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 has 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 make 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 case 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.

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.