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!”