The $100 Question, in Court

A challenge to Québec’s harsh limits on political contributions has a decent chance of succeeding

As reported last week by Le Soleil, a citizen of Québec, Yvon Maheux, is challenging the constitutionality of both the province’s $100 yearly cap on donations to political parties and some of the collateral consequences of a conviction for infringing this cap. In my view, much of the claim has considerable merit, and at least a reasonable chance of success. As I wrote when Québec was first considering lowering the amount its citizens were allowed to contribute to political parties from $1000 to $100, such a low limit is quite clearly unconstitutional, given the Supreme Court’s recognition that spending money to advance one’s political views is a form of expression that is entitled to the protection of the Canadian Charter of Rights and Freedoms.

As Mr. Maheux’s notice of constitutional question (kindly provided to me by his lawyer, Antoine Sarrazin-Bourgouin, whom I thank) explains, in 2016 he paid a provincial party, the Coalition Avenir Québec, $100 for taking part in a breakfast it organized, and then another $100 as a fee to take part in the party congress. For his trouble, he was prosecuted for breaching the $100 yearly cap on donations to political parties, provided for by section 91 of Québec’s Election Act. Section 564.2 of that Act provides that, if convicted, Mr. Maheux will face a minimum fine of $5000. Moreover, the infringement of the contribution cap is deemed a corrupt electoral practice (section 567), meaning that a conviction carries a number of additional consequences ― notably the disqualification from voting or running for office, as well as the loss of “the right to engage in partisan work”, both for five years (section 568).

This is a draconian regime. For one thing, the contribution limit is remarkably low. For another, the consequences for breaching it are astonishingly severe. Neither the Canada Elections Act nor Ontario’s Election Finance Act, for example, impose a mandatory minimum punishment for financial offences; nor do they deem making an excessive contribution a corrupt practice; nor do either Parliament or Ontario strip persons convicted of corrupt practices of their “right to engage in partisan work”. New Zealand ― which of course does not limit contributions to political parties at all, and is the least corrupt country in the world nonetheless ― does nothing of the sort either.

But does draconian, in this instance, also mean unconstitutional? The cases raises a number of distinct constitutional issues. The first is whether the infringement of the freedom of expression effected by the limitation of contributions one can make to a political party is justified under section 1 of the Charter. (That the limitation is a prima facie infringement of the freedom of expression must follow from the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although these cases concerned spending independent of parties.) The other issues have to do with the constitutionality of the various consequences of a conviction for breaching the contribution limit.

Regarding the constitutionality of the limit itself, there is no precedent directly on point, I think, but it seems to me that the Québec government will be hard-pressed to show that it is minimally impairing of the freedom of expression. A legislature is entitled to some, perhaps considerable, deference in a line-drawing exercise of this sort ― Libman and Harper indicate that the courts will accept that there ought to be some limit on contributions, and any given figure is bound to be somewhat arbitrary. Still, deference can only extend so far; there is a range of acceptable alternatives, but this range is not infinite. And even if a higher limit would (of course) be somewhat less likely to attain the legislation’s anti-corruption objectives, the issue, as Chief Justice McLachlin’s majority opinion … put it, is only “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner“. That no other jurisdiction in Canada (and perhaps elsewhere) has seen it fit to set a contribution limit anywhere near this low is a strong indication that Québec’s purposes can be substantially achieved through less drastic means.

The $100 limit also fails, I think, at the final stage of the section 1 analysis, which concerns proportionality between the rights limitation’s benefits and its effects on the rights claimants. These effects, in this case, are significant; indeed, the limit renders Quebeckers’ right to contribute financially to a political party of their choice virtually nugatory. Mr. Maheux’s personal story is an eloquent illustration of this fact. So is the simple arithmetic that shows that a donation of $2 a week would be illegal. This all is particularly galling because the Supreme Court’s law of democracy jurisprudence ― especially Harper but also, before it, Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912 ― suggested that participating in the activities of political parties was  political participation par excellence, to be valued and protected above others, as I explained here. Québec’s restrictive approach to political financing means that individuals such as Mr. Maheux can be prevented from developing their engagement with political parties, even as they are also prevented from participating in political debates as “third parties”, by spending money on advertising during electoral campaigns. Politics in Québec risks becoming even more of an insider activity ― ostensibly in the name of a fight against corruption. This makes no sense to me.

As for the consequences of conviction, there are three distinct issues. The first one is whether the disenfranchisement of those convicted, which is an obvious infringement of the right to vote protected by section 3 of the Charter, can be justified under section 1. In Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876, the Supreme Court upheld the disenfranchisement, for five years, of a member of a provincial legislature who had been convicted of trying to induce a person who was not entitled to vote to do so. Harvey was, of course, decided before Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which struck down the general disenfranchisement of prisoners serving sentences of two years or more, but I don’t think that Sauvé calls it into question. The Harvey court accepted that the temporary disenfranchisement of those convicted of corrupt electoral practices was a proportionate way of pursuing the specific purpose of protecting the integrity of elections, with which the general disenfranchisement provisions at issue in Sauvé had nothing to do.

That said, accepting that legislatures can disenfranchise people who compromise the integrity of the democratic process, the question is how far this principle extends. We wouldn’t accept, I think, the disenfranchisement of people who negligently infringe some technical rule about the reporting of a candidate’s expenses. But, again, how do we ― and, more to the point, how does a court ― draw lines? Again, I am not aware of judicial guidance on this point, but looking at what other jurisdictions do is instructive. The lists offences that are labelled as corrupt (or illegal) practices and can lead to disenfranchisement are not identical, but both federally (in section 502 of the Canada Elections Act) and in Ontario (in section 97.1 of the Election Act) the focus is on interference with the composition of electorate (involving voting under various false pretenses or, conversely, preventing electors from voting), or the process of casting ballots. An individual exceeding contribution limits is not deemed guilty of a corrupt practice. Although it is far from certain that the Charter prohibits this, there is, I think, at least a viable argument to be made for this proposition.

The next, related, issue is whether it is permissible not only to disenfranchise a person found guilty of having engaged in some form of corrupt practice, but also to deny him or her the “right to engage in partisan work”. As mentioned above, I do not think that any Canadian jurisdiction except Québec does it; I don’t know if any other democratic country does. The prohibition is an obvious infringement of the Charter freedoms of expression and of association. Can it be justified? Once more, I am not aware of judicial decisions directly on point, but it is possible to venture a few observations. One is that Québec is deliberately targeting political expression and association, which are at the heart of the Charter‘s protections. Another is that it’s not obvious how a ban on “partisan work” is connected to the integrity of the electoral process as such, or even of the political financing regime; at the very least it is seriously overbroad, because much of what might be fairly described as “partisan work” ― a term that Québec’s Election Act does not define, but uses in a number of provisions that suggest that it should be given a broad meaning ― has nothing to do with with either voting or fundraising. Third, once again the experience of other jurisdictions suggests that Québec’s ban is not minimally impairing, and indeed that it is likely quite unnecessary. And fourth, given its breadth, the ban’s deleterious effects on those subject to it surely outweigh whatever social benefits it might be said to have.

Finally, in his notice of constitutional question, Mr. Maheux indicates that he will argue that the cumulative effect of these various sanctions ― not any of them individually, mind you ― amounts to a violation of the prohibition on cruel and unusual punishments in section 12 of the Charter. The test here is whether the punishment is grossly disproportionate, compared to the one that would have been appropriate in the circumstances. This is of course a highly subjective assessment, and I am pretty skeptical of this claim as a standalone ground for constitutional challenge. If a court grants Mr. Maheux’s claims under sections 2 and 3 of the Charter, it is superfluous to consider the section 12 argument. If it thinks that the infringements of sections 2 and 3 are individually justified, I can’t imagine it holding that collectively they are grossly disproportionate; this would strike me as an odd result.

Be that as it may, Mr. Maheux’s challenge is mostly serious and, while we lack specific, on-point guidance from the courts because the provisions of Québec’s Election Act at which it is aimed are so unique, I think it has at least a reasonable chance of success ― perhaps even a very good one. At the level of political morality, the legislation that Mr. Maheux is attacking is indefensible. It is vastly more repressive than it needs to be, and appears to have been enacted in complete disregard of the rights of those affected by it (as well as of the desirability of a competitive political system). I hope that the law recalls Québec’s legislature both to its constitutional duties and to its senses.

Bashing Bill 62

Criticism of Québec’s face-veil ban coming from elsewhere in Canada is neither hypocritical nor disproportionate

In an op-ed in The Globe and Mail that has generated some discussion, at least in Québec, Jean Leclair remonstrates with “English Canadian politicians and journalists” for their criticism of Québec’s recently enacted legislation that could prevent women who wear face veils (and perhaps other people, such as those who wear sunglasses) from taking the bus or accessing any other public services. Prof. Leclair faults the classes that chatter in English for their hypocrisy and for the excesses of their rhetoric. With respect, it is he who is wrong.

Prof. Leclair thinks that English Canadian criticism of the former Bill 62 is hypocritical because the rest of Canada too has its share of racists and of people who support legislation targeting religious minorities. That is no doubt true. But it is no less true that in no province other than Québec has legislation similar to the “Charter of Values” that was proposed by Québec’s previous government, Bill 62, or beefed-up versions of the latter being proposed by both main opposition parties in Québec been enacted. To my knowledge, no provincial political party has made such legislation official policy. More broadly, no provincial political party has attempted to trade on or pander to the racism that undoubtedly exists in Canadian society in the way that all the main parties in Québec have done. The Conservative Party of Canada, in the death throes of the last federal election campaign, tried to do so, and having failed, abandoned the attempt. Prof. Leclair writes as if there is no difference between discriminatory attitudes existing in society and these attitudes being shared, or indulged for partisan purposes, by those in power. This is not so.

Prof. Leclair also thinks that the critics of Bill 62 are hypocrites insofar as they appear to him to celebrate the wearing of niqabs, or at least to be “stigmatizing all people who do not wish to ‘celebrate’ the right of a woman to wear a veil”. “How many” of them, he asks, “would rejoice if their daughter, one day, chose to wear one?” Prof. Leclair does not mention any names, and I am puzzled as to whether anyone actually is celebrating the fact that niqabs are being worn in Canada. What is worthy of celebration is the fact people are free to act in ways of which many, probably a majority, of their fellow citizens disapprove. Prof. Leclair insists that people should be free to criticize the wearing of the face veils without being accused of being racists, and I agree with him so far as this goes. But, once again, there is a difference between insisting that people are free to criticize others’ choices, even religiously-inspired ones, and defending their purported freedom to support or vote for policies that coerce those who make choices they deem wrong. Criticism is a right in a free society; coercion is not.

Prof. Leclair also argues that the criticism of Québec’s anti-veil (and perhaps anti-sunglasses) legislation is overwrought. After all, “Canada’s approach to the regulation of religious symbols and clothing … is not the only legal path followed in the liberal-democratic world”. A number of European countries have banned full-faced veils, and these bans have been upheld by the European Court of Human Rights. This, to prof. Leclair, proves that, though the bans may be wrong ― as he thinks ―, they are not “synonymous with blind racism”. Yet I fail to see how the fact that some countries ― even some democratic countries ― do something should shield that thing from forceful criticism. Admittedly, I do not know whether Prof. Leclair personally has ever criticized, say, the American criminal justice system as barbaric, but plenty of people in Canada and in Europe do not hesitate to do so. Does prof. Leclair think they should all keep mum? For my part, I think that to the extent that human rights involve universal principles, there is nothing inherently untoward in arguing that the interpretation of these principles by another polity, or group of polities, is perverse.

And the European approach to face veils is indeed perverse. Whether or not it proceeds from “blind racism”, as I have argued here, the reasoning of the Strasbourg Court is repressive, and indeed totalitarian. It rests on the premises that the state is entitled to impose conditions on human interaction that the individuals doing the interacting do not wish to be subject to, and that individuals have some kind of obligation to enter into “open interpersonal relations” with others, whether or not they want to do so. This reasoning is incompatible with belief in a free society, where people decide whether they wish to interact with others, and on what terms, so long as they are refraining from using force or fraud and not harming third parties. Prof. Leclair insists that even if the banning face veils is wrong, it is not arbitrarily repressive, as if the state were “regulating such things as baseball caps or miniskirts”. Face veils are associated with oppression against women, and the desire to outlaw them is therefore comprehensible even if misguided. I’m not sure about skirt length requirements, but certainly prohibitions on women joining certain occupations, or working outside the home at all, or voting, were once justified by claims that these activities took away women’s dignity. We have learned not just to politely disagree with such claims, but to reject them out of hand (which, of course, does not mean to shout them down or censor them). I hope that, in due course, we will also learn to reject out of hand claims that the dignity of women requires them to be prevented from dressing in accordance with their religious beliefs.

In my view, then, Prof. Leclair and others who, like him, disagree with Québec’s ban on face veils and proposals to extend this ban are wrong to object to the criticism with which this ban has been received in the rest of the country. This criticism is not made hypocritical by the existence of racist citizens outside Québec, nor is it made disproportionate by the fact that similar bans are regarded as acceptable in Europe. Prof. Leclair and others might view the criticism as an instance of “Québec-bashing”, the application of double standards to their province. Their are mistaken. Not only is there no double standard, as I’ve argued above, but the intensity of the criticism is, at least in part, likely driven by a recognition of the existence of the chauvinist and illiberal tendencies elsewhere in Canada. There might be no need to criticise Québec’s legislation so much if we were certain that it would never be replicated elsewhere. But precisely because there can be no such assurance, it is important that scholars, journalists, and politicians across Canada denounce it for what it is ― a manifestation of bigoted illiberalism.

Chicane de cours, bis

La querelle constitutionnelle entre la Cour supérieure et le gouvernement du Québec mérite le sérieux, pas la dérision

Plus d’un mois après qu’on en eut appris l’existence, la requête des  juges de la Cour supérieure visant à faire déclarer inconstitutionnelles les compétences exclusives sur les poursuites civiles de 10 000$ à 85 000$ et sur le contrôle judiciaire de certains tribunaux administratifs assignées par le législateur québécois à la Cour du Québec commence à faire parler d’elle. La fin de semaine dernière, Yves Boisvert y est allé d’une chronique vitupératrice dans La Presse et Robert Dutrisac, d’un éditorial un peu plus sobre, mais tout aussi indigné et un peu parano de surcroît, dans Le Devoir. Au-delà des erreurs juridiques qu’elles contiennent, ces élucubrations sont surtout remarquables par le peu de cas qu’elles font de la constitution et leur empressement à blâmer une seule partie dans une dispute où l’autre mérite tout autant, sinon davantage, comme je l’expliquais déjà lorsque les procédures ont été amorcées, d’être condamnée.

M. Boisvert compare la requête des juges de la Cour supérieure à celle du « gars qui a réclamé 67 millions à son nettoyeur pour avoir perdu son pantalon ». Il reconnaît pourtant ― au 17e paragraphe sur les 24 que compte son chef-d’oeuvre ― que « [t]echniquement, l’argument est sérieux ». Cependant, il n’en a cure, de ces détails techniques. Que la Cour supérieure, censément tribunal de droit commun, se trouve presque sans dossiers civils dans plusieurs régions du Québec n’est qu’un « “problème” » ― avec des guillemets. Que l’enjeu soit « discuté depuis des années par des experts et par des juges » (c’est au moins une décennie, comme je l’indiquais dans mon premier billet sur le sujet), c’est apparemment sans importance. Tout ça ne serait qu’ « [u]ne façon comme une autre de célébrer le 150e anniversaire de la Constitution », voire même de « ramener à 1867 » notre système judiciaire. Et que le gouvernement du Québec ait été au courant de tout ça, pressé par les juges d’éviter une confrontation inconvenante dans leur propre cour, et n’ait pas pris éviter l’apparence de conflit en renvoyant la cause devant la Cour d’appel est bien normal, puisqu’il ne saurait être question de « faciliter ce débat oiseux ».

M. Dutrisac, lui, écrit que le « Québec […] détient la compétence exclusive de l’administration de la justice », et que puisque « la Cour du Québec […] en mène plus large que les autres cours provinciales[,] en matière de justice, le Québec est en quelque sorte une société distincte ». Il soutient que la requête des juges serait un « coup de force » visant à « remettre le Québec à sa place en matière de justice, dans un esprit de soumission constitutionnelle ».

Autant M. Boisvert que M. Dutrisac s’insurgent face à la décision des juges de lancer ces procédures alors que le système de justice s’ajuste encore aux exigences en matière de délais édictées par la Cour suprême dans l’arrêt R c Jordan, 2016 CSC 27, [2016] 1 RCS 631. Cependant, leurs arguments à l’effet que tout le débat sur la limites de la compétence de la Cour du Québec serait « oiseux » sinon une sinistre tentative d’éradiquer la différence québécoise en matière de justice s’appliquerait tout autant en l’absence de ces ajustements. Il est vrai que, si les juges de la Cour supérieure ont gain de cause, d’importants changements devront être faits au système de justice. Or, ces changements auraient dérangé peu importe quand il aurait fallu les faire, et plus on attend, plus ils seront dérangeants le moment venu.

Car, comme M. Boisvert finit bien par l’admettre, l’argument des juges est sérieux. La constitution, n’en déplaise aux journalistes, n’est pas qu’un détail technique ou une curiosité intellectuelle. C’est encore moins un instrument de « soumission » pour le Québec. Le respect de la constitution c’est la condition même de légitimité de l’État québécois, comme de l’État canadien, bien sûr, ou de n’importe quel autre. Quand l’État déclare, par sa conduite (y compris sa législation) ou les paroles ou le silence de ses représentants, que le respect de la constitution l’indiffère, il y renonce, du moins en partie. Et il lance un avertissement à ses citoyens : hier, ce n’était que le partage des compétences en matière du système judiciaire que l’État québécois négligeait ; aujourd’hui, c’est aussi l’indépendance de la magistrature, à laquelle il a le devoir de contribuer, et qu’il aurait dû préserver en renvoyant cette question du partage des compétences à la Cour d’appel ; qu’est-ce que ce sera demain? En reconnaissant ses obligations constitutionnelles, l’État ne fait pas preuve de soumission (envers qui, au juste, M. Dutrisac?), mais bien de respect envers ceux et celles qu’il est censé servir ; ou, si tant est qu’il s’agit de soumission, c’est de cette soumission que les juristes médiévaux imposaient déjà aux rois d’Angleterre, en disant que Rex non debet esse sub homine, sed sub Deo et lege ― le Roi ne doit point être le sujet d’un autre homme, mais de Dieu et de la loi.

Je mentionnais plus haut les erreurs juridiques de MM. Boisvert et Dutrisac. Elles sont plutôt flagrantes ― et diamétralement opposées. Le premier dit que « [l]a Constitution de 1867 réserve au fédéral le pouvoir de créer les cours de droit commun »; le second, que le « Québec […] détient la compétence exclusive de l’administration de la justice ». Les deux ont tort. Le fédéral ne crée pas les tribunaux de droit commun, même s’il nomme leurs juges. Toutefois, la compétences des provinces en matière d’administration de la justice, même si elle est décrite comme exclusive à l’article 92(14) de la Loi constitutionnelle de 1867, est limitée par ce pouvoir de nomination du fédéral, et par les restrictions supplémentaires que la jurisprudence a dérivées de ce pouvoir. Ce schéma constitutionnel est (délibérément) complexe, mais il est troublant que l’on veuille dénigrer les efforts visant à le préserver sans même en comprendre le fonctionnement.

Pour sa part, M. Dutrisac exagère aussi le caractère unique du Québec en matière de la compétence de la cour provinciale. Comme je le mentionnais dans mon premier billet, cette compétence va jusqu’au seuil de 50 000$ en Alberta. C’est certes moins qu’au Québec, mais l’ordre de grandeur est le même, et démontre bien que le Québec est, ici encore, moins « distinct » du reste du pays que les nationalistes ne le prétendent, et que la requête des juges de la Cour supérieure n’est pas une attaque contre la spécificité québécoise, mais soulève au contraire des questions d’un vif intérêt pour le pays tout entier.

Et c’est pourquoi je reviens à ma suggestion, formulée le mois dernier, que le gouvernement fédéral devrait intervenir dans le débat en formulant un renvoi à la Cour suprême pour le trancher. L’enjeu est d’importance nationale, sa résolution ne nécessite pas l’établissement d’une trame factuelle, et le fédéral aussi a une responsabilité de préserver les apparences d’impartialité de la magistrature. Puisque le gouvernement du Québec ne veut pas faire sa part, et que même les journalistes québécois semblent disposés à louer son attitude et à ne condamner que les juges, le fédéral, qui peut agir, doit le faire.

Clash of Courts

Senior Superior Court judges are suing Québec over its provincial court’s jurisdiction; other provinces will be affected if they succeed

I don’t think the story has received much attention outside of Québec yet, but it’s not because it doesn’t deserve to be noticed: as La Presse reports, the Chief Justice, Senior Associate Chief Justice, and Associate Chief Justice of Québec’s Superior Court are suing the provincial government, arguing that much of the civil jurisdiction of the Court of Québec is unconstitutional. More specifically, they are seeking declarations that Québec could not, consistently with section 96 of the Constitution Act, 1867, grant its provincial court exclusive jurisdiction to hear cases where the amount at issue is more than $10 000 or any powers of judicial review over provincial administrative tribunals, because these powers are reserved for federally-appointed judges.

Currently, the upper limit of the Court of Québec’s jurisdiction in civil matters is set at $85 000. Should the Superior Court judges prevail, their court’s workload is bound to increase very substantially, though I haven’t yet seen any clear data on this point. But repercussions  will be felt well beyond Québec’s borders. British Columbia has set the upper limit on its provincial court’s jurisdiction in civil disputes at $35 000; Alberta, at $50 000. The principles on which the applicants rely apply across Canada, of course, and the boundaries between the jurisdictions of superior and provincial courts would need to be re-drawn in several provinces, if not quite to the same extent as in Québec.

Though I am sure that much more will be said about this dispute as it develops, my initial impression is that the Superior Court judges have a strong case. Although it says nothing of the sort, section 96 has long been understood to stand for the proposition that the courts to which it refers, including Québec’s Superior Court, have a protected “core” of jurisdiction. This core jurisdiction ― that which they exclusively had at the time of Confederation ― cannot be taken away from them or transferred to other courts (which is to say the Federal Court or provincial courts created pursuant to section 92(14) of the Constitution Act, 1867, such as the Court of Québec). As the Superior Court judges’ application shows, in Québec, the exclusive jurisdiction of (what at Confederation became) section 96 courts started at $100, which, adjusted for inflation, is said to be less than $10 000. (The application does not go into any detail as to exactly how this inflation adjustment proceeds ― the exercise is bound to be an inexact one over 150 years ― but let’s assume that the figures given are at least roughly correct.) As Québec expanded the jurisdiction of its provincial court over the last 50 years (for the most part, when it was governed by the Parti québécois), it took more and more out of the former exclusive jurisdiction of the Superior Court, impinging ever more on what the Supreme Court, in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, described as its “historic task … to resolve disputes between individuals and decide questions of private and public law”. [32]

Indeed, the Superior Court judges’ argument is not new. Frédéric Bachand, then a professor at McGill and now himself a Superior Court judge, mentioned it in my civil procedure classes ― 10 years ago. And, while I’m not sure about this, I doubt that the point was a novel one even then. Prof. Bachand, as he then was, also pointed out that no litigant had a good reason to raise the issue, and he was right about that too ― but the wonders of public interest standing, which the Superior Court judges very plausibly claim, mean that the matter will have to be addressed regardless.

Just how it will be addressed is still a troubling question. The prospect of Québec’s Superior Court adjudicating, even in the first instance, a claim about its own jurisdiction brought by its three most senior judges is unsettling. The judges’ Application details their fruitless attempts to get the provincial government interested in the matter. For a while now, they have pushed for the issue to be referred to the Court of Appeal. A reference would indeed have been the preferable procedural vehicle, both to avoid casting the Superior Court in the unseemly position of being judge in its own cause, and also because the questions to be addressed are not of such a nature as to require a trial to be held, while appeals all the way to the Supreme Court are certain in any event. I’m not sure exactly why the Québec government has so far refused to take this course. Perhaps it was daring the judges to sue in their own court, and hoping that they would not compromise themselves in this way. But now that, rightly or wrongly, its dare has been taken, there is nothing to be gained from continued obstinacy.

Indeed, I wonder if the federal government would not do well to intervene and refer the issues directly to the Supreme Court, should Québec’s obstinacy continue. While federal references on the constitutionality of provincial legislation are uncommon, Québec itself has no compunctions about referring questions regarding the constitutionality of federal policies to the courts. And of course the issue of the respective jurisdictions of superior and provincial courts directly concerns the federal government, which would have to pick up a substantial tab for the salaries of additional section 96 appointees if Québec’s Superior Court judges are successful. Even more importantly though, because these judges are appointed and paid by the federal government, I think it has a direct interest in helping them maintain their continued impartiality and good standing, and arguably a duty to do so (a political duty, of course, not a legal one).

Whatever exactly happens, one has to hope that it happens quickly. An important question has been raised, with strong arguments to support the proposition that the way the court  systems of several provinces are organized is unconstitutional. This question deserves to be answered, but having it litigated by senior judges in their own court is surely not the right way to go about it. Yet if the judges are looking bad, the provincial government that seemingly dared  them to do it is even worse. It is not taking its constitutional responsibility for the administration of justice ― on which it purports to rely to justify its allegedly unconstitutional legislation ― seriously at all. It is high time for it to come to its senses ― and perhaps for the federal government to intervene if it refuses to do so.

First of All Our Laws

Natural law in a Québec Court of Appeal decision in 1957

Starting with the Reference re Alberta Statutes, [1938] SCR 100, but mostly in the 1950s, the Supreme Court of Canada issued a series of decisions which came to be known as upholding an “implied bill of rights” in the Canada. The actual holdings of these decisions were often relatively narrow ― they held, for example, that provinces could not outlaw political or religious ideas, because doing so was part of Parliament’s criminal law power. Yet both the obiter comments of some judges and the general trend of these cases seemed to give a fairly clear indication that the Supreme Court would, to some extent at least, resist the arbitrary exercise of both legislative and executive power in Canada, and protect civil liberties.

Understandably less well-known are the decisions of the lower courts that tended to the same effect. In Morin v Ryan, [1957] Que QB 296 (CA), for instance, the Québec Court of Appeal awarded damages to a plaintiff it founded to have been defamed by being characterized as a “militant communist” ― a decision F.R. Scott described as “a healthy check on incipient McCarthysm”. Another such decision, which I have recently come across, is Chabot v School Commissioners of Lamorandière, (1957) 12 DLR (2d) 796.  Like many of the “implied bill of rights decisions” it concerned the religious freedom of Jehovah’s Witnesses ― in this instance, in the context of a school system organized along religious lines.

The applicant’s children were attending a Catholic public school ― the only kind there was in their rural municipality. After the family joined the Witnesses, the parents wrote to the school to request that the children not be required to take part in the daily prayers and to study religion-related content. What we would now call a “reasonable accommodation” seems to have worked well enough for a while, but eventually ― perhaps after some trivial misbehaviour by the children, though many of the judges seem quite skeptical of this ― the arrangement broke down. The children were expelled, and the school authorities made it clear that they would only re-admit them on condition that they take part in the full programme of religious activities. The father sought a writ of mandamus to compel the school to admit his children with the condition that they be exempted from religious exercises.

At the Court of Appeal, the case was heard by a bench of seven judges ― testament, I take it, to its special importance. Six sided with the father. Justice Rinfret, as he then was (Édouard Rinfret, that is, not to be confused with his father Thibodeau Rinfret, the Chief Justice of Canada), dissented, protesting that

no one wants to place any obstacles in the way of the religious liberty of the appellant or his children, no one aspires to force him to send his children to the school of the commissioners; if he does it, it is of his own volition, because he wanted to; but if it is his wish and if he insists on sending them there, he is obliged to … follow the regulations [as to religious exercises and studies] established by competent authority. (826)

The law, after all, allowed religious “dissentients” to establish their own schools. If the Chabot family was one of the few or even the only one in its small town, that was not Catholic, the law paid no heed to that; they should still set up their own school, or comply with the rules of the Catholic majority.

But the court’s majority did not see it this way. For them, the issue was one of religious liberty ― and indeed of natural rights. On its face, to be sure, the case was about interpreting the applicable legislation and regulations, and deciding whether they were ultra vires the province, notably in light of some of the already-decided “implied bill of rights” cases. Justice Casey, for instance, starts by putting the case before the court in this context:

During the past few years our Courts have been called upon to consider those fundamental rights commonly called freedoms of speech and of religion, and while differences have arisen in solving specific problems, never has the existence of these rights been put in doubt. (805)

But, more than in those cases, the judges who decided Chabot were explicit in their references to implicit rights prior to positive law, which guided their interpretation and application of that law. Thus Justice Pratte says that “it appears useful to recall that the right to give one’s children the religious education of one’s choice, like freedom of conscience, is anterior to positive law”. (802) Having quoted a couple of English decisions to this effect, and a passage from Aquinas cited in one of them, Justice Pratte writes that

if one considers natural law, first of all our laws, it is necessary to conclude that children who attend a school are not obliged to follow a religious teaching to which their father is opposed. (802)

Similarly, Justice Casey was of the view that “[w]hat concerns us now is the denial of appellant’s right of inviolability of conscience [and] interference with his right to control the religious education of his children”, which rights “find their source in natural law”. (807). Justice Hyde (with whom Justice Martineau agreed), also took the position that the school authorities’ position amounted to an assertion that they could

force upon [non-Catholic children attending Catholic schools] the teaching of the Roman Catholic Church and oblige them to go through forms of worship in accordance with that faith. It requires no text of law to demonstrate that this cannot be so. (813; paragraph break removed.)

Justice Taschereau (that is André Taschereau, not to be confused with his cousin Robert Taschereau, then judge on the Supreme Court and later Chief Justice of Canada), sounded a perhaps slightly more Dworkinian note:

It would … be contrary to natural law as well as to the most elementary principles of our democratic institutions that a father could not exercise the right or fulfil his obligation to instruct his children without renouncing his religious faith (834; emphasis added.)

Of the majority judges, only Justice Owen was more cautious, saying that “[t]here are differences of opinion as to the nature of [religious freedom], whether it is a civil right
or a political or public right”, although he too had no difficulty in concluding that it “is a right which is recognized and protected in Canada”, while pointing to limited legislative, and no constitutional, authority.

Now, it is not entirely clear quite what relationship between positive and natural law the judges envisioned. Certainly they were prepared to let natural law guide their choice between plausible interpretations of ambiguous legislative provisions, and either to read down or to declare ultra vires regulatory provisions inconsistent with their chosen interpretation and thus with natural law. But would they go further and actually invalidate positive law for inconsistency with natural law? None of them finds it necessary to do so, but there is at least a hint that they might. Justice Hyde seems to suggest that compliance with natural law might be a constitutional requirement, saying that the school authorities’ power to determine the curriculum

cannot be construed to override [a] basic principle of natural law. It would require very specific provisions in the Act to that effect to justify any such interpretation and then, of course, the constitutionality of such provisions would be a matter for consideration. (813)

Justice Casey might be going further still, stating that rights which

find their existence in the very nature of man … cannot be taken away and they must prevail should they conflict with the provisions of positive law. Consequently if the regulations under which, rightly or wrongly, this school is being operated make it mandatory that non-Catholic pupils submit to the religious instructions and practices enacted by the Catholic Committee then these regulations are ultra vires … and invalid. (807; emphasis added)

That said, the same Justice Casey cautions that

while in principle no one should be coerced into the practice of a religion, or subjected to compulsion in following outwardly the dictates of conscience, or prevented from practising as he sees fit the religion of his own choice, this immunity disappears if what he does or omits is harmful or opposed to the common good or in direct violation of the equal rights of others. (805)

Meanwhile, Justice Pratte suggests that Québec’s education system was designed so as to “take into account the rights of the family in the matter of education.” (800) His and his colleagues’ decision, then, might only rely on natural law the better to advance the positive legislator’s objectives, as well as to protect natural rights.

The majority’s overt invocation of natural law reads like something of a curiosity sixty years later. The rights it sought to uphold have, more or less, been subsumed in the positive protections of the Canadian Charter of Rights and Freedoms ― and, perhaps even more so, in Québec’s Charter of Human Rights and Liberties. Nevertheless, the questions the Court addresses are also very modern. The issue as stated by Justice Taschereau ― whether a parent “[c]an … be obliged to renounce his religious beliefs as a condition to the admission of his children to a public school of the school municipality where he lives?” (832) ― is exactly the same as that which faced the Supreme Court in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, the kirpan case. The answer the Supreme Court gave was not as novel as its critics keep on pretending it was, nor did it have to hinge on constitutional provisions which some of them affect to find illegitimate. Half a century before Multani, Québec’s highest court came to similar conclusions, on the basis of what it ― rightly in my view ― saw as truths antecedent to, and more permanent than, any constitution.

Do You Really Have to Go?

Lessons for Canada and New Zealand on resignations of MPs

A recent article by Audrey Young in the New Zealand Herald observes that the number of resignations of Members of New Zealand’s Parliament during the course of the terms for which they were elected has increased since the country moved from the first-past-the-post electoral system (which Canada now has) to the mixed-member proportional (MMP) system. Ms. Young also writes about proposals to reduce the number of resignations. There may be something for both Canada and New Zealand to learn from each other here.

The overall numbers are stark: “In the 20 years before MMP began in 1996, there were 14 vacancies ― nine caused by resignations of MPs and six by deaths while in office. [NOTE: It occurs to me that the numbers don’t add up; but the correct figure is relatively unimportant here.] In the 20 years since … there have been 48 vacancies”, 45 of them caused by resignations. New Zealand’s Parliament was enlarged when MMP was introduced, but the increase of its membership from just below 100 to 120 does not account for the growth in the number of resignations. Of course, correlation does not equal causation; but there are in fact good reasons to think that there is causation here.

Most significantly, Ms. Young notes that of the 45 MPs who resigned, 30 were “list MPs”. Yet there are at one time only 50 (or, with the occasional addition of overhang seats, sometimes 51 or 52) such MPs in New Zealand’s Parliament, compared to 70 elected in single-member districts. The smaller pool of list MPs is providing two thirds of all resignations. And it’s not hard to see why that might be the case: when a list MP resigns, he or she is simply replaced “by the next available candidate on the party list.” There is little cost for the party, for getting a soon-to-retire or an out-of-favour MP to retire, and replacing him or her with a more eager or better liked one.

Yet David McGee, a former Clerk of the New Zealand Parliament, writes in the Herald that all these resignations are “deleterious to the institution of Parliament and to the sense of obligation that members should feel to it”. While does not elaborate this very much, he adds that “[m]embers in the final year of a Parliament can and should be expected to contribute to its work for the full term that they have signed up to”. And so Mr. McGee suggests a solution to this problem. “In the case of list members … any vacancy occasioned by resignation should not be filled.” This will disincentivize the parties, which prompt most these resignations, from ever doing so.

For Canadian advocates of electoral reform generally, and especially of MMP (which I take it is the most popular option among reformers), there is a warning here. Electoral reform is likely to bring in more resignations ― and more MPs brought in from lower down party lists, without the publicity or scrutiny of elections. An unintended consequence, no doubt, but arguably still an unpleasant one. And solution proposed by Mr. McGee is not very appealing either, it seems to me; it is too dependent, for its attractiveness, on complete success. If it fails to prevent resignations, then it will result in departures from the principle of proportionality of representation ― and in a finely balanced Parliament might even cause a change in the balance of power. And to achieve the absolute success it requires, Mr. McGee’s proposal incentivizes parties in a way that is arguably no less perverse than that of the current system for being its opposite: a party will do everything to keep a list member, even one involved in scandal or found to simply be incompetent, from resigning, and diminishing its power. As Edward Willis points out,

the ability for politicians to resign is usually understood to be an important accountability mechanism. Politicians do not always cover themselves in glory, and sometimes the people want (metaphorical) blood. Falling on one’s sword in a public manner demonstrates the accountability of the political system to the people at the level of the individual politician, and for that reason alone I would be hesitant to put anything in the way that would prevent or inhibit political resignations.

The same concerns arise with respect to Mr. McGee’s proposal for dealing with resignations of MPs elected by constituencies, Mr. McGee argues that

as a condition of being declared elected, electorate members should be required to enter into a bond to serve through the full term of the parliament. The amount of the bond would not cover the full cost of a byelection … but it should be sufficiently high to provide a financial disincentive to resignation for the member and for the party backing the member.

The only exception he would make to the application of these penalties would be for those MPs who resign “on health grounds proved to the satisfaction of the Speaker or the Electoral Commission”.

The idea is similar to one that has already been implemented in Québec, where the Act Respecting the Conditions of Employment and the Pension Plan of the Members of the National Assembly provides, since 2015, that the Assembly members who do not complete the term for which they were elected forfeit the “transition allowance” to which they would otherwise be entitled. Pursuant to section 12 of the Act, a member who resigns can only get his or her allowance upon proving, to the satisfaction of the Assembly’s Ethics Commissioner, that the “resignation is due to a serious family matter or to a major health issue affecting him or a member of his immediate family.”

When this idea was first floated in 2013 by the then-Minister responsible for Democratic Institutions and Active Citizenship, Bernard Drainville ― who would later resign from the National Assembly in June 2016, right in the middle of a legislative term ― I criticized it here. I noted that the supposed “moral contract” between the voters and their representatives, which bound the latter to serve out their terms, appeared to be a matter of wishful thinking, if the experience of the leader of Mr. Drainville’s own party was anything to go by. Pauline Marois had resigned from the National Assembly in 2006, saying that “her heart [was] no longer in it”, and yet came back and was elected again in 2007, later becoming Premier. More importantly, though, I wrote that “requiring members of the assembly to serve out their terms would have perverse effects”, notably in that

it would incentivize a member mired in ethical problems, or even one charged with an offense, to cling to his or her seat rather than resigning and giving it up to another, better able to represent his or her constituents. And more broadly, citizens would not be well served by a representatives whose heart … was no longer in it, and who only show up at the Assembly in order to eventually collect their allowance. Mr. Drainville’s proposal would likely create such zombies.

Needless to say, not many people pay heed to my rants, and the proposal had sufficient bipartisan support that it was eventually enacted, not by Mr. Drainville’s Parti québécois, but by the Liberals who replaced them in government in the meantime.

If New Zealaders get serious about taking action against MP resignations, they would do well to consider Québec’s experience. It is still very brief, but perhaps already instructive. My worries about zombie-MNAs waiting to collect their allowance might have been exaggerated, though of course it is impossible to tell. What is clear, however, is that a financial penalty will not deter at least some legislators from resigning mid-term. Mr. Drainville himself did it, to take up a radio talk-show host job, after Pierre-Karl Péladeau resigned as Parti québécois leader and quit politics. Mr. Péladeau’s own resignation might have fallen within the scope of the “serious family matter” exemption, but his case also shows that a penalty that would be a serious matter for most people would have been of no concern at all to someone as wealthy as he is.

Indeed, this may be unsurprising. In New Zealand itself already denies any sort of golden parachute to members of Parliament who leave before the end of their term. Section 11 of the Members of Parliament (Remuneration and Services) Act 2013 only provides an “additional salary” to those who are “member[s] of Parliament immediately before the dissolution of a Parliament” ― and yet it has not stopped resignations. Admittedly, the amount to which members who serve out their term are entitled is only three months of salary, as opposed to up to a year in Québec. Still, that many choose to forego it ― even leaving just months before they would become eligible for it ― suggests that when a legislator becomes sick and tired of legislating, he or she may walk away from easy money just to get away from it. (Take that, all you cynics who think that politicians are only in it for greed or lust for power!)

Our institutions have flaws; sometimes, very visible, even obvious flaws. Members of Parliament resign without finishing the job for which they were elected; governments come to office without the support of a majority of the people. It is tempting to look for an easy fix to these flaws. But these fixes may be less effective than they seem, and may create problems of their own if implemented. Moving to an electoral system featuring party lists may raise the number of parliamentary resignations; requiring prospective MPs to pay a bond to ensure against their resignation may fail to provide that insurance, yet deter the less well off from standing for office. Tinkering with the rules may feel satisfactory, but it is perhaps better to remember that no system is perfect.

Events Next Week

I’ll be visiting McGill and Yale next week. Come say hello!

Next Tuesday, the 29th, I’ll be taking part in a discussion on “Conscience and the Constitution in Canada” at the McGill Faculty of Law (specifically, in NCDH 101). I will be speaking on the conflict between freedom of conscience and state authority, in particular as it played out in the litigation about the constitutionality of the Canadian citizenship oath, about which I have written a great deal here. The other participant will be Brian Bird, a doctoral candidate at McGill, who will be speaking about the legal history of freedom of conscience in Canada. The fun starts at 1PM and goes on until 2:15.

By the way, this event is organized by the Runnymede Society, which is a new group that aims at fostering conversations and debates on matters constitutional in Canadian law schools, and in particular at presenting students with a broader range of views and perspectives than they might otherwise be exposed to. I think it is a very exciting and useful project, and I am very excited to be taking part in one of their first events. Thanks to the Runnymede Society’s president, Joanna Baron, for inviting me!

And next Thursday, the 31st, I will be moderating a panel on “Popular Sovereignty and a Québec Constitution” at the Symposium on Does Québec Need a Written Constitution?,which will be taking place at Yale, in Luce Hall (LUCE), Room 203. The proceedings start at 9:45, and the panel that I’ll be chairing ― and on which Maxime St-Hilaire (a sometime guest here at Double Aspect), Mark Walters, and Nelson Wiseman will be speaking starts at 1PM. Many thanks to Richard Albert, the convener of the Symposium, for inviting me to do this.

If you are able to attend either event, please come say hello!