The Pursuit of Difference

I promised my post earlier today, to say more about the belief that the alleged national slogans of Canada and the United States – respectively “peace, order, and good government,” and “life, liberty and the pursuit of happiness” – tell us something about the two countries generally and their constitutions specifically. Here goes.

Those who hold this belief conveniently forget that the words “life, liberty and the pursuit of happiness” are found not in the U.S. Constitution, but in the Declaration of Independence, which has no legal effect, and does  not define the goals of American government. The Declaration was adopted to justify a revolution, and was animated by  a very different spirit than the Constitution, which was intended to establish an effective government. In his Lectures on the French Revolution (which I heartily recommend, both for the depth of the ideas and for the brilliance of the language), Lord Acton described the Declaration as the Americans’ “cutting,” and the Constitution as their “sewing.”

The Constitution Act, 1867 is the Canadian “sewing,” and it is, accordingly, not appropriate to compare it to the Declaration of Independence. The appropriate comparison is rather with the U.S. Constitution. The preamble of the latter describes its aims as “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Well, common defence, domestic tranquility, and general welfare sound an awful lot like peace, order, and good government.

As is usually the case, we are just much less different from the United States than our romantic nationalists like to think. The pursuit of difference is an unprofitable, albeit occasionally entertaining, pastime. We would do well, methinks, not to try to be different from someone else, but to be more ourselves.

It’s Not a POGGrom!

Canada’s “newspaper of record” has published an ignorant rant by Neil Reynolds, savaging alleged abuses, rhetorical, legislative, and jurisprudential, of  the “Peace, Order, and Good government” (a.k.a. POGG) clause of s. 91 of the Constitution Act, 1867, which sets out the powers of the federal Parliament. While the words “peace, order, and good good government” are indeed sometimes used to draw, or rather to provide rhetorical cover for, expansive and unwarranted conclusions about Canada and its constitution, most of Mr. Reynolds’ claims about the clause’s use by Parliament and courts are flat out wrong.

Mr. Reynolds’ first target is a “Canadian myth[] [that] holds that our constitutional mandate for peace, order and good government has made Canada a kinder, gentler place than the United States – debauched by its licentious pursuit of life, liberty and the pursuit of happiness.”  I’ve heard that line before, and I agree that it is silly. Mr. Reynolds is right that “POGG … was imperial boilerplate,” a perfunctory introduction to a clause vesting the legislative power in Parliament. It certainly does not give courts the right he strike down laws on the basis that they are not conducive to peace, order, and good government. (We might not have much of a statute book if it did.) It does not tell us much of anything about the sort of country we are. (I will have more to say about this in another post shortly.) [UPDATE: that post is here.]

Beyond that, however, Mr. Reynolds’ argument does not disclose much of an understanding of Canadian constitutional law. He claims that “POGG has been used from the very beginning to override” the division of powers between Parliament and provincial legislatures. Apart from bald assertions, his evidence for this claim consists of the Supreme Court’s decision to uphold the constitutionality of the Anti-Inflation Act, Pierre Trudeau’s application of the War Measures Act during the October Crisis, Parliament’s creation of Employment Insurance, and its use of the spending power to  “fund everything (or almost everything) and disperse it directly and indirectly, hither and yon, as they deem fit.” This is almost entirely wrong. Continue reading “It’s Not a POGGrom!”

Is There Voice after Exit?

First of all, an apology for the overextended silence. I couldn’t find anything interesting to blog on, I’m afraid. Fortunately the CBC has rescued me by reporting on a challenge to the provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA) which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (Indeed the disenfranchisement potentially extends even to those Canadians who have been abroad for less than five years but do not intend to return to Canada as residents, or even those who are unable to provide the Chief Electoral Officer with “the date on which [they] intend[] to resume residence in Canada,” pursuant to par. 223(1)(f) of the CEA. It is not quite clear whether the challenge extends to the requirement of an intent to return (on a certain date). While the intent requirement  is in the same provision (par. 11(d) of the CEA) as the five-year limit, it might be easily severable; certainly the individuals bringing the challenge emphasize their desire to return to Canada.

The CBC writes that

[t]he rule denying the vote to Canadians outside the country for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and how well informed they are about the domestic political situation. However, it was only in 2007 that Elections Canada began to enforce the rule to “more clearly reflect the intention of Parliament,” said spokesman John Enright. Until then, the five-year clock would reset for expats who returned even for short visits. Now, they have to “resume residency” before leaving again to regain their right to vote abroad.

It adds that

[a]ccording to economist Don DeVoretz, professor emeritus of Simon Fraser University, close to 10 per cent of all Canadians live abroad – a larger population than all but four of the provinces. About one-third of them live in the United States.

The leading case on the disenfranchisement of a class of citizens is Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, which the Supreme Court held ― by a 5-4 majority ― that denying the right to vote to prison inmates serving sentences of two years or more was a violation of s. 3 of the Canadian Charter of Rights and Freedoms, which provides (in part) that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons,” and that this violation was not justified by s. 1 of the Charter. The government had conceded the s. 3 violation, which I assume will also happen in this case. The real debate in Sauvé was, and will be here, on the s. 1 justification.

Chief Justice McLachlin, writing for the majority in Sauvé, warned that “[l]imits on [the right to vote] require not deference, but careful examination” (par. 9). While “logic and common sense” could serve as justifications in the absence of hard scientific evidence, “one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s.1” (par. 18). The prohibition on prisoner voting utterly failed the s. 1 test. For one thing, prisoner voting gave raise to no specific concern which Parliament sought to address by prohibiting it. Parliament’s stated objectives of promoting respect for the law and enhancing the purposes of criminal punishment were vague and symbolic, so much so that their “rhetorical nature … render[ed] them suspect” (par. 24); they were not pressing and substantial, as required by s. 1. For another, even if Parliament’s objectives were satisfactory, deprivation of the right to vote was not rationally connected to them. “[A] decision that some people, whatever their abilities, are not morally worthy to vote — that they do not  ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights” (par. 37) runs against the direction of historical progress towards universality of the franchise and “is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter” (par. 44).

How will these comments apply to the denial of the franchise to Canadians living abroad? It seems to me that the government is again going to have a hard time articulating the objective of this measure, “the harm that the government hopes to remedy” (par. 23). My best guess is it will be something like “preventing voting by people who are uninformed or do not care about Canadian politics, or who have abandoned their membership in the Canadian community.” The applicants who launched this challenge, as the CBC story describes them, certainly give lie to any such claims. Especially now, thanks to the Internet, it is in fact as easy to keep abreast of Canadian news while living in New York as in North York, in Melbourne as in Montreal, in Kolkata as in Calgary. And of course it is now easy to maintain one’s ties to one’s family and friends in Canada, and to remain part of the broader community (as indeed I am trying to do with this blog for example). Add to this the fact that those Canadians living in Canada need not show that they are in any way informed about politics or current events, or that they have any sort of community ties, in order to be able to vote, and the denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners, it is a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé.

I wish the challengers, and their lawyers, the best of luck.

The A-Word

Why is it that we cannot have a sane conversation if the word ‘abortion’ comes up? It is a difficult moral issue of course, but so are others, from the death penalty to the balance governments must strike between freedom and equality, or freedom and security. Yet although debate on these issues is often heated, it seldom degenerates so much  as any public discussion about abortion quickly does.

Latest case in point, the debate on the motion presented by Conservative MP Stephen Woodworth to re-open debate about abortion in Parliament, on which the Globe reports here. Mr. Woodworth’s own rhetoric is of the worst you’re-with-us-or-you-like-pedophiles kind; he claims that those who disagree with his view that abortion should be criminalized “see the child as an object and an obstacle, even a parasite.” But his opponents are no better. Both the opposition and the government Whip, Gordon O’Connor, invoke the spectre of back alley abortions, of women having “no choice” and being driven to “desperation” (in the words of former MP and Senator Lucie Pépin, in her appeal to sign a petition created by the Liberal Party.

Much of the petition’s actual wording is a misrepresentation. It claims that “In 1988 the Supreme Court ruled: ‘The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state.'” The reference is obviously to R. v. Morgentaler, [1988] 1 S.C.R. 30. Only, the language quoted does not appear in the decision―it is lifted from the headnote. More importantly, it is a summary of the concurring opinion of Justice Wilson, the only one who probably thought there was a constitutional right to abortion in all circumstances; the two plurality opinions (each supported by two judges) struck down the abortion provisions on narrower grounds, and left the door open to Parliamentary reconsideration.*

But we are told now that even talking about it would lead to horrors that “should never happen in a civilized society” (Mr. O’Connor). Really? Nordic countries are usually thought of as models of social liberalism and gender equality. Yet all of them make abortion illegal at some stage in the pregnancy. (My source is, alas, Wikipedia… I do hope it is reliable on this.) Norway―which imposes a 40% minimum female membership requirement on its corporations’ boards of directors―allows abortion on demand for only 12 weeks, and on application (which is almost always granted) until the 18th week of the pregnancy. In Sweden, abortion on demand is allowed until the 18th week, but only in very exceptional circumstances afterwards. In Denmark, abortion on demand is allowed for 12 weeks. And―though I stand to be corrected―I haven’t heard horror stories of back alley abortions in these countries we often look up to.

Of course this may well be a case where we should not be looking up to them. Perhaps they get it wrong, and the current Canadian state of affairs is right. But how can we know this if we are not allowed to have a conversation that includes the A-word?

* I have written to the LPC about this. I will update if and when I get an answer. UPDATE: I never got one.

Are Provincial Election Spending Restrictions Ultra Vires?

Here’s a simple, crazy question: is legislation limiting electoral campaign expenses unconstitutional because ultra vires the provinces? I think that the argument in support of an affirmative answer makes sense, even though I wouldn’t expect Canadian courts to buy it. Here it is.

Campaign spending restrictions restrict free speech on political matters. Nobody disputes that, and the Supreme Court recognizes this in cases such Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569. Nonetheless, such laws (if not too restrictive – as the law in Libman was found to be) can be justified under s. 1 of the Charter, and are therefore constitutional. Or are they?

In the “implied bill of rights” cases, starting with the Alberta Statutes Reference, [1938] R.C.S. 100, the Supreme Court pushed back against attempts by the provinces (first Alberta and then Québec) to curtail political speech disagreeable to authoritarian provincial governments. As there was no Charter then, it used the federal division of powers to ground its judgments. Speech, especially political speech, was said to be within the exclusive competence of Parliament, outside the reach of provincial legislation. Whatever its subject, it was not of merely provincial importance. In the words of Chief Justice Duff and Justice Davis in the Alberta Statutes Reference, at p. 134,

[a]ny attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting and through the press) would, in our opinion, be incompetent to the legislatures of the provinces, or to the legislature of any one of the provinces, as repugnant to the provisions of The British North America Act, by which the Parliament of Canada is established as the legislative organ of the people of Canada under the Crown, and Dominion legislation enacted pursuant to the legisla­tive authority given by those provisions. The subject matter of such legislation could not be described as a pro­vincial matter purely; as in substance exclusively a matter of property and civil rights within the province, or a matter private or local within the province.

Saumur v. City of Québec [1953] 2 S.C.R. 299 and Switzman v. Elbing [1957] S.C.R. 285 are to the same effect.

Overruling such hallowed precedents, showing the Supreme Court’s commitment to individual rights even in the absence of explicit constitutional authorization, seems unthinkable.

Can they be distinguished? One might argue that regulation of provincial elections, as opposed to political speech generally, is a different subject, competent to the provinces. I think the distinction fails. The passage I quote above does not really leave room for it. Provincial politics and federal politics are obviously connected, so if federal political discussion is to be free, so must provincial political discussion. But there is another possibility. It is at least a somewhat plausible reading of the “implied bill of rights” cases that what they prohibit is not any regulation of political speech by the provinces, but only, to use an American term, “viewpoint restrictions.” A province can regulate speech; it just cannot single out one opinion for unfavourable treatment. And it is perhaps arguable, though I believe (for reasons I have no room to elaborate here but touch on in my Cyberpresse op-ed) not correct, that campaign spending restrictions are viewpoint neutral. If that argument fails, as I think it should, then provincial restrictions on election spending are ultra vires and thus unconstitutional.

A Belated Happy Birthday to the Charter

I wasn’t able to post yesterday, but still want to say something good on the Charter‘s anniversary. My doubts and worries notwithstanding, I believe that the Charter has done Canada a lot of good.

With Lord Acton, I believe that “[l]iberty is not the means to a higher political end. It is itself the highest political end.” And Canada is a freer country today than it would have been had the Charter not been enacted. To be sure, there are aspects of freedom which the Charter does not protect – economic freedom in particular. But in those areas with which it is concerned, it has helped curtail the state’s imposition of its views on citizens, its arbitrariness, its bigotry.  But for the Charter, we might well still have a Lord’s Day Act; we would probably still be extraditing people to face torture or the death penalty; and we would almost surely be convicting and imprisoning people on the basis of arbitrary, brutal, or otherwise disreputable actions of the police or prosecutors.

Pace legislative optimists such as Jeremy Waldron – whom I much admire as an idealist, a scholar, and a teacher – we ought to be realistic in thinking about how best to protect our right and freedoms. In some perfect world, legislatures might do the job. In other, dystopian, worlds, judges will become agents of repression worse than any legislators. But in Canada as we have known it in the last three decades, and as it is likely to be in the decades to come, the Charter and the courts that apply it have been and remain our best hope.

But as we celebrate the Charter, we must recall Pierre Trudeau’s words at its proclamation:

No constitution, no Charter of Rights and Freedoms, no sharing of powers, can be a substitute for the willingness to share the risks and grandeur of sharing the Canadian adventure. Without that collective act of the will our constitution would be a dead letter and our country will wither away. … Let us put our faith first and foremost in the people of Canada who will breathe life  into it.

We owe a debt of gratitude to the courts that have nurtured this breath of life, though not without making serious mistakes along the way; and even more so, to the men and women who have, sometimes at considerable cost to themselves, fought for the recognition of their rights. As the profiles of some of them put together by the Globe show, they have often been perfectly ordinary people; it is a safe bet that without the Charter, none of them would have been able to contribute to the freedom of Canadians in the way they did. In this way, the Charter has lived up to Trudeau’s perhaps paradoxical billing of it as “the people’s package.”

The Charter is good, but more importantly, it is ours. Let’s make it even better.

A Charter Child’s Blues

This was originally written more than three years ago now, but I am fond of the text. I thought I would repost it tomorrow, on the Charter‘s 30th anniversary, but decided to do it today. Hopefully I’ll come up with something more celebratory tomorrow.

***

I am a proud Charter child. A copy of the Charter is hanging in my room; right above my bed in fact. Every night I fall asleep secure in the knowledge that “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” You might I’m really taking too far – or even that I’m nuts. You can even tell me this in so many words. That’s fine. “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion, and expression.” But the Charter, according to our Chief Justice, belongs to the people, so it belongs to me too. I’m not the fat old lady, or the gentleman wearing some sort of cross between a Chinese hat and a sombrero, or a kid playing hockey, or any other character gracing my copy of the Charter. But collectively, they all are me. So why is that that I have been having the Charter blues?
Continue reading “A Charter Child’s Blues”