Polyphony

How different constitutional orders respond to attempts at denying citizens access to adjudication

The UK Supreme Court recently delivered a judgment that will, I think, be of interest to those Canadian readers who have not yet heard of it. That is because the case, R (Unison) v Lord Chancellor [2017] UKSC 51, arises out of circumstances that are fundamentally similar to those of the Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. Trial Lawyers, which I summarized here, concerned a challenged to the fees that litigants had to pay for each day they argued their cases in the (trial) Supreme Court of British Columbia. Unison involved fees imposed on litigants who took their cases to tribunals charged with the resolution of employment law disputes. But the ways in which the courts addressed the legal issues highlights the differences both between the respective constitutional frameworks of Canada and the UK, and between the courts’ understandings of their roles within these frameworks.

In Trial Lawyers the majority addressed the constitutionality of hearing fees, concluding that, if they are set so high as to prevent people accessing superior courts, they would contravene section 96 of the Constitution Act, 1867, which had previously been held to protect the “core” jurisdiction of the courts to which it refers. While the Chief Justice’s opinion, for the majority, also addressed the principle of the Rule of Law, it invoked this principle only as additional support for its conclusions ― Justice Rothstein’s accusations to the contrary notwithstanding. Only Justice Cromwell, in his concurrence, proposed deciding the case on administrative law grounds, and would have held that since the hearing fees were imposed by delegated legislate made pursuant to a statute that preserved the common law right of access to courts, they could not validly interfere with this right. Yet interfere with it they did, and they were therefore invalid for that reason.

By contrast, Unison was decided on administrative law grounds ― and the principle of the Rule of Law was central to the UK Supreme Court’s reasoning. Having concluded that, as a matter of empirical fact (on which more below), the fees at issue deter substantial numbers of people from pursuing their claims, the Court asked itself whether “the text of” the statute pursuant to which the fees were imposed by the executive, “but also the constitutional principles which underlie the text, and the principles of statutory interpretation which give effect to those principles”  [65] provided authority for setting the fees at their  current level. The relevant principles included, in particular, “the constitutional right of access to justice: that is to say, access to the courts (and tribunals …)”, [65] which in turn is an aspect of the Rule of Law. They also included the idea that rights granted by a statute cannot be nullified by delegated  legislation purportedly authorized by a different statute.

The Court began with what Mark Elliott, on his excellent Public Law for Everyone blog, described as

a primer — albeit a very powerful one — on what the rule of law means … . Indeed, it is difficult to escape the conclusion that the Court felt it necessary to drive home some very fundamental propositions — ones that should not really need to be driven home — because the Government’s position indicated ignorance of or contempt for them.

As part of this “primer”, the Court emphasized that

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. … In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other. [65]

In the course of adjudicating disputes, courts both ascertain important legal principles and provides the assurance that “[p]eople and businesses … will be able to enforce their rights if they have to do so, and … that if they fail to meet their obligations, there is likely to be a remedy against them.” [71] For this assurance to be effective, “people and businesses” must be able to take their disputes to courts or tribunals, if need be.

Given the importance of access to courts and tribunals, “any hindrance or impediment
by the executive requires clear authorisation by Parliament”, [78] and the authorization will only be taken to extend so far as the achievement of its purposes requires. As Parliament did not clear empower the executive to levy fees that would prevent litigants from accessing tribunals, and as the fees at issue had precisely that effect, they must be held not to have been authorized by the statute under whose purported authority they were imposed. In addition, they “must be regarded as rendering … nugatory” [104] the rights which the tribunals are supposed to enforce, thought in the Court’s view this point this point overlapped with the Rule of Law one.

It is tempting for people used to constitutional frameworks where legislation can be invalidated for inconsistency with the supreme law to look down on a decision based on administrative law grounds, which can be overridden by legislation. Indeed, even prof. Elliott writes that “for all that the case represents a striking and robust reaffirmation of fundamental constitutional principles, it also hints at — or least raises questions about — the limits of those principles” ― within the UK constitutional context, that is. After all, if the UK executive insists on collecting prohibitive tribunal fees, it can (try to) get Parliament to enact them into statute, or explicitly allow fees to be set at levels that will result in impeded access. If the UK Parliament does either of these things, there can probably be no challenge to its decision within the UK’s internal legal order, subject to courts taking up the occasional musings of some judges about limits to Parliamentary sovereignty ― an unlikely, and at least arguably an undesirable prospect. (Prof. Elliott, mixing metaphors somewhat, describes as a “nuclear option”, and says that “we will cross this bridge if we ever come to it, while fervently hoping that we never do”.) It is better, we might be tempted to say, for courts to have at their disposal the more powerful weapons that an entrenched constitution, like that of Canada, can provide.

But, while there is a good deal of truth to this view, it is not the whole truth. Prof. Elliott suggests that

in some constitutional orders … administrative orders incompatible with the right of access to justice would be unlawful — because the constitution would withhold the authority to legislate in breach of such a fundamental right.

But things might not be so simple. Prof. Elliott does not say what “constitutional orders” he has in mind, but at least in the Canadian constitutional order, it is by no means clear that the constitution withholds the right to legislate in breach of the right of access to justice. In commenting on Trial Lawyers here, I said that not only does the reasoning of the majority opinion in Trial Lawyers “rest on shaky foundations” whose weaknesses are brutally exposed by Justice Rothstein’s dissent, but they “leave some important questions” ― questions about the limits of the constitutional principles that it applies ― “unanswered”. In particular, it is very doubtful that the right of access to superior courts constiutionalized in Trial Lawyers extends to provincial court and to administrative tribunals  (which is to say, to the sort of decision-maker at issue in Unison!), to which section 96 of the Constitution Act, 1867, on which that decision ostensibly rests, does not apply.

The legitimacy of judicial interventions to uphold fundamental constitutional principles can be questioned not only in constitutional systems that acknowledge Parliamentary sovereignty, but also in those that allow for judicial review of legislation ― if not in principle, then in (almost) any given case. The best answer to such questions is, of course, the existence of a clear constitutional provision in which the intervention at issue  can fairly be rested. In the absence of such constitutional authority, judges are apt to grasp at textual straws, and, at the risk of also mixing metaphors, we know that a house built of straw can easily be blown away. In short, the existence of an entrenched constitution does not always make for very solid decision-making.

Indeed, Unison has at least one substantial advantage over Trial Lawyers. Its discussion of the Rule of Law principle is relatively extensive and forthright. The UK Supreme Court makes no apologies about the Rule of Law being central to its decision. The majority opinion in Trial Lawyers, however, approached the Rule of Law somewhat gingerly, and insisted that it is not the main basis for its decision ― though this was not enough to mollify Justice Rothstein, who claimed that

[i]n using an unwritten principle to support expanding the ambit of s. 96 to such an extent the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text. [93]

For my own part, I have argued here that Trial Lawyers should, and could have been decided on the basis of the Rule of Law principle ― though my argument was a version of the “no making rights nugatory” one that the Unison Court only briefly addressed. Perhaps the Supreme Court of Canada did not address it only because it was not put it by the parties. (The cases on which it rests in the Canadian context are not well known, I suspect.) Perhaps it would have found this argument unconvincing in any event. But I suspect that the Trial Lawyers majority would have hesitated to enlist this argument even if it were convinced by it, due to the sort of concern to which Justice Rothstein appealed (unpersuasively in my view). As Jeremy Waldron observed in “The Core of the Case against Judicial Review”, constitutional adjudication under an entrenched text is liable to pay more attention to the text than to fundamental principle. In my view, this is not always a bad thing ― but it is, admittedly, not always a good one either.

Before concluding, let me note another point of contrast between Trial Lawyers and Unison: their respective treatment of empirical data. The majority opinion in Trial Lawyers is a fairly abstract one, in the sense that its focus is very much on the legal issues. It only briefly alludes to the personal circumstances of the original plaintiff in the case, pointing out that she was “not an ‘impoverished’ person in the ordinary sense of the word” (which made her ineligible for an exemption from the fees at issue). In Unison, meanwhile, statistics and data-based hypothetical scenarios intended to expose the effect of the fees at issue take up an important place in the judgment. The Court reviewed in considerable detail the nature of the disputes to which the fees at issue applied, with the aim of showing that most of them involved parties of limited means seeking to recover small amounts (or, in some cases, to obtain non-pecuniary remedies), as well as the financial effects of these fees on economically vulnerable litigants. The Court linked the precipitous drop in the number of disputes heard to the deterrent effect of excessive, and rarely recoverable, fees, providing the factual underpinning for its legal reasoning. Later on, it also discussed the fees’ failure to raise much revenue, concluding that “it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated”. [100] In that way, Unison is similar to cases that are part of what I have been discussing here, using Kerri Froc’s label, as the  “empirical turn” in Canadian constitutional law ― while Trial Lawyers was not.

Despite originating in fairly similar circumstances, then, Trial Lawyers and Unison are quite different decisions. Each has its own logic and responds to its own concerns. But it is also true that they are both parts in delivering a unified message: that of the common law courts’ endorsement, sometimes ringing and sometimes more muted, of the value of access by the citizens to the adjudication of rights claims. Beyond the differences of strictly legal issues and methods, there is a single theme: that, as a matter of political morality, a state that purports to respect and even to create rights must not prevent citizens from asserting them.

More of the Same

Yet another “tough on crime” attempt to deny judges discretion about to be struck down

Last week, the Alberta Court of Queen’s Bench issued yet another in a long series of constitutional reverses for the previous federal government’s “tough on crime” agenda, holding in R v Ndhlovu, 2016 ABQB 595 that legislative amendments that rendered the making of sex-offender registration orders mandatory was contrary to section 7 of the Charter. It is, as yet, not a finding of unconstitutionality, because ― quite unusually ― the Crown asked and will permitted to proceed separately with a justification under section 1 of the Charter, but successful justifications of section 7 infringements are vanishingly rare. More of the same, then, in that as in many cases where the courts have struck down mandatory minimum sentences, Parliament’s attempt to take discretion away from sentencing judges is deemed to be the source of constitutional difficulty ― albeit on a somewhat different basis.

In 2004, Parliament enacted the Sex Offender Information Registration Act, which allowed prosecutors to seek orders requiring those convicted of certain offences to register with and provide extensive information to the police, who can conduct random checks to ensure that the information provided by the offender is correct. Non-compliance is itself an offence and can lead to heavy fines or imprisonment. In recognition of the fact that these requirement would not always be appropriate, Parliament allowed judges to reject the prosecutors’ applications “if the effects of the order on the offender’s privacy or liberty interests were grossly disproportionate to the public interest in protecting society” by acquiring information about the offender. In 2011, however, Parliament changed this regime when it enacted the Protecting Victims from Sex Offenders Act. Among other things, that statute dispensed with the need for prosecutors to seek a registration order (and thus their discretion not to do so), and the judges’ discretion not to make an order.

The constitutionality of the discretionary regime of the 2004 version of the Act had been challenged a number of times, but was upheld. In Ndhlovu, it was the mandatory character of registration requirements as they now stand that was alleged to be unconstitutional. The Crown having conceded that the legislation interfered with liberty ― presumably, because of the possibility of imprisonment for non-compliance ― the main question for Justice Moen was whether that interference was arbitrary, overbroad, or grossly disproportional. The registration regime’s purpose is mainly to help police investigate known or suspected sexual offences by providing them with accessible information about known offenders ― on the theory that they are likely to re-offend. The 2011 amendments to the legislation added a further purpose of “preventing” sexual offences, although it is not clear how this to be achieved, and not much is made of this further purpose in Justice Moen’s reasons. The question, then, is whether the regime does in fact serve to help investigate offenses at all (otherwise, it would be arbitrary), whether it fails to do so in some instances (which would make it overbroad), and whether its effect in doing so is grossly disproportionately small relative to its consequences on the persons subject to the regime.

Justice Moen rejected the arbitrariness claim. The Crown argued that the registration regime “is based on the assumption that convicted sex offenders have an increased propensity to commit sex crimes” [90] ― without, it would seem, any data to support this “assumption”. Whether the judge accepted the Crown’s argument is not quite clear to me. He wrote that “[t]here is, no doubt, a statistical probability that a sex offender will offend again” [92] That’s true so far as it goes, but put this way, the sentence would still be true even if data showed that sex offenders were actually less likely than the rest of the population to commit sexual offences in the future ― there would still be “a statistical probability”. Perhaps this is not what Justice Moen means ― but that suggests that he might not understand the concept of “statistical probability” (is there any other kind?) very well.

This is ultimately irrelevant. The heart of the matter for Justice Moen is overbreadth. Already in his arbitrariness analysis he follows up the sentence about “statistical probabilities” by observing that “statistical probabilities cannot protect individuals who will not probably find themselves on that statistical curve ever again”. [92] Again, this might not be very rigorous from a scientific point of view, but what Justice Moen means is that for those offenders who are deemed unlikely to re-offend, registration does little to help police investigate future crimes ― which they presumably are not likely to commit. The Crown conceded as much, but argued that it was impossible to tell which offenders fell in that category. In Justice Moen’s view, however, this argument goes towards establishing a section 1 justification rather denying the existence of overbreadth at the section 7 stage.

In addition, Justice Moen found that mandatory registration is grossly disproportional to its purpose. Those required to register are asked to supply a considerable amount of information, and “the effects of random compliance checks, including the risks of information being divulged during these checks” are significant. (There was evidence that the Edmonton police had a policy intended to minimize these effects and risks, but it was only a policy, not law.) The discretion that used to exist in the registration legislation was an attempt to strike a constitutionally-minded balance between these effects and the needs of law enforcement. With the exemption gone, the law is unconstitutional.

Subject to my reservations about Justice Moen’s understanding of elementary notions of statistics, this seems right. I’d like to venture a couple of observations though. First, still on the statistical theme, I think it is remarkable that both the Crown and, possibly, Justice Moen are content to operate on mere “assumptions” about the propensity of categories of people to commit crimes. Is an assumption all it takes to restrict constitutional rights? Perhaps the Crown will yet come up with actual evidence at the section 1 hearing, but the fact-free nature of the proceedings so far is depressing. Second, speaking of the section 1 hearing, I don’t recall seeing Charter proceedings bifurcated in this way before. I’m not sure whether this development, if it takes hold, would be a good or a bad thing. In any case, it’s worth keeping an eye on, though it is only potentially relevant in a relatively small number of cases, as the infringement of a right is often a foregone conclusion and section 1 is all there is to debate.

Finally, I think it’s useful to note that this case illustrates just how narrow a concept arbitrariness in the section 7 sense is. Suppose that the assumption about sex offenders being prone to recidivism is not correct. (I don’t know whether it is, but assumptions have a way of turning out to be false from time to time.) If so, singling out sex offenders for registration would be arbitrary in the sense that it would illogical and capricious, which is how a layperson would use the term arbitrariness. But the legal test ― would registration contribute to the objective of facilitating the investigation of crime ― would still be satisfied. This test can, indeed, justify the registration of every person in Canada on the same terms as sex offenders, since it would no doubt help make police work easier. A programme of wholesale registration and surveillance would be overbroad and grossly disproportionate, but not arbitrary in the constitutional sense. Keep this in mind when courts do strike down laws as arbitrary ― those rare cases are well and truly egregious abuses of the legislative power.

The late administration’s “tough on crime” agenda was bad enough though. Built on assumptions and without regard to justice in individual cases, it will not be missed. While I have been and remain skeptical of claims to the effect that removing judicial discretion in sentencing somehow attacks the judiciary, it is quite clearly often inconsistent with individual rights. But one must hope that the courts will not do too much collateral damage to the law in the process of upholding these rights, important though they are.

Absence of Evidence…

Last week, the Alberta Court of Appeal delivered an interesting decision rejecting a constitutional challenge to the province’s prohibition on private health insurance brought by way of an application. In Allen v Alberta, 2015 ABCA 277, the Court held unanimously that the applicant hadn’t provided a sufficient evidentiary basis for his challenge, and that it should have been brought by way of an action and adjudicated after a full trial. This might have been the correct result, but the route the Justice Slatter, the author of the leading opinion, took to get there is in many ways disturbing. It illustrates, I think, some worrying tendencies in Canadian constitutional law generally, and also the difficulties which challenges to the government’s healthcare monopoly specifically will face.

* * *

In a way, the case is a very simple, and also a very Canadian, one. The applicant had suffered a back injury playing hockey, and even as his pain was getting worse and worse, he was put on a two-year long waiting list for an operation. The pain was too much, and he finally decided to undergo surgery in the United States, at his own (very considerable) expense. And thereafter, he went to court, seeking a declaration that the provision of the Alberta Healthcare Insurance Act that barred private health insurance from covering healthcare services provided by the public insurance plan was contrary to s. 7 of the Canadian Charter of Rights and Freedoms.

The argument was that the government monopoly on health insurance resulted in people having to wait a long time for healthcare, and to suffer as a result, thus breaching the “security of the person” guarantee of s. 7. To support his claim, the applicant submitted “a number of medical reports and proof of expenses he had incurred,” [7] and relied on the Supreme Court’s decision in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, which declared a similar restriction on private health insurance contrary to Québec’s Charter of Human Rights and Freedoms.

For the Court, this was not good enough. After a heartfelt paean to the Canadian healthcare system, Justice Slatter went on to discuss “the importance of using appropriate procedures, and having a proper evidentiary record, when reviewing statutes for constitutionality.” [19] Constitutional cases, in his view, are not just ordinary cases:

Cases in which the appointed judiciary override the will of the democratically elected legislatures fall into a special category. Our constitution and the parliamentary system of government recognize the “supremacy of Parliament”. The presence, however, of an entrenched constitution now provides an important exception to that principle; statutes that are clearly inconsistent with the constitution are of no force or effect. [20]

For this reason, it is important that “the proper procedural safeguards [be] observed.” [21] While the citizen must have an opportunity to challenge the constitutionality of a statute, “fair[ness] to the legislature” means that the government must be able to defend it, and “fair[ness] to the court” requires that it have “a reasonable record on which to exercise this important component of its jurisdiction.” [21] The record here is not sufficient. There is a “presumption … that constitutional cases will be decided on a full evidentiary record, including, where appropriate, the evidence of expert witnesses.” [23] Evidence is especially important in constitutional cases because a declaration of unconstitutionality must, pursuant to s. 52 of the Constitution Act, 1982 determine the “extent of the inconsistency” between the impugned statute and the constitution, and “[t]he only way to know what is that “extent”, is to have a full evidentiary record with complete factual conclusions about it.” [26]

* * *

Justice Martin, in a rather terse concurrence, agrees with this reasoning, and would go no further. While Justice Slatter continues, to discuss Chaoulli and the applicant’s claim that it effectively settles the case, I will pause here and comment on this part of his reasons. As I said above, the conclusion that more evidence was required in this case may well have been correct. To be sure, it seems unlikely that the causal relationships between the prohibition on private health insurance and the existence of lengthy waiting lists established in Chaoulli are somehow not present in this case. A legislature that proceeded on the assumption that there was such a relationship would be acting rationally. But it is at least arguable that a court needs more than an assumption, no matter how plausible. It needs evidence. Allison Orr Larsen’s warnings about the dangers of “factual precedents” are apposite in the Canadian context. It may well be that a fuller record, including expert reports would have been necessary here, though I’m not sure I understand Justice Slatter’s insistence on the need for a trial to dispose of this case, as opposed to an application proceeding on a more developed record.

That said, if Justice Slatter is right, his conclusion ought to be disquieting. It confirms the worry that Sonia Lawrence expressed in the wake of the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and that I have been dwelling on ever since, that mounting a constitutional challenge to a statute may be becoming prohibitively complex and expensive. Marni Soupcoff, of the Canadian Constitution Foundation, which is mounting a challenge of its own to government healthcare monopoly, makes this case in a compelling op-ed in the National Post. Constitutional litigation is at danger of becoming the preserve of (relatively) well-funded public interest litigation outfits (such as the CCF). The Charter was supposed to be “the people’s package” of constitutional reform, but the people risk being prevented from bringing Charter cases by the requirement that such cases be supported by expert reports and proceed by way of trial rather than a less expensive procedure. Justice Slatter’s claim that there exists a “presumption” to this effect is particularly worrisome ― all the more so since he provides no indication as to how this presumption might be rebutted.

I want to comment on a couple of other points in the part of his reasons I have been discussing. The first one has to do with the nature of judicial review of legislation and the courts’ role in constitutional cases, on which Justice Slatter expounds in the excerpt of par. 20 quoted above. That passage contains a number of serious mistakes. For one thing, the constitution does not “recognize the ‘supremacy of Parliament'” ― those words appear nowhere in the Constitution Acts, and while Parliamentary sovereignty is arguably one of the constitution’s underlying principles, it is subject to the limits imposed by constitutional text and other such principles. For another, it is wrong to speak of an entrenched constitution that limits Parliamentary sovereignty as something new, something that only “now” exists. Canada has always had an entrenched constitution, and Canadian courts have always invalidated Canadian laws inconsistent with it, although the legal rationale for this practice did indeed change in 1982, from the supremacy of Imperial law to the supremacy of the (Canadian) constitution. Last but not least, Justice Slatter misrepresents the courts’ role on judicial review when he says that “statutes that are clearly inconsistent with the constitution are of no force or effect” ― there no such “clear inconsistency” requirement either in s. 52 of the Constitution Act, 1982 or in the Supreme Court’s jurisprudence. Constitutional cases, like all civil cases, are decided on an ordinary “balance of probabilities” standard.

The other point that I found disturbing is Justice Slatter’s unabashed celebration of the Canadian healthcare system, of which he says that it

is perceived by many as the crowning achievement of Canadian social policy. The majority of Canadians support the public funding of health care and oppose attempts to shrink or compromise the system. At the same time, many Canadians criticize the system; they would like it to be even better than it is. [14]

Justice Slatter also praises the Canadian healthcare system as “an example of co-operative federalism in action,” though the Canada Health Act, which threatens provinces with the loss of their federal healthcare transfers if they do not comply with its conditions, seems like a rather dubious example of “co-operation.” In any event, Justice Slatter is apparently oblivious to the irony of making unsupported empirical claims in an opinion that dismisses a constitutional challenge for want of evidence. But in the absence of support for these claims, it is somewhat difficult to avoid the suspicion that Justice Slatter is attributing his own views to the indistinct “majority” of which he speaks. After reading these lines, I would rather that he (and indeed his colleagues) not sit in judgment on a constitutional challenge that would, in effect, be an “attempt to … compromise the system,” to change it radically and not merely to make it “even better than it is.”

These two points together lead me to an additional observation. Justice Slatter’s approach is clearly very deferential to legislative choices. That would make him a “conservative” on the definitions that have been floating around of late, for example in some of Sean Fine’s “Tory judges” articles. But, as I’ve said before, “there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers.” This case shows that this is indeed so. If anything, it shows that judges may be able to adopt a strategically deferential posture in order to achieve “progressive” results just as easily as to achieve “conservative” ones.

* * *

I will comment on just one passage from the remainder of Justice Slatter’s reasons. Justice Slatter observes that constitutions, including the Charter, are written in broad terms and

say nothing about the difficult social issues that come before the courts … Controlling this vague language falls to the courts, and an absence of institutional self-restraint by the judiciary makes the problem worse, not better. The Supreme Court has recast the phrase “principles of fundamental justice” with even less precise terms like overbreadth, disproportionality and arbitrariness, none of which have been comprehensively defined. It is, unfortunately, sometimes difficult to discern the difference between these concepts and a simple disagreement by the judiciary with the public policy decisions of democratically elected officials.

The text of s. 7 signals that the drafters of the Charter never intended it to be applied to the review of social and economic policies. … As Prof. [Peter] Hogg has pointed out, the intention of the framers of the Charter to restrict judicial review to procedural matters has been “totally disregarded by the Supreme Court of Canada” with dramatic consequences. [31-32]

I’m not sure I’ve ever seen a Canadian court reverse-benchslap the Supreme Court in this way. Justice Slatter’s attack is pretty vicious, and in my view largely uncalled for.

It is true that s. 7 was not intended to be applied in the way it does, but it is, to say the least, not obvious that “original intent” is an appropriate criterion for interpreting it. Even if, contrary to the Supreme Court of Canada, one is inclined to be originalist, an “original public meaning” interpretation might support the Supreme Court’s conclusion, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that “fundamental justice” is not a matter of procedure only. Anyway, it seems to me that it is a bit late to re-litigate that particular issue.

Beyond that, I don’t think it’s at all fair to reproach the Supreme Court for invoking principles such as overbreadth, disproportionality and arbitrariness in applying s. 7. They are, surely, not more open-ended than the expression “principles of fundamental justice.” The Court has tried, in cases such as Bedford and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, to give them a relatively specific meaning, and in my view has been at least somewhat successful in this endeavour. Justice Slatter’s dismissal of this jurisprudence as “a simple disagreement by the judiciary with the public policy decisions of democratically elected officials” looks not unlike the expression of a simple disagreement by one judge with the constitutional policy decisions of his hierarchical superiors.

* * *

In a sense, this decision is just sound and fury, signifying nothing ― except, of course, that the applicant spent a significant amount of time and money on a litigation that proved fruitless. As Justice Watson rightly observes in his concurrence, “[d]ismissal of a declaration on the grounds that it was not made out in the pleadings and evidence is not the same thing as saying that an action properly pleaded, fairly proceeded with, and backed by sufficient evidence would be impossible.” [60] Perhaps the CCF will succeed in its own efforts to bring such an action. Yet the Court’s mistakes and dubious assertions about its role (about which I might have more to say separately) are cause for worrying, and the possibility that it is right about the high evidentiary threshold that a constitutional challenge must get over before even being considered on the merits is, if anything, even more distressing.

What the Judge Googled for Breakfast

A recent decision of an American appellate court provides a vivid illustration of the complexity of the issues surrounding the courts’ treatment of scientific information that I have been blogging about here. The case is a prisoner’s suit against the medical staff at his prison, alleging that their refusal to let him take medication against reflux oesophagitis prior to his meals ― rather than on a schedule seemingly arbitrarily determined by them, or indeed at all ― amounted to cruel and unusual treatment. In Rowe v. Gibson, a divided panel of the federal Court of Appeals for the 7th Circuit dismissed the defendants’ motion for summary judgment in their favour. The main opinion, by Judge Richard Posner, is most interesting for its liberal citation to online sources not in the record ― and for addressing directly the objection’s to this practice.

* * *

The defendant doctor, who apparently doubled as an expert witness (despite not being specialized in the sort of medical problems the plaintiff was suffering from), claimed that it did not matter when the plaintiff took his medications. Indeed, at some point shortly after the plaintiff sued, he came to the conclusion that it did not matter whether the plaintiff took his medications at all, and so refused to prescribe them ― though he relented a month later, as a “courtesy” to the plaintiff. (A particularly gruesome detail: the prison authorities consistently stressed that the plaintiff was free to buy the medications from the commissary, if he wanted to take them on his own schedule ― but he didn’t have even a fraction of the money this would have required, and wouldn’t have been allowed to buy more than a few days’ supply per month anyway.) And since the plaintiff did not supply an expert opinion of his own, the doctor’s stood uncontradicted ― until Judge Posner took to the internet.

What Judge Posner found there, crucially, is that the doctor’s assertions about the effectiveness of the medication at issue were flatly contradicted by the information provided by the drug companies manufacturing the medication, as well as other sources of medical information. The defendants’ expert suddenly looked incompetent, self-interested, or both. There was, after all, a genuine issue for trial.

But was it appropriate for Judge Posner to start looking for the medical information that the plaintiff did not provide him with? The judge makes no apologies: “When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.” (13) This is particularly so when there is little relevant information in the record, and when it is only used to establish the existence of a genuine issue for trial, not to determine the outcome of the case.

And there is more. After a rather bizarre reference to the Magna Carta, Judge Posner asks:

Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? (14)

And further:

[T]o credit [the doctor’s] evidence … just because [the plaintiff] didn’t present his own expert witness would make no sense—for how could [he] find such an expert and persuade him to testify? He could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed “verifying medical evidence” to support his claim. The district judge denied both requests. (15)

In short:

It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. (16)

Besides:

[H]ow could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure? (17; emphasis in the original)

(Sorry for the block quotations, by the way. With Judge Posner, the temptation irresistible.)

Judge Posner adds that the trial court should consider appointing a lawyer for the plaintiff and a neutral expert when it hears this case ― though he does not order it, and acknowledges that the budgets both of the court and of the defendants (who might be made to pay for it all) are limited.

Judge Hamilton, dissenting in part, is not impressed with Judge Posner’s approach to this case. For him, it is “an unprecedented departure from the proper role of an appellate court [that] runs contrary to long-established law and raises a host of practical problems.” (29) He faults Judge Posner for “hav[ing] created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” (37) Although Judge Hamilton acknowledges that “[w]hen a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable,” (39) he thinks that Judge Posner’s remedy is worse than the disease. For one thing, it “turns the court from a neutral decision-maker into an advocate for one side.” (40) For another, it is not clear when or how the courts are supposed to supplement the parties’ research with their own. Judges, says judge Hamilton ― relying on an old, but on-point, quotation from Judge Posner himself ― lack the resources for acting as their own experts, and should not try.

There is still more to the opinions, including a brief concurrence arguing that the internet research is not as central to the majority opinion as it might seem, and an “appendix” by Judge Poser responding to Judge Hamilton’s critique. If you want more excerpts, Josh Blackman’s has got them. For my part, I close with a few comments.

* * *

A few months ago, I blogged about a very interesting paper by Lisa Kerr about challenging the prison authorities’ assertions of expertise in order to secure prisoners’ rights. It was, I said, “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” The reason for the epithet was that Judge Posner has long been an ardent advocate for more fact-heavy litigation.

But as I also said in a (friendly) critique of prof. Kerr’s argument, one problem with such appeals for more evidence, especially expert evidence, is that it can be very hard to come by, especially in “ordinary” cases rather than those that are designed and litigated by specialized public-interest advocacy organizations. (I also took up this point here.) Rowe is the epitome of such “ordinary” cases, because it was brought not by a prisoners-rights advocate, of the sort to whom prof. Kerr’s article is first and foremost addressed, but by a self-represented prisoner who, as Judge Posner notes, is no position to take prof. Kerr’s and Judge Posner’s advice, sound though it is in theory.

Is it right, then, for courts to effectively substitute themselves for the missing experts in such cases? Or are the dangers of partiality and unreliability too high? I’m not sure that partiality is as serious an issue as Judge Hamilton makes it out to be. In this case, neither party presented anything like solid scientific evidence. Was Judge Posner taking the plaintiff’s side when he started googling for it? I’m not convinced. Besides, for better or worse, it is already the case that judges (and their clerks) might be going the extra mile, or at least putting in the extra hour, to find plausible legal arguments in the self-represented parties’ submissions. If this is a problem ― and I’m not convinced that it is, though perhaps I’m just trying to wish away the sins of my clerkship ― it is by no means unique to scientific issues.

Reliability is a bigger worry, for me anyway. Judge Posner himself has long pointed out that most judges aren’t very good at doing science, or social science. In his “Appendix” he points at errors in Judge Hamilton’s reading of the scientific evidence in Rowe. He may well be right. But if a thoughtful appellate judge can so easily err, is it a good idea to entrust judges with this responsibility? Not every judge has Posnerian talents (and his own scientific endeavours have sometimes been criticized too).

At the same time, we have to weigh the risk of unreliability against that of manifest injustice. Judge Posner has a point when he says that the adversarial process may not be functioning when the parties’ resources are as unbalanced as they are in this case. The judges who end up “helping” self-represented litigants in one way or another, are all aware of this point, as indeed is Judge Hamilton. Is the solution in some sort of reform that would explicitly set out the rules for the judges to follow? Judge Hamilton is right that Judge Posner’s approach offers no real guidance to either litigants or judges. But perhaps the trouble is that we are still very far from having figured out what these rules should look like. And perhaps, then, it is better to let the cases develop, to let the judges argue it out, before rushing to either reaffirm the traditional rules or formulate new ones.

Legal realists said, derisively, that the law depends on what the judge who declares it ate for breakfast. That would be troubling, if true. And it seems troubling, too, that the outcomes of cases should be dictated by what the judge googled (at breakfast or any other time). But if the realists were right, the solution surely was not to prevent judges from having breakfast. A hungry judge isn’t obviously better than a satiated one. Similarly a judge who meticulously follows a diet of neutral ignorance might not be better than one sated on Google.

Judges, Lawyers, and Science

It might have looked like an essentially technical matter, but the Supreme Court’s recent decision in R. v. Tatton, 2015 SCC 33 turns out to be full of interesting things to discuss. I have already written about what it might suggest about the Court’s views on mandatory minimum sentences, and what it tells us about the respective roles of the courts and Parliament in law reform. I come back to it again to follow up on Lisa Silver’s very interesting post over at Ideablawg about the lack of scientific foundations beneath Justice Moldaver’s opinion for a unanimous court.

The narrow question the Court faced in Tatton was whether intoxication can be a defence to a charge of arson ― on the theory that an intoxicated person who puts something (in this case, the house in which he was living, but which belonged to someone else) on fire lacks the requisite “mental element” for the offence. The broader question on which the Court tried to provide guidance was how to distinguish offences for which intoxication can be invoked as an excuse, and those for which it cannot, somewhat confusingly known, respectively, “specific intent” and “general intent” offences. As Ms. Silver notes,

Liberally sprinkled throughout the decision is reference to the inextricable connection between intoxication and crime. …  Despite this heavy reliance on what appears to be scientific truths, at no time did the Court refer to or support the position with scientific study or research.

While a precedent the Court considered did rely on scientific literature, it was, Ms. Silver points out “was rendered in 1994, twenty-one years ago, with the studies coming from the mid to late 1980s.” Ms. Silver discusses ― and links to ― a considerable number of studies carried out since then. Her takeaway from them is that

that the issue is has not been empirically determined and the relationship between alcohol, mental processes, and crime is highly complicated and variable.

Justice Moldaver’s opinion, by contrast, makes things look very simple. Ms. Silver concludes that

Mr. Justice Moldaver relied upon the court’s perception of the “science” … in reiterating a long held position that intoxication is not a defence to a general intent offence without referencing any recent empirical studies … By proceeding on this basis, the Court missed the opportunity to provide some rational basis for the general/specific distinction. Instead, the Court has simply perpetuated a legal fiction.

The Court’s “empirical turn,” most recently exemplified by its decision in  R. v. Smith, 2015 SCC 34, which relied on research regarding the therapeutic effects of various forms of medical marijuana, has not exactly followed a consistent trajectory. There have been missed opportunities such Tatton along the way, or R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, where Justice Cromwell claimed that armed robberies had “become depressingly routine,” despite crime statistics ― to which he did not refer ― suggesting that their incidence was falling. In the rest of this post, I would like to venture some observations on the context in which these missed opportunities and outright misstatements occur.

For instance, it is important to note that the Court is not the only party to ignore the science relevant to its cases. In Tatton, only one of the three facta (that of the Ontario Crown) submitted to the court referred to scientific studies ― and only as a additional support for the claim that “[i]t is well known that many people do foolish and dangerous things when drinking.” [79] The “common sense observation” is what matters in that passage; the scientific evidence is almost an afterthought. The accused and Criminal Lawyers’ Association of Ontario, which intervened to support him, did not manage even that. They were content with citing cases and, at most, reports of law-reform commissions. As Richard Posner says in his Reflections on Judging, the bench and the bar share a lack of familiarity with the sciences, whether social or natural and, worse, a lack of curiosity that results in an unwillingness to investigate the backgrounds against which legal rules operate, to go beyond the “common sense” assumptions which may bear little, if any, resemblance to the scientific truth.

At the same time, it is not enough to blame the lawyers’ narrow-mindedness. The “empirical turn” suggests, after all, that some of them can overcome it at least some of the time. Why not in Tatton though? The nature of the case, I suspect, is an important factor here. In commenting on Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, Sonia Lawrence observed, vividly, that the Charter challenges emblematic of the “empirical turn” “aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece.” Tatton, by contrast, was a case that “walked in the office” of small-town law firm ― perhaps literally. Mr. Tatton was facing a criminal charge. He probably had little money. It’s not quite fair to expect that his lawyers, with his and their limited time resources, would have done as thorough a job of mounting an empirical case as an interest group pursuing a constitutional challenge on its own terms. (Still, not being able to mount a perfect empirical case is no excuse for not even trying to inject at least some scientific background into one’s argument.) In my own take on Bedford, I wrote that “[t]he government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it.” It is perhaps not just coincidental that the only references, however minimal, to scientific literature in this litigation appeared in the Crown’s factum.

Now given the limitations on the lawyers’ willingness and ability to provide judges with the scientific background relevant to the cases they argue, the question arises of whether judges should just find it themselves. Ms. Silver, I suppose, thinks that they should. Judge Posner certainly does, and he actively practices what he preaches. But, in the United States at least, he has a considerable number of critics, who warn that judges who turn to Google to find background information missing from the record built up by the parties are not only acting unfairly by not giving parties notice of their concerns, but also risk committing serious mistakes. (I wrote about a very interesting article by Allison Orr Larsen exploring these issues here.) In Reflections on Judging, Judge Posner retorts that “no one should be so naïve as to believe that the determination of facts by the familiar adversary process at trial is proof against error.” (140) That’s true so far as it goes, but tu quoque isn’t always a very compelling argument. Why should we, one might ask, compound the errors of the courtroom with further errors made in the judge’s chambers? Ultimately, Judge Posner acknowledges these concerns and admits that

[t]here is a danger that judicial recourse to secondary literature, and to the Internet more broadly, will often be rhetorical rather than substantive. I have no solution to this problem—other than to suggest trying through judicial training and other means to increase the intellectual sophistication of the judiciary. (142)

That, as he points out elsewhere in that book, is no easy task.

Indeed, there are no easy solutions to the problems I have tried to canvass in this post. Judicial decision-making that doesn’t try to address empirical evidence or scientific research risks going astray, but so do attempts to take stock of such information. There are longstanding prejudices of all the branches of the legal profession ― including, I’m afraid, the academic branch ― as well as resource constraints to contend with. If Judge Posner has no solution for these problems, I will certainly not pretend to have one either. But perhaps if more of us start thinking about them, we will be able to come up with something.

What Were They Smoking?

Last week, the Supreme Court held that the prohibition on medical marijuana products intended to be ingested or applied as creams ― as opposed to dried medical marijuana for the purposes of smoking, for which a permission can be granted ― is arbitrary and, therefore, not in accordance with principles of fundamental justice, in violation of s. 7 of the Canadian Charter of Rights and Freedoms. The decision, R. v. Smith, 2015 SCC 34, is terse, but it is noteworthy for a number of reasons.

The respondent, Joseph Smith, was involved in the confection of medical marijuana products not authorized by the regulations, such as “cannabis cookies,” massage oil, and lip balm. He was charged with possession of cannabis and possession for the purpose of trafficking, but contested the charges, arguing that the exclusion of such products from the medical marijuana exemptions was unconstitutional. The Crown retorted that, not being a consumer of such products, he lacked standing to bring such a challenge, but the Court made short work of this argument, pointing out that “[a]ccused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them.” [12]

On the constitutional claim, the Court found that the restriction on the scope of permissible medical marijuana products engaged s. 7 of the Charter in two ways. First, it exposed the makers, sellers, and users of the prohibited products to a threat of imprisonment, and was thus a potential violation of their right to liberty. Second, by “prevent[ing] people who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — from choosing the method of administration of the drug,” [18] the restriction infringes both these people’s liberty and their security of the person. Liberty comprises the right to choose one’s medical treatment. For its part, security of the person is compromised because the evidence accepted by the trial judge showed not only that for for some medical marijuana users smoking it is not the most medically effective treatment, but also that smoking can produce harmful consequences, such as “the risk of cancer and bronchial infections.” [18]

According to s. 7 of the Charter, a law that compromises life, liberty, or the security of the person must be “in accordance with principles of fundamental justice.” One such principle, long recognized by the Court, is a prohibition on arbitrariness, understood as the absence of a rational relationship between a law’s purpose and its effect. The purpose of the rule at issue here, the Court found, “is simply the protection of health and safety.” [24] According to the Court, the evidence on the relative effectiveness of the various forms of medical marijuana for different users shows that, far from serving this objective,

the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care. The effects of the prohibition contradict its objective, rendering it arbitrary. [25]

Besides, there was no evidence that the prohibited forms of marijuana are more dangerous to users, or that they are more likely to fall into the hands of people not authorized to use the drug for medical purposes. The result is “a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object,” [27] contrary to the requirement of non-arbitrariness. Needless to say, this outcome cannot be justified under s. 1 of the Charter, which requires a rational connection between an infringement of a right and some “pressing and substantial” objective.

The last issue for the Court was that of the remedy. In form, the remedy chosen by the Court is a declaration that the prohibitions on marijuana possession and trafficking “are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.” [31] In substance, this is a rare case of “reading in” ― the expansion of the scope of an underinclusive legal rule in order to make it constitutional. Finally, the Court refuses to suspend this declaration in order to give Parliament time to consider its options, because to do so “would leave patients without lawful medical treatment and the law and law enforcement in limbo.” [32]

This seems like an obviously correct decision, at least assuming that the trial judge’s assessment of the evidence on the effects of the various forms of medical marijuana is correct ― indeed, one wonders whether it was really necessary to make a Supreme Court case out of this issue. And what a case, too. Decisions signed by “the Court” are normally issues in the most politically salient and controversial cases. The assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 was one such case. Arguably the Court’s most high profile drug-related decision, in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 was not. Yet judging by the government’s hysterical reaction, the Court was right to treat what strikes me as a comparatively trivial matter as equivalent in importance to assisted suicide. This means, by the way, that the government’s attacks on the Court’s integrity may well be having the perverse effect of making the judges less accountable ― at least if it is the case, as many believe, that opinions signed by their individual authors are an important element of judicial accountability. 

The Court, undoubtedly, is well aware of the political responses to its rulings. Its refusal to suspend the declaration of invalidity might be further evidence of this. That people would remain without treatment to which they are constitutionally entitled was no less true in Carter than it is here; that law and law enforcement would be left in limbo was just as true after the Court struck down the prostitution provisions of the Criminal Code in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. Yet in both those cases, the Court granted the government’s request for a suspension of the declarations of unconstitutionality. The government’s response ― especially its foot-dragging on Carter ― are unlikely to have impressed the judges.

The last point I wanted to note is that Smith joins the growing line of cases, which notably includes Insite, Bedford, and Carter, that has been described as an “empirical turn” ― a tendency to resolve Charter cases by reference to scientific evidence. The Court is not exactly consistent in its use of such evidence, as I have noted in the past, and as Lisa Silver notes in a fascinating recent post over at Ideablawg (which I hope to discuss in more detail soon). But Smith, at least, shows that this trend, however inconsistent, is still very much alive.

It also shows that, the government, for now anyway, tends to lose when scientific evidence ― which the current government, at least, so often ignores ― drives the case. Here, though, the loss seems particularly clear. The government, apparently, had no real arguments at all for its position, which makes me wonder ― what is it that they were smoking when they decided it was constitutionally defensible?