Bad Taste

Overzealous prosecutors in Québec charge the author and publisher of a novel with child pornography for describing a rape

Québec has a bit of a history when it comes to ludicrous prosecutions of people for their exercise of their freedom of expression. And I’m not talking about Maurice Duplessis’s time here. What I have in mind are the cases of Rémy Couture, a make-up artist who was put on trial for having produced some (admittedly gruesome) pictures and videos, and Matthieu Bonin, charged with hate speech (!) for an online rant apparently suggesting that a shooting at the National Assembly would be a good idea, though these charges were eventually dropped. Both of these took place earlier this decade. And now, they have been joined by the prosecution, on child pornography charges, of Yvan Godbout and Nicolas Doucet, respectively the author and publisher of a horror novel that depicts, on one of its 270 pages, the rape of a child.

Now, I haven’t read the novel (which doesn’t exactly sound like the sort of novel I’d read, anyhow). Since the publishing house is now busy tracking down all existing copies to hand them over to the provincial police, and worrying whether anyone who’s bought one already might be charged, there is no chance that I, or anyone, will. But La Presse quotes both a representative of the publisher and another writer as saying that the scene that forms the basis of the prosecution serves to expose the rapist as a “monster”, and that he is eventually “harshly punished”. It is very difficult to believe that a fair-minded reading of such a scene ― again, one scene in a novel ― would fit under the Criminal Code‘s definition of child pornography as “written material … that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence” or “written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence”.

Moreover, the Criminal Code provides a defence to any person who “has a legitimate purpose related to … art; and … does not pose an undue risk of harm to persons under the age of eighteen years”. The Supreme Court has explained, in R v Katigbak, 2011 SCC 48, [2011] 3 SCR 326, that this requires “an objective connection between the accused’s actions and his or her purpose, and … an objective relationship between his or her purpose and one of the protected activities”, [60] in this case art. Relying on what is said in the La Presse report, there seems to be little question that these requirements will be satisfied here. Besides, the Supreme Court added that “this objective assessment does not involve the court in any assessment of the value of the particular … artistic activity in question”. [61] Whether Mr. Godbout wrote and Mr. Doucet published a book that is great art, or even in good taste, is irrelevant. What matters is that the book in question is art, whether good or bad.

As the Supreme Court rightly noted, the courts ― and, it might have added, prosecutors ― are not well placed to be artistic critics. Their role is not to be the censors who will purify society’s morals and elevate its tastes. Lawyers and judges are not qualified for this job, and should not want to take it up even if they were. The risks of arbitrary enforcement, as well as the certainty of chilling effect on artistic freedom, would not be acceptable in a free society. A lawyer ― and any citizen who values his or her and others’ freedom ― can, however, confidently say that the Québec prosecutors’ tendency to go after unconventional artists is in very bad taste indeed.

H/t Maxime St-Hilaire and Patrick Taillon

Australia 1:0 Canada

Canadians have much to learn from the Australian High Court’s take on election spending limits for “third parties”

The High Court of Australia has just delivered Unions NSW v New South Wales [2019] HCA 1, a decision that should be of interest to readers who are concerned with freedom of expression in the electoral context ― a topical issue in Canada, given the recent imposition of further restrictions in this area by the recently enacted Bill C-76. The decision resulted from a challenge by a number of labour unions to New South Wales legislation that reduced the maximum amount a “third party” ― that is anyone not a candidate at an election or a political party ― is allowed to spend on campaigning in a nearly-six-month period preceding an election, from 1,050,000AUD (jut under a million Canadian) to 500,000AUD. The High Court unanimously held that the legislation was contrary to the implied freedom of political communication, which it had previously read into the Australian constitution‘s provisions requiring “representative” government.

The plurality judgment, by Chief Justice Kiefel and Justices Bell and Keane, finds that the third party spending limits are unconstitutional. That they restrict the ability to communicate is not in dispute. And while the plurality is prepared to assume that these limits are imposed for the legitimate purposes of levelling the campaigning playing field and preventing the wealthy from “drowning out” the voices of the less fortunate, they are not justified. Experts consulted prior to the enactment of the legislation provided no particular justification for recommending that the then-existing spending limits be reduced. A Parliamentary committee, however, recommend that the legislature look into the actual spending needs of third parties, and this was not done either. As a result, there is no reason for saying that the reduced limits are “reasonably necessary”.

Justice Gageler agrees with the plurality’s disposition of the case. He is persuaded of the legitimacy of the state’s pursuit “of substantive fairness in a manner compatible with maintenance of the constitutionally prescribed system of representative and responsible government”. [91] This might, in principle, justify much lower spending limits for third parties, which campaign on single issues, than for parties that must address a broad range of issues in their quest to form a government. However, “[i]t is not self-evident, and it has not been shown, that the cap set in the amount of $500,000 leaves a third-party campaigner with a reasonable opportunity to present its case”. [101] Absent such a showing, the restriction on the freedom of communication is not justified.

Justice Nettle’s conclusion is similar. He accepts the legitimacy of the objective of creating a level electoral playing field ― one on which political parties will be primary players ― and agrees that a legislatures may from time to time review the measures it takes to ensure fairness, including by lowering spending caps previously enacted. However, there must be a justification for whatever measures it takes from time to time. Such a justification is missing in this case. Although it was recommended that more evidence on the needs of third parties be collected, “for reasons which do not appear, that recommendation went unheeded. It is as if Parliament simply went ahead … without pausing to consider whether a cut of as much as 50 per cent was required”. [117]

Justice Gordon, like the plurality, assumes that restrictions on third party spending pursue a legitimate purpose, which she characterizes as the privileging of political parties and candidates. However, in the absence of evidence about the actual need for restrictions set at their current level, “the Court … cannot be satisfied that the level of the expenditure cap is reasonably appropriate and adapted to achieve the asserted constitutionally permissible end”. [150] It was for the State to show that the restriction it seeks to impose was justified, and it has not done so.

For his part, Justice Edelman considers that the reduction in the spending limits imposed on third parties, even as the limits imposed on political parties rose, cannot be explained by the purposes of maintaining a fair and corruption-free electoral system. Rather, it must have had an “additional purpose”, which “was to ensure that the voice of third-party campaigners was quieter than that of political parties and candidates”. [159] In other words, the reduction’s aim was “to burden the freedom of political communication of third-party campaigners”. [160] Justice Edelman considers that, although laws that rely on the relative silencing of some views in order to ensure that all can be heard are legitimate, to aim only at silencing some voices “is incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, and legislation so motivated is “invalid”. [160]

Needless to say, I am not qualified to comment on whether the High Court is correct as a matter of Australian law. What I can do is compare its decision with that of the Supreme Court of Canada in Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827, which addressed much the same issues. (Readers will recall that I am not a fan of Harper, to put it mildly, and included it in my list of the Supreme Court’s five worst decisions of the last half-century in this blog’s recent Twelve Days of Christmas symposium.)

This is most obviously so on the issue of deference to the legislature on the issue of the appropriateness of a limitation of the freedom of (political) expression, and the evidence required for the government to make this case. The Harper majority insisted that courts should approach legislative choices with deference. In its view, “[t]he legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case”, and that “a reasoned apprehension of … harm” [Harper, 77] is sufficient to restrict fundamental freedoms protected by the Canadian constitution.

This approach is explicitly rejected in Unions NSW. While the Australian judges avoid directly criticizing the Harper majority, both the plurality opinion and Justice Nettle explicitly side with the “strong dissent” of Chief Justice McLachlin and Justice Major (joined by Justice Binnie). The plurality takes a dim view of the submission “that Parliament does not need to provide evidence for the legislation it enacts [and] is entitled to make the choice as to what level of restriction is necessary to meet future problems”. [44] When legislative choice are made in a way that burden the freedom of political communication, they must be justified. Similarly, Justice Gageler speaks of the need for a “compelling justification”, and insists that “[i]f a court cannot be satisfied of a fact the existence of which is necessary in law to provide a constitutional basis for impugned legislation, … the court has no option but to pronounce the legislation invalid.” [95] Justice Gordon insists that “the Court must … be astute not to accept at face value the assertion that freedom of communication will, unless curtailed by a reduction in the cap to $500,000, bring about corruption and distortion of the political process”. [148]

Another point of contrast between Harper and Unions NSW is the treatment of the so-called “egalitarian model of elections” designed in part to favour the interests of political parties and candidates over those of the civil society groups, disparagingly consigned to the status of “third parties”. According to Harper, election campaigns must focus attention on parties and candidates, including by ensuring that any other participants in the public debate, except the media, will behave unobtrusively. By contrast, the plurality opinion in Unions NSW explicitly rejects the submission that candidates and parties deserve preferential treatment, advanced in part on the basis that elections are “not a choice between ideas, policies, views or beliefs except insofar as such choice may be reflected in the electoral choice between candidates”. [39] Rather, the plurality says, “ss 7 and 24 of the Constitution guarantee the political sovereignty of the people of the Commonwealth by ensuring that their choice of elected representatives is a real choice, that is, a choice that is free and well-informed” [40] ― including by third parties. Justice Gageler, of course, takes the contrary view on this point. Justice Edelman’s position is more complex. He explicitly endorses “a Rawlsian, egalitarian model” [178] in which spending limits prevent some speakers from “drowning out” others. However, he also considers that it is not legitimate to target particular speakers for silencing apart from such an anti-drowning out purpose.

A last difference between Harper and Unions NSW worth highlighting is recognition by Justice Gageler of “the propensity of an elected majority to undervalue, and, at worst, to seek to protect itself against adverse electoral consequences resulting from, political communication by a dissenting minority”. [66] Justice Gageler refers to prior cases where the risk of a government legislating to limit political competition the better to maintain itself in office was explicitly adverted to. Such legislation, he notes, is incompatible with presuppositions of the Australian constitutional order. Although he finds that, in this case, “[t]here is no suggestion of abuse of incumbency” [85] by one party against others, this clear-eyed position is in contrast to that of the Harper majorityr, which ignored the possibility that incumbent governments favour legislation that excludes “third parties” from electoral campaigns in order to avoid unpleasant criticism and so reduce the odds of losing power.

There are more interesting things in the Unions NSW decision than I have room to discuss in this post. For example, Justice Gageler’s comments about the role courts in finding facts that are relevant to deciding whether a statute is constitutional are in contrast to the position of the Supreme Court of Canada in cases such as Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, and should be very nutritious food for thought for those who are skeptical of the Bedford requirement of deference to trial judges. Justice Eledman’s comments on identifying statutory purpose (and in particular the role of general statements of purpose in the legislation) are also very interesting.

Overall, based on this one decision, I think that Canadians have a great deal to learn from Australians. Admittedly, the length of the High Court’s decisions is a deterrent ― Unions NSW is about 85 pages long, and I take it that it’s pretty short by Australian standards. That’s the cost of so many judges delivering full individual reasons. But the upside is that interesting ideas don’t get swept under the carpet in the process of getting to a set of reasons many judges can sign onto. I’m not saying the Supreme Court of Canada should go back to having each judge deliver his or her own reasons (though I wonder sometimes) but, at any rate, reading the Australian decisions may well be worth our while. In particular, the willingness of the Australian judges to keep a legislature accountable for imposing limits on the freedom of political expression without justification is a welcome reminder that their Canadian counterparts can do much more to protect individual rights in the electoral realm, and elsewhere.

John Finnis and the Law Society

Would the Law Society of Ontario punish a scholar for failing to promote equality, diversity, and inclusion? What about those who defended such a scholar’s academic freedom?

One of the less appreciated issues with the Law Society of Ontario’s demand that its members produce “statements of principles” acknowledging a purported “obligation to promote equality, diversity and inclusion generally, and in [one’s] behaviour towards colleagues, employees, clients and the public” is that it is inimical to academic freedom and the freedom of expression of scholars. This problem is neatly illustrated, however, by the story of the latest attack on an academic who happens to dissent from politically correct views.

The academic in question is John Finnis, “a giant of jurisprudence” in the words of Jeremy Waldron, another such giant himself. Robert George has posted a fairly detailed review of Finnis’s oeuvre (drawn from published work) over at Mirror of Justice (detailed, but still incomplete ― there is, understandably, no mention there of the not insignificant role Professor Finnis played in the patriation of the Canadian constitution; fortunately, he has told the story himself). But the most important point for the present purposes is elided in Professor George’s description: as Brian Leiter put it on his blog, Professor Finnis “has written foolish and sometimes quite ugly things about gay people for years”. And so, as the Guardian reports, “[m]ore than 400 people have signed a petition calling for [Professor] Finnis to be removed from teaching”. Now, there is no allegation that Professor Finnis has actually discriminated against a specific student. The complaint is based entirely on his scholarship which, however distasteful one might find it, is widely regarded as formidable and important ― if also, in many people’s view, profoundly misguided.

Being a generally acknowledged giant and not just an unknown graduate student who can be bullied into submission or chased out of the academy without anyone paying attention, Professor Finnis has been defended by other prominent scholars. Les Green, writing at his blog Semper Viridis, points out that “[t]o fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom”. Professor Leiter use stronger language, writing that the students demanding to be got rid of Professor Finnis “disgrace themselves and their university”. Professor Waldron put it best:

The campaign to have John Finnis removed is preposterous. His views on many things-torture, assisted suicide, sexuality-are uncongenial to some of us … . But defending & elaborating those views doesn’t amount to discrimination[.]

I agree with all this (and, just for the record, I also find Professor Finnis’s views on many things uncongenial, to put it mildly). And so, to come back to the reason for this post, I have a couple of questions for the Law Society of Ontario.

First, if Professor Finnis were a member, would you disbar him? Now, I suspect that he would not in fact conform to the Statement of Principles requirement, much like I and many others, and you’d go after him for that. But suppose he’d ticked the box through oversight. I think it’s fair to say that, whatever their scholarly qualities and interest as an intellectual foil, Professor Finnis’s writings don’t do much for equality, diversity, and inclusion. Would you sanction him for failing to promote these values? Do you think this is compatible with his academic freedom?

And second, what would you make of people like Professors Leiter, Waldron, and Green, assuming that they had not objected to the Statement of Principles requirement? Would you deem speaking out in defence of the academic freedom of a scholar whose work opposes (certain kinds of) equality, diversity, and inclusion a violation of one’s Statement of Principles commitments? After all, if one understands equality, diversity, and inclusion along demographic rather than intellectual lines, as you pretty obviously do, it is at least arguable that defending a scholar with Professor Finnis’s views opposes rather than promotes them. Would you sanction scholars who undertake such a defence because they conclude that, in this instance, academic freedom is a more pressing concern than equality, diversity, and inclusion, on the basis that they fail to “promote” them “generally”? Do you think that would be compatible with academic freedom?

The law society might, I suppose, point to its now-mostly anodyne explanation of what the Statement of Principles requirement is supposedly about, which is largely about complying with anti-discrimination legislation and of no real relevance to academics. Yet the explanation is not the requirement. It has replaced a previous version that spoke of “demonstrat[ing] personal valuing of equality, diversity and inclusion”… and might again be replaced by something that would actually make sense of the never-retracted demand that lawyers ― including lawyers who are academics rather than practitioners ― “promote equality, diversity and inclusion generally”, and not only within their professional relationships with clients, employees, and the like.

In New Zealand, universities are required ― by statute ― to “to develop intellectual independence” in their students, and to “accept a role as critic and conscience of society”. A different provision “declare[s] to be the intention of Parliament … that academic freedom … be preserved and enhanced”, which includes “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. I’m not sure if there is an equivalent legislative framework in Ontario, but at any rate these seem to me to be sound moral guidelines ― principles to abide by, if you like ― for any free society that values learning and scholarship. I’d say that, for an institution that is statutorily required “to protect the public interest”, the Law Society of Ontario shows very little respect indeed for the fact that the public interest requires the existence of people and institutions capable of independent thought, however far astray they may sometimes go in the process of exercising this faculty.

Deuxième Moisson

Tout comme il y a quatre ans, le DGE essaie de censurer une intervention de la société civile dans la campagne électorale québécoise

Les campagnes électorales ont leurs habitudes, leurs rituels. Les autobus, les slogans, les débats des chefs. Certaines de ces traditions sont communes à bien des sociétés démocratiques, d’autres sont plus locales. Une qui est particulièrement québécoise ― mais ne devrait pas pour autant être source de fierté ― c’est la lettre du Directeur général des élections (DGE) sommant un représentant de la société civile qui tente de se prononcer sur les enjeux de l’heure de se la fermer. Le rituel vient d’être renouvelé, comme le rapporte La Presse, avec cette fois Équiterre, dans le collimateur du DGE pour avoir diffusé les résultats d’un questionnaire remis aux principaux partis politiques et portant sur leurs politiques en matière d’environnement.

Je racontais un tel épisode, impliquant les producteurs d’un court documentaire critique du Parti québécois et de sa « Charte des valeurs », alias la Charte de la honte, lors de la campagne électorale de 2014. J’ai dit, à l’époque, que les penseurs et juristes « progressistes » qui ont cherché à limiter le rôle de l’argent en politique en limitant sévèrement les dépenses autorisées en période électorale récoltaient là ce qu’ils avaient semé. Ils s’imaginaient que les limites de dépenses feraient taire les riches, mais en réalité, elles s’appliquent d’abord à avant tout aux étudiantsaux syndicats ou aux individus impopulaires. En 2014, on a visé les défenseurs du pluralisme. En 2018, on vise les environnementalistes. La tendance, encore une fois, se maintient.

Il faut souligner qu’il y a quatre ans, le DGE avait alors fini par faire marche arrière ― au bénéfice de la liberté d’expression, mais au mépris de la Loi électorale. En tordant le sens des définitions pourtant claires de ce qui est et n’est pas une « dépense électorale » (prévues aux articles 402 et 404 de la Loi), le DGE a réussi à éviter l’opprobre médiatique qu’allait provoquer un épisode de censure. Mais la Loi électorale, elle, n’as pas été changée pour permettre à la société civile d’intervenir dans les campagnes électorales. Il n’est pas impossible, je suppose, que le DGE se démène encore pour ne pas censurer Équiterre, même si ce sera, comme je l’expliquerai à l’instant, très, très difficile. Cependant, même si la manoeuvre réussit, la censure ne sera que partie remise jusqu’à la prochaine campagne électorale. C’est à la Loi électorale, et non à son application par le DGE, qu’il faut s’attaquer pour régler le problème une fois pour toutes.

L’article 402 de la Loi électorale définit comme « dépense électorale »

le coût de tout bien ou service utilisé pendant la période électorale pour:

1° favoriser ou défavoriser, directement ou indirectement, l’élection d’un candidat ou celle des candidats d’un parti;
2° diffuser ou combattre le programme ou la politique d’un candidat ou d’un parti;
3° approuver ou désapprouver des mesures préconisées ou combattues par un candidat ou un parti;
4° approuver ou désapprouver des actes accomplis ou proposés par un parti, un candidat ou leurs partisans.

Cette définition s’applique aux dépenses des candidats et des partis aussi bien qu’à celles de la société civile, et il n’est pas surprenant qu’elle ratisse large. La production et diffusion du questionnaire d’Équiterre tombe sous le coup de cette définition, puisque celui-ci vise à diffuser certains aspect des programmes des différents partis et aussi, par l’usage de symboles visuels (coche verte, crois rouge) à approuver ou désapprouver les mesures préconisées par ceux-ci.

Deux problèmes se posent cependant. D’une part, il y a à la fois l’insuffisance et la vétusté des exemptions prévues à l’article 404. Contrairement à la disposition équivalente de Loi électorale du Canada, celui-ci n’exempte pas les communications d’un groupe (par exemple, un syndicat) à ses membres et n’est pas technologiquement neutre, exemptant la diffusion de nouvelles ou éditoriaux « dans un journal ou autre périodique » ou encore « par un poste de radio ou de télévision », mais pas par de nouveaux médias opérant sur internet. En 2014, le DGE a fini par décrire le documentaire en cause comme étant un « média citoyen » pour l’exempter de l’application de l’article 402. C’était, selon moi, à tort, puisque la Loi électorale n’exempte que certains médias, et n’autorise pas le DGE à en inventer de nouvelles catégories exemptées. Quoi qu’il en soit, je ne vois pas comment on pourrait user du même procédé pour aider Équiterre.

D’autre part, la Loi électorale limite excessivement les dépenses électorales des membres de la société civile. En fait, elle les interdit presqu’entièrement, ne faisant qu’une exception minimaliste à l’alinéa 13 de l’article 404, qui permet à un individu (ou un groupe de personnes ne possédant pas la personnalité morale) de s’enregistrer pour, ensuite, engager des dépenses d’au plus 300$ ― mais sans pourtant « favoriser ni défavoriser directement un candidat ou un parti ». Équiterre, si je comprends bien, est une personne morale, et ne pourrait se prévaloir de l’exemption, même si sa part du coût de la production du questionnaire dont on lui reproche la diffusion s’élevait à moins de 300$. De plus, il me semble clair que le questionnaire, même s’il se veut non-partisan, vise à favoriser l’élection de partis ayant des politiques environnementales qui reçoivent l’approbation d’Équiterre et à défavoriser l’élection des autres.

Ces restrictions sont draconiennes. Il est ridicule d’interdire aux acteurs de la société civile de prendre part au débat pré-électoral pour peu qu’ils choisissent d’obtenir la personnalité morale. Il est ridicule d’avoir un plafond de dépenses ― non-indexé, contrairement à celui des partis et candidats! ― de 300$. Il est ridicule d’exiger qu’une personne voulant engager des dépenses tout à fait minimes doive préalablement s’enregistrer auprès du DGE. Il est ridicule d’interdire les interventions qui favorisent ou défavorise l’élection de partis nommés. Même si l’on accepte le principe général de la limitation de dépenses et celui de la primauté des candidats et des partis en période électorale, les restrictions imposées par le législateur québécois sont ahurissantes. Elles ne sont pas justifiées. Elles sont, selon moi, inconstitutionnelles, même si la Cour d’appel du Québec en a déjà décidé autrement.

Ainsi, je pense que le DGE fait son travail en s’en prenant à Équiterre. Il applique la Loi électorale. Cependant, les dispositions en cause n’ont pas lieu d’être. Le législateur québécois devrait s’empresser de les revoir de fond en comble, sinon de les abroger. À défaut, ou d’ici là, c’est malheureusement à Équiterre d’en contester la constitutionnalité. Cette contestation ne sera pas facile, mais, selon moi, elle aura des chances réelles de succès. La Cour suprême a certes avalisé les dispositions de la Loi électorale du Canada limitant la participation de « tiers » aux campagnes électorales, mais, comme je l’ai déjà souligné, celles-ci sont bien plus permissives que celles de la loi québécoise. En attendant, le décret ordonnant la tenue d’élections générales demeure un bâillon.


It Doesn’t Work That Way

Legislation interfering with a municipal election does not violate freedom of expression ― contrary to what an Ontario judge has found

Last week was a busy one for me, as I was travelling to, around, and from Western Canada, having a good time, and giving five talks in four days, but the rest of the Canadian constitutional law world had an even busier one, courtesy of Justice Belobaba of Ontario’s Superior Court, and Doug Ford, its Premier. The former delivered a judgment invalidating the reduction, a mere two months before an election, of the number of seats on the Toronto city council: Toronto (City) v Ontario (Attorney-General), 2018 ONSC 5151. The latter responded to this judgment by bringing forward legislation that will invoke section 33 of the Charter, and allow the election to go ahead notwithstanding the fact that, according to Justice Belobaba anyway, holding it in this manner violates the freedom of expression. The Twitterverse was all atwitter; the commentariat commented; professors professed various shades of disbelief and indignation.

It would not be possible for me to recap and respond to everything, but I do want to make some observations ― even at the risk of repeating things that have already been said, and that I have missed. In this post, I will address Justice Belobaba’s reasoning. I will post separately on the use of the “notwithstanding clause” by Ontario’s legislature ― and some of the responses to it by commentators. Co-blogger Mark Mancini made a number of important points on both issues in an excellent (as always) post last week, and I largely agree with him. In particular, when it comes to Justice Belobaba’s decision, Mark is right that it “massages a chosen constitutional right” so as to “best achieve [the] result” it is after ― constitutional text and doctrine be damned. Here are some additional reasons why.

One thing I’d note is that the descriptions ― common in the media as well as in Justice Belobaba’s reasons ― of the redesign of the Toronto Council as having been imposed “in the middle of the city’s election” [6] need to be put into perspective. The legislation received royal assent almost 70 days before the voting was to take place. The time remaining in the election campaign was identical almost to the day to the duration of the last federal campaign ― whose length was unprecedented and, pretty much everyone agrees, quite excessive. No doubt federal and municipal elections are very different beasts; but we should perhaps hesitate before accepting the claim that the provincial legislation effectively subverted the voting process in Toronto.

Yet this is essentially what Justice Belobaba accepts when it comes to the first issue he addresses, that of “whether the enactment of Bill 5 changing the electoral districts in the middle of the City’s election campaign substantially interfered with the candidate’s [sic] right to freedom of expression.” [27; footnote omitted] Having so stated the issue, Justice Belobaba follows up with a rhetorical query: “Perhaps the better question is ‘How could it not?'” [28] Actually, there is an answer to this question, but it is worth pointing out that merely asking is not a harmless stylistic flash, but a reversal of the burden of proof, which lies on the applicants when it comes to establishing violation of their rights.

Justice Belobaba insists that pre-existing electoral arrangements “informed [the candidates’] decision about where to run, what to say, how to raise money and how to publicize their views”. [29] The new legislation disrupts plans and means that some, perhaps much, of the campaigning that has already taken place will now go to waste. As a result, it “substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters”. [32] It also “undermined an otherwise fair and equitable election process”. Justice Belobaba relies on Libman v Quebec (Attorney General), [1997] 3 SCR 569 for the proposition that “where a democratic platform is provided … and the election has begun, expressive activity in connection with that platform is protected against legislative interference”. [37]

Yet Libman held no such thing. It was concerned with the constitutionality of a law that prohibited persons not having joined a referendum campaign committee for spending money to make their views on the referendum issue known. This wasn’t about fairness ― indeed, fairness in the Supreme Court’s view supported the silencing of “third parties”, if not quite a complete one ― or about interference with an ongoing campaign. The contrast with the legislation here is quite telling. No one is being prevented from communicating any message to anyone. No one is told to stay out of the redesigned election campaign. Sure, the legislation is disruptive and ill-timed, and that’s a valid policy objection to it, but not any disruption of a municipal election is a violation of the candidates’ rights. Suppose a government ― whether provincial or even federal ― announces a major new policy on funding municipalities, and the announcement happens to coincide with a municipal election somewhere, effectively forcing the candidates to adjust their messaging, their spending plans, and so on, has that government thereby infringed the Charter?

As Mark noted in his post, the Charter protects our right to speak, but does not give us any assurance that our speech will be listened to, or be persuasive. Justice Belobaba’s reasons take constitutional law in a new and unwarranted direction. It’s worth noting, too, that with fixed election dates now being the norm federally and provincially, the “permanent campaign” is here to stay. Decisions about how and where to campaign are being made all the time. If any law that interferes with them, or forces prospective candidates or campaigners to revise their plans, is an interference with their freedom of expression, then there is literally no electoral legislation, regardless of when it is enacted, that is not a prima facie Charter violation. This too strikes me as an absurd consequence of Justice Belobaba’s decision.

Justice Belobaba, however, has an even broader objection to the legislation restructuring the Toronto City Council. He says that the restructuring infringes the constitutional guarantee of freedom of expression because the wards that it creates are simply too large for citizens to receive “effective representation” from their councillors. This defect, unlike interference with an ongoing election, would not be cured by delaying the application of the legislation until the next one. As Mark and many others have noted, Justice Belobaba imports the doctrine of “effective representation” from the cases that applied section 3 of the Charter ― which protects the right to vote, but doesn’t apply to municipal elections. Justice Belobaba argues that voting is an expressive activity, so there is no reason not to import tests developed in the context of the right to vote into freedom of expression cases. Like Mark, I think this is objectionable. Why bother with having a distinct, and carefully circumscribed, guarantee of the right to vote if it is anyway subsumed into freedom of expression?

But I would go further than my esteemed co-blogger, who I think is a bit too quick to concede the possibility of “overlap” between the right to vote and freedom of expression. As I have argued here, “[v]oting in an election is actually an incredibly bad way of sending any sort of message to anyone”. A ballot does not say who speaks, why, and what it is that they actually want. The act of voting is no more expressive than that of picking up a particular item from supermarket shelf; if anything, it is less so, since there usually fewer, and less palatable, choices in the voting booth. I do not mean to disparage voting. It is an incredibly valuable thing, this ability to make a choice, even among unpalatable options, of who is going to exercise power over us. But it is valuable for reasons that are quite different from those that make freedom of expression valuable ― even freedom of expression in the political context. It makes sense to have distinct constitutional protections for these activities, and distinct doctrines implementing these guarantees. There probably are cases of genuine overlap between some Charter rights, especially within and among the various “fundamental rights” protected by section 2, and to some extent between at least some of these rights and equality rights in section 15. But the right to vote is its own thing, and there are good reasons of principle as well as of legal craft to keep it separate from others.

It is hard to avoid the impression that Justice Belobaba strongly disliked the legislation on whose constitutionality he had to pronounce, found it unjust, and convinced himself that the constitution simply had to provide a remedy for it. His disclaimers about “the importance of judges exercising judicial deference and restraint” [8] (a sentiment with which I disagree ― there is no reason for deference and restraint in the face of legislation that actually is unconstitutional) ring quite hollow. He bends constitutional doctrine to get his way ― to, and past, breaking point. His decision is bound to do mischief, and should not be allowed to stand. Over to you, Court of Appeal. And for all that, it doesn’t follow that the government’s response to Justice Belobaba’s ruling was appropriate. More on that soon, I hope.

Toronto v Ontario: A Remedy Seeking a Right

Constitutional politics and the notwithstanding clause

Yesterday, Justice Belobaba of the Ontario Superior Court released his decision on the Ford government’s plan (“Bill 5”) to cut Toronto City Council in half, deciding that it infringed the s.2(b) Charter right to freedom of expression. In response, Ford announced his government would reconvene the legislature and pass a bill to invoke the so-called “notwithstanding” clause of the Charter, under which Charter rights can be “overridden” (though this word isn’t used in the text) for a period of five years.

It was an eventful day all around, and there were many comments from people more qualified than I to speak on freedom of expression, the notwithstanding clause, and the interaction between the two. I will, however, comment on two points in this sordid saga: (1) the conflation of s.2(b) and s.3 of the Charter in Justice Belobaba’s decision; (2) the notwithstanding clause

Freedom of Expression in the Electoral Context

First, to the decision. Justice Belobaba began the analysis by properly noting that the question was “not whether Bill 5 is unfair. The question is whether the enactment is unconstitutional” [7]. But just as quickly, Justice Belobaba ultimately concluded that the province had “clearly crossed the line” [9] because (1) Bill 5 was enacted in the middle of an election campaign and (2) it doubled the population size of wards in the city, breaching a voter’s right to “effective representation” [20]. On the timing issue, Justice Belobaba concluded that the freedom of expression right was impacted because of “confusion” and “uncertainty” owing to Bill 5 [30]. The ultimate conclusion was that “…the candidate’s ability to effectively communicate his or her political message to the relevant voters” was impacted by Bill 5.

While I won’t dwell on the point, this seems a stretch. Section 2(b) is broad and the Supreme Court rightly affirms the particular importance of political speech (see Libman, at para 31). But it doesn’t guarantee a right to expression in perfect circumstances—nor does it proscribe government conduct that could make political speech “ineffective.” The fundamental question under s.2 is whether a government law “limits” speech. There is a distinction between effectiveness of speech and freedom of speech; the latter is a necessary condition, the former is not. If courts begin to delve into the messy business of striking down government laws that merely affect the effectiveness of speech, the Charter could end up restricting the marketplace of ideas in ways that are typically repugnant to a liberal order. Practically, it also means that in some cases the court will need to determine whether a law renders speech “ineffective,” which would require some fairly metaphysical evidentiary standards, not to mention a voyage into the content of the speech. It is even more difficult to prove an infringement in cases where, as here, the purported restriction speaks only to the environment (confusion and uncertainty) in which candidates campaign, not to legal restrictions on the political campaigns and voters themselves, such as in the typical s.2(b) electoral cases: BC FIPA, Thomson Newspapers, Libman.

I’m more concerned with the second finding in the decision—the essential application of s.3 of the Charter concerning voting rights in a case where it does not apply. Section 3 textually reads that it applies to voting for federal and provincial representatives. Under the purposive approach to constitutional interpretation, the purpose of s.3 is to guarantee “effective representation” (Reference Re Prov Electoral Boundaries) in these fora. Mathematical parity is not the test, but what constitutes effective representation appears to be a fraught question. But in this case, against the backdrop of one affidavit, Justice Belobaba concluded that the expressive right to vote for effective representation had been breached because the ward population size had been doubled [51, 60]. This is fundamentally the language of s.3, not s.2(b). Justice Belobaba, to his credit, is alive to this concern. He ultimately concludes that voting is a form of expression rendered ineffective by Bill 5, and whether or not it is rooted in s.3, it can be transposed to the s.2(b) context [43 et seq]. But here again we get into the business of effectiveness—especially what constitutes an effective vote. The language is striking, calling to mind a category mistake; should we be in the business of assigning value to votes based on resulting effectiveness?

Regardless, s.2(b) and s.3 are distinct Charter guarantees. They have distinct purposes, with “effective representation” being the purpose of s.3. While these purposes may sometimes overlap, it seems to me that the purposive approach to Charter interpretation has to insist on some analytical distinction between the rights to be of any use. If rights are to be interpreted in their “historic, political, and philosophic” context, surely that purposive context changes with the right in question. This has particular implications for the relationship between Charter rights and s.1 of the Charter. As Peter Hogg notes in his important article, how we construe Charter rights at the infringement stage has implications for the s.1 stage. If a right is construed broadly at the first stage (the purpose is construed broadly), then we leave s.1 for more work to do. Similarly, a right that is characterized with a narrow purpose may leave less work for s.1. This is a rough-and-ready purposive analysis, but it means that regularly mixing and matching Charter rights can have consequences for the evidence required to prove a Charter breach, the evidence required to sustain one, and the intensity of review that courts apply to particular infringements.

There is also the obvious problem here of essentially applying a Charter guarantee where it doesn’t apply to municipalities (despite Justice Belobaba’s comments regarding Haig, I think he fundamentally imported s.3). I call this “constitutional substitution.” It means that a court, seeking to vindicate a result that seems unfair or unjust in the abstract, massages a chosen constitutional right that will best achieve that result. It is perhaps an uncommon phenomenon, but it is present in this decision—s.3 does not apply, s.2(b) does. While I’m alive to the idea that the s.2(b) electoral cases could implicate s.3, those cases dealt with different legislative schemes that, again, directly impacted/limited the ability of participants in the political system to participate (ie) through financial restrictions.

I don’t mean to advocate for a “watertight compartments” approach to Charter rights, in part because I think the reality of constitutional facts makes this difficult. That said, as Mike Pal very aptly noted, we have no real doctrinal means to deal with overlap of constitutional rights as opposed to the reconciliation of rights. We should start from the premise that the Charter lists distinct guarantees that the Supreme Court has insisted should be interpreted with distinct purposes. From there, we deal with the hard cases that arise where rights overlap, such as in the case of s.2(b) and s.3. And this isn’t the only area of the Constitution where rights can overlap—the recent Ktunaxa ruling demonstrates a contested area between the freedom of religion guarantee and Aboriginal rights under s.35. While each overlap may have to be resolved differently, some unified principles would be helpful.

Brief Comments on the Notwithstanding Clause

I can’t do much to add to the already booming discussion on the notwithstanding clause. I for one accept its legitimacy as part of the constitutional order, in part because of the evidence that it formed a part of the pact leading to the Charter, adopted itself by our elected representatives and because one part of the Constitution cannot be breached by another. The notwithstanding clause is a power that can be used by elected officials assuming they follow the form requirements set out in the Ford case (no relation).

I will venture two points. First, simply because the notwithstanding clause is legitimate itself doesn’t mean that it can’t be misused illegitimately. The exercise of state power—even a constitutionally entrenched power—does not operate in a vacuum. We should expect a duty of good-faith in a constitutional democracy to attach to the use of such powers; put differently, and without entering the foray into constitutional conventions, we should expect elected officials to abide by constitutional norms as they are defined.

Part of this norm, given the atrophied s.33, should be a public justification for the use of the extraordinary override. The populist justification put forward by Premier Ford is lacking for this reason. No one says that the seminal Ford case compels Premier Ford to do anything but pass a properly formed bill. But in a deliberative, representative democracy, we should expect leaders to justify their use of extraordinary state power, especially as it applies to the override of constitutional rights, themselves adopted by legislative actors. As James Madison wrote in the Federalist No. 10, we expect in a representative democracy that our leaders will not appeal to factions (as in a direct democracy) but to the highest ideals of the legal order.

A second point about the notwithstanding clause, especially on constitutional substitution. The effect of Justice Belobaba’s ruling is to open the door to the use of the notwithstanding clause on s.3 of the Charter, the essence of his legal findings. Yet this is doubly prohibited by the Constitution. As I say above, s.3 only applies to Parliament and the legislatures and at any rate cannot be overridden by the notwithstanding clause. Though Justice Belobaba framed his findings under s.2(b), his ultimate conclusion was framed in the right to effective representation that would be infringed by having councilors who cannot respond to voter complaints [57]. He was most concerned with being able “to cast a vote that can result in meaningful and effective representation” [59]. This is in substance a finding under s.3. Yet by framing the finding under s.2(b), Justice Belobaba opens the door both to the application of s.3 to municipalities and to the use of the notwithstanding clause against, in essence, a s.3 finding. If we accept that the right to effective representation is infringed, we should worry about the notwithstanding clause’s use here.

Vote ‘em out

I offer these comments tentatively, largely because we are in unchartered waters. At the same time, two final points. First, I disagree with those who say this is a constitutional crisis. Constitutions are meant to be durable, to withstand pressure by those seeking to break constitutional norms, or even the inadvertent pressure of complacence. In some ways (putting aside the constitutional substitution concern) this is a textbook case of the court issuing a ruling and the government responding.

Second, I think the best way to understand Justice Belobaba’s ruling is to conclude that he saw a wrong, fashioned a remedy, and hooked it to a right. On most accounts, though the duty of procedural fairness does not attach to acts of the legislature, there was something unfair about the way in which Bill 5 was introduced and the context of the Premier’s contentious relationship with Toronto Council. Most likely this was an arbitrary decision by the Premier. In the face of this unfairness, Justice Belobaba found a way to get around the problem of s.3 by applying s.2(b) and by stretching the meaning of s.2(b) itself. I do not see this as a proper response to legislative unfairness. The best responses are for PC MPPs to oust Ford, or for the voters to do so.

For Your Freedom and Ours

Honouring and learning from the 1968 Red Square Demonstration

Fifty years ago today, on August 25, 1968, eight men and women came out on Red Square to protest against the Soviet invasion of Czechoslovakia.

They held up some banners, perhaps the most famous of them (pictured) repurposing the old Polish slogan “For our freedom and yours“, originally used to protest the Tsarist empire; for this protest by Russians, the words became “For your freedom and ours”. It only took the KGB a few minutes to attack the protesters (one of whom had several teeth knocked out), break up their banners, and arrest them. One gave in to pressure to declare that she had been there by accident; the others did not. Five were put on trial and sentenced to the Gulag or to exile. Two ― Natalya Gorbanevskaya, who had recently given birth (and come to the Red Square with a stroller!) and Viktor Fainberg, the one who had had his teeth knocked out ― were instead declared to be mentally ill and interned in psychiatric institutions, avoiding the Soviet authorities the embarrassment of putting them on trial.

I think it is worth commemorating this protest, not just to honour its participants, but also because they have something important to tell us about what it means, and what it can cost, to be free. A number of them spoke to Vladimir Kara-Murza Jr. for a documentary on the dissident movement in the Soviet Union (the discussion of the 1968 Red Square Demonstration is here), and their thoughts are relevant not only to historians, or to those struggling against regimes that are generally recognized as authoritarian, but also to anyone trying to resist a stifling atmosphere of unfreedom that can exist even in the absence of overt repression, and even in the midst of widely professed belief in free expression.

Freedom has two aspects: internal and external. Free individuals are free thinkers; they do not accept received wisdom, prevailing opinions, and common sense as dogma. Free individuals are also free agents; they act consistently with their sense of right and wrong. Meaningful external freedom, freedom of action, is not possible without internal freedom, freedom of thought. But freedom of thought alone is insufficient. One might be able to count oneself as a king of infinite space while bounded in a nutshell, but not, as we know, if one has bad dreams. And one of the points that that Mr Fainberg makes in the documentary is that “bad dreams” are the inevitable consequence of not acting in accordance with one’s understanding of how one ought to act: “the biggest fear” a person can have, he says,

is fear of the past. Because if you’ve betrayed yourself in the past, if you betrayed your own dignity, you will have that worm inside you, which will eat you from inside, in the present and in the future, and you will not be able to escape it.

This is a point I have already made here, quoting from JS Bach’s St John Passion, where Peter laments his own inability to escape “the pain of [his] misdeed”, his betrayal.

To be free, then, is both to think and to act for oneself, and not on the demand of authorities. Just what acting for oneself involves will depend both on the individual and on the circumstances ― sometimes, it means to worship or preach, sometime to speak or write, sometimes to get together with others on the public square and try to shame the government. All these actions, however, are in some sense public, visible, even ostentatious. To repeat, purely internal freedom, though it may be of some value, is in the long run unavailing. On the contrary, to think freely and to fail to act on these thoughts is to set oneself up for bitter shame and remorse. A free thinker will become a free agent, if only to avoid this outcome. As Gorbanevskaya put it in the documentary, the protest, for her, was a way to ensure that she would “have a clean conscience”. This is no doubt somewhat false, or at least uncalled for, modesty. Protesting, on Red Square, against a defining policy of the Soviet government was an act of incredible bravery. But it is not to slight the protesters to say that they feared a guilty conscience more than the KGB and the Gulag. On the contrary.

The Soviet authorities in 1968 knew this. This is why they took no chances. They did not just stop people from acting. They did their best to impose uniformity of thought. They never fully succeeded, of course, but they never stopped trying. They demanded that all Soviet citizens, especially educated ones, devote years to the study of Marxist “classics”; they forbade “hostile” or “subversive” book being published or even read; and they demanded loud, public, professions of commitment to the ideology and policies of “the Communist Party and the Soviet Government”, the louder and more public the more significant ― or suspect ― the target of the demands was. As Orwell understood so well, forcing people to speak in particular ways meant forcing them to think in particular ways too.

Yet paradoxically the authorities’ obsession with ensuring that all Soviet citizens thought alike gave the few who thought differently a power of their own. In Gorbanevskaya’s words,

[a] nation minus even one person is no longer an entire nation. A nation minus me is not an entire nation. A nation minus ten, a hundred, a thousand people is not an entire nation, so they could no longer say there was nationwide approval in the Soviet Union for the invasion of Czechoslovakia.

This is why it was so important for the Soviet system to crush even the relatively few people who opposed it ― and why, in a sense, their small numbers did not matter very much. Not everyone thought alike, therefore not everyone acted alike, therefore others saw that dissent existed, and started thinking and acting freely in their turn.

Free thought is thus a standing danger to any authority that wants all those subject to it to conform to its demands. Latter-day egalitarian moralists understand this as well as the Communists of yesteryear. (And, any egalitarian moralists who might be reading this: don’t tell me that you are right, or that you are redeeming the many sins of white-man-kind; the Communists also thought that they were building heaven on earth. Including when they were invading Czechoslovakia.) Hence their shamings, their online mobs, and their demands for attestations and statements of principles. They desperately want to control people’s very thoughts and beliefs, because they sense that, if people are not made to get on with the programme in their minds, they will, sooner or later, start speaking out against the programme too, call scrutiny upon it, and expose its unexamined assumptions, its logical deficiencies, and its leaps of blind faith.

This is not to say that the moralists are quite like their forbears in every respect. They (mostly) do not beat those who disagree; they they not imprison them; they do not torture them in psychiatric “hospitals”. The pressure, for now, is mostly economic and reputational. I do not mean to make light of it; I do not mean to judge anyone who thinks it is too much; I certainly do not mean to pretend that I am braver or stronger than others. When I think of those eight who went out on Red Square that day, and of the seven who did not give in to the threats and the violence ― the real violence, not just the unpleasant words ― that they were subjected to do, I do think that the demands on our strength and courage are not yet very high. But if we do not start practising being free now, we won’t be very good at it if one day we really need to.