Ach, mein Sinn

Bach on the reasons for respecting freedom of conscience

I’m not at all religious; I found seeing a procession carrying a cross, and kneeling down to pray briefly outside my building in the centre of Auckland before continuing on their way rather bemusing. But I do like good music, very much including religious music from JS Bach to Dave Brubeck, and a rainy Good Friday seemed like a very good occasion to listen to a recording of the St John Passion without getting distracted.

This turned out, however, to be a more topical exercise than I expected. Pilate wondering “What is truth?” and the crowd insisting that “We have a law, and according to that law He should die” ― was Auden thinking of this when he wrote about “the loud angry crowd/ Very angry and very loud” claiming that “Law is We”? ― are just two examples of the very contemporary issues the Passion raises, quite from any belief that it holds eternal truths.

But it was another passage that struck me most, one that speaks to a truth that is, at least, as old as mankind but also, sadly, very relevant to Canadians in 2018: the aria “Ach, mein Sinn”.

 

Here is a translation:

Alas, my conscience,
where will you flee at last,
where shall I find refreshment?
Should I stay here,
or do I desire
mountain and hill at my back?
In all the world there is no counsel,
and in my heart
remains the pain
of my misdeed,
since the servant has denied the Lord.

As you’ve probably guessed, the words are Peter’s, after he denies being one of Jesus’ disciples. But the description of a conscience that is tormented by its own weakness, that wants to flee its predicament yet realizes that it cannot escape, and that cannot be helped, is one that ought to be recognizable to all human beings, regardless of their belief in, or indeed awareness of, the Gospel story. Whether Peter has denied the Lord or “only” a man he loved and admired is, I think, quite beside the point. Either way, he has given up his integrity, and he suffers as a result.

It is also beside the point whether Peter’s denial was voluntary, and his suffering, something he brought upon himself. Having followed Jesus, whom the High Priest’s men have arrested, to the High Priest’s palace, Peter is confronted by “One of the high priest’s servants, a friend of the man whose ear Peter had cut off”. He is no doubt afraid; he is probably right to be afraid. From an external perspective, his denial might be excusable; one shouldn’t be quick to boast that one would not have done the same in such circumstances. But for Peter himself such excuses are of no avail.

This reminder of why conscience is so important is most timely. The idea that Trinty Western University can just be made to abandon its homophobic and illiberal “covenant”, or that religious groups can be made to accept an “attestation” implying support for abortion rights, or that Ontario lawyers can be made to “promote” values regardless of their belief in them, ignores the suffering that these institutions and individuals would subject themselves to in complying with the state’s demands. Empathy for this sort of suffering, for the pain people when they lose their integrity, even if acting under the compulsion of the law and the threat of legal sanction, is the justification for respecting and protecting ― including by constitutional means ― the freedom of conscience.

The promoters and defenders of impositions on conscience feel no such empathy. Whether that is because they do not understand the plight of those whose obedience they demand, or because they are indifferent to it, I do not know. I suspect that a certain failure of imagination ― the inability or the refusal to admit that they might not always be the ones exacting obedience, and that they might instead find themselves in the position of would-be conscientious objectors ― is at least partly at issue. But, either as a warning about what they might themselves feel one day, or as an appeal for compassion, I hope that they take note of “Ach, mein Sinn”.

The Charter Conscription

The trouble with governments forcing citizens to advance their constitutional agendas

In his Policy Options post on the federal government’s denial of funding under the Canada Summer Jobs Programme to those who do not share its views on reproductive and equality rights, Brian Bird wrote that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”. As I have already noted here, I think this observation is fundamentally correct. But Mr. Bird’s metaphor doesn’t quite capture what is going on.

It is not just, or perhaps even so much, that the Canadian Charter of Rights and Freedoms is being used as a weapon against citizens. After all it is true that, as Jennifer Taylor pointed out in her defence of the government’s policy in the CBA National Magazine, anti-abortionists “are free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen”, though the space for advocacy is being narrowed ― a point to which I will return. But if the Charter is not yet being used to take away people’s rights (except when it really is, as in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038), it is already being help up as a banner under which increasing numbers of citizens must be conscripted to advance the government’s agenda of protecting some real or purported constitutional rights.

The federal government’s endeavour to enlist the recipients of Canada Summer Jobs funding in the service of productive Charter and “other” rights, and Charter values too, in the bargain, is not an isolated one. In Nova Scotia, Ontario, and British Columbia, law societies ― which are, though people apparently forget this, not private clubs but regulatory instrumentalities of the state ― have sought to ensure that law schools respect the equality rights of gays and lesbians by denying accreditation to one that conspicuously fails to do so. In Ontario, the law society is also demanding that all lawyers acknowledge an (inexistent) obligation to “promote equality, diversity and inclusion”.

In this context, the insistence of Ms. Taylor and what few other defenders the federal government has that “[t]he government shouldn’t be funding activism against constitutional rights when the Constitution is the supreme law of Canada” is rather selective. While the issue in the case of the Summer Jobs Programme is public funding, in other cases it is accreditation or licensing that cost the government nothing (or, in the case of lawyer licensing, is highly lucrative). Yet the government’s reasoning in these different cases is essentially the same. It seeks to ensure that individuals or groups subject to its control act consistently with its agenda, defined ― hypocritically, as I will presently argue ― as a constitution-protecting one. Whether the instrument, in each case, is a subsidy, a license, or some other regulatory tool, is beside the point ― certainly as a matter of political morality but also, I would suggest, as a matter of constitutional law.

Now, the professed adherence of those who would force others to advance their “constitutional” agenda to the Charter is, in my view, selective to the point of hypocrisy. I have already argued, here and elsewhere, that the federal government in particular is guilty of “playing favourites” with the constitution, as indeed are large parts of Canada’s legal community. Something similar is happening here too. For instance, the self-anointed defenders of the Charter ignore its section 32(1), which provides that the “Charter applies … to the Parliament and government of Canada … and … to the legislature and government of each province”. The Charter, by its own terms, does not apply to or bind private parties, and it is wrong to invoke it to justify the imposition of rights-protecting obligations on those on whom it was not intended to impose any.

And then, there is the fact while governments seem increasingly happy to impose their duty to uphold some Charter rights on others, they would do no such thing with other rights, which they deem less pressing or less in need of widespread compliance. For example, while Law Societies are much alarmed by the fact that a law school might discriminate on the basis of sexual orientation, nobody seems especially concerned by the fact that a different law school in the same province apparently conditions its hiring decisions on the prospective candidates’ commitment to social justice or “equity in scholarship” ― freedom of opinion, academic freedom, and the right not to be discriminated against on the basis of political belief be damned. The federal government doesn’t want to fund anti-abortionists, but would it object to funding, say, a women’s group working to dilute the presumption of innocence or other protections available to men accused of sexual assault? Or would deny benefits to a crime-victims’ group campaigning against the Supreme Court’s understanding of the right to be tried within a reasonable time?

These last two examples show, by the way, that, as much as we may love the Charter, the precise contours of its protections can and ought to be debated ― and that it’s not a given that the scope of what are currently recognized as Charter rights should never be restricted. Now, I hasten to add that I personally think that undermining the presumption of innocence would be disastrously wrong, and I’ve argued here that the Supreme Court’s decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, which imposed strict time limits on criminal trials, is more defensible than its numerous critics allowed. But these are my opinions, and I really don’t think that the government should seek to impose them on those who happen not to share them. Similarly, I do not think that the government should seek to impose the Supreme Court’s misguided opinions about the purported “rights” of trade unions on people like me. One can support the constitution while seeking to have it amended; one can certainly support the Charter while seeking to have some interpretations of it by the Supreme Court overturned; and, in any case, in a free society, no citizen ― as opposed to an office-holder ― is under no a duty to support the constitution at all.

But governments and their acolytes have no time for such complexity. They are convinced that anything less than enthusiastic universal support for whatever definition they happen to espouse of whatever rights they happen to prioritize is a threat to these rights and to the constitution as a whole. This is simply not so. To Ms. Taylor “[i]t seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students”, since funding anti-abortionists would threaten “the Charter rights of women, like the right to autonomy over their own bodies”. What should, instead be self-evident, though it manifestly isn’t, is that anti-abortion advocacy, whether federally funded or not, does not by itself impede anyone’s access to abortions. Unless governments themselves decide restrict access, this advocacy is so much hot air. Similarly, the creation of a homophobic law school out in British Columbia doesn’t reduce gays’ and lesbians’ access to any of the other law schools in Canada. And, needless to say, my or anyone else’s failure to “acknowledge” a purported obligation to “promote equality, diversity and inclusion” doesn’t take anything away from the rights that various persons or groups have under the equality-protecting provisions of the Charter or human rights legislation.

Yet in all these situations the existence of expression that contradicts rights claims (such as anti-abortionist propaganda) or indeed silence that is often unfairly interpreted to do so (such as failure to “acknowledge” whatever “obligations” the Law Society of Ontario invents) is deemed harmful. There is, in reality, no harm other than the hurt feelings of vocal factions ― whose membership is in no way coterminous with the groups on whose behalf they purport to speak. But if someone’s hurt feelings give the government the right to impose that person’s views on everyone else, there is nothing the government cannot do. Under the guise of an impassioned defence of the Charter, those who adhere to this logic of empowering government are actually working ― wittingly or not ― to remove constitutional barriers on its powers, so that the full weight of these powers can be brought to bear on ideological minorities.

Already, the room for dissent is shrinking. To repeat, Ms. Taylor points out that anti-abortionists remain “free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen” (emphasis mine). But, as the emphasized part of that sentence suggests, some spaces for public advocacy have already been closed off to them. In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734, the Alberta Court of Queen’s Bench upheld a city’s decision to ban anti-abortionist advertising, which was neither especially strongly worded nor particularly visually upsetting (though the website of the organization promoting was both), from its public buses. It was, I have argued here, a “disturbing if not perverse” decision, inconsistent with Supreme Court precedent; I further explained that its reliance on a specious argument to the effect that the people who might see the ads at issue were a “captive audience” was specious and unsupported by authority. But there it is ― and if the decision stands (there is, I take it, an ongoing appeal), governments will be allowed to ban the communication of anti-abortionist ― and otherwise obnoxious ― messages except perhaps to those who already agree with them. And of course, they will not need to stop at censorship. On the same logic that allows government to deny subsidies to organizations based on their views or agendas, it should be possible to deny them or their donors tax credits, which after all are just another form of subsidy, putting them at a distinct disadvantage when it comes to fundraising too. Nor need the government stop at interfering with the freedoms of ideologically-driven organizations. How about requiring anyone who wants to receive money from Employment Insurance or Old Age Security to submit an “attestation” similar to the one required of applicants to the Summer Jobs Programme? They too might use their money to advocate against abortion rights! There is nothing in Ms. Taylor’s ― or the federal government’s ― position that would prevent such an imposition.

The constitution binds the government. It limit its freedom of action. It does not, however, bind, constrain, or even command the unconditional support of citizens or the organizations that citizens form. The government cannot conscript citizens into a pro-constitutional task force; it cannot bind them to constitutional obligations in a way the constitution itself conspicuously does not. Citizens remain free peacefully to challenge the constitution in whole or in part, and to contest the way in which it has been interpreted by the courts. The government may not demand that citizens refrain from doing so, or induce them to refrain. The government, to be sure, need not encourage or subsidize contestation ― but only so long as it does not encourage or subsidize support either. If money is offered, it must be offered on equal terms to the holders of all views. And if this means that less money will be offered in various programmes, subsidies, and tax credits ― so much the better.

The Detestable Attestation

Thoughts on the federal government’s attempt to make religious groups capitulate to its views on abortion

The federal government dishes out money to various organizations to hire young people for summer jobs. But starting this year, the government decreed that there will be no money for any groups that do not

attest that both the job [for which young people will be hired] and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.

Despite the seeming generality (the absurd generality, as I will explain below) of this statement, the government’s focus is quite clearly on “women’s rights and women’s reproductive rights, and the rights of gender-diverse and transgender Canadians”, and more specifically on “sexual and reproductive rights — and the right to access safe and legal abortions”, which are said to be “at the core of the Government of Canada’s foreign and domestic policies”.

Predictably ― except, it would seem, for the government itself ― many religious groups, who were among the frequent recipients of funding under the summer jobs programme in the past, and whose contributions the Prime Minister himself claims to value, are objecting to this attestation. Since they do not share the government’s vision of “sexual and reproductive rights”, especially when it comes to abortions, they are reluctant to profess their “core mandate”‘s consistency with these rights. The government argues that the objectors misunderstand the point of the “attestation” ― it is enough for it that the group not be primarily anti-abortionist ― but for religious groups themselves, implying that their pro-life views are somehow not “core” is out of question. As they see it, they are being denied access to a government benefit for which they would otherwise qualify on the basis of their religious and conscientious beliefs.

They are quite right, as many commentators have already pointed out. John Ibbitson, in The Globe and Mail, equates the attestation with “making applicants sign on to a Liberal values manifesto”. In the National Post, John Ivison echoes this analysis and adds that “there is a hierarchy of rights in this country: at the apex are those rights the Liberals find agreeable, at its base are those they find abhorrent”. In a CBC Opinion piece, David Millar Haskell points out that the government’s insistence that religious organizations can sign the attestation “shows a complete lack of awareness of what it means to be ethical”, because it cannot be embraced with engaging in the “practice of equivocation and mutable morality”.  A Globe editorial points out that “[t]he Charter protects the[] freedom to dispute the contents of the constitution and its interpretation by the courts”, and that the government’s position “that arguing against a right is as bad as infringing it” is “chilling”. Writing for Policy Options, Brian Bird sums up the issue by noting that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”, instead of the “shield for citizens against the abuse of state power” that it is supposed to be.

All this, I think, is correct. Much like the Law Society of Ontario’s “Statement of Principles” requirement, the “attestation” is a values test that conditions eligibility for a public benefit on the would-be recipient’s agreement with the government. It is an obvious instance of compelled speech and, more importantly, an interference with freedom of conscience. The government cannot ask people to profess or to express particular beliefs, even as a condition of providing a benefit. The Charter was meant to break what Steven Smith (the law and religion scholar, not to be confused with Stephen Smith, the contract theorist) recently described as “the centuries-old pattern in which governments have attempted to compel dissenters or outliers to publicly affirm and acquiesce to the dominant orthodoxy” ― the government’s attempt to invoke it to perpetuate this pattern notwithstanding.

In one of the few attempts to defend the government that I have seen, Dale Smith notes that governments always channel public funding to  causes and groups whose morality they approve of, and away from others. That much is true ― and worthy of condemnation. But Mr. Smith is missing a couple of important distinctions. For one thing, there’s a difference between a completely discretionary decision to allocate funding this way or that, and using a values test to deny funding to a beneficiary who otherwise meets set criteria on which everyone is judged. And second, I think that, as Prof. Smith suggests, there is something particularly odious about governments, not content with discriminating against citizens for their views, demanding that citizens also actively express or endorse beliefs that they do not hold.

And as for the government’s claims ― supported by Daphne Gilbert in an Ottawa Citizen op-ed ― that the objectors misunderstand the attestation, they simply ignore the fact that, when it comes to religious (and, I have argued, conscientious) obligations, the state cannot tell people what theirs are. If a religious group cannot dissociate its “core mandate” from its anti-abortionist stance, neither Professor Gilbert, nor Workforce Development and Labour Minister Patty Hajdu, nor Prime Minister Justin Trudeau is entitled to tell it that it ought to be less scrupulous.

I’d like to add a few more points which I mostly have not seen made in other critiques of the federal government’s position. The first concerns the meaning and scope of the “attestation”. While a few rights are singled out ― a point to which I will return shortly ―, on its face the “attestation” requires the support of “individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights”. What does this even mean? Quite clearly, the rights one is required to support are not limited to Charter rights, but some “other” ones as well. So how about some other non-Charter protected rights? For instance, must applicants to the Summer Jobs Programme support property rights (which, though not in the Charter, are part and parcel of Canadian law)? And then, of course, there is the question of “Charter values”, which Justices Lauwers and Miller recently noted in Gehl v. Canada (Attorney General), 2017 ONCA 319 , “are not a discrete set, like Charter rights, which were the product of a constitutional settlement and are easily ascertained by consulting a constitutional text”,  [80] and which, moreover, “can easily be in conflict”. [82] In other words, the government is asking people to “attest” to their support of an indeterminate and indeterminable set of potentially contradictory rights and “values”. This is contrary not only to the freedom of conscience, but also to the principle of the Rule of Law.

All that said, while the “attestation” is seemingly extraordinarily broad, it is obvious that its true purpose has to do with the government’s support with a fairly narrow set of equality and reproductive rights described as being “at the core of” its policy. (By the way, how “core” are these things to the government’s “mandate”, actually? I’d say that they are pretty tangential to most of what it does; the government may disagree, but this of course only makes more pressing the question of how the government thinks it can define for others what their “core mandate” is.) Mr. Ivison is right to describe this approach as constructing a “hierarchy of rights”. Reproductive and equality rights are at the top; their advancement is the government’s priority. In the middle, a vast number of unknown “other rights” are ostensibly important too, but the government doesn’t seem to care about them very much. And at the bottom, as Mr. Ivison says, are those rights ― like freedom of conscience ― that get in the way of its agenda. The reason I dwell on this, though, is that this is not the first time the government has done something like this. In the context of the Court Challenges Programme, of the celebrations of constitutional anniversaries, and of proposed legislation supposed to foster Parliament’s engagement with the constitution, the government plays favourites with constitutional provisions, playing up its commitment to some while ignoring others. The government is treating the constitution not as a binding constraint, but as a political prop, to be used in order to advance its agenda, ignored when unnecessary, and overridden when inconvenient.

My concluding observations concern the reasons the government got into this mess, and the way we might avoid repetitions in the future. We have come to accept the idea, of which Lord Acton warned as a great danger in his Lectures on Modern History, of the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”. (289) In its role as promoter of wealth, the government  decides to subsidize youth employment ― having first made young people unemployable thanks to minimum wage laws that don’t account for their lack of skill and experience enacted in its capacity of guardian of morality. And then, since it is also the intellectual guide of the nation and the mainspring of progress, the government decides to use subsidies as an occasion to inculcate the proper understanding of (some) rights to those who want to receive them. As Lord Acton realized, such a government must be oppressive; it “governs, and all other things obey”. (289) While much of the criticism of the “attestation” is couched in partisan terms, as if it were a peculiarly Liberal pathology, the truth is that the view of government from which its imposition results is shared by all of the principal federal and provincial political parties, and indeed by most of the critics. To be sure, the existence of the criticism shows that one need not be a fire-breathing classical liberal to oppose government overreach. But unless we recover something of Lord Acton’s suspicion of governmental beneficence we will never do more than fight rear-guard battles against its encroachments; we will never allow ourselves to strike back at its ineradicable tendency to overreach.

Whether groups that receive funding under the Summer Jobs Programme support (its interpretation of) human rights is none of the government’s business. Citizens are not obliged to support rights ― only to respect them to the extent that they are reflected in laws that bind them, which must be clear enough for the citizens to understand what it is that they must do. It is the government’s job to comply with the constitution ― all of it, and not just the bits it likes. But to keep the government to its proper sphere, we must first remember what that sphere is.

One’s Own Self, Like Water

The Law Society’s demand for a “Statement of Principles” is a totalitarian values test

In my last post, I outlined the scope of the Law Society of Upper Canada’s demands that all lawyers subject to its regulation, including those who are retired or working outside Ontario, produce a “Statement of Principles that acknowledges” a purported “obligation to promote equality, diversity and inclusion” ― not only in the practice of law but “generally”. I also explained that no such obligation exists at present, because none is imposed by the Rules of Professional Conduct or other rules applicable to lawyers, as they now stand, and that it is doubtful whether the Law Society could lawfully impose such an obligation under its enabling statute.

I have not seen meaningful responses to these concerns. On the contrary, they have been echoed in an op-ed in the Globe and Mail by Arthur Cockfield. Instead, those who defend the Law Society argue that whatever limitation of our rights the Law Society’s demands produce, the limitation is justified if analysed under the proportionality framework of s 1 of the Canadian Charter of Rights and Freedoms. They also point to the fact that lawyers are already required, by s 21(1) of Law’s Society’s By-Law 4, to swear an oath upon entry into the profession.

I agree with the Law Society’s defenders that the “Statement of Principles” that it wants us to produce is indeed similar to an oath, and in particular to the oath required by s 21(1), which I will refer to as “the lawyers’ oath”. They are similar in nature, in purpose ― and in their uselessness and questionable constitutionality. I will discuss these points below, drawing heavily on the criticisms of the Canadian citizenship oath (and, specifically, of its reference to the Queen) that I have developed over the course of four years of blogging on this topic, and especially in an article on this issue published in the National Journal of Constitutional Law. (Indeed, though it was not the focus of my argument, I briefly discussed the lawyers’ oath in the article.) Some of those who defend the Law Society have sought to accuse its critics of hypocrisy over our purported failure to object to oaths, and especially to oaths of allegiance to the Queen. Whatever the rhetorical value of such accusations ― and I think that it is nil, since they do not refute our substantive objections ― this topic is not new to me.

Start, then, with the nature of the oath or “Statement of Principles”. Both are forced expressions of commitment to acting in certain ways. Though a “Statement of Principles” might, depending on the way in which it is formulated, ostensibly stop just short of being a promise, I think that any distinction between acknowledging an obligation and promising to fulfill an obligation is one without a difference in this context. In his National Post op-ed criticizing the Law Society’s demands, Bruce Pardy treated the “Statement of Principles” as a forced expression of support of support for the Law Society’s policies, which I think is quite right. As Prof. Pardy pointed out, in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, the Supreme Court has condemned such demands as “totalitarian and as such alien to the tradition of free nations like Canada”. (296) Although in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 the Court made it clear that this holding did not apply to compelled statements of fact, this (wrongheaded, in my view) narrowing of the National Bank holding is not relevant here. But, as I have argued in my blog posts and article, coerced commitments are more than expressions of opinion. They are impositions not only on the freedom of speech of those who must make them, but also on their freedom of conscience. Oaths, as the Supreme Court explained in R v Khan, [1990] 2 SCR 531 work by “getting a hold on [the] conscience” of those who take them, notably ― but not only, as I shall presently explain ― by making the thing sworn to a matter of moral, and not merely legal, obligation. The  “Statement of Principles” is similar, in that it is an attempt to make every lawyer embrace, as a matter of his or her personal morality, and thus conscience, the principles set out in that statement.

The other way in which oaths typically impinge on conscience, and also a point of similarity between the lawyers’ oath and the “Statement of Principles” is that, because they typically impose vague obligations that go well beyond the requirements of any positive law, they demand frequent if not constant exercise of moral judgment about the precise scope of the duties being sworn to. As I wrote in my article, the lawyers’ oath

requires lawyers, among other things, to “protect and defend the rights of interests” of their clients; to “conduct all cases faithfully”; not to “refuse causes of complaint reasonably founded, nor [to] promote suits upon frivolous pretences”; to “seek to ensure access to justice”; and to “champion the rule of law and safeguard the rights and freedoms of all persons.” These (and the other requirements of the oath) are not straightforward obligations. Discharging them requires lawyers to think about just what their duties are. … [T]o a considerable degree, the judgment required is a moral one. In some cases, that is because the lawyers’ duties are couched in moral terms (like “faithfulness” …). In other cases, the degree to which one can and ought to fulfill these duties must necessarily be left to individual conscience. (How far must one go to “ensure access to justice”: does it require one to limit one’s fees? How much pro bono work need one do? Can one “ensure access to justice” while being a member of a state-enforced cartel devoted to raising the cost of legal services?) In other cases still, it is because the lawyers’ duties can conflict (for instance, when the defence of a client’s interests might suggest launching a “suit upon frivolous pretences”), requiring moral judgment about which is to prevail. In short, a lawyer must constantly, or at least frequently, rely on his or her conscience to determine just what it is that his or her oath requires. (152)

The “Statement of Principles” would be meant to do the same thing, requiring lawyers (those, at least, who take it seriously) to be constantly asking themselves what their general “obligation to promote equality, diversity and inclusion” requires. It is no answer that the requirement is merely to comply with relevant human rights legislation. Not only is no “Statement of Principles” necessary to achieve that, but this legislation does not actually apply to many lawyers, such as those who are retired and not engaged in the sorts of relationships or activities which such legislation covers. The whole point of a “Statement of Principles” is to go beyond the positive law.

These impositions on freedom of conscience ― and, of course, the compelled expression  of opinion that the lawyers’ oath and “Statement of Principles” also are ― require justification. I do not think that any exists. In my article, I take the Canadian citizenship oath through the Oakes proportionality analysis, and find that it fails at every step. (Interestingly, as I also note in the article, the Law Society itself dropped the mandatory oath to the Queen due to constitutional concerns.) Of course, the issues with the lawyers’ oath and the “Statement of Principles” are not the exactly same. Yet there are also some common points.

In particular, both supposedly serve the sort of “[v]ague and symbolic objectives” of which the Supreme Court told us to be wary in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 while having a tenuous relationship to these objectives. The lawyers’ oath is unlikely to make many lawyers more ethical, or more committed to the Rule of Law. One is ethical, or a “champion of the Rule of Law”, because one believes in these things ― not because one was made to swear to them. Similarly, even the Law Society’s defenders tend to acknowledge that requiring us to produce a the Statement of Principles is not going to do much to make the legal profession more diverse or inclusive. A symbolic expression of commitment to a set of values, no matter how attractive, is no more necessary than a symbolic expression of commitment to one’s country, no matter how great ― which, I explain in the article on  the citizenship oath, and as Liav Orgad explained in more detail in his study of loyalty oaths, is to say not necessary at all.

This is all the more so since the Law Society explicitly states that the requirement to produce a “Statement of Principles” can be satisfied by the simple expedient of “adopting” one of the sample “Statements” supplied by the Law Society itself. Indeed, the Law Society’s defenders suggest that since we could easily “adopt” one of those sample statements, regardless of whether we believe in them, or some other “Statement” so vague and bland that, as Annamaria Enenajor put it to me on Twitter,  “a closet [sic] neo-nazi lawyer could get down with” it, the whole thing is really no big deal. This again is similar to the lawyers’ oath. I have no doubt that if Justice Abella chooses to re-join the bar after her retirement from the Supreme Court, she will feel no compunctions about promising to “champion the rule of law” ― even though it is a matter of public record that “[t]he ubiquitous phrase ‘rule of law’ annoys her“, and that she prefers something called “the rule of justice”. But to the extent that the Law Soceity’s fellow-travellers are right, it is difficult to see how the “Statement of Principles” is meaningfully addressing a pressing and substantial concern, and it must fail the proportionality test for that reason.

There is, however, another possibility. As with the citizenship oath and the lawyers’ oath, while most people may be content to make a pretended commitment to ideas or principles they do not understand or indeed secretly despise, some are not. They take a thing of that nature, whether called an oath or a Statement of Principles, seriously. They agree with Robert Bolt’s Thomas More that “[w]hen a man takes an oath … he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again”. And, just like More refused to falsely swear an oath to regard Henry VIII as head of the Church, they will not tick off box on the Law Society’s form to acknowledge an obligation to promote ideals the Law Societey’s interpretation of which  they do not share, or indeed the Law Society’s authority to impose which they reject. As to such people ― as to those who refuse to live in the closet ― the Law Society’s demand is not a trivial, if useless, imposition. As prof. Pardy argues, and as the Supreme Court has long accepted, forcing people to endorse opinions that they do not share is totalitarian ― or at any rate no less oppressive than the government of Henry VIII. As to such people, the Law Society’s demands will, at all events, fail the “proportionality strictu sensu” test, because totalitarian demands for ideological compliance always impose a greater cost than whatever benefit the state (or, in this case, the Law Society) can hope to obtain by imposing them.

Beyond the dry terminology of proportionality analysis, it is important to understand that what is at stake here is neither more nor less than a values test for the practice of law. While some have resisted this implication (going so far as to argue that a requirement to produce a “Statement of Principles” is not a values test even though a requirement to provide it to the Law Society would be one!), others among the Law Society’s fellow travellers are quite comfortable with it. In their view, there is nothing wrong with a legal profession in which only people who hold the right values ― and those who are sufficiently unprincipled to dissemble about theirs ― are welcome to remain, while those who are deemed to be wrong, and who refuse to hide in the closet in response, are shown the door. The undesirables are not yet pushed out ― it may be that the Law Society’s policy is nothing more than a paper tiger, a “demand” that will not be meaningfully enforced. But it could also be a warning, and a test. Even if the Law Society does not try coercion now, acquiescence to its demands it will embolden it do so in the future. As others have argued, it will also show that the legal profession is supine enough to comply with the authorities’ attempts to impose orthodoxy on it. And this leads me to a final question for those who support the Law Society. Are you really so confident of always being among those whose orthodoxy will be imposed on others? Thomas More ― the historical one, the one who confiscated books and rejoiced in the burning of heretics ― was so confident. May you fare better than he did.

New Swearwords

The Prime Minister wants to make a meaningless addition to our unconstitutional citizenship oath

As the CBC reports, the Prime Minister’s mandate letter to the new Minister of Immigration, Refugees and Citizenship directs him to “[w]ork in collaboration with the Minister of Indigenous and Northern Affairs to make changes to the Oath of Canadian Citizenship to reflect the Truth and Reconciliation’s [sic] Calls to Action.” What the Truth and Reconciliation Commission suggested was adding the clause “including Treaties with Indigenous Peoples” to the undertaking to “faithfully observe the laws of Canada”. This addition is silly ― and, meanwhile, the oath remains unconstitutional, as I have long argued here and in an article published in the National Journal of Constitutional Law.

Having new citizens undertake to “faithfully observe … Treaties with Indigenous Peoples” is meaningless exercise in symbolic politics. The treaties in question do not bind citizens. Citizens trying to ascertain the duties they subscribe by taking the oath in this form would find none. The treaties do not require them to do or not to do anything. They impose obligations on (and give rights to) the Crown ― i.e. the government. An individual citizen can no more “observe” these treaties than he or she can fail to do so.

The addition of meaningless language further devalues the citizenship oath ― though admittedly it is already not worth very much. Many citizens, new and old alike, including indeed the authors of the guidebook used to help prepare would-be citizens for their citizenship test, misunderstand the reference to the Queen in the existing oath, thinking that it means that “we profess our loyalty to a person”. What is more, as the Court of Appeal for Ontario observed in the course of dismissing a challenge to the constitutionality of the reference to the Queen, in  McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1,

a former plaintiff in this proceeding who had taken the oath of the citizenship, has publicly recanted the oath to the Queen while, at the same time, confirming the remainder of the oath. Mr. Charles was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status.

The government of Canada, in other words, thinks that the oath means nothing at all (imagine, by contrast, a judge’s reaction to a witness telling her that he “recants” his promise to say nothing but the truth), and goodness knows what those who take the oath think it means. The Prime Minister’s new plan does not change that.

Nor does it address the unconstitutionality of the oath in its current form. While it has upheld the oath, I have argued here that the McAteer decision is a “parade of judicial horribles“. It misreads the relevant precedents and relies on conclusory assertions about the value of the citizenship oath while ignoring the oath’s history as an embodiment of distrust and the distinctive way in which an oath (contrary to a statutory command) operates by enlisting the conscience of the person who takes it. As I explain in more detail in my article, the citizenship oath in its current form is an imposition on individual conscience that is not justified by any pressing and substantial objective, is not rationally connected to the purposes it supposedly serves, is not minimally restrictive (since it could easily be re-written to accommodate the scruples of those who object to it), and is not proportional to the harms it inflicts on objectors. It is, in short, contrary to s 2(a) of the Canadian Charter of Rights and Freedoms, and cannot be “saved” by s 1.

This is what the Prime Minister ought to have asked the Immigration, Refugees and Citizenship Minister to address. Instead, he chose to focus on a meaningless gesture. I have written here that “oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company”. Another feature of swearwords is that their precise contents matters very little; only the emotions they convey are of any significance, as this latest news confirms.

 

Events Next Week

I’ll be visiting McGill and Yale next week. Come say hello!

Next Tuesday, the 29th, I’ll be taking part in a discussion on “Conscience and the Constitution in Canada” at the McGill Faculty of Law (specifically, in NCDH 101). I will be speaking on the conflict between freedom of conscience and state authority, in particular as it played out in the litigation about the constitutionality of the Canadian citizenship oath, about which I have written a great deal here. The other participant will be Brian Bird, a doctoral candidate at McGill, who will be speaking about the legal history of freedom of conscience in Canada. The fun starts at 1PM and goes on until 2:15.

By the way, this event is organized by the Runnymede Society, which is a new group that aims at fostering conversations and debates on matters constitutional in Canadian law schools, and in particular at presenting students with a broader range of views and perspectives than they might otherwise be exposed to. I think it is a very exciting and useful project, and I am very excited to be taking part in one of their first events. Thanks to the Runnymede Society’s president, Joanna Baron, for inviting me!

And next Thursday, the 31st, I will be moderating a panel on “Popular Sovereignty and a Québec Constitution” at the Symposium on Does Québec Need a Written Constitution?,which will be taking place at Yale, in Luce Hall (LUCE), Room 203. The proceedings start at 9:45, and the panel that I’ll be chairing ― and on which Maxime St-Hilaire (a sometime guest here at Double Aspect), Mark Walters, and Nelson Wiseman will be speaking starts at 1PM. Many thanks to Richard Albert, the convener of the Symposium, for inviting me to do this.

If you are able to attend either event, please come say hello!

A Parade of Horribles

I wrote yesterday about the decision of the Court of Appeal for Ontario in McAteer v. Canada (Attorney General), 2014 ONCA 578, which upheld the constitutionality of the oath of allegiance to the Queen which would-be Canadian citizens are required to swear. As I said in that post, I believe that that the Court’s decision is profoundly wrong, as was that of the Superior Court (McAteer v. Attorney General of Canada, 2013 ONSC 5895). In my view, the Court of Appeal (and the Superior Court before it) was wrong to focus on the applicants’ mistaken interpretation of the oath of allegiance as a commitment to the person of the monarch rather the notion of a (constitutional) Crown. The fact that the applicants misunderstand the oath and they exaggerate the obligations that taking it would impose on them cannot end the inquiry into the oath’s constitutionality.

Before explaining why this is so, however, I want to highlight two problems with the Court’s discussion of the meaning of the oath. These problems might not be fatal. I take the point that, as for example Philippe Lagassé explains, the reference to the Queen in the citizenship oath really is a reference to “the state and the source of all sovereign authority,” so that the Court of Appeal is right about the oath’s legally correct meaning. My objection is, as I will explain below, that this is really beside the point. Still, some of the Court’s arguments are problematic, and may colour the rest of its analysis, so they are worth pointing out.

One problem I see is with the Court’s discussion of the history of the oath of allegiance and its place in our constitutional structure is incomplete in that it begins with the Royal Proclamation of 1763 and the Quebec Act, 1774 ― and thus ignores the history of oaths of allegiance in England. The Court uses this history to present the oath as egalitarian and inclusive by virtue of its lack of religious test, while masking its authoritarian origin in the times of Henry VIII and his struggle to assert not only his religious, but also his secular power following his break with Rome, detailed in an excellent recent paper by Liav Orgad. This is, in my view, something of a historical whitewashing. The oath of allegiance is certainly less burdensome now than it used to be, but if one relies on its historical significance, one cannot ignore its origins.

The other point I want to make here concerns the Court’s invocation of the “principle of harmonization” to “suggest” ― although not, as I read the decision, to hold ― “that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter” (par. 58) because it is virtually identical to an oath which the Constitution Act, 1867 requires members of Parliament to swear and which, being constitutionally entrenched, cannot be invalidated on Charter grounds. The Court is simply wrong here. On its logic, since a house of a legislature is authorized to exclude media by virtue of its constitutionally entrenched parliamentary privilege, there would be no constitutional difficulty with a court doing so either; yet the Supreme Court has held that the exclusion of the media from a courtroom infringes s. 2(b) of the Charter, and that while the existence of a discretionary power to exclude is justified under s. 1, this power must be exercised with the Charter in mind. Immunity from Charter review conferred by constitutional entrenchment is an exception, and there is no reason to extend it to rules which are not constitutionally entrenched.

Whatever role these errors have played in its reasoning, the crucial, fatal flaw in the Court of Appeal’s decision is the weight it gives to the applicants’ misunderstanding of the oath. The Court repeatedly cites a passage from R. v. Khawaja, 2012 SCC 69, at par. 82, where the Supreme Court held that “a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality,” but it is inapposite. Even assuming that this holding applies beyond the context of allegations chilling effect, in which it was specifically made (the full sentence, from which the Court only cited an excerpt, is: “a chilling effect that results from a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality” (emphasis mine)), it does not apply to the oath because the oath is not a “provision.” An oath, as I argue in a forthcoming paper, is not a simple statutory command to do or not to do something. It is an appeal to a the oath-taker’s conscience; it requires the oath-taker to work out the exact nature and scope of the duties it imposes. Oaths are typically (although admittedly not always) required when these duties are impossible to delineate with sufficient specificity, and thus cannot be codified in a statutory provision. The duty of loyalty imposed by the oath of allegiance is a perfect example. The Citizenship Act does not define what it means for citizens to be loyal, to “bear true allegiance” in the words of the oath. Citizens must do that themselves. So while it makes sense to reject an idiosyncratic interpretation of a statutory command, one cannot so easily dispose of a subjective understanding of an oath. The failure to appreciate this taints the Court’s analysis under s. 1 of the Charter, and is at least partly responsible for its rejection of the applicants’ claims that the oath infringes their right to freedom of conscience and religion.

However, before it gets there, the Court commits another blunder by finding that the imposition of the oath does not infringe the freedom of expression of those who must swear it. It the Court’s view, the purpose of the oath is not to “control expression,” while its effects on freedom of expression are merely incidental and do not deserve disapprobation. The claim that a requirement to make a statement with an obvious expressive content does not aim at “controlling expression” is astonishing. The Court asserts that “[t]he substance of the oath and the history of its evolution also support the conclusion that the oath does not have a purpose that violates the Charter” (par. 74), but however innocuous or even worthy the contents of the oath might be, there is no getting away from the fact that the requirement to swear it is a requirement to engage in expression. Indeed, as the Court itself says with approval, “[t]he application judge held … that the purpose of the oath ‘is … one of articulating a commitment to the identity and values of the country'” (par. 72; emphasis added). How one can find that requiring people to a articulate a commitment does not control their expression is beyond me.

Despite its finding that the oath does not infringe s. 2(b) of the Charter, the Court of Appeal moves on to a s. 1 analysis. This draws heavily on the judgment at first instance, and my criticism of that decision applies to that of the Court of Appeal. The Court’s “reasoning” is largely conclusory, such as its bald, unexplained assertion that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It ignores the alternative forms of the oath that would do a better job of letting people express commitment to Canada and its constitution because they would be better understood. It notes but fails to seriously address the pervasive misunderstanding of the current oath, which extends to government officials, and does not question the capacity of such a widely misunderstood oath to have any meaningful positive effects on those who take it or for their fellow citizens.

Then again, perhaps the Court reveals (albeit unwittingly) its true opinion of the worth of the oath when it notes complacently that a person who swears it is free to recant it without any sort of consequence. Imagine, for a second, a witness who recants his oath to tell the truth; and then imagine, further, a judge who tells him that this doesn’t really matter. The Court is oblivious to the incoherence of asserting that the oath is not a real imposition on citizens because it is meaningless and can be dismissed while arguing that it serves a pressing and substantial objective and has obvious salutary effects.

Finally, the Court also errs in its treatment of the freedom of conscience religion claims. For one thing, because it fails to appreciate the way in which the oath differs from an ordinary statutory command by enlisting the conscience of the person who swears it, the Court again overemphasizes the applicants’ misunderstanding of the oath. As I explain at greater length my paper, in matters of conscience and religion, subjective understandings are determinative, even if mistaken by some external standard. For another, the Court is wrong both to reject the remedy of exempting those who object to the oath from the obligation to take on the ground that such an exemption would undermine its secular character, and to implicitly conclude that since the applicants’ proposed remedy is unavailable, their substantive claim must be rejected. First, exemptions for religious (and arguably conscientious) objectors have been granted and considered by the Supreme Court, without any argument to the effect that they undermined the secular nature of the rules involved. The fact that Sikh students can wear their kirpans to school in derogation to the general rules prohibiting weapons does not undermine the secular character of these rules. But even if an exemption were not a permissible remedy, the obvious alternative is to invalidate the requirement for everyone, not to maintain it. (This is the Supreme Court’s approach in cases of cruel and unusual punishment ― the Court regards exemptions to mandatory minimum sentences as inappropriate in that context, and requires the mandatory minimum to be struck down.)

The applicants have already said that they would appeal to the Supreme Court. Adam Dodek has tweeted that he expects the Supreme Court to deny leave and, for what it’s worth, I suspect that he is right. But it would be nice if we were wrong. The decision at first instance in this case was bad, and the Court of Appeal’s is, if anything, even worse. It is a parade not merely of mistakes, but of judicial horribles. A cynic who wanted to argue that it is the product of a purely result-oriented reasoning would have some evidence to back up his claim. Regardless, this ruling ought not to be left to stand.