State, Means, and Ends

I am auditing Jeremy Waldron’s seminar on human dignity this semester. Since prof. Waldron’s rule is that auditors “must be seen but not heard” in class, I will use the blog as an outlet for thoughts and comments.

One thing we did in yesterday’s seminar was to go through the rights-protecting amendments to the U.S. Constitution and look for ways in which they can be said to rely on or further dignitarian ideas. It’s an interesting exercise, because it highlights the variety of these ideas, and shows how specific rights are connected to some of them, but not others. For example, dignity is associated with autonomy or self-direction, and the First Amendment’s protection of the “free exercise” of religion can be read as upholding that autonomy. Dignity is also associated with (high-status) equality, and the guarantee of the “equal protection of the laws” in the 14th amendment, or voting equality in the 15th and the 19th are related to that strand in the dignitarian thought. (Of course, a right can be related  to more than one facet of the concept of dignity. For example, the prohibition of slavery in the 13th amendment is related both to autonomy and to equality.)

Now there was, as I remember it, a single section of the Bill of Rights for which no one, apparently, seemed able to come up with a dignitarian explanation: the Third Amendment, which prohibits the quartering of troops in private houses in peacetime without the consent of the owner. But I think that it can actually be related to one familiar dignitarian idea: Kant’s injunction against treating persons as means to an end rather than as ends in themselves. When the government, without your consent, uses your house as improvised barracks, it treats your expense of time and/or money on building or buying and keeping up the house as means to its own ends.

The Bill of Rights contains other rights related to the same sense of dignity, notably in the Fifth Amendment, which includes protections against the taking of private property by the state without compensation and against compelled self-incrimination. (Arguably, the Canadian Charter of Rights and Freedoms is rather less protective of this aspect of dignity, but it also includes a protection against compelled self-incrimination.) Yet in other ways the U.S. Constitution (as well as the Charter) countenances and arguably even requires the use of citizens as means to the government’s ends. It does not prevent the draft, for example. It also protects the right to jury trials, which means that the state must conscript citizens to serve as jury members.

I wonder what to make of this contradiction. Is it even a contradiction, or is there some broader principle, or some distinction, that I am missing? If it is, is it wrong? Can or should we do things differently? Your thoughts are very welcome.

Drop That Gun! (But Keep the Bullets)

The Superior Court of Ontario has recently delivered its decision in The Queen v. Montague, 2012 ONSC 2300, an interesting case at the intersection of the topics property rights, and gun rights, about which I wrote here and here. In fact, in the latter post, I had mentioned a previous decision in this case, by the Ontario Court of Appeal, rejecting a challenge to the constitutionality of Canadian firearms law based mostly on the English Bill of Rights, 1689. The accused, William and Donna Montague (William, mostly), had been found guilty of a variety of firearms-related offences; they had deliberately let their licences and registration for their firearms lapse. Hundreds of weapons and tens of thousands of rounds of ammunition had been be seized at their residence. Following their convictions, the Crown applied for forfeiture of the weapons and ammunition, worth over $100,000, pursuant to par. 491(1)(b) of the Criminal Code, which provides that firearms and ammunition (inter alia) involved in or which are the subject matter of an offence, if it has been seized, “is for forfeited to Her Majesty and shall be disposed of as the Attorney General directs.”

The Montagues argued that the application of this provision, at least in their circumstances, would infringe their property rights protected by the par. 1(a) of the Canadian Bill of Rights. In their view, forfeiture – that is, a form of expropriation without compensation – should not be imposed automatically and for an offence which is a malum prohibitum rather than a malum in se. In such cases, “due process of law” – which the Canadian Bill of Rights makes a condition on any deprivation of property – requires a judge to have discretion to order that the property subject to par. 491(1)(b) of the Criminal Code be disposed of otherwise than by forfeiture (for example by transferring legal title to it to a trustee who would sell it for the former owners’ benefit). They also raised, in passing it would seem, ss. 7 and 12 of the Charter.

Justice Wright’s reasons are somewhat muddled―indeed it is not quite clear where he is summarizing the Crown’s position and where he is giving his own analysis of the issue. However, his conclusion is that “in a proper case s. 491(1)(b) of the Criminal Code might well be ‘construed and applied as not to abrogate, abridge, or infringe or to authorize the abrogation, abridgement or infringement’  of the accused’s right to enjoyment of property,” as s. 2 of the Canadian Bill of Rights requires. What this seems to mean is not that courts should only apply the Canadian Bill of Rights “in a proper case”―it’s a law after all, and must always be applied―but rather that “in a proper case” a court might exercise its discretion in the way suggested by the Montagues.

I doubt the soundness of this conclusion as a matter of black-letter law. As either Justice Wright or the Crown – unfortunately it is not clear which – notes, a notion of “substantive due process” has not, so far, been recognized in Canadian law. (Though of course “principles of fundamental justice” in s. 7 of the Charter are very substantive indeed. Yet the Supreme Court, in deciding, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that they were so, made much of the fact that the Charter‘s drafters did not use the expression “due process”.)

As a matter of legal philosophy things are a bit more complicated. Jeremy Waldron argues persuasively that hearings and an opportunity to make submissions are a necessary part of any legal regime worth the name. Yet I do not think that this condemns automatic sanctions, be they forfeitures or―in different cases – mandatory prison sentences (such as the mandatory term of life imprisonment which the Criminal Code imposes for murder), on the basis that such sanctions are not properly legal. I do not think that every legal consequence of every fact need be up for argument, so long as the actual existence of the fact is required to be established in accordance with a good legal procedure. Such sanctions might be too harsh, but that is a different story. The claim that the concept of law or the Rule of Law has substantive (and not only formal and procedural) qualifications is very controversial; I, for one, do not buy it.

Be that as it may, Justice Wright refuses to exercise his new-found discretion to save the Montagues from the forfeiture of their firearms:

[41]      The firearms do not present a case where a citizen has unwittingly become embroiled in bureaucratic “red tape”.  They do not present a case where the forfeiture is so overwhelmingly disproportional to the offense that justice cries out for a remedy.

[42]      The firearms present a case where a knowledgeable individual cold bloodedly and with knowledge of the potential consequences deliberately and publicly broke the law. Courts cannot stand by and appear to condone such behavior. Civil Society is entitled to defend itself. Civil disobedience as a political technique is only morally justifiable and thus eligible for the protection of the court where the perpetrator has been denied access to the political institutions of the nation. This was the case at the time of Gandhi. This was the case at the time of Martin Luther King, Jr. They had no alternative other than violence which they both eschewed. Notwithstanding this, both of these individuals understood the needs of society and accepted the consequences of their civil disobedience.

He does exercise it, however, to reject the forfeiture of some of the ammunition, on the ground that it was not actually illegally stored. The jury found otherwise – but that, he says, is because they were not informed of the relevant regulations at trial. I’m not sure about the propriety of this intervention, even assuming that Justice Wright is correct about having the necessary discretion. I do not know enough, really, to form an opinion on this point. If you do, I would love to hear yours.

A Right to Bear Arms? Canadian Cases

Here’s something I should have done yesterday, before launching into my analysis of the Charter‘s protection of liberty and of the right to bear arms: read some actual cases! Well, better late than never.

In R. v. Hasselwander, [1993] 2 S.C.R. 398, Justice Cory, writing for a 3-2 majority, opined,  at p. 414, that “Canadians, unlike Americans do not have a constitutional right to bear arms.  Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.” However, the issue in that case was not the right to bear arms itself, but rather the definition of the Criminal Code‘s provision banning automatic weapons. There had been, in all likelihood, no argument on the right to bear arms, and there was no detailed analysis of the Charter.

The Supreme Court upheld the federal licensing and registration requirements for long guns in the Reference re Firearms Ac (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, which has subsequently been cited for the proposition that possession and use of firearms is heavily regulated in Canada. But the Charter was not at issue in this case – it was only about division of powers between Parliament and the provinces. And of course something being heavily regulated does not mean that it is not also a constitutionally protected right – electoral campaign speech is heavily regulated by Parliament and provincial legislatures, but there is a right to engage in it, and at least some regulations will be unconstitutional, as those struck down in Libman v. Québec (A.G.), [1997] 3 S.C.R. 569.

The Supreme Court’s last engagement with the right to bear arms came in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, a brief decision holding that a mandatory prohibition on firearms ownership attaching to a conviction for some (non-violent) drug offences is not “cruel and unusual punishment” contrary to s. 12 of the Charter. Again, a general right to bear arms, or s. 7 of the Charter, was not at issue.

In my view, the Supreme Court has not conclusively pronounced on the possibility that s.7 of the Charter protects a right to bear arms. The question was never directly put to it. The Ontario Court of Appeal, however, took a contrary view in a recent decision. But that decision, as well one by the Saskatchewan Court of Appeal, rejected a challenge based on the English Bill of Rights of 1689. The Bill of Rights was variously said to have been made part of the Canadian constitution by the preamble to the Constitution Act, 1867, or by s. 26 of the Charter, but those arguments were very weak. Again, s. 7 of the Charter, although mentioned in passing, was not the object of a full argument by the parties or analysis by the courts.

So it seems to me that in theory, a well-developed argument based on s. 7 could yet be brought. But as I wrote yesterday, I think that the chances of such an argument, if based on the s. 7 guarantee of liberty, would not be good. What’s left to explore is an argument based on the s. 7 guarantee of the “security of the person.” I hope to get to it next week.