Not So Great Expectations

Whatever his other merits and demerits, Conrad Black has made some noticeable contributions to the development of the law of justiciability in Canada. The latest came this week, in the form of a judgment of the Federal Court of Canada, in Black v. Advisory Council for the Order of Canada, 2012 FC 1234.

The first had come in Black v. Canada (Prime Minister), (2001) 54 OR (3d) 215  (ON CA), in which Mr. Black, as he then was, tried to challenge the advice that Jean Chrétien, then Prime Minister of Canada, give to the Queen regarding Mr. Black’s possible appointment to a peerage in the United Kingdom. The Court of Appeal for Ontario held that the matter was not justiciable.

Now, decade, a peerage, and a couple of criminal convictions later, Lord Black is trying to dissuade the Advisory Council for the Order of Canada from recommending the termination of his appointment to the Order due to his criminal convictions in the United States. Having notified Lord Black that it was considering making such a recommendation to the Governor General (who makes all the final decisions regarding the appointment to and termination from the Order), the Council invited him to make submissions on the matter, in writing. Lord Black, however, demanded an oral hearing, arguing that it was necessary to let him explain why his convictions were unjust, and thus not grounds for terminating his appointment. The Council refused, and Lord Black applied for judicial review of the refusal.

The first question facing Justice de Montigny was whether the application for judicial review was premature. Normally, a court will not review an interlocutory decision of an administrative tribunal―such as whether to allow a person to make written or oral submissions. These decisions can be reviewed as part of the review of the tribunal’s final decision. However, this case is exceptional: the Council’s final recommendation is not a “decision” at all, and so is not subject to review for that reason, while the Governor General’s eventual decision to withdraw an honour such as an appointment to the Order of Canada is discretionary and probably non-reviewable, so that there is no juncture at which the Council’s decision not to give Lord Black the opportunity to make oral submissions could be reviewed. The time to review it is now or never.

If, that is, it is the sort of decision that can be reviewed by courts at all―if it is justiciable. The decision to grant an honour is certainly not. It is made in the exercise of the royal prerogative over honours―a discretion belonging to the monarch (though in most cases exercised on the advice of others political actors, such as the Prime Minister or the Cabinet). That in itself does not make it non-justiciable. The question is rather whether it is purely discretionary and political, or concerns rights or legitimate expectations. The grant of an honour does not. It is inherently subjective and motivated by moral and political considerations rather than legal ones; it is a matter of discretion, not right or entitlement. And, says Justice de Montigny, so is the decision to withdraw an honour. Lord Black could have no expectation of remaining an Officer of the Order of Canada forever; indeed, the Order has an explicit policy stating that the Council will review the membership of those who have been found guilty of a criminal offence. However, the policy also lays down a specific procedure for such a review. And that, says Justice de Montigny, is what makes this case justiciable. Lord Black could have no legitimate expectations as to the substance of the review of his membership, but he could have such an expectation about the procedure that would be followed. (This is also the difference between this case and the 2001 one: there, there was no predetermined procedure for the Prime Minister to follow.)

The trouble for Lord Black is that the review procedure prescribed by the Council’s policy affords the person concerned an opportunity to make written, but not oral submissions. An oral hearing is possible, but not required. Therefore there can be no legitimate expectation that one will be held. Nor is there anything wrong with that, says Justice de Montigny, either as a general matter, or in Lord Black’s specific case. Generally speaking, a hearing is not required to make an administrative procedure fair, even one that can have very grave consequences, such as a person’s deportation from Canada. Hearings are generally required only in proceedings where credibility is at stake. Lord Black claimed that this was his case because what is really at issue is his innocence of the misdeeds of which he was found guilty by American courts. Not so, says Justice de Montigny. His reasons on this point are a little confusing, because he says both that the Council cannot second-guess the decisions of the U.S. Courts and that

if, as [Lord Black] submits, he was treated unfairly in the American justice system, there is nothing preventing him from making that argument in writing.  …  He has provided the Council with a copy of his book on the subject of his convictions which runs to more than 500 pages.

In any event, the fairness of the U.S. criminal proceedings does not depend on Lord Black’s credibility.

In the end, then, Lord Black was no luckier than 11 years ago. But maybe he can console himself with the fact that this time, his claim was, at least, found to be justiciable.

Federalism and Judicial Review

First of all, apologies for my silence in the last 10 days. I have a partial excuse in that I gave a guest-lecture in Fabien Gélinas’ constitutional law class at McGill last Thursday, about the Rule of Law and the legitimacy of the judges’ law-creating activity, which of course had me freaking-out to prepare. But it went well―the students, with just a month of law school under their belts, deserve a lot of credit for understanding the material which was quite difficult―and I have no excuses any more, and I plan to resume a more normal blogging pace now.

There’s no shortage of material either, but I start off with more shameless self-promotion. I just posted a new draft paper, “Federalism and Democracy: A Defence of Federalism-Based Judicial Review“, on SSRN.  It is a response to critiques of judicial enforcement of constitutional divisions of power between federations and sub-federal units, such as ss. 91/92 of the Constitution Act, 1867. Although such criticism is seldom heard in Canada, it is common enough, at least in the legal academia, in the United States, and it is also an implication, albeit an unexplored one, of the general critiques of judicial review, such as that of Jeremy Waldron.

Here is the abstract:

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.

I will present it at the Third Annual Constitutional Law Colloquium at the Loyola University of Chicago School of Law in early November, and then revising it before, I hope submitting it for publication. So comments are more than welcome.

Moving the Earth

Last week, the Supreme Court issued an important judgment on the law of public interest standing. Although it might seem like a technical issue, the importance of standing, or locus standi, was already clear to Archimedes 2200 years ago, when he asserted that if given a place to stand, he would move the earth. Ok, maybe he didn’t mean that sort of locus standi, and anyway he spoke Greek, not Latin. But in law no less than in physics, if you want to move the earth, you need a place to stand.

The Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 makes finding one easier. It relaxes, or clarifies, as the Court’s judgment insists, the test courts use to determine whether to grant “public interest” standing to a party who does not have standing―simply put, the right to initiate a lawsuit―to challenge the legality or constitutionality of government action under the traditional (“private interest”) definition of standing, which requires the would-be plaintiff to have a specific personal interest in the dispute.

The would-be plaintiffs in Downtown Eastside are an organization and a former sex-worker who want to challenge the constitutionality of the Criminal Code‘s provisions relating to prostitution, which they say infringe their rights to freedom of speech, freedom of association, security of the person, and equality before the law. Since they neither stand accused under the Criminal Code provisions they want to challenge nor are likely to find themselves in that position, they have no “private interest” in the challenge. But, they say, they should be given standing in the public interest. The Supreme Court of British Columbia refused to do so; the Court of Appeal reversed that decision, and the government appealed. The Supreme Court dismissed the appeal.

Courts can grant a would-be plaintiff public interest standing when his challenge raises serious and justiciable issues, the plaintiff has a genuine interest (in a non-technical sense―this is not a legal interest, in the sense of a personal stake) in the dispute, and, as the Supreme Court put it in Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575 at 598, “there is no other reasonable and effective manner in which the issue may be brought before the Court.” But, as Justice Cromwell explains in his opinion for the unanimous Court, “no” here doesn’t quite mean no.

Rather, than a categorical bright-line rule, the test is a flexible standard, requiring the court to assess “whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). This still allows the courts to accomplish the purposes of the rules on standing: to keep away “mere busybodies” (more hypothetical than real, says the Court) and economize judicial resources; to ensure that courts will be expose to a full adversarial debate; and to keep them within the bounds of their constitutional role. At the same time, it helps enforce “the principle of legality,” which requires constitutional and statutory authorization for government action, by ensuring that no unconstitutional or illegal action can permanently escape a legal challenge.

Justice Cromwell provides (par. 51) a helpful, albeit non-exhaustive, list of factors to be taken into account in deciding “whether the proposed suit is a reasonable and effective way to” litigate an issue. These include a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court―in practice, not in theory.

Applying these considerations to the would be-plaintiffs in Downtown Eastside, Justice Cromwell finds that they favour granting them public interest standing. In particular, he considers that, contrary to what the trial judge had found, it would be very difficult for the same set of issues to be raised in any other manner. To be sure, individual sex workers or their clients are often charged under the Criminal Code’s prostitution provisions. But even when they challenge the constitutionality of the provisions under which they are charged, they do not―and cannot as of right―challenge the whole scheme adopted by Parliament to deal with prostitution. Nor do they have the sort of resources the would-be plaintiffs here will bring to bear. (Anyway, many of these challenges are not heard because the cases are resolved otherwise.) He also notes that, given the legal and social stigma prostitution engenders, potential individual plaintiffs are unwilling to come forward to bring a comprehensive challenge of their own volition.

This could turn out to be a very important decision―or not. The degree to which the circumstances in which sex workers find themselves prevent them from challenging the laws that affect them might be unique. And we have no way of knowing, for now, just how flexibly courts will apply the “reasonable and effective” standard Justice Cromwell articulates.

I will, at least for now, refrain from further commentary. That is, first, so as not to over-extend an already lengthy post. But second, and more importantly, because my NYU colleague, Trudeau Scholar, and wonderful person, Lisa Kerr, who worked on the winning side of this case with the Pivot Legal Society (which represents the would-be plaintiffs), will soon guest-blog about it here. I am very much looking forward to her comments. I’ll save mine for later, if there is anything left to add.

A Reasonable Opinion

The Supreme Court delivered an interesting decision in Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, yesterday. On the surface, it is a rather dull, or at least purely technical, case about the proper method of assessing the value of land occupied by a historical monument. But it has much broader implications, because it is a useful reminder of the way in which courts ought to approach discretionary decision-making by the government, something of which the government of the day is very fond.

The case concerns the application of Payment in Lieu of Taxes Act, which authorizes the Minister of Public Works and Government Services to make “payments in lieu of [municipal] taxes” to municipalities in which federal property is situated. Federal property is constitutionally exempt from provincial (and hence municipal) taxation, but as a matter of fairness, Parliament authorizes payments to municipalities that are meant to replace municipal taxes that would otherwise be levied on most federal property. Nonetheless, the statute confers a great deal of discretion on the Minister: he decides whether to make payments; the amount of the payment is calculated using the taxation rate which would be applicable “in the Minister’s opinion” if the property were taxable; and the value to which this rate is applied is also one which “in the Minister’s opinion” would be assessed if the property were taxable.

 Justice Cromwell, writing for a unanimous Court, summarizes the case very effectively at par. 5:

The Minister … decided that a national historic site is effectively valueless if it does not support economically beneficial uses. He therefore concluded that roughly 40 acres of the [Halifax] Citadel site are worth ten dollars. This conclusion, in my view, is unreasonable for two reasons. First, the property value is to be the value which, in the Minister’s opinion, the local assessment authority would apply to the property … However, in valuing the property the Minister adopted an approach which the record discloses no example of a Canadian assessment authority using, and which significantly differs from the approaches that the record suggests assessment authorities in provinces across the country do use.  The Minister’s opinion that the value he arrived at “would be attributable by an assessment authority” has no basis in and is contrary to the evidence.  Second, the Minister’s decision is inconsistent with the Act’s purpose.  The Act permits payments for national historic sites. To decide that these sites have no value for taxation purposes except to the extent that they could support commercial uses negates the very purpose of their inclusion in the PILT scheme.  For these two reasons the Minister’s decision was unreasonable.

So, the Supreme Court reminds us – and, more importantly, the federal government, – the exercise of discretionary powers is judicially reviewable, and even though the standard of review is reasonableness, it is a meaningful review. The phrase “in the Minister’s opinion” which Parliament uses seems to confer a very wide discretion on the Minister. But this discretion has to be exercised on the basis of evidence and in a logical way. The Minister cannot act on a whim or just because a certain decision suits him better than its contrary. Nor can he act in a way that frustrates the purpose of the legislation he is applying.

None of this is exactly new – these themes go back at least to Justice Rand’s judgment in Roncarelli v. Duplessis, [1959] S.C.R. 121, for example his famous statement that “[i]n public regulation … there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator” (p. 140). But the reminder is timely. Recent federal legislation has taken to delegating considerable powers to the executive, and also, it seems, to trying to insulate executive action from review, by adding discretion-conferring catchphrases such as “in the Minister’s opinion” to already-existing grants of discretionary power. As the Supreme Court’s latest decision shows, however, delegation and conferral of apparent discretion does not free the executive to do whatever it pleases.

Rights and Votes

Is it ever ok to put people’s rights to a democratic vote? Dahlia Lithwick and Sonja West are adamant that it is not, as they make clear in an article in Slate on the subject of same-sex marriage. But their argument is wrong, and indeed dangerous.

Ms Lithwick and Ms West argue that “marriage equality … is a constitutional and not a democratic issue.” So is equality generally – as they put it, “[e]quality is not a popularity contest,” – and so are other “essential liberties.” They conclude their article with a reference to slavery – the biggest rhetorical sledgehammer except for Hitler – claiming that “[j]ust as [the U.S.] couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.”

Ms Lithwick and Ms West might mean that when democratically enacted laws have the effect of defining the scope of citizens’ constitutionally protected rights and liberties, it is legitimate for courts, exercising the power of judicial review of legislation, to overrule these definitions and to impose their own. That would be an argument about what Jeremy Waldron, in his article on “The Core of the Case against Judicial Review” calls “process-related reasons” for choosing a procedure for settling disputes about rights. Prof. Waldron believes  that the democratic, legislative procedure is much the better one, because it respects the views of every citizen on these matters. Ms Lithwick and Ms West think otherwise because of their contemptuous view of democracy as a popularity contest.

But it is not what the argument they actually make. What Ms Lithwick and Ms West say is that issues are either democratic or constitutional – and this implies that rights and liberties are simply outside the purview of the democratic process. This suggests not just that courts are better than legislatures at dealing with disputes about rights, or that they should be called in as a last result to correct legislative failures or oversights, but that legislatures and voters have no business pronouncing on issues defined as constitutional at all.

Contrary to Ms Lithwick and Ms West’s assertion, this is a radical argument. It is also an absurd one. Legislatures and voters engage with arguments about rights all the time – and they don’t always do it badly. Legislatures made same-sex marriage legal in Canada and in some of the states where it is legal in the U.S., including New York. Legislatures decriminalized homosexuality in Canada, the U.K., and much of the U.S. (though courts did end up sweeping the remaining prohibitions there). They abolished the death penalty in Canada, all of Europe, and those U.S. states where it no longer exists. Yet if one accepts that voting is not a legitimate procedure for settling disputes about right, as Ms Lithwick and Ms West contend, then one is committed to saying that all these votes were illegitimate – legislatures had no business addressing these issues at all. And one cannot say that legislation that advances rights is legitimate whereas that which restricts them is not; process-based arguments against a decision-making procedure remain whether or not the outcome is good. If flipping a coin to decide whether same-sex marriage ought to be legal is a bad idea, it remains a bad idea even if the result is one we agree with. Winning a popularity contest has the same moral significance as losing one – that is, none.

And as for the slavery argument, it is deeply ironic and ought to be embarrassing to Ms Lithwick and Ms West. When it confronted the issue of slavery, the Supreme Court of the United States not only upheld this evil, but extended it, holding that a law – enacted by a legislature, the U.S. Congress – prohibiting slavery in the U.S. territories was unconstitutional. This decision, Dred Scott v. Sandford, ought to be a reminder to those who defend judicial review that courts are not immune from doing evil and letting wrong prevail over right.

Unlike prof. Waldron, I think that judicial review has a legitimate place in resolving questions about rights in democratic polities. But so do legislatures – and their engagement with these questions is something to be celebrated, not denigrated. I do hope that same-sex marriage becomes legal everywhere (unless, that is, governments at last get out of the marriage business altogether, which would be even better). And if courts need to step in to make this happen, so be it. But the more involved legislatures are in this progress, the better it will be.

Judicial Review and Co-operative Federalism

I would like to return to Justice Blanchard’s reasons for judgment granting the injunction preventing destruction of Québec-related gun-registry data pending judgment on the merits in this case, about which I posted here a couple of days ago.

The case, says Justice Blanchard, is “exceptional,” “a first in Canadian judicial history” (par. 21). The reason it is exceptional is the opposition between the “diametrically opposed views of what is usually called the common good.” I think this is wrong. While the conflict between the federal and a provincial governments’ views of the common good might be especially clear in the gun-registry data litigation, there is nothing exceptional about it. Most federalism cases, certainly all cases that pit a province against the federal government, involve a similar conflict between views of the common good. For example, the federal government thinks that the common good requires a national securities regulator; Québec and Alberta think that it is best served by provincial regulators. The result is a court case. When the two levels of governments agree on a vision of the common good, the co-operate and don’t go to court, the constitution be damned. Healthcare is the prime example: neither s. 91 nor any other provision of the Constitution Act, 1867 give Parliament any role regulating and paying for healthcare, but it does both, because (and perhaps only so long as) the provinces share its view of the public good in this area, and have no inclination to challenge it in court.

What is in fact (almost) unique in the gun-registry litigation is that, as I argued in my first comments on the topic, it actually stems from a co-operative relationship – but one that has broken down. “Normal” federalism cases involve conflicts over who has the power to decide whether and how to regulate certain areas of human activity. Who, of Parliament and provincial legislatures, for example, has the power to decide (whether and) how the securities industry should go about its business. (Not, by the way, who should have this power, as a matter of economic policy; but who actually has it under the specific constitutional arrangements we have in place.) In these cases, courts are called upon to regulate the competitive aspects of federal-provincial relations. The gun-registry litigation is different because what it really is about is not competition for the power to regulate (indeed it is acknowledged that, on the one hand, Parliament has the power not to regulate gun registration if it does not want to, and provincial legislatures have the power to regulate gun registration if they feel like it); it is about “fair terms of co-operation” between the two levels of government, to borrow a phrase from John Rawls (who of course uses it in a different context).

Courts are not often called upon to police the fairness of the terms of co-operation between the federation and its constituent units, and it seems not to be sufficiently theorized. For example, critics of federalism-based judicial review (who are many in the United States, including for example Larry D. Kramer in this article) do not pay any attention to it; Jeremy Waldron’s criticism of judicial review, which is primarily (but not exclusively) directed to rights-based judicial review, is similarly incapable of addressing it. (Some judicial and academic attention in the United States has been directed at one specific problem which arises from co-operative federalism: the tendency of the federal government to attach stringent conditions to grants of funds to sub-federal units, which the Supreme Court of the U.S. addressed in South Dakota v. Dole and will address again in ruling on the constitutionality of “Obamacare.”) Yet judicial review of the fair terms of federal co-operation deserves attention as a distinct constitutional phenomenon. To give but one example, and return, in conclusion, to the gun-registry litigation, Justice Blanchard’s incredulity at the idea of an award of damages as a remedy in a federalism dispute would probably be appropriate if the dispute were, as usual, about competitive federalism; but it might be unfounded in a dispute about the fair terms of federal co-operation.

A Belated Happy Birthday to the Charter

I wasn’t able to post yesterday, but still want to say something good on the Charter‘s anniversary. My doubts and worries notwithstanding, I believe that the Charter has done Canada a lot of good.

With Lord Acton, I believe that “[l]iberty is not the means to a higher political end. It is itself the highest political end.” And Canada is a freer country today than it would have been had the Charter not been enacted. To be sure, there are aspects of freedom which the Charter does not protect – economic freedom in particular. But in those areas with which it is concerned, it has helped curtail the state’s imposition of its views on citizens, its arbitrariness, its bigotry.  But for the Charter, we might well still have a Lord’s Day Act; we would probably still be extraditing people to face torture or the death penalty; and we would almost surely be convicting and imprisoning people on the basis of arbitrary, brutal, or otherwise disreputable actions of the police or prosecutors.

Pace legislative optimists such as Jeremy Waldron – whom I much admire as an idealist, a scholar, and a teacher – we ought to be realistic in thinking about how best to protect our right and freedoms. In some perfect world, legislatures might do the job. In other, dystopian, worlds, judges will become agents of repression worse than any legislators. But in Canada as we have known it in the last three decades, and as it is likely to be in the decades to come, the Charter and the courts that apply it have been and remain our best hope.

But as we celebrate the Charter, we must recall Pierre Trudeau’s words at its proclamation:

No constitution, no Charter of Rights and Freedoms, no sharing of powers, can be a substitute for the willingness to share the risks and grandeur of sharing the Canadian adventure. Without that collective act of the will our constitution would be a dead letter and our country will wither away. … Let us put our faith first and foremost in the people of Canada who will breathe life  into it.

We owe a debt of gratitude to the courts that have nurtured this breath of life, though not without making serious mistakes along the way; and even more so, to the men and women who have, sometimes at considerable cost to themselves, fought for the recognition of their rights. As the profiles of some of them put together by the Globe show, they have often been perfectly ordinary people; it is a safe bet that without the Charter, none of them would have been able to contribute to the freedom of Canadians in the way they did. In this way, the Charter has lived up to Trudeau’s perhaps paradoxical billing of it as “the people’s package.”

The Charter is good, but more importantly, it is ours. Let’s make it even better.