Gun-Registry Litigation News

I know, I know, you are as I excited as I am to read about the progress of Québec’s lawsuit to get its hands on the gun-registry data the federal government wants to destroy. So here goes. (If, for reasons beyond my comprehension, you are not breathlessly excited about this, rest assured that I have even more interesting stuff in the pipeline.)

Almost two weeks ago now – I’m late, I know – Justice Blanchard of the Superior Court of Québec issued a decision rejecting a motion Québec brought for an order compelling Canada to show to the Court that it was complying with the interlocutory injunctions the issued in the case, which require the federal government to keep collecting and maintaining the gun-registry data for the province of Québec. Québec analogized the case with that of Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3,  in which the Supreme Court upheld an order granted by Nova Scotia’s Supreme (i.e. trial) Court directing the province’s authorities to report to the court about the efforts they were making to discharge their constitutional duty to provide secondary education in French. Justice Blanchard was having none of it.

He observed that this is not – unlike Doucet-Boudreau – a Charter case, so that the broad grant of remedial powers in subs. 24(1) of the Charter does not apply. Nor was it a case, like Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, in which the party against whom the order was sought had a demonstrated history of bad faith. In the circumstances, “the Court’s role of constitutional umpire must not make it into an active participant in the litigation, unless, in exceptional circumstances, the very integrity of the Court or of the administration of justice, generically understood, is called into question” (par. 18). If Québec thinks that Canada is up to no good, it has both the means and the responsibility to find out and tell the court. The Court’s power to order a party to report on its compliance with its decisions must remain exceptional.

Sounds right to me.

A Pull Towards Goodness?

WARNING: This post is an adapted version of a passage in my “candidacy paper,” which is meant eventually to be part of the first chapter of my dissertation. Caveat lector.

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Explaining their decisions is an important part of the judges’ work. It is valuable for all sorts of reasons. It forces judges to be honest – not just with the parties and their colleagues, but also, and perhaps most importantly, with themselves – about the issues at stake and the reasons that lead them to resolve the issues this way or that. It reassures the parties that the court has listened to their arguments and given them some thought, even if it ultimately rejected them. It makes judicial decisions more public, more transparent, and more amenable to criticism (and eventually reform). In these different ways it also disciplines the judges – it forces them to produce decisions that are more legally sound, because they address the relevant legal issues and materials. But could it do even more?

Some theorists, notably Lon Fuller, have argued reason-giving can make judicial decisions not merely legally sounder, but also better on some substantive criterion. As Fuller wrote in the context of his famous debate with H.L.A. Hart, “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness.”  (Lon L. Fuller, “Positivism and Fidelity to Law-A Reply to Professor Hart”, (1958) 71 Harv. L. Rev. 630, 636 .) In a similar vein, in an interesting (and/but incredibly romantic) essay on the role of the judge in relation to the corpus juris, especially in a common law system, Sarah M.R. Cravens contends that, as part of “virtuous judging,” reason-giving can help “take decision-making beyond simply the legally correct” and “is a component of a larger cycle that defines, develops, and achieves justice.” (1643)

Is that right? I am very skeptical, despite my sympathy for the view of law, and especially the common law, as inherently valuable and good. Fuller might just be right that reason-giving cannot lead “toward a more perfect realization of iniquity,” (636) because iniquity dares not speak its name, although we know that it does sometimes, as for example in Justice Holmes’ opinion in Buck v. Bell, which I described as “angry [and] heartless” here. But there is a great deal of disagreement about what iniquity is, and even more about what goodness or justice are, making it impossible to say whether reason-giving, or any other practice, actually helps realizing them. One way around this problem is to say, as Prof. Cravens seems to, that goodness or justice are to be found within the four corners of the legal system itself, so that reason-giving helps achieve them merely by situating judicial decisions within the system, but surely many will dispute that the our legal system, as it currently exists, is substantively good or just.

The most that can be said is that the existence of a legal system, or more specifically of a body of law comprising and connecting individual judicial decisions, is itself valuable and good, as for example Jeremy Waldron argues in his essay on “The Concept and the Rule of Law.” Fuller (and probably prof. Cravens) would agree with that claim, but his (and her) view goes rather beyond it and, much as I admire him, I cannot follow him there.

Judicial Review and Co-operative Federalism

I would like to return to Justice Blanchard’s reasons for judgment granting the injunction preventing destruction of Québec-related gun-registry data pending judgment on the merits in this case, about which I posted here a couple of days ago.

The case, says Justice Blanchard, is “exceptional,” “a first in Canadian judicial history” (par. 21). The reason it is exceptional is the opposition between the “diametrically opposed views of what is usually called the common good.” I think this is wrong. While the conflict between the federal and a provincial governments’ views of the common good might be especially clear in the gun-registry data litigation, there is nothing exceptional about it. Most federalism cases, certainly all cases that pit a province against the federal government, involve a similar conflict between views of the common good. For example, the federal government thinks that the common good requires a national securities regulator; Québec and Alberta think that it is best served by provincial regulators. The result is a court case. When the two levels of governments agree on a vision of the common good, the co-operate and don’t go to court, the constitution be damned. Healthcare is the prime example: neither s. 91 nor any other provision of the Constitution Act, 1867 give Parliament any role regulating and paying for healthcare, but it does both, because (and perhaps only so long as) the provinces share its view of the public good in this area, and have no inclination to challenge it in court.

What is in fact (almost) unique in the gun-registry litigation is that, as I argued in my first comments on the topic, it actually stems from a co-operative relationship – but one that has broken down. “Normal” federalism cases involve conflicts over who has the power to decide whether and how to regulate certain areas of human activity. Who, of Parliament and provincial legislatures, for example, has the power to decide (whether and) how the securities industry should go about its business. (Not, by the way, who should have this power, as a matter of economic policy; but who actually has it under the specific constitutional arrangements we have in place.) In these cases, courts are called upon to regulate the competitive aspects of federal-provincial relations. The gun-registry litigation is different because what it really is about is not competition for the power to regulate (indeed it is acknowledged that, on the one hand, Parliament has the power not to regulate gun registration if it does not want to, and provincial legislatures have the power to regulate gun registration if they feel like it); it is about “fair terms of co-operation” between the two levels of government, to borrow a phrase from John Rawls (who of course uses it in a different context).

Courts are not often called upon to police the fairness of the terms of co-operation between the federation and its constituent units, and it seems not to be sufficiently theorized. For example, critics of federalism-based judicial review (who are many in the United States, including for example Larry D. Kramer in this article) do not pay any attention to it; Jeremy Waldron’s criticism of judicial review, which is primarily (but not exclusively) directed to rights-based judicial review, is similarly incapable of addressing it. (Some judicial and academic attention in the United States has been directed at one specific problem which arises from co-operative federalism: the tendency of the federal government to attach stringent conditions to grants of funds to sub-federal units, which the Supreme Court of the U.S. addressed in South Dakota v. Dole and will address again in ruling on the constitutionality of “Obamacare.”) Yet judicial review of the fair terms of federal co-operation deserves attention as a distinct constitutional phenomenon. To give but one example, and return, in conclusion, to the gun-registry litigation, Justice Blanchard’s incredulity at the idea of an award of damages as a remedy in a federalism dispute would probably be appropriate if the dispute were, as usual, about competitive federalism; but it might be unfounded in a dispute about the fair terms of federal co-operation.

What the Fuck?!

Adam Liptak has an interesting article in the New York Times today, looking at the use of  “[t]he most versatile of the classic Anglo-Saxon swear words” before and by the Supreme Court of the United States. That Court, it turns out is rather prudish: after its decision in Cohen v. California, in 1971,  holding that the slogan “fuck the draft” on a t-shirt was protected by the First Amendment, “the word,” which Mr. Liptak never names, “was used in nine Supreme Court decisions, typically in quotations of something a criminal had said. Its last appearance was in 1993.”

I was intrigued and decided to investigate how things stood in Canada. Well, our Supreme Court is less inhibited, or less tasteful, than its American counterpart. Although it did not get in the game until a year later, (quoting a poem, of dubious literary merit, in which a member of a biker gang let it be known that his and his colleagues’ occupation was to “fuck the world”) the words “fuck,” “fucking,” or “fucked” appear in 29 of its decisions, with no sign of a slowdown. However, unlike in Cohen, nothing much seems to turn on “the word” in any of these decisions; they all belong to the “quoting-shit-criminals-say” variety.

Because, unlike Mr. Liptak, I’m not getting paid for looking for dirty words in judicial decisions, I am unable, for now at least, to push my inquiry any further. But for those interested in the subject, there is an article by Christopher M. Fairman, whom Mr. Liptak describes as the “leading authority on the legal status of the word” in the United States, pithily entitled “Fuck”.

UPDATE: When I publish a post, WordPress volunteers some tags which its algorithms think might be relevant to it. The first one that came up for this post was “occupy Wall Street”. Looks like the movement has a foul-mouthed reputation.

Legal and Political Questions about Student Protests

Faced with the lengthening strikes and the prospect of losing their semester – and thus having their graduation and their entry on the job market delayed – students at many of Québec’s CÉGEPs and universities have turned to the courts and have been seeking, and obtaining, injunctions forcing the schools to get back to teaching the courses they are registered for. The injunctions tend to prevent the student “strikers” from blocking entry to their schools and otherwise disrupting classes. The injunction obtained by a student in a technical programme at the CÉGEP de Saint-Laurent is, I understand, fairly typical. Other injunctions, aiming directly at student protesters, have been obtained by universities.

The law, explained for example in the CÉGEP de Saint-Laurent decision, is quite clear. Student associations do not have the same status as trade unions. They are not entitled to impose their “strike” votes on their members, as trade unions are. Students contract for education services, and pay, however little. They are entitled to have the classes they contract and pay for. They suffer great prejudice if they lose their semester. The protesters, on the other hand, can still protest if they feel like it, despite the injunctions.

Yet the courts’ stepping in to apply the law and grant these injunctions has produced an outcry, including from lawyers. The argument is that what’s going on is a “judicialization” of a social conflict; that the courts are improperly stepping in to resolve political questions. This is the issue I want to address today. What is the distinction between legal and political questions? And is a wrongful “judicialization” affecting the student protests in Québec? Continue reading “Legal and Political Questions about Student Protests”

A Belated Happy Birthday to the Charter

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

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

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

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

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

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

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

A Charter Child’s Blues

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

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

Purely Hypothetical Dragons

Everyone knows that dragons don’t exist. But while this simplistic formulation may satisfy the layman, it does not suffice for the scientific mind. …  The brilliant Cerebron, attacking the problem analytically, discovered three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical. They were all, one might say, nonexistent, but each nonexisted in an entirely different way.*

Stanislaw Lem, The Cyberiad

Much of the Conservative government’s legislative programme seems driven by fear and distrust of judges. Such reactions to judicial decisions are often justified by concern about “judicial activism.” But judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways. Or so I am tempted to conclude after reading an exchange at the Volokh Conspiracy (which, by the way, is 10 years old today) between prof. Orin Kerr and prof. Randy Barnett.

Prof. Kerr argues that the expression “judicial activism” can have a variety of meanings, some of them more interesting than others. A decision can be described as activist if 1) it rests on the judges’ personal (including political) views; 2) it expands the power of the judiciary vis-à-vis the other branches of government; 3) it departs from settled precedent; 4) it strikes down a statute or an administrative decision; or 5) it is wrong. Prof. Kerr believes that the meanings 1) to 3) are useful because “the terms allow us to have a useful debate about the proper role of the courts.” On the other hand, 4) and 5) are to be avoided; the former, because everyone (in the US, but I suppose this is mostly true for Canada too) agrees with (some) judicial review, the latter, because we don’t agree about what decisions are right.

Prof. Barnett responds by arguing that given its multiplicity of meanings, useful or otherwise, the term “judicial activism” is best avoided – but not without venturing yet another meaning for it, applying it to describe any decision which contradicts clear constitutional text.

(I have given the bare bones of both posts, which are very interesting, especially if you are conversant with or curious about US constitutional debates.)

It seems to me that prof. Barnett is right that we ought to avoid using the term “judicial activism” if at all possible, since it can mean so many things to different people. Prof. Kerr’s categories of judicial activism are very interesting, and no doubt capture much of what people mean when they use the term, but why use the vague, and vaguely pejorative, “judicial activism,” even in one of the useful meanings prof. Kerr identifies, when we can say more precisely what we mean? Judicial activism does not really exist, but we should keep in mind that it does not really exist in a number of different ways.

* As I recall it, in the Russian translation of the Cyberiad which I read, the three distinct kinds of dragon were said to be the nil, the negative, and the imaginary. If anyone knows what the Polish original was, I would love to hear about it.

Federal Court Roulette

Professor Sean Rehaag of Osgoode Hall has recently posted on SSRN a disturbing statistical analysis of the Federal Court of Canada’s decisions on applications for judicial review of refugee protection determinations by the Immigration and Refugee Board. His main conclusion, based on a study of more than 20,000 cases filed between 2006 and 2010, is that there shocking variations in the rates at which individual FCC judges grant leave for such applications to be heard on the merits (with one judge granting almost 80% of leave applications, and several in over 25%, while for some others, the rate is below 5%), or allow the applications on the merits (with several judges allowing over half of the applications they hear, while many others allow less than 20%). Having clerked at the FCC (for a judge who, on both scores, is somewhat less favourable than average to the applicants), I have to admit that I had no idea that these variations would be so large. I knew that different judges had different approaches to these (as well as any other) cases, but the extent of the disparities is startling.

Prof. Rehaag thinks that leave is not granted often enough, and that in the perfect world the requirement to seek leave would be abolished legislatively or, failing that, declared unconstitutional. If that’s not possible, he suggests a number of other reforms that would make obtaining leave easier. My anecdotal experience makes me wonder if he is right. The experience is one-sided, because I was not at all involved in leave decisions (nor were, I believe, any other clerks). But among the couple dozen merits cases I worked on (including reviews both of refugee status determinations and of other IRB decisions), there certainly were some where the leave grants looked very soft. Nonetheless, prof. Rehaag’s numbers show that applications on which leave is granted by “generous” judges are not necessarily less likely to succeed on the merits than those granted by more “stringent” ones, which means that he seems to be right that many applications that have merit are thrown out simply because the judge reviewing them at the leave stage was a “stringent” one.

Whatever one thinks of the FCC’s overall treatment of immigration cases – whether one is convinced that it is insensitive to the immigrants’ and refugees’ plight, or that its judges are a bunch of pro-fraudster obstructionists, as Jason Kenney apparently believes, one ought to be distressed at these findings of inconsistency between the court’s members. For my part, having had the privilege of interacting with some of them and helping in their work, I am convinced that they are decent, conscientious, and hard-working people. But the fact that conscientious, hard-working people seem to fail so miserably at producing consistent results, to which, I am sure, they would all agree they aspire, is all the more disturbing.  As prof. Rehaag writes, judges are only human, and some discrepancies between individual approaches are inevitable, but surely not such glaring differences.

The Court of Public Opinion

What is the place of the court of public opinion in the judicial hierarchy? Sometimes, courts of justice are in effect sitting in appeal of judgments of the court of public opinion. This is perhaps the case in defamation cases, and most obviously in cases involving judicial review of the constitutionality of legislation. But sometimes the court of public opinion is higher than the highest courts of justice. A story  reported by Radio-Canada is instructive.

Lassonde, The makers of the Oasis juices sued the makers of “Olivia’s Oasis” soaps to try to prevent them from using this name and to recoup their profits from such use as had already occurred, alleging that the mark was confusing. It lost. But the trial judge not only rejected the suit; in addition, upon a request made by the defendant’s lawyer at the end of the trial, the judge ordered Lassonde to pay the defendant $125,000 – $25,000 in punitive damages, and $100,000 in extra-judicial fees – on the basis of a provision of the Code of Civil Procedure which allows courts to sanction “improper” actions or pleadings. The trial judge found that

[p]laintiffs, using their economic power and experience used a shotgun approach to attack Defendant simultaneously on several fronts with their full might, attempting by the present proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark. Obviously Plaintiffs expected that, given the threat which the action represented to Defendant’s very corporate existence, given that Defendant was still a fledgling business, given the projected cost of such proceedings and, given the obvious disparity in the respective power and resources of the parties, that Defendant would retreat and succumb to their demands, and cease using its mark and change its corporate name or, perhaps would ensure its survival and avoid an economically and resource draining battle by signing a licensing agreement with Plaintiffs – as others have done in the past.

Lassonde appealed against this portion of the judgment, and won, in a unanimous decision by the Québec Court of Appeal. The court points out that there was no evidence of bad faith on the part of the appellants, who simply acted consistently with the usual practice in such cases. Besides, there was no evidence to justify the amounts of the damages set by the trial judge (who, indeed, went beyond what the plaintiffs had asked on this point).

End of story? No. La Pressed seized on the story, in a “David against Goliath” report unabashedly sympathetic to the soap-maker which does not once present Lassonde’s position or the views of a lawyer on what constitutes standard practice in such cases. Lassonde’s Facebook page, says Radio-Canada, was deluged with negative comments and even calls for boycott by minor celebrities. Whereupon it swiftly capitulated, and agreed to pay the $125,000.

Thus in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.