Tag: procedure

One Does Not Simply

Ensuring access to justice isn’t simply a matter of the legal profession’s being more open to “experiments”

Justice Abella has published an op-ed (paywalled) in The Globe and Mail ― yes, another one. It’s being widely shared, with apparent approval, on Canadian law Twitter ― which may or may not reflect the sentiment of the profession more broadly. Justice Abella argues, in a nutshell, that the justice system is hidebound and in dire need of root-and-branch reform to be able to actually provide justice to ordinary litigants. Wanting to improve access to justice is, to be sure, a fine sentiment. However, Justice Abella’s analysis of the system’s problems ― which are real enough ― is remarkably simplistic, and she proposes no solution at all.

Justice Abella writes that the “public [has] been mad for a long, long time” about access to justice and, apparently taking the mad public’s side, wonders “why we still resolve civil disputes the way we did more than a century ago”. Her evidence for the claim that we do so is that in 1906 “Roscoe Pound criticized the civil justice system’s trials for being overly fixated on procedure, overly adversarial, too expensive, too long and too out of date”, and a claim that a an early 20th-century barrister “could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?”

Justice Abella attributes this situation to the fact that “the legal system … resist[s] experimenting with justice in order to find better ways to deliver it?” and keeps doing things the way it does for no other reason than “Because we’ve always done it this way”. Comprehensive reform ― not “incremental change” but “a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts” ― is necessary.

I have no courtroom experience, let alone ability to judge the public’s mood with any accuracy, so I cannot speak to the accuracy, if any, of what Justice Abella’s description of the justice system’s current state and of the popular reaction to it. I will reiterate that I do not believe that Supreme Court judges can, or should try to, channel “social values” or otherwise make themselves the purported spokespersons of the people. That’s not their job, and a good thing too, because they are supremely unqualified for it. But be that as it may, even if we grant, for argument’s sake, that Justice Abella’s descriptive claims are accurate, it is still the case that her analysis is devoid of all perspective. It considers the issue neither across time, nor in comparison with the state of affairs elsewhere in society. The resulting take is insular and unsound.

A historically informed view of the problem that Justice Abella discusses would have to acknowledge that it is very, very old. I’m no great historian, sadly, but as best I can tell access to justice and the remoteness of the courts from the common people were an issue going at least as far back as the English revolution in the 17th century. The expense and the incomprehensibility of legal proceedigns exercised Jeremy Bentham at the turn of the 19th. And then, as Justice Abella herself observes, they frustrated Roscoe pount in the early 20th, and any number of people in the 21st. People put forward various solutions too ― the puritans tried to establish courts outside London; Bentham was convinced that writing down the common law “into one great book (it need not be a very great one)” that would be “read through in churches, and put into boys’ hands, and made into exercises when they are at school” would do the trick. None of that worked.

One might of course conclude from this that the legal profession and the judiciary are, if anything, even worse than Justice Abella imagines. But isn’t the more plausible explanation for the persistence of access to justice problems that they are genuinely very difficult to solve, rather than that they are caused by laziness and obduracy? I will return to this issue shortly.

Before I do so, though, let me note that it’s simply not true that the rest of society has evolved beyond all recognition while the law has allegedly stood still. The work of academics and (perhaps even more so school teachers) looks much as it did not only 100, but 800 years ago. So does that of people in any number of other trades, if we put to one side the accumulation of technical knowledge, in the same way as Justice Abella puts to one side the evolution of substantive law. Even in medicine, to which Justice Abella appeals as an example of a forward-looking profession unafraid to “experiment with lives”, things are more complicated than she allows. The work of many specialist doctors has no doubt by transformed by all manner of gadgets. But what about that of general practitioners? Is it really so unrecognizable from a century ago?

The thing is, this is not because GPs, or chefs, or professors, are ― like lawyers ― hidebound and smug. Justice Abella simply implies that new and radically different is better, it is not clear why that should be. New can be better, but it need not be. If things are the way they are for some important reason, then ― so long as the reason is still present ― it is wise to keep them as they are, unless some weightier reason impels change.

And this brings me back to the question of why access to justice problems are genuinely difficult to solve. There is, in fact, a good ― although perhaps not a decisive ― reason for having those procedures whose existence so annoys Justice Abella. They are widely thought to promote more accurate decision-making, and they support the human dignity of the people who find themselves in front of the courts by giving them a chance to be heard and, no less importantly, to test and challenge the case that is being made against them. It is for these reasons that some or all of these procedures are required when people’s rights and obligations are being determined not by conventional courts, but by administrative decision-makers. Go back to 1906, and these tribunals often operated very differently, with no procedural safeguards to speak of. Yet this aroused criticism, and the critics prevailed; change came, partly through legislation and partly through decisions of the courts, widely celebrated now although they would have been anathema to the champions of experimentation and efficiency of the Progressive era.

In my last post I wrote about the trade-offs involved in designing administrative procedures. If procedure is good, there can be too much of a good thing. Additional procedural safeguards eventually yield little improvement in terms of more accurate or even more dignity-respecting adjudication, yet their cost, both to the taxpayer and to the parties, can become intolerable. Gerard Kennedy (whom I thank for his kind words about my post) has suggested that Justice Abella made just this point about trade-offs. But, respectfully, that’s not how I read her op-ed. There is no acknowledgment of trade-offs in Justice Abella’s argument; she does not recognize that there are reasons, beyond simple resistance to change and unwillingness to “experiment”, for the system being as it is. She blames the legal profession’s conservatism, and has no time for other considerations.

All that is not to say that there need be no reforms. My own preference, expressed since the earliest days of this blog, is for deregulating the legal profession. Justice Abella, I rather suspect, might not be on board with this particular experiment, but I would love to see it. Lack of competition is bound to make the legal system less innovative than it might be, so bringing about more of it is likely to ameliorate the problems Justice Abella is concerned about. But we should not delude ourselves about how much this, or any other, reform might accomplish. For one thing, so long as the state exists, the court system, if not the legal profession, is bound to remain a monopoly. Sure, alternative dispute resolution exists, but it is not suitable for resolving certain kinds of disputes. And, beyond that, those trade-offs, and the need for a system that provides substantive justice and procedural fairness, and not only expediency, is not going away.

Put to one side the question of whether a person who is sitting at the apex of the legal system, and has been for 16 years, who has been a judge for almost 45, who has accepted innumerable plaudits from the legal profession and academy, should really be criticizing the system as if she is not part of it. Leave it to moral philosophers. But we need not wait for their judgment to say that Justice Abella’s argument is driven by the conceit that solving the problems she identifies would be easy if only the system were less stuck in the past and more willing to try new approaches. The fact that she does not even begin to tell us what these approaches might be ― that she proposes no new idea, even one as daft as Bentham’s public readings of the not-very-great law book ― should be a hint: things aren’t as simple as she would like us to think.

There is a word for this tactic of setting up an alleged conflict of “the public” or “the people” against some obstructionist, and probably self-interested, elites standing in the way of change; of denying the difficult trade-offs that change would require; of claiming that a transformation of society, such that trade-offs can be dispensed with altogether, is around the corner if only the resolute leaders in communion with the enlightened people were in change. It’s a word that one would not have associated with Justice Abella, but one has to, given that this rhetoric is precisely what she deploys in this op-ed. The word is, of course, “populism”. In the previous op-ed, linked to at the beginning of my post, Justice Abella, denounced populism, arguing that “[m]any countries around the world … have made Faustian bargains, selling their democratic souls in exchange for populist approval.” This was, she wrote, “unconscionable.” But that was then, I suppose, and this is now.

Just as she does with the Rule of Law, alternatively disparaging and extolling it as suits the circumstances or the taste of her audience, Justice Abella can castigate populism or engage in it. One might think this is, indeed, unconscionable. But, perhaps, things are not so bad. As I wrote in commenting on that previous op-ed,

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority.

She might simply not understand what she is doing. I’m not sure about this, but she really might. Either way, July 1, 2021, when she must at last retire from the Supreme Court, cannot come soon enough.

How Much Justice Can You Afford?

The trade-offs involved in designing fair administrative procedures

In the last administrative law class before the extended break into which the present plague forced us (and which is about to come to an end, as we resume teaching ― online), I taught procedural fairness. One of the points I tried to impress on my students is that procedural fairness is (like so much else) a matter of trade-offs. More elaborate procedures meant to ensure that administrative decisions are fair to those whom they affect have benefits ― but they have costs too. The question for those who design the procedures to be followed by a given decision-maker ― legislatures, administrative entities (and their legal advisors!), and eventually courts ― is how to optimize these trade-offs.

This point may bear repeating here. I teach New Zealand law, of course, but the principles and indeed the language of Canadian law of procedural fairness is not very different from those to be found in New Zealand or the United Kingdom. Early Canadian cases on the duty of fairness, notably Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311, referred to a New Zealand appeal decided by the Judicial Committee of the Privy Council, Furnell v Whangarei High Schools Board, [1973] AC 660. The leading Canadian case, Baker v  Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, also draws on UK cases to some extent, rather than treating them as utter heresy, in the way Canadian cases on substantive review, notably Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, treat cases like Anisminic Ltd v Foreign Compensation Commission, [1969] 2 AC 147.

In these (and other) cases, trade-offs tend not to be discussed explicitly, which is why I think this post is warranted, even though its claims should be, I think, fairly obvious. The language used is, rather, that of justice, fairness, doing the right thing, and general warmth and fuzziness. In Furnell, Lord Morris of Borth-y-Gest, for the majority , explained that “natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’”. (679) The majority in Nicholson adopts this passage, as do a number of other Canadian cases. In Baker, Justice L’Heureux-Dubé writes that

the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [20]

At the same time, however, there is much talk of flexibility. This should be a hint. If the issue were one sided, we would always want to have more fair play, more open procedures, more opportunities for those affected to put forward their views. There would be no need to modulate the duty of fairness; it would be better to maximize it in every case.

And to be, well, fair, to the courts, their recognition of this issue is sometimes explicit. Justice L’Heureux-Dubé’s reference to the “context” of administrative decisions and may well push to expand, as well as to contract, the duty of fairness in a given case. But other judicial statements are less ambiguous. For example, in Cardinal v Director of Kent Institution, [1985] 2 SCR 643, Justice Le Dain insisted that the requirements of fairness he found applicable

are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. (660)

And, more broadly, in a passage from Pearlberg v Varty, quoted in Nicholson, Lord Pearson pointed out that “if there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed”. Such frankness is not always to be found, however. Besides, frank though it is, Lord Pearson’s statement strikes me as still incomplete.

It is true, of course the elaboration of procedural safeguards comes at the cost of efficiency (not necessarily in its technical sense, but simply as speediness) and economy. But not only to the administration. For one thing, the administration here is only a stand-in for government and, in turn, for the voters who mandate it, however indirectly, and for the taxpayers who fund it. So it is worth pondering the fact that the government staffs, and the taxpayers pick up the bill for, the tribunals or other decision-making agencies, and the courts that engage in judicial review. The government, and again the taxpayers, also pay for lawyers who defend administrative decisions. Government officials who provide process for people are also being paid ― and they are taking time out of their schedules that could presumably be used for something else.

But the government and the taxpayers are not the only ones bearing the costs of “the elaboration of procedural safeguards”. So do the affected parties, who are also expending time and resources on process. If you are told that you have a right to be heard and to represented by a lawyer, you’ll want to prepare and to hire a lawyer. That ain’t cheap, in terms of time and money. Each additional opportunity to make submissions, each additional hearing, each additional cross-examination is an invitation to spend more time and money, to say nothing of emotional investment. Administrative decision-making is often said, as for example by the majority in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, to be “speedier and less expensive” than adjudication in the courts. But there is no law of nature that says that this must be so, and even if administrative tribunals have a relative advantage, this does not mean that they achieve speed and affordability in some absolute sense.

So administrative procedures imposed in the name of fairness have costs, some of them falling on the administration itself, and some on those being administered. Of course they do have benefits too, and these benefits are also distributed in ways that the language of judicial decisions does not always make obvious. Of course, an opportunity to be heard to be given a decision that one can accept as consistent with fair play even if unsatisfactory are very important benefits ― benefits that have to do with the value of human dignity, as Jeremy Waldron points out (primarily in relation to courts, but the point generalizes) in “The Rule of Law and the Importance of Procedure“. These benefits that accrue primarily to the parties affected by administrative decisions.

But other benefits that are expected to be provided by more elaborate administrative procedures will accrue more widely. There are good governance benefits, for example, resulting from insofar as administrative procedures leading to more, or better, information being taken into account by decision-makers, and this, in turn, translating into more rounded and sensible decisions being made, into local knowledge displacing or at least supplementing the preconceptions of bureaucratic planners. There are Rule of Law benefits from the laws are enforced in a non-arbitrary way, by non-biased officials ― at least provided that the laws are minimally decent. There are even democratic benefits, insofar as voters want those laws enacted by legislatures to exist and be enforced in accordance with their terms (a big, and often unwarranted assumption, to be sure).

And so, to repeat, the question for those who are in charge of desigining administrative procedures is how to balance the costs and the benefits. One general point is that, as with much else, the marginal cost of “the elaboration of procedure safeguards” goes up, while the marginal benefit that it produces goes down. Some elementary duty to appraise a person subject to an administrative procedure of what is going on and an opportunity to make written submissions is likely not to be especially onerous on the either the administration or the affected party, while providing a substantial gain (in terms of making the affected party feel better, of leading to more accurate decisions, etc) over a bureaucrat deciding on a whim in his or her office. The gain from moving from a written procedure to an oral hearing with lawyers and cross-examination may well be less, though it might still be significant ― in some cases (for example, when credibility is in issue), while the cost may well be greater. The gain from having an appeal procedure is likely to be less still: if the decision-maker at first instance was competent, most of his or her decisions will be acceptable, even if the appellate process can improve on them somewhat. For any given decision, there is a point where the costs of additional process will outweigh the benefits. The trick is to find this point, or something near enough to it.

One cannot, I suspect, meaningfully generalize much beyond that, and the courts are right to emphasize the case-by-case nature of the inquiry into the duty of fairness. Different kinds of decisions will have different costs and benefits. Some parties are better able to bear their share of the costs than others. Some decisions are so routine that additional procedural safeguards will yield little advantage. Some decisions are preliminary and defects can be rectified at a later stage.

The trouble is, to repeat, that costs and benefits are both spread among different people and groups of people. It may be that adding or withholding process will provide benefits to some while imposing costs on others. How to balance that is not obvious, to put it mildly. No one group involved in designing administrative procedures ― legislatures, the administration itself, and the courts ― may have a very good understanding of the impacts of their decisions, although the courts typically consider themselves experts in the matter.

What is more, all come to the design process with their own biases that make them overestimate certain costs or benefits. Legislatures are probably concerned to save money (at least all things being equal; sometimes, they have other interests in mind, as becomes apparent from considering the extraordinarily elaborate procedural scheme for teach discipline that was at issue in Furnell). Administrators probably want to save their time and effort. Both may underappreciate the benefits of procedural safeguards, both to affected parties and to society at large. Meanwhile, courts, insofar as they act at the behest of parties dissatisfied with individual decisions and bound to argue that the procedures followed were insufficiently elaborate may lose sight of the costs ― not only to the administration but also to other affected parties, who are not before them ― of additional procedure. Last but not least, it’s worth keeping in mind that lawyers, collectively, tend to benefit from more process. We are also trained to explain to people why more process is a good thing. And it often is! But we are not entirely disinterested when we say so.

The language of fair play and participation ― important though these things are ― should not lull us into losing sight of the unpleasant realities of administrative procedures. More is not always better. There are costs, and trade-offs. We must ― and can do no more than ― try to find the best balance, case by case, statutory scheme by statutory scheme, and labouring under all the severe limitations to which institutional design generally is subject. We cannot have have it all ― affordability and impartiality, expeditiousness and participation. The New Yorker’s cartoonist J.B. Handelsman, though he probably had a somewhat different issue in mind, put it well.

How to Get It Right on Wrongs

Ontario’s Superior Court has created a new tort. But should it have, in the circumstances?

In Doe 464533, 2016 ONSC 541, a delivered a couple of weeks ago, Ontario’s Superior Court of Justice awarded substantial damages to a person whose ex-boyfriend posted an intimate video of her online, in addition to showing it to some mutual acquaintances. He had previously coaxed her into making the video, promising that he would be the only one to see it. The promise was a lie, since he shared the video as soon as she had sent it to him. Justice Stinson finds the defendant liable for breach of confidence, intentional infliction of emotional distress, and public disclosure of private facts. The latter ground of liability had never before been recognized in Canadian common law, prompting David Fraser, at the Canadian Privacy Law Blog, to write that “[t]his is a huge deal.” It may indeed, as Mr. Fraser implies, be a hugely positive development. Certainly in Doe the Court was able to give the plaintiff redress for a blatant and vicious injustice that the defendant had done to her. Nevertheless, I want to ask whether, in the circumstances, recognizing or creating this new cause of action was the right thing to do. I hasten to add that, in asking the question, I do not mean to suggest that it must be answered in the negative ― only that it is worth thinking about.

One reason why I wonder whether Justice Stinson was right to develop the common law of privacy in this case is that, as David Canton has pointed out over at Slaw,

[t]he defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. 

Courts are normally dependent on hearing arguments from both sides of a case. Indeed, Jeremy Waldron has argued compellingly that the clash of competing arguments is an essential component of what law is, at a conceptual level. Needless to say, if one the parties chooses to forego his or her right to make an argument, as the defendant did here, this should not stop a court from ruling and, where appropriate, making an order against that party. But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.

Now, this concern should probably be heavily discounted if not ignored if the question on which a precedent may be set is unavoidable on the path to a decision on the facts of the case. However, this is not the case in Doe. As I note above, Justice Stinson found the defendant liable for three different torts arising out of the same set of facts. The first two are familiar, although I take it that they had not previously been applied to similar circumstances. Had Justice Stinson “only” concluded that the defendant had committed a breach of confidence and deliberately inflicted emotional distress on the defendant, he could and surely would have awarded the same damages against him. So there was no pressing need for the judge to address the question of whether public disclosure of private facts should be a distinct ground of liability. Of course, we can imagine circumstances where the other causes of action would not be made out, and the new tort would be the only conceivable ground of liability. It is arguable that Justice Stinson’s thoughtful analysis is a service to future litigants. But again, the value of that analysis is lessened by the fact that it does not rest on a full, contradictory argument by the parties.

And then, quite apart from the unusual circumstances of this case, there is the perennial question of the relative roles of courts and legislatures in developing the law and creating new causes of action. Justice Stinson notes, early on in his reasons, that Parliament has criminalized the “publication of an intimate image without consent,” and that one province, Manitoba, has passed legislation to make it tortious. Should the law of other provinces move in the same direction by way of common law development, or should the courts wait for the legislatures ― which presumably are well aware of the problem ― to act? There are certainly good reasons for the courts not to wait. At least so long as any new causes of action are carefully circumscribed, there is probably something approaching a social consensus in favour of granting the victims of cruelty such as that suffered by the plaintiff in Doe a civil remedy. The issues involved are not ideologically controversial, and do not concern complex policy questions on which courts might lack expertise. Indeed, one could go so far as to say that, seeing how clumsy and pernicious legislative attempts to deal with online miscreants can be, courts would do well to act first, so as to remove the temptation to act that legislators would otherwise feel. All the same, it might have been useful for the court to address the question. Justice Stinson’s reasons do not.

To repeat, all that is not to say that Justice Stinson was wrong to develop the law in the way he did, or that his reasoning on the substantive issue of whether to create a tort of public disclosure of private facts could or should not be endorsed by a court considering the matter in a subsequent case. My point is only that we should take his decision as an occasion for a reflection on the courts’ when faced with novel legal issues.

Silencing the Bullies

In my last post, I wrote about the decision of the Supreme Court of Nova Scotia in Crouch v. Snell, 2015 NSSC 340, which struck down that province’s Cyber-Safety Act, a law intended “to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.” Justice McDougall held that the statute both infringed the freedom of expression and could lead to deprivations of liberty not in accordance with principles of fundamental justice, contrary to sections 2(b) and 7 of the Canadian Charter of Rights and Freedoms, and was not justified under section 1 of the Charter. As I indicated in the conclusion of my last post, I believe that this was the right decision. Here are some thoughts about why that is so, and also about some deficiencies, or unanswered questions, in Justice McDougall’s reasons.

Perhaps the most interesting question Justice McDougall raises is whether the limits the Cyber-Safety Act imposed on the freedom of expression are “prescribed by law” within the meaning of section 1 of the Charter. Justice McDougall holds that they are not, because to issue a “protection order” meant to stop a person from engaging in cyberbullying a justice of the peace or a judge must not only find that that person engaged in cyberbullying in the past, but also that “there are reasonable grounds to believe that [that person] will engage in cyberbullying of the subject in the future.” (Subs. 8(b)) Justice McDougall is concerned that there is no indication in the statute as to what those reasonable grounds might be, and that the procedure, especially the ex-parte procedure before a justice of the peace, will not yield sufficient evidence on the basis of which to decide whether the “reasonable grounds to believe” requirement is met.

I find this reasoning intriguing and perplexing at the same time. It seems to me that Justice McDougall’s real concern is not with the vagueness of the statute’s words ― as is usually the case when courts ask whether a limitation of Charter rights is “prescribed by law” ― but with the procedure the statute creates. The concept of “reasonable grounds to believe” already exists in criminal law without attracting censure for vagueness and, as Justice McDougall himself observes, judges are sometimes asked to determine whether there exists a risk that an offender will re-offend in the future. But such determinations are made on the basis of substantial evidence submitted by both parties to an adversarial process. Here, by contrast, the decision must be made on the basis of (potentially flimsy) evidence submitted by one party alone. I agree that this is disturbing, and ought to be regarded as constitutionally problematic, but I’m not sure that “vagueness” is the appropriate name for this problem. Nor is it obvious that any other part of the Oakes test ought would be a better place to address the issue that Justice McDougall raises. Perhaps we need to recognize a procedural element to the “prescribed by law” prong of section 1, in keeping with Jeremy Waldron’s insight that the Rule of Law, and arguably the very concept of law, are crucially dependent on the existence of certain procedures through which the application of legal norms can be channelled and contested, as well as on formal requirements such as publicity and intelligibility that are better captured by the notion of vagueness.

Another question worth asking about Justice McDougall’s reasons is whether he is correct to find that the ex-parte process created by the Cyber-Safety Act is not rationally connected to the Act‘s objectives, except in emergencies or in cases where it is impossible for a victim of cyber-bullying to identify the perpetrator. Courts have seldom found that a law was not rationally connected to its purposes ― it is usually a low bar. Again, I am sympathetic to Justice McDougall seeing a procedure that give no notice to a person whose writings ― no matter how troublesome ― are about to be censored as a serious problem. Still, I’m not sure that, problematic though it is, an ex parte procedure is an irrational response to legislative concerns with timeliness and accessibility of remedies against cyberbullying, which Justice McDougall acknowledged in his decision. It will be interesting to see if appellate courts approach this issue in the same way as Justice McDougall did.

So much for the procedure created by the Cyber-Safety Act. As disturbing as it is, its contents is, if anything, even more troubling from a constitutional standpoint. Somewhat curiously, Justice McDougall does not have all that much to say about the scope and effect of the Cyber-Safety Act, which he addresses under the headings of minimal impairment and balancing between the Act’s positive and negative effects. What he does say, however, is damning indeed: the definition of cyberbullying, in particular, he finds to be “a colossal failure,” [165] catching “many types of expression that go to the core of freedom of expression values.” [175] That is true, but the point might bear some elaboration.

Take another look at the statutory definition of cyberbullying. It

means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way. (Par. 3(1)(b); brackets apparently in the original.)

Think about it. Any communication using computers or cell phones that “ought reasonably to be expected to cause … damage to another person’s … emotional well-being” ― anything that a reasonable person ought to know will make anyone else, anyone at all (since the statute does not in any way restrict who the “other person” whose well-being mustn’t be harmed), upset or feel bad counts as cyberbullying and is liable to be censored. As Eugene Volokh points out in an important article (as well as a bunch of posts on the Volokh Conspiracy) that the defenders of ant-cyberbullying legislation would do well to read, sometimes telling things that will have that effect on people is necessary to explain your own feelings or actions:

[i]f you want to explain to your friends why you’re depressed, or why you’ve broken up with someone, or why you’re moving out of town or taking another job, you might need to tell them about your husband’s cheating, your ex-boyfriend’s sexually transmitted disease, your ex-girlfriend’s impending bankruptcy, or even your mother’s dementia. (761-62)

Sometimes, indeed, you even want to make people feel bad, and with good reason:

speech remains valuable to public debate even when the speaker is motivated by hostility. Often much of the most useful criticism of a person comes from people who have good reason to wish that person ill—if you are mistreated by a politician, religious leader, businessperson, or lawyer, you might acquire both useful information about the person’s faults and resentment towards that person. (774)

And of course, quite apart from any contribution to the public debate, being able to tell why you are aggrieved at someone is important to self-expression. It is often said that people should not have to suffer in silence. But under the Cyber-Safety Act, they are likely to have to do so, since it may well be impossible to explain their emotions in ways that will not hurt the feelings or injure the reputation of the person they blame ― correctly or otherwise ― for their suffering.

Justice McDougall hints at these issues when points at the absence of defences such as truth in the Cyber-Safety Act, and notes that it applies to private and public communications alike. However, I think that it is important to explain in more detail, and with examples, why the extremely broad definition of cyberbullying in this legislation is so problematic. Moreover, even adding the defences of truth absence of ill-will would be enough to remedy the problem. The former is inapplicable to statements of opinion. The latter is insufficient for the reasons explained by prof. Volokh.

Beyond its (very real) unfairness and procedural defects, the fundamental problem with the Cyber-Safety Act is that it seeks to censor communications which the law has never regarded ― and, indeed, still does not regard ― as wrongs, whether civil or criminal. A statement need not be defamatory or otherwise tortious, much less amount to hate speech or be otherwise criminal, to fall within the definition of cyberbullying. The legislature, presumably, thought that this is not a problem so long as it was not imposing a penalty for the making statements considered to be cyberbullying. Whether the requirements that can imposed as part of a “protection order” issued pursuant to the Cyber-Safety Act, which can include not only prospective and retroactive censorship, but also a ban on using certain devices or online services really are not penalties is questionable in my mind, but let’s put that to one side for now. Even if the legislature is right that “protection orders” can be fairly characterized as preventive rather than punitive in nature, what exactly is it that gives it a right to prevent people from doing things that in its own view are not actually wrong? The legislature itself is acting like a bully, albeit a well-intentioned one. It’s a good thing that Justice McDougall silenced it.

No Room for Housing Rights

Last week, in Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, the Ontario Court of Appeal upheld the striking out of an application seeking to have the federal government’s and Ontario’s affordable housing policies, or lack thereof, declared unconstitutional. According to Justice Pardu, who wrote for herself and Justice Strathy, the case, brought by a group of individuals who are either homeless or have precarious and insufficient housing and an NGO, had no reasonable chance of success, notably because it was not justiciable. Justice Feldman, dissenting, would have allowed it to proceed to a hearing on the merits.

The applicants did not attack any specific law or administrative decision of either government, but rather argued that their overall approach to the problem of affordable housing and homelessness was constitutionally defective because contrary to their rights to life, liberty, and security of the person (protected by s. 7 of the Charter) and equality rights (protected by s. 15). They did list a number of policies which in their view particularly contributed to the problems they sought to address, notably the insufficiency of the funding devoted to a number of social assistance programmes. As for the remedies they sought, these ranged from a (seemingly purely symbolic) declaration that “Canada and Ontario have failed to effectively address the problems of homelessness and inadequate housing,” to declarations to the effect that Canada and Ontario have failed to their constitutional duties “to implement effective national and provincial strategies to reduce and eventually eliminate homelessness and inadequate housing,” to an order that they, “in consultation with affected groups,” implement such strategies, under the supervision of the Superior Court.

The issues raised by the applicants, said Justice Pardu, are simply not the sort that courts can entertain: neither the applicants’ claims of rights-infringement nor the remedies they ask for can be effectively dealt with in a judicial setting. Courts can rule on the constitutionality of specific laws, “but a comparison between the legislative means and purpose, is impossible in this case,” [28] whether for the purposes of s. 7 of the Charter or of s. 1. Besides,

there is no judicially discoverable and manageable standard for assessing in general whether housing policy is adequate or whether insufficient priority has been given in general to the needs of the homeless. This is not a question that can be resolved by application of law, but rather it engages the accountability of the legislatures. Issues of broad economic policy and priorities are unsuited to judicial review. Here the court is not asked to engage in a “court-like” function but rather to embark on a course more resembling a public inquiry into the adequacy of housing policy. [33]

On the remedies side,

a bare declaration that a government was required to develop a housing policy … would be so devoid of content as to be effectively meaningless [while].[t]o embark, as asked, on judicial supervision of the adequacy of housing policy developed by Canada and Ontario takes the court well beyond the limits of its institutional capacity. [34]

As a result, Justice Pardu said, regardless of the extent of the specific Charter rights invoked by the applicants, “[t]he application here is demonstrably unsuitable for adjudication,” [36] and was rightly struck.

Justice Feldman, dissenting, was not so convinced. She stressed that

The novelty of the claim alone is not a reason to strike the claim. … The purpose of a motion to strike is to weed out, at an early stage, claims that have no reasonable chance of success, either because the legal issue raised has been conclusively decided against the claim or because the facts, taken at their highest, cannot support the claim. The motion to strike should not be used, however, as a tool to frustrate potential developments in the law. [49]

After discussing in some detail the possibility that ss. 7 and 15 of the Charter might be interpreted as the applicants say they ought to be, Justice Feldman says that the justiciability of positive rights claims has not yet been clearly rejected by the courts. ” As a result,” she says, “courts should be extremely cautious before foreclosing any enforcement of these rights.” [81] The fact that the application here does not aim at any specific law could give rise to “a number of procedural as well as conceptual difficulties,” but that does not necessarily prevent it from being justiciable. The “application asks the court to view Charter claims through a different procedural lens. That novelty is not a reason to strike it out.” [84] As for the remedies, they could, if necessary, be confined to declaratory relief.

For my part, I think that the majority is probably right here. As Justice Pardu says, there is no standard against which to measure the governments’ alleged failings. It is easy to say that not enough money is being allocated to solve the problems of housing affordability and homelessness ― but can the full solution of a social problem really be a moral, never mind a legal, standard by which to judge government action (or inaction)? Indeed, it is not clear that a full solution would exist even with unlimited funding. And if a partial solution, or movement towards a solution, are sufficient, as the relief sought by the applicants suggests, then how is a court supposed to decide what is satisfactory?

Justice Pardu is also right that the remedies the applicants seek will be either empty words or well beyond the capacity of a court to implement. Justice Feldman’s invocation of Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 as an example of a case where declaratory relief for a violation of the Charter was appropriate is ironically revealing. The Supreme Court’s declaration that Mr. Khadr’s rights had been infringed led to no meaningful action on the government’s part.

I share one concern with Justice Feldman, however. I believe that the claims in this case are not justiciable, but I’m not convinced that they are obviously, unarguably so. Is it impossible that a court will find them justiciable? Perhaps, but I’m not sure. If this were a ruling on the merits of the application, I would have no doubt that the majority is correct. But on a motion to strike, the issue is not whether the applicants’ claims are well founded, or even reasonably likely to be well-founded, but only whether there is any chance that they will succeed. So I’m not sure that, weak as they are, they do not meet this very low threshold.

The trouble is that, as best I can tell, there is no way to adjudicate the merits of the justiciability issue on a Charter application without having a full hearing on the merits of the application itself. So the court might be simply treating the motion to strike as an opportunity to rule on the merits of the justiciability issue, so as to avoid what it thinks is an unnecessary full hearing. And I agree that a full hearing is not necessary here. No amount of evidence of the inadequacy of the governments’ housing policies, were it to be introduced, could change the fact that a court of law is not the proper place to debate this evidence. Still, treating a motion to strike as in effect a preliminary merits hearing is not legally right.

These qualms aside, there are good reasons for the courts to refuse to adjudicate, if not any and all social and economic rights claims, then at least out of vast campaigns intended to reshape entire areas of government policy. There is the issue of competing priorities ― if not all claims on public support can be satisfied, which ones should be favoured? It’s not obvious, to say the least, that the answer to that question ought to be “those who got adjudicated first.” There is the issue of legitimacy of unelected judges having to order Parliament and legislatures to increase taxes. Charles I lost his head for trying to raise taxes without Parliamentary approval, and George III lost an empire for insisting that he had the right to tax without consent. It is, again, not obvious that judges would fare any better. There is the issue of federalism. Generally speaking, housing and homelessness are not the federal government’s responsibility (except on reserves). The federal government chooses to help the provinces discharge many of their constitutional responsibilities, and the provinces accept the money (and ask for more), but how a court could assign responsibilities between the two level of government ― something that takes sometimes difficult political negotiations ― is really beyond me. There is, finally, the issue of the law’s inherent conservatism. If a court decides that social programme X is constitutionally required, then programme X cannot be got rid of even to be replaced by a more effective but differently organized programme. If the courts decide that the Charter requires governments to build social housing, then governments cannot subsequently decide to spend that money, say, on vouchers that allow people to get their own places, even if, say, the experience of other countries shows that this leads to better outcomes for the people concerned. At best, the government would have to turn to the courts and demonstrate  that its proposed programme would be enough to discharge its constitutional obligations. But it could not really demonstrate this ― it would have to speculate, and it’s not clear that a court ought to be convinced by such speculation.

Canadian courts, unlike the powerless talking shops that generate international human rights by the hundred while knowing full well that there is no prospect of most these “rights” ever being implemented, wield considerable power, because they know that their decisions will be obeyed and enforced. They know that with great power comes great responsibility, and do not exercise it lightly. They also know that a power that overextends itself and disregards the people from whom it comes and for whom it is supposed to be exercised will not last long.