Challenging Succession

Parliament made many people unhappy when it enacted the Succession to the Throne Act, S.C. 2013 c. 6, “assent[ing] to” the British legislation allowing a woman to succeed to the Crown despite having a younger brother, or a person to succeed to the Crown despite being married to a Catholic. Among those unhappy was one Bryan Teskey, who rushed to challenge the law ― which has not yet come into force ― before the Superior Court of Ontario, on the basis that by not allowing a Catholic to succeed to the throne, the legislation infringed the equality guarantee of s. 15 of the Canadian Charter of Rights and Freedoms. Last week, the Court dismissed his challenge, in Teskey v. Canada (Attorney General), 2013 ONSC 5046, an interesting but, in my view, flawed, albeit ultimately correct, decision, Justice Hackland holding that Mr. Teskey’s challenge failed because it was not justiciable and because Mr. Teskey lacked standing to bring it.

The matter is not justiciable, says Justice Hackland, because the rules of royal succession are part of the Constitution, and one part of the Constitution cannot be used to challenge another. Justice Hackland points out that

[t]he prohibition against Catholics succeeding to the throne has been part of our law since the Act of Settlement, 1701.  This Act itself is an imperial statute which ultimately became part of the law of Canada.

And, in a prior challenge to the constitutionality of this prohibition, O’Donohue v. Canada, the Superior Court of Ontario had held (as summarized by Justice Hackland)

that the rules of succession are essential to the proper functioning of the monarchy and are therefore, by necessity, incorporated into the Constitution of Canada.  The structure of the Canadian Constitution as a constitutional monarchy … and the principle of sharing the British monarch, are fundamental to our constitutional framework with the result being that the rules of succession must be shared and in symmetry with those of the United Kingdom and other Commonwealth countries. (Par. 12)

Because the Charter cannot be used to abrogate or modify another part of the constitution, the case is simply not one that a court can entertain.

Furthermore, says Justice Hackland, Mr. Teskey lacks standing to challenge the Succession to the Throne Act. The Act obviously does not affect his own rights. Nor can he have public interest standing. His claim is not justiciable; it is not clear what his own interest in the matter is; and the issue he raises is purely hypothetical and lacks a proper factual matrix that could help the court address it. Mr. Teskey challenge thus cannot go forward.

This may well be the right result. On the issue of standing, it is, indeed, unclear whether Mr. Teskey, who represented himself, is an appropriate person to raise such a serious constitutional challenge. And Justice Hackland’s conclusion that royal succession is part of the constitution, and thus cannot be subject to the Charter is arguably correct ― but things are not so simple as he would have us believe.

First, though, a terminological quibble. I think that Justice Hackland is wrong to describe the argument that this case involves an attempt to apply the Charter to another part of the constitution as being about justiciability. Justiciability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis ― as indeed it is, a point to which I will come back shortly.

Now to the substance of Justice Hackland’s reasoning. He argues (as did Justice Rouleau in O’Donohue) that the rules of royal succession are part of the constitution because they were codified in the Act of Settlement, 1701, which, in turn, is somehow incorporated into the Canadian constitution by the Preamble of the Constitution Act, 1867, which refers to a “Dominion under the Crown of the United Kingdom of Great Britain and Ireland.” Actually, it is not at all clear that the Act of Settlement is really part of the constitution of Canada. The Supreme Court has never said it was, despite having ample opportunity to do so when discussing judicial independence, which the same Act first established in the United Kingdom. The Act of Settlement informs the interpretation of the constitution, including its underlying principles, but it is not clear that it is part of the constitution.

However, this might not matter much, because the rules of succession to the throne are arguably incorporated into the constitution not (only) through the Preamble of the Constitution Act, 1867, but by the entrenchment, in s. 41(a) of the Constitution Act, 1982, of “the office of the Queen.” Though the precise scope of the term “office” is not exactly clear, it arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic. Justice Hackland, may well be right ― but not for the reasons he gave.

His being right, however would have interesting implications. If it is indeed the case that the rules of royal succession are part of the constitution of Canada, then it should follow that changing them requires a constitutional amendment. If these rules are part of “the office of the Queen,” then s. 41(a) of the Constitution Act, 1982, requires requires unanimous provincial consent to their amendment. This, I take it, is the substance of another constitutional challenge to the Succession to the Throne Act, launched by a group of academics and supported by the government of Québec. It may well be that, in dismissing one such challenge, Justice Hackland has given additional ammunition to another.

All Quiet on the Western Front

The confrontation between freedom of expression and protection of individual reputation by the law of defamation is as good an example of interminable global legal trench warfare as any. (Well, except in the United States, where one battle proved largely decisive in favour of free speech.) In Canada, freedom of expression has made some gains since the entrenchment of the Canadian Charter of Rights and Freedoms, but the protection of reputation has proven quite resilient, even scoring a rhetorical victory of its own when the Supreme Court dubbed it a “quasi-constitutional” right ― whatever that means ― last year in Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636. Another battle of this war was recently fought in British Columbia, where the province’s Supreme Court, in Northwest Organics, Limited Partnership v. Maguire, 2013 BCSC 1328  rejected an attempt by defendants to impose additional burdens on plaintiffs for their defamation lawsuits to go forward.

The plaintiffs in Northwest Organics are a group of companies developing a composting facility. The defendants are a group of concerned local residents and activists, who have been campaigning against the building of the facility. The plaintiffs say the reports, pamphlets, and internet materials they have distributed as part of that campaign are defamatory. The defendants say the suit against them is a SLAPP ― strategic litigation against public participation ― intended to silence them.

The defendants sought to have the action dismissed, notably by asking that the Court apply a new test to defamation actions in which the defendant claims there is no genuine issue to be tried. In such cases, the defendants argued, interpreting the rules of civil procedure or the inherent powers of the court in accordance with the Charter value of freedom of expression should lead courts to require plaintiffs to show that the action is worth pursuing, despite the chilling effect it will have on the defendants’ freedom of expression, instead of defendants having to demonstrate that the case is frivolous or that there is no genuine issue to be tried (as is normally the case when a defendant seeks to have an action against dismissed). Plaintiffs could discharge this burden by showing that their claim “(a) is to compensate a significant injury to reputation; (b) has a significant likelihood of success, and (c) is the only practicable response to the alleged defamatory speech” (par. 28), a requirement which the defendants later abandoned.

Justice Savage refused to interpret the Supreme Court Civil Rules or the court’s inherent power in this way. Although, as all parties accepted, they had indeed to be interpreted in accordance with Charter values, such interpretation could not have the effect of changing substantive law. The Rules were enacted pursuant to a delegation of power to make rules with respect to procedure and evidence. A provision that dealt with substantive law would be ultra vires. Similarly, the superior courts’ inherent jurisdiction is meant to safeguard the integrity of the judicial process, but cannot be used to change substantive law. And that is precisely what the defendants were asking the court to do:

… [T]he defendants are proposing a substantive change to the law of defamation, not simply a change in the rules of civil practice. The substantive law, as it now stands, is that once the plaintiff commences its claim by asserting the publication of a defamatory statement, the onus shifts to the defendant to prove truth, to prove fair comment, to prove qualified privilege or to prove responsible publication. If the defendant pleads fair comment, then the burden lies on the plaintiff to prove malice. What the defendants are proposing are not changes to procedural rules that would apply only in the case of SLAPP lawsuits, but changes to the substantive law of defamation that go to the merits of those claims. (Par. 76).

In reality, the defendants seek to get rid of the presumptions of falsity and damage that have been part of the common law of defamation for centuries. “This,” says Justice Savage, “is not so much an incremental change to the common law as a wholesale change, something normally undertaken by the legislature or by higher courts with a full evidentiary record” (par. 80). It is too much for a court to read into the rules of procedure, and in the context of a motion without a full factual record to boot.

I think that Justice Savage is absolutely right. The presumptions that any person deserves a good reputation and is deprived of that right by defamatory publications are crucial to the way in which the law protects reputation ― a “quasi-constitutional” right, according to the Supreme Court’s latest pronouncement on the issue. To get rid of them, or to allow defendants to circumvent them by shouting “SLAPP!”, would effectively destroy the law of defamation ― an outcome which the Supreme Court has diligently (if not always elegantly) laboured to avoid. Indeed, one wonders if it is not precisely because they know this that the defendants here have sought to disguise frontal attack on the law of defamation as a mere procedural skirmish.

The law of defamation survives to fight another battle. But the grinding war between freedom of expression and the protection of reputations is certain to go on.

Vies Communes

Il y a quelques jours, je parlais des promesses que l’État peut ou ne peut pas exiger de gens à l’occasion de leur mariage. Cependant, dans les faits, les provinces de common law n’exigent pas que les gens qui se marient civilement promettent quoi que ce soit au sujet de leur vie future. Le Québec, lui non plus, n’exige pas de promesses ― il impose tout simplement les règles. Suivant l’alinéa 1 de l’article 374 du Code civil, « [l]e célébrant [d’un mariage] fait lecture aux futurs époux, en présence des témoins, des dispositions des articles 392 à 396 », qui réglementent « les droits et les devoirs des époux ». Or, il y a lieu, selon moi, de se demander si ces règles sont constitutionnelles.

C’est l’article 392 du Code civil qui est probablement le plus important ici, les suivants en étant, en partie, une sorte d’élaboration. Cet article dispose que

Les époux ont, en mariage, les mêmes droits et les mêmes obligations.

Ils se doivent mutuellement respect, fidélité, secours et assistance.

Ils sont tenus de faire vie commune.

Si le législateur avait sans doute le pouvoir d’adopter le premier alinéa, qui met en oeuvre, dans le contexte du régime juridique du mariage, le droit à l’égalité garanti par la constitution, les deuxième et troisième alinéas me semblent plus douteux.

Ainsi, il me semble qu’imposer un devoir de « respect » heurte le droit à la liberté de la pensée et d’opinion protégé par l’article 2(b) de la Charte canadienne des droits et libertés. Le gouvernement pourrait certes tenter de justifier cette atteinte en vertu de l’article premier de la Charte, au nom de quelque chose comme la promotion de l’harmonie familiale, mais je ne suis pas sûr qu’un objectif aussi vague justifie le contrôle non seulement d’actes, mais aussi de la pensée des individus.

L’imposition d’un devoir de fidélité me semble aussi constitutionnellement douteuse, comme je l’ai dit dans mon précédent billet.  Le droit à la liberté protégé par l’article 7 de la Charte ne s’étend pas seulement à la liberté physique. Comme l’a conclu la Cour suprême dans Blencoe c. Colombie-Britannique (Human Rights Commission), 2000 CSC 44, [2000] 2 R.C.S. 307, au par. 49, il « est en cause lorsque des contraintes ou des interdictions de l’État influent sur les choix importants et fondamentaux qu’une personne peut faire dans sa vie ». Comme l’explique la Cour suprême dans les paragraphes suivants, ces choix importants et fondamentaux incluent, par exemple, l’éducation et les soins que les parents donnent à leurs enfants, la décision d’une femme d’avorter (une position d’abord défendue par la seule juge Wilson dans R. c. Morgentaler, [1988] 1 R.C.S. 30) ou même le choix de « flâner » dans un certain lieu. Il me semble plutôt évident que les choix qu’une personne fait dans sa vie sexuelle et amoureuse en font également partie, et que, par conséquent, l’imposition d’un devoir de fidélité porte atteinte à l’article 7 de la Charte. Comme de telles atteintes ne sont pratiquement jamais justifiables en vertu de l’article premier, elle est inconstitutionnelle.

Il en va de même, selon moi, de l’obligation « de faire vie commune » imposée par le 3e alinéa de l’article 392 du Code civil. L’expression « vie commune » pourrait peut-être avoir un sens abstrait aussi bien que concret, mais le texte anglais de cette disposition (« [the spouses] are bound to live together ») et peut-être aussi la référence au choix commun de la résidence familiale à l’article 395 me semblent indiquer que c’est bien le second que le législateur lui donne. (En pratique, cette disposition semble surtout être invoquée comme motif de nullité de mariage par lesquels un des époux visait, à l’insu de l’autre, d’acquérir le statut de résident permanent au Canada, un contexte qui ne nous renseigne pas nécessairement sur son sens précis.) Or, l’État peut-il forcer des personnes de « faire vie commune », c’est-à-dire de vivre ensemble? Encore une fois, il me semble qu’il s’agit d’un de ces choix importants, fondamentaux et personnels avec lesquels il ne peut interférer. Un arrêt de la Cour suprême, Godbout c. Longueuil (Ville)[1997] 3 R.C.S. 844, est pertinent ici. La Cour y a conclu à l’invalidité d’un règlement qui obligeait les fonctionnaires de Longueuil à résider dans la municipalité. La Cour a unanimement conclu que le règlement violait l’article 5 de la Charte des droits et libertés de la personne (qui s’applique évidemment au Code civil), qui protège le droit à la vie privée. Trois juges ont également conclu que le règlement violait l’article 7 de la Charte canadienne (les autres ont préféré ne pas se prononcer sur la question). La question n’est pas tout à fait identique, mais je crois que si l’État ne peut dicter à un fonctionnaire vivre, il ne devrait pas pouvoir dicter à des citoyens qu’il doivent vivre avec leur époux. Certes, la grande majorité des couples mariés choisira de vivre ensemble. Cependant, les circonstances personnelles peuvent varier, surtout dans ce monde où les gens doivent souvent se déplacer pour le travail ou les études. Le législateur n’a aucun droit de regard sur les choix que font les gens dans ce contexte.

Ce qui me semble être l’inconstitutionnalité plutôt claire de certaines obligations imposées par le Code civil au époux illustre le que, si le droit est souvent, et à juste titre, le reflet des pratiques courantes de la société, il ne peut l’être toujours. On ne peut toujours ériger la normalité (entendue dans un sens sociologique, mathématique, de la pratique du plus grand nombre) en norme. Il ne faut pas régler la vie commune sur les vies communes.

The Crown and the Oath

A friend comments on my earlier post, in which I argued that the oath of allegiance to the Queen which would-be Canadian citizens are required to swear is unconstitutional:

The wording of the oath of allegiance found in the Citizenship Act flows directly from the preamble and various sections of the Constitution Act, 1867 which clearly established the Queen as the head of state and Canada being a nation under the Crown. One part of the constitution cannot (the Charter) cannot be used to attack an act that is clearly authorized by another part of the constitution. The courts used this reasoning to dismiss attacks on separate Catholic School boards before. On a more basic level, it’s inconceivable that an oath of allegiance to the constitutionally appointed head of state can be found to be unconstitutional. You might say that is a tautology.

With respect, I think this is wrong.

It is true, as my friend says, that one part of the constitution cannot be invoked to challenge another. So, for instance, the Supreme Court has held in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, that the Charter did not apply to an exercise of Parliamentary privilege, because privilege is itself a part of the constitution. For the same reason, as my friend points out, courts have rejected Charter-based challenges to Catholic schools. That example illustrates the precise ― and fairly narrow ― scope of this doctrine. Catholic schools are specifically protected by subs. 93(1) of the Constitution Act, 1867. Their existence is effectively made part of the constitution.

The oath of allegiance is not. The Crown is part of the constitution of course (it is the nominal holder of the executive power pursuant to s. 9 of the Constitution Act, 1867 and a constituent component of the legislative power, pursuant to s. 17). But the Constitution Act, 1867 nowhere mentions or even implies the existence of an oath of allegiance for new citizens. It does mention oaths to be taken by voters (ss. 41 and 84), Lieutenant-Governors (s. 61), and members of Parliament and provincial legislative assemblies (s. 128) ― but not new citizens, even though it specifically contemplates “naturalization” as a legislative power of Parliament (s. 91(25)).  This suggests that the oath of allegiance is a mere creature of statute, and thus fully subject to the Charter.

As to my friend’s “more basic point,” it is similar to what the majority of the Federal Court of Appeal Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, seems to be saying:

Of course, the total consequences of the swearing or affirming of these twenty-four words (as opposed to their nominal burden) are not at all trivial. Not only are the consequences as a whole not contrary to the Constitution, but it would hardly be too much to say that they are the Constitution. They express a solemn intention to adhere to the symbolic keystone of the Canadian Constitution as it has been and is, thus pledging an acceptance of the whole of our Constitution and national life. The appellant can hardly be heard to complain that, in order to become a Canadian citizen, he has to express agreement with the fundamental structure of our country as it is.

But I do not think that the equation of the oath of allegiance to the Queen with the Crown and the constitution itself works. Not every country requires oaths of allegiance to the head of state as opposed to the state itself or its constitution. The United States do not require its citizens to swear allegiance to the president. Even a country with “a constitution similar in principle” to Canada, Australia, does not require new citizens to swear an oath of allegiance to the Queen. Now if Canada also required an oath to the constitution and somebody challenged it on the basis that the constitution is monarchical, the argument might have more strength. As it is though, I do not think that it succeeds.

Empty Promise

I wrote yesterday about the challenge now being considered by the Superior Court of Ontario to the constitutionality of the wording of the oath of allegiance that would-be Canadian citizens must swear or affirm. The oath requires one to promise loyalty and fidelity to the Queen, her heirs, and successors. As I explained, the Federal Court of Appeal rejected a similar challenge almost 20 years ago, in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406 . But Charter jurisprudence has developed a good deal since then. Enough to make the new challenge succeed? Maybe not, but I tend to think it should.

The claimants argue that requiring them to pledge faithful allegiance to Queen as a condition for granting them their Canadian citizenship is a violation of their fundamental freedoms of conscience and religion, opinion and expression, assembly, and association, protected rights under the various subsections of s. 2 of the Charter, and of their equality rights under s. 15. Some of these claims strike me as implausible. This is especially the case of the argument based on freedom of assembly ― I have a hard time seeing how it might be implicated, especially in any way distinct from freedom of speech and association. The claim based on the freedom of association, in turn, also seems largely derivative of the one based on freedom of opinion and expression.

The equality claim, at first glance, might seem more serious. People born into Canadian citizenship are not required to swear the oath of allegiance as people who seek naturalization are. This might be treated as a distinction on the ground of citizenship, which the Supreme Court has long held was “analogous” to those specifically mentioned in s. 15 and thus an impermissible ground of discrimination. In his dissent in Roach, Justice Linden suggested that the oath requirement might amount to discrimination between anti-monarchists who want to become citizens and those who already are and thus need not swear allegiance to the Queen. But keep in mind that the claimants are not saying that requiring them to take the oath is in itself discriminatory. On the contrary, they emphasize the fact that they are prepared to take an oath to respect Canadian laws ― just not an oath to be faithful to the Queen. Their objection is thus not really to a distinction between citizens and non-citizens, but to the content of oath. This is not a claim about equality.

The essence of the claim is, in my view, somewhere at the intersection of the freedom of expression and freedom of conscience. The claimants say that they are made to say something that they do not believe and that will bind them in conscience not to express or act on their beliefs in the future. I think that it is at least arguable that this is a breach of subs. 2(b) (expression) and 2(a) (conscience) of the Charter.

A case that comes to mind on this point is Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, in which an arbitrator ordered the appellant to provide the respondent a reference letter the terms of which were specified by the arbitrator. The Court agreed that this order breached the appellant’s freedom of expression. Over a vigorous (and in my view compelling) dissent by Justice Beetz, the majority of the Court said that the breach was justified under s. 1 of the Charter, but one important point in its reasoning was that the compelled statements were limited to largely uncontested facts ― the appellant was not made to state an opinion. Of course the context of this case (a labour arbitration) is quite different from that of the citizenship oath, but I think it is relevant nonetheless.

There are also two serious arguments against the applicability of subs. 2(b) and 2(a) here.

One is that the applicants aren’t actually compelled to take the oath. They do not have to become citizens. If they do not want to take the oath, they can simply go on living in Canada as permanent residents, as the late Mr. Roach did until his death. Indeed, it might be said that citizenship is not a right but a privilege, so one cannot complain about the terms on which it is granted. The latter argument would be mistaken though. Surely it would be unconstitutional for Parliament to bar people from being naturalized on the basis of, say, their race or national origin. Why then could it do so on the basis of their political opinions? But it remains the case that coercion is not so clear in this situation as it was, for instance, in Slaight. Yet I’m not sure that that should matter. The Citizenship Act speaks of a “right to citizenship”, and provides that “[t]he Minister shall [emphasis mine] grant citizenship to any person who” meets the statutory conditions. The taking of the oath is a requirement that a person who is already entitled to citizenship must fulfill. In the United States, if I understand correctly, there is a doctrine of “unconstitutional conditions” that prevents legislatures from restricting people’s rights as a condition to obtaining something to which a statute otherwise entitles them. The Supreme Court of Canada, so far as I remember, has never considered such a doctrine, but it is at least arguable that it should be part of our law too.

The other argument against the claimants is that, as the majority of the Federal Court held in Roach, they simply misconstrue the oath and its import, and that, understood correctly, it is nothing more than an expression of loyalty to the existing constitutional order, which would not prevent the claimants from continuing to work for a constitutional change that would transform Canada into a republic. I think this argument has great force. The Queen and the Windsor dynasty are only symbols for the government and the constitution. It is in this capacity, for example, that the Queen is named as a party to every criminal case. She does not personally rule, so there is no way in which a Canadian citizen might be meaningfully said to be loyal or disloyal to her, rather than to the government or the Constitution. One might also add that the claimants accept to swear an oath to respect Canadian laws ― yet chances are that they find at least a few of those unjust. That doesn’t prevent them from swearing the oath and then working to have those laws changed. Why is monarchy different?

The problem with this argument is that, reasonable though this interpretation of the oath might be, it is not that of the claimants. And, in matters of religion, the Supreme Court has held (rightly in my view) that it is not some officially correct or objective view of religious duty that courts must apply ― it is the claimant’s own view of his or her duties, provided that it is sincerely held. If this rule is extended to matters of (non-religious) conscience, then we must accept the claimants’ position, which is surely sincere even if unreasonable, that the oath would bind them in conscience to stop their anti-monarchist activities, and thus is a breach of their freedom of opinion and expression.

Thus I am actually inclined to think that the oath requirement should be found a breach of subs. 2(a) and/or 2(b) of the Charter, though I suspect that courts might be loth to reach this conclusion. Of course, even if they do, there still remains the possibility of a justification under s. 1 of the Charter, that would “save” the infringement of the claimants’ rights and make it constitutional. Indeed, in most cases under subs. 2(a) and 2(b), that’s where “the action” really is.

But this case is different, I believe. Monarchist though I am, I fail to see any good arguments that the government might invoke to justify the current wording of the citizenship oath. To begin with, it’s not even clear whether the oath serves any “pressing and substantial” objective, the first prong of the s. 1 test. Whatever purpose the oath serves is evidently not so pressing as to make it mandatory for the vast majority of Canadians who are simply born into their citizenship. Even if the oath has some kind of symbolic purpose such as expressing the importance of citizenship, it is not clear how the reference to the Queen specifically is connected to that purpose. As a matter of both law and practical reality, we are citizens of Canada, not subjects of Her Majesty (as was the case before the introduction of the Canadian citizenship distinct from the status of British subject in 1947). Finally, the current oath is not surely not minimally impairing (assuming, of course, that it is at all impairing) of the claimants’ rights, since even Australia, a fellow Commonwealth realm of which the Queen is the head of state ― does not require an oath of loyalty to the Queen.

Enough. As I suggested above, I wouldn’t bet on the citizenship oath being found unconstitutional, but I think that it is a close and difficult question. On balance, I believe that the claimants should prevail. The oath either means too little or requires too much. Either way, it is an empty promise.

Multiple Perspectives

I wrote, back in February, about Martin v. Canada (Attorney General), 2013 FCA 15, a case in which the Federal Court of Appeal ruled that Parliament’s failure to provide double unemployment insurance benefits to parents of newborn twins (allowing them to take twice as much time off work as the parents of an only child) was not a violation of the equality guarantee of the Canadian Charter of Rights and Freedoms. A few weeks ago, Mr. Martin, the appellant in that case, who is now appealing the decision to the Supreme Court, commented on that post. Although I’ve been travelling and neglecting the blog as a result, I am very grateful to him for sharing his views, and I wanted to give his comment a bit more prominence, so I am re-posting it here.

Mr. Martin wrote (paragraph breaks added):

There are several problems with the judgement that we will try to correct at the Supreme Court.

The first is with respect to historical disadvantage. It was blow out of proportion in importance. If a government policy decided to give half the benefits to people with blue eyes than to others, would it be a sufficient defense to say that people with blue eyes did not suffer historical disadvantage? Clearly not.

Secondly, while the act does not consider many things about a person’s individual needs, it does recognize at the most fundamental of levels that a parent can get 35 weeks of benefits to care for a newborn child. Why does this not apply to parents of multiples? The pregnancy is an irrelevant consideration in allocating parental benefits, just as the color of the eyes of the claimant would be.

Finally, the interest affected is hardly simply financial. EI Parental benefits is the most important Canadian program to help families balance the needs of working, financial security and providing care to newborn children. Parental benefits allow parents to spend time with their newborn children. To reduce that to a question of money is really missing the point.

I will briefly comment on the first of these points. (This is not to say I am persuaded by the latter two; I only don’t have anything interesting to say about them). I will also add one other observation.

The role of historic disadvantage in understanding the Charter’s equality guarantee has long been a staple of the Supreme Court’s jurisprudence, certainly going back to Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and arguably, at least implicitly, to Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. The Supreme Court has always interpreted the equality guarantee as an anti-discrimination provision, focused on preventing the perpetuation of pre-existing disadvantages. I have my doubts about the value of this approach; Mr. Martin’s example, for one thing, shows its limitations. An understanding of equality less concerned with historical injustice would allow courts to strike down legislation that is grounded in or effects not only discrimination but also unprincipled, politically motivated favouritism (as for example the French Conseil constitutionnel did in striking down, in its decision 2009-599 DC, at par. 77-83, a proposed carbon tax on the basis that it singled out one source of carbon emissions for taxation while not affecting any others). But it will be tall order to convince the Supreme Court to abandon the one element of its equality jurisprudence that has remained more or less constant throughout its struggle with this concept. I am not optimistic that this will happen any time soon.

The other observation I wanted to make concerns the remedy that Mr. Martin might get if he were successful. I am almost certain that the Supreme Court would not simply re-write the law to say that benefits must be multiplied by the number of children. The law at issue isn’t just a benefit paid out to parents from the public purse, though interfering with that is difficult enough ― it also concerns the interests of employers. I am pretty sure that, even if it were to find the law unconstitutional as it is, it would ask Parliament to revise it ― and not necessarily in the way Mr. Martin seems to hope for.

I am sorry I cannot offer Mr. Martin more optimism. But, once again, I am grateful to him for having shared his perspective on this blog. If you are somehow involved with one of the cases I write about and would like to do the same, please let me know.

Voice after Exit, European Edition

I wrote last year about a court challenge by two Canadian citizens living in the United States to a  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. (The applicants or their lawyers have set up a website documenting their case, on which they have made available their application, affidavits, and exhibits ― which I think is a very commendable thing to do in a public interest case like this; a more general website advocating voting rights for Canadians abroad is here.)

In Charter cases such as this, courts often refer to the law of other countries, particularly when deciding whether a limitation of Charter rights is “demonstrably justifiable in a free and democratic society” and so constitutional pursuant to s. 1 of the Charter. So a recent decision of the European Court of Human Rights on this issue is worth commenting on.

The Court was faced with a challenge by Harry Shindler, a British citizen resident in Italy to legislation disenfranchising citizens who have lived abroad for more than 15 years. Whatever the situation of expatriates might have been in the past, Mr. Shindler argued, it is now easy for citizens living abroad to remain in contact with and engaged with the affairs of their home country. In his own case, he receives a pension from the U.K., pays taxes there, and is an active member of a number of British organizations. And he remains, of course, entitled to return to the U.K. at any time. The U.K. government, however, claimed that the ties between an expat and his home country wither over time, and that the small number of British citizens who register to vote overseas supports this contention. Although some citizens retain strong ties with their home country, it would be impracticable to premise the right to vote on each person’s engagement; a one-size-fits-all rule is necessary.

The Court found that, under the European Convention on Human Rights, the right to vote could be limited to further “any aim which is compatible with the principle of the rule of law and with the general objectives of the Convention” (par. 101). It also referred to its prior case law, in which it held that limiting expatriates’ voting rights was permissible. That is because

 first, the presumption that non-resident citizens were less directly or less continually concerned with their country’s day-to-day problems and had less knowledge of them; second, the fact that non-resident citizens had less influence on the selection of candidates or on the formulation of their electoral programmes; third, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and fourth, the legitimate concern the legislature might have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (par. 105).

The court takes note of the social and technological changes that have made it easier for expatriates to retain their ties to their home countries. It also observes that various European bodies concerned with democratic rights have not (yet) concluded that countries were required to grant expatriates an unrestricted right to vote, although agreement that this was a good idea seemed to be emerging. And it holds, in somewhat conclusory fashion, that the disenfranchisement of expatriates after 15 years, “which is not an unsubstantial period of time” (par. 116), is not disproportionate to the government’s objective of ensuring that only those citizens with a sufficiently close connection to the U.K. be able to vote. An individualized assessment of a citizen’s ties to his home country would be too much of a burden to impose on the state.

I do not find this decision persuasive. The whole idea of expatriates otherwise lacking interest in the affairs of their home country suddenly showing up to vote strikes me as quite fanciful. The fact that few British citizens abroad register to vote may or may not suggest that most expatriates do not care, but it certainly suggests that those who do not care will not bother with voting. It is only the committed (few) who will take the trouble. The alleged objective of the disenfranchisement of expatriates is, in my view, nothing more than a post hoc dressing up of an old prejudice, no longer warranted if it ever was. One could also argue that the distinction between residents and expatriates based on their assumed level of knowledge about politics is also likely to be illusory, or at least rather less significant than usually assumed, because of the serious problems of political ignorance that affect the democratic process of every country (which Ilya Somin frequently discusses on the Volokh Conspiracy). So while it is true that an individualized assessment of engagement as a qualification for voting would be very burdensome and perhaps impossible to administer objectively and impartially (though prof. Somin has argued for similar assessments of political knowledge as a condition for extending the franchise to minors), this is really beside the point. There is simply no good reason for the law to distinguish between resident citizens and expatriates, regardless of how that distinction might be implemented.

Before concluding, I want to mention one feature of the decision of the European Court of Human Rights that I find puzzling: the attention devoted to the right, or lack thereof, of people disenfranchised by their country of nationality for residing abroad to vote in elections in their country of residence. It seems to me that the right to vote does not attach only to a person, so that everyone ought to be able to vote somewhere―anywhere―but, so long as one is able to vote somewhere, there is no problem with denying him the vote elsewhere. A right to vote is a right to participate in the political life of a specific community. Being granted permission to participate in the life of another community cannot remedy one’s exclusion from that to which one always belonged (nor does denial of such a permission make the exclusion any worse).

However that may be, I retain the view that I expressed in my original post on this topic:

[T]he denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners [whose disenfranchisement the Supreme Court held to be unconstitutional in  Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519], it is a judgment that they are not morally worthy to vote – and such judgments are not open to Parliament, according to Sauvé.

Can’t Compel

In “Law Like Love,” W.H. Auden wrote that “we can’t compel” love. He was right of course, and not only in the sense he meant. So holds―without reference to Auden―a decision of the Ontario Superior Court of Justice, R. v. Hall, 2013 ONSC 834. At issue the constitutionality of the exclusion of common law spouses from the rule that one spouse cannot testify against the other (except in prosecutions for a number of offences where the other spouse is the victim), a common law rule codified (and modified) by s. 4 of the Canada Evidence Act.

The decision is actually the second on Mr. Hall’s application to prevent his spouse (or perhaps former spouse, judging by the description in R. v. Hall, 2013 ONSC 429, par. 4) from testifying at his trial. Although the first decision is not available, it seems that Justice Lofchik initially rejected the application, but re-opened the matter after the Supreme Court delivered its decision on the constitutionality of the treatment of common law spouses in Québec’s family law, Quebec (Attorney General) v. A, 2013 SCC 5 (about which I blogged here). In that case, a 5-4 majority of the Supreme Court held that the Québec legislature’s failure to grant separating common law spouses the same entitlements as divorcing couples constituted discrimination contrary to the equality guarantee of s. 15 of the Charter. (One of the five, Chief Justice McLachlin, went on to find that this discrimination was nevertheless justified under s. 1 of the Charter.)

Following that holding, Justice Lofchik finds that the exclusion of common law spouses from the benefit of s. 4 of the Canada Evidence Act is also a breach of s. 15 of the Charter, as it denies the accused a benefit on the basis of a prohibited ground of discrimination (namely his status as a cohabiting but unmarried spouse):

 as a result of the lack of a formal martial bond, the accused is not afforded the protection of the act, vis-à-vis the competence of his spouse/partner to testify before the court.  This is differential treatment of the accused as a person living in common-law relationship as compared to those who are married.  While we recognize the nobility of a public commitment of two people to each to the exclusion of all others, we cannot ignore that certain couples chose for a variety reasons to make this commitment through their actions rather than by scripted words.  Common-law couples must also be accorded respect, dignity and the benefit of the law. (Par. 17)

Justice Lofchik further holds that the discrimination cannot be justified under s. 1 of the Charter. The objective of the impugned rule “is to promote conjugal confidences, protect marital harmony, and prevent the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution” (par. 22, summarizing  R. v. Hawkins, [1996] 3 S.C.R. 1043, par. 38). That is well and good, but, Justice Lofchik observes, “[t]here is no evidentiary or logical reason to believe the proponents of this rule and the statutory scheme which followed had any intention of considering the autonomy and freedom of choice of unmarried persons and excluding them from” its scope (par. 22). Indeed, there is no rational connection between the exclusion and the provision’s objective. Excluding common law spouses does nothing to protect married ones.

The final question is that of the remedy. Mr. Hall wanted the protection for common law spouses to be “read in” s. 4 of the Canada Evidence Act. The Crown argued that this would be too radical a change in the law and hence not an appropriate judicial intervention. Justice Lofchik sides with Mr. Hall: “[t]o include common-law spouses in the evidentiary protection provided by this area of the law does no more than to keep the law in step with the changed and changing social and moral fabric of Canada” (par. 28).

Substantively, I think this is the right decision. There seems to be no particularly good reason for making married but not common law spouses non-competent and non-compellable witnesses for the prosecution. Nor does the Crown seem to have adduced any such reason.

But I wonder whether Justice Lofchik is right about the remedy. The rationale for the spousal incompetence rule has been challenged (as the Supreme Court explains in Hawkins), and alternative versions of the rule have been proposed (for example, making spouses competent but not compellable witnesses). It might have been a good idea to suspend the declaration of invalidity and to leave it for Parliament to choose whether simply to extend the rule to common law spouses or to modify it for all.

Different But Equal

Most claims under the Charter‘s equality provision, s. 15(1), allege violations of the principle that like cases ought to be treated alike. So, for example, the appellant A. in the Supreme Court’s decision on the post-separation rights of common law spouses in Québec argued that common law couples are really like married ones, and should not be treated differently by the law. But some equality cases involve a corollary claim: that different cases ought to be treated differently. The legal framework applicable to both sorts of cases is the same, as the Federal Court of Appeal’s recent decision in Martin v. Canada, 2013 FCA 15, illustrates.

After Mr. Martin’s spouse gave birth to twins, both she and he applied for the 35 weeks of parental benefits which the  Employment Insurance Act, S.C. 1996, c. 23, entitles the parents of newborn or newly-adopted children to divide up between themselves. Her application was granted; his was rejected because the benefits were, accordingly, going to be paid to to her. He appealed, eventually all the way up to the Federal Court of Appeal.

One of Mr. Martin’s claims was that the statute, properly understood, entitled both him and his wife to the full 35 weeks of benefits. The Court rejected it, saying that such an interpretation would fly in the face of Parliament’s intent, which was not to provide a benefit for, or contribute towards expenses associated with, the birth of a child, but to compensate a parent’s loss of income due to taking time off work.

Mr. Martin’s second argument was that the Act, if it did not provide double benefits to parents of newborn twins, was unconstitutional, because treating such parents as if they had a single child was a violation of the Charter‘s equality guarantee. The Court applied the familiar framework set out in  R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483. The Court proceeded did not address the first question, whether the impugned law created a distinction on the basis of a prohibited or analogous ground, but proceeded on the assumption that it was affirmative. As I suggested above, the gist of Mr. Martin’s challenge wasn’t really that the law was making an undue distinction―on the contrary, it was that the law failed to make a necessary one. But the Court seems to assume that there is no difference between the two sorts of complaints.

In both cases, then, the second question to address is whether the distinction (or lack thereof!) is discriminatory―whether it created a disadvantage by perpetuating prejudice or stereotyping. It is here, said the Court, that Mr. Martin’s challenge failed. Analyzing the contextual factors which can indicate that a legislative distinction is discriminatory, it observed, first, “that  that there was no evidence demonstrating that parents of twins were subject to unfair treatment in society and that they had consequently experienced historical disadvantage, stereotyping, vulnerability or prejudice based on their status” (par. 116). Nor was the legislative scheme drawn on the basis of stereotypes unrelated to the real needs of the claimant and those in his position. The legislative scheme is not intended to meet anyone’s individual needs. Indeed, “it is impossible for” it to do so, given the variety of individual and family circumstances that can arise (par. 124). The third factor, the law’s ameliorative effect, was agreed to be irrelevant. Finally, the Court agreed that the fourth and last factor, the nature of the interest at stake, weighed against Mr. Martin, since his interest was a purely economic one. His fundamental status in Canadian society is not called into question by Parliament’s failure to grant parents of twins additional benefits.

This all seems straightforward enough. The case isn’t the most interesting when it comes to the application of the equality test, but I thought I’d highlight the fact that it applies the test normally used in “treating like cases alike” claims in a “treating different cases differently” one.

Difference without Discrimination

The Québec Court of Appeal delivered an important decision last Friday, Droit de la famille ― 139, 2013 QCCA 13, upholding the constitutionality of Québec’s child-support guidelines, despite the fact that their application results, in many cases, in substantially lower child-support awards than that of the federal guidelines which, in one way or another, now apply in the other provinces. The appellants argued that the difference amounted to discrimination contrary to the equality guarantee of s. 15(1) of the Canadian Charter of Rights and Freedoms. At trial, the judge agreed that it did, but held that the infringement of s. 15(1) was justified by s. 1 of the Charter. Now, in a judgment signed by the entire five-judge panel, the Court of Appeal held that there is no s. 15(1) infringement at all.

The reason for the existence of the two separate sets of guidelines is the somewhat messy division of powers over family matters between Parliament and the provincial legislatures. Pursuant to s. 91(26) of the Constitution Act, 1867, Parliament has competence over “marriage and divorce” ― which includes the child-support obligations of divorcing parents. Provinces (in addition to a competence over the “solemnization of marriage” (s. 92(12)), have power over “property and civil rights in the Province” (s. 92(13)), which includes the child-support obligations of parents who are not divorcing because they had never married in the first place. The upshot is that children of never-married couples in every province faced a different legal regime than those of their counter-parts in other provinces and those of divorcing couples in the same provinces. Now my knowledge of family law is very limited indeed, but I don’t suppose any of that would have struck anyone as problematic in 1867, if such questions would even have crossed anyone’s mind at a time when divorce was all but impossible and “bastard” children were very much second class citizens. But while our views of justice in the family realm have changed, the constitutional division of powers hasn’t, so Parliament and the provinces have had to work around it.

The solution they came up with was for Parliament to enact (or rather, to delegate to the Governor-in-council the power to enact) a set of child-support guidelines that would apply in divorce cases, which provinces could make applicable to never-married parents; alternatively, a province could come up with its own set of guidelines, which the federal government would, on some conditions, make applicable in divorce cases in that province. Either way, the legal regime applicable to support obligations for all children in the same province would be the same―but there could be differences between provinces. Most provinces chose the first option, using the federal guidelines for all cases. But Québec opted for the alternative, coming up with its own set of guidelines, which the federal government then made applicable to divorcing parents in Québec. In some ways, Québec’s guidelines were similar to the federal ones, but there were also significant differences in the factors taken into account to determine the amount of child support, often resulting in lower amounts being awarded under the Québec guidelines.

Hence the complaint of discrimination. But not any difference in the way the law treats people or groups amounts to discrimination pursuant to s. 15(1) of the Charter. The difference must be based on one of the grounds (such race, gender, religion, etc.) enumerated in that provision or an “analogous ground” (such as citizenship and sexual orientation). The relationship of the difference complained of and a prohibited ground of discrimination is the central issue in this case.

The appellants argued that they were being discriminated against on the basis of their place of residence (that, Québec as opposed to the rest of the country). But, as the Court of Appeal pointed out, the Supreme Court has always rejected claims that place of residence was an “analogous ground” for the purpose of s. 15(1). Perhaps the most dramatic such case was Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, where the appellant had been prevented from voting in Québec’s referendum on the Charlottetown Accord because he had not lived in the province for 6 months at the time of the vote and in the referendum on the same issue organized by the federal government in the other provinces because he was now living in Québec. The only “exception” to this rule concerned the status of off-reserve Indians, who, as the Supreme Court pointed out, face much more intractable choices than other Canadians when it comes to choosing their place of residence. Theirs is a special situation that does not bear on this case. Furthermore, said the Court of Appeal, in a federal country such as Canada the equality guarantee must be interpreted in light of the federal principle and of the fact that it can result in different legal regimes being applicable to similarly situated persons in different parts of the country. “Thus, differential treatment depending on the province of residence cannot, a priori, be suspect from the standpoint of the right to equality” (par. 62, translation mine). Even when differential treatment results from the application of the same federal statute (rather than from a comparison between the laws of two different provinces), it is not constitutionally suspect.

I think that’s the right decision. Provinces have different needs and different values; they are distinct political communities. The Charter should not become a means of preventing them from making different choices. And, because of the entanglement of federal and provincial responsibilities, which only becomes more complex as society changes and becomes increasingly different from that of 1867, we need co-operative federalism, including federal laws that create, or incorporate by reference to provincial law, different rules for different provinces. The Court of Appeal recognized this reality.