Oui… Non… Peut-Être?

La question de l’application de règles de la Loi électorale québécoise concernant les dépenses électorales des citoyens à des activités sur internet, que j’ai déjà abordée ici et ici, refait encore surface. Selon un article de Radio-Canada, le Directeur général des élections a d’abord conclu que liberaux.net, un site farouchement opposé au Parti libéral du Québec, controvenait à la Loi électorale, qui limite sévèrement les dépenses que toute personne autre qu’un parti politique ou un candidat peut encourir en période électorale pour favoriser ou défavoriser l’élection d’un parti ou d’un candidat; moins de 24 heures plus tard, le DGE a changé d’idée.

Selon Radio-Canada, le DGE a conclu que liberaux.net était un « média citoyen [similaire] à l’un de ceux qui bénéficient de l’exception prévue à l’article 404 de la Loi électorale premier paragraphe, lequel garantit la liberté d’expression des médias en spécifiant qu’il ne s’agit pas d’une dépense électorale ». La créatrice du site insiste, elle aussi, sur le fait qu’elle est une simple citoyenne. Elle n’aurait, en fait, rien dépensé pour créer le site, sauf son travail bien sûr, et l’hébergement du site lui aurait été offert gratuitement.

Selon moi, le DGE a tort dans son interprétation de la Loi électorale. Il l’interprète pour lui faire dire ce qu’elle devrait peut-être dire, mais qu’elle ne dit pas. La disposition pertinente, le paragraphe 1 de l’article 404, exclut de la définition de « dépenses électorales »

la publication, dans un journal ou autre périodique, d’articles, d’éditoriaux, de nouvelles, d’entrevues, de chroniques ou de lettres de lecteurs, à la condition que cette publication soit faite sans paiement, récompense ou promesse de paiement ou de récompense, qu’il ne s’agisse pas d’un journal ou autre périodique institué aux fins ou en vue de l’élection et que la distribution et la fréquence de publication n’en soient pas établies autrement qu’en dehors de la période électorale.

Le texte anglais de cette disposition parle de

the cost of publishing articles, editorials, news, interviews, columns or letters to the editor in a newspaper, periodical or other publication, provided that they are published without payment, reward or promise of payment or reward, that the newspaper, periodical or other publication is not established for the purposes or in view of the election and that the circulation and frequency of publication are as what obtains outside the election period.

Le problème de liberaux.net, c’est qu’il ne s’agit pas d’ « un journal ou autre périodique ». Un périodique, selon le Dictionnaire de l’académie française, est une publication « qui paraît par livraisons successives, dans des temps fixes et réglés ». La référence, dans la Loi, à la fréquence de publication du « journal ou autre périodique » confirme que le législateur avait ce sens à l’esprit. Un quotidien, un hebdomadaire, une revue qui paraît dix fois l’an, ce sont des périodiques au sens de la Loi électorale. Un site web qui est mis à jour au gré de la motivation et des envies de son auteur n’en est pas un.

On pourrait être tenté de se rabattre sur le texte anglais, en apparence plus permissif, puisqu’il parle de « newspaper, periodical or other publication » (mes italiques). Mais même en mettant de côté la définition de “publication” de l’Oxford English Dictionary comme « a book or journal issued for public sale », à laquelle un site web ne correspond absolument pas, je pense que c’est bien le texte français qui reflète l’intention du législateur, vu la référence – dans les deux langues officielles – à la fréquence de la publication.

De plus, l’interprétation « technologiquement neutre » du DGE va à l’encontre de l’économie de l’article 404 de la Loi électorale qui contient des dispositions séparées, aux paragaphes 1, 2 et 3, s’appliquant respectivement à la presse périodique, aux livres et aux médias de télécommunication (radio et télévision). Selon moi, cette interprétation est donc erronée.

Il est sans doute regrettable – je dirais même ridicule – que la Loi électorale n’accomode aucunement l’expression des citoyens sur internet. En comparaison, la Loi électorale du Canada exempte de sa définition de « publicité électorale », à l’alinéa 319(d), « la diffusion par un individu, sur une base non commerciale, de ses opinions politiques sur le réseau communément appelé Internet ». On pourrait bien sûr se demander si cette exemption est suffisante. (Pourquoi s’applique-t-elle à des inidvidus, mais pas à des groupes, par exemple?) On pourrait aussi se demander une disposition « technologiquement neutre », s’appliquant à toute forme d’expression citoyenne, ne serait pas préférable à des dispositions particulières à chaque média. Quoi qu’il en soit, la disposition fédérale, c’est mieux que rien.

Or, la loi québécoise n’en contient pas d’équivalent. Il n’appartient pas au DGE, qui doit faire appliquer la loi, de la réécrire, si souhaitable cette réécriture soit-elle.

Legal Self-Services, Part Deux

Just a follow-up to yesterday’s post about the impact of a “self-service mentality” on the legal profession. This mentality, I suggested, is part of what explains the surge in self-representation. Josh Blackman, of South Texas College of Law, says something similar in a blog post, but his perspective is different and more optimistic. Prof. Blackman points out that “[t]he very same generation of law students who like to do things ‘self-service’ are also the MBA students who will want to obtain legal services in that fashion.” He thinks that self-service-oriented lawyers will be better positioned to meet that demand.

That’s correct I suppose. And it may well be that sophisticated clients can use the legal self-service to their advantage. Perhaps – indeed, hopefully – the self-service model can be adapted for “ordinary” litigants as well, allowing them to benefit from a form of professional help without having to pay the full price if they cannot afford to. The trouble, however, is that those who are categorically averse to paying for legal services because they think they can learn all they to know about the law on their own – which, I am sure, is the case of more than a few, though probably a minority, of self-represented litigants – will not take advantage of the self-service model.

The self-service mentality is already changing the legal profession and affecting the access to justice problem, and its effects will only become stronger. It is change both for the better and for the worse.

Legal Self-Services

Jim Gardner, of SUNY Buffalo, has an interesting post at The Faculty Lounge, arguing that

[t]he capacity to acquire information, shop, travel, and do almost anything without human intermediation is conceived as a right, or at least a new baseline norm.  Insistence upon the necessity of human interaction as a condition for completing a transaction is now the deviation requiring justification.  At the same time, whether human adjuncts to transactions add value seems to be a matter of deep skepticism.

This certainly rings a bell. For what it’s worth, I usually prefer finding information myself (online) to asking for it; I am annoyed when I have to go to a bank teller instead of just using an ATM; and so on. (Though, unlike in prof. Gardner’s most extreme example, I have not taken to resolving disagreements with my room-mate via texting.) In prof. Gardner’s view, this creates problems for legal education (because students are skeptical about the value of human educators and advisers) and is bound to create problems for lawyers who, imbued with this self-service mentality, might lack the personal skills necessary to be professional, effective “human adjuncts”.

But there is another way in which the self-service mentality is already affecting the legal profession. As anyone involved with the legal system probably knows, it is increasingly common for litigants to represent themselves, causing no end of grief to themselves and serious troubles to lawyers and judges who have to deal with them. And while the cost of legal services, and lack of funding for legal aid (especially in civil matters) is a major cause of this problem, it is not the only one. People choose to forego professional assistance, even when they could afford it. They take false confidence from the availability of a great deal of legal information on the internet. The emergence of the self-service mentality described by prof. Gardner helps explain why.

But although share that mentality myself, it is important to stress that when it comes to law – as probably in at least some (though surely not all) other areas – it is a dangerous one. For people who choose to represent themselves rather than rely on a lawyer, consequences tend to be sad. As I wrote here,

law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

As I said back then, if you can help it, don’t try it at home.

***

My apologies for the lack of posts lately. There seems to be little going on worth posting about, or perhaps my brain is in aestivation.

Brandishing Banishment

There was an interesting op-ed yesterday in the Globe & Mail, by Lorne Neudorf, a Cambridge PhD candidate, discussing the status and use of banishment as a punishment in Canadian law. Contrary to what we might be incline to suppose, banishment, understood as a legal injunction preventing the person subject to it from living in a certain place, is not just found in Norse sagas. It is, Mr. Neudorf writes, “banishment is an instrument in the judicial toolkit” in Canada:

Although rare, banishment orders are not unknown in Canadian law. Territorial restrictions may be built by judges into peace bonds, terms of bail and probationary orders as part of a sentence where permitted by the Criminal Code. Such orders require the accused to stay away from a particular geographic area for the safety of victims or for the benefit of the accused’s rehabilitation for a limited period of time. Banishment-type orders must balance these objectives with the potentially disruptive effect of the order on the accused and the accused’s constitutional rights, such as those to freedom of mobility and protection against cruel and unusual punishment.

Another consideration, he adds, it is not fair to protect one community, from which a person is banished, by dumping a trouble-maker on another community.

Mr. Neudorf’s review of the case law is instructive and worth a read. For my part, I am not very knowledgeable about this topic, though “a study of banishment” is actually on my ever-growing list of papers it would be interesting to write. (It is, alas, much easier to think up a bunch of great topics than to write even one mediocre paper!) I can only point to a few sources for further reading for those interested and some random thoughts:

1) A paper by UVic’s Jeremy Webber on “The Grammar of Customary Law,” which (among other interesting things) devotes considerable attention to aboriginal legal traditions, in many of which

the respect for autonomy extends to the very interpretation of society’s norms. There is great reluctance to impose a particular interpretation of the law either on any member (in some societies) or on someone of high rank (when the society is hierarchically ordered). Such an imposition is considered deeply incompatible with the person’s dignity. Indeed, this respect for a person’s moral autonomy may contribute to the prevalence of banishment as a punishment in many indigenous societies: rather than forcing compliance, the community treats offenders as having, by their conduct, placed themselves outside society. (606)

Actually, I think it makes sense to say that, if banishment is a response to a reluctance to impose an interpretation of norms, it is not really a form of punishment, but merely a form of dispute-resolution (or rather, dispute-avoidance). In the same way, a group of people can play a game according to some peculiar rule, and tell someone who is insisting that that’s not how it’s supposed to be played to play along or to leave. This group has no power to “punish” in a real sense, and banishment is the only way it can deal with disagreement, at least if negotiation fails. Similarly, it makes sense to say that expulsion from Canada of a non-citizen convicted of a serious crime – surely the most frequent use of banishment in Canadian law – is not a form of punishment (indeed it would arguably be unconstitutional if it were interpreted as such, because it would be discriminatory to punish non-citizens more severely than citizens for the same crime), but also a response to a refusal to “play along.”

2) The Supreme Court’s decision in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, dealing with an attempt by a private (religious) community to expel recalcitrant members, thereby depriving them of their property rights. Like portions of prof. Webber’s paper, it is also a study of the interaction between state and non-state, and formal and informal normative orders, and raises the question whether banishment is a form of punishment or something else (and indeed whether that’s a yes-or-no question).

3) Last but not least, a recent article by Yale’s Oona Hathaway and Scott Shapiro in the Yale Law Journal on “Outcasting: Enforcement in Domestic and International Law,” which I have not yet had a chance to read, but which seems to argue that “outcasting” or banishment is a form of law enforcement―perhaps raising questions about distinction between enforcement and punishment.

Interpreting Interpretations

I would like to come back to the two cases I mentioned in yesterday’s postA.-G. Canada v A.-G. Ontario, [1937] A.C. 326, better known as the Labour Conventions Reference, and Missouri v. Holland, because they might tell us something about a problem much broader than the issue (important though it is in its own right) that they addressed, the ability of a federal legislature to legislate in order to implement a treaty if similar legislation would be, in the absence of the treaty, of the resort of state or provincial legislatures. The judgments in the two cases are an interesting comparison, being authored by two of the greatest judges of their respective countries (and of the common law world), less than two decades apart – and arriving at diametrically opposed conclusions. One apparent difference between the reasons Lord Atkin and Justice Holmes give for their respective conclusions lies in the interpretive methodologies they use. Could it explain the difference of outcomes?

Lord Atkin’s discussion of s. 132 of the Constitution Act, 1867, and his dismissal of the possibility that this provision justifies Parliament’s power to legislate in order to implement a treaty is remarkably formalist/originalist. S. 132 provides that “[t]he Parliament … of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.” The federal government argued that, in light of Canada’s accession to independence and becoming able to enter into treaties on its own (rather than as part of the Empire), which was not anticipated when the Constitution Act, 1867, was drafted and enacted, this provision should be interpreted as giving Parliament the power to implement not only imperial treaties, but also those concluded by Canada. Not so, says Lord Atkin: “it is impossible to strain the section so as to cover the uncontemplated event” (p. 7 in the document linked to). This from a body which, only a few years earlier, berated the Supreme Court of Canada for its originalism and refusal to “strain the section” in Edwards v. A.-G. Canada, [1930] A.C. 124, better known as the Persons Case, famously insisting that “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”

Now I actually think that Lord Atkin could have made a plausible principled argument for why s. 132 could not be applied to treaties concluded by Canada in its own capacity. Relative to the Canadian constitutional order, imperial treaties were external events; they could be imposed on Canada, without much regard for the usual framework of Canadian federalism and democracy. So arguably it did not matter much which legislature was given the power to implement them. By contrast, the implementation of Canadian treaties, the products of Canada’s own constitution, should respect this framework. (It is perhaps for this reason that s. 132 is found among the “miscellaneous” provisions of the Constitution Act, 1867, rather than along with the distribution of legislative powers in ss. 91-95.) Indeed, Lord Atkin might be hinting at something like this argument, mentioning a “distinction between … obligations imposed upon Canada as part of the Empire by an Imperial executive responsible to and controlled by the Imperial Parliament and … obligations created by the Dominion executive responsible to and controlled by the Dominion Parliament.” But Lord Atkin says it is “unnecessary to dwell upon” this, and it seems not to be the reason for his holding concerning the meaning of s. 132, which is purely what would now be called textualist or originalist.

By contrast, Justice Holmes in Holland explicitly rejects these interpretive methodologies (at 433):

when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

A constitution, says Justice Holmes, should be interpreted in light only of today’s practical concerns. The treaty and legislation at issue concern migratory birds,

a national interest of very nearly the first magnitude … . It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. (435)

(Incidentally, although I am very far from being an expert on the topic, I do not recall any attempts to engage with these arguments in the literature dealing with originalism.)

But is drawing this contrast between Lord Atkin’s and Justice Holmes’s judgments enough to say that interpretive approaches explain their contrary conclusions? It might make sense to suppose that a textualist/originalist approach to the interpretation of federalist provisions of a constitution is likely to be more favourable to state or provinces, while a practical or principled one will favour federal governments. Changes in the way our societies function (in the economic realm especially) seem to dictate larger roles for central governments at the expense of local ones. Some have characterized the Supreme Court’s ruling in Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, declaring unconstitutional the establishment of a federal securities regulator, as impractical and stuck in the 19th century.

Yet if one looks carefully at the reasons in the Labour Conventions Reference and in Holland, things are not so neat. Justice Holmes is a textualist when he parses the Supremacy Clause of Article VI of the U.S. Constitution for confirmation of the status of treaties, while Lord Atkin is mindful of principle and of practical concerns when he calls our attention to the reasons behind the federal division of powers in the Constitution Act, 1867, and insists that “[i]n totality of legislative powers, Dominion and Provincial together, [Canada] is fully equipped” (p. 10) to implement any treaty it enters into. Debating the merits, whether in terms of legitimacy or of consequences, of constitutional interpretive methodologies can be entertaining (as the American academia’s fascination with such debates attests). But it is questionable whether their real-life application is ever so pure as to make the ostensible choice of one methodology over another matter much.

Go Ask Your Mom!

Is it conceivable that states, like a child who, denied by one parent, asks the other to let them stay up late, ask around for permission to do something they would not normally be permitted? Lord Atkin enlisted the threat of such a course of action as an argument in his famous opinion for the Judicial Committee of the Privy Council in The Labour Conventions Reference, writing (at p.9 in the document linked to) that “it would be remarkable that while the Dominion could not initiate legislation however desirable which affected civil rights in the provinces, yet its government … need only agree with a foreign country to enact such legislation.”

The judgment, denying Parliament the ability to enact social legislation it felt was necessary to respond to the Great Depression on the ground that such legislation was for the provinces to adopt, made a lot of people furious and, if I remember well, F.R. Scott for example criticized this suggestion as being fanciful fear-mongering. Justice Holmes, writing for the majority of the Supreme Court of the United States in Missouri v. Holland, 252 U.S. 416 (1920), a case that presented much the same issue as Labour Conventions, did not even consider this question, and went on to hold – contrary to Lord Atkin and the Privy Council – that the federal legislature could legislate to implement an international treaty regardless of its (dis)ability to enact the same legislation in the absence of a treaty.

But recent developments suggest that Lord Atkin’s worry it is not so crazy anymore, if it ever was. On intellectual property for example, states (and supranational organizations such as the European Union) have apparently taken to using free-trade agreements as vehicles for smuggling into their domestic legislation restrictive rules on intellectual property which they would might find politically impossible to enact in stand-alone statutes visibly devoted to this purpose, as University of Ottawa’s Michael Geist has detailed in a series of blog posts.

Of course, there is a crucial difference between this example and the Labour Conventions case. The impediments to legislative expansions of IP rights are (mostly) purely political, not constitutional. In such cases, Lord Atkin’s “watertight compartments” (p. 10) are of no assistance. Nonetheless, his insistence that the existence of an international treaty should not prevent us from insisting that the usual constraints, be they constitutional or political, on government power ought always to be be upheld. Foreign governments should not be able to play the lenient parent if domestic courts, or voters, are inclined to be strict.