Scandalizing!

Read Edward Willis’ and my submission on legislation that would censor criticism of the judiciary

A few weeks ago, I wrote about a bill, currently before the New Zealand Parliament, which would codify ― and expand ― the law of contempt of court, in particular as it relates to criticism of the judiciary. (At common law, this is known as the offence of “scandalizinig the court”.) I argued that the offence the bill would create is overbroad, that the defences to it are insufficient, and that the bill, if enacted, would unjustifiably violate the freedom of expression, the freedom of conscience, and the presumption of innocence.

Well, for once, I thought that just ranting on my blog was not enough, so Edward Willis and I started to work on a submission to the Justice Select Committee, which will be studying the bill. We have been joined by my boss, Charles Rickett, my colleagues Warren Brookbanks and Vernon Rive, as well as Andrew Geddis and Eddie Clark, in arguing that, if the provisions related to criticism of the judiciary are not removed from the bill entirely, they need at least to be amended to be more compliant with fundamental constitutional principles and rights. In particular, we propose making the falsity of any statement punishable as contempt an element of the offence, to be proven beyond a reasonable doubt by the prosecution, rather than a defence to be proven the accused; introducing a defence of honest opinion; and removing the ability of the Solicitor General to request, or of the High Court to order, that a person correct, retract, or apologize for a statement that has not been proven to constitute contempt of court; indeed we are proposing getting rid of forced corrections and apologies entirely.

You can read our submission here. Working on it with Dr Willis has been great fun, and I’m very grateful to our co-signatories for their help and support.

Remarks on Bill C-76

Freedom of expression issues in an electoral reform bill

Earlier today, I had the chance to address the House of Commons Standing Committee on Procedure and House Affairs, which is currently studying Bill C-76, a significant reform package for the Canada Elections Act. I am very grateful to the Committee for inviting me ― though I wish I’d been given more than just a few days to prepare ―, and also to its staff for making it possible for me to speak from an ocean and a continent away.

My remarks focused on the freedom of expression issues that C-76 fails to address or indeed amplifies in what I think is a dangerous quest to stop the “permanent campaign” ― dangerous because the only way to really stop the permanent campaign would be to impose permanent censorship on political debate. (Scott Reid, a Conservative member of the Committee asked me about this, and I said that I hope that Parliament will not go that far ― but I am worried that accepting the principle of regulating political speech outside of the electoral campaign period, we will not stop at just a couple of months, as C-76 does, for now.) More generally, my point was that members of the civil society ― whom election law denigrates by describing them as “third parties” ― should be heard, even at election time.

Here are my remarks. (The Chair’s reference to a miracle is due to some technical issues that prevented me from connecting to the meeting on time… but all’s well that ends well!)

The Real Contempt

New Zealand’s Parliament considers legislation that would shield courts from criticism ― and make them instruments of censorship

I do not write about New Zealand very much, although I have been living here for a year and a half. Perhaps it is as well. If the Administration of Justice (Reform of Contempt of Court) Bill currently before the Justice Select Committee of New Zealand’s Parliament is enacted into law without substantial amendments, a blog post making “an allegation or accusation … against a Judge or a court [of New Zealand]” and deemed to create “a real [to] undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” could land me in prison for up to two years, or get me fined $50,000.

Now, much of the Contempt Bill, developed by the New Zealand Law Commission as part of an effort to clarify and update the law of contempt of court, seems to be a worthwhile project. But the provisions relating to criticism of the judiciary are dangerous. They are overbroad, infringe the presumption of innocence and freedom of conscience as well as freedom of expression, and rely on a dangerous amount of discretion in their enforcement.  Even if they are not applied to the fullest extent of which they are capable ― and, as I will explain below, I think they are meant not to be ― these provisions will have a chilling effect on lawyers and laypersons alike who might want to comment on the courts, whether in the media, on blogs, or in scholarship. They ought be amended or indeed abandoned altogether.

In a recent post, for instance, I argued that the Supreme Court of Canada had a “pro-regulatory bias”; previously, I criticized Chief Justice McLachlin for “tak[ing] up a partisan slogan” ― Pierre Trudeau’s “just society” ― “and try[ing] to make it into a constitutional ideal”, and mused about the corrupting effects of power on chief justices generally. If I criticize New Zealand’s courts and judges in similar ways, I think it would be fair to say that I would be making “accusations or allegations” that could, at least if read more widely than this blog normally is, “undermine public confidence in the … integrity or impartiality” of their targets. And while I know that not everyone is a fan of my sometimes strongly-worded opinions, I wouldn’t be the only one to fall foul of the Contempt Bill. The cover article of the New Zealand Law Society’s magazine this month is called “Bullying from the bench“, and its very first sentence is: “Bullying judges are identified and discussed whenever lawyers get together”. The same Law Society, meanwhile, is investigating a lawyer, Catriona MacLennan, for calling a judge unfit for the bench after he let off a man accused of domestic violence on the basis that “many people … would have done exactly” the same. Perhaps if the Contempt Bill is passed the Law Society will have a chance to rethink its position as it joins Ms MacLennan among those charged with undermining public confidence in the integrity of the judiciary.

These examples make clear, I hope, that the criminalisation of “accusations or allegations” that “could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” can capture a vast range of perfectly legitimate, indeed absolutely necessary, criticism. While the Contempt Bill (and the Law Commission’s report) seem to suggest that only “untrue” statements are being targeted, this word appears only in the headings of Subpart 6 of Part 2 and of Clause 24 of the Bill  ― not in the text of subclause 24(1) which defines the offense. Rather, the truth (or material truth) of an “allegation or accusation” is, by subclause 24(3), made a defence to a charge under subclause 24(1) ― if the accused can prove the truth of the “allegation or accusation” “on the balance of probabilities”.

This is nowhere near enough to circumscribe the scope of the offence. For one thing, many “accusations or allegations” against the judiciary (such as my claims about pro-regulatory bias, or arguably Ms MacLennan’s views about the unfitness of the nothing-wrong-with-domestic-violence judge) are matters of conjecture or opinion: they are inherently incapable of being proven true. For another, ostensibly factual statements that could in theory be true or false can be made for rhetorical effect, and fail to be “materially true” even though they make a legitimate and easily discernable point (such as the claim about lawyers always talking about bullying judges). Besides, the requirement that an accused prove the truth of a statement when only “untrue” ones are thought to be worthy of being criminalized sits uneasily, to say the least, with the presumption of innocence (protected by paragraph 25(c) of the New Zealand Bill of Rights Act 1990). To be sure, in Canada, a similar truth-as-a-defence provision was upheld as a justified limitation on the right to be presumed innocent in R v Keegstra, [1990] 3 SCR 697. But what is justified in the context of a very narrow proscription of hate speech might not be in the context of a much broader ban on criticizing a branch of government and its officials.

Moreover, it seems to me that asking judges to rule that “allegations or accusations” calling into question the impartiality or integrity of colleagues, let alone hierarchical superiors, are true is putting both them and the accused forced to make that case in an exceedingly difficult position. (Of course, any suggestion that judges might be reluctant to impugn the impartiality or integrity of fellow-judges into question is itself an “accusation” that could “undermine public confidence” in their impartiality and integrity ―  and one that is inherently incapable of being proven true.) In Canadian law, there is a principle of fundamental justice according to which any defence to a criminal charge “should not be illusory or so difficult to attain as to be practically illusory”: R v Morgentaler, [1988] 1 SCR 30 at 70 (per Dickson CJ);  R v St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187) at [77]. While the New Zealand Bill of Rights Act does not require such principles to be followed before a person can be imprisoned, this still seems like a sensible moral guideline. The Contempt Bill does not comply with it.

The Contempt Bill’s provisions on criticism of the judiciary have other serious problems, besides the breadth of the offense it creates and the narrowness if not the illusory character of the defence of truth. Instead of, or in addition to, prosecuting a person for having made “allegations or accusations” against the judiciary, the Solicitor-General is empowered, under subclause 25(2) to “request” a retraction or an apology ― including a retraction pending the determination of that person’s guilt. The Solicitor General can also apply, under subclause 26(1), for an order of the High Court requiring, among other things, a retraction or an apology. Such an order is to be granted if the Court is “satisfied that there is an arguable case that” prohibited “allegations or accusations” have been made. Such orders must, under subclause 26(5) be consistent “with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990”, but non-compliance can, under clause 27, lead to stiff fines ― and “knowing or reckless” non-compliance to imprisonment too.

This, in my view, is inconsistent with the freedoms of expression and conscience, as well taking further liberties with the presumption of innocence. The Solicitor-General’s “requests”, backed by the implicit threat of hauling a non-compliant person before the High Court, will at least produce a chilling effect, if not be outright coercive. “Requests” to retract statements that have not yet been judged to be illegal ― with perhaps, wink wink, nudge nudge, the possibility to avoid prosecution as an inducement ― are especially disturbing. But the prospect of court-ordered apologies is even worse. Persons who are being coerced, by threat of imprisonment, into apologizing are being made to say something they do not believe in and, in an affront to freedom of conscience, also to express a moral judgment about their own culpability which they presumably do not share. A liberal state cannot extort such moral judgments from its citizens. As Justice Beetz, speaking for a majority of the Supreme Court of Canada in “additional reasons” in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, said of a labour arbitrator’s order that a bank sign a letter endorsing the objectives of labour legislation, “[t]his type of penalty is totalitarian and as such alien to the tradition of free nations like Canada,” ― or New Zealand ― “even for the repression of the most serious crimes”. (296) Whatever the Contempt Bill might say about respecting the Bill of Rights Act, it is not possible to make such orders with violating the freedom of expression and the freedom of conscience of their targets.

The fact that these orders could be made, not upon a finding of guilt beyond a reasonable doubt or even on a balance of probabilities, but merely if there is an “arguable case” that a person has published “an allegation or accusation” that creates “a real risk” of “public confidence in the independence, integrity, or impartiality of the judiciary or a court” being “undermined” only compounds the iniquity of the Contempt Bill. To be sure, the orders are, ostensibly at least, a form of civil remedy ― though note Justice Beetz’s description of the arbitrator’s letter as a “penalty”. Thus the New Zealand Bill of Rights Act’s protection for the presumption of innocence, which only extends to persons “charged with an offence”, does not apply. Yet the low burden of proof required for a retraction or an apology order means that rights can be interfered with on the basis of a weak showing by the government, even one that is less likely than not to be justified, and so go against the principle of respect for individual rights if not the right to be presumed innocent itself.

Finally, it is worth highlighting the fact that the Contempt Bill quite clearly contemplates that the enforcement of its proscription on “allegations or accusations” against the judiciary will be highly discretionary. Prosecutions are required to be “in the public interest”, (subclause 25(4)) and “may consider” the existence of any complaints about a judge and “any explanation provided by the Judge” (subclause 25(5)). This, I think, is a tacit admission of drafting failure. The Contempt Bill’s authors implicitly recognize that it is overbroad, and hope that the good judgment of prosecutors can be relied on to avoid fining or imprisoning people for legitimate criticism of the judiciary. This is not good enough. The chilling effect of the criminalisation of such criticism will be felt even if there are no abusive prosecutions, as those who write about the courts constantly watch their words and wonder whether they are crossing the line that exists in the prosecutors’ minds. And there is something perverse for a bill that sets out to clarify the law and give citizens fair notice of their responsibilities vis-à-vis the justice system to rely on prosecutorial discretion to avoid these responsibilities becoming a crushing burden.

The Contempt Bill’s provisions restricting criticism of the judiciary must not be enacted in their current form. Whether any such provisions should be enacted at all is something I still need to think through. If enacted, however, they ought at a bare minimum to make room for what Lord Denning MR described, in R v Com’r of Police of the Metropolis, Ex parte Blackburn (No 2), [1968] 2 QB 150 (CA) as “the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest”, including by saying that a court is “mistaken, and [its] decisions erroneous, whether they are subject to appeal or not” (155) ― and including, too, if the commenter him- or herself is in error. New Zealand’s Parliament should take the advice of Lord Denning when he said that his court would not invoke its powers to find a person in contempt “as a means to uphold [its] own dignity. That must rest on surer foundations.” (155) That this power would now  come from statute rather than the common law does not change matters. New Zealand’s courts are independent, and therefore should, just like the English Court of Appeal, “not fear criticism, nor …  resent it”. (155) If anything, it seems to me that the courts’ dignity is more endangered by legislation that would make them into instruments of censorship than by criticism.

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 $100 Question, in Court

A challenge to Québec’s harsh limits on political contributions has a decent chance of succeeding

As reported last week by Le Soleil, a citizen of Québec, Yvon Maheux, is challenging the constitutionality of both the province’s $100 yearly cap on donations to political parties and some of the collateral consequences of a conviction for infringing this cap. In my view, much of the claim has considerable merit, and at least a reasonable chance of success. As I wrote when Québec was first considering lowering the amount its citizens were allowed to contribute to political parties from $1000 to $100, such a low limit is quite clearly unconstitutional, given the Supreme Court’s recognition that spending money to advance one’s political views is a form of expression that is entitled to the protection of the Canadian Charter of Rights and Freedoms.

As Mr. Maheux’s notice of constitutional question (kindly provided to me by his lawyer, Antoine Sarrazin-Bourgouin, whom I thank) explains, in 2016 he paid a provincial party, the Coalition Avenir Québec, $100 for taking part in a breakfast it organized, and then another $100 as a fee to take part in the party congress. For his trouble, he was prosecuted for breaching the $100 yearly cap on donations to political parties, provided for by section 91 of Québec’s Election Act. Section 564.2 of that Act provides that, if convicted, Mr. Maheux will face a minimum fine of $5000. Moreover, the infringement of the contribution cap is deemed a corrupt electoral practice (section 567), meaning that a conviction carries a number of additional consequences ― notably the disqualification from voting or running for office, as well as the loss of “the right to engage in partisan work”, both for five years (section 568).

This is a draconian regime. For one thing, the contribution limit is remarkably low. For another, the consequences for breaching it are astonishingly severe. Neither the Canada Elections Act nor Ontario’s Election Finance Act, for example, impose a mandatory minimum punishment for financial offences; nor do they deem making an excessive contribution a corrupt practice; nor do either Parliament or Ontario strip persons convicted of corrupt practices of their “right to engage in partisan work”. New Zealand ― which of course does not limit contributions to political parties at all, and is the least corrupt country in the world nonetheless ― does nothing of the sort either.

But does draconian, in this instance, also mean unconstitutional? The cases raises a number of distinct constitutional issues. The first is whether the infringement of the freedom of expression effected by the limitation of contributions one can make to a political party is justified under section 1 of the Charter. (That the limitation is a prima facie infringement of the freedom of expression must follow from the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although these cases concerned spending independent of parties.) The other issues have to do with the constitutionality of the various consequences of a conviction for breaching the contribution limit.

Regarding the constitutionality of the limit itself, there is no precedent directly on point, I think, but it seems to me that the Québec government will be hard-pressed to show that it is minimally impairing of the freedom of expression. A legislature is entitled to some, perhaps considerable, deference in a line-drawing exercise of this sort ― Libman and Harper indicate that the courts will accept that there ought to be some limit on contributions, and any given figure is bound to be somewhat arbitrary. Still, deference can only extend so far; there is a range of acceptable alternatives, but this range is not infinite. And even if a higher limit would (of course) be somewhat less likely to attain the legislation’s anti-corruption objectives, the issue, as Chief Justice McLachlin’s majority opinion … put it, is only “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner“. That no other jurisdiction in Canada (and perhaps elsewhere) has seen it fit to set a contribution limit anywhere near this low is a strong indication that Québec’s purposes can be substantially achieved through less drastic means.

The $100 limit also fails, I think, at the final stage of the section 1 analysis, which concerns proportionality between the rights limitation’s benefits and its effects on the rights claimants. These effects, in this case, are significant; indeed, the limit renders Quebeckers’ right to contribute financially to a political party of their choice virtually nugatory. Mr. Maheux’s personal story is an eloquent illustration of this fact. So is the simple arithmetic that shows that a donation of $2 a week would be illegal. This all is particularly galling because the Supreme Court’s law of democracy jurisprudence ― especially Harper but also, before it, Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912 ― suggested that participating in the activities of political parties was  political participation par excellence, to be valued and protected above others, as I explained here. Québec’s restrictive approach to political financing means that individuals such as Mr. Maheux can be prevented from developing their engagement with political parties, even as they are also prevented from participating in political debates as “third parties”, by spending money on advertising during electoral campaigns. Politics in Québec risks becoming even more of an insider activity ― ostensibly in the name of a fight against corruption. This makes no sense to me.

As for the consequences of conviction, there are three distinct issues. The first one is whether the disenfranchisement of those convicted, which is an obvious infringement of the right to vote protected by section 3 of the Charter, can be justified under section 1. In Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876, the Supreme Court upheld the disenfranchisement, for five years, of a member of a provincial legislature who had been convicted of trying to induce a person who was not entitled to vote to do so. Harvey was, of course, decided before Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which struck down the general disenfranchisement of prisoners serving sentences of two years or more, but I don’t think that Sauvé calls it into question. The Harvey court accepted that the temporary disenfranchisement of those convicted of corrupt electoral practices was a proportionate way of pursuing the specific purpose of protecting the integrity of elections, with which the general disenfranchisement provisions at issue in Sauvé had nothing to do.

That said, accepting that legislatures can disenfranchise people who compromise the integrity of the democratic process, the question is how far this principle extends. We wouldn’t accept, I think, the disenfranchisement of people who negligently infringe some technical rule about the reporting of a candidate’s expenses. But, again, how do we ― and, more to the point, how does a court ― draw lines? Again, I am not aware of judicial guidance on this point, but looking at what other jurisdictions do is instructive. The lists offences that are labelled as corrupt (or illegal) practices and can lead to disenfranchisement are not identical, but both federally (in section 502 of the Canada Elections Act) and in Ontario (in section 97.1 of the Election Act) the focus is on interference with the composition of electorate (involving voting under various false pretenses or, conversely, preventing electors from voting), or the process of casting ballots. An individual exceeding contribution limits is not deemed guilty of a corrupt practice. Although it is far from certain that the Charter prohibits this, there is, I think, at least a viable argument to be made for this proposition.

The next, related, issue is whether it is permissible not only to disenfranchise a person found guilty of having engaged in some form of corrupt practice, but also to deny him or her the “right to engage in partisan work”. As mentioned above, I do not think that any Canadian jurisdiction except Québec does it; I don’t know if any other democratic country does. The prohibition is an obvious infringement of the Charter freedoms of expression and of association. Can it be justified? Once more, I am not aware of judicial decisions directly on point, but it is possible to venture a few observations. One is that Québec is deliberately targeting political expression and association, which are at the heart of the Charter‘s protections. Another is that it’s not obvious how a ban on “partisan work” is connected to the integrity of the electoral process as such, or even of the political financing regime; at the very least it is seriously overbroad, because much of what might be fairly described as “partisan work” ― a term that Québec’s Election Act does not define, but uses in a number of provisions that suggest that it should be given a broad meaning ― has nothing to do with with either voting or fundraising. Third, once again the experience of other jurisdictions suggests that Québec’s ban is not minimally impairing, and indeed that it is likely quite unnecessary. And fourth, given its breadth, the ban’s deleterious effects on those subject to it surely outweigh whatever social benefits it might be said to have.

Finally, in his notice of constitutional question, Mr. Maheux indicates that he will argue that the cumulative effect of these various sanctions ― not any of them individually, mind you ― amounts to a violation of the prohibition on cruel and unusual punishments in section 12 of the Charter. The test here is whether the punishment is grossly disproportionate, compared to the one that would have been appropriate in the circumstances. This is of course a highly subjective assessment, and I am pretty skeptical of this claim as a standalone ground for constitutional challenge. If a court grants Mr. Maheux’s claims under sections 2 and 3 of the Charter, it is superfluous to consider the section 12 argument. If it thinks that the infringements of sections 2 and 3 are individually justified, I can’t imagine it holding that collectively they are grossly disproportionate; this would strike me as an odd result.

Be that as it may, Mr. Maheux’s challenge is mostly serious and, while we lack specific, on-point guidance from the courts because the provisions of Québec’s Election Act at which it is aimed are so unique, I think it has at least a reasonable chance of success ― perhaps even a very good one. At the level of political morality, the legislation that Mr. Maheux is attacking is indefensible. It is vastly more repressive than it needs to be, and appears to have been enacted in complete disregard of the rights of those affected by it (as well as of the desirability of a competitive political system). I hope that the law recalls Québec’s legislature both to its constitutional duties and to its senses.

A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”. Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. But as Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter’s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.

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.