Misplaced Zeal

The Law Society of Ontario’s “Statement of Principles” cannot be defended as advocacy for the Law Society

In a post at Slaw, Alice Woolley argues that lawyers’ state of mind, and in particular their personal commitment to the causes they are asked to represent, should not factor into an assessment of whether they are acting ethically ― and further, that this logic applies not only to lawyers’ representation of clients, but also to their compliance with other obligations requiring them to take particular positions, such as the Law Society of Ontario’s “statement of principles” policy. Though no legal ethicist myself, I am inclined to agree with Professor Woolley general point that a lawyer’s advocacy need not be anchored in a personal commitment to a cause ― but only so far as advocacy on behalf clients is concerned. Advocacy outside the context of legal representation, where the lawyer is acting on someone else’s behalf, is a different matter. Professor Woolley’s conflation of these two context is, in my respectful view, a serious mistake.

Professor Woolley gives the examples of hypothetical lawyers who undertake to represent clients for reasons that have nothing to do with a personal commitment to their causes. They want to get paid and cannot think of a better way to make their living (or at least, as good a living as the practice of law allows them), and care little for the justice of their clients’ cases. They are, however, competent and hardworking, and successful as a result. These lawyers, Professor Woolley argues, are not truly “zealous” advocates ― they feel no particular zeal ― but it would be wrong to think of them as unethical. “Lawyers’ ethics”, she insists, “are about acting as required by their role and professionalism, not personal belief or commitment.”

That seems right to me. A system of professional ethics that required lawyers to wholeheartedly embrace their clients’ cases would be both unattractive and impracticable. Many clients would have to be unrepresented, because no lawyer would agree with them, while professional regulators would have to become inquisitors to find out how lawyers well and truly felt. Note, though, that so far as the Model Code of Professional Conduct of the Federation of Law Societies is concerned, the idea that representation must be “zealous” is only a gloss, and as Professor Woolley shows an unfortunate gloss, on the actual rule, which rather requires it to be “resolute”. (5.1-1) Professor Woolley argues that her hypothetical halfhearted lawyers are not “resolute”, but I’m not sure about that. To the extent that they work hard and diligently pursue whatever recourse is open to their clients, without regard to their own feelings about them, I would not describe them as lacking in resolve, though this is a point about semantics and I don’t think much turns on it.

Be that as it may, as Professor Woolley suggested I might, I think that the position of lawyers who are not engaged in advocacy on behalf of clients is different from that of those who are. Lawyers arguing clients’ cases are widely understood not to be presenting their own views; conflations of the lawyers’ positions with the clients’ are routinely criticized by lawyers and others ― for example when judges or politicians with experience as criminal defence lawyers are (mis)represented as approving of the crimes of which their former clients were accused (and in many cases guilty). Acting as an advocate for a client, a lawyer is a mouthpiece, a hired gun; the rules of professional ethics not only do not require him or her to inject personal approval into the representation, but positively forbid injecting disapproval.

Outside the special context of client representation, however, these understandings and rules do not apply. Indeed, the Model Code‘s the requirement of resolute advocacy applies specifically in that context: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law” (emphasis mine). The rule does not speak to the lawyer acting as an individual, a citizen, with something of his or her own to say. When expounding and advocating for their own views, lawyers are, it seems to me, held to the same expectations of integrity as other people. If a lawyer gives a talk at a bar association event on the importance of access to justice, yet charges exorbitantly high fees and never undertakes any pro bono work, that lawyer deserves to be condemned as a hypocrite ― even though such a condemnation would be quite inappropriate in response to the same lawyer’s invocation of access to justice in argument on behalf of a client. The same goes for advocacy of any other ideal or value, including of course those referred to in the “statement of principles” policy ― equality, diversity, and inclusion. A lawyer advocating for these things without actually believing in them is a hypocrite whom right-thinking members of society are entitled to condemn.

I’m not sure whether Professor Woolley actually disagrees with this view, in the abstract. Yet she thinks that it is inapplicable to the situation of the Ontario lawyers whom the Law Society wants “to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public”. That’s because “the Statement of Principles is not about lawyers doing things on their own behalf, but rather on the profession’s.” In effect, by requiring us to produce this statement, the Law Society has enlisted us all as advocates for its own views, so that the norms of advocacy, of client-representation, apply.

Now, I do not think that the Law Society itself understands its policy in this way. When the “statement of principles” was first introduced, the Law Society explained that “[t]he intention” behind it “is to demonstrate a personal valuing of equality, diversity, and inclusion” (emphasis mine). Subsequently, it backtracked on this and claimed that requiring lawyers to “promote equality, diversity, and inclusion” “does not create any obligation to profess any belief or to seek to persuade anyone about anything”. If the former view of the “statement of principles” ― contradicted but never withdrawn from the Law Society’s website ― still holds, then, contrary to what Professor Wolley says, it is very much “about lawyers doing things on their own behalf”, albeit at the regulator’s behest. If the subsequent view is correct ― though I find it implausible, and the Law Society itself refused to make it the basis of a settlement of the challenge to the “statement of principles” brought by Ryan Alford and the Canadian Constitution Foundation ― , then lawyers are not asked to be advocates either on their own behalf or on the Law Society’s.

But suppose that the Law Society is, in fact, seeking to enlist the lawyers subject to its regulatory power as advocates for its own views, as Professor Woolley thinks. This would be a startling proposition. Unlike in any other case of representation, lawyers do not consent to this “retainer”. Unlike with any other client, they are not given a choice to decline representation if they find the client or the cause unacceptable, or simply beyond their availability or ability. Nor are they permitted to withdraw. They are, in a word, conscripted, coerced to act for the Law Society on pain, for most of them, of losing their livelihood. All the arguments against conscription, both deontological (it is simply wrong for one person to use other persons for his or her own purposes in this way) and consequentialist (conscripts are unlikely to provide good service), apply.

And why exactly is this conscription necessary? The Law Society is sufficiently well-heeled, what with charging over $1200 a year to members like me who are not even practising law, and double that to those who are, not to need pro bono representation. Lawyers are not even required to provide free representation to those who desperately need and, thanks in part to the Law Society’s cartelization of the legal services market, cannot afford it. Why is it entitled to something those in more need lack? Why does it need thousands upon thousands of (free) lawyers ― more than any client in the history of the universe ever had?

Moreover, there appears to be no limiting principle to the idea that the Law Society is entitled to conscript lawyers to represent it. If it can force us to advance its views and objectives with respect to “equality, diversity, and inclusion”, why not on other issues? If the Law Society comes to the view ― perhaps a not unreasonable view ― that its interests would be better served by the government of Ontario being formed by a given political party, can it mandate lawyers “promote” this party’s electoral fortunes? Can the Law Society, instead of hiring consenting lawyers ― and, presumably, paying them ― to defend its policies against Professor Alford and the CCF simply command some to work for it nolens volens? This would, to repeat, be a startling view ― and, to repeat also and give the devil its due, the Law Society itself does not take a position that commits it to advancing it ― but it seems to follow from Professor Woolley’s argument that there us “no regulatory impropriety in requiring” lawyers to advance particular views and values “to pursue the profession’s objectives”.

Professor Woolley is right that whether a lawyer’s heart is in his or her work for a client, or merely his or her brain and sitzfleisch, is irrelevant. But this is not true of the lawyer’s expression of his or her own views, where a lawyer is no more permitted to be hypocritical than any other person. Opposition to the Law Society’s “statement of principles” requirement proceeds in part from a sense that accepting it would require commitment to “equality, diversity, and inclusion” regardless of whether one adheres to these values (and arguably, more specifically, to how they are understood by the Law Society) ― and therefore, in many cases, hypocrisy. Professor Woolley claims that this is not so, because the requirement has nothing to do with personal belief, and is in effect a forced retainer of every licensed legal practitioner by the Law Society. Yet the Law Society does not think so. A power to conscript its members in this fashion would be an extraordinary one, and is quite unjustified in a free society. I see no reason to believe that it exists. Professor Woolley’s zeal in defending the Law Society is misplaced.

Uber and Civil Disobedience

I have a new post over at the National Magazine’s Blog, arguing that to the extent that Uber and other firms of the sharing economy breach the laws that prevent them from offering their services to the public, we should assess their claims that such laws are unjust on their merits, instead of rejecting them out of hand as either lawless or self-serving. Uber is engaged in a form of civil disobedience, acting on a principled position that the restrictions on taxi services that municipal authorities in various countries, including here in Canada, invoke to stop its operations cannot be justified in a free society. The fact that it stands to benefit financially if these restrictions are lifted is simply irrelevant to the justice of its claims. Civil disobedience, as a rejection of the authority of the law, is of course disquieting ― perhaps especially to lawyers ― but not always unhealthy. For, as Henry David Thoreau long ago observed, “[l]aw never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.” Anyway, there’s quit a bit there, so I’d encourage you to read the whole thing.

There was a story that has, at first glance anyway, nothing to do with Uber that would have liked to speak about, but couldn’t think of a way to work into the post: that of a family from Cornwall, in Ontario, also engaged in civil disobedience against a municipal by-law being applied to stop its children selling worms to neighbourhood fishers. They haven’t, in case you’re wondering, torn down their house to build a worm factory. The kids are digging the worms out of the ground in their own backyard, and selling them from their own front lawn. No matter. The city is fining them 250$ a day. The parents say they will keep paying the fines ― much like Uber does for its drivers, Frank Roncarelli did for Jehovah’s witnesses, and Thoreau’s aunt did for Thoreau.

Regulations preventing people ― from the children of Eastern Ontario to the zillionaires of Silicon Valley ― from putting their work and enterprise at the service of their fellows, near or far are innumerable. They are passed, sometimes out of sheer foolishness, sometimes out of nimbyism, sometimes at the behest of those who stand to benefit from limits on competition, without attracting much attention, and remain in force indefinitely, so long as no one raises a stink about them. Indeed, raising a stink is the only way to have some of them repealed. We should not condemn the hardy few who are willing to do so as lawless or self-interested. We should be grateful to them instead.


I am quite late on this, but I have only recently come across a post by Grégoire Webber on the UK Constitutional Law blog, arguing that the Supreme Court’s reasoning in Canada (Attorney General) v. Bedford, 2013 SCC 72, the decision striking down various prostitution-related provisions of the Criminal Code is based on flawed inferences from the fact that these provisions did not criminalize prostitution itself (i.e. the sale of sex). Prof. Webber argues that

[t]he judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law.

In prof. Webber’s view, this “unstated premise” is mistaken. That selling sex is not legally prohibited does not make it morally permitted. The Supreme Court compared the Criminal Code’s prohibitions on prostitution-related activities, which had the effect of making sex work more dangerous than it would have been in their absence, to a prohibition on wearing a helmet while riding a bicycle. The trouble, prof. Webbers contends, is that

[t]he assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.

If prostitution ―unlike riding a bicycle ― is morally wrong, then it is permissible for the legislature to “frustrate [it] by indirect means,” such as the criminalization of various activities surrounding it, which is exactly what the provisions invalidated in Bedford did.

With respect, I think that this argument misses the point. The issue in Bedford is not whether Parliament ought to be able to frustrate the commission of moral wrongs by indirect means, but whether the means it had chosen were permissible.

Take an example offered by prof. Webber ― say adultery ― and assume that a legislature wants to frustrate its commission without criminalizing it. (For the sake of convenience, make it a legislature in a unitary state, unencumbered by the division of powers under the Canadian constitution, albeit subject to a bill of rights exactly like the Canadian Charter of Rights and Freedoms). The legislature could do several things. It could fund couple-therapy programmes that would (hopefully) make for happier marriages and less adultery. It could require anti-adultery education in schools. It could make a public promise of fidelity a requirement for entering into a civil marriage. It could implement rules punishing adulterous spouses in the event of a divorce, for example depriving them of property or support entitlements they would otherwise obtain. It could also amend the criminal law to provide that the killing of an adulterous spouse is not to be treated as a murder, but as justified self-defence.

The first two of these options would obviously be legally permitted, and I think there is nothing wrong with them from a broader perspective of political morality (though mandatory anti-adultery education sounds a bit creepy). They may or may not be effective, but not legally or morally problematic. A mandatory promise of fidelity may be constitutionally problematic as a violation of freedom of conscience, as I have argued here, insofar as there is disagreement in society over the meaning of marriage and the value (or interpretation) of fidelity. It would also, I think, be morally disturbing, because overbearingly paternalistic. Family law rules punishing adulterous spouses would probably not be unconstitutional, unless it is shown that their application punishes one gender more than the other, in breach of the constitutional guarantee of equality. Morally, such rules would be troubling, not least because of the perverse incentives and acrimony they would generate; even assuming that their purpose would be worthwhile, they could easily do more harm than good. Finally, I think it is quite clear that exempting the killers of adulterers from the law of murder would be both immoral and unconstitutional, no matter how effective such a measure might be at “frustrating” adultery. Subjecting adulterers, no matter how badly we think of them, to an increased risk of death would be a violation of the rights to life and to security of the person, and an entirely disproportionate one.

Indeed, so would be a rule allowing police officers to shoot persons whom they caught in the process of committing actual crimes in situations where doing so is not necessary to preserve anyone’s life or safety. That the activity a legislature seeks to frustrate is a morally ― or even legally ― prohibited one is simply not a sufficient justification for depriving those involved in the activity of certain rights.

Thus, even assuming that sex work is morally wrong ― which I do not believe (and which, as I read his post, prof. Webber might not believe either) ― Parliament is not justified in seeking to frustrate it by any means. The means it chooses, just like the means it chooses to prevent the commission of actual crimes, must still comply with the Charter, and in particular with the security of the person guarantee that was invoked in Bedford.

H/T: Paul Daly

You Don’t Have Two Cows

The laws of Ontario prohibit the sale or “distribution” of unpasteurized milk or products (like cheese) made from unpasteurized milk. Such milk can contain microbes and cause the people who drink it or eat products made from it to become ill. But some people are prepared to take the risk. They even claim, although without acknowledged scientific basis, that raw milk can have health benefits. A couple of farmers have come up with what they thought was an ingenious solution. Since the law does not prevent a person from drinking his or her own cow’s raw milk, they sold “cow-shares,” described as making those who bought them “part owner[s] of the milk production” of a cow of the farmers’ herd, and giving them access to raw milk, for an additional fee said to represent payment for the farmers’ taking care of and milking the cow.

Provincial authorities were not impressed, and fined the farmers for distributing unpasteurized milk. The farmers challenged the applicability of the laws prohibiting its distribution to their “cow-shares,” but also argued that, if the law was applicable to them, it was a violation of the guarantees of the security of the person and of liberty in s. 7 of the Canadian Charter of Rights and Freedoms. Yesterday, in R. v. Schmidt, 2014 ONCA 188, the Ontario Court of Appeal rejected their arguments.

On the applicability of the prohibition on the sale of raw milk to “cow-shares”, the court found that

[t]he oral cow-share agreement does not transfer an ownership interest in a particular cow or in the herd as a whole. The member does not acquire or exercise the rights that ordinarily attach to ownership. The member is not involved in the acquisition, disposition or care of any cow or of the herd. The cow-share member acquires a right of access to the milk produced by the appellant’s dairy farm, a right that is not derived from an ownership interest in any cow or cows (par. 25).

Indeed, although the shares were supposedly denominated in fractions of cows (the lowest being 1/4), the total of the fractions added up to more than the herd’s head-count. In short, “the cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large by the appellant” (par. 26).

As for the Charter claim, the Court did not find a violation of either the right to the security of the person or of liberty. Regarding the security of the person, although some consumers of raw milk consider it as having health benefits, there was no objective evidence of these benefits, and subjective belief is not enough to make out a violation. Nor, says the court, is preventing a person from consuming a product on the ground that it could be dangerous equivalent to forcible medical treatment, since there is no interference with the person’s “bodily integrity” (par. 36). Regarding liberty, the Court was bound, and saw no reason to depart from, the Supreme Court’s jurisprudence holding that the choice of a line of business was not protected by the Charter. Like the choice to smoke marijuana, considered by the Supreme Court in R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, the choice to drink raw milk does not go to the core of personal autonomy which the Charter protects. Besides, and in any event, the ban on the sale of the distribution of raw milk does not breach principles of fundamental justice. Being motivated by demonstrated health concerns, it is neither arbitrary nor overbroad.

Legally, this is surely the correct result. The Supreme Court would need to overturn both its narrow reading of “liberty” and its rejection of the harm principle is one of the “principles of fundamental justice” to make the farmers’ claim viable, which is too bad ― if, that is, the microbes that can be transmitted through raw milk cannot subsequently be passed on from person to person. If they can, then the ban on raw milk is not merely paternalistic, but actually protects third parties who, unlike the consumers of raw milk did not undertake the risks voluntarily.

Perhaps a differently organized cow-share, designed to respond to the Court’s concerns ― identifying the specific cow a member owns, making the number of shares correspond to the number of cows, supplying the member with his or her own cow’s milk, etc., ― might still escape the application of the statute. Whether it would workable (and just how expensive it would be) is a different question. In the meantime, though cow-share members might think that they have two cows, or 1/4 of a cow anyway, they really don’t.

Égalité, Liberté?

As I was thinking about the application of the liberty interest protected by s. 7 of the Canadian Charter of Rights and Freedoms to the family/marriage context, which I have written about here and here, a question occurred to me: why wasn’t it invoked to argue for the unconstitutionality of denying same-sex couple the opportunity to marry? The question is, of course, academic, since same-sex marriage has now been the law of the land for many years. But I am, after all, a wannabe academic, and find it quite interesting.

Probably the most significant judicial decision on the subject was Halpern v. Canada (Attorney General), 65 OR (3d) 161 (Ontario C.A.); it held that the restriction of marriage to opposite-sex couples was a breach of the equality guarantee of s. 15(1) of the Charter, while rejecting a church’s claim that it was a violation of its freedom of religion. But the s. 7 liberty guarantee was not even raised before the Court. The same was true in Hendricks c. Québec (Procureur général), [2002] R.J.Q. 2506, a decision of the Superior Court of Québec.

Yet the Supreme Court’s jurisprudence recognizes (and already recognized by the time these cases were decided) that “‘liberty’ is engaged where state compulsions or prohibitions affect important and fundamental life choices,” as Justice Bastarache put it, writing for the majority in Blencoe v. British Columbia (Human Rights Commission), 200o SCC 44, [2000] 2 S.C.R. 307, at par. 49. It seems to me that the choice of a spouse is quite obviously a “fundamental life choice,” or, to take up language from Justice Laforest’s concurring opinion in  Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at par. 66, a matter “fundamentally or inherently personal such that, by [its] very nature, [it] implicate[s] basic choices going to the core of what it means to enjoy individual dignity and independence.” And it also seems to me that it would not have been difficult to argue that denying homosexuals this fundamental life choice is arbitrary and therefore not in accordance with principles of fundamental justice ― not more difficult, in any case, than the very similar argument that was made in the context of the equality analysis.

Why, then, did the applicants in Halpern and Hendricks not invoke s. 7? Why, indeed, is the public discourse about same-sex marriage only concerned, so far as I can tell, with equality and not liberty ― why do we talk about marriage equality and not marriage liberty?

I can think of one way to argue that marriage isn’t about liberty at all. It would involve saying that marriage is not something that people do, but merely a package of benefits that they get. In that case, it makes little sense that denying access to it is a breach of a person’s liberty, though if the reason for the denial is discriminatory, it is a breach of equality rights. (Similarly, it would have made no sense for the appellants in Egan v. Canada, [1995] 2 S.C.R. 513, the case in which the Supreme Court first recognized that sexual orientation is a prohibited ground of discrimination under s. 15(1) of the Charter, to argue that the denial to one of them of a spousal allowance because they were in a same-sex rather than opposite-sex relationship was a breach of their liberty.) But I am pretty sure  that neither the advocates nor the opponents of same-sex marriage think about it as a mere package of benefits granted by the state. They see it as something more, something people engage in and not only receive. If so, then restricting it is a breach of people’s liberty.

The only other explanation for the absence of liberty from the same-sex marriage discourse I have come up with is political. Same-sex marriage has been, for the most part, a cause of the “progressive” side of the political spectrum. Its advocates tend to be people who just are more concerned with equality than with liberty ― not just in the matter of marriage, but in most, if not all, of their political views. Equality-based arguments have more appeal to them than those based on liberty. Perhaps. But I doubt that that is all there is to this curious matter, and would be disappointed it were. What am I missing?

All that is not to say that the equality arguments in favour of same-sex marriage are mistaken or unimportant. Discrimination is at the heart of the denial to same-sex couples of the opportunities that their opposite-sex counterparts have always enjoyed. And so far litigation is concerned, there might be no point in invoking an additional argument if one is sure to prevail on another one (though recall that in Halpern, the applicants asserted a religious freedom claim, which in my view was much less plausible than the one based on liberty, and which indeed went nowhere). Still, I find the absence of liberty from the discourse about marriage perplexing, and the same-sex marriage litigation will remain something of a lost opportunity for courts to develop this branch of our constitutional jurisprudence.

Vies Communes

Il y a quelques jours, je parlais des promesses que l’État peut ou ne peut pas exiger de gens à l’occasion de leur mariage. Cependant, dans les faits, les provinces de common law n’exigent pas que les gens qui se marient civilement promettent quoi que ce soit au sujet de leur vie future. Le Québec, lui non plus, n’exige pas de promesses ― il impose tout simplement les règles. Suivant l’alinéa 1 de l’article 374 du Code civil, « [l]e célébrant [d’un mariage] fait lecture aux futurs époux, en présence des témoins, des dispositions des articles 392 à 396 », qui réglementent « les droits et les devoirs des époux ». Or, il y a lieu, selon moi, de se demander si ces règles sont constitutionnelles.

C’est l’article 392 du Code civil qui est probablement le plus important ici, les suivants en étant, en partie, une sorte d’élaboration. Cet article dispose que

Les époux ont, en mariage, les mêmes droits et les mêmes obligations.

Ils se doivent mutuellement respect, fidélité, secours et assistance.

Ils sont tenus de faire vie commune.

Si le législateur avait sans doute le pouvoir d’adopter le premier alinéa, qui met en oeuvre, dans le contexte du régime juridique du mariage, le droit à l’égalité garanti par la constitution, les deuxième et troisième alinéas me semblent plus douteux.

Ainsi, il me semble qu’imposer un devoir de « respect » heurte le droit à la liberté de la pensée et d’opinion protégé par l’article 2(b) de la Charte canadienne des droits et libertés. Le gouvernement pourrait certes tenter de justifier cette atteinte en vertu de l’article premier de la Charte, au nom de quelque chose comme la promotion de l’harmonie familiale, mais je ne suis pas sûr qu’un objectif aussi vague justifie le contrôle non seulement d’actes, mais aussi de la pensée des individus.

L’imposition d’un devoir de fidélité me semble aussi constitutionnellement douteuse, comme je l’ai dit dans mon précédent billet.  Le droit à la liberté protégé par l’article 7 de la Charte ne s’étend pas seulement à la liberté physique. Comme l’a conclu la Cour suprême dans Blencoe c. Colombie-Britannique (Human Rights Commission), 2000 CSC 44, [2000] 2 R.C.S. 307, au par. 49, il « est en cause lorsque des contraintes ou des interdictions de l’État influent sur les choix importants et fondamentaux qu’une personne peut faire dans sa vie ». Comme l’explique la Cour suprême dans les paragraphes suivants, ces choix importants et fondamentaux incluent, par exemple, l’éducation et les soins que les parents donnent à leurs enfants, la décision d’une femme d’avorter (une position d’abord défendue par la seule juge Wilson dans R. c. Morgentaler, [1988] 1 R.C.S. 30) ou même le choix de « flâner » dans un certain lieu. Il me semble plutôt évident que les choix qu’une personne fait dans sa vie sexuelle et amoureuse en font également partie, et que, par conséquent, l’imposition d’un devoir de fidélité porte atteinte à l’article 7 de la Charte. Comme de telles atteintes ne sont pratiquement jamais justifiables en vertu de l’article premier, elle est inconstitutionnelle.

Il en va de même, selon moi, de l’obligation « de faire vie commune » imposée par le 3e alinéa de l’article 392 du Code civil. L’expression « vie commune » pourrait peut-être avoir un sens abstrait aussi bien que concret, mais le texte anglais de cette disposition (« [the spouses] are bound to live together ») et peut-être aussi la référence au choix commun de la résidence familiale à l’article 395 me semblent indiquer que c’est bien le second que le législateur lui donne. (En pratique, cette disposition semble surtout être invoquée comme motif de nullité de mariage par lesquels un des époux visait, à l’insu de l’autre, d’acquérir le statut de résident permanent au Canada, un contexte qui ne nous renseigne pas nécessairement sur son sens précis.) Or, l’État peut-il forcer des personnes de « faire vie commune », c’est-à-dire de vivre ensemble? Encore une fois, il me semble qu’il s’agit d’un de ces choix importants, fondamentaux et personnels avec lesquels il ne peut interférer. Un arrêt de la Cour suprême, Godbout c. Longueuil (Ville)[1997] 3 R.C.S. 844, est pertinent ici. La Cour y a conclu à l’invalidité d’un règlement qui obligeait les fonctionnaires de Longueuil à résider dans la municipalité. La Cour a unanimement conclu que le règlement violait l’article 5 de la Charte des droits et libertés de la personne (qui s’applique évidemment au Code civil), qui protège le droit à la vie privée. Trois juges ont également conclu que le règlement violait l’article 7 de la Charte canadienne (les autres ont préféré ne pas se prononcer sur la question). La question n’est pas tout à fait identique, mais je crois que si l’État ne peut dicter à un fonctionnaire vivre, il ne devrait pas pouvoir dicter à des citoyens qu’il doivent vivre avec leur époux. Certes, la grande majorité des couples mariés choisira de vivre ensemble. Cependant, les circonstances personnelles peuvent varier, surtout dans ce monde où les gens doivent souvent se déplacer pour le travail ou les études. Le législateur n’a aucun droit de regard sur les choix que font les gens dans ce contexte.

Ce qui me semble être l’inconstitutionnalité plutôt claire de certaines obligations imposées par le Code civil au époux illustre le que, si le droit est souvent, et à juste titre, le reflet des pratiques courantes de la société, il ne peut l’être toujours. On ne peut toujours ériger la normalité (entendue dans un sens sociologique, mathématique, de la pratique du plus grand nombre) en norme. Il ne faut pas régler la vie commune sur les vies communes.

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.