Booze, Fights, and Federalism

As Justice Fish pointed out in a recent lecture on “The Effect of Alcohol on Canadian Constitution,” “alcohol has nurtured our constitutional development from its earliest days.” Canadian constitutional lawyers can proudly say, with Churchill, that we “have taken more out of alcohol than alcohol has taken out of” us. For instance, the double aspect doctrine, after which this blog is named, originates in an alcohol-related case, Hodge v. The Queen, (1883), [1883-1884] 9 App Cas 117. This venerable tradition is alive and kicking. The most recent booze-fuelled constitutional case, R. v. Keshane, 2012 ABCA 330, was decided just last week by the Alberta Court of Appeal.

Ms. Keshane got into a fight outside a bar in Edmonton. Police officers saw the fight and gave her a ticket for contravening s. 7 of Edmonton’s Public Places Bylaw, which provides that “[a] person shall not participate in a fight or other similar physical confrontation in a public place.” Not contesting the facts, she rather challenged the constitutional validity of this provision, arguing that it was, in pith and substance, related to criminal law, and thus beyond the powers of the province of Alberta, from which the City of Edmonton’s bylaw-making jurisdiction is delegated. Parliament has “exclusive Legislative Authority [in] all matters [related to] … Criminal Law” by virtue of subs. 91(27) of the Constitution Act, 1867.

The first thing a court must do when deciding a division of powers challenge to a legislative provision is to determine its “pith and substance”―the thing that it is intended to do and what it really does. The purpose of the prohibition on fighting, says the court, “to promote the safe, enjoyable and reasonable use of such property for the benefit of all citizens of the City” (par. 26). It is different from the criminal law’s purposes in that it aims more at making city streets safer and more enjoyable rather than at protecting the victims of assaults. The effect of the challenged provision is also somewhat different from that of related criminal law provisions, not only in that it prescribes a much milder punishment, but also in that it prohibits some activities, such as consensual fights, which the criminal law does not. The court also finds no “ulterior motive” underlying the prohibition; it is not a disguised attempt to achieve some aim that really belongs to the field of criminal law.

That said, it is also undeniable that the prohibition on fighting overlaps with some criminal law provisions, and that it is possible to describe at as aimed at the maintenance of peace and safety, which are traditional criminal law purposes. Furthermore, the offence of fighting in a public place is not directly linked to “property and civil rights,” over which the province has jurisdiction, although there is an indirect link, insofar as fights on city streets tend to reduce the enjoyment of property, whether public or private. And then there’s the matter of the Supreme Court’s decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43, which held that a municipal bylaw outlawing being on the street for the purpose of prostitution was, in pith and substance, criminal, and thus beyond the powers of the province and the municipality. Indeed, in Westendorp, Chief Justice Dickson clearly assumed that the idea that a municipality could  “punish assaults that take place on city streets as an aspect of street control” was preposterous.

The court decides that this is not enough to make the prohibition on street fighting criminal law. “[A] degree of overlap with criminal law does not compel the conclusion that the dominant purpose is within federal legislative jurisdiction” (par. 37a), and provincial legislation can address potential harm to the enjoyment of property, and not merely actual harm. As for Westendorp, it is distinguishable, because the bylaw at issue there criminalized the very fact of being on the street for the purpose of prostitution, rather than any act that really tended to threaten the enjoyment of property. Justice Dickson’s comment implying that a municipality could not “punish assaults … as an aspect of street control” was an obiter, and “in the context of having found an ulterior motive” (par. 37h) behind the bylaw, which is not present here.

The  court holds that the prohibition on street fighting can be characterized as both criminal and provincial, in equal measure. It thus has “a double aspect,” and is, therefore, valid provincial law.

I’m not quite sure about this conclusion, in particular about the distinctions the court draws with Westendorp. As in that case, it is possible to say that the prohibition on fighting does not really aim at nuisances caused by the fighting but at the act itself, regarded as an evil to be suppressed. And anyway I’m not at all convinced that Chief Justice Dickson’s comment about the punishment of assaults by a municipality, albeit admittedly an obiter, depended specifically on the finding of ulterior motive.

Perhaps the Supreme Court should take up this case. It might seem not to be of national importance. But, to quote Churchill again, it is “pretty hazardous to interfere with the ineradicable habit of a lifetime”―whether drinking in Churchill’s case, or developing constitutional law under the influence of alcohol in the case of Canadian courts.

Humpty Dumpty

Last week, the Globe’s Neil Reynolds blamed all the troubles, real or imaginary, of Canadian federalism on the “peace, order, and good government” (POGG) clause of s. 91 of the Constitution Act, 1867. Undeterred by his failure last time around to grasp the actual constitutional law he was bewailing, which I pointed out here, Mr. Reynolds is at it again, albeit with a new culprit: subsection 2A of s. 91, which authorizes Parliament to legislate with respect to “[u]nemployment insurance.” A week ago, Mr. Reynolds was ignorant of that provision’s existence, and castigated Employment Insurance (EI) as an abuse of the POGG power. It’s nice to know he might actually have read the Constitution Act, 1867. It would have been even nicer if he had acknowledge his previous mistake, but never mind.

Mr. Reynolds is manifestly distressed by what he perceives as the downfall, apparently in 1943, though I’m not sure why then, of the “limited, decentralized government” the Constitution Act, 1867 set up. Notwithstanding Lord Atkin’s “prescient warning” in the Unemployment Insurance Reference about the dangers of a federal spending power which “would afford the Dominion speedy passage into the provincial domain,” provinces and the federal government agreed to a constitutional amendment which transferred the competence to legislate with respect to unemployment insurance from the provinces to Parliament. Mr. Reynolds thinks this was catastrophic:

As Lord Atkin anticipated, the program led, a single surrender of provincial jurisdiction at a time, to a notional constitution that lets federal governments collect taxes and distribute the proceeds to any person, organization or corporation it wants.

We now think it absurd that a British aristocrat could have blocked – as illegal – a national unemployment insurance program in Canada. In retrospect, Lord Atkin proved more perceptive than this country’s determined centralizers. He perceived that the [Constitution Act, 1867] protected Canadians’ human rights by protecting their property rights from excessive federal power.

Mr. Reynolds then goes on to follow Lord Atkin (dissenting in Liversidge v. Anderson) in invoking Alice’s question to Humpty Dumpty:  “whether you can make words mean so many different things.” Humpty Dumpty thought he could. Mr. Reynolds apparently is Humpty Dumpty himself, thinking as he does that he can make our constitution mean so many different things.

For it is absurd to blame the alleged abuses of the federal spending power (the power to collect taxes and distribute the proceeds however it sees fit, without regard to exclusive provincial jurisdiction) on EI. The power to implement EI is narrow, clear, and grounded in a specific constitutional provision; the problem of the federal spending power is precisely that it is unlimited in scope, vague, and has no clear constitutional basis. EI and the federal spending power are polar opposites.

And it is equally absurd to claim that the Constitution Act, 1867 “protected Canadians’ human rights by protecting their property rights from excessive federal power.” For one thing, property rights are no less vulnerable to provincial than to federal invasion. The most economically radical government in Canadian history was the Social Credit one that came to power in Alberta in 1935. Its repressive legislative programme was struck down by the Supreme Court in the Alberta Statutes Reference, [1938] S.C.R. 100, because it infringed the broad economic powers of Parliament. And the extent of these powers – over taxation, over the banks, over interest rates, over bankruptcy – means that if Parliament set about undermining property rights, it could very well have done it. Of course, the framers of the Constitution Act, 1867, rejected the American example and refused entrenching protections for property rights in the constitution (as did the framers of the Charter).

More broadly, Mr. Reynolds’ belief that Canada is an absurdly centralized country with a federal government of unlimited power is groundless. Canada might be the most decentralized federation in the world; it is certainly less centralized than the United States, Australia, or Germany. Just last year, in Reference re Securities Act, 2011 SCC 66, the Supreme Court unanimously struck down – to the consternation and disbelief of many centralizers in the business and academic communities – the proposed federal securities legislation. Canadian federalism is alive and kicking – too much for some. Mr. Reynolds would really do well to find another topic on which to fulminate.

The Pursuit of Difference

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

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

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

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