Tag: federalism

Rethinking Peace, Order, and Good Government in the Canadian Constitution

This post is written by Brian Bird.

The United States has life, liberty and the pursuit of happiness. France has liberté, égalité, fraternité. What is the calling card of the Canadian Constitution? It is peace, order and good government.

Apart from being a concise expression of the political philosophy that animates Canadian society, or at least the philosophy that is supposed to animate it, conventional – and I would say faulty – wisdom has developed around the quintessentially Canadian brand of constitutionalism. The prevailing understanding and analytic approach to peace, order and good government (POGG) has led us to astray with respect to this key element of our constitutional architecture.

Before identifying that prevailing (mis)understanding, let us take a look at the constitutional text. Section 91 of the Constitution Act, 1867 delineates matters over which Parliament has exclusive legislative jurisdiction – matters which, by virtue of that delineation, are off limits for the provinces.

Section 91 begins with the following words:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say …

What follows this paragraph is the enumerated list of classes of subjects over which the federal government has exclusive legislative jurisdiction: criminal law, national defence, banking and so forth.

The opening words of section 91 are revealing in at least three ways.

First, the concept of POGG precedes the list of subjects that fall exclusively within federal legislative jurisdiction. I suspect many if not most jurists in Canada envision POGG as residing at the end of the list, as a residual catch-all category. On the contrary, section 91 arguably contemplates legislation for the purposes of POGG as the first and foremost responsibility of Parliament.

Second, the list of subjects that follow the opening paragraph of section 91 are expressly said to be included for “greater Certainty, but not so as to restrict the Generality of the foregoing Terms”. In other words, the enumerated list of subjects under exclusive federal jurisdiction do not diminish the ability of Parliament enact laws for POGG. The conventional wisdom among most Canadian jurists is the opposite, that the list in section 91 curtails Parliament’s power to legislate for POGG.

Third, the power of the federal government to enact laws for POGG is only available where the topic of the law does not come within the areas of exclusive provincial jurisdiction. On a strictly textual basis, then, federal laws that are enacted in the name of POGG are invalid if the substance of the legislation reflects a head of provincial power as found in section 92.

This third consideration provides additional texture to the doctrine of paramountcy, which holds that a valid federal law will prevail over a valid provincial law to the extent the two laws clash. It would seem, based on the opening words of section 91, that there is no scenario in which there will be a division of power issue raised by the coexistence of a federal law enacted for POGG and a provincial law enacted for a matter listed in section 92. Parliament cannot enact legislation for peace, order and good government if the substance of that legislation falls within exclusive provincial jurisdiction.

Having taken a closer look at the wording and structure of sections 91 and 92, it seems inescapable that the proper starting point for determining whether Parliament can legislate for POGG is whether the legislation at issue falls exclusively within provincial jurisdiction pursuant to section 92. If the legislation can only be enacted by the province, it is constitutionally impossible for the same legislation to be enacted by Parliament for the purposes of POGG. This result, however, does not exclude the possibility of the legislation being valid under a specified subject of federal jurisdiction in section 91 and that, pursuant to paramountcy, such federal legislation would prevail over conflicting provincial legislation.

To a certain extent, then, the legal principles developed by courts that govern the ability of Parliament to legislate for POGG get off on the wrong foot. As these legal principles currently stand, Parliament can enact laws for the purposes of POGG in three scenarios: to address matters of national concern, respond to emergencies, and fill gaps in the division of legislative powers.

Given the text and logic of sections 91 and 92, the analysis of the validity of a federal law purportedly enacted to promote peace, order and good government should be reworked to feature two steps. The first step is to determine whether the federal legislation engages a matter coming within the classes of subjects assigned exclusively to the provinces. If the federal legislation encroaches on provincial jurisdiction, the federal legislation is invalid unless it can otherwise be saved – for example, by recourse to the enumerated list of federal subjects in section 91.

If the legislation survives the first step, the second step – tracking the opening words of section 91 – is to determine whether Parliament has made the law “for the Peace, Order, and good Government of Canada”. This language suggests a significant amount of latitude, so long as the legislation bears some rational basis to the three concepts. If that basis exists, the law is valid federal legislation.

If the federal law does not bear a rational basis to the promotion of POGG, Parliament might still be able to validate the legislation at this step by establishing that it falls within one of the classes of subjects listed in section 91. Assuming the federal legislation somehow satisfies section 91, it should be upheld by a court unless other constitutional constraints, such as the guarantees of the Canadian Charter of Rights and Freedoms, are at issue.

It is worth noting an important and, as far as I can tell, often overlooked aspect of the relationship between the list of federal classes of subjects in section 91 and the corresponding provincial list in section 92. The drafters of the Constitution Act, 1867 give us a hint of the rationale for even including a list in section 91 at all. Indeed, the collective structure of sections 91 and 92 lends itself to section 91 featuring nothing more than the general terms of the opening paragraph cited at the beginning of this post. Why did the drafters opt to go further and include specificity in the form of a federal list?

Besides a likely desire to give Parliament and the provinces a flavour of which matters fall within federal jurisdiction, the words that follow the federal list are revealing. Section 91 concludes by saying that “any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

In other words, the list of federal subjects in section 91 fall outside of the subject that appears at the end of the provincial list. Section 92(16) affords the provinces exclusive jurisdiction to legislate “Generally all Matters of a merely local or private Nature in the Province”. The closing words of section 91 preclude the possibility of a province enacting a law that pertains to a federal class of subject on the basis that the substance of the provincial law happens to concern a matter of a “merely local or private Nature in the Province”. Owing to the constitutional text, the provinces cannot attempt to legislate on a factually provincial matter that concerns interest, copyrights, the postal service or any other federal subject unless the provincial law can be sustained through recourse to another subject specified in section 92.

The novel two-step analysis for POGG described above challenges the current approach to this constitutional grant of legislative jurisdiction to Parliament. Perhaps the most problematic aspect of the current approach is the absence of a robust inquiry into whether the federal law under scrutiny promotes the three ends of peace, order and good government. The current approach focuses on three other concepts: national concern, emergencies, and gaps. In my view, this approach must be refined to ensure fidelity to the constitutional text and to the brand of federalism it enshrines.

Admittedly, this revamp of the POGG analysis may not yield different results in certain cases that have already ruled on legislation through the lens of this this constitutional provision. In the most recent Supreme Court ruling where POGG took centre stage, the majority’s opinion in References re Greenhouse Gas Pollution Pricing Act – an opinion that affirmed the federally enacted price on greenhouse gas pollution via the national concern branch – may also hold water under the novel approach. There are good reasons to say that the power to enact this law does not belong exclusively to the provinces (step one). And laws that seek to protect the environment – and by extension basic human welfare – serve the peace, order and good government of Canada (step two).

That said, there is also good reason to believe that recalibrating the POGG analysis may lead to different results in future cases. The concepts of peace, order and good government qualitatively differ from the concepts of national concern, emergencies and gaps. It seems intuitive to say that the former concepts are, in a variety of ways, broader than the latter. In short, it may be that the current approach to POGG shortchanges this grant of federal legislative jurisdiction.

Indeed, several existing federal statutes are arguably POGG laws. For example, the Firearms Act, Food and Drugs Act, Privacy Act and Canadian Human Rights Act do not fit neatly within the federal list in section 91. On the current test for POGG, these statutes would not satisfy the emergency branch. They may not satisfy the national concern branch, which remains a difficult needle to thread.

While these statutes likely satisfy the “gap” branch, this outcome also reveals a problem. Saying that POGG can fill gaps in the division of powers, without more, neglects to ask if the gap being filled is a law made for the peace, order and good government of Canada. The gap branch, as it now stands, does not ask whether the federal law is concerned with peace, order and good government.

This flaw in the current POGG test seems to echo the conventional wisdom that the division of powers in Canada is “exhaustive”. Yet, based on the text of sections 91 and 92, the division of powers is not exhaustive in the way that is often thought. If the subject of a law cannot be hung on a hook within the provincial or federal lists and cannot be said to further peace, order and good government, this is a law that no legislature in Canada can enact. The division of powers presents the field of subjects that can be treated by legislation in Canada, but it is not exhaustive in the sense that legislatures can enact laws about anything and everything. The field of legislative jurisdiction in Canada has boundaries. Parliament cannot enact a statute that defines water as H3O instead of H2O. While there is no provincial head of power that impedes this law, there is also no federal head of power or POGG basis that permits such a statute. This law is, subject-wise, out of bounds.

If the current branch-based approach to POGG shortchanges this head of federal power, does Parliament in fact enjoy far more legislative latitude? The answer is likely something less than “far more latitude”. In addition to the field and boundaries just described, the provinces enjoy exclusive jurisdiction to legislate generally on all matters “of a local or private Nature”. In other words, only the provinces can enact laws for local POGG. Besides this check on federal legislative power, there is also – as noted above – constraints imposed by other constitutional instruments such as the Charter.

I finish by noting an interesting interpretive question: must federal legislation for POGG serve all three concepts contained in this clause (peace, order and good government)? Or, alternatively, does the federal legislation only need to serve at least one of these concepts? I leave this intriguing issue, and others that inevitably spring from a consideration of the POGG clause, for another day.

Peace, order and good government may be the most famous phrase in the Canadian Constitution. Many people say the phrase encapsulates Canada’s political culture. It is therefore surprising to discover that, in terms of how this concept lives and breathes within our constitutional atmosphere, we have fallen far short of understanding it.

Nothing to Celebrate

Québec’s irreligious dress code proposal isn’t an opportunity to extol democracy, or to do away with judicial review of legislation

In a recent post at Policy Options, Joanna Baron and Geoffrey Sigalet argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, to insulate Bill 21, Québec’s proposed legislation making irreligion the province’s official creed from judicial scrutiny “is an opportunity for democratic renewal” in discussions about matters constitutional. In doing so, they come another step closer to overtly taking a position that has always been implicit in the arguments of many of section 33’s fans: that the enactment of the Charter was a mistake. Indeed, they go further and, intentionally or otherwise, make the same suggestion regarding the courts’ ability to enforce the federal division of powers under the Constitution Act, 1867. It is brave of Ms. Baron and Dr. Sigalet to make this argument with Bill 21 as a hook. Yet courageous though it is, the argument is not compelling.

Ms. Baron and Dr. Sigalet dismiss claims to the effect that, while section 33 prevents the scrutiny of Bill 21 for compliance with the Charter’s guarantees of religious freedom and equality, other constitutional arguments remain available. (I have presented one such argument, building on Maxime St-Hilaire’s work, here.) To them, they are no more than a “legalistic … distraction”. Opponents of Bill 21 should, rather, be “making the democratic case for protecting religious freedom”. Indeed, we should be celebrating “the legislative process … with its tradition of active debate”, which allows Québec to take a “collaborative approach to fleshing out important rights”. We should also be celebrating street protests, open letters, and even threats of disobedience issued by some of the organizations that will be responsible for applying Bill 21 when it becomes law. After all, letting the courts apply the Charter “can wind up overriding rights in ways similar to Bill 21”, while causing “an atrophying of the democratic process as a forum where rights are debated, articulated and enacted”. In short, “rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.”

I agree with this last point. Rights are unlikely to enjoy much protection in a political culture in which they are seen as something of concern to the courts alone. In one way or another ― whether through judicial acquiescence or through legislative override ― whatever constitutional protections for rights might exist in such a society will be cast aside. Québec is an excellent example of this. And, for my part, I have made a political, as well as a legal, case against Bill 21 here. The two can, and should, coexist.

And this is where Ms. Baron and Dr. Sigalet go badly wrong. In their headlong rush to praise politics, they denigrate the law. Without seriously addressing their merits, their dismiss plausible (albeit, to be fair, not unassailable) legal arguments as mere legalism. This applies not only to an argument based on the Charter, but also to one based on federalism. Presumably, we should count on the political process to sort out which of two different but equally democratic majorities should have the ability to impose its religious views on Canadians ― or any other issues about which order of government has the ability to legislate with respect to a particular subject. Similarly, Ms. Baron and Dr. Sigalet appear to see no harm in state institutions, such as school boards, threatening to act lawlessly, the Rule of Law be damned.

Ms. Baron and Dr. Sigalet also take a remarkably optimistic view of the political process. They say not a word of the fact that the “active debate” for which the praise Québec’s legislature may well be curtailed by the government. They call for democratic persuasion in the face of a law that is designed to impose few, if any, burdens, at least in the way in which it is likely to be enforced, on Québec’s lapsed-Catholic majority, and great burdens on a few minority groups that have long been subjects of suspicion if not outright vilification. A thoughtful advocate of democratic control over rights issues, Jeremy Waldron, at least worried in his “The Core of the Case against Judicial Review” about the possibility that political majorities will put their interests above the rights of minority groups. “Injustice”, he writes, “is what happens when the rights or interests of the minority are wrongly subordinated to those of the majority”, (1396) and we may legitimately worry about the tyranny of the majority when political majorities dispose of the rights of minority groups without heeding their concerns. Ms. Baron and Dr. Sigalet show no sign of being so worried, or of entertaining the possibility that the Québec society’s commitment to religious liberty is fundamentally deficient.

To be sure, Professor Waldron (rightly) reminds us that minorities “may be wrong about the rights they have; the majority may be right”. (1397) He also insists that, in societies genuinely committed to rights, it will rarely be the case that questions of rights will provoke neat splits between majority and minority groups. Still, we should be mindful of his acknowledgement that it is in cases like Bill 21, where majorities focus on their own preoccupations and are willing to simply impose their views on minorities, that the arguments in favour of judicial enforcement of constitutional rights are at their strongest. There is also a very strong argument ― and a democratic argument, too ― to be made in support of judicial enforcement of the federal division of powers, which serves to preserve the prerogative of democratic majorities to decide, or not to decide, certain issues.

Ms. Baron and Dr. Sigalet do not recognize these arguments, which leads me to the conclusion that they see no room for (strong-form) judicial review of legislation, under any circumstances. I believe that this position, at least so far as the Charter is concerned, is implicit in most if not all of the recent attempts to rehabilitate section 33. If one argues that we should trust legislatures to sometimes come to views about rights that deserve to prevail over those of the courts, indeed perhaps to correct judicial mistakes, then why trust them in some cases only, and not in all? The application of this logic to federalism isn’t as familiar in the Canadian context, but in for a penny, in for a pound, I suppose.

Yet in my view, this is a mistake. As the circumstances surrounding Bill 21 show, politics is often little more than the imposition of the preferences of one group on another by brute force. This is as true in a democracy as it is under any other political regime. Democracy makes it more likely (although it does not guarantee) that the triumphant group will be a majority of the citizenry, which may or may not be a good thing. Democracy means that governmental decrees are, in principle (although not always in practice) reversible, and this is most definitely a good thing, and the reason why democracy is the least bad form of government. But I see no basis for pretending that democratic politics is somehow wise, or that it fosters meaningful debate about rights or other constitutional issues. Yes, there are some examples of that, on which opponents of judicial review of legislation like to seize. But these examples are few and far between and, more importantly, nothing about the nature of democratic politics makes their regular occurrence likely.

And of course it is true that strong-form judicial review of legislation, or judicial enforcement of rights (and of federalism) more broadly, sometimes fails to protect rights as fully as it should. I’m not sure that Dr. Sigalet and Ms. Baron’s chosen example, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, is especially compelling ― I think the case was wrongly decided, but the majority’s position at least rested on the sort of concern that can in principle justify limitations on rights. The more recent decisions in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case are much worse in this regard, and provide compelling examples of an abject judicial failure to enforce the rights of a (rightly) maligned minority against an overbearing majority. Judicial review provides only a chance that what the political or administrative process got wrong will be set right, not a guarantee. But there is no compelling reason to think that the (usual) availability of judicial review causes the political debate about rights or other constitutional issues to atrophy. After all, as I have argued here, politicians are just as wont to ignore the constitution when they know or think that their decisions are not judicially reviewable as when they know that they are.  

In short, I am all for making the case for rights, and even federalism, outside the courtroom, and in ways that do not only speak to those carrying the privilege, or the burden, of legal training. I am all for making submissions to legislatures to try to prevent them from committing an injustice ― I’ve done it myself. And I’m all for protest, and even for civil disobedience by ordinary citizens when the politicians won’t listen ― though I have serious misgivings about officials declining to follow the law, partly for the reasons co-blogger Mark Mancini outlined here, and partly due to concerns of my own. But if the legally-minded among us should not neglect the political realm, then the politically-inclined should not disparage the law. The would-be prophets of popular sovereignty ought to remember Edward Coke’s words in his report of Prohibitions del Roy :

the law [is] the golden met-wand and measure to try the causes of the subjects; and which protect[s] His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege.

This is no less true of today’s democratic sovereign, though it be no less apt to stand on its own dignity as James I.

Don’t Know What You’re up to

Thoughts on Ilya Somin’s take on the consequences of political ignorance for judicial review

I have recently finished reading Ilya Somin’s Democracy and Political Ignorance: Why Smaller Government Is Smarter (2nd ed). Although I was familiar with the gist of Prof. Somin’s argument from his numerous blog posts on the subject of political ignorance as well talks, such as this one, one of which I had the good fortune of attending at NYU, I found it a rewarding read. Even if you know where the argument is going, it is still well worth your while. That said, since prof. Somin has so frequently summarized his case himself, there is no need for me to do so here. Rather, I will volunteer some observations on an issue which he addresses in the book, but not, for the most part, in his blog posts: the impact of his findings on political ignorance on the issue of judicial review of legislation.

In a nutshell, prof. Somin’s general argument is that, as extensive survey evidence shows, most people are profoundly ignorant about both the organization and the activities of government. They are also unaware of crucial facts relevant to assessing these activities. Meanwhile, most of those who are not as ignorant as the rest are still incapable of correctly assessing the government’s performance because they are “fans” who are more interested in the success of their political “team” than in the search for truth. The reason this problem persists is that the costs of acquiring information and processing it in good faith are too high  compared to the benefits one might get from doing so, given that it does not matter whether one’s vote is well-informed or not: it still counts for virtually nothing. In a word, ignorance is rational. By contrast, people are remarkably able and willing to acquire information when they are considering a decision that would assuredly have an impact on them, such as where to live or what to buy. The most effective solution to the misgovernment caused by the pervasive and persistent ignorance of voters is, therefore, to devolve decision-making powers from large, centralized governments to more local ones among which people are more easily able to choose by “voting with their feet” and from all governments to the market.

This argument, which, to be clear, I find very compelling (though I should perhaps note that ― like prof. Somin, I take it ― I would support the prescriptions of smaller and more decentralized government even quite apart from the existence of political ignorance) has a couple of important consequences for debates about judicial review of legislation. For one thing, it strengthens the case for judicial review.  Enforcing limits on the power of government, as judicial review does, and perhaps especially enforcing limits set up by federal constitutions, insofar as they circumscribe the powers of centralized governments, helps preserve foot-voting and market-choice opportunities. It can also help limit the number of issues to which the government attends and thus the amount of information that voters need to acquire and process in order to keep tabs on it. For another, persistent and pervasive political ignorance undermines the case against judicial review. This case rests on the courts’ lack of democratic legitimacy vis-à-vis the legislatures whose work they check. But if voters are largely ignorant about what it is that the legislatures are up to anyway ― and prof. Somin observers that “[f]or most legislation, the vast majority of voters will not have heard of its existence, much less have an informed opinion on its merits” (184) ― then legislation’s claim to democratic legitimacy is weak if not non-existent, except in unusual circumstances.

This too is largely compelling. Even the Waldronian argument about the legitimacy of legislatures arising out of the (roughly) equal say that elections (if run fairly) give to voters in public affairs loses much of its bite if we think, as prof. Somin shows we ought to, that the voters largely do not know enough to choose their representatives reasonably well. The equality argument remains, of course, but it is a hollow one. Still, I think that prof. Somin’s arguments raise a number of questions that his book does not answer ― which is not to say that they are unanswerable.

One such question is what can be done to ensure that judicial review actually works to counteract, rather than worsen, the problem of political ignorance. Judicial review can, after all, serve to expand rather than limit the powers that the government is called upon to exercise, or to obscure the exercise of existing powers instead of making it more transparent. It will do so if courts are merrily enforcing “social and economic rights”, requiring governments to create or expand social programmes instead of leaving issues to be dealt with in the markets. It will also do so if courts blur the lines between federal and state or provincial authority, making it more difficult for citizens to know what government is responsible for what law or social programme, or give private unaccountable actors, such as civil servants’ unions, power to influence public affairs.

The Supreme Court of Canada has already done some of these things, and its parasiti ― who are, in reality, just one species of the rent-seeking genus that afflicts all specialized expert agencies, as prof. Somin notes in his discussion of delegation of power to experts ― are urging it do more. Should these suggestions be taken up, the problems of ignorance resulting from the vast scope of and difficulty of monitoring government will likely become that much worse. (This does not conclusively prove, of course, that none of these things ought to be done; perhaps there are reasons why increased ignorance is a price worth paying. The point is simply that the ignorance-related costs must be taken into account.) The answer, presumably, is some combination of “write a constitutional text that does not lend itself to ignorance-promoting interpretations” and “appoint judges who will not engage in such interpretations when not required to do so by the text”, but I wonder whether prof. Somin might suggest something more specific.

More specific solutions would be particularly important because relying on judicial appointments is really not much of a solution at all. Prof. Somin notes, elsewhere in the book, that the American public pays little attention to presidents’ performance in choosing judges, even though this is one area where (unlike in many others, such as economic policy, on which presidents are often judged) a president wields decisive influence. The problem is, if anything, much worse in Canada. Appointments to the Supreme Court attract attention only insofar as they conform to or depart from conventions about representation, whether established (i.e. regional/provincial representation) or emerging (demographic representation) and expectations about bilingualism. Other judicial appointments pass entirely unnoticed. The voters are not going to put any sort of pressure on Canadian governments to appoint judges who could enforce constitutional limits on the power of government, or otherwise contribute to counteracting the ill effects of political ignorance.

This makes me wonder whether much of anything can be done about this problem. Prof. Somin addresses some of the proposals that have been made to increase the voters’ levels of political knowledge generally, and concludes that none are likely to succeed to any substantial degree. He does not, however, consider the feasability of improving voter knowledge about specific issues, rather than as a general matter. Can something be done to make the electorate more aware of the importance of the judiciary and of the elected officials’ role in shaping it? The Federalist Society might have been somewhat successful at this in the United States, though I am not sure if even its determined efforts over the last several decades have changed popular opinion, as opposed to that of a certain section of relatively well-informed (and intensely partisan!) elites.

Last but not least, as prof. Somin also notes in his discussion of experts, ignorance is not only a problem for hoi polloi. “Expert regulators face serious knowledge problems themselves”, (215) he points out. Prof. Somin has in mind the experts’ lack of knowledge of people’s preferences and local circumstances, but another type of knowledge problem from which many experts, and perhaps especially the courts, suffer is the narrow scope of their expertise. Judges are (one hopes) experts in legal analysis, but they are as ignorant as the next person when it comes to all manner of facts and scientific theories that are relevant to policy-making ― including that which occurs in the course of policy-making. When adjudicating a trade union’s claim that its alleged right to extract above-market wages for its members is an instance of the freedom of association, it would help judges to have a basic understanding of labour economics. But they do not. When adjudicating claims about the police’s power of search incident to arrest, it might help judges not to think that crime rates are going up when they are in fact going to do. But they do. In many ways, judges are every bit as ignorant as the rest of us. So are lawyers, who thus cannot enlighten the judges before whom they litigate. Here again, I wonder if prof. Somin has any suggestions about relieving ignorance.

Prof. Somin’s discussion of expert decision-makers concludes that, while delegating decision-making powers to them may help counter some of the effects of the voters’ ignorance, it is no panacea. Although this discussion only mentions courts in passing, the conclusion, I am afraid, is applicable to them. Prof. Somin has put his finger on a very significant problem and it might be, if anything, even more intractable than his (already rather gloomy) account suggests. Still, if we are to do anything about, we must start by understanding what the problem is, and for helping us do so, we owe prof. Somin greatly.

This Will Be Good

I wrote last summer about the issue whether a federal legislature could enact a statute in order to implement a treaty despite the fact that, absent the treaty, the statute would be ultra vires (because provincial or state, rather than the federal legislatures have jurisdiction over its subject matter. If so, I said, this would give states the ability to act “like a child who, denied by one parent, asks the other to let them stay up late,” with other states playing the role of the lenient parent. I think that, in public policy (as, I suppose, in parenting) this is a bad idea. And, in Canada, the constitution has been interpreted as preventing such schemes, in the Labour Conventions Reference. 

The leading case on this issue in the United States is Missouri v. Holland, 252 U.S. 416 (1920), I always thought that it stood for the contrary proposition, that Congress can legislate to implement a treaty regardless of whether its subject-matter is within its enumerated powers. But now people better-informed and wiser than I, namely Nick Rosenkranz and NYU’s own Rick Pildes, will take up the question of whether this is right over at the Volokh Conspiracy, in anticipation of, maybe, the US Supreme Court eventually hearing a case where it arises. (Their first stab at it is here.)

It should be very interesting, and too much for any effective summary here, so I thought I’d alert however many (or, more likely, few) readers I have.

 

Go Ask Your Mom!

Is it conceivable that states, like a child who, denied by one parent, asks the other to let them stay up late, ask around for permission to do something they would not normally be permitted? Lord Atkin enlisted the threat of such a course of action as an argument in his famous opinion for the Judicial Committee of the Privy Council in The Labour Conventions Reference, writing (at p.9 in the document linked to) that “it would be remarkable that while the Dominion could not initiate legislation however desirable which affected civil rights in the provinces, yet its government … need only agree with a foreign country to enact such legislation.”

The judgment, denying Parliament the ability to enact social legislation it felt was necessary to respond to the Great Depression on the ground that such legislation was for the provinces to adopt, made a lot of people furious and, if I remember well, F.R. Scott for example criticized this suggestion as being fanciful fear-mongering. Justice Holmes, writing for the majority of the Supreme Court of the United States in Missouri v. Holland, 252 U.S. 416 (1920), a case that presented much the same issue as Labour Conventions, did not even consider this question, and went on to hold – contrary to Lord Atkin and the Privy Council – that the federal legislature could legislate to implement an international treaty regardless of its (dis)ability to enact the same legislation in the absence of a treaty.

But recent developments suggest that Lord Atkin’s worry it is not so crazy anymore, if it ever was. On intellectual property for example, states (and supranational organizations such as the European Union) have apparently taken to using free-trade agreements as vehicles for smuggling into their domestic legislation restrictive rules on intellectual property which they would might find politically impossible to enact in stand-alone statutes visibly devoted to this purpose, as University of Ottawa’s Michael Geist has detailed in a series of blog posts.

Of course, there is a crucial difference between this example and the Labour Conventions case. The impediments to legislative expansions of IP rights are (mostly) purely political, not constitutional. In such cases, Lord Atkin’s “watertight compartments” (p. 10) are of no assistance. Nonetheless, his insistence that the existence of an international treaty should not prevent us from insisting that the usual constraints, be they constitutional or political, on government power ought always to be be upheld. Foreign governments should not be able to play the lenient parent if domestic courts, or voters, are inclined to be strict.

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.

One’s Day in Court: Priceless?

In 1998, British Columbia started charging litigant stiff “hearing fees” for each day of a civil trial. Last week, Justice McEwan of the B.C. Supreme Court issued a monster of a judgment declaring them unconstitutional. The decision is very interesting for all sorts of reasons, but it is also abusively long. Fortunately for you, I have read it – well, much of it – so you don’t have to.

Before getting into the substance of the case, I want to say a few words about the decision; specifically, about its length. First, the facts: about 175 pages; 432 numbered paragraphs, many of them including multi-paragraph block quotations; more 70 000 words. That’s the length of a mid-sized novel. For a judgment, well, jugement-fleuve is a polite way of saying it. Perhaps it is a severe case of ‘I didn’t have the time to write a short decision so I wrote a long one’, except that it took Justice McEwan more than two years to produce it. Be that as it may, judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. Justice McEwan  makes much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it. (I’m not exactly a reasonable member of the public. But I must admit that I barely skimmed the restatement – I cannot call it a summary – of the parties’ submissions, which runs for something like 250 paragraphs. I did read all of the judge’s analysis though.)

Now to the case. The facts are simple. A couple separates, and there is a dispute over whether the plaintiff, who wants to move back to Spain, can take their daughter with her. They go to trial, unrepresented by lawyers, and the trials takes up 10 hearing days. The plaintiff is hit with a “hearing fees” bill of over 3500$ (some of which the defendant might have to cover). The fees are so high, in part, because they are imposed on a sliding scale – the longer a trial is, the higher the fee imposed for each additional day. She cannot pay, and asks the court to relieve her. The court might do this by finding her to be “indigent”. Indigent litigants have traditionally been exempt from having to pay court fees. But, Justice McEwan insists, ‘indigent’ means really, really poor. So poor one can’t afford to pay a $100 filing fee, for instance. “It is an awkward word to use to describe a middle class family’s inability to pay a month’s net salary for the two-week ‘rent’ of a courtroom” (par. 26). The exemption does not apply. The only way the plaintiff can get out of having to pay is if the fee is unconstitutional. That’s what the decision is about.

There are at least three strands of argument running through Justice McEwan’s reasons. He does not distinguish them, but they are in fact quite different. One is that the fees infringe an individual right – access to justice, the right to have one’s day in court. Another is that there is something wrong with a chooser-user-payer model of government services; a court is a public service, and should be available to all, regardless of ability to pay. The third – and I think the most significant for Justice McEwan – is that the imposition of the fees proceeds from and results in a redefinition of the courts’ role by rationing access to courtrooms and trying to steer dispute settlement to other venues. This, in Justice McEwan’s view, subordinates courts to the legislature and violates the separation and equality of the branches of government.

All of these reasons lead Justice McEwan to conclude that hearing fees are unconstitutional because they violate unwritten constitutional principles and the federal division of powers. Limiting access to courts runs counter to the Rule of Law. It is also undemocratic because court participate in the elaboration of law, and going to court thus amounts to participating in the democratic process (which is not limited to voting). A redefinition of the courts’ role, especially one that limits people’s access to courts, is beyond of provincial powers over “the Constitution, Maintenance, and Organization of Provincial Courts” under subs. 92(14) of the Constitution Act, 1867. Justice McEwan did not consider the applicability of the Charter, which was also raised in argument.

Well, that’s enough for a summary, though this only skims the surface of the judgment. I will have some comments tomorrow.

It’s Not a POGGrom!

Canada’s “newspaper of record” has published an ignorant rant by Neil Reynolds, savaging alleged abuses, rhetorical, legislative, and jurisprudential, of  the “Peace, Order, and Good government” (a.k.a. POGG) clause of s. 91 of the Constitution Act, 1867, which sets out the powers of the federal Parliament. While the words “peace, order, and good good government” are indeed sometimes used to draw, or rather to provide rhetorical cover for, expansive and unwarranted conclusions about Canada and its constitution, most of Mr. Reynolds’ claims about the clause’s use by Parliament and courts are flat out wrong.

Mr. Reynolds’ first target is a “Canadian myth[] [that] holds that our constitutional mandate for peace, order and good government has made Canada a kinder, gentler place than the United States – debauched by its licentious pursuit of life, liberty and the pursuit of happiness.”  I’ve heard that line before, and I agree that it is silly. Mr. Reynolds is right that “POGG … was imperial boilerplate,” a perfunctory introduction to a clause vesting the legislative power in Parliament. It certainly does not give courts the right he strike down laws on the basis that they are not conducive to peace, order, and good government. (We might not have much of a statute book if it did.) It does not tell us much of anything about the sort of country we are. (I will have more to say about this in another post shortly.) [UPDATE: that post is here.]

Beyond that, however, Mr. Reynolds’ argument does not disclose much of an understanding of Canadian constitutional law. He claims that “POGG has been used from the very beginning to override” the division of powers between Parliament and provincial legislatures. Apart from bald assertions, his evidence for this claim consists of the Supreme Court’s decision to uphold the constitutionality of the Anti-Inflation Act, Pierre Trudeau’s application of the War Measures Act during the October Crisis, Parliament’s creation of Employment Insurance, and its use of the spending power to  “fund everything (or almost everything) and disperse it directly and indirectly, hither and yon, as they deem fit.” This is almost entirely wrong. Continue reading “It’s Not a POGGrom!”

Don’t ask, don’t tell?

No, it’s not a post about gays in the U.S. armed forces. That’s so passé anyway. Actually, what I want to talk about is co-operative federalism again, the fascinating topic of the least-read post on this blog. (To the one brave soul who did read it: I love you, whoever you are!)

More specifically, it is about the question whether one level of government in a federation has to accede to the demand of the other for information in its possession. (My title is not totally gratuitous.) This question was raised in the recent judgment of the Superior Court of Québec on the validity of a subpoena issued by a provincial commission of inquiry demanding that the RCMP hand over large amounts of information it collected while investigating organized crime in Québec’s construction industry. Coincidentally, it is also the topic of an interesting forthcoming article by Robert Mikos, of Vanderbilt University Law School.

As prof. Mikos points out, for one government (that of a U.S. state in his paper) to hand over information it has collected to the other government has certain costs. The most obvious, albeit often not a large one, is the direct cost of the time government employees spend working, in effect, for someone other than the people paying them. More subtly, citizens might be discouraged from handing over information to one government if they know that it can end up in the hands of the other. Most importantly, the government which complies with the request for information thereby participates in the enforcement of the policies of the other government, which might be at odds with its own. For example, if a state which allows the medical use of marijuana hands over information about its users  to the federal government, which does not, it possibly helps the federal government arrest and imprison the people who in the state’s opinion are entitled to use the drug. Finally, “such commandeering of the states’ information-gathering apparatus blurs the lines of accountability for unpopular enforcement actions.”

Yet so far, American courts have not accepted these arguments, explains prof. Mikos. He argues that they are wrong, and that federal requests for information held by the states should be considered equivalent to the “commandeering” of their executives by federal authorities, which the U.S. Supreme Court has held to be unconstitutional. This would allow states to resist federal policies with which they disagree and better to give effect to their own.

Compared to these high-minded concerns, the questions at issue in the Québec case, Canada (Procureur général) c. Charbonneau, 2012 QCCS 1701, might be rather pedestrian. At least it does not appear from the judgment that the federal government or the RCMP are opposed, as a matter of principle or policy, to Québec’s inquiry into the shady dealings in its construction industry and that industry’s unsavoury links with the provincial government. (Might this change if the inquiry uncovers links between that industry and the federal government, as a report by the Globe & Mail suggests it well may ?) But given the sheer volume of the information it is asked for, the RCMP is probably concerned about the costs of complying with the request, as it is with preserving the secrecy of its inquiry methods and sources. The court, however, suggests that these concerns are overstated and/or capable of being addressed by the RCMP’s co-operation with the commission of inquiry and with provincial police. As for the constitutional position, the court holds that a commission of inquiry set up pursuant to provincial law can validly subpoena the RCMP and request information in its possession, so long as it does not inquire about the RCMP’s administration. The RCMP, as the Supreme Court has held, is not part of the civil service, and does not enjoy the same immunities from provincial inquiries as the federal Crown or its servants.

Unlike, it would seem, in the U.S., such immunities do exist in Canadian law, and there seems to be no reason for their not applying to provincial, as well as federal government, since provinces and the dominion are constitutionally equal. As the Supreme Court held in A.G. of Québec and Keable v. A.G. of Canada et al., [1979] 1 R.C.S. 218, provincial law cannot authorize a provincial commission of inquiry to force the federal Crown, its ministers or servants, to answer questions or to hand over information. I would assume that the limits that apply to commissions of inquiry also apply, a fortiori, to the federal or provincial civil administration. But this is an area of the law with which I am not familiar, so I have many questions that I do not the answer to, and cannot, at the moment, investigate. For example, if the RCMP is not a part of the civil service, what other federal and provincial agencies could be forced to hand over information? How frequently does this happen? Are issues of policy disagreement between provincial and federal authorities as serious in Canada as in the U.S.?

Two observations in conclusion. First, the gun-registry data litigation, about which I have blogged profusely, is in a sense an example of a government trying to get information from another, albeit with a (big) twist, in that its claim is largely (but not entirely!) based on its own contribution to the collection of this information. And second, whatever limits there might be on what one government can force another to do, there are probably none on what they can agree to.

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.