Further Gun-Registry Litigation Update

Radio-Canada reports that the safeguard order preventing the destruction of the long-gun registry data relative to Québec has been extended, presumably until the merits hearings now due to be held in June. The federal government had claimed that the safeguard order was not necessary because no data would be destroyed before August – yet both Radio-Canada’s report and the CBC indicate that the process has already started, except for Québec.

This raises an interesting issue, which I already referred to. Québec argues that the unilateral destruction of the gun-registry data by the federal government is unconstitutional. If it prevails at the merits hearings (and eventually on appeal, if any), then it will turn “turn out” that the federal government acted unconstitutionally in destroying the data. Would this have any legal consequences? Perhaps not. For now, it seems that no one, except the Québec government, is very interested in the data. But suppose a newly elected government in an other province wants to create a provincial registry. Because of the destruction of the data, this is going to be complicated and expensive. Could it sue the federal government for acting unconstitutionally (and recklessly so, since Québec’s suit ought to have alerted it to the dubious constitutionality of its actions), and try to recover damages to pay some of the costs? Would the federal government argue that the province is estopped, not having itself raised the issue (and joined Québec’s suit)? Off the top of my head, I do not recall any remotely similar cases, but this could get interesting.

Emergency Wiretaps and Privacy Rights

Well, the Supreme Court of Canada has great timing. Or maybe I do, but saying that would be immodest, right? In any case, the day after I wrote that the Court latest privacy decision was a mess, it has released its decision in R. v. Tse, 2012 SCC 16, addressing the conflict bewteen the right to privacy protected by s. 8 of the Charter and s. 184.4 of the Criminal Code authorizing warrantless interception of private communications by a peace officer if

(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained … ;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The Court’s decision is unanimous, and authored by its two newest members, Justices Karakatsanis and Moldaver. The Court holds s. 184.4 unconstitutional, because it does not create any mechanisms by which the peace officers engaging in warrantless wiretapping can be held accountable. Parliament now has a year to re-write the legislation to bring it in conformity with the Charter.

Generally speaking, warrantless searches (including interceptions of private communications) are contrary to the Charter. But they can be justified in emergencies. The question in this case, says the Court, is whether s. 184.4 “strike[s] a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm?” The Court spends a considerable time on clarifying the interpretation of s. 184.4, ensuring that it remains a narrow and exceptional source of authority, to be used only in circumstances of “dire emergency.” It also expresses concern at the fact that this authority might be conferred on too many people – not only police officers but other “peace officers”, including mayors and prison guards. But since this case implicates police officers, there is no record on the basis of which to conclude that this renders s. 184.4 over-broad.

The trouble with s. 184.4, says the Court, is that, unlike other provisions allowing interception of private communications, its use is subject to no after-the-fact accountability measures. At least one such measure, disclosure to the parties whose communications were intercepted, is constitutionally required. Others, such as reporting to Parliament and record-keeping would be welcome, but are not necessary. In its present form, s. 184.4 does not meet the requirements of s.8 Charter. Furthermore, it cannot be saved under s. 1, since a less restrictive measure – a similar provision incorporating after-the-fact notice requirements – is easily available to Parliament.

Seems like a good decision to me. Interestingly, expectations of privacy do not feature at all in the Court’s analysis. It does not ask itself whether it is generally expected that infringements of our privacy will be reported to us. It simply holds that that the Charter requires that they be. Perhaps this is one way out of the problem which so bothered Judge Kozinski and about which I wrote yesterday. Still, courts cannot operate in a vacuum. When they ask themselves whether a search of seizure is “unreasonable,” they bring their, and society’s, expectations to the table. We cannot count on courts to protect our privacy to a much greater extent than we want it protected.

Privacy in the Past, Present, and Future

Our own actions – individual and collective – set the upper limit of our privacy rights. We will never have more privacy rights than we care to have, although we often have fewer. One stark illustration of this idea comes in Isaac Asimov’s short story “The Dead Past,” in which a group of scientists build and, despite the government’s best efforts, thoughtlessly disseminate the instructions for building a “chronoscope” – a machine for viewing any events in the (recent) past. Their original purpose was historical research, but the chronoscope is not very useful for that; what it is very good for is snooping and voyeurism. The story ends with the government official who tried and failed to stop the protagonists wishing “[h]appy goldfish bowl to you, to me, to everyone.”

The internet, especially Web 2.0, is (almost) as good as the chronoscope, argues Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit, in a short essay published in the Stanford Law Review Online. It also allows everyone to learn all about anyone, provided that the person – or indeed someone else – posted the information on the internet at some point. And the fact that people share their every thought and deed online shapes society’s expectations of privacy, which are the key to what constitutional protections we have in this area. Those parts of our lives which we do not expect to be private are not protected from observation at will by the government. And if we do not expect anything to be private, then nothing will be.

“Reasonable expectations of privacy” are also key to defining privacy rights under the Canadian Charter of Rights and Freedoms. The Supreme Court’s latest engagement with the question of just what expectations of privacy are reasonable, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, produced something of a mess. The issue was whether the installation without a warrant of a device that measures the electricity consumption of a house breached the owner’s reasonable expectation of privacy. Four judges said no, because general information about electricity consumption does not reveal enough to make it private. Three said no because the law entitled to owner to ask the utility not to hand over such information to the police, and he had not exercised this right. Two said that the information was private. But what seems clear is that for Canadian law too, what we think about our privacy and what we do about it, individually and collectively, matters.

Are we then doomed, as Judge Kozinski suggests we might be? Perhaps not. With respect, his claims are a little too pessimistic. Judge Kozinski collects a great many frightening anecdotes about people’s willingness to wash their – and others’ – dirty laundry in public. But anecdotes seldom justify sweeping conclusions. And some studies at least seem to show that people do care about their privacy more than the pessimists assume,  if not always in ways or to an extent that would satisfy the pessimists. Old expectations of privacy might be fading, but new ones could emerge, along different lines. Judge Kozinski is right that the law cannot do much to protect people who do not care. But we must hope that he and his colleagues, as well as legislators on both sides of the 49th parallel, will be mindful of the possibility that changes in privacy expectations can go in both directions.

Gun Registry Litigation Update

There is news regarding Québec’s attempt to obtain “its” long-gun registry data before it is destroyed by the federal government, about which I wrote here and here. The merits hearing was supposed to take place today. However, Radio-Canada reports that  the judge was concerned that the matter is too complex and there is not enough time to deal with it now. The La Presse story seems to confirm that the merits hearing will now take place in June.

The question now is what happens to the safeguard order, which prevents the federal government from destroying the gun-registry data until tomorrow (when the merits hearing was originally scheduled to end). The federal government asks that it not be extended, and claims that it is not necessary because no data destruction will take place before August. The news reports do not make Québec’s position clear, but it is safe to assume that it is opposed. Indeed, if the federal government is right that it is not going to do anything before August, one may wonder why they oppose the extension of the safeguard order.

There is no news of the judge’s decision yet, but I will update or have a new post when it comes out.

UPDATE: The hearing will continue tomorrow.

Purely Hypothetical Dragons

Everyone knows that dragons don’t exist. But while this simplistic formulation may satisfy the layman, it does not suffice for the scientific mind. …  The brilliant Cerebron, attacking the problem analytically, discovered three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical. They were all, one might say, nonexistent, but each nonexisted in an entirely different way.*

Stanislaw Lem, The Cyberiad

Much of the Conservative government’s legislative programme seems driven by fear and distrust of judges. Such reactions to judicial decisions are often justified by concern about “judicial activism.” But judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways. Or so I am tempted to conclude after reading an exchange at the Volokh Conspiracy (which, by the way, is 10 years old today) between prof. Orin Kerr and prof. Randy Barnett.

Prof. Kerr argues that the expression “judicial activism” can have a variety of meanings, some of them more interesting than others. A decision can be described as activist if 1) it rests on the judges’ personal (including political) views; 2) it expands the power of the judiciary vis-à-vis the other branches of government; 3) it departs from settled precedent; 4) it strikes down a statute or an administrative decision; or 5) it is wrong. Prof. Kerr believes that the meanings 1) to 3) are useful because “the terms allow us to have a useful debate about the proper role of the courts.” On the other hand, 4) and 5) are to be avoided; the former, because everyone (in the US, but I suppose this is mostly true for Canada too) agrees with (some) judicial review, the latter, because we don’t agree about what decisions are right.

Prof. Barnett responds by arguing that given its multiplicity of meanings, useful or otherwise, the term “judicial activism” is best avoided – but not without venturing yet another meaning for it, applying it to describe any decision which contradicts clear constitutional text.

(I have given the bare bones of both posts, which are very interesting, especially if you are conversant with or curious about US constitutional debates.)

It seems to me that prof. Barnett is right that we ought to avoid using the term “judicial activism” if at all possible, since it can mean so many things to different people. Prof. Kerr’s categories of judicial activism are very interesting, and no doubt capture much of what people mean when they use the term, but why use the vague, and vaguely pejorative, “judicial activism,” even in one of the useful meanings prof. Kerr identifies, when we can say more precisely what we mean? Judicial activism does not really exist, but we should keep in mind that it does not really exist in a number of different ways.

* As I recall it, in the Russian translation of the Cyberiad which I read, the three distinct kinds of dragon were said to be the nil, the negative, and the imaginary. If anyone knows what the Polish original was, I would love to hear about it.

Federal Court Roulette

Professor Sean Rehaag of Osgoode Hall has recently posted on SSRN a disturbing statistical analysis of the Federal Court of Canada’s decisions on applications for judicial review of refugee protection determinations by the Immigration and Refugee Board. His main conclusion, based on a study of more than 20,000 cases filed between 2006 and 2010, is that there shocking variations in the rates at which individual FCC judges grant leave for such applications to be heard on the merits (with one judge granting almost 80% of leave applications, and several in over 25%, while for some others, the rate is below 5%), or allow the applications on the merits (with several judges allowing over half of the applications they hear, while many others allow less than 20%). Having clerked at the FCC (for a judge who, on both scores, is somewhat less favourable than average to the applicants), I have to admit that I had no idea that these variations would be so large. I knew that different judges had different approaches to these (as well as any other) cases, but the extent of the disparities is startling.

Prof. Rehaag thinks that leave is not granted often enough, and that in the perfect world the requirement to seek leave would be abolished legislatively or, failing that, declared unconstitutional. If that’s not possible, he suggests a number of other reforms that would make obtaining leave easier. My anecdotal experience makes me wonder if he is right. The experience is one-sided, because I was not at all involved in leave decisions (nor were, I believe, any other clerks). But among the couple dozen merits cases I worked on (including reviews both of refugee status determinations and of other IRB decisions), there certainly were some where the leave grants looked very soft. Nonetheless, prof. Rehaag’s numbers show that applications on which leave is granted by “generous” judges are not necessarily less likely to succeed on the merits than those granted by more “stringent” ones, which means that he seems to be right that many applications that have merit are thrown out simply because the judge reviewing them at the leave stage was a “stringent” one.

Whatever one thinks of the FCC’s overall treatment of immigration cases – whether one is convinced that it is insensitive to the immigrants’ and refugees’ plight, or that its judges are a bunch of pro-fraudster obstructionists, as Jason Kenney apparently believes, one ought to be distressed at these findings of inconsistency between the court’s members. For my part, having had the privilege of interacting with some of them and helping in their work, I am convinced that they are decent, conscientious, and hard-working people. But the fact that conscientious, hard-working people seem to fail so miserably at producing consistent results, to which, I am sure, they would all agree they aspire, is all the more disturbing.  As prof. Rehaag writes, judges are only human, and some discrepancies between individual approaches are inevitable, but surely not such glaring differences.

The Court of Public Opinion

What is the place of the court of public opinion in the judicial hierarchy? Sometimes, courts of justice are in effect sitting in appeal of judgments of the court of public opinion. This is perhaps the case in defamation cases, and most obviously in cases involving judicial review of the constitutionality of legislation. But sometimes the court of public opinion is higher than the highest courts of justice. A story  reported by Radio-Canada is instructive.

Lassonde, The makers of the Oasis juices sued the makers of “Olivia’s Oasis” soaps to try to prevent them from using this name and to recoup their profits from such use as had already occurred, alleging that the mark was confusing. It lost. But the trial judge not only rejected the suit; in addition, upon a request made by the defendant’s lawyer at the end of the trial, the judge ordered Lassonde to pay the defendant $125,000 – $25,000 in punitive damages, and $100,000 in extra-judicial fees – on the basis of a provision of the Code of Civil Procedure which allows courts to sanction “improper” actions or pleadings. The trial judge found that

[p]laintiffs, using their economic power and experience used a shotgun approach to attack Defendant simultaneously on several fronts with their full might, attempting by the present proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark. Obviously Plaintiffs expected that, given the threat which the action represented to Defendant’s very corporate existence, given that Defendant was still a fledgling business, given the projected cost of such proceedings and, given the obvious disparity in the respective power and resources of the parties, that Defendant would retreat and succumb to their demands, and cease using its mark and change its corporate name or, perhaps would ensure its survival and avoid an economically and resource draining battle by signing a licensing agreement with Plaintiffs – as others have done in the past.

Lassonde appealed against this portion of the judgment, and won, in a unanimous decision by the Québec Court of Appeal. The court points out that there was no evidence of bad faith on the part of the appellants, who simply acted consistently with the usual practice in such cases. Besides, there was no evidence to justify the amounts of the damages set by the trial judge (who, indeed, went beyond what the plaintiffs had asked on this point).

End of story? No. La Pressed seized on the story, in a “David against Goliath” report unabashedly sympathetic to the soap-maker which does not once present Lassonde’s position or the views of a lawyer on what constitutes standard practice in such cases. Lassonde’s Facebook page, says Radio-Canada, was deluged with negative comments and even calls for boycott by minor celebrities. Whereupon it swiftly capitulated, and agreed to pay the $125,000.

Thus in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.