Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

* * *

I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I am not I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

Still Playing Favourites

Despite its broader focus, the Court Challenges Program remains objectionable

The federal government has officially announced that it is bringing back the Court Challenges  Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights ― not only equality and language rights under the Canadian Charter of Rights and Freedoms and the Official Languages Act, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, “fundamental freedoms” of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.

As I wrote in a post for the CBA National Magazine’s blog last year, we should question the government’s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country ― but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular. Why are, for instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter rights but not that of other constitutional provisions, such as those pertaining to the division of powers.

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.

The government’s public statements today only confirm my impression. The Prime Minister has tweeted that the Court Challenges Program “will help protect the language & equality rights of all Canadians” ― singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags about “reinstating the Court Challenges Program as we celebrate #Charter35 to show our commitment to human rights and the rule of law” ― without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.

I have other objections to the Court Challenges Program too ― notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own ― but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter and Canadian Bill of Rights compliance might be one good place to start instead; there are others as well.

But as the program is first and foremost symbolic, and in light of the Prime Minister’s and the Justice Minister’s statements, my objection to the program’s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Grégoire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It’s not that I am entitled to have my objections responded to, of course ― but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?

New Swearwords

The Prime Minister wants to make a meaningless addition to our unconstitutional citizenship oath

As the CBC reports, the Prime Minister’s mandate letter to the new Minister of Immigration, Refugees and Citizenship directs him to “[w]ork in collaboration with the Minister of Indigenous and Northern Affairs to make changes to the Oath of Canadian Citizenship to reflect the Truth and Reconciliation’s [sic] Calls to Action.” What the Truth and Reconciliation Commission suggested was adding the clause “including Treaties with Indigenous Peoples” to the undertaking to “faithfully observe the laws of Canada”. This addition is silly ― and, meanwhile, the oath remains unconstitutional, as I have long argued here and in an article published in the National Journal of Constitutional Law.

Having new citizens undertake to “faithfully observe … Treaties with Indigenous Peoples” is meaningless exercise in symbolic politics. The treaties in question do not bind citizens. Citizens trying to ascertain the duties they subscribe by taking the oath in this form would find none. The treaties do not require them to do or not to do anything. They impose obligations on (and give rights to) the Crown ― i.e. the government. An individual citizen can no more “observe” these treaties than he or she can fail to do so.

The addition of meaningless language further devalues the citizenship oath ― though admittedly it is already not worth very much. Many citizens, new and old alike, including indeed the authors of the guidebook used to help prepare would-be citizens for their citizenship test, misunderstand the reference to the Queen in the existing oath, thinking that it means that “we profess our loyalty to a person”. What is more, as the Court of Appeal for Ontario observed in the course of dismissing a challenge to the constitutionality of the reference to the Queen, in  McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1,

a former plaintiff in this proceeding who had taken the oath of the citizenship, has publicly recanted the oath to the Queen while, at the same time, confirming the remainder of the oath. Mr. Charles was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status.

The government of Canada, in other words, thinks that the oath means nothing at all (imagine, by contrast, a judge’s reaction to a witness telling her that he “recants” his promise to say nothing but the truth), and goodness knows what those who take the oath think it means. The Prime Minister’s new plan does not change that.

Nor does it address the unconstitutionality of the oath in its current form. While it has upheld the oath, I have argued here that the McAteer decision is a “parade of judicial horribles“. It misreads the relevant precedents and relies on conclusory assertions about the value of the citizenship oath while ignoring the oath’s history as an embodiment of distrust and the distinctive way in which an oath (contrary to a statutory command) operates by enlisting the conscience of the person who takes it. As I explain in more detail in my article, the citizenship oath in its current form is an imposition on individual conscience that is not justified by any pressing and substantial objective, is not rationally connected to the purposes it supposedly serves, is not minimally restrictive (since it could easily be re-written to accommodate the scruples of those who object to it), and is not proportional to the harms it inflicts on objectors. It is, in short, contrary to s 2(a) of the Canadian Charter of Rights and Freedoms, and cannot be “saved” by s 1.

This is what the Prime Minister ought to have asked the Immigration, Refugees and Citizenship Minister to address. Instead, he chose to focus on a meaningless gesture. I have written here that “oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company”. Another feature of swearwords is that their precise contents matters very little; only the emotions they convey are of any significance, as this latest news confirms.

 

Losing Our Way

Neither “society’s tolerance” nor the “captive audience” doctrine justify censorship of anti-abortion ads

Over at ABlawg, Ola Malik has a post praising the decision of the Alberta Court of Queen’s bench in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734. I have been scathing of that decision here, and I believe that Mr. Malik is wrong. His posts illustrates the sort of thinking, which is also at work in the Court of Queen’s bench decision, that will, if unchecked, render freedom of expression an empty phrase in Canada. Contrary to what Justice Anderson and Mr. Malik believe, it is not, and it cannot be, the state’s job to protect citizens from any discomforting ideas that might come their way.

By way of reminder, the decision at issue allowed a municipality to censor ads that an anti-abortionist group sought to post on the outside of its buses. In the court’s view, this decision was reasonable because the ads targeted a captive audience that could not help but see them, and because they risked causing upset and even harm, both because they featured the word “killing” and because they referred to a website that made derogatory statements about women who had abortions. In my post, I said that this “reasoning is disturbing if not perverse”, notably because it could be applied to censor any strongly expressed message (though it is, of course, rather more likely to be applied to “politically incorrect” views than, say to Oxfam’s or Amnesty International’s ads).

By contrast, Mr. Malik, a municipal prosecutor, is very happy about a decision that is “most helpful to municipalities seeking to limit the placement of controversial advocacy messaging in public places”. He claims that

speech which targets certain groups of people, especially those who are otherwise exercising their legal rights (in this case, women seeking abortions) cannot be said to promote the objectives which underlie freedom of expression.

He argues that Justice Anderson is right to have “endorsed the captive audience doctrine”, since the corollary of the freedom to speak is the freedom not to hear unwanted speech. Mr. Malik adds that “[h]ad the advertisement been … ‘merely informative and educational’, [77] the Court may have been less prepared to use the captive audience doctrine.” But the ad in question was actually harmful, and the Court, says Mr. Malik, was right so to find: “the Court recognized that hateful or offensive expressive activity in a prominent public space can have a harmful psychological impact on the well-being of civil society”. Mr. Malik cautions, however, that such findings “need[] to be arrived at with care”, so as to avoid “underestimating society’s tolerance for controversial and provocative messaging. And”, he says, “we need to be mindful that a test which references community harm doesn’t turn into a test of community censorship”.

With respect, community censorship ― or, more accurately, censorship by bureaucrats and judges purporting to act on the community’s behalf ― is precisely what Mr. Malik supports, whether or not he intends to do so. Freedom of speech is, among other things, te freedom to engage in “controversial advocacy messaging in public spaces”. It is, among other things, the freedom to criticize “certain groups of people”, including people “who are otherwise exercising their legal rights” ― to have an abortion, to eat meat, to minimize tax liabilities, to fail to give to charity, what have you. The law is not the measure of morality, and in a free society what is moral ― as well as what is legal ― is an appropriate subject for public debate and criticism. The issue is not just that, by allowing bureaucrats and judges to stifle debate and silence criticism, we might “underestimat[e] society’s tolerance”. It’s that the extent of society’s tolerance cannot be the measure of the freedom of expression that its members enjoy. If it had been otherwise, slavery would still be legal, homosexuality would not, and women would still be denied the vote. Advances in human rights are rarely achieved entirely within society’s comfort zone.

A few observations on the concept of a captive audience, of which Mr. Malik makes much, are also in order. As I said in my first post, the idea that people who see buses in the street are a captive audience unable to avoid the message communicated by the ads posted on these buses is preposterous. If the state is able to censor any message merely because someone might be unwittingly confronted with it for a few moments, the state can censor anything at all. Unsurprisingly, this is not what the cases to which Mr. Malik refers, and those to which he doesn’t, hold.

The case to which he ascribes “the most comprehensive treatment of the captive audience doctrine” in Canada,  R v Breeden, 2009 BCCA 463, does not turn on the application of this doctrine at all, but on the question whether a person can be prevented from protesting at very specific locations (namely the lobby of a courthouse and that of a municipal council building) that were not, historically or currently, normally used for such expression. (This alone would suffice to distinguish the case from that of bus advertising even if the case really did support Mr. Malik’s use of it. But it does not.) In fact, to the extent that Breeden has relevance for the issue of captive audiences, its import is precisely the opposite of what Mr. Malik takes it to be. Justice Hall, writing for the unanimous court, pointed out that

[i]t was not suggested in this case that he express himself to a different group of people, rather simply that he change the location of his activity to the sidewalk area outside the buildings, where he would have access to the same potential audience. [27; emphasis mine]

The ability to communicate with “the same potential audience” was a crucial reason was the restriction on the place where this communication could take place was upheld.

As for the American jurisprudence, it is no more supportive of Mr. Malik’s position than Breeden. Mr. Malik quotes from the case of Lehman v City of Shaker Heights, 418 US 298 (1974); he does not say that the opinion he is quoting is a concurrence, by Justice Douglas, which would have found that all advertisement in buses ― not on their outside, mind you, so that the case for the proposition that the audience is a captive one is significantly stronger ― are an infringement of the commuters’ rights. Justice Douglas would not have allowed the city that owned the buses to pick and choose ads that were uncontroversial or harmless. On the contrary, he did

not view the content of the message as relevant either to petitioner’s right to express it or to the commuters’ right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message. (308)

In any case, Justice Douglas was alone in this view. Justice Blackmun’s opinion (with the support of three others) referred to the issue of captive audiences, but only as one reason among several for which the city could reasonably have chosen to prohibit political advertising but not the commercial sort. Another such reason, it is worth noting, is “minimiz[ing] … the appearance of favoritism”. (304) The decision of the Alberta Court of Queen’s Bench, and Mr. Malik’s arguments, do no such thing ― they do not say that the municipality wanted to, or would or ought to have, banned pro-choice ads as well as anti-abortion ones. As for the for the other opinion in Lehman, that of Justice Brennan, it would have found content-based decisions about which advertising to allow unconstitutional.

Let me mention another American case, which Mr. Malik ignores: Cohen v California, 403 US 15 (1971), the famous “Fuck the draft” decision. That slogan was emblazoned on a jacket that the appellant had worn in a courthouse, and Justice Harlan, for the unanimous court, wrote that

in arguments … much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately [punish him] in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. (21)

But, Justice Harlan responded,

[o]f course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. … Those [confronted with Cohen’s jacket] could effectively avoid further bombardment of their sensibilities simply by averting their eyes. (21)

Mr. Malik, Justice Anderson, and anyone else inclined to agree with them would do well to study that opinion, and to take Justice Harlan’s advice to heart.

As Edmund Burke wrote long ago,”[t]he great inlet by which the colour for oppression entered into the world is by one man’s pretending to determine concerning the happiness of another”. This too is something that our would-be censors, who would determine concerning our happiness, or, in modern jargon ― since we have learned the words, without embracing the ideas, of John Stuart Mill ― protect us from harm, would do well to ponder. That a prosecutor, like Mr. Malik, supports censorship is disappointing; that a judge, like Justice Anderson, endorses it is distressing; but if our fellow-citizens were to agree with them, that indeed would be dispiriting.

Do You Really Have to Go?

Lessons for Canada and New Zealand on resignations of MPs

A recent article by Audrey Young in the New Zealand Herald observes that the number of resignations of Members of New Zealand’s Parliament during the course of the terms for which they were elected has increased since the country moved from the first-past-the-post electoral system (which Canada now has) to the mixed-member proportional (MMP) system. Ms. Young also writes about proposals to reduce the number of resignations. There may be something for both Canada and New Zealand to learn from each other here.

The overall numbers are stark: “In the 20 years before MMP began in 1996, there were 14 vacancies ― nine caused by resignations of MPs and six by deaths while in office. [NOTE: It occurs to me that the numbers don’t add up; but the correct figure is relatively unimportant here.] In the 20 years since … there have been 48 vacancies”, 45 of them caused by resignations. New Zealand’s Parliament was enlarged when MMP was introduced, but the increase of its membership from just below 100 to 120 does not account for the growth in the number of resignations. Of course, correlation does not equal causation; but there are in fact good reasons to think that there is causation here.

Most significantly, Ms. Young notes that of the 45 MPs who resigned, 30 were “list MPs”. Yet there are at one time only 50 (or, with the occasional addition of overhang seats, sometimes 51 or 52) such MPs in New Zealand’s Parliament, compared to 70 elected in single-member districts. The smaller pool of list MPs is providing two thirds of all resignations. And it’s not hard to see why that might be the case: when a list MP resigns, he or she is simply replaced “by the next available candidate on the party list.” There is little cost for the party, for getting a soon-to-retire or an out-of-favour MP to retire, and replacing him or her with a more eager or better liked one.

Yet David McGee, a former Clerk of the New Zealand Parliament, writes in the Herald that all these resignations are “deleterious to the institution of Parliament and to the sense of obligation that members should feel to it”. While does not elaborate this very much, he adds that “[m]embers in the final year of a Parliament can and should be expected to contribute to its work for the full term that they have signed up to”. And so Mr. McGee suggests a solution to this problem. “In the case of list members … any vacancy occasioned by resignation should not be filled.” This will disincentivize the parties, which prompt most these resignations, from ever doing so.

For Canadian advocates of electoral reform generally, and especially of MMP (which I take it is the most popular option among reformers), there is a warning here. Electoral reform is likely to bring in more resignations ― and more MPs brought in from lower down party lists, without the publicity or scrutiny of elections. An unintended consequence, no doubt, but arguably still an unpleasant one. And solution proposed by Mr. McGee is not very appealing either, it seems to me; it is too dependent, for its attractiveness, on complete success. If it fails to prevent resignations, then it will result in departures from the principle of proportionality of representation ― and in a finely balanced Parliament might even cause a change in the balance of power. And to achieve the absolute success it requires, Mr. McGee’s proposal incentivizes parties in a way that is arguably no less perverse than that of the current system for being its opposite: a party will do everything to keep a list member, even one involved in scandal or found to simply be incompetent, from resigning, and diminishing its power. As Edward Willis points out,

the ability for politicians to resign is usually understood to be an important accountability mechanism. Politicians do not always cover themselves in glory, and sometimes the people want (metaphorical) blood. Falling on one’s sword in a public manner demonstrates the accountability of the political system to the people at the level of the individual politician, and for that reason alone I would be hesitant to put anything in the way that would prevent or inhibit political resignations.

The same concerns arise with respect to Mr. McGee’s proposal for dealing with resignations of MPs elected by constituencies, Mr. McGee argues that

as a condition of being declared elected, electorate members should be required to enter into a bond to serve through the full term of the parliament. The amount of the bond would not cover the full cost of a byelection … but it should be sufficiently high to provide a financial disincentive to resignation for the member and for the party backing the member.

The only exception he would make to the application of these penalties would be for those MPs who resign “on health grounds proved to the satisfaction of the Speaker or the Electoral Commission”.

The idea is similar to one that has already been implemented in Québec, where the Act Respecting the Conditions of Employment and the Pension Plan of the Members of the National Assembly provides, since 2015, that the Assembly members who do not complete the term for which they were elected forfeit the “transition allowance” to which they would otherwise be entitled. Pursuant to section 12 of the Act, a member who resigns can only get his or her allowance upon proving, to the satisfaction of the Assembly’s Ethics Commissioner, that the “resignation is due to a serious family matter or to a major health issue affecting him or a member of his immediate family.”

When this idea was first floated in 2013 by the then-Minister responsible for Democratic Institutions and Active Citizenship, Bernard Drainville ― who would later resign from the National Assembly in June 2016, right in the middle of a legislative term ― I criticized it here. I noted that the supposed “moral contract” between the voters and their representatives, which bound the latter to serve out their terms, appeared to be a matter of wishful thinking, if the experience of the leader of Mr. Drainville’s own party was anything to go by. Pauline Marois had resigned from the National Assembly in 2006, saying that “her heart [was] no longer in it”, and yet came back and was elected again in 2007, later becoming Premier. More importantly, though, I wrote that “requiring members of the assembly to serve out their terms would have perverse effects”, notably in that

it would incentivize a member mired in ethical problems, or even one charged with an offense, to cling to his or her seat rather than resigning and giving it up to another, better able to represent his or her constituents. And more broadly, citizens would not be well served by a representatives whose heart … was no longer in it, and who only show up at the Assembly in order to eventually collect their allowance. Mr. Drainville’s proposal would likely create such zombies.

Needless to say, not many people pay heed to my rants, and the proposal had sufficient bipartisan support that it was eventually enacted, not by Mr. Drainville’s Parti québécois, but by the Liberals who replaced them in government in the meantime.

If New Zealaders get serious about taking action against MP resignations, they would do well to consider Québec’s experience. It is still very brief, but perhaps already instructive. My worries about zombie-MNAs waiting to collect their allowance might have been exaggerated, though of course it is impossible to tell. What is clear, however, is that a financial penalty will not deter at least some legislators from resigning mid-term. Mr. Drainville himself did it, to take up a radio talk-show host job, after Pierre-Karl Péladeau resigned as Parti québécois leader and quit politics. Mr. Péladeau’s own resignation might have fallen within the scope of the “serious family matter” exemption, but his case also shows that a penalty that would be a serious matter for most people would have been of no concern at all to someone as wealthy as he is.

Indeed, this may be unsurprising. In New Zealand itself already denies any sort of golden parachute to members of Parliament who leave before the end of their term. Section 11 of the Members of Parliament (Remuneration and Services) Act 2013 only provides an “additional salary” to those who are “member[s] of Parliament immediately before the dissolution of a Parliament” ― and yet it has not stopped resignations. Admittedly, the amount to which members who serve out their term are entitled is only three months of salary, as opposed to up to a year in Québec. Still, that many choose to forego it ― even leaving just months before they would become eligible for it ― suggests that when a legislator becomes sick and tired of legislating, he or she may walk away from easy money just to get away from it. (Take that, all you cynics who think that politicians are only in it for greed or lust for power!)

Our institutions have flaws; sometimes, very visible, even obvious flaws. Members of Parliament resign without finishing the job for which they were elected; governments come to office without the support of a majority of the people. It is tempting to look for an easy fix to these flaws. But these fixes may be less effective than they seem, and may create problems of their own if implemented. Moving to an electoral system featuring party lists may raise the number of parliamentary resignations; requiring prospective MPs to pay a bond to ensure against their resignation may fail to provide that insurance, yet deter the less well off from standing for office. Tinkering with the rules may feel satisfactory, but it is perhaps better to remember that no system is perfect.

Aborting Freedom of Expression

If a city can censor anti-abortion ads to prevent hurt feelings, is there anything that could not be censored?

The decision of the Alberta Court of Queen’s Bench in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734 was issued before the holidays, and was reported on in the media earlier this month, but it has only recently become available on CanLII, and it’s worth a comment. Justice Anderson upheld, as reasonable under the framework for reviewing administrative decisions challenged for contravening the Canadian Charter of Rights and Freedoms developed by the Supreme Court, the decision of the city of Grande Prairie to deny an anti-abortion organization the opportunity to run ads on the city’s buses. She was wrong to do so, and her decision, if it is upheld or followed, will have grave consequences for freedom of expression in Canada.

* * *

Justice Anderson’s description of the ad in question is worth reproducing in full (perhaps with a Posnerian lament about the absence of pictures in legal texts):

The ad contains three images: the first of a fetus at approximately 7 weeks development, the second of a fetus at approximately 16 weeks development, and the third a blank red circle with no image. Under the first image is the caption “7-weeks GROWING”, under the second image the caption states “16-weeks GROWING” and inside the third blank image is the word “GONE”. To the right of the images is the statement “ABORTION KILLS CHILDREN” followed by a web address “ENDTHEKILLING.ca” and the name of the organization behind the ad. [5; emphasis in Justice Anderson’s reasons ― it is not clear whether it was also in the ad itself]

Justice Anderson notes that, at the time, “the City’s Transit Manager, Jason Henry, explained that City buses are taxpayer funded vehicles and that ‘this ad would be disturbing to people within our community'”. [8] The City’s asserted reasons for banning the proposed ad would change later on, however, “to ensur[ing] that hateful expression” ― indeed “hate propaganda” ― “was curtailed to protect the public from the harmful effects of such expression”. [45] The City also required advertising on its buses to comply with the  Canadian Code of Advertising Standards which “states among other requirements that ads shall not demean, denigrate or disparage one or more identifiable persons, or group of persons”. [46]

The way to assess the validity of administrative decisions said to contravene the Charter ― the freedom of expression guarantee of section 2(b) in this case ― was set out by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. There, Justice Abella explained that “[i]f, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable” [58] and thus valid. However, as Paul Daly explains, the Supreme Court’s subsequent decision in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 (about which I have written here) suggests “that there is little difference between Doré reasonableness” and ordinary Charter analysis.

Justice Anderson concluded that

the statutory objective of controlling the content of advertising on City buses is to provide a safe and welcoming transit system, as part of the municipality’s responsibility … to provide services and develop and maintain a safe and viable community. [51]

This objective was agreed to be important enough (in keeping with the Supreme Court’s decision in Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295, which considered the constitutionality of a policy prohibiting all political advertising on city buses ― and eventually found it unconstitutional). “The question”, Justice Anderson observed, “is whether the City limited the [anti-abortionists’] right to expression no more than was necessary in pursuit of the statutory objective”. [53]

Justice Anderson found that this was indeed the case. It mattered, in her view, that “a bus exterior is a location where it is almost impossible to avoid the expression” [68] ― one cannot just move and look away. Moreover, “ads on city buses are viewed in very close proximity by those who have no other means of transportation [and] by other users of the road”. [69] In short, these ads target a captive audience. As a result, they can be more narrowly regulated than other forms of expression, so as to protect “vulnerable groups”, notably “children”, who can in other cases be prevented from witnessing “upsetting images and phrases”. [72] Justice Anderson also insists that the infringement of the freedom of expression “was limited to the rejection of this particular ad. The City did not state that abortion related ads would not be permitted, nor did it preclude the [anti-abortionists] from bringing forward a different ad”. [74] She explains that she has “gone beyond the ad in this case”, looking at the website which it references, and found there “strong statements that vilify women who have chosen, for their own reasons, to have an abortion; [these statements] are not merely informative and educational”. [80] The City, Justice Anderson concluded, is entitled “to protect the general public, including children, from the harm caused by what many members of the public would view as disturbing expression in an exceedingly public space”, [81] whether or not it amounted hate speech:

[T]he ad is likely to cause psychological harm to women who have had an abortion or who are considering an abortion. It is also likely to cause fear and confusion among children who may not fully understand what the ad is trying to express. They may not be familiar with the word abortion, but they can read and understand that “something” kills children. Expression of this kind may lead to emotional responses from the various people who make use of public transit and other users of the road, creating a hostile and uncomfortable environment. [82]

Justice Anderson also briefly considered, and rejected, a number of arguments based on purely administrative law principles, but I will not discuss that portion of her reasons here.

* * *

Justice Anderson’s reasoning is disturbing if not perverse. Her claim that bus advertising is somehow impossible not to look at is odd. It is certainly not consistent with Justice Deschamps’ reasoning for the Supreme Court’s majority in Greater Vancouver, which ― although it did raise the possibility that some forms of expression might be curtailed due to concerns about their audience, did not find that bus advertising was of that nature. Her claim that a different ad could have been allowed is close to mockery ― there is no reason to think that the City would have allowed another anti-abortion ad; it certainly suggested no such thing. The ad at issue was not gruesome, violent, or explicitly derogatory of anyone; this is why Justice Anderson felt the need to “go beyond” it to support her conclusions. Quite apart from the question whether rules of judicial notice authorized her to do so, as she claims they did, the rather obvious fact is that her captive audience argument, whatever its value, does not work once one has to go “beyond” the message that the purportedly captive audience sees. Justice Anderson might not think so, but no one has go on a website just because it is mentioned in an ad. As for claims of psychological harm, Justice Anderson does not even pretend to support them with a shred of evidence. She simply makes them up.

But consider what will happen to freedom of expression in Canada if different strands of this reasoning are adopted as part of our law. It is difficult to see how Justice Anderson’s bizarre views on what makes for a captive audience do not apply to forms of advertising other than ads on bus sides ― large billboards, for example ― which could then also be censored if found to contain “upsetting images and phrases”. Censorship could be imposed on the basis of vague concepts, such as whether something is “upsetting” or “psychologically harmful” ― according, not to some scientific definition, but to the whim of a bureaucrat or a judge. Indeed, a message could be censored not only because it contains “upsetting images and phrases”, but because it leads its audience ― or a bureaucrat or judge ― to some other upsetting message. In more concrete terms, an Oxfam ad depicting an emaciated child, or an Amnesty International ad stating that “Torture disappears only when you do something about it” could be banned from public view because they contain “upsetting images” or words, or because they would cause “psychological harm” to those who do nothing to help about starving children or abused prisoners.

* * *

But, you might say, of course these ads won’t be banned. They might be upsetting, but in a good way. But that’s a subjective viewpoint. And while abortion is legal in Canada while torture is not (though failing to do anything about torture in other countries is certainly legal too), a free society tolerates appeals for the law to be changed, and for previously legal behaviours to be outlawed. The debate about abortion is not going to go away censoring one side of it. If anything, seeing the state take the side of their opponents will only make anti-abortionists more radical and uncompromising.

And beyond this specific debate, there are other disagreements in society, which sometimes cause people to speak in bitter and upsetting terms about each other. A free society is not a safe space in which authorities protect people from having their precious feelings hurt. Justice Anderson does not understand this. I can only hope that other Canadian judges still do.

Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.