I have been completely snowed under, despite the coming Southern hemisphere summer ― or perhaps because of it, since coming summer means end of the semester, and end of the semester means exams to grade (or to mark, as we say around here). 243 exam papers (or scripts, in Kiwi), to be precise, in my Constitutional Law class (or paper). This is very nearly done, and I hope to resume blogging by the end of the week. In the meantime, my friend, and occasional guest here, Maxime St-Hilaire, will entertain us with a post on parliamentary privilege, cross-posted from the Université de Sherbrooke’s blog, À qui de droit. I am looking forward to it!
The CBA National Magazine’s blog has just published a blog post of mine that comments on the speech which Chief Justice McLachlin gave at the “Supreme Courts and the Common Law” symposium held at the Université de Montréal’s Faculty of Law last week. I argue that the Chief Justice misunderstands the history of the common law, and that this misunderstanding results in her believing that courts need no longer be constrained by precedent, doctrine, and perhaps even statutory and constitutional text in their quest for “truth and justice.” This leads me to ask:
Does the Chief Justice believe in (the common) law? All law means constraint, first and foremost for government officials ― judges among them. Constraining officials, as well as having rules announced in advance for citizens to follow, provides predictability. If judges do not regard themselves as bound by the law, the Rule of Law’s promise of limited government and certainty is an empty one.
The Chief Justice’s speech was, I confess, quite shocking to me. While I have never found warnings of judicial autocracy especially compelling, it illustrates the fact that all persons who exercise power, including judicial power, are liable to get caught up in the belief in their own importance to the world, and to dismiss any constraints on their world-saving actions as inimical to the greater good. When the Chief Justice retires within the next couple of years, I will not be sorry to see her go.
My thanks to my readers on the blog’s fourth birthday
Yesterday, this blog turned four. Its fourth year has, I am afraid, been marked by occasional periods of extended silence, as was trying to finish my dissertation. Still, I have managed to come back every time, and to keep going. I have also got some very flattering accolades from the judges of the Clawbies and from an actual judge of the Federal Court of Appeal. Benjamin Oliphant and I have also produced a couple of papers which originated, in part, in some blog posts of mine, including this one from this past year (and in part in one of his).
As on previous blogging anniversaries, I take this opportunity to thank all of you, my readers, for giving me some of your time, and also for bearing with me when I go quiescent, to borrow again Judge Richard Kopf’s wonderful expression. I wish I could promise that I will be more regular in my postings, but my life might be a bit too chaotic for that for next little while. (I hope there will be good news amid the chaos, but everything in its time.) Please keep coming back, and I will at least try not to disappoint you.
I have a new post up at the CBA National Magazine’s blog, arguing that, with one significant qualification, a private member’s bill that would lower the voting age at federal elections to 16 is a good idea and should be enacted. I have already made the case for lowering the voting age, to 16 if not lower still, here and here. So I am happy to see that an MP, Don Davies, has taken up this cause ― and I hope that the government endorses it too, which would make the passage of the bill much more likely.
The one reservation I have about Mr. Davies’ bill as it now stands is that it makes no separate provision for, and indeed no mention of, a minimum age for running for Parliament. As I explain in the National Magazine post, under the Canada Elections Act, almost all eligible voters are allowed to be candidates. But it is not obvious that the minimum age for being an MP and for voting should be the same. At the very least, I think the issue deserves to be debated.
Subject to that, I wish Mr. Davies’ good luck with his bill. Its enactment would make our democracy more inclusive, and thus better.
What I would like for 2016
What I would like for 2016
I haven’t met a friendly genie or wizard, alas ― and anyway, if I did, I’d ask for an unlimited supply of wishes. I’ll still make three wishes for the new year, and hope that they come true. Here’s what I would like…
… for the country:
A government that cares about the constitution, and not only when that is convenient. There are good intentions in that regard, as Emmett Macfarlane’s review of the new Justice Minister’s mandate letter demonstrates. But, as I have suggested, some of the government’s plans in the realm of democratic reform may raise serious constitutional issues. More importantly, this year is when the new government’s intentions, good or otherwise, will have to start taking shape and meeting the constraints of political reality. Wrapping yourself in the Charter is easy. Actually accepting that there are constitutional limits on your power, including of course on your ability to do (what you think is) good ― not so much.
… for the Canadian legal blogosphere:
A blog by a retired judge, following the example set on the other side of the pond by Sir Henry Brooke. As the Clawbies team once again reminded us when it attributed the 2015 Canadian Law Blogging Awards, our blawgging universe is ever expanding, and full of bright stars. It is, however, missing one, admittedly somewhat exotic, type of object ― a blog by judge. An active judge venturing into the blogosphere is perhaps too much to ask for; the risk of trouble might be too high, though I am not entirely sure about that. And, as Adam Dodek has pointed out, even retired judges who “trade on their ‘judge status'” to talk about controversial issues risk undermining the perception of the judiciary’s independence and separation from (partisan) politics. But Sir Henry’s blog demonstrates brilliantly that a retired judge can be interesting, entertaining even, without being controversial, and share his considerable experience with an online audience without compromising the judiciary’s image and standing. It would, I think, be great if a Canadian judge wondering what to do with in his or her present or impending retirement decided to follow Sir Henry’s example.
… for myself (and for Double Aspect):
A job that allows me to keep blogging! I haven’t discussed my own situation much since I have taken up blogging, and do not intend to inflict it on you in the future. However, I thought I might be allowed a momentary derogation from this principle. As my doctoral studies come to a close this year, I’ll need to find something else to do ― ideally, something that will not require me to quit blogging. I have had no luck on this front so far, so if you happen to have such a job on offer, or to know of one, I would love to hear from you.
* * *
You may have noticed that I have changed the blog’s appearance to some extent. I hope that this has improved readability. If you have strong opinions ― good or bad ― about this, please let me know.
With the announcement of the Clawbies’ 2015 winners, the blogging year is at an end. Paul Daly’s Administrative Law Matters is the overdue and most worthy winner of the Fodden Award for the Best Canadian Law Blog. And Double Aspect is a runner-up for the Fodden (which it won last year, to my continuing amazement). It’s a great honour, especially considering the quality of the “competition.” (I don’t know if any of us bloggers think of each other as competitors. I doubt it.)
There are many other great blogs among the winners and runners-up, so have a look at them. I want to note, especially, the National Magazine’s Blog’s win in the “Legal News” category ― since I’m a (somewhat irregular but proud) contributor to it. And, on a somewhat self-congratulatory note, I also note that not only the winner, but also all of the runners-up for the Fodden are academic (or, in my case, wannabe-academic) blogs. The next time people start questioning the value of academia, or scholarship more broadly, to the real world, keep this little data point in mind.
With this, I sign off for this year. Even if your celebrations, like mine, are appropriately a tad less glamorous than prof. Daly’s, I hope they are joyful and bring you together with good company. See you in 2016, dear readers!
What happens in December that’s in better taste than ugly sweaters and more reliable than snow? The Clawbies, of course! They are, in case you don’t know, a “celebration of excellence in law-related blogging in Canada (and beyond).” In that celebratory spirit, here are my nominations for this year’s awards, and also some other blog recommendations.
- Paul Daly’s Administrative Law Matters: I said I would keep nominating prof. Daly’s blog until it wins the Big Prize, a.k.a. the Fodden Award for the Best Canadian Law Blog, and possibly after that too, and will keep nominating him. For good reason, of course. Administrative law does, indeed, matter, and it is a tangled, intricate mess. Prof. Daly helps us see our way through it.
- Sir Henry Brooke’s eponymous blog, for the “EuroCan Connection Award”: it has only been around for a few months, but this blog by a retired Lord Justice of Appeal is already an invaluable repository not only of recollections from a long and illustrious career, but also of thoughts on issues that matter well beyond England, and will matter well beyond 2015 ― notably the law’s and the courts’ relationship with technology, and their handling of multiculturalism and diversity.
- Michael Geist’s eponymous blog: I’ve nominated prof. Geist’s blog before too, and the giant of Canadian legal academic blogging hardly needs either my endorsement or even a presentation, but it deserves continued recognition for helping us understand the complexities, present and future, of IP and telecommunications law and policy (which, incidentally, might have been the most under-discussed subject during the late election campaign and in its aftermath).
Blogs I Cannot Nominate ― But Someone Else Should
The Clawbies have a rule against self-nomination, and while I read it as preventing me from nominating blogs to which I contribute, I still want to put in a good word for them.
- CanLII Connects: actually, I’m not quite sure whether it ought to counts as a single blog ― its list of contributors makes scary reading for anyone who’d want to compete with it ― not that anyone would want to, because it is a great public service (well, except my own posts, which are just self-promotion), as well as a shining example of the possibilities of online collaboration, which should put any technophobe or Luddite, in the legal profession or beyond, to shame.
- The CBA National Magazine’s Blog: this one definitely is a blog, and it addresses a great variety of subjects, some more abstract, others very practical, from a variety of perspectives. In short, it’s pretty great, and well worth keeping at least an eye on.
- The “Law” side of the Perspectives Blog of Policy Options: It would still be a good blawg if it stood on its own, but being part of a multi-disciplinary magazine and blog combo that pitches itself to people interested in policy rather than just lawyers makes it that much more interesting. It seems tailor-made for the Clawbies’ “Non-Lawyer Audience” category.
Blogs That I Might Nominate in 2016
These are a couple of blogs that are also worth keeping an eye next year, one of them recently-resuscitated, the other brand new.
- Dan Priel’s Juristhoughts: prof. Priel’s thinking on legal philosophy is iconoclastic and if you are interested in the subject, you should read him whether or not you agree with what he has to say. At the very least, he’ll force you to ask yourself why it is that you believe the things you have always believed.
- Université de Sherbrooke Faculty of Law’s À qui de droit: joining the likes of ABlawg and the University of Alberta Faculty of Law Blog, it’s a blog for the professors and students of a law faculty, who are already covering a wide variety of topics. While I’m at it, I’d like to salute two persons who have, I take it, inspired its creation: Edith Guilhermont, the tireless apostle of legal blogging in Québec (although, ironically, not yet a blogger herself ― nudge nudge!), and Maxime St-Hilaire, whom I have had the pleasure of hosting and the honour of debating here.
Finally, a word of special thanks to Michael Spratt for nominating Double Aspect. Happy reading, and blogging, in what’s left of 2015 and next year, everyone!
After somewhat of a hiatus, I am back to blogging for the CBA National Blog. In a post they have just published, I come back to the issue of people smuggling, on which the Supreme Court delivered two decisions last week, which I summarized here. As I have already explained here and here, I believe that the laws that Canada (and other countries) has enacted to punish smuggling are hypocritical, because they harm the very people they purport to protect, the “victims” ― who are actually consenting clients ― of the smugglers.
While I use the National Blog post to reiterate the arguments against anti-smuggling laws, I also criticize the Supreme Court’s apparent blessing of them (or at least of the narrowed versions that emerge from last week’s decisions). The Court was wrong, I believe, to unthinkingly endorse laws that are unjust and hypocritical. Indeed, it probably should refrain from blessing legislative policies altogether.
There’s exactly one month to go until election day. It’s as good a moment as any to announce a series of blog posts that I will publish over the next few weeks, to argue that, contrary to what is often said, there is no moral duty to vote or, in other words, that it is not wrong to stay home on October 19. I won’t be saying that you ought to abstain. If you believe that there is a candidate or party who will move the country at least somewhat closer to your policy preferences, by all means, go and vote for him/her/it. If you believe that there is a candidate or party who will move the country noticeably further away from your preferences than the others, then you should probably consider voting strategically to prevent this from happening. The claim I will be defending is that if you think that all the options on offer are roughly equally good or, more likely I suspect, equally bad, then you are under no obligation to vote for one them, or even to go and spoil your ballot.
I will be making this argument on grounds of political morality, not law. Of course, if there is no moral duty to vote, then it would be wrong for Parliament to require people to do so, as the Liberal Party, in particular, has mused about doing. On the other hand, even if there were a moral duty to vote, it would not follow that Parliament would be justified in using the threat of legal sanctions to force people to comply with it. Nor would it follow that the imposition of mandatory voting would be constitutional. The case for a moral duty to vote should be easier to make than that for the enactment of a law mandating voting. It is this easier case that I will address.
More specifically, I will address, in separate posts, a number of arguments I have seen made in favour of a duty to vote (or indeed of mandatory voting laws, which I take to presuppose the existence of a moral duty to vote). I have addressed one such argument a couple of months ago, when I argued against a claim to the effect that we must vote in order to honour and express our gratitude to the people who helped win and preserve the right to vote, whether against domestic opposition or foreign enemies. Over the next few weeks, I will address three other such arguments. One holds that we must vote because election results are useful information about the state of affairs in the nation, and we owe it, whether to our fellow citizens or to the politicians whom we elect, to do our part in generating this information. A second, perhaps somewhat similar, argument is that the existence of (and actual compliance with) a duty to vote helps improve the quality of election campaigns ― an improvement which we are in dire need of, and from which all would benefit. The third argument I will address is that it is necessary for us to vote in order to preserve the legitimacy of our democratic government.
Perhaps this list of arguments for a duty to vote is incomplete. If I am missing your favourite one, please let me know. I am open to expanding my post series, and even to changing my mind if you persuade me to do so. (Please do not tell me that we should all just vote for your favourite candidate, or against the one you particularly hate. I have done my best to keep this blog non-partisan, and remain committed to this position.) Feel free, as well, to suggest related topics that I might cover as part of this series. For instance, I will probably have a post on people who, far from accepting that they have a duty to vote, believe that they actually may not do so, even though the law says otherwise. And of course, I will have a post to respond to comments and criticism, if you are so kind as to provide some.
In short, I would like this to be a conversation, something like a slow-motion seminar maybe. Whether or not we convince each other in the end, at least the quality of our arguments on this topic, which is pretty sure to be much discussed after, if not before, election day, will hopefully be better as a result.
I have a new post over at the National Magazine’s Blog, arguing that to the extent that Uber and other firms of the sharing economy breach the laws that prevent them from offering their services to the public, we should assess their claims that such laws are unjust on their merits, instead of rejecting them out of hand as either lawless or self-serving. Uber is engaged in a form of civil disobedience, acting on a principled position that the restrictions on taxi services that municipal authorities in various countries, including here in Canada, invoke to stop its operations cannot be justified in a free society. The fact that it stands to benefit financially if these restrictions are lifted is simply irrelevant to the justice of its claims. Civil disobedience, as a rejection of the authority of the law, is of course disquieting ― perhaps especially to lawyers ― but not always unhealthy. For, as Henry David Thoreau long ago observed, “[l]aw never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.” Anyway, there’s quit a bit there, so I’d encourage you to read the whole thing.
There was a story that has, at first glance anyway, nothing to do with Uber that would have liked to speak about, but couldn’t think of a way to work into the post: that of a family from Cornwall, in Ontario, also engaged in civil disobedience against a municipal by-law being applied to stop its children selling worms to neighbourhood fishers. They haven’t, in case you’re wondering, torn down their house to build a worm factory. The kids are digging the worms out of the ground in their own backyard, and selling them from their own front lawn. No matter. The city is fining them 250$ a day. The parents say they will keep paying the fines ― much like Uber does for its drivers, Frank Roncarelli did for Jehovah’s witnesses, and Thoreau’s aunt did for Thoreau.
Regulations preventing people ― from the children of Eastern Ontario to the zillionaires of Silicon Valley ― from putting their work and enterprise at the service of their fellows, near or far are innumerable. They are passed, sometimes out of sheer foolishness, sometimes out of nimbyism, sometimes at the behest of those who stand to benefit from limits on competition, without attracting much attention, and remain in force indefinitely, so long as no one raises a stink about them. Indeed, raising a stink is the only way to have some of them repealed. We should not condemn the hardy few who are willing to do so as lawless or self-interested. We should be grateful to them instead.