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.

The Real Contempt

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

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

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

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

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

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

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

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

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

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

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

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

The Fog of Law

The Prime Minister has announced that, should his government return to power after the election, it will seek to enact legislation criminalizing the travel to some parts of the world, considered to be hotbeds of terrorism. Both the list of areas in question and the details of the legislation are sketchy at this point, so it is hard to say anything definitive about this proposal. Craig Forcese considers both the merits of this proposal and its constitutionality, on the basis of what little is known about it, and concludes that while some version of a travel ban would be both a good idea and constitutional, Mr. Harper’s proposal, which would apparently include exceptions ― subject to a reversed burden of proof ― for journalists, humanitarian workers and, maybe, for people go to the prohibited zones to fight terrorists as well, might be neither.

Unlike prof. Forcese, I’m not qualified to speak to the merits of Mr. Harper’s idea. However, I want to venture some thoughts about its constitutionality. Overall, my views are similar to prof. Forcese’s. I think that some form of travel ban may well be constitutional, though the exceptions make defending the proposal put forth by Mr. Harper more difficult to defend. In this post, I will consider four Charter rights potentially implicated by the proposal, as well as the arguments that might justify limiting these rights under s. 1 of the Charter.

The most obvious place to start in assessing the constitutionality of a travel restriction is surely section 6(1) of the Charter, which states that “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” Prof. Forcese says that “it is not clear … that the s.6 right to enter and leave Canada includes ‘the right to leave Canada and go to a war zone of your choosing’.” I would put the same thing even more strongly: the constitutional text speaks of a “right to … leave Canada” ― not a right to go anywhere in particular. I suspect that what inspired its entrenchment (and, earlier, the enshrinement of international mobility rights in the International Covenant for Civil and Political Rights) was the practice of totalitarian (especially Communist) regimes to prevent their citizens from leaving the country whether permanently or even temporarily ― or, having allowed a person to leave, of stripping him of citizenship and thus preventing his return. A targeted travel ban is very far from that sort of thing. It is arguable, I suppose, that the longer the list of prohibited destinations, the more illusory the right to leave the country becomes. But for now that is a theoretical concern. In my view, the government would have a very strong argument on this point. That said s. 6(1) has not received much attention from the Supreme Court, except in the context of extradition and the transfer of Canadians imprisoned abroad back to Canada. Its contours in other circumstances remain to be drawn.

A related argument involving a constitutional right that has received even less attention from the Supreme Court is that based on the freedom of the press protected by section 2(b) of the Charter. Prof. Forcese suggests that “the reverse onus ― requiring a journalist to prove they are journalist to avoid going to jail for travelling to a designated zone ― could also raise novel new s. 2(b) freedom of the press issues.” Indeed, while there is little if any jurisprudence to rely on for such a claim, it would be a plausible one if, as Benjamin Oliphant has proposed in a fascinating article, the freedom of the press were interpreted as protecting newsgathering activity. A journalist travelling to a designated area to collect information in order to inform the Canadian public of the goings-on there would, quite clearly, be engaged in newsgathering, and thus in a constitutionally protected activity. (Mr. Oliphant suggests excluding “inherently harmful activity” from the scope of this protection, however; I suspect that travel, even to a terrorist-infested warzone, wouldn’t qualify as “inherently harmful,” but it’s not entirely clear to me how that might pay out.)

It is worth noting the negative implications of this argument, however. “Freedom of the press” is explicitly protected by the Charter. “Humanitarian work,” “fighting terrorists,” or whatever other activity people might want to engage in in the areas subject to the travel ban are not ― even in Canada, never mind abroad. To me, this seems to strengthen the case against reading s. 6 so as to include the right to travel to some specific foreign destination for these purposes. Nor would this right be protected by the liberty guarantee of s. 7 of the Charter. While the Supreme Court has interpreted this guarantee to encompass “fundamental personal choices,” it seems very unlikely that it would treat an occupational choice, even a humanitarian one, as fundamental enough. That said, Mr. Harper’s travel ban proposal would still implicate s. 7 if penalties for breach include imprisonment. I will come back to that point shortly.

First though, I want to discuss the presumption of innocence, entrenched in section 11(d) of the Charter, and the possibility of justifying an infringement under s. 1. Prof. Forcese points out that “while the jurisprudence under [s. 11(d)] and its application to defences is less than a paragon of clarity, it is still a meaningful hurdle for the government.” Indeed, it seems to me that a finding that requiring people to prove the reasons for their presence in a prohibited area, instead of asking the prosecution to prove that their purpose in being there was not among the authorized exceptions, infringes the presumption of innocence is likely enough.

Can the reverse onus (and, possibly, the burden it puts on the freedom of the press) be justified under s. 1 of the Charter? Here I part ways with prof. Forcese, who says that he doesn’t “think [he] could ever concoct a s.11(d) or s.2 justification that would satisfy s.1.” I think that the way for the government to at least try justifying the reverse onus aspect of its travel ban would be to point to the difficulty for the prosecution of gathering evidence in prohibited areas, and perhaps the comparative ease with which the persons who actually travel there might be able to collect evidence of their activities. Prof. Forcese says that “evidence necessary to prove the many complicated elements of a terrorism offence [is] often unavailable when it comes to proving actual conduct in a war zone,” which might explain the paucity of prosecutions under these offences in Canada and elsewhere. Arguably, the same logic can be applied to the travel ban, and invoked to justify requiring the accused, rather than the prosecution, prove the reasons for their travel, and indeed make the reverse onus the least restrictive means of attaining the objectives of the travel ban.

Just what would such an argument, if it is accepted (and I don’t feel confident prognosticating whether it would be, though I think that that’s at least a real possibility) prove? A couple of Supreme Court decisions are interesting here. One is R. v. Keegstra, [1990] 3 S.C.R. 697, the hate speech case. It is better known for what it said about freedom of expression, but there was also a s. 11(d) argument involved, because the Criminal Code provided a defence of truth to a hate speech charge ― but one that the accused had to prove. The majority said that while a violation of s. 11(d), the reverse onus was justified under s. 1, in part because proving the falsity of a statement beyond reasonable doubt is too difficult, and because the harm caused by hate speech occurs even if what is said is true, so that it is important not to let the accused off the hook too easily.

The other relevant case is R. v. Laba, [1994] 3 S.C.R. 965, which considered the constitutionality of a requirement that a person accused of selling ore or other minerals containing precious metals prove his or her legal entitlement to do so. This was, concededly, a violation of s. 11(d), but the Supreme Court concluded that some infringement of the presumption of innocence was justified because it was important to prevent trade in stolen ore, and the technology that would allow the Crown to prove the provenance of an ore sample and thus establish that it had been stolen was not yet good enough. However, the Court also said that instead of having the accused prove their entitlement to be selling the ore on a balance of probabilities, the requirement that the infringement be minimally impairing of the s. 11(d) right meant that it should be enough for them to present evidence that raises a reasonable doubt as to their guilt.

We don’t know, of course, what form the reverse onus aspect of the travel ban would take. And even if it is a full requirement to prove one’s reason for going to a prohibited zone on a balance of probabilities, it is not clear to me whether the courts would see the case as being more like Keegstra or Laba. In R. v. Keegstra, [1996] 1 S.C.R. 458, the Court said that the two cases were distinguishable, but did not actually explain why. I suppose the difference is this idea that hate speech is harmful even if within the scope of the defence. What about travel to prohibited zones? If I read prof. Forcese correctly, he suggests that it might be, but perhaps the very existence of the defence should be taken to reflect a governmental judgment that this is not so.

I come back now to the s. 7 issue I had set aside before. It might be something like a trump card against the s. 1 argument I have just described. The possibility of imprisonment for breaching the travel ban would have to be in accordance with the principles of fundamental justice. The relevant principle here is that first identified in Chief Justice Dickson’s judgment in R. v. Morgentaler, [1988] 1 S.C.R. 30 (and later recalled ― although not found to be applicable ― by the majority in R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187): “when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.” The issue here is was whether the difficulty of obtaining evidence in a prohibited area would mean that not only the prosecution, but also the defence would it it impossible to do so. (By contrast, in Laba, the Court was of the view that an innocent person would not find it difficult to introduce the evidence required at least to raise a reasonable doubt.) As I suggested above, it seems to me that the accused should be in a better position than the prosecution, but I don’t know enough to really tell.

All that to say, it is by no means impossible that a travel ban, even in the form mooted by the Prime Minister, would be constitutional, but also by no means certain. The matter is quite complicated, not least because many of the constitutional issues that the proposal raises have not been much explored. Uncertainty isn’t only a characteristic of war zones. It is also, sometimes at least, a prominent feature of constitutional law.

UPDATE: Kent Roach takes on the travel ban proposal an interview with UofT News. He thinks that the ban would infringe ss. 6(1) and 11(d) of the Charter, and also seems more skeptical of its merits than prof. Forcese. Also, have a look at CM’s comments below. My own views haven’t changed, however.

FURTHER UPDATE: Michael Plaxton Tyler Shandro comments over at the Policy Options blog (apologies for my confusion about the authorship of the post!). He seems pretty confident that Mr. Harper’s proposal, in its current form, already takes the Charter issues into account and is constitutional. Still, I am not persuaded that the objections I discuss above can be so easily dismissed.