A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”. Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. But as Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter’s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.

If You Build It

A good decision for federalism and for property rights from the Supreme Court

This morning, the Supreme Court has delivered its decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, holding that a municipality cannot prevent a telecommunications company from building an antenna at a site authorized by the federal government, since under the constitution that government has exclusive competence over radiocommunications. I believe this is the right decision from the standpoint of federalism doctrine and policy. It is also, if only coincidentally, a good decision from the standpoint of property rights.

Simplifying somewhat, the case arose out of Rogers’ attempt to build an antenna for its cellular network in Châteauguay, on a site that it had leased from a willing owner. Federal rules required it to obtain permission from the federal government and also to consult the municipality, while allowing the federal government to resolve any conflict with local authorities. Rogers did all this, and initially the municipality gave it the green light. However, after citizens concerned about the supposed effects of radio waves on their health and the environment petitioned the municipal authorities, they changed their mind and tried to get Rogers to agree to build its antenna on a different location. The owner of that site, however, was not willing to lease it out to Rogers, while the municipality tried to expropriate it, Rogers was unwilling to wait until expropriation proceedings would conclude, and decided to go ahead with its original project. The municipality responded by issuing, and subsequently renewing, a “notice of reserve” which signified its intention to expropriate the site, and prevented Rogers from building there.

Rogers argued that this was both unconstitutional and in bad faith and thus invalid under municipal law. In reasons by Justices Wagner and Côté, an eight-judge majority held that the notice was not a valid exercise of a provincial, and therefore a municipal, power. Justice Gascon, who concurred, was of the view that while the notice was a valid exercise of provincial power, it was inapplicable to Rogers by virtue of the doctrine of interjurisdictional immunity.

* * *

The municipality argued that its “ultimate purpose in establishing the reserve was to protect the health and well‑being of its residents living close to” Rogers’ chosen site for its antenna, “and to ensure the development of its territory” ― purposes that fall within the provincial and therefore municipal jurisdiction. The majority of the Supreme Court disagreed, however. The notice of reserve was clearly intended to forestall Rogers’ work on the antenna. It had no other purpose or effect than to interfere with its choice of location, which falls within the federal jurisdiction over radiocommunications. The majority added that

[e]ven if the adoption of a measure such as this addressed health concerns raised by certain residents, it would clearly constitute a usurpation of the federal power over radiocommunication. [46]

Thus, in “pith and substance,” the “matter” with which the notice of reserve dealt was radiocommunications, and the notice was ultra vires ― beyond the competence of the body that enacted it.

The majority acknowledged that the Supreme Court’s division of powers jurisprudence favoured flexibility and “co-operative federalism.” This principle, however,

can neither override nor modify the division of powers itself. It cannot be seen as imposing limits on the valid exercise of legislative authority … Nor can it support a finding that an otherwise unconstitutional law is valid. … [F]lexibility has its limits, and this approach cannot be used to distort a measure’s pith and substance at the risk of restricting significantly an exclusive power granted to Parliament. [39, 47]

The majority added that holding otherwise, or finding that the notice of reserve had a “double aspect” ― i.e. that it dealt with a provincial “matter” at the same time as a federal one ―

could encourage municipalities to systematically exercise the federal power to choose where to locate radiocommunication infrastructure while alleging local interests in support of their doing so. [47]

In his concurrence, a rather exasperated-sounding Justice Gascon disagrees, saying that he

find[s] it a bit much to suggest that a flexible approach to the pith and substance doctrine could encourage municipalities to hide behind local interests in order to exercise a federal power. [95]

He concludes that Châteauguay acted “not simply to control the siting of a radiocommunication system, but rather to respond to its residents’ concerns” [100] regarding health and the development of the municipality’s territory. In Justice Gascon’s view, the majority goes astray in not adopting a sufficiently flexible approach to the “pith and substance” analysis, and also in overemphasizing the practical effects of the notice of reserve at the expense of its purposes.

However, Justice Gascon agrees with the majority that even if the municipality had the constitutional authority to issue the notice of reserve, the notice would be inapplicable to Rogers by virtue of interjurisdictional immunity. The choice of locations for communications equipment has already been determined to fall within the “core” of the federal power, and the municipality’s attempt to prevent Rogers from building its equipment at a site approved by the federal government in the exercise of that power rose to the level “impairment” sufficient to trigger the application of the immunity doctrine.

* * *

As I mentioned at the outset, I believe the Court ― and specifically, the majority ― has it right. At the level of doctrine, I think that the majority is right to conclude that the reserve notice was ultra vires the municipality. As it noted, all the notice did was interfere with the choice of location of Rogers’ equipment. The fact that the motivation for this interference had to do with health and development concerns does not change the fact that the notice itself only had to do with radiocommunications.

Indeed, Justice Gascon’s approach ― finding that the notice of reserve was, in pith and substance, related to health and local development but could not apply to the only party to whom it was ever intended to apply strikes me as rather artificial. As the majority notes, the case is different from one in which, as in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, the law at issue is one “of general application that has numerous legal and practical effects,” [48] only a small subset of which are constitutionally suspect. It makes sense to resolve such a case by applying the doctrine of interjurisdictional immunity to prevent this small subset of effects from occurring while allowing the law as a whole to stand undisturbed. Justice Gascon invokes interjurisdictional immunity to deprive the notice of reserve of its effect and raison d’être. It seems more logical to say that the notice is simply void, because it is entirely about a federal, not a provincial, “matter.”

From the policy perspective, these details matter little. What is important is that the Supreme Court’s decision allows the federal government to exercise its constitutional powers without being impeded by nimbyists all over the country who would raise this or that local concern ― if not some scientifically discredited theory, as seems to have been the case here ― to prevent any national infrastructure being built. The constitution makes federal government responsible for telecommunications ― as well as for physical inter-provincial links, such as railways and, perhaps most importantly in the current political context, pipelines, for a good reason. These matters have to be treated at a national scale because of the holdout issues and collective action problems that would arise if the provinces ― and, a fortiori, municipalities ― could stand in the way or had to deal with them on their own.

Appeals to co-operative federalism are misguided in this context. After the Supreme Court handed down another decision limiting the power of that principle, the one in the gun-registry litigation, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, I tentatively suggested that the principle the Supreme Court applied was that of competitive rather than co-operative federalism. Competitive federalism is usually understood as involving competition between members of the federation (i.e. provinces in Canada) to get individuals and businesses to move from to another. But the Court’s federalism jurisprudence fosters “vertical” competition between the federal government and the provinces, I wrote, “for the political benefits that result from enacting policies that citizens want to see enacted.” Such competition is fine so long as its costs can be internalized by the voters for whose benefit it exists. For instance, when Québec sets up its own gun registry to replace the one scrapped by the federal government, Québec taxpayers will pay for it. But when the preferences of one set of voters are satisfied at the expense of others, what takes place is not competition, but rent-seeking. Allowing municipalities to interfere with the development of infrastructure that benefits people well beyond their borders in order to allay the local voters’ concerns would encourage just that sort of behaviour. The Supreme Court was right to step in to prevent it.

* * *

I briefly turn now to the property rights perspective on this case. The Supreme Court has seldom been solicitous of property or economic rights (except, that is, the economic rights of unionized labour), and there is no reason to think that property rights concerned it here. However, it is worth pointing out that, even if unintentionally, the Court’s decision is a clear win for property rights and freedom of contract. Consider that Rogers had found a willing lessor for the land it needed to build its antenna. The owner of the alternative site proposed by the municipality, by contrast, did not want to do business with Rogers. So the municipality wanted to expropriate her, and deprive the owner of Rogers’ preferred site of a business opportunity. And when that plan failed, it decided to expropriate the owner of that site as well. This casual indifference to property rights and economic liberty of the municipality’s own citizens is disheartening, and even if the Supreme Court preserves these rights by a happy accident, its decision is worth celebrating for that reason.

Une Injustice

J’ai déjà écrit, ici et ailleurs, que l’omission des droits de propriété de la Charte canadienne, qui était censée permettre aux gouvernements de poursuivre des politiques économiques et sociales égalitaires, a des effets pervers qui font en sorte qu’elle leur permet plutôt de transférer de l’argent des pauvres aux mieux nantis. Dans ce billet, je veux parler d’un autre exemple de cette tendance, qui vient du droit minier québécois ― un domaine dont j’étais parfaitement ignorant jusqu’à tout récemment, mais sur lequel j’ai beaucoup appris grâce à une conférence tenue à McGill ce mardi (où j’ai également présenté, avec Fabien Gélinas, un topo sur le partage des compétences en matière de ressources naturelles).

Cet exemple, c’est l’article 235 de la Loi sur les mines, qui dispose (entre autres) que « le titulaire de droit minier ou le propriétaire de substances minérales peut, pour l’exécution de ses travaux d’exploitation, acquérir [un bien immeuble] par expropriation ». En termes plus clairs, une compagnie minière qui a trouvé des minerais dans le sol sur lequel votre maison, votre commerce ou votre champ est situé peut vous forcer à lui céder le terrain en question, manu militari si nécessaire.

C’était encore pire avant ― des amendements adoptés l’an dernier ont retiré aux prospecteurs le pouvoir de contraindre un propriétaire de les admettre sur son terrain pour des travaux d’exploration, et non seulement d’extraction. (Ça me semble créer, d’ailleurs des incitatifs pervers ― il vaut mieux ne pas laisser les prospecteurs faire de l’exploration sur votre terrain, puisque s’ils y trouvent quelque chose, vous pouvez le perdre. On risque donc de ne pas apprendre l’existence de ressources minérales, et même les transactions volontaires qui permettraient leur exploitation n’auront pas lieu.)

Mais même sous le nouveau système, le pouvoir de l’État demeure à la disposition de compagnies généralement bien plus riches et, surtout, plus influentes, que les personnes dont il sert à prendre la propriété. Bien entendu, ces personnes reçoivent une compensation pour les biens expropriés. Sauf que cette compensation, ne couvrira pas la valeur qu’attachaient les personnes visées à leurs bien expropriés. S’il en était autrement, elles auraient consenti à vendre librement, et on n’aurait pas eu besoin de les exproprier. La compensation en cas d’expropriation s’établit en fonction du prix du marché, mais si une personne ne met pas son bien en vente, c’est normalement justement parce qu’elle y attache une valeur plus grande que ce qu’elle pourrait obtenir sur le libre marché.

Le législateur québécois fait pourtant semblant de reconnaître et de protéger le droit de propriété. L’article 6 de la Charte des droits et libertés de la personne dispose que « [t]oute personne a droit à la jouissance paisible et à la libre disposition de ses biens » ― mais elle qualifie tout de suite ce prétendu droit en disant qu’il n’existe que « sauf dans la mesure prévue par la loi ». Si la loi ― comme la Loi sur les mines ― le nie, eh bien, il n’existe plus. L’article 952 du Code civil du Québec, pour sa part, dispose que «[l]e propriétaire ne peut être contraint de céder sa propriété, si ce n’est par voie d’expropriation faite suivant la loi pour une cause d’utilité publique et moyennant une juste et préalable indemnité », mais bien sûr, il n’a pas pour effet d’invalider une disposition d’une autre loi qui, par implication nécessaire, y est contraire. On peut voir l’article 235 de la Loi sur les mines de deux façons: soit qu’il déroge au Code civil en autorisant l’expropriation dans l’intérêt privé, soit qu’il représente un jugement du législateur à l’effet que l’intérêt public est identique à celui d’une compagnie minière. Quoi qu’il en soit, l’apparente protection du Code civil n’en est pas une.

Bien sûr, il y a certains problèmes collectifs qu’on ne peut résoudre que par l’expropriation. Une personne peut demander, pour céder son terrain, un prix exorbitant, supérieur non seulement à celui du marché mais aussi à la valeur qu’elle attache subjectivement à son bien, en sachant qu’un projet ne sera pas réalisable sans celui-ci. Si le projet est véritablement public ― s’il s’agit, disons, de construire une route ou de créer un parc national ― l’expropriation (avec compensation, bien sûr!) est un outil approprié pour le réaliser. Mais s’il s’agit d’un projet privé, tel que la construction d’une mine, dont les avantages iront à ses propriétaires plutôt qu’au public en général, pourquoi la puissance publique doit-elle l’appuyer?

Le législateur québécois a pourtant jugé que les projets des compagnies minières sont plus importants que ceux des résidents, des commerçants ou des agriculteurs. Tout comme dans le cas de la « suramende compensatoire » (“victim surcharge“) imposée aux personnes trouvées coupables d’une infraction supposément en vue d’aider les victimes de la criminalité, tout comme bien d’autres programmes gouvernementaux, il s’agit d’une forme de redistribution de ceux ont (généralement) moins de moyens vers ceux qui en ont (généralement) bien davantage. C’est une injustice ― une injustice rendue possible par l’absence de protection constitutionnelle du droit de propriété.

Strange Property

Last week, a Conservative Member of Parliament proposed a constitutional amendment that would protect (some) property rights in Alberta. The amendment would add a section to the Canadian Charter of Rights and Freedoms, providing that

In Alberta, everyone has the right not to be deprived, by any Act of the Legislative Assembly, or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property, or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.

In the last Parliament, identically worded amendments were proposed for Ontario and British Columbia. Emmett Macfarlane has blogged about Mr. Hillyer’s proposal, explaining the uncertainty about the amending formula that would have to be used to add this provision to the Charter and suggesting that

 it would seem undesirable to have a patchwork of different rights in different provinces across the country. The Charter project itself was intended as a national unity project. If we started adding different, province-specific rights, what might that do to our conceptions of Canadian citizenship?

However, as prof. Macfarlane points out, s. 16.1 of the Charter is a province-specific provision, applicable only in New Brunswick; so is subs. 16(2), while pursuant to s. 59 of the Constitution Act, 1982, par. 23(1)(a) of the Charter does not (yet?) apply in Québec. The Constitution Act, 1867 also has some asymmetrical rights-protecting provisions (notably paragraphs 93(1)-93(4) and section 133). Differences between provinces, which we might call horizontal asymmetries, are already a feature of the rights landscape in Canada (quite apart from provincial rights-protecting legislation, such as Québec’s Charter of Human Rights and Freedoms) ― which is not to say that it is a good idea to add to them.

Mr. Hillyer’s proposed amendment would create an asymmetry of another (and, if anything, more unusual) sort too, a vertical one, between the rights protected against the federal Parliament and a provincial legislature. The Charter generally protects rights equally against Parliament and provincial legislatures. The only exception again concerns language rights, which are only protected against Parliament (and the province of New Brunswick). I’m not sure there is any strong normative principle that would go against vertically asymmetrical rights protection, but thought the matter worth highlighting.

Mostly though, I want to raise some questions about the substance of the proposed amendment. You might think that, having lamented the absence of constitutional protections for property rights and economic liberty in Canada (most recently last week, here and here), I would be happy about an attempt to include property rights in the Charter. But I’m not happy about the way Mr. Hillyer’s proposal (and its predecessors) would do it.

The proposed amendment is very narrow: it would only protect real property from expropriation without compensation. In other words, while landowners would be assured of an indemnity for any interference with their property, those whose fortune, great or small, consists in property of other kinds (whether it is money in the bank, shares, or intellectual property rights) could be expropriated without compensation of any sort. This sort of protection for property rights would tend to benefit the well-off, while doing nothing at all for those to poor to own land, such as the offenders made to pay an arbitrary “victim surcharge” on top of other punishment imposed on them. Indeed, the proposed amendment would not even protect all the owners of real property equally. It does not limit the reasons for which property can be taken by the government, provided that compensation is paid. It allows, for instance, expropriations intended to transfer land to private developers, which ― at least in the United States ― tend to fall much more heavily on the poor than the well-off.

Property rights, and economic rights more generally, became the poor relation of Canadian constitutional law (and to a lesser extent even of the American constitutional law) in large part because of the perception that they were being or would be used to protect the rich and to prevent the state from helping the poor. I have been arguing that this perception is mistaken, and that we could help the marginalized members of society resist the encroachments of a state that typically serves the interests of the middle and upper classes by protecting their economic rights. Mr. Hillyer’s proposed property rights amendment would not do that. On the contrary, it would confirm the fears of those who resist the protection of economic rights, and thus set back the cause of inclusion and economic liberty for all.

A further important point here is that constitutional change ― whether it is Senate reform or the addition of a new right to the Charter ― deserves to be broadly debated, so that its implications can be worked out and understood. The 7/50 amending formula, for all its flaws, more or less guarantees that amendment will not happen without debate. Attempts at constitutional change through the path of least resistance, whether unilateral Senate reform or a province-by-province modification of the Charter risks being poorly thought through (quite apart from its other defects from the standpoints of constitutional law and/or political morality) because it is insufficiently debated. It is not a good idea.

H/T: Benjamin Oliphant

Rights, Property… and Blogging

Because one blog is obviously not enough, I will now also be blogging for the CBA National Magazine. Initially at least, I will only be writing for them once a month. In any event, my main blogging focus will remain here, at Double Aspect. However, I am excited about this new venture and the possibility of reaching out to a somewhat different (and broader) audience that comes with it, not to mention what I hope will be additional publicity for this blog, so I’m grateful to the Magazine’s editor, Yves Faguy, for the kind invitation to contribute.

My first post there argues that Canadian constitutional law’s failure to protect property and economic rights, although motivated by a concern that these rights would be invoked in the interest of the well-off and to the detriment of the poor, ends up hurting the vulnerable and the marginalized members of society. I have already made this case here, when discussing the “victim surcharge” imposed on offenders in addition to their normal sentences, which is in effect a transfer of wealth from the poor to the better-off. I now take up this theme in discussing Bill C-36, the federal government’s response to the Supreme Court’s judgment in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101. The  Supreme Court’s persistent refusal to acknowledge that the liberty protected by section 7 of the Charter includes economic self-determination means that the discussion about the bill’s flaws and possible (although by no means certain) constitutionality essentially ignores the question of the sex workers’ right to earn their living as best they can. That is unfortunate:

A recognition of the sex workers’ right to earn a living in their own way would obviate the need for an uncertain balancing of the sex workers’ right to be safe and the government’s moral indignation at the idea of prostitution, to which the Bedford approach leaves the door open. It would, instead, put the spotlight on the real question that the government’s chosen path raises, which is whether this moral indignation is a good enough reason to prevent vulnerable individuals from making a living in what for some, and perhaps many, of them is the only way accessible to them.

It is not the rich, who seem to be doing just fine, thank you, who most need their property and economic rights protected. It is the poor.

One point I do not make in the National Magazine blog post but want to add here is that it would be a mistake to suppose that economic rights are generally secondary to civil and political rights as a matter of liberal political theory. The better view, I believe, is that defended by James Madison in an eloquent essay called “Property.” Madison argues that what we now call rights are a form of property, so that

a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. (Paragraph breaks removed)

The role of government, Madison says, is

 to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

A government is not just if suppresses speech or violates the rights of conscience. But nor is it just if

arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.

“[T]he rights of property and the property in rights” go together. They are both indispensable for human freedom and self-worth. The point that respect for the latter is connected to respect for the former might seem abstract or theoretical. But we can see that violations of one go hand in hand with violations of the other.

The Bill Is Due

In yesterday’s post on R. v. Cloud, 2014 QCCQ 464, I bemoaned the lack of property protections in the Canadian Charter of Rights and Freedoms, arguing that, as Cloud demonstrated, it hurt the poor rather than the well-off. However, while property rights are not mentioned in the Charter, section 1 of the Canadian Bill of Rights provides that

It is hereby recognized and declared that in Canada there have existed and shall continue to exist … the following human rights and fundamental freedoms, namely,

(a) the right of the individual to … enjoyment of property, and the right not to be deprived thereof except by due process of law;

Unlike the Charter, the Bill of Rights only applies to federal law ― which, of course, includes the Criminal Code. Can it be used to challenge the “victim surcharge” which, as I argued yesterday, is an arbitrary taking of property, often from the poorest members of society and for the benefit of those better off than them? The short answer is, almost certainly no. There is a way of arguing that it should be, but I would not expect courts seriously to entertain such an argument. And yet, they would be wrong not to.

Unlike the Charter, which helped usher in substantial changes in Canadian law within years of its coming into force, the Bill of Rights has languished in relative obscurity. The Supreme Court never made much of it, holding in R. v. Burnshine[1975] 1 SCR 693 at 702 that

[t]he Bill did not purport to define new rights and freedoms. What it did was to declare their existence in a statute, and, further, by s. 2, to protect them from infringement by any federal statute.

As cases such as Burnshine and Miller v. The Queen, [1977] 2 SCR 680, which rejected a challenge to the use of capital punishment on the basis that

[a]t the time when the Bill of Rights was enacted there did not exist and had never existed in Canada the right not to be deprived of life in the case of an individual who had been convicted of “murder punishable by death” by the duly recorded verdict of a properly instructed jury (704)

demonstrate, the courts’ approach to the Bill of Rights is strictly originalist. This is, of course, in contrast to their approach in constitutional cases, where originalism is (almost ritually) rejected and “large and liberal” interpretations prevail, and despite the Bill of Rights regularly being described a “quasi-constitutional” statute.

The most recent leading case dealing with the Bill of Rights is Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40. The claimants in in that case argued that the federal government’s failure to pay interest on pension money it administered for them and Parliament’s enactment of a statutory provision barring any claim for such interest were a violation of, among other things, their property rights protected by the Canadian Bill of Rights. In a unanimous judgment by Justice Major, the Supreme Court held that the requirement of “due process of law” for any deprivation of property in par. 1(a) of the Canadian Bill of Rights did not include any procedural rights (such as notice and hearing) prior to the enactment of a statute or in “the non-discretionary application of a law to incontestable facts” (par. 45). More important for my purposes here, however, is the Court’s treatment of the claim that “due process of law” had a substantive dimension which included protection against expropriation without compensation. Justice Major noted the extreme reluctance of Canadian courts to recognize “substantive due process” rights arising out of the Bill of Rights; he also observed, however, that in the context of s. 7 of the Charter, which uses the terms “fundamental justice” instead of the Bill of Rights‘ “due process of law,” the Court has found that, in the proper circumstances, guarantees of process or justice may confer substantive protections” (par. 50). Reverting to an originalist analysis, Justice Major concluded that, in any case, when the Canadian Bill of Rights was enacted, “it was undisputed, as it continues to be today, that Parliament had the right to expropriate property if it made its intention clear” (par. 52).

How does this apply to the “victim surcharge”? To argue that it is contrary even to the narrow protection for property rights recognized by the Supreme Court in Authorson, one would need to show that a principle of proportionality or non-arbitrariness in the deprivation of property was part of Canadian law prior to 1960. I haven’t done any relevant research, but I suspect that it would not be an easy demonstration. Authorson does, however, leave open the possibility of reading “substantive protections” into a “guarantee of process.” It is difficult to know whether Justice Major really meant what he said. Perhaps the possibility he suggested was a purely theoretical one. I have no doubt that courts would be reluctant to give it effect. A case involving the “victim surcharge” might be the best opportunity to persuade them to do so. It might help, too, that since Authorson, important American scholarship has undermined the justification of the fear of  a new “Lochner Era” of judicial assault on legislation intended to foster social justice and called into question its purely procedural understanding of “due process of law.” Still, this would be a high hurdle to overcome.

The most radical, and least likely to succeed, argument against the compatibility of the “victim surcharge” with the Canadian Bill of Rights would involve a challenge to the Supreme Court’s entire approach to its interpretation. The originalism which limits the scope of its protection to what existed in 1960 is inconsistent with the Court’s approach not only to constitutional and quasi-constitutional laws, but even to ordinary statutes. To be sure, the Bill of Rights “recognizes and declares” that the rights it protects “have existed and shall continue to exist.” But recognizing the continued existence of a right need not entail its “freezing” at the moment of recognition. A right does not change, does not become a different or new right, just because it comes to have a novel application. When the equality rights of same-sex couples were recognized, they were the same old equality rights that had existed previously and would continue to exist thereafter, only extended to a new group of people. When the Supreme Court recognized that freedom of religion prevented Parliament from enforcing religious observance, it did not create a new liberty ― it only gave further meaning to an old one. Of course, there are limits to this reasoning, but that does not invalidate it altogether. It is probably always a safer bet to assume that the Supreme Court will not change course. But it should. 

The Canadian Bill of Rights deserves better treatment than it has received at the Supreme Court’s hands. The “victim surcharge” shows that the Bill is due ― to hold the government to account for its greed at the expense of some of the most vulnerable members of society.

Greed Is Not Good

Many bad things have been said about the “victim surcharge” which the Criminal Code requires people found guilty of an offence to pay, and which recent amendments have made mandatory, depriving judges of any discretion to waive it, regardless of whether it represented a disproportionate punishment for a minor offence or would cause great hardship to a destitute person. In a well-publicized recent judgment in R. v. Cloud, 2014 QCCQ 464, Justice Healy reviews and endorses a number of criticisms. “As applicable to many … offenders, the surcharge” ― really, he points out, just a fine ―

would disturb reasonable and informed people because it is disproportionate ― having regard to the quantum, the inflexibility of its terms and the inherent arbitrariness in distinguishing between cases where a fine is or is not imposed or cases that proceed by summary-conviction procedure or indictment.  It is a blunt instrument that is far too blunt to achieve any valid penal purpose. (Par. 18; footnote omitted.)

Although it is purportedly meant to make offenders accountable to the people who suffer from their misdeeds,

[t]he surcharge is … contingent on the presence or absence of a fine or on the classification of offences [into indictable and summary-conviction offences]. This would appear to be arbitrary as a measure of the quotient of accountability of offenders. It is not apparent that a reliable and proportionate quotient of accountability can be derived from a percentage of a fine. Even less is it apparent that one-half, or double, the quotient of accountability can be assured by the classification of offences. This is obvious in the case of hybrid offences that require an election by the prosecution [to proceed by indictment or by way of summary conviction]. (Par. 26)

And although no constitutional challenge was before him, Justice Healy points out that the constitutionality of the surcharge might be questioned too, whether because it amounts in some cases to cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms, or because it contradicts the principle of individualization and proportionality in sentencing, which might be protected by s. 7 of the Charter.

On that last point, note that s. 7, which protects “the right to life, liberty and security of the person,” comes into play in a round-about way. The surcharge itself does not deprive anyone of life or liberty, and it is doubtful whether, even the case of an indigent person, the courts would find that a fine can amount to deprivation of the security of the person (though that’s certainly not impossible). Rather, s. 7 becomes involved because the non-payment of the surcharge can lead to imprisonment, and thus a deprivation of liberty.

Which brings me to the point I want to make in this post. One criticism of the “surcharge” that is missing from Justice Healy’s opinion and, so far as I can tell, from other public commentary too is that it is an unjustified deprivation of property. The right to property, of course, is conspicuously and deliberately missing from s. 7 of the Charter. I think that the “surcharge” demonstrates that its exclusion from the constitution is unfortunate, and that, contrary to conventional wisdom, it hurts the poor rather than the well-off.

That the “surcharge” is a government taking is quite clear. Although the Crown tried to argue in Cloud that, because the “surcharge”  finances a fund that helps crime victims, it is a form of restitution, Justice Healy’s explanation of the reasons for which this argument fails is unassailable. In addition to relying on statutory language, Justice Healy points out that

[t]he surcharge is not compensation for actual loss to an identified person or entity and it has nothing to do with any notion of restitutio in integrum as that concept is legally understood.  … Further, if the alternative to non-payment of the surcharge is participation in a fine-option programme or (where there is no such programme) imprisonment, it is nonsense to describe these mechanisms as a function of restitution. (Par. 40.)

I would only add that it is equally nonsensical to describe the “surcharge” as “restitution” when it is imposed on people sentenced for victim-less crimes, such as possession of drugs or firearms.

It is equally clear from Justice Healy’s reasons in Cloud that the “surcharge” hits the poorest and most marginalized members of society especially hard, both because they are more likely to get into trouble with the law and because they can least afford to pay it. As a general matter, if it is the case that offenders are, on average, poorer than the victims of crime (I do not know the numbers, but this seems a plausible assumption; Mr. Cloud’s case would certainly support it), then the “surcharge” effectively operates as a wealth transfer from the poor to the better-off. Of course, it is not the only government programme that operates in this way, and I suppose should not be unconstitutional for that reason alone. 

But it is, even by the usual standards of government redistribution from the poor to the well-off, a particularly unjust measure. As Justice Healy points out in a passage quoted above, the surcharge is arbitrary because the amount of the “surcharge” imposed on an offender bears no relation to the “quotient of accountability” that ought to be imposed on them. It varies only according the number of counts of which a person is found guilty, the imposition or not of a fine, and the status of the offence as an indictable one or one punished by summary conviction. A person found guilty of two counts of assault will pay more than one guilty of a single count of first-degree murder. How that is supposed to foster accountability for crimes, or give any sort of relief to crime victims is beyond any conceivable rational explanation.

In its recent decision in Canada (Attorney General) v. Bedford2013 SCC 72 the unanimous Supreme Court explained that as a principle of fundamental justice enshrined in s. 7 of the Charter, non-arbitrariness is concerned with the existence of

a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. (Par. 111)

The “victim surcharge” is a flagrant violation of this principle. But, because s. 7 does not protect property rights, it can only be brought to bear on this iniquity through the back door. This is too bad. We accept that the government may not be cruel, or devious, or tyrannical. Why is it permissible for it to be greedy?