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.

No Resraint

The Superior Court of Québec issued a potentially far-reaching decision last week, declaring a number of provisions of the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393, constitutionally inapplicable to the CBC/Société Radio-Canada. In Association des Réalisateurs c. Canada (Procureur Général), 2012 QCCS 3223, justice Lise Matteau held that the application of provisions limiting salary raises that could be offered to civil servants to Radio-Canada’s employees was a violation of their right to freedom of association, protected by s. 2(d) of the Charter.

The Expenditure Restraint Act sets out upper limits on the extent of pay raises that the government and a number of crown corporations are entitled to grant their employees, as part of a package of measures responding to the global economic crisis and the ensuing budgetary difficulties. Provisions of collective bargaining agreements stipulating higher raises are invalid to the extent that they exceed the limits allowed by the statute, whether the agreement was entered into before or after its enactment. This means that the statute retroactively changes some collective agreements, including those of concluded by the plaintiffs in Association des Réalisateurs.

This, they said, deprived them of their right to engage in meaningful collective negotiations with their employer over the terms of their employments, in violation of s. 2(d) of the Charter as interpreted by the Supreme Court. Justice Matteau accepted this submission. Salary questions are key to the employees’ relationship with the employer and thus being able to negotiate on them is essential for the plaintiffs’ collective-bargaining rights to be meaningful. By setting aside the agreement reached between the plaintiffs and their employer, the Expenditure Restraint Act infringes on their right to collective bargaining.

The next question the court had to decide is whether the infringement was justified under s. 1 of the Charter. Although the plaintiffs challenged the government’s claim that the Expenditure Restraint Act addressed pressing and substantial concerns, Justice Matteau accepts it, given the context of economic crisis and budgetary pressure in which it was enacted. However, she holds that the application of the statute to CBC/Radio-Canada’s agreements with its employees is not rationally connected to the objective of reducing expenditures and controlling the salaries of the public sector employees. That is because the government financing of the CBC/Société Radio-Canada does not depend on the contracts it negotiates with its employees. The government gives the CBC a lump sum of money, and the corporation decides what to do with it. Cutting or limiting the growth of the CBC’s payroll does not change its lump sum subsidy and thus doesn’t help the government’s finances.

This seems like the correct result in light of the Supreme Court’s s. 2(d) jurisprudence, although I am far from being an expert in this area. But, assuming that the decision is indeed correct, it helps illustrate just how troubling that jurisprudence is. The problem is not so much the decision itself. If the court’s analysis of the CBC’s financial relationship with the government is right, there seems to be relatively little reason for imposing salary restraints on the CBC’s employees, except perhaps the rather speculative claim that, if allowed to raise its salaries as it pleases, the CBC will end up asking for – and obtaining – unaffordable financing increases from the government.

But the more troubling question is whether courts should be policing propriety of Parliament interference with collective agreements between the government and civil servants in the first place. I think that a consideration of the institutions involved and the rights at stake suggests a negative answer.

Consider, first, the institutions. Suppose a civil servants’ union challenges the Expenditure Restraint Act. As applied to actual civil servants, it presumably is rationally connected to its objectives. So the court hearing the case will need to proceed to further stages of the s. 1 analysis – asking itself whether the restrictions it puts in place are minimally impairing of the s. 2(d) right and whether its beneficial effect outweigh the deleterious ones. Can it do so? Are courts really in a position that the limits on negotiating salaries that Parliament imposed were as little as possible? Although some comments made in obiter by Justice Matteau suggest that it would have been enough for the government to consult the unions, I wonder whether this is so considering that, after the consultation, Parliament still went ahead and imposed binding legislation. Deciding whether this legislation really was minimally impairing requires, it seems to me, analyzing the government’s budgetary situation, which is not something the courts are equipped for doing. And quite apart from institutional competence, there is the question of who, as a matter of legitimacy or political morality, ought to control government spending. The Stuart kings asserted the power to do so – and Charles I had his head cut off for his troubles. Since then, nobody has seriously challenged Parliament’s power of the purse. Is the Canadian judiciary prepared to do so?

It might be said that, when rights are at stake, it should. And, to be sure, enforcement of Charter rights sometimes results in the courts, in effect, requiring the government to make expenditures – in the area of language rights for example. But what sort of rights are at issue here? Courts say it is about a meaningful freedom of association. But the effect of the judgments in Association des Réalisateurs is to prevent Parliament from interfering with a private contract (between the CBC and its employees). Now that might be a good thing if you believe in freedom of contract. But it is clear that the framers of the Charter made a fundamental, deliberate choice not to protect economic rights – property and freedom of contract. This decision – and the Supreme Court’s jurisprudence from which it is derived – seems to say that trade unions have a constitutional right that no other Canadian has. Whatever one thinks, substantively, of the merits and demerits of unions, their being more equal than the rest of us this ought to be troubling.

Although the expression is often overused, I think that this is an area in which judicial restraint is really called for. I suppose the government will want to appeal the decision in Association des Réalisateurs. Perhaps the Supreme Court will yet have an opportunity to show some.

The Prerogative of High-Handedness

Today, the Federal Court of Canada has issued its decision in Turp v. Canada (Justice), 2012 FC 893, rejecting Daniel Turp’s challenge to the federal government’s decision to withdraw Canada from the Kyoto Protocol. Unambiguously correct in law, this decision illustrates the importance of politics, and the limits of the power of the courts to hold governments to account.

Mr. Turp contended that the decision to withdraw from the Kyoto Protocol was a violation of the Kyoto Protocol Implementation Act (KPIA) enacted by Parliament in 2007 and of the constitutional principles of the Rule of Law, separation of powers, and democracy. The government argued that it acted pursuant to the royal prerogative which gives the executive broad authority to conduct foreign affairs, including to enter in and withdraw from treaties, and that constitutional principles did not reduce this discretion.

The court acknowledged that a statute such as the KPIA can limit royal prerogative and direct the government’s action in an area where the prerogative, in the absence of legislation, would have made it discretionary. Such a limitation must, however, be expressed with some (though it is perhaps not clear how much) clarity. After examining the KPIA, the court finds that it simply does not do this. While its stated purpose is to ensure that Canada meets its obligations under the Kyoto protocol, the court points out that “the government’s decision to withdraw from the Protocol is clearly provided by article 27 of that Protocol and thus the government was in compliance with it.” Furthermore, the obligations the KPIA itself imposed on the government were not justiciable, and the statute has anyway now been repealed. There is no violation either of the statute or of the Rule of Law principle.

The court made short work of the remaining arguments based on the principles of separation of powers and democracy. Separation of powers is not infringed since the power to decide to withdraw from the Kyoto Protocol remained with the executive, not having been removed from it by statute. And any decision to consult Parliament, as the government had done before ratifying the Kyoto Protocol in 2002, is strictly voluntary. It is not constitutionally required.

In the realm of foreign policy, the government is for the most part constitutionally free to be stupid, to be high-handed, to act in disregard of Parliament’s wishes. It is for Parliament, and ultimately for the voters, to find remedies for these problems. Mr. Turp apparently intends to appeal, but he would be well advised not to waste his time and money on judicial battles, and to save his energy for politics.

The Moneyed Interests

Restrictions on pre-electoral spending by citizens and groups other than political parties and their candidates (known in the jargon as “third-party spending”) have gained a rather unlikely supporter: Tom Flanagan. Prof. Flanagan, arguably Canada’s most prominent conservative thinker, has come out in support of such restrictions in an op-ed in the Globe and Mail.

This might seem surprising because conservatives (and libertarians) have usually opposed restrictions on third-party spending, while the left supported them. (Indeed, prof. Flanagan says he opposed the enactment of third-party spending restrictions while Jean Chrétien was Prime Minister.) The support for restrictions was always based on the fear of the pernicious influence of moneyed interests in politics. John Rawls, for example, argued that without spending restrictions, the rich would take over the political process and prevent the enactment of the sort of re-distributive policies he thought were necessary for society to be just. But the reality, as it turns out, is more complicated, which explains prof. Flanagan’s change of heart.

Prof. Flanagan points out that during the last election campaign in Ontario, public-sector trade unions spent large amounts of money on electoral advertising: “[t]ogether, the three spent more on advertising in the writ period than either of the main parties.” Furthermore, this spending all pursued a single objective – to attack the Progressive Conservative Party. Prof. Flanagan argues that it thus effectively amounted to support for the Liberals. The unions would not have been able simply to give that much money to the Liberals, but the absence of limits on third-party spending allowed them to circumvent the limits on direct contributions to political parties.

Prof. Flanagan thinks this has terrible consequences, though if your politics differ from his, you are likely to disagree. What should not be controversial is that third-party spending limits – or their absence – do not necessarily have the effects Rawls and other supporters of these limits on the left expected them to have. It is not only the rich who have a lot of money. It is also the not-so-rich who are able to pool their resources together, through trade-unions for example, or student unions (which are bound to run into the strictures of Québec’s spending restrictions when an election is called, as I have been saying for months). They too are the moneyed interests whom third-party spending limits prevent from getting their message across as effectively as they would like. Both on the left and on the right, those whose opinion of spending limits is based on the conventional wisdom that they prevent the “rich” from gaining a stranglehold on the political process and thus help the “powerless” need to reconsider their views.

Ne parlez pas en bien, ne parlez pas en mal

Radio-Canada a mis en ligne une entrevue avec Denis Dion, un porte-parole du Directeur général des élections du Québec, portant, pour l’essentiel, sur l’application éventuelle de la Loi électorale, et notamment de ses règles concernant les « tiers »,  aux médias sociaux, vu l’importance du rôle qu’ils pourraient jouer dans la prochaine campagne électorale. C’est un sujet qui attire beaucoup d’attention dernièrement. D’ailleurs, je l’avais évoqué ici il y a quelques semaines.

M. Dion soutient que « [l]a Loi électorale n’a certainement pas pour but de limiter les débats dans la société québécoise durant les 33 jours de la période électorale ». Ce n’est pourtant manifestement pas vrai. En imposant des limites sévères aux dépenses des partis et des candidats, et en interdisant presque toute dépenses par quelque autre personne, la Loi électorale a pour effet de limiter les débats, et cet effet est tellement fort et prévisible qu’il est difficile de prétendre que telle n’était l’intention du législateur lorsqu’il adoptait la loi. En fait, M. Dion en est conscient. Comme il dit lui-même, la Loi électorale « exclut la participation des personnes qui viendraient à côté des … partis pour faire des dépenses ce qui désiquilibrerait ce que la loi veut équilibrer » – c’est-à-dire les ressources des différents partis politiques, qui sont, comme je le soulignais ici, les acteurs centraux, dominants, du système électoral. (D’où le choix révélateur de la préposition « à côté » par M. Dion.) On pourrait envisager plusieurs façons – certaines plus pratiques que d’autres ― d’atteindre cet équilibre. La Loi électorale représente un choix clair en faveur d’un système qui préserve cet équilibre en baillonant tous ceux qui risqueraient de le rompre.

Pour ce qui est de l’application de la Loi électorale aux médias sociaux, M. Dion confirme ce que j’écrivais il y a deux semaines et demie: la communication d’un message électoraliste par les médias sociaux n’est pas une dépense électorale au sens de la loi, puisqu’elle ne coûte rien à son auteur. Par ailleurs, il rappelle aussi qu’un message ne sera pas couvert par la loi s’il ne tend pas à favoriser ou à défavoriser l’élection d’un parti ou d’un candidat en particulier. Ainsi, dit M. Dion, « votez contre ceux qui soutiennent la hausse des frais de scolarité » est un message partisan qui sera couvert par la loi si son auteur paie pour le diffuser, alors que « votez pour l’accès à l’éducation » ne l’est peut-être pas. Finalement, rappelle M. Dion, on peut aussi échapper à l’effet de la Loi électorale « [s]i de par votre notoriété il y a toujours un journaliste qui vous court après » et que tout ce que vous dites se retrouve dans les médias, sans que vous n’ayez à payer. Un rappel, probablement pas intentionnel, du fait que la Loi électorale favorise les groupes bien établis au détriment des nouveaux-venus, dont les journalistes ne font pas la promotion gratuite.

Les médias sociaux auront-ils un effet important sur la prochaine campagne électorale? Difficile de le dire pour l’instant. Cependant, c’est une possibilité. Si ça s’avère éventuellement être le cas, dit M. Dion, « peut-être faudra-t-il adapter nos lois étant donné l’évolution de la façon dont les messages sont diffusés ». J’aurais bien aimé qu’on lui demande dans quel sens cette modification pourait aller. Comme je l’écrivais ici, on pourrait conclure que, puisque les médias sociaux permettent à quiconque de diffuser des messages électoralistes de façon plus ou moins illimittée, les limites imposées à la diffusion de tels messages par les moyens traditionnels ne sont plus utiles. Cependant, on pourrait aussi conclure que la seule façon de garder les partis politiques au centre du débat pré-électoral, c’est de commencer à censurer la diffusion de messages électoralistes sur les médias sociaux. M. Dion et son patron ont-ils les ressources et la volonté pour le  faire?

Minus the Mandatory Minimum

Last week, another mandatory minimum sentence introduced as part of the federal government’s “tough-on-crime” agenda was declared unconstitutional, this time by the Ontario Court of Justice. The provision at issue in R. v. Lewis, 2012 ONCJ 413, is par. 99(2)(a) of the Criminal Code, and imposes a mandatory minimum of three-years’ imprisonment for a first-time firearms trafficking offence.

The accused had sold some cocaine to an undercover police officer posing as a low-level dealer, and offered to sell him a handgun. The judge found, however, that that was a “hollow offer” never intended to be followed through on. The accused never had a gun or access to one―he only boasted of his ability to procure one in order to keep his new client’s business. Still, offering to sell a firearm is enough to bring one within the scope of the trafficking provision of the Criminal Code. After he was arrested and charged, he pled guilty to three counts of trafficking in cocaine, but challenged the charge of weapons-trafficking, arguing that the mandatory minimum sentence on it was unconstitutional because contrary to the prohibition on “cruel and unusual … punishment” in s. 12 of the Charter.

Adopting the test developed by the Superior Court in cases dealing with another mandatory minimum provision, justice Bellefontaine held that he had to decide, first, whether the sentence he would impose absent the mandatory minimum would in fact be less than that minimum, and second, if so, whether it was contrary to s. 12 and could not be saved by s. 1 of the Charter. To the first question, the judge answered that, although the accused’s blameworthiness for this offence was ” at the very low end of the spectrum of offences” since he never actually meant to sell a firearm, in view of his rather lengthy history of criminality, some of it violent, a one-year sentence would have been appropriate. That, of course, is well short of the statutory minimum.

The question of that minimum’s constitutionality must then be dealt with. The test set out by the Supreme Court “is whether [the sentence] is so excessive or grossly disproportionate as to outrage standards of decency.” This test must be applied both to the actual circumstances of the accused and to a reasonable hypothetical case; if the sentence fails it in either instance, it is unconstitutional. As applied to Mr. Lewis, the judge finds that the statutory minimum is disproportionate, but not so grossly as to be unconstitutional, given his “significant criminal antecedents and entrenched devotion to a criminal lifestyle.” The outcome is different, however, for a hypothetical accused in whose case these aggravating circumstances would not be present and who would be, say, trafficking in marijuana rather than cocaine. In that case, says justice Bellefontaine, a three year sentence would be outrageously disproportionate:

[w]hile the words “one year” or “two years” or “three years” slide off the tongue equally easily, they represent large magnitudes of difference to a youthful first offender serving the sentence.  A three year sentence will necessarily be served in the harsh environment of a federal penitentiary with generally older and many hardened violent criminals.  Such a length of sentence and the severe environment it would be served in would effectively eliminate rehabilitation as a sentencing objective when it should be the primary purpose of sentencing for a youthful first offender.  That length of sentence would not be required for specific deterrence.  Such a grossly disproportionate sentence could not be justified on the basis of general deterrence or the protection of the public.

The judge then proceeds to the s. 1 analysis. After referring to another recent mandatory-minimum case, he concludes that

Parliament has imposed a minimum penalty that addresses a worse case offence but which grossly over penalizes the many lesser ways that the same crime can be committed.  The minimum three year sentence does not address the different degrees of moral blame worthiness associated with the different circumstances under which the offence can be committed and accordingly the penalty does not meet the minimal impairment and proportionality tests in R. v. Oakes, [1986] 1 S.C.R. 103 and cannot be justified under Section 1.

The judge briefly considers reading down the mandatory minimum to apply to actual trafficking cases, as opposed to those, such as the one at bar, of offers to traffic, but finally declines to do so. Accordingly, he declares the mandatory minimum provision unconstitutional.

James Morton, a former president of the Ontario Bar Association, argues that this is the wrong decision. “[W]ould reasonable people really be outraged by a fixed minimum sentence of three years for firearms trafficking? Is such a punishment truly grossly excessive? … The gun trafficking minimum sentence is one of those areas where the courts should have exercised more deference to parliament.” I don’t think so. If the constitution invalidates excessive sentences, just like it invalidates, say, laws infringing on freedom of speech, or federal laws invading provincial jurisdiction, then why should courts be more deferential to allegedly unconstitutionally harsh laws than to other potentially unconstitutional ones? What Mr. Morton’s comments do suggest is that it is problematic for courts to make popular feeling, of which they cannot be very good judges, a criterion of constitutionality. I doubt that courts actually take such references to popular feeling very seriously. But if so, they should drop the pretense.