimited power is groundless. Canada might be the most decentralized federation in the world; it is certainly less centralized than the United States, Australia, or Germany. Just last year, in Reference re Securities Act, 2011 SCC 66, the Supreme Court unanimously struck down – to the consternation and disbelief of many centralizers in the business and academic communities – the proposed federal securities legislation. Canadian federalism is alive and kicking – too much for some. Mr. Reynolds would really do well to find another topic on which to fulminate.

Not for Sale

On to the third (and maybe last) part of my comments about the the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. On Thursday I wrote about the separation of powers aspect of the judgment; on Friday about its suggestion that there is a right to go to court. I turn now to the idea that the imposition of hearing fees is wrong not (just) because it infringes the judicial branch’s prerogatives or the rights of the citizens, but because it departs from a certain idea of what government and public services ought to be like.

This argument is related to the one about separation of powers; indeed, although Justice McEwan’s rhetoric suggests otherwise, I think it is necessary to make the separation of powers argument plausible. Taken on its own, the claim that the judiciary must be master in its own house and the legislature has no business interfering with the role of the courts by enacting rules that encourage people to settle disputes otherwise than through adjudication is incredibly far-reaching. It would make rules designed to encourage settlement (like Rule 49 of the Ontario Rules of Civil Procedure) or legislation providing for recognition and enforcement of arbitral awards constitutionally suspect ― but I don’t believe any court in Canada would think this a plausible constitutional principle. What might make the claims of impermissible interference with courts plausible here is the nature of the change imposed, rather than the mere fact that the legislature intervened in the working of the judicial branch.

The hearing fees imposed by British Columbia had the purpose and effect of “rationing” courtroom time and of making the people who actually go to court pay for the upkeep of the civil justice system. They reflected a conception of the civil justice system as a service of which people choose to avail themselves, and which benefits those who make this choice. If that’s what civil justice is, it is logical enough to make its “users” pay for it. That’s how arbitration works, for instance. But it’s not what civil justice is, says Justice McEwan. Continue reading “Not for Sale”

See You in Court!

This is the second part of my comments on the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. Yesterday, I wrote about he separation of powers line of argument in Justice McEwan’s reasons. I turn now to the suggestion, which also runs through his judgment, that there is something like an individual right to go to court.

The Charter, of course, contains no such right. Well, at least not generally. Subs. 24(1) does provide, however, that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Still, if that’s a right to go to court – that’s what it sounds like to me – it’s a narrow one. Most cases have nothing to do with the Charter. The dispute before Justice McEwan was about child custody, and before the question of the fees arose, the Charter was not at issue at all.

Justice McEwan makes two main arguments for why there is a right to go to court, and it is a general one. The first is that going to court is a form of democratic participation, protected by the democratic principle of the constitution. The second is that it is a feature of our constitutional order and a requirement of the Rule of Law. Continue reading “See You in Court!”

Don’t Piss Off the Crocodile

As promised, I have some comments on the B.C. Supreme Court decision striking down hearing fees, which I summarized here yesterday. In fact I’ll have a lot of comments, too many for just one post. I start off today with some thoughts on what I take to be the main line of argument in Justice McEwan’s judgment: the claim that the imposition of the fees is a violation of the separation of powers, encroaching on the superior courts’ protection by the judicature provisions of the Constitution Act, 1867, and violating the principles of the Rule of Law and the independence of the judiciary.

There is a saying (in Russian anyway) that one should not piss off a crocodile before having swam across the river. Now imagine that you’re constantly swimming in that river, back and forth. You really, really don’t want to piss off the crocodile. That seems to be the message implied and to some extent explicit in Justice McEwan’s decision. The river, that’s the courts. The government, and specifically the Attorney-General, is the guy always swimming there. And the crocodile, well, that’s Justice McEwan himself (and presumably his colleagues too).

In fact, as the BC Injury Law Blog reports, all the crocodiles in the river were already quite unhappy before this particular fight came about. But now, this crocodile is mad as hell. The government thinks the river is about to burst its banks because there are too many people going in there. It has decided to build bridges (i.e. steer litigants away from the courts―in private or judicial mediation,  settlement programs, etc.) and to charge people for going into the water. The longer they stay there, the more they need to pay. But this is not really, or at least not primarily about the money. “Cost recovery is only the secondary purpose of the fees according to the AGBC. The first is rationing court time. ” (Par. 309). That, says the crocodile, changes the nature of the river. And the river is his, not the government’s, so he won’t stand for it. Continue reading “Don’t Piss Off the Crocodile”

One’s Day in Court: Priceless?

In 1998, British Columbia started charging litigant stiff “hearing fees” for each day of a civil trial. Last week, Justice McEwan of the B.C. Supreme Court issued a monster of a judgment declaring them unconstitutional. The decision is very interesting for all sorts of reasons, but it is also abusively long. Fortunately for you, I have read it – well, much of it – so you don’t have to.

Before getting into the substance of the case, I want to say a few words about the decision; specifically, about its length. First, the facts: about 175 pages; 432 numbered paragraphs, many of them including multi-paragraph block quotations; more 70 000 words. That’s the length of a mid-sized novel. For a judgment, well, jugement-fleuve is a polite way of saying it. Perhaps it is a severe case of ‘I didn’t have the time to write a short decision so I wrote a long one’, except that it took Justice McEwan more than two years to produce it. Be that as it may, judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. Justice McEwan  makes much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it. (I’m not exactly a reasonable member of the public. But I must admit that I barely skimmed the restatement – I cannot call it a summary – of the parties’ submissions, which runs for something like 250 paragraphs. I did read all of the judge’s analysis though.)

Now to the case. The facts are simple. A couple separates, and there is a dispute over whether the plaintiff, who wants to move back to Spain, can take their daughter with her. They go to trial, unrepresented by lawyers, and the trials takes up 10 hearing days. The plaintiff is hit with a “hearing fees” bill of over 3500$ (some of which the defendant might have to cover). The fees are so high, in part, because they are imposed on a sliding scale – the longer a trial is, the higher the fee imposed for each additional day. She cannot pay, and asks the court to relieve her. The court might do this by finding her to be “indigent”. Indigent litigants have traditionally been exempt from having to pay court fees. But, Justice McEwan insists, ‘indigent’ means really, really poor. So poor one can’t afford to pay a $100 filing fee, for instance. “It is an awkward word to use to describe a middle class family’s inability to pay a month’s net salary for the two-week ‘rent’ of a courtroom” (par. 26). The exemption does not apply. The only way the plaintiff can get out of having to pay is if the fee is unconstitutional. That’s what the decision is about.

There are at least three strands of argument running through Justice McEwan’s reasons. He does not distinguish them, but they are in fact quite different. One is that the fees infringe an individual right – access to justice, the right to have one’s day in court. Another is that there is something wrong with a chooser-user-payer model of government services; a court is a public service, and should be available to all, regardless of ability to pay. The third – and I think the most significant for Justice McEwan – is that the imposition of the fees proceeds from and results in a redefinition of the courts’ role by rationing access to courtrooms and trying to steer dispute settlement to other venues. This, in Justice McEwan’s view, subordinates courts to the legislature and violates the separation and equality of the branches of government.

All of these reasons lead Justice McEwan to conclude that hearing fees are unconstitutional because they violate unwritten constitutional principles and the federal division of powers. Limiting access to courts runs counter to the Rule of Law. It is also undemocratic because court participate in the elaboration of law, and going to court thus amounts to participating in the democratic process (which is not limited to voting). A redefinition of the courts’ role, especially one that limits people’s access to courts, is beyond of provincial powers over “the Constitution, Maintenance, and Organization of Provincial Courts” under subs. 92(14) of the Constitution Act, 1867. Justice McEwan did not consider the applicability of the Charter, which was also raised in argument.

Well, that’s enough for a summary, though this only skims the surface of the judgment. I will have some comments tomorrow.

The Good of Religion

Yesterday I attended a discussion with Robert P. George, the Professor of Jurisprudence at Princeton (which of course does not have a law school!) and one of the leading religious conservative public intellectuals in the United States. The topic was “Religious Liberty and the Human Good.” David Blankenhorn – perhaps best known recently as a failed would-be expert in the trial on the constitutionality of Proposition 8, which attempted to change California’s constitution to prohibit same-sex marriage – was the host. He is clearly smarting from the Prop 8 experience, and took some shots at President Obama along the way, but it was quite interesting nonetheless, so here’s a recap.

According to prof. George, freedom of religion is valuable for two reasons.

The less important one is that it allows the existence of organizations that provide all sorts of important social services and are authority structures that act as a buffer between the state and the individual, so that the state does not become the only source of authority. Religious organizations help prevent tyranny, which the judiciary alone is not able to do. For my part, I do not find this persuasive. There are many alternative power centres (the press and NGOs for example) and networks (online social networks for example). Religious structures are, at most, some of many, and perhaps not the best candidates as oppression-resisters (the Catholic church, for example, has a long record of collaboration with temporal powers, as well as one of resistance to them). And of course religious structures can be oppressive in their own right – though they need not be.

The more important reason why freedom of religion is important is that it serves what prof. George called “the good of religion” – that is the human ability to ask, and answer for oneself, fundamental questions about human nature, life, mortality, free will, etc. A life spent without thinking about these questions is impoverished; and it is important to have one’s own answers to them, and to live with integrity in light of the answers one comes up with. Even if these answers are not “religious” as the term is usually understood – even if they are atheistic for instance – they are worthy of protection, because it is the questioning that constitutes “the good of religion.” That seems exactly right to me, whether or not “the good of religion” is the best name for what prof. George is getting at.

A related term (which I might be more inclined to use instead) is “conscience”. Prof. George defines it as “one’s last best judgment informed by reason, belief, or faith as to what one is required to do or not to do.” Referring to Cardinal Newman’s take on the subject, he insists that it is not “in the business of permissions.”

Mr. Blakenhorn brought up the subject of “reason” in religious belief. He is mad at Judge Vaughn Walker, who presided over the trial in the Prop. 8 case, Perry v. Schwarzenegger, for finding that religious motivation could not constitute a “rational basis” for prohibiting same-sex marriage.  Prof. George agrees that religion has an element of reason – we can understand someone acting on his answers to “ultimate questions,” for instance – and argues that Judge Walker has an impoverished, “fideistic” view of religion as consisting only of faith, without a rational element. But it seems to me that the important question here, which he did not get into at all, is whether religious reason can count as a valid one for public law purposes. Even if we agree – as I do – that a person acting on religious (or conscientious) beliefs is not acting irrationally, it is a different matter whether the state (and thus voters) are entitled to act on such reasons – and still a different matter whether they are entitled to act on such reasons only – in making public policy. This is the Rawlsian public reason conundrum, which I cannot possibly get into here (and don’t have firm views about anyway).

Finally, prof. George spoke about religious exemptions – cases where a law that is generally not meant to punish or impede religious belief or practice has that effect on some believers. He thinks that these believers should be exempted from the application of such laws, unless the state can show that not granting the exemption is the least restrictive means of furthering a compelling state objective. There is, however, an interesting question about who – courts or legislatures – should be deciding whether any given case comes satisfies these criteria. That is roughly what I argued in my LL.M. thesis, which was about religious exemptions, so I am glad to have my thoughts confirmed. Now why don’t the law reviews to which I submitted the paper seem interested to publish it?