What’s Left of Freedom?

In the Trinity Western cases, the Supreme Court eviscerates religious liberty in Canada

In my last post, I discussed the administrative and constitutional law issues relating to judicial review of the decisions of the law societies of British Columbia and Ontario to deny accreditation to the law school set up by the Trinity Western University, which the Supreme Court upheld in in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.  Here, I turn to the religious freedom aspect of the decisions. (Once again, the British Columbia decision is the one that sets out the judges’ reasoning in full, and I will refer to it below.) As indicated in the last post, in my view the Supreme Court’s decisions are disastrous, because they more or less nullify the constitutional protection for religious freedom enshrined in the Canadian Charter of Rights and Freedoms.

Trinity Western requires its students (as well as faculty) to sign and abide by a “Covenant” that proscribes, among other things, sex outside heterosexual marriage. This is widely seen as discrimination against gay and lesbian (potential) students, and was the reason for the law societies’ decisions not to accredit Trinity Western’s law school. Trinity Western argued that these decisions infringed its and its students’ freedom of religion, and that the infringement could not be justified under the Charter.

As on the issues covered in the last post, the Court is split. The majority judgment signed by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon holds that there is indeed a prima facie infringement of religious liberty, but that it is not especially serious and is easily outweighed by the need to prevent harm to students. The Chief Justice, concurring, also finds that there is an infringement of religious freedom, and indeed a rather more serious than the majority lets on, but one that is nevertheless outweighed by the law societies’ desire to avoid condoning discrimination. By contrast, Justice Rowe, also concurring, thinks that religious freedom is not at stake at all. Justices Brown and Côté dissent, finding an infringement of religious freedom that is not justified.

* * *

The majority is of the view that constitutional protection extends to “the socially embedded nature of religious belief” and to “[t]he ability of religious adherents to come together and create cohesive communities of belief and practice”. [64] Trinity Western “is a private religious institution created to support the collective religious practices of its members”, whose rights were “limited” [61] when it was denied accreditation, because their ability to put into practice a “sincere[] belie[f] that studying in a community defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development” was thereby undermined. [70] The majority adds that, while the freedoms of expression and association, as well as equality rights, were also raised in the cases, “the religious freedom claim is sufficient to account for [these] rights of [Trinity Western]’s community members in the analysis.” [77]

The Chief Justice agrees that “the freedom of religion of members of the Trinity Western community” [120] has been infringed. To be sure, as individuals, they can go on holding their beliefs regardless of whether the law societies accredit the Trinity Western law school. However, they would be “prevent[ed] from carrying out a practice flowing from [their] belief about the environment in which [Trinity Western] would offer a legal education”. [125] The Chief Justice adds that the freedoms of expression and association must be included within “the ambit of the guarantee of freedom of religion”. [122]

Justice Rowe, by contrast, denies that anyone’s freedom of religion is being infringed. He starts from the premise “that religious freedom is based on the exercise of free will”, because it “involves a profoundly personal commitment”. [212] For Justice Rowe, it follows from this that, although religion can have a “communal aspect”, it is individuals, and not institutions ― such as Trinity Western ―, who can invoke the right to religious freedom. [219] “[M]embers of the evangelical Christian community” [219] who attend Trinity Western can assert religious rights, but Justice Rowe is skeptical that they “sincerely believe in the importance of studying in an environment where all students abide by the Covenant”. [235] They prefer to do so, but do they really think they have to?Even assuming that this is so, however, Trinity Western’s evangelical students are not entitled to constitutional protection for their belief, which “constrains the conduct of nonbelievers — in other words, those who have freely chosen not to believe”. [239] They cannot, in the name of religious freedom, impose their views on those who do not share them. Since the legislation that sets up Trinity Western requires it to admit non-members of the evangelical community, these non-members are entitled to have their freedom protected too. As for “alleged infringements to … expressive and associate [sic] freedom rights … and … equality rights”, the members of the Trinity Western community “have not discharged their burden” of establishing them. [252]

The dissent sees things very differently. In the opinion of Justices Côté and Brown, the law societies’ denial of accreditation to Trinity Western “undermines the core character of a lawful religious institution and disrupts the vitality of the [Trinity Western] community”. [324] This community has the right to set its own rules for its self-governance, and the law societies are not entitled to dictate how it should do so as a condition of providing it with a benefit. Such dictation

contravened the state’s duty of religious neutrality: [it] represented an expression by the state of religious preference which promotes the participation of non-believers, or believers of a certain kind, to the exclusion of the community of believers found at [Trinity Western]. [324]

The dissenters are exactly right. The majority and the Chief Justice are also correct in recognizing an infringement of the Charter‘s guarantee of religious freedom, though as we shall see, the majority’s recognition, in particular, is well-nigh meaningless, and it is too bad that neither the majority nor the Chief Justice articulate the issue in terms of state neutrality. The key to the Charter aspect of the case is that Trinity Western has been denied something that there is no doubt it would have been granted but for the religious belief and practice which it embodies. While some, including both critics and supporters of the Supreme Court’s decision, have suggested that the case should really have been about freedom of association, I think it makes sense to frame as being about the state neutrality aspect of religious liberty. (That said, freedom of association would also have been a plausible approach ― at least if one ignores the Supreme Court’s refashioning of this provision into one that only benefits labour unions).

Justice Rowe, in my view, is quite mistaken. For one thing, I don’t understand how he, as an appellate judge, can make findings, or even speculate, about the sincerity of individual’s religious beliefs. For another ― and this, as we’ll presently see, is a problem not just for him, but for the majority too ― the suggestion that a court can distinguish between beliefs that are well and truly obligatory and those that are mere “preferences” goes against the approach adopted by the majority of the Supreme Court in Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551, which rejects testing the “validity” of religious beliefs, or asking whether a given practice is regarded as truly mandatory or supererogatory. Most fundamentally, Justice Rowe is wrong to claim that Trinity Western is trying to impose its beliefs on anyone. It demands forbearance from certain actions ― without inquiring into the reasons for this forbearance, in the same way as the state normally demands compliance with laws but doesn’t require citizens to subscribe to the principles behind them. Such demands are indeed quite antithetical to the freedom of conscience ― and one can only hope that Justice Rowe will remember this if or when the Law Society of Ontario’s Statement of Principles policy comes to his court for review ― but this is not what is going on here.

* * *

For the majority, denying Trinity Western accreditation was the only way for the Law Societies to further their statutory mandate (as they understood it), and the denial was “proportionate” to that mandate. It “did not limit religious freedom to a significant extent”, [85] and “does not prohibit any evangelical Christians from adhering to the Covenant or associating with those who do”. [86] Trinity Western itself can still receive accreditation by removing the “Covenant”, or making compliance with it voluntary, and “a mandatory covenant is … not absolutely required for the religious practice at issue”. [87] As for the students who wish to attend it, they prefer to go to a law school governed by the mandatory “Covenant”, but do not have to.

Meanwhile, denying Trinity Western accreditation contributed to “maintaining equal access to and diversity in the legal profession”. [93] Even though accrediting Trinity Western wouldn’t restrict LGBTQ students’ options in comparison with what they currently are, it would leave them with fewer options than their peers which “undermines true” or “substantive equality”. [95] The denial of accreditation also serves to protect any LGBTQ students who were to venture to Trinity Western from “the risk of significant harm” to their dignity, [96] and prevents Trinity Western from “impos[ing]” [102] its religious beliefs on them (and others). The majority concludes that this is just one of the cases where “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society.” [100]

The Chief Justice agrees that the denial of accreditation “was minimally impairing”, [127] but she takes the infringement of Trinity Western’s rights more seriously than the majority. Interference with a “lengthy and passionately held tradition” “of religious schools … established to allow people to study at institutions that reflect their faith and their practices” [130] is no trivial matter. Besides, court cannot assess the significance of religious beliefs and practices, or conclude that they are of minor significance because some believers “may be prepared to give [them] up”. [132] Finally, the Chief Justice rejects the argument that Trinity Western is imposing its beliefs on others:

Students who do not agree with the religious practices do not need to attend these schools. But if they want to attend, for whatever reason, and agree to the practices required of students, it is difficult to speak of compulsion. [133]

On the other side of the balancing exercise, the Chief Justice is skeptical that denying Trinity Western accreditation will do much for LGBTQ students, few of whom would ever consider attending it. However, she gives more weight to “the imperative of refusing to condone discrimination against LGBTQ people, pursuant to the [law societies’] statutory obligation to protect the public interest”. [137] The Chief Justice finds that “[d]espite the forceful claims made by” Trinity Western, she “cannot conclude that” denying it accreditation “was unreasonable”. [148]

The dissent, by contrast, sees no good justification for the denial of accreditation to Trinity Western ― even on the assumption (which, as explained in the previous post, the dissent denies) that the law societies have a free-standing mandate to advance “the public interest”. To be sure, Trinity Western’s “Covenant” is exclusionary; but  this exclusion “is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society”. [327] Canada has traditionally accommodated religious difference, instead of insisting, as the majority does, that it must sometimes be curtailed in the pursuit of statutory objectives. Moreover, “it is the state and state actors — not private institutions like [Trinity Western] — which are constitutionally bound to accommodate difference in order to foster pluralism”. [330] The state is supposed to be secular ― and that means

pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view. [332]

Besides,  “the Legislative Assembly of British Columbia has already determined that the public interest is served by accommodating religious communities” [335] when it exempted Trinity Western from the application of the provincial anti-discrimination legislation.

The dissent also rejects the Chief Justice’s position that accrediting Trinity Western would amount to condoning its discriminatory beliefs:

State recognition of the rights of a private actor does not amount to an endorsement of that actor’s beliefs … Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors. [338]

The state is not entitled to impose its values on those who are not subject to constitutional obligations. While it may not favour particular beliefs, neither may it deny recognition to persons or institutions who hold beliefs that are at odds with its own commitments.

On this, again, the dissenters are exactly right. The majority and the Chief Justice are allowing the law societies to circumvent the decisions of the framers of the Charter and the British Columbia legislature to permit illiberal and discriminatory private actors to retain and act on their religiously motivated beliefs. Yet religious freedom demands no less. When the state uses its regulatory (or, in other cases, its fiscal) power to deny benefits to persons and institutions whose only “fault” is that they hold religious beliefs of which the state does not approve, it not only fails to discharge its duty of neutrality, but actively seeks to eliminate religious diversity or, at best, to push dissentient religious views into the closet. (I use this phrase advisedly.) Moreover, the Chief Justice’s logic ― that the state is entitled to deny a license, benefit, or privilege to persons or entities whose views it ought not to condone ― extends well beyond the realm of religious freedom. Can racist parents be prevented from sending their children to public schools? Holocaust deniers from getting driver’s licenses? Can flat-Earthers be denied passports, or EI payments? In fine, can any interaction a citizen might have with the state be conditioned on that citizen’s not holding proscribed beliefs?

The majority, of course, is no more respectful of religious freedom than the Chief Justice ― and probably less so. Like Justice Rowe, it would, contrary to Amselem, set up secular courts as ecclesiastical tribunals responsible for determining what is and what is not mandatory as a matter of religious dogma. Like Justice Rowe, it confuses rules of conduct and reasons for complying with them and denies the agency of persons who voluntarily choose to submit to rules whose raison d’être they might disapprove of. As for its understanding of “substantive” equality, it requires denying options to all so as not to admit of any disparity, even one that literally leaves “enough and as good” ― and indeed, more than enough and better ― options to those ostensibly excluded; in other words, a levelling down.

* * *

I’m not sure how much is left of the constitutional guarantee of religious liberty after the Trinity Western decisions. Presumably, purely private devotion still cannot be forbidden or compelled ― to that extent, it is fortunate that the Chief Justice’s approach, which would have opened even private religious views to scrutiny the moment a citizen starts interacting with the state, has not prevailed. But any relationships between religious persons or entities with others ― even entirely consensual relationships ― are now open to regulation in which the religiously motivated actions can be regulated or prohibited as impositions of belief, or subjected to the imposition of the state’s values, whether or not there is any legislative basis for such imposition in the circumstances. Purely symbolic harms are deemed to provide sufficient justification for regulation, and multiculturalism is made to serve as an excuse for silencing and assimilating non-conformists. It is telling that the arguments that purportedly justify the denial of accreditation to Trinity Western are not meaningfully different from that those that supposedly support bans on Muslim face veils, which are also said to be necessary to prevent the imposition of retrograde, discriminatory views on those who do not freely embrace them.

Almost five years ago, I commented on an article by Douglas Laycock called “Religious Liberty and the Culture Wars,” which decried the growing hostility to religious freedom among large sections of the political left. Professor Laycock connected this hostility to the religious right’s own attempts to suppress the liberties of the people it regarded as morally misguided. But, contrary to the claims of the Supreme Court’s majority and Justice Rowe, no such thing happened at Trinity Western. However distasteful its views ― and I do find them distasteful, not just the homophobia but the illiberalism more broadly ― Trinity Western wasn’t trying to impose them on unwilling outsiders. Professor Laycock was hopeful that “[w]e could still create a society in which both sides can live their own values, if we care enough about liberty to protect it for both sides”. (41) The Trinity Western cases show this possibility is no longer a realistic one in Canada, for the foreseeable future. The winners in the culture war have chosen not to take prisoners, and to accept nothing short of an unconditional surrender. The Supreme Court holds that they are entitled to do so.

Remarks on Bill C-76

Freedom of expression issues in an electoral reform bill

Earlier today, I had the chance to address the House of Commons Standing Committee on Procedure and House Affairs, which is currently studying Bill C-76, a significant reform package for the Canada Elections Act. I am very grateful to the Committee for inviting me ― though I wish I’d been given more than just a few days to prepare ―, and also to its staff for making it possible for me to speak from an ocean and a continent away.

My remarks focused on the freedom of expression issues that C-76 fails to address or indeed amplifies in what I think is a dangerous quest to stop the “permanent campaign” ― dangerous because the only way to really stop the permanent campaign would be to impose permanent censorship on political debate. (Scott Reid, a Conservative member of the Committee asked me about this, and I said that I hope that Parliament will not go that far ― but I am worried that accepting the principle of regulating political speech outside of the electoral campaign period, we will not stop at just a couple of months, as C-76 does, for now.) More generally, my point was that members of the civil society ― whom election law denigrates by describing them as “third parties” ― should be heard, even at election time.

Here are my remarks. (The Chair’s reference to a miracle is due to some technical issues that prevented me from connecting to the meeting on time… but all’s well that ends well!)

Deference with a Difference

Dunsmuir and Aboriginal Rights

Janna Promislow, Thompson Rivers University

The recent Supreme Court decision in Ktunaxa Nation v BC (Forests, Lands and Natural Resources Operations), 2017 SCC 54 treats both Charter and s. 35 rights in a single judicial review, providing an interesting case study to identify and consider points of difference between the application of deference in Aboriginal rights versus Charter contexts. The case involved a regulatory approval allowing the development of the Jumbo Glacier Resort, a proposed ski resort near Invermere, BC, on land identified by the Ktunaxa Nation as “Qat’muk”, the home of the “Grizzly Bear Spirit”. The majority, written by McLachlin CJC and Rowe J, rejected the claim that the Minister’s approval had violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter. The Minister’s conclusion that the duty to consult and accommodate the Ktunaxa’s claimed rights had been satisfied was also upheld as reasonable. The majority’s approach might be described as “separate paths” for Aboriginal and Charter rights, with the distinct breaches involved leading to mutually exclusive grounds for judicial review. The concurring minority, written by Moldaver J, agreed with the majority on the s. 35 duty to consult, but found an infringement of s. 2(a) that was nevertheless proportionate to the statutory objectives under the Doré/Loyola framework. In contrast to the majority, Moldaver J’s approach integrated Indigenous and Charter interests, at least in regard to the Charter right, such that the Indigenous character of the religious claim was significant, and the accommodations negotiated through s. 35 consultations were critical to the determination that the Minister’s decision was ultimately reasonable (an integration that was incomplete: see Naiomi Metallic’s post for a discussion of the definition of the statutory objectives in the proportionality analysis).

In spite of these quite different approaches, both the majority and minority addressed the question of whether s. 2(a) had been infringed by the Minister’s decision as a threshold question of constitutional law that attracted de novo review on the correctness standard,[1] achieving uniformity in their methodology of review that was absent in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. The duty to consult in Ktunaxa Nation (like many other cases), however, was not about whether a known right had been infringed, but rather the interim protection of “potential, but yet unproven” rights (Haida Nation v BC, 2004 SCC 73 at para 27). The process of consultation and ultimate decision attracted reasonableness, in line with the existing law on the duty to consult and in step with deferential review of discretionary decisions more generally. But the Aboriginal right or rights at stake were not determined before deference was applied. As McLachlin CJC and Rowe J emphasized, judicial review of administrative decisions for breach of the duty to consult is not the forum for pronouncements on the validity of Aboriginal rights claims: “To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes.” (at para 84). By contrast, the lack of analysis of the Charter right by the Minister was no obstacle to the Court considering the scope of Charter claim on judicial review (at para 60). What explains this “incongruent” difference?

McLachlin CJC and Rowe J point to the need for a full evidential record to determine an Aboriginal right, beyond what might be entered for the purpose of the duty to consult, which requires only a preliminary assessment of the strength of the claimed rights (at para 84). The task of proving the existence of historically grounded Aboriginal rights may well be different from the task of demonstrating that the scope of a known Charter right includes protection in a given case. But is the difference of approach grounded in practical concerns about the proof of the rights (difference 1)? Or is it grounded in the jurisprudence that dictates a case-by-case proof of rights under s. 35, versus a proof of violation of a right under the Charter (difference 2)? If the practical concerns are the obstacle, Nova Scotia v Martin, 2003 SCC 54 and Paul v BC, 2003 SCC 55 suggest that other considerations take precedence over practical concerns in relation to access to constitutional arguments before administrative decisions-makers, including s. 35 rights. If difference 2 is the obstacle, the question becomes whether government’s obligation to consider the constitution when interpreting statutes and discretionary authority is really all that different when it comes to Aboriginal rights, including the “potential, yet unproven” ones. The discussion of Charter values after Doré, and the subsequent treatment of challenges that go to the scope of the rights on a correctness standard (such as in Ktunaxa Nation, and the majority in MLQ v Sagnuenay), might demonstrate that when a remedy is sought for an alleged breach of a Charter right, the values at stake transform into a dispute about the right that requires adjudication and articulation, whether by courts or tribunals, whether addressed de novo or not. Are the values behind Aboriginal rights not “rights-like” enough to require or allow for parallel treatment?

The second difference points to a third: the premise that Aboriginal rights and/or their accommodation should be articulated through negotiation. As the Supreme Court has stated repeatedly, in one way or another, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place” (R v Sparrow, [1990] 1 SCR 1075 at 1105; see also Delgamuukw v BC, [1997] 3 SCR 1010 at para 186). The negotiation of rights recognition gives rise to the constitutional duty to consult and accommodate to prevent the unilateral exploitation of claimed resources “during the process of proving and resolving the Aboriginal claim to that resource,” a process that the Court recognizes “may take time, sometimes a very long time” (Haida Nation, at paras 26-27). In the interim, however, the Crown retains the right and authority to continue managing the resources subject to Aboriginal claims, and to make “decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns.” (Haida Nation, at para 45). As McLachlin CJC and Rowe J acknowledge in Ktunaxa Nation, the consultation and accommodation process conducted by the Minister will not satisfy the Ktunaxa, “[b]ut in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket” (at para 86).

If Aboriginal rights are “TBD,” what are “the proper processes” for the determination of Aboriginal rights that the majority in Ktunaxa Nation alludes to? A recent policy announcement by the Trudeau government suggests that creating specialized mechanisms for recognizing Aboriginal rights is finally on the policy agenda. The status quo is that Indigenous peoples can litigate their claims or attempt to work through comprehensive claims processes in relation to title and other s. 35 rights. It is old news that these treaty processes are deeply troubled, and that both litigation and negotiation generally take “a very long time,” a euphemism that buries concerns about expense burdens and access to justice. In Ktunaxa Nation, the majority plainly want to support the “proper” resolution of rights claims, but they do not question the access to “proper processes” before they defer to the Minister’s assessment of the Qat’muk sacred site claim, as part of their review of the adequacy of the consultation process under the reasonableness standard (at para 100). The implication of deference here is that if government manages legal risk by consulting beyond what the legal duty might require in relation to “weak” rights claims (as this particular Ktunaxa claim was assessed, reasonably so according to the Court), it is unnecessary for the Minister or the courts to fully articulate and assess that claim. How does such deference serve to support “a solid constitutional base” for negotiations? This point of deference in Ktunaxa Nation, however, is less about difference and more about the common administrative law theme of inconsistency given that earlier cases establish that deference is not owed on the preliminary assessment of the strength of the right and related determinations of the scope of consultation obligations: Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 48; Haida Nation at para 63.

A fourth difference to consider is structural, relating deference to the obligation to implement and respect constitutional rights in administrative decision-making. Under s. 32, the Charter applies to administrative delegates such that they must interpret statutes and make decisions that accord with the Charter. Deference is thus owed to administrative decision-makers who properly take Charter rights and values into account in their decisions because their area expertise includes respecting the Charter. Section 35 did not come with an application clause. Instead, the obligation to make decisions that respect and implement rights stems from the honour of the Crown. Haida Nation established that aspects of the duty to consult may be delegated but the honour of the Crown itself cannot be delegated (at para 53). In Clyde River v Petroleum Geo-Services Inc., 2017 SCC 40, the Supreme Court further explained: “While the Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always holds ultimate responsibility for ensuring consultation is adequate.” (at para 22). “Reliance” rather than delegation ensures that at least some issues of accommodation and disputes about claims will find their way back to the ‘real’ Crown (see Clyde River, paras 28-29). This approach might suggest respect for “nation-to-nation” treaty relations (and arguably fail), but it also might signal the ongoing political quality of Aboriginal rights, even when the rights at stake were recognized through a modern land claim agreement, as they were in Clyde River. Why, then, is the responsibility to respect for these rights treated differently from Charter rights?

The incompletely delegable quality of the honour of the Crown appears to indicate that administrative expertise is limited, suggesting a re-examination of the premises for judicial deference to non-Crown agencies in such contexts is required. Deference to decisions by Ministers, whose actions directly represent the Crown, might also be inappropriate, or based on a different theory altogether: instead of, or in addition to, the “politics of deference”, there is an ongoing politics of sovereignty at stake. Alternatively, having waited for a negotiated solution for long enough, the courts might take a different tact by reviewing Aboriginal rights as parallel to Charter rights, and thus recognizing these rights as also “ripe” for implementation. Deference under that approach would presumably be more rigorous than reasonableness as it applies to review of discretionary decisions more generally; see, for example, the treatment of reconciliation, the honour of the Crown, and reasonableness in Kainaiwa/Blood Tribe v Alberta, 2017 ABQB 107.

Although it is obvious to me at least that constitutional Aboriginal rights must be implemented as rights, and on par with Charter rights, this view does not imply that approaches to deference in relation to Charter rights should necessarily be applied in relation to Aboriginal rights. Rather, the preceding comparison and identification of points of differences in the application of deference to the review of decisions implicating Aboriginal rights is the start of a bigger discussion. Do the differences identified hold up? Are they principled? Should there be deference in the review of government decisions that affect Aboriginal rights, and if so, why? And how should it be carried out? These are questions for another day.


[1] There is of course much to be said on the freedom of religion aspects of the decision; see, for e.g., Howard Kislowicz and Senwung Luk

Charter Rights and Charter-Lite

How not to resolve the tension between the principles of constitutional and administrative law, and how to actually do it

Audrey Macklin, University of Toronto

The Supreme Court’s 2012 decision in Doré signaled the apparent victory of Team Administrative Law over Team Charter: discretionary decisions engaging Charter rights — dubbed ‘Charter values’ for this purpose — would henceforth be decided according to principles of administrative law applicable to discretion rather than constitutional principles applicable to rights infringement. This meant that judges called upon to review exercises of discretion that impaired Charter rights/values would defer to the administrative decision maker’s determination, and only set it aside if it was ‘unreasonable’.  Although Dunsmuir indicated that constitutional issues would attract a stricter standard of review (correctness), Doré subordinated the constitutional dimension of a decision to its discretionary form in order to winnow down one of the few remaining bases for non-deferential review. The reassurance offered by Team Administrative Law was that judicial deference in administrative law is not so different from elements of judicial deference built into the Oakes test. According to the Court,

while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality.

Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a ‘margin of appreciation’, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.[1]

I dispute the Court’s attempt to plot administrative and constitutional review on the same axis. First, the replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play.  Secondly, the methodology proposed in Doré purports to marry a simplified proportionality analysis with Dunsmuir’s deferential reasonableness review. In my view, this jurisprudential mash-up respects neither the primacy nor priority of Charter rights and produces instead a Charter-lite approach to review of discretion. Curial deference toward the outcomes it produces exacerbates the dilution of rights protection. It also creates negative incentives for governance and the rule of law by making the executive less accountable for Charter breaches committed via discretion than by operation of a legal norm.

For present purposes, I will highlight the second and third defect of Doré, the proportionality analysis. The normative primacy of Charter rights means that a proportionality analysis in the context of rights adjudication is not neutral as between rights and freedoms protected by the Charter and other interests, entitlements or ‘values’.  To denominate an interest as a right is to recognize its distinctive importance. A Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement[2].   Doré’s re-labelling of Charter right as Charter ‘value’ obscures this implication of rights recognition.  More significantly,  the simplified proportionality analysis commended by the Court simply requires decision makers to identify the Charter ‘value’ in play and then ‘balance’ it against competing objectives. In effect, it suppresses the normative primacy of a Charter right. This demotion is not rescued by remedial italics. Exhorting decision makers to engage in what Abella J. called  ‘a robust proportionality analysis consistent with administrative law principles’ does not assist, precisely because it does not reckon with the relevant administrative law principles.

The standard of review in Doré is reasonableness.  A failure to accord sufficient importance to a Charter right (or value) is a question of weight, and the Court’s statement of administrative law principles for over fifteen years have emphatically insisted that deferential review of discretion precludes reweighing the factors relevant to the exercise of discretion. Doré does not depart from this admonition against re-weighing. So if an administrative decision maker undervalues the importance of protecting Charter values/rights against fulfillment of the statutory objectives that are the daily preoccupation of that decision maker, deferential review will have nothing to say. (That is, if the court actually defers; claiming to apply a standard of reasonableness while actually reviewing on a standard of correctness can avoid unpalatable outcomes but only at the cost of introducing other pathologies.)

A Charter right, once established, also asserts normative priority. A rights bearing individual need not justify the exercise of a Charter right; rather, the state must justify infringing it, and the state’s burden is a heavy one.  These requirements flow from the intrinsic weightiness of rights. The stages of the test are designed to ensure that limiting a right serves important objectives, actually advances those objectives, and limits the right no more than required to achieve the objective. Only after clearing each of those hurdles does one arrive at the ultimate balancing of the last step, in which the failure to accord sufficient weight to the Charter right may yet yield the conclusion that the government has not discharged its burden.

The confounding feature of discretion, of course, is that it presupposes that the person has no right to a particular outcome (indeed, the outcome may, in this technical sense, be a ‘privilege’), but insofar as the Charter is implicated in the decision, the individual should be regarded as a rights bearer.

While Doré does instruct decision makers to assess the necessity of limiting the Charter protection in order to achieve statutory objectives, the Court provides no practical advice about how to do that. On its face, it encourages a mere balancing of the Charter as one factor among others. Perhaps the Court in Doré intends to convey the normative primacy and priority of the Charter and all that is entailed when it enjoins decision-makers to ‘remain conscious of the fundamental importance of Charter values in the analysis’[3].   If so, it should say so more explicitly, because it would be subverting its own problematic jurisprudence on re-weighing.

Another entry point into the disjuncture between administrative and constitutional review is the judicial posture toward ministerial decisions. It exposes a fundamental tension between the democratic impulse that underwrites deference and the counter-majoritarian dimension of constitutional rights adjudication. Judges are entrusted with adjudicating the Charter not only because of their legal expertise, but also because of their independence from government. Some Charter cases engage questions of redistribution that resist straightforward classification as state infringement of individual right, but many Charter challenges do conform to type. The judiciary’s real and perceived detachment from the legislature and the executive matters to the legitimacy of rights adjudication when government actors are alleged to have breached the constitutional rights of individuals subject to their authority. Yet, standard of review jurisprudence currently justifies deference by reference to democratic delegation.  Quasi-judicial tribunals who enjoy a measure of relative independence enjoy no more or less deference than front line bureaucrats and possibly less than ministers of the crown. The independence of the administrative decision maker from government does not matter to deference.

But in Charter litigation, proximity to the political branch of government pulls in the opposite direction – decisions by elected officials (legislators) are distrusted precisely because they might be inclined to trade off individual rights for political gain through appealing to majoritarian interests. In other words, democratic legitimacy, political acumen and access to expert staff may incline courts to display particular deference to Ministers in judicial review of discretion, but this translates awkwardly into a rationale for deference where the Charter is at issue. The fact that an administrative decision maker is also high-ranking elected official is not a reason to defer to the balance he or she strikes between protection of individual rights and advancement of other public objectives (statutory or otherwise). It may even be a reason not to defer.

The foregoing does not suggest that decision makers with authority to interpret law should not consider the Charter when exercising discretion.  Their valuable ‘field expertise’ may enhance the fact finding process, the elaboration of the statutory scheme  and the richness of the evidentiary foundation. Some individual decision makers may also produce legally sophisticated and cogent Charter analyses. Many will not, either for lack of ability, time, resources or independence, or some combination thereof. There is simply no basis for a presumption that a decision maker’s ‘field expertise’, which may contribute constructively to some aspects of a Charter analysis, equips the decision maker to manage all aspects of a Charter analysis. On judicial review, judges should certainly pay respectful attention to the reasons given by decision makers exercising Charter-impacting discretion. Sometimes the reasons may be persuasive, and a judge should be as open to benefiting from a rigorous and compelling set of reasons in the same way he or she is open to persuasion from high quality submissions by counsel, analyses by law clerks, or opinions of fellow judges.

In other words, the arguments in favour of Charter jurisdiction do not explain why deference is owed to their Charter outcomes. Nor do arguments about why courts should defer to the exercise of discretion on non-Charter matters automatically extend to those aspects of discretion that implicate the Charter. Yet Doré commits both of these errors.  The slippage is exacerbated by the fact that Court in Doré equips administrative decision makers with a Charter-lite methodology that is approximate, vague and incomplete, starting with its problematic invocation of Charter values, to its account of proportionality.

Lower courts and various Supreme Court judges have already revealed diffidence toward Doré, either by subjecting it to critique or effectively ignoring it. Going forward, I propose that a constructive approach to review of discretion engaging Charter rights should contain the following elements: First, a Charter right is a Charter right, regardless of whether it is infringed by operation of law or discretion; conclusory labelling it a ‘value’ obscures rather than clarifies.

Secondly, a Charter right weighs more than other interests, and the graver the impact of the violation, the more it weighs. Thirdly, the independence of the decision maker from political influence matters. Proximity between the decision-maker and the legislator provides no reason to defer to a balancing of individual Charter rights against majoritarian interests.

Fourthly, where no or inadequate reasons are provided for the exercise of discretion that infringes a Charter right, curial deference neither requires nor authorizes retrofitting reasons to support the result reached by the administrative decision-maker.

Finally, the extent to which the discretion in structured and guided through constitutionally valid legislation, regulation or ‘soft law’ matters. Where the exercise of discretion will routinely and predictably limit Charter rights (e.g. in civil or criminal commitment, parole, immigration detention, child apprehension, extradition, etc.), legislators can and should stipulate the purposes for which the discretion is granted, and identify the factors relevant to the exercise of discretion.  If these provisions withstand an ordinary Charter challenge (including the Oakes test), then the individual exercise of discretion within those demarcated constitutional boundaries should benefit from greater deference than exercises of broad, general and unstructured discretion.  Legislators and administrative agencies should be encouraged to structure discretion.  It advances the rule of law goal of publicity. But if the legislator declines to structure the discretion, courts should not reward opacity by undertaking to generate the best optimal justification for the outcome, just as they should not reward the absence of [adequate] reasons by generating better ones.[4]

Whether these considerations travel under the rubric of reasonableness, correctness, proportionality or Oakes, or some other label matters less than that they receive proper and explicit attention. After Multani, David Mullan correctly (and reasonably) concluded that there is ‘room for deference to the discretionary judgments of statutory authorities exercising powers that have the potential to affect Charter  rights and  freedoms’, but in order to prevent devaluation of those rights and freedoms ‘there should be recognition  that the framework within which deference operates will often, perhaps invariably need  to be different than in the case of judicial  review of administrative action that does not affect Charter rights and  freedoms’.[5] Justice McLachlin (as she then was) correctly observed that many more people have their rights determined by administrative decision makers than by courts. The quality of Charter protection they receive should not depend on who makes the determination.



[1]
Doré, at paras. 56, 57.

[2] Lord Bingham recognized this in the UK context: R (Daly) v. Secretary of State for the Home Department, [2001] UKHL 26.

[3] Doré, at para 54.

[4] Ideally, this should incentivize legislators to be more transparent in structuring and defining the scope of discretion in legislation.  For a thoughtful elaboration of this idea, see Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 Supreme Court Law Review (2d) 247.

[5] “Administrative Tribunals and.Judicial Review of Charter Issues After Multani” (2006–07) 21 N.J.C.L. 127 at 149.

The Charter Conscription

The trouble with governments forcing citizens to advance their constitutional agendas

In his Policy Options post on the federal government’s denial of funding under the Canada Summer Jobs Programme to those who do not share its views on reproductive and equality rights, Brian Bird wrote that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”. As I have already noted here, I think this observation is fundamentally correct. But Mr. Bird’s metaphor doesn’t quite capture what is going on.

It is not just, or perhaps even so much, that the Canadian Charter of Rights and Freedoms is being used as a weapon against citizens. After all it is true that, as Jennifer Taylor pointed out in her defence of the government’s policy in the CBA National Magazine, anti-abortionists “are free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen”, though the space for advocacy is being narrowed ― a point to which I will return. But if the Charter is not yet being used to take away people’s rights (except when it really is, as in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038), it is already being help up as a banner under which increasing numbers of citizens must be conscripted to advance the government’s agenda of protecting some real or purported constitutional rights.

The federal government’s endeavour to enlist the recipients of Canada Summer Jobs funding in the service of productive Charter and “other” rights, and Charter values too, in the bargain, is not an isolated one. In Nova Scotia, Ontario, and British Columbia, law societies ― which are, though people apparently forget this, not private clubs but regulatory instrumentalities of the state ― have sought to ensure that law schools respect the equality rights of gays and lesbians by denying accreditation to one that conspicuously fails to do so. In Ontario, the law society is also demanding that all lawyers acknowledge an (inexistent) obligation to “promote equality, diversity and inclusion”.

In this context, the insistence of Ms. Taylor and what few other defenders the federal government has that “[t]he government shouldn’t be funding activism against constitutional rights when the Constitution is the supreme law of Canada” is rather selective. While the issue in the case of the Summer Jobs Programme is public funding, in other cases it is accreditation or licensing that cost the government nothing (or, in the case of lawyer licensing, is highly lucrative). Yet the government’s reasoning in these different cases is essentially the same. It seeks to ensure that individuals or groups subject to its control act consistently with its agenda, defined ― hypocritically, as I will presently argue ― as a constitution-protecting one. Whether the instrument, in each case, is a subsidy, a license, or some other regulatory tool, is beside the point ― certainly as a matter of political morality but also, I would suggest, as a matter of constitutional law.

Now, the professed adherence of those who would force others to advance their “constitutional” agenda to the Charter is, in my view, selective to the point of hypocrisy. I have already argued, here and elsewhere, that the federal government in particular is guilty of “playing favourites” with the constitution, as indeed are large parts of Canada’s legal community. Something similar is happening here too. For instance, the self-anointed defenders of the Charter ignore its section 32(1), which provides that the “Charter applies … to the Parliament and government of Canada … and … to the legislature and government of each province”. The Charter, by its own terms, does not apply to or bind private parties, and it is wrong to invoke it to justify the imposition of rights-protecting obligations on those on whom it was not intended to impose any.

And then, there is the fact while governments seem increasingly happy to impose their duty to uphold some Charter rights on others, they would do no such thing with other rights, which they deem less pressing or less in need of widespread compliance. For example, while Law Societies are much alarmed by the fact that a law school might discriminate on the basis of sexual orientation, nobody seems especially concerned by the fact that a different law school in the same province apparently conditions its hiring decisions on the prospective candidates’ commitment to social justice or “equity in scholarship” ― freedom of opinion, academic freedom, and the right not to be discriminated against on the basis of political belief be damned. The federal government doesn’t want to fund anti-abortionists, but would it object to funding, say, a women’s group working to dilute the presumption of innocence or other protections available to men accused of sexual assault? Or would deny benefits to a crime-victims’ group campaigning against the Supreme Court’s understanding of the right to be tried within a reasonable time?

These last two examples show, by the way, that, as much as we may love the Charter, the precise contours of its protections can and ought to be debated ― and that it’s not a given that the scope of what are currently recognized as Charter rights should never be restricted. Now, I hasten to add that I personally think that undermining the presumption of innocence would be disastrously wrong, and I’ve argued here that the Supreme Court’s decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, which imposed strict time limits on criminal trials, is more defensible than its numerous critics allowed. But these are my opinions, and I really don’t think that the government should seek to impose them on those who happen not to share them. Similarly, I do not think that the government should seek to impose the Supreme Court’s misguided opinions about the purported “rights” of trade unions on people like me. One can support the constitution while seeking to have it amended; one can certainly support the Charter while seeking to have some interpretations of it by the Supreme Court overturned; and, in any case, in a free society, no citizen ― as opposed to an office-holder ― is under no a duty to support the constitution at all.

But governments and their acolytes have no time for such complexity. They are convinced that anything less than enthusiastic universal support for whatever definition they happen to espouse of whatever rights they happen to prioritize is a threat to these rights and to the constitution as a whole. This is simply not so. To Ms. Taylor “[i]t seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students”, since funding anti-abortionists would threaten “the Charter rights of women, like the right to autonomy over their own bodies”. What should, instead be self-evident, though it manifestly isn’t, is that anti-abortion advocacy, whether federally funded or not, does not by itself impede anyone’s access to abortions. Unless governments themselves decide restrict access, this advocacy is so much hot air. Similarly, the creation of a homophobic law school out in British Columbia doesn’t reduce gays’ and lesbians’ access to any of the other law schools in Canada. And, needless to say, my or anyone else’s failure to “acknowledge” a purported obligation to “promote equality, diversity and inclusion” doesn’t take anything away from the rights that various persons or groups have under the equality-protecting provisions of the Charter or human rights legislation.

Yet in all these situations the existence of expression that contradicts rights claims (such as anti-abortionist propaganda) or indeed silence that is often unfairly interpreted to do so (such as failure to “acknowledge” whatever “obligations” the Law Society of Ontario invents) is deemed harmful. There is, in reality, no harm other than the hurt feelings of vocal factions ― whose membership is in no way coterminous with the groups on whose behalf they purport to speak. But if someone’s hurt feelings give the government the right to impose that person’s views on everyone else, there is nothing the government cannot do. Under the guise of an impassioned defence of the Charter, those who adhere to this logic of empowering government are actually working ― wittingly or not ― to remove constitutional barriers on its powers, so that the full weight of these powers can be brought to bear on ideological minorities.

Already, the room for dissent is shrinking. To repeat, Ms. Taylor points out that anti-abortionists remain “free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen” (emphasis mine). But, as the emphasized part of that sentence suggests, some spaces for public advocacy have already been closed off to them. In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734, the Alberta Court of Queen’s Bench upheld a city’s decision to ban anti-abortionist advertising, which was neither especially strongly worded nor particularly visually upsetting (though the website of the organization promoting was both), from its public buses. It was, I have argued here, a “disturbing if not perverse” decision, inconsistent with Supreme Court precedent; I further explained that its reliance on a specious argument to the effect that the people who might see the ads at issue were a “captive audience” was specious and unsupported by authority. But there it is ― and if the decision stands (there is, I take it, an ongoing appeal), governments will be allowed to ban the communication of anti-abortionist ― and otherwise obnoxious ― messages except perhaps to those who already agree with them. And of course, they will not need to stop at censorship. On the same logic that allows government to deny subsidies to organizations based on their views or agendas, it should be possible to deny them or their donors tax credits, which after all are just another form of subsidy, putting them at a distinct disadvantage when it comes to fundraising too. Nor need the government stop at interfering with the freedoms of ideologically-driven organizations. How about requiring anyone who wants to receive money from Employment Insurance or Old Age Security to submit an “attestation” similar to the one required of applicants to the Summer Jobs Programme? They too might use their money to advocate against abortion rights! There is nothing in Ms. Taylor’s ― or the federal government’s ― position that would prevent such an imposition.

The constitution binds the government. It limit its freedom of action. It does not, however, bind, constrain, or even command the unconditional support of citizens or the organizations that citizens form. The government cannot conscript citizens into a pro-constitutional task force; it cannot bind them to constitutional obligations in a way the constitution itself conspicuously does not. Citizens remain free peacefully to challenge the constitution in whole or in part, and to contest the way in which it has been interpreted by the courts. The government may not demand that citizens refrain from doing so, or induce them to refrain. The government, to be sure, need not encourage or subsidize contestation ― but only so long as it does not encourage or subsidize support either. If money is offered, it must be offered on equal terms to the holders of all views. And if this means that less money will be offered in various programmes, subsidies, and tax credits ― so much the better.

The Detestable Attestation

Thoughts on the federal government’s attempt to make religious groups capitulate to its views on abortion

The federal government dishes out money to various organizations to hire young people for summer jobs. But starting this year, the government decreed that there will be no money for any groups that do not

attest that both the job [for which young people will be hired] and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.

Despite the seeming generality (the absurd generality, as I will explain below) of this statement, the government’s focus is quite clearly on “women’s rights and women’s reproductive rights, and the rights of gender-diverse and transgender Canadians”, and more specifically on “sexual and reproductive rights — and the right to access safe and legal abortions”, which are said to be “at the core of the Government of Canada’s foreign and domestic policies”.

Predictably ― except, it would seem, for the government itself ― many religious groups, who were among the frequent recipients of funding under the summer jobs programme in the past, and whose contributions the Prime Minister himself claims to value, are objecting to this attestation. Since they do not share the government’s vision of “sexual and reproductive rights”, especially when it comes to abortions, they are reluctant to profess their “core mandate”‘s consistency with these rights. The government argues that the objectors misunderstand the point of the “attestation” ― it is enough for it that the group not be primarily anti-abortionist ― but for religious groups themselves, implying that their pro-life views are somehow not “core” is out of question. As they see it, they are being denied access to a government benefit for which they would otherwise qualify on the basis of their religious and conscientious beliefs.

They are quite right, as many commentators have already pointed out. John Ibbitson, in The Globe and Mail, equates the attestation with “making applicants sign on to a Liberal values manifesto”. In the National Post, John Ivison echoes this analysis and adds that “there is a hierarchy of rights in this country: at the apex are those rights the Liberals find agreeable, at its base are those they find abhorrent”. In a CBC Opinion piece, David Millar Haskell points out that the government’s insistence that religious organizations can sign the attestation “shows a complete lack of awareness of what it means to be ethical”, because it cannot be embraced with engaging in the “practice of equivocation and mutable morality”.  A Globe editorial points out that “[t]he Charter protects the[] freedom to dispute the contents of the constitution and its interpretation by the courts”, and that the government’s position “that arguing against a right is as bad as infringing it” is “chilling”. Writing for Policy Options, Brian Bird sums up the issue by noting that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”, instead of the “shield for citizens against the abuse of state power” that it is supposed to be.

All this, I think, is correct. Much like the Law Society of Ontario’s “Statement of Principles” requirement, the “attestation” is a values test that conditions eligibility for a public benefit on the would-be recipient’s agreement with the government. It is an obvious instance of compelled speech and, more importantly, an interference with freedom of conscience. The government cannot ask people to profess or to express particular beliefs, even as a condition of providing a benefit. The Charter was meant to break what Steven Smith (the law and religion scholar, not to be confused with Stephen Smith, the contract theorist) recently described as “the centuries-old pattern in which governments have attempted to compel dissenters or outliers to publicly affirm and acquiesce to the dominant orthodoxy” ― the government’s attempt to invoke it to perpetuate this pattern notwithstanding.

In one of the few attempts to defend the government that I have seen, Dale Smith notes that governments always channel public funding to  causes and groups whose morality they approve of, and away from others. That much is true ― and worthy of condemnation. But Mr. Smith is missing a couple of important distinctions. For one thing, there’s a difference between a completely discretionary decision to allocate funding this way or that, and using a values test to deny funding to a beneficiary who otherwise meets set criteria on which everyone is judged. And second, I think that, as Prof. Smith suggests, there is something particularly odious about governments, not content with discriminating against citizens for their views, demanding that citizens also actively express or endorse beliefs that they do not hold.

And as for the government’s claims ― supported by Daphne Gilbert in an Ottawa Citizen op-ed ― that the objectors misunderstand the attestation, they simply ignore the fact that, when it comes to religious (and, I have argued, conscientious) obligations, the state cannot tell people what theirs are. If a religious group cannot dissociate its “core mandate” from its anti-abortionist stance, neither Professor Gilbert, nor Workforce Development and Labour Minister Patty Hajdu, nor Prime Minister Justin Trudeau is entitled to tell it that it ought to be less scrupulous.

I’d like to add a few more points which I mostly have not seen made in other critiques of the federal government’s position. The first concerns the meaning and scope of the “attestation”. While a few rights are singled out ― a point to which I will return shortly ―, on its face the “attestation” requires the support of “individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights”. What does this even mean? Quite clearly, the rights one is required to support are not limited to Charter rights, but some “other” ones as well. So how about some other non-Charter protected rights? For instance, must applicants to the Summer Jobs Programme support property rights (which, though not in the Charter, are part and parcel of Canadian law)? And then, of course, there is the question of “Charter values”, which Justices Lauwers and Miller recently noted in Gehl v. Canada (Attorney General), 2017 ONCA 319 , “are not a discrete set, like Charter rights, which were the product of a constitutional settlement and are easily ascertained by consulting a constitutional text”,  [80] and which, moreover, “can easily be in conflict”. [82] In other words, the government is asking people to “attest” to their support of an indeterminate and indeterminable set of potentially contradictory rights and “values”. This is contrary not only to the freedom of conscience, but also to the principle of the Rule of Law.

All that said, while the “attestation” is seemingly extraordinarily broad, it is obvious that its true purpose has to do with the government’s support with a fairly narrow set of equality and reproductive rights described as being “at the core of” its policy. (By the way, how “core” are these things to the government’s “mandate”, actually? I’d say that they are pretty tangential to most of what it does; the government may disagree, but this of course only makes more pressing the question of how the government thinks it can define for others what their “core mandate” is.) Mr. Ivison is right to describe this approach as constructing a “hierarchy of rights”. Reproductive and equality rights are at the top; their advancement is the government’s priority. In the middle, a vast number of unknown “other rights” are ostensibly important too, but the government doesn’t seem to care about them very much. And at the bottom, as Mr. Ivison says, are those rights ― like freedom of conscience ― that get in the way of its agenda. The reason I dwell on this, though, is that this is not the first time the government has done something like this. In the context of the Court Challenges Programme, of the celebrations of constitutional anniversaries, and of proposed legislation supposed to foster Parliament’s engagement with the constitution, the government plays favourites with constitutional provisions, playing up its commitment to some while ignoring others. The government is treating the constitution not as a binding constraint, but as a political prop, to be used in order to advance its agenda, ignored when unnecessary, and overridden when inconvenient.

My concluding observations concern the reasons the government got into this mess, and the way we might avoid repetitions in the future. We have come to accept the idea, of which Lord Acton warned as a great danger in his Lectures on Modern History, of the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”. (289) In its role as promoter of wealth, the government  decides to subsidize youth employment ― having first made young people unemployable thanks to minimum wage laws that don’t account for their lack of skill and experience enacted in its capacity of guardian of morality. And then, since it is also the intellectual guide of the nation and the mainspring of progress, the government decides to use subsidies as an occasion to inculcate the proper understanding of (some) rights to those who want to receive them. As Lord Acton realized, such a government must be oppressive; it “governs, and all other things obey”. (289) While much of the criticism of the “attestation” is couched in partisan terms, as if it were a peculiarly Liberal pathology, the truth is that the view of government from which its imposition results is shared by all of the principal federal and provincial political parties, and indeed by most of the critics. To be sure, the existence of the criticism shows that one need not be a fire-breathing classical liberal to oppose government overreach. But unless we recover something of Lord Acton’s suspicion of governmental beneficence we will never do more than fight rear-guard battles against its encroachments; we will never allow ourselves to strike back at its ineradicable tendency to overreach.

Whether groups that receive funding under the Summer Jobs Programme support (its interpretation of) human rights is none of the government’s business. Citizens are not obliged to support rights ― only to respect them to the extent that they are reflected in laws that bind them, which must be clear enough for the citizens to understand what it is that they must do. It is the government’s job to comply with the constitution ― all of it, and not just the bits it likes. But to keep the government to its proper sphere, we must first remember what that sphere is.

The $100 Question, in Court

A challenge to Québec’s harsh limits on political contributions has a decent chance of succeeding

As reported last week by Le Soleil, a citizen of Québec, Yvon Maheux, is challenging the constitutionality of both the province’s $100 yearly cap on donations to political parties and some of the collateral consequences of a conviction for infringing this cap. In my view, much of the claim has considerable merit, and at least a reasonable chance of success. As I wrote when Québec was first considering lowering the amount its citizens were allowed to contribute to political parties from $1000 to $100, such a low limit is quite clearly unconstitutional, given the Supreme Court’s recognition that spending money to advance one’s political views is a form of expression that is entitled to the protection of the Canadian Charter of Rights and Freedoms.

As Mr. Maheux’s notice of constitutional question (kindly provided to me by his lawyer, Antoine Sarrazin-Bourgouin, whom I thank) explains, in 2016 he paid a provincial party, the Coalition Avenir Québec, $100 for taking part in a breakfast it organized, and then another $100 as a fee to take part in the party congress. For his trouble, he was prosecuted for breaching the $100 yearly cap on donations to political parties, provided for by section 91 of Québec’s Election Act. Section 564.2 of that Act provides that, if convicted, Mr. Maheux will face a minimum fine of $5000. Moreover, the infringement of the contribution cap is deemed a corrupt electoral practice (section 567), meaning that a conviction carries a number of additional consequences ― notably the disqualification from voting or running for office, as well as the loss of “the right to engage in partisan work”, both for five years (section 568).

This is a draconian regime. For one thing, the contribution limit is remarkably low. For another, the consequences for breaching it are astonishingly severe. Neither the Canada Elections Act nor Ontario’s Election Finance Act, for example, impose a mandatory minimum punishment for financial offences; nor do they deem making an excessive contribution a corrupt practice; nor do either Parliament or Ontario strip persons convicted of corrupt practices of their “right to engage in partisan work”. New Zealand ― which of course does not limit contributions to political parties at all, and is the least corrupt country in the world nonetheless ― does nothing of the sort either.

But does draconian, in this instance, also mean unconstitutional? The cases raises a number of distinct constitutional issues. The first is whether the infringement of the freedom of expression effected by the limitation of contributions one can make to a political party is justified under section 1 of the Charter. (That the limitation is a prima facie infringement of the freedom of expression must follow from the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although these cases concerned spending independent of parties.) The other issues have to do with the constitutionality of the various consequences of a conviction for breaching the contribution limit.

Regarding the constitutionality of the limit itself, there is no precedent directly on point, I think, but it seems to me that the Québec government will be hard-pressed to show that it is minimally impairing of the freedom of expression. A legislature is entitled to some, perhaps considerable, deference in a line-drawing exercise of this sort ― Libman and Harper indicate that the courts will accept that there ought to be some limit on contributions, and any given figure is bound to be somewhat arbitrary. Still, deference can only extend so far; there is a range of acceptable alternatives, but this range is not infinite. And even if a higher limit would (of course) be somewhat less likely to attain the legislation’s anti-corruption objectives, the issue, as Chief Justice McLachlin’s majority opinion … put it, is only “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner“. That no other jurisdiction in Canada (and perhaps elsewhere) has seen it fit to set a contribution limit anywhere near this low is a strong indication that Québec’s purposes can be substantially achieved through less drastic means.

The $100 limit also fails, I think, at the final stage of the section 1 analysis, which concerns proportionality between the rights limitation’s benefits and its effects on the rights claimants. These effects, in this case, are significant; indeed, the limit renders Quebeckers’ right to contribute financially to a political party of their choice virtually nugatory. Mr. Maheux’s personal story is an eloquent illustration of this fact. So is the simple arithmetic that shows that a donation of $2 a week would be illegal. This all is particularly galling because the Supreme Court’s law of democracy jurisprudence ― especially Harper but also, before it, Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912 ― suggested that participating in the activities of political parties was  political participation par excellence, to be valued and protected above others, as I explained here. Québec’s restrictive approach to political financing means that individuals such as Mr. Maheux can be prevented from developing their engagement with political parties, even as they are also prevented from participating in political debates as “third parties”, by spending money on advertising during electoral campaigns. Politics in Québec risks becoming even more of an insider activity ― ostensibly in the name of a fight against corruption. This makes no sense to me.

As for the consequences of conviction, there are three distinct issues. The first one is whether the disenfranchisement of those convicted, which is an obvious infringement of the right to vote protected by section 3 of the Charter, can be justified under section 1. In Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876, the Supreme Court upheld the disenfranchisement, for five years, of a member of a provincial legislature who had been convicted of trying to induce a person who was not entitled to vote to do so. Harvey was, of course, decided before Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which struck down the general disenfranchisement of prisoners serving sentences of two years or more, but I don’t think that Sauvé calls it into question. The Harvey court accepted that the temporary disenfranchisement of those convicted of corrupt electoral practices was a proportionate way of pursuing the specific purpose of protecting the integrity of elections, with which the general disenfranchisement provisions at issue in Sauvé had nothing to do.

That said, accepting that legislatures can disenfranchise people who compromise the integrity of the democratic process, the question is how far this principle extends. We wouldn’t accept, I think, the disenfranchisement of people who negligently infringe some technical rule about the reporting of a candidate’s expenses. But, again, how do we ― and, more to the point, how does a court ― draw lines? Again, I am not aware of judicial guidance on this point, but looking at what other jurisdictions do is instructive. The lists offences that are labelled as corrupt (or illegal) practices and can lead to disenfranchisement are not identical, but both federally (in section 502 of the Canada Elections Act) and in Ontario (in section 97.1 of the Election Act) the focus is on interference with the composition of electorate (involving voting under various false pretenses or, conversely, preventing electors from voting), or the process of casting ballots. An individual exceeding contribution limits is not deemed guilty of a corrupt practice. Although it is far from certain that the Charter prohibits this, there is, I think, at least a viable argument to be made for this proposition.

The next, related, issue is whether it is permissible not only to disenfranchise a person found guilty of having engaged in some form of corrupt practice, but also to deny him or her the “right to engage in partisan work”. As mentioned above, I do not think that any Canadian jurisdiction except Québec does it; I don’t know if any other democratic country does. The prohibition is an obvious infringement of the Charter freedoms of expression and of association. Can it be justified? Once more, I am not aware of judicial decisions directly on point, but it is possible to venture a few observations. One is that Québec is deliberately targeting political expression and association, which are at the heart of the Charter‘s protections. Another is that it’s not obvious how a ban on “partisan work” is connected to the integrity of the electoral process as such, or even of the political financing regime; at the very least it is seriously overbroad, because much of what might be fairly described as “partisan work” ― a term that Québec’s Election Act does not define, but uses in a number of provisions that suggest that it should be given a broad meaning ― has nothing to do with with either voting or fundraising. Third, once again the experience of other jurisdictions suggests that Québec’s ban is not minimally impairing, and indeed that it is likely quite unnecessary. And fourth, given its breadth, the ban’s deleterious effects on those subject to it surely outweigh whatever social benefits it might be said to have.

Finally, in his notice of constitutional question, Mr. Maheux indicates that he will argue that the cumulative effect of these various sanctions ― not any of them individually, mind you ― amounts to a violation of the prohibition on cruel and unusual punishments in section 12 of the Charter. The test here is whether the punishment is grossly disproportionate, compared to the one that would have been appropriate in the circumstances. This is of course a highly subjective assessment, and I am pretty skeptical of this claim as a standalone ground for constitutional challenge. If a court grants Mr. Maheux’s claims under sections 2 and 3 of the Charter, it is superfluous to consider the section 12 argument. If it thinks that the infringements of sections 2 and 3 are individually justified, I can’t imagine it holding that collectively they are grossly disproportionate; this would strike me as an odd result.

Be that as it may, Mr. Maheux’s challenge is mostly serious and, while we lack specific, on-point guidance from the courts because the provisions of Québec’s Election Act at which it is aimed are so unique, I think it has at least a reasonable chance of success ― perhaps even a very good one. At the level of political morality, the legislation that Mr. Maheux is attacking is indefensible. It is vastly more repressive than it needs to be, and appears to have been enacted in complete disregard of the rights of those affected by it (as well as of the desirability of a competitive political system). I hope that the law recalls Québec’s legislature both to its constitutional duties and to its senses.