Opus 100

This is my 100th post. I would like to take the opportunity to thank my readers, especially those who, in one way or another, have taken the time to tell me that I was doing something right and/or to keep going.

On the whole, I would rate this blogging adventure as a time-consuming success. Despite some lapses during the last few weeks, I’m averaging close to three posts every four days, most of them of least 500 words. And there is at least some research that goes into most of them too. I don’t know how long I will be able to keep this pace, but I will try. Obviously I have learned a lot doing this. For one thing, I have read a great many cases decided by Canadian courts―from provincial courts to the Supreme Court―since the beginning of the blog in April. For another, blogging has forced me to give shape, coherent shape I hope, to thoughts that would otherwise have remained inchoate and might well have been lost. It is a thinking-out-loud exercise which I would recommend to anyone engaged in an intellectual pursuit, whether you feel like putting the results on the internet for all to see or not.

For myself, I think that doing it publicly was a good thing. Of course, I can only hope I am not making a fool of myself, especially whenever I venture out of my constitutional comfort zone and into internet- and technology-related issues I have only recently begun thinking about. But knowing that some people read what I have to say is great. Knowing that some non-lawyers read when I try to explain legal issues, and perhaps learn something they might find interesting or valuable is even better.

To be sure, some of my own favourite posts, into which I put a lot of thought, turn out not to be popular at all. (By way of shameless self-promotion, my candidate for best-undeservedly-neglected-post is this take on “Judicial Review and Co-Operative Federalism.”) But sometimes I was pleasantly surprised by the popularity of other things I’ve written. (For example here, on “An Ancient Parliamentary Right.”) So, no complaints. I’m just glad to be here.

Thanks for reading me!

Another Gun-Registry Case

I have written profusely about Québec’s attempt to obtain from the federal government the Québec-related data accumulated in the now-defunct federal long-gun registry. (My summary of the claim is here, and my comments on it are here.) Québec’s claim is based, in effect, on its alleged co-ownership of the data; it does assert that the abolition of the gun registry by Parliament is itself unconstitutional.

But, as I have now learned, there is another case going on, in Ontario, in which the plaintiff asserts just that. The Barbara Shlifer Commemorative Clinic, an NGO which assists women who are victims of domestic violence, contends that the abolition of the gun registry violates the Canadian Charter of Rights and Freedoms, more specifically its guarantees of security of the person (s. 7) and equality (s. 15), by disproportionately exposing women to an increased risk of firearm violence.

The federal government has moved to quash the application as disclosing no reasonable cause of action; this motion has been argued, but no decision has yet been delivered. The clinic has filed a motion for an injunction to prevent the destruction of the gun-registry data pending a decision on the merits, which will be argued in September. Furthermore, the City of Toronto has asked for leave to intervene in support of the application. The federal government opposed that motion, but it has now been granted by the Superior Court of Justice, in Barbara Shlifer Commemorative Clinic v. Canada, 2012 ONSC 4539 (the decision from which I learned about the case).

I will be following the developments in this case with interest.

Yes, Minister, But…

According to the Globe and Mail, the federal Justice minister, Rob Nicholson, was recently asked about the propriety of a hypothetical (actually, rumoured) appointment of a cabinet minister to the bench. The Globe reports that

“[h]e said he did not believe that certain individuals should be ruled out as judges. ‘I’ve never gone out of my way to say that certain groups of individuals – people who have served, for instance, in political office – that they should be eliminated or sit out or anything else.'”

As a general principle, I think that’s right. There are fine lawyers serving in political office, and it would be too bad if we deprived ourselves of their services on the bench. During my clerkship at the Federal Court, I have had the privilege of working on some cases for Justice Yvon Pinard, who had been a cabinet minister and the government’s Leader in the House of Commons during Pierre Trudeau’s last cabinet, immediately prior to his appointment to the court (at the ripe old age of 36). I believe he is a fine judge. Indeed I’ve been told, though I haven’t verified this, that he is the judge of the Federal Court whose decisions are least often reversed by the Federal Court of Appeal. (This is surely not the only, maybe not even the best, benchmark by which to measure a judge’s performance, but it is worth something.) And there are many other examples of former politicians who went on to have fine, or even distinguished, judicial careers, in Canada and elsewhere. Perhaps the most famous of them was Earl Warren, governor of California, vice-presidential candidate, and later  an iconic Chief Justice of the United States.

The counter-argument, the basis for claims about the impropriety of appointing a politician to the bench, implies that such a judge would be partisan, biased, or insufficiently independent. But many lawyers are political partisans even without serving in political office. If we assume that they are capable of relinquishing partisanship upon appointment to the bench, I think we should also afford the same presumptive trust to former active politicians. Lawyers work for firms that appear before them when they become judges; or they work in government positions in which they consistently take the same side of an issue (as prosecutors for example), but we expect them to be able to serve as impartial judges. Again, there is no reason to treat politicians any differently.

That said, there is a qualification which, although valid for any lawyer aspiring to the bench, might be worth special emphasis in the case of active politicians. A lawyer’s conduct, especially his or her conduct in his or her chosen profession, can obviously be scrutinized for signs that the lawyer may not be able to live up to the standard of conduct expected of a judge. As the Canadian Judicial Council explains,

    • Judges should, at all times, exhibit and promote high standards of conduct so as to reinforce public confidence. Judges should strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment.
    • Judges should perform their duties with diligence while treating everyone before the court with courtesy and equality, being careful to avoid stereotyping or discrimination. Judges should avoid comments, expressions, gestures or behaviour which may be interpreted as showing insensitivity or disrespect.
    • In making their decisions, judges must be and must appear to be impartial at all times. Judges must be mindful of how inappropriate comments, improper remarks or unjustified reprimands can undermine the appearance of impartiality and actively work to avoid them.

Prior to their appointment to the bench, lawyers are not held to the same standard, and some deviations from it should not be disqualifying from a judicial appointment. But a lawyer who has a history of treating opponents as enemies, of going beyond the normal bounds of partisanship, of refusing to acknowledge contrary viewpoints, or of being hateful or contemptuous is, in my view, not qualified to serve as a judge. And, arguably, politicians are especially at risk of committing these deadly sins. A politician who claims that the opponents of his policy “stand … with child pornographers” probably should not become a judge. Yes, Minister, it is your colleague Vic Toews I am talking about.

Google as Regulator, Part Deux

A recent story, reported for example by the Globe and Mail, nicely illustrates Google’s dual, and perhaps ambiguous, role as “speaker and censor,” at once exercising, or claiming to exercise, an editorial judgment and making itself he agent of speech-restricting governments, about which I blogged some time ago. According to the Globe, “Google’s search algorithm will begin demoting websites that are frequently reported for copyright violations, a move that will likely make it more difficult to find file-sharing, Torrent and so-called file locker sites.” These websites will not be removed from search results, but they will be harder to find.

This is, it seems to me, an obvious example of “editorial judgment,” which – as I explain in more detail in the post linked to above – Google claims to exercise when designing its search algorithms. At the same time, it is an an example of Google acting, in effect, as a regulator, if not, in this case, as a censor. The decision to demote allegedly-copyright-infringing websites is not, one suspects, motivated by commercial considerations; at least not immediately commercial considerations, since, as the Globe puts it, the move “should please Hollywood” – and other content producers – and perhaps Google considers pleasing them as an investment that will pay off. Google’s state reason for this decision is that it will “help users find legitimate, quality sources of content more easily” (my emphasis). One usually associates concerns for legitimacy with public authorities rather than private corporations.

Indeed, some might want Google to take an even more public-spirited position. As Deven Desai, of the Thomas Jefferson School of Law, notes in a post on Concurring Opinions, “this shift may open the door to more arguments for Google to be a gatekeeper and policer of content.” Indeed, although he does not favour such an approach, he points out that it is a “difficult question … why or why not act on some issues but not others.” Why, for example, copyright infringement but not hate speech? For now, even Google might lack the data and/or content-analyzing capacities effectively to recognize hate speech. But given how fast technology evolves, this might change sooner rather than later. As prof. Desai observes, if Google becomes a more overt internet regulator, it will be criticized, for example from a competition-law standpoint. But of course it will also be criticized if it refuses to take on that role.

Either way, there will be a lot of interesting questions for lawyers. At what point does Google, acting as a quasi-regulator, become a state agent subject to constitutional constraints? How does competition law, and its prohibition on abuse of a dominant position, interact with the constitutional protection of freedom of speech, if the latter encompasses Google’s freedom of editorial judgment about its algorithm? What sort of due process rights do or should people affected by Google’s editorial decisions have – and what legal framework – for example, administrative or maybe tort law – is appropriate for settling this question? This is a lot to think about. No answers from me for now.

The Only Thing Worse Than Being Talked About

Is being talked about in a court decision that’s available online for all to see. At least if you’ve sued a former employer, and are looking for a new job. At the Volokh Conspiracy, Eugene Volokh reports on a case in which a man who believes he lost employment opportunities because prospective employers found out about his lawsuit against a previous employer sued companies providing both general internet search and specialized legal databases for making available online materials relating to that litigation. The complaint alleged violations of a variety of statutory and common law rules, but the court dismissed all these claims. The court added that publication of matters of public record, such as court proceedings and materials is, in any event, constitutionally protected.

I think that, in these circumstances, the outcome would be the same in Canada. I cannot see how the publication of court materials, unless the court itself ordered them to remain confidential, can amount to a common law tort; nor am I aware of any statutes that would prohibit it regardless of the circumstances (more on limited exceptions shortly). The constitutional situation is a bit different, since the Canadian Charter of Rights and Freedoms does not directly apply to the common law, though it would apply to a statute.  That difference wouldn’t matter here.

In any case, what concerns me right now is not the current legal situation or the question, which prof. Volokh addresses, whether there “is an adequate justification for suppressing speech about legal documents that have been released by the courts as a public record.” (His response is negative, and I think he is right.) It is the antecedent question whether any and all legal documents should be made matters of public record.

Generally speaking, our legal system favours publicity. The publicity of judicial proceedings helps ensure the impartiality, and perhaps also the quality, of judicial work. As with other branches of government, publicity is important for accountability. Closed, secret, or inaccessible courts are a hallmark of authoritarian political systems. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, the Supreme Court has held that the openness of court proceedings, including the ability of the media to report on them, is an important constitutional value.

Important, but not absolute. The usual presumption of publicity can be overturned in particular cases, where the disclosure of elements of the evidence, normally a matter of public record, may compromise the impartiality of the proceedings (for example by influencing potential jurors) or reveal privileged information, such as commercial secrets. Such cases are regarded as exceptional; importantly, a party who wants the court to make some element of the case confidential has to ask the court to do so, which can be expensive and which many will not think of doing. (For example, refugee claimants rarely ask that their cases before the Immigration and Refugee Board or the Federal Court be anonymized, although if memory serves well, they are entitled to do so.)

But there are also some categorical rules which apply automatically, without a party having to do anything. At issue in Edmonton Journal was one such rule, prohibiting the publication of all sorts of details about family law cases. The Supreme Court held that the law was much too restrictive and thus an unconstitutional restriction of the freedom of expression. But narrower restrictions exist. For instance the names of minors involved in criminal cases are not published – the defendants are known by their initials. And in Québec, family law cases are identified by a number, rather than the name of the parties, with the names of the parties and the places where they live being replaced by initials in the court’s reasons (incidentally, the Alberta statute in Edmonton Journal allowed the publication of these details; Québec’s rule is essentially its mirror image).

The idea – and I think it is a sound one – seems to be that (many of) the positive effects of publicity can result from publishing the court’s decision but not the parties’ names. From the perspective of keeping the courts accountable, the publication of the parties’ names probably matters little; what is important is that journalists, lawyers, and interested citizens know what evidence was before the court and what the court did with it. On the other hand, there is also a legitimate public interest in knowing what is happening to whom, or who exactly is involved in stories that attract attention.

And now I’m coming back to the case I considered at the beginning of the post. So long as access to court materials, or even to judgments, was time-consuming, difficult and expensive, it mattered little that publicity was the rule in most cases. Realistically, only news media would bother accessing these records, and then only in a few cases which attracted sufficient attention to make the effort and expense worthwhile. The internet changes that. It is fairly easy, and relatively cheap or even free, to find materials (at least judgments) from any case one is interested in. Indeed, one need not even know there is a case. It is enough to google someone’s name to find court decisions involving that person. An employer who would not have gone to the courthouse to rummage through files just to see if a prospective employee had ever been involved in litigation can find this out in a matter of seconds from the comfort of his office. Indeed, he may find it accidentally – he might google an applicant’s name without the intention of finding out about the applicant’s litigation history, looking for something else – but that just comes up. However the information comes out, it can be very – and unfairly – damaging, As prof. Volokh points out,

[m]any employers would likely be wary of hiring someone who had sued a past employer, because they might view this as a sign of possible litigiousness. Even if the earlier lawsuit was eminently well-founded, a prospective employer might not take the time and effort to investigate this, but might just move on to the next candidate, especially if [the candidate] is one of several comparably well-credentialed candidates for the same spot.

So here are some questions. Does our general presumption of publicity of court materials still make sense in this new reality that the internet has brought about? Or should we re-balance free speech and privacy, perhaps by making anonymization the default rule? If so, should we make exceptions? A blanket anonymity rule might be problematic, because there are cases where knowing who is involved is very much in the public interest. But are exceptions workable? If not, does this mean we should abandon anonymity after all?

I don’t have answers to these questions. I would love to hear from you.

À quoi sert le lieutenant-gouverneur?

Le Globe and Mail a publié une chronique intéressante de Carolyn Harris, une historienne (et auteure d’un blogue sur l’histoire de la monarchie), réagissanat aux récents propos de Pauline Marois concernant la monarchie canadienne et, plus spécifiquement, l'(in)utilité du lieutenant-gouverneur dans la structure constitutionnelle québécoise.    Selon ce que rapporte Mme Harris, Mme Marois aurait affirmé (je n’arrive pas à trouver le texte de ses remarques) que le lieutenant-gouverneur est un gaspillage d’argent, qu’il ne fait que signer des lois avec lesquelles il n’a rien à voir et dissoudre l’Assemblée nationale à la demande du premier ministre, et n’est qu’une relique du passé qu’il faudrait défier.

Mme Harris critique ces affirmations. Elle rappelle que la monarchie fait partie de l’histoire québécoise tout autant que de l’histoire du reste du Canada; la Nouvelle-France était, après tout, une colonie de la monarchie française. Les grands personnages de son histoire, les Champlain, Talon et Frontenac, étaient des représentants des rois de France. Quant au rôle du lieutenant-gouverneur dans la structure constitutionnelle du Québec contemporain, il est plus imporant que Mme Marois ne le laisse entendre, puisque le représentant de la couronne exerce les pouvoirs de prérogative, notamment ceux de dissoudre ou de proroger l’Assemblée nationale.

Il y a une part d’exagération dans les propos de Mme Haris, puisque, normalement, ces pouvoirs de prérogative sont exercés sur l’avis du premier du premier ministre ou du cabinet. Et, à mon avis, elle réécrit quelque peu l’histoire lorsqu’elle prétend que “[t]he current political structure of the province where Ms. Marois aspires to become premier has its origins in the guarantee of French-Canadian culture by the British Crown,” puisque c’est la législation – impériale, avec l’Acte de Québec de 1774, puis canadienne, – et non la Proclamation royale de 1763, qui a protégé la culture canadienne-française.

Cependant, le rôle du lieutenant-gouverneur est, en fait, encore plus important que Mme Harris ne le dit. Car il y a des pouvoirs que le lieutenant-gouverneur peut et doit exercer seul, et non sur l’avis du premier ministre. Il s’agit, notamment, du pouvoir de nommer le premier ministre lui-même. D’habitude, on ne remarque pas l’importance de ce pouvoir. La convention constitutionnelle exige que le lieutenant-gouverneur nomme la personne la plus susceptible d’avoir la confiance de l’Assemblée nationale. Si un parti a une majorité à l’Assemblée nationale, cette personne sera le chef de celui-ci. Le choix du lieutenant-gouverneur est dicté par les résultats de l’élection. Cependant, si aucun parti n’est majoritaire, les choses se comliquent. Récemment, tant au niveau provincial qu’au fédéral, le représentant de la couronne invitait le chef du parti ayant fait élire le plus grand nombre de députés à former le gouvernement. Mais la convention ne dit pas que ce doit être le cas. Si, par exemple, les partis arrivés 2e et troisième forment une coalition (comme c’est arrivé en Ontario en 1985), c’est le chef de cette coalition qui pourrait obtenir la confiance de l’Assemblée. C’est le lieutenant-gouverneur qui joue le rôle d’arbitre dans l’éventualité d’un conflit. C’est aussi le lieutenant-gouverneur qui décide d’accéder ou non à une demande de dissolution ou de prorogation de l’Assemblée nationale présentée par un premier ministre à la tête d’un gouvernement minoritaire, surtout un gouvernement minoritaire récemment élu (comme, au fédéral, respectivement, dans l’affaire King-Byng de 1926 et lors de la crise de la prorogation à l’hiver 2008-09).

Ainsi, le lieutenant-gouverneur continue de jouer un rôle crucial dans notre système constitutionnel. Il est un arbitre neutre et indépendant qui a le pouvoir de régler les crises constitutionnelles susceptibles de survenir lorsqu’aucun parti n’obtient la majorité de sièges à l’Assemblée nationale à la suite d’une élection. Or, un tel scénario est justement susceptible de se produire à la prochaine élection. Quelles que soient leurs opinions sur l’avenir constitutionnel du Québec, les chefs des partis ont, selon moi, une responsabilité envers les électeurs de bien comprendre et de bien expliquer les arrangements constitutionnels tels qu’ils sont à présent. Mme Marois ne s’en est pas acquittée.

The Art of Judging Art

The New York Times ran a fascinating article yesterday about lawsuits in which courts are asked to rule on the authenticity of works of art. Of course it is a rare judge or member of a jury who has any sort of experience expertise in such matters. So the cases become battles of experts, with the triers of fact “with no background in art” having to “arbitrate among experts who have devoted their lives to parsing a brush stroke.”

As the article points out, this is not, in itself, unusual. Medical malpractice cases are like that – judges and most jurors don’t know the first thing about what good medical practice is. So are a great many other cases. What is unusual is that the art world (buyers and sellers of works of art, and the intermediaries they employ) seems pretty much to ignore the courts’ judgments. The market, the articles says, is “a higher authority” than the courts; an artwork declared authentic by a judge or a jury can still be treated as a fake and go unsold for decades.

One explanation for this, provided by an “art law specialist” quoted by the Times is that “[i]n civil litigation the standard of proof is ‘more likely than not.’ Now picture yourself walking into a gallery and seeing a Picasso. You ask, ‘Did Picasso paint that?,’ and the dealer says, ‘Yes, more likely than not.’ You wouldn’t buy that.” The relevant community – the market – imposes a higher standard of proof (though the article doesn’t tell us which one – is it something like beyond a reasonable doubt, or perhaps an even heavier burden?), and a court judgment will not often meet it, because it is not designed to do so. (Judges, the article notes, are aware of this disconnect.)

Still, although the article does not focus on this, while the community as a whole may be able to ignore the pronouncements of ignorant or credulous judges and juries, the actual parties to the cases are not. If, say, a buyer sues a seller for fraud on the basis that the painting she bought is a fake, and the court finds that it is authentic, she has to live with the judgment, even though the art community may conclude that the judgment is mistaken. The buyer is then stuck with a valueless painting, and no remedy at all. In the same way, I suppose, doctors may think that a colleague of theirs has been unfairly found liable in a malpractice suit, and is actually a great professional and completely blameless in the case – but he still has to pay damages.

This is yet another reminder of the limits of the courts’ ability to grapple with the world’s complexity and to serve as an effective dispute-settling and/or truth-finding mechanism. Other areas in which these limits are manifest on which I have already blogged include foreign policy and emerging technologies. These limits are not necessarily a bad thing; no human institution is perfect. The good news is that we have a number of institutions trying to deal with difficult questions – courts, legislatures, the market, etc. – so we need not rely on just one of them.  Sometimes one will be better at dealing with questions of a particular type, so we can defer to its answer. The bad news is that sometimes it is not clear which is better, and indeed sometimes it is clear that none of them are very good at all (as I concluded was the case for new technologies). In the case of art, it is arguably better to live by the decentralized, collective wisdom of the art community than the necessarily uncertain and ignorant judgments of the courts. That collective wisdom is not infallible, but courts, it would seem, are even worse.